Trial Courts Should Not Issue Non-Bailable Warrants On First Call, Except In Cases Of Genuine Apprehension Of Absconding: Delhi High Court

The Delhi High Court has said that the trial courts in the national capital should not issue non-bailable warrants (NBWs) against an individual on first call in the pre-lunch hours, except when there are genuine apprehensions that such person would abscond if not taken into custody.

“Such coercive steps should be taken only post 12:30 PM,” Justice Amit Bansal said.

The court said that there is a growing trend of the Trial Courts going against the settled judgments as well as the established Rules and dismissing genuine reasons of non-appearance of the parties and issuing warrants against them.

Agreeing with two judgments passed by coordinate benches on the issue, Justice Bansal said that on a lot of occasions due to various reasons, including the traffic situation in the city, various parties are unable to reach the court when the matter is called for the first time and reach later.

“In situations where warrants, either bailable or non-bailable, are issued and the person appears before the Court during the course of the Court hours, the Courts should assess if the reason of non- appearance of the person was reasonable and if warranted, costs may be imposed,” the court said.

It added that if the person is present through his authorized Advocate, warrants for appearance of the person should be issued only in exceptional circumstances, with reasons for the same being recorded in writing, especially where an application seeking exemption from personal appearance has been filed on behalf of the person.

“If an application for cancellation of NBWs due to non-appearance of the parties is filed shortly after the issuance of NBWs, the Trial Court should expeditiously consider the said application,” the court said.

Justice Bansal observed that though the legal position on issuance of warrants is abundantly clear, the same is not being followed by the Trial Courts.

The court observed that there need to be certain guidelines put in place for securing appearance of parties before the Trial Courts in accordance with law.

“A copy of this order be forwarded to all the Principal District and Sessions Judges in Delhi for circulation to all the Trial Courts trying criminal cases,” it said.

The court was dealing with a plea moved by one Fahim challenging two trial court orders wherein NBWs were issued against him and he was remanded to judicial custody after rejection of his application for cancellation of the NBWs.

It was Fahim’s case that he reached the court late due to heavy traffic because of a political rally and that he immediately moved the application for cancellation of the NBWs on the same date.

On January 25, a predecessor Bench ordered that the petitioner, who was out on bail since 2020, be released from judicial custody.

Setting aside the impugned orders, Justice Bansal noted that Fahim appeared before the Trial Court on January 03 when the matter was listed, however, he reached the Trial Court after the matter had already been called.

“In my considered view, there was no justification for the Trial Court to issue an NBW on account of non-appearance of the petitioner on 3rd January, 2023 in the early hours of day. Further, keeping in mind that the application for cancellation of the NBW was filed on the same date along with an explanation for non-appearance, the same should have been considered immediately by the Trial Court,” the court said.

It added that the reasons given by the Trial Court while dismissing the application for cancellation of the NBW were wholly unsustainable.

“Accordingly, both the impugned orders dated 3rd January, 2023 and 17th January, 2023 are set aside,” the court said.

Counsel for Petitioner: Mr.Aditya Aggarwal, Mr.Naveen Panwar and Mr.Jayseeka Virdi, Advocates

Counsel for State: Mr. Shoaib Haider, APP for State

Title: FAHIM v. STATE

Citation: 2023 LiveLaw (Del) 1183

Click Here To Read Order