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.
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 5 years ago in Criminal Law
Religion: Hindu
26 Answers
Hello,
Immediately surrender before the court through the advocate, the court will grant bial.
Regards
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.
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.
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.
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.
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
1. file applicaton for cancellation of NBW with reason.
court will consider ur reason and cancelled it.
no need to file anticipatory or bail.
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.
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.
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.
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.
You can go and cancel the non bailable warrant attend the matter
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.
Surrender before the court and apply for regular bail .
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.
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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.
Thanks a lot for your valuable responses. Our application for bail is listed for coming Monday. Do we need to have two sureties or even one would suffice? The other accused in this case have been granted bail with a bond of Rs 50,000 and one surety. Can it be different for us because of NBW?
Asked 5 years ago
Thank you for your appreciation. One surety will suffice.
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.
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.
One surety should suffice
you would not need 2 sureties
No it will be almost same
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.
The sureties shall be as per the order of the court. See court may impose different condition on you.
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.
Single surety will suffice, still keep an option open and bail may grant on parity.