Unexecuted warrants, unrecovered loans: The case for mandamus in recovery of public money

India’s courts are overflowing with cases under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) and Section 25 of the Payment and Settlement Systems Act, 2007 (PSS Act). These provisions, which criminalise dishonour of cheques and electronic transfers, were meant to deter defaults and protect financial discipline.

Yet, thousands of such prosecutions have stalled after issuance of Permanent Non-Bailable Warrants (PNBWs) against absconding accused.

Once a PNBW is issued, courts usually remove the matter from regular cause lists until the accused is produced. The responsibility for execution lies with the police. However, execution rates remain abysmally low due to limited resources, lack of monitoring and an apparent reluctance to treat financial default cases as priorities. The result is a silent backlog where court orders exist only on paper.

The implications are severe. Banks and non-banking financial companies (NBFCs) struggle to recover dues, NPAs mount and judicial credibility suffers. Against this backdrop, a critical question emerges: can High Courts use the writ of mandamus to compel police authorities to actively execute warrants and revive these prosecutions?

Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), warrants are binding commands of the court (Sections 84-90). Execution is the statutory duty of the police. In practice, however, warrants in financial default cases are frequently ignored. Police cite manpower shortages, competing law-and-order priorities or the perception that cheque bounce cases are “private disputes.” This inertia has wide consequences:

For financial institutions: Prolonged non-execution frustrates recovery and emboldens wilful defaulters.

For the justice system: Courts lose credibility when their orders remain unimplemented, and pending dockets remain artificially inflated.

For the public: Since PSU banks and NBFCs rely on depositors’ money, the inability to enforce recoveries translates into erosion of public funds.

In effect, a statutory remedy collapses, creating both economic and constitutional concerns.

Article 226 of the Constitution empowers High Courts to issue a writ of mandamus directing any authority to perform a public duty. The police, as a public authority, clearly fall within its scope. Where warrants remain unexecuted despite statutory mandates, mandamus offers a constitutional remedy.

Several High Courts have already intervened in this precise context:

M Yathavaraj v. DSP, Theni District (Madras High Court, 2024): Observing “reluctance” by police to execute NBWs in Section 138 cases, the Court ordered the Superintendent of Police (SP) to form special teams at sub-divisional level for execution. It also directed district judges to compile pending warrant data and mandated coordination meetings between courts and police. The judgment treated systemic inaction as a threat to the administration of justice.

Ram Singh Yadav v. State of UP (Allahabad High Court, 2024): The High Court directed the SP of Pratapgarh to ensure execution of warrants in cheque bounce prosecutions, holding that police cannot abdicate responsibility once a court issues an NBW. These rulings show that High Courts are willing to treat warrant execution not as a private grievance but as a systemic failure justifying constitutional intervention.

The mandamus strategy can be pursued in two ways:

Individual petitions: Banks or NBFCs, as complainants, may directly approach the High Court under Section 528 BNSS or Article 226. This route has proven effective. Yathavaraj itself arose from a private complainant’s plea. Relief is usually case-specific, but courts have occasionally extended orders to cover all pending warrants in the district.

Public Interest Litigation (PIL): Given the sheer volume of stalled cases and their impact on public funds, a PIL could seek systemic reforms: special warrant cells, periodic reporting and High Court monitoring. Though courts are cautious of “private-interest PILs,” the connection to public money and economic health provides a strong justification.

Together, these avenues offer financial institutions both case-specific remedies and opportunities for structural reform.

While legally sound, mandamus enforcement faces practical challenges:

Resource constraints: Police forces are stretched thin. Directions must therefore go beyond abstract orders and prescribe workable mechanisms - such as the special warrant squads mandated in Yathavaraj.

Political interference: Execution of warrants may sometimes be hampered by political or local interference, affecting the priority or pace of enforcement. A mandamus framework must address this by embedding safeguards that insulate the process from such external pressures and ensure impartial execution.

Tracing accused persons: In many financial default cases, accused persons shift residences or change business addresses, making service of warrants and summons difficult. Without updated mechanisms for tracking and address verification, warrants can remain pending indefinitely. Mandamus-driven reforms could encourage systematic use of technology, inter-agency coordination and better data management to overcome this obstacle.

Ongoing supervision: To prevent one-time compliance, High Courts may need to institutionalise review - quarterly reports, contempt proceedings for defaults and integration of warrant data into e-court systems. These measures balance constitutional directives with administrative realities.

For financial institutions, mandamus represents a replicable strategy across states. By invoking Article 226, they can seek:

1. Direct orders to police authorities to execute pending warrants without delay.

2. Creation of systemic mechanisms - special task forces, warrant registers and court-police coordination cells.

3. Recognition of public interest in efficient execution, given its bearing on depositor protection and financial discipline.

The Madras High Court model provides a blueprint. If adapted by other High Courts, it could transform dormant warrants into active enforcement tools, accelerating recovery and strengthening confidence in legal remedies.

The epidemic of unexecuted PNBWs results in more than backlog; it is a constitutional embarrassment where court orders are routinely ignored. Banks and NBFCs face mounting losses, while the public indirectly bears the cost. High Courts, through mandamus, have the jurisdiction and responsibility to intervene.

Precedents already show the way: mandamus can compel police to act, establish monitoring mechanisms and revive moribund prosecutions. What remains is for financial institutions, individually or collectively, to pursue this remedy with vigour.

If recovery of public money truly matters, mandamus may be the catalyst India’s debt recovery regime has long awaited.

Shubham Saxena and Udayan Sharma are Legal Managers at HDFC Bank.