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Legal Remedies available to a Accused in case of Issuance of a Non-Bailable Warrant: Lawyers Advice

 > Anticipatory Bail & Regular Bail  > Legal Remedies available to a Accused in case of Issuance of a Non-Bailable Warrant: Lawyers Advice

Legal Remedies available to a Accused in case of Issuance of a Non-Bailable Warrant: Lawyers Advice

Under the Section 73 of the Code of the Criminal Procedure, the Chief Judicial Magistrate or a magistrate of the first class may order a warrant to anyone within their local jurisdiction for his arrest. Now, under the clause (1) of the said section, there are few important points which are to be considered before issuing a non-bailable warrant:

  1. That the convict has escape,
  2. That the convict is a proclaimed offender, or
  3. That the accused has committed a non-bailable offence and is evading arrest.

The basic rule of law is that any person who has a non-bailable offence issued against him should satisfy either of the three aforementioned conditions. Now in the case of a non-bailable warrant, it is not enough that the person has committed a non-bailable offence. In a case titled, Mohammad Rustum Alam @ Rustum & Others v. State of Jharkhand (Cr. M.P. No. 2722 of 2019), the court observed that the nature of offence (bailable/non-bailable) is not the only ground to issue warrant of arrest under Section 73 of the Code of Criminal Procedure. It is important that the said accused must not only commit a non-bailable offence but may also evade his arrest. The word, ‘and’ in Section 73 (1) of the Code of Criminal Procedure is a conjunctive clause. Thus, it is important that both the conditions are met simultaneously to enable a court to issue the warrant. This way we may conclude that a person not only should be charged of a non-bailable offence, but also be eluding his arrest.

Non-Bailable Warrant contravenes One’s Personal Liberty prescribed under Article 21:-
For an accused having a non-bailable warrant issued against him, has to prove that the same is in contravention with Article 21 of the Constitution. Further, the warrant does not meet the conditions necessary for ordering such a warrant. The Hon’ble Supreme Court in, Inder Mohan Goswami v. State of Uttaranchal, Appeal (crl.) 1392 of 2007, laid down the following parameters in relation to issuance of a non-bailable warrant. The court clearly pointed out as stated above that, the same involves intervention with the personal liberty. Further, arrest and detention mean clear deprivation of one’s rights as an individual. As a result, it is critically important that in order to secure the subsistence of a civilised society. It may be noted that only when it significantly important to serve the greater interest of the society, it is imperative to curtail freedom of an individual, only in such cases non-bailable warrants are to be issued.

A proper balance between one’s personal liberty and the interest of the state is to be maintained. It is important that the court balances the personal liberty of such accused along with his social interest, determining the facts and circumstances of the matter and following the defined set up required for a fair trial in agreement with the rule of law. In R Sarathkumar v. The Inspector of Police, Crl.O.P .(MD) No.19301 of 2018, Justice Rajan pointed out that person’s personal liberty is secured under Article 21 of the Constitution. Therefore, unless there is an absolute necessity, non-bailable warrant should not be issued under Section 138 of the Negotiable Instrument Act.

Critical Points with respect to Issuance of a Non-Bailable Warrant:-
In Inder Mohan Goswami v State of Uttaranchal, Appeal (Crl.) 1392 of 2007, paragraph 54, the Hon’ble Supreme Court of India has clearly laid down, few conditions to be considered before issuing a non-bailable warrant. According to the court, non-bailable warrants shall only be issued when summons or bailable warrants to bring someone into court are unlikely to produce the desired result. Now, this is generally when the authority has a reason to believe that the concerned accused would not appear voluntarily before the court, or the Police is unable to find the person to serve him with a bid, or it has been considered that the person could potentially harm if not placed in the custody. We can thus conclude that, without proper inspection of the facts and presence of critically serious ramifications, neither bailable no non-bailable warrants should ever be issued. The judicial pronouncement made in Raghuvansh Dewanchand Bhasin v. State of Maharastra & Another, Criminal Appeal No. 1758 of 2011, has clearly emphasised on the fact that the power to issue any appropriate warrant has to be employed with proper scrutiny and judiciously. A proper balance is to be struck between the need of law enforcement and the security of the citizens from arbitrariness at the hands of law enforcing agencies. In the same case, the Hon’ble apex court held that it is significant for the court of law to have a prima facie satisfaction that the accused committing the said non-bailable offence is eluding his arrest. Before reaching the conclusion, it is significant that proper material is considered by the court of law. Also, it may be noted that mere absence of the accused cannot be presumed as an evasion to arrest. Also, evading arrest cannot be the sole basis for issuing a warrant against the person.

Presence of the ‘Absolute Necessity’ and the Three-Step Approach:-
There should be an ‘absolute necessity’ for the issuance of the non-bailable warrant, as it has been discussed in Omvati v. State of U.P & Another, Criminal Appeal No. 141 of 2004. The Hon’ble Court in the given case has discussed a three-step approach to issue a warrant. Firstly, a summon has to be issued against the accused. Now in the case, the accused does not reciprocate to the order, then a bailable warrant should be proceeded. After giving all sorts of remedies, if the court of law is fully satisfied regarding the attempts made by the accused to escape the proceedings, then it may issue a non- bailable warrant. Therefore, a non-bailable warrant proceeded without following the three-way approach, then such warrants are strictly in contravention of the scheme of the Code of Criminal Procedure. Further, they are illegal in nature.

A non-bailable warrant is subject to many conditions and proper consideration of facts and material. An arbitrary approach to issue the same may result in violation of the rule of law. Accused having a non-bailable warrant against him needs to consider the properly scrutinize his case in terms of the law. The remedial measures to save oneself from the arbitrary procedure is careful consideration of the legal and factual materials. For this, it is important that the conditions mentioned in the first clause of Section 73 of the Code of Criminal Procedure are examined alongside judgments passed by the judiciary.
Authored By: Adv. Anant Sharma & Aniket Pandey

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