Every absence of accused or his counsel cannot be construed as deliberate & willful as they can be prevented by sufficient reasons from appearing before Court on given date: P&H HC

Read Order: M/s Shalimar Engineering through its partner Gaurav Sood v. M/s Bharti Enterprises and another

Monika Rahar

Chandigarh, January 13, 2022: While dealing with a revision petition wherein the petitioner’s bail was cancelled by the Appellate Court owing to his non-appearance before it, the Punjab and Haryana High Court has held that at times, the accused or his counsel can be prevented by sufficient reasons to put an appearance before the Court on a given date and every such absence cannot be necessarily construed as a deliberate and willful absence.

In this revision petition before the bench of Justice Manoj Bajaj, the convict (petitioner) challenged the order of the Appellate Court wherein the Court refused to accept his application for exemption from personal appearance and cancelled his bail. 

The counsel for the petitioner argued that the petitioner filed an appeal against his conviction in a complaint case under Section 138 of Negotiable Instruments Act, 1881,  before the Court of Sessions, wherein his sentence was suspended. He submitted that in March 2020, the COVID-19 pandemic broke out and therefore, no effective proceedings could take place in the appeal and the appeal was adjourned on numerous occasions, and the petitioner was granted exemption from personal appearance also. 

He further argued that on November 17,2021, the exemption from personal appearance was sought by the petitioner on the ground of sickness, however, as his application was not supported with any medical certificate, the Appellate Court declined the application and passed the impugned order of cancellation of bail. It was also the case of the petitioner that the case was to come up for hearing before the Appellate Court on January 7, 2022 and the petitioner was willing to settle the matter with the complainant. He also undertook to appear before the Appellate Court on the said date and prayed for setting aside the impugned order. 

The State counsel on the other hand opposed the petitioner’s case with the argument that the petitioner was well-aware of the date of hearing before the trial Court, but he failed to appear, therefore, the Appellate Court was justified in cancelling his bail. 

After considering rival claims, the Court observed,“in the impugned order, the Appellate Court has made an observation that for non- appearance of appellant, the appeal is lingering on, but his previous applications for exemption from personal appearance were accepted, therefore, this circumstance cannot be taken against him, particularly when there was break out of global pandemic COVID-19 during this period. Apart from it, various restrictions were also imposed by the State of Haryana in order to curb the spread of disease and this also added delay in hearing of cases.”

The Court further noted that on November 17, 2021, though the appellant’s lawyer appeared and moved an application, the ground raised by the appellant was disbelieved by the Appellate Court and it resulted in the cancellation of his bail.

The High Court found the explanation offered by the petitioner for his non-appearance before the appellate Court to be justified and set aside the impugned order subject to the petitioner’s appearance before the trial Court.

Further, the petitioner was allowed to remain on the same bail bonds and surety bonds furnished by him pursuant to the earlier order.