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In a recent judgement rendered by Justice MS Ramesh, the Madras High Court has clarified that its inherent powers under Section 482 of the Code of Criminal Procedure includes the power to quash or recall non-bailable warrants.
This power would be irrespective of the existence of an alternate remedy under Section 70(2), which empowers cancellation of the warrant by the court that had issued the warrant. Senior Advocate NR Elango assisted in the case as Amicus Curiae.
Justice Ramesh referred to relevant observations made by himself regarding the wide ranging powers under Section 482, in the recent case of K Raghupathy v Commissioner of Police:
“The Section begins with a non obstante clause and in view of the inherent powers conferred therein, there cannot be a total ban on the High Courts’ interminable jurisdiction. In other words, the availability of an alternate remedy under the Code of Criminal Procedure cannot be an embargo for the High Court to exercise its inherent powers to secure the ends of justice in view of the non obstante clause.”
In essence, these cases have emphasised that regardless of alternate remedy, the powers of the High Court under Section 482 may be exercised to pass any order if such an order is essential (i) to give effect to any order; (ii) to prevent abuse of the process of any court; or (iii) if such an order is necessary to secure the ends of justice. In Prabhu Chawla’s case, it was noted that the only limitation to the exercise of this power is self restraint in the interest of preventing unnecessary litigation and delay.
The alternate view laid down in the 1994 Madras High Court case of PA Saleem v. State was set aside in favour of the later case of Francis Xavier v. Nelamangalam, which was also endorsed by the Apex court in Prabhu Chawla’s case. In Francis Xavier, the High Court was found to have agreed with the position that, save for self imposed restrictions,
“this court may exercise its inherent powers under Section 482 Cr.P.C., notwithstanding any specific provisions in Section 70 (2) of the Code of Criminal Procedure.”
Justice Ramesh also observed it is non-execution of non-bailable warrants that is often found to be the reason for prolonged litigation, as opposed to recall of warrants under Section 482. In this regard, it was emphasised that trial courts should invoke powers under Section 82 of the Code to declare absconding accused as “Proclaimed Offenders”, so that cases are not indefinitely adjourned on the ground that non-bailable warrants are pending execution.
The Court made reference to four broad scenarios where non-bailable warrants are issued i.e.
“(i) the trial court issues Non Bailable Warrants without issuing summons first, (ii) the trial court issues a Non Bailable Warrant when the accused is absent for one or two hearings without inquiring into the cause of absence, (iii) where the accused is absent for one or two hearings and files a petition under Section 317 of the Code, the Court rejects the petition and issues a Non Bailable Warrant and (iv) where the accused has intentionally absented himself from the trial and does not attend any hearings and then, the trial court issues a Non Bailable Warrant.”
It was held that whereas the High Court may intervene in respect of the first three categories, it would be ideal that petitioners be directed to approach the court issuing the non-bailable warrant in respect of the fourth scenario.
The Court also made note of guidelines laid down in Inder Mohan Goswami v State of Uttaranchal for issuing non-bailable warrants, and specifically, the frequency of their breach. In this context, the Court emphasised on the supervisory role of the High Court – the highest criminal court in the state – to ensure that the same are complied with.
This served to buttress the stance that the High Court cannot be precluded from intervening in the matter in furtherance of justice, especially given that a major portion of cases in the state of Tamil Nadu are pending for the execution of non-bailable warrants.
Read copy of judgement below.