The Punjab & Haryana High Court has clarified that the declaration of an accused as a 'proclaimed person' under the BNSS cannot be automatic or punitive when absence is attributable to genuine, unforeseen personal tragedy. In a significant procedural ruling, the Court set aside both the forfeiture of bail and the proclamation order, emphasizing that due process must precede severe penal consequences.
Background & Facts
The Dispute
The petitioner, Vicky Kumar @ Vikas Kumar @ Vikas Kumar Chaudhary, was facing prosecution under Section 138 of the Negotiable Instruments Act in a complaint filed by Mohammad Vaseem. He was granted bail on 18.03.2025 and had been regularly appearing before the Judicial Magistrate First Class, Ludhiana, until his absence on 15.07.2025.
Key Facts
- The petitioner was released on bail vide order dated 18.03.2025
- He failed to appear on 15.07.2025, leading to cancellation of bail and forfeiture of surety bonds
- Non-bailable warrants were issued on 15.07.2025
- On 30.09.2025, he was declared a 'proclaimed person' under Section 82 of the BNSS
- The petitioner’s absence was due to the critical illness and subsequent death of his mother on 07.02.2026
- The petitioner was not present in court on 15.07.2025 because he was attending to his mother’s medical emergency
- No prior notice or inquiry was conducted by the trial court to ascertain the reason for absence before issuing warrants or declaring proclamation
Procedural History
- 18.03.2025: Petitioner granted bail in Complaint Case No. [unspecified]
- 15.07.2025: Trial Court cancelled bail, forfeited bonds, and issued non-bailable warrant due to non-appearance
- 30.09.2025: Trial Court declared petitioner a 'proclaimed person' under Section 82 BNSS
- 29.04.2026: Petitioner filed Writ Petition under Section 528 BNSS before the High Court seeking quashing of both orders
Relief Sought
The petitioner sought:
- Quashing of the order dated 15.07.2025 cancelling bail and forfeiting bonds
- Quashing of the order dated 30.09.2025 declaring him a 'proclaimed person'
- Release on bail upon surrender
- Opportunity to continue trial without prejudice
The Legal Issue
The central question was whether the declaration of an accused as a 'proclaimed person' under Section 82 BNSS, following a single absence from court, is lawful when the absence is attributable to a verifiable personal emergency, and whether the trial court complied with the mandatory procedural safeguards under the Code before resorting to such drastic measures.
Arguments Presented
For the Petitioner
Learned counsel argued that the petitioner’s absence on 15.07.2025 was neither intentional nor evasive, but due to the terminal illness and death of his mother, a fact corroborated by the timeline of events. He submitted that Section 82 BNSS requires issuance of a written order and reasonable opportunity to explain absence before proclamation. The trial court failed to record reasons, issue notice, or consider the petitioner’s prior compliance record. Counsel emphasized that the petitioner had appeared regularly since bail and was now willing to surrender and continue proceedings.
For the Respondent
The State opposed the petition, contending that the petitioner’s absence, regardless of reason, constituted deliberate evasion of judicial process. It argued that repeated non-appearance, even if initially unintentional, justifies proclamation to prevent abuse of process. The State maintained that the trial court acted within its powers under Section 82 BNSS and that the petitioner’s conduct demonstrated a pattern of disregard for court proceedings.
The Court's Analysis
The Court acknowledged the State’s concern regarding delay in criminal trials but held that procedural fairness cannot be sacrificed for expediency. It observed that Section 82 BNSS is not a tool for automatic punishment but a last-resort mechanism to ensure presence when other methods fail.
"Primary object of every Court is only to examine the commission of crime in question before it viz-a-viz the person /accused, who is subjected to such proceedings, and if possible justice be imparted at the earliest without unnecessary delay."
The Court distinguished between intentional evasion and genuine hardship. It noted that the petitioner had been compliant for over four months prior to the absence, and the death of a close family member constituted a compelling, unforeseen circumstance. The trial court’s failure to inquire into the reason for absence, issue notice, or consider alternatives like adjournment or conditional bail rendered the proclamation procedurally defective.
The Court also relied on its own precedent in Ashish Kumar Honda @ Ashish Handa v. State of Punjab and Veena @ Veena Devi v. State of Punjab, where it had held that courts must balance the need for expeditious trial with the accused’s right to fair procedure. The Court rejected the notion that any absence, regardless of cause, justifies proclamation.
The Verdict
The petitioner succeeded. The High Court set aside the orders dated 15.07.2025 and 30.09.2025 to the extent they cancelled bail, forfeited bonds, issued non-bailable warrants, and declared the petitioner a 'proclaimed person'. The petitioner is directed to surrender before the trial court on or before 15.05.2026, furnish fresh bail bonds, and submit a sworn undertaking to appear in all future proceedings. He shall deposit Rs. 10,000 as costs into an Old Age Home designated by the trial court within two weeks of the order; failure to do so will nullify the benefit granted. The trial court is directed to specify the deposit deadline within two weeks, and the petitioner shall be released on bail upon surrender and compliance.
What This Means For Similar Cases
Proclamation Requires Procedural Due Process
- Practitioners must now argue that Section 82 BNSS cannot be invoked without a recorded inquiry into the reason for absence
- Courts must document attempts to contact the accused, consider medical or family emergencies, and explore less drastic alternatives before proclamation
- A single absence, even if unexplained, does not automatically justify proclamation
Costs as a Balanced Sanction
- Courts may impose monetary costs as an alternative to prolonged detention or proclamation, especially where absence is unintentional
- Costs should be reasonable, directed toward public welfare, and tied to a clear timeline for compliance
- This creates a new middle path: accountability without punitive escalation
Prior Compliance Matters
- A history of regular court appearances must be weighed heavily before invoking drastic measures
- The burden shifts to the State to prove intentional evasion, not merely absence
- Lawyers should collect and submit attendance records, medical certificates, and correspondence to support claims of non-intentional non-appearance
