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TELANGANA HIGH COURT
N. Tukaramji, J.
J. Chandra Lekha and Anr. – Petitioners
versus
State of Telangana and Anr. – Respondents
Criminal Petition No.9668 of 2025
Decided on 13.8.2025
Bharatiya Nyaya Sanhita, 2023 – Sections 329(4), 232, 351(3) and 3(5) – Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 72(2) and 528 – Issuance of Non-Bailable Warrants (NBWs) – Alleged offences attributed to petitioners are punishable with imprisonment of up to seven years – Issuance of notice under Section 35(3) of BNSS to accused indicates that investigating agency did not initially intend to arrest accused – There is neither any material on record nor any order of Magistrate demonstrating that securing presence of petitioners/accused, who are stated to be absconding or taking them into custody was essential for the purpose of investigation – In absence of such a demonstrated and urgent requirement, mere fact that investigating agency has shown accused as absconding cannot, by itself, justify Magistrate’s order issuing NBWs – Before resorting to coercive measures, Magistrate is duty-bound to carefully examine materials produced by investigating agency, including nature of process issued, allegations made, and evidence collected – Independent judicial assessment must be undertaken to determine whether presence or custody of accused is necessary – In present case, sole basis recorded for issuing NBWs was that petitioners were shown as absconding since filing of charge-sheet – There is no indication that court made any independent assessment of facts and circumstances before directing issuance of NBWs – Impugned order set aside and anticipatory bail granted. (Paras 8, 9, 10, 12, 13 and 14)
Result: Criminal Petition allowed.
Key Points: - The court must undertake an independent judicial assessment to determine whether the presence or custody of the accused is necessary before issuing NBWs (!) . - NBWs should be issued as a measure of last resort solely for securing the presence of the accused (!) . - For offences punishable with imprisonment of seven years or less, the prescribed sequential process is: ordinary summons, bailable warrant if not complied with, and only then NBW if the accused evades process (!) (!) (!) . - Mere fact that the accused are shown as absconding since filing of charge-sheet cannot, by itself, justify issuance of NBWs without an independent assessment (!) (!) . - The court must examine materials produced by the investigating agency, including nature of process issued, allegations made, and evidence collected, before issuing coercive process (!) . - Issuance of notice under Section 35(3) of the BNSS indicates that the investigating agency did not initially intend to arrest the accused (!) . - In absence of material or magistrate’s order demonstrating that securing presence or custody of accused was essential for investigation, NBWs cannot be justified (!) . - Petitioners are directed to appear in person before the trial court and file appropriate petition for recall of NBWs, which should ordinarily be done in physical presence unless exceptional circumstances exist (!) (!) .
ORDER
This Criminal Petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS’) to set aside the order dated 10.07.2025 in Criminal Revision Petition No.81 of 2025 passed by the Sessions Judge, Hyderabad and recall the Non-Bailable Warrant (NBW) dated 30.12.2024 issued by the IV Additional Chief Judicial Magistrate, Hyderabad in C.C.No.15408 of 2024.
2. I have heard Mr. Baglekar Akash Kumar, learned counsel for the petitioners and Mr.Jithender Rao Veeramalla, learned Additional Public Prosecutor, representing the respondent No.1-State.
3. The petitioners are accused in C.C.No. 15408 of 2024 on the file of the IV Additional Chief Judicial Magistrate, Nampally, Hyderabad for the offences under Sections 329(4), 232, 351(3), 3(5) of Bharatiya Nyaya Sanhita, 2023 (for short, ‘BNS, 2023’).
4. At the stage of issuing summons, the trial court, noting that Accused Nos. 3 and 4 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, however, observed that although the petitioners had been ordered to be present, they had remained absent. On that basis, the court dismissed the application. Aggrieved by this order, the petitioners have preferred the present petition challenging the same.
5. Learned counsel for the petitioners submits that, even according to the prosecution, Accused Nos. 1 to 4 are residents of the same premises. However, the investigating agency chose to serve notice under Section 35(3) of the BNSS only on Accused Nos.1 and 2, and no such notice was ever served upon the petitioners at any stage of the proceedings. It is contended that the trial court, without considering this crucial aspect, proceeded to issue Non-Bailable Warrants (NBWs) against the petitioners.
Counsel further argues that all the alleged offences are punishable with imprisonment of less than seven years, and therefore, the trial court ought to have followed the guidelines laid down by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar and Another (2014) 8 SCC 273. It is further submitted that the revisional court failed to consider the settled legal position that the petitioners were entitled to receive notice and to be given an opportunity to participate in the proceedings before coercive steps were taken.
Reliance is also placed on the judgment of the Hon’ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation (2021) wherein the Court categorized offences and prescribed the procedure to be followed by trial courts. According to these guidelines, in the given facts, the court ought first to have issued summons; if those were not complied with, then a bailable warrant; and only if the accused thereafter evaded the process could a non-bailable warrant be issued. Thus, the issuance of NBWs in the present case is, it is argued, ex facie unsustainable. It is also submitted that this Court, in other criminal petitions, has clarified that the personal presence of the accused is not mandatory for seeking recall of NBWs. On these grounds, interference by this Court is sought.
6. In response, learned Additional Public Prosecutor submits that, as per the record, the petitioners absconded during the course of investigation and continued to avoid the judicial process even after the filing of the charge sheet. In view of their conduct, the trial court was justified in issuing NBWs. It is argued that the petitioners filed the present application without their physical presence, despite the trial court’s specific direction requiring their personal appearance. Filing such a petition in their absence, without demonstrating compelling reasons for non-appearance, was not acceptable.
However, learned Additional Public Prosecutor fairly concedes that, in Satender Kumar Antil (supra), the Hon’ble Supreme Court
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