USMAN Vs. STATE OF KERELA

JUDGEMENT

(1.) It is noticed that different criminal courts adopt different procedure in a proceedings under S.446 of the Code of Criminal Procedure ('the Code' for short). Quite often, courts commence proceedings under S 446 of the Code, even without being satisfied of the pre-requisites. Orders are seen passed which may not reflect the grounds of "proof of satisfaction of the court that 'the bond has been forfeited' Courts also do not advert to in the orders, anything regarding such 'proof, though recording of the grounds of "proof of satisfaction is mandatory under the section.

(2.) On the mere failure of accused in appearing in court either for a day or more, certain courts pass orders 'to forfeit' the bond under S.446 of the Code, as though 'forfeiture' is an event to follow the court's order In many rases, courts also order 'penalty', as if it is a punishment awarded by the court under S 446 of the Code for breach of terms of bond It is also noticed that when an accused appears, court puts certain questions to him and record the questions and answers, and immediately proceed to forfeit the bond and impose a penalty, without giving sufficient opportunity to show cause.

(3.) A cluster of questions therefore, shoots up before me. Under what circumstances can a court initiate proceedings under Section 446 of Code of Criminal Procedure (the Code, for short)? What is the most essential pre-requisite for commencing proceedings under S.446 of the Code? What is meant by the expression 'the bond has been forfeited' under S.446 of the Code? Who forfeits the bond? Can a court issue order 'to forfeit' a bond under S.446? What does the term 'penalty' used in S.446 of the Code mean? Can a court award a penalty, as a punishment for breach of condition of bond under S.446 of the Code? How much time a court is expected to give to the accused to show cause? In short, what are the essentials to be borne in mind while proceeding under S.446 of the Code?