State v. Surendra and Others), U

1. Learned counsel for the appellants is permitted to make correction in the prayer clause of appeal during course of the day.

2. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.

3. This appeal is being decided finally at the stage of admission itself.

4. This appeal under Section - 495 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') has been filed seeking following relief:- "It is, therefore most respectfully prayed that his Hon'ble Court may graciously be pleased to allow the Criminal Appeal and set-aside the impugned order dated 26.09.2025 passed by Additional District and Sessions Judge / Fast Track Court, Bulandshahr in Case No. 568 of 2025 (State Vs. Surendra and Others), U/s 446 Cr.P.C., in Session Trial No. 461 of 2020, (State versus Sanjeev and Others), arising out of Case Crime No. 831 of 2017, under Section - 323, 307, 504, 506, 452 I.P.C., Police Station Sikandrabad, District - Bulandshahr, for fitted the Bail bond in accused Sanjeev taken by the applicants. It is further prayed that this Hon'ble court may be pleased to released on bail and also stay the fine of the sureties & quash the order dated 6.10.2025 to the applicants in the aforesaid case, during the pendency of the aforesaid case Criminal Appeal (U/s 495 of BNSS) before this Hon'ble court. Otherwise the appellants shall suffer irreparable loss and hardship."

5. Learned counsel for the appellants submitted that in aforesaid S.T. No. 461 of 2020 appellants have stood surety for accused Sanjeev. During trial accused Sanjeev has absconded and the trial court has initiated proceedings under Section - 446 Cr.P.C. vide order dated 26.09.2025. It was submitted that no notice was served upon appellants / sureties and no specific order of 2 CRLA No. 10401 of 2025 forfeiture of bail bonds was passed but despite that vide order dated 26.09.2025, when the appellants have appeared before the trial court, they were sent to jail and since then they are in jail. It was also pointed out that meanwhile accused Sanjeev was produced before the trial court on 29.07.2025 and he has been granted bail by this Court but despite that appellants / sureties are languishing in jail. It was submitted that impugned order is against law and arbitrary and thus, liable to be quashed.

6. Learned A.G.A. has opposed the appeal.

7. I have considered the rival submissions and perused the record.

8. Before proceeding further, it would be relevant to peruse the provisions of Section - 446 Cr.P.C., which read as under :- ''446. Procedure when bond has been forfeited.?(1) Where a bond under this Code 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 where, in respect of any other bond under this Code, 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 Code: 1 [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, 2[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 106 or section 117 or section 360 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 448, 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." 3 CRLA No. 10401 of 2025 "446A. Cancellation of bond and bail bond.?Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition,? (a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and (b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition: Provided that subject to any other provisions of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.''

9. Essentially Section - 446 Cr.P.C. deals with sureties for breach of bond by the accused, whereas, Section - 446-A Cr.P.C. deals with the consequences to be faced by accused upon forfeiture of bond (personal bond). So far surety of accused is concerned a separate notice is required to be given to the sureties to show cause as to why penalty should not be paid by them and only if they are not able to show cause, the Court can proceed to recover the penalty as if it were a fine imposed under the CrPC. Thus, for taking action under section 446 CrPC, notice should be issued to the sureties and it should be proved in a separate proceedings that the accused had violated the bail bond for the sureties to make good the bond amount.

10. In the instant matter, perusal of record shows that appellants were surety for accused Sanjeev in above referred session trial. During trial accused Sanjeev has absconded and thus, a miscellaneous case under Section - 446 Cr.P.C. was registered against appellants. There is nothing to show that any notice was served upon appellants. There is also nothing to show that any specific order of forfeiture of bail bonds was passed. It was also submitted on behalf of appellants that meanwhile the accused Sanjeev was produced before the trial court on 29.07.2025 and he has already been granted bail by this Court. There is also nothing to show that the trial court has proceeded to recover the penalty in accordance with provisions of Section - 446 Cr.P.C.. In view of these facts and circumstances, particularly when no notice was served upon appellants, no specific order of forfeiture of bail bonds was passed and the accused has already been produced before the trial court, the impugned order dated 26.09.2025, by which appellants were sent to jail, is wholly against the provisions of law as well as arbitrary in nature. Similarly, in view of aforesaid facts and circumstances, the direction of trial court to the appellants to deposit the entire amount of bail bond is also wholly unwarranted. It appears that learned trial court has not 4 CRLA No. 10401 of 2025 considered provisions of Section - 446 Cr.P.C. and passed impugned orders, which are quite arbitrary.

11. In view of aforesaid, impugned orders are set aside. The appellants / sureties, namely, Surendra and Karamveer Singh shall be released from custody forthwith. The trial court would be at liberty to initiate fresh proceedings under Section - 446 Cr.P.C. in accordance with law.

12. Appeal is disposed of in above terms. November 20, 2025 S Rawat (Raj Beer Singh,J.)

1. Learned counsel for the appellants is permitted to make correction in the prayer clause of appeal during course of the day.

2. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.

3. This appeal is being decided finally at the stage of admission itself.

4. This appeal under Section - 495 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') has been filed seeking following relief:- "It is, therefore most respectfully prayed that his Hon'ble Court may graciously be pleased to allow the Criminal Appeal and set-aside the impugned order dated 26.09.2025 passed by Additional District and Sessions Judge / Fast Track Court, Bulandshahr in Case No. 568 of 2025 (State Vs. Surendra and Others), U/s 446 Cr.P.C., in Session Trial No. 461 of 2020, (State versus Sanjeev and Others), arising out of Case Crime No. 831 of 2017, under Section - 323, 307, 504, 506, 452 I.P.C., Police Station Sikandrabad, District - Bulandshahr, for fitted the Bail bond in accused Sanjeev taken by the applicants. It is further prayed that this Hon'ble court may be pleased to released on bail and also stay the fine of the sureties & quash the order dated 6.10.2025 to the applicants in the aforesaid case, during the pendency of the aforesaid case Criminal Appeal (U/s 495 of BNSS) before this Hon'ble court. Otherwise the appellants shall suffer irreparable loss and hardship."

5. Learned counsel for the appellants submitted that in aforesaid S.T. No. 461 of 2020 appellants have stood surety for accused Sanjeev. During trial accused Sanjeev has absconded and the trial court has initiated proceedings under Section - 446 Cr.P.C. vide order dated 26.09.2025. It was submitted that no notice was served upon appellants / sureties and no specific order of 2 CRLA No. 10401 of 2025 forfeiture of bail bonds was passed but despite that vide order dated 26.09.2025, when the appellants have appeared before the trial court, they were sent to jail and since then they are in jail. It was also pointed out that meanwhile accused Sanjeev was produced before the trial court on 29.07.2025 and he has been granted bail by this Court but despite that appellants / sureties are languishing in jail. It was submitted that impugned order is against law and arbitrary and thus, liable to be quashed.

6. Learned A.G.A. has opposed the appeal.

7. I have considered the rival submissions and perused the record.

8. Before proceeding further, it would be relevant to peruse the provisions of Section - 446 Cr.P.C., which read as under :- ''446. Procedure when bond has been forfeited.?(1) Where a bond under this Code 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 where, in respect of any other bond under this Code, 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 Code: 1 [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, 2[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 106 or section 117 or section 360 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 448, 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." 3 CRLA No. 10401 of 2025 "446A. Cancellation of bond and bail bond.?Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition,? (a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and (b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition: Provided that subject to any other provisions of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.''

9. Essentially Section - 446 Cr.P.C. deals with sureties for breach of bond by the accused, whereas, Section - 446-A Cr.P.C. deals with the consequences to be faced by accused upon forfeiture of bond (personal bond). So far surety of accused is concerned a separate notice is required to be given to the sureties to show cause as to why penalty should not be paid by them and only if they are not able to show cause, the Court can proceed to recover the penalty as if it were a fine imposed under the CrPC. Thus, for taking action under section 446 CrPC, notice should be issued to the sureties and it should be proved in a separate proceedings that the accused had violated the bail bond for the sureties to make good the bond amount.

10. In the instant matter, perusal of record shows that appellants were surety for accused Sanjeev in above referred session trial. During trial accused Sanjeev has absconded and thus, a miscellaneous case under Section - 446 Cr.P.C. was registered against appellants. There is nothing to show that any notice was served upon appellants. There is also nothing to show that any specific order of forfeiture of bail bonds was passed. It was also submitted on behalf of appellants that meanwhile the accused Sanjeev was produced before the trial court on 29.07.2025 and he has already been granted bail by this Court. There is also nothing to show that the trial court has proceeded to recover the penalty in accordance with provisions of Section - 446 Cr.P.C.. In view of these facts and circumstances, particularly when no notice was served upon appellants, no specific order of forfeiture of bail bonds was passed and the accused has already been produced before the trial court, the impugned order dated 26.09.2025, by which appellants were sent to jail, is wholly against the provisions of law as well as arbitrary in nature. Similarly, in view of aforesaid facts and circumstances, the direction of trial court to the appellants to deposit the entire amount of bail bond is also wholly unwarranted. It appears that learned trial court has not 4 CRLA No. 10401 of 2025 considered provisions of Section - 446 Cr.P.C. and passed impugned orders, which are quite arbitrary.

11. In view of aforesaid, impugned orders are set aside. The appellants / sureties, namely, Surendra and Karamveer Singh shall be released from custody forthwith. The trial court would be at liberty to initiate fresh proceedings under Section - 446 Cr.P.C. in accordance with law.

12. Appeal is disposed of in above terms. November 20, 2025 S Rawat (Raj Beer Singh,J.)