Allahabad High Court
RAJ KUMAR MAJHI AND 3 OTHERSversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- SANJAY KUMAR PACHORI
Holding
The court held that the non‑bailable warrant should not be executed without prior summons and bailable warrant, and stayed its execution pending the applicants' application for bail or recall.
Summary
The applicants filed an application under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023, seeking to quash the proceedings of Special Case No. 222 of 2019 and the cognizance order, as well as to set aside a non‑bailable warrant (NBW) issued against them. They contended that they were on bail when the NBW was issued, that no summons or bailable warrant had been served, and that an NBW should be a last resort after such processes. The court dismissed the relief to quash the proceedings as it was not pressed, but examined the NBW issue. It observed that an NBW cannot be issued without first serving a summons and a bailable warrant, and therefore stayed the execution of the NBW for three weeks, directing the applicants to appear and apply for bail or recall of the warrant, with the matter to be decided in light of Supreme Court precedents. The application was thus disposed with a temporary stay on the NBW.
Issues considered
- Whether the non‑bailable warrant issued against the applicants is valid in the absence of a prior summons and bailable warrant.
- Whether the proceedings and cognizance order can be quashed under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023.
Legislation cited
- Bhartiya Nagrik Suraksha Sanhita — s. 528
- Indian Penal Code — s. 323, 363, 366, 376, 504, 506
- Protection of Children from Sexual Offences Act — s. 3, 4
Subjects
- non‑bailable warrant
- Section 528
- quash proceedings
- bail
- criminal procedure
- POCSO Act
- stay of execution
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 41631 of 2026
Raj Kumar Majhi And 3 Others
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Hanuman Deen Verma
Counsel for Opposite Party(s) : G.A.
Court No. - 77
HON'BLE SANJAY KUMAR PACHORI, J.
Sri Hanuman Deen Verma, learned counsel for the applicant and Sri
Abhishek Kumar, brief holder for the State for the State are present.
The present application under Section 528 of Bhartiya Nagrik Suraksha
Sanhita, 2023 has been filed to quash the entire proceedings of Special Case
No. 222 of 2019, arising out of Case Crime No. 293 of 2018, under Sections
363, 366, 504, 506, 376, 323 of I.P.C. and Section 3/4, POCSO Act, Police
Station Sewrahi, District Kushinagar, as well as cognizance order dated
08.04.2019 as well as order dated 20.07.2026 whereby non-bailable warrant
has been issued against the applicants pending in the court of Special Judge
POCSO Act, Kushinagar at Padrauna.
Learned counsel for the applicants does not want to press the relief of
quashing the entire proceedings of Session Trial as well as cognizance order.
Hence, these reliefs are dismissed as not pressed.
So far as concerned with regard to non-bailable warrant, learned counsel for
the applicants submits that the applicants were on bail at the time of issuing
of Non-Bailable Warrant. It is further submitted that the impugned order has
been passed without satisfying itself that the summon and other process for
attendance has been served. It is further submitted that the impugned order
has been passed without considering the position of law. It is settled position
of law that N.B.W. should be issued as a last resort after the litigant fails to
respond the notices/summons and bailable warrant. It is further submitted
that non-bailable warrant has been issued without issuing any summon and
bailable warrant.
Learned A.G.A. has opposed the application.
NA528 No. 41631 of 2026
2
Considering submissions of learned counsel and perusing record, the instant
application under Section 528 of Bhartiya Nagrik Suraksha Sanhita, 2023 is
finally disposed of with a direction that in case applicant appears before the
court below within three weeks from today and applies for bail/recall of non
bailable warrant, his application shall be decided in the light of the
observations made in the judgments rendered by the Supreme Court in
Satender Kumar Antil Vs. Central Bureau of Investigation & Another,
(2021) 10 SCC 773, Siddharth Vs. The State of Uttar Pradesh &
Another 2022 (11) SCC 676 and Aman Preet Singh Vs. C.B.I. through
Director 2021 SCC Online SC 941.
For a period of three weeks from today or till applicants appear before the
court below, whichever is earlier, execution of non bailable warrant against
applicants shall be kept in abeyance.
September 29, 2026
Ishan
(Sanjay Kumar Pachori,J.)
Digitally signed by :-
ISHAN JAISWAL
High Court of Judicature at Allahabad
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