# Awadhesh Nishad & Ors v. State of U.P. & Anr - **Citation:** (2026) 2 ILRA 810 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2026-02-13 - **Case number:** Application U/S 528 BNSS. No. 3690 of 2026 - **Bench:** Padam Narain Mishra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-nishad-ors-v-state-of-u-p-anr-54206 - **Pages:** 4 ## Text 810 INDIAN LAW REPORTS ALLAHABAD SERIES No.2 owing to his office. Prima-facie, a highly disciplined and respected cultural organization like the RSS has been maligned and the membership has been misused in the present case by Opposite Party No.2, however, this Court is not well equipped to go any further with regard to the acts of Opposite Party No.2 in misusing the name of a respected cultural organisation in the manner in which it has been done. 39. Present application stands allowed in above terms. ---------- (2026) 2 ILRA 810 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 13.02.2026 BEFORE THE HON'BLE PADAM NARAIN MISHRA, J. Application U/S 528 BNSS. No. 3690 of 2026 Awadhesh Nishad & Ors. ...Applicants Versus State of U.P. & Anr. ...Opposite Parties ISSUE FOR CONSIDERATION Whether the issuance of Non-Bailable Warrants (NBW) by the trial court on the very first date of listing, without recording objective satisfaction or considering other modes of securing presence, was legally justified? HEADNOTES Criminal Law - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 90, 528, - Indian Penal Code, 1860 - Sections 34, 323, 325, 504, 506 - Constitution of India - Article 21: - Application under Section 528 BNSS - for quashing the impugned order of Non-Bailable Warrants - Incident - FIR - cross-cases also registered from the said incident - Trial transferred from District Judge - NBW issued at the very first instance after the transfer of the case district judge to Special Judge - applicants pleaded that issuance of NBW was arbitrary, without judicial satisfaction, and contrary to Section 90 BNSS - Court finds that NBW was issued hastily, without recording reasons or exploring other means to secure presence - and NBW is a serious matter that impacts an individual's personal freedom as protected by Article 21 - reliance placed on Inder Mohan Goswami v. State of Uttaranchal and State of Haryana v. Bhajan Lal, court held that - (i) High Court's inherent powers under Section 528 BNSS invoked to prevent abuse of process and secure ends of justice and (ii) NBW should be a last resort, not the first step - therefore, impugned order quashed - directions issued to the Trial court to pass a fresh order, accordingly. (Para - 5, 7, 8) Application Allowed. (E-11) CASE LAW CITED Inder Mohan Goswami & Another v. State of Uttaranchal & Others (2007) 12 SCC 1 State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) LIST OF ACTS Bhartiya Nagarik Suraksha Sanhita, 2023 - Indian Penal Code, 1860 - Constitution of India. . LIST OF KEYWORDS 2 All. Awadhesh Nishad & Ors. Vs. State of U.P. & Anr. 811 Non-Bailable Warrant (NBW) - Judicial discretion - Article 21 - Abuse of process - Inherent powers - Witness presence - Right to life - personal Liberty - Quashing order - fresh order. CASE ARISING FROM Case Crime No. 03 of 2014, P.S. Daraganj, District Allahabad - Session Trial No. 354 of 2016 (State vs. Faizan Hussain and Others) - Impugned order dated 13.01.2026 by ADJ-XVI/Special Judge (P.C.), Allahabad. APPEARANCE OF PARTIES Counsel for Appellant(s): Shri Sudhir Mahrotra, Suyash Mehrotra. Counsel for Respondent(s): A.G.A. (Delivered by Hon'ble Padam Narain Mishra, J.) 1. Heard learned counsel for the applicants, learned AGA for the State and perused the material available on record. 2. This application under Section 528 BNSS has been filed by the applicants for quashing the impugned order dated 13.01.2026 passed by learned Additional Distict Judge - XVI/ Special Judge (P.C.), Allahabad in Session Trial No. 354 of 2016 (State vs Faizan Hussain and Others) arising out of Case Crime No. 03 of 2014 under sections 323, 325/34, 504 and 506 of IPC, P.S. - Daraganj, District - Allahabad whereby Non-Bailable Warrants (NBW) have been issued against the applicants on the very first date of listing. 3. Facts in Brief fact of the present case is that the particular incident took place on 01.01.2014 agaisnt which an FIR was lodged by the Opposite Party No.2 against the applicants which is registered as the Case Crime No. 2 of 2014. The applicants also registered a cross case which was registered as the Case crime No. 3 of 2014 of the aforesaid incident. Subsequently the case lodged at the instance of the applicants committed to the District Judge, Allahabad vide order dated 02.05.2016. Thereafter, District Judge, Allahabad transferred the Case Crime No. 3 of 2014 to the court of ADJ 16/ Special Judge (P.C.) Act, Allahabad. The Trial on the first date that the trial court upon receiving the file on being transferred vide order dated 13.01.2023 issued NBW against all the applicants. 4. Having considered the submission of the learned counsels of the parties and perused the material available on records, it appears that the Additional District Judge - XVI/ Special Judge (P.C.), Allahabad has passed the impugned order 13.01.2026 in Session Trial No. 354 of 2016 without the application of judicial mind in a very hasty manner in complete disregard of the settled principles of the law. The impugned order passed against the applicants who are the witnesses of the facts, does not reflect the objective satisfaction recorded by the trial court for issuing the NBW at the very first instance after the transfer of the case from the Court of District Judge, Aligarh to the court of ADJ 16/ Special Judge (P.C.) Act without recoursing other modes of securing the presence of the witnesses. At this juncture, it is inevitable to discuss about the Section 90 of the BNSS. Section 90 of the BNSS is as under: Section 90 - Issue of warrant in lieu of, or in addition to, summons 812 INDIAN LAW REPORTS ALLAHABAD SERIES A Court may, in any case in which it is empowered by this Sanhita to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest? (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. 5. On bare perusal of the aforesaid section, it is clear that the general course of action for the appearance of any person before the court may be deviated only when the court has reason to believe that the he has absconded or will not obey the summons. The impugned order does not disclose the compliance of above noted requirement. The issuance of an NBW is a serious matter that impacts an individual's personal freedom as protected by Article 21 of the Indian Constitution. The authority to issue a warrant, whether it is bailable or not, must therefore be used carefully and not arbitrarily. Nonetheless, the courts have made it clear that their discretion is largely focused on ensuring the person's presence and preventing the criminal justice system from being impeded. An NBW is a very important legal action that is to be taken as a last resort when other means of ensuring a witness's presence have failed. Before issuing a warrant, a judge will consider factors like the witness's credibility, the importance of their testimony, how relevant their evidence is to your case, and if there are mitigating circumstances that could have caused the witness to miss the hearing. 6. The Apex Court in the case in re: Inder Mohan Goswami and another vs. State of Uttaranchal and others reported in (2007) 12 SCC 1 has observed the mechanism as to how the liberty of any person may be curtailed inasmuch as every citizen has got fundamental right of his liberty under Article 21 of the Constitution of India. The relevant paragraphs of the aforesaid judgment is reproduced as under:- "When non-bailable warrants should be issued. 53. Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when: it is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately. 54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive. 2 All. Mohd. Azeem Idrishi Vs. State of U.P. & Anr. 813 55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable- warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants. 56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. 57. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant." 7. The inherent powers under Section 528 BNSS are to be exercised to prevent abuse of process of court and to secure ends of justice (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335). The matter at hand is the fit case for the exercise of the inherent powers of the High Court vested under section 528 of BNSS. 8. The impugned order dated 13.01.2026 passed by learned Additional Distict Judge - XVI/ Special Judge (P.C.), Allahabad in Session Trial No. 354 of 2016 (State vs Faizan Hussain and Others) arising out of Case Crime No. 03 of 2014 is hereby quashed. The Concerned Trial Court is directed to pass a fresh order in the light of the observation made hereinabove. ---------- (2026) 2 ILRA 813 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 09.02.2026 BEFORE THE HON'BLE TEJ PRATAP TIWARI, J. Application U/S 482. No. 8263 of 2025 Alongwith Application U/S 482. No. 8685 of 2025 Mohd. Azeem Idrishi ....Applicant Versus State of U.P. & Anr. ...Opposite Parties ISSUE FOR CONSIDERATION Whether the arrest and prosecution of the applicants in connected criminal cases suffer from non-verification of true identity, leading to wrongful apprehension of innocent persons due to factual error by police.