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Saurabh..V (Law Consultant)     27 November 2011

Nbw during criminal trial

 

Dear Learned Members,

 

There is a criminal trial going on and the accused was granted Anticipatory Bail by the High Court and then Regular Bail was granted by Sessions Court before commencement of the trial.

 

After the trial commenced the complainant has started to avoid trial because the allegations are false and the complainant wants to keep pressure on the accused for amicable (monitory) settlement of the matter. As usual in one year the complainant has been absent on 4-5 dates and adjournments have been easily granted by the court.

 

Now on the last date of hearing, the accused was absent due to his Training Program held at outstation by his company. Unfortunately for him, his advocate also did not appeared and sent a Medical Certificate in which doctor had prescribed him for four days of bed rest. A proxy council appeared in place of main council and explained the situation to the Sessions Court. But the judge did not got convinced and issues NBW against the accused and issues notice to surety and also forfieted the Bail Bond.

 

Now, I wish to know:

 

1) If the police is empowered to arrest the accused and throw him behind bars?

 

2) Is the accused at all required to be present in such recall application hearing?

 

3) What are the chances if the accused and his council appears before the court and the court recalls its orders?

 

//peace

/Saurabh..V



Learning

 14 Replies

Arvind Singh Chauhan (advocate)     27 November 2011

1. yes

2.yes

3. I think warrant should be recalled on the ground of accused's training program.

Sanjeev (Lawyer)     27 November 2011

The court normally dont issue NBW at first time non appearence it should have issued atmost a bailable warrant instead. The court would recall its orders normally but depends if there has been such defaults before this also by the accused.

adv. rajeev ( rajoo ) (practicing advocate)     27 November 2011

Whether exemption application was filed or not to dispense the accused presence?

Police may arrest the accused.

Accused presence is necessary to present before the court at the time recalling of warrant.

Saurabh..V (Law Consultant)     27 November 2011

Accused has been regular and this is the first instance of absentism. Moreover an application for exemption was also moved by the proxy council on behalf of the accused.

 

Don't your learned members feel its too much harsh and irrational order?

 

//peace

/Saurabh..V

pratik (self working)     28 November 2011

respected jurit what does recalling of warrant means & exemption application as per the Crpc, 1973.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     28 November 2011

Agreed with opinion provided.

venkatesh Rao (Retired Government Servant)     29 November 2011

1. Police can arrest but have to produce before the court which ordered issue of NBW

2. It is normally insisted. It is not a rule of law but rule of prudence.

3. Warrant will be recalled on convincing the court regarding bonafide reason of absence.

munish mittal 9803301130 (advocate)     29 November 2011

accused hv to appear and surrendered himself before the trial court and hv to move an application u/s 70(2) crpc for recalling of nbw.if the court find that the accused hv sufficent reason of his absence then the court can recall its own order and can restore his previous bail also

Saurabh..V (Law Consultant)     29 November 2011

Thanks learned members for your prompt response!

 

The accused has given relief by the trial court. His NBW has been cancelled and bond surety restored.

 

However I failed to understand that when there is a procedure to "issue" the NBW then why there is no procedure to immediately STOP the police from doing any harm to the reputation of the accused. As the NBW has been cancelled after one week of delay, the NBW were already released by the Ahelmad. Now when the police would receive such orders it would reach accused's home to arrest. But as accused has already been abel to take certified copy so police cannot do anything against him. Finally it is the reputation of the accused which would be put to danger and jeopardy by such visit of police.

 

I think this is the basic difference between cancellation and recall. Cancellation only cancels the order but does not issue recall whereas in recall the police is ordered to stop the execution of earlier passed orders.

 

Pls clarify!

 

//peace

/Saurabh..V

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     02 December 2011

Now fresh guidelines have been issued by SC in such matters which I have posted no of times on this site.

R Trivedi (advocate.dma@gmail.com)     04 February 2012

With due respect to our judiciary, I must say that the lower courts judges are very high handed with respect to accused.  They forget that, till the time accused gets convicetd he is as good as innocent. Infact I am quite surprised that lower courts judges are not aware of certain crucial judgements by honorable Supreme Court. It is no longer lawful to issue NBW mechanically, but still they do it. Who can complain ?  

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     05 February 2012

File instant revision for such issue of NBW.

Sudhir Kumar, Advocate (Advocate)     02 March 2012

THE ACCUSED HS DONE EXACTLY WHAT THE COMPLAINANT WANTED.

Saurabh..V (Law Consultant)     02 March 2012

@Sudhir

 

You are right. Accused is bound to suffer the agony of a false, malicious and concocted case. This is the truth of our Indian Judiciary.

 

The books taught in law schools across the country reads the fundamental principle of criminal jurisprudence as:

 

"Innocent untill proven guilty"

 

However, in reality, our justice system works as:

 

"Guilty untill proven innocent"

 

 

//peace

/Saurabh..V


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