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WARRANT

Dr. Mohd. Asad Malik

Chapter VI of the Cr.P.C., which is captioned as 'processes to compel appearance' consists of

four parts :

 Part A relates to Summons; (SS 61-69)

 Part B to warrant of arrest; (SS 71-81)
 Part C to proclamation and attachment and (SS 82-86)
 Part D to other rules regarding processes. (SS 87-90)

Warrant of Arrest

It is a written order issued by a Court to a police officer to arrest the person named in the warrant
and produce an offender or to search his premises for a particular thing. A police officer who
executes the warrant shall notify the substance thereof to the person to be arrested and if he
demands, shall show him the warrant. He is expected to bring the required person before the
Court without unnecessary delay.

As per concise Oxford dictionary, “Warrant is an official authorization enabling the police or
some other body to make an arrest, search premises etc”.

 Valid Warrant

A warrant of arrest should be (i) in writing (ii) signed by the presiding officer of the Court
and (iii) should bear the seal of the Court. It should also contain the name of the accused, his
address and indicate the offence with which he is charged. If any of these factors is absent, the
warrant is not in order and an arrest made in execution of such a warrant is illegal.
Warrants are of two kinds:
i) Bailable
ii) Non-Bailable
A bailable warrant is a Court's order which contains a direction that if the person arrested
executes a bail with sufficient sureties for his attendance before the Court, he may be
released from custody. In that case it shall further state the number of sureties, the amount of
the bond, and the time for attending the Court. (Section 71 Cr.P.C.)
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In case of a non-bailable warrant the direction for bail will not be endorsed on the warrant.

You can study the following sections.

38. Aid to person other than police officer, executing warrant

When a warrant is directed to a person other than a police officer, any person may aid in the
execution of such warrant, if the person to whom the warrant is directed be near at hand and
acting in the execution of the warrant.

55. Procedure when police officer deputes subordinate to arrest without warrant

(1) When any officer in charge of a police station or any police officer making an investigation
under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise
than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver
to the officer required to make the arrest an order in writing, specifying the person to be arrested
and the offence or other cause for which the arrest is to be made and the officer so required shall,
before making the arrest, notify to the person to be arrested the substance of the order and, if so
required by such person, shall show him the order.

(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under
section 41.

70. Form of warrant of arrest and duration.

(1) Every warrant of arrest issued by a court under this Code shall be in writing, signed by the
presiding officer of such court and shall bear the sea] of the court.

(2) Every such warrant shall remain in force until the court, which issued it, cancels it or until it
is executed.

 The validity and duration of the warrant of arrest is indefinite, till it is cancelled by the
court which issued it, or
 until it is executed.

71. Power to direct security to be taken.

(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by
endorsement on the warrant that, if such person executes a bond with sufficient sureties for his
attendance before the Court at a specified time and thereafter until otherwise directed by the
court the officer to whom the warrant is directed shall take such security and shall release such
person from custody.

(2) The endorsement shall state-

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(a) The number of sureties;

(b) The amount in which they and the person for whose arrest the warrant is issued, are to be
respectively bound;

(c) The time at which he is to attend before the court.

(3) Whenever security is taken under this section the officer to whom the warrant is directed
shall forward the bond to the court.

72. Warrants to whom directed.

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the court
issuing such a warrant may, if its immediate execution is necessary and no police officer is
immediately available, direct it to any other person or persons, and such person or persons shall
execute the same.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or
by any one or more of them.

73. Warrant may be directed to any person.

(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any
person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or
of any person who is accused of a non-bailable offence and is evading arrest.

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the
person for whose arrest it was issued, is in, or enters on, any land or other property under his
charge.

(3) When the person against whom such warrant is issued is arrested, he shall be made over with
the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate
having jurisdiction in the case, unless security is taken under section 71.

The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person
within his local jurisdiction for the arrest of any

 escaped convict,
 proclaimed offender or
 of any person who is accused of a non-bailable offence and is evading arrest.

According to section 72 and 73 the magistrate may issue warrant to any person. You can link it
with section 38 Cr.P.C.
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74. Warrant directed to police officer.

A warrant directed to any police officer may also be executed by any other police officer whose
name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

75. Notification of substance of warrant.

The police officer or other person executing a warrant of arrest shall notify the substance thereof
to the person to be arrested, and, if so required, shall show him the warrant.

76. Person arrested to be brought before court without delay.

The police officer or other person executing a warrant of arrest shall (subject to the provisions of
section 71 as to security) without unnecessary delay bring the person arrested before the court
before which he is required by law to produce such person:

Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate's court.

77. Where warrant may be executed.

A warrant of arrest may be executed at any place in India.

78. Warrant forwarded for execution outside jurisdictions

(1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such
court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by
post or otherwise to any Executive Magistrate or District Superintendent of Police or
Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the
Executive Magistrate or District Superintendent or Commissioner shall endorse his name
thereon, and if practicable, cause it to be executed in the manner hereinbefore provided.

(2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the
substance of the information against the person to be arrested together with such documents, if
any, as may be sufficient to enable the Court acting under section 81 to decide whether bail
should or should not be granted to the person.

79. Warrant directed to police officer for execution outside jurisdiction.

(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of
the court issuing the same, he shall ordinarily take it for endorsement either to an Executive
Magistrate or to a police officer not below the rank of an officer in charge of a police station,
within the local limits of whose jurisdiction the warrant is to be executed.
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(2) Such Magistrate or police Officer shall endorse his name thereon and such endorsement shall
be sufficient authority to the police officer to whom the warrant is directed to execute the same,
and the local police shall, if so required, assist such officer in executing such warrant.

(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement
of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed
will prevent such execution, the police officer to whom it is directed may execute the same
without such endorsement in any place beyond the local jurisdiction of the court which issued it.

80. Procedure of arrest of person against whom warrant issued.

When a warrant of arrest is executed outside the district in which it was issued, the person
arrested shall, unless the court which issued the warrant is within thirty kilometers of the place of
arrest or is nearer than the Executive Magistrate or District Superintendent of Police or
Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or
unless security is taken under section 71, be taken before such Magistrate or District
Superintendent or Commissioner.

81. Procedure by Magistrate before whom such person arrested is brought.

(1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police

shall, if the person arrested appears to be the person intended by the court which issued the
warrant, direct his removal in custody to such court:

Provided that, if the offence is bailable, and such person is ready and willing to give bail to the
satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been
endorsed under section 71 on the warrant and such person is ready and willing to give the
security required by such direction, the Magistrate, District Superintendent or Commissioner
shall take such bail or security as the case may be, and forward the bond, to the court which
issued the warrant:

Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial
Magistrate (subject to the provisions of section 437), or the Sessions Judge, of the district in
which the arrest is made on consideration of the information and the documents referred to in
sub-section (2) of section 78 to release such person on bail.

(2) Nothing in this section shall be deemed to prevent a police officer from taking security under
section 71.

87. Issue of warrant in lieu of, or in addition to, summons.

A court may, in any case in which it is empowered by this Code to issue a summons for the
appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest-
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(a) If either before the issue of summons, or after the issue of the same but before time fixed for
his appearance, the court sees reason to believe that he has absconded or will not obey the
summons; or

(b) If, at such time he fails to appear and the summons is proved to have been duly served in time
to admit of his appearing in accordance therewith and no reasonable excuse is offered for such
failure.

Section 88. Power to take bond for appearance.

When any person for whose appearance or arrest the officer presiding in any Court is empowered
to issue a summons or warrant, is present in such Court, such officer may require such person to
execute a bond, with or without sureties, for his appearance in such Court, or any other Court to
which the case may be transferred for trial.

90. Provisions of this Chapter generally applicable to summons and warrants of arrest.

The provisions contained in this Chapter relating to a summons and warrants, and their issue.
Service, and execution, shall, so far as may be, apply to every summons and every warrant of
arrest issued under this Code.

The issuance of non-bailable warrants involves interference with personal liberty. Arrest and
imprisonment means deprivation of the most precious right of an individual.1 In the case of Inder
Mohan Goswami & Another v. State of Uttaranchal & Others,2 this Hon’ble court had laid
down few guidelines for the courts with regards to issuance of non-bailable warrants: “it is
reasonable to believe that

 the person will not voluntarily appear in court; or

 the police authorities are unable to find the person to serve him with a summon; or
 it is considered that the person could harm someone if not placed into custody
immediately.

Further observed that a non-bailable warrant could be issued if: “…an accused is charged with
the commission of an offence of a heinous crime and it is feared that he is likely to tamper or
destroy the evidence or is likely to evade the process of law….”3

1
Inder Mohan Goswami & Another v. State of Uttaranchal & Others 2007 (12) Scale15. at para 52
2
Ibid.
3
Ibid.
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In the aforementioned case it was opined that first the court should direct serving of the
summons along with the copy of the complaint. If the accused seem to be avoiding the summons,
the court, in the second instance should issue bailable-warrant. In the third instance, when the
court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the
process of issuance of the non-bailable warrant should be resorted to.

The warrants either bailable or non-bailable should never be issued without proper scrutiny
of facts and complete application of mind, due to the extremely serious consequences and
ramifications which ensue on issuance of warrants.4

In State of U.P. v. Poosu & Another,5 Whether in the circumstances of the case, the
attendance of the accused respondent can be best secured by issuing a bailable warrant or non-
bailable warrant, is a matter which rests entirely in the discretion of the court. Although, the
discretion is exercised judiciously, it is not possible to computerize and reduce into immutable
formulae the diverse considerations on the basis of which this discretion is exercised.

The issuance of non-bailable warrants involves interference with personal liberty. Arrest and
imprisonment means deprivation of the most precious right of an individual. Therefore, the
courts have to be extremely careful before issuing nonbailable warrants.

In Re: Justice C.S. Karnan, 2017 SCC OnLine SC 238, order dated 10.03.2017 Supreme
Court: Owing to the non-appearance of Justice C. S. Karnan before the Court in the contempt
proceedings, the 7-judge bench of J.S. Khehar, CJ and Dipak Misra, J. Chelameswar, Ranjan
Gogoi, Madan B. Lokur, P.C. Ghose and Kurian Joseph, JJ issued a bailable warrant of
Rs.10,000, in the nature of a personal bond, to ensure the presence of Justice Karnan on
31.03.2017.

The suo motu contempt proceedings were initiated against Justice Karnan after he had
written letters to Prime Minister Narendra Modi, asking him to take actions against the corrupt
sitting and retired judges of the Supreme Court and Madras High Court when he was a Judge of
the Madras High Court and had passed an injunction against his own transfer orders.

4
Omwati v.State of UP & Another (2004) 4 SCC 425.
5
(1976) 3 SCC 1 at para 13
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MP HC Advises Trial Courts Not To Issue Non-Bailable Warrant At First Instance [Read
Order]

17 Aug 2017 1:06 PM

Hindustan Coca Cola Beverages Pvt. Ltd a Private Limited Company vs The State of Madhya
Pradesh, 11-08-2017 The Madhya Pradesh High Court has advised trial courts not to exercise its
power to issue non-bailable warrant in a routine and mechanical manner and in the larger interest
of justice, try to secure the presence of the accused on the next date of hearing by way of a
bailable warrant at the first instance.

The petitioner moved the high court for cancellation of the non-bailable warrant issued against
him issued by the trial court in a case where he is co-accused.

The trial court rejected his application filed under Section 70(2) of CrPC to cancel the non-
bailable warrant issued against him on July 3, 2017.

The petitioner counsel Abhijeet Bhowmick cited a case in which this high court has held that
personal appearance of the accused is not mandated under the provisions of Section 70 (2) and
that the same can be decided in his absence by deciding one way or the other.

Section 70(2) of the CrPC vests the court with the power to recall the warrant of arrest and the
same can also be exercised suo moto and must not be construed in a manner that would result in
hardship to the person so sought to be produced by way of a non-bailable warrant, the counsel
said.

Justice Atul Sreedharan allowed the petition and quashed the non-bailable warrant issued vide
order dated 3/07/2017.
In Pankaj Jain v. Union of India & Anr. 2018 The Supreme Court of India has held that it is not
obligatory for a Court to release an accused by accepting the bond under Section 88 Cr.P.C. on
the ground that he surrendered before the Court voluntarily and he was not arrested during
investigation.
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The Two Judge Bench of Justices AK Sikri and Ashok Bhushan was hearing an appeal against
the judgment and order of Allahabad High Court dismissing a Writ Petition filed by an accused
challenging the Trial Court’s order denying bail to him.

The main issue which involved in the case was ‘whether it was obligatory for the Court to
release the appellant by accepting the bond under Section 88 Cr.P.C. on the ground that he was
not arrested during investigation or the Court has rightly exercised its jurisdiction under Section
88 in rejecting the application filed by the appellant praying for release by accepting the bond
under Section 88 Cr.P.C’.

The Bench held that Section 88 of the Cr.P.C. does not confer any right on any person, who is
present in a Court.

“Discretionary power given to the Court is for the purpose and object of ensuring appearance of
such person in that Court or to any other Court into which the case may be transferred for trial.
Discretion given under Section 88 to the Court does not confer any right on a person, who is
present in the Court rather it is the power given to the Court to facilitate his appearance, which
clearly indicates that use of word ‘may’ is discretionary and it is for the Court to exercise its
discretion whensituation so demands. It is further relevant to note that the word used in Section
88 “any person” has to be given wide meaning, which may include persons, who are not even
accused in a case and appeared as witnesses”.

The Bench also noted that present is not a case where accused was a free agent whether to appear
or not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82
and 83 Cr.P.C. had been initiated. In this view of the matter he was not entitled to the benefit of
Section 88.

“When accused was issued warrant of arrest to appear in the Court and proceeding under
Sections 82 and 83 Cr.P.C. has been initiated, he cannot be held to be a free agent to appear or
not to appear in the Court”.

The Court has concluded that the word ‘may’ used in Section 88 confers a discretion on the
Court whether to accept a bond from an accused from a person appearing in the Court or not.
“The both Special Judge, C.B.I. as well as the High Court has given cogent reasons for not
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exercising the power under Section 88 Cr.P.C. We do not find any infirmity in the view taken by
the Special Judge, C.B.I. as well as the High Court in coming to the conclusion that accused was
not entitled to be released on acceptance of bond under Section 88 Cr.P.C. We thus do not find
any error in the impugned judgment of the High Court”, said the Bench.

Palanivel v. The State, Crl. OP No. 14320 of 2019, order dated 11 July 2019 While hearing a
matter placed before the Madras High Court, Justice Anand Venkatesh held that a Prisoner's
Transit Warrant can never be converted into a regular warrant where the accused is out on bail
and that it thereby does not authorise the Court to remand the accused on the strength of a regular
warrant.

The case arose in the form of a criminal original petition filed under Section 482 of the Code of
Criminal Procedure to call for the records of a particular order of the First Additional Sessions
Judge, Salem cancelling the bail of the petitioner and to set aside the same.