Accused Being 'Absconding' Not Enough To Issue Non-Bailable Warrant At Stage Of Summons Without Proving Urgency: Telangana High Court
The Telangana High Court has reiterated that a non-bailable warrant cannot be issued against an accused at the stage of summons, merely because he was listed as 'absconding' without demonstrating an urgent requirement.Referring to guidelines issued by Supreme Court in Satender Kumar Antil v. CBI (2022), Justice N. Tukaramji in his order further noted that no notice of appearance under...
The Telangana High Court has reiterated that a non-bailable warrant cannot be issued against an accused at the stage of summons, merely because he was listed as 'absconding' without demonstrating an urgent requirement.
Referring to guidelines issued by Supreme Court in Satender Kumar Antil v. CBI (2022), Justice N. Tukaramji in his order further noted that no notice of appearance under section 35(3) of the BNSS was issued to the accused petitioners and ordered:
“There is neither any material on record nor any order of the learned Magistrate demonstrating that securing the presence of the petitioners/accused, who are stated to be absconding or taking them into custody was essential for the purpose of investigation. In the absence of such a demonstrated and urgent requirement, the mere fact that the investigating agency has shown the accused as absconding cannot, by itself, justify the Magistrate's order issuing NBWs. It is pertinent to clarify that before resorting to coercive measures, the learned Magistrate is duty-bound to carefully examine the materials produced by the investigating agency, including the nature of the process issued, the allegations made, and the evidence collected. An independent judicial assessment must be undertaken to determine whether the presence or custody of the accused is necessary. Upon forming such an opinion and by recording the reasons though not required to be elaborate, the Magistrate may then proceed to exercise jurisdiction to issue coercive process.”
The court was hearing a plea challenging the non-bailable warrants issued against the accused-petitioners at the stage of summons, for a crime registered under BNS Sections 329(4) (punishment for house-trespass), 232(Threatening any person to give false evidence), 351(3)(criminal intimidation by threatening to cause death or grievous hurt), 3(5)(common intention).
The petitioners argued that the a non-bailable warrant could not have been issued at the summons stage, without the issuance of a summons. Further that, even if a warrant was issued, it could not be non-bailable and could also be retracted without the presence of the accused.
The Prosecution on the other hand, contended that, the accused/petitioners had been absconding since the time of filing of the charge-sheet.
After hearing both sides, the court referring to Satender Antil guidelines said:
“By virtue of the above guidelines, where the petitioners have neither been arrested during investigation nor is there any material demonstrating that their judicial custody is necessary for the completion of investigation or trial, the court is bound, in the first instance, to issue summons. Only thereafter, in the event of noncompliance, should bailable warrants be issued to secure their physical appearance. If the accused still fails to appear despite service of bailable warrants, the issuance of Non-Bailable Warrants (NBWs) may be considered. As the impugned order departs from this sequential procedure and is not in conformity with the guidelines, it is liable to be set aside.”
The court also clarified that issuance of NBW should be a "last resort measure", solely for the purpose of securing the presence of the accused.
“In such course, the practice of filing applications for recall of NBWs in absentia, as a matter of routine, by relying on orders passed in other cases involving different factual circumstances, is not acceptable. As a general rule, a petition seeking recall of NBWs should be filed in the physical presence of the accused. Nevertheless, in exceptional situations, where the accused is unable to appear in person due to unavoidable and compelling circumstances and the court concerned is satisfied of the bona fides of such reasons, may consider an application for recall of NBWs even in the absence of the accused.”
Thus, the magistrate's order issuing NBW was set aside.
Case title: J. Chandra Lekha and G. Jayaraj v/s State of Telangana and Anr.
Criminal Petitioner 9668 of 2025
Counsel for petitioner: advocate Baglekar Akarsh Kumar
Counsel for State: APP