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forfeiture of bonds and allied matters

Tarni Yadav v. The State AIR 1962 Pat 431 has observed :


“When the accused is absent on a date fixed in the case of a bond for his appearance in court, the only cause which can be shown by him or his surety against payment of the penalty is that there was good cause for his absence. There is no reason why this very point should be considered twice; once before holding that the bond has been forfeited and again when the person who has executed the bond shows cause against payment of the penalty.”

Let us suppose a case where accused makes a default in appearance. On that day a notice is issued against the surety and process is also issued against the accused for his appearance. On the next date, both the persons appear. Now two situations are possible. Both the persons may provide valid justification for the non-appearance of the accused on previous occasion and matters end there. In the second situation, justification given may not be accepted. If now, the court holds that it is satisfied that the bonds have been forfeited, question will arise about the options available with the court. Section 446 CrPC provides that once the court recorded its satisfaction about the forfeiture of the bond, it shall call upon the person bound by such bond to pay the penalty or to show cause why it should not be paid. Meaning thereby that the court has to give an opportunity to the persons to show cause. What will they say? They again provide justification for the non-appearance of the accused on previous occasion. Court will again go through the same process whereas it has already held that the cause shown for previous non-appearance was not sufficient. The exercise not only be futile but also touch the jurisdiction power of review which is not vested in the court of criminal jurisdiction. Be it noted that Hon'ble Supreme Court has already held that giving of notice to show cause is a must after the forfeiture.

It is clear that no notice is required before forfeiture of bond as the same is automatic result of the act of the accused.

notice has to be given to the surety/accused at one stage only, and that is the second stage. If once he has been given notice to show cause and the cause shown by him has been found to be insufficient, I do not think that a second notice to him to show cause is required by law.

A surety bond is a contract. Each bond, has to be construed on its own terms. But in construing the terms of a surety bond for the production of an accused person, the purpose and object of executing it must be kept in view. Such a bond is executed for the purpose of ensuring the presence of the accused concerned in court in which he is standing his trial for a criminal offence at the hearing of the case. But for the execution of such a bond, the accused would have to remain in custody so that the trial may proceed smoothly. Looked at from this point of view surety bonds in criminal cases must be held to be designed to an extent to serve a public purpose. In some cases it is of course said that surety bonds call for a strict construction. But the construction must not be so unduly strained as to result in defeating its essential purpose. Each bond has of course to be construed on its own terms, subject to what has just been stated.A bond for appearance is insisted upon and executed to guarantee presence of the accused in court during trial and for a smooth running of trial.




The main object of executing the bond is to guarantee the presence of the accused in court as stated in the bond. It is also the purpose that the accused shall not remain in jail during pendency of trial and at the same time, the trial will proceed smoothly. The purpose of execution of bond not only goes in the favour of the judicial system and public at large but also in the favour of the accused. Since, accused gains something i.e. his personal liberty to some extent, he has to justify his gains. The accused cannot make breach of any condition of the bond and then claim that it was not willful or with a view to hinder the course of a smooth trial.


No law normally punishes an individual for an unintentional act or omission. No law is ever harsh to anyone who innocently fails or omits to do something by an inadvertent mistake or error. This is specially so, when a person i.e. the surety is penalized for the fault of another i.e. the accused. A surety incurs a penalty mainly due to the failure of accused to appear and for such default. But, an accused can be absent from court on a particular day or even on several dates for a number of reasons.


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 cannot be treated as unjustified. There may be other situations where the accused might have been prevented from appearance in Court due to valid reasons beyond his control. Instances may be numerous and variegated depending on factual situations which cannot be enumerated.




Ghulam Mehdi vs State Of Rajasthan AIR 1960 SC 1185 has observed :


“This provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then can the Court proceed to recover the money. In the present case the appellant was not called upon to show cause why the penalty should not be paid. Before a man can be penalised forms of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed.”



Yashodha vs State 54 (1994) DLT 637 has observed as under:


“It would thus be clear that before any person bound by such bond becomes liable to pay the penalty thereof it is required of the court to give notice to him as to why it should not be paid and if he fails to show sufficient cause only then it can proceed to recover the amount of penalty imposed.”

Supreme Court in Mohammed Kunju and Another vs State Of Karnataka AIR 2000 SC 6 has observed :


“The most essential element of the bail order is for ensuring the attendance of the accused in the court whenever required. In fact, that is the hub of the order and the other conditions are only subsidiary thereto. So long as that core postulate remains unchanged a surety cannot take advantage to any subsequent modification effected in respect of any other conditions. If a surety is not agreeable to abide by the modified conditions he must apply to the court under Section 444(1) of the Code to discharge him. Until the surety is discharged he is bound by the bond and any modification or even deletion of a condition of the order cannot absolve him from his liability in respect of the unaltered conditions. If there is forfeiture of the bond executed by the surety due to the default of the accused in making appearance before the court it is open to the court concerned to resort to the steps contemplated in Section 446 of the Code as against the sureties, besides the accused himself.”

In Balraj S. Kapoor Vs. The State of Bombay MANU/MH/0105/1954 has observed :


“It is a voluntary contract , and if a person enters into a surety bond, with eyes wide open, and if the accused subsequently acts contrary to the terms of the bond, the surety cannot be heard to complain that he should be relieved against from the operation of an act of the accused over which the surety has no control. It is then no use suggesting that the surety has no control because the obligation under the bond upon the surety is that the surety will secure the attendance of the accused before the Court.”


Supreme Court in Ram Lal vs. State of UP 1979 AIR 1498 has observed as under:


“It is true that before a person is released on bail he must execute a personal bond and, where necessary, sureties must also execute bonds. There can be no question of an accused being released on bail without his executing a personal bond. But it does not follow therefrom that if a person is released by mistake without his executing a personal bond the sureties are absolved from securing his attendance and appearance before the Court. The responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties.”


Sham Sunder vs State Of Delhi 1990 CriLJ 2370 has observed as under:


"In Ram Lal v. State of U.P., a similar proposition of law came up for consideration before the Supreme Court and it was authoritatively held that the responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. It was held that the forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. It is, hence, evident that the legal proposition laid down by the Allahabad High Court stood overruled by the Supreme Court and still on the basis of an overruled authority an admission of the petition has been obtained. Be that as it may, in view of the law laid down by the Supreme Court, I hold that there is no merit in this plea taken by the petitioner.”

Ram Lal vs. State of UP 1979 AIR 1498 has observed :


“The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused. The undertaking of the surety to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon, even if both the undertakings happened to be executed in the same document for the sake of convenience. Each undertaking being distinct could be separately enforced.”

What is meant to say is that the person bound by the bond cannot insist upon a particular form of notice. All that is necessary is that he should be called upon and given a chance to show cause why he should not pay the penalty.

if the accused or surety is called upon in some manner (voluntary appearance or compulsive process) by the court and if he gets an opportunity to show cause for not paying the penalty, then it cannot be said that there is a failure of justice. In such a case, the accused cannot take the plea with any justification that he was not given a formal notice and, therefore, the proceedings taken by the court are invalid.

Section 446 (1) of the Code also shows that a person bound by the bond is called upon to pay the “penalty” thereof and Form No. 48 refers to “the said penalty”. That means, penalty has already arisen and court is only calling upon the person to pay the penalty.


But, nothing contained in Section 446 of the Code provides, reveals or even implies that the court can "award" or "impose" a penalty under the section as if it is a punishment imposed by the court for breach of bond. Penalty arises automatically, as a consequence of forfeiture of bond amount and default of the accused as already adverted to herein above. It is the same amount which is referred to in the bond that transforms or crystallizes itself into the penalty which the accused or surety is liable to pay. The court only calls upon such person to pay 'the said penalty' or the 'penalty thereof which is incurred by him.


The court can only recover the penalty which is already crystallized, but it cannot order a penalty as a punishment. Only recovery of penalty that is contemplated under Section 446 (2) and (3) of the Code can be made, but not any passing of order of penalty by the court. Section 446 does not refer to any such imposition of penalty by court.


In Dayal Chand Vs. State of Rajasthan MANU/RH/0091/1981 it was observed:


“ When a person executes a bond, there are certain factors which are taken into consideration in determining the amount of the bond. Among these may be mentioned (a) the nature of the offence for which the accused is prosecuted; (b) the status and the position of the accused and (c) the nature of the sentence which in the case of a conviction, is likely to be imposed upon an accused person.”

Balraj S. Kapoor Vs. The State of Bombay MANU/MH/0105/1954 has observed:


“But it is clear that a case for the exercise of the discretion will properly arise in cases where the accused has been subsequently arrested or the amount forfeited is excessive and the surety is unable to pay. It is also relevant to consider in such cases whether the surety did not act irresponsibly and there was no connivance or negligence on the part of the surety.”

High Court of Delhi had an opportunity to deal with the issue of refusal or grant of bail in cases where accused puts his appearance on summons. In Kanimozhi Karunanithi vs Central Bureau of Investigation on 8 June, 2011, it has observed :


“Issue of process under Section 204 Cr.P.C. is meant for ensuring the presence of the accused in the court. Issuing summons under Section 204 Cr.P.C., by no means, is an assurance that the accused on appearance in the court shall be granted bail nor it amounts to misleading the accused and preventing him from seeking his legal remedy by moving an application for anticipatory bail in the superior court.”

The issue of section 446A and its relation to section 436 of CrPC. Johny Wilson vs State Of Rajasthan 1986 CriLJ 1235

(Judgment held that : that when a bond for appearance in a case of a person is forfeited for breach of a condition, his bond and surety bond shall stand cancelled and such person will not be entitled as of right to be released on bail upon the execution of fresh personal or surety bond. It would be within the, discretion of the court to release him or not to release him upon the execution of fresh personal or surety bond. In case, the court releases him, the fresh security may be demanded from him in accordance with the directions of the original order or the court may order for higher amount.)

Reasoning was : "What is the crucial question with which we are confronted, is whether after forfeiture of bond by the Court before whom, the appearance is to be made under the bond, the accused is entitled as of right to seek an order for furnishing fresh security under Section 447, Cr. P.C. or even under Section 446A, Cr. P.C. and whether the Court has no power to refuse to release him, when once his bail and surety bonds are forfeited under Section 446 Cr. P.C. and stood cancelled under Section 446A Cr. P.C. A bare look to the provisions of Sections 436, 437, 438, 439, 446A and 447, Cr. P.C. would indicate that in Section 436, the legislature has used the expression "shall" for releasing the person-accused of a bailable offence on bail but in the remaining aforesaid provisions, the legislature has used the word "may". This shows that the legislature is alive to use of different word i.e. under the other provisions, the legislature left it to the discretion of the court to pass an order or not to pass an order under the other provisions. When discretion has been conferred on the court, then, it would mean that the court may or may not exercise the discretion in favour of the accused. It is true that forfeiture of the bail-bond does not amount to cancellation of bail. The legislature has not used the word "cancellation". In Sections 437(5) and 439(2), a discretion is given to the court-concerned to direct that any person, who had been released on bail be arrested and committed to custody. When any such order is passed, it amounts to cancellation of bail. What is to be seen is that even when the cancellation of bail is not so ordered under Section 437(5) or 439(2), Cr. P.C. what is the effect of cancellation of bail and bail bonds. Under Sub-section (2) of Section 436, when the accused has failed to comply with the conditions of the bail-bonds, the court is empowered not to release him on bail. Sub-section (2) of Section 436, thus, clearly provides that it is within the discretion of the court to release the accused on bail or refuse him bail, when he fails to comply with the conditions of the bail-bond regarding the time and place of attendance. Sub-section (2) begins with non obstante clause and as such, Sub-section (2) over-rides Sub-section (1) in the eventuality when there is failure to comply with the conditions of bail-bond, as regards the time and place of attendance. The second proviso to Sub-section (1) further lays down that the provisions of Section 446A shall not in any way be affected by Section 436, Cr. P.C., which would mean that Section 446A shall be having an overriding effect. if the legislature did not intend to confer discretion on the Court, the legislature would have used different expression making it obligatory for the court to release the person upon the execution of a fresh bond and surety bond. It is clear that the legislature did not make it obligatory, which means that it is left to the discretion of the court depending on the facts and circumstances of each case to exercise the power in favour of the person or not. It is also noteworthy that variance in the amount of personal bond or surety bond can be made by the court, in case, discretion is exercised in favour of that person. Whatever, sum of money is thought sufficient by the court, the person may be asked to execute the personal and surety bonds for that sum. Such an interpretation of Section 446A, Cr. P.C., would be in accord with the legislative intent as the legislature intended to make the provisions of bail stringent and difficult. In case the persons are allowed to be released on bail as of right, despite forfeiture of bonds, the legislative intent would be rendered nugatory and the trial of the cases, would be protracted at the sweet-will of the accused. It is true that it is open to the other side to move the competent court for cancellation of bail, where power is exercised in favour of the accused, but that does not mean that the court before whom the person is required to appear is powerless and allow the accused to protract the trial at his sweet-will, even when his bond for appearance stands forfeited and cancelled. The cancellation of bail order is an independent provision, which can be resorted to, on the grounds other than non-appearance. But under Section 446A, Cr. P.C. the court can exercise the control over the accused for his regular appearance by exercising the discretion against him. Despite the bail order passed by any court, the discretion can be so exercised by such court, if the circumstances so warrant under Section 446A." PAROLE AND FURLOUGH (Delhi prison rules are just given for the sake of illustration)

Parole and Furlough to inmates are progressive measures of

correctional services. The release of prisoner on parole not only

saves him from the evils of incarceration but also enables him to

maintain social relations with his family and community. It also

helps him to maintain and develop a sense of self-confidence.

Continued contacts with family and the community sustain in him

a hope for life. The release of prisoner on furlough motivates him

to maintain good conduct and remain disciplined in the prison.



Parole means temporary release of a prisoner for short period so

that he may maintain social relations with his family and the

community in order to fulfill his familial and social obligations and

responsibilities. It is an opportunity for a prisoner to maintain regular

contact with outside world so that he may keep himself updated

with the latest developments in the society. It is however clarified

that the period spent by a prisoner outside the prison while on

parole in no way is a concession so far as his sentence is concern.

The prisoner has to spend extra time in prison for the period spent

by him outside the Jail on parole.

In Delhi , when it may not be granted : -

In the following cases, parole shall not be granted, except, if in the

discretion of the competent authority special circumstances exist

for grant of parole;

I. Prisoners convicted under sedition, terrorist activities

and NDPS Act.

II. Prisoners whose immediate presence in the society

may be considered dangerous or otherwise prejudicial

to public peace and order by the District Magistrate

of his home district or there exists any other

reasonable ground such as a pending investigation in

a case involving serious crime.

III. Prisoners who are considered dangerous or have been

involved in serious prison violence like assault,

outbreak of riot, mutiny or escape, or rearrested who

absconded while released on parole or furlough or

who have been found to be instigating serious

violation of prison discipline as per the reports in his/

her annual good conduct report.

IV. Convicted foreigners subject to prior approval of

Ministry of Home Affairs & Ministry of External

Affairs and having valid permission to stay in India.

V. Prisoners suffering from mental illness, if not certified

by the Medical Officer to have recovered,

VI. If the prisoner is convicted of murder after rape;

VII. If the prisoner is convicted under POCSO;

VIII. If prisoner is convicted for multiple murders whether

in single case or several cases.

IX. If prisoner is convicted for Dacoity with murder.

X. If prisoner is convicted for Murder after kidnapping

for ransom.

XI. If the prisoner is convicted under Prevention of

Corruption Act.

XII. If the case is investigated by the Central Bureau of

Investigation or Central Agency.




Furlough means release of a prisoner for a short period of time after

a gap of certain qualified numbers of years of incarceration by

way of motivation for maintaining good conduct and to remain

disciplined in the prison. This is purely an incentive for good conduct in the prison. Therefore, the period spent by the prisoner outside the prison on furlough shall be counted towards his sentence.

FURLOUGH DELHI RULES;-

1220. A prisoner who is sentenced to 5 years or more of rigorous

imprisonment and has undergone 3 years imprisonment after

conviction with unblemished record become eligible for grant of

furlough.

1221. A prisoner, as described above, may be granted 7 weeks of furlough

in three spells in a conviction year with maximum of 03 weeks in

one spell.

Note :-Every eligible convict may be granted one spell of furlough in the

month of his birthday, subject to fulfillment of the other conditions,

without any application for furlough moved by the convict. If the

prisoner does not want to avail this furlough then written

undertaking may be taken from him in this regard


In order to be eligible to obtain furlough, the prisoner must fulfill

the following criteria:-

I. Good conduct in the prison and should have earned

rewards in last 3 Annual good conduct report and continues

to maintain good conduct.

II. The prisoner should not be a habitual offender.

III. The prisoner should be a citizen of India.


The following categories of prisoners shall not be eligible for release

on furlough:

i. Prisoners convicted under sedition, terrorist activities and

NDPS Act.

ii. Prisoners whose immediate presence in the society may be

considered dangerous or otherwise prejudicial to public

peace and order by the District Magistrate of his home

district or there exists any other reasonable ground such

as a pending investigation in a case involving serious crime.

iii. Prisoners who are considered dangerous or have been

involved in serious prison violence like assault, outbreak

of riot, mutiny or escape, or rearrested who absconded

while released on parole or furlough or who have been

found to be instigating serious violation of prison discipline

as per the reports in his/her annual good conduct report.

iv. Convicted foreigners.

v. Prisoners suffering from mental illness, if not certified by

the Medical Officer to have recovered.

Note: - (1) Simultaneous furlough to co-accused convicts

are ordinarily not permissible. However, when co-accused

convicts are family members, simultaneous release may be

considered in exceptional circumstances only.

Note: - (2) If an appeal of a convict is pending before the

High Court or the period for filing an appeal before the

High Court has not expired, furlough will not be granted

and it would be open to the convict to seek appropriate

directions from the Court







That the prisoners convicted of murder after rape, under POCSO

Act, convicted for multiple murders whether in single case or several

cases, Dacoity with murder and murder after kidnapping for

ransom, may be considered by the competent authority on the

following parameters:-

(i) Deputy Inspector General (Range) of prisons shall put

specific recommendation for considering the said case.

(ii) Social Welfare/ Probation officer’s report/ recommendation

shall be considered while deciding such furlough

application.

(iii) Subject to the conditions/rules mentioned in Rule 1221 to

Rule 1223 above, the spell of furlough for such category

would be as follows:

(a). only one spell of 3 weeks in first year of eligibility.

(b). only two spells of furlough, one for 3 weeks and other

for 2 weeks in the second convict year of eligibility.

(c). Three spells of furlough like all other convicts in the

subsequent years.