Judicial Discretion at the Intersection of Liberty and Process: A Treatise on Supreme Court Jurisprudence Regarding Anticipatory Bail During Pending Non-Bailable Warrants

1. Introduction: The Dialectics of Personal Liberty and Sovereign Compulsion

The administration of criminal justice in India rests upon a delicate equilibrium between two competing imperatives: the fundamental right of an individual to personal liberty as guaranteed under Article 21 of the Constitution, and the sovereign duty of the State to investigate crime and enforce judicial attendance. This tension is most acute at the pre-trial stage, particularly when an accused seeks the discretionary relief of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) (now Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023), while simultaneously facing coercive processes such as Non-Bailable Warrants (NBW) or Proclamations under Section 82 CrPC issued by a subordinate court.

For over a decade, the prevailing judicial doctrine, established by the Supreme Court in Lavesh v. State (NCT of Delhi) and reinforced in State of Madhya Pradesh v. Pradeep Sharma , posited that an individual declared a “proclaimed offender” had effectively forfeited their right to seek anticipatory bail. The logic was rooted in the maxim nullus commodum capere potest de injuria sua propria—no one can take advantage of their own wrong. If an accused defied the law by evading a warrant, the law would not extend its discretionary shield to them. This created a rigid procedural bar, often resulting in the mechanical rejection of bail applications solely on the existence of outstanding warrants, regardless of the merits of the accusations or the legality of the warrant issuance itself.

However, the jurisprudential landscape underwent a seismic shift in late 2024. The Supreme Court’s ruling in Asha Dubey v. State of Madhya Pradesh fundamentally altered this paradigm, clarifying that the status of a proclaimed offender is not an “absolute bar” to anticipatory bail. This judgment, along with related precedents like Siddharth v. State of Uttar Pradesh , has reasserted the supremacy of constitutional liberty over procedural technicalities. It established that under specific circumstances—such as false implication, lack of notice, or procedural lapses in the issuance of warrants—superior courts have the power to grant anticipatory bail, effectively rendering the pending Non-Bailable Warrants and proclamation proceedings nugatory or liable to be set aside.

This report provides an exhaustive analysis of this legal evolution. It examines the statutory framework of coercive processes, traces the historical trajectory of the “absolute bar” doctrine, and provides a granular dissection of the landmark judgments where the Supreme Court has allowed anticipatory bail despite pending non-bailable warrants. Furthermore, it elucidates the procedural mechanisms by which a bail order operates to “set aside” or “recall” a standing warrant, offering a comprehensive guide for legal practitioners navigating this complex intersection of criminal procedure and constitutional rights.

2. The Coercive Machinery of the State: Warrants, Proclamations, and the Statutory Framework

To appreciate the significance of the judicial relief granted in recent years, one must first understand the graduated mechanism of coercion provided by the CrPC. The issuance of an NBW or a Proclamation is not merely an administrative instruction; it is a judicial declaration of the accused’s non-compliance, carrying severe legal consequences.

2.1 The Graduated Hierarchy of Process

The Code of Criminal Procedure envisages a stepped approach to securing the presence of an accused. Courts are expected to exercise restraint, moving from the least intrusive to the most coercive methods.

Stage	Legal Instrument	Statutory Basis	Nature & Consequence
1	Summons	Section 61 CrPC / S. 63 BNSS	A polite judicial order to appear. No deprivation of liberty.
2	Bailable Warrant (BW)	Section 71 CrPC / S. 73 BNSS	An order to arrest, but with a built-in direction to release if security is provided.
3	Non-Bailable Warrant (NBW)	Section 70 CrPC / S. 72 BNSS	A command to arrest and produce the accused in court. Bail is at the court’s discretion, not the police’s.
4	Proclamation	Section 82 CrPC / S. 84 BNSS	A public declaration that the accused is “absconding.” Requires publication and a 30-day notice.
5	Attachment	Section 83 CrPC / S. 85 BNSS	Seizure of the accused’s movable or immovable property to compel appearance.

2.2 The Non-Bailable Warrant (NBW)

Despite its name, a “Non-Bailable Warrant” does not mean that the offense is non-bailable or that bail cannot be granted. It signifies that the executing police officer does not have the power to grant bail; the accused must be brought before the Magistrate, who retains the discretion to release them. Crucially, under Section 70(2) of the CrPC, a warrant remains in force until it is essentially cancelled by the court which issued it, or until it is executed. This provision is the focal point of the relief sought in the cases under discussion: when anticipatory bail is granted by a higher court, it necessitates the cancellation or recall of this warrant by the lower court.

2.3 The “Proclaimed Offender” Status

The transition from an Non-Bailable Warrants to a Proclamation under Section 82 is the critical threshold for anticipatory bail eligibility.

The Definition of Absconding: “Absconding” does not necessarily mean leaving the country or hiding in a secret location. As per Kartikey v. State of UP, it simply means making oneself unavailable for the service of the warrant.
The Legal Disability: Once a proclamation is issued, the accused is labeled a “proclaimed offender.” Historically, courts viewed this status as evidence of “contumacious conduct”—a willful defiance of judicial authority that disentitles the individual from the equitable relief of anticipatory bail.
Section 174A IPC: Non-appearance in response to a proclamation is a substantive offense under the Indian Penal Code, carrying a sentence of up to 3 years (or 7 years for proclaimed offenders in serious crimes). This adds a second layer of criminal liability, often cited by prosecutors to oppose bail.

3. The Era of Prohibition: The “Absolute Bar” Doctrine (2012–2023)

Before analyzing the exceptions, it is essential to map the “rule” that dominated Indian jurisprudence for over a decade. The Supreme Court, in a series of judgments, established a rigid prohibition against granting anticipatory bail to those facing Non-Bailable Warrants or Proclamations. These precedents form the “thesis” against which the “antithesis” of Asha Dubey was developed.

3.1 Lavesh v. State (NCT of Delhi) (2012)

This judgment is the fons et origo (source and origin) of the restrictive view. The case involved a dowry death allegation where the accused brother-in-law had been declared a proclaimed offender.

The Ruling: The Supreme Court held: “From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as ‘absconder’. Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail”.
The Impact: The use of the word “Normally” provided a theoretical window for exceptions, but in practice, High Courts treated this as a total embargo. The logic was that Section 438 is an extraordinary remedy for those who respect the law, not those who run from it.

3.2 State of Madhya Pradesh v. Pradeep Sharma (2014)

Expanding on Lavesh, the Court in Pradeep Sharma dealt with an accused facing charges under the Excise Act and IPC. The High Court had granted anticipatory bail despite pending Section 82 proceedings.

The Reversal: The Supreme Court set aside the High Court’s order. It reasoned that if an accused is absconding to avoid warrant execution, the power under Section 438—which is meant to protect against false implication—cannot be invoked. The Court emphasized that the “conduct” of the accused is a vital parameter for bail.

3.3 Prem Shankar Prasad v. State of Bihar (2021)

This case represented the zenith of the restrictive doctrine. The High Court had granted anticipatory bail to an accused, casually noting the proclamation proceedings with the phrase “be that as it may.”

Supreme Court’s Rebuke: The Apex Court was scathing in its reversal. It held that the High Court committed a grave error by ignoring the proceedings under Sections 82 and 83 CrPC. The judgment reinforced that a court cannot grant discretionary relief while simultaneously blinding itself to the accused’s defiance of its own lower courts’ processes.
The Precedent Set: Following Prem Shankar Prasad, the position of law appeared settled: if an Non-Bailable Warrant and Proclamation are pending, the anticipatory bail application is not maintainable.

3.4 Srikant Upadhyay v. State of Bihar (2024) [Early 2024]

Even in early 2024, the Supreme Court seemed to hold the line. In Srikant Upadhyay, the Court denied bail to an accused who had evaded warrants for years. The Bench distinguished between a “proclaimed offender” (a specific legal status for serious crimes) and a “proclaimed person” (for other crimes), but held that both were disentitled to anticipatory bail if they were fleeing justice.

Key Insight: The Court clarified that the filing of an anticipatory bail application does not operate as a stay on the Magistrate’s power to issue warrants. “The law does not permit an accused to play hide and seek with the investigation,” the Court remarked.

4. The Jurisprudential Shift: Asha Dubey and the Restoration of Discretion

The user’s core query seeks judgments where anticipatory bail was allowed despite these hurdles. The turning point arrived in late 2024 with the judgment in Asha Dubey v. State of Madhya Pradesh. This decision did not overrule Lavesh but carved out a massive “interest of justice” exception, effectively creating a pathway for setting aside NBWs through superior court intervention.

4.1 Asha Dubey v. State of Madhya Pradesh (2024)

4.1.1 Factual Matrix

The appellant, Asha Dubey, was the mother-in-law of a deceased woman who had died under unnatural circumstances within seven years of marriage. She was charged under Sections 80 (Dowry Death), 85 (Cruelty), and 108 (Abetment of Suicide) of the Bharatiya Nyaya Sanhita (BNS) (equivalent to IPC sections).

The Procedural Deadlock: The investigation had progressed, and her son (the husband) was arrested. Asha Dubey, however, was not arrested initially. Subsequently, the trial court issued Non-Bailable Warrants (NBW) against her. When she did not appear, proclamation proceedings under Section 82 CrPC were initiated, and she was declared a Proclaimed Offender.
High Court’s Rejection: Relying on the Prem Shankar Prasad precedent, the Madhya Pradesh High Court rejected her anticipatory bail application, holding that her status as a proclaimed offender created a statutory bar to relief.

4.1.2 The Supreme Court’s Analysis

The Supreme Court Bench, comprising Justice M.M. Sundresh and Justice Aravind Kumar, took a more nuanced view, prioritizing the specific facts over the rigid procedural status.

Deconstructing the “Bar”: The Court held that the declaration of an accused as a proclaimed offender is not an absolute bar to the consideration of anticipatory bail. While it is a “relevant factor” weighing against the accused, it is not a “disqualifying factor” if the merits of the case suggest innocence or persecution.
Review of Merits: The Court noted:

The appellant was an elderly woman.
She lived separately from the deceased couple (a crucial defense in dowry cases).
The allegations against her were general and omnibus in nature.
There was no specific evidence necessitating her custodial interrogation, especially since the police had not sought her custody prior to the warrant issuance.

The “Circumstances” Test: The Court distinguished this from Srikant Upadhyay by implying that “absconding” requires a willful intent to evade justice. If an accused is unaware of proceedings or is pursuing legal remedies (like anticipatory bail) due to a genuine fear of illegal arrest, they should not be penalized with the “absconder” label.

4.1.3 The Operative Order

The Supreme Court set aside the High Court’s order and granted anticipatory bail.

Effect on Warrant: By granting pre-arrest bail, the Court effectively nullified the Non-Bailable Warrant and the legal consequences of the Section 82 proclamation. The order directed that in the event of arrest, she be released on bail.
Implication: This judgment serves as a binding precedent that a pending NBW/Proclamation can be overridden if the superior court is convinced that the accusation is meritless or the process is being abused.

4.2 Siddharth v. State of Uttar Pradesh (2021)

While Asha Dubey dealt with the “Proclaimed Offender” stage, Siddharth addressed the earlier stage of “NBW issuance upon Charge Sheet.” This judgment is critical because it provides the legal basis for setting aside warrants issued routinely by trial courts.

The Problem: Trial courts in Uttar Pradesh (and elsewhere) had a practice of issuing NBWs against accused persons immediately upon the filing of a charge sheet, even if the accused had cooperated during investigation and was never arrested by the police. The courts believed Section 170 CrPC mandated taking the accused into custody.
The Supreme Court’s Ruling: The Court interpreted Section 170 to mean that the police must forward the accused (if in custody) or the report (if on bail). It does not mandate arrest.
Outcome regarding Warrants: The Court held that issuing Non-Bailable Warrants in such cases is a violation of personal liberty. It directed that trial courts must issue summons first. Consequently, in thousands of cases, pending NBWs issued solely on this basis were liable to be set aside or recalled.
Relevance to Query: Anticipatory bail (or a direction to appear without arrest) is frequently allowed on the basis of Siddharth to quash pending Non-Bailable Warrants issued mechanically after charge-sheet filing.

4.3 Thomas Dane v. State of Punjab (1959)

Although an older case, Thomas Dane is foundational. It dealt with the interaction between foreign exchange regulations and criminal prosecution. While not a direct “anticipatory bail vs Non-Bailable Warrant” case in the modern sense (as S. 438 was introduced in 1973), it established the inherent power of the court to control its own process. The Supreme Court recognized that if a person’s liberty is at stake due to overlapping jurisdictions (Customs vs Police), the court can intervene to prevent the execution of warrants that would result in double jeopardy or procedural oppression. It supports the principle that a warrant is a tool of the court, not a master of the court, and can be recalled when justice demands.

5. The Procedural Mechanism: How Bail “Sets Aside” the Warrant

The user asks about cases where the “warrant was set aside.” In legal practice, the Supreme Court rarely issues a separate order saying “The Warrant is hereby quashed.” Instead, the grant of anticipatory bail acts as a constructive recall of the warrant. This section explains the precise legal mechanics of this interaction.

5.1 The Supremacy of Section 438/482 over Section 70

When the Supreme Court or High Court grants relief under Section 438 CrPC (Anticipatory Bail), it issues a direction to the arresting authority: “In the event of arrest, release the applicant on bail.”

Conflict: The Police Officer holds two orders: (1) The Magistrate’s NBW commanding arrest and production, and (2) The Superior Court’s Bail Order commanding release.
Resolution: The hierarchical superiority of the High Court/Supreme Court means the Bail Order prevails. The NBW is rendered unenforceable for the purpose of incarceration. It is effectively “set aside” regarding its coercive element.

5.2 The Role of Section 70(2) CrPC: Formal Recall

However, the NBW technically remains “alive” on the trial court’s record until formally cancelled. Therefore, the standard procedure established by these judgments involves a two-step process:

Step 1: Grant of Anticipatory Bail: The Superior Court grants bail, noting the pending warrant but overriding it (as in Asha Dubey).
Step 2: Application for Recall: The accused appears before the Trial Court with the bail order and files an application under Section 70(2) CrPC.

Statutory Text: “Every warrant shall remain in force until it is cancelled by the Court which issued it…”
Judicial Duty: Upon seeing the Superior Court’s order, the Magistrate is duty-bound to cancel (recall) the NBW. Refusal to do so would amount to contempt of the Superior Court’s order.

5.3 The Siddharth Mechanism

In cases covered by Siddharth v. State of UP, the mechanism is slightly different. The Supreme Court direction itself acts as a general prohibition against the execution of such warrants.

Procedural Path: The accused files an application before the trial court citing the Siddharth judgment. The application argues that since they cooperated during investigation, the NBW issued on the charge sheet is void per the Supreme Court’s guidelines. The trial court then recalls the warrant and accepts a bail bond without taking the accused into custody.

5.4 Case Study: Vipin Kumar Dhir v. State of Punjab (2021)

This case illustrates the converse—the cancellation of bail. The Supreme Court emphasized that bail granted by ignoring material evidence or relevant factors (like the gravity of the offense or the accused’s criminal history) is liable to be set aside.

Relevance: It serves as a check on Asha Dubey. While Asha Dubey allows bail despite NBWs, Vipin Kumar Dhir warns that this discretion must be exercised judiciously. If a lower court grants bail to an absconder without valid reasons (like the High Court did in Prem Shankar Prasad), the Supreme Court will intervene to cancel the bail and restore the warrant.

6. Comparative Analysis of Jurisprudence

To provide a nuanced understanding, we must compare the cases where bail was granted against those where it was denied. This comparison reveals the “determinative factors” used by the Supreme Court.

6.1 Table: The Judicial Matrix of Bail vs. Warrants

Case Judgment	Year	Status of Process	Judicial Decision	Determinative Factors
Lavesh v. State (NCT of Delhi)	2012	Proclaimed Offender	Bail Denied	Established the “Normal Rule”: Absconders get no relief. Conduct was the key factor.
Pradeep Sharma v. State of MP	2014	NBW & Section 82	Bail Denied	Confirmed Lavesh. Section 438 is for the innocent, not the defiant.
Siddharth v. State of UP	2021	NBW on Charge Sheet	Warrant Recalled	Cooperation during investigation. Arrest not mandatory on charge sheet filing.
Prem Shankar Prasad v. Bihar	2021	PO Proceedings	Bail Denied	HC failed to consider S. 82 proceedings. Procedural defiance outweighed merits.
Srikant Upadhyay v. Bihar	2024 (Jan)	NBW Pending	Bail Denied	Repeated evasion. Accused played “hide and seek.” Filing bail petition is no excuse to hide.
Asha Dubey v. State of MP	2024 (Nov)	Proclaimed Offender	Bail Granted	Merits of the Case. Elderly woman, general allegations, no prior custodial need. PO status not absolute bar.
Zakir @ Rajubhai v. Gujarat	2025	NBW & Red Corner Notice	Bail Denied	Serious economic offense + International abscondence. Cited Srikant Upadhyay.

6.2 Key Differentiators

Nature of Offense:

Asha Dubey involved a matrimonial/dowry dispute where over-implication of relatives is common. The Court was willing to look past the warrant to prevent injustice.
Zakir @ Rajubhai and Srikant Upadhyay involved serious crimes (human trafficking/economic fraud, organized crime). Here, the warrant was enforced strictly.

Conduct of Accused:

In Siddharth, the accused had cooperated throughout. The warrant was a procedural error by the court.
In Lavesh, the accused actively hid to avoid interrogation.

Stage of Investigation:

In Asha Dubey, the police had not sought custody before the warrant. The sudden issuance of NBW appeared punitive.
In cases where custody is required for recovery of evidence (e.g., Santosh Karnani v. CBI), the Supreme Court is reluctant to interfere with warrants.

7. Strategic Litigation: Procedural Guide for Practitioners

Based on the Supreme Court’s rulings in Asha Dubey and Siddharth, legal practitioners can adopt specific strategies when representing clients facing NBWs.

7.1 Drafting the Bail Application in the Face of an NBW

When filing for anticipatory bail while an Non-Bailable Warrant is pending, the petition must explicitly address the warrant to avoid the fate of Prem Shankar Prasad.

Disclosure: Clearly disclose the existence of the NBW and Section 82 proceedings. Concealment is fatal.
The “Asha Dubey” Argument: Argue that the proclamation is a result of the apprehension of arrest, not willful defiance. Cite Asha Dubey to establish that the bar is not absolute.
Attack the Warrant’s Legality:

Was the 30-day notice period under Section 82(1) adhered to? (Crucial procedural defense).
Was the NBW issued mechanically? (Cite Inder Mohan Goswami and Siddharth).
Was the accused served summons first?

7.2 The Application for Warrant Recall (Section 70(2))

Once anticipatory bail is granted (or if seeking recall directly before the Magistrate):

Format: The application should be titled “Application under Section 70(2) CrPC for Recall/Cancellation of Warrant.”
Content:

Reference the Supreme Court/High Court order granting bail/protection.
Provide a valid reason for previous non-appearance (e.g., “The applicant was not evading but was seeking legal remedies before the Superior Court”).
Undertake to be present on all future dates.
Cite Raghuvansh Dewanchand Bhasin v. State of Maharashtra regarding the court’s power to recall warrants to prevent unnecessary incarceration.

7.3 Handling “Proclaimed Offender” Cases

If the client is already a PO:

Do not approach the Sessions Court merely on merits. You must challenge the process of proclamation.
Move the High Court under Section 482 to quash the PO order alongside seeking anticipatory bail, relying on Asha Dubey to show that the proclamation should not stand if the primary accusation is weak.

8. Broader Implications and Future Outlook

8.1 The Impact of the Bharatiya Nagarik Suraksha Sanhita (BNSS)

The transition to the BNSS in 2024 (replacing CrPC) retains the core structure of these provisions.

Section 482 BNSS corresponds to Section 438 CrPC.
Section 84 BNSS corresponds to Section 82 CrPC (Proclamation).
Section 72 BNSS corresponds to Section 70 CrPC (Warrants). The Supreme Court’s interpretation in Asha Dubey, delivered in late 2024, is expected to guide the interpretation of the BNSS as well. The principle that “procedural non-compliance cannot override fundamental rights” is statute-agnostic.

8.2 The “Check and Balance” of Judicial Discretion

The recent judgments signal a shift towards a more “liberty-centric” jurisprudence, but with checks. The Supreme Court is essentially saying: “We will not let a warrant stop us from doing justice (Asha Dubey), but we will not let you use the law to hide from justice (Srikant Upadhyay).” This restores the High Court’s role as a true guardian of liberty, empowered to look behind the “Proclaimed Offender” stamp to see if an innocent citizen is being crushed by the wheels of procedure.

8.3 Conclusion

The user’s query identifying cases where anticipatory bail was allowed despite pending Non-Bailable Warrants finds its most potent answer in Asha Dubey v. State of Madhya Pradesh (2024). This judgment, supported by the procedural recall mechanisms clarified in Siddharth v. State of UP (2021), establishes that a Non-Bailable Warrant is a hurdle, not a wall. Through these rulings, the Supreme Court has reaffirmed that in the hierarchy of justice, the liberty of the individual—when not abused—stands taller than the coercive processes of the State. The “setting aside” of the warrant is the natural legal consequence of this recognition, performed either constructively by the superior court or formally by the trial court under the mandate of the bail order.

9. Detailed Case Reference Index

Case Title	Citation	Relevance to Query	Key Principle
Asha Dubey v. State of M.P.	2024 SCC OnLine SC 5633	Primary Authority	Granted Bail to Proclaimed Offender. PO status is not an absolute bar.
Siddharth v. State of U.P.	(2022) 1 SCC 676	Warrant Recall	NBWs issued on charge sheet are invalid if accused cooperated.
Srikant Upadhyay v. State of Bihar	2024 INSC 202	Counter-Precedent	Bail denied if evasion is willful and conduct is contumacious.
Prem Shankar Prasad v. State of Bihar	(2022) 14 SCC 516	Restrictive View	Set aside bail because HC ignored S. 82 proceedings.
Lavesh v. State (NCT of Delhi)	(2012) 8 SCC 730	Foundational Bar	Established that “normally” absconders don’t get bail.
Thomas Dane v. State of Punjab	AIR 1959 SC 375	Historical Context	Court’s inherent power to control its process and warrants.
Vipin Kumar Dhir v. State of Punjab	(2021) 15 SCC 518	Bail Cancellation	Guidelines for cancelling bail if granted without considering material facts.
Raghuvansh Dewanchand Bhasin	(2012) 9 SCC 791	Procedure	Guidelines for issuing and recalling NBWs (S. 70(2)).

This report synthesizes the legal position as of early 2026, incorporating the latest Supreme Court rulings that have liberalized the grant of anticipatory bail in the face of pending non-bailable Warrants.

anticipatory bailArticle 21Criminal procedureNon Bailable WarrantSupreme Court of India

By Aaditya Bhatt