VIMLESH PATEL AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

         APPLICATION U/S 528 BNSS No. - 9832 of 2026

Vimlesh Patel And 3 Others
                                                      .....Applicant(s)
                               Versus
State of U.P. and Another
                                                         .....Opposite
                                                               Party(s)

Counsel for Applicant(s)      : Ashok Kumar Singh, Pratibha Singh
Counsel for Opposite Party(s) : G.A.

Court No. - 82
              HON'BLE PADAM NARAIN MISHRA, J.

1. Heard learned counsel for the applicant and learned AGA for the
state.

2. The present application has been filed by the applicants seeking
quashing of impugned order dated 31.05.2023 passed in the S T No.
841 of 2014 arising out Case Crime No. 165 of 2011 under sections
147, 148, 149, 307 and 506 of IPC, P.S. Ghoorpur, District -
Allahabad.

3. Learned counsel for the applicants submits that in the present case
trial court issued NBW on 31.05.2023 against the applicants. He
further submitted that the applicants are continuously appearing
before the court. He further submitted that they have no knowledge
about the the dated fixed 31.05.2023, hence they could not appear
before the court. He further submitted that prior to the order dated
31.05.2023, no charge has been framed against the applicants. He
further submitted that on bare perusal of order-sheet dated
31.05.2023, it appears that trial court has only mentioned that
Dwarika Prashad, Vimlesh, Pramod Patel, Suresh Kumar Yadav, Lal
Bahadur Sonkar and Dayashankar Yadav are accused while charges
have not been framed against him. Therefore, NBW has been issued
against accused persons. He lastly submitted that the impugned
order has been passed in mechanical manner without following the
due process of law.

4. Having considered the submission of the learned counsels of the
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parties and perused the material available on records, it appears that
the concerned court has passed the impugned order 31.05.2023
without the application of judicial mind in a very hasty manner in
complete disregard of the settled principles of the law. The impugned
order passed against the applicants does not reflect the objective
satisfaction recorded by the trial court for issuing the NBW at the very
first instance without recoursing other modes of securing the
presence of the accused. At this juncture, it is inevitable to discuss
about the Section 90 of the BNSS. Section 90 of the BNSS is as
under:

"Section 90 - Issue of warrant in lieu of, or in addition to, summons
A Court may, in any case in which it is empowered by this Sanhita to
issue a summons for the appearance of any person, issue, after
recording its reasons in writing, a warrant for his arrest;
(a) if, either before the issue of such summons, or after the issue of
the same but before the time fixed for his appearance, the Court sees
reason to believe that he has absconded or will not obey the
summons; or
(b) if at such time he fails to appear and the summons is proved to
have been duly served in time to admit of his appearing in
accordance therewith and no reasonable excuse is offered for such
failure."


5. On bare perusal of the aforesaid section, it is clear that the general
course of action for the appearance of any person before the court
may be deviated only when the court has reason to believe that the
he has absconded or will not obey the summons. The impugned
order does not disclose the compliance of above noted requirement.
The issuance of an NBW is a serious matter that impacts an
individual's personal freedom as protected by Article 21 of the Indian
Constitution. The authority to issue a warrant, whether it is bailable or
not, must therefore be used carefully and not arbitrarily. Nonetheless,
the courts have made it clear that their discretion is largely focused
on ensuring the person's presence and preventing the criminal justice
system from being impeded. An NBW is a very important legal action
that is to be taken as a last resort when other means of ensuring a
witness's presence have failed. Before issuing a warrant, a judge will
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consider factors like the witness's credibility, the importance of their
testimony, how relevant their evidence is to your case, and if there
are mitigating circumstances that could have caused the witness to
miss the hearing.

6. The Apex Court in the case of re: Inder Mohan Goswami and
another vs. State of Uttaranchal and others reported in (2007) 12
SCC 1 has observed the mechanism as to how the liberty of any
person may be curtailed inasmuch as every citizen has got
fundamental right of his liberty under Article 21 of the Constitution of
India. The relevant paragraphs of the aforesaid judgment is
reproduced as under:-

"When non-bailable warrants should be issued.
53. Non-bailable warrant should be issued to bring a person to court
when summons of bailable warrants would be unlikely to have the
desired result. This could be when;it is reasonable to believe that the
person will not voluntarily appear in court; or
the police authorities are unable to find the person to serve him with a
summon; or
it is considered that the person could harm someone if not placed into
custody immediately.
54. As far as possible, if the court is of the opinion that a summon will
suffice in getting the appearance of the accused in the court, the
summon or the bailable warrants should be preferred. The warrants
either bailable or non-bailable should never be issued without proper
scrutiny of facts and complete application of mind, due to the
extremely serious consequences and ramifications which ensue on
issuance of warrants. The court must very carefully examine whether
the Criminal Complaint or FIR has not been filed with an oblique
motive.
55. In complaint cases, at the first instance, the court should direct
serving of the summons along with the copy of the complaint. If the
accused seem to be avoiding the summons, the court, in the second
instance should issue bailable- warrant. In the third instance, when
the court is fully satisfied that the accused is avoiding the courts
proceeding intentionally, the process of issuance of the non-bailable
warrant should be resorted to. Personal liberty is paramount,
therefore, we caution courts at the first and second instance to refrain
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                                    from issuing non-bailable warrants.
                                    56. The power being discretionary must be exercised judiciously with
                                    extreme care and caution. The court should properly balance both
                                    personal liberty and societal interest before issuing warrants. There
                                    cannot be any straight-jacket formula for issuance of warrants but as
                                    a general rule, unless an accused is charged with the commission of
                                    an offence of a heinous crime and it is feared that he is likely to
                                    tamper or destroy the evidence or is likely to evade the process of
                                    law, issuance of non-bailable warrants should be avoided.
                                    57. The Court should try to maintain proper balance between
                                    individual liberty and the interest of the public and the State while
                                    issuing non-bailable warrant."

                                    7. The inherent powers under Section 528 BNSS are to be exercised
                                    to prevent abuse of process of court and to secure ends of justice
                                    (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335). The
                                    matter at hand is the fit case for the exercise of the inherent powers
                                    of the High Court vested under section 528 of BNSS.

                                    8. The impugned order dated 31.05.2023 passed in the S. T. No. 841
                                    of 2041 arising out Case Crime No. 165 of 2011 under sections 147,
                                    148, 149, 307 and 506 of IPC, P.S. Ghoorpur, District - Allahabad is
                                    hereby set aside. The Concerned Trial Court is directed to pass a
                                    fresh order in the light of the observation made hereinabove.

                                    March 19, 2026
                                    Israr
                                                                              (Padam Narain Mishra,J.)




Digitally signed by :-
ISRAR AHMAD
High Court of Judicature at Allahabad