The term 'warrant of arrest' has not been defined in the Sanhita. It can be defined as an order of the court directed to a police officer or any other person to arrest a particular person and produce before the court.
Warrant is issued
(i) Ordinarily in all warrant cases [Section 227(1)(b)]
(ii) In summons cases also at the discretion of court [Section 90]
Purpose of warrant
For following purposes 'warrants' can be issued:
(i) For enforcing the appearance of the accused (Warrant of arrest) [Section 72 - 83]
(ii) For production of document or thing, by issuing (Search warrant) [Section 96 - 101]
Warrant of arrest is issued according to 'Form no. 3 of II Schedule'.
Form of warrant of arrest and duration [Section 72]
Section 72 provides for form of warrant of arrest and duration. Requirements for the valid warrant are:
(i) Must be in writing
(ii) Must be signed by the Presiding Officer of the Court.
(iii) Must bear the seal of the Court.
Duration: Section 72(2) provides that a warrant once issued shall remain in force, until it is cancelled or executed.
Guidelines for issue of warrant of arrest
In Inder Mohan Goswami v. State of Uttranchal (2007) 12 SCC 1 Supreme Court held that courts have to be extremely careful before issuing non-bailable warrants. Non - bailable warrants should be issued to bring a person to court when summons or bailable warrants would be unlikely to have desired result. This could be when:-
1. It is reasonable to believe that the person will not voluntarily appear in court; or
2. The police authorities are unable to find the person to serve him with summon; or
3. It is considered that the person could harm someone if not place into custody immediately.
In Raghuvansh Dewanchand Bhasin v. State of Maharastra and Anr, AIR 2011 SC 3393 Supreme Court laid down following guidelines to be adopted in all cases where non-bailable warrants are issued:-
1. All the High Courts shall ensure that the Subordinate Courts use printed and machine numbered Form No. 2 [Now Form No. 3] for issuing warrant of arrest and each such form is duly accounted for.
2. The Court must ensure that complete particulars of the case are mentioned on the warrant.
3. The presiding judge issuing the warrant should put his full and legible signatures on the process and ensure that the seal bearing the complete particulars are prominently endorsed.
4. Each court must maintain a register in which each warrant of arrest issued must be entered chronologically and the serial number of such entry must be reflected on the top right hand of the process.
5. A register similar to the above mentioned register shall be maintained at each police station. SHO of the concerned station shall ensure that each warrant of arrest issued by the court when received is duly entered in the register.
6. On the date fix for the return of the warrant, the Court must insist upon the compliance report from the police. The report on such arrests must be clear, cogent and legible.
Issuance of non-bailable warrant at the first instance: Supreme Court in Vikas v. State of Rajasthan (2014) 3 SCC 321 held that the issuance of non-bailable warrant in the first instance without using other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty of the person. Therefore, courts should be extremely cautious while issuing non-bailable warrants.
Warrant mentioning sureties or Bailable warrants
Section 73 provides the court issuing warrant for execution, may make an endorsement on the warrant to the effect that if the person arrested executes a bond with sufficient sureties for his appearance before the court he may be released on furnishing security. Ordinarily it is called 'bailable warrant'. Such endorsement shall be in accordance with 'Form No. 3 of II Schedule'.
To whom warrant of arrest directed? [Section 74]
Section 74 provides that warrant of arrest may be directed to:
(i) One or more police officers
(ii) Any other person/persons (if immediate execution is necessary and no police officer is immediately available).
When 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 provides that Chief Judicial Magistrate or Magistrate of first class may direct a warrant to any person, within his local jurisdiction for the arrest of the following persons:
(i) Escaped convict
(ii) Proclaimed offender
(iii) Accused of a non-bailable offence who evades his arrest
Section 76 provides that a warrant may be executed by any other police officer, whose name is endorsed upon the warrant by the officer to whom it is directed.
Notification of substance of warrant
Section 77 provides that police officer or other person executing a warrant of arrest shall notify the substance of the warrant to the person to be arrested and if so required, shall show him the warrant.
Section 78 provides that person arrested to be brought before the court without delay. Such time shall not in any case exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court. Section 79 provides that warrant of arrest may be executed at any place in India.
Execution of warrant outside the local jurisdiction of the issuing court
Section 80 and 81 relate to the execution of a warrant outside the local jurisdiction of issuing court. Section 80 provides that when a warrant is to be executed outside the local jurisdiction of the court issuing it, it shall be forwarded by the post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limit of whose jurisdiction it is to be executed and then such authorities cause it to be executed.
Section 81 provides that 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.
Arrest of person upon warrant of arrest being executed outside district in which it is issued
Sections 82(1) provides that 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 73, be taken before such Magistrate or District Superintendent or Commissioner.
Section 82(2) provides that on the arrest of any person referred to in Section 82(1), the police officer shall forthewith give the information regarding such arrest and the place where the arrested person is being held to the designated police officer in the district and to such officer of another district where the arrested person normally resides.
Proclamation and Attachment
Proclamation of the person absconding [Section 84]
Section 84 provides that for issuing of proclamation following conditions must be fulfilled:
(i) Warrant of arrest has been issued by the court,
(ii) Court issuing warrant has reason to believe (Whether after taking evidence or not) that the person against whom warrant has been issued has:
(a) absconded; or
(b) Concealing himself so that such warrant may not be executed.
A proclamation cannot be issued before the issuance of warrant of arrest. Simultaneous issueance of warrant and proclamation under Section 82 [Now Section 84 of BNSS] continues till the offender is arrested. Once the offender is arrested, the proclamation ceases to operate.
Form of proclamation [Section 84]
(i) Must be in writing
(ii) Specify the place and time for appearance of the absconder.
(iii) Date of appearance must not be less than 30 days from the date of publiction of such proclamation.
Manner of issuance of proclamation [Section 84]
(i) It should be publicly read in some conspicuous place of the town or village in which such person ordinarily resides,
(ii) It should be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village.
(iii) Copy of it should be affixed to some conspicuous part of the court house.
Court may also direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
Proclaimed offender
Section 84(4) provides that where a published proclamation is in respect of a person accused of an offence punishable with imprisonment of ten years or more, or imprisonment for life or with death under the BNS, 2023 or under any other law for the time being in force and such person fails to appear at the specified place and time the court may after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make declaration to that effect.
There is a change in this provision. In CrPC, proclaimed offender could be declared only in respect of the specific offences of IPC mentioned in Section 82 of CrPC but Section 84 of BNSS, 2023 provides that proclaimed offender can declared in respect of offence which is made punishable with imprisonment of ten years or more, or imprisonment for life or with death under the BNS, 2023 or under any other law for the time being in force.
Attachment of property of the absconder [Section 85]
Section 85 provides that court issuing proclamation, may at any time after the issue of proclamation order attachment of any movable or immovable property belonging to offender.
Simultaneous order of proclamation and attachment
Provise to Section 85 provides that attachment may be ordered simultaneously with the proclamation under the following conditions:
(i) absconder is about to dispose of the whole or any part of his property,
(ii) about to remove the whole or any part of his property from the local jurisdiction of the court.
Order of attachment authorises the attachment of property situated outside the district only after the endorsement by the District Magistrate within whose districts such property is situated. [Section 85(2)]
Manner of Attachment [Section 85(3), (4) and (5)]
Debt or movables: Where property is a debt or other movables:
- By seizure;
- By appointment of receiver;
- By prohibiting (by order in writing) delivery of property to the proclaimed person or to any one on his behalf;
- by all or any two of the above methods.
Land paying revenue: Where property is land paying revenue to the State Government, its attachment can be made through the Collector of the district in which the land is situated.
Immovable property: Where property is other immovable property:
- By taking possession;
- By appointment of receiver;
- By prohibiting the payment of rent or delivery of property to the absconder or to anyone on his behalf;
- By all or any two of the above methods.
Live stock or perishable nature: Where the property is live stock or is perishable nature, the court may order immediate sale. Proceeds of sale shall abide the order of the court.
Identification and attachment of property of proclaimed person [Section 86]
Section 86 provides that the Court may, on the written request from a police officer not below the rank of the Superintendent of Police or Commissioner of Police, initiate the process of requesting assistance from a Court or an authority in the contracting State of identification, attachment and forfeiture of property belonging to a proclaimed person in accordance with procedure provided in Chapter VIII. It is a new provision.
There is a new insertion. Provision contained in Section 86 is newly introduced. There was no provision similar to this in CrPC.
Claims and objection related to the attachment [Section 87]
Section 87 provides that any claim can be preferred within 6 month by any person other than the proclaimed person in a court by which order of attachment is issued.
Where property is attached under an order endorsed by the Collector under Section 85(2), claims and objections shall be made in the court of Chief Judicial Magistrate of the district in which attachment is made. Where claims or objections have been disallowed in whole or in part, a suit may be instituted to establish the right, within a period of one year from the date of such order.
Release, sale or restoration of the attached property [Section 88]
Section 88 provides that if the proclaimed person, appears within the time specified in the proclamation, the court shall release the property form the attachment.
If the proclaimed person does not appear within the specified time the property under the attachment shall be at the disposal of the State government but it shall not be sold;
(i) before expiration of 6 months from date of attachment,
(ii) before the disposal of claims or objections made under Section 84, unless:
(a) it is subject to speedy and natural decay or,
(b) court considers the sale would be for the benefit of owner.
[in either of these cases, court may cause it to be sold whenever it thinks fit]
If within 2 years from the date of attachment such person appears before the court and proves to the satisfaction of the court that:-
(i) He did not abscond or conceal himself for the purpose of avoiding execution of the warrant; and
(ii) That he had not such notice of the proclamation as to enable him to attend within the time specified therein,
(iii) Such property or the sale proceeds thereof shall be delivered to him after satisfying all costs incurred in consequence of attachment.
Suprme Court in Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649 held that the provisions contained in Section 82 of the Code of Criminal Procedure [Now Section 84 of BNS] was enacted for the purpose of securing presence of the accused. Once the said purpose is achieved the attachment should be withdrawn. The provisions do not warrant sale of property despite the fact that absconding accused has surrendered.
Section 89 provides that any person aggrieved by order rejecting the application for restoration of the attached property under Section 88(3) may appeal to the court to which appeals ordinarily lie from the sentences of the first-mentioned court.
Other rules regarding process
Section 90 provides under the following conditions the court may issue a warrant of arrest in lieu of or in addition to summons:-
(i) Either before the issue of summons or before the time fixed for the appearance, court sees reason to believe that the person has absconded or will not obey summons.
(ii) Person fails to appear and the summons is proved to have been duly served in time and no reasonable excuse is offered for such failures.
Section 91 provides the power to take bond or bail bond for appearance. It provides that 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 or bail bond for his appearance in such court, or any other court to which the case may be transferred for trial.
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