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Cancellation/Recall of NBW pending against Accused.

July 16, 2021

By Y.Srinivasa Rao, Principal Assistant Sessions Judge, Tirupati, Andhra Pradesh.

Introduction:— A Non-Bailable Warrant issued by the Court is nothing but a process under Chapter VI of the Code of Criminal Procedure, to secure the presence of the Accused in Court. The said Warrant shall be in force until it is either executed or the same is cancelled by the Court/Magistrate who has issued the Non-Bailable Warrant vide Section 70(2), Cr.P.C.

Issuance of NBWTwo Categories:—
An Accused, who is facing a Non-Bailable Warrant for his arrest may be put in either one of the following categories, viz.,

(i) an Accused who has been already on bail, but, due to his absence on a particular day of hearing, a Non-Bailable Warrant has been issued for his arrest and production before the Court, and

(ii) an Accused who was never arrested during the course of investigation against whom a Non-Bailable Warrant has been issued by the Court after taking cognizance of the offences.

Whether appearance of the accused before a Magistrate is necessary to cancel/recall NBW:—

In fact in Ramoji Rao Vs. V.V.Rajan in Cr.M.P.No.4424/97 dated 29-10-1997 this Court explained the legal position with regard to the appearance of the accused before a Magistrate and held that the Magistrate is having ample power to proceed with the case by dispensing with the presence of the accused even in a warrant case.

As per section 73 of the Criminal Procedure Code an N.B.W. can be issued only to secure the presence of any escaped convict, proclaimed offender or the person who is evading the arrest. In the instant case, being summons case, the question of arrest also will not arise. Further, the petitioner filed an application seeking dispensation of his presence on that day for the reasons slated in the affidavit. Instead of allowing the application, the learned Magistrate not only dismissed the application, but also even without giving time for his appearance issued N.B.W. Such conduct on the part of the Magistrate is depricaled. The discretion vested in them should be properly exercised to secure the ends of justice but not to penalise or harass an individual with the procedural wrangles of the Court more so without visualising the evil consequences that will flow from the order that is going to be passed. This Court is often coming across with such type of orders passed by the Magistrates. Hence this Court would like lo emphasize that the Magistrates should shed the wrong practice of issuing N.B.Ws. the moment the accused fail to appear in 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 section 73 of Criminal Procedure Code an N.B.W. can be issued sparingly that lo after coming to the conclusion that there is no other way to secure the presence of the accused. See. Bhagwan Premchandani vs State Of A.P. And Anr, 1998 (1) ALD 494.

The last issue raised that remains to be considered is whether the Courts can at all issue a warrant, called a “non-bailable” warrant because no such terminology is found inthe Code as well as in Form 2 of the Second Schedule to the Code. It is true that neither Section 70 nor Section 71, appearing in Chapter VI of the Code, enumerating the processes to compel appearance, as also Form 2 uses the expression  like “non-bailable”.  Section 70 merely speaks of form of warrant of arrest, and ordains that it will remain in force until it is cancelled. Similarly Section 71 talks of discretionary power of Court to specify about the security to be taken in case the person is to be released on his arrest pursuant to the execution of the warrant issued under Section 70 of the Code. Sub-section (2) of Section 71 of the Code specifies the endorsements which can be made on a warrant. Nevertheless, we feel that the endorsement of the expression “non-bailable” on a warrant is to facilitate the executing authority as well as the person against whom the warrant is sought to be executed to make them aware as to the nature of the warrant that has been issued. In our view, merely because Form No.2, issued under  Section 476 of the Code, and set forth in the Second schedule, nowhere uses the expression bailable or non-bailable warrant, that does not prohibit the Courts from using the said word or expression while issuing the warrant or even to make endorsement to that effect on the warrant so issued. Any endorsement/variation, which is made on such warrant for the benefit of the person against whom the warrant is issued or the persons who are required to execute the warrant, would not render the warrant to be bad in law. What is material is that there is a power vested in the Court to issue a warrant and that power is to be exercised judiciously depending upon the facts and circumstances of each case.  Being so, merely because the warrant uses the expression like “non- bailable” and that such terminology is not to be found in either Section 70 or Section 71 of the Code that by itself cannot render the warrant bad in law. The argument is devoid of substance and is rejected accordingly. See. Raghuvansh Dewanchand Bhasin vs State Of Maharashtra & Anr 

Section 446-A of Cr.P.C:—

In respect of an Accused, falling under the first category, under Section 446-A of Cr.P.C., the Court may declare that the bail bond has been forfeited. But, there is no automatic cancelation of bail. When such Non-Bailable Warrantis pending execution, the Accused may appear before the Magistrate and explain to him that his absence was not willful and he was prevented from appearing before the Court by certain unavoidable circumstances. When the said warrant is so sought to be recalled, the Court will be concerned as to whether the absence of the Accused on the appointed date of hearing was willful or not. If the Court finds that his absence was not willful, it will be obligatory for the Court to recall the warrant. Here, the Court is not concerned with the gravity of the offences, the role played by the Accused and the other circumstances. This is because, only on considering all these facts, the Accused had earlier been granted bail.

In the second category of cases, where the Accusedwas never arrested during the course of investigation as he evaded arrest and after taking cognizance on the final report, if the Court has issued Non-Bailable Warrant, if the Accused approaches the Court for recalling the said warrant under Section 70(2) of Cr.P.C. the consideration would be totally different. Here, the Court will have regard for the gravity of the offences, role played by the Accused, his roots in the society, likelihood of abscondence, need of custodial interrogation by the Police, etc. More or less, the factors which are to be taken into account while considering a Petition for recall of warrant would be akin to the facts which are taken into consideration while considering a Petition for bail. See. State vs.Subash Chandra Kapoor., 2012 SCC OnLine Mad 1801 : (2012) 3 MWN (Cri) 367 : (2012) 1 LW (Cri) 720.

Non-bailable warrant issued without a preceding bailable warrant where the offence is bailable:-

In R. Sarathkumar v. The Inspector of Police, C-9, Police Station, Neelankarai, Chennai, reported in 2004 MLJ (Cri) 421, whereby and where under it is observed and held as follows:

“Non-bailable warrant issued without a preceding bailable warrant where the offence is bailable, is not in accordance with the scheme of the criminal procedure code and hence, illegal. Therefore, while exercising the power conferred under Section 87, Cr.P.C., and issuing a warrant, in a case of bailable offence, the Magistrate shall always issue at the first instance a bailablewarrant(including the endorsement provided under Section 71, Cr.P.C.). If the person does not appear before the Court even after execution of bailable warrant, then, and only then the Magistrate may issue a non-bailablewarrant. Therefore, in all cases under Sec.138 of the Negotiable Instruments Act, though it is possible or there is no legal infirmity for the Magistrate to issue a non-bailable warrant for the reasons to be recorded in writing, yet, considering the bailable nature of the offence, under Section 138 of the Negotiable Instruments Act the Magistrate shall always issue “bailable warrant” at the first instance. For the above reasons there appears no reason or no circumstances warranting the issue ofnon-bailable warrant in this case.”

In Raghuvansh Dewanchand Bhasin vs State Of Maharashtra & Anr, it was held that

If accused appears before Court pursuant to the warrant pending against him, the accused is deemed to have come to the judicial custody:—

In Sundar alias Sundararajan v. The Inspector of Police, All Women Police Station, Palayamkottai, Tirunelveli District) reported in 2001 MLJ (Cri) 563, Special Page 566 at paragraph Nos. 6 and 7, wherein it is observed and held as follows:

“6.If the accused appears before the appellate Court pursuant to the warrant pending against him, the accused is deemed to have come to the judicial custody, which amounts to confinement.

Therefore, in the peculiar circumstances of this case, in case, the accused appears before the appellate Court, the appellate Court is directed to recall the warrant and the moment the warrant is recalled, the execution of the sentence passed against the accused, shall stand suspended and the appellate Court is directed to release the petitioner on bail on his executing a bond for Rs. 5,000/- with two sureties for the like sum to its satisfaction pending disposal of the revision.”

Sections 255 and 353 of Cr.P.C:

In fact, it is to be pointed out that Section 255 ofCr.P.C., speaks of ‘Acquittal or Conviction’. Also Section 353 of Cr.P.C., under the caption judgement (5, 6), which reads as under:

“(5) If the accused is in custody, he shall be brought up to hear the judgment pronounced.

(6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted; Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounced the judgment not withstanding their absence.”

As a matter of fact, the ingredients of Section 353 ofCr.P.C., provides the manner in which the judgment is to bedelivered. Section 354 of Cr.P.C., describes what judgment should contain, etc., where the case is posted for judgment, the trial of the case stands terminated within the meaning of Section 353 of Cr.P.C. It is to be remembered that Judgment shall be pronounced immediately after conclusion ofthe trial or at some subsequent time of which notice shall be given to the parties or their pleader which specified in Clause (a), (b) and (c) of Sub-Section (1) of Section 353 ofCr.P.C.

Section 70 of Cr.P.C:—

Besides the above, Section 70 of Cr.P.C, speaks ‘Form of warrant of arrest and duration’. It is to be noted that even if the learned Advocate is not present, but the accusedis present, the Court would decide the application for recall of warrant on merits, as per decision (Deivasigamani v. State, 2003 MLJ (Cri) 201 (Mad)). Indeed as per Section 70(2) of Cr.P.C., the Judicial Magistrate has all necessary powers to consider the orders as regards the issuance of a ‘non-bailable warrant’. It is for the Court, if convinced that the absence of an accused was not wilfull, the warrant should be recalled as per decision (Yogesh Kumar Bhargava v. State of Uttarpradesh) reported in 2001 Cri LJ, 2835, 2836 (All).

The Judicial Magistrate under Section 70 of Cr.P.C., can convert a warrant of arrest into a Bailable Warrant. Also that, the warrant once issued is very much alive, until it is cancelled or executed even though it specifies a returnable date as per the decision Inder Mandal reported in AIR 1967 Patna 141, where the issuance of non-bailable warrant is an unwarranted one, the same can be quashed by the Honourable High Court exercising its discretion as per decision H.C. JAIN v. R.K. Synthetics and Fibres Pvt. Ltd., reported in 1999 Cri LJ 2922 (BOM).

In Deivasigamani v. The State represented by the Inspector of Police, Central Crime Branch, Chennai) reported in (2003) MLJ (Cri) 201 (Mad) whereby and whereunder it is observed and held as follows:

“10.In the case on hand, the petitioners herein were unable to appear before the trial court on 13-08-2002 and given instructions to the counsel and prayed for dispensing with their appearance. Unfortunately, the counsel could not represent the petitioners, with the result Non-bailable warrant was ordered on the same day on 13-08-2002, returnable on 23-08-2002. It is evident that on 23-08-2002 the petitioners have filed an application under Section 70 (2) of Cr.P.C. to recall the warrant. On that day, the counsel for the petitioners herein did not appear when the case was called. Immediately, the same was dismissed after calling, without noting the fact that the petitioners were very much available in the court. The impugned order of remand also disclose the said fact that the petitioners were present along with other accused, but they were remanded to judicial custody consequent to the order of dismissal of their petition to recall the warrant. Apparently, when the petitioners surrendered before the court with an application to recall the warrant, dismissal of the same mechanically without considering it on merits is unreasonable. While so, the remand order passed by the Magistrate is unsustainable. Admittedly, in the impugned order of remand, no reason has been assigned by the learned Magistrate. Admittedly, no witnesses were present on the day of remand. Indeed, the petitioners have proved their bonafide by filing a petition explaining the reason for their non-appearance on 13-08-2002. PW1 also deposed before the said court that he has no intention to proceed against the petitioner herein as they have already settled the amounts payable by them. Beyond that, the petitioners are all respectable persons occupying higher post in the State Government. While so, without considering the above factors, remanding the petitioners mechanically would amount to exercise of discretionary power in an unjudicial and arbitrary manner. Hence, interference ofthis Court is very much warranted.”

It is to be noted that a warrant remains valid unless it is executed or cancelled. Mere issuance of Non-bailablewarrant, in a given case, without taking note of all aspects would not be an exercise of judicial powers as opined by this Court. See. M. Senthilkumar Vs. P. Ramalingam., 2016 SCC OnLine Mad 7912.

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