1 2025:CGHC:51520 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 3149 of 2025 1 - Bhavesh Khetan S/o Shri Ajay Khetan Aged About 36 Years R/o House No. E-18 Samta Colony Raipur District - Raipur Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Station House Officer Police Station Dharsinva, District - Raipur Chhattisgarh ... Respondent(s) (Cause title taken from Case Information System) For Petitioner(s) : Ms. Fouzia Mirza, Senior Advocate along with Ms. Richa Shukla, Advocate For Respondent(s)/State : Mr. Akhilesh Kumar, Govt. Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 15/10/2025 Heard. 1. The present is a criminal miscellaneous petition under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (in short ‘BNSS, 2023’) against the arrest warrant issued against the petitioner dated 23-09-2025, by learned Special Judge (Atrocities), Raipur, in Criminal Case No. 34 of 2025. VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2025.10.17 10:31:46 +0530 2 2. The subject matter, in brief, is that, in the offence of Crime No. 238 of 2025, registered at Police Station Dharsiwa, District Raipur for the offence under Sections 143, 146, 337, 340 of Bharatiya Nyay Sanhita, 2023 (in short ‘BNS, 2023’), Section 79 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Sections 3 and 14 of Child Labour (Prohibition and Regulation) Act, 1986 and Section 3(1)(H) of Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989, a charge sheet dated 18-07-2025 was filed on 01-09-2025 before the learned Special Judge (Atrocities), Raipur against three accused persons, namely Kuleshwar Ram, Ravindra Kumar Bhuiya and Ramchandra Prasad. The charges against those three accused persons have been framed by the learned trial Court on 03-09-2025 and the trial of the case proceeded for recording of evidence of the prosecution witnesses. On 15-09-2025, an application under Section 358 of BNSS, 2023 has been filed by the prosecution for impleading the present petitioner as an accused in the case being the Director of the subject Steel Plant. 3. After hearing the parties, the said application filed by the prosecution under Section 358 of BNSS, 2023 was allowed on 22-09-2025 and a warrant of arrest has been issued against him by directing to implead the present petitioner as an accused in the case. Pursuant to the order dated 22-09-2025, a warrant of arrest has been issued against the present petitioner, which is under challenge in the present petition. 3 4. Learned counsel for the petitioner would submit that, the petitioner was initially not arrayed as an accused in the Criminal Case No. 34 of 2025 at the time when charge sheet was filed, and it is only when the application filed by the prosecution under Section 358 of BNSS, 2023, he has been arrayed as an accused, and instead of issuing either summons or bailable warrant, the learned trial Court has directly issued the warrant of arrest against him. The issuance of warrant of arrest directly against the petitioner would prejudice his legal and constitutional rights and it does affect the right of personal life and liberty. The only purpose of the learned trial Court to secure the presence of the additional accused before the proceeding of the case, for that, the learned trial Court ought to have issued either summons or bailable warrant against the additional accused in the first instance and it is only when summons or bailable warrant not served or after service of bailable warrant, when the accused could not appear then only the warrant of arrest can be issued by the learned trial Court. She would rely upon the judgment passed by the Hon’ble Supreme Court in the matter of “Vikas v. State of Rajasthan” (2014) 3 SCC 321 and prayed for quashing of the warrant of arrest issued against the petitioner. She would further submit that the petitioner is ready to co-operate with the trial of the case and ready to appear in the proceeding before the learned trial Court. 5. On the other hand, learned counsel for the State opposes and has submitted that, looking to the gravity of the offence and non- cognizable offence, for which the charge sheet has been filed against 4 other accused persons and the allegation against the present petitioner also, it is the discretion of the learned trial Court to secure the presence of the accused either by bailable warrant or by non- bailable warrant. Therefore, there is no illegality in the issuance of non-bailable warrant against the petitioner by the learned trial Court. 6. I have heard learned counsel for the parties and perused the material annexed with the petition. 7. It is not in dispute that the petitioner was not an accused in the case at the time when the charge sheet was filed and he has been made accused only by virtue of the order dated 22-09-2025. During the course of hearing, the learned counsel appearing for the petitioner has submitted the copies of the order sheets of the learned trial Court and from perusal of the order sheets of the learned trial Court, it transpires that, on 22-09-2025, the application filed by the prosecution under Section 358 of BNSS, 2023 was allowed by the learned trial Court and warrant of arrest has been issued against the petitioner. In pursuance of the order dated 22-09-2025, the warrant of arrest was issued on 23-09-2025, which has been filed along with the petition as Annexure P/1. 8. The Hon’ble Supreme Court in the matter of “Vikas” (supra) has held that:- “13. The Constitution of India is the grund norm- the paramount law of the country. All other laws derive their origin and are supplementary and incidental to the principles laid down in the Constitution. Therefore, Criminal Law also derives its source and sustenance from the Constitution. The Constitution, on one hand, 5 guarantees the Right to Life and Liberty to its citizens under Article 21 and on the other hand imposes a duty and an obligation on the Judges while discharging their judicial function to protect and promote the liberty of the citizens. 14. The issuance of non-bailable warrant in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty guaranteed to every citizen under the Constitution. This position is settled in the case of Inder Mohan Goswami; 2007 12 SCC 1 and in the case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Anr; (2012) 9 SCC 791 wherein it has been observed that: “Personal liberty and the interest of the State 50. Civilized countries is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. 51. The issuance of non-bailable warrant involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, this demands that the courts have to be extremely careful before issuing non- bailable warrants.” 15. In order to examine the reasoning of the Trial Court, the case is to be understood in its own facts and circumstances. In the instant case, the Trial Court after appreciating the evidence available had reasonable satisfaction from the evidence already collected during the trial that the appellant had committed an offence along with the other accused who had undergone the Trial and therefore issued a non-bailable warrant to seek the attendance of the appellant- herein under an application of Section 319 of the Cr.P.C. 16. To appreciate the present case, it is pertinent to discuss the meaning of ‘bailable offences’ and ‘non- bailable offences’ and the circumstances in which a non-bailable warrant can be issued. 6 17. In the legislative history for the purposes of bail, the term ‘bailable’ and ‘non-bailable’ are mostly used to formally distinguish one of the two classes of cases, viz. 'bailable' offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non- bailable offences to such a person is left by the legislature in the court's discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition methodized by analogy, disciplined by system and sub-ordinated to the primordial necessity of order in social life. Another such instance of judicial discretion is the issue of non- bailable warrant in a complaint case under an application of Section 319 of the Cr.P.C. The power under Section 319 of the Cr.P.C 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 likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. The conditions for the issuance of non-bailable warrant are re-iterated in the case of Inder Mohan Goswami (Supra) and in the case of State of U.P. vs. Poosu and Anr; 1976 3 SCC 1, wherein it is mentioned that: “53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result.” This could be when firstly it is reasonable to believe that the person will not voluntarily appear in court; or secondly that the police authorities are unable to find the person to serve him with a summon and thirdly if it is considered that the person could harm someone if not placed into custody immediately. In the absence of the aforesaid reasons, the issue of non-bailable warrant a fortiori to the application under Section 319 of the Cr.P.C. would extinguish the very purpose of existence of procedural laws which preserve and protect the right of an accused in a trial of a case.” 9. Section 358 of BNSS, 2023 is also necessary to be reiterated here, which reads as under:- 7 “358. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then— (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 10. From perusal of Section 358(2) of BNSS, 2023 it transpires that, if the person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose of his presence in the proceeding. It further transpires that, on the objective satisfaction of the Court, a person may be arrested or summoned under the circumstances of the case, if his presence is necessary. The very purpose of issuance either summons, bailable warrant or non-bailable warrant is to secure the presence of the person concerned in the proceeding of the case. 8 11. Considering the fact that, on 22-09-2025, when the application filed by the prosecution under Section 358 of BNSS, 2023 was allowed, instead of issuance of either summons or bailable warrant, the learned trial Court has directly issued non-bailable warrant, which in the opinion of this Court, exceeded its jurisdiction to issue non- bailable warrant against the petitioner. 12. Accordingly, in view of the facts and circumstances of the case as well as the law laid down by the Hon’ble Supreme Court in the matter of “Vikas” (supra), this Court quashed the non-bailable warrant issued against the petitioner and modified the order dated 22-09-2025, passed by learned trial Court to the extent that, instead of issuance of non-bailable warrant against the petitioner, the learned trial Court shall issue bailable warrant against the petitioner. 13. Further, since there is a statement made by learned counsel for the petitioner that, he is ready to cooperate with the trial of the case, the petitioner is directed to appear in the proceeding before the learned trial Court on the next date fixed before it and to take recourse to law with respect to his bail bond. 14. With the aforesaid modification of the order dated 22-09-2025, the present criminal miscellaneous petition is disposed of. Sd/- (Ravindra Kumar Agrawal) Judge ved