The High Court of Andhra Pradesh (Justice Maheswara Rao Kuncheam) held that trial courts cannot issue Non-Bailable Warrants (NBWs) routinely or mechanically in dishonor of cheque proceedings under Section 138 of the Negotiable Instruments Act, 1881. Exercising powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) [equivalent to Section 482 CrPC], the High Court ruled that an NBW is a coercive measure to ensure court attendance—not a tool for punishment—and must be preceded by mandatory written reasons and complete judicial application of mind as required under Section 90 of the BNSS.
Court: High Court of Andhra Pradesh at Amaravati
Bench: Justice Maheswara Rao Kuncheam
Date of Decision: October 2026
Subject Area: Negotiable Instruments Act, 1881 (Section 138) | Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 72, 90, 91 & 528) | Criminal Procedure Code, 1973 (Sections 70, 87 & 482) | Protection of Personal Liberty (Article 21) | Issuance of Coercive Process
Core Legal Principles Established
1. Statutory Mandate to Record Written Reasons (Section 90 BNSS)
- Section 90 of the BNSS (corresponding to Section 87 CrPC) explicitly requires a court to record reasons in writing before bypassing summons/bailable warrants to issue an arrest warrant directly.
- A mechanical order issuing an NBW without disclosing specific grounds or judicial satisfaction that the accused has deliberately absconded is legally unsustainable.
2. Personal Liberty vs. Coercive Judicial Power (Article 21)
- Because the execution of an NBW directly results in the deprivation of personal liberty, courts must balance individual rights under Article 21 of the Constitution against the interest of state administration.
- In bailable, summons-case offenses like Section 138 NI Act, courts must prefer summons or bailable warrants at the first instance. Resorting directly to an NBW against a senior citizen based on an “unclaimed” notice sent to an incorrect address violates due process.
3. NBW as an Attendance Mechanism, Not a Punitive Measure
- The primary objective of an NBW is limited to securing the attendance of an accused to ensure smooth judicial proceedings. It is not meant to act as an immediate penal action or harassment tool against the accused.
- Courts should utilize Section 91 BNSS (securing appearance via bond/bail bond) or grant an opportunity to seek recall before enforcing custodial arrest.
Statutory Mapping: BNSS vs. Legacy CrPC
| Legal Safeguard / Provision | Bharatiya Nagarik Suraksha Sanhita, 2023 | Code of Criminal Procedure, 1973 | Judicial Principle Applied |
| Inherent High Court Powers | Section 528 BNSS | Section 482 CrPC | Used to quash/recall improper trial court warrant orders. |
| Issue of Warrant in Lieu of Summons | Section 90 BNSS | Section 87 CrPC | Mandates recording written reasons before issuing a warrant. |
| Power to Take Bond for Appearance | Section 91 BNSS | Section 88 CrPC | Encourages securing attendance via bond rather than custodial arrest. |
| Form & Duration of Warrant | Section 72 BNSS | Section 70 CrPC | Warrants remain active until executed or cancelled by the issuing court. |
Summary of Case Outcome
- Trial Court Impugned Action: Issued an NBW directly against a 70-year-old accused living in Karnataka after notice sent to an incorrect Andhra Pradesh address was returned as “unclaimed,” recording no specific reasons for resorting to coercive process.
- High Court Decision: Recalled and set aside the NBW order. Directed the petitioner to appear before the trial court within two weeks, with liberty to apply for dispensation of personal presence in accordance with law.
Key Quote from the Judgment
“The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind… The order issuing an NBW must contain reasons indicating why such process has become necessary, as the recording of reasons is an essential safeguard against the arbitrary or mechanical exercise of judicial discretion. Mere issuance of an NBW without disclosing the reasons for resorting to such coercive measure cannot be sustained in law.”
— Justice Maheswara Rao Kuncheam (quoting Inder Mohan Goswami)