Section 528 BNSS Cannot Be Used to “Process-Manage” Trial Courts: No High Court Direction for Same‑Day Recall of NBW Where Statutory Remedy Exists (Especially in SC/ST (PoA) Sessions Cases)

1) Introduction

The Madurai Bench of the Madras High Court (L. Victoria Gowri, J.) decided a petition filed by Krishnakumari (arrayed as A3), a suspended Sub-Inspector of Police, arising from a sessions case (S.C.No.120 of 2025) registered out of Cr.No.1 of 2025. The prosecution alleges a brutal daylight murder described as an “honour killing”, attracting offences under the Bharatiya Nyaya Sanhita, 2023 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as amended).

After the final report was filed and the Sessions Court took cognizance, a Non-Bailable Warrant (NBW) was issued against A3. Instead of directly challenging the warrant order or first approaching the issuing court for recall, A3 invoked Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (inherent powers), seeking a direction to the Sessions Court to consider her NBW recall application “on the same day” of surrender.

The key issues were: (i) whether such a “direction petition” is maintainable under Section 528 BNSS; (ii) whether the High Court should micro-direct the Sessions Court’s docket and process; and (iii) how the balance between personal liberty, gravity of offence, and victim/witness protection under Section 15A of the SC/ST (PoA) Amendment Act, 2015 should be approached.

2) Summary of the Judgment

The Court dismissed the petition. It held that the prayer—though framed as a direction—effectively sought High Court intervention in respect of a judicial act (issuance of NBW) and attempted to obtain an expedited, pre-structured hearing before the Sessions Court. The Court declined to exercise inherent powers under Section 528 BNSS for “same-day consideration” of a recall petition, emphasizing that:

  • A3 had an efficacious alternative remedy to surrender/appear before the issuing Sessions Court and seek recall/cancellation of the NBW in accordance with law.
  • Section 528 BNSS is meant to prevent abuse of process/secure ends of justice, not to create a parallel supervisory mechanism for routine procedural grievances or to “process-manage” trial courts.
  • Given the allegations of honour killing and SC/ST (PoA) offences, the Sessions Court’s discretion regarding process (including issuance of NBW) could not be displaced by a generalized summons-first argument.
  • Victim participation and protection under Section 15A SC/ST (PoA) must be respected while considering such applications.

The Court nevertheless clarified that A3 remained at liberty to surrender/appear before the Sessions Court and seek appropriate relief, and the Sessions Court must consider such application uninfluenced by the High Court’s observations.

3) Analysis

A) Precedents Cited

i) Inder Mohan Goswami and Another v. State of Uttaranchal and Others (2007 (12) SCC 1)

This was the central authority discussed on the judicial discipline required while issuing warrants, especially NBWs. The Supreme Court cautioned that warrants are often issued “casually and mechanically” and laid down broad considerations, including: nature/seriousness of the offence, character of evidence, circumstances peculiar to the accused, absconding risk, and public/state interest; and that ordinarily summons/bailable warrants should precede NBW unless warranted.

The High Court accepted the general principle but treated it as context-dependent, holding that it cannot be used to demand a blanket High Court direction for same-day recall in a grave sessions case involving special-statute allegations and potential influence on witnesses.

ii) Omwati v.State of UP & Another (2004) 4 SCC 425 and State of U.P. v. Poosu & Another (1976) 3 SCC 1

Both were referenced within the extracted passage from Inder Mohan Goswami. They emphasize:

  • Omwati: warrants should not be issued unmindfully; courts must consider facts properly due to severe liberty consequences.
  • Poosu: the choice between bailable and non-bailable warrant is discretionary and cannot be reduced to immutable formulae; seriousness and absconding risk matter.

The High Court used these to reinforce that warrant issuance is a judicial discretion calibrated to facts, thereby undermining A3’s attempt to convert “summons-first” into an enforceable entitlement via Section 528 BNSS.

iii) Satender Kumar Antil (2022 10 SCC 51)

A3 cited this to support restraint in coercive process and bail/process rationalization post charge-sheet. The High Court did not apply it to grant relief, implicitly viewing the petition as procedurally misdirected: rather than invoking the High Court’s inherent powers to obtain an expedited hearing, the accused must use the trial court’s process (appearance/surrender, recall, and other statutory applications).

iv) Tarsem Lal v. Directorate of Enforcement (2024 INSC 434)

A3 invoked this for the “normal rule” of issuing summons where the accused was not arrested prior to complaint. The High Court distinguished it as arising in a different statutory and procedural setting (PMLA practice) and cautioned against mechanically transplanting that approach into a sessions prosecution involving murder and SC/ST (PoA) allegations.

v) Sugesan Transport Pvt. Ltd. v. State (2016 SCC OnLine Mad 934) and Lala Jairam Das v. The King Emperor [1945 MWN (Cr.) 62]

These authorities were relied on to frame the maintainability issue: inherent powers cannot be used when the Code provides a specific remedy. The Court quoted Sugesan Transport extensively, which in turn cites Lala Jairam Das for the proposition that inherent power “confers no powers” but only safeguards existing inherent powers, and cannot be invoked to circumvent a complete statutory scheme.

By applying this logic to Section 528 BNSS, the Court treated A3’s petition as an attempt to bypass ordinary channels (appearance before the issuing court and recall/cancellation procedure), and thereby refused to convert inherent jurisdiction into an alternate procedural track.

B) Legal Reasoning

i) “Direction petition” as surrogate challenge to a judicial order

The Court characterized the relief as substantively aimed at controlling the consequences of an NBW and the trial court’s handling of it, rather than addressing any exceptional abuse of process. Because issuance of an NBW is a judicial act, the proper route is: (a) move the issuing court for recall/cancellation; and/or (b) challenge the warrant order through appropriate legal mechanisms. Seeking a High Court direction to mandate “same-day consideration” was treated as an indirect attempt to achieve supervisory control without squarely contesting the warrant order.

ii) Efficacious alternative remedy (and why it matters)

The Court held that the remedy is neither illusory nor burdensome: surrender/appearance before the issuing Sessions Court and filing recall/cancellation is the “precise remedy contemplated by law”. A mere apprehension of an adverse result in the trial court cannot justify bypassing statutory process.

iii) Gravity of offences and the discretion to issue warrant

While acknowledging that NBWs should not be issued mechanically, the Court stressed that discretion cannot be reviewed in the abstract. In a prosecution involving murder and SC/ST (PoA) offences, the Sessions Court is empowered to issue coercive process depending on its satisfaction. Whether summons should have preceded NBW is a matter to be urged before the issuing court in a recall petition (or by properly challenging the warrant).

iv) Victim/witness rights under Section 15A SC/ST (PoA) and fairness of the process

A distinctive feature of the order is its emphasis on Section 15A (Rights of Victims and Witnesses), stressing protection against intimidation, coercion, inducement, violence or threats, and ensuring victim participation as stakeholders. The Court reasoned that granting a tailored “same-day” indulgence—especially where allegations include institutional influence—could undermine the statutory spirit of victim and witness protection and the perceived neutrality of the process.

v) Supervisory concern about selective non-arrest

The Court recorded that it had called for an explanation from the investigating officer on why A3 was not arrested during investigation despite grave allegations. The explanation offered was that certain invoked offences were bailable and that notice under Section 35(3) BNSS was served and A3 cooperated.

Although the Court refrained from adjudicating the adequacy of investigation (leaving it for trial and allied proceedings), it made a pointed institutional observation: selective exercise of arrest discretion, especially when accused are within law enforcement, can erode confidence in fairness; and SC/ST (PoA) objectives require heightened sensitivity, impartiality, and promptness.

C) Impact

  • Clear boundary for Section 528 BNSS: The decision signals that inherent powers cannot be used to obtain “administrative-style” scheduling directives (like “same-day hearing”) in relation to trial court judicial processes, particularly when established remedies exist.
  • Reinforces trial court primacy over its process: High Courts will be slow to issue directions that effectively regulate how a Sessions Court should list and decide recall/cancellation applications, absent extraordinary circumstances.
  • Contextual application of warrant jurisprudence: Even though Inder Mohan Goswami and Another v. State of Uttaranchal and Others cautions against mechanical NBWs, this order underscores that heinous offences, witness vulnerability, and influence considerations can justify stricter coercive process—subject to challenge before the appropriate forum.
  • Victim-centric procedural sensitivity in SC/ST (PoA) cases: By foregrounding Section 15A, the order encourages trial courts and prosecutors to operationalize victim participation and witness protection as routine components of process decisions (including recall of warrants and hearing management).
  • Investigative accountability: The Court’s concern about selective non-arrest may influence future judicial scrutiny of arrest discretion in sensitive cases involving accused with institutional proximity, without converting such observations into findings in the ongoing trial.

4) Complex Concepts Simplified

  • Section 528 BNSS (Inherent Powers): A residual power of the High Court to prevent abuse of process and secure justice. It is not meant to replace specific procedures/remedies provided by the BNSS or to function as an all-purpose supervisory tool for routine procedural grievances.
  • Non-Bailable Warrant (NBW): A coercive judicial process directing arrest and production before court. Because it directly impacts liberty, courts must apply their mind and weigh factors like seriousness of offence, absconding risk, and risk to witnesses—ideas emphasized in Inder Mohan Goswami and Another v. State of Uttaranchal and Others.
  • Recall/Cancellation of NBW: A request made to the same court that issued the warrant to withdraw it, typically by showing willingness to appear, absence of evasion, or other reasons why coercive process is unnecessary.
  • Alternative Remedy: If the law provides a direct forum and procedure (here, approaching the issuing Sessions Court), the High Court generally will not use inherent powers to short-circuit that mechanism.
  • Section 15A SC/ST (PoA) (Victims’ and Witnesses’ Rights): A statutory mandate ensuring victims and witnesses are protected and enabled to participate meaningfully; it affects how courts should approach hearings that may impact safety, intimidation risk, and the perceived fairness of proceedings.

5) Conclusion

The judgment establishes a practical procedural rule under the new BNSS framework: Section 528 BNSS cannot be invoked to obtain High Court directions that “manage” trial court process (such as mandating same-day hearing of an NBW recall application), particularly when the accused has a direct statutory remedy before the issuing court.

At the same time, the Court situates procedural discipline within the realities of honour-killing allegations and SC/ST (PoA) protections, stressing that victim participation and witness security are not peripheral concerns but statutory imperatives. The order thus functions both as (i) a restraint on expansive use of inherent powers for procedural convenience, and (ii) a reminder that criminal process decisions in atrocity-linked prosecutions must be sensitive to intimidation risks and public confidence in investigative and judicial neutrality.