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Praveen Goud Vanga (Advocate)     14 February 2011

recall NBW

Hello Friends,

 

Do we have a provision to recall a non bailable warrant issued by a court in summons case(NI act case) without the presence of the accused.

 

the court below was pleased to issue the non bailable warrant as the accused failed to appear on the date when the case was posted and his counsel was also late to file the 317 petition.

 

 the accused is not in the country so can we recall the nbws with out his presence do v have any citations on it

 

plz forward

 

thanks in advance



Learning

 10 Replies

pearl (advocate)     16 February 2011

some of the judgments are there in madras high court Justice K.N. BASHA and one more judge is given the same aspect that at the time of recall of warrant there is no appearance of accused is acceptable. and also one simple logic is that at the time of recall the warrant some of the judges are not getting the surrender petition because there is no provision in Criminal procedure code.

pearl (advocate)     16 February 2011

actually the criminal case is pending in india he will not go outside india because it is also the serious offence in india

Shailendra prasad singh (Lawyer)     16 February 2011

On perusal of the records, it appears that the summons issued by the trial Court from time to time had not been served and, in fact, the service returns were not back. Similarly, bailable warrant as well as non-bailable warrant issued against the petitioner had also remained unexecuted. From the lower Court records, it is not established that the petitioner had, in fact, avoided the process of Court after receiving the summons, or had evaded the execution of the warrants in any manner. In the absence of any categorical material, it was not open to the Magistrate to jump to a conclusion that the petitioner had deliberately avoided the process of Court and as such, issuance of N.B.W. or issuance of process under Sections 82 and 83, Cr.P.C. was uncalled for. Before taking any steps Under Section 82, Cr.P.C. the Court has to be satisfied that the person against whom warrant had been issued had absconded or was concealing himself. In the present case, the Sub-Divisional Judicial Magistrate has nowhere come to the conclusion that the petitioner had. in fact, absconded or concealed. Since there was no justification for taking steps Under Section 82, there was no scope for invoking the power Under Section 83, Cr.P.C. and as such the action of the Sub-Divisional Judicial Magistrate in taking steps under Sections 82 and 83, Cr.P.C. cannot be sustain.

 link- https://www.indiankanoon.org/doc/367115/.

mohansreddy (Advocate)     16 February 2011

Many courts in different states do not consider the judgment passed by Madras high court with reference to recall NBW in absence of accused, my personal experience

shankar (advocate)     16 February 2011

the execution of nbw can be stayed/suspended. Mr.shailendra prasad singh'scontention is also imp. and in view of this argument,  i think a revision against the order of issuance of nbw can be made, and in it stay/ suspension can be prayed for.

adv.s.d.ratnaparkhi pune

Shailendra prasad singh (Lawyer)     16 February 2011

I am with Mr. Shankar's view.

karthik chowdary (ADVOCATE)     31 October 2012

 

Whether The Presence Of Accused Is Necessary At The Time Of Filing Recall Of Nbw Issued By The Court

In a reported judgment 2000(1) LS 78 between Ramakrishna Agencies, Guntur Vs. State of A.P., the Hon'ble High Court held that no provision of law is brought to notice that accused should be present when an application is filed for withdrawing non-bailable warrant.

In a reported judgment between Shaik Yousuf Vs. State of A.P,. 2001 ALT (Crl) (2) 270:- The Hon'ble High Court held that " In ordinary course of warrant should have recalled if the court is convinced that his absence on earlier occasion was not willful. Even otherwise if for any reason the petitioner is brought by executing a warrant issued against him, still he can be enlarged on bail. In that case the contention of the petitioner/accused that he was undergoing medical treatment .

In 2007 ALT (1) (Crl) 180, between M. Sainath Vs. Ezaf Pentawa, the Hon'ble High court held that petitioner is directed to appear before the court on the next date of hearing and file petition U/s. 70(2) Cr.P.C. to recall the said warrant.

In a reported judgment in between Mita Labs Pvt. Ltd. Vs. G.E. Wide consumer Financial Services Ltd. reported in 2001 ALD (2) 489, the Hon'ble High Court held that the logic of learned Magistrate that because the accused had not executed any bonds earlier, hence it was not possible to recall NBW and filed petition U/s. 70(2) Cr.P.C. is difficult to be accepted. Order quashed in NBW cancelled, petitioner is directed to appear the court on the next date of hearing and on such appearance they shall be bound over terms as the Magistrate considers.

In a reported judgment between TMT Kaladi Vs.State reported in 2006 (Crl) LJ. 2053:- The Hon'ble High Court held that non-bailable warrant pending against petitioner, hearing had been posted for furnishing copies of final report and documents to her. Her presence was therefore required. Unless she makes appearance and warrant is recalled her application U/s. 317 Cr.P.C. to condone her absence and U/s. 205 to allow or to appearance by pleader cannot be entertained.

In a reported judgment between Yenkey Drugs and Pharmaceuticals Pvt. Ltd., and another Vs. Bhagya Nagar Chlorides reported in 2003 (1) ALD 119 AP, the Hon'ble High Court held that when the accused is absent in the court on the hearing date, file an application to dispense with personal appearance application dismissed and NBW issued. Application filed to cancel the same also dismissed. The Magistrate did not exercise his jurisdiction. NBW is cancelled and accused is directed to appear in the court on the next date of hearing.

In a reported Judgment between Ch. Venkata Reddy Vs. State of A.P. reported in 2008 (3) APLJ 85, the Hon'ble High Court held that if the accused failed to appear in spite of service of summons. Hence non bailable warrants are issued. The accused filed application to recall NBW and also to dispense with their personal attendance. It is discretion of the learned Magistrate to dispense with personal appearance. The accused must appear at the time of framing of charges under sec. 239 Cr.P.C. and examination under section 313 Cr.P.C. and also on the date of pronouncement of the judgment.

In a reported judgment between A. Venugopal Vs. State of A.P. and another reported in 1999 (4) ALD 449, the Hon'ble High Court of A.P. held that when a notice was returned by an endorsement by the postal authorities which may amounts to refusal to receive letter. The Hon'ble court held that it is possible that the letter might have been tendered to a wrong person who might have refused to claim it as not bound addressed to him. Under the circumstances the NBW issued on petitioner/accused has bound recall and the petitioner shall attend the court on the next date of hearing.

In a reported judgment between Bhagvan Premchand Vs. State of A.P. reported in 1998 (1) ALT (Crl) 110 A.P., the Hon'ble High Court held that the Magistrate should shed wrong practice of issuing NBW, the moment the accused failed to appear before the court without giving an opportunity to explain the circumstances under which the accused failed to appear in the court and in the light of the language employed in Sec. 73 of Cr.P.C. NBW can be issued sparingly that to after coming to a conclusion that there is no other way to secure the presence of accused.

In a reported judgment between Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and another reported in 2008 Crl LJ 2127 The Honble Bombay High Court held that power of jurisdiction of court to issue proper warrant against an accused on his bail to attend the court, such power has to be exercised judicially and not arbitrarily. It further held that the magistrate could have issued either notice or bailable warrant depending upon the facts .The High court directed the police officer to pay costs of Rs.2000/- from his own account.

The facts in brief that a non bailable warrant issued against himreturnableon31.10.2002, the appellant Raghuvansh appeared and filed a petition to re call NBW and warrant was cancelled. On15.08.2002 the police arrested the appellant, even though he stated that NBW recalled, and produced before the Magistrate and the magistrate directed the release of accused.

Guidelines Issued By The Apex Court

In a reported judgment between Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and another AIR 2011SC 3393 the Hon'ble Apex court issued guide lines to the subordinate courts at the time of issuance of NBWs. The Hon'ble Apex court directed all of the subordinate courts to use printed and machine No. and form No.2 for issuing warrant of arrest. The court must ensure that complete particulars of the cases are mentioned in the warrant. The Presiding Judge of the court should put his full and legible signatures in the particulars and also ensuring that court seal appearing with complete address of the court, prominently endorsed there on. The court must ensure that warrant is directed to a particular police officer, it must be returnable whether executed or non-executed on or before the date specified there in. Every court must maintain a register in which warrant of arrest issued must be entered and chronological serial number of such entry reflected on the top right hand of the process. No warrant of arrest shall be issued without being entered in the register. A register similar one shall be maintained at concerned police station. The courts should not give a long time for return of execution of warrants. On the date fixed for return of warrant, the court must insist upon for compliance of report on the action taken by thereon by the Station House Officer of concerned Police station. The report of such warrant must be cogent and legible duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse. In the event of warrant for execution beyond satisfaction court issuing it procedure laid down under section 78 and 79 Cr.P.C. a court must be strictly and scrupulously followed. In the event of cancellation of arrest warrant by the court, the order cancelling warrant shall be recorded in the case file and register maintained. A copy thereof shall be sent to the concerned authorities requiring the process to be returned unexecuted forthwith. The date of return of unexecuted warrant will be entered in the above said register. A copy of such order shall also be supplied to the accused.

Whether Police Can Realease The Accused By Taking Bonds When Nbw Is Executed?

Yes. In cases where the offence is bailable one.

As per sec. 81 of Cr.P.C. the Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the court which issued the warrant, direct his removal in custody to such court. Provided that if the offence is bailable and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent of Police, or Commissioner or a direction has been endorsed U/s. 71 on the warrant and such person is ready and willing to give security by such direction, the Magistrate, District Superintendent of Police or Commissioner shall take such bail or security as case may be and forward the bond to the court which issued the warrant. Provided further that if the offence is Non-bailable one, it shall be lawful for Chief Judicial Magistrate (subject to the provisions of section 437) or the session Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in sub-section (2) of section 78, to release such person on bail.

1 Like

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     31 October 2012

It is regrettable the most of the courts are not following the directions issued by the SUPREME COURT IN 

AIR 2011SC 3393 since the argument is that no directions are recieved by the parant HIGH COURT.

 

Still in the matter of this thread the advocate can apply for cancellation of NBW to the court and in normal course the court may cancell the NBW but may impose some conditions such as day to day hearing of the matter if the other side opposes the application.

Chattopadhyay Arghya (Advocate )     18 June 2013

Rightly observed experience. In one case in an Adl. Sessions Judge in Bengal says ," there is nothing in Calcitta Highcourt Crl.rules and orders which entitle an accused or his advocate to file a petition for recall of warrant on accused being absent one day in three years without a P.W. examined during three years after charge was framed., He added," it is duty of court to recall warrant on appearence and application not required and only a bail petition be preferred and an application for put up is required. ;( following comments may be skipped: I  am astonished , put up is a official process, if any petition or event brought in regards to a case adjourned on another date, or the record is not in due course on the bench on any reason, put up order is given on single order sheet with application for any prayer to be pressed. Is it necesary or mandatory to apply seperately for put up?I  find all advocates top to bottom practise same .

other advocates supported ," recall of warrant is unnecesary when appearence made, accused must go on new bail petition and new bail order to be given. The bail application for allowing continue previous bail is not entertained ; warrant issued means cancellation of existing Bail, so they added no application for continuing previous bail is possible, issue does not arise." I know not only Madras but several High Courts have given judgement on settled position of lawregarding Recalling warrant , previous bail,petition for recall  is mentioned in many judgements, I have found, well settled principles cited several times by several High Courts. But not even a single is of avail in the said court of Addl. Sessions Judge in West Bengal, and advocates believe bail stands cancelled as soon as warrant issued, no cancelling of bail to be made expressly. My contention was ," if issue of warrant automatically cancels existing bail, then how further proceedings u/s 446 can be issued if accused does not appear at all and warrant cannot be executed.?" they said" if accused appears then cancelled?" how then a petition for new bail can be filed alongwith in subsistence of previous bail on voluntary appearence"  No where in Cr.P.C is found warrant cancels bail automatically; not even that a magistrate shall new bail is written; it only refers to new surity . What  one can do if subordinate courts of another jurisdiction menifestly decline to consider a judgement of Other H.C. ? If anyone has a link to any SC judgement on this issues ---  SC mentioned recall application, warrant and cancellation of Bail, remain on previous bail,new bail- terminological reference, please help me so that  my single person views can get some air?

Ram   07 October 2017

Anybody share me the judgement copy " Ramakrishna Agencies, Guntur Vs. State of A.P". I am unabke to get on the internet.


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