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Non-Bailable Warrants

Written by: Amitabh Sengupta - I am pursuing my L.L.B (H) from G G S Indraprastha University, New Delhi and presently in the 9th semester (5th year). My legal interests include Constitutional law, Intellectual Property Law and Criminal Law. I am looking forward to a career in litigation.
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The Jurisprudence surrounding issuing of Non-Bailable Warrants

The law for issuance of warrants has been laid down in The Code of Criminal Procudure, 1973 under Chapter VI (part b) from sections 70 to 81.

The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual.[1] Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Only when in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, should non-bailable warrants be issued.[2] 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.[3]

In Geeta Sethi v. State[4], it was emphasized that courts administering justice on criminal side must always remain alive to the “presumption of innocence” which is the hallmark of criminal jurisprudence and, thus, a natural consequence is that every accused is clothed with the presumption of innocence and entitled to just, fair and decent trial and the aim of the criminal trial is not humiliating or harassing an accused, but to determine the guilty of the innocence. In the recent case of Inder Mohan Goswami & Another Vs. State of Uttaranchal & Others[5], this Hon’ble court had laid down few guidelines for the courts with regards to issuance of non-bailable warrants[6] : “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.” Further observed that a non-bailable warrant could be issued if: “…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….”[7]

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.[8] In the aforementioned case it was opined that first 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 courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. It was also held that Personal liberty is paramount; therefore courts were cautioned at the first and second instance to refrain from issuing non-bailable warrants.[9] 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.

In State of U.P. v. Poosu & Another[10], it was held that “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.”

However it must be borne in the mind that 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.[11]
[1] Inder Mohan Goswami & Another Vs. State of Uttaranchal & Others 2007 (12) Scale15. at para 52
[2] Supra.
[3] Inder Mohan Goswami & Another Vs. State of Uttaranchal & Others 2007 (12) Scale15. at para 52.
[4] 91 (2001) DLT 47
[5] 2007 (12) Scale15.
[6] supra. at para 53.
[7] Supra. at para 56.
[8] Supra. at para 54., Omwati v.State of UP & Another (2004) 4 SCC 425.
[9] Supra. at para 55.
[10] (1976) 3 SCC 1 at para 13.
[11] State of U.P. v. Poosu & Another (1976) 3 SCC 1 at para 13; Inder Mohan Goswami & Another Vs. State of Uttaranchal & Others 2007 (12) Scale15

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Added Date: 11 Sep 2009


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