The physical presence of an accused is not mandatory for a trial court to consider and decide an application for the recall of a Non-Bailable Warrant (NBW) filed under Section 70(2) of Cr.P.C. or Section 72(2) of BNSS.

Order:

This Criminal Petition has been filed aggrieved by the docket orders dated 26.08.2025 and 10.04.2026 passed by the II Additional Junior Civil Judge-cum-VI Additional Judicial Magistrate of First Class, Medchal-Malkajgiri District, in STC NI No.154 of 2025, where under the trial Court issued NBW against the petitioner and appointed one Mr.K.Srinivas, as Advocate-Commissioner to execute the same.

2. Heard Mr.Samala Ravendar, learned counsel for the petitioner, and Mr.Jithendar Rao Veeramalla, learned Additional Public Prosecutor, appearing on behalf of respondent No.1.

3. With their consent, this criminal petition is disposed at the stage of admission.

4. Notice in respect of respondent No.2 is dispensed with, as the petitioner is not seeking any relief against him.

5. Learned counsel for the petitioner submitted that the petitioner is an accused in STC NI.No.154 of 2025, for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act’) and the petitioner has not received summons in the said case. On the other hand, the trial Court issued NBW against the petitioner and he came to know about the issuance of NBW only in the second week of April, 2026 after appointing the Advocate-Commissioner to execute the NBW.

6. He further submitted that in the absence of effective service of summons, the trial Court ought not to have issued NBW against the petitioner. Even after service of summons, in the event the petitioner failed to appear before the trial Court, the trial Court ought to have issued NBW. On the other hand, the trial Court straight away issued NBW on 26.08.2025 and the same is contrary to law.

7. He also submitted that when this Court raised a query as to why the petitioner did not file any application before the trial Court seeking recall the NBW, as per the provisions of Section 70(2) of Cr.P.C./72(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS’), learned counsel for the petitioner submitted that the trial Court is insisting the physical presence of the petitioner.

8. He further submitted that the petitioner, who is aged about 60 years, is eking out his livelihood by doing agriculture and he is suffering with health problems. In view of the same, the petitioner may be permitted to file an application to recall the NBW issued against him, before the trial Court, and the trial Court may be directed to consider the same in the absence of the petitioner. In support of his contention, he relied upon the order dated 20.12.2023 passed by this Court in Criminal petition No.12140 of 2023, wherein it was held that the presence of the petitioner is not required to consider the application seeking to recall the NBW.

9. Per contra, learned Additional Public Prosecutor submitted that the petitioner without availing the remedy available under law straight away approached this Court and filed the present criminal petition and the same is not maintainable under law.

10. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it reveals that on 26.08.2025, the trial Court issued NBW against the petitioner and posted the matter to 25.09.2025, wherein it is specifically mentioned that the petitioner/accused is absent, no representation in spite of summons served. Learned counsel for the petitioner has not placed any contra e