As per explanation provided to Section 446, 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 the Code of Criminal Procedure, 1973. However, 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 Section 446 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 446 of the Code refers to two types of bonds: (i) A bond under the Code for appearance or for production of property and (ii) any other bond under the Code. Both stand on the same footing so far as forfeiture is concerned.
In the case of a bond for appearance or for production of property, that Court or a transferee Court can initiate proceedings, while in the case of any other bond under the Code, that Court or a transferee Court, or the Court of any Magistrate of the first class can start proceedings for forfeiture. Bonds for appearance or for production of property include those taken by the police. Under Section 446 of the Code, when it is proved that the bond has been forfeited, the Court may call upon any person bound by such bond to pay the penalty or show cause why it should not be paid. If sufficient cause is not shown and penalty not paid, the Court will recover the same as if it were a fine imposed by a Court under this Code as laid down in Section 421.
The Court has discretion to remit a portion of the penalty. The Court shall record the grounds of proof of forfeiture of bond. Section 446 of the Code applies when the bond is taken by the Court.
Where the bond is taken by the police and not by the Court, such a bond cannot be forfeited by the Court because the promise made thereby is to a particular official and not to a Court as required under this Section. When the bond is forfeited and the penalty is not paid, the Court may proceed to recover the amount by issuing warrant for attachment and sale of the movable property belonging to such person. If security of immovable property is given, then the bond has to be registered under Section 17 of the Indian Registration Act. An unregistered bond cannot affect any immovable property.
Section 446 of the Code provides 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. Under Section 446 of the Code, before a bond may be forfeited, proof must be forthcoming to the satisfaction of the Court, by which the bond is taken, of facts constituting a breach of the conditions of the bond. Cancellation of bond and bail bond: According to Section 446-A of the Code of Criminal Procedure, without prejudice to the provisions of Section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition; (a) The bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and; (b) Thereafter no such person shall be released only on his own bond in that case, if the police officer or the Court, as the case may be, for appearance before whom the bond was executed, is, satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition. However, subject to any other provision of this Code, he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient. When a bond for appearance in a case of a person is forfeited for breach of a condition, his bond and surety bond shall stand cancelled and such person will not be entitled as of right to be released on bail upon the execution of fresh personal or surety bond and it would be within the discretion of the Court whether to release him or not upon the execution of fresh personal or surety bond.