 Yeah, good evening friends. And it's always a pleasure connecting with justice V. Ram Kumar who we always say that is an epitome of knowledge. And day in and day out, you can bother him for the purposes of asking him on any legal perspective alone and his passion to pay back to the society. What we say in the corporate world CSR that is corporate social responsibility. I feel that he has taken an honest task of legal social responsibility LSR. And for that, we keep on asking him and requesting him to take decisions and off late since he's quite busy as well as taking his passions with short question and answers on the virtual mode. Despite all this, we request him and yet he always exceeds it and that gives us a pleasure. That he exceeds to us and he we exceed in our request that he should take one sessions. And today's session is on the four feature of the bill bond section 446 of CRPC, which is a very short topic. And we are experimenting it that we are not shared the zoom link and straight away we are going live on the YouTube as well as Facebook. I request sir to share his insights over to you. Thank you Mr. because good evening friends. Today we are on for feature of bail bond covered by section 446 of CRPC. See, there is a lot of confusion among many members of the bench and the bar as to what exactly is a bail order and bail bond and what exactly is the cancellation of the bond and cancellation of the bail order. Not a confusion. So my endeavor will be to steer clear of those confusions. Okay, a person released on bail with or without sureties has to execute a bond for such amount as the police officer or court things sufficient. This is what section clause one of section 440 CRPC says the amount of bond shall be fixed with due regard to the bail order. The circumstances of the case and shall not be excessive. This is what section 440 clause one says such a bond is to be executed in terms of form number 45 of the second schedule to CRPC as per which the accused and his sureties undertake that the accused will attend the police officer or the court as the case may be. On every day on which there is investigation or trial as the case may be and the explanation to section 446 clause one CRPC clarifies that a condition in the bond for appearance shall be construed as including a condition for appearance before any court to which the case may subsequently be transferred. The further undertaking by the accused and the sureties is that in the event of any default made by the accused to appear before the police or the court the accused as well as his sureties shall forfeit to the government the amount fixed by the court as the bond amount. Therefore the accused there is a separate contract between the accused and the government and the sureties and the government. The contract is I shall the accused will say I shall without any failure appear before the police officer or the court as the case may be on all the dates of posting and all the dates of investigation. And in the event of my committing default I shall forfeit to the government the sound fixed as bond amount to the that is the undertaking by the accused sureties will also make a similar undertaking. Both are incorporated in form number 45 of the second schedule to CRPC. So the sureties will also undertake that in the event of the accused not appearing before the police officer or the court they will also forfeit to the government the amount fixed as bond amount so that there is a sort of an undertaking. Not only that there is an assurance by the accused as well as the sureties that the accused will with faithfully and without any default appear before the police officer or the court as the case may be. Now the Supreme Court has had occasion to consider this and the Supreme Court speaking through justice Katie Thomas in two decisions has highlighted this aspect of the fact matter. The Supreme Court speaking through justice Katie Thomas has held that this is an independent contract between the accused and the government and the sureties and the government. You may refer to Ramlal versus state of UP. AIR 1979 Supreme Court 1498 as Murthasar Fazal Ali or Chinna Paradi is one decision. Then Mohammed Kunju versus state of Karnataka. AIR 2000 Supreme Court Page 6 Justice Katie Thomas and M. B. Shah. Other of the judges is Justice Katie Thomas. Any breach of the condition for appearance will result in the automatic forfeiture of the bond in view of the self-explanatory wording of form number 47 of the second schedule to CRPC rendering the accused and the sureties liable for action under section 446 CRPC. Such a breach may also entail automatic cancellation of the bond by the operational section for 46 A1 CRPC. See I told you the accused and the sureties have entered into separate undertaking between the government. And the undertaking is the accused shall faithfully appear before the police officer or the court as the case may be without any default. And in the event of the accused committing any breach in this condition the accused as well as the sureties will forfeit to the government the amount fixed in the bond amount. That will be that is the undertaking. So this has been highlighted in those two rulings. Now once the how is the bond forfeited now for forfeiture forfeiture of the bail bond you don't require any separate order court doesn't have to pause a separate order. Once the accused remains absent he's undertaking is that he shall regularly appear before the police officer or the court on the appointed days. Now supposing the accused remains absent on a particular day then his absence is evidence of his breach. He has committed breach of the undertaking by remaining absent without any excuse. So he has committed breach. Once he commits breach of the undertaking forfeiture is automatic. The court does not have to pass any separate order. Why did you remain absent? What are the reasons for your absence? No, once he remains absent he has already committed breach of the condition for appearance. Therefore you under form 45 the contract is entered into under form 45. Then form 47 second schedule CRPC indicates that once he has failed to appear the bond is automatically forfeited. Then what remains is the forfeiture part of it. The court will be entitled to recover the bond amount by way of penalty. Now regarding the recovery part he is entitled to notice because there may be valid reasons for the accused not appearing before the police officer or the court. Now certain offbeat decisions were taken in the High Court of Kerala to the effect that upon breach of condition for appearance the accused and the sureties are entitled to be served by two show cost notices. There were some decisions taken by the Kerala High Court of course but there are other high courts also to the effect that once the accused remains absent he has to be given a notice as to why he remained absent. Then only the forfeiture takes place. No, those decisions do not lay down the law correctly because once he remains absent he has committed breach of the condition for appearance and the forfeiture is automatic. Once the bond he remains absent bond is automatically forfeited. What remains is to recover the penalty. For recovery of the penalty in whole or in part the court will have to hear him, give him a notice. Why should I not invoke the penalty clause and recover the entire amount by way of penalty? There the accused will have valid reasons as to why the entire amount should not be recovered or even not even a pie should not be recovered. Now the separate decisions which held that accused is entitled to two notices, one before forfeiture and the other after forfeiture were overruled by a larger bench of the Kerala High Court. In 23 versus state of Kerala, 2009, 4KLT67 presided over by then Chief Justice SR Banur Math and AK Bashir. Banur Math is the author of the judgment. Now after the decision bench ruling nobody can argue, no accused can argue or no surety can argue that he is entitled to two notices, one before forfeiture and another after forfeiture. He is entitled to only one notice that is after the automatic forfeiture of the bail bond. As mentioned earlier the only notice which the accused and the sureties are entitled to, consequent on the forfeiture of the bond is a show cause notice to be issued under section 446 clause 1 CRPC calling upon them to pay the penalty which they had undertaken to forfeit to the government, consequent on the absence of the accused. One such a show cause notice is issued to them they can show valid reasons if any for not paying the penalty wholly or in part. They can show reasons such as the accused was affected with cancer or COVID pandemic or with such other deadly disease. Therefore he was unable to appear before the court or before the police officer. Another reason can be the parents or the spouse of the accused had expired so he had to attend on them so he couldn't appear. Or there could be a third reason it was a Harthal day only there was no public transport system so he could not get a bus to reach the court or the police station. That can be valid reason or there can be still another important reason on that day appointed day where he was to appear before the police officer of the court. He was actually in custody in some other case so physically impossible for him to appear before the police officer of the court. These are all there may be other reasons also these are all valid reasons which they swayed the accused from appearing before the court. These reasons are available to the accused in this show cause notice issued to him after the for future of the bond and he can say that see I was actually in custody in some other case. So I never knew that there is such a posting so kindly excuse my absent court and can say that no okay. This is a valid reason he was actually in custody in some other case he was in the prison therefore he couldn't nobody can expect him to be present in before the police officer or before the court therefore he is excused. So no amount will be recovered from him court can give a total remission of the amount. Now depending on the truth or otherwise of the reasons put forward by the accused and the sureties court may either wholly or in part remit to the penalty under section 4463 CRPC. If partial remission alone has been made then the court can enforce payment of the unremitted part of the penalty. The penalty ordered by the court under section 4463 CRPC shall be recovered as since it were a fine imposed under the court. You refer to section 446 clause to CRPC then section 431 CRPC is the provision for recovery of money other than fine payable under the CRPC. Such money is to be recovered as if it were a fine by resort to section 421 CRPC which is the provision for recovery of fine by now the mode of recovery is by attachment and sale of the movable property of the offender. Or issue of a warrant to the collector authorizing him to realize the amount as an annual of land revenue from the movable as well as the movable properties of the defaulter. Now one important aspect to be borne in mind is that if the penalty is not paid and it cannot be recovered at all because even after resorting to attachment and sale etc. If the court finds that the penalty cannot be recovered in the manner stated above then the surety alone is liable to be imprisoned in civil prison for a term not exceeding 6 months. Accused is not liable to be imprisoned in civil prison for nonpayment of penalty. Surety of course will be liable to be imprisoned in civil prison for a term not exceeding 6 months. 6 months is the outer limit for being imprisoned in civil prison. The accused is not liable to be imprisoned because of the wording of the proviso to section 446 to CRPC. This is the mechanics of the forfeiture of the bail bond. So with the bond is for appearance and the accused remains absent contrary to the undertaking given by him to the government through the instrumentality of the court. Then he will forfeit to the government the bond amount that forfeiture is automatic because of the court can visibly see he will not be he will be absent in the dock. That itself is proof of the default, proof of breach of the condition for appearance and then the forfeiture is automatic. After forfeiture court will ask him call upon him to pay the penalty to pay the entire amount of penalty. Then he can be heard to say that whether he has got valid reason as to why the penalty should be or should not be enforced. This is the mechanics of forfeiture of the bail bond. Now next time we will be considering the cancellation of the bail order. There is a wide difference between these two. Forfeiture of the bail bond resulting in the consequent cancellation of the bond and cancellation of the bail order itself are two different things. In the next session we will examine the principles of cancellation of the bail order. When the accused after being enlarged in bail he commits default or he violates one or more of the bail condition. Then it is not a of course if it is for appearance then there is a forfeiture of the bail bond. But if it is supposing he has been asked to report before the police officer once in a week and he does not report then it is a violation. Once he violates the bail, the condition in the bail order then he is liable to be, the bail order is liable to be cancelled. We will examine that in the next session. So I suppose that you have now got a full understanding of the mechanics of the forfeiture of the bail bond. Thank you. Yes sir, only one question has come. It says, can a court put conditions in bailable offences? What is the difference between terms and conditions for bail? Bailable offences, there can be no condition can be imposed except a condition for appearance on such particular date. On such and such date you shall appear before the police officer or before the court. That is the only condition which can be imposed in a bailable offence because bailable offence means he is entitled to bail as of right. Once the offence is found to be bailable, he is entitled to bail as of right. No court can refuse him bail. Only thing is if he is not able to furnish sureties. Supposing court insists on sureties, he is not able to furnish sureties because he may remain in custody. Otherwise he is entitled to bail. But unlike in the case of a non-bailable offence covered by section 437, where the bail is not as of right is the discretion of the court. Whereas bailable offence falling under section 436 CRPC where the accused is entitled to bail as of right. 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