The Bombay High Court’s Aurangabad Bench has set aside a non-bailable warrant (NBW) issued against an accused person for his absence on a single court date, emphasizing that such extreme measures must be a last resort under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNS). The Court underscored the primacy of personal liberty and the need for courts to exhaust alternatives like bailable warrants before resorting to arrest, particularly in cases where the accused has otherwise complied with procedural requirements.
Background & Facts
The Genesis
The applicant, Ramswarup @ Swarup s/o Laxman Phalke, a 44-year-old driver residing in Renapur, Beed district, is accused in Crime No.301 of 2023 registered under the Indian Penal Code for offences including Section 302 (murder). He was arrested and granted bail by the Sessions Court, Beed, on 22-06-2024. The framing of charges occurred on 19-06-2024, post which the applicant attended court proceedings regularly, save for a few instances where adjournments were sought through counsel.
Key Facts
- The applicant attended court on 03-09-2025, 14-11-2025, and 08-05-2026, as reflected in the Roznama (court diary).
- On 20-04-2026, an exemption application was filed and allowed by the trial court.
- On 29-05-2026, the applicant filed another exemption application (Exh.44) due to inability to attend court. The trial court rejected this application and directly issued a non-bailable warrant (NBW) against the applicant.
- The applicant had previously paid witness bhatta (compensation) as directed by the court.
Procedural History
- 29-05-2026: Trial court rejected exemption application (Exh.44) and issued NBW.
- 22-07-2026: Present Criminal Application No.2630/2026 filed before the Bombay High Court (Aurangabad Bench) under Section 528 BNS for quashing the NBW.
- 23-07-2026: Judgment reserved and pronounced.
The Parties' Positions
For the Applicant:
- The applicant’s counsel argued that the applicant had attended court regularly and had sought adjournments through counsel, which were granted. The issuance of NBW without exhausting alternatives like bailable warrants was arbitrary and violated personal liberty.
- The applicant undertook to attend future court dates without fail.
For the State:
- The State, represented by the APP, opposed the application on two grounds:
- The offence was serious, and the trial could not proceed due to the applicant’s absence.
- No application had been filed before the trial court to set aside the NBW.
The Legal Issue
The central question was whether the trial court’s order dated 29-05-2026, rejecting the applicant’s exemption application and directly issuing a non-bailable warrant, was legally sustainable under Section 528 BNS and judicial precedents governing the issuance of warrants.
Arguments Presented
For the Applicant
- The applicant’s counsel relied on the Supreme Court’s judgment in Inder Mohan Goswami v. State of Uttaranchal, which held that non-bailable warrants should be issued only as a last resort after exhausting alternatives like bailable warrants or summons.
- The counsel argued that the trial court failed to apply its mind to the exemption application (Exh.44) and mechanically issued the NBW, ignoring the applicant’s otherwise consistent compliance with court proceedings.
For the Respondent/State
- The State contended that the offence was serious (Section 302 IPC) and that the trial could not proceed due to the applicant’s absence on 29-05-2026.
- The State argued that no prior application had been filed to set aside the NBW, and that the High Court should not interfere with the trial court’s discretion.
The Court's Analysis
The Court examined the applicant’s attendance record, as reflected in the Roznama, and noted that the applicant had attended court on all prior dates except 29-05-2026, for which an exemption application was filed. The Court observed that the trial court had rejected the exemption application without considering the applicant’s otherwise consistent compliance and had directly issued an NBW.
The Court relied on the Supreme Court’s judgment in Inder Mohan Goswami v. State of Uttaranchal, which emphasized that:
"The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants."
The Court also cited State of U.P. v. Poosu, which held that the choice between bailable and non-bailable warrants must be exercised judiciously, considering factors such as the nature of the offence, the character of the evidence, and the possibility of the accused absconding.
The Court noted that the trial court had failed to exhaust alternatives like bailable warrants or summons before issuing the NBW, despite the applicant’s otherwise consistent compliance with court proceedings. The Court held that such mechanical issuance of NBW without proper scrutiny violated the principles of natural justice and personal liberty.
The Court further observed that the inherent powers under Section 528 BNS could be invoked to prevent abuse of the process of law and to secure the ends of justice. The Court held that the trial court’s order was unsustainable and required interference.
The Verdict
The Court allowed the application and quashed the NBW issued on 29-05-2026. The applicant was directed to attend all future court dates without fail. The Court held that:
- The NBW was issued without exhausting alternatives like bailable warrants or summons.
- The trial court failed to apply its mind to the exemption application (Exh.44) and mechanically issued the NBW.
- The applicant’s consistent compliance with court proceedings and payment of witness bhatta demonstrated his bona fide intent.
The Court directed the applicant to attend court regularly and warned that any future non-compliance would be viewed strictly.
What This Means For Similar Cases
Non-Bailable Warrants Are Not Automatic
Courts must exhaust alternatives like bailable warrants or summons before issuing NBWs. The issuance of NBWs should be a last resort, particularly in cases where the accused has otherwise complied with procedural requirements.
- Actionable Takeaway: Practitioners should argue for bailable warrants or summons in cases of single-day absence, especially where the accused has a history of compliance.
Personal Liberty Trumps Procedural Rigidity
The Court reiterated that personal liberty is a fundamental right under Article 21 of the Constitution. Mechanical issuance of NBWs without proper scrutiny violates this right.
- Actionable Takeaway: Courts must apply their mind to exemption applications and consider alternatives before resorting to arrest.
Inherent Powers Under BNS 528 Are Broad
The Court invoked its inherent powers under Section 528 BNS to quash the NBW, emphasizing that such powers are meant to prevent abuse of the process of law and secure justice.
- Actionable Takeaway: Practitioners should explore inherent powers under Section 528 BNS in cases of arbitrary or mechanical issuance of warrants.
