Supreme Court: If Arrest Is Made On Warrant, No Separate Grounds Of Arrest Need To Be Given.

If a person is arrested on a warrant, the grounds for reasons for the arrest is the warrant itself; if the warrant is read over to him, that is sufficient compliance with the requirement that he should be informed of the grounds for his arrest. If he is arrested without a warrant, he must be told why he has been arrested. If he is arrested for committing an offence, he must be told that he has committed a certain offence for which he would be placed on trial. In order to inform him that he has committed a certain offence, he must be told of the acts done by him which amounts to the offence. He must be informed of the precise acts done by him for which he would be tried; informing him merely of the law applicable to such acts would not be enough. (See: Vimal Kishore Mehrotra (supra)). (Para 36)

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2808 of 2025.

Decided On: 23.05.2025

Kasireddy Upender Reddy Vs. State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Citation: MANU/SC/0773/2025.

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Supreme Court: Procedure the High court or Session Court must follow while entertaining Anticipatory bail application

We may remind the High Court of what this Court observed

in the case of Srikant Upadhyay & Ors. v. State of Bihar &

Anr., reported in 2024 INSC 202. We quote the relevant

observations as under:

“… A bare perusal of Section 438(1), Cr.PC, would

reveal that taking into consideration the factors

enumerated thereunder the Court may either reject

the application forthwith or issue an interim order

for the grant of anticipatory bail. The proviso

thereunder would reveal that if the High Court or,

the Court of Sessions, as the case may be, did not

pass an interim order under this Section or has

rejected the application for grant of anticipatory

bail, it shall be open to an officer in-charge of a

police station to arrest the person concerned

without warrant, on the basis of the accusation

apprehended in such application. In view of the

proviso under Section 438(1), Cr.PC, it cannot be

contended that if, at the stage of taking up the

matter for consideration, the Court is not rejecting

the application, it is bound to pass an interim

order for the grant of anticipatory bail. In short,

nothing prevents the court from adjourning such an

application without passing an interim order. This

question was considered in detail by a Single Bench

of the High Court of Bombay, in the decision in

Shrenik Jayantilal Jain and Anr. v. State of

Maharashtra through EOW Unit II, Mumbai 2014 SCC

Online Bom 549 and answered as above and we are in

agreement with the view that in such cases, there

will be no statutory inhibition for arrest. Hence,

the appellants cannot be heard to contend that the

application for anticipatory bail filed in November,

2022 could not have been adjourned without passing

interim order.…

We have already held that the power to grant

anticipatory bail is an extraordinary power. Though

in many cases it was held that bail is said to be a

rule, it cannot, by any stretch of imagination, be

said that anticipatory bail is the rule. It cannot

be the rule and the question of its grant should be

left to the cautious and judicious discretion by the

Court depending on the facts and circumstances of

each case. While called upon to exercise the said

power, the Court concerned has to be very cautious

as the grant of interim protection or protection to

the accused in serious cases may lead to miscarriage

of justice and may hamper the investigation to a

great extent as it may sometimes lead to tampering

or distraction of the evidence. We shall not be

understood to have held that the Court shall not

pass an interim protection pending consideration of

such application as the Section is destined to

safeguard the freedom of an individual against

unwarranted arrest and we say that such orders shall

be passed in eminently fit cases. At any rate, when

warrant of arrest or proclamation is issued, the

applicant is not entitled to invoke the

extraordinary power. Certainly, this will not

deprive the power of the Court to grant pre-arrest

bail in extreme, exceptional cases in the interest

of justice. …”{Para 16}

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.5456 OF 2024

DEEPAK AGGARWAL  Vs  BALWAN SINGH & ANR.

Dated: 18th December, 2024.

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Can the court issue an arrest warrant against the Non-applicant for recovery of the maintenance amount without issuing a distress warrant?

On a plain reading of sub-section (3) of Section 125 Cr.P.C., it is

apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the  amount due in manner provided for levying of fines for every breach of the order. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of sub-Section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable

property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may seized in execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it further clear that the jurisdiction of the Magistrate for sentencing such

person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence.

It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight way against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for realization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance

of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant.

In view of aforesaid, this Court finds that the Principal Judge, Family Court, Kasganj has not followed the establish procedure for issuance of recovery warrant in default of payment of arrears maintenance allowance within the time allowed by him in the execution case concerned. The order directing issuance of warrant of arrest is patently illegal and not warranted by law. Order dated 30.11.2021 is hereby set aside.

ALLAHABAD HIGH COURT

Case :- APPLICATION U/S 482 No. - 4483 of 2022

Applicant :- Vipin Kumar

Opposite Party :- State of U.P. and Another

Coram: Hon'ble Ajit Singh,J.

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Whether Magistrate should issue summons or arrest warrant against accused on filing of chargesheet?

   A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170, Cr.P.C. which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.{Para 10}

                  Supreme Court

JUSTICE SANJAY KISHAN KAUL JUSTICE M. M. SUNDRESH

Aman Preet Singh Vs. C.B.I.

Criminal Appeal No.929 of 2021.

2nd September 2021

Citation: 2021 ALL SCR (Cri) 2018

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Kerala HC: International Arrest Warrant By Itself Not Sufficient To Extradite A Person To UAE Unless There Is A Written Request

 The contention of the petitioner is that the

Government of Dubai has issued an International Arrest

Warrant in Case No.43177/Penal/2017 by Dubai Court

ordering the arrest of the 8th respondent for pursuing him

locally and internationally. Article 8 of Ext.P3 Extradition

Treaty would show that the request for extradition shall be

made in writing and dispatched through the diplomatic

channels with supporting documents and particulars. The

warrant of arrest is only one of the documents made mention

in Article 8 of the Extradition Treaty. In view of the specific

provisions contained in the Extradition Treaty between the

Government of Republic of India and the United Arab

Emirates, an International Arrest Warrant by itself will not

suffice to arrest an accused and extradite him to UAE. For

extradition, definitely there should be a request for extradition

in writing which should be dispatched through diplomatic

channels. In the absence of such a request in terms of Article

5 of the Extradition Treaty, Ext.P2 International Arrest Warrant

issued by the Government of Dubai would not be sufficient to

apprehend the 8th respondent and extradite him to UAE.

In the circumstances of the case, no orders can be

passed or directions be given to respondents 1 to 7 to

extradite the 8th respondent to UAE for prosecution. No relief

can be granted to the petitioner in the circumstances of the

case. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

WP(C).No.13875 OF 2020(H)

RAKHUL KRISHNAN  VS  UNION OF INDIA

Coram:  MR.JUSTICE N.NAGARESH

Dated this the 21st day of December, 2020

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Whether Magistrate can issue an arrest warrant against accused if anticipatory bail granted by High court is in force?

 For the aforesaid backdrop, this Court notices that it is a

case where on remand from the District Judge, the Court has

taken cognizance of the offences relating to allegations under

Sections 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The

High Court vide its order dated 29.4.2003 had granted

anticipatory bail to the petitioners with the condition that in the

event of arresting the petitioners, they shall be released on bail.

Keeping in view the conditions laid down in Sushila Agarwal &

Others (supra), this Court is of the firm view that the action of

the learned Magistrate from the date, it has taken cognizance and

upto passing of the impugned order dated 3.9.2020 has acted in

clear violation of the orders passed by the High Court after having

granted anticipatory bail. There was no occasion for the learned

Magistrate to have issued the arrest warrants and such course or

power was not available with it in spite of having been given to it.

Learned Magistrate has insisted on issuing of the arrest warrants

and it is also seen that the provisions of Section 362 Cr.P.C.

cannot come into operation while deciding the application under

Section 70(2) Cr.P.C. The action of the learned Magistrate is

clearly wanting and shows scant respect to the High Court’s order

as well as having little knowledge relating to criminal law.

 HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No.4317/2020

 Nanuram Saini S/o Mangal Chand Saini,  Vs  State Of Rajasthan

Coram: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order:  09/11/2020

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Whether magistrate should issue a warrant for securing the presence of complainant if the police have filed a closure report in the case?

The said Magistrate summoned the Petitioner who showed his inability to appear on the due date as per the endorsement made in the summons and prayed for adjournment. However, the learned Magistrate issued bailable warrants to secure his presence as a complainant for consideration of cancellation of the First Information Report. The Petitioner again showed his inability to appear on the due date because of his cases having been listed for hearing in the High Court. Now, the learned Additional Chief Judicial Magistrate has issued non-bailable warrants against the Petitioner to secure his presence for 4.10.2002. It is claimed by the Petitioner that he is no more interested in the First Information Report and he himself is not the offender, therefore, the learned Additional Chief Judicial Magistrate, Arki has no jurisdiction to force his appearance as a complainant/informant in the Court, in a case in which the police has submitted a cancellation report.

3. I have heard the learned Counsel for the Petitioner and the learned Law Officer for the State.

4. There is no dispute that on the basis of the First Information Report lodged by the Petitioner the investigating agency has filed a cancellation report. As and when such a report is submitted by the police, the Magistrate is required to give a notice to the complainant/informant with a view to afford him an opportunity of being heard before passing final orders on such report. In case despite service of notice the complainant/informant does not appear to oppose the cancellation report submitted by the Police, it is not necessary for the Magistrate, to issue fresh process to the complainant/ informant to ensure his presence. Non-appearance of the complainant/informant despite service of notice in such a case will have the legal consequence of the Magistrate proceeding to pass appropriate orders on the cancellation report in the absence of the complainant/informant. The Magistrate has no power to compel the appearance of the complainant/informant who has failed to appear to oppose a cancellation report after due notice. It is implicit in the non-appearance of the complainant/ informant that he is not interested in opposing the cancellation report and the Magistrate may pass appropriate order as may be warranted by the material placed before him. Thus having once notified the Petitioner of the cancellation report and having given him the option to appear and oppose the cancellation report, if so desired, the learned Additional Chief Judicial Magistrate has no jurisdiction to force the appearance of the Petitioner by issue of coercive processes. His insistence to secure presence of the Petitioner by issue of coercive processes is, therefore, abuse of the process of the Court and the course of action as adopted by the learned Additional Chief Judicial Magistrate cannot be sustained.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. M.M.O. No. 65 of 2002

Decided On: 25.09.2002

Rakeshwar Lal Sood  Vs.  State of H.P.

Hon'ble Judges/Coram:

M.R. Verma, J.

Citation: MANU/HP/0179/2002,

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Whether Magistrate can cancel arrest warrant against accused in his absence?

 In my considered opinion, there is no law that the accused shall personally remain present for cancellation of warrant. If the lawyer makes an application for cancellation of warrant, the same needs to be considered on merits by the learned Magistrate without insisting the for appearance of the Applicant/accused. It is noted by this Court that many Writ Petitions are filed in this Court only because the learned Magistrate straight way take a view that warrant cannot be cancelled unless accused appears before the Court. The view taken by a few of the Magistrates particularly in the city of Bombay, in my opinion, is not correct. It is high time that this Court lets the Magistrate note that the appearance of the applicant/accused is not necessary when application for cancellation of warrant is made. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4429 of 2013

Decided On: 24.12.2013

 Arunkumar N. Chaturvedi  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

M.L. Tahaliyani, J.

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Whether court can issue arrest warrant for recovery of interim maintenance granted in Hindu marriage petition?

 By order dated 15th February, 2017, the learned trial Judge issued warrant against the Petitioner for enforcement for direction for payment of interim maintenance. The order records that the warrant was returned un-executed possibly because the judgment debtor is a police officer and has played a material role in creating hurdles in such execution. The learned counsel for the Petitioner points out that the Petitioner is not a police officer. Possibly the learned trial Judge was mean to say that Petitioner's mother was Sr. Police Inspector. Be that as it may since, the Petitioner is admittedly in arrears of maintenance, there is nothing wrong in issuing warrant against him. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 13993 of 2016 and Civil Application No. 852 of 2017

Decided On: 20.12.2018

 Amol Chandrakant Mahamuni Vs.  Swati Amol Mahamuni

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2019(3) MHLJ 493

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Whether magistrate can issue warrant at stage of investigation?

 The   moot   question   that   now
requires to be answered is whether
a   Court   can   issue   a   warrant   to
apprehend   a   person   during
investigation   for   his   production
before   police   in   aid   of   the

Investigating Agency.
13. Chapter   VI   of   the   Code   which
is   captioned   as   `processes   to
compel appearance' consists of four
parts   part   A   relates   to   Summons;
part B to warrant of arrest; part C
to proclamation and attachment and
part   D   to   other   rules   regarding
processes.   Part   B,   with   which   we
are   primarily   concerned   in   these
appeals,   has   in   its   fold Section
70 to 81. Section 70 speaks of the
form in which the warrant to arrest
a   person   is   to   be   issued   by   the
Court   and   of   its   durational
validity. Section   71 empowers   the
Court issuing the warrant to direct
the officer who is to execute the
warrant, to release that person on
terms   and   condition   as   provided
therein. Section 72 provides that a
warrant   shall   ordinarily   be
directed   to   one   or   more   police
officers   but   if   its   immediate
execution   in   necessary   and   no
police   officer   is   immediate
available it may be directed to any
other person for execution.
24. Now   that   we   have   found
that Section   73 of   the   Code   is   of
general   application   and   that   in
course of the investigation a Court
can issue a warrant in exercise of
power   thereunder   to   apprehend,
inter alia, a person who is accused
of   a   non­bailable   offence   and   is
evading arrest, we need answer the
related question as to whether such
issuance of warrant can be for his
production before the police in aid
of   investigation.   It   cannot   be

gainsaid   that   a   Magistrate   plays,
not   infrequently,   a   role   during
investigation,   in   that,   on   the
prayer of the Investigating Agency
he   holds   a   test   identification
parade,   records   the   confession   of
an   accused   or   the   statement   of   a
witness, or takes or witnesses the
taking   of   specimen   handwritings
etc. However, in performing such or
similar   functions   the   Magistrate
does   not   exercise   judicial
discretion like while dealing with
an   accused   of   a   non­bailable
offence who is produced before him
pursuant   to   a   warrant   of   arrest
issued   under  Section   73.   On   such
production,   the   Court   may   either
release   him   on   bail   under Section
439 or   authorise   his   detention   in
custody (either police or judicial)
under Section   167 of   the   Code.
Whether   the   Magistrate,   on   being
moved by the Investigating Agency,
will   entertain   its   prayer   for
police custody will be at his sole
discretion   which   has   to   be
judicially   exercised   in  accordance
with  Section   167 (3) of   the   Code.
Since warrant is and can be issued
for   appearance   before   the   Court
only and not before the police and
since   authorisation   for   detention
in police custody is neither to be
given as a matter of course nor on
the mere asking of the police, but
only   after   exercise   of   judicial
discretion   based   on   materials
placed   before   him,   Mr.   Desai   was
not   absolutely   right   in   his
submission   that   warrant   of   arrest
under Section 73 of the Code could
be issued by the Court solely for

the   production   of   the   accused
before   the   police   in   aid   of
investigation.”

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) No. 535 of 2016


JAYSUKH @ JAYESH MULJIBHAI RANPARIYA ( PATEL )
V
STATE OF GUJARAT
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
 Date : 20/10/2016

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Whether judgment debtor can be arrested in execution of decree if cash is not available with him?

It was next argued that, as the appellant had not the means to pay the money due under the decree, no personal execution should be levied against him. It is admitted that the appellant is in possession of considerable properties which would easily enable him to pay off the decree. But what is argued is that the word 'means' occurring in Section 51 should be taken as equivalent to cash, and as the appellant says that there was no cash available with him, the order for arrest should not have been made. We are unable to accept that argument either. "Means" occurring in Section 51 can only mean realisable assets, and, as there is no doubt that the appellant has got sufficient assets from out of which the necessary moneys can be realised to pay up the decree amount, he will not be exempted by the provisions of Section 51 from being proceeded against personally for the realisation of the amount due under the decree.

Madras High Court

K.P. Mohamed Ibrahim vs The State Bank Of Travancore on 12 August, 1963

Equivalent citations: AIR 1964 Mad 233

Bench: S R Iyer, Ramakrishnan

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Procedure to be followed by court if decree holder is seeking simultaneous execution against person and property of judgment debtor

 Proceeding against the person as well as the property in the process of execution of a decree is almost a rarity. Even in the limited situations, which permit such a course, the discretion is to be used, more to refuse it, than to accord permission. The language of Rule 21 of Order XXI C.P.C. is clear on this aspect. It reads as under:

"21. Simultaneous execution: The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor."

7. Whatever may be the permissibility of simultaneous execution against the property and the judgment-debtor, in other kinds of decrees, when it comes to the question of execution of money decrees, proviso to Section 51 C.P.C. imposes several restrictions. In the body of Section 51 C.P.C., the 5 modes, through which a decree can be executed, depending on its purport, are mentioned. The proviso deals with the money decrees, in the context of detention of the judgment-debtor in prison. It reads as under:

"Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,--

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

Explanation: In the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree."

8. It is only after a specific plea raised by the decree-holder touching on the circumstances referred to in Clauses (a), (b) and (c) is proved to the satisfaction of the Court and after affording an opportunity to the judgment debtor that the detention can be ordered. The fact that the detention of the judgment-debtor is prayed for with the simultaneous execution against property, does not relieve the executing Court of its obligation to follow the procedure stipulated under Section 51 C.P.C.

9. In A.K. Subrahmania Chettiar v. Ponnuswami Chettiar, the Madras High Court held that before any executing Court directs detention of a judgment-debtor, it must record finding as to the existence of the circumstances stipulated in Clauses (a) to (c) of proviso to Section 51 C.P.C. The principle squarely applies to the facts of this case. No discussion, whatever undertaken, much less, a finding was recorded by the executing Court.

10. Rules 37 and 40 of Order XXI C.P.C. prescribe the detailed procedure to be followed, before the arrest of judgment-debtor is ordered. The purpose of these provisions was discussed at length by this Court in Kasi Subbaiah Mudali v. Kasi Veeraswamy Mudali, and it was held, inter alia, as under:

"Since the liberty of a citizen is involved, law places a further obligation upon the decree-holder to prove certain facts as contemplated under Rule 40(1), that too, in the presence of a judgment-debtor. The other provisions contained in Rule 40 as well as the provisions of Section 51 and 55 of the C.P.C. add strength to these provisions. In a way, those provisions, in their cumulative effect, ascribe an element of criminal trial, to the proceedings under Rule 11-A of Order 21 of C.P.C."

Andhra High Court

P. Laxma Reddy vs Syndicate Bank, Zaheerabad ... on 19 July, 2005

Equivalent citations: 2005 (6) ALD 81, 2005 (5) ALT 606, IV (2006) BC 58

Bench: L N Reddy

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Whether compounding of offences is permissible even if warrant is issued against accused?

 It was Submitted at the Bar that no binding precedent is available on the aspect whether personal presence of the accused is necessary to consider a prayer for composition. After discussions at the Bar and after some research, the learned Counsel for the petitioner himself brings to my notice the decision in Mathew v. State of Kerala 1986 KLT 128, where Justice S. Padmanabhan, in paragraph 8, has observed thus in his clear and lucid style:

Where a particular offence is compound-able by a particular person it is not even necessary for the Court to insist on a joint petition by that person and the accused. Even if the person who is entitled to compound the offence by himself files a petition before Court stating that the matter has been compounded and the case may be closed the Court will be bound to accept the same and close the case except in appropriate cases where it is felt that permission to compound the offence will have to be refused.

Those observations perfectly support the inclusions that I have reached.

22. I shall now attempt to narrate my conclusions. They are:

(1) Composition under Section 320, Cr. P. C. is a unilateral act.

(2) The victim (person shown in column 3 of Section 320(1) and 320(2)) can himself make an application for composition.

(3) It is not necessary for the Court to insist on a joint application for composition. The victim can of course make a joint application along with the accused.

(4) It is not necessary for the Court to insist on the personal appearance of the accused before Court to consider an application for composition under Section 320, Cr. P.C.

(5) The mere fact that the Court has already issued a non-bailable warrant against the accused and that is pending is no reason for the Court not to proceed further with the case. All steps for which personal presence of the accused is not necessary can be continued even if the non-bailable warrant remains unexecuted and the accused has not personally appeared.

Kerala High Court

Y.P. Baiju vs State Of Kerala And Ors. on 30 October, 2007

Equivalent citations: 2008 CriLJ 928

Bench: R Basant

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Whether accused can seek anticipatory bail when Magistrate has issued arrest warrant against him?

 A Magistrate who issues a warrant knows fully why the accused is avoiding to remain present before the Court and non-appearance causes obstruction in the smooth working of the Court. It is a hurdle in speedy disposal of the matter and therefore the Magistrate issues non-bailable or bailable warrant. On number of occasions, a Magistrate is constrained to issue non-bailable warrant to compel a person to appear before the Court as the trial is at a standstill for want of appearance. To remove this stagnation, the appearance is a must. Though pre-arrest bail can be granted under section 438, however, it cannot be granted in any or each and every impending arrest in non-bailable offence, which is pursuant to a warrant of arrest issued by the learned Magistrate for any other purpose but not under section 204 of Cr. P.C. Thus, anticipatory bail cannot be sought when warrant is issued during the trial due to non-attendance of the accused. If all the sub-sections of Section 438 are taken into account, the very language of the statute compels this construction. While granting anticipatory bail, the Court has to consider the four factors including the antecedants of the applicant. There is a provision of interim bail, so also it is obligatory for the Court to give notice to the Public Prosecutor and hear the prosecutor. However, if the warrant of arrest is issued by the Judicial  Magistrate for non-attendance of a particular person, then it is not obligatory on the said Magistrate to hear the prosecution. There is no such provision of interim bail available while cancelling the warrant issued under section 70 of Cr. P.C. Moreover, while granting anticipatory bail, the Court has to see that the applicant shall be available for interrogation by the police officer as and when required. Thus, it is amply clear that the anticipatory bail, which is an extraordinary provision which protects the liberty of an individual can be used before he is taken into custody by the police first time after the registration of an offence against him. Once he is taken in custody, this power is not available to the Court and also cannot be invoked. Thus, within the purport of Section 438 of Cr. P.C. grant of pre-arrest bail is not available to the Sessions Court or the High Court when warrant of arrest issued is by the Magistrate except warrant of arrest issued under section 204 of Cr. P.C. Under section 204 of Cr. P.C. the Magistrate takes cognizance and thereafter issues the warrant, so this is the first instance that the person is booked for some offence, which may be either by the police or by the Magistrate.

 Thus, arrest pursuant to warrant of arrest issued under section 70 of the Code has wider import than the arrest apprehended under section 438 of the Code. It needs to be clarified that such order of issuance of warrant of arrest by the Magistrate can be challenged before the High  court under section 482 of the Code or by filing Writ under Article 226/227 of the Constitution, but not under section 438 of the Cr. P.C.

Bombay High Court

Himanshu @ Hemant Rajendra Bhatt vs The State Of Maharashtra on 30 April, 2014

Bench: Mridula Bhatkar

Citation;2015(2) MHLJ 84

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Whether anticipatory bail can be granted when warrant is issued during trial due to non-attendance of accused?

A Magistrate who issues a warrant knows fully why the accused is avoiding to remain present before the Court and non-appearance causes obstruction in the smooth working of the Court. It is a hurdle in speedy disposal of the matter and therefore the Magistrate issues non-bailable or bailable warrant. On number of occasions, a Magistrate is constrained to issue non-bailable warrant to compel a person to appear before the Court as the trial is at a standstill for want of appearance. To remove this stagnation, the appearance is a must. Though pre-arrest bail can be granted under section 438, however, it cannot be granted in any or each and every impending arrest in non-bailable offence, which is pursuant to a warrant of arrest issued by the learned Magistrate for any other purpose but not under section 204 of Cr. P.C. Thus, anticipatory bail cannot be sought when warrant is issued during the trial due to non-attendance of the accused. 

Bombay High Court

Himanshu @ Hemant Rajendra Bhatt vs The State Of Maharashtra on 30 April, 2014

Bench: Mridula Bhatkar

Citation; 2014 ALLMR(cri)3944 Bom     

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