Non-Bailable Warrant (NBW) in India: What It Means & How to Handle

# Non-Bailable Warrant (NBW) in India: What It Means & How to Handle

A **Non-Bailable Warrant (NBW)** is one of the most serious procedural orders that a court can issue in criminal proceedings. The issuance of an NBW signifies that the court requires the immediate presence of the accused and that the person, upon arrest, cannot claim bail as a matter of right. Understanding what an NBW entails, when it is issued, and the legal options available to a person against whom an NBW has been issued is crucial for anyone involved in or affected by criminal proceedings.

This article provides a comprehensive overview of Non-Bailable Warrants in India, covering the legal provisions under the **Code of Criminal Procedure, 1973 (CrPC)** and the **Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)**, the circumstances of issuance, consequences, remedies, and key judicial pronouncements.

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What is a Warrant of Arrest?

A **warrant of arrest** is a written order issued and signed by a Magistrate or Judge, directed to one or more police officers, commanding them to arrest the person named in the warrant and produce them before the court.

Under Indian law, warrants of arrest are of **two types**:

1. **Bailable Warrant**: The warrant endorses a direction that the person arrested shall be released on bail, i.e., the person can secure release by furnishing bail immediately upon arrest.

2. **Non-Bailable Warrant (NBW)**: The warrant does not contain such an endorsement. The person arrested under an NBW **cannot claim bail as a matter of right** and must be produced before the court, which will then decide whether to grant bail.

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Legal Provisions: CrPC and BNSS

Warrants Under CrPC (Applicable for Cases Before 1st July 2024)

- **Section 70 CrPC**: Every warrant of arrest shall be in writing, signed by the presiding officer, and shall bear the seal of the court.

- **Section 71 CrPC**: The court issuing a warrant may, in its discretion, direct that the person named therein shall be released on bail if they execute a bond with sufficient sureties. If the court does not so direct, the warrant is a **non-bailable warrant**.

- **Section 73 CrPC**: The Chief Judicial Magistrate or a Magistrate of the First Class may direct a warrant to **any person within India** for the arrest of a proclaimed offender or a person against whom a warrant has been issued by a court outside the local jurisdiction.

- **Section 74 CrPC**: A warrant directed to a police officer may also be executed by any other police officer whose name is endorsed on the warrant.

- **Section 75 CrPC**: The police officer or other person executing a warrant shall **notify the substance** of the warrant to the person to be arrested and, if so required, shall **show the warrant**.

- **Section 76 CrPC**: The person arrested shall, without unnecessary delay, be brought before the court issuing the warrant. **Section 76** mandates that the arrested person must be brought before the court within **24 hours** of arrest (excluding the time necessary for the journey), in compliance with **Article 22(2) of the Constitution**.

Warrants Under BNSS (Applicable for Cases from 1st July 2024)

The **Bharatiya Nagarik Suraksha Sanhita, 2023** substantially retains the provisions relating to warrants:

- **Section 35 BNSS**: Arrest by police officer (corresponding to Section 41 CrPC).

- **Section 67 BNSS**: Form of warrant of arrest.

- **Section 68 BNSS**: Court may direct security amount (corresponding to Section 71 CrPC on bailable warrants).

- **Section 70 BNSS**: Warrant directed to police officer (execution provisions).

- **Section 71 BNSS**: Notification of substance of warrant.

- **Section 72 BNSS**: Person arrested to be brought before court without delay.

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When Does a Court Issue a Non-Bailable Warrant?

Courts issue NBWs in a variety of circumstances. The issuance is not automatic; it is a **judicial act** requiring the court to apply its mind. Common situations include:

1. Non-Appearance of the Accused

The most common reason for issuing an NBW is the **repeated failure of the accused to appear** before the court despite being summoned or served with a bailable warrant. Courts typically follow a graduated approach:

- **First step**: Summons to appear.

- **Second step**: Bailable warrant (if summons is not complied with).

- **Third step**: Non-bailable warrant (if bailable warrant is also not effective).

2. Serious Offences

For offences that are **serious in nature** (such as murder, robbery, organized crime, terrorism, sexual offences), the court may directly issue an NBW if there are reasons to believe that the accused is likely to abscond, tamper with evidence, or threaten witnesses.

3. Proclaimed Offender

Under **Section 82 CrPC** (Section 84 BNSS), if a court has reason to believe that a person against whom a warrant has been issued is absconding or concealing themselves, it may publish a **proclamation** requiring them to appear within a specified period. If the person fails to appear, they may be declared a **proclaimed offender**, and their property may be attached under **Section 83 CrPC** (Section 85 BNSS).

4. Apprehension of Flight Risk

If the court has reasonable grounds to believe that the accused may **flee the jurisdiction** or leave the country, it may issue an NBW to ensure their presence. In such cases, the court may also issue a **Look Out Circular (LOC)** to prevent the accused from leaving India.

5. Breach of Bail Conditions

If a person who has been granted bail **violates the conditions of bail** (such as failing to appear on the date fixed, tampering with evidence, or threatening witnesses), the court may **cancel bail** and issue an NBW for their arrest.

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Non-Bailable Warrant vs. Bailable Warrant

| Feature | Bailable Warrant | Non-Bailable Warrant |

|---------|-----------------|---------------------|

| **Bail endorsement** | Contains a direction for release on bail | Does not contain such a direction |

| **Right to bail** | Arrested person can secure release by furnishing bail immediately | No right to bail; must be produced before court |

| **Severity** | Generally issued for less serious matters | Generally issued for serious offences or persistent non-appearance |

| **Court involvement** | Bail can be granted by the executing officer | Bail can only be granted by the court |

| **Typical use** | First recourse when summons fails | When bailable warrant or summons has failed, or for serious offences |

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Consequences of a Non-Bailable Warrant

The issuance of an NBW carries significant legal consequences:

1. **Arrest**: The police are duty-bound to execute the warrant by **arresting the named person** and producing them before the court.

2. **No right to bail**: Upon arrest, the person **cannot claim bail as a matter of right**. Bail can only be granted by the court, and the court has discretion to refuse bail.

3. **Nationwide applicability**: Under **Section 73 CrPC** (Section 70 BNSS), a warrant can be executed **anywhere in India**. There is no geographical limitation within the country.

4. **Declared a proclaimed offender**: If the person absconds, they may be declared a proclaimed offender under **Section 82 CrPC** (Section 84 BNSS), which carries additional consequences including attachment of property.

5. **Look Out Circular**: The court may direct the issuance of an LOC to prevent the person from leaving the country.

6. **Criminal record**: The issuance of an NBW and subsequent proceedings become part of the person's criminal record.

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How to Get an NBW Recalled or Cancelled

If an NBW has been issued against a person, there are several legal remedies available:

1. Surrender Before the Court

The most straightforward approach is to **surrender before the court** that issued the NBW. By surrendering voluntarily, the person demonstrates good faith and willingness to cooperate with the legal process. Upon surrender:

- The court will produce the person and hear arguments on bail.

- Voluntary surrender is generally viewed **favourably** by the court and improves the chances of bail being granted.

- The person's lawyer can make an application for **recall of the NBW** and grant of bail simultaneously.

2. Application for Recall of NBW

The accused (through their advocate) can file an **application for recall of the NBW** before the same court that issued it. Grounds for recall may include:

- The accused was **not aware** of the court proceedings (lack of proper service of summons).

- The accused was **unable to appear** due to a genuine reason (illness, hospitalization, being abroad, etc.) supported by documentary evidence.

- The accused is **willing to cooperate** with the proceedings and undertakes to appear on all future dates.

- The **circumstances have changed** since the NBW was issued.

The **Supreme Court** in **Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1** laid down important guidelines on the issuance of NBWs, holding that courts should not issue NBWs in a **mechanical or routine manner** and must apply their judicial mind. The Court observed:

*"The warrant of arrest (non-bailable) should not be issued unless the court has reason to believe that the person will not appear voluntarily... Issuance of warrant of arrest involves a deprivation of personal liberty and therefore the Magistrate must apply his mind before issuing warrant of arrest."*

3. Application in the High Court (Section 482 CrPC / Section 528 BNSS)

If the trial court refuses to recall the NBW, the accused can approach the **High Court** under:

- **Section 482 CrPC** (Section 528 BNSS): Inherent powers of the High Court to make orders necessary to give effect to any order under this Code, or to prevent abuse of the process of any court, or otherwise to secure the ends of justice.

- **Article 226 of the Constitution**: Writ jurisdiction of the High Court.

4. Anticipatory Bail

A person apprehending arrest under an NBW can apply for **anticipatory bail** under **Section 438 CrPC** (Section 482 BNSS) before the **Sessions Court** or the **High Court**.

The **Supreme Court** in **Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1** held that anticipatory bail can be granted for a **specific or indefinite period** and that the court has wide discretion to impose conditions. However, the availability of anticipatory bail when an NBW has already been issued depends on the facts of each case, and some courts may require surrender before considering the anticipatory bail application.

5. Quashing of Proceedings

In certain cases, the accused may seek **quashing of the entire criminal proceedings** (including the NBW) under **Section 482 CrPC** (Section 528 BNSS) or **Article 226** of the Constitution, if the proceedings are:

- Based on a **false or frivolous complaint**.

- Proceedings where no offence is made out on the face of the complaint.

- An **abuse of the process of the court**.

The **Supreme Court** in **State of Haryana v. Bhajan Lal (1992) Supp 1 SCC 335** laid down the categories of cases where the High Court may exercise its power of quashing criminal proceedings.

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Surrender Before Court: Practical Guide

When a person decides to surrender before the court:

1. **Engage a competent criminal lawyer** well before the surrender.

2. The lawyer should file a **surrender application** before the court, stating that the accused is present and willing to surrender.

3. Simultaneously, the lawyer should file a **bail application** so that bail arguments can be heard immediately after surrender.

4. **Carry all relevant documents**: identity proof, address proof, medical records (if health was a reason for non-appearance), and any other documents supporting the bail application.

5. **Bail sureties should be ready**: Have sureties with their identity and property documents ready so that bail bond can be executed immediately if bail is granted.

6. Be prepared for the possibility that **bail may not be granted immediately**, and the person may have to spend time in judicial custody until the next hearing.

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NBW in Specific Contexts

NBW in Cheque Bounce Cases (Section 138 NI Act)

In cases under **Section 138 of the Negotiable Instruments Act, 1881**, courts frequently issue NBWs when the accused fails to appear. The **Supreme Court** in **Vijay Dhanuka v. Najima Mamtaj (2014) 14 SCC 638** and other cases has observed that courts should first exhaust less coercive measures (summons, bailable warrant) before resorting to NBWs in such cases, as they are primarily civil in nature despite being classified as criminal offences.

NBW in Matrimonial Cases

In matrimonial cases (under Section 498A IPC or domestic violence proceedings), the issuance of NBW against the accused or their family members has been a subject of concern. The **Supreme Court** in **Arnesh Kumar v. State of Bihar (2014) 8 SCC 273** laid down guidelines to prevent the mechanical arrest in matrimonial cases, and these principles apply equally to the issuance of NBWs.

NBW in Economic Offences

In cases involving economic offences (fraud, money laundering, corporate crimes), NBWs are frequently issued, especially when the accused is suspected of being a flight risk. Courts may simultaneously order the issuance of a **Look Out Circular** and passport impoundment.

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Key Supreme Court and High Court Judgments

1. **Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1**: The Court laid down that NBWs should not be issued mechanically and that courts must apply judicial mind before issuing warrants that affect personal liberty.

2. **Raghuvansh Dewanchand Bhasin v. State of Maharashtra (2012) 9 SCC 791**: The Court held that the power to issue NBW must be exercised with due care and caution, and the court must be satisfied that the accused is deliberately avoiding appearance.

3. **Pankaj Jain v. Union of India (2018) 5 SCC 743**: The Delhi High Court held that an NBW should not be issued as a matter of course in economic offence cases and that less coercive measures should be attempted first.

4. **Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1**: Comprehensive guidelines on anticipatory bail, relevant to persons facing NBWs who wish to seek protection from arrest.

5. **Satender Kumar Antil v. CBI (2022) 10 SCC 51**: The Supreme Court laid down detailed guidelines on arrest and bail, emphasizing that personal liberty under **Article 21** must be given primacy and that incarceration should be the exception, not the rule.

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Frequently Asked Questions

What is the difference between a non-bailable warrant and a non-bailable offence?

A **non-bailable warrant** is a court order directing the arrest of a person without the endorsement for bail. A **non-bailable offence** is a category of offence (defined in the First Schedule of CrPC/BNSS) where bail is not a right but a matter of court's discretion. While the two concepts are related, they are distinct -- an NBW can be issued even in bailable offences if the accused persistently fails to appear.

Can police arrest a person on an NBW at any time?

Yes. An NBW can be executed at **any time and at any place** within India. The police are duty-bound to execute the warrant. However, **Section 75 CrPC** (Section 71 BNSS) requires the executing officer to notify the substance of the warrant to the person being arrested.

Can an NBW be issued without the accused knowing about the case?

Technically, the court should first attempt service of **summons** on the accused. However, in practice, if summons cannot be served (for example, the accused has absconded or the address is incorrect), the court may proceed to issue an NBW. The accused can challenge the NBW on the ground of **non-service of summons** by filing an application for recall.

Can anticipatory bail protect against an NBW?

In certain circumstances, yes. If a person apprehends arrest under an NBW, they can apply for **anticipatory bail** under Section 438 CrPC (Section 482 BNSS). However, some courts take the view that if an NBW has already been issued, the person should first surrender and then apply for regular bail. The availability of anticipatory bail in such situations depends on the facts and the court's discretion.

How long does an NBW remain valid?

An NBW **remains valid until it is executed or recalled** by the court. There is no expiry date on a warrant of arrest. If the person named in the warrant is not found, the warrant may remain outstanding indefinitely, and the person may be arrested at any future point when they come to the attention of law enforcement.

Can an NBW be issued against a person residing abroad?

Yes, the court can issue an NBW against a person residing abroad. However, **execution of the warrant abroad** requires the process of **extradition** or **Letters Rogatory** depending on the international treaties and agreements between India and the country concerned. In practice, the court may also direct the issuance of a **Look Out Circular** and **Red Corner Notice** through Interpol.

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Conclusion

A Non-Bailable Warrant is a serious legal process that directly impacts personal liberty. While courts have the power and sometimes the necessity to issue NBWs to ensure the presence of accused persons and the proper conduct of criminal proceedings, the Supreme Court has consistently emphasized that this power must be exercised judiciously and not mechanically.

For a person against whom an NBW has been issued, the most prudent course of action is to immediately engage a competent criminal lawyer, explore the options of surrender, recall, anticipatory bail, or quashing (depending on the circumstances), and cooperate with the legal process. Ignoring an NBW or attempting to evade it only compounds the legal difficulties and can lead to being declared a proclaimed offender with all its attendant consequences.

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*Disclaimer: This article is intended for educational and informational purposes only. It does not constitute legal advice. Criminal law and procedure are complex and depend on the specific facts of each case. Readers are encouraged to consult a qualified criminal law professional for guidance specific to their circumstances.*