Allahabad High Court
RAVI ALIAS RAVINDRA SINGHversusSTATE OF U.P. AND ANOTHER
- Decided
Holding
The High Court held that the non‑bailable warrant was valid and the applicant's application under Section 528 BNSS to quash it was dismissed, with the order kept in abeyance for two months.
Summary
The applicant, Ravi alias Ravindra Singh, filed an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) seeking to quash a non‑bailable warrant (NBW) issued on 18‑Oct‑2024 in a trial for offences under Sections 307 and 504 IPC. The High Court examined the procedural history, noting that the applicant had been released on bail, failed to appear despite summons and exemption applications, and was subsequently declared a proclaimed offender with multiple NBWs, proclamations, and attachment orders. The Court held that the trial court correctly issued the NBW without a prior bailable warrant, as the applicant was bound by bail conditions and failed to appear, and that the BNSS provisions, particularly Section 356, govern the trial in absentia of proclaimed offenders. Consequently, the application under Section 528 was dismissed, the impugned NBW order was kept in abeyance for two months, and the trial court was directed to proceed in accordance with BNSS procedures. The judgment also emphasized compliance with various procedural timelines and the responsibilities of police, prosecutors, and judicial officers under the BNSS.
Issues considered
- The trial court erred in issuing a non‑bailable warrant without first issuing a bailable warrant?
- Whether the applicant is entitled to quash the NBW under Section 528 BNSS?
- Whether the procedural requirements of Section 356 BNSS for trial in absentia of a proclaimed offender apply?
- Whether bail bond forfeiture and attachment of property are required before quashing the NBW.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita — s. 199, 209, 215, 215(1)(a), 228, 355, 356, 528, 73, 75, 84, 85, 89, 92
- Bharatiya Nyaya Sanhita — s. 174-A, 209
- Code of Criminal Procedure, 1973 — s. 173, 190, 204, 205, 206-223, 209, 215(1)(a), 82, 83, 89, 90, 91, 92, 93
- Indian Penal Code — s. 307, 504
- Police Act, 1861 — s. 29
Subjects
- non‑bailable warrant
- absconding accused
- BNSS
- Section 528
- Section 356
- proclaimed offender
- bail bond forfeiture
- trial in absentia
- speedy trial
- procedural compliance
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 7980 of 2026
AFR
Reserved on : 20th March, 2026
Delivered on : 5th May, 2026
Judgment uploaded on : 5th May, 2026
Ravi Alias Ravindra Singh
…..Applicant(s)
Versus
State of U.P. and another
…..Opposite Party(s)
Counsel for Applicant(s) : Sanjay Singh
Counsel for Opposite Party(s) : G.A.
Court No. - 87
HON'BLE PRAVEEN KUMAR GIRI, J.
1. Heard Sri Sanjay Singh, learned counsel for the applicant and Sri
Pankaj Kumar, learned A.G.A. for the State.
2. Learned counsel for the applicant submits that the present
application has been filed under Section 528 BNSS, for the relief
mentioned in the prayer clause of the application. The relief sought in
the application is delineated below:
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be
pleased to allow this application under 528 B.N.S.S. and quash the Non Bailable
warrant issued against the applicant vide order dated 18.10.2024 passed by the
Additional Session Judge, Court No.10, Agra in Session Trial No. 109/2024, arising
out in case crime no.204 of 2020 for the offence under section 307, 504 IPC, Police
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Station Sainya, District Agra And/or pass such other and further order or direction
which this Hon'ble Court may deem fit and proper under the circumstances of the
case."
3. Learned counsel for the applicant submits that the O.P. No. 2 had
lodged an F.I.R. on 24.11.2020 against three accused persons, including
the present applicant, under Sections 307 and 504 IPC. He further
submits that, after completion of investigation, the I.O. submitted a
charge-sheet on 20.03.2021 against three accused persons, including the
present applicant, and thereafter, the learned trial court took cognizance
vide order dated 03.04.2021. Learned counsel for the applicant further
submits that the applicant was released on bail on 08.12.2021 by this
Court vide order dated 08.12.2021 passed in Crl. Misc. Bail Application
No. 38063 of 2021 (Ravi @ Ravindra vs. State of U.P.), on furnishing a
personal bond and two sureties each in the like amount to the satisfaction
of the court concerned. He further submits that, as the matter was triable
by the Sessions Court, the case was committed to the Sessions Court
vide order dated 08.01.2024. He further submits that, in this case,
charges were framed on 14.02.2024 in the presence of the accused-
applicant and the next date was fixed as 16.03.2024. He further submits
that the applicant was directed to be present before the trial court, either
personally or through his counsel, on 12.08.2024.
4. Learned counsel for the applicant further submits that the
applicant, due to personal difficulty, could not appear before the trial
court and, in the meantime, the trial court issued a non-bailable warrant
(NBW) against the applicant on 18.10.2024. He further submits that the
trial court issued the NBW directly against the applicant without issuing
first a bailable warrant against him, which is contrary to law. He further
submits that a non bailable warrant was issued on 18.10.2024 against the
applicant, and thereafter, a proclamation under Section 82 Cr.P.C. was
also issued on 03.11.2025 against him along with the NBW on
03.11.2025, and thereafter, on 24.12.2025, an order of NBW along with
orders under Sections 82 and 83 Cr.P.C. was also passed. He further
submits that, since the applicant had already been granted bail, the
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appropriate course available to the court was in terms of Section 89
Cr.P.C., which provides that when a person who is bound by a bail bond
to appear before the court and fails to appear, the court may issue a
warrant directing that such person be arrested and produced before the
court and thereafter in case of absconding, the proceeding of
proclamation, cancellation and confiscation of bail bond and sureties to
be done.
5. Learned counsel for the applicant further submits that, till date, no
notice has been issued for forfeiture of the bail bond as provided under
Section 446 Cr.P.C. He further submits that, after forfeiting the bail bond
and proceeding against the movable and immovable property in respect
of the bail bond, as well as proceeding against the property of the
sureties as pledged before the Court, proceedings under Section 83
Cr.P.C. should be initiated in terms of Section 356 of the BNSS.
6. Per contra, A.G.A. Sri Pankaj Kumar submits that the accused
applicant after release on bail is not participating in trial proceeding,
even charge has been framed in his presence and lingering the trial
proceedings. After framing of charge on several dates, applicant moved
exemption applications to exempt his personal appearance, some were
allowed by the learned trial court, applicant was very well aware with
the proceeding and he deliberately absconded, for which process was
issued as NBW on 12.08.2024, which was recalled on application of
applicant vide order dated 13.09.2024, thereafter, the applicant again
played hide and seek with the trial court and fled from the court
proceeding, though the date for evidence was fixed in presence of
applicant as 16.03.2024, therefore, the impugned order has been passed
in accordance with law.
7. Learned A.G.A. further submits that order sheet annexed as
Annexure No.4 to the affidavit, itself reveals that after framing of
charge, the applicant tried to delay the trial, though rest of the accused
persons appeared before the trial court, who may also be facing
hardship, due to dilatory tactics of the applicant.
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8. This Court after perusing the record finds that the applicant
accused was present before the trial court upto 02.08.2024 either
personally or he moved his exemption application from appearance in
person due to any personal difficulties. On 12.08.2024 the applicant
accused neither appeared before the trial court nor moved any exemption
application therefore, a Non-bailable warrant issued was against him by
the trial court. On 13.09.2024 the warrant was recalled on furnishing
personnel bond. The applicant accused appeared before the trial court up
to 05.10.2024 and on 18.10.2024, neither he appeared personally before
the trial court nor filed any exemption application therefore Non-
Bailable warrant was issued against him.
9. The applicant accused was continuously absent since 18.10.2024,
consequently, non bailable warrants were issued by the learned trial
court from 18.10.2024 upto 28.10.2025 for 29 dates. For the first time on
03.11.2025 an order declaring him a proclaimed offender under section
82 Cr.P.C. was issued by the trial court and date of appearance before the
court was fixed 14.11.2025, even so the applicant accused did not appear
for six dates in compliance with the order of proclamation, thereafter, on
24.12.2025, the order of attachment of property under section 83 of
Cr.P.C. was issued by the trial court. For two years, the process of Non-
bailable warrant issued under section 89 Cr.P.C. and order of
proclamation issued under section 82 of Cr.P.C., even then the accused
has not appeared and therefore, order of attachment of property of
applicant was issued under section 83 of Cr.P.C. and thereafter he filed
the instant application under 528 of BNSS on 17.02.2026 for quashing
the order of Non-bailable warrant passed against him by the trial court .
10. There are two sections i.e. Section 228 BNSS (corresponding Section
205 Cr.P.C.) and 355 BNSS (corresponding Section 317 Cr.P.C.) which provide
that the personal attendance of the accused may be dispensed with
during an enquiry or trial and in absence of the accused, the proceedings
may be conducted by his Advocate. For ready reference the provisions of
Sections 228 and 355 BNSS are delineated below :-
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Section 228. Magistrate may dispense with personal attendance of
accused.—(1) Whenever a Magistrate issues a summons, he may, if he
sees reason so to do, dispense with the personal attendance of the
accused and permit him to appear by his advocate.
(2) But the Magistrate inquiring into or trying the case may, in his
discretion, at any stage of the proceedings, direct the personal
attendance of the accused, and, if necessary, enforce such attendance in
the manner hereinbefore provided.
Section 355 BNSS. Provision for inquiries and trial being held in
absence of accused in certain cases.—(1) At any stage of an inquiry or
trial under this Sanhita, if the Judge or Magistrate is satisfied, for
reasons to be recorded, that the personal attendance of the accused
before the Court is not necessary in the interests of justice, or that the
accused persistently disturbs the proceedings in Court, the Judge or
Magistrate may, if the accused is represented by an advocate, dispense
with his attendance and proceed with such inquiry or trial in his absence,
and may, at any subsequent stage of the proceedings, direct the personal
attendance of such accused.
(2) If the accused in any such case is not represented by an advocate, or
if the Judge or Magistrate considers his personal attendance necessary,
he may, if he thinks fit and for reasons to be recorded by him, either
adjourn such inquiry or trial, or order that the case of such accused be
taken up or tried separately.
Explanation.—For the purpose of this section, personal attendance of the
accused includes attendance through audio-video electronic means.
11. Thus, as per Section 228 and 355 BNSS during an enquiry or trial,
the accused is required to appear before the court in person, unless an
exemption from personal appearance has been granted by a judicial
magistrate or a judge.
12. To ensure the attendance of the accused and the expeditious
conclusion of the trial, the court concerned shall adhere to the prescribed
statutory procedures without delay and refrain from adjourning
proceedings without sufficient cause.
13. There are four stages of criminal proceedings during which an
accused may abscond. Upon following the prescribed legal procedure,
the criminal proceedings shall be concluded. The stages and the
corresponding legal procedures are as follows :-
First- An accused absconds during investigation and police report/charge
sheet is submitted against him, declaring him a proclaimed offender.
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Second- An accused is not arrested during the investigation; either his
arrest is stayed by any court of law, or his arrest is not required and he
subsequently absconds after summoning and till the conclusion of the
trial.
Third- An accused is on bail during investigation, furnishing bail bond
and surety and he absconds subsequently after summoning and till the
conclusion of the trial.
Fourth- An accused absconds after the framing of charge while he was
released on bail/anticipatory bail, on furnishing his bail bond and surety.
Accordingly, the police, public officers, prosecutors and the court
should strictly adhere to the following procedures prescribed under the
BNSS and other relevant laws to ensure a speedy trial in cases involving
an absconding accused at any stage of criminal proceedings.
1. If an accused is absconding from the stage of investigation till
conclusion of trial and not on bail, the procedure to be followed
by the concerned police officer and court, to complete the
investigation, enquiry and trial as per law provided under the
provisions mentioned herein below:-
Chapter XIX Rule 215 U.P. Police Regulations – Absconded
Offenders. During investigation, an accused of cognizable and non-
bailable offence is either absconding or concealing himself from his
arrest, the procedure to be followed to complete investigation.
Section 75 BNSS (Corresponding Section 73 Cr.P.C.). Issuance of NBW in the
manner prescribed under Section 356 BNSS also.
Section 84 BNSS (Corresponding Section 82 Cr.P.C.) Proclamation for person
absconding in the manner prescribed under Section 356 also.
Section 209 of BNS (corresponding Section 174A of IPC). Initiate proceedings
to prosecute and punish for non-appearance in response to a
proclamation under section 84 BNSS as per provision of Section
215(1)(a) BNSS (corresponding section 195(1)(a) Cr.P.C.).
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Section 85 BNSS (Corresponding Section 83 Cr.P.C.) Attachment of property
of an absconding person after thirty days, if fails to appear as per
proclamation
Section 193(3) BNSS (corresponding Section 173(2) Cr.P.C.) Submit Police
Report in court on completion of investigation
Section 210 BNSS (corresponding Section 190 Cr.P.C.) Cognizance of the
offences be taken by the concerned court upon police report,
complaint and suo moto.
Section 227 BNSS (corresponding Section 204 of Cr.P.C.) Issue of process
(summons or warrant) against the accused
Appointment of an advocate/amicus curiae as per Section 356 BNSS
The Court concerned shall appoint amicus curiae to collect the records of the
case on behalf of the absconder accused to defend the accused at every stage
of enquiry or trial in absence of the accused
Section 230 BNSS (corresponding Section 207 Cr.P.C.). Supply copy of police
report and other documents to amicus curiae/appointed advocate as per
Section 356 BNSS for the absconded accused, copy of police report and
other documents.
Section 231 BNSS (corresponding Section 208 Cr.P.C.). Supply of copies of
statements and documents to amicus curiae for the absconded accused in
complaint cases triable by Court of Session
Section 232 BNSS (corresponding Section 209 Cr.P.C.). Commitment of case to
Court of Session when offence is triable exclusively by it, or
Section 362 BNSS (corresponding Section 323 Cr.P.C.) Procedure when after
commencement of inquiry or trial, Magistrate finds case should be
committed to the court of session for trial
Section 251 BNSS (corresponding Section 228 Cr.P.C.). Framing of charge in
Session Trial in presence of amicus curiae appointed for the absconded
accused
Section 263 BNSS (corresponding Section 240 Cr.P.C.) Framing of charge in trial
of warrant cases instituted on a police report in presence of amicus curiae
Section 269(1) BNSS (corresponding Section 246(1) Cr.P.C.) Procedure where
accused is not discharged i.e. framing of charge in trial of warrant cases
instituted on complaint or suo moto by the competent court in presence of
amicus curiae.
Section 346 BNSS (corresponding section 309 Cr.P.C) In every inquiry or trial, the
proceedings shall be continued from day-to-day basis until all the witnesses in
attendance have been examined and in case of rape or gang rape, the inquiry or
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trial shall be completed within a period of two months from the date of filing of the
charge-sheet.
Section 335 of BNSS (corresponding to section 299 of the Cr.P.C.) Record of
evidence in absence of accused after a gap of 90 days as prescribed under
section 356 of BNSS .
Section 356 of BNSS. (New Section as no provision in Cr.P.C.) Inquiry, trial or
judgment in absentia of proclaimed offender.
A permanent warrant shall be issued against the convicted person.
Every month, the effort of the police to execute the conviction order or
judgement shall be monitored by the trial court until it is executed, as per
Section 72(2) BNSS. The matter shall also be monitored by the members
of the District Monitoring Cell, in their monthly meetings. Additionally,
the court shall obtain a written progress report from the concerned head
of the police department of the district or police commissionerate,
regarding execution of NBW in respect of the convicted person.
2. If an accused is on bail during investigation or his arrest has
been stayed or his arrest was not required during investigation
and is absconding after summoning. The procedure to be
followed by the Judicial Officers to conclude trial as provided
under the provisions mentioned hereinbelow :-
Section 193(3) BNSS (corresponding Section 173(2) Cr.P.C.) Submission of
Police Report in court on completion of investigation
Section 210 BNSS (corresponding Section 190 Cr.P.C.) Cognizance of the
offences be taken by the concerned court upon police report,
complaint or suo moto.
Section 227 BNSS (corresponding Section 204 of Cr.P.C.) Issue of process
(summons or warrant) against the accused.
Section 92 of BNSS (corresponding Section 89 of Cr.P.C.) In case of absconding,
arrest the accused on breach of bond, issue NBW against the accused or
bail bond for his appearance in the court, twice at the interval of 30 days as
per Section 356 BNSS to arrest him on breach of bond.
Section 84 of BNSS (corresponding Section 82 of Cr.P.C.) Proclamation for person
absconding in the manner prescribed under Section 356 also
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Section 209 BNS (corresponding Section 174A IPC)- Initiate proceedings to
prosecute and punish for non-appearance in response to a
proclamation under section 84 of Bharatiya Nagarik Suraksha
Sanhita, 2023 as per provision of Section 215(1)(a) BNSS (corresponding
Section 195(1)(a) Cr.P.C.)
Section 485 BNSS (corresponding Section 441 Cr.P.C.) Bond of accused and
sureties.
Section 486 BNSS (corresponding Section 441-A of Cr.P.C.) Declaration by
sureties.
Section 491 BNSS (corresponding Section 446 of Cr.P.C.) Procedure when bond
has been forfeited.
Section 492 BNSS (corresponding Section 446-A of Cr.P.C.)-Cancellation of bond
and bail bond
Section 85 BNSS (corresponding Section 83 of Cr.P.C.) Attachment of property of
person absconding.
Appointment of amicus curiae as provided under Section 356 BNSS
The Court concerned shall appoint amicus curiae to collect records of
the case on behalf of the proclaimed offender to defend the absconded
accused at every stage of enquiry or trial in absence of the accused.
Section 230 BNSS (corresponding Section 207 Cr.P.C.). Supply copy of police
report and other documents to amicus curiae/appointed advocate as per
Section 356 BNSS for the absconded accused, copy of police report and
other documents.
Section 232 BNSS (corresponding Section 209 Cr.P.C.). Commitment of case to
Court of Session when offence is triable exclusively by it, or
Section 362 BNSS (corresponding Section 323 Cr.P.C.) Procedure when after
commencement of inquiry or trial, Magistrate finds case should be
committed to court of session for trial
Section 251 BNSS (corresponding Section 228 Cr.P.C.). Framing of charge in
Session Trial in presence of amicus curiae appointed for the absconded
accused
Section 263 BNSS (corresponding Section 240 Cr.P.C.) Framing of charge in trial
of warrant cases instituted on a police report in presence of amicus curiae
Section 269(1) BNSS (corresponding Section 246(1) Cr.P.C.) Procedure where
accused is not discharged i.e. framing of charge in trial of warrant cases
instituted on complaint or suo moto by the competent court in presence of
amicus curiae.
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Section 346 BNSS (corresponding section 309 Cr.P.C) In every inquiry or trial
the proceedings shall be continued from day to day basis until all the witnesses in
attendance have been examined and in case of rape or gang rape, the inquiry or
trial shall be completed within a period of two months from the date of filing of the
charge sheet.
Section 335 of BNSS (corresponding to section 299 of the Cr.P.C.) Record of
evidence in absence of accused after a gap of 90 days from the date of
framing of charge as prescribed under section 356 of BNSS.
Section 356 of BNSS. (New Section as no provision in Cr.P.C.) Inquiry, trial or
judgment in absentia of proclaimed offender.
A permanent warrant shall be issued against the convicted person.
Every month, the effort of the police to execute the conviction order or
judgement shall be monitored by the trial court until it is executed, as per
Section 72(2) BNSS. The matter shall also be monitored by the members
of the District Monitoring Cell, in their monthly meetings. Additionally,
the court shall obtain a written progress report from the concerned head
of the police department of the district or police commissionerate,
regarding execution of NBW in respect of the convicted person.
3. An accused is on bail and absconds at the stage of framing of
charge. The procedure to be followed to complete trial as provided
under sections:-
Section 92 of BNSS (corresponding Section 89 of Cr.P.C.) Arrest on breach of bond
or bail bond for appearance
Section 84 of BNSS (corresponding Section 82 of Cr.P.C.) Proclamation for person
absconding
Section 209 BNS (corresponding Section 174A IPC)- Initiate proceedings to
prosecute and punish for non-appearance in response to a
proclamation under section 84 of Bharatiya Nagarik Suraksha
Sanhita, 2023 as per provision of Section 215(1)(a) BNSS (corresponding
Section 195(1)(a) Cr.P.C.)
Section 485 BNSS (corresponding Section 441 Cr.P.C.) Bond of accused and
sureties.
Section 486 BNSS (corresponding Section 441-A of Cr.P.C.) Declaration by
sureties.
Section 491 BNSS (corresponding Section 446 of Cr.P.C.) Procedure when bond
has been forfeited.
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Section 492 BNSS (corresponding Section 446-A of Cr.P.C.)-Cancellation of bond
and bail bond
Section 85 BNSS (corresponding Section 83 of Cr.P.C.) Attachment of property of
person absconding.
Appointment of amicus curiae as prescribed under section 356 of BNSS
The Court concerned shall appoint amicus curiae/advocate to collect
the record of the case on behalf of the proclaimed offender to defend the
absconded accused in his absence at every stage of the court
proceedings.
Section 346 BNSS (corresponding section 309 Cr.P.C) In every inquiry or trial
the proceedings shall be continued from day to day basis until all the witnesses in
attendance have been examined and in case of rape or gang rape, the inquiry or
trial shall be completed within a period of two months from the date of filing of the
charge-sheet.
Section 335 of BNSS (corresponding to section 299 of the Cr.P.C.) Record of
evidence in absence of accused.
Section 356 of BNSS. (New Section as no provision in Cr.P.C.) Inquiry, trial or
judgment in absentia of proclaimed offender.
A permanent warrant shall be issued against the convicted person.
Every month, the effort of the police to execute the conviction order or
judgement shall be monitored by the trial court until it is executed, as per
Section 72(2) BNSS. The matter shall also be monitored by the members
of the District Monitoring Cell, in their monthly meetings. Additionally,
the court shall obtain a written progress report from the concerned head
of the police department of the district or police commissionerate,
regarding execution of NBW in respect of the convicted person.
14. The procedure, for the execution of summons, warrant of arrest,
proclamation and attachments to compel the appearance of an accused
shall be followed by the Court and the police as provided in Chapter VI
(Sections 63 to 93) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
15. If the service of a summons on an individual (accused) shall be
performed in the manner provided under Sections 64, 66, 67, 68, 69 and
70 of BNSS i.e. the summons shall be served by a police officer on the
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accused personally,if practicable;otherwise,it may be served by leaving
one of the duplicates for him with an adult member of his family
residing with him.
16. Regarding an absconding accused, the procedures for completing
the investigation, inquiry and trial, even in the absence of the accused,
has been mentioned in the relevant paragraphs of this judgement, as
provided under the Bharatiya Nagarik Suraksha Sanhita, 2023 etc.
17. If an accused person absconds or conceals himself from arrest
during an investigation involving a cognizable and non-bailable offence,
the investigation shall be completed in accordance with Rule 215 and
216 of Chapter XIX of the U.P. Police Regulations. The investigating
Officer shall apply to the concerned court for a warrant of arrest, a
proclamation and an order of attachment. Following this, the officer shall
complete the investigation and submit the police report to the court.
Rules 215 and 216 of the U.P. Police Regulation are delineated below for
ready reference :-
“Rule 215 of U.P. Police Regulations- Whenever an officer-in-
charge of a police station, or an officer making an investigation
under Chapter XII of the Code of Criminal Procedure, 1973 (2
of 1974) is satisfied that a person whom he is empowered to
arrest under Section 41 (1) of the Code has absconded or is
concealing himself so that he cannot be arrested, he must
apply to the Court having jurisdiction, successively, for a
warrant of arrest, a proclamation under Section 82 of the
Code of Criminal Procedure, 1973 (2 of 1974) and an order of
attachment under Section 83/84. All these applications should
be made as early as may be desirable in the particular case;
they need not be delayed for the conclusion of an investigation;
and a warrant of arrest, a proclamation and an order of
attachment may all legally be issued one after the other in their
proper order on the same day. The officer who asks a Court to
issue a proclamation must be prepared to produce legal
evidence to prove that the person whose arrest desired has
absconded, and must not accept the mere statement or report of
an officer who has no personal knowledge of the absconding to
satisfy the Court. When an order of attachment is issued he
must satisfy himself that it is efficiently executed.
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Rule 216 of U.P. Police Regulations- Any person for whose
appearance a proclamation has been issued under Section 82 of the
Code of Criminal Procedure, 1973 (2 of 1974) is an absconded
offender within the meaning of this Chapter.”
18. If a court concerned is satisfied that, after proved service of
summons upon an accused, the accused has not appeared before the
court, Section 73 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(corresponding to section 71 Cr.P.C.) empowers the court to direct that
security (bail) be taken from the person against whom a warrant of arrest
is issued, with the objective of reducing unnecessary detention while
issuing such a warrant, the court may endorse it with a direction that if
the person executes a bond with sufficient sureties, he shall be released
from custody.
19. The provisions of section 73 of BNSS (corresponding section 71
Cr.P.C.) is delineated below:-
“Section 73 of BNSS . Power to direct security to be taken.—(1)
Any Court issuing a warrant for the arrest of any person may in its
discretion direct by endorsement on the warrant that, if such
person executes a bail bond with sufficient sureties for his
attendance before the Court at a specified time and thereafter until
otherwise directed by the Court, the officer to whom the warrant is
directed shall take such security and shall release such person
from custody.
(2) The endorsement shall state—
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the
warrant is issued, are to be respectively bound;
(c) the time at which he is to attend before the Court.
(3) Whenever security is taken under this section, the officer to
whom the warrant is directed shall forward the bond to the Court.”
20. In case of any person/accused of a non-bailable offence who is
evading arrest, Section 75 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (corresponding section 73 of Cr.P.C.) empowers a Chief Judicial
Magistrate or a Magistrate of the First Class to direct a warrant to any
person, within his local jurisdiction for the arrest of an escaped convict,
a proclaimed offender, or any person accused of a non-bailable
offence who is evading arrest. The provisions of section 75 of BNSS
(corresponding section 73 of Cr.P.C.) are delineated below:
Section 75 of BNSS
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“Section 75 of BNSS. Warrant may be directed to any person. -
(1) The Chief Judicial Magistrate or a Magistrate of the first class
may direct a warrant to any person within his local jurisdiction for
the arrest of any escaped convict, proclaimed offender or of any
person who is accused of a non-bailable offence and is evading
arrest.
(2) Such person shall acknowledge in writing the receipt of the
warrant, and shall execute it if the person for whose arrest it was
issued, is in, or enters on, any land or other property under his
charge.
(3) When the person against whom such warrant is issued is
arrested, he shall be made over with the warrant to the nearest
police officer, who shall cause him to be taken before a Magistrate
having jurisdiction in the case, unless security is taken under
section 73.’’
21. If an accused person is hiding to avoid the execution of a warrant,
issued twice 30 days intervals as provided under Section 356 BNSS,
Section 84 of the BNSS (corresponding section 82 of Cr.P.C.), empowers the
courts to issue a written proclamation against such person. The
proclamation requires such person to appear at a specified place and time
(within 30 days from the date of publication of such proclamation).
Thus, as per Section 84 of the BNSS, if the Court has reason to believe
that a person is absconding to avoid execution of a warrant, a
proclamation may be issued, but the proclamation shall be published as
per Section 84 BNSS as well as Section 356 BNSS. If the absconded
person fails to appear within 30 days, at the specific place and time, the
Court can declare him a “proclaimed offender”. Failure to appear can
also lead to the accused to criminal prosecution under Section 209 of the
BNS (corresponding section 174-A IPC). In cases where the accused was
released on bail, failure to appear may result in a show cause notice,
forfeiture of the bail bond and surety and its recovery under Section 491
BNSS (corresponding Section 446 Cr.P.C.), Section 492 BNSS (corresponding
Section 446A Cr.P.C.) and furthermore, the court may order the attachment
of property of the absconded accused under section 85 BNSS
(corresponding Section 83 Cr.P.C.). The provisions of Section 84 of the
BNSS (corresponding to section 82 Cr.P.C.) are delineated below:-
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“Section 84 of BNSS:- Proclamation for person absconding.— (1) If
any Court has reason to believe (whether after taking evidence or
not) that any person against whom a warrant has been issued by it
has absconded or is concealing himself so that such warrant cannot
be executed, such Court may publish a written proclamation
requiring him to appear at a specified place and at a specified time
not less than thirty days from the date of publishing such
proclamation.
(2) The proclamation shall be published as follows:—
(i) (a) it shall be publicly read in some conspicuous place of the town
or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or
homestead in which such person ordinarily resides or to some
conspicuous place of such town or village; (c) a copy thereof shall be
affixed to some conspicuous part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the
proclamation to be published in a daily newspaper circulating in the
place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to
the effect that the proclamation was duly published on a specified
day, in the manner specified in clause (i) of sub-section (2), shall be
conclusive evidence that the requirements of this section have been
complied with, and that the proclamation was published on such day.
(4) Where a proclamation published under sub-section (1) is in
respect of a person accused of an offence which is made punishable
with imprisonment of ten years or more, or imprisonment for life or
with death under the Bharatiya Nyaya Sanhita, 2023 or under any
other law for the time being in force, and such person fails to appear
at the specified place and time required by the proclamation, the
Court may, after making such inquiry as it thinks fit, pronounce him a
proclaimed offender and make a declaration to that effect
(5) The provisions of sub-sections (2) and (3) shall apply to a
declaration made by the Court under sub-section (4) as they apply to
the proclamation published under sub-section (1).”
22. If a proclaimed offender does not appear in court on the date and
time in compliance of order of Section 84 BNSS (corresponding Section
82 Cr.P.C.), then before cancellation, forfeiture of the bail bond and
sureties which was furnished before release from judicial custody, a
fresh separate criminal case can be initiated as per the provisions of
Section 215(1) of BNSS, under Section 209 BNS (corresponding Section
174A IPC) against the absconded accused for violation of order of a
court passed under Section 84 BNSS (corresponding Section 82 Cr.P.C.),
thus, Section 209 of the Bharatiya Nyaya Sanhita (BNS), 2023
(corresponding section 174-A IPC) penalizes non-appearance in response to a
proclamation issued by a court under Section 84 of the Bharatiya
Nagarik Suraksha Sanhita (BNSS). It applies to individual who fails to
appear at a specified place and time after being proclaimed offenders.
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For offence of Section 209 of the BNS (corresponding section 174-A IPC)
provision of cognizance has been mentioned under section 215(1)(a) of
the BNSS. The provisions of Section 209 of the Bharatiya Nyaya
Sanhita, 2023 are delineated below:-
“Section 209 BNS:- Non-appearance in response to a
proclamation under section 84 of Bharatiya Nagarik Suraksha
Sanhita, 2023.—Whoever fails to appear at the specified place and
the specified time as required by a proclamation published under
sub-section (1) of section 84 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, shall be punished with imprisonment for a term
which may extend to three years, or with fine, or with both, or with
community service, and where a declaration has been made under
sub-section (4) of that section pronouncing him as a proclaimed
offender, he shall be punished with imprisonment for a term which
may extend to seven years and shall also be liable to fine.
23. For offfence of section 209 of the B.N.S, provision of cognizance
has been mentioned under section 215(1)(a) of the BNSS. Section
215(1)(a) of the BNSS (corresponding section 195(1)(a) of Cr.P.C.) restricts
courts from taking cognizance of specific offences, including contempt
of lawful authority, offences against public justice, and document-related
crimes, without a formal written complaint from the concerned public
servant. This provision ensures orderly administration of justice by
requiring written authorization for prosecution. Section 215(1)(a) of the
BNSS covers offences under Sections 206 to 223 of the Bharatiya Nyaya
Sanhita (BNS), 2023, excluding Section 209 BNS. The provisions of
Section 215(1)(a) of the BNSS are delineated below:-
Section 215(1)(a) of BNSS
Section 215. Prosecution for contempt of lawful authority of
public servants, for offences against public justice and for
offences relating to documents given in evidence.--(1) No Court
shall take cognizance—
(a)(i) of any offence punishable under sections 206 to 223 (both
inclusive but excluding section 209) of the Bharatiya Nyaya
Sanhita, 2023; or
(ii) of any abetment of, or attempt to commit, such offence; or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate or of some other public servant who
is authorised by the concerned public servant so to do;
Section 195 (1)(a) of Cr.P.C
Section 195. Prosecution for contempt of lawful authority of
public servants, for offences against public justice and for
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offences relating to documents given in evidence.—(1) No Court
shall take cognizance—
(a) (i) of any offence punishable under sections 172 to 188 (both
inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or (
iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant concerned
or of some other public servant to whom he is administratively
subordinate;
24. Under section 195(1)(a) of Cr.P.C. there was no such word
‘Excluding’ section 174-A of IPC while under section 215 of BNSS the
word ‘Excluding’, Section 209 of BNS has been mentioned.
25. The ‘Exclusion’ Explained: Section 215(a)(i) covers offences
under sections 206 to 223 of BNS but explicitly excludes Section 209
BNS. Section 209 BNS deals with non-appearance in response to the
order of proclamation passed by a court of law rather than a public
servant. This means that while other offences require a formal written
complaint, but prosecution for non-appearance (209 BNS) can proceed
through standard police procedures without this specific limitation. Thus,
the term ‘Exclusion’ explains that there is no restriction on taking
cognizance, if there is no written complaint to initiate criminal
proceedings against the proclaimed offender and thus an FIR can be
registered and police report can be submitted in the court for taking
cognizance or suo moto cognizance can be taken by the court who
passed the order of proclamation under section 84 of BNSS.
26. If an accused person absconds and he has been declared a
proclaimed offender and thereafter, as per section 85 of BNSS, the court
issuing a proclamation under section 84 (corresponding section 82 CrPC) may
order the attachment of any property (movable or immovable) belonging
to the proclaimed person. Attachment may take place within the district
or, if endorsed by the District Magistrate, outside the district. If the
property is perishable, the court may order its immediate sale to avoid
spoilage, with proceeds held by the court. Individuals other than the
accused can file claims or objections to the attached property within 6
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months. The provisions of Section 85 of the BNSS (corresponding section 83
of Cr.P.C.) are delineated below:-
Section 85 of BNSS
Section 85 of BNSS. Attachment of property of person
absconding.—(1) The Court issuing a proclamation under section
84 may, for reasons to be recorded in writing, at any time after the
issue of the proclamation, order the attachment of any property,
movable or immovable, or both, belonging to the proclaimed
person: Provided that where at the time of the issue of the
proclamation the Court is satisfied, by affidavit or otherwise, that
the person in relation to whom the proclamation is to be issued,—
(a) is about to dispose of the whole or any part of his property; or
(b) is about to remove the whole or any part of his property from
the local jurisdiction of the Court, it may order the attachment of
property simultaneously with the issue of the proclamation.
(2) Such order shall authorise the attachment of any property
belonging to such person within the district in which it is made;
and it shall authorise the attachment of any property belonging to
such person without such district when endorsed by the District
Magistrate within whose district such property is situate.
(3) If the property ordered to be attached is a debt or other
movable property, the attachment under this section shall be made
—
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property
to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the
attachment under this section shall, in the case of land paying
revenue to the State Government, be made through the Collector of
the district in which the land is situate, and in all other case- (a) by
taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent on
delivery of property to the proclaimed person or to any one on his
behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or
is of a perishable nature, the Court may, if it thinks it expedient,
order immediate sale thereof, and in such case the proceeds of the
sale shall abide the order of the Court.
(6) The powers, duties and liabilities of a receiver appointed under
this section shall be the same as those of a receiver appointed
under the Code of Civil Procedure, 1908 (5 of 1908).
27. If an accused of non-bailable and cognizable offence is evading
arrest, and he is declared a proclaimed offender and his property is
attached, the investigating officer is required to submit the final police
report (charge-sheet) under Section 193(3) of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (corresponding to section 173(2) CrPC) to the court of
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Magistrate without unnecessary delay, including through electronic
communication.
28. Further, the Investigating Officer is obligated to inform the
informant or the victim about the progress of the investigation within
ninety days as per Section 193(3) of the BNSS while same was not
mentioned under the Code of Criminal Procedure, 1973 . The provisions
of section 193(3) of BNSS (corresponding to section 173(2) Cr.P.C. ) are
delineated below:-
Section 193(3) BNSS
“Section 193(3) of BNSS (i) As soon as the investigation is
completed, the officer in charge of the police station shall forward,
including through electronic communication to a Magistrate empowered
to take cognizance of the offence on a police report, a report in the form
as the State Government may, by rules provide, stating—
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the
circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by
whom;
(e) whether the accused has been arrested;
(f) whether the accused has been released on his bond or bail bond;
(g) whether the accused has been forwarded in custody under section
190;
(h) whether the report of medical examination of the woman has been
attached where investigation relates to an offence under sections 64, 65,
66, 67, 68, 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023;
(ii) the police officer shall, within a period of ninety days, inform the
progress of the investigation by any means including through
electronic communication to the informant or the victim; (New
provision as this provision was not in Cr.P.C.)
(iii) the officer shall also communicate, in such manner as the State
Government may, by rules, provide, the action taken by him, to the
person, if any, by whom the information relating to the commission of the
offence was first given’’
Section 173(2) of Cr.P.C.
“Section 173(2) of Cr.P.C. (2) (i) As soon as it is completed, the
officer in charge of the police station shall forward to a Magistrate
empowered to take cognizance of the offence on a police report, a report
in the form prescribed by the State Government, stating—
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the
circumstances of the case;
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(d) whether any offence appears to have been committed and, if so, by
whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or
without sureties;
(g) whether he has been forwarded in custody under section 170.
(h) whether the report of medical examination of the woman has been
attached where investigation relates to an offence under [ sections 376,
376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of
the Indian Penal Code (45 of 1860)].]
(ii) The officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him, to the
person, if any, by whom the information relating to the commission of the
offence was first given.’’
29. As per Section 210 of the Bharatiya Nagarik Suraksha Sanhita,
2023, a Judicial Magistrate/Special Court may take cognizance in three
ways: upon receiving a complaint of facts constituting an offence; upon
a police report, or upon the Magistrate’s own knowledge.
30. This provision signifies the formal commencement of criminal
proceedings, wherein the Magistrate applies judicial mind to the facts to
determine whether there is sufficient ground to proceed. The provisions
of section 210 of BNSS (corresponding Section 190 Cr.P.C.) are delineated
below:-
Section 210 of BNSS. Cognizance of offences by Magistrate.—
(1) Subject to the provisions of this Chapter, any Magistrate of the
first class, and any Magistrate of the second class specially
empowered in this behalf under sub-section
(2), may take cognizance of any offence—
(a) upon receiving a complaint of facts, including any complaint
filed by a person authorised under any special law, which
constitutes such offence;
(b) upon a police report (submitted in any mode including
electronic mode) of such facts; 82
(c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of
the second class to take cognizance under sub-section (1) of such
offences as are within his competence to inquire into or try.
31. As per Section 227 of the BNSS, if the Magistrate finds sufficient
grounds to proceed, he may issue a summon (for summons cases) or a
warrant/summon (for warrant cases) to bring the accused before the
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Court. Summons or warrants can be issued through electronic means
(e.g., digital message).
32. If an accused has been released on bail and has furnished a bail
bond with sureties under Section 485 BNSS (corresponding Section 441
Cr.P.C.) and 486 BNSS (corresponding Section 441A Cr.P.C.), the Court
concerned, after taking cognizance of the offence, may issue summons
or non-bailable warrant (NBW) under Section 227 of the BNSS. The
provisions of Section 227 BNSS (corresponding Section 204 Cr.P.C.) are
delineated below for ready reference:-
“Section 227 BNSS. Issue of process.— (1) If in the opinion of a
Magistrate taking cognizance of an offence there is sufficient
ground for proceeding, and the case appears to be—
(a) a summons-case, he shall issue summons to the accused
for his attendance; or
(b) a warrant-case, he may issue a warrant, or, if he thinks
fit, a summons, for causing the accused to be brought or to appear
at a certain time before such Magistrate or (if he has no jurisdiction
himself) some other Magistrate having jurisdiction:
Provided that summons or warrants may also be issued through
electronic means.
(2) No summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses has
been filed.
(3) In a proceeding instituted upon a complaint made in writing,
every summons or warrant issued under sub-section (1) shall be
accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees
or other fees are payable, no process shall be issued until the fees
are paid and, if such fees are not paid within a reasonable time, the
Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions
of section 90”
33. The summons and warrants of arrest shall be issued, served as
well as executed as per provision of Chapter VI of BNSS from Section
63 to 93 of the BNSS. The relevant provisions for ready reference
delineated below:
Section 64 BNSS (corresponding Section 62 Cr.P.C.)- Service of
summons to be served personally to the person summoned.
Section 66 BNSS (corresponding Section 64 Cr.P.C.)- Where the person
summoned cannot be found, the summons may be served on some
adult member of his family residing with him.
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Section 67 BNSS (corresponding Section 65 Cr.P.C.)- If service of
summons cannot be effected as provided in Sections 64 and 66
BNSS, the serving officer shall affix one of the duplicates of
summons to some conspicuous part of the house or homestead in
which the person summoned ordinarily resides.
Section 90 BNSS (corresponding Section 87 Cr.P.C.)- After summons if
a court concerned has reason to believe that the accused is either
absconding or not obeying the summons or not appearing before
court after duly service of summons.
Section 91 BNSS (corresponding Section 88 Cr.P.C.)-Power to take
bond or bail bond for appearance
Section 92 BNSS (corresponding Section 89 Cr.P.C.)-Arrest on breach of
bond or bail bond for appearance
34. Section 92 of the BNSS (corresponding section 89 of Cr.P.C.)
empowers a Court to issue a warrant for the arrest of any person who
fails to appear after executing a bond (with or without sureties) to appear
before that Court. This ensures compliance with attendance orders in
criminal proceedings.
35. The section applies when a person is bound by a bond (under the
Cr.P.C.) to appear in Court but fails to do so. The Presiding Officer of the
Court can issue a warrant directing the arrest of such a person, and upon
arrest, the individual is brought before the Court. It is a procedural tool
designed to compel the attendance of individuals who have previously
given undertaking to appear before the Court. The provisions of Section
92 of the BNSS (corresponding section 89 of Cr.P.C.) are delineated below:-
Section 92. BNSS:- Arrest on breach of bond or bail bond for
appearance - When any person who is bound by any bond or bail
bond taken under this Sanhita to appear before a Court, does not
appear, the officer presiding in such Court may issue a warrant
directing that such person be arrested and produced before him.
36. If a person/accused is hiding to avoid execution of a warrant then
Section 84 of the BNSS (corresponding section 82 of Cr.P.C.), empowers
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courts to issue a written proclamation against an absconding person for
whom a warrant has been issued. It requires such person to appear at a
specified place and time (at least 30 days from the date of publication).
37. Thus, as per Section 84 of the BNSS, if the Court has reason to
believe (with or without evidence) that a person is hiding to avoid
execution of a warrant, a proclamation may be issued. The proclamation
is read publicly in the town or village where the person resides, affixed
to his house, and displayed at the courthouse. If the person fails to
appear within 30 days at the specified place and time, the Court can
declare him a “proclaimed offender”. Failure to appear within 30 days
can lead to an accused to criminal prosecution under Section 209 of the
BNS (corresponding section 174-A IPC), to show cause and forfeiture of bail
bond and surety and its recovery under Section 491 BNSS (corresponding
Section 446 Cr.P.C.), Section 492 BNSS (corresponding Section 446A Cr.P.C.)
and attachment of property of the absconded accused under section 85
BNSS (corresponding Section 83 Cr.P.C.).
38. If a person is in custody in a criminal case and released on bail
after furnishing a bond and sureties to appear before the court, then
Section 485 of the BNSS (corresponding to section 441 of Cr.P.C.) mandates
that, before releasing any person on bail, he must execute a bond (with
or without sureties) guaranteeing his attendance at court on the date of
hearings and continue to appear until instructed otherwise. The bond can
also bind the accused to appear in higher courts (High Court, Court of
Session) to answer the charges. The provisions of Section 485 of the
BNSS (corresponding section 441 of Cr.P.C.) are delineated below:-
Section 485 of BNSS:- Bond of accused and sureties.— (1) Before
any person is released on bond or bail bond, a bond for such sum of
money as the police officer or Court, as the case may be, thinks
sufficient shall be executed by such person, and, when he is
released on bond or bail bond, by one or more sufficient sureties
conditioned that such person shall attend at the time and place
mentioned in the bond, and shall continue so to attend until
otherwise directed by the police officer or Court, as the case may
be.
(2) Where any condition is imposed for the release of any person on
bail, the bond or bail bond shall also contain that condition.
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(3) If the case so requires, the bond or bail bond shall also bind the
person released on bail to appear when called upon at the High
Court, Court of Session or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or
sufficient, the Court may accept affidavits in proof of the facts
contained therein relating to the sufficiency or fitness of the
sureties, or, if it considers necessary, may either hold an enquiry
itself or cause an inquiry to be made by a Magistrate subordinate to
the Court, as to such sufficiency or fitness.
39. Section 485 (Bond of accused and sureties): Mandates that before
a person is released, he must execute a bond for a sum of money the
court/police officer deems sufficient, if the court requires, this must also
be executed by sufficient sureties to ensure the accused attends court.
40. Section 2(1) BNSS. Definitions the specific definitions for the
terms, “bail, bail bond and bond.”
Section 2(1) (b) “bail” means release of a person accused of or
suspected of commission of an offence from the custody of law upon
certain conditions imposed by an officer or Court on execution by such
person of a bond or a bail bond
Section 2(1)(d) “bail bond” means an undertaking for release with
surety;
Section 2(1)(e) “bond” means a personal bond or an undertaking for
release without surety;
41. For surety, Section 486 of the BNSS (corresponding section 441-A of
Cr.P.C.) mandates that any person acting as a surety for an accused
person’s bail must declare to the Court the number of other persons for
whom he has stood surety along with relevant details. This provision
enhances accountability and allows the Court to verify the surety’s
capacity.
42. The surety must provide details of his current and past bail
commitments to the Court. This ensures transparency and prevents
individuals from over-extending their obligations as sureties, thereby
ensuring that they are capable of guaranteeing the accused’s appearance.
This applies to the process of granting bail and setting bond conditions.
The provisions of Section 486 of the BNSS (corresponding section 441-A of
Cr.P.C.) are delineated below:-
Section 486 BNSS:- Declaration by sureties.—Every person
standing surety to an accused person for his release on bail, shall
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make a declaration before the Court as to the number of persons to
whom he has stood surety including the accused, giving therein all
the relevant particulars.
43. For forfeiture of a bond, Section 491 of the BNSS (corresponding
section 446 of Cr.P.C.), outlines the procedure when a bail or surety bond is
forfeited. It enables courts to demand payment of the penalty, recover it
as a fine, or imprison the surety, if the bond conditions are broken/not
complied with.
44. As per section 491 of BNSS, when a bond for appearance or
production of property is proven to be forfeited, the court must record
the grounds of proof. The court may call upon any person bound by such
bond (or his surety) to pay the penalty amount or show cause why it
should not be paid. If the penalty is not paid and sufficient cause is not
shown, the court can proceed to recover the amount as if it were a fine
imposed by it. If the penalty cannot be paid and recovery is not possible,
the person can be committed to civil prison for up to six months. The
court, after recording reasons, has the power to remit (reduce or waive)
any portion of the penalty. If the surety dies before the bond is forfeited,
their estate is discharged from liability. The provisions of Section 491
BNSS are delineated below for reference :-
Section 491. BNSS Procedure when bond has been forfeited.— (1)
Where, — (a) a bond under this Sanhita is for appearance, or for
production of property, before a Court and it is proved to the
satisfaction of that Court, or of any Court to which the case has
subsequently been transferred, that the bond has been forfeited; or
(b) in respect of any other bond under this Sanhita, it is proved to
the satisfaction of the Court by which the bond was taken, or of
any Court to which the case has subsequently been transferred, or
of the Court of any Magistrate of the first class, that the bond has
been forfeited,56 the Court shall record the grounds of such proof,
and may call upon any person bound by such bond to pay the
penalty thereof or to show cause why it should not be paid.
Explanation.—A condition in a bond for appearance, or for
production of property, before a Court shall be construed as
including a condition for appearance, or as the case may be, for
production of property, before any Court to which the case may
subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the
Court may proceed to recover the same as if such penalty were a
fine imposed by it under this Sanhita:
Provided that where such penalty is not paid and cannot be
recovered in the manner aforesaid, the person so bound as surety
shall be liable, by order of the Court ordering the recovery of the
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penalty, to imprisonment in civil jail for a term which may extend
to six months.
(3) The Court may, after recording its reasons for doing so, remit
any portion of the penalty mentioned and enforce payment in part
only.
(4) Where a surety to a bond dies before the bond is forfeited, his
estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section
125 or section 136 or section 401 is convicted of an offence the
commission of which constitutes a breach of the conditions of his
bond, or of a bond executed in lieu of his bond under section 494,
a certified copy of the judgment of the Court by which he was
convicted of such offence may be used as evidence in proceedings
under this section against his surety or sureties, and, if such
certified copy is so used, the Court shall presume that such offence
was committed by him unless the contrary is proved.
45. For cancellation of bond or bail bond, Section 492 of the BNSS
(corresponding section 446-A of Cr.P.C.), mandates that if an accused fails to
comply with bond conditions (e.g., missing a court date), the accused’s
bond and his surety’s bond are forfeited and cancelled, generally
restricting automatic release on bail.
46. As per the provisions of section 492 of BNSS upon breach of
conditions, the court cancels the current bail bond, and the bond for
appearance is forfeited. Following cancellation, the person cannot be
released again on his own bond without sufficient cause shown, the
person may be released if he provides a new personal bond and new
surety bonds. The provisions of Section 492 of the BNSS (corresponding
section 446-A of Cr.P.C.) are delineated below:-
Section 492 BNSS . Cancellation of bond and bail bond.—Without
prejudice to the provisions of section 491, where a bond or bail
bond under this Sanhita is for appearance of a person in a case and
it is forfeited for breach of a condition,—(a) the bond executed by
such person as well as the bond, if any, executed by one or more of
his sureties in that case shall stand cancelled; and
(b) thereafter no such person shall be released only on his own
bond in that case, if the police officer or the Court, as the case may
be, for appearance before whom the bond was executed, is
satisfied that there was no sufficient cause for the failure of the
person bound by the bond to comply with its condition:
Provided that subject to any other provisions of this Sanhita he
may be released in that case upon the execution of a fresh personal
bond for such sum of money and bond by one or more of such
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sureties as the police officer or the Court, as the case may be,
thinks sufficient.
47. If an accused person is released on bail on furnishing bail bond
and sureties and absconds to avoid court proceedings so that a warrant
could not be executed and thereafter, he has been declared a proclaimed
offender. Thereafter, a fresh criminal proceedings against the accused
under Section 209 BNSS is initiated and thereafter, the bond and sureties
are cancelled and confiscated. After that, the Court may initiate action
under Section 85 of the BNSS (corresponding section 83 of Cr.P.C.), which
governs the attachment of rest of the property of the absconding persons,
and authorizes a court to order the attachment of property belonging to a
person, who has failed to appear after a proclamation.
48. After exhausting the processes in case of an absconded accused,
released on bail on furnishing bail bond and surety, the concerned Court
shall appoint an amicus curiae/advocate, as provided under section 356
BNSS to the absconded accused and thereafter, if a case is not
committed, then after compliance of provision of Section 230 BNSS
(corresponding Section 207 Cr.P.C.), the case shall be committed to the court
concerned under Section 232 BNSS (corresponding Section 209 Cr.P.C.) or
under Section 362 BNSS (corresponding Section 323 Cr.P.C.) for framing
charge under Section 251 BNSS (corresponding Section 228 Cr.P.C.) in case
of Sessions Trial, and under Section 263 BNSS (corresponding Section 240
Cr.P.C.) in case of warrant trial instituted on police report and under
Section 269(1) BNSS (corresponding Section 246(1) Cr.P.C.) in case of
warrant trial instituted on complaint and to proceed further to complete
trial.
49. Before committal of a case instituted on police report, for framing
of charge, Section 230 of the BNSS, 2023 (corresponding to Section 207
Cr.P.C.) mandates that, in cases instituted on a police report, the Judicial
Magistrate shall furnish to the accused, and to the victim (where
represented), free copies of the police report/chargesheet, the FIR,
witness statements recorded under Section 180(3), confessions and
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statements recorded under Section 183, and any other relevant
documents submitted along with the report.
50. These documents must be supplied without delay and, in any case,
within 14 days from the date of the accused’s appearance or production
before the court. Where the documents are voluminous, the court may,
instead of providing physical copies, permit inspection of such
documents either in court or through electronic means. The provisions
mentioned under Section 230 of BNSS (corresponding to section 207 of Cr.P.C.)
are delineated below for reference :-
Section 230 BNSS:- Supply to accused of copy of police report and
other documents.—In any case where the proceeding has been
instituted on a police report, the Magistrate shall without delay, and
in no case beyond fourteen days from the date of production or
appearance of the accused, furnish to the accused and the victim (if
represented by an advocate) free of cost, a copy of each of the
following:—
(i) the police report;
(ii) the first information report recorded under section 173; (iii) the
statements recorded under sub-section (3) of section 180 of all persons
whom the prosecution proposes to examine as its witnesses, excluding
therefrom any part in regard to which a request for such exclusion has
been made by the police officer under sub-section (7) of section 193;
(iv) the confessions and statements, if any, recorded under section 183;
(v) any other document or relevant extract thereof forwarded to the
Magistrate with the police report under sub-section (6) of section 193:
Provided that the Magistrate may, after perusing any such part of a
statement as is referred to in clause (iii) and considering the reasons
given by the police officer for the request, direct that a copy of that
part of the statement or of such portion thereof as the Magistrate
thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any such
document is voluminous, he shall, instead of furnishing the accused
and the victim (if represented by an advocate) with a copy thereof, may
furnish the copies through electronic means or direct that he will only
be allowed to inspect it either personally or through an advocate in
Court:
Provided also that supply of documents in electronic form shall be
considered as duly furnished.
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51. It is relevant to mention here that in section 230 of BNSS
(not in Cr.P.C.) the time period has been given 14 days to provide
copy of the investigated documents not only to the accused but
also to the victim either personally or through represented
advocate.
52. Before committal of case instituted on complaint for framing
of charge, Section 231 of the Bharatiya Nagarik Suraksha Sanhita
(BNSS), 2023 (corresponds to Section 208 of the Cr.P.C) mandates that in
private complaint cases triable by a Court of Session, the Judicial
Magistrate must immediately furnish the accused, free of cost, the
documents mentioned under section 231 BNSS. The provisions of
Section 231 of BNSS (corresponding Section 208 of Cr.P.C.) are delineated
below:-
Section 231 B.N.S.S.:- Supply of copies of statements and documents
to accused in other cases triable by Court of Session.-Where, in a
case instituted otherwise than on a police report, it appears to the
Magistrate issuing process under section 227 that the offence is triable
exclusively by the Court of Session, the Magistrate shall forthwith
furnish to the accused, free of cost, a copy of each of the following:—
(i) the statements recorded under section 223 or section 225, of all
persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under section 180
or section 183;
(iii) any documents produced before the Magistrate on which the
prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such document is
voluminous, he shall, instead of furnishing the accused with a copy
thereof, direct that he will only be allowed to inspect it either
personally or through an advocate in Court:
Provided further that supply of documents in electronic form shall be
considered as duly furnished.
53. There are two Sections i.e. Section 232 and Section 362 in
the Bharatiya Nagarik Suraksha Sanhita, 2023 for committal of
case to the court of sessions. Section 232 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (corresponding Section 209 of Cr.P.C.) governs
the commitment of cases to the Court of Session, when an offence
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is exclusively triable by it. After complying with Section 230 or
231 BNSS (supply of documents to the accused and victim), the
Judicial Magistrate shall commit the case under Section 232 BNSS
to the Court of Session and transmit the entire record, including
documents and articles intended to be produced as evidence, while
also notifying the Public Prosecutor. Such committal proceedings
must ordinarily be completed within 90 days from the date of
taking cognizance, extendable up to 180 days for reasons to be
recorded in writing. The provisions of section 232 of BNSS
(corresponding Section 209 of Cr.P.C.) are delineated below:-
Section 232 BNSS
232. Commitment of case to Court of Session when offence is triable
exclusively by it.—When in a case instituted on a police report or
otherwise, the accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall—
(a) commit, after complying with the provisions of section 230 or
section 231 the case to the Court of Session, and subject to the
provisions of this Sanhita relating to bail, remand the accused to
custody until such commitment has been made;
(b) subject to the provisions of this Sanhita relating to bail, remand the
accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and
articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the
Court of Session:
Provided that the proceedings under this section shall be completed
within a period of ninety days from the date of taking cognizance,
and such period may be extended by the Magistrate for a period not
exceeding one hundred and eighty days for the reasons to be
recorded in writing: (New provision as this proviso was not mentioned in
the Cr.P.C.)
Provided further that any application filed before the Magistrate by the
accused or the victim or any person authorised by such person in a
case triable by Court of Session, shall be forwarded to the Court of
Session with the committal of the case. (New provision as this proviso
was not mentioned in the Cr.P.C.)
Section 209 Cr.P.C.
209. Commitment of case to Court of Session when offence is triable
exclusively by it.—When in a case instituted on a police report or
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otherwise, the accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall—
1(a) commit, after complying with the provisions of section 207 or
section 208, as the case may be, the case to the Court of Session, and
subject to the provisions of this Code relating to bail, remand the
accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the
accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and
articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the
Court of Session.
54. Thus maximum extended period in totality with reason in
writing shall be 180 days to commit a case in court of session,
therefore, it shall be committed within 90 days as per section 232
of BNSS and with reason in writing it may be extended upto 90
days only.
55. Section 362 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (corresponding Section 323 of Cr.P.C.) provides that if, during any
inquiry or trial, a Magistrate is of the opinion that the case ought to
be tried by a Court of Session, the Magistrate shall commit it (cross
case etc.) to that Court before signing the judgment. This provision
ensures that cases requiring higher jurisdiction are tried by the
Court of Session. The Magistrate may commit the case at any stage
of the proceedings prior to the pronouncement of judgment, and
once such a decision is made, the procedure for commitment
prescribed under the relevant provisions of the Sanhita shall be
followed. The provision of section 362 of BNSS (corresponding
Section 323 of Cr.P.C.) are delineated below:-
Section 362 BNSS:- Procedure when after commencement of inquiry
or trial, Magistrate finds case should be committed.—If, in any
inquiry into an offence or a trial before a Magistrate, it appears to him
at any stage of the proceedings before signing the judgment that the
case is one which ought to be tried by the Court of Session, he shall
commit it to that Court under the provisions hereinbefore contained
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and thereupon the provisions of Chapter XIX shall apply to the
commitment so made.
56. Regarding Session trial, Section 251 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (corresponding Section 228 of Cr.P.C.)
deals with the framing of charges in trials before a Court of
Session. It provides that when a case is triable by the Court of
Session, the Judge shall frame the charge in writing within 60 days
from the date of the first hearing on the question of charge, with a
view to reducing delays. If the offence is not exclusively triable by
the Court of Session, the Judge may transfer the case to a Judicial
Magistrate of the First Class for trial. The charge so framed shall
be read and explained to the accused, who may be present either
physically or through audio-video electronic means, and the
accused shall be asked whether they plead guilty or claim trial.
Charges are framed only after the Judge is satisfied that a prima
facie case exists against the accused. The provision of section 251
of BNSS (corresponding Section 228 of Cr.P.C.) are delineated below:-
Section 251 BNSS. Framing of charge.—(1) If, after such
consideration and hearing as aforesaid, the Judge is of opinion that
there is ground for presuming that the accused has committed an
offence which—
(a) is not exclusively triable by the Court of Session, he may, frame a
charge against the accused and, by order, transfer the case for trial to
the Chief Judicial Magistrate, or any other Judicial Magistrate of the
first class and direct the accused to appear before the Chief Judicial
Magistrate, or the Judicial Magistrate of the first class, on such date
as he deems fit, and thereupon such Magistrate shall try the offence in
accordance with the procedure for the trial of warrant-cases instituted
on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused within a period of sixty days from the
date of first hearing on charge. (New provision as it was not in the
Cr.P.C.)
(2) Where the Judge frames any charge under clause (b) of sub-section
(1), the charge shall be read and explained to the accused present
either physically or through audio-video electronic means and the
accused shall be asked whether he pleads guilty of the offence charged
or claims to be tried.
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Section 228 Cr.P.C. Framing of charge.—(1) If, after such
consideration and hearing as aforesaid, the Judge is of opinion that
there is ground for presuming that the accused has committed an
offence which—
(a) is not exclusively triable by the Court of Session, he may, frame a
charge against the accused and, by order, transfer the case for trial to
the Chief Judicial Magistrate, or any other Judicial Magistrate of the
first class and direct the accused to appear before the Chief Judicial
Magistrate, or, as the case may be, the Judicial Magistrate of the first
class, on such date as he deems fit, and thereupon such Magistrate
shall try the offence in accordance with the procedure for the trial of
warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section
(1), the charge shall be read and explained to the accused and the
accused shall be asked whether he pleads guilty of the offence charged
or claims to be tried.
57. Regarding warrant trial instituted on a police report, Section
263 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding
Section 240 of Cr.P.C.) deals with the framing of charge. It provides
that when such a case is before a Judicial Magistrate, and upon
consideration of the police report and the accompanying
documents, and after hearing both the prosecution and the accused,
the Magistrate is of the opinion that there are sufficient grounds for
presuming that the accused has committed an offence triable as a
warrant case, the Magistrate shall frame a charge in writing within
60 days from the date of the first hearing, with a view to expediting
the trial. The charge shall be read and explained to the accused,
who shall then be asked whether they plead guilty or claim to be
tried. The provision of section 263 of BNSS (corresponding Section
240 of Cr.P.C.) are delineated below:-
Section 263 BNSS. Framing of charge.—(1) If, upon such
consideration, examination, if any, and hearing, the Magistrate is of
opinion that there is ground for presuming that the accused has
committed an offence triable under this Chapter, which such
Magistrate is competent to try and which, in his opinion, could be
adequately punished by him, he shall frame in writing a charge
against the accused within a period of sixty days from the date of first
hearing on charge.
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(2) The charge shall then be read and explained to the accused, and he
shall be asked whether he pleads guilty of the offence charged or
claims to be tried.
58. Regarding warrant trial instituted on complaint or suo moto by the
concerned court, Section 269(1) of BNSS (corresponding Section 246(1) of
Cr.P.C.) deals with the framing of charge as if, upon taking all the
evidence referred to in Section 268, the Judicial Magistrate is of the
opinion that there are grounds for presuming that the accused has
committed an offence triable as a warrant case, the Magistrate shall
frame a charge in writing. Upon framing of the charge, it shall be read
and explained to the accused, and the Magistrate shall ask whether the
accused pleads guilty or claims to be tried. The provision of section
269(1) of BNSS (corresponding Section 246(1) of Cr.P.C.) are delineated
below:-
Section 269(1) BNSS:- Procedure where accused is not discharged.
—(1) If, when such evidence has been taken, or at any previous stage
of the case, the Magistrate is of opinion that there is ground for
presuming that the accused has committed an offence triable under
this Chapter, which such Magistrate is competent to try and which, in
his opinion, could be adequately punished by him, he shall frame in
writing a charge against the accused.
59. In case of absconding accused, in presence of amicus
curiae/advocate (appointed under Section 356(3) BNSS) for the
absconded accused, section 335 of BNSS (corresponding section 299 of the
CrPC), allows courts to record evidence against an absconding accused
who has no immediate prospect of arrest. These depositions can be used
as evidence if the witness dies, is incapable of testifying, or cannot be
found when the accused is eventually tried.
60. Section 335 of BNSS ensures evidence is preserved for
prosecution when an accused is on the run, preventing the loss of
testimony over time. It must be proved that the accused has absconded,
and there is no immediate prospect of arresting them. A Magistrate or
Sessions Court can examine witnesses in the accused's absence and
record their depositions. These recorded statements can be used against
the accused later if the witness is dead, incapable of giving evidence, or
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missing. The provisions of Section 335 of the BNSS (corresponding section
299 of Cr.P.C.) are delineated below:-
Section 335 of BNSS. Record of evidence in absence of accused.—
(1) If it is proved that an accused person has absconded, and that
there is no immediate prospect of arresting him, the Court
competent to try, or commit for trial, such person for the offence
complained of may, in his absence, examine the witnesses (if any)
produced on behalf of the prosecution, and record their depositions
and any such deposition may, on the arrest of such person, be given
in evidence against him on the inquiry into, or trial for, the offence
with which he is charged, if the deponent is dead or incapable of
giving evidence or cannot be found or his presence cannot be
procured without an amount of delay, expense or inconvenience
which, under the circumstances of the case, would be unreasonable.
(2) If it appears that an offence punishable with death or
imprisonment for life has been committed by some person or
persons unknown, the High Court or the Sessions Judge may direct
that any Magistrate of the first class shall hold an inquiry and
examine any witnesses who can give evidence concerning the
offence and any depositions so taken may be given in evidence
against any person who is subsequently accused of the offence, if
the deponent is dead or incapable of giving evidence or beyond the
limits of India.
61. In case of absconding accused, released on bail after furnishing
bail bond and sureties, the court concerned should initiated proceedings
as per the provision of law and after exhausting it, as per Section 356 of
the BNSS, the accused must be declared a proclaimed offender. Two
consecutive warrants must be issued within a 30 days interval. Public
notice in a local or national newspaper is required, allowing 30 days for
appearance. Information must be given to relatives/friends and pasted at
the last known residence and the local police station. The Court must
wait 90 days from the framing of charges before starting the trial in
absentia. If the offender does not have an advocate, the State must
provide one Advocate at its expense.
62. In respect of an absconding accused declared a proclaimed
offender, a new provision of law, i.e., Section 356, has been introduced
with a mandatory provision to conduct a criminal case in the absence of
the accused and to complete the trial. In case of conviction, his appeal
shall not be entertained unless he first surrenders, and the limitation
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period to file an appeal is three years in the case of an absconding and
convicted accused. The complete procedure to conduct a criminal case
has been provided under Section 356 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS). The provisions of Section 356 BNSS is
delineated below:-
‘’Section 356. Inquiry, trial or judgment in absentia of proclaimed
offender. - (1) Notwithstanding anything contained in this Sanhita or
in any other law for the time being in force, when a person declared
as a proclaimed offender, whether or not charged jointly, has
absconded to evade trial and there is no immediate prospect of
arresting him, it shall be deemed to operate as a waiver of the right
of such person to be present and tried in person, and the Court shall,
after recording reasons in writing, in the interest of justice, proceed
with the trial in the like manner and with like effect as if he was
present, under this Sanhita and pronounce the judgment:
Provided that the Court shall not commence the trial unless a period
of ninety days has lapsed from the date of framing of the charge.
(2) The Court shall ensure that the following procedure has been
complied with before proceeding under sub-section (1), namely:---
(i) issuance of two consecutive warrants of arrest within the interval
of at least thirty days;
(ii) publish in a national or local daily newspaper circulating in the
place of his last known address of residence, requiring the proclaimed
offender to appear before the Court for trial and informing him that
in case he fails to appear within thirty days from the date of such
publication, the trial shall commence in his absence;
(iii) inform his relative or friend, if any, about the commencement of
the trial; and
(iv) affix information about the commencement of the trial on some
conspicuous part of the house or homestead in which such person
ordinarily resides and display in the police station of the district of
his last known address of residence.
(3) Where the proclaimed offender is not represented by any
advocate, he shall be provided with an advocate for his defence at
the expense of the State.
(4) Where the Court, competent to try the case or commit for trial,
has examined any witnesses for prosecution and recorded their
depositions, such depositions shall be given in evidence against such
proclaimed offender on the inquiry into, or in trial for, the offence
with which he is charged:
Provided that if the proclaimed offender is arrested and produced or
appears before the Court during such trial, the Court may, in the
interest of justice, allow him to examine any evidence which may
have been taken in his absence.
(5) Where a trial is related to a person under this section, the
deposition and examination of the witness, may, as far as
practicable, be recorded by audio-video electronic means preferably
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mobile phone and such recording shall be kept in such manner as the
Court may direct.
(6) In prosecution for offences under this Sanhita, voluntary absence
of accused after the trial has commenced under sub-section (1) shall
not prevent continuing the trial including the pronouncement of
the judgment even if he is arrested and produced or appears at the
conclusion of such trial.
(7) No appeal shall lie against the judgment under this section unless
the proclaimed offender presents himself before the Court of appeal:
Provided that no appeal against conviction shall lie after the expiry
of three years from the date of the judgment.’’
63. Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS),
2023 introduces “Trial in Absentia”, allowing courts to try, inquire into,
or judge a proclaimed offender who has absconded to evade justice. This
provision ensures that the trial proceeds even if the accused cannot be
arrested, and is aimed at reducing delays.
64. Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS),
2023, is a landmark provision that introduces the concept of Trial in
Absentia into the Indian criminal justice system. It allows a court to
proceed with the inquiry, trial, or judgment of an accused person who
has been declared a proclaimed offender and is deliberately evading
arrest.
65. Thus to prosecute an absconder accused and to complete trial,
certain conditions are mentioned under Section 356 BNSS must be
followed. The conditions are depicted herein below :
1. If a proclaimed offender absconds to evade trial and there is
no immediate prospect of arrest, it is legally deemed a waiver of
their right to be present and tried in person.
2. The court can record evidence, examine witnesses, and
pronounce a judgment even if the accused is not physically
present.
3. To ensure transparency and accuracy, depositions and
examinations of witnesses should be recorded using audio-video
electronic means, such as mobile phones.
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4. If the absconding accused does not have lawyer, the court
must provide an advocate for their defence at the expense of the
State.
5. The trial cannot commence until at least 90 days have
passed since the framing of charges.
6. At least two consecutive arrest warrants must be issued with
an interval of at least 30 days between them.
7. A notice must be published in a national or local daily
newspaper circulating in the area of the accused’s last know
residence.
8. The court must inform the accused’s relatives or friends
about the commencement of the trial.
9. Trial information must be displayed at a conspicuous part
of the accused’s house and at the local police station.
66. Appeal is continuation of trial, therefore, as per Section 356(7) of
BNSS, an appeal against a judgment under this section is permitted only
if the offender presents himself before the appellate court. No appeal
against conviction can be filed after three years from the date of the
judgment.
67. The concerned court at any stage of criminal proceeding should
ensure that effective measures have been adopted to inform the accused
about criminal proceedings and that is also reflected by the order-sheets
as well as records of the case, thus, after filing of a charge-sheet if the
Court is taking cognizance and summoning the accused, the concerned
court must ensure that the accused must have proper knowledge of the
summons. Service of summons may be effected at conspicuous places
such as the accused’s residence, public areas like roadways or railway
stations, and through official records including DCRB and NCRB and it
entry shall be made in the General Diary (G.D.) of the police station and
must be submitted to the Court to ensure that the best effort has been
made to serve the summons, so that the court may record it in the order
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sheet and thereafter issue Non Bailable Warrants twice, at interval of 30
days, as provided under Section 356 BNSS to proceed to declare the
accused as proclaimed offender.
68. If the concerned court is satisfied that a summon has been duly
served and the accused fails to appear, the Court concerned may issue a
Non-Bailable Warrant (NBW). Service attempts and information must be
recorded in writing as it has been served personally to the accused or
relative or affixed on conspicuous places such as the accused’s
residence, public areas, or through official records including DCRB and
NCRB, with a G.D. entry at the police station to bring it to the Court’s
notice. However, if the accused has furnished a bail bond with sureties
and was released on bail, the process of issuing an NBW shall be carried
out in accordance with Section 92 of BNSS (corresponding Section 89 Cr.P.C.).
69. If the accused appears within two dates after the issuance of a
Non-Bailable Warrant (NBW) under Section 92 of the BNSS, the Court
may recall the NBW upon his appearance. The General Diary (G.D.)
entries of the police, documenting their efforts to execute the NBW and
attempt to arrest the accused, must be submitted to the Court. These
entries should also be recorded in the order sheet of the case to enable
the Court to take further proceedings in accordance with law.
70. As per Section 84 of BNSS (corresponding section 82 of Cr.P.C.), if a
Court believes that a person against whom a warrant has been issued is
absconding or hiding to avoid arrest, it may issue a written proclamation
as per the conditions mentioned under Section 356 BNSS requiring the
person to appear at a specified place and time, at least thirty days from
publication. The proclamation must be publicly read and affixed at
conspicuous places in the person’s residence or locality circulating in the
place in which such person ordinarily resides and the Court, and may
also be published in a national or daily local newspaper. A written
statement by the Court confirming publication is conclusive evidence of
compliance.
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71. If the accused is not appearing before the court concerned in
compliance of order of proclamation issued under section 84 BNSS
(corresponding Section 82 Cr.P.C.) the police shall take action under Section
209 BNS (corresponding Section 174 A IPC) as per Section 215 BNSS
(corresponding Section 195 Cr.P.C.).
72. In case of an accused released on bail on furnishing personal bond
and surety and declared proclaimed offender, the Court may declare a
bail bond forfeited and, thereafter in accordance with Section 491 of
BNSS (corresponding section 446 of Cr.P.C.), take steps to recover the penalty
from the accused and the sureties. Under this section, if a bond is found
to be forfeited, the Court records the reasons for such finding and directs
the person bound by the bond to either pay the penalty or show cause
why it should not be paid. If no sufficient cause is shown, the penalty
may be recovered as a fine, and in default, the surety may be liable to
imprisonment in civil jail for a term of up to six months. The Court also
has discretion to remit part of the penalty after recording reasons.
Furthermore, a surety’s liability ceases upon their death.
73. As per Section 492 of BNSS (corresponding section 446-A of Cr.P.C.),
the Court may cancel the bail bond of the accused as well as the bonds of
the sureties due to breach of the bond conditions. Following such
cancellation, the accused cannot be released on personal bond alone if no
sufficient cause is shown for the failure to appear. However, the Court or
the police officer may allow release upon the execution of a fresh
personal bond with adequate sureties, as deemed necessary.
74. The concerned court or the police shall inform to the other court
about cancellation of bail bond and sureties where any other criminal
case is pending of the absconding accused person.
75. After the issuance of a proclamation against an absconding person,
if the accused does not appear, the Court concerned in view of Section
85 of BNSS (Corresponding Section 83 Of Cr.P.C.), can order attachment of his
movable or immovable property. Such attachment may be effected
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within or outside the district and carried out by seizure, appointment of a
receiver, or prohibitory orders, as applicable. The Court may also order
sale of perishable property, and any receiver appointed shall exercise
powers as under the Code of Civil Procedure, 1908.
76. As per Section 335 BNSS (corresponding Section 299 of Cr.P.C.)
the concerned court can record the evidence in absence of accused and
thereafter permanent Non-Bailable Warrant shall be issued and it shall
be monitored on 30 days by the court concerned and its effort of arrest
shall be brought to the knowledge of the court concerned through G.D.
entry of the police station and it shall also be placed in the every District
crime meeting and its effort shall be mentioned in the minutes of the
meeting and shall be brought in the knowledge of the court concerned,
and the permanent NBW shall continue till its execution.
77. In respect of the absconded accused declared proclaimed offender,
new provision of law i.e. Section 356 has been introduced with
mandatory provision to conduct a criminal case in absence of an accused
and complete the trial and pronounce the judgment and in case of
conviction, his appeal shall not be entertained until and unless he
surrenders and the limitation period to file an appeal is three years in
case of absconded and convicted accused. The complete procedure to
conduct a criminal case has been provided under section 356 of Bhartiya
Nagarik Suraksha Sanhita, 2023.
78. For speedy trial, Section 389 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (corresponding Section 350 Cr.P.C.) empowers criminal courts to
summarily punish non-attending witnesses with fine upto five hundred
rupees, without initiating lengthy legal proceedings. It applies to any
witness who has been duly summoned by a criminal court but fails to
attend or departs prematurely without sufficient justification. The
provisions of section 389 BNSS (corresponding Section 350 Cr.P.C.) is
delineated below:-
“Section 389 of BNSS:- Summary procedure for punishment for
non-attendance by a witness in obedience to summons.—(1) If
any witness being summoned to appear before a Criminal Court is
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legally bound to appear at a certain place and time in obedience to
the summons and without just excuse neglects or refuses to attend
at that place or time or departs from the place where he has to
attend before the time at which it is lawful for him to depart, and
the Court before which the witness is to appear is satisfied that it is
expedient in the interests of justice that such a witness should be
tried summarily, the Court may take cognizance of the offence and
after giving the offender an opportunity of showing cause why he
should not be punished under this section, sentence him to fine not
exceeding five hundred rupees.
(2) In every such case the Court shall follow, as nearly as may be
practicable, the procedure prescribed for summary trials.”
“Section 350 of Cr.P.C.:- Summary procedure for punishment for
non-attendance by a witness in obedience to summons.—(1) If
any witness being summoned to appear before a Criminal Court is
legally bound to appear at a certain place and time in obedience to
the summons and without just excuse neglects or refuses to attend
at that place or time or departs from the place where he has to
attend before the time at which it is lawful for him to depart, and
the Court before which the witness is to appear is satisfied that it is
expedient in the interest of justice that such a witness should be
tried summarily, the Court may take cognizance of the offence and
after giving the offender an opportunity of showing cause why he
should not be punished under this section, sentence him to fine not
exceeding one hundred rupees.
(2) In every such case the Court shall follow, as nearly as may be
practicable, the procedure prescribed for summary trials.”
79. If any hindrance is caused in speedy enquiry or trial, the person
causing hindrance or holding the enquiry or trial for unreasonable period
may be prosecuted treating as helping to the accused as his
past/subsequent conduct as mentioned under Section 6 of Bharatiya
Sakshya Adhiniyam, 2023 (corresponding Section 8 of Indian Evidence
Act, 1872). Thus, for unreasonable period, order of sanction or any
forensic test etc. cannot be held by the concerned authority or person
otherwise, the court concerned may treat it as hindrance in imparting
speedy justice.
80. The concerned court at the stage of enquiry or trial shall for
speedy trial/justice shall follow the mandate as provided under section
346 BNSS, otherwise, it shall be mentioned by the concerned court of
enquiry or trial in respect of delay in the orders or judgement so that
accountability of the concerned court may be determined whether, delay
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occurred due to unavoidable circumstances or ignorance of the
concerned court.
81. Section 346 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(corresponding section 309 Cr.P.C.) mandates that criminal inquiries and trials
should, as far as practicable, be conducted on a day-to-day basis until all
witnesses are examined. It restricts adjournments, allowing them only
when necessary and only if the court records its reasons in writing,
thereby preventing unnecessary delays. In cases of sexual offences under
Sections 64 to 71 of the Bharatiya Nyaya Sanhita, the trial should, as far
as possible, be completed within two months from the date of filing of
the charge sheet. Further, when proceedings are adjourned or postponed,
the court may remand the accused to custody, but such remand shall not
exceed fifteen days at a time. The provision also limits adjournments by
allowing only a restricted number in circumstances beyond the control of
a party, generally not exceeding two in certain situations, to ensure the
expeditious disposal of cases. The provisions of Section 346 of BNSS
(corresponding section 309 Cr.P.C.) is delineated below:
“Section 346 of BNSS. Power to postpone or adjourn
proceedings.—(1) In every inquiry or trial the proceedings shall be
continued from day-to-day basis until all the witnesses in
attendance have been examined, unless the Court finds the
adjournment of the same beyond the following day to be necessary
for reasons to be recorded:
Provided that when the inquiry or trial relates to an offence under
section 64, section 65, section 66, section 67, section 68, section
70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 (45 of
2023) the inquiry or trial shall be completed within a period of
two months from the date of filing of the chargesheet.
(2) If the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to postpone
the commencement of, or adjourn, any inquiry or trial, it may, from
time to time, for reasons to be recorded, postpone or adjourn the
same on such terms as it thinks fit, for such time as it considers
reasonable, and may by a warrant remand the accused if in
custody:
Provided that no Court shall remand an accused person to
custody under this section for a term exceeding fifteen days at a
time: Provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without examining
them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show cause against
the sentence proposed to be imposed on him:
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Provided also that—
(a) no adjournment shall be granted at the request of a party,
except where the circumstances are beyond the control of that
party;
(b) where the circumstances are beyond the control of a party, not
more than two adjournments may be granted by the Court after
hearing the objections of the other party and for the reasons to be
recorded in writing;
(c) the fact that the advocate of a party is engaged in another
Court, shall not be a ground for adjournment;
(d) where a witness is present in Court but a party or his advocate
is not present or the party or his advocate though present in Court,
is not ready to examine or cross-examine the witness, the Court
may, if thinks fit, record the statement of the witness and pass such
orders as it thinks fit dispensing with the examination-in-chief or
cross-examination of the witness, as the case may be.
Explanation 1.—If sufficient evidence has been obtained to raise a
suspicion that the accused may have committed an offence, and it
appears likely that further evidence may be obtained by a remand,
this is a reasonable cause for a remand.
Explanation 2.—The terms on which an adjournment or
postponement may be granted include, in appropriate cases, the
payment of costs by the prosecution or the accused.”
82. To ensure speedy proceedings under the Bharatiya Nagarik
Suraksha Sanhita, a time limit (Luxman Rekha) has been fixed for every
stage, including enquiry, investigation, summons, warrants,
proclamation, supply of copies, committal, framing of charges,
completion of evidence and pronouncement of judgment, even in the
absence of an absconded accused.
83. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which
replaced the CrPC on July 1, 2024, introduces several strict timelines to
ensure a speedier criminal justice process. The time limits and periods
mentioned in various sections are delineated below:
1. Investigation & FIR
Preliminary Enquiry : Must be completed within 14 days under
Section 173(3) for offences punishable with 3 to 7 years of
imprisonment.{Section 173(3) BNSS}
E-FIR Registration : Information sent electronically must be signed by
the informant within 3 days to be formally recorded as an FIR {Section
173(1)(ii) of BNSS}.
Medical Examination (Sexual Offences): The report must be
forwarded to the Investigating Officer within 7 days. (Section 184
BNSS)
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Investigation Progress Update : The police must update the informant
or victim on the progress of the investigation within 90 days. {Section
193(3)(ii) BNSS}.
Default Bail : If the accused person is in custody during investigation for
a total period exceeding 90 days, where the investigation relates to an
offence punishable with death, imprisonment for life, or imprisonment
for a term of ten years or more, or 60 days, where the investigation
relates to any other offence, the accused is entitled to bail {Section
187(3) BNSS}.
Sexual Offence Investigation : Must be completed within 2 months
from the date the FIR was registered {Section 193(2) BNSS}.
Further investigation : Generally capped at 90 days requires court
permission during trial {Section 193(9) BNSS}
2. Summons, Warrants & Proclamations
Supply of Documents : Copies of the police report and documents must
be supplied to the accused within 14 days of their first appearance
(Section 230 BNSS).
Proclamation for Absconding Person. Must specify a time not less
than 30 days from the date of publication for the person to appear
(Section 84 BNSS).
Attachment of Property: Claims or objections to attached property
must be made within 6 months from the date of attachment (Section 87
BNSS).
Sale of Attached Property : The state cannot sell attached property
until 6 months have passed from the date of attachment. {Section 88(2)
BNSS}
3. Committal and Framing of Charges
Committal Proceedings : Must be completed within 90 days from the
date of taking cognizance (extendable to 180 days with recorded
reasons). (Section 232 BNSS)
Discharge Application:
Sessions Cases : Must be filed within 60 days from the date of
committal. {Section 250(1) BNSS}
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Warrant Cases : Must be filed within 60 days from the date of supply
of documents. {Section 262(1) BNSS}.
Framing of Charge : Must be completed within 60 days from the first
hearing on the charge {Sections 251(1)(b) and 263(1) BNSS}
4. Trial and Judgment
Plea Bargaining : An application must be filed within 30 days from the
date of framing charges. (Section 290 BNSS)
Trial Completion (Sexual Offences): Rape trials must be completed
within 2 months from the date of filing the charge sheet (Section 254
BNSS)
Section 356 BNSS primarily deals with the trial in absentia of
“proclaimed offenders.” It provides the following important provisions
regarding the time period.
1. Commencement of Trial
The court cannot commence trial in the absence of the proclaimed
offender until 90 days have elapsed from the date of framing of charge.
{Section 356(1) Proviso BNSS}
2. Gap between Warrants
Before the trial in absentia can begin, the court must issue two
consecutive warrants of arrest at least 30 days apart. {Section 356(2)(i)
BNSS}
3. Newspaper Publication
The court must publish a notice in a newspaper in the area of the
offender’s last known address. This notice given the offender 30 days to
appear. If they fail to appear within this time, the trial can be conducted
in their absence. {Section 356(2)(ii) BNSS}
4. Limitation for Appeal
If the offender is convicted under this section, he cannot appeal against
the sentence after the expiry of 3 years from the date of the judgment.
{Section 356(7) BNSS}
Pronouncement of Judgment :
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General : Must be pronounced within 30 days of the conclusion of final
arguments (extendable to 45 days with reasons) {Section 392(1) BNSS}
Sessions Trial : Verdict within 30 days (extendable to 45 days) (Section
258 BNSS)
Uploading of Judgment : Must be uploaded to the official portal within
7 days of its pronouncement {Section 392(1) BNSS}
84. Although the BNSS came into force on 1 July 2024 and the
alleged offence took place prior to the date of its enforcement, it is a
settled principle of law, that the procedure that is more beneficial to the
accused must be adopted. In the case of Deepu and Ors. v State of U.P.
and Ors., (2024) 8 ILRA 903 (Crl. Misc. Writ Petition No.12287 of
2024), the Division bench of this Court in paragraph no.16 (iii) held that
on or after 01.07.2024, the procedure mentioned under the Bharatiya
Nagarik Suraksha Sanhita, 2023, shall be applicable to offences
committed under the Indian Penal Code or other Special Act. The
paragraph No. 16 is delineated below:
“16 .On the basis of above analysis, this Court is also summarising
the law regarding effect of repealing the IPC and Cr.P.C. by BNS and
BNSS respectively and same is being mentioned as below:
(i) If an FIR is registered on or after 1.7.2024 for the offence
committed prior to 1.7.2024, then FIR would be registered
under the provisions of IPC but the investigation will
continue as per BNSS.
(ii) In the pending investigation on 01.07.2024 (on the date of
commencement of New Criminal Laws), investigation will
continue as per the Cr.P.C. till the cognizance is taken on the
police report and if any direction is made for further
investigation by the competent Court then same will continue
as per the Cr.P.C.;
(iii) The cognizance on the pending investigation on or after
01.07.2024 would be taken as per the BNSS and all the
subsequent proceeding including enquiry, trial or appeal
would be conducted as per the procedure of BNSS.
(iv) Section 531(2)(a) of BNSS saved only pending
investigation, trial, appeal, application and enquiry,
therefore, if any trial, appeal, revision or application is
commenced after 01.07.2024, the same will be proceeded as
per the procedure of BNSS.
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(v) The pending trial on 01.07.2024, if concluded on or after
01.07.2024 then appeal or revision against the judgement
passed in such a trial will be as per the BNSS. However, if
any application is filed in appeal, which was pending on
01.07.2024 then the procedure of Cr.P.C. will apply.
(vi) If the criminal proceeding or chargesheet is challenged
before the High Court on or after 01.07.2024, where the
investigation was conducted as per Cr.P.C. then same will be
filed u/s 528 of BNSS not u/s 482 Cr.P.C.”
85. The usage of word ‘Trial’ in a criminal proceeding has been
mentioned in Section 2(1)(k) of the BNSS, which reads as under :-
2. Definitions.(1)(k) BNSS.“inquiry” means every enquiry,
other than a trial, conducted under this Sanhita by a
Magistrate or Court;
86. In the case of Hardeep Singh vs. State of Punjab and others,
AIR 2014 SC 1400, the Hon’ble Supreme Court has held that the stage
of trial begins after the framing of the charge. The relevant paragraphs
no.35 and 43 of the aforesaid judgment is being quoted below :-
“35. In view of the above, the law can be summarised to the
effect that as ‘trial’ means determination of issues adjudging
the guilt or the innocence of a person, the person has to be
aware of what is the case against him and it is only at the
stage of framing of the charges that the court informs him of
the same, the ‘trial’ commences only on charges being
framed. Thus, we do not approve the view taken by the
courts that in a criminal case, trial commences on
cognizance being taken.
x x x x
43. Since after the filing of the charge-sheet, the court
reaches the stage of inquiry and as soon as the court
frames the charges, the trial commences, and therefore, the
power under Section 319(1) Cr.P.C. can be exercised at any
time after the charge-sheet is filed and before the
pronouncement of judgment, except during the stage of
Section 207/208 Cr.P.C., committal etc., which is only a pre-
trial stage, intended to put the process into motion. This
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stage cannot be said to be a judicial step in the true sense
for it only requires an application of mind rather than a
judicial application of mind.”
87. On failure to comply with the process, the dealing assistant/clerk
shall be responsible for the same. Further, the GD entry in respect of
service or compliance of the order of the court shall be uploaded on the
portal of the concerned police station to ascertain its execution by the
concerned court to maintain order sheet of the case and to proceed
further, and if the police official fails to follow this procedure, it will be
deemed that the concerned police official of the concerned police station,
as well as the nodal officer of the police, shall be answerable or
responsible to the concerned court for further necessary action under
Section 199 of the BNS (corresponding to section 166-A IPC), as well as
under Section 29 of the Police Act, 1861. The provisions of Section 199
BNS is delineated below:-
“Section 199. Public servant disobeying direction under law.—
Whoever, being a public servant,—
(a) knowingly disobeys any direction of the law which
prohibits him from requiring the attendance at any place of any
person for the purpose of investigation into an offence or any other
matter; or
(b) knowingly disobeys, to the prejudice of any person, any
other direction of the law regulating the manner in which he shall
conduct such investigation; or
(c) fails to record any information given to him under sub-
section (1) of section 173 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 in relation to cognizable offence punishable under
section 64, section 65, section 66, section 67, section 68, section
70, section 71, section 74, section 76, section 77, section 79,
section 124, section 143 or section 144,
shall be punished with rigorous imprisonment for a term which
shall not be less than six months but which may extend to two
years, and shall also be liable to fine.’’
88. Section 29 of the Police Act, 1861 outlines the penalties for police
officers, who fail to perform their duties, disobey orders, or act
negligently, all such officers shall be liable for punishment in accordance
with law. The provisions of Section 29 of the Police Act, 1861 are
delineated below:-
Section 29. Penalties for neglect of duty, etc.
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Every police-officer who shall be guilty of any violation of
duty or wilful breach or neglect of any rule or regulation or
lawful order made by competent authority, or who shall withdraw
from the duties of his office without permission, or without having
given previous notice for the period of two months, or who, being
absent on leave, shall fail, without reasonable cause, to report
himself for duty on the expiration of such leave, or who shall
engage without authority in any employment other than his
police-duty, or who shall be guilty of cowardice, or who shall
offer any unwarrantable personal violence to any person in his
custody, shall be liable, on conviction before a Magistrate, to a
penalty not exceeding three months pay, or to imprisonment with
or without hard labour, for a period not exceeding three months,
or to both.
89. The Public Prosecutors are under an obligation to assist the Court
in the manner as well as within the time frame as mentioned in the
BNSS at every stage of the proceedings, therefore, to ensure the
expeditious disposal of criminal cases in the District, responsibility to
monitor cases has been given to the Director of Prosecution, Deputy
Director of Prosecution and Assistant Director of Prosecution under
Section 20(7)(8)(9) and (10) of the BNSS. Thereafter, as per Section
20(3)(4)(5)(6) of the Bharatiya Nagarik Suraksha Sanhita, 2023, the
Additional Chief Secretary, Home Department, Government of U.P., the
concerned Director of Prosecution, and the concerned Public Prosecutors
are to be held accountable for ensuring expeditious disposal of the
criminal cases pending in district courts. Section 20 of the BNSS is
delineated below for ready reference :-
“20. Directorate of Prosecution.—(1) The State Government may
establish,—
(a) a Directorate of Prosecution in the State consisting of a
Director of Prosecution and as many Deputy Directors of
Prosecution as it thinks fit; and
(b) a District Directorate of Prosecution in every district
consisting of as many Deputy Directors and Assistant
Directors of Prosecution, as it thinks fit.
(2) A person shall be eligible to be appointed,—
(a) as a Director of Prosecution or a Deputy Director of
Prosecution, if he has been in practice as an advocate for not
less than fifteen years or is or has been a Sessions Judge;
(b) as an Assistant Director of Prosecution, if he has been in
practice as an advocate for not less than seven years or has
been a Magistrate of the first class.
(3) The Directorate of Prosecution shall be headed by the Director of
Prosecution, who shall function under the administrative control of
the Home Department in the State.
(4) Every Deputy Director of Prosecution or Assistant Director of
Prosecution shall be subordinate to the Director of Prosecution; and
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every Assistant Director of Prosecution shall be subordinate to the
Deputy Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and
Special Public Prosecutor appointed by the State Government under
sub-section (1) or sub-section (8) of section 18 to conduct cases in the
High Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and
Special Public Prosecutor appointed by the State Government under
sub-section (3) or sub-section (8) of section 18 to conduct cases in
District Courts and every Assistant Public Prosecutor appointed
under sub-section (1) of section 19 shall be subordinate to the Deputy
Director of Prosecution or the Assistant Director of Prosecution.
(7) The powers and functions of the Director of Prosecution shall be
to monitor cases in which offences are punishable for ten years or
more, or with life imprisonment, or with death; to expedite the
proceedings and to give opinion on filing of appeals.
(8) The powers and functions of the Deputy Director of Prosecution
shall be to examine and scrutinise police report and monitor the cases
in which offences are punishable for seven years or more, but less
than ten years, for ensuring their expeditious disposal.
(9) The functions of the Assistant Director of Prosecution shall be to
monitor cases in which offences are punishable for less than seven
years.
(10) Notwithstanding anything contained in sub-sections (7), (8) and
(9), the Director, Deputy Director or Assistant Director of
Prosecution shall have the power to deal with and be responsible for
all proceedings under this Sanhita.
(11) The other powers and functions of the Director of Prosecution,
Deputy Directors of Prosecution and Assistant Directors of
Prosecution and the areas for which each of the Deputy Directors of
Prosecution or Assistant Directors of Prosecution have been
appointed shall be such as the State Government may, by notification,
specify.
(12) The provisions of this section shall not apply to the Advocate
General for the State while performing the functions of a Public
Prosecutor.”
90. In view of the above facts and circumstances and in the interest of
justice as well as for a speedy trial, this Court has reached to a
conclusion, based upon the findings above that:-
91. The Government has invested huge public money to develop
online process portals namely, (NSTEP) National Service and Tracking
of Electronic Processes and (CIS) Court Information System; therefore,
processes must be sent through the ongoing online portal and its record
must be maintained by the dealing officer or court clerk/assistant. In the
event of non-compliance thereof, the concerned official assigned the
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duties to do so, shall be held responsible and the consequences would
follow.
92. On failure to comply with the process, the dealing assistant/clerk
shall be responsible for the same. Further, the GD entry in respect of
service or compliance of order of the court shall be uploaded on the
portal of the concerned police station to ascertain its execution by the
concerned court to maintain order sheet of the case and to proceed
further, and if the police official fails to follow this procedure, it will be
deemed that the concerned police official of the concerned police station,
as well as the nodal officer of the police, shall be answerable or
responsible to the concerned court for further necessary action under
Section 199 of the BNS (corresponding section 166-A IPC), as well as under
Section 29 of the Police Act, 1861.
93. The court concerned is directed that in case of an inquiry, trial or
judgment in absentia of a proclaimed offender/absconded accused,
notwithstanding anything contained in the Sanhita or any other law, for
the time being in force, when a person, declared as a proclaimed
offender, whether or not charged jointly, has absconded to evade trial
and there is no immediate prospect of arresting him, it shall be deemed
to operate as a waiver of the right of such person to be present and tried
in person. The Court shall, after recording reasons in writing and in the
interest of justice, proceed with the trial in the same manner and with the
same effect, as if he was present and/or has participated in trial under
this Sanhita and pronounce the judgment; accordingly.
94. It is directed that the new provision of law introduced under
Section 356 of the BNSS, in cases of an absconding accused, shall be
followed by the Court concerned, as well as by the Public Prosecutor and
the police, while conducting a criminal case.
95. It is directed that, if the presiding officer adjourns the case without
any cogent reason as prescribed by law, and the adjournment so given
results in an unnecessary delay in respect of an absconder/accused, in
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that event the concerned court/presiding officer shall be dealt with
departmentally, and appropriate proceedings may be conducted for such
negligence or dereliction of duty, while discharging judicial work.
96. It is directed that when a public servant fails to discharge his duty,
as prescribed by the law or a court order within the stipulated time or in
accordance with the provision of the BNSS, such inaction on the part of
the concerned official may attract the provisions of Disciplinary Rules,
and contempt of court proceedings on the judicial side.
97. The Investigating Officer, the Public Prosecutor and the Presiding
Officer are directed, that they shall proceed with the criminal
proceedings in a systematic manner and within the time frame, as
provided under the BNSS as observed in the preceding paragraphs
no.13 and 83 of this order for a speedy justice and trial in the interest of
both the accused as well as the victim.
98. It is directed that in cases of non-compliance with summons,
warrants, or the provisions of Sections 84 and 85 of the BNSS
(corresponding Sections 82 and 83 Cr.P.C.) or Section 174-A IPC (corresponding
Section 209 BNS), within time frame and in the manner as specified under
the law, the Presiding Officer shall immediately inform the concerned
Superintendent of Police (S.P.), Senior Superintendent of Police (S.S.P.),
or Commissioner of Police, as the case may be and the District
Magistrate, so that appropriate departmental and/or criminal proceedings
may be initiated against the erring officers or personnel, who cause a
hindrance in imparting a speedy trial/justice to the aggrieved party in
accordance with the Conduct and Disciplinary Rules, as applicable under
the law.
99. It is directed that, if the public prosecutors do not assist the Court
for the expeditious disposal of the criminal cases, as per the provisions
of law within the time frame or in the manner prescribed under the law
or, as directed by the Court, in cases of absconding accused etc., the
concerned authorities mentioned under Section 20 of the BNSS i.e.
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Additional Chief Secretary, Home Department, U.P. Govt., the
concerned Director of Prosecution and the District Magistrate, may take
appropriate action against the erring Public Prosecutors, as provided
under law.
100. It is directed that all summons, warrants, and orders be executed
by the concerned person/authority in accordance with the procedure,
prescribed by law. Evidence of such execution/non-execution of
summons, warrants or orders shall be entered into the order sheet, as the
case may be, to establish that the accused was afforded an opportunity to
be heard prior to passing an order of conviction, regardless of whether
the proceedings were conducted in person or as an absconder.
101. The Director General of Police (D.G.P.) and the Director of
Prosecution are directed to circulate this order within 60 days to all
concerned authorities to co-operate in concluding enquiry, investigation
and trial for speedy justice in the manner as well as within the prescribed
time under the Bharatiya Nagarik Suraksha Sanhita, 2023 and other
laws.
102. It is directed that the concerned District Judge shall take up the
matter/issue in every monthly meeting of the Judicial Officers and
further in the Monitoring Cell meeting of the district, which is held every
month.
103. The Registrar General of this Court is directed to transmit a copy
of this order to the Judicial Training and Research Institute, U.P.,
Lucknow (JTRI), for the academic purposes of judicial officers.
104. The Government Advocate is directed to communicate this order
to the Chief Secretary, Govt. of U.P.; Additional Chief Secretary, Home
Department, Govt. of U.P.; the Additional/Principal Secretary of Law
Department, Govt. of U.P.; the Director General of Prosecution and
Director of Prosecution, State of U.P.; the District Magistrates, the
Senior Superintendents of Police, the Superintendents of Police, the
Commissioners of Police of all districts of the State of U.P., to take
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necessary action within 60 days from the date of this order so as to
conclude the trial of proclaimed offenders, as provided under Section
356 BNSS and other provisions of law.
105. This application is disposed of with the direction that the
impugned order dated 18.10.2024 shall be kept in abeyance for a period
of two months from the date of this order, thereafter, the trial court shall
be at liberty to pass an appropriate order in the event the accused does
not cooperate in the trial at every stage i.e. such as framing of charges,
recording of statements under Section 351 BNSS (corresponding to Section
313 Cr.P.C.) and at the time of pronouncement of the judgment etc.
(Praveen Kumar Giri,J.)
May 5, 2026
Manish Himwan
Digitally signed by :-
MANISH HIMWAN
High Court of Judicature at Allahabad
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