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A.Veeraiah
To secure the presence
of the accused, the court issues warrant of arrest during the pendency of
trial. Warrant is an order addressed to a certain person directing him to
arrest the accused and produce him before the court. The warrant may be
issued to Police Officer or any other person to execute the same. As per
Sec. 70 of Cr.P.C., every warrant of arrest issued by the court under code
of Criminal Procedure shall be signed by the Presiding Officer of
such court and shall bear seal of the court and every such warrant shall
remain in force until it is cancelled by the court which issued or until it
is executed. The Magistrate authorized to issue warrant for detention of
person who ensures that every warrant, authorizing detention to specifies
he age of person to be detained.
Types of Warrants
Though, there is no
mention of Bailable and Non bailable warrants in the code, Warrants are of
two kinds, Bailable and Non-bailable. Sec. 71 deals with bailable warrants.
As per Sec. 71 (1), any court issuing a warrant for the arrest of any
person may it its discretion direct by an endorsement on the warrant that
if such person executes a 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. The
endorsement shall state the number of sureties, amount in which they and
the person for whose arrest warrant issued and to be respectively bound,
the time at which he attend before court. Whenever security is taken under
this section, the officer who whom warrant is directed shall forward the
bond to the court.
Non-bailable warrant is
other than the bailable warrant.
When Nbw Can Be Issued
Against The Accused?
In a reported judgment
between Inder Mohan Gowswamy and another Vs. State of Uttaranchal and
others reported in 2007(12) SCC. (1), the Hon'ble Apex court held that
Non-bailable warrant normally not to be issued if person or accused could
be secured. At para 51 of the judgment the Hon'ble Apex court held that
issuance of Non-bailable warrant 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.
The Hon'ble Apex court
further held that non-bailable warrant should be issued to bring the person
to court when summons and bailable warrant would be unlikely issued. This
could be reasonable to believe that the person willing to appear in court
or the Police authorities are unable to find the person to serve him with
summons or it is considered that the person could harm some one if not
placed in to the custody immediately. The Hon'ble Apex court held that some
times in the larger interest of the public, State becomes absolutely
imperative to curtail the freedom of individual for a certain period only;
this non- bailable warrants should be issued.
Whether Nbw Can Be
Issued Against Witneesses?
In a reported judgment
between K. Srinivas Vs. State of A.P. reported in 2003 (1) ALD (Crl) 53,
the Hon'ble High Court held that issuing of NBW against the
petitioner/witness is not correct. The Hon'ble High Court further held as
per sec. 350 Cr.P.C. when a witness fails to attend the court disobeying
the orders issued warrant for the same, found absented himself with a just
cause a maximum punishment can be imposed is Rs.100/- and nothing more.
The Honble high court
further held that "Administration of justice is very solemn duty
officers administering justice, especially criminal justice which
involves the liberty and reputation of individuals should exercise the
powers, especially the power to sending persons to judicial custody, vested
on them with great care and circumspection because personal liberty of
individuals, which is a fundamental right enshrined in the constitution is
involved. Since Article 21 of the constitution mandates that no person
shall be deprived of his life and personal liberty except in accordance
with the procedure established by law. Care should be taken to see if
person ordered to be sent to judicial remand can be deprived of his liberty
under the provision of nay statue or not?"
Whether The Presence Of
Accused Is Necessary At The Time Of Filing Recall Of Nbw Issued By The
Court
In a reported judgment
2000(1) LS 78 between Ramakrishna Agencies, Guntur Vs. State of A.P., the
Hon'ble High Court held that no provision of law is brought to notice that
accused should be present when an application is filed for withdrawing
non-bailable warrant.
In a reported judgment
between Shaik Yousuf Vs. State of A.P,. 2001 ALT (Crl) (2) 270:- The
Hon'ble High Court held that " In ordinary course of warrant should
have recalled if the court is convinced that his absence on earlier
occasion was not willful. Even otherwise if for any reason the petitioner
is brought by executing a warrant issued against him, still he can be
enlarged on bail. In that case the contention of the petitioner/accused
that he was undergoing medical treatment .
In 2007 ALT (1) (Crl)
180, between M. Sainath Vs. Ezaf Pentawa, the Hon'ble High court held that
petitioner is directed to appear before the court on the next date of
hearing and file petition U/s. 70(2) Cr.P.C. to recall the said warrant.
In a reported judgment
in between Mita Labs Pvt. Ltd. Vs. G.E. Wide consumer Financial Services
Ltd. reported in 2001 ALD (2) 489, the Hon'ble High Court held that the
logic of learned Magistrate that because the accused had not executed any
bonds earlier, hence it was not possible to recall NBW and filed petition
U/s. 70(2) Cr.P.C. is difficult to be accepted. Order quashed in NBW
cancelled, petitioner is directed to appear the court on the next date of
hearing and on such appearance they shall be bound over terms as the
Magistrate considers.
In a reported judgment
between TMT Kaladi Vs.State reported in 2006 (Crl) LJ. 2053:- The Hon'ble
High Court held that non-bailable warrant pending against petitioner,
hearing had been posted for furnishing copies of final report and documents
to her. Her presence was therefore required. Unless she makes appearance
and warrant is recalled her application U/s. 317 Cr.P.C. to condone her
absence and U/s. 205 to allow or to appearance by pleader cannot be
entertained.
In a reported judgment
between Yenkey Drugs and Pharmaceuticals Pvt. Ltd., and another Vs. Bhagya
Nagar Chlorides reported in 2003 (1) ALD 119 AP, the Hon'ble High Court
held that when the accused is absent in the court on the hearing date, file
an application to dispense with personal appearance application dismissed
and NBW issued. Application filed to cancel the same also dismissed. The
Magistrate did not exercise his jurisdiction. NBW is cancelled and accused
is directed to appear in the court on the next date of hearing.
In a reported Judgment
between Ch. Venkata Reddy Vs. State of A.P. reported in 2008 (3) APLJ 85,
the Hon'ble High Court held that if the accused failed to appear in spite
of service of summons. Hence non bailable warrants are issued. The accused
filed application to recall NBW and also to dispense with their personal
attendance. It is discretion of the learned Magistrate to dispense with
personal appearance. The accused must appear at the time of framing of
charges under sec. 239 Cr.P.C. and examination under section 313 Cr.P.C.
and also on the date of pronouncement of the judgment.
In a reported judgment
between A. Venugopal Vs. State of A.P. and another reported in 1999 (4) ALD
449, the Hon'ble High Court of A.P. held that when a notice was returned by
an endorsement by the postal authorities which may amounts to refusal to
receive letter. The Hon'ble court held that it is possible that the letter
might have been tendered to a wrong person who might have refused to claim
it as not bound addressed to him. Under the circumstances the NBW issued on
petitioner/accused has bound recall and the petitioner shall attend the
court on the next date of hearing.
In a reported judgment
between Bhagvan Premchand Vs. State of A.P. reported in 1998 (1) ALT (Crl)
110 A.P., the Hon'ble High Court held that the Magistrate should shed wrong
practice of issuing NBW, the moment the accused failed to appear before the
court without giving an opportunity to explain the circumstances under
which the accused failed to appear in the court and in the light of the
language employed in Sec. 73 of Cr.P.C. NBW can be issued sparingly that to
after coming to a conclusion that there is no other way to secure the
presence of accused.
In a reported judgment
between Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and another
reported in 2008 Crl LJ 2127 The Honble Bombay High Court held that power
of jurisdiction of court to issue proper warrant against an accused on his
bail to attend the court, such power has to be exercised judicially and not
arbitrarily. It further held that the magistrate could have issued either
notice or bailable warrant depending upon the facts .The High court
directed the police officer to pay costs of Rs.2000/- from his own account.
The facts in brief that
a non bailable warrant issued against himreturnableon31.10.2002, the
appellant Raghuvansh appeared and filed a petition to re call NBW and
warrant was cancelled. On15.08.2002 the police arrested the appellant, even
though he stated that NBW recalled, and produced before the Magistrate and
the magistrate directed the release of accused.
Guidelines Issued By
The Apex Court
In a reported judgment
between Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and another
AIR 2011SC 3393 the Hon'ble Apex court issued guide lines to the
subordinate courts at the time of issuance of NBWs. The Hon'ble Apex court
directed all of the subordinate courts to use printed and machine No. and
form No.2 for issuing warrant of arrest. The court must ensure that
complete particulars of the cases are mentioned in the warrant. The
Presiding Judge of the court should put his full and legible signatures in
the particulars and also ensuring that court seal appearing with complete
address of the court, prominently endorsed there on. The court must ensure
that warrant is directed to a particular police officer, it must be
returnable whether executed or non-executed on or before the date specified
there in. Every court must maintain a register in which warrant of arrest
issued must be entered and chronological serial number of such entry
reflected on the top right hand of the process. No warrant of arrest shall
be issued without being entered in the register. A register similar one
shall be maintained at concerned police station. The courts should not give
a long time for return of execution of warrants. On the date fixed for
return of warrant, the court must insist upon for compliance of report on
the action taken by thereon by the Station House Officer of concerned
Police station. The report of such warrant must be cogent and legible duly
forwarded by a superior police officer, so as to facilitate fixing of
responsibility in case of misuse. In the event of warrant for execution
beyond satisfaction court issuing it procedure laid down under section 78
and 79 Cr.P.C. a court must be strictly and scrupulously followed. In the
event of cancellation of arrest warrant by the court, the order cancelling
warrant shall be recorded in the case file and register maintained. A copy
thereof shall be sent to the concerned authorities requiring the process to
be returned unexecuted forthwith. The date of return of unexecuted warrant
will be entered in the above said register. A copy of such order shall also
be supplied to the accused.
Whether Police Can
Realease The Accused By Taking Bonds When Nbw Is Executed?
Yes. In cases where the
offence is bailable one.
As per sec. 81 of
Cr.P.C. the Executive Magistrate or District Superintendent of Police or
Commissioner of Police shall, if the person arrested appears to be the
person intended by the court which issued the warrant, direct his removal
in custody to such court. Provided that if the offence is bailable and such
person is ready and willing to give bail to the satisfaction of such
Magistrate, District Superintendent of Police, or Commissioner or a
direction has been endorsed U/s. 71 on the warrant and such person is ready
and willing to give security by such direction, the Magistrate, District
Superintendent of Police or Commissioner shall take such bail or security
as case may be and forward the bond to the court which issued the warrant.
Provided further that if the offence is Non-bailable one, it shall be
lawful for Chief Judicial Magistrate (subject to the provisions of section
437) or the session Judge, of the district in which the arrest is made on
consideration of the information and the documents referred to in
sub-section (2) of section 78, to release such person on bail.
Conclusion
Therefore I am of the
view that the courts shall exercise discretion before issuance of non-
bailable warrants. The Police also check and verify whether the NBWs
recalled prior to its execution. Whenever the petitioner/accused files a
petition U/s 70 (2) Cr.P.C for recall or cancellation of NBW, he shall file
process and the court shall send a memo to the concerned SHO with a
direction to return the warrant to the court.
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