Non-bailable warrants are usually issued in cases where the accused has showed signs of absconding or the presence of the accused person cannot be secured. However it is necessary that the service report is executed before any non-bailable warrant can be issued. This was upheld by a single member bench of the High Court of Jharkhand consisting of Justice Sanjay Kumar Dwivedi in the case of Khubhi Mahto v The State of Jharkhand [Cr. M.P. No. 707 of 2021] on the 22nd of June 2021.
On 14th February 2017, a bailable warrant was issued against the witnesses and the next date was issued against the witnesses of the case, however in the next hearing on 4th April 2017, the petitioner was absent. The PWs did not appear to present evidence causing the next hearing to be further postponed to 23rd May 2017. On 1st May 2017 the records for the case were transferred to the court of Judicial Magistrate in Giridih. The petitioner’s counsel left for Tenughat and so the case could not be located. The case continued to be shifted multiple times and witnesses mostly failed to show up in court.
The petitioner, Khubhi Mahto contended that he was regular in attending court since the charges were framed, yet no witnesses turned up for the prosecution of the case and on 1st November his bail bonds were cancelled and a non-bailable warrant was issued under Section 83 and 83 of the Cr.PC without awaiting the execution of the service report. It was also added that the guidelines issued by the High Court of Jharkhand in the case of Md. Rustum Alam v State of Jharkhand [2020(2) JLJR 712] where it was held that a person could not be declared as absconding without recording a satisfactory reason for the same, were not followed in the immediate case. For these reasons the petitioner pleaded that the orders dated 6th June 2019 and 11th September 2019 will both be quashed for not following the correct legal procedures.
The court noted that Sections 82 and 83 of the Cr.PC outlined the procedure for arrest of an accused who is absconding; however there was no reason to believe that the petitioner in this case was doing so. Furthermore it was declared that the non-bailable warrant cannot be issued under the Sections of the Cr.PC until the service report has been executed. Seeing that the relevant legal procedures were ignored, Justice Sanjay Kumar Dwivedi concluded that “Accordingly, impugned orders dated 06.04.2019, 11.09.2019 and order dated 11.02.2021 are quashed. The petitioners are directed to appear before the court below on or before 26.07.2021 and the court below will consider the case of the petitioners considering that earlier the petitioners were appearing regularly”.
