Recall of Non-Bailable Warrants in India

The Law and Procedure for Recall of Non-Bailable Warrants in India: A Judicial Analysis

Introduction

The issuance of a non-bailable warrant (NBW) is a coercive measure available to courts in India to secure the presence of an accused person or a witness in legal proceedings. While essential for the administration of criminal justice, the power to issue an NBW, particularly against an accused, is a significant curtailment of personal liberty, a right zealously protected under Article 21 of the Constitution of India. Consequently, the judiciary has evolved a robust jurisprudence emphasizing caution in its issuance and providing mechanisms for its recall or cancellation. This article undertakes a comprehensive analysis of the legal framework governing the recall of non-bailable warrants in India, drawing upon statutory provisions, landmark judicial pronouncements, and established legal principles. It examines the grounds upon which an NBW may be issued, the procedural requisites for seeking its recall, the scope of judicial discretion, and the role of higher courts in this regard.

Issuance of Non-Bailable Warrants: The Judicial Mandate for Caution

The Code of Criminal Procedure, 1973 (CrPC) empowers courts to issue warrants of arrest. Section 73 CrPC, for instance, allows a Chief Judicial Magistrate or a Magistrate of the first class to issue a warrant for the arrest of any escaped convict, proclaimed offender, or any person accused of a non-bailable offence and evading arrest. The Supreme Court in State Through CBI v. Dawood Ibrahim Kaskar And Others (1997 SCC 10 438) clarified that Section 73 grants magistrates the authority to issue warrants during investigations to facilitate the arrest of absconding accused individuals, not confined merely to post-cognizance scenarios.

However, the judiciary has consistently held that the issuance of an NBW should not be a mechanical act. The Supreme Court, in Inder Mohan Goswami And Another v. State Of Uttaranchal And Others (2008 SCC CRI 1 259), laid down seminal guidelines, emphasizing that personal liberty is paramount. The Court advocated a hierarchical approach:

  • In complaint cases, at the first instance, the court should direct serving of summons along with a copy of the complaint.
  • If the accused seems to be avoiding summons, the court, in the second instance, should issue a bailable warrant.
  • Only in the third instance, when the court is fully satisfied that the accused is intentionally avoiding court proceedings, should the process of issuing an NBW be resorted to.

The Court in Inder Mohan Goswami (supra) further specified circumstances under which an NBW might be justified:

  1. It is reasonable to believe that the person will not voluntarily appear in court; or
  2. The police authorities are unable to find the person to serve him with a summon; or
  3. It is considered that the person could harm someone if not placed into custody immediately.

These principles were reiterated in Vikas v. State Of Rajasthan (Supreme Court Of India, 2013), where the Court observed:

“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 cautious approach was also underscored in Raghuvansh Dewanchand Bhasin v. State Of Maharashtra And Another (2012 SCC 9 791), which stressed that the issuance of an NBW must result from careful judicial consideration, taking into account the nature and seriousness of the offence and the likelihood of the accused evading summons. The Rajasthan High Court in Manohar Lal Saini & Ors. v. State Of Rajasthan (2015) and the Delhi High Court in Mani Shandly & Anr v. State & Anr (2008) also adopted and applied these guidelines.

Grounds and Procedure for Recall of Non-Bailable Warrants

The CrPC provides a mechanism for the cancellation or recall of a warrant once issued. The primary provision is Section 70(2) CrPC, which states that every warrant of arrest issued by a Court under the Code shall remain in force until it is cancelled by the Court which issued it, or until it is executed. This implies that the issuing court has the inherent power to cancel or recall its own warrant.

Prerequisites for Seeking Recall

A crucial prerequisite for seeking the recall of an NBW is generally the surrender or appearance of the person against whom the warrant has been issued. The Madras High Court in Sivaprakasam v. P.ILANGO (2018) dismissed a recall petition because the petitioner had not surrendered, directing the petitioner to surrender before the Trial Court and then file a petition to recall the NBW. Similarly, the Allahabad High Court in Ravi Prakash v. Dir., C.B.I Regional Office Lucknow (2015) noted that the trial court was justified in refusing to recall a warrant when the applicant had not appeared, but directed that if the applicant appeared and moved another application, it should be considered. The underlying principle is that the accused must submit to the jurisdiction of the court. While Aman Preet Singh v. Republic Of India (cbi) (2021 SCC ONLINE ORI 2025) dealt with "custody" for bail under Section 439 CrPC, it highlighted that the law must take "control of the person," a concept extendable to the court's satisfaction of the accused's submission before considering recall.

An application or petition is typically filed before the issuing court, detailing the reasons for non-appearance and seeking recall of the NBW.

Common Grounds for Recall

Several grounds can be advanced for the recall of an NBW, including but not limited to:

  • Improper Issuance: If the warrant was issued without proper application of judicial mind, or without following the tiered approach (summons, bailable warrant, then NBW) as mandated in Inder Mohan Goswami (supra).
  • Non-Service/Improper Service: If summons or prior processes were not duly served on the accused, and thus the non-appearance was not wilful.
  • Sufficient Cause for Non-Appearance: If the accused can demonstrate a bona fide reason for non-appearance on the specific date, such as illness, unavoidable personal exigency, or miscommunication. For instance, in Manojkumar v. The Deputy Superintendent of (Madras High Court, 2022), the petitioner cited a leg injury as the reason for non-appearance.
  • Absence of Preconditions for NBW: If the conditions outlined in Inder Mohan Goswami (supra) (e.g., belief of voluntary non-appearance, inability to serve summons, risk of harm) were not met at the time of issuance.
  • Change in Circumstances: Subsequent developments that might render the NBW unnecessary or overly harsh.
  • Accused Already on Bail: If an accused, previously on bail, fails to appear, an NBW might be issued. The accused can then apply for its recall. The Madhya Pradesh High Court in Yogendra Singh v. State Of M.P. (1999 MPHT 1 409) clarified that in such situations, the accused must seek recall of the warrant rather than applying for fresh anticipatory bail.

Judicial Discretion and Consequences

The decision to recall an NBW rests on the judicial discretion of the court, to be exercised judiciously. The court will assess the explanation provided for non-appearance. If the explanation is found satisfactory, the warrant is typically recalled, often with a warning or imposition of costs, and the accused may be allowed to continue on previous bail terms or be asked to furnish fresh bonds.

The Madras High Court in Pillappan v. State (2018) elaborated on the procedure when an accused on bail fails to appear. If an NBW is issued under Section 89 CrPC, upon the accused's appearance or production, they must be given an opportunity to explain their absence.

"If he gives a satisfactory explanation, he can be let off by recalling the warrant. If his explanation is not satisfactory, the Magistrate/Court is required to record the reasons and give a finding that the bond has been forfeited. On such finding, the bail bond gets automatically cancelled. Thereafter, the Magistrate/Court cannot release him on his own bond in view of the bar under Sec.446-A(b). He may be released under the proviso to Sec.446-A(b) on his executing a bond with fresh sureties, or, he may be remanded to custody under Sec. 309 of the Code. If he is so remanded to judicial custody, he should apply for fresh bail." (Pillappan v. State, 2018)

If the recall application is dismissed, the NBW remains operative, and the accused may be taken into custody. If the accused continues to evade appearance despite the NBW, the court may initiate proceedings under Section 82 CrPC to declare the person a proclaimed offender, as noted in cases like Subramania v. STATE (Madras High Court, 2018).

The case of Tamilmaran v. State Rep. By (2007 MLJ CRI 1 1334) illustrates a scenario where an absconding accused, after co-accused were acquitted, surrendered and filed a petition to recall the NBW, and the case against him was then taken up separately.

The Role of the High Court in NBW Recall

While Section 70(2) CrPC empowers the issuing court to cancel its warrant, the High Courts are often approached under their inherent powers (Section 482 CrPC) or writ jurisdiction (Article 226 of the Constitution) for recall of NBWs, especially when lower courts are perceived to have acted erroneously or when there are significant delays.

The Madras High Court in N. Packiyaraj v. State (2017) and R.Dhanasekar v. Inspector (2018) deliberated on the High Court's power under Section 482 CrPC to recall an NBW vis-à-vis the alternate remedy under Section 70(2) CrPC. While acknowledging the primary jurisdiction of the issuing court, these judgments, often citing Inder Mohan Goswami (supra), have exercised discretion to recall NBWs in appropriate cases to prevent abuse of process or secure ends of justice, usually directing the accused to appear before the trial court on a specified date. Several other Madras High Court judgments, such as Subramania v. STATE (2018), Chandru v. Inspector (2018), and R.Selvaraj v. G.Santharaj (2018), show instances where the High Court recalled NBWs and directed the accused to appear before the trial court, often when warrants remained unexecuted for extended periods.

The Allahabad High Court in Abbu Sahema v. State Of U.P. (2024) directed the trial court to consider a recall application expeditiously if the applicant appeared, referencing Inder Mohan Goswami (supra) and Satender Kumar Antil v. Central Bureau of Investigation (2022 10 SCC 51), the latter being a significant pronouncement on bail jurisprudence that also touches upon procedures for appearance.

Conclusion

The power to issue a non-bailable warrant is a potent tool in the hands of the judiciary, indispensable for ensuring the integrity of the criminal trial process. However, its exercise must be tempered with judicial wisdom, adhering strictly to the principles of necessity, proportionality, and the paramountcy of personal liberty. The legal framework in India, through statutory provisions like Section 70(2) CrPC and the expansive interpretation by the higher judiciary, particularly the Supreme Court in Inder Mohan Goswami (supra) and Raghuvansh Dewanchand Bhasin (supra), provides for the recall of NBWs. This mechanism serves as a crucial safeguard against potential misuse and ensures that individuals are not unduly deprived of their liberty due to warrants issued hastily, erroneously, or where circumstances no longer justify their enforcement. The requirement of surrender or appearance for seeking recall underscores the accused's obligation to submit to the court's authority, while the court's discretion ensures that genuine cases of hardship or procedural infirmity are addressed. The vigilant oversight of High Courts further strengthens this corrective mechanism, ensuring that the administration of criminal justice remains fair, just, and respectful of fundamental rights.