Warrants of Arrest

Section 73: the bailable warrant

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

Sub-section (2). The endorsement shall state three things:

(a) the number of sureties; (b) the amount in which they and the person are respectively to be bound; and (c) the time at which he is to attend before the Court.

Sub-section (3). Whenever security is taken, the officer shall forward the bond to the Court.

That is the whole of the bailable warrant. There is no separate species of warrant; there is an ordinary warrant plus an endorsement. Where there is no endorsement, the warrant is what practitioners call non-bailable, meaning the officer has no power to release and must produce the person before the Court.

Sections 74 to 76: to whom a warrant is directed

Section 74(1). A warrant of arrest shall ordinarily be directed to one or more police officers. But where its immediate execution is necessary and no police officer is immediately available, the Court may direct it to any other person or persons, who shall execute it.

Section 74(2). Where a warrant is directed to more than one officer or person, it may be executed by all, or by any one or more of them.

Section 75, warrant to any person. 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:

• an escaped convict;
• a proclaimed offender; or
• a person accused of a non-bailable offence who is evading arrest.

Such a person shall acknowledge receipt in writing, and shall execute the warrant if the person to be arrested is in, or enters on, any land or other property under his charge, section 75(2). On arrest, the person is made over with the warrant to the nearest police officer, who takes him before a Magistrate having jurisdiction, unless security is taken under section 73, section 75(3).

Section 75 is the provision that lets a landowner or estate manager be given a warrant for a proclaimed offender who is hiding on his land, and it is limited to the three categories named.

Section 76, substitution. A warrant directed to a 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.

Sections 77 to 79: executing the warrant

Section 77. The person executing a warrant shall notify the substance of it to the person to be arrested, and, if so required, shall show him the warrant.

Two duties and they are different. Notifying the substance is unconditional. Showing the warrant is on demand.

Section 78. The person executing the warrant shall, subject to section 73 as to security, without unnecessary delay bring the person arrested before the Court before which he is required by law to produce him.

The proviso, which is new. 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.

So the twenty-four hour rule, which section 58 states for an arrest without warrant, is now stated in section 78 for an arrest under a warrant as well. The old Code left the second case to article 22(2) alone.

Section 79. A warrant of arrest may be executed at any place in India. One sentence, and it means a Mumbai court's warrant is good in Manipur.

Sections 80 to 83: execution outside the local jurisdiction

Section 80, the Court forwards the warrant. Where a warrant is to be executed outside the issuing Court's local jurisdiction, the Court may, instead of directing it to a police officer within its own jurisdiction, forward it by post or otherwise to any Executive Magistrate, District Superintendent of Police or Commissioner of Police within whose local limits it is to be executed. That officer endorses his name on it and, if practicable, causes it to be executed.

Sub-section (2) requires the issuing Court to forward, along with the warrant, the substance of the information against the person, together with such documents as may be sufficient to enable the Court acting under section 83 to decide whether bail should or should not be granted.

That sub-section is the piece that makes the local bail decision possible, and it is worth naming in an answer: without the material, the local court would be deciding bail blind.

Section 81, the officer takes the warrant for endorsement. Where a warrant directed to a police officer is to be executed beyond the issuing Court's local jurisdiction, he shall ordinarily take it for endorsement 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 where it is to be executed, sub-section (1). That endorsement is sufficient authority to execute it, and the local police shall assist if required, sub-section (2).

Sub-section (3) is the exception: where there is reason to believe that the delay in obtaining the endorsement will prevent execution, the officer may execute the warrant without the endorsement anywhere beyond the local jurisdiction of the issuing Court.

Section 82, procedure on arrest. Where a warrant is executed outside the district in which it was issued, the person arrested shall be taken before the Executive Magistrate, District Superintendent of Police or Commissioner of Police of the place of arrest, unless:

• the issuing Court is within thirty kilometres of the place of arrest, or is nearer than that Magistrate or officer; or
• security is taken under section 73.

Sub-section (2), new. On such an arrest the police officer shall forthwith give the information regarding the arrest and the place where the arrested person is being held to the designated police officer in the district, and to the corresponding officer of the district where the arrested person normally resides.

Section 83, what that Magistrate or officer does. If the person arrested appears to be the person intended by the issuing Court, he shall direct his removal in custody to that Court.

The first proviso. If the offence is bailable and the person is ready and willing to give bail bond to that authority's satisfaction, or a direction has been endorsed under section 73 and he is ready to give the security required, the Magistrate, District Superintendent or Commissioner shall take the bail bond or security and forward the bond to the issuing Court.

The second proviso. If the offence is non-bailable, it is lawful for the Chief Judicial Magistrate, subject to section 480, or the Sessions Judge, of the district in which the arrest is made, on consideration of the information and documents forwarded under section 80(2), to release the person on bail.

Sub-section (2) preserves a police officer's power to take security under section 73.

A worked example

A Judicial Magistrate at Andheri issues a warrant for Deepak, accused of an offence punishable with four years, which is non-bailable. Deepak is believed to be in Nagpur.

Form. In writing, signed by the presiding officer, under the seal of the Court, section 72(1). It stays in force until executed or cancelled, section 72(2).

Route. The Court may forward it by post to the Commissioner of Police, Nagpur, under section 80(1), together with the substance of the information and the documents needed for a bail decision, under section 80(2). The Commissioner endorses his name and has it executed.

Alternatively, the warrant is directed to a Mumbai police officer, who takes it to Nagpur. He should ordinarily get it endorsed by an Executive Magistrate or an officer in charge of a police station there, section 81(1). If delay in getting the endorsement would prevent execution, he may execute it without one, section 81(3).

At the arrest. The officer must notify Deepak of the substance of the warrant, and show it if Deepak asks, section 77.

After the arrest. Because the warrant was executed outside the district of issue, Deepak is taken before the Executive Magistrate or the Commissioner of Police at Nagpur, under section 82(1), unless the Andheri Court happens to be within thirty kilometres or nearer, which it is not. The officer must forthwith inform the designated police officer of Nagpur district and of the district where Deepak normally resides, section 82(2).

Before that authority. If Deepak appears to be the person intended, he is to be removed in custody to Andheri, section 83(1). But because the offence is non-bailable, the Chief Judicial Magistrate or the Sessions Judge of Nagpur may, on the material forwarded under section 80(2), release him on bail under the second proviso.

Change the offence to a bailable one. Then the first proviso applies: the Executive Magistrate or Commissioner shall take a bail bond and forward it to the Andheri Court.

Change it again: the Andheri Court had endorsed a direction under section 73. Then the arresting officer himself takes the security stated in the endorsement, releases Deepak, and forwards the bond to the Court, section 73(3).

And Deepak must reach the Andheri Court without unnecessary delay and in no case beyond twenty-four hours excluding journey time, section 78 and its proviso.

Distinctions

What this does NOT mean

A warrant does not expire. Section 72(2) gives only two ways it ends: cancellation by the issuing Court, or execution.

"Bailable warrant" is not a separate species of process. It is an ordinary warrant carrying a section 73 endorsement.

Section 75 does not let a Magistrate direct a warrant to any person in any case. It is confined to an escaped convict, a proclaimed offender, or a person accused of a non-bailable offence who is evading arrest, and to a person within his local jurisdiction.

And section 82 does not always require production before the local Magistrate. Where the issuing Court is within thirty kilometres or is nearer than that authority, or where security has been taken under section 73, the person goes to the issuing Court directly.

Quick revision

• Section 72: in writing, signed, sealed; in force until cancelled or executed.
• Section 73: the Court may endorse a direction to take a bail bond with sufficient sureties; the endorsement states the number of sureties, the amount, and the time of attendance; the bond is forwarded to the Court.
• Section 74: ordinarily to one or more police officers; to any other person where immediate execution is necessary and no police officer is available; where directed to several, any one or more may execute it.
• Section 75: the Chief Judicial Magistrate or a first class Magistrate may direct a warrant to any person within his local jurisdiction for an escaped convict, a proclaimed offender, or a person accused of a non-bailable offence evading arrest.
• Section 76: another police officer may execute it if his name is endorsed on the warrant.
• Section 77: notify the substance; show the warrant if required.
• Section 78: bring him before the Court without unnecessary delay, and not beyond twenty-four hours excluding journey time.
• Section 79: executable at any place in India.
• Sections 80 and 81: execution outside local jurisdiction, by the Court forwarding it or by the officer getting it endorsed; section 81(3) allows execution without endorsement where delay would prevent it.
• Section 82: production before the local Executive Magistrate, District Superintendent or Commissioner, unless the issuing Court is within thirty kilometres or nearer, or security is taken; and information of the arrest to the designated officers of both districts.
• Section 83: removal in custody if he is the person intended; bail by that authority if the offence is bailable; bail by the Chief Judicial Magistrate or Sessions Judge of the district of arrest if it is non-bailable, on the material sent under section 80(2).

Test yourself

1. How long does a warrant of arrest remain in force? Until it is cancelled by the Court which issued it or until it is executed, section 72(2). It does not lapse with time.

2. What makes a warrant "bailable"? An endorsement by the issuing Court under section 73(1) directing that the officer take a bail bond with sufficient sureties and release the person; the endorsement must state the number of sureties, the amount, and the time of attendance.

3. To whom may a warrant be directed apart from a police officer? To any other person where immediate execution is necessary and no police officer is available, section 74(1); and, under section 75, to any person within the local jurisdiction of the Chief Judicial Magistrate or a first class Magistrate, for an escaped convict, a proclaimed offender, or a person accused of a non-bailable offence who is evading arrest.

4. Where may a warrant of arrest be executed? At any place in India, section 79.

5. A warrant issued at Pune is executed at Kolkata. Before whom is the person taken? Before the Executive Magistrate, District Superintendent of Police or Commissioner of Police of Kolkata, under section 82(1), unless the Pune Court is within thirty kilometres of the place of arrest or nearer than that authority, or security has been taken under section 73.

6. May a court in the district of arrest grant bail in a non-bailable case? Yes. Under the second proviso to section 83(1), the Chief Judicial Magistrate, subject to section 480, or the Sessions Judge of the district of arrest may release the person on bail on consideration of the information and documents forwarded under section 80(2).

7. What is new in section 78? The proviso, which caps the delay in producing the arrested person before the Court at twenty-four hours exclusive of journey time. The old Code required only that it be without unnecessary delay.