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2026 DAILYLAW 27236 (ORI)

Jahir Jahangir Malla v. State of Odisha

2026-01-30

Sanjeeb K Panigrahi

body2026
Judgment : Sanjeeb K Panigrahi, J. 1. The Petitioner has instituted the present Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure, 1973/ Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, invoking inherent jurisdiction of this Court, assails the order dated 10.04.2023 passed in C.T. Case No.7834/2022, arising out of Mancheswar, P.S. Case No.486/2022, pending before the learned J.M.F.C.(II), Bhubaneswar whereby a Non-Bailable Warrant was issued against the Petitioner at the instance of the Investigating Officer. I. F ACTUAL M ATRIX OF THE C ASE 2. The brief facts of the case are as follows: (i) On 19.12.2022, Mancheswar P.S. Case No. 486/2022 was registered against the Petitioner and six others for alleged commission of offences punishable under Sections 399 and 402 of IPC, corresponding to Sections 310(4) and 310(5) of BNS. Pursuant to the registration of the said F.I.R., C.T. Case No. 7834/2022 was initiated against the accused persons before the learned J.M.F.C.(II), Bhubaneswar. (ii) During the patrolling duty, the informant and other staff received information that the accused persons were assembled near Somanath Youth Club and were allegedly preparing for commit dacoity. (iii) Acting on the information received, the patrolling party surrounded the spot and apprehended some of the accused persons. An iron rod and other articles, including two motorcycles, were seized. The apprehended accused persons disclosed the names of the remaining accused persons, including the Petitioner, pursuant to which the F.I.R. was registered. (iv) During the course of investigation, the Investigating Officer made a prayer before the Learned J.M.F.C.(II), Bhubaneswar, seeking issuance of a NBW against the Petitioner by declaring him an absconder. The learned Court, by order dated 10.04.2023, allowed the said prayer and issued a NBW against the Petitioner, which is the subject matter of challenge in the present proceeding. Being aggrieved by the aforesaid facts and circumstances, the Petitioner has been constrained to approach this Court by way of the present Writ Petition. II. S UBMISSIONS O N B EHALF O F T HE P ETITIONER 3. Being aggrieved by the aforesaid facts and circumstances, the Petitioner has been constrained to approach this Court by way of the present Writ Petition. II. S UBMISSIONS O N B EHALF O F T HE P ETITIONER 3. The learned counsel for the Petitioner respectfully and earnestly made the following submissions in support of his contentions: (i) The present petition has been filed challenging the order dated 10.04.2023 passed in C.T. Case No. 7834 of 2022 arising out of Mancheswar PS Case No. 486 of 2022, whereby the learned J.M.F.C.(II), Bhubaneswar issued a Non-Bailable Warrant against the Petitioner at the instance of the Investigating Officer. (ii) The Petitioner states that the learned J.MF.C(II), Bhubaneswar issued a NBW against him by declaring him an absconder. The Petitioner further states that, during the course of the investigation, he has not evaded the investigation and has cooperated with the I.O. (iii) The Petitioner states that the I.O. made the said prayer shortly before submission of the charge sheet, whereupon the order dated 10.04.2023 was passed issuing a NBW against the Petitioner. (iv) The Petitioner further states that, contrary to the allegation made by the I.O. in the C.T. Case no. 7834/2022 regarding evasion of arrest, no attempt was made to arrest the Petitioner and the Petitioner was willing to cooperate with the investigation. (v) The Petitioner further states that no summons was issued to him prior to issuance of the NBW to ascertain his availability or cooperation with the investigation, and the said warrant was issued without such prior process. (vi) The Petitioner states that the issuance of a NBW requires satisfaction of the Court of seisin, supported by reasons, that sufficient grounds exist to believe that the person concerned is evading arrest. (vii) In support of his contentions, the petitioner placed reliance on the decision of the Supreme Court decision in Sharif Ahemed & Anr v. State of Uttar Pradesh AIR 2024 SC 240 , wherein it was stated that “It is a well settled position of law that non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the state”. (viii) The Petitioners states that, in view of the settled position of law, he prays that this Court be pleased to allow the instant petition, quash the order dated 10.04.2023 passed in C.T. Case No. 7834 of 2022 passed by the learned J.MF.C(II), Bhubaneswar, and direct the learned Court to release the Petitioner on Bail. III. S UBMISSIONS O N B EHALF O F T HE O PPOSITE P ARTIES 4. Per contra, the learned counsel for the Opposite Parties earnestly made the submission that the present CRLMC is not maintainable before this Court and deserves to be rejected in limine. (i) The Opp. Party submits that, upon receiving credible information from a reliable source, it came to know that a group of criminals had assembled in an isolated area near Somanath Youth Club, Sameigadia, and were equipped with firearms and other lethal weapons, preparing to commit dacoity in the late-night hours. (ii) Accordingly, at about 6:45PM, a raid was conducted on the said assembly. Upon noticing the police personnels, the individuals present became alarmed and attempted to flee. However, three persons were apprehended at the spot along with two motorcycles, while four other managed to managed to escape. (iii) The Opp. Party further states that the accused persons are allegedly involved in the commission of the said offence and, in order to evade arrest, have absconded from their residences as well as from the locality. (iv) The Opp. Party contends that, in the interest of substantial justice, non-bailable warrants were issued against the absconding accused persons, and consequently, bail was not granted him. IV. C OURT ’ S R EASONING AND A NALYSIS 5. Heard Learned Counsel for parties and perused the documents placed before this Court. 6. In light of the forgoing facts, the Court is of the considered view that the principal issue that arises for determination is whether the Non- Bailable Warrant can be issued in a routine or mechanical manner and whether the Learned courts are required to record specific reasons justifying the issuance of such Non-Bailable Warrants. 7. On the plain reading a Non-Bailable Warrant is a serious coercive process issued by a Court when an individual accused of an offence fails to comply with summons or lawful orders of the Court. 7. On the plain reading a Non-Bailable Warrant is a serious coercive process issued by a Court when an individual accused of an offence fails to comply with summons or lawful orders of the Court. Such a warrant is not to be issued as a matter of course and may be restored to only in circumstances warranting such action, inter alia, in the following situations: (i) Where the accused fails appear before the court despite due service of summons or issuance bailable warrants; (ii) Where the Court has reason to believe that the accused is deliberately evading the process of law; (iii) In cases involving serious criminal offences, where there exists a reasonable that the accused is likely to abscond. 8. The execution of a non-bailable warrant directly entails curtailment of the personal liberty of an individual. A warrant of arrest, therefore, cannot be issued in a routine or mechanical manner, but only upon the Court recording its satisfaction that, having regard to the facts and circumstances of the case, such issuance is necessary and justified. The Courts are required to exercise heightened caution and circumspection while directing the issuance of Non-Bailable Warrants, as any unwarranted or illegal detention would amount to grave infraction of the constitutional mandate enshrined under Article 21 of the Constitution of India. 9. At the same time, there can be no gainsaying that the welfare of the individual must, in appropriate circumstances, yield to the welfare of the community at large. Consequently, in order to preserve the rule of law and ensure the orderly functioning of society, it becomes imperative to strike a delicate balance between the rights, liberties and privileges of an individual on the one hand and the legitimate interests of the State on the other. Undoubtedly, the exercise of such balancing is both nuanced and complex. 10. Be that as it may, it is ultimately for the court, which is vested with the discretion to determine whether the presence of an accused can be secured through the issuance of a bailable or non-bailable warrant, to judiciously strike a balance between the imperatives of effective law enforcement on the one hand and the protection of citizen from arbitrariness or highhandedness at the hands of the law enforcement agencies on the other. 11. 11. The power and jurisdiction of the court to issue an appropriate warrant against an accused upon his failure to appear before the Court on the date fixed for hearing cannot be disputed. Nevertheless, such power is required to be exercised judiciously and not arbitrarily, keeping in view, inter alia, the nature and gravity of the offence involved, the past conduct of the accused, his age and the likelihood of his absconding. 12. While there is no comprehensive or exhaustive set of guidelines governing the issuance of non-bailable warrants, this Court has consistently observed that an NBW ought not to be issued, unless the accused is charged with a heinous or serious offence, and there exists a reasonable apprehension that he is likely to evade the process of law or tamper or destroy evidence. 13. Similar interpretation was reiterated by the Supreme Court in the Sharif Ahemed & Anr v. State of U.P., 2024 SC 2420 , wherein it has been held that: “46. It is a settled position of law that non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State”. 14. Similarly, the Supreme Court in the Raghuvansh Dewanchand Bhasin v. State of Maharashtra , (2012) 9 SCC 791 , wherein it has laid down guidelines to be followed before issuing any NBW by the Court in Seisin, however to the utter surprise the impugned NBW was passed in violation of the guidelines laid down by the Supreme Court. Said guidelines are provided herein under: “23. Said guidelines are provided herein under: “23. The guidelines to be adopted where the Non-Bailable Warrants are issued by the Court: (a)All the High Court shall ensure that the Subordinate Couts use printed and machine numbered Form No,2 for issuing warrant of arrest and each such form is duly accounted for; (b) Before authenticating the court must ensure that complete particulars of the case are mentioned on the warrant (c)The presiding judge of the court (or responsible officer specially authorised for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon; (d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or. Before the date specified therein (e) Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process; (f) No warrant of arrest shall be issued without being entered in the register mentioned above and the concerned court shall periodically check/monitor the same to confirm that every such process is always returned to the Court with due report and placed on the record of the concerned case; (g)A register similar to one in clause € supra shall be maintained at the concerned police station. The station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution; (h)Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long; (i) On the date fixed for the return of the warrant, the court must insist a compliance report on the action taken thereon by the Station House Officer of the concerned Police Station or the Officer In-Charge of the concerned agency; (j) The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse (k)In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and (l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid register. A copy of such order shall also be supplied to the accused.” 15. In the present case, the Petitioner has challenged the impugned order on the ground that it is not a reasoned one and that the learned Court seized of the matter failed to apply its judicious mind before issuing the same. Further, it is well settled that NBW cannot be issued in a routine or mechanical manner, and that the liberty of an individual cannot be curtailed unless it is necessitated by the larger interest of public and the State. 16. Moreover, it is also observed that while issuing a NBW, the learned Court seized of the matter must record the reasons for its satisfaction that there exist sufficient grounds for such issuance, and that the Petitioner is evading arrest. However, in the instant case, no such reasons have been recorded. 17. 16. Moreover, it is also observed that while issuing a NBW, the learned Court seized of the matter must record the reasons for its satisfaction that there exist sufficient grounds for such issuance, and that the Petitioner is evading arrest. However, in the instant case, no such reasons have been recorded. 17. To concur with the foregoing directions, and to underscore that the same flow from the right to life and personal liberty, enshrined under Article 21 and 22 (1) of our Constitution, it is imperative that they be strictly complied with. However, it is also clarified that these are only broad guidelines and not inflexible rules of universal application, as the facts and circumstances, as well as the conduct of the accused, may vary from case to case. 18. Since discretion in this behalf is entrusted with the Court, it is not advisable to lay down immutable formulae or rigid prescriptions for the exercise of such discretion. As noted above, it is for the Court concerned to assess the factual matrix of each case and to exercise its discretion judiciously, dispassionately and without prejudice. 19. This Court is of the opinion that such action amounts to an unjustifiable restriction on the procedural rights of the petitioner, in absence of any misconduct, lack of bona fides, or a deliberate attempt to evade the proceedings on his part. The issuance of non-bailable warrants must not be restored to in a mechanical manner. It must be adopted sparingly and only upon recording cogent and contemporaneous reasons which demonstrate the necessity of such stringent course. V. C ONCLUSION 20. In view of the foregoing analysis, and after an anxious and careful consideration of the material facts and circumstances of the case, this Court is of the considered opinion that to quash and set aside the Order dated 10.04.2023, passed in the C.T. Case No. 7834/2022 arising out of Mancheswar P.S. Case No. 486/2022 pending before the learned J.M.F.C.(II), Bhubaneswar, whereby a Non-Bailable Warrant was issued against the Petitioner is liable to be quashed and set aside. The Petitioner shall be permitted to face the trial. Consequently, this Court is inclined to accede to the relief prayed for. 21. Accordingly, the CRLMC stands allowed. 22. Interim order, if any, passed earlier stands vacated.