Section 446 and 446A CrPC: Procedure When Bond Is Forfeited and Cancellation of Bond and Bail Bond

Scope of this article: This page explains Sections 446 and 446A of the Code of Criminal Procedure, 1973 (CrPC) as applicable before implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). It is intended for matters governed by the earlier CrPC regime.

Chapter XXXIII of the CrPC dealt with bail and bonds. Sections 446 and 446A addressed the consequences of breach of a bond. Section 446 prescribed the procedure for establishing forfeiture and recovering the penalty, while Section 446A dealt specifically with cancellation of a bond and bail bond when an appearance bond was forfeited for breach of a condition.

Meaning of forfeiture of a bond under Section 446 CrPC

A bond may require a person to appear before a Court, produce property, or comply with another obligation imposed under the CrPC. When the condition of the bond is breached and the competent Court is satisfied that the bond has been forfeited, Section 446 requires a judicial procedure before the penalty can be enforced.

Section 446(1): Court must record grounds and call for payment or cause

For a bond concerning appearance or production of property before a Court, the Court before which the obligation is enforceable, including a Court to which the case has been transferred, may act when forfeiture is proved to its satisfaction. For other bonds under the Code, the provision identifies the Court which took the bond, a transferee Court, or a Magistrate of the first class as competent in the circumstances stated in the section.

The Court must record the grounds of proof of forfeiture. It may then call upon the person bound by the bond either to pay the penalty or to show cause why the penalty should not be paid.

Explanation attached to Section 446(1)

A condition in a bond for appearance, or for production of property before a Court, includes a condition requiring appearance or production before a Court to which the case is subsequently transferred. A transfer of the case therefore does not by itself defeat the obligation created by the bond.

Recovery of penalty under Section 446(2)

If sufficient cause is not shown and the penalty is not paid, the Court may recover the penalty as if it were a fine imposed under the CrPC. Where the penalty cannot be recovered in that manner, a surety may, by order of the Court directing recovery, be committed to civil jail for a term which may extend to six months.

Remission of penalty under Section 446(3)

The Court may remit a portion of the penalty and enforce payment only in part. The statutory text applicable after the 2005 amendment requires the Court to record its reasons for doing so. This requirement is important because remission is a judicial exercise rather than an unexplained reduction of the bond penalty.

Death of surety before forfeiture - Section 446(4)

If a surety dies before the bond is forfeited, the surety's estate is discharged from liability in respect of that bond.

Use of conviction as evidence - Section 446(5)

Section 446(5) applies where a person who furnished security under Section 106, Section 117 or Section 360 is convicted of an offence that constitutes breach of the conditions of the bond, or of a bond executed in lieu of it under Section 448. A certified copy of the judgment may be used as evidence against the surety or sureties, and the Court shall presume commission of the offence unless the contrary is proved.

Section 446A CrPC: Cancellation of bond and bail bond

Section 446A operates without prejudice to Section 446. It applies where a bond for the appearance of a person in a case is forfeited because a condition of that bond has been breached.

Effect of forfeiture under Section 446A

  • The bond executed by the person and any bond executed by one or more sureties in that case stand cancelled.
  • If the Police Officer or Court concerned is satisfied that there was no sufficient cause for the person's failure to comply with the condition, the person cannot thereafter be released in that case merely on his own bond.
  • Subject to the other provisions of the CrPC, the person may be released on execution of a fresh personal bond for an amount considered sufficient and a bond by one or more sureties as required by the Police Officer or Court.

Practical distinction between Sections 446 and 446A

Section 446 principally concerns the adjudication of forfeiture and enforcement or remission of the monetary penalty. Section 446A addresses the status of the appearance bond and bail bond after forfeiture and the conditions on which the person may subsequently be released in the same case.

Important procedural points

  • Forfeiture should be founded on the Court's satisfaction and the grounds must be recorded.
  • The person bound by the bond must be given the statutory opportunity to pay the penalty or show sufficient cause against payment.
  • Recovery follows only if sufficient cause is not shown and the penalty remains unpaid.
  • Any remission under Section 446(3) requires recorded reasons under the amended provision.
  • Cancellation under Section 446A is linked to forfeiture of an appearance bond for breach of a condition.

Historical note

Section 446A was inserted by Act 63 of 1980 with effect from 23 September 1980. The proviso concerning civil jail in Section 446(2) was also added by that amendment. Section 446(3) was later amended by Act 25 of 2005, with effect from 23 June 2006, to require recording of reasons when the Court remits part of the penalty.

Note: This article describes the CrPC position before implementation of the BNSS. For proceedings governed by the current criminal procedure law, the corresponding BNSS provisions should be consulted separately.