Allowed¶84

Sahil v. State of Hp

Himachal Pradesh HC10 Mar 2026CRMPM/313/2026

Case brief

AI extract

What is this about?

Surety bond forfeiture; Section 446 Cr.P.C penalty for failure to produce accused; remission of penalty under S.446(3) Cr.P.C; reduction of penalty by appellate court; Section 495 BNSS appeal; condonation of delay under Section 5 Limitation Act; NDPS trial surety; Special Judge Mandi; Jameela Khader v. State of Kerala 2004 Crl.L.J. 3389; penalty reduced from Rs. 10,00,000 to Rs. 1,00,000.

What did the court decide?

Order dated 05.12.2025 of the learned Special Judge, Mandi modified to the extent that the appellant/surety shall pay penalty of Rs.1,00,000/- only, to be deposited within two months with the learned trial Court; appeal disposed of along with pending applications. ¶84

Sahil Vs State of Hp — Himachal Pradesh HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether this Court can reduce the amount of penalty imposed by the learned court below on the appellant/surety. +1 more

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Court's answer

Section 446 Cr.P.C clearly empowers a court, at its discretion, to remit any portion of the penalty in the peculiar facts and circumstances of the case.

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Ratio / Principle

Delay of 24 days in filing the appeal was neither intentional nor deliberate, was sufficiently explained, and is condoned; the application stands disposed of and the appeal is to be registered.

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Key takeaways

No illegality was committed by the learned court below in ordering forfeiture of the surety bonds and imposition of penalty, since the appellant-surety failed to cause the accused's presence despite notice and opportunity of hearing.ratio¶25
While imposing penalty for non-appearance of the accused, the crucial issues are whether the accused failed to appear for genuine and justifiable reasons and whether the surety was at fault; all attending circumstances must be considered.ratio¶41

Detailed headnote1 paragraphs

Criminal Appeal under Section 495 of the Bharatiya Nagarik Suraksha Sanhita, 2023 against order dated 05.12.2025 of the learned Special Judge, Mandi, forfeiting the surety bonds furnished by the appellant-surety in NDPS Trial No. 95 of 2023 (State v. Jagat Bahadur) and imposing penalty of Rs. 10 lakh for failure to cause the accused's presence during trial. Held: (i) 24 days' delay in filing the appeal condoned under Section 5 of the Limitation Act; (ii) no illegality in forfeiture and imposition of penalty, the surety having failed to cause the accused's presence despite notice and opportunity; (iii) Section 446 Cr.P.C, especially sub-section (3), empowers the court at its discretion to remit any portion of the penalty, and in imposing penalty the court must consider whether the accused's non-appearance was for genuine and justifiable reasons and whether the surety was at fault; (iv) the discretion to remit vests in the appellate court, and since the surety is a poor person who made sincere efforts, the quantum was on the higher side and was reduced to Rs. 1,00,000/-, payable within two months. Reliance: Jameela Khader v. State of Kerala, 2004 Crl.L.J. 3389.

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Criminal Appeal No.47 of 2026 Date of Decision: 10.03.2026

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_______________________ Sahil	______________	__________________ …….Appellant
	Versus
State of Himachal Pradesh		… Respondent
_______________________ Coram:	______________	__________________

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Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹

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For the Appellant: Mr. Rajul Chauhan, Legal Aid Counsel. For the Respondent : Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocate Generals with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General. _______________________________________________________ Sandeep Sharma, Judge (oral):

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Cr.MP(M) No.313 of 2026

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By way of instant application filed under Section 5 of the

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Limitation Act, prayer has been made on behalf of the applicant/ appellant for condonation of delay in filing the accompanying appeal.

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Learned Additional Advocate General representing the

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non-applicant/ respondent fairly states that he does not intend to file any reply to the application and shall have no objection in case prayer

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made in the application is allowed.

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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Having carefully perused the averments contained in the application, which is duly supported by an affidavit, this Court is convinced and satisfied that delay in maintaining the accompanying appeal is neither intentional nor deliberate, rather same has occurred on the account of the circumstances, which were completely beyond the control of the applicant/appellant and as such, delay of 24 days in filing the appeal, which in my considered view has been sufficiently explained, is condoned. The appeal be registered. The application stands disposed of.

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Cr. Appeal No. 47 of 2026

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Instant Criminal Appeal filed under Section 495 of Bharatiya Nagarik Suraksha Sanhita, 2023, lays challenge to order dated 05.12.2025, whereby learned Special Judge, Mandi, Himachal Pradesh after having forfeited the surety bonds furnished by the appellant/surety, proceeded to impose penalty of Rs. 10.00 lac on account of his having failed to cause presence of the accused Jagat Bahadur during trial.

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Precisely, the facts of the case, as emerge from the record are that appellant stood surety of the accused Jagat Bahadur in NDPS Trial No. 95 of 2023, titled State v. Jagat Bahadur . Since he failed to come present in the trial despite notices, learned trial court called upon the appellant to cause presence of the accused being surety.

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Since despite service, appellant failed to cause presence of the accused in the trial Court, court below vide order dated 18.07.2022 ordered for forfeiture of surety bonds furnished by the appellant herein and issued bailable warrants against him for securing his presence.

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Subsequently, vide order dated 05.08.2024, learned court below initiated proceedings under Section 446 of Cr.P.C, against the appellant/accused and imposed penalty to the tune of Rs. 10,00,000/with a direction to the Collector to recover the same as arrears of land revenue. In the aforesaid background, appellant- accused has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order.

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Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the orders dated 05.12.2025, this Court finds that before initiation of proceedings under Section 446 Cr.P.C, learned court below afforded opportunity of hearing to the accused, but despite opportunity, he failed to appear before the learned trial court, as a result thereof, court below had no option but to impose the penalty.

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Though Mr. Rajul Chauhan, learned Legal Aid Counsel for the petitioner vehemently argued that impugned order dated 05.12.2025, whereby penalty to the tune of Rs. 10,00,000/- came to be imposed, is not in accordance with law, but he was unable to

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dispute that despite his having received notice, appellant accused failed to cause presence of the accused during trial. He was also unable to dispute that even in the proceedings under Section 446 of Cr.P.C, appellant accused failed to cause the presence of the main accused before the learned trial court.

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Needless to say, very purpose of taking surety at the time of enlarging the accused on bail is to ensure presence of the accused at the time of the trial. Since appellant-accused had furnished undertaking in the shape of the surety bonds before the court below that in the event of default, if any, on the part of the accused to remain present during trial, he shall be responsible for causing his presence, failing which amount furnished by him as surety shall be forfeited in favour of the State, no illegality can be said to have been committed by the learned court below by ordering forfeiture of surety bonds and imposition of penalty. However, having taken note of the fact that after receipt of notice from the learned trial court, appellant had made sincere efforts to cause presence of the accused in trial, learned trial court while imposing penalty ought to have adopted a lenient approach.

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Question, which now remains to be considered is, ‘whether this court can reduce the amount of penalty imposed by learned court below or not?

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11. Before finding answer to the same, S. 446(iii) Cr.P.C,

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may be taken note of, which reads as under:

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“446. Procedure when bond has been forfeited.

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(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.

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(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. 1 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.]

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(3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.

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(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.

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(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

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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.”

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Section 446 Cr.P.C, clearly empowers a court to, at its discretion, remit any portion of penalty in peculiar facts and circumstances of the case.

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Careful perusal of S.446 (i) Cr.P.C reveals that it is in two part, first part deals with the forfeiture of bond and second party with payment of penalty. After having forfeited bonds furnished by an accused or a surety, court can either impose penalty of entire surety amount or it may be decided by the court after hearing the surety. In

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the case at hand, it has been averred on behalf of the appellant/surety, that he is not in a position to pay entire amount of surety bond i.e. Rs. 10,00,000/- and in the event of his being compelled to do so, he may have to sell his property, as a consequence of which, the entire family of surety would be ruined.

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Otherwise also, while passing order with regard to imposition of penalty, for not causing appearance of the accused, crucial issue is to find out whether the accused had failed to appear for genuine and justifiable reason and also whether the surety was at fault in not securing attendance of the accused. All the attending

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circumstances are to be taken into consideration by court, while imposing the penalty consequent upon forfeiture.

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Since in the case at hand, appellant made sincere efforts to cause presence of the accused in the trial and on account of order of imposition of penalty by learned court below, serious prejudice may be caused to him and his family, learned court below while imposing penalty, ought to have been little considerate/lenient.

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Reliance is placed upon judgment passed by Kerala High Court in Jameela Khader v. State of Kerala, 2004 Crl. L.J.

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3389 , wherein, it has been held as under:

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“7. As mentioned earlier, the petitioners were directed to show cause why penalty should not be imposed on them for their failure to produce the accused before the Court on the date fixed for hearing. Sub-section (2) of Section 446 provides that if the sureties do not show sufficient cause and they do not pay the penalty imposed on them, the Court may proceed to recover the same as though it is a fine imposed by the Court under the Code. If recovery becomes impossible, the sureties are liable to suffer imprisonment in civil jail for a term which may extend to six months.

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There is no dispute that sub-Section (3) of Section 446 empowers the Court to use its discretion to remit any portion of the penalty and enforce payment of only part of the penalty. Clause 3 of Section 446 reads as hereunder:

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“3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in party only.”

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It is true that the above provision does not specify at what state the Court can remit the penalty. But the preceding clause make it clear that 9 the Court can impose penalty only after recording proof of forfeiture and after issuing show cause notice.

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The short question are:

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(1) Can the Court which forfeits the bond of the surety remit or order part payment of the penalty after imposing such penalty?

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(2) Can the Criminal Court reopen or review its earlier order of imposition of penalty to invoke the power of discretion as provided under Sub-Section (3) of Section 446?.”

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On a perusal of the provisions in Section 446, it is evident that a bond which has been executed either for appearance of accused or production of property shall be forfeited the moment it is proved that a condition in the bond has been violated. For instance, if the accused fails to appear on the day on which he has been directed to appear, the Magistrate is empowered to forfeit the bond of the accused as well as that of the sureties forthwith. Of course, the Court must be satisfied that the condition in the bond has been violated. Thus it can be seen that the power vested with the Court to forfeit the bond is unfettered. However, clause (1) of Section 446 provides that the Court shall record the grounds of proof of forfeiture. Thereafter the Court may call upon any person bound by such bond to pay the penalty or to show cause why it should not be paid. Thus clause (1) of Section 446 clearly indicates that the forfeiture of a bond for breach of any of the conditions is almost an inevitable or automatic consequence. It is then for the surety to explain the reasons for the breach. Clause (2) of Section 446 stipulates that if sufficient cause is not shown and the penalty is not paid the Court may proceed to recover it. The proviso to clause (2) deals with the consequences of failure to pay the penalty. The person who is bound as surety is liable to suffer imprisonment in civil jail if he fails to pay the penalty imposed.

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A reading of the above two clauses of Section 446 clearly shows that forfeiture of the bond and payment of penalty would follow as a natural consequence for breach of any of the conditions of the bond. The quantum of penalty may be the entire amount covered under the bond or it may be as decided by the Court after hearing the surety. It is provided in clause (1) that “the Court may call upon any person bound by such bond to pay the penalty thereof or to show

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cause why it should not be paid” (emphasis supplied). Nevertheless, the Court can exonerate the surety from payment of penalty, if it is satisfied that there are valid reasons for the failure to produce the accused or the property. The Court can exercise its discretion in the matter after hearing the surety. The court can remit any portion of the penalty and direct the surety to pay only a portion thereof.”

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But incidentally, it may be noticed that by the subsequent introduction of Section 446-A in the Code, the situation is slightly different. If the bond is executed for appearance of an accused and the bond is cancelled due to his failure to appear, then the court can forfeit the bond. His release can be ordered "upon the execution of a fresh personal bond............with one or more of such sureties". No penalty is envisaged under Section 446-A. More importantly the provisions contained in Section 446-A are "without prejudice to the provisions of Section 446".

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However, the question that has arisen in this case is at what stage the court can use its discretion to remit a portion of the penalty if the bond is cancelled under Section 446. Evidently the court which forfeits the bond has to necessarily consider all facts and circumstances before imposing the penalty. There may be situations where the accused might have been prevented from appearance in Court due to valid reasons beyond his control. Instances may be numerous and variegated depending on factual situations which cannot be enumerated. But the crucial issue is to find out whether the accused had failed to appear before the Court for genuine and justifiable reasons and also whether the sureties were at fault in failing to procure the attendance of the accused. All the attendant circumstances have to be considered by the Court while imposing the penalty consequent on the forfeiture. Question of remission of penalty or enforcement of payment only in part is also to be considered at that stage. In my view, the discretion has to be exercised at the time when the penalty is imposed and not at any later stage. In that view of the matter, the order impugned cannot be faulted.

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But learned counsel for the petitioners submits that the Court can exercise the power of discretion at any stage. He places reliance on a few reported decisions in support of his contention. 15. In Balraj S. Kapoor v. State of Bombay, AIR 1954 Bombay 365, it was held that the Court can remit a portion of the penalty invoking its discretionary power under Section 514(5) of 1898 Code (Section 446(3) of the 1973 Code) even at a subsequent stage.

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In Sualal Mushilal v. State, AIR 1954 M.P. 231, it was held that the power to remit a portion of the penalty in exercise of its power under Clause (5) of Section 514 of the 1898 Code (corresponding to Section 446(3) of 1973 Code) could be exercised so long as the payment of any portion of the penalty remains unenforced. Though the circumstances which justify remission of a portion of the penalty have to be considered by the Court before it proceeds to consider the answer of the surety to the show cause notice, still the Court could remit any portion of the penalty if such circumstances occur subsequent to the order of recovery so long as the amount was not totally recovered.

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In Moola Ram v. State of Rajasthan, 1982 Crl.L.J. 2333, the High Court of Rajasthan held as follows:

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"Even after passing the final order forfeiting the bond for appearance in Court and for recovery of the whole amount of penalty under the bond, the Court under Section 446(3) can remit any portion of the penalty so long as the amount is not totally recovered. There is nothing in Section 446(3) to show that an order remitting any portion of the penalty and enforcing payment of part thereof can be passed by the Court only at the time it passed the final order directing forfeiture of the bond and realisation of the amount thereof as penalty."

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In the above decision the learned Single Judge had followed Balraj Kapoor's case and Sualal Mushilal's case mentioned supra.

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Sri. Mohammed Anzar, learned counsel for the petitioners submits that judicial precedents mentioned above are unanimous in the view that the court which imposes the penalty after forfeiture of

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the bond can remit the penalty or direct that only a portion thereof be paid. This can be done even at a subsequent stage. But I find it difficult to agree with the above proposition.

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In Balraj Kapoor's case (supra), the learned Judge of the Bombay High Court had observed that:

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"........ it seems to me that the better View is that the Court is called upon to require the surety to pay the amount of the penalty or to remit a portion of the penalty as soon as the bond is forfeited. It is at that stage that the Court is called upon to consider the question as to whether the entire amount of the penalty should be ordered to be paid or only a portion of the amount should be ordered to be paid.......

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The question whether the discretion is to be exercised at a subsequent stage or at the stage when the Court calls upon the surety to pay the amount of the penalty is, I think, not free from difficulty. It is, I think, possible to take the view that the Court may, in its discretion, remit a portion of the penalty and enforce payment in part only even at a subsequent stage. But I would prefer to say that the Court can insist upon the payment of the entire amount of the penalty or may make an order remitting a portion of the penalty as soon as the bond is forfeited and the Court is called upon to apply its mind to the matter........"

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I am inclined to agree with the above observation in the judgment, though it was ultimately held by the learned Judge that the Court can remit the penalty even at a subsequent stage.

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There is yet another reason to take the above view. A criminal Court does not have the power to review or re-open its own order. In this case the order that was passed imposing a penalty of Rs. 5,000/- each had become final. Therefore, the Court could not have reopened or reviewed its own earlier order as requested by the petitioners.

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However, the discretion vested in the Court by virtue of Clause (3) of Section 446 can be exercised by the appellate or revisional court if the order is challenged as provided under the Code. The appellate or revisional Court, as the case may be, can always

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consider, even at a later stage, whether there are circumstances warranting remission of penalty.

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It is contended by the learned Public Prosecutor that in the case on hand, the petitioners had a remedy to challenge the impugned order before the Sessions Court by filing an appeal. It is contended that this petition under Section 482 of the Code cannot be entertained since the petitioners had not resorted to the remedy available to them. It is true that an appeal is provided under Section 449 of the Code which enables the aggrieved party to file an appeal against "all orders passed under Section 446". If the impugned order is passed by a Magistrate, an appeal shall lie to the Sessions Court. In the case of an order made by a Court of Sessions, an appeal lies before the High Court. Therefore there is force in the contention of the learned Public Prosecutor that the petitioners are not without any remedy as provided under the Code.

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But in the peculiar facts and circumstances of this case, I am not inclined to direct the petitioners to approach the Appellate Court. This Court can always consider the question whether an order passed by the inferior court is just or legal. If there is any illegality or irregularity, this Court can always interfere in order to meet the ends of justice.”

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Prima facie, this Court does not find any infirmity in the order passed by learned Court below because when the appellant stood surety for the accused and thereafter accused did not appear in the Court of law to face the trial, but natural, the appellant has to face the consequences. However, during the course of arguments this fact has gone un-rebutted that the appellant is poor person and he had made sincere effort to locate the whereabouts of the accused and as such, the amount of penalty imposed upon the appellant can be said to be on higher side.

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Consequently in view of detailed discussion made herein

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above and the law taken into consideration, this court, is of the view that the discretion vests in this court, under S.446 (iii) Cr.P.C, to remit the penalty. Since in the instant case, appellant/surety is not a man of sufficient means, quantum of penalty imposed by learned court below while forfeiting sureties exercising power under S.446 Cr.P.C, deserves to be modified.

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Accordingly, the present appeal is allowed and order dated 05.12.2025, passed by the learned Special Judge, Mandi, is modified to the extent that the appellant/surety shall pay penalty of Rs.1,00,000/-, only, which shall be deposited within two months with the learned trial Court, from the date of passing of this order. The appeal stands accordingly disposed of, alongwith all pending applications, if any.

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(Sandeep Sharma), Judge

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March 10,2026 ( shankar)

Sahil v. State of Hp

Case brief

What is this about?

What did the court decide?

Sahil v. State of Hp

Case brief

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