Surety forfeiture requires duly served notice; warrants cannot be issued to compel the surety’s presence.

The petitioner stood surety for accused Yash Rohilla in FIR No. 694 dated 15.10.2020, registered under Sections 457/380/411/413/210/120-B IPC at Police Station Barwala, District Hisar.

After the accused was granted regular bail on 30.05.2024, he allegedly failed to appear before the Trial Court on 09.09.2024, whereupon his bail was cancelled.

The petitioner submitted that the accused’s absence was not wilful because he was confined in District Jail, Karnal, in another case.

The proclamation proceedings also disclosed that the accused was in custody, following which production warrants were issued and he was produced before the Trial Court through video-conferencing on 09.04.2025.

The Additional Sessions Judge, Hisar, by order dated 20.02.2025, forfeited the petitioner’s surety bond and imposed a penalty of ₹1,00,000, while initiating recovery proceedings as arrears of land revenue.

The petitioner challenged the order under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to Section 482 Cr.P.C., contending that notice under Section 446 Cr.P.C. had not been served upon him, the warrants issued against him had remained unexecuted, and he had consequently been denied an opportunity to show cause.

Whether the Trial Court could forfeit the petitioner’s surety bond and impose a penalty under Section 446 Cr.P.C. without duly serving him with a show-cause notice and affording him an effective opportunity of hearing?

Whether coercive warrants could be issued against the surety for securing his presence in proceedings under Section 446 Cr.P.C., particularly when such warrants remained unexecuted?

Whether the impugned order, recording that the petitioner-surety had “nothing to say” despite non-service of notice, was legally sustainable?

The Court applied Section 446 Cr.P.C., corresponding to Section 491 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which requires the Court, before imposing a penalty upon forfeiture of a bond, to issue a notice to the surety to show cause why the amount should not be paid.

The provision embodies the principles of natural justice and audi alteram partem, requiring due service of notice and a meaningful opportunity to explain the alleged breach before adverse civil or pecuniary consequences are imposed.

The Court further held that proceedings against a surety under Section 446 Cr.P.C. do not warrant the issuance of coercive warrants to procure the surety’s presence; the statutory procedure is ordinarily satisfied through a show-cause notice.

The petition was maintainable under Section 528 BNSS, 2023, corresponding to Section 482 Cr.P.C.

The Court found that the impugned order proceeded on the assumption that the petitioner “had nothing to say,” whereas the record established that notice under Section 446 Cr.P.C. had never been served upon him and that the warrants issued against him were returned unexecuted.

In these circumstances, the petitioner could not be presumed to have waived his right to contest the forfeiture, and his alleged silence could not be treated as an absence of defence.

Since forfeiture of the surety bond and imposition of ₹1,00,000 involved serious pecuniary consequences, strict compliance with the statutory notice requirement and the principles of natural justice was mandatory.

The failure to serve notice and provide an effective opportunity of hearing constituted a substantive procedural defect, rendering the impugned order arbitrary and legally unsustainable.

It held that the surety bond could not be forfeited and penalty imposed without due service of notice under Section 446 Cr.P.C. and an effective opportunity to show cause.

The issuance of warrants against the petitioner-surety was also unwarranted in the circumstances.

Accordingly, the order dated 20.02.2025 forfeiting the surety bond, imposing a penalty of ₹1,00,000, and initiating recovery proceedings was set aside.

The petition was allowed, and all pending miscellaneous applications were disposed of.