The court held that a non-bailable warrant issued for the execution of a sentence passed in absentia can be converted into a bailable warrant to allow the convict to approach the Appellate Court and apply for suspension of sentence under Section 389(3) of the CrPC.

ORDER

1. By way of the present application under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the applicant has prayed for conversion of non-bailable warrant into bailable warrant, which was ordered to be issued by the learned 7th Additional Chief Judicial Magistrate, Rajkot on 30.01.2026.

2. Learned advocate for the applicant submitted that the applicant is desirous of challenging the conviction order and sentence of the same date passed under Section 138 of the Negotiable Instruments Act, 1881.

3. Learned advocate for the applicant submitted that since non-bailable warrant has been issued and the sentence could not be suspended for the appeal to be preferred, the order of non-bailable warrant comes in the way of the applicant to move the Appellate Court to challenge the conviction judgment.

4. The impugned order came to be passed in-absentia and therefore, non-bailable warrant under Section 418(2) of the Code of Criminal Procedure, 1973 would be issued.

5. Having considered the provisions of Section 418(2) of the Cr.P.C. and as per the instructions, learned advocate for the applicant submitted that the non-bailable warrant has not yet been executed to the applicant and hence, made a prayer to allow file the appeal before the Appellate Court challenging the judgment of conviction and sentence.

6. In the case of Lallan Singh and others Vs. State of Uttar Pradesh, the Hon’ble Supreme Court made the observations in paras 10, 10.1, 10.2 and 10.3, which are elicited as under:-

“10. The legal position as to the process that should follow an order or conviction is much too clear to require any special emphasis. We say so because Chapter XXXII of the Code of Criminal Procedure, 1973, prescribes the process and the procedure to be followed for execution of sentence of death and/or other sentences awarded to convicts. We may in particular refer to Sections 417, 418, 472 and 420 Cr.PC which deal with the power to appoint place of imprisonment of the convict, the execution of sentence of imprisonment and the direction of warrant for execution as also the persons with whom the same has to be lodged:

10.1 Section 418 of the Code in particular deals with execution of sentence imprisonment and inter alia empowers and obliges the court passing the sentence to forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is otherwise confined in such jail or other place to forward him to such jail or other place with a warrant. In terms of sub-section (2) of Section 418, where the accused is not present in the Court when sentence of imprisonment as is mentioned in sub-section (1) is pronounced, the Court is required to issue a warrant for his arrest for the purpose of forwarding him to jail or other place in which he is to be confined and in such cases the sentence shall commence on the date of his arrest. There is thus no gainsaying that upon conviction of an accused and sentence of imprisonment awarded to him, the Court concerned is expected to commit him to jail in terms of a warrant that would authorities him confinement for the period he is to undergo such imprisonment. We have no reason to believe that this procedure is not followed invariably in all such cases where the convict is not present before the Court concerned and is required to be committed to imprisonment for undergoing the sentence.

10.2 We also believe that the process of issuing warrant to apprehend the convict is followed diligently in keeping with the spirit underlying Section 418 Cr.PC.

10.3 The difficulty, in our opinion, arises when the warrants so issued by the Court concerned remain unexecuted. This happens not only in cases where the accused has been convicted and sentenced by the trial Court but also where an appeal or revision preferred against the conviction is eventually dismissed by the High Court. There is no manner of doubt that even in such ca