The Punjab & Haryana High Court has clarified that declaring an accused a proclaimed person must reflect genuine evasion of judicial process, not mere absence following a compromise. In a significant ruling, the Court set aside a proclamation order where the accused voluntarily appeared, offered to comply, and had settled the dispute, reinforcing that procedural rigor must align with substantive justice.
Background & Facts
The Dispute
The petitioner, Subhash Pathak, was named as an accused in FIR No. 178 dated 19.10.2021 registered at P.S. Manimajra, Chandigarh, under Section 279 and Section 337 IPC for rash driving causing hurt. The case arose from a road accident involving the complainant. After initial proceedings, the petitioner was granted bail by the learned Judicial Magistrate First Class, Chandigarh.
Key Facts
- The petitioner and the complainant entered into a written compromise deed dated 10.02.2023 (Annexure P-4), which was submitted before the trial court.
- Believing the compromise rendered further appearances unnecessary, the petitioner ceased attending court hearings from mid-2023.
- No notice, summons, or warrant was served upon the petitioner prior to the proclamation order.
- The petitioner was not present during the proceedings leading to the proclamation order dated 15.04.2024.
- The petitioner had not absconded; he remained reachable at his registered address and was not evading service.
Procedural History
- 19.10.2021: FIR No. 178 registered under Sections 279 and 337 IPC.
- Late 2021: Petitioner granted bail by the Trial Court.
- 10.02.2023: Compromise deed executed between petitioner and complainant.
- Mid-2023: Petitioner stopped appearing in court, under mistaken belief that compromise concluded the matter.
- 15.04.2024: Trial Court declared petitioner a proclaimed person under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (successor to Section 82 Cr.P.C.), without issuing prior notice or warrant.
- 29.04.2026: Writ petition filed under Section 528 of BNSS challenging the proclamation order.
The Parties' Positions
For the Petitioner: Argued that the proclamation was illegal because no notice or warrant was issued, violating Section 84 BNSS. Emphasized that his absence was not intentional but based on a mistaken understanding following compromise. Undertook to appear in all future hearings.
For the Respondent-State: Contended that the petitioner’s prolonged absence, despite pending trial, amounted to deliberate evasion, justifying proclamation under BNSS. Asserted that the Trial Court acted within its powers.
Relief Sought
The petitioner sought quashing of the order dated 15.04.2024 declaring him a proclaimed person, and direction to release him on bail upon appearance before the Trial Court.
The Legal Issue
Whether the declaration of an accused as a proclaimed person under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is valid when no notice or warrant was issued, and the absence followed a compromise and was not demonstrably intentional?
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on the compromise deed and the absence of any service of notice or warrant to argue that the procedural safeguards under Section 84 BNSS were violated. He cited State of Haryana v. Bhagwan Das to assert that proclamation is a drastic measure requiring proof of deliberate evasion. He emphasized that the petitioner had never absconded, was reachable, and had voluntarily approached the High Court to affirm his willingness to comply.
For the Respondent
The Additional Public Prosecutor contended that the petitioner’s failure to appear over an extended period, even after bail, constituted wilful avoidance. He argued that compromise does not extinguish the state’s interest in prosecution, and the Trial Court was justified in resorting to proclamation to ensure presence. He relied on the principle that courts must act to prevent abuse of process.
The Court's Analysis
The Court examined the purpose of proclamation under Section 84 BNSS, noting that its sole objective is to secure the presence of the accused, not to punish non-appearance. The Court observed:
"The object behind issuance of non-bailable warrants or proclamation is only to secure the presence of the accused."
It held that the determination of intent must be contextual. While the petitioner’s absence was unexplained, the existence of a compromise, the absence of any attempt to evade service, and the voluntary appearance before the High Court indicated that his conduct was not malicious or evasive.
The Court rejected the State’s argument that mere non-appearance justifies proclamation. It emphasized:
"The determination of whether the default of an accused is intentional or unintentional must be made on a case-by-case basis, taking into account the specific facts and circumstances of each case."
It further noted that the Trial Court had failed to comply with the mandatory requirement of issuing notice or warrant before proclamation, rendering the order procedurally defective. The Court declined to impose costs, recognizing the petitioner’s good faith and willingness to cooperate.
The Verdict
The petition was allowed. The impugned order dated 15.04.2024 declaring the petitioner a proclaimed person is set aside. The petitioner is directed to appear before the Trial Court within four weeks from 29.04.2026. Upon appearance, he shall be released on bail subject to furnishing bail bonds and surety bonds to the satisfaction of the Trial Court. The petitioner must also file an undertaking affirming his commitment to appear in all future proceedings. Failure to appear within four weeks shall render this order void.
What This Means For Similar Cases
Proclamation Requires Proof of Evasion, Not Just Absence
- Practitioners must now argue that Section 84 BNSS requires concrete evidence of deliberate evasion, not merely non-appearance.
- Compromise in non-heinous offences (e.g., hurt, rash driving) may be a relevant factor in assessing intent.
- Absence due to misunderstanding, even if negligent, does not automatically justify proclamation.
Procedural Compliance Is Non-Negotiable
- No proclamation can be valid without prior issuance of notice or warrant under Section 84 BNSS.
- Courts must record reasons for concluding that service was impossible or that the accused was deliberately avoiding notice.
- Failure to comply with procedural mandates renders the order voidable, even if the accused later appears.
Voluntary Appearance Can Rectify Procedural Defects
- An accused who voluntarily approaches a higher court and undertakes to appear before the Trial Court may be granted relief even after proclamation.
- Courts may exercise discretion to set aside proclamation if the accused demonstrates genuine willingness to comply.
- This creates a new avenue for relief under Section 528 BNSS where procedural irregularities are coupled with cooperative conduct.
