Magistrate reprimanded for issuing arrest warrant despite HC’s anticipatory bail order

The Rajasthan HC held that the Magistrate’s action was in clear violation of the High Court’s orders and directions


The Rajasthan High Court has directed the Registrar (Vigilance) to place the order before the concerned committee “to decide what course of action is required to be done as against such Magistrate.” The Magistrate had issued arrest warrants against an accused, despite the fact that the High Court had earlier granted them Anticipatory Bail.

In Nanuram Saini and ors v State of Rajasthan (Crl. Misc. [Petition] No. 4317 of 2020), the petitioners were represented by Mr. Pawan Sharma and Vidhut Kumar Gupta. The respondent State was represented by Public Prosecutor Ramesh Choudhary.

The court said, “The action of the learned Magistrate is clearly wanting and shows scant respect to the High Court’s order as well as having little knowledge relating to criminal law.”

The Single Bench also quashed the order dated September 3, 2020 so far as the issue of arrest warrant and rejecting the application under Section 70(2) Cr.P.C. was concerned and held that the “petitioners shall be treated as entitled to all the benefits as granted by the High Court under the anticipatory bail.”

Section 70(2) of the Code of Criminal Procedure provides that every warrant of arrest shall remain in force until it is cancelled by the Court which issued it, or until it is executed.


The petitioners were granted anticipatory bail by the High Court of Rajasthan in 2003 with the condition that in the event of arresting the petitioners, they shall be released on bail. But the Magistrate issued arrest warrants against the two allegedly involved in house trespassing, cheating, forgery, criminal conspiracy under the Indian Penal Code in September 2020.

The petitioners had submitted that on coming to know about the arrest warrants, they moved an application informing the Magistrate that they are on anticipatory bail by the High Court and also requested that the arrest warrants should be converted into bailable warrants in terms of Section 70(2) Cr.P.C.

However, the learned Additional Chief Judicial Magistrate via its order dated September 3, 2020 refused to convert the non bailable warrants to bailable warrants on the premise that he does not have the power to convert the non-bailable warrants to bailable warrants as it would amount to refuse to recall its earlier order, which is barred in terms of Section 362 Cr.P.C. and he further issued arrest warrants on the same day.

Section 362 of the Code of Criminal Procedure lays down that no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

The counsel of petitioners also referred to a Five Judge Bench decision in Sushila Agarwal & Others Versus State (NCT of Delhi) & Anr (SLP [CrL.] No. 7281-7282 of 2017) that held that the anticipatory bail granted by the Court shall continue till the end of the trial.

Court’s observation

The Single Bench of Justice SP Sharma took cognisance of the submissions made by the petitioners and said that the action of the Magistrate is “in clear violation of the orders passed by the High Court after having granted anticipatory bail.”

“There was no occasion for the learned Magistrate to have issued the arrest warrants and such course or power was not available with it in spite of having been given to it. Learned Magistrate has insisted on issuing of the arrest warrants and it is also seen that the provisions of Section 362 Cr.P.C. cannot come into operation while deciding the application under Section 70 (2) Cr.P.C”, added the order.

Accordingly, he allowed the criminal miscellaneous petition and disposed of all pending applications.

The order may be read here:


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