The Himachal Pradesh High Court has clarified that a proclamation order under Section 84 of the Bharatiya Nagarik Suraksha Sanhita (BNS) may be suspended pending compliance, even in the absence of formal application for recall, if the accused demonstrates genuine willingness to discharge the underlying liability. This pragmatic intervention underscores the procedural flexibility available under Section 528 BNS to prevent undue hardship without compromising judicial authority.
Background & Facts
The Dispute
The petitioner, Ses Ram, was declared a proclaimed offender by the Chief Judicial Magistrate, Kullu, on 29.12.2025 under Section 84 of the Bharatiya Nagarik Suraksha Sanhita (BNS), which replaces Section 82 of the old CrPC. The declaration followed non-appearance before the trial court in a case arising from the dishonour of a cheque issued by the petitioner to the respondent, Shyam Lal, under Section 138 of the Negotiable Instruments Act. The petitioner had not appeared at any of the scheduled hearings despite service of summons, leading the trial court to issue a proclamation order.
Key Facts
- The underlying complaint was filed by Shyam Lal alleging dishonour of a cheque for Rs. 1,25,000 dated 10.08.2024
- Legal notice under Section 138 NI Act was issued on 20.08.2024 and received by the petitioner on 25.08.2024
- The petitioner failed to make payment within 15 days of notice
- The complaint was filed before the CJM, Kullu on 15.10.2024
- Summons were issued on 05.11.2024 and served on 12.11.2024
- Petitioner failed to appear on 19.11.2024, 03.12.2024, and 17.12.2024
- On 29.12.2025, the CJM issued proclamation order under Section 84 BNS
- No application for recall of proclamation was filed before the trial court prior to the High Court petition
Procedural History
- 10.08.2024: Cheque issued by petitioner to respondent
- 20.08.2024: Legal notice sent under Section 138 NI Act
- 25.08.2024: Notice received by petitioner
- 15.10.2024: Complaint filed before CJM, Kullu
- 05.11.2024: Summons issued
- 12.11.2024: Summons served
- 19.11.2024, 03.12.2024, 17.12.2024: Petitioner failed to appear
- 29.12.2025: Proclamation order issued under Section 84 BNS
- 17.04.2026: Writ petition filed under Section 528 BNS before Himachal Pradesh High Court
The Parties' Positions
The petitioner, through counsel, contended that his non-appearance was not willful but due to personal hardship and misunderstanding of legal process. He affirmed readiness to pay the entire cheque amount and sought recall of the proclamation order.
The respondent, Shyam Lal, did not appear or file any written submission. The Court noted that no opposition was raised, and the respondent was not represented.
Relief Sought
The petitioner sought quashing of the proclamation order dated 29.12.2025 and an opportunity to appear before the trial court to settle the matter by payment of the cheque amount.
The Legal Issue
Whether a court may suspend or stay a proclamation order under Section 84 BNS upon the accused’s unqualified undertaking to pay the cheque amount, without requiring a formal application for recall before the trial court?
Arguments Presented
For the Petitioner
Counsel for the petitioner relied on the discretionary power under Section 528 BNS to correct manifest injustice. He submitted that the petitioner had no intention to evade justice and was ready to discharge the liability immediately. He cited State of Haryana v. Bhagwan Das to argue that proclamation orders are procedural tools, not punitive, and should be recalled upon compliance. He emphasized that the petitioner’s conduct did not indicate flight risk or mala fide intent.
For the Respondent
The respondent did not appear or file any response. The Court treated the matter as unopposed and proceeded on the basis of the petitioner’s statement and the record.
The Court's Analysis
The Court observed that while the issuance of the proclamation order under Section 84 BNS was procedurally valid given the petitioner’s repeated non-appearance, the object of such an order is to ensure presence, not to punish. The Court noted that the petitioner had not challenged the underlying complaint or the validity of the cheque dishonour allegation. Instead, he sought to resolve the matter by payment.
"The object of proclamation is not to penalise the accused but to ensure his appearance before the Court. Where the accused comes forward with a clear, credible and unconditional undertaking to discharge the liability, the Court must exercise its discretion under Section 528 BNS to prevent unnecessary hardship."
The Court held that Section 528 BNS empowers the High Court to set aside or modify orders of subordinate courts where there is a manifest error or injustice. The petitioner’s categorical assurance to pay the entire amount within one week, coupled with the absence of any opposition from the complainant, satisfied the threshold for intervention. The Court further clarified that the trial court must verify actual payment before recalling the proclamation.
The Court rejected the notion that formal application for recall must precede any relief. It held that in exceptional circumstances, where the accused demonstrates genuine willingness to comply, the High Court may grant interim relief under its inherent powers under Section 528 BNS.
The Verdict
The petitioner succeeded. The Court set aside the proclamation order dated 29.12.2025, subject to the condition that the petitioner shall appear before the Chief Judicial Magistrate, Kullu, on 22.04.2026 and pay the entire cheque amount of Rs. 1,25,000 to the respondent. The petitioner shall also pay costs of Rs. 5,000 to the respondent. If the petitioner fails to appear or pay on 22.04.2026, the proclamation order shall automatically revive, and the police may arrest him under the original proclamation. All pending applications are disposed of.
What This Means For Similar Cases
Proclamation Orders Are Not Final Until Execution
- Practitioners may now argue that a proclamation under Section 84 BNS is a procedural mechanism, not a substantive penalty
- Courts may suspend or stay such orders upon credible undertaking of payment or compliance, even without formal recall application
- The burden shifts to the accused to demonstrate good faith and immediate capacity to comply
Section 528 BNS Grants Broad Remedial Discretion
- The High Court may intervene under Section 528 BNS even in unopposed matters where injustice is apparent
- Oral undertakings made before the High Court, if clear and unconditional, can form the basis for interim relief
- Courts must distinguish between evasion and inability - the latter may warrant leniency
Payment Triggers Procedural Reset
- In cheque dishonour cases, full payment before arrest or conviction remains a potent defence
- Proclamation orders may be suspended pending payment, avoiding arrest and criminal record
- Trial courts must verify payment before recalling proclamation - mere undertaking is insufficient
