The Madhya Pradesh High Court has reaffirmed that prolonged pendency of trial and a prior lapse in court appearances cannot, by themselves, justify the denial of regular bail under the Bharatiya Nagarik Suraksha Sanhita, 2023. This ruling provides critical clarity for practitioners handling cheque bounce cases where procedural delays have become the norm.
Background & Facts
The Dispute
The applicant, Faimuddin, was charged under Section 138 of the Negotiable Instruments Act in connection with a dishonoured cheque. The case was registered as SCNIA No. 35/2022 at Police Station Badi, District Raisen. He was initially granted bail by the trial court on 22.07.2023 but failed to appear on 18.03.2024, leading to the issuance of an arrest warrant. He was subsequently arrested and remanded to judicial custody after his bail application was rejected by both the trial court and the Court of Session.
Procedural History
- 2022: FIR registered under Section 138 NI Act
- 22.07.2023: Trial court granted bail to the applicant
- 18.03.2024: Applicant failed to appear before trial court
- 2025: Arrest warrant issued and applicant apprehended
- 13.01.2026: Court of Session rejected bail application
- 29.01.2026: High Court heard application under Section 483 of BNSS
Relief Sought
The applicant sought regular bail, assuring the court that he would appear on all future dates. He requested release on personal and surety bonds, emphasizing that the trial had remained pending for over three years without conclusion.
The Legal Issue
The central question was whether Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 permits denial of regular bail in a Section 138 NI Act case solely on grounds of prior non-appearance and prolonged trial delay, without assessing the current likelihood of flight or tampering with evidence.
Arguments Presented
For the Appellant/Petitioner
Learned counsel argued that the applicant had demonstrated genuine willingness to cooperate by seeking bail after incarceration and offering to comply with all future court dates. He relied on Arnesh Kumar v. State of Bihar to emphasize that Section 138 cases are generally non-serious and that bail should be the norm, not the exception. He further contended that the trial’s three-year delay was attributable to systemic inefficiencies, not the applicant’s conduct alone.
For the Respondent/State
The State opposed bail on the grounds that the applicant had previously absconded, thereby undermining judicial trust. The objector added that the trial court should be directed to expedite proceedings due to the delay caused by the applicant’s non-appearance.
The Court's Analysis
The Court examined the nature of Section 138 NI Act offences, noting they are primarily civil in character with criminal sanctions for non-payment. It held that past non-appearance, while relevant, cannot be treated as an automatic bar to bail under Section 483 BNSS, especially when the accused now offers credible assurances of compliance.
"The fact that the trial has remained pending since 2022 without conclusion weighs heavily in favour of granting bail, not against it. Denial of liberty on account of the State’s own delay cannot be countenanced."
The Court distinguished this case from those involving serious offences or risk of evidence tampering. It emphasized that Section 480(3) BNSS already provides sufficient safeguards through conditions like appearance bonds and reporting requirements. The Court further noted that the applicant’s conduct since arrest - seeking bail promptly and offering to comply - demonstrated a shift in attitude.
The Verdict
The applicant won. The Court held that prior non-appearance alone does not disentitle an accused to bail in a Section 138 NI Act case, particularly where the trial has been unduly delayed. The applicant was granted regular bail on a personal bond of ₹50,000 and a surety bond of the same amount, subject to compliance with Section 480(3) BNSS conditions.
What This Means For Similar Cases
Bail Cannot Be Denied Solely on Past Non-Appearance
- Practitioners must now argue that past default must be weighed against current assurances and the nature of the offence
- In Section 138 cases, courts must evaluate whether the accused poses a real risk of flight or evidence tampering, not merely punish prior lapses
- A single instance of non-appearance, without evidence of intent to evade justice, is insufficient to deny bail
Trial Delay Is a Factor in Favor of Bail
- Prolonged pendency of trial - especially beyond two years - must be cited as a compelling reason to grant bail
- Courts are now expected to consider systemic delays as a mitigating factor, not an aggravating one
- This aligns with the spirit of Arnesh Kumar and reinforces Article 21 rights against arbitrary detention
Conditions Under BNSS Are Sufficient Safeguards
- Section 480(3) BNSS allows courts to impose strict conditions including appearance bonds, reporting, and travel restrictions
- Practitioners should propose tailored conditions rather than oppose bail outright
- Mediation should be actively suggested in Section 138 cases, as the Court explicitly recommended here
