Investigating Agency Showing Accused As Absconding Can’t Justify Magistrate’s Order Issuing NBWs: Telangana High Court

The Criminal Petition was filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to set aside the order in a Criminal Revision Petition passed by the Sessions Judge, Hyderabad, and recall the Non-Bailable Warrant (NBW) issued against the accused persons.

The Single Bench of Justice N. Tukaramji held“In the absence of such a demonstrated and urgent requirement, the mere fact that the investigating agency has shown the accused as absconding cannot, by itself, justify the Magistrate’s order issuing NBWs. It is pertinent to clarify that before resorting to coercive measures, the learned Magistrate is duty-bound to carefully examine the materials produced by the investigating agency, including the nature of the process issued, the allegations made, and the evidence collected. An independent judicial assessment must be undertaken to determine whether the presence or custody of the accused is necessary. Upon forming such an opinion and by recording the reasons though not required to be elaborate the Magistrate may then proceed to exercise jurisdiction to issue coercive process.”

Factual Background

The accused petitioners were booked under Sections 329(4), 232, 351(3), 3(5) of Bharatiya Nyaya Sanhita, 2023 (BNS, 2023). At the stage of issuing summons, the trial court, noting that two of the accused persons (third and fourth accused) had been absconding since the commencement of proceedings, directed the issuance of Non-Bailable Warrants (NBWs) against them. Subsequently, the petitioners filed an application under Section 72(2) of the BNSS seeking recall of the NBWs. The court below dismissed the application of the petitioners in light of their absence. Aggrieved by this order, the petitioners preferred the petition challenging the same.

Reasoning

The Bench took note of the fact that the alleged offences attributed to the petitioners were punishable with imprisonment of up to seven years. The issuance of notice under Section 35(3) of the BNSS to the first two accused persons indicated that the investigating agency did not initially intend to arrest the accused. There was neither any material on record nor any order of the Magistrate demonstrating that securing the presence of the petitioners/accused, who were stated to be absconding or taking them into custody was essential for the purpose of investigation.

It was further noticed by the Bench that the sole basis recorded for issuing NBWs was that the petitioners were shown as absconding since the filing of the charge sheet. There was no indication that the court made any independent assessment of the facts and circumstances before directing the issuance of NBWs.

Referring to the judgment in Satender Kumar Antil v. Central Bureau of Investigation (2021), the Bench stated, “By virtue of the above guidelines, where the petitioners have neither been arrested during investigation nor is there any material demonstrating that their judicial custody is necessary for the completion of investigation or trial, the court is bound, in the first instance, to issue summons. Only thereafter, in the event of noncompliance, should bailable warrants be issued to secure their physical appearance. If the accused still fails to appear despite service of bailable warrants, the issuance of Non-Bailable Warrants (NBWs) may be considered. As the impugned order departs from this sequential procedure and is not in conformity with the guidelines, it is liable to be set aside.”

The Bench also held, “This Court, however, finds it necessary to clarify that NBWs are to be issued as a measure of last resort, solely for the purpose of securing the presence of the accused. In such course, the practice of filing applications for recall of NBWs in absentia, as a matter of routine, by relying on orders passed in other cases involving different factual circumstances, is not acceptable. As a general rule, a petition seeking recall of NBWs should be filed in the physical presence of the accused. Nevertheless, in exceptional situations, where the accused is unable to appear in person due to unavoidable and compelling circumstances, and the court concerned is satisfied of the bona fides of such reasons, may consider an application for recall of NBWs even in the absence of the accused.”

Thus, setting aside the impugned order and allowing the Petition, the Bench directed the petitioners to appear in person before the trial Court on or before the date of the next adjournment and file appropriate petition whereupon the Magistrate would have to recall the NBWs and proceed further with the pending calendar case.

Cause Title: J. Chandra Lekha v. State of Telangana (Case No.: CRLP 9668/2025)

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