Extracted from the PDF above. The PDF is authoritative.
1 2025:HHC:29427 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 294 of 2025 Reserved on: 07.08.2025 Decided on: 30.08.2025 Anup Singh
… Appellant Versus State of H.P.
…Respondent __________________________________________________________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ___________________________________________________ For the Appellant : Mr. R.K. Sharma, Senior Advocate, with Ms. Vidushi Sharma, Advocate. For the Respondent : Mr. Tejasvi Sharma and Mr. Mohinder Zharaick, Additional Advocates General with Ms. Ranjna Patial, Deputy Advocate General. Virender Singh, Judge Appellant Anup Singh has preferred the present appeal, under Section 495 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), against the orders dated 26.12.2023, dated 05.07.2024 and subsequent recovery proceedings initiated vide orders dated 28.12.2024, 24.02.2025 & 21.04.2025, passed by the learned Special Judge, Mandi, District Mandi, H.P. (hereinafter referred to as ‘the trial Court’), in the proceedings under Section 446
2 2025:HHC:29427 Cr.P.C., in Cr.MA CIS Reg. No. 74/2024, titled as ‘State of H.P. Vs Anup Singh’, whereby the appellant has been burdened with the penalty of Rs. 5,00,000/, for non production of the accused. 2. The appeal has been filed on the ground that police registered a case FIR No. 166 of 2018, dated 11.07.2018, with Police Station Sundernagar, District Mandi, H.P., under Sections 29 & 29 of ND&PS Act, against Tarun Kumar son of Yoginder Singh. For said Tarun Kumar, appellant Anup Singh stood surety. However, due to the non appearance of accused Tarun Kumar on 26.12.2023, his personal and surety bonds were forfeited to the State of H.P. and his presence was ordered to be secured by issuing Non Bailable Warrant and proceedings under Section 446 Cr.P.C. were initiated against him, as well as, the appellant. 3. In pursuance of the said notices, issued against appellant Anup Singh, he has not filed any reply, despite number of opportunities, granted to the appellant. As such, the learned trial Court on 05.07.2024, has imposed the penalty of Rs. 5,00,000/ and issued the recovery warrants. The order dated 05.07.2024, is reproduced as under:
“Reply has not been filed on behalf of respondent despite number of opportunity granted to the
3 2025:HHC:29427 respondent, hence, there is no option but to consider the matter on merits. 2. The respondent had stood surety for accused Tarun Kumar and undertaken to ensure the performance of the condition of the personal bond.
The accused Tarun Kumar had undertaken to appear before the Court and in the event of default to pay a sum of Rs. 5,00,000/ to the State of H.P.
3. The accused Tarun Kumar did not appear before the Court on 26.12.2023; hence, his personal and surety bonds were forfeited to the state of HP. Notice under Section 446 Cr.P.C. was ordered to be issued to the respondentsurety to show cause as to why the amount undertaken to be paid by the surety be not recovered from him. 4. The surety was served on 18.01.2024 and the respondent appeared before the Court and prayed time to file the reply. Thereafter, on 05.03.2024 the respondent not appeared before the Court and he was ordered to be served by way of bailable warrants returnable for 30.04.2024 and on that day, the learned counsel for the respondent appear on his behalf and prayed time for filing the reply, however, the reply has not been filed till date. The respondent failed to assign any reasonable cause for non production of the accused. Since, the surety has failed to produce the accused or to show any reasonable cause for non production of the accused; therefore, there is no option but to impose the penalty of Rs. 5,00,000/ undertaken to be paid by the surety in case of default. Hence, a penalty of Rs. 5,00,000/ is imposed upon the surety. Let the warrant of recovery be issued to the collector returnable for 30.09.2024.”
4. The above orders have been assailed by the appellant, on the ground, that the composite order passed by the learned trial Court is not sustainable in the eyes of law, as the proceedings under Section 446 Cr.P.C. entail Civil and Criminal consequences and surety bond could not be forfeited without proper opportunity of being heard. 4 2025:HHC:29427
5. On the basis of above facts, Sh. R.K. Sharma, Senior Advocate, assisted by Ms.
Vidushi Sharma, Advocate, has prayed that appeal may kindly be accepted and the impugned
order be set aside and proceedings under Section 446 of Cr.P.C., against the appellant, may kindly be dropped. 6. The prayer, so made, has been opposed by Mr. Tejasvi Sharma, learned Additional Advocate General, appearing for the respondentState, on the ground that on the solemn undertaking of the appellant, the Court of learned Special Judge Sundernagar, District Mandi, H.P. has ordered to release accused Tarun Kumar from custody, and admittedly, appellant could not honour his solemn undertaking and despite issuance of notice under Section 446 Cr. P.C., no sincere efforts were made by the appellant to procure the presence of accused Tarun Kumar, before the learned trial Court, as such, a prayer has been made to dismiss the present appeal. 7. The learned trial Court has initiated proceedings, under Section 446 Cr. P.C., against the appellant, as well as, accused Tarun Kumar. Provisions of Section 446 Cr. P.C. are reproduced, as under:
“446. Procedure when bond has been forfeited
5 2025:HHC:29427 (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 beenforfeited. 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. (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; 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 106 or section 117 or section 360 is convicted of an
6 2025:HHC:29427 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.
8. Bare perusal of the aforesaid provision shows that Legislature, in its wisdom, has provided civil and penal consequences, in case of forfeiture of the bond. Once, the orders passed in those proceedings culminated into civil, as well as, penal action, against the person, who has violated the solemn undertaking, then, the person, who will be affected by the order, must get reasonable opportunity to contest those proceedings.
9. In the orders, which were passed prior to order dated 05.07.2024, surety (appellant) had put appearance before the Court and prayed time for filing reply. However, despite availing number of opportunities, reply was not filed. Thereafter, on 05.07.2024, the learned trial Court passed the impugned order
7 2025:HHC:29427 and imposed the penalty of Rs. 5,00,000/, upon the surety appellant.
10. In the proceedings under Section 446 Cr. P.C., issued on 26.12.2023, the impugned order has been passed, due to the nonappearance of the accused, as well as, his surety (accused). The learned trial Court has passed the composite
order, as the surety bond, so furnished by appellant Anup Singh, was neither cancelled nor forfeited to the State, prior to that date. On that date, surety bond, so furnished, was cancelled and forfeited to the State of H.P. On 05.07.2024, penalty of Rs. 5,00,000/ was imposed on the surety (appellant). 11. Before forfeiting the surety bond, show cause notice is essential, as has been held by the Hon’ble Apex Court in case titled as, ‘Ghulam Mehdi versus State of Rajasthan’, reported in AIR 1960 Supreme Court 1185 (AIR 1960 Vol. 47). Relevant paragraph3 of the judgment is reproduced as under:
“On February 13, 1952 notice was issued to the appellant to show cause why his bond be not forfeited and amount not recovered from him. Head Constable Ramchander was given the process to be served upon him but it could not be served. Then Head Constable Bhairon Lal was directed to effect service but evidently he also did not or could not serve him nor was notice affixed on the door of his residence nor, given to any one of his relatives as required
8 2025:HHC:29427 under Sections 70 and 71, Criminal Procedure Code. On February 26, the Public Prosecutor made an application to the SubDivisional Magistrate who without notice to the appellant ordered his properties to be attached. The appellant thereupon filed an appeal under Section 515 of the Criminal Procedure Code in the Court of the District Magistrate, Bharatpur and raised various objections as to the legality of the order of forfeiture but the appeal was dismissed and he took a revision in the High Court and the High Court upheld the order of forfeiture and in regard to the notice under Section 514 (1) Criminal Procedure Code, it held that although no notice had been given, yet no useful purpose would have been served even if the notice had been given when "they have expressed their inability to abide by the terms of the surety bond for the reason that the accused had absconded and had taken shelter in a foreign country i.e., Pakistan. Under these circumstances this point cannot be availed of in favour of the petitioners".
Thereupon the appellant made an application under Article 134(1)(c) and raised the following two points on which the certificate was granted: (i) The bond was vague inasmuch as it was not specified as to in which Court and at what place the accused Salamat Ali was to be produced and (2) no notice was served on the applicant under Section 514 of the Code of Criminal Procedure. It is not necessary to go into the first point as in our opinion unless notice is given to the surety under Section 514 (1) to show cause why the surety bond be not paid no
9 2025:HHC:29427 proceedings for recovery under Section 514 can be taken. Section 514 (1) & (2) is as follows: Section 514. (1) "Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, or, when the bond is for appearance before a Court, to the satisfaction of such Court, that such 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. Section 514. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the moveable property belonging to such person or his estate if he be dead." 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.” (self emphasis supplied)
10 2025:HHC:29427
12. Hearing of the affected party, i.e. the appellant, is mandatory, as nonaffording of such opportunity of hearing would be gross violation of principle of natural justice. Even after forfeiting the surety bond to the State of H.P., the learned trial Court has failed to issue show cause as to why the amount of bail bond be not realized from him, by way of penalty. 13. In view of the above, in the considered opinion of this Court, separate orders were required to be passed by the learned trial Court, firstly, at the time of cancellation of bail bonds and secondly, at the time of imposing penalty. The legislature, in its wisdom, has used the words “if sufficient cause is not shown for imposing penalty”, then hearing of the person, affected by the said order”, is mandatory. 14. Bare reading of the provisions of Section 446 Cr. P.C. makes out a case, according to which, separate orders are required to be passed by the Court, firstly at the time of cancellation of the bail bonds and; secondly, when the penalty is imposed. 11 2025:HHC:29427
15. In this case, the composite order has been passed by the learned trial Court by depriving the appellant (surety) Anup Singh to put forward his plea, with regard to nonproduction of the accused. 16. Admittedly, the composite order, passed by the learned trial Court, in this case, does not pass the judicial scrutiny by this Court. Consequently, this Court is left with no option, but to set aside the impugned order dated 05.07.2024, passed by the learned trial Court, and remand the matter back to the learned trial Court to decide the proceedings, under Section 446 Cr. P.C. afresh, after issuing notice, as observed above. 17. With these observations, the present appeal stands disposed of, so also the pending application(s), if any. 18.
Parties, through their counsel, are directed to appear before the learned trial Court, on 16.09.2025. 19. Record be sent down. 30th August, 2025 (Virender Singh) (Pramod Kumar) Judge