The Himachal Pradesh High Court has ruled that trial courts must issue two separate orders when dealing with bail bond cancellations and penalties under Section 446 of the Criminal Procedure Code (CrPC). This ensures the person affected—usually the surety—is given a fair chance to explain their side before any penalty is enforced.
The judgment came in response to an appeal filed by Bihari Lal, who stood as surety for Kamal Kumar, an accused in a sexual offence case involving a minor. Kamal Kumar was granted bail by the trial court on executing a bail bond of ₹50,000. Bihari Lal assured the court he would ensure Kamal's appearance at every hearing.
Failure to Appear and Trial Court’s Actions
On the first hearing date, only the surety, Bihari Lal, appeared and requested more time to produce the accused. However, neither he nor the accused appeared on the next date. As a result, the trial court cancelled the bail bond, issued non-bailable warrants, and started proceedings under Section 446 CrPC. It also imposed a ₹50,000 penalty on the surety without issuing a show-cause notice.
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The surety appealed to the High Court, stating that the penalty was imposed without giving him a chance to explain why the accused was not produced.
High Court’s Observations
Justice Virender Singh of the Himachal Pradesh High Court held:
“Separate orders were required to be passed—first for the cancellation of the bail bond and second for the imposition of penalty. The person affected by the penalty must be heard before any such action is taken.”
The Court emphasized that natural justice principles require that a person be given notice and a chance to be heard before being penalized. Section 446(2) CrPC clearly states that the court must issue a notice and give the surety an opportunity to show cause before recovering the penalty amount.
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The High Court also referred to the Supreme Court’s decision in Ghulam Mehdi v. State of Rajasthan (1960), which stated:
“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. Only if he fails to show sufficient cause can the court proceed to recover the money.”
In this case, the trial court had issued a combined order—both cancelling the bail and imposing the penalty—without giving any notice or hearing to Bihari Lal. The High Court ruled this as a violation of natural justice.
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“Non-affording of opportunity of hearing to the surety would be a gross violation of natural justice,” the Court observed.
The High Court set aside the trial court’s composite order and instructed it to conduct fresh proceedings. It directed that a proper notice be issued to the surety and that he be given a fair chance to explain his absence and failure to produce the accused.
Case Name: Bihari Lal v/s State of H.P. & Ors
Case No.: Cr.Appeal No. 247of 2024
