Warrant under the Criminal Procedure Code – Section 70 – 81
The issue of the warrant is a more drastic step than the issue of summons. An arrest in the wake of a warrant is a deprivation of personal liberty. Therefore, the Supreme Court and various High Courts cautioned that the Courts must issue warrants strictly in accordance with the law. Generally, a warrant is issued in serious cases and after a duly served to summon is disobeyed or the accused has wilfully avoided the service of summon.
Essentials of a valid warrant as given under Section 70:
- Be in writing
- Be signed by the Presiding Officer of the Court issuing the warrant
- Bear the seal of the Court
- Contain the full name and description of the person to be arrested with sufficient certainty so as to identify him
- Clearly specify the offence
- Contain the name of the person who is to execute the warrant
A warrant of arrest remains in force until it is cancelled by the Court or is executed. The form of warrant of arrest is given under Schedule 2 Form 2. It was observed in State v. K.M. Nanavati that the purpose of warrant is accomplished when the accused is arrested and brought before the Court. If a warrant issued by Court remains unexecuted, the Court is entitled to enquire why it is not executed.
In Dulichand v. State of Rajasthan, the Court held that the issue of a bailable warrant by the Court to compel the presence of a person who, according to the FIR was involved in the abetment of offence, was perfectly justified.
Section 71 reads- Power to direct security to be taken.
A warrant of arrest may either be bailable or non-bailable. This section talks about a bailable warrant- which states that if a person arrested under this warrant executes a bond and furnishes security for his attendance in the Court, he shall be released. Such direction can be given through an endorsement which shall contain-
- Number of sureties
- The amount by which surety and an arrested person is bound
- The time at which arrestee has to attend the Court
A bailable warrant can be issued in both the case of the bailable offence or non-bailable offence. If a non-bailable offence is of a technical nature only, then it would be appropriate to issue a bailable warrant.
Section 72 states the person to whom a warrant is directed for execution. The Court may direct a warrant for execution to one or more police officers and if no police officer is readily available, it may direct the same to any other person or persons.
Section 73 states that warrant may be directed to any person. The Chief Judicial Magistrate or the Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict or proclaimed offender or a person who is accused of a non-bailable offence and is evading arrest. Neglect by the person to execute warrant is punishable under section 187 of IPC.
Such person to whom warrant is directed should acknowledge in writing the receipt of warrant and execute it if the accused enters on any land or property under his charge.
When the warrant under the Criminal Procedure Code has been executed and the accused is arrested, he shall be handed over to the nearest police officer with the warrant, who will present him before the Court.
In Birender Kumar Rai v. Union of India, the Intelligence officer of the Narcotic Control Bureau served the detention order on a person who was in jail. The High Court of Allahabad held that notifying the substance of warrant of arrest amounted to arrest of person and warrant was deemed to have been duly executed. Issuance of a warrant of arrest on a person who was residing in Dubai for many years and was required by the Court merely for interrogation, was held to be illegal and without jurisdiction because the person named was neither an escaped convict nor a proclaimed offender nor was he evading his arrest. (Washeshwar Nath v. State)
Warrant under the Criminal Procedure Codedirected to a police officer (Section 74) – A warrant can also be executed by any other police officer whose name is endorsed upon such warrant by the officer to whom the warrant was directed by the Court. It was held in Ouseph v. State, that endorsement under this section should be by name and not merely by designation. The endorsement should be written upon the warrant.
Section 75 requires that the police officer executing the warrant of arrest should notify the substance of warrant to the person who has to be arrested and may even show the warrant, if required. This provision is to enable the arrested person to know of the charges against him for which he is being arrested so that he can arrange for his bail and defence.
Section 76 states that the person arrested under warrant should be brought before the Court without any unnecessary delay, and in no circumstances this time period should exceed 24 hours (excluding the time period necessary for the journey from the place of arrest to the Magistrate Court).
A warrant of arrest may be executed at any place in India (Section 77). But the execution of warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant. When the warrant has to be executed outside the local limits of the jurisdiction of the Magistrate, it shall be done in the manner provided under Section 78 to 81. In such circumstances, the Magistrate may directly forward the warrant (by post or through other means) to the Executive Magistrate or District Superintendent of Police or Commissioner of Police within whose local limit it has to be executed, who shall endorse his name on the warrant and cause it to be executed in the manner provided under the before mentioned provisions.
The Magistrate forwarding the warrant should also attach the substance of information against the person to be arrested and any other document which is required to enable the Court under Section 81 to decide whether to grant bail or not. (Section 78)
This provision is to provide adequate safeguard to the person being arrested so that he is not arrested without a proper authority has applied its mind as to legality of the warrant and authorized the arrest outside its local jurisdiction.
Under this provision, the warrant is not directed to the police officer but the authorities within whose local limit it has been executed to guarantee the execution are done in a legal manner (Devi Singh v. State of Rajasthan).
It was observed in S. Vellapan v. State that where a warrant under this section is directed to arrest the proprietor of a firm, the warrant should bear the name and description of the particular person intended to be arrested, otherwise it would not be a valid warrant.
When a Warrant under the Criminal Procedure Code is directed to a police officer for execution outside the local limits of the jurisdiction of Court issuing it, the police officer should take it for endorsement to the Executive Magistrate or police officer, not below the rank of officer-in-charge of a police station within whose local limits the warrant has to be executed. Such police officer or Magistrate should endorse his name thereon. This endorsement would be sufficient authority to the police officer to whom the warrant is directed for execution. The local police should assist in the arrest if required. Whenever there appears that the delay occasioned in obtaining the endorsement of a police officer will prevent the execution of the warrant, then the police officer to whom the warrant is directed may execute it outside the local limits without obtaining any endorsement. (Section 79)
The police officer to whom such warrant is directed should execute it and not endorse it to any other police officer discharging his duties outside the jurisdiction of the Court issuing it.
Section 80 states that when the Warrant under the Criminal Procedure Code is executed outside the jurisdiction of the Court issuing it, the person arrested shall be taken before the Executive Magistrate or Commissioner or District Superintendent within whose local limit the arrest has been made, unless the court which issued the warrant is within 30 km of the place of arrest or is nearer than the before mentioned authorities or unless security has been taken under Section 71.
After following the provision under Section 80, if the authorities are satisfied that the person arrested is the one for whom warrant has been issued, he shall be taken before the Court which issued the warrant. (Section 81)
If the offence is bailable and the person is ready to give bail to satisfaction of authorities under Section 80, or a direction has been endorsed under Section 71 on the warrant and person is ready to give the security required by such direction, then the authority should take the bail or security and forward the bond to the Court which issued the warrant.
If offence is non-bailable, the CJM or the Sessions Judge in whose local limits the arrest was made, on consideration of information and documents referred under Section 78, may release the person on bail.
This section provides the procedure to be followed by the Executive Magistrate before whom a person arrested under warrant is produced. The court observed in K. Nair v. State of Kerala that this section doesn’t contemplate a detailed enquiry by the Magistrate as to identify the arrested person if he is satisfied prima facie that the person arrested and produced before him is the same person for whom warrant was issued.
This provision was inserted in the Code with a view to mitigate the hardship involved in taking a person to the Court which issued the warrant. This section doesn’t envisage the grant of bail by CJM or Session Judge having jurisdiction over the place where the person was arrested by police without a warrant (Arun Kumar Singh v. State of Delhi).
Warrant under the Criminal Procedure Code