Law and You >Procedural Laws > BNSS > Warrant of Arrest (Ss. 72 to 83 BNSS)

Chapter VI of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the processes to compel appearance of the accused or witness in the court. The Court can compel the person to be present in the Court using summons, warrant of arrest, or proclamation and attachment. In this article let us discuss provisions related to warrant of arrest in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Warrant:

A warrant is a written instrument issued by the Judge or Magistrate on behalf of the state which authorizes the arrest and detention of an individual or the search and seizure of an individual’s property.

Objectives of Warrant:

Under the Bharatiya Nagarik Suraksha Sanhita, 2023, warrants serve several important objectives in the context of criminal proceedings. Here are the key objectives of warrants:

• Compelling Appearance: A warrant is issued by a court to compel the appearance of an accused, witness, or any other person whose presence is required before the court. It ensures that individuals involved in legal proceedings attend court hearings as mandated by law.
• Enforcement of Orders: Warrants enforce the orders of the court. When a person fails to comply with a summons or other court directive, a warrant may be issued to secure their presence or to enforce compliance with court orders, such as the production of documents or evidence.
• Execution of Arrests: Warrants are used to effectuate arrests in cases where an accused person needs to be brought before the court. This includes situations where the accused has evaded arrest, absconded, or is deemed a flight risk.
• Ensuring Fair Trial: Warrants play a crucial role in ensuring the fair trial of accused persons by securing their presence during trial proceedings. This facilitates the examination of evidence, witnesses, and allows for the accused to defend themselves effectively.
• Preventing Evasion of Justice: Warrants help prevent the evasion of justice by individuals who may attempt to avoid legal proceedings or escape the consequences of their actions. Issuing a warrant ensures that such individuals are brought before the court to face trial.
• Judicial Accountability: The issuance of warrants underscores the accountability of the judiciary in enforcing court orders and maintaining the integrity of legal processes. It demonstrates the authority of the court to ensure compliance with its directives.
• Legal Process Efficiency: Warrants contribute to the efficiency of the legal process by expediting the attendance of necessary parties and preventing delays caused by non-appearance or evasion.

Warrants serve to uphold the principles of justice, ensure the presence of individuals involved in legal proceedings, and maintain the integrity and efficiency of the criminal justice system.

Types of Warrant under BNSS:

Under the Bharatiya Nagarik Suraksha Sanhita, 2023, there are primarily two types of warrants issued by courts for different purposes. These are:

Arrest Warrant (Section 72 of BNSS):

• Bailable Warrant: This type of warrant is issued when the offense is bailable, meaning the accused can be released on bail after arrest.
• Non-Bailable Warrant: This type of warrant is issued when the offense is non-bailable, meaning the accused cannot be released on bail immediately after arrest, and they must be produced before a magistrate.

Search Warrant (Section 96 of BNSS):

This warrant is issued by a magistrate when it is necessary for the purposes of investigation to search any place, including a dwelling house, where any document, article, or thing which is likely to be evidence of an offense is kept.

These different kinds of warrants are crucial tools in the hands of the judiciary and law enforcement authorities to ensure the proper administration of justice and to facilitate investigations and trials in criminal cases. Each type of warrant serves specific purposes related to the arrest of accused persons or the search of premises to gather evidence.

Warrant of Arrest:

If a person commits a cognizable crime or is a habitual offender or an ex-convict, it is not in the public interest that such a person should be moving around freely. In such case a warrant of arrest of such person is issued.

Warrant of Arrest is a written order issued by a Court to a police officer to arrest 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. Sections 72 to 83 of Chapter VI of BNSS deal with the warrant of arrest.

In State v. Dawood Ibrahim Kaskar, AIR 1997 SC 2494 case, the Supreme Court held that, even in the course of investigation and before taking the cognizance of the case warrant can be issued.

Form of Warrant of Arrest and Duration (S. 72 BNSS):

• According to Section 72(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 every warrant of arrest issued by a Court under this Sanhita shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.
• According to Section 72(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

As per the section 72 of BNSS, the essentials of a warrant are as follows:

• The warrant is to be in writing;
• It must be signed by a presiding officer of Court issuing it; and
• It must bear the seal of the Court;.

Besides above requirements, warrant must contain following information:

• It must bear the name and designation of the executant of such warrant;
• It must indicate the clear name and address of the accused;
• It must state the offence with which the accused is charged;
• It must indicate date of issue; and
• It must indicate the date of appearance.

Notes:

• The word used person in this chapter means warrant may be issued to arrest accused or witness.

Kinds of Warrants of Arrest:

Bailable Warrant:

• A bailable warrant directs the police to arrest a person and produce him before the court. The person has the option to secure bail upon arrest, either by executing a bond with sureties or by simply signing a personal bond.
• These warrants are generally issued in cases where the offense is bailable, meaning the arrested person has the right to seek bail and be released until trial.
• Section 73 of BNSS deals with bailable wararnts.

Non-Bailable Warrant:

• A non-bailable warrant directs the police to arrest a person and produce him before the court. In such cases, the arrested person does not have the option to secure bail from the police officer who executes the warrant. Bail can only be granted by a competent court.
• These warrants are typically issued in cases involving non-bailable offenses or when the court believes that the person may evade the judicial process or tamper with evidence if not taken into custody.

Differences between Bailable Warrant and Non-Bailable Warrant:

Bailable Warrant	Non-Bailable Warrant
It is issued for bailable offenses where the accused has a statutory right to be released on bail.	It is issued for non-bailable offenses or in situations where the court feels that the person might not comply with the summons or other orders.
The accused can be released on bail by the arresting officer upon fulfilling the bail conditions.	Bail can only be granted by the court, and the arresting officer does not have the authority to release the person on bail.
Bailable warrant are generally associated with less severe offenses.	Non-bailable warrant is associated with more severe offenses or when there is a need to ensure the presence of the accused in court.
It ensures that the accused appears in court while allowing them the liberty to remain free during the trial process.	It ensures that the accused is taken into custody to secure their presence in court, particularly when there is a risk of evasion or non-compliance with court orders.

In Shaik Yousuf v. State of Andhra Pradesh, 2001(2) ALT (Crl) 270 (AP) case, the Court held that a warrant once issued remains in force until it is cancelled or executed even though it bears returnable date.

In Raghuvansh Divanchand Bhasin v. State of Maharashtra AIR 2011 SC 3393 case, where the accused fails to appear before the court on date fixed due to traffic condition in metropolitan city, the trial court issued a non-bailable warrant against him. The Supreme Court held that the Court should not issue a non-bailable warrant mechanically arbitrarily without ascertaining the cause of non-appearance. Mere issuing a non-bailable warrant in such circumstances without considering all the aspects would not be a judicious exercise of such powers.  

In Inder Mohan Gowswamy v. State of Uttaranchal, AIR 2008 SC 251 case, the Supreme Court held that Non-bailable warrant normally not to be issued if presence of accused could be secured. It is further held that, issuance of Non-bailable warrant   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 non- bailable warrants. The Court further held that non-bailable warrant should be issued to bring the person to court when   summons   and   bailable   warrant   would   be   unlikely   to   have   the desired result. This could be reasonable to believe that the person willing to appear in court or the Police authorities are unable to find the person to serve him with summons or it is considered that the person could harm someone if not placed into custody immediately. The Court observed that some times in the larger interest of the public and the State it becomes absolutely imperative to curtail the freedom of individual for a certain period, only then non-bailable warrants should be issued. The Court also opined that summons should be preferred over warrants and bailable warrants should be preferred over non-bailable warrants. 

In Arun Kumar   v.   State   of   Maharashtra, Writ   Petition   no. 4429/2013 case, the Bombay High Court held   that,   the appearance of the applicant / accused is not necessary for cancellation of warrant.  It is held that there is no law that the accused shall personally remain present for cancellation of warrant.  When an application is made for cancellation of warrant, the same needs to be considered on merits without insisting for appearance of the accused.

Power to Direct Security to be Taken (S. 73 BNSS):

• According to Section 73(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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 bail 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.
• According to Section 73(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 the endorsement shall state—

(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.

• According to Section 73(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court.

As per Section 73 of BNSS, any court issuing a warrant for the arrest of any person may in its discretion direct by an 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. The endorsement shall state the number of sureties, amount in which they and the person for whose arrest warrant issued, are to be respectively bound, the time at which he is to attend before the court. Whenever security is taken under this section, the officer whom warrant is directed shall forward the bond to the court.

In Karim Shah v. State of UP, 2008 Cr LJ 2974 case, the Court held that after the accused has been taken into custody, the liabilities if sureties comes to an end. If subsequently he absconds from the custody of the court the sureties cannot be held liable.

Warrants to whom Directed (S. 74 of BNSS):

• According to Section 74(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.
• According to Section 74(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.

According to Section 74 of BNSS, a warrant may be directed to the police officer or any person. If it is directed to more officers or persons than one, then warrant may be executed by all, or by any one or more of them.

Warrant may be Directed to any Person (S. 75 of BNSS):

• According to Section 75(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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 75(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.
• According to Section 75(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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 73.

Warrant under this Section can only be issued by the Chief Judicial Magistrate or a Magistrate of the first class. This warrant can be directed to any person within his local jurisdiction. Such warrant can only be issued 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.

In State v. Dawood Ibrahim Kaskar, AIR 1997 SC 2494 case, the Supreme Court held that Under Section 73 CrPC (S. 75 of BNSS) a warrant of arrest cannot be issued by the court solely for production of accused before the police in aid of investigation.

Warrant Directed to Police Officer (S. 76 of BNSS):

• According to Section 76 of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.

Notification of Substance of Warrant (S. 77 of BNSS):

• According to Section 77 of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.

Person Arrested to be Brought before Court without Delay (S. 78 of BNSS):

• According to Section 78 of the Bharatiya Nagarik Suraksha Sanhita, 2023 the police officer or other person executing a warrant of arrest shall (subject to the provisions of section 73 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.
• The Proviso attached to Section 78 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down 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

Where Warrant may be Executed (S. 79 of BNSS):

• According to Section 79 of the Bharatiya Nagarik Suraksha Sanhita, 2023 a warrant of arrest may be executed at any place in India.

In State of West Bengal v. Jugal Kishore, AIR 1969 SC 1171 case, the Supreme Court observed that the Section only declares, in that, every warrant issued by a Magistrate in India may be executed at any place in India; execution of warrant is not restricted to the local limits of jurisdiction of the Magistrate issuing the warrant or of the court to which he is subordinate.

Warrant Forwarded for Execution Outside Jurisdiction (S. 80 of BNSS):

• According to Section 80(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.
• According to Section 80(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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 83 to decide whether bail should or should not be granted to the person.

The provisions of Sections 80 to 83 of BNSS prescribe in detail the procedure to be adopted for execution of warrant outside the local limits of jurisdiction of the court issuing the same.

Warrant Directed to Police Officer for Execution Outside Jurisdiction (S. 81 of BNSS):

• According to Section 81(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.
• According to Section 81(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.
• According to Section 81(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.

Procedure on Arrest of Person Against Whom Warrant Issued (S. 82 of BNSS):

• According to Section 82(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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 kilometres 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.
• According to Section 82(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 on the arrest of any person referred to in sub-section (1), the police officer shall forthwith 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.

Procedure by Magistrate Before Whom Such Person Arrested is Brought (S. 83 Of BNSS):

• According to Section 83(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.
• The first Proviso attached to Section 83(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down that, if the offence is bailable, and such person is ready and willing to give bail bond to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under section 73 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 bond or security, as the case may be, and forward the bond, to the Court which issued the warrant.
• The second Proviso attached to Section 83(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 further lays down that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of section 480), 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 80, to release such person on bail.

According to Section 83(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 nothing in this section shall be deemed to prevent a police officer from taking security under section 73.

Conclusion:

Warrants of arrest under the Bharatiya Nagarik suraksha sanhita, 2023 (BNSS) are crucial instruments in the Indian legal system, designed to ensure the appearance of individuals in court and uphold the administration of justice. Bailable warrant allows the accused to be released on bail upon arrest, generally issued for less severe, bailable offenses. This warrant balances the need to secure the accused’s presence in court with their right to liberty. Non-bailable warrant requires the accused to be produced before the court without the option of bail from the arresting officer, typically issued for more serious, non-bailable offenses. This warrant is vital for preventing evasion of the judicial process and ensuring compliance with court orders.

Understanding the nature and purpose of warrants highlights their role in maintaining legal order and protecting both individual rights and societal interests. The judicial system uses these tools judiciously to balance enforcement and fairness, ensuring that justice is both served and seen to be served.

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