Non Bailable Warrant: Preventive Measure Not Ultra Virus by Nikita Lakhani

Issuance of Non Bailable warrant is very much depreciated in law because it is in direct conflict with the fundamental right. As Article 21 is not merely a twinkling star in the high heavens to be worshipped and rendered vociferous lip-service only but in deed is an actually meaningful protective provision. At the same time it is the incumbent on the learned trial Court to secure the presence of the accused by the issuance of non- bailable warrants of arrest as the Court cannot be made helpless or powerless if there is urgency of the implementation of law even superseding fundamental rights. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order.

Non Bailable Warrant can be issued in Exceptional Circumstances.

It is well settled principle that the Court normally issues summons and does not issue non-bailable warrant simultaneously but it can do so if it has a reason to believe that the accused has absconded and/or will not obey the summons but Non­bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result . In the instances where accused has been granted Bail and has not appeared before the court can be well considered as a sufficient reason to believe that the accused will not obey summons/ Bailable warrant. This is the general procedure that has to be followed but if court finds it necessary in some circumstances to issue a Non Bailable warrant it may do so. If an accused is not appearing before the Court, then it can be used as an coercive and deterrent powers otherwise the Court will be like a paper tiger.

Non Bailable Warrant can be Issued for the Execution of Sentence. 

The power of magistrate to issue Non Bailable Warrant is further widened in the case of Sharad Jethalal Savla v. State of Gujarat , where the trial Court has committed no error in issuing a non-bailable warrant of arrest having noticed that the accused was not present at the time of pronouncement of the judgment and order of conviction and sentence in view of the provisions of Section 418 (2) of the Cr.P.C. which is a mandatory provision and also trial Court owes a duty to see that the order of sentence is executed, otherwise the accused would conveniently avoid the same.

This principle has also been reiterated in the case of Ishwarbhai Hirabhai Chunara v. State Of Gujarat. It is thus quite clear that as soon as the sentence is pronounced, the accused is to be taken into custody on the strength of a warrant. In the view of the provisions of Section 418 Cr. P.C., the courts are duty bound to issue a warrant of arrest against whom judgement is passed. If the judgment of conviction is pronounced in the absence of the accused and immediately after pronouncing the judgment, the appellate Court can issue a non-bailable warrant for the arrest of the accused towards execution of the sentence. When the accused is not present at the time of pronouncing the judgment and if judgment is pronounced in his absence and because, it is a judgment of conviction, the appellate Court has to issue a non-bailable warrant for the arrest of the accused to undergo the sentence of imprisonment. Non- Bailable warrant is nothing but the warrant of arrest and a person can be sent jail after the issuance of such warrant. Issuance of such warrant is much required when the order of conviction is passed and the accused is not in custody.

Balance between Personal liberty and the interest of the State.

But now the battle between the issuance of Non Bailable Warrant and personal Liberty as enumerated under Article 21 of the Indian Constitution needs to be resolved. In order to harmoniously construe both the aspects, The Supreme Court in the case of Inder Mohan Goswami v. State of Uttaranchal and after referring earlier decisions lays down the parameters for issue of Non bailable warrant. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.

The Apex court has prescribed broad guidelines for the issuance of the Non Bailable warrant.

The three conditions upon which non bailable warrants can be Issued are:

  • If it is reasonable to believe that the person will not voluntarily appear in court; or
    • The police authorities are unable to find the person to serve him with a summon; or
    • It is considered that the person could harm someone if not placed into custody immediately.

    Although these principles are not exhaustive but needs to be borne in mind while proceeding for issuance Non bailable Warrant. In the ruling of Raghuvansh Dewanchand Bhasin v. State of Maharashtra & Anr, it has been held that power and jurisdiction of court to issue appropriate warrant has to be exercised judiciously, striking a balance between the need of law enforcement on the one hand and the protection of citizen from highhandedness at the at the hands of the law-enforcement agencies on the other. Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed.

    Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter-alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. The court should also arrive at its objective satisfaction by properly balancing personal liberty of such person and social interest, considering totality of facts and circumstances of case and by following proper procedure requisite for far trail in consonance with rule of law and basic tenets of criminal law jurisprudence vis-a-vis constitution of India. The court has to properly balance both personal liberty and societal interest.

    The welfare of an individual must yield to that of the community. But if order of conviction has been passed and also the applicant has avoided attending the Court in of one pretest , so in order to take the person in custody the issuance of Non Bailable warrant. The fundamental balance between personal liberty and societal interest had to be established by the Court, In the pursuit of societal interest the accused had to be taken into custody and his absence can compel the court to issue the non Bailaible warrant at first instance.

    It is true that the neither Section 70 nor section 71 CrPC uses the expression “Non Bailable Warrant” but that by itself cannot render Non Bailable warrant bad in law. The term warrant itself has to be construed in a wider sense as inclusive of Non Bailable warrant and not merely limited to issuance of Bailable warrant. However no cast iron rule can be formulated for the issuance of Non bailable warrant rather it rests entirely in the discretion of the court. Although, the discretion is exercised judiciously and it is not possible to computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. But this juxtaposition needs to be resolved.

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