The Allahabad High Court has reaffirmed that issuance of a non-bailable warrant (NBW) is a drastic measure that must be reserved for cases where all lesser coercive processes have failed. In a significant procedural ruling, the Court stayed enforcement of an NBW against an applicant who was already on bail, emphasizing that courts must exhaust statutory alternatives before resorting to arrest.
Background & Facts
The Dispute
The present application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) seeks quashing of two orders dated 03.04.2025 and 06.02.2026 passed by the Chief Judicial Magistrate, Baghpat, in Criminal Case No. 755 of 2019, arising out of Case Crime No. 111 of 2019 under Section 25 of the Arms Act. The impugned orders resulted in the issuance of a non-bailable warrant (NBW) against the applicant, Aasif, despite his existing bail status.
Key Facts
- The applicant was granted bail in the underlying criminal case on an earlier date, though the exact date is not specified in the judgment
- The court below issued a summons for appearance, but no record indicates service of the summons was confirmed
- A bailable warrant was not issued prior to the NBW
- The NBW was issued without any finding that the applicant wilfully avoided court process
- The applicant was not present in court at the time the NBW was issued
- No evidence was recorded or submitted to establish that the applicant had disregarded prior notices or summonses
Procedural History
- 2019: Crime No. 111 of 2019 registered at P.S. Khekda, District Baghpat, under Section 25 of the Arms Act
- 2019: Criminal Case No. 755 of 2019 commenced before the Chief Judicial Magistrate, Baghpat
- Date unspecified: Applicant granted bail in the case
- 03.04.2025: First impugned order issued by CJM, Baghpat, directing issuance of NBW
- 06.02.2026: Second impugned order reiterating NBW issuance
- 2026: Application under Section 528 BNSS filed before the Allahabad High Court seeking quashing of NBW orders
The Parties' Positions
For the Applicant
- The applicant was already on bail and had not absconded or evaded court process
- No summons or bailable warrant had been issued or proven to have been served
- The NBW was issued without application of mind or compliance with settled legal principles
- Reliance was placed on Supreme Court judgments requiring NBW as a last resort
For the Respondent (State)
- Opposed the application without presenting any evidence of non-compliance by the applicant
- Did not dispute that summons or bailable warrant were never issued
- Made no submission on whether the applicant had wilfully ignored court notices
Relief Sought
The applicant sought quashing of the NBW orders dated 03.04.2025 and 06.02.2026, and a direction that no arrest be made unless the court below follows due process by issuing summons and bailable warrant first.
The Legal Issue
Can a non-bailable warrant be issued against an accused who is already on bail, without prior issuance and service of summons and a bailable warrant, and without any finding of wilful avoidance of court process?
Arguments Presented
For the Appellant/Petitioner
Learned counsel for the applicant relied on the Supreme Court’s rulings in Satender Kumar Antil v. Central Bureau of Investigation & Another (2021) 10 SCC 773, Siddharth v. State of Uttar Pradesh & Another (2022) 11 SCC 676, and Aman Preet Singh v. C.B.I. through Director (2021 SCC Online SC 941). These judgments establish that NBWs must be issued only as a last resort, after the court is satisfied that the accused has failed to respond to summons and bailable warrants. The applicant argued that the lower court violated this settled principle by issuing an NBW without any prior coercive process or evidence of non-appearance.
For the Respondent/State
The learned Additional Government Advocate did not contest the factual premise that no summons or bailable warrant had been issued or proven to have been served. No counter-affidavit or evidence was filed to show that the applicant had deliberately avoided court process. The opposition was general and lacked legal or factual grounding.
The Court's Analysis
The Court observed that the issuance of a non-bailable warrant is not a routine or automatic step in criminal proceedings. It is an extraordinary measure that must be preceded by the issuance and service of summons and, if necessary, a bailable warrant. The Court emphasized that the lower court failed to record any satisfaction that the applicant had wilfully disregarded court process.
"The issuance of a non-bailable warrant without prior issuance of summons and bailable warrant, and without any finding of wilful avoidance, is contrary to the settled principles laid down by the Supreme Court."
The Court noted that the applicant was already on bail, which itself indicates the court below had earlier found no risk of flight or tampering. The absence of any record showing service of summons or issuance of a bailable warrant rendered the NBW order legally unsustainable. The Court further held that the lower court’s failure to apply its mind to the legal requirements under the precedents cited by the applicant amounted to a violation of natural justice.
The Court declined to quash the NBW outright, recognizing that the lower court retains jurisdiction to reconsider the matter if proper procedure is followed. Instead, it imposed a conditional stay to allow the applicant an opportunity to regularize his position.
The Verdict
The applicant succeeded. The Court directed that the execution of the non-bailable warrant be kept in abeyance for a period of three weeks from today, or until the applicant appears before the court below, whichever is earlier. The applicant is granted leave to apply for bail or recall of the NBW within this period, and the court below shall decide such application in light of the Supreme Court judgments in Satender Kumar Antil, Siddharth, and Aman Preet Singh. The applicant must appear personally before the CJM, Baghpat, within three weeks to avail this opportunity.
What This Means For Similar Cases
NBW Cannot Be Issued Without Prior Process
- Practitioners must now insist that courts record explicit satisfaction that summons and bailable warrants were issued and served before granting NBW
- Any NBW order lacking this record is liable to be set aside on writ petition
- The burden lies on the prosecution to prove non-compliance by the accused, not on the accused to prove compliance
Bail Status Is a Strong Indicator Against NBW
- An accused on bail cannot be subjected to NBW unless there is clear evidence of subsequent non-appearance or evasion
- Courts must not treat bail as a temporary suspension of rights; continued bail implies no flight risk
- Applications under Section 528 BNSS are viable remedies where NBWs are issued arbitrarily
Procedural Compliance Is Non-Negotiable
- Failure to follow the three-step process (summons → bailable warrant → NBW) renders the NBW void ab initio
- Lower courts must maintain a clear record of all process issued and served
- Advocates should file applications under Section 528 BNSS immediately upon issuance of an NBW without prior process
