Section 446 CrPC: Procedure When a Bond Has Been Forfeited
Updated for Section 491 BNSS | 19 October 2026
When an accused person or surety breaches the conditions of a bond, the court may initiate forfeiture proceedings. Section 446 of the Code of Criminal Procedure, 1973 (CrPC), sets out the procedure for proving forfeiture, issuing a notice to pay or show cause, recovering penalties and granting remission. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), is Section 491.
What is forfeiture of a bail bond?
A bond is a legal undertaking to comply with stated conditions, such as attending court or producing property. A surety is a person who undertakes responsibility under a bail bond for compliance by the accused. Forfeiture means the court has determined that a bond condition has been breached, potentially making the amount specified in the bond recoverable. Forfeiture does not automatically mean that the full amount must be collected without hearing the affected person.
Section 446 CrPC: Procedure when bond has been forfeited
Subsection (1): Proof of breach and show-cause opportunity
Where a bond for appearance or production of property before a court is shown to have been forfeited, the court concerned, or a court to which the case has been transferred, must record the grounds supporting that conclusion. For other bonds, the court taking the bond, the transferee court or a Judicial Magistrate of the First Class may act as provided in the section. The court may then call upon the person bound by the bond to pay the penalty or explain why it should not be paid.
Explanation: An undertaking to appear before a court, or to produce property, extends to the court to which the case is subsequently transferred.
Subsection (2): Recovery of penalty
If adequate cause is not shown and the penalty remains unpaid, the court may recover it as though it were a fine imposed under the Code. Where recovery fails, the proviso permits the court to order a surety to undergo imprisonment in a civil jail for a period of up to six months. This is subject to the statutory requirements and an order of the court; it is not an automatic consequence of non-appearance.
Subsection (3): Remission of penalty
The court may remit any portion of the penalty and enforce only the remainder, provided it records reasons. Remission means reducing or waiving part of the amount, not treating every breach as excused.
Subsection (4): Death of a surety
If a surety dies before forfeiture of the bond, the surety's estate is discharged from liability in respect of that bond.
Subsection (5): Conviction as evidence of breach
Where a person who furnished security under CrPC Sections 106, 117 or 360 is convicted of an offence constituting breach of bond conditions, or a bond executed in lieu of that bond under Section 448, a certified copy of the judgment may be used as evidence against the sureties. The court then presumes the offence was committed unless the contrary is proved.
Legislative history: The proviso to subsection (2) was added by Act 63 of 1980, Section 6, effective 23 September 1980. The requirement to record reasons in subsection (3) was substituted by Act 25 of 2005, Section 40, effective 23 June 2006.
Section 491 BNSS: Current corresponding provision
Section 491 of the BNSS preserves the central structure of CrPC Section 446. Subsection (1) now separates the two categories of bonds into clauses (a) and (b), while retaining the court's duty to record grounds and the opportunity to pay or show cause. Subsections (2) to (4) address recovery, remission and the death of a surety. Subsection (5) refers to BNSS Sections 125, 136, 401 and 494 in place of the corresponding earlier CrPC references.
Read the full statutory text in the official BNSS, 2023 PDF on India Code (Section 491) and consult the India Code legislative database for the Code of Criminal Procedure, 1973 and applicable amendments.
How does a court proceed after a bond breach?
- Establish breach: The court examines whether the bond conditions have been violated.
- Record grounds: The reasons establishing forfeiture are entered in the record.
- Call for payment or explanation: The person bound by the bond is given an opportunity to pay or show cause.
- Consider explanation and remission: The court determines whether the penalty is payable and whether any part should be remitted, with reasons recorded.
- Enforce the order: An unpaid recoverable penalty may be collected using the statutory fine-recovery process, subject to the safeguards and proviso in the section.
Related provisions and remedies
Section 446A CrPC (corresponding BNSS Section 492) addresses cancellation of bonds and bail bonds in specified circumstances. Section 449 CrPC (corresponding BNSS Section 495) provides for appeals from certain forfeiture orders. These provisions should be read together where a forfeiture or penalty order is challenged.
Frequently asked questions
Is a surety automatically required to pay the full bail bond amount?
No. The court must follow the statutory procedure, including recording the grounds of forfeiture and providing an opportunity to show cause. It may remit part of the penalty after recording reasons.
Can the court send a surety to civil jail?
The statutory proviso permits imprisonment in civil jail for up to six months where the penalty is unpaid and cannot be recovered as provided by law, subject to an appropriate court order.
Which BNSS section corresponds to CrPC Section 446?
Section 491 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
This article is general legal information, not advice for a particular case. Check the official legislation, applicable amendments and relevant judicial orders before acting.