Mechanics and Implications of Forfeiture of Bail Bonds in Criminal Justice

First, we need to look at the words of Section 491(1) and 491(2) of BNSS (erstwhile Section 446 of CrPC), which state the procedure when the bond has been forfeited.

“491. Procedure when bond has been forfeited.

(1) Where,—

(a) a bond under this Sanhita is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited; or

(b) in respect of any other bond under this Sanhita, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited,

the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.

Explanation.—A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Sanhita: Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.”

Now, the confusion that arises here is, what constitutes the Court's satisfaction? To satisfy the Court, is it necessary that the surety be given a notice first to hear what he has to say regarding the accused's absence, and then only the bond will be forfeited?

This question of law came up before the Division Bench of the Hon'ble Kerala High Court in Thundichi v. State of Kerala^[1]. The relevant portion of this decision is quoted below:

“7. On perusal of the provision and the Form No. 45 of the bond, it is clear that as soon as there is default by the accused in not keeping himself present in the Court on the date of trial, the bond gets automatically forfeited. The law does not provide any requirement of the satisfaction to be arrived at by the Court as to whether the absence is wilful or not. At this stage, there is also no requirement prescribed as to the Court to get satisfied itself by giving an opportunity, either to the accused or to the surety, thereof. In the case of bond for appearance, the court on its own observation is able to see whether the accused is present or not and if he is not present, it has to proceed under S. 446 to declare the bond automatically forfeited. In our view, no independent proof is necessary at this stage and it would be a meaningless formality to take evidence as to the obvious fact of the absence of the accused before the court on the day of the trial. The question whether the absence is wilful or not is immaterial at that stage, since the accused and the surety are together bound themselves to have the presence of the accused on that day and as such mere absence itself would entitle the bond to be forfeited. The latter part of Form 45 if looked into in this regard and especially the words “in case of his making default herein, I hereby bind my self to forfeit to Government the sum of rupees…………” indicate that both the accused and the surety are aware of the fact that mere absence, for whatever reasons, wilful or not, by the very absence of the accused would result in only one situation, viz., forfeiture of the bond. As such, for this purpose, in our view, there need not be any opportunity given to the surety or any proof or evidence in respect of the explanation of the accused or the surety as to whether the absence was wilful or not need not be gone into.

8. Moreover, this so-called opportunity to the surety for the absence of the accused is provided at the later stage, i.e., under sub-s.(2) of S. 446 Cr. P.C. It is only at the stage of payment of penalty the law itself provides an opportunity and if sufficient cause is not shown, penalty is bound to follow, apart from the forfeiture of the bond amount. Under sub-s. (3) of S. 446, it is also provided that the Court, after giving an opportunity to the surety, has a discretion to either levy or not any penalty and even remit any portion of the penalty and enforce the payment in part only.”

In this case, the Hon'ble Kerala High Court also overruled the previous judgments of Usman v. State of Kerala^[2] and Geetha and Another v. State of Kerala^[3] wherein the Ld. Judges held that for the bond to be forfeited, the Court has to satisfy itself that the absence of such accused was not only willful, but such absence was with a view to hinder the course of smooth trial. Thus, it is clear from the observations as quoted above that no notice to the surety is required before forfeiture of bond, and the mere absence of the accused on the day of trial before the Court would entitle the bond to be forfeited. Only after the bond has been forfeited, a notice to the surety of the accused is required to be given to show sufficient cause on why the penalty should not be paid. The Hon'ble Orissa High Court has expressed similar views in Ranananda Choudhury And Anr. v. The State Of Orissa^[4].

However, a different view was expressed by the Hon'ble Madras High Court in Prapbakaran v. The State, Rep. by Inspector of Police, Kavindapadi Police Station, Erode District^[5]. In this case, it was observed, “I regret, I am unable to persuade myself to agree with the said view taken by the Orissa High Court as well as Delhi High Court wherein the learned Judges have taken the view that where there is failure of the accused to appear before the Court, no further enquiry or proof is necessary or contemplated for recording satisfaction. In my considered opinion, mere failure to appear before the Court, in the absence of any willfulness on the part of the accused, would not amount to “a breach” in terms of Section 446 of the Code of Criminal Procedure. Manifestly, there has to be an animus on the part of the accused not to abide by or comply with, the terms and conditions of the bond. Such animus alone makes the failure of the accused to appear, a breach in terms of Section 446 of the Code. Such animus on the part of the accused could be ascertained only after affording sufficient opportunity to the accused. For example, while on his way to the Court, if an accused had met with an accident and he was taken to a hospital, such failure of the accused to appear before the Court on that particular date of hearing can never be treated as breach in terms of Section 446 of the Code. On receipt of notice, if the accused satisfies the Court that he was prevented from appearing before the Court due to sufficient reason, like the one, illustrated above, the Court may not record such satisfaction holding that the accused had committed a breach of bond. The language “proved to the satisfaction” needs to be underscored, which clears doubt, if any, that the term “proof” held within it “disproof” by the accused/surety also. Such proof or disproof of animus can be arrived at only after sufficient opportunity to the accused/surety. Such opportunity shall satisfy the Principles of Natural Justice “Audi alteram partem” which is not alien to Criminal law as it has the sanction of the Constitution of India. Therefore, before recording such satisfaction, notice to the accused is necessary and further enquiry should follow. On such enquiry only, the learned Magistrate has to get satisfied himself on proof as to whether there was any breach of the terms of the bond; and after so satisfied that breach has taken place, then only such recording of the satisfaction of the Court will indicate the breach of the terms of the bond.” This view has been reiterated by the Hon'ble Jammu and Kashmir and Ladakh High Court in Makhan Lal v. UT of J&K^[6]. These observations are in stark contrast to the principle followed in Thundichi's case, since “animus” on the part of the accused for his or her absence and the Magistrate's satisfaction after allowing an opportunity to the surety/accused are the prime factors here for forfeiture of bail bond. There is no automatic forfeiture of bond for the accused's absence on the day of trial.

Thus, the issue here lies in what is deemed “satisfaction of the Court” for the forfeiture of bond under Section 491 of BNSS.

Bail jumping- The remedy in Section 492 of BNSS

In order to curb the menace of bail jumping, the Parliament introduced Section 446A of CrPC, which is the provision of Cancellation of bond and bail bond, in the year 1980. The corresponding Section is now Section 492 of BNSS. The essence of this Section has been lucidly explained by the Hon'ble Madras High Court in Pillappan @ Ravikumar v. State^[7], “Sec. 446 essentially deals with sureties for breach of bond by the accused, whereas, Sec. 446-A deals with the consequences that would befall the accused himself, upon forfeiture, for breach of bond conditions. That is why, Sec. 446-A begins with the expression “without prejudice to the provisions of Sec. 446”. This means that, without prejudice to the power of the Court to take action against the sureties under Sec. 446 of the Code, the Court can deal with the accused separately under Sec. 446-A of the Code for breach of bond.” Further, the Hon'ble High Court has also explained the significance of Section 89 of CrPC (now Section 92 of BNSS). The Hon'ble High Court held, “By virtue of Sec. 89 of the Code, the Court records the absence of the accused and issues a warrant to secure his presence. By his non appearance followed up with the act of the Court in issuing the non-bailable warrant for securing his presence, the accused has prima facie breached the condition of the bond. A bond is a contract between the accused and the State under which the accused has agreed to appear before the Court on the hearing dates and his sureties have assured the Court that they will ensure that the accused does not commit breach of the bond.”

Thus, the position of law is established in this regard. When the accused is absent, the Magistrate is well within his power to issue Non-bailable warrant of arrest to secure his presence following Section 92 of BNSS and thereafter, upon his appearance, proceed in accordance with Section 492 of BNSS.

From the above discussion, it seems that the only aspect of the law that requires some clarification by the Apex Court in the light of different judgments by the Hon'ble High Courts is what constitutes adequate proof to the Magistrate for the forfeiture of bond under Section 491 of BNSS. Is mere absence on the date of trial enough, or is a notice required to be issued to the surety/accused before forfeiture of the bond on the accused's absence? However, one thing is clear: the Magistrate is well-equipped with various powers under the current statute to ensure the attendance of the accused persons in cases of bail jumping.

Anirban Senapati is a Civil Judge(Jr. Div.)-cum-Judicial Magistrate First Class, Sonamura, Sepahijala, Tripura. Views are personal.