• Recall NBW in 498a

Respected Lawyers,

My wife filed 498a case on me and 5 of my family members. 3 of my family members got station bail. Me and my 2 brothers didn't attend court from starting since we are staying in abroad. Court issued NBW on us. We applied in HC to recall NBW. HC recalled NBWs and directed police to issue 41a crpc notice before arrest. My brother (A3) went to police station and signed on 41a crpc and got station bail. After few days S.I informed my brother to go trial court to recall NBW. Our advocate is telling that surety is required at the time of recall NBW.

Please advise on below,
* Why he need to go trial court to recall NBW again. is it correct procedure?
* Will court ask passport at that time ?
* Will me and my other brother follow the same procedure to recall NBW or any other process
Asked 4 years ago in Criminal Law
Religion: Hindu

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26 Answers

your brother needs to go to trial court for recalling NBW

2) court can impose conditions for grant of bail . that you shall not leave country with court permission

3) court can ask for accused to deposit passport

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

First point not clear.

No

Yes.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. Since NBW is issued he needs to first surrender himself and apply for bail. Once he gets that recall order is also passed.

2. In 498A cases such event is very unlikely.

3. Yes, all the persons in similar situation will have to adhere to the same procedure.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

NBW needs to be recalled from the court which has issued the order. The order of HC is a direction issued to trial court to allow application under section 70(2) to recall of warrant. Once station bail is granted once notice is served again you people need to take bail from court at that juncture you need to present again surety for your appearance. Court can ask you to surrender your passport to secure your presence. Both of you need to follow the same procedure.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Dear Querist,

We can advise you better if you can share the HC order passed in your matter.

However, as far as I can sense you know need to face trial and on the date fixed you need to appear in the trial court and apply for bail.

Q: Why he need to go trial court to recall NBW again. is it correct procedure ?

A: No its not.

Q:Will court ask passport at that time ?

A: It Might ask at the time of granting bail.

Q: Will me and my other brother follow the same procedure to recall NBW or any other process.

A: Get the NBW quashed from the HC. Then appear before the trial court and take bail.

Rahul Kapoor
Advocate, Lucknow
24 Answers

Not rated

Dear Sir,

My answers are as follows:

* Why he need to go trial court to recall NBW again. is it correct procedure?

Ans: The Court has issued NBW not the police so you must appear before the Court and produce the orders of the HC and furnish surety to the satisfaction of Magistrate and get recall NBW. Police cannot recall NBW they are only executing authorities. There must be endorsement in court records having recalled NBW as per the orders of High Cout.

* Will court ask passport at that time ?

Ans: If there is no such condition in HC order then the Trial Court never ask the passport.

* Will me and my other brother follow the same procedure to recall NBW or any other process

Ans: Out of my experience as judge I am telling above. If any doubt arise then please call me through this website.

================================================================================

YOU MAY PLEASE SEE THE LAND MARK JUDGMENT OF SC ON THIS MATTER

===============================================================================

21.To sum up the findings rendered by me, it is reiterated that the issuance of Bailable Warrant or Non Bailable Warrant should be exercised with extreme caution and in the rarest of cases, bearing in mind that the pendency of Non Bailable Warrant is one of the major factors for the long pendency of cases before the trial Court. The trial Court shall also scrupulously follow the guidelines imposed in Inder Mohan Gowsami's case (supra) as well as the observations made in the present case while issuing Non Bailable Warrants or recalling the Non Bailable Warrants.

Madras High Court

Ramalingam vs S.Subramanian

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 07.08.2017

Pronounced on : 07.09.2017

CORAM

THE HONOURABLE MR.JUSTICE M.S.RAMESH

Crl.O.P.Nos.13276, 13670, 13769,

14077, 14485 & 14595 of 2017

Ramalingam .. Petitioner in Crl.O.P.No.13276/2017

Vs.

1. S.Subramanian

2. The Inspector of Police,

Ambillikkai Police Station,

Oddanchatram Taluk,

Dindigul District. .. Respondents in Crl.O.P.No.13276/2017

Prayer in Crl.O.P.No.13276 of 2017: Criminal Original Petition filed under Section 482 Cr.P.C. praying to direct the 5th Metropolitan Magistrate, Egmore to consider the Recall-Warrant petition filed by the petitioner on the same day in the event of surrender by the petitioner and seeks to Recall the Non-Bailable Warrant issued in C.C.No.21841 of 2005 pending on the file 5th Metropolitan Magistrate, Egmore.

For Petitioners : Mr.N.R.Elango, Senior Counsel(Amicus Curiae)

for Mr.K.Raghupathy in Crl.O.P.No.13276/2017

Mr.S.Kalyanaraman in Crl.O.P.13670/2017

Mr.S.Parthasarathy in Crl.O.P.13769/ 2017

Mr.B.Vasudevan in Crl.O.P.No.14077/2017

Mr.A.G.Rajan in Crl.O.P.No.14485/2017

Mr.J.Franklin in Crl.O.P.No.14595/2017

For Respondent : No Appearance

(R1 in Crl.O.P.No.13276 of 2017

Respondent in Crl.O.P.14595/2017)

For Respondent : Mr.Rajarathinam,

State Public Prosecutor Assisted by

Mr.P.Govindarajan, APP (R2 in in Crl.O.P.No.13276 of 2017,

Respondent in

Crl.O.P.Nos.13670,13769,14077/2017)

C O M M O N O R D E R

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. The NBH was issued by the trial court which has been recalled by the High court. Now you shall have to approach the said trail court to regularise the order passed by the High Court recalling the NBH.

2. Ordinarily the Court will not ask the passport specifically. It might ask for the identification proof.

3. Procedure will be the same for all.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. Yes. You'll have to approach trial court to recall NBW under section 70(2) alongwith the order of the high court to allow your application for recalling/ cancellation of NBW against you.

2. The court wouldn't impounds passports in 498a cases, though it may impose some restrictions on you if you're going abroad. Moreover, the order of HC needs to be perused to clarify more.

3.Yes.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

NBW already recalled by higher court, no need, police wala is idiot . avoid him.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Once notice us issued under section 41A accused should appear before IO have their statements recorded

Cooperate with investigations

NBW against accuse is recalled

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Now. you will have to appear before the lower court, surrender yourself and get a regular bail.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

As per above order no Case is made out against you in complaint as such it's a fit case to get FIR quashed which is registered against you. Since there is no allegations you can get out of the case without facing trial. File application to high court under 482 Crpc seeking quashing of FIR lodged against you

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

No need of warrants if warrants issued it is necessary to cancel the same and Court may require surity and it is also to be furnished

Konda Srinivas
Advocate, Hyderabad
211 Answers
2 Consultations

Not rated

1. It will be prudent on your part to appear before the local Police Station as required as per the Notice issued u/s41A of Cr.P.C.

2. If you fail or refuse to address the notice issued under section 41A of Cr.P.C.served upon you, fresh NBW might be issued against you ans at that time it will be difficult for you to get it recalled.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

Please advise on below,

* Why he need to go trial court to recall NBW again. is it correct procedure?

Yes it is a procedure to be followed as per law

* Will court ask passport at that time ?

No, court may not insist on production of passport

* Will me and my other brother follow the same procedure to recall NBW or any other process

Yes.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

The high court order to recall the NBW has to be executed in the trial court that is what is called as the procedure.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

Generally the court which issues the nbw cancels it. You need to go to trail court. No passport will not be taken as you have right to employment. The same can be done by your lawyer and on next date if directed by court you need to attend the court. It can be cancelled without your presence there is a Bombay high court judgement. You can take telephonic consultation from me through Kaanoon if you need.

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

As per the order of the High court, you'll have to approach trial court to recall NBW and it is a direction by the Superior Court to the subordinate Court to allow your application.

You should enclose copy of the order of the High Court along with the cancellation of nbw application in trial court.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

Dear Querist,

You may file a 482 petition at high court having jurisdiction with the copy of compromise agreement annexed to it, the high court will quash the matter forthwith.

You need to file a fresh petition for getting divorce through mutual consent.

Regards

Rahul Kapoor
Advocate, Lucknow
24 Answers

Not rated

file for quashing of FIR in HC based on settlement arrived at with wife

2) she has to file consent affidavit in petition filed by you for quashing

3) you can file petition family court to convert existing petition into divorce by mutual consent supported by affidavit signed by both parties

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

You'll have to file a petition under section 482 CRPC in High Court for quashing of FIR and entire criminal proceedings against you and your family by way of mutual consent.

Your existing petition can be converted into a mutual divorce petition and statements of both the sides can be recorded. There would be 2 motions of divorce. The cool off period of 6 months is also not required to be served in certain situations as per recent Supreme Court judgement. You can get mutual divorce within one month, if you file an application for waiving off cooling period.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

File writ in high court to quash proceeding due due to compromise.

File Mutual Consent diovrce.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. For recall of NBW a petition to be filed before the court under which the NBW is pending.

For filing this petition under section 70(2) cr.p.c., the persons against whom the NBW is pending have to surrender before the court, provide sufficient sureties for recalling non bailable warrant.

You both have to come down to India and surrender before get the warrant agaisnt you recalled and then file a petition under section 482 before high court seeking to quash the 498a charge sheet, she has to file an affidavit expressing her no objection to this.

2. The divorce case can be withdrawn and file a fresh petition under section 13B for mutual consent divorce, this will be be better option for now.

3. Read the above answer

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

Since matter is compromised your wife the complainant needs to withdraw same before court as not pressed.

Secondly you people can apply for mutual consent divorce that must be your priority since 13(1)(Ia) is a contested petition. So you need to withdraw and file fresh petition under Section 13-B for mutual divorce

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. She shall have to execute an affidavit affirming that she had lodged the said police complaint u/s498A of IPC based on domestic rage which has been settled by and between herself and all the accused. Thereafter you should file a petition before the High Court u/s482 of Cr.P.C. praying for quashing the FIR and in that case your wife shall have to be present in the court and depose in your favour, if asked the Court.

2. You can negotiate with your wife to agree for the mutual consent divorce on agreed terms which will be disposed off within 6 & 1/2 months from the date of filing of the MCD petition.

3. You both can file a joint petition for converting your divorce petition to MCD petition as per the terms agreed by both of you which will be accepted by the Court.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

You can file joint quashing application in HC to quash the FIR in 498 A. You can convert your family court divorce petition into mutual consent Petition

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

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