Non-Bailable Warrant for Bailable Offence Under Section 276C(2) Quashed Due to Mechanical Order

By | June 4, 2025
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Non-Bailable Warrant for Bailable Offence Under Section 276C(2) Quashed Due to Mechanical Order

Issue:

Whether an Additional Chief Metropolitan Magistrate can validly issue a non-bailable warrant (NBW) against an individual for an offence punishable under Section 276C(2) of the Income-tax Act, 1961, when that offence is bailable in nature, and the order issuing the NBW is cryptic and lacks application of mind.

Facts:

The Additional Chief Metropolitan Magistrate issued a non-bailable warrant (NBW) against the petitioner. This warrant was issued for an offence punishable under Section 276C(2) of the Income-tax Act, 1961, which deals with willful attempt to evade payment of any tax, penalty, or interest. It was specifically noted that the offence under Section 276C(2) is bailable in nature, as per the relevant provisions (including Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which would classify the nature of the offence). Furthermore, it was observed that the Magistrate’s order issuing the NBW did not record any reasons and was a cryptic order, indicating a lack of application of judicial mind.

Decision:

Yes, the impugned order issuing the non-bailable warrant was quashed and set aside. The court found that the Magistrate had mechanically passed the order issuing a non-bailable warrant against the petitioner for a bailable offence.

Key Takeaways:

  • Nature of Offence under Section 276C(2): Section 276C(2) (willful attempt to evade payment of tax, penalty, or interest) is a bailable offence. This is a crucial distinction from Section 276C(1) (willful attempt to evade tax, interest, or penalty in a higher amount), which can be non-bailable depending on the evaded amount.
  • Issuance of Warrants for Bailable Offences: For bailable offences, the ordinary rule is that the accused is entitled to bail as a matter of right. A non-bailable warrant should generally not be issued for a bailable offence unless there are exceptional circumstances, such as the accused’s persistent non-appearance despite summons or bailable warrants, or a strong likelihood of absconding.
  • Requirement of “Application of Mind”: Any judicial order, especially one affecting personal liberty, must be a “speaking order” – it must reflect that the magistrate has applied their mind to the facts and the law. A cryptic order lacking reasons indicates a mechanical exercise of power.
  • Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This section (equivalent to Section 436 of the erstwhile Code of Criminal Procedure, 1973) deals with bail in bailable offences. Under this provision, a person accused of a bailable offence is entitled to be released on bail.
  • Quashing of Invalid Warrants: Warrants issued without due process, for bailable offenses without compelling reasons, or with a mechanical application of mind, are liable to be quashed by higher courts.
  • Protection of Personal Liberty: This judgment underscores the importance of protecting the personal liberty of individuals and ensuring that judicial process, particularly in criminal matters, adheres strictly to legal provisions and principles of natural justice.
HIGH COURT OF BOMBAY
Arjun Amarjeet Rampal
v.
Income-tax Department
Advait M. Sethna, J.
WRIT PETITION NO. 2579 OF 2025
MAY  16, 2025
Swapnil Ambure and A. Nair for the Appellant. Sandeep Gupta and Ms. P. P. Bhosale for the Respondent.
ORDER
1. This petition is filed under Article 482 of Code of Criminal Procedure, 1973 and under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023. The petition primarily assails order dated 5 December 2019 of issuing process against the petitioner and order dated 09 April 2025 passed by the Additional Chief Metropolitan Magistrate, 38th Court at Ballard Pier, Mumbai in CC No. 466/SW/2019 issuing non bailable warrant against the petitioner. The learned counsel for the petitioner today before the Vacation Court would restrict his prayer of the impugned order dated 9 April 2025 passed in CC No. 466/SW/2019, pursuant to which an non bailable warrant was issued by the trial court against the petitioner for offence punishable under Section 276C (2) of the Income Tax Act, 1961 (“IT” Act).
2. The petitioner would submit that his Advocate on 9 April 2025 had filed a Vakalatnama on behalf of the petitioner along with an application for exemption from an appearance on the said date. However, the learned Magistrate was pleased to reject the application for exemption on the observations that the accused had failed to comply with the bail provisions.
3. Having perused the provisions of Section 276C (2) of the IT Act under which the maximum sentence is only three years and the offence is bailable in nature, which the parties would not dispute.
4. The learned Magistrate however not taking into consideration such position, has mechanically passed the order issuing the non-bailable warrant against the petitioner in a bailable offence. On a perusal of the said order, it is clear that no reasons are recorded. In my view, it is a cryptic order which lacks application of mind. This would cause prejudice to the petitioner in the given the facts and circumstances as he would face an order of non bailable warrant in a case of bailable offence. Further according to the learned counsel for the petitioner, the Advocate for the petitioner was very much present when the said order dated 9 April 2025 was passed, which was overlooked by the learned Magistrate.
5. In such circumstances, such order would be contrary to law. The learned counsel for the revenue would seek time for instructions today. However, fairly he would not oppose this limited relief sought for by the petitioner at this stage.
6. In the above facts and circumstances, interest of justice would be served by passing the following order:-
ORDER
i.The order dated 9 April 2025 passed by the Additional Chief Metropolitan Magistrate, 38th Court at Ballard Pier, Mumbai is quashed and set aside.
ii.This order will not affect the proceedings on merits filed before the learned Magistrate which shall continue in accordance with law.
7. As far as the other prayers are concerned with regard to challenging the order dated 5 December 2019 of issuance of process against the petitioner which is assailed before this Court and pending, shall be placed before the regular Court for further consideration on 16 June 2025.
8. Learned counsel for the revenue shall take instructions and file a reply on or before the adjourned date with an advance copy to be served to the Advocate for the petitioner.
9. List the proceedings on 16 June 2025 before the Regular Court.