Warrant

From Justice Definitions Project

What is ‘Warrant’

A warrant refers to a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is performed.[1] It authorizes the law enforcement personnel to make an arrest, a seizure, or a search or to other acts related to the administration of justice.[2]

Official Definition

‘Warrant’ has not been defined under the Code of Criminal Procedure, 1973, or the Bharatiya Nagarik Suraksha Sanhita, 2023.

Legal Provisions Relating to Warrant

Under the CrPC, the issuance of a warrant of arrest is detailed in Section 70 to Section 81 (Section 72 to 83 in BNSS).[3] It prescribes the form of arrest warrant and duration along with other necessary requirements to whom directed and against whom it will be executed. While both BNSS and CrPC govern the issuance and execution of warrants, BNSS introduces flexibility in directing warrants to individuals beyond police officers, empowering even Executive Magistrates for warrant execution.

Key provisions related to warrants under BNSS in this context.[4]

Form of Warrant and Duration (Section 72): Section 72 of BNSS outlines the form and duration of a warrant of arrest. Every warrant must be in writing, signed by the presiding officer, and bear the court's seal. Such a warrant remains in force until canceled by the issuing court or executed.

Power to Direct Security (Section 73 of BNSS): BNSS grants the court the power to direct security in lieu of arrest. If a person executes a bond with sufficient sureties for attendance, the court may endorse this on the warrant. The endorsed warrant allows the officer to take security and release the person from custody.

Warrants to Whom Directed (Sections 74 and 75 of BNSS): A warrant of arrest is ordinarily directed to one or more police officers (Section 74). However, if immediate execution is necessary and no police officer is available, BNSS allows the court to direct it to any person, and such person shall execute the warrant (Section 75).

Warrant Directed to Police Officer (Section 76 of BNSS): A warrant directed to a police officer can 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 (Section 77 of BNSS): Executing officers are mandated to notify the substance of the warrant to the person to be arrested and show the warrant if required.

Prompt Appearance Before Court (Section 78 of BNSS): Officers executing a warrant must promptly bring the arrested person before the court, subject to the provisions of section 73 of BNSS regarding security. The delay should not exceed twenty-four hours, excluding the time necessary for the journey from the place of arrest to the court.

Execution Anywhere in India (Section 79 of BNSS): A warrant of arrest issued under BNSS can be executed at any place in India.

Execution Outside Jurisdiction (Sections 80, 81, and 82 of BNSS): When a warrant is to be executed outside the local jurisdiction, BNSS provides procedures for forwarding it to an Executive Magistrate or District Superintendent of Police. If the arrest is made beyond the district, the person arrested is taken before the Magistrate or Superintendent of Police of the district in which the arrest occurred.

Procedure by Magistrate After Arrest (Sections 83 of BNSS): The Executive Magistrate or District Superintendent, upon the person's arrest, directs removal to the court issuing the warrant. If the offence is bailable, the Magistrate can take bail or security, and if non-bailable, the Chief Judicial Magistrate or Sessions Judge may release the person on bail.


Further, Section 87 of CrPC states the issuance of a warrant of arrest in lieu of, or in addition to, summons and Section 89 for arrest warrant on breach of bond for appearance.[5] Section 93 to Section 101 states the issuance of a search warrant to search any place or person.[6] In addition to this, CrPC covers the issuance of warrants for the execution of sentences, fine, attachment, etc.[7]

Warrant under Code of Civil Procedure

Order XXI Rule 37 of Civil Procedure Code, 1908 allows a civil court to issue a warrant for the arrest and detention of a judgment debtor who fails to appear or satisfy a court decree.[8] Thus, a warrant of arrest can be issued by a civil court to order the compliance of the served notice of appearance or for the execution of a decree.

Types of ‘Warrant’

In CrPC, there are majorly four types of warrants issued by courts:

Arrest Warrant-

The arrest warrant is issued by a Court authorizing the arrest and custody of a person accused of committing a specific offence. It shall be in writing accompanied by a sworn affidavit.[9] All warrants must contain the details of every description like father’s name, caste, nationality, residence, etc.[10] It can be directed against a person who is an escaped convict, proclaimed offender or accused of a non-bailable offense and is evading arrest.[11] This warrant remains in force until it is cancelled by the Court which issued it or until it is executed.

A warrant of arrest can be either a bailable warrant or a non-bailable based on the nature of offence and other relevant factors. A bailable warrant allows the accused to furnish bail sureties and be released from custody until the trial whereas a non-bailable warrant does not permit the accused to be released on bail.[12]

Search Warrant-

The search of any place, person, things, premises can be done by the law enforcement agencies only after the issuance of a search warrant by the court. The police officer executing the warrant may search any person in or about such a place for the purpose of inquiry, trial or any other proceedings.[13]

Bench Warrant-

A Bench warrant is an alternative to an arrest warrant. When a defendant fails to appear before a scheduled court appearance or fails to comply with a court order, a bench warrant is issued to bring the person before the court.[14] It is also known as alias warrant.[15] In the UK practice, this warrant is also called Failure to appear (FTA) warrant.[16]

Execution Warrant-

An Execution warrant is also known as the death warrant or black warrant.[17] It authorizes the implementation of a death sentence against a person convicted of a capital crime.[18] It specifies the time and location for the execution. Every warrant for the execution of a sentence may be issued either by the Judge or Magistrate who passed the sentence or by his successor-in-office.[19]

Transfer Warrant-

A Transfer warrant also known as a Production warrant is issued against a prison inmate. It allows the production of the prisoner before the Court that issued the warrant for the purposes of inquiry, trial or proceedings.[20] Pursuance to the issue of the warrant, the officer in charge of the prison produces the person before the said court.

Endorsed Warrant-

An endorsed warrant under the Extradition Act, 1962 (India) refers to a warrant issued by a foreign country that is authenticated and endorsed by Indian authorities to facilitate the arrest and extradition of a fugitive.

Case Laws on ‘Warrant’

V.S. Kuttan Pillai v. Ramakrishnan & Anr.[21]

The Supreme Court held that the issue of search warrant is a discretionary power of the Magistrate and therefore, it cannot be exercised arbitrarily without application of mind while granting the search warrant.

Satender Kumar Antil v. Central Bureau of Investigation & Anr.[22]

The Supreme Court observed that warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to serious consequences and ramifications which ensue of issuance of warrants.

Inder Mohan Goswami & Another vs State Of Uttaranchal & Others[23]

In this case, the Supreme Court examines S. 87 CrPC which gives the discretion to the court to issue a warrant, either in lieu of or in addition to summons. It held that the courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant and then only  a non-bailable warrant can be issued with recording of reasons.

Vikas v. State of Rajasthan[24]

The SC held that the court should issue first summons or bailable warrants, failing which it should non-bailable warrants. The discretion to issue NBW should be exercised in a judicious manner and not routinely. The court must balance the personal liberty of a person with societal interest considering the facts of each case and by following the tenets of fair trial under Article 21 of the Constitution.

Raghuvansh Dewanchand Bhasin v. State of Maharashtra & Anr.[25]

The Supreme Court in this case issued several guidelines to prevent the misuse of an arrest warrant where non-bailable warrants are issued. The court is striking a balance between individual’s rights, liberties and privileges on the one hand and State as representative of the community/polity on the other hand.

(a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No.2 for issuing warrant of arrest and each such form is duly accounted for;

(b) Before authenticating, the court must ensure that complete particulars of the case are mentioned on the warrant;

(c) The presiding Judge of the court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon;

(d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein;

(e) Every Court must maintain a register, in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process;

(f) No warrant of arrest shall be issued without being entered in the register mentioned above and the concerned court shall periodically check/monitor the same to confirm that every such process is always returned to the court with due report and placed on the record of the concerned case;

(g) A register similar to the one in clause (e) supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution;

(h) Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long;

(i) On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the 1 concerned Police Station or the Officer In-charge of the concerned agency;

(j) The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse;

(k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and (l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused.

Jagdish Narain Bajpai v. Emperor and Ors. (Allahabad High Court)[26]

The Allahabad HC defined warrant of arrest as an order directed to someone to arrest a certain accused and bring him before the court. The warrant may have a further provision of admitting the accused to bail.

International Experiences

United States of America

In the USA practice, the warrant becomes an outstanding warrant when the law enforcement officer is unable to locate the subject of a warrant. The information contained on the warrant and identifying information pertaining to that person is entered into local, state or national record management systems or computerized wanton person files.[27] This information is shared in the jurisdictions for the purpose of public safety. On the other hand, in India, if any person against whom warrant cannot be executed because either he is absconding or concealing himself, then the court can publish a written proclamation in public knowledge requiring his presence at the specified place.[28] This proclamation is published or read where the person ordinarily resides or a copy can thereafter be affixed to the Court-house or the court may publish it in a daily newspaper circulating in the place where the person ordinarily resides. Unlike in India, the process flow of sharing warrant information in the USA is more systemized which involves multiple agencies and a database system.

References

  1. ↑ https://www.ncsc.org/wdmtoolkit/business-processes/warrant-process-flow/warrant-types#:~:text=%22Warrant%22%20refers%20to%20a%20specific,if%20the%20act%20is%20performed
  2. ↑ https://www.law.cornell.edu/wex/warrant
  3. ↑ CrPC Form no. 2 Schedule II, S. 70 to S. 81; BNSS Cl. 72 to 83.
  4. ↑ https://www.myjudix.com/post/warrant-under-bnss-bharatiya-nagarik-suraksha-sanhita
  5. ↑ CrPC S. 87 and S. 89; BNSS Cl. 90 and Cl. 92.
  6. ↑ CrPC S. 93 to S. 101; BNSS Cl. 96 to Cl. 104.
  7. ↑ CrPC S. 366, 250, 125, 122, 421, 446, 442, 146, 209, 248, 250, 309, 386; BNSS Cl. 407, 273, 144, 141, 461, 491, 487, 165, 232, 271, 273, 346, 427.
  8. ↑ CPC Rule 37, Order XXI.
  9. ↑ CrPC Form no. 2 Schedule II, S. 70.
  10. ↑ https://highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol-iv-pdf/Volume%20IV,%20Chapter%208%20Part%20B.pdf
  11. ↑ CrPC S. 73.
  12. ↑ https://www.crpc.in/know_your_rights.html#:~:text=It%20is%20a%20written%20order,shall%20show%20him%20the%20warrant
  13. ↑ CrPC Form no. 10 and 11 Schedule II, s. 93
  14. ↑ CrPC, S. 87 and S. 89.
  15. ↑ https://www.bigfishbailbonds.us/what-is-an-alias-warrant/
  16. ↑ https://assets.publishing.service.gov.uk/media/5f6b2364e90e077ca433504c/fta_bulletin_apr_jun_2020.pdf
  17. ↑ https://fireflieslegal.com/what-is-black-warrant-form-no-42-under-crpc/#:~:text=It%20is%20also%20known%20as,of%20a%20Sentence%20of%20Death
  18. ↑ CrPC Form no. 42 Sch. II, S. 413 and 414.
  19. ↑ CrPC S. 425.
  20. ↑ CrPC S. 267.  
  21. ↑ https://indiankanoon.org/doc/68260/
  22. ↑ https://www.livelaw.in/pdf_upload/577-satender-kumar-antil-v-central-bureau-of-investigation-11-july-2022-425458.pdf
  23. ↑ https://indiankanoon.org/doc/855018/
  24. ↑ https://indiankanoon.org/doc/57288311/
  25. ↑ https://wbja.nic.in/wbja_adm/files/Supreme%20court%20guidelines%20in%20issuing%20non-bailable%20warrants.pdf
  26. ↑ https://indiankanoon.org/doc/576986/
  27. ↑ https://www.ncsc.org/wdmtoolkit/business-processes/warrant-process-flow
  28. ↑ https://www.justice.gov/eoir/page/file/1293671/dl#:~:text=If%20any%20Court%20has%20reason,specified%20place%20and%20at%20a
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