Issue of warrant against accused
Dawood J. Khatri
(Querist) 19 November 2010
This query is : Resolved
(1) Which is the section in Criminal Procedure Code which lays down that if an accused who is released on bail, does not appear before the Court on the date of hearing, the Court can issue a warrant against him to secure his presence?
(2) Initially the Court issues a bailable warrant against the accused on his absence. After the bailable warrant is executed and the accused remains absent again, the Court issues a Non-bailable warrant. This is a direction given in a Judgment of either Bombay High Court or Supreme Court. Can anyone give the citation?
Sri Vijayan.A
(Expert) 19 November 2010
The court shall issue NBW. No citation is needed.
adv. rajeev ( rajoo )
(Expert) 20 November 2010
Court will issue Non bailable warrant to the accused, if he remained absent.
Advocate. Arunagiri
(Expert) 20 November 2010
s.89 cr.p.c. deals with arrest on breach of bond for appearance.
Inder Mohan Goswami and another vs. State of Uttaranchal and others, reported in (2007) 12 SCC 1 deals with warrant procedures.
s.subramanian
(Expert) 20 November 2010
Read Sec.70 Cr.P.C. also.
Guest
(Expert) 20 November 2010
Cr.P.C. Section 89. Arrest on breach of bond for appearance.
When any person who is bound by any bond taken under this Code to appear before a court, does not appear, the officer presiding in such court may issue a warrant directing that such person be arrested and produced before him.
and initiate the proceedings under following section of Cr.P.C.-----
446. Procedure when bond has been forfeited.
(1) Where a bond under this Code is for appearance, or for production of property, before a court and it is proved to the satisfaction of that court or of any court to which the case has subsequently been transferred, that the bond has been forfeited,
or where in respect of any other bond under this Code, it is proved to the satisfaction of the court by which the bond was taken, or of any court to which the case has subsequently been transferred, or of the court of any Magistrate of the first class, that the bond has been forfeited, the court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Explanation.A condition in a bond for appearance, or for production of property, before a court shall be construed as including a condition for appearance, or as the case may be, for production of property before any court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the same, as if such penalty were a fine imposed by it under this Code:
1[Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.]
(3) The court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the court by which he was convicted of such offence maybe used as evidence in proceedings under against his surety or sureties, and, if such certified copy is so used, the court shall presume that such offence was committed by him unless the contrary is proved.
i would like to add further that if Hazari-Mafi application under section 317 Cr.P.C. has been moved by the advocate on behalf of accused and the same was accepted then court not proceed under the above mentioned sections.
Dawood J. Khatri
(Querist) 20 November 2010
Thank you Advocate Mr. Arunagiri for the citation. That is the citation I was looking for.
The fact remains that there is no section in Cr.P.C. which ordains that if an accused remains absent in Court, warrant shall be issued against him. Section 70 states that the warrant shall remain in force till it is cancelled. But it does not speak of issue of warrant against the accused.
D.J.Khatri
DEFENSE ADVOCATE.-firmaction@g
(Expert) 21 November 2010
MR Kharti you raised the real issue , many people here just as a routine reply without adding any depth and whether relevant or not.
I give below observations of HC Madras observations in the matter of NI 138 = issue of NBW.
CHENNAI, MARCH 16. Magistrates should not issue non-bailable warrants in `cheque bounce cases' unless it is absolutely necessary and they are satisfied that the accused will not obey the bailable warrant, the Madras High Court has said.
Justice A.K. Rajan, granting anticipatory bail to the actor and Rajya Sabha Dravida Munnetra Kazhagam member, R. Sarathkumar, said: "Personal liberties of persons are protected under Article 21 of the Constitution. Therefore, a non-bailable warrant shall not be issued under Section 138 of the Negotiable Instruments Act cases unless it is absolutely necessary.
"Considering that Section 138 of the NI Act is a matter of dispute between two individuals relating to civil liabilities, the magistrate shall always use his discretion in favour of the accused and issue only a bailable warrant."
In case of a bailable offence, when the magistrate decided to issue a warrant, at the first instance he should issue only a bailable warrant — one containing an endorsement specified under Section 71 of the Code of Criminal Procedure. "Therefore, a non-bailable warrant issued without a preceding bailable warrant, where the offence is bailable, is not in accordance with the scheme of the criminal procedure code and hence illegal."
Stating that cheque bounce cases were of "great importance as an enormous number of such cases were being filed in every magistrate court in Tamil Nadu," Mr. Justice Rajan issued some guidelines to magistrates and asked them to serve only summons to the accused, along with a copy of the complaint. If the accused did not appear even after the summons was duly served, the magistrate might, after recording the reasons, issue an arrest warrant. Even then the magistrate shall issue only a bailable warrant. Only if the accused did not respond even after that, could the magistrates ignore the bond and sureties executed by the accused and issue a non-bailable warrant.
Advocate. Arunagiri
(Expert) 21 November 2010
When there is a warrant is pending to be executed there is no need for issuing another warrant on the same person.
s.70 says about the limitation period of the warrant. s.89 says about the warrant to be issued against a person who is absent after executing a bond.
S.87 empowers the Magistrate to issue warrant to any person in lieu of summons.
S.205 (2) says that the magistrate is having the powers to enforce the attendance of the accused in the manner herein before provided.
You can read S.87 and S.205(2).
Dawood J. Khatri
(Querist) 22 November 2010
Thank you Mr. Shashikumar for your detailed reply. The observations of Madras H.C. are in keeping with the Supreme Court case of Inder Mohan Goswami Vs. The State of Uttranchal, rightly cited by Advocate Mr. Arunagiri. Could you please give me the citation of the Madras H.C. case referred to by you? Thank you.
D.J.Khatri
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 November 2010
I had just read in local papers when I visted chennai and saved it , actual case you have to search.
My purpose is to depart from vague opinions which many people give and not useful in the court.
And if indramohan case which Mr Arunagiri is from SC it will be good authority , pl post file.
