Section 491 BNSS: Procedure When Bond Has Been Forfeited
Section 491 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS") lays down the procedure a Court may follow when a bond executed under the Sanhita is proved to have been forfeited. It deals with recording the grounds of forfeiture, calling upon the person bound by the bond to pay the penalty or show cause, recovery of the penalty, remission, and liability of sureties.
- Provision: Section 491, Bharatiya Nagarik Suraksha Sanhita, 2023.
- Subject: Procedure when bond has been forfeited.
- Chapter: Chapter XXXV - Provisions as to Bail and Bonds.
- In force: The BNSS came into force on 1 July 2024, subject to the commencement notification issued by the Central Government.
Meaning and Scope of Section 491 BNSS
A bond may require a person to appear before a Court, produce property, or comply with another obligation imposed under the BNSS. Section 491 becomes relevant when the competent Court is satisfied that such a bond has been forfeited. The Court must record the grounds on which that conclusion is based before proceeding against the person bound by the bond.
The provision also gives the person concerned an opportunity to either pay the penalty specified in the bond or show sufficient cause why the penalty should not be paid. If sufficient cause is not shown and the penalty remains unpaid, recovery may be undertaken in the manner provided by the section.
Key Requirements Under Section 491
- The Court must be satisfied that the bond has been forfeited.
- The grounds proving forfeiture must be recorded.
- The person bound by the bond may be called upon to pay the penalty or show cause against payment.
- If sufficient cause is not shown and payment is not made, the penalty may be recovered as if it were a fine imposed under the BNSS.
- Where recovery from a surety is unsuccessful, the Court may order civil imprisonment for a term extending up to six months, subject to the statutory conditions.
- The Court may record reasons and remit part of the penalty.
- If a surety dies before forfeiture, the surety's estate is discharged from liability in respect of the bond.
Text of Section 491 BNSS, 2023
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.
(3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 125 or section 136 or section 401 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 494, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.
How the Forfeiture Procedure Works
1. Proof of Forfeiture
The competent Court first determines whether the bond has been forfeited. In the case of a bond for appearance or production of property, the Court before which performance was required, including a transferee Court, may act under the section.
2. Recording of Grounds
Section 491 expressly requires the Court to record the grounds of proof of forfeiture. This provides a recorded basis for the further proceedings relating to the penalty.
3. Opportunity to Pay or Show Cause
The person bound by the bond may be called upon to pay the penalty or explain why it should not be paid. The statutory scheme therefore contemplates an opportunity to show sufficient cause before coercive recovery follows.
4. Recovery and Possible Civil Imprisonment of Surety
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 BNSS. Where the penalty cannot be recovered in that manner, a surety may, by order of the Court, be committed to civil jail for a period that may extend to six months.
5. Power to Remit Part of the Penalty
Sub-section (3) authorises the Court to remit a portion of the penalty, but reasons for doing so must be recorded. The Court may then enforce payment only to the extent not remitted.
Related BNSS Provisions
Section 491 forms part of the provisions dealing with bail and bonds. The following nearby provisions may also be relevant: