The Bombay High Court has reaffirmed that procedural fairness in criminal proceedings demands a reasoned order before issuing a proclamation against an absconding accused. This judgment clarifies that mechanical reliance on police reports is insufficient under the Bharatiya Nagarik Suraksha Sanhita, 2023, and judicial discretion must be exercised with explicit justification.
Background & Facts
The Dispute
The petitioner, Shadab Sajjad Ahmad Shaikh, is an accused in a criminal matter pending before the Judicial Magistrate First Class (JMFC), Bhiwandi. On 16th March 2026, the JMFC issued a proclamation under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), declaring the petitioner an absconder. The petitioner challenges this order on the ground that it was passed without any reasoning or explanation.
Key Facts
- The petitioner was named in a cross-FIR filed at Nizampura Police Station, Bhiwandi, Thane
- He sustained injuries during an incident and was hospitalized for a considerable period
- The police submitted a report on 16th March 2026 recommending issuance of a proclamation under Section 84 BNSS
- The JMFC issued the proclamation on the same day without recording any reasons or evaluating the petitioner’s explanation
- The petitioner contends that his hospitalization and the existence of a cross-FIR render the proclamation unjustified
Procedural History
- Date of incident: Not specified in judgment
- Date of FIR filing: Not specified in judgment
- 16th March 2026: Police submitted report recommending proclamation under Section 84 BNSS
- 16th March 2026: JMFC issued proclamation without reasons
- 2556 of 2026: Writ petition filed before Bombay High Court challenging the proclamation
- 16th June 2026: Hearing before Justice Madhav J. Jamdar
Relief Sought
The petitioner sought quashing of the proclamation order dated 16th March 2026, on the ground that it was passed without reasoned justification, violating principles of natural justice and statutory mandate under Section 84 BNSS.
The Legal Issue
The central question was whether a proclamation under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023, may be issued by a Magistrate without recording any reasons, relying solely on the police report.
Arguments Presented
For the Petitioner
Ms. Payoshi Roy, learned Counsel, submitted that the issuance of a proclamation under Section 84 BNSS is a serious step that deprives an accused of the right to appear and defend themselves. She argued that the absence of any reasoning in the order violates the principles of natural justice and the requirement of judicial application of mind. She further contended that the petitioner’s hospitalization and the existence of a cross-FIR were material facts that warranted explanation before declaring him an absconder.
For the Respondent
Ms. S. M. Yadav, Additional Public Prosecutor, conceded that the order did not contain reasons but submitted that the police report dated 16th March 2026 contained sufficient grounds for the proclamation. She argued that the Magistrate is entitled to rely on the police report and that the reasons are implicit in the report, though not explicitly recorded in the order.
The Court's Analysis
The Court examined the statutory framework under Section 84 BNSS, which empowers a Magistrate to issue a proclamation if an accused person is evading arrest. The Court noted that while the section does not explicitly mandate a reasoned order, the principles of natural justice and the constitutional guarantee under Article 21 require that any order affecting personal liberty must be accompanied by reasons.
"The issuance of a proclamation under Section 84 BNSS is not a ministerial act. It is a judicial act that must reflect the application of mind by the Magistrate. A mechanical adoption of the police report without independent reasoning is legally unsustainable."
The Court distinguished this from administrative orders, emphasizing that judicial orders affecting rights must be transparent and justifiable. It held that even if the police report contains reasons, the Magistrate must articulate his own reasoning to demonstrate that he has considered the facts, the accused’s explanation (if any), and the proportionality of the measure.
The Court further observed that the petitioner’s hospitalization and the existence of a cross-FIR were relevant circumstances that could potentially explain his non-appearance. The failure to address these in the order rendered the proclamation arbitrary and violative of due process.
The Verdict
The writ petition is allowed. The proclamation order dated 16th March 2026 issued by the JMFC, Bhiwandi, is set aside. The learned JMFC shall pass a fresh order on the police report dated 16th March 2026, after recording specific reasons addressing the petitioner’s hospitalization, the cross-FIR, and any other material facts. The fresh order shall be passed within four weeks from the date of this judgment.
What This Means For Similar Cases
Reasoned Orders Are Non-Negotiable
- Practitioners must now insist on reasoned orders in all proclamation proceedings under Section 84 BNSS
- Any order lacking reasons is liable to be set aside on writ petition
- Courts must not rely on police reports as substitutes for judicial reasoning
Cross-FIRs and Medical Conditions Require Explicit Consideration
- Absconding allegations must be evaluated in light of plausible explanations such as hospitalization or reciprocal allegations
- Failure to address such factors renders the order vulnerable to challenge
- Advocates should file affidavits or medical records at the earliest to preempt unjust proclamations
Procedural Compliance Trumps Expediency
- Judicial officers must resist the temptation to issue proclamations as a routine measure
- The burden is on the Magistrate to justify why the accused is evading arrest, not on the accused to prove he is not
- This judgment reinforces that proclamation is a last resort, not a first step
