1 CGHC010172592014 2026:CGHC:41564 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 481 of 2014 Judgment reserved on 27.07.2026 Judgment delivered on 24.09.2026 Mukund Singh S/o . Sukul Singh, aged about 43 Years, caste Kanwar, R/o. Vijaipur (wrongly mentioned as Vijapur, in the cause title of the impugned order), P.S. Katghora, Tahsil Katghora, District Korba, Present Address- Budhwari Bazar, Korba (CG) ... Appellant(s) versus 1. State of Chhattisgarh Through District Magistrate, Korba Distt. Korba Chhattisgarh 2. Sukul Singh S/o. Dashrath Singh, R/o. Vijaipur, Tahsil Kathghora, District Korba (C.G.) who had been died. ... Respondent(s) For Appellant (s) : Mr. S.R. Jaiswal, Advocate For Respondent(s) : Dr. (Smt.) Richa Pandey, PL Hon'ble Shri Justice Narendra Kumar Vyas CAV JUDGEMENT 1. This criminal appeal under Section 449 of the Cr.P.C. has been filed against the order dated 28.03.2014 passed by Special Judge, (Electricity Act)/ Presiding Officer, Korba in M.J. C. No. 21 of 2008 whereby learned SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2026.09.26 10:20:07 +0530 2 trial Court has forfeited the bail bond of Rs. 20,000/- given by the father of the appellant who died after furnishing bail bond and directed that in default of recovery of the amount, the appellant be sent to civil jail for a period of four months. 2. Facts of the case, in brief, are that;- (A) The Respondent No. 2 was Surety/Jamanatdar of accused Mohammad Ahsan and 27 others in Criminal Case No. 6/2007 filed under Sections 147, 148, 149, 294, 436, 427, 506, 447, 395, 397 of IPC and 3 & 4 of the Lok Sampatti Kshati Niwaran Adhiniyam and 2(8) and (D) of Official Secret Act and under Section 140 of the Electricity Act. (B) On 27.12.2007 accused Ram Pravesh did not appear before the trial Court, therefore, the trial Court has forfeited the bail bond of the accused and vide its order dated 03.04.2008 directed for registration of criminal M.J. C. No. 21 of 2008 against the surety. The trial court also issued a show cause notice to the respondent No.2 seeking an explanation from him as to why the amount of which the appellant stood as surety/ Jamantdar be not recovered from him. On 11.08.2010 Police Station, Katghora arrested the respondent No. 2 and produced him before the Special Judge, Korba where the respondent No.2 filed an application for extension of time to deposit the bail bond and he was released on personal bond on 11.08.2010. Subsequently, on 15.04.2011, he died as such the learned trial Court has directed to concerned Police Station in charge for furnishing necessary information of legal heirs of deceased respondent No.2 and their movable and immovable property. 3 (C) On 05.06.2013 Police Station Katghora submitted the information of legal heirs of respondent No. 2 and thereafter a show cause notice was issued to the legal heirs of respondent No.2 Dharam Singh and Sukund Singh for recovery of Rs. 20,000/- towards surety amount given by their father. On 17/9/2013 and on 07/12/2013 the appellant sought time to file reply of the show cause notice but on the next date he was unable to appear before the Special Court Korba thereafter the Special Judge Korba issued bailable warrant against him for appearance on 08/01/2014. Thereafter the appellant appeared before the Special Judge, Korba and filed reply with affidavit on 20.03.2014. However, the Special Judge, Korba vide order dated 28.03.2014 refused to accept reply submitted by the appellant and ordered to deposit the bail bond/surety amount of Rs.20,000/- and in default of recovery of the amount, the appellant be sent to Civil jail for a period of four months. (D) The order sheet of the case further demonstrates that the appellant himself has appeared and assured before the trial Court that he will pay the Rs. 5,000/- per month which was considered by the trial Court and time was granted to him to deposit the money upto 20.05.2014, thereafter he filed the appeal before this Court. Being aggrieved with the order dated 28.03.2014, the appellant has filed this Criminal Appeal. 3. Learned counsel for the appellant would submit that the order passed by Special Judge is bad in law and deserves to be set aside on the ground that the trial Court has not appreciated the facts in its proper perspective. According to him, the court below ought to have 4 appreciated the fact that the default in fact was on the part of the Mohammad Ahsan and it was beyond the control of the present appellant to produce the said person before the court as he was not aware of the fact that his father has taken surety of accused Mohammad Ahsan and before coming this fact in his knowledge and since his father has expired, therefore, any contact with him stands terminated, as such he should not be held responsible. He would further submit that in case the surety/ Jamanatdar dies before the bond is forfeited, his estate shall be discharged from all liabilities in respect to bond and, therefore, learned Special Judge erred in law by passing the impugned order directing the appellant to deposit the surety amount and would pray for setting aside the order of Special Judge. 4. On the other hand, learned State counsel opposes the submission made by learned counsel for the appellant and would submit that since a surety/ Jamantdaar had died and the accused did not appear on the date of hearing, the trial Court has not committed error in passing the impugned order which does not call for interference by this Court and would pray for dismissal of the appeal. She would further submit that in view of Section 446(4) of the CrPC, if the accused violated the bail condition after death of surety then the surety given by the person will be discharged, which is not in this case as the accused has violated the condition and before surety dies the surety has already been forfeited, as such she would pray that the impugned order is legal, justified and does not warrant interference by this Court. 5 5. I have heard learned counsel for the parties and perused the records. 6. From the submission made by the counsel for the parties, the point emerged for determination by this Court is whether the order of forfeiture of surety before death of surety is liable for forfeiture as per provisions of Section 446(4) of the CrPC. 7. For better understanding the point of determination, it is expedient for this Court to extract Sections 446, and 447 of the CrPC. Section 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: 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. 6 (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. Section 447 Procedure in case of insolvency or death of surety or when a bond is forfeited- When any surety to a bond under this Code becomes insolvent or dies, or when any bond is forfeited under the provisions of section 446, the Court by whose order such bond was taken, or a Magistrate of the first class may order the person from whom such security was demanded to furnish fresh security in accordance with the directions of the original order, and if such security is not furnished, such Court or Magistrate may proceed as if there had been a default in complying with such original order. 8. From perusal of Section 446(4) of the CrPC, it is quite vivid that 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. In the present case, learned trial Court vide order dated 27.12.2007 has forfeited the surety of the accused. The forfeiture of surety has been defined in Black’s law dictionary which means that to lose, lose the right to, by some error, fault, offence, or crime, to incur a penalty to become liable to pay the payment of a sum of money, as the consequence of a certain act. 9. The record of the case further demonstrates that the father of the appellant was alive, a contract exists between the surety and the Court when forfeiture was ordered by the learned trial Court. It is equally well settled legal position of law that a surety bond is a contract and it is 7 executed for the purposes of ensuring the presence of the accused concerned in a Court in which he is standing his trial for a criminal offence at the hearing of the case, as held by the Hon’ble Supreme Court in the case of State of Maharastra vs. Dadamiya Babumiya Sheikh, Etc etc reported in 1972 (3) SCC 85 wherein the Hon’ble Supreme Court has held as under:- 7. A surety bond is a contract and it is a question as to how far its terms can be considered to have been varied by any unilateral act. Each bond, it may be pointed out, 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. 8. 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. 10. The order sheets of the case clearly demonstrate that the learned trial Court on 27.12.2007 has forfeited the bail bond and MJC was registered against the father of the appellant and thereafter it has issued notice on 03.04.2008 to the surety Sukul Singh for depositing Rs. 20,000/- thereafter another notice was issued on 25.04.2008 and 21.07.2008 thereafter another notice was issued on 13.10.2008 and 19.01.2009, 21.04.2009,13.07.2009 thereafter on 265.11.2209 the learned trial Court has issued bailable warrant as notice was duly served upon the 8 jamantadar the person who has taken surety and despite service of bailable warrant, he has chosen not to appear before the trial Court, therefore, the trial Court has issued warrant of arrest for his presence before the trial Court on 11.06.2010 but warrant of arrest was not served thereafter another warrant of arrest was issued for presence of the surety on 07.09.2010. Thereafter the police Station in-charge in pursuance of warrant of arrest issued by the learned trial Court to the surety Sukul Singh and he was produced before the trial Court and was released on personal bond of Rs. 5,000/-. Thereafter again he has chosen not to appear and on 15.11.2010 the bailable warrant issued to him was returned with an endorsement that Sukul Singh expired, thus it is quite vivid that after forfeiture of bail bond the father of the appellant was duly served with notice to submit reply, as such the submission made by the learned counsel for the appellant that he should be protected under Section 446 of the CrPC is misconceived as he was not discharged and he is bound by the condition imposed by the trial Court and after death of surety the appellant is liable to pay the amount as held by the Hon’ble Supreme Court in the case of Mohammed Kunju and Another vs. State of Karnataka reported in 1998(8) SCC 660 wherein the Hon’ble Supreme Court has held as under:- 5. The Nasarabad Police later reported to the magistrate that the accused was not attending the police station as per the order. The accused failed to be present in the court also. The efforts made by the magistrate to get the presence of the accused failed and then a notice was issued to the appellants to produce the accused in court as he was reported absconding. Appellants thereupon expressed their inability to produce the accused. The bail bonds were thus forfeited 9 and each of the appellants was ordered to "pay the surety bond amounting to rupees twenty five thousand to the Government." 14. We have noticed that the wording in the corresponding Form in the new Code is identical (vide Form No. 45 in the second Schedule to the Code) and hence the same principle must follow in the present case also. Thus forfeiture of a bond would entail the penalty against each surety for the amount which he has undertaken in the bond executed by him. Both the sureties cannot claim to share the amount by half and half as each can be made liable to pay the amount of Rs. 25,000/-. 11. Further considering that on account of subsequent death of surety the appellant being legal heir of surety is bound to pay the amount of surety as directed by the learned trial Court and he is not entitled to claim protection as provided under Section 446(4) of the CrPC. This issue has come up for consideration before the coordinate Bench of High Court of Madhya Pradesh in the case of Ram Singh and Ors. vs State Of Madhya Pradesh reported in (2006) 2 MPLJ 506 wherein the High Court has held as under:- 6. In order to appreciate the rival contention of learned Counsel for the parties, it would be appropriate to re-write Section 446 of Cr.P.C. which reads thus : Section 446(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, (2) and (3)… (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)... (Emphasis supplied) On bare perusal of Sub-section (4) it is crystal clear that if the surety had died before the bond is forfeited his estate shall be discharged from all liability in respect of the bond. 10 7. On going through Sub-section (4) of Section 446 of Cr.P.C. in the present case the maxim "cadit quaestio" can be said to be fully applicable and no argument is required. It is no more in dispute that the surety-Dheer Singh has breathed his last on 31-7-98 and the accused jumped the bail after his death i.e. on 25-9-99. Thus, before the bond was forfeited, the surety already died. Thus, the trial Court erred in law by passing the impugned order directing the appellant to deposit the surety amount. Indeed, the impugned order is de hors to Sub-section (4) of Section 446 of Cr.P.C. 12. In view of above stated facts and law on the subject, I am of the view that the learned Special Judge, Korba has not committed any illegality in passing the order dated 28.03.2014. Accordingly, the Criminal appeal fails and deserves to be dismissed and it is dismissed. 13. It is directed that the appellant as assured by him before the trial Court will deposit the fine amount on monthly installment. Interim order granted on 12.05.2014 is vacated. 14. The record of the case be sent to trial Court for on wards compliance. Sd/- (Narendra Kumar Vyas) Judge santosh