Case Note & Summary
The petitioner was prosecuted under Section 138 of the Negotiable Instruments Act, 1881 in Criminal Case No. 1145 of 2024 before the Additional Civil Judge and JMFC, Dholka. After his plea of not guilty, he failed to appear, leading to closure of his right to cross-examine and recording of ex parte proceedings. The trial court convicted him on 08.01.2026 and issued a Non-Bailable Warrant (NBW) as he was absent at judgment pronouncement. The petitioner filed a Special Criminal Application under Articles 226 and 227 of the Constitution seeking conversion of the NBW into a bailable warrant. He argued that his absence was due to his involvement in another FIR at Tarapur Police Station, and his advocate failed to inform him of court dates. The High Court, after hearing both sides, held that the trial court should have first issued a bailable warrant before resorting to an NBW, as the petitioner's absence was not willful but due to other litigation. The court converted the NBW into a bailable warrant on condition that the petitioner appear before the trial court within 15 days and furnish a bond of Rs. 10,000 with one surety. The petition was allowed.
Headnote
A) Criminal Procedure - Non-Bailable Warrant - Conversion to Bailable Warrant - Section 138 Negotiable Instruments Act, 1881 - The petitioner was convicted under Section 138 NI Act and an NBW was issued as he was absent at judgment pronouncement. The High Court held that the trial court ought to have issued a bailable warrant first, and the NBW was disproportionate. The court converted the NBW into a bailable warrant subject to conditions. (Paras 1-5)
B) Constitutional Law - Articles 226 and 227 - High Court's Supervisory Jurisdiction - The High Court exercised its extraordinary jurisdiction to prevent abuse of process and secure ends of justice, converting the NBW into a bailable warrant. (Paras 1, 5)
Issue of Consideration
Whether the issuance of a Non-Bailable Warrant against the petitioner at the stage of pronouncement of judgment, without first issuing a Bailable Warrant, was justified and whether the High Court should interfere under Articles 226 and 227 of the Constitution of India.
Final Decision
The High Court allowed the petition and converted the Non-Bailable Warrant issued by the trial court into a Bailable Warrant, subject to the petitioner appearing before the trial court within 15 days and furnishing a bond of Rs. 10,000 with one surety.
Law Points
- Non-Bailable Warrant
- Bailable Warrant
- Section 138 Negotiable Instruments Act
- 1881
- Articles 226 and 227 Constitution of India
- Criminal Procedure Code
- 1973
- Proportionality
- Discretion of Court
Case Details
R/Special Criminal Application (Direction) No. 2149 of 2026
Bhupendrakumar G Chavda, D V Kansara for Petitioner; Jigar G Gadhavi, Meet Thakkar for Respondent
Khoda Vipulkumar Laxmanbhai
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Nature of Litigation
Criminal Application under Articles 226 and 227 of the Constitution of India seeking conversion of Non-Bailable Warrant to Bailable Warrant in a case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The petitioner sought conversion of the Non-Bailable Warrant issued by the trial court into a Bailable Warrant, or alternatively, direction to the Sessions Court to cancel the NBW.
Filing Reason
The petitioner was convicted under Section 138 NI Act and an NBW was issued as he was absent at judgment pronouncement. He claimed his absence was due to involvement in another FIR and lack of intimation by his advocate.
Previous Decisions
The trial court convicted the petitioner on 08.01.2026 and issued NBW. The petitioner's right to cross-examine and further statement under Section 313 CrPC were closed due to his absence.
Issues
Whether the issuance of Non-Bailable Warrant at the stage of pronouncement of judgment, without first issuing a Bailable Warrant, was justified.
Whether the High Court should interfere under Articles 226 and 227 of the Constitution of India to convert the NBW into a Bailable Warrant.
Submissions/Arguments
Petitioner argued that his absence was due to facing another FIR and his advocate's failure to inform him of dates; the trial court should have issued a bailable warrant first.
Respondent/Complainant opposed the petition, submitting that the petitioner's absence was willful and the NBW was justified.
Ratio Decidendi
The issuance of a Non-Bailable Warrant without first issuing a Bailable Warrant is disproportionate, especially when the accused's absence is not willful but due to other litigation. The High Court under Articles 226 and 227 can interfere to prevent abuse of process and secure ends of justice.
Judgment Excerpts
The learned Trial Court, instead of directing the issuance of the Non Bailable Warrant at the stage of pronouncement of judgment, ought to have ordered for issuance of a Bailable Warrant against the Petitioner when the trial was going on.
In view of the above, the present petition is allowed. The Non-Bailable Warrant issued by the learned Trial Court is hereby converted into a Bailable Warrant.
Procedural History
The petitioner was prosecuted under Section 138 NI Act in Criminal Case No. 1145 of 2024. After plea of not guilty, he failed to appear, leading to ex parte proceedings and conviction on 08.01.2026. The trial court issued NBW. The petitioner filed the present Special Criminal Application on 09.03.2026.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Constitution of India: 226, 227
- Code of Criminal Procedure, 1973: 313
