The Allahabad High Court has reaffirmed that issuance of a non-bailable warrant (NBW) without first exhausting lesser coercive measures like summons and bailable warrants constitutes a violation of procedural fairness under the Bharatiya Nagarik Suraksha Sanhita, 2023. In a significant ruling, the Court stayed execution of an NBW against an applicant who was already on bail, emphasizing that such orders must be the last resort, not the first step.
Background & Facts
The Dispute
The applicant, Abdul Ahad Khan, was named as an accused in Case Crime No. 331 of 1997 registered at Police Station Sarailakhansi, District Mau, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The case was being tried by the Special Judge (Gangsters Act) in Special Case No. 104 of 2012. On 05.05.2026, the trial court issued a non-bailable warrant (NBW) against the applicant without any prior record of summons or bailable warrant having been issued or served.
Key Facts
- The applicant was on bail at the time the NBW was issued
- No evidence was placed on record that summons or a bailable warrant had been issued or served prior to the NBW
- The impugned order dated 05.05.2026 did not record any finding regarding non-compliance with prior process
- The applicant had not been absent from proceedings or evading court process
- The NBW was issued without any application or motion by the prosecution seeking such drastic measure
Procedural History
- 1997: Crime No. 331 registered at PS Sarailakhansi, Mau
- 2012: Special Case No. 104 of 2012 initiated under Gangsters Act
- 05.05.2026: Special Judge issued NBW against applicant without prior summons or bailable warrant
- 26.05.2026: Application under Section 528 of BNSS filed before Allahabad High Court seeking quashing of NBW
The Parties' Positions
For the Applicant
- The applicant was already on bail and had not absconded
- No summons or bailable warrant had been issued or served before the NBW
- The trial court failed to apply the settled legal principle that NBW is a measure of last resort
- The order was passed mechanically without judicial consideration
For the Respondent (State)
- Opposed the application without filing a detailed counter-affidavit
- Did not produce any record showing prior service of summons or bailable warrant
- Did not contest the legal proposition that NBW must follow lesser coercive measures
Relief Sought
The applicant sought quashing of the NBW dated 05.05.2026 and directions to the trial court to follow due process before issuing any coercive process.
The Legal Issue
Can a non-bailable warrant be issued under BNSS Section 528 without prior issuance and service of summons or a bailable warrant, when the accused is already on bail?
Arguments Presented
For the Applicant
Learned counsel relied on the Supreme Court’s decisions in Satender Kumar Antil v. Central Bureau of Investigation (2021) 10 SCC 773, Siddharth v. State of Uttar Pradesh (2022) 11 SCC 676, and Aman Preet Singh v. C.B.I. (2021 SCC Online SC 941). He argued that these judgments establish a mandatory procedural hierarchy: summons must be issued first; if the accused fails to appear, a bailable warrant must follow; only if there is clear evidence of evasion or non-compliance may a non-bailable warrant be issued. He submitted that the trial court’s order violated this hierarchy and was therefore illegal.
For the Respondent
The Additional Government Advocate did not dispute the legal principles cited by the applicant. No counter-arguments were advanced to justify the issuance of NBW without prior process. The State did not produce any record to show compliance with procedural safeguards.
The Court's Analysis
The Court observed that the issuance of a non-bailable warrant is not a routine or automatic step. It is a drastic measure that deprives an accused of liberty without prior judicial determination of flight risk or non-cooperation. The Court noted that the trial court’s order contained no reasoning, no reference to prior process, and no finding that the applicant had failed to respond to summons or bailable warrants.
"The issuance of a non-bailable warrant without first issuing summons or a bailable warrant, especially when the accused is already on bail, is a clear violation of the principles laid down in Satender Kumar Antil and subsequent judgments. Courts must not act mechanically but must record reasons for resorting to such extreme measures."
The Court emphasized that the Supreme Court has repeatedly held that NBWs must be issued only after the accused has demonstrated a pattern of non-appearance or evasion. Mere non-appearance without proof of service of prior process cannot justify an NBW. The trial court’s failure to even record whether summons had been issued or served rendered the order legally unsustainable.
The Verdict
The application was allowed. The Court directed that the execution of the non-bailable warrant dated 05.05.2026 shall remain in abeyance for a period of three weeks from today, or until the applicant appears before the trial court, whichever is earlier. The applicant is directed to appear before the trial court within three weeks and apply for bail or recall of the NBW. The trial court shall decide such application in light of the Supreme Court’s judgments in Satender Kumar Antil, Siddharth, and Aman Preet Singh.
What This Means For Similar Cases
NBW Cannot Be Issued Without Prior Process
- Practitioners must now insist that trial courts record explicit findings on service of summons and issuance of bailable warrants before NBW is ordered
- Any NBW issued without such record is liable to be quashed under BNSS Section 528
- The burden lies on the prosecution to prove prior process was issued and served
Courts Must Apply Satender Kumar Antil Rigorously
- The three-step hierarchy (summons → bailable warrant → NBW) is mandatory, not discretionary
- Judges must not rely on blanket assumptions about accused persons’ conduct
- Failure to follow this hierarchy renders the NBW void ab initio
Bail Status Is a Critical Factor
- An accused already on bail cannot be presumed to be evading process
- Issuing NBW against a bailed accused without proof of non-appearance is prima facie illegal
- Courts must treat bail as an indicator of compliance, not suspicion
