Page No.# 1/6 GAHC010195112025 2025:GAU-AS:13029 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./343/2025 ABDUL MATLIB S/O. LT. MOMRUJ ALI, R/O. VILL.- UTTAR ASHINAGAR, P/O. NILBAGAN, P/S. DOBOKA, DIST. HOJAI, ASSAM, PIN-782445 VERSUS THE STATE OF ASSAM REP BY THE PP ASSAM Advocate for the Petitioner : MR. H A TALUKDAR, MR. L R MAZUMDER,MS. P S LASKAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER 16.09.2025 Heard Mr. L.R. Mazumdar, learned counsel for the appellant. Also heard Mr. K. Baishya, learned Additional Public Prosecutor for the State/prosecution which is the sole respondent herein. Page No.# 2/6 2. This is an appeal preferred by the appellant Md. Abdul Matlib under Section 495 of BNSS (Corresponding to earlier 449 of the Cr.PC, 1973) against the impugned order dated 29.07.2025, passed by the Court of learned Additional District and Sessions Judge, Hojai in Cr. Misc.(B) No.10/2022, whereby the appellant who was bailor for the accused was imposed with the penalty of Rs.1,00,000/- (Rupees One Lakh) under Section 446 Cr.PC [Now Section 491 of BNSS, 2023]. 3. The learned counsel for the appellant has drawn my attention to the impugned order dated 29.07.2025, annexed as Annexure-1. It is stated that due to non-appearance of the accused, a proclamation had to be issued in respect of Dhriti Ranjan Bhowmick, who was eventually declared as absconder and warrant of arrest remains pending at the concerned police station as per due procedure. 4. Thereafter, the miscellaneous proceeding was initiated against the appellant/bailor under Section 446 Cr.PC [Now Section 491 of BNSS, 2023]. Despite elapse of several dates, appellant/bailor failed to produce the accused person and on 29.07.2025, he sought some more time, which was, however, refused. Consequently, the learned Additional Sessions Judge, Hojai, was pleased to direct that the bail bond be forfeited and further directed the appellant to pay a penalty of Rs.1,00,000/- (Rupees One Lakh), failing which other course of action would be initiated under Section 446(2) Cr.PC [Now Section 491(2) of BNSS, 2023]. Page No.# 3/6 5. The learned counsel for the appellant has drawn my attention to the copy of the bail bond and submits that the amount of the bond was Rs.20,000/- and the estimated value of the property was Rs.1,00,000/- (Rupees One Lakh). 6. In this backdrop, the appellant is aggrieved by the fact that apart from the forfeiture of the bond of Rs.20,000/-, he has also been directed to pay a penalty which is equivalent to the entire value of the property. 7. Under the provisions of Section 446 Cr.PC [Now Section 491 of BNSS, 2023], when a bond is forfeited, the Court shall record the grounds for such forfeiture and call upon the person bound by such bond to either pay the penalty thereof or show cause as to why it should not be paid. The relevant provision of Section 446 Cr.PC is reproduced herein below : 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. Page No.# 4/6 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 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. Page No.# 5/6 8. The learned Additional Public Prosecutor for the State/prosecution, which is the sole respondent, submits that since the appellant, being the bailor, failed to produce the accused - who had to be declared an absconder - it would be justified in law to forfeit his bail bond. 9. I have perused the materials and considered the submissions of the learned counsel for the appellant and the prosecution. I find some force in the contention of the learned counsel for the appellant that the impugned order straightway imposed the penalty of Rs.1,00,000/- (Rupees One Lakh). Upon giving a fresh look to the statutory provisions as reproduced above, I find that if the proof of forfeiture is recorded by the learned Court, the concerned person/bailor must be called upon either to pay the penalty thereof or show cause as to why it should not be paid. 10. In this case, there is no doubt from the materials on record that the appellant who stood as bailor for the absconding accused, failed to produce him and therefore, he is liable to forfeit the bond of Rs.20,000/- and that extent, the learned Court below is correct. However, imposing a penalty to the extent of Rs.1,00,000/- (Rupees One Lakh) – which is equivalent to the entire value of the property mentioned in the bail bond – is to my mind, might have been disproportionate and should be interfered, with in this appeal. 11. Accordingly, the impugned order dated 29.07.2025, passed by the Court of learned Additional District and Sessions Judge, Hojai in Cr. Misc.(B) No.10/2022 is hereby modified. Page No.# 6/6 12. In view of the appellant/bailor’s failure to produce the accused, his bail bond stands forfeited and he is directed to pay a penalty of Rs.20,000/-, being the value of the bail bond. 13. The said payment shall be made before the learned Court below within a period of one month from the date of passing of this order. The impugned order is hereby interfered with and is accordingly modified. 14. The instant criminal appeal is disposed of on the aforesaid terms, with modification of the penalty amount. JUDGE Comparing Assistant