Case Note & Summary
The petitioner was prosecuted for an offence under Section 138 of the Negotiable Instruments Act, 1881 in Criminal Case No. 881 of 2024 before the Additional Civil Judge and Judicial Magistrate First Class, Dholka, Ahmedabad Rural. The trial court issued summons, recorded the petitioner's plea of not guilty, but the petitioner subsequently failed to appear. His right to cross-examine was closed, and his statement under Section 313 CrPC was dispensed with, leading to an ex parte trial. The trial court convicted the petitioner on 8 January 2026 and issued a Non-Bailable Warrant (NBW) against him due to his absence at the time of judgment. The petitioner filed a Special Criminal Application under Articles 226 and 227 of the Constitution seeking conversion of the NBW into a Bailable Warrant. The petitioner's counsel argued that the petitioner was unable to attend due to an FIR registered against him at Tarapur Police Station, Anand District, and that his advocate failed to inform him of the dates. The High Court heard the petitioner's counsel, the State's APP, and the original complainant's counsel. The Court observed that the trial court should have issued a Bailable Warrant before resorting to an NBW, especially since the petitioner had a plausible explanation for his absence. The Court allowed the petition, converting the NBW into a Bailable Warrant, and directed the petitioner to appear before the trial court on 23 March 2026. The Court also directed the trial court to consider the petitioner's application for bail on the same day if he surrenders.
Headnote
A) Criminal Procedure - Non-Bailable Warrant - Conversion to Bailable Warrant - Section 138 Negotiable Instruments Act, 1881 - The petitioner was convicted under Section 138 of the NI Act and a Non-Bailable Warrant was issued due to his absence at the time of judgment. The High Court held that the trial court ought to have issued a Bailable Warrant first, and considering the petitioner's explanation of being engaged in other litigation, the NBW was disproportionate. The Court converted the NBW into a Bailable Warrant and directed the petitioner to appear before the trial court. (Paras 1-5) B) Constitutional Law - Writ Jurisdiction - Articles 226 and 227 of the Constitution of India - The High Court exercised its extraordinary jurisdiction to interfere with the trial court's order issuing NBW, finding that the petitioner's absence was not willful and that the trial court had not followed the graduated process of issuing bailable warrant before NBW. (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, converting the Non-Bailable Warrant issued by the trial court into a Bailable Warrant. The petitioner was directed to appear before the trial court on 23 March 2026, and the trial court was directed to consider his bail application on the same day if he surrenders.
Law Points
- Non-Bailable Warrant
- Bailable Warrant
- Section 138 Negotiable Instruments Act
- 1881
- Articles 226 and 227 Constitution of India
- Criminal Procedure Code
- 1973
