Telangana High Court | ‘Absconding’ Alone No Ground for NBW at Summons Stage | Non-Bailable Warrants a Last Resort Under BNSS
Sanchayita Lahkar
The High Court of Telangana Single Bench of Justice N. Tukaramji has set aside the order of the Sessions Judge, Hyderabad, which had upheld the issuance of Non-Bailable Warrants (NBWs) by the IV Additional Chief Judicial Magistrate, Hyderabad. The Court directed that the impugned order be recalled and instructed the accused to appear before the trial court to enable recall of the warrants. The Bench clarified that issuance of NBWs must adhere to the sequential process mandated by law, stating that coercive measures can only be invoked as a last resort.
The petition before the High Court was filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking to set aside the order dated 10.07.2025 in Criminal Revision Petition No. 81 of 2025. The said order had affirmed the issuance of Non-Bailable Warrants (NBWs) dated 30.12.2024 by the IV Additional Chief Judicial Magistrate, Hyderabad in C.C. No. 15408 of 2024.
The petitioners were accused in C.C. No. 15408 of 2024 pending before the IV Additional Chief Judicial Magistrate, Nampally, Hyderabad. They were charged under Sections 329(4), 232, 351(3), and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS, 2023). According to the case record, at the stage of issuing summons, the trial court observed that Accused Nos. 3 and 4 had been absconding since the commencement of proceedings. Based on this observation, the trial court directed issuance of NBWs against them.
Subsequently, the petitioners filed an application under Section 72(2) of the BNSS seeking recall of the NBWs. The trial court, however, dismissed this application on the ground that although the petitioners had been ordered to be present, they remained absent. Aggrieved by this, the petitioners preferred the present petition before the High Court.
Counsel for the petitioners contended that even as per the prosecution’s version, all four accused were residents of the same premises. However, during the course of investigation, the investigating agency served notice under Section 35(3) of the BNSS only on Accused Nos. 1 and 2. No such notice was served upon the present petitioners at any stage. It was submitted that the trial court, without considering this significant omission, proceeded to issue NBWs against the petitioners.
The petitioners further argued that all offences alleged against them were punishable with imprisonment of less than seven years. In such circumstances, the trial court ought to have followed the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273. The contention raised was that the trial court’s action violated the principles laid down in the said judgment which mandated issuance of notice before resorting to arrest or coercive process in cases of offences punishable up to seven years.
Reliance was also placed on the Supreme Court judgment in Satender Kumar Antil v. Central Bureau of Investigation (2021) 10 SCC 773. The petitioners argued that the judgment categorized offences and prescribed sequential procedures that trial courts were required to follow. According to the guidelines, where the offences carried a punishment of up to seven years, the court was first required to issue summons. If such summons were not complied with, then a bailable warrant should follow. Only in the event of continued non-compliance was the issuance of a Non-Bailable Warrant permissible. The petitioners contended that in their case, the trial court had directly resorted to NBWs without following this sequential approach.
It was further argued that in earlier criminal petitions, this High Court had clarified that personal presence of the accused was not mandatory for seeking recall of NBWs. Therefore, the trial court’s dismissal of their recall application on the ground of their absence was contrary to law. On these grounds, the petitioners sought interference from the High Court and prayed for setting aside of the order.
In response, the learned Additional Public Prosecutor argued that as per the record, the petitioners absconded during the course of investigation and continued to avoid the judicial process even after filing of the charge sheet. It was contended that in light of such conduct, the trial court was justified in issuing NBWs against them. The prosecution further submitted that the petitioners filed the application for recall of NBWs without their physical presence despite specific directions of the trial court requiring them to appear personally. Filing such an application without compelling reasons for their non-appearance was not acceptable.
However, the learned Additional Public Prosecutor conceded that in the case of Satender Kumar Antil (supra), the Supreme Court had held that bailable warrants should ordinarily be issued before resorting to NBWs. Nonetheless, it was prayed that the High Court may pass appropriate orders considering the conduct of the petitioners and the facts of the case.
Upon perusal of records, the High Court noted that the alleged offences were punishable with imprisonment of up to seven years. It also observed that issuance of notice under Section 35(3) of BNSS to Accused Nos. 1 and 2 indicated that the investigating agency did not initially intend to arrest the accused. The Court found that no material was placed on record nor any order passed by the Magistrate showing that securing the presence or custody of the petitioners was essential for the purpose of investigation. It was further noted that the only basis recorded by the trial court for issuing NBWs was that the petitioners were shown as absconding since filing of the charge sheet.
The High Court observed that there was no independent judicial assessment made by the Magistrate of the facts and circumstances before issuing NBWs. The Court recorded that before resorting to coercive measures, it was necessary for the Magistrate to examine materials produced by the investigating agency, the nature of process issued, allegations made, and evidence collected. Only upon such assessment could the Magistrate form an opinion to issue coercive process.
Justice N. Tukaramji recorded that “the alleged offences attributed to the petitioners are punishable with imprisonment of up to seven years. The issuance of notice under Section 35(3) of the BNSS to Accused Nos. 1 and 2 indicates that the investigating agency did not initially intend to arrest the accused.” The Court stated that “there is neither any material on record nor any order of the learned Magistrate demonstrating that securing the presence of the petitioners/accused, who are stated to be absconding or taking them into custody was essential for the purpose of investigation.”
The Court observed that “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 further recorded 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.”
Justice Tukaramji noted that “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.” In the present case, however, the Court pointed out that “the sole basis recorded for issuing NBWs was that the petitioners were shown as absconding since the filing of the charge sheet. There is no indication that the court made any independent assessment of the facts and circumstances before directing the issuance of NBWs.”
Referring to the decision in Satender Kumar Antil v. CBI, the Court cited the categorization of offences and procedures prescribed therein. Justice Tukaramji reproduced the relevant portion stating that in “Category A, after filing of chargesheet/complaint taking of cognizance: a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer. b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued. c) NBW on failure to appear despite issuance of Bailable Warrant. d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.”
The Court observed that “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 non-compliance, should bailable warrants be issued.” It added that “if the accused still fails to appear despite service of bailable warrants, the issuance of Non-Bailable Warrants (NBWs) may be considered.”
Justice Tukaramji concluded that “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 Court further clarified the general rule regarding recall of NBWs. It stated that “NBWs are to be issued as a measure of last resort, solely for the purpose of securing the presence of the accused.” It further recorded that “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.”
Justice Tukaramji observed that “as a general rule, a petition seeking recall of NBWs should be filed in the physical presence of the accused.” At the same time, the Court added a caveat that “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.”
In disposing of the petition, the High Court held that “in view of the foregoing, and particularly as the impugned order has been passed without adherence to the prescribed procedure, it is hereby set aside.” The Court further directed that “the petitioners are directed to appear in person before the trial Court on or before the date of the next adjournment and file appropriate petition whereupon learned Magistrate is directed to recall the NBWs and shall proceed further with the pending calendar case strictly in accordance with law.”
The Court closed all pending miscellaneous applications, recording that “pending miscellaneous applications, if any, shall stand closed.”
Advocates Representing the Parties
For the Petitioners: Mr. Baglekar Akash Kumar, Advocate
For the Respondents: Mr. Jithender Rao Veeramalla, Additional Public Prosecutor representing the State
Case Title: J. Chandra Lekha and G. Jayaraj v/s State of Telangana and Anr
Case Number: CRLP 9668 of 2025
Bench: Justice N. Tukaramji
