• Cancellation of non-bailable warrant

My father was an independent director in a private company. SEBI has filed a criminal case against my father and other directors (including Managing Director and Chairman) in Tis Hazari Court, Delhi. This case has been filed under section 113 of Companies Act 1956, violation of which is a bailable offence punishable by fine alone(no imprisonment).The magistrate has issued summons to my father on many occasions but the summons have been sent to a wrong address. This address although has the right building name(Bhikaji commercial complex) however it has the wrong office number(221 instead of 225). On the last hearing date on 7th Dec 2019 without issuing a bailable warrant the magistrate has directly issued a Non Bailable Warrant against my father stating that as per the process server’s report my father is available on the address but not receiving the summons.

Following are my queries:
1)	What should be our next course of action shall we file for cancellation of NBW? Since the offense is bailable is there a possibility that my father is denied bail? Should we consider filing anticipatory bail in revision court (next higher court)?
2)	When the police will go to the address mentioned in the court order(which is a wrong address) although they wouldn’t find my father on that address but someone can redirect the police to the right address as well. Can police execute a Non bailable warrant against my father even at an address which is different from the one mentioned in the court order? A further update is that my father has now retired (just 15 days back) and no longer goes to the office at all, can the police execute NBW even at the residential address (in ramesh nagar)?
Asked 6 months ago in Criminal Law from New Delhi, Delhi
Religion: Hindu

Yes. You should move an application seeking cancellation of NBW. The said nbw upon report is issued wrongly as the address is not right. Only on this ground alone the cancellation of nbw will take place. 

Mayank Sapre
Advocate, New Delhi
253 Answers

5.0 on 5.0

Hello,

Immediately surrender before the court through the advocate, the court will grant bial.

Regards

Swarupananda Neogi
Advocate, Kolkata
1626 Answers
4 Consultations

4.7 on 5.0

1. YES. The Police are empowered to service or arrest person based on the NBW and produce accused in court, even IF person is not available at mentioned address and can execute court order at "ANY" other probable place that it gets information on.

2. Go to Court ON & BEFORE the next court date, and file Application (thru an experienced Lawyer) for cancellation of NBW and file BOND (typically 25000/-) and Two sureties. Bail will be granted immediately, UNLESS the opposite prosecuting party (SEBI) raises some grave objections (which again is a remote possibility).

3. There is no question of denial of Bail in such matter and Bail is a legal Right of the Accused/s.

Hemant Agarwal
Advocate, Mumbai
4307 Answers
23 Consultations

5.0 on 5.0

Nothing will happen, just carry i`d proof with you or show to police when come that notice issued on wrong address and you had no knowledge.

No anticipatory bail, apply application for conversion of NB to B warrant.

Police can arrest. And it was in your knowledge that summons are issuing on wrong address but you was inform about it. So you himself has created problem for yourself.

Police can arrest from anywhere in India. Better appear in court and obtain bail.

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

When any accused does not put appearance in the court in response to summons  issued, the Presiding Officer issues warrants of arrest to secure his presence before it. In the first instance, it has to be a bailable warrant but  some Magistrates straightway issue non-bailable warrant. 

The procedure is that the accused should appear before the court through his counsel and seek cancellation of  NBW by explaining the reasons for non appearance and how he had come to know about the warrants now. The warrants will be cancelled with a possibility of a cost/penalty. On the date fixed for appearance, you can apply for regular bail under section 437 CRPC. Since offence is a bailable one, Magistrate has to grant  bail.

In your second part of query, usually when Police do  not find the accused at the given address, the warrant is returned unserved with appropriate remarks. But I will suggest that follow the procedure for cancellation of warrant which is hassle free.     

H. S. Thukral
Advocate, New Delhi
616 Answers
200 Consultations

5.0 on 5.0

1. See since Warrant is issued same has to he cancelled your father need to present before.court and state reason of absence, the Warren is issued for absence from court not for offence so it has to be cancelled.

2. Yes if they find your father they can execute it so at first possible opportunity you should file for cancellation of same. Yes they can come.at home.and arrest for execution then he has to seek a bail.

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

Apply for cancellation of NBW as summons served at wrong address 

 

2) court would cancel or stay the NBW 

 

3) no need to file revision application in sessions court 

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

1. file applicaton for cancellation of NBW with reason. 

court will  consider ur reason and cancelled it.

no need to file anticipatory or bail.

Arun Kasana
Advocate, Delhi
32 Answers

Not rated

Your father should simply file an application for cancellation of non bailable warrant issued against him by the court. Anticipatory bail is not required since it is a bailable offence. Bail would be granted to your father as a right. You should not waste any time in filing that application before the concerned trial court. Police can execute NBW even at the residential address or any other place where your father is present. the ground for cancellation of nbw can be taken that the summons were delivered at the wrong address and hence no documents were ever received by your father. 

 

Siddharth Jain
Advocate, New Delhi
5442 Answers
61 Consultations

5.0 on 5.0

1. Your father should appear before magistrate as soon as possible and make application for surrender cum bail.

2. Bail will not be denied if your reason is found to be genuine by Magistrate as the offence is bailable.

3. Yes police can execute non bailable warrants at any address where they find your father. 

4. Police can even execute NBW at park when your father goes for a walk. 

Mohit Kapoor
Advocate, Rohtak
7885 Answers
2 Consultations

5.0 on 5.0

1. Your father has to file a petition under section 70(2) Cr.P.C to recall the NBW pending against his name, for that he has to surrender before court and also produce two sureties to recall the warrant.

2. Yes, the police can execute the NBW and can remand your father if they found him to be available in another address too.

3. Yes, the NBW can be executed in his home address too.

 

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

You should forthwith file an application under section 70(2) of CrPC for cancellation of the warrant. You apparently  have a sound reason as to why your father did not appear. And as you yourself pointed out, the offence under section 113 of Companies Act, 1956 is bailable — to say nothing of the fact that it is only punishable with fine. For these reasons the court should have no problem in cancelling/recalling the warrant.

 

As for filing an anticipatory bail under Section 438 with the Sessions Court, I would advise against it as the provision is reserved for non-bailable offences (an NBW doesn’t make a bailable offence anything else). That is how it is worded. While there is a cleavage of opinion on this point, courts are generally not inclined to exercise this power in such matters.

 

You hardly have anything to worry about as the offence in your father’s case is not so serious. Please proceed with all possible dispatch.

Yes, your father can technically be arrested. A warrant is not limited to or tied to a particular address. Again, so long as you act quickly, you should have nothing to worry about.

I hope that answers your question.

Pulkit Chandna
Advocate, New Delhi
171 Answers
3 Consultations

4.9 on 5.0

You can go and cancel the non bailable warrant attend the matter

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

1. He has to apply for cancellation of NBW. Anticipatory bail is not the remedy.

2. Do not wait for the next date of hearing. Let your father apply for cancellation of NBW before the next date of hearing.

3. Police can execute NBW at any place.

Ashish Davessar
Advocate, Jaipur
28564 Answers
835 Consultations

5.0 on 5.0

Surrender before the court and apply for regular bail . 

Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

Dear Querist

1. Immediately file an application for cancellation of Non Bailable warrant before the magistrate Court who issued the NBW against your father, as the offence is bailable, the court will cancel the same and grant him bail. Anticipatory bail can not be filed in bailable offences.

2. Yes, Police can execute the warrant within whole India, address confirmation is immaterial.

 

Feel Free to Call 

 

Nadeem Qureshi
Advocate, New Delhi
5559 Answers
264 Consultations

4.9 on 5.0

1. Your first course of action must be to apply for the cancellation of NBW in the same court. You have to narrate the entire facts that why you have not received the summons. In my opinion, Magistrate will take acknowledge it and will cancel the NBW. Approaching DJ/ADJ for revision would be an extra exercise, there might be a chance that DJ/ADJ would direct you to approach the Magistrate first. 

2.  Police need to execute that NBW until and unless it is cancelled by the Court itself. 

Kumar Deepraj
Advocate, New Delhi
7 Answers

Not rated

Thank you for your appreciation. One surety will suffice.

Siddharth Jain
Advocate, New Delhi
5442 Answers
61 Consultations

5.0 on 5.0

Normally value of surgeries should be decided on the basis of economic situation of accused but courts mechanically insisted for higher value of surties irrespective of offence. 

Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

First let the court allow the bail application.

In the order for grant of bail the court will impose the conditions therein.

It is not necessary that the same conditions shall apply to the co-accused also.

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

One surety should suffice 

 

you would not need 2 sureties 

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

No it will be almost same

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

1. The amount for Bail Bond and no. of Surety usually depends on the graveness of offences and finally at the discretion of the Court.  Meet the Court Registrar and inquire about such formalities & procedures.

Hemant Agarwal
Advocate, Mumbai
4307 Answers
23 Consultations

5.0 on 5.0

The sureties shall be as per the order of the court.  See court may impose different condition on you. 

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

Dear Sir,

Warrants can definitely be got cancelled by the same court subject to fulfilment of the condition.

You will have to file an application u/s 70(2) of Cr.P.C. to cancel the issued warrant. You better take the assistance of local advocate.

You need to file the application affixing a court fee stamp. if the magistrate is convinced, he will cancel the warrant. Once the warrant is cancelled, you need to approach the judicial clerk and request for a Warrant Cancellation Memo.

Netravathi Kalaskar
Advocate, Bangalore
4953 Answers
25 Consultations

4.8 on 5.0

Single surety will suffice, still keep an option open and bail may grant on parity.

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

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