“The Disregard to These Well Settled Principles of Law Is an Arbitrary Exercise of Its Powers”: Madras High Court Sets Aside NBW and Dismissal of Exemption Petition
Sanchayita Lahkar
The Madras High Court set aside the issuance of a non-bailable warrant and the dismissal of a recall petition against an accused in a pending trial under the National Investigation Agency Act, 2008, observing that the Special Court had exercised its discretion in an arbitrary manner. The Division Bench recorded that powers under Sections 317 and 70(2) of the Criminal Procedure Code (Cr.P.C.) must be exercised with care, caution, and sound judgment. It observed that rejection of the exemption petition and the consequent warrant of arrest were not based on valid judicial reasoning, despite the appellant having appeared before the trial court on the same day.
The Division Bench comprising Justice M.S. Ramesh and Justice N. Senthilkumar found that the Special Court failed to apply the settled legal principles concerning judicial discretion in exemption from personal appearance and issuance of non-bailable warrants. The Court relied on precedents of the Supreme Court and clarified that discretionary powers under these provisions are not to be invoked mechanically or for the purpose of penalising litigants perceived to be delaying proceedings.
The appellant was arrayed as the 11th accused in Special Sessions Case No. 20 of 2022, which was pending before the Sessions Court for Exclusive Trial of Bomb Blast Cases at Poonamallee, functioning as a Special Court under the National Investigation Agency Act, 2008. He was charged with offences under Sections 153A(1)(B), 341, 294(b), 302, 302 read with 109, and 212 of the Indian Penal Code, along with Sections 18 and 16(1)(a) of the Unlawful Activities (Prevention) Act.
On 30.01.2025, the matter was listed for trial. The appellant filed a petition under Section 317 Cr.P.C. seeking exemption from personal appearance on account of illness. The Special Court rejected this petition, recording that the appellant had previously filed similar exemption petitions on ten occasions between August and November 2024, which, according to the trial court, delayed proceedings. Based on this reasoning, the Special Court issued a non-bailable warrant against the appellant.
Later on the same day, the appellant appeared before the Special Court and filed a recall petition under Section 70(2) Cr.P.C., along with related applications, including a surrender petition. However, the Special Court dismissed these applications as well, citing the same reasons recorded in its earlier order and remanded the appellant to judicial custody. The present criminal appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008, challenging the dismissal of the recall petition and the issuance of the warrant.
The High Court addressed repeated instances of similar appeals arising from orders of the Special Court rejecting exemption petitions under Section 317 Cr.P.C. and recorded: “In the past one month, we are confronted with several orders of this Special Court, rejecting petitions filed by the accused under Section 317 Cr.P.C.” It further observed that the pattern of dismissal reflected a routine and inflexible approach, without adequate application of judicial discretion.
Referring to the Supreme Court’s decision in Inder Mohan Goswami v. State of Uttaranchal, the Court recalled the requirement of cautious exercise of power while issuing non-bailable warrants. It quoted: “Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result.” It also noted that personal liberty under Article 21 of the Constitution demands judicious application of such powers.
The Court also cited the case of Satender Kumar Antil v. Central Bureau of Investigation, where the Supreme Court cautioned against routine issuance of non-bailable warrants without proper reasoning. The High Court recorded: “Non-bailable warrants are issued as a matter of course without due application of mind and against the tenor of the provision, which merely facilitates a discretion… Therefore, valid reasons have to be given for not exercising discretion in favour of the said person.”
Further, in Sherif Ahmed v. State of Uttar Pradesh, the Supreme Court had reiterated that personal liberty should not be curtailed unless necessitated by overriding public interest. The Madras High Court quoted: “Non-bailable warrants cannot be issued in a routine manner and the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State.”
In relation to the petition under Section 317 Cr.P.C., the Court noted that the appellant had suffered from diarrhoea while travelling to Chennai on the date of hearing and had informed his advocate, who then filed the petition. Upon arrival later that day, the appellant presented himself before the court and filed additional petitions. The Court recorded: “The appellant had reached the Special Court at 11.00 A.M. and on realising the rejection… had presented himself before the Court and filed an advance hearing petition… along with a surrender petition and a warrant recall petition.”
The Bench held that the Special Court failed to consider this sequence of events and erred in attributing delay in trial to the appellant. It stated: “The only factor, which appears to have influenced the Special Court… is that he had absented himself during several occasions… We do not endorse this view.”
On whether the trial could proceed despite such absences, the Court referred to Section 273 Cr.P.C., noting that though the provision envisages recording evidence in the presence of the accused, there are exceptions. The Court relied on Atma Ram v. State of Rajasthan, where it was held: “Sections 299 and 317 are such express exceptions provided in the Code. In the circumstances mentioned in the said Sections, the courts would be justified in recording evidence in the absence of the accused.”
The Court recorded that the Special Court could have continued trial proceedings using its discretion under applicable provisions, rather than relying on repeated past absences to deny fair consideration of the exemption request. It observed that rejecting petitions under Sections 317 and 70(2) Cr.P.C. without recognising settled legal standards amounted to arbitrary exercise of judicial discretion. It stated: “The disregard to these well settled principles of law… is an arbitrary exercise of its powers.”
The Court set aside the impugned order passed in Crl.M.P.No.76 of 2025 dated 30.01.2025 and recalled the non-bailable warrant issued in Crl.M.P.No.73 of 2025 on the same date. The appellant was directed to adhere strictly to the modified bail conditions earlier imposed by the Court in Crl.A.No.1230 of 2024 dated 11.12.2024 and cooperate in trial proceedings.
Advocates Representing the Parties
For the Appellant: I. Abdul Basith, Advocate
For the Respondent: R. Karthikeyan, Special Public Prosecutor
Case Title: Mohammed Faruk v. Union of India
Neutral Citation: 2025:MHC:740
Case Number: Crl.A.No.250 of 2025
Bench: Justice M.S. Ramesh, Justice N. Senthilkumar
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