The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) adds various procedural rules modifying the manner in which appearance of persons is enforced by the courts in criminal cases. These include Section 90, which is particularly significant: it authorizes courts to issue a warrant of arrest instead of, or in addition to, a summons in certain circumstances. This article examines the provisions, legal implications, potential pitfalls, and practical advice under Section 90, BNSS.
Context and Legislative Background
The BNSS, 2023, replacing certain provisions of the Code of Criminal Procedure (CrPC), was enacted into law to update and simplify criminal procedural law in India. Section 90 is placed in Chapter VI (“Processes to Compel Appearance”) of BNSS, under Other Rules Regarding Processes. Its equivalent under the CrPC is Section 87 (“Issue of warrant in lieu of, or in addition to, summons”).
The legislative purpose is to give judicial officers weapons to make sure compliance with court orders, prevent flight, and uphold the sanctity of proceedings, all while keeping guarantees of due process in balance. The mandate that grounds be put down in writing is for accountability and limits untrammelled discretion.
Text of Section 90, BNSS
Section 90 states:
A Court can, in any case before it in which it has authority under this Sanhita to issue a summons for the attendance of any individual, issue, after entering its reasons in writing, a warrant for his arrest—
(a) if, either prior to the issue of such summonses, or subsequent to the issue of the same but prior to the time specified for his appearance, the Court considers it reasonable to believe that he has absconded or will refuse to comply with the summonses;
(b) if at that time he does not turn up and the summons is established to have been sufficiently served in due time to allow for him to appear according thereto and no valid reason is presented for such default.
Key Ingredients and Threshold Conditions
Pricing Section 90 involves comprehension of its component legal thresholds:
Grant of Authority to Issue Summons
The Court should already possess the jurisdiction under BNSS to issue a summons. In situations where the court does not have jurisdiction to summon, Section 90 is not applicable.
Writing Down Reasons
Prior to the issuance of a warrant under this section, the court is required to write down its reasons. This is procedural protection to make the decision clear and reviewable.
Two Disjunctive Situations
Section 90 provides warrants in two different situations:
Situation (a): Anticipatory or Pre-Appearance Belief of Non-Appearance or Absconding
The Court can issue the warrant even prior to issuing the summons, or after issuing summons but prior to the date fixed, if it believes that there is reason for the person having absconded or will refuse to appear according to the summons.
Situation (b): Failure to Appear After Summons
If the individual does not show up, as long as the summons was properly served with reasonable time for appearance, and no reasonable excuse for non-appearance is present, then a warrant may be issued by the court.
Proof of Service and Reasonable Excuse
Scenario (b) is subject to (i) establishment that the summons was served in time; and (ii) no reasonable excuse. The onus is on the individual or his/her representative to establish a reasonable excuse after non-appearance is established.
Comparison with CrPC
Under the CrPC, Section 87 was equivalent to BNSS Section 90 in content. The provision under BNSS maintains most of the previous form, albeit with a new legislative framework and perhaps with refined judicial meaning under the new legislation.
Judicial Principles and Interpretative Issues
A number of legal principles arise when the courts consider Section 90:
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Standard of belief “absconded or will not obey summons”: The belief of the Court has to be founded on reliable material. Speculation alone will not do. Facts tending to indicate that the individual is evading service, relocating out of jurisdiction, or refusing to obey prior process may establish this standard.
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Due service: Service must be in accordance with BNSS rules. If notice is not properly delivered, or service was late such that appearance was impossible, Section 90(b) cannot be invoked. Courts have consistently emphasised adequacy of time for appearance.
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What constitutes a “reasonable excuse”: Courts look to see if the absence was the result of circumstances outside control (sickness, accident, lack of notice etc.). The excuse needs to be real and proven. Self-imposed hardship or neglect rarely work.
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Writings as obligatory compliance: It is disastrous to a warrant given under this provision if reasons are not recorded in writing. Reasons in writing must specify why the court felt non-appearance or absconding, or why non-appearance without a valid excuse warrants warrant.
Case Law and Precedents
As BNSS is a new enactment, few decisions directly apply Section 90. The majority of references deal with Section 90 as a procedural analogy to CrPC Section 87. Legal commentaries stress that practice under CrPC is a guidance until BNSS jurisprudence evolves.
Analogically relevant to this decision would be the Allahabad High Court ruling of Section 91 BNSS (which is not Section 90 but manifests approach to warrants and appearance). In Navneet Bhadauria v. State of U.P. (2024), the court noted that the advantage of Section 91 (equivalent to Section 88 CrPC) will only be available where the accused appears voluntarily, and not after the issue of a non-bailable warrant.
Practical Implications and Illustrative Scenarios
To demonstrate how Section 90 operates in practice:
Example 1 — Pre-summons warrant
A court is set to issue a summons against X for stealing. There is evidence that X has gone out of town and has been avoiding everyone. Even before issuing the summons, after making entries of reasons, the court can issue a warrant, as it does not expect X to comply with a summons.
Example 2 — Warrant after failure to appear
A proper summons is issued to Y, allowing reasonable time to answer. On the return date, Y fails to appear. No application for exemption is made and no valid reason is given. A warrant of arrest may be issued by the court against Y under Section 90(b).
Pitfall situation: Summons issued merely a few hours prior to fixed time for appearance. The individual does not show up. Trying to issue warrant in such instance may be questioned, since the service was not “in time to admit of his appearing.” There must be fairness by the court.
Rights of Persons, Safeguards, and Remedies
Section 90 gives power to the court, but there are necessary safeguards for protecting personal rights:
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Right to notice: The individual should be given notice of the summons in a timely manner, subject to valid service.
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Right to explanation: There should be scope to demonstrate a reasonable excuse prior to warrant issued under clause (b).
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Due process: Written grounds should be provided to prevent arbitrary use.
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Chance of appeal or review: An individual impacted by a warrant is entitled to judicial review, or in criminal cases can challenge on procedural unconstitutionality.
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Protection under greater constitutional guarantees: Section 90 actions must abide by fundamental rights principles, e.g., against unlawful restraint under Article 21 of the Constitution of India.
Potential Issues and Controversies
There are certain difficulties and uncertainties with Section 90:
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Vagueness of “absconded or will not obey summons”
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Subjective nature of “reasonable excuse”
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Risk of procedural errors and delays in service
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Increased judicial workload for documentation and assessment
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Danger of overuse or misuse of warrants in minor cases
Comparison Across Jurisdictions and International Standards
While legal frameworks differ, most legal systems impose similar restraints when issuing summonses in the form of arrest warrants. Global fair-trial standards demand notice, chance to appear, reason for coercive process, and strict limitation on deprivation of liberty. Indian jurisprudence, particularly under the Constitution, is focused on necessity and proportionality of arrest. Section 90 is consistent with these standards in that it applies written reasons and conditional protections.
Best Practices for Courts and Practitioners
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Always set out precise reasons in writing prior to issuing a warrant
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Ensure service of summons was valid and timely
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Give opportunity to respond or provide reason for absence
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Assess “reasonable excuse” based on proper evidence
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Use warrants as last resort to secure attendance
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Maintain fairness and transparency to sustain public trust
Also read: BNSS Section 86
Conclusion
Section 90 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is an essential tool for the enforcement of appearance through warrants where summons are likely to or have failed to secure attendance. Its two avenues — anticipatory or post-summons failure — coupled with reasoned written judgments, proof of service, and justification of reasonable excuse, attempt to find a balance between judicial powers and personal freedom.
For legal professionals, familiarity with both clause (a) and clause (b), and securing procedural protections, will be crucial. For individuals who are served with summons, knowledge of rights under BNSS, such as the right to be properly informed, to offer excuse, and to dispute irregular warrants, is critical.
As jurisprudence under BNSS evolves, courts will resolve standards for “absconding,” “reasonable excuse,” and valid service. In the meantime, Section 90 is a bottom-line provision that should be used with care, equity, and strict attention to procedural justice.
