Judicial Parameters for Issuing Non-Bailable Warrants in India

Judicial Parameters for Issuing Non-Bailable Warrants in India

Introduction

The power to direct the arrest of an individual through a non-bailable warrant (“NBW”) is one of the most coercive instruments available to a criminal court. While the State has an incontestable interest in securing the presence of accused persons, Article 21 of the Constitution mandates that any deprivation of personal liberty occur strictly “according to procedure established by law.” This article critically analyses the normative framework governing the issuance of NBWs under the Code of Criminal Procedure, 1973 (“CrPC”), interprets key Supreme Court and High Court authorities, and distils operative principles for judicial discretion in India.

Statutory Architecture

Nature and Source of Power

  • Sections 70–81 CrPC create the general mechanics for warrants of arrest, including form, duration, and mode of execution.
  • Section 73 CrPC empowers a Chief Judicial Magistrate or a Magistrate of the First Class to issue a warrant “for the arrest of any escaped convict or proclaimed offender, or of any person who is accused of a non-bailable offence and is evading arrest.”
  • Section 87 CrPC allows the court to switch from summons to warrant—either bailable or non-bailable—“if it sees reason to do so.”
  • Section 204(1)(b) CrPC permits immediate warrant issuance at the stage of taking cognisance, subject to recorded reasons.
  • Section 82–83 CrPC (proclamation and attachment) operate as escalatory measures when an NBW remains unexecuted, thereby intersecting with bail jurisprudence (Prem Shankar Prasad, 2021).

Constitutional Overlay

Interference with personal liberty through an NBW must withstand Article 21 proportionality. Courts are therefore constitutionally obliged to adopt the least restrictive means for securing attendance (Raghuvansh Dewanchand Bhasin, 2011).

Evolution of Judicial Doctrine

Early Recognition of Discretion: State of U.P. v. Poosu (1976)

The Supreme Court affirmed that it could, by virtue of Articles 136 and 142, order custody pending appeal even after acquittal. Though not a routine NBW case, the judgment foregrounded the principle that warrant power is discretionary and must align with the “procedure established by law.”[1]

Foundational Guidelines: Inder Mohan Goswami v. State of Uttaranchal (2007)

A three-Judge Bench crystallised the core test still cited today: an NBW may issue only when (i) it is reasonable to believe the accused will not voluntarily appear; (ii) efforts to serve summons/bailable warrants have failed; or (iii) immediate custody is necessary to avert harm.[2] The Court urged a three-step escalation—summons → bailable warrant → NBW—especially in complaint cases.

Operationalisation and Reinforcement

  • Mani Shandly v. State (Del HC, 2008) applied the Inder Mohan matrix, emphasising scrutiny of motive behind the complaint before curtailing liberty.[3]
  • Vikas v. State of Rajasthan (2013) reiterated that absent the trilogy of reasons, NBW issuance “extinguishes the very purpose” of procedural safeguards.[4]
  • Raghuvansh Dewanchand Bhasin (2011) imposed personal liability on the errant officer and awarded compensation, underscoring judicial and executive accountability.[5]
  • Recent High Court decisions—e.g., Bimal Kumar Agarwalla (Orissa HC, 2023)—restate that discretion cannot be “computerised,” but must weigh nature of offence, possibility of abscondence, evidence tampering, and public interest.[6]

NBW vis-à-vis Anticipatory Bail

In Prem Shankar Prasad v. State of Bihar (2021) the Supreme Court held that once a person is declared a proclaimed offender under Sections 82–83, anticipatory bail is statutorily barred. The judgment implicitly cautions that premature NBWs, if escalated to proclamation, may foreclose subsequent liberty-oriented remedies.[7]

Analytical Framework for Issuing NBWs

Stage of Proceedings

  1. Pre-cognisance/Investigation. NBWs are rarely justified at this stage. In Court on Its Own Motion v. CBI (2004), the Delhi High Court clarified that failure to arrest during investigation cannot justify rejection of a charge-sheet. The corollary is that a court should not demand an NBW merely because no arrest occurred earlier.[8]
  2. Post-cognisance but Pre-Charge. Section 204 allows direct NBW issuance “if necessary,” yet the precedents favour initial summons unless flight risk or danger is patent.
  3. Trial Stage. Persistent non-appearance after bailable processes, or deliberate evasion (e.g., address concealment), generally meets the threshold. Sachida Nand Mishra (Patna HC, 2019) annulled an NBW where no proof existed that earlier summons/bailable warrants were served.[9]
  4. Post-conviction or Appellate Stage. Courts may deploy NBWs to ensure surrender after conviction or to secure respondents in State appeals against acquittal (Poosu).

Substantive Criteria

  • Reasonable Belief of Abscondence. Courts examine past conduct, domicile stability, and the gravity of punishment.
  • Failed Service of Process. Documentary proof of unsuccessful summons/bailable warrants is indispensable.
  • Threat to Public Safety or Justice. Where liberty of others or integrity of evidence is at stake (cf. Samarendra Nath Bhattacharjee, 2004, where bail was cancelled on evidence-tampering apprehension).
  • Proportionality and Least-Restrictive Means. Even when criteria are met, the court must articulate why lesser measures are inadequate (Delhi HC Rules, Ch. 1, Pt-C(i), r.3).

Procedural Safeguards

  1. Recording of Reasons. Section 87 read with Section 204 CrPC obliges courts to record satisfaction; lack thereof renders the NBW vulnerable to quashing (Pratap Verma v. State (NCT of Delhi), 2016).
  2. Temporal Review. Satender Kumar Antil guidelines (2022) recommend periodic review of NBWs to avoid perpetual pendency.
  3. Communication of Cancellation. Raghuvansh Dewanchand Bhasin condemned execution of a cancelled warrant, advocating robust transmission protocols.
  4. Opportunity to Voluntarily Appear. Courts may, before authorising police execution, grant a grace period for surrender, aligning with the principle of minimal intrusion.

Critical Appraisal

Despite well-articulated jurisprudence, mechanical issuance of NBWs persists, often traceable to docket pressure or insufficient verification of service reports. Empirical studies in metropolitan magistracies reveal high reversal rates when higher courts scrutinise NBWs for non-compliance with Inder Mohan factors. Additionally, premature NBWs can catalyse a cascade—proclamation, attachment, denial of anticipatory bail—thereby disproportionately penalising procedural default over substantive culpability.

Recommendations

  • Institutionalise a checklist—modelled on the Supreme Court’s three-tier test—to be appended to every NBW order.
  • Mandate electronic tracking of summons and warrants to generate verifiable service histories.
  • Introduce continuing-education modules for magistracy emphasising constitutional proportionality and latest apex-court directives.
  • Legislative clarification of Section 204 to expressly prefer summons/bailable warrant absent recorded “special reasons.”

Conclusion

Issuing a non-bailable warrant is not a matter of administrative convenience but a judicial act laden with constitutional consequence. The statutory text, illuminated by Supreme Court exegesis from Poosu through Satender Kumar Antil, converges on a single axiom: coercive process must be the instrument of last resort. Fidelity to this axiom safeguards both the efficacy of criminal adjudication and the fundamental liberties that undergird India’s constitutional order.

Footnotes

  1. State of U.P. v. Poosu & Anr., (1976) 3 SCC 1.
  2. Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., (2007) 12 SCC 1.
  3. Mani Shandly & Anr. v. State & Anr., Delhi High Court, 2008.
  4. Vikas v. State of Rajasthan, (2014) 3 SCC 321.
  5. Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791.
  6. Bimal Kumar Agarwalla v. State of Odisha, Orissa High Court, 2023.
  7. Prem Shankar Prasad v. State of Bihar & Anr., 2021 SCC OnLine SC 955.
  8. Court on Its Own Motion v. CBI, 2004 SCC OnLine Del 53.
  9. Sachida Nand Mishra & Ors. v. State of Bihar, Patna High Court, 2019.