No prior notice to a surety before his bail bond is forfeited, Himachal Pradesh HC Division Bench holds

Answering a reference that split three single-judge rulings, Justice Vivek Singh Thakur and Justice Bhupesh Sharma held that the statutory bond form makes forfeiture the immediate consequence of the absence of the accused, that the show-cause notice belongs to the recovery stage, and that a chance to produce the accused is judicial discretion, not a right.

A surety who undertakes to produce an accused on every date of hearing is not entitled to a notice before his bond is forfeited, a Division Bench of the Himachal Pradesh High Court ruled on 28 October 2026. Justice Vivek Singh Thakur, writing for himself and Justice Bhupesh Sharma, answered a reference from a Single Judge by holding that the bond form in the Second Schedule of the Code of Criminal Procedure, 1973, and of the Bharatiya Nagarik Suraksha Sanhita, 2023, binds the accused and the surety to forfeit the bond amount the moment the accused defaults. The notice that Section 446 CrPC and Section 491 BNSS require is a notice to pay the penalty or show cause against its recovery, and it comes after forfeiture, not before. The answer sides with the referring judge and against three earlier single-judge decisions of the same court that had insisted on a prior notice.

A father, a Rs 50,000 bond and three judgments pulling the other way

The case began in Solan. Madan Verma stood surety for his son, Ashish Verma, undertaking to produce him on each date of hearing and to pay Rs 50,000 to the State of Himachal Pradesh on default. Ashish Verma failed to appear on 20 December 2019. The Special Judge-III, Solan, issued a non-bailable warrant and ordered proceedings under Section 446 CrPC. Notice was served on the surety, but he did not appear on 11 January 2023, and on that date the court directed the District Collector to realise Rs 50,000 as arrears of land revenue. The surety appealed to the High Court against the order of 11 January 2023, which the appeal describes as an order of the Additional Sessions Judge-II, Solan, cancelling and forfeiting his surety bond.

Before the Single Judge, Anirudh Sharma, counsel for the surety, argued that a court is bound to issue a notice before forfeiting a surety bond and that without it the forfeiture could not stand. He relied on Narata Ram v. State of H.P., 1994 Cri LJ 491, Dhameswar Sahoo v. State of Orissa, 2014 Cri LJ 4821, Bir Singh v. State of H.P., Cr. Appeal No. 247 of 2023, decided on 21 March 2024, and Makhan Lal v. Union Territory of Jammu and Kashmir, CrM(M) No. 364 of 2022, decided on 29 May 2023. Jitender Sharma, Additional Advocate General, replied that no notice is required before forfeiture and that the requirement arises only afterwards, under Section 446.

The Single Judge, in a detailed order that the Division Bench reproduces in full, formed the opinion that no show-cause notice is required before forfeiture. The difficulty was that three coordinate single benches of the same court had held otherwise: Bir Singh, Prakash Chand v. State of Himachal Pradesh, Cr. Appeal No. 23 of 2024, decided on 9 April 2024, and Sunita v. State of Himachal Pradesh, Cr. Appeal No. 189 of 2023, decided on 21 March 2024. Rather than follow them, the Single Judge recorded his respectful disagreement and asked the Chief Justice to place a single question before a larger bench: whether a notice is required to be issued to the surety before forfeiture of his bond. The Chief Justice assigned the reference to the Division Bench of Justice Vivek Singh Thakur and Justice Bhupesh Sharma. Ajay Kochhar, Senior Advocate, with Anirudh Sharma appeared for the appellant-surety before the Division Bench; J.S. Guleria, Deputy Advocate General, appeared for the State.

How the referring judge took apart Narata Ram

The Single Judge traced the line of authority from Fatehchand Wadhumal v. Emperor, AIR 1940 Sind 136, through Ghulam Mehdi v. State of Rajasthan, AIR 1960 SC 1185, the Orissa Division Bench in Jagannath Rout v. State of Orissa, 1975 Cri LJ 1684, the Himachal decision in Dhanvir v. State, 1975 Cri LJ 1347, Ramananda Choudhury v. State of Orissa, 1978 Cri LJ 597, the Karnataka rulings in Mudhu, ILR 1981 Kar 1138, and Sadananda, 1985 Cri LJ 756, the Delhi High Court in Sham Sunder v. State (NCT of Delhi), 1990 Cri LJ 2370, and the Kerala Division Bench in Thundichi v. State of Kerala, 2009 SCC OnLine Ker 6527, followed in Asokan v. State of Kerala, 2022 SCC OnLine Ker 9624. Each of them reads the forfeiture provision, whether Section 514 of the 1898 Code or Section 446 of the 1973 Code, as creating two stages: the court first satisfies itself that the bond stands forfeited, and only then calls on the surety to pay or show cause. For a bond for appearance, the absence of the accused is itself the breach; no inquiry into whether the absence was wilful is needed at that stage, because that explanation belongs to the second stage.

The judge then dealt with Narata Ram, the Himachal decision both sides had cited. There, a surety had been given a chance to produce the accused and, when he could not, was penalised Rs 2,000 per bond. The court held that procedure improper, found the show-cause notice defective because it was not in Form 48, and in the course of discussion said that a notice to the surety cannot be issued unless an order of forfeiture is passed. The Single Judge held that the question of a notice before forfeiture never arose in Narata Ram, so nothing said on it could be its ratio. He drew on Justice R.V. Raveendran's article Precedents - Boon or Bane?, (2015) 8 SCC J-1, and on Punjab Land Development and Reclamation Corporation v. Presiding Officer, (1990) 3 SCC 682, Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, Arasmeta Captive Power Co. v. Lafarge India, (2013) 15 SCC 414, and State of Gujarat v. Utility Users Welfare Association, (2018) 6 SCC 21, applying the Wambaugh inversion test: strike out the supposed proposition and ask whether the decision would have changed. It would not have. The Jammu and Kashmir High Court in Makhan Lal had read Narata Ram as requiring a notice before the court records the breach; the Single Judge said no such proposition was laid down. Dhameswar Sahoo, he found, was decided in ignorance of the earlier Orissa rulings in Jagannath Rout and Ramananda Choudhury, and under M.P. Rural Road Development Authority v. L.G. Chaudhary Engineers, (2012) 3 SCC 495, a per incuriam decision loses its binding force. Bir Singh, for its part, had relied on Narata Ram, Dhameswar Sahoo and Makhan Lal without Dhanvir being brought to its notice.

There was a practical point as well. If a notice to produce the accused had to go out before forfeiture, an accused could skip a date, wait for the notice and then turn up, defeating the purpose of taking bonds and delaying trials.

The appellant's natural-justice case and the list of authorities behind it

Before the Division Bench, the surety's argument was that a notice before forfeiture is necessary to find out whether the breach was wilful or caused by something beyond the control of the defaulter, and that the surety must be given a chance to produce the accused who has not appeared. Without such a notice, counsel said, there is a violation of the principles of natural justice. The bench records a long list of decisions pressed in support, among them Mandeep Singh v. State of H.P., Bihari Lal v. State of H.P., Soman v. State of Kerala, Prabhakaran v. State, Dilnawaz Khan v. State of Delhi, Purna Chandra Pradhan v. State of Orissa, Yashoda v. State of Delhi, Apanna v. State of Mysore, Rupchand B. Chauhan v. Superintendent of Central Excise, Istkar v. State of U.P., Usman v. State of Kerala, Kalloo Singh v. State of U.P., Sher Alam v. State of Assam, Malhoo v. IInd Additional Sessions Judge, Vasantha v. State of Kerala, Pradeep Kumar Das v. State of Odisha, Surat Singh v. State of Himachal Pradesh, Chandrashekara v. State of Karnataka, Ramu v. The State, Nanhey Shah v. State, Jaswant Singh alias Kaka v. State of Punjab and Banmali Roy v. Sheonarain Soa, along with the three Himachal rulings the Single Judge had declined to follow.

The bench noticed that several of these decisions reach the conclusion that a prior notice is mandatory by relying on Ghulam Mehdi. It read the Supreme Court's paragraphs again and held that they do not say that. In Ghulam Mehdi, the recovery order was set aside because, after forfeiture, no show-cause notice had ever been served on the sureties, and without that notice no recovery could follow. Section 514 of the 1898 Code, Section 446 of the 1973 Code and Section 491 of the BNSS are similar in structure: the court records its satisfaction that the bond has been forfeited, records the grounds of that proof, and may then call upon the person bound to pay the penalty or show cause why it should not be paid. Ghulam Mehdi, the bench said, remains good law for the requirement of a show-cause notice before recovery of the forfeited amount. It is not authority for a notice before forfeiture.

The bond form decides the question

Because the bonds in this case were furnished under the CrPC and the reference fell to be answered after the BNSS came into force, the bench set out the provisions and the statutory forms under both codes side by side. Sections 436, 436A, 437, 437A, 438(3) and 441 CrPC, now Sections 478, 479, 480, 481, 482(3) and 485 BNSS, empower a court or police officer to take personal and surety bonds for attendance. Form 45 of the CrPC's Second Schedule and Form 47 of the BNSS's Second Schedule prescribe the bond and bail-bond. Form 48 CrPC and Form 50 BNSS prescribe the notice to a surety on breach of a bond. Form 47 CrPC and Form 49 BNSS prescribe the warrant of attachment that follows if the surety neither pays nor shows cause.

The text of the bond carried the decision. In Form 45 and Form 47, the accused undertakes to attend on every day of investigation or trial and, in case of default, binds himself to forfeit to Government the sum named. The surety's declaration mirrors it: the surety undertakes that the accused shall attend and, in case of his making default, binds himself to forfeit to Government the same sum. The bench found that language plain. Forfeiture is the immediate consequence of default, known to the accused and to the surety from the day they sign. Neither Section 441 CrPC nor Section 485 BNSS, nor the forms themselves, contain any clause entitling the surety to a notice to produce the accused after a breach. A procedural right, the bench said, can be claimed only on the basis of a specific provision creating it; a practice, however long followed, does not become a statutory requirement.

The notice forms confirmed the sequence. Form 48 CrPC and Form 50 BNSS tell the surety that the accused has failed to appear, that by reason of that default the surety has forfeited the stated sum, and that he must pay the penalty or show cause within a fixed number of days why payment should not be enforced. The notice presupposes forfeiture; it does not precede it. The attachment warrant in Form 47 CrPC and Form 49 BNSS likewise recites that the person has by default forfeited the sum and has, on due notice, failed to pay or show cause.

The bench was careful about one distinction. Forfeiture is the natural consequence of default, but it is complete and comes into play only when the court records its satisfaction and the grounds of proof. Recovery of the forfeited amount is never automatic. Section 446 and Section 491 use the word “may”: having recorded forfeiture, the court may call on the surety to pay. Before any recovery, a show-cause notice must go to the surety; after considering the cause shown, the court may recover the whole penalty, remit it entirely, or enforce payment in part, depending on what led to the breach. If the penalty is neither paid nor recoverable, the surety may be sent to civil jail for up to six months.

Room for discretion, but not a right

Having held that no prior notice is required, the bench spent several paragraphs on what a trial court may still do. There is, it said, a scope of “play in the joints” that gives the court judicial discretion to allow the surety to produce the accused, and nothing in either code prohibits a court from issuing a notice to verify the bona fides of the person in breach. The bench gave examples. An accused may be absent because of a sudden ailment or an accident on the way and be unable to tell his advocate, so that no exemption application can be moved. In that situation the court may give reasonable time for counsel to take instructions, adjourning for a day or two without recording forfeiture, which also avoids the automatic cancellation of bonds that Section 446A CrPC and Section 492 BNSS attach to a recorded forfeiture. An uninformed absence may also fall on a date fixed for a formal order, checking of the challan or hearing of a miscellaneous application, where the physical presence of the accused does not matter. Recording forfeiture on such a date would cancel the bail bonds, force a poor accused to arrange a fresh surety and burden the court with paperwork; keeping the past conduct of the accused in view, the court may choose not to record forfeiture at all.

The opposite case was described with equal care. On a date fixed for framing of charge or recording of evidence, an accused may deliberately stay away to stall the trial. If forfeiture were conditioned on a prior notice, which neither code provides, the absentee would simply appear on the next date and face no consequence for a wilful breach. The bench concluded that the Legislature intentionally made no provision for a notice before forfeiture, particularly for bonds furnished for the appearance of an accused. The court may declare forfeiture on the very first day of default, with or without recording its satisfaction about the grounds of proof, though recording that satisfaction is mandatory before proceedings for recovery under Section 446 or Section 491 are initiated. An order of forfeiture passed without a prior notice is neither illegal nor invalid. In the bench's words, “such an indulgence cannot be claimed as a matter of right”.

The bench also explained how Section 446A CrPC and Section 492 BNSS interlock with the forfeiture provision. Once a bond for appearance is forfeited for breach of a condition, the bond of the accused and the bonds of his sureties stand cancelled, and the accused cannot be released on his own bond unless the court or police officer is satisfied that there was sufficient cause for the failure; otherwise he must furnish fresh personal and surety bonds. Those consequences follow a recorded forfeiture whether or not recovery proceedings are started, because the section operates without prejudice to Section 446. The reverse also holds: where forfeiture is not recorded, there is no automatic cancellation of the bonds merely because the accused was absent, unless the court specifically orders cancellation. A court that does not record forfeiture keeps the option of continuing with the existing bonds once the accused is produced, or of cancelling them and issuing non-bailable warrants without initiating recovery. After a recorded forfeiture, however, the accused loses the right to be released on a personal bond and must be arrested and committed to jail unless bail is granted afresh on the ordinary parameters.

Order

The Division Bench agreed with the view of the referring Single Judge and answered the reference in these terms: “No notice is mandatorily required to be issued to the surety” before forfeiture of his bond on breach of its condition, in view of the nature of the bond provided in Form 45 of the Second Schedule of the CrPC and Form 47 of the Second Schedule of the BNSS, read with Section 446 CrPC and Section 491 BNSS. The Registry was directed to place Criminal Appeal No. 344 of 2023 before the Single Judge for final adjudication on merits in accordance with law. The reference was reserved on 16 September 2026 and decided on 28 October 2026.