Himachal Pradesh High Court
Reserved On: 1.3.2025 vs State Of H.P. & Others on 9 May, 2025
Author: Virender Singh
Bench: Virender Singh
1 2025:HHC:13602
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Cr. Appeal No. 247 of 2024
Reserved on: 1.3.2025
Decided on : 9.5.2025
Bihari Lal
… Appellant
Versus
State of H.P. & others
…Respondents
_____________________________ ______________
Coram
Hon’ble Mr. Justice Virender Singh, Judge
Whether approved for reporting? yes
___________________________________________________
For the Appellant : Mr. D.S. Kainthla, Advocate.
For the Respondents : Mr. H.S. Rawat and Mr.
Mohinder Zharaick, Additional
Advocate General, for
respondents No. 1 and 2.
Name of respondent No. 3
stands deleted.
Virender Singh, Judge
Appellant Bihari Lal has preferred the present
appeal, under Section 449 of the Code of Criminal Procedure
(hereinafter referred to as ‘the Cr. P.C.’), against the order
dated 25.5.2023, passed by the Court of learned Special
Judge, Kullu, District Kullu, H.P. (hereinafter referred to as
‘the trial Court’), in Sessions Trial No. 26 of 2020, titled as,
‘State of H.P. vs. Kamal Kumar‘, whereby, the learned trial
2 2025:HHC:13602
Court has imposed penalty of Rs. 50,000/-, on the appellant,
and issued recovery warrant, under Section 421 Cr. P.C.
2. Brief facts, leading to filing of the present appeal,
before this Court, as per the record, may be summed up as
under:
One Kamal Kumar, S/o Joginder Singh, R/o
Amritsar, Punjab (hereinafter referred to as ‘the accused’) was
arrested by the Police, in connection with case FIR No.
50/2020, dated 21.3.2020, registered under Sections 354-A
and 506 of Indian Penal Code (hereinafter referred to as ‘the
IPC‘) and Section 8 of Protection of Children from Sexual
Offences Act (hereinafter referred to as ‘the POCSO Act‘), with
Police Station, Manali, District Kullu.
2.1 Accused Kamal Kumar filed an application under
Section 439 Cr. P.C., bearing No. 70 of 2020, before the
learned trial Court, which was decided by the learned trial
Court, on 29.6.2020, directing the release of said Kamal
Kumar on bail, during the pendency of the trial, subject to
his furnishing personal bond, in the sum of Rs. 50,000/-
with one surety, in the like amount, to the satisfaction of the
learned JMFC, Manali, District Kullu, H.P. Consequently, the
application for acceptance of personal bond and surety bond,
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was allowed on 28.7.2020 by the learned JMFC, Manali,
District Kullu, H.P.
2.2 In pursuance of the directions of the learned trial
Court, while releasing accused Kamal Kumar on bail, the
appellant herein, stood surety by giving solemn undertaking
to produce accused Kamal Kumar, before the learned trial
Court, on each and every date of hearing. However, accused
Kamal Kumar has not put appearance before the learned trial
Court, where charge sheet against him was filed. Efforts were
made to secure his presence, by issuing bailable warrants,
but, his presence could not be secured. Consequently, on
17.3.2023, the learned trial Court has passed the following
order:
“Accused not present. Perusal of the record shows that
surety Bihari Lal of accused was present in the Court on
27.9.2022 and he sought time to produce the accused before
this Court on next date of hearing, i.e., on 29.11.2022 and on
29.11.2022 surety did not put appearance before the Court,
however, Shri Varun Kant Sharma, Advocate appeared on
behalf of surety and undertakes to produce the surety before
this Court on next date of hearing, i.e., today. Today neither
surety Bihari Lal nor his counsel Shri Varun Kant Sharma,
Advocate put appearance before this Court. The accused is
also not produced before this Court. Bailable warrant issued
against accused not received back executed or unexecuted.
Now, this Court has no option except to cancel and forfeit the
bail bonds furnished by the accused before this Court.
Accordingly, the personal and surety bond executed by
4 2025:HHC:13602accused before this Court are cancelled and forfeited to State
of H.P. Let the accused be served through non-bailable
warrant for 25.5.2023. Proceedings under Section 446
Cr.P.C. be initiated against accused as well as his surety
and notices be issued to them for the date fixed, i.e.,
25.5.2023.”
2.3 Despite issuance of non-bailable warrants, when,
the presence of accused Kamal Kumar could not be secured,
learned trial Court has ordered to initiate the proceedings,
under Section 82 of the Cr. P.C., against accused Kamal
Kumar, vide order dated 6.3.2024. Learned trial Court has
imposed penalty of Rs. 50,000/- upon appellant Bihari Lal
and recovery warrants were issued to recover the said amount
of penalty from the appellant, vide order dated 25.5.2023,
which has been assailed, before this Court, by way of present
appeal.
3. The impugned order dated 25.5.2023 has been
assailed before this Court on the ground that the same has
been passed by the learned trial Court, without giving
sufficient opportunities to the appellant to explain the non-
appearance, and the learned trial Court, according to the
appellant, has failed to appreciate the fact that he had made
sincere efforts to produce the accused.
4. Penalty of Rs. 50,000/-, which has been imposed by
the learned trial Court, has also been called in question,
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before this Court, on the ground that said penalty is harsh
and the learned trial Court has not considered the fact that
the appellant belongs to the BPL family.
5. According to the appellant, the learned trial Court
has not considered the fact that due to some unavoidable
circumstances, appellant could not put appearance, on the
date fixed, before the learned trial Court. Since, the appellant
is stated to be a rustic villager, as such, according to him, he
was not aware about the fact that he was supposed to file
reply to the notice, so issued.
6. On the basis of above facts, Mr. D.S. Kainthla,
Advocate, appearing for the appellant, has prayed that the
appeal may be accepted, and order impugned herein may be
set aside and the proceedings, under Section 446 Cr. P.C.,
against the appellant, may be dropped.
7. The prayer, so made, was opposed by Mr. H.S.
Rawat, learned Additional Advocate General, appearing for the
respondent-State, on the ground that on the solemn
undertaking of the appellant, the Court of learned JMFC,
Manali has ordered to release accused Kamal Kumar from
custody, in pursuance of the bail orders, passed by the
learned trial Court, and admittedly, appellant could not
honour his solemn undertaking and despite issuance of
6 2025:HHC:13602
notice under Section 446 Cr. P.C., no sincere efforts were
made by the appellant to procure the presence of accused
Kamal Kumar, before the learned trial Court. As such, a
prayer has been made to dismiss the present appeal.
8. As per the record, it is not in dispute, in this case,
that the appellant stood surety to accused Kamal Kumar, who
has not put appearance, before the Court, despite the best
efforts made by the learned trial Court to secure his presence
and ultimately, proceedings under Section 82 Cr. P.C. were
initiated against him. This fact is also not disputed, in this
case, that the learned trial Court, vide order dated 17.3.2023,
has initiated the proceedings, under Section 446 Cr. P.C.,
against the accused, as well as, the surety (appellant).
9. In the proceedings, which have been initiated against
the appellant, in pursuance of order dated 17.3.2023, notice
was duly served upon the appellant (surety), as per report
dated 24.5.2023. Despite service, when appellant has not put
appearance on 25.5.2023, then, the impugned order has been
passed. Thereafter, on 27.7.2023, recovery warrants were
issued to the Collector, Mandi, to recover the amount of
penalty of Rs. 50,000/-, as arrears of land revenue.
10. The learned trial Court has initiated
proceedings, under Section 446 Cr. P.C., against the
7 2025:HHC:13602
appellant, as well as, accused Kamal Kumar. Provisions of
Section 446 Cr. P.C. are reproduced, 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
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
8 2025:HHC:13602
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.
11. 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.
12. In this case, the learned trial Court has passed the
following order, on 24.2.2022:
“Accused not present.
Correct address not filed. Let accused be called through bailable
warrants in the sum of Rs. 1000/- with one surety in the like
amount for 13.5.2022. Notice to surety Bihari Lal be also issued
to produce the accused in this Court on the date fixed.”
9 2025:HHC:13602
13. Thereafter, on 13.5.2022, surety Bihari Lal
(appellant) appeared before the Court and sought time to
produce the accused. On that day, bailable warrants were
ordered to be issued against accused Kamal Kumar. Ultimately,
on 17.3.2023, the learned trial Court has passed the composite
order (reproduced above) cancelling and forfeiting the bail
bonds, furnished by the accused, as well as, by the surety.
14. In the orders, which were passed prior to order dated
17.3.2023, surety (appellant) had put appearance before the
Court and made a submission that he shall produce the
accused. However, on 29.11.2022, the surety has not appeared,
but his counsel had given an undertaking to produce the surety
before this Court, on the next date of hearing. However, on
17.3.2023, when neither the surety was present, nor his
counsel put appearance before the learned trial Court, then,
composite order, cancelling and forfeiting the bail bonds,
furnished by the accused, was passed. Meaning thereby, bail
bonds furnished by the accused, were forfeited on that day.
Thereafter, proceedings under Section 446 Cr. P.C. were ordered
to be issued against the accused, as well as, his surety
(appellant). Thereafter, proceedings under Section 82 Cr. P.C.
were initiated, against the accused.
10 2025:HHC:13602
15. In the proceedings under Section 446 Cr. P.C.,
issued on 25.5.2023, the impugned order has been passed, due
to the non-appearance 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 Bihari Lal,
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 25.3.2023, penalty of Rs.
50,000/- was imposed on the surety (appellant).
16. 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
paragraph-3 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
under Sections 70 and 71, Criminal Procedure Code. On
February 26, the Public Prosecutor made an application to
the Sub-Divisional Magistrate who without notice to the
appellant ordered his properties to be attached. The
11 2025:HHC:13602appellant 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
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
12 2025:HHC:13602appearance 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)
17. If the facts and circumstances of the present
case are seen in the light of the aforesaid decision of
Hon’ble Supreme Court, the learned trial Court has simply
issued the notice to surety (appellant) on 24.2.2022, upon
13 2025:HHC:13602
which, surety (appellant) put appearance on 13.5.2022
and sought time to produce the accused in the Court.
18. Thereafter, on 21.7.2022, when, the accused, as
well as, surety (appellant) was not present, then, bailable
warrants were ordered to be issued to secure their
presence. In pursuance of the said order, surety (appellant)
appeared before the Court on 27.9.2022 and undertook to
produce the accused before the Court. Thereafter, on
17.3.2023, personal and surety bonds of the accused were
cancelled and forfeited and proceedings under Section 446
Cr. P.C. were initiated.
19. Hearing of the affected party, i.e. the appellant, is
mandatory, as non-affording 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.
20. 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
14 2025:HHC:13602
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.
21. 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.
22. In this case, the composite order has been
passed by the learned trial Court by depriving the appellant
(surety) Bihari Lal to put forward his plea, with regard to
non-production of the accused.
23. 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
25.5.2023, passed by the learned trial Court, and remand
the matter back to the learned trial Court to decide the
15 2025:HHC:13602
proceedings, under Section 446 Cr. P.C. afresh, after
issuing notice, as observed above.
24. With these observations, the present appeal
stands disposed of, so also the pending application(s), if
any.
25. Parties, through their counsel, are directed to
appear before the learned trial Court, on 26.5.2025.
26. Record be sent down.
(Virender Singh)
Judge
May 9, 2025
Kalpana
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