Section 491 BNSS: Procedure when bond has been forfeited (Formerly Section 446 CrPC)

Section 491 of Bharatiya Nagarik Suraksha Sanhita, 2023: Procedure when bond has been forfeited

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) Where,—

(a) a bond under this Sanhita is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited; or

(b) in respect of any other bond under this Sanhita, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.

Explanation — —A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Sanhita:

Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.

(3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

(5) Where any person who has furnished security under section 125 or section 136 or section 401 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 494, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 491

Section 491 of the Bharatiya Nagarik Suraksha Sanhita, 2023 prescribes the procedure for the forfeiture of surety bonds and recovery of penalty upon default.

Penal Consequences & Liability: Section 491 provides that whenever it is proved to the satisfaction of the Court by which a bond has been taken, or of any Court to which the case has subsequently been transferred, that such bond has been forfeited.
Statutory Penalties & Limits: Record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Operational Penal Consequences & Liability: If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if it were a fine.

This statutory framework establishes clear operational guidelines, balancing legal compliance with procedural safeguards.

Key Landmark Precedents:

Mohammed Kunju v. State of Karnataka (1999) 9 SCC 748: The Supreme Court held that forfeiture of a bond requires two distinct stages: first, judicial proof and recording of reasons that the bond has been forfeited; second, issuance of a show-cause notice to the surety before levying penalty.
Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551: Affirmed that judicial discretion to remit penalty under sub-section (3) must be exercised liberally where the surety acted bona fide and made genuine efforts to produce the accused.

Legal Commentary:

Section 491 balances accountability with fairness to sureties. Sureties facing forfeiture proceedings must appear, explain the bona fide circumstances preventing production of the accused (such as hospitalization or sudden abscondence), and pray for remission of the penalty under Section 491(3).