HP High Court Quashes Composite Order Under Section 446 CrPC | Says Separate Hearing Must Precede Bail Forfeiture And Penalty
Sanchayita Lahkar
The High Court of Himachal Pradesh Single Bench of Justice Virender Singh has set aside an order of the Special Judge, Kullu, which had imposed a penalty of ₹50,000 on a surety under Section 446 of the Code of Criminal Procedure. The Court held that the impugned order was passed without affording a mandatory opportunity of hearing to the surety and remanded the matter for fresh adjudication. The trial court was directed to issue proper notice before passing any order and the appeal was disposed of accordingly.
The appeal was filed by Bihari Lal against an order dated 25.05.2023 passed by the Special Judge, Kullu in Sessions Trial No. 26 of 2020, titled ‘State of H.P. vs. Kamal Kumar’. The impugned order imposed a penalty of ₹50,000 on Bihari Lal, who had stood as surety for Kamal Kumar, an accused released on bail in FIR No. 50/2020, registered under Sections 354-A and 506 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act. The FIR had been lodged at Police Station Manali, District Kullu.
Kamal Kumar was granted bail on 29.06.2020 by the trial court upon furnishing of a personal bond of ₹50,000 with one surety of the same amount to the satisfaction of the Judicial Magistrate First Class, Manali. Bihari Lal stood as surety for the accused and undertook to ensure his presence in court on all hearing dates.
Despite the undertaking, Kamal Kumar failed to appear before the trial court after the filing of the chargesheet. Bailable warrants were issued to secure his presence, but these were unsuccessful. On 17.03.2023, the trial court recorded the absence of both the accused and the surety. The court noted that Bihari Lal had appeared on 27.09.2022 and sought time to produce the accused by 29.11.2022. However, on 29.11.2022, neither Bihari Lal nor his counsel appeared, although a different advocate made an appearance on behalf of the surety and undertook to ensure attendance on the next date.
When neither the accused nor the surety appeared on 17.03.2023, the trial court cancelled and forfeited the bail bonds furnished by both. It also directed issuance of a non-bailable warrant against the accused and initiated proceedings under Section 446 Cr.P.C. against both the accused and the surety. Subsequently, the court ordered issuance of recovery warrants to collect the penalty of ₹50,000 from Bihari Lal.
Bihari Lal challenged the imposition of the penalty on the grounds that he had not been provided a proper opportunity to explain the accused’s absence and that he had made sincere efforts to produce him. He also submitted that he belonged to a Below Poverty Line (BPL) family and that the penalty imposed was harsh.
The State opposed the appeal, asserting that the surety’s undertaking had been violated and that proceedings were initiated only after multiple failures by the surety to comply with court directions. The State contended that the appellant did not respond to the notice issued under Section 446 Cr.P.C. and that the impugned penalty was lawfully imposed.
The court reviewed the procedural history and examined the legal compliance of the trial court's actions in terms of Section 446 Cr.P.C.
The Court recorded: “In the proceedings, which have been initiated against the appellant, in pursuance of order dated 17.3.2023, notice was duly served upon the appellant (surety), as per report dated 24.5.2023. Despite service, when appellant has not put appearance on 25.5.2023, then, the impugned order has been passed.”
Referring to the composite nature of the order, the Court stated: “Separate orders were required to be passed by the learned trial Court, firstly, at the time of cancellation of bail bonds and secondly, at the time of imposing penalty.”
The judgment noted the dual procedural steps prescribed under Section 446 Cr.P.C. and added: “Bare reading of the provisions of Section 446 Cr.P.C. makes out a case, according to which, separate orders are required to be passed by the Court, firstly at the time of cancellation of the bail bonds and; secondly, when the penalty is imposed.”
On the need for proper notice and hearing, the Court referred to precedent and stated: “Non-affording of such opportunity of hearing would be gross violation of principle of natural justice. Even after forfeiting the surety bond to the State of H.P., the learned trial Court has failed to issue show cause as to why the amount of bail bond be not realized from him, by way of penalty.”
The Court relied on the Supreme Court’s decision in Ghulam Mehdi v. State of Rajasthan, AIR 1960 SC 1185, and cited: “Before a man can be penalised forms of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay… proceedings cannot be said to be in accordance with law and should therefore be quashed.”
Finally, the Court concluded: “The composite order, passed by the learned trial Court, in this case, does not pass the judicial scrutiny by this Court.”
The Court observed that a bare reading of Section 446 of the Code of Criminal Procedure indicates that separate orders are required to be passed by the court—firstly, at the time of cancellation of the bail bonds, and secondly, when the penalty is imposed.
In this case, the trial court had passed a composite order, thereby depriving the appellant, Bihari Lal, of the opportunity to present his plea regarding the non-production of the accused.
The Court held that the composite order passed by the trial court did not pass judicial scrutiny.
Consequently, the Court set aside the impugned order dated 25.05.2023 and remanded the matter back to the trial court to decide the proceedings under Section 446 of the Code of Criminal Procedure afresh, after issuing notice as required.
With these observations, the present appeal was disposed of, along with any pending applications. The parties, through their counsel, were directed to appear before the learned trial court on 26.05.2025. The record was directed to be sent down.
Advocates Representing the Parties
For the Petitioner: Mr. D.S. Kainthla, Advocate
For the Respondents: Mr. H.S. Rawat and Mr. Mohinder Zharaick, Additional Advocate General
Case Title: Bihari Lal v. State of Himachal Pradesh & Others
Neutral Citation: 2025:HHC:13602
Case Number: Criminal Appeal No. 247 of 2024
Bench: Justice Virender Singh
[Read/Download order]
