J & K HC: Magistrate should not issue non-bailable warrant against accused at pre-cognizance stage of the complaint U/S 138 of NI Act

 So far as the case in hand is concerned, the learned Magistrate upon satisfying himself regarding to record the service of pre-cognizance notice could have inferred, the forfeiture of the right of hearing by the accused at pre-cognizance stage of the complaint and proceeded ahead on the complaint in accordance with law. There was no need for the Magistrate to compel the appearance of the accused by issuance of a subsequent nonbailable warrant as the pre-cognizance hearing was meant for him which he acquiesced. The Magistrate is within its powers to compel the attendance of the accused after taking cognizance on the complaint and even under such circumstances, the normal approach of the Magistrates should be issuance of summon followed by a bailable warrant if needed and the issuance of the non-bailable warrants should be the last option.{Para 12}

In the High Court of Jammu and Kashmir

(Before Mohd. Yousuf Wani, J.)

Mohd. Afzal Beigh Vs  Noor Hussain 

CRM(M) No. 374/2025 and CrlM No. 742/2025

Decided on May 2, 2025

Citation: 2025 SCC OnLine J&K 394

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Supreme Court: Under which circumstances the court should issue non bailable warrant instead of summons for securing presence of accused?

 Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised 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.

When non-bailable warrants should be issued

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

• 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. {Para 52}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

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Supreme Court: No Anticipatory Bail To Accused Against Whom Non-Bailable Warrant & Proclamation Under Section 82 CrPC Are Pending.

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. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant. {Para 24}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1552 of 2024 

Decided On: 14.03.2024

Srikant Upadhyay and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0198/2024.

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Supreme Court: Non-Bailable Warrants Shouldn't Be Issued Unless Accused Charged With Heinous Crime Is Likely To Abscond Or Destroy Evidence

 We, however, would allow the present appeal to the extent that the nonbailable warrants issued against Manager Singh are unsustainable and should be quashed. It is a settled position of law that non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State.

While there are no comprehensive set of guidelines for the issuance of nonbailable warrants, this Court has observed on several occasions that nonbailable warrants should not be issued, unless the accused is charged with a heinous crime, and is likely to evade the process of law or tamper/destroy evidence. Inder Mohan Goswami and Another v. State of Uttaranchal and Others, (2007) 12 SCC 1; Vikas v.State of Rajasthan, (2014) 3 SCC 321. {Para 46}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

SHARIF AHMED AND ANOTHER Vs STATE OF UTTAR PRADESH AND ANOTHER

Author: SANJIV KHANNA, J.

Dated: MAY 01, 2024.

Citation: 2024 INSC 363.

Read full Judgment here: Click here.

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Can the appellate court give the benefit of S 436A of CRPC to the accused when criminal appeal or revision is pending?

 Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the Accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it Under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.

{Para 46}

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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Supreme Court: The Courts should give expanded interpretation to S 436A of CRPC for expediating release of the accused on bail

 Section 436A of the Code

436A. Maximum period for which an undertrial prisoner can be detained.-- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.--In computing the period of detention under this Section for granting bail, the period of detention passed due to delay in proceeding caused by the Accused shall be excluded.

46. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the Accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it Under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.

47. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word 'shall' clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the Accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that 'bail is the Rule and jail is an exception' coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the Accused to be excluded.

29.1.4. As a supplement to Section 436-A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the trial courts concerned from time to time;

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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What is the difference between Section 439 and Section 389 of the Code of Criminal Procedure?

  It may be seen that there is a marked difference between the procedure for consideration of bail Under Section 439, which is pre-conviction stage and Section 389 Code of Criminal Procedure, which is post-conviction stage. In case of Section 439, the Code provides that only notice to the public prosecutor unless impractical be given before granting bail to a person who is Accused of an offence which is triable exclusively by the Court of Sessions or where the punishment for the offence is imprisonment for life; whereas in the case of post-conviction bail Under Section 389 Code of Criminal Procedure, where the conviction in respect of a serious offence having punishment with death or life imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an opportunity to the public prosecutor for showing cause in writing against such release. {Para 13}

14. ...in case the appellate court is inclined to consider the release of the convict on bail, the public prosecutor shall be granted an opportunity to show cause in writing as to why the Appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice-delivery system, etc. Despite such an opportunity being granted to the Public Prosecutor, in case no cause is shown in writing, the appellate court shall record that the State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that the court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the post-conviction stage.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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Supreme Court: Under which circumstances do the Magistrate may issue a Non-bailable Warrant

 When non-bailable warrants should be issued

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

• 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.

54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the Accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the Accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the Accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an Accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

57. The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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Supreme Court: Precaution which Magistrate should take before authorizing detention of accused

 The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.

8.2. Before a Magistrate authorises detention Under Section 167 Code of Criminal Procedure, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the Accused. In other words, when an Accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest Under Section 41 Code of Criminal Procedure has been satisfied and it is only thereafter that he will authorise the detention of an Accused.

8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an Accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the Accused.

We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Code of Criminal Procedure for effecting arrest be discouraged and discontinued.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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What conditions can the court impose while cancelling the NBW issued against the accused in his absence?

d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of Accused, if such an application is moved on behalf of the Accused before execution of the NBW on an undertaking of the Accused to appear physically on the next date/s of hearing.

e) Bail applications of such Accused on appearance may be decided w/o. the Accused being taken in physical custody or by granting interim bail till the bail application is decided.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022, (2022) 10 SCC 51

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Supreme Court: In Criminal complaint case court should not issue non bailable warrant in first instance

Before parting with this appeal, we would like to discuss an issue which is of great public importance, i.e., how and when warrants should be issued by the Court? It has come to our notice that in many cases that bailable and non-bailable warrants are issued casually and mechanically. 

47. In State of U.P. v. Poosu and Anr. MANU/SC/0191/1976 : 1976CriLJ1373 at para 13 page 5, the Court observed:

Whether in the circumstances of the case, the attendance of the accused respondent can be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which rests entirely in the discretion of the court. Although, the discretion is exercised judiciously, it is not possible to computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and the State.

48. 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.

49. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. 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.

When non-bailable warrants should be issued

Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when:

• 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.

50. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.

51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

52. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

53. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1392 of 2007

Decided On: 09.10.2007

 Inder Mohan Goswami  Vs.  State of Uttaranchal and Ors.

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MP HC Advises Trial Courts Not To Issue Non-Bailable Warrant At First Instance

Reliance was placed on the order passed by this Court in M.Cr.C. No. 4417/2017 dated 21/03/2017 in which it has been held that personal appearance of the accused is not mandated under the provisions of Section 70 (2) and that the same can be decided in his absence by deciding one way or the other. At page 3 of the order, it is observed by this Court that in cases where the accused absence is inadvertent on a hearing date, though the trial Court has a right to issue non-bailable warrant, it was advisable that the said power be not exercised in a routine and mechanical manner and in the larger interest of justice, try to secure the presence of the accused on the next date of hearing by way of a bailable warrant at the first instance. 
IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

MCRC-13504-2017

Decided On: 11.08.2017

Hindustan Coca Cola Beverages Pvt. Ltd. Vs.The State of Madhya Pradesh

Hon'ble Judges/Coram:
Atul Sreedharan, J.

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Whether Magistrate can issue non bailable warrant at first instance for recovery of amount granted under Domestic violence Act?

 Thus there is absolutely clear provision under the Code of Criminal Procedure, which lays down as to how the amount of maintenance, final or interim, is to be recovered. The Magistrate, in my opinion, could not have issued non-bailable warrant directly. He should have followed the procedure laid down in sub-section (3) of Section 125 and Section 421 of the  Code of Criminal Procedure. In the scheme of Code of Criminal Procedure, in the first place, the Magistrate was under obligation to issue a warrant for levy of the amount by attachment and sale of any movable property. The other remedy available was to issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter. The Magistrate could have sentenced the petitioner for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which might extend to one month or until payment if sooner made.

Bombay High Court

Mr. Sachin vs Sau. Sushma on 6 May, 2014

Bench: M.L. Tahaliyani

DATED : 6 MAY, 2014.

Citation: 2015CRLJ(NOC)400 Bom

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Supreme Court: Court should be extremely careful before issuing non-bailable warrants.

 The court in all circumstances in complaint cases at the first instance should first prefer issuing
summons or bailable warrant failing which a non-bailable warrant should be issued.

SUPREME COURT OF INDIA
(H. L. DATTU AND M. Y. EQBAL JJ.)

VIKAS  Vs STATE OF RAJASTHAN


Criminal Appeal No. 1190 of 2013 

Citation;(2014) 3 SCC 321

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Whether NBW should be issued for recovery of interim maintenance Granted under DV Act?

In my considered opinion, the procedure laid down under
Section 125(3) of the Code of Criminal Procedure for getting compliance of
the orders passed by the Magistrate under Section 125(1) of the Code will
have to be followed for executing the orders passed by the Magistrate under
Section 20 (Monetary Reliefs) of the Protection of Women from Domestic
Violence Act, 2005. The reliefs available under Section 125(1)(a) of the
Code of Criminal Procedure are analogous to the reliefs available under
Section 20 of the Protection of Women from Domestic Violence Act, 2005.
The procedure for getting compliance of the order passed under Section
125(1) of the Code of Criminal Procedure is available under Section 125(3)
of the Code of Criminal Procedure.
8. Thus there is absolutely clear provision under the Code of
Criminal Procedure, which lays down as to how the amount of maintenance,
final or interim, is to be recovered. The Magistrate, in my opinion, could not
have issued nonbailable
warrant directly. He should have followed the
procedure laid down in subsection
(3) of Section 125 and Section 421 of the

Code of Criminal Procedure. In the scheme of Code of Criminal Procedure,
in the first place, the Magistrate was under obligation to issue a warrant for
levy of the amount by attachment and sale of any movable property. The
other remedy available was to issue a warrant to the Collector of the district,
authorising him to realise the amount as arrears of land revenue from the
movable or immovable property, or both of the defaulter. The Magistrate
could have sentenced the petitioner for the whole or any part of each
month's allowance for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be, remaining unpaid after the
execution of the warrant, to imprisonment for a term which might extend to
one month or until payment if sooner made.


The Nagpur Bench of the Bombay High Court, in a judgment on May 6 ruled that Non-bailable warrants (NBWs) should be issued against defaulters only after exhausting other remedies available under law to recover arrears. It subsequently quashed a warrant issued against a man for failing to pay interim maintenance to his wife.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.305 OF 2014.

Mr. Sachin s/o Suresh Bodhale Vs Sau. Sushma w/o Sachin Bodhale,


CORAM : M.L. TAHALIYANI, J.
DATED : 6 th MAY, 2014.

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Whether Magistrate can issue NBW for recovery of maintenance granted under domestic violence Act?

The   Magistrate   issuing   NBW,   therefore,   seems   to   have
followed  the Special Procedure  for the arrest of  the husband  for non
payment of the maintenance ordered to be paid.  Such procedure and
such procedural order is within the framework of Section 28(2) of the
DV Act and hence cannot be faulted as it is not seen to be illegal.  

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
          CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.236 OF 2013

Sagar Sudhakar Shendge V/s.  Mrs. Naina Sagar Shendge 

CORAM :   MRS. ROSHAN DALVI, J.

Date of Pronouncing the Order :     4 th April, 2013.

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Supreme Court Guidelines laying down precautions to be taken by the courts before issuance of non-bailable warrants

 However, before parting with the judgment, we feel that in order to prevent such a paradoxical situation, we are faced with in the instant case, and to check or obviate the possibility of misuse of an arrest warrant, in addition to the statutory and constitutional requirements to which reference has been made above, it would be appropriate to issue the following guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts:

(a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No. 2 for issuing warrant of arrest and each such form is duly accounted for;

(b) Before authenticating, the court must ensure that complete particulars of the case are mentioned on the warrant;

(c) The presiding Judge of the court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon;

(d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein;

(e) Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process;

(f) No. warrant of arrest shall be issued without being entered in the register mentioned above and the concerned court shall periodically check/monitor the same to confirm that every such process is always returned to the court with due report and placed on the record of the concerned case;

(g) A register similar to the one in Clause (e) supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution;

(h) Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long;

(i) On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned Police Station or the Officer In-charge of the concerned agency;

(j) The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse;

(k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and

(l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused.

Format of the Register

S. No.

The number printed on the form used

Case title and particulars

Name & particulars of the person against whom warrant of arrest is issued (accused/witness)

The officer/person to whom directed

Date of judicial order

directing Arrest

Warrant to be issued

Date of issue

Date of cancellation, if any

Due date of return

Report returned on

The action taken as reported {Para 23}

24. We expect and hope that all the High Courts will issue appropriate directions in this behalf to the Subordinate Courts, which shall endeavour to put into practice the aforesaid directions at the earliest, preferably within six months from today.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1758 of 2011 

Decided On: 09.09.2011

Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Devinder Kumar Jain and H.L. Dattu, JJ.

Author: Devinder Kumar Jain, J.

Citation:  AIR 2011 SUPREME COURT 3393, 2012 (9) SCC 791, MANU/SC/1059/2011.

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