Table of Contents

Introduction................................................................................................................................................... 2

Warrant of Arrest - Definition ............................................................................................................... 3

Essentials of Warrant ............................................................................................................................ 3

Bailable Warrant of Arrest ...................................................................................................................... 5

Issuing a Warrant of Arrest .................................................................................................................... 7

Warrant To Whom Directed .............................................................................................................. 7

Warrant May Be Directed To Any Person .................................................................................... 9

Warrant Directed To Police Officer ............................................................................................. 11

Execution of Warrant of Arrest .......................................................................................................... 13

Notification of Substance of Warrant.......................................................................................... 13

Person Arrested To Be Brought Before Court Without Delay ......................................... 14

Where Warrant May Be Executed ................................................................................................ 15

Warrant For Execution Outside Jurisdiction ........................................................................... 16

Warrant Directed To Police Officer For Execution Outside

Jurisdiction .............................................................................................................................................. 19

Procedure after Execution of Arrest Warrant ............................................................................. 21

Arrest Of Person Against Whom Warrant Issued.................................................................. 21

Procedure By Magistrate .................................................................................................................. 22

Bibliography ............................................................................................................................................... 25
 Page |1

Table of Cases

 Asgar Ali v. Emperor…………………………………………………………… 11

 Bank of Bihar v. Emperor…………………………………………………… 14

 Banke Behari v. Emperor………………………………………………….… 8

 Chhotelal v. Emperor…………………………………………………………… 6

 Durga Charan v. Emperor…………………………………………………. 12

 Gabino Prasad v. State of West Bengal……………………………. 19

 Jugal Kishore v. C.P. Magistrate, Calcutta………………………… 18

 Jugan v. Chief Presidency Magistrate…………………………………. 4

 Kartick v. Emperor……………………………………………………………… 12

 Khemchand v. State…………………………………………………………… 22

 Kinhaseem v. State of Kerala……………………………………….…… 24

 Mangaram v. Emperor………………………………………………….…… 12

 Sayad Jajarul Hassan v. State……………………………………….…… 15

 State of West Bengal v. Jugal Kishore More……………….…….. 16

 State through CBI v. Dawood Ibrahim Kaska……………….…… 10

 Triuban v. Emperor……………………………………………………………… 14
 Page |2

Introduction

Chapter VI of the Code of Criminal Procedure relates to

Process to Compel appearance under which Part B of the Chapter

relates to Warrant of Arrest stretching from Section 70 to Section

81 of the Code.

A warrant of arrest is a written order issued and signed by a

magistrate and addressed to the police officer or some other person

specially named, and commanding him to arrest the body of the

accused person in it. The decision to issue or not to issue a warrant

involves a balancing of social interests with those of the individual

accused. If the accused person is likely to abscond and disobey a

summons, social interests would demand that he be arrested and

detained so that he can be effectively put on his trial. On the other

hand, the accused person would claim that he should not be

subjected to arrest and detention before his guilt is established is a

fair trial. The Code rightly assumes that these conflicting claims can

be best settled if the decision regarding arrest is made by a judge –

the judge being a person known for his ability and impartiality.1

1
Kelkar R. V., Criminal Procedure, 5th Ed., Eastern Book Comapany, Lucknow, 2012, p. 48
 Page |3

Warrant of Arrest - Definition

A warrant of arrest is a written authority given by a

competent magistrate for the arrest of a person. The warrant of

arrest must be writing and must have been signed and sealed by a

magistrate or court. It must clearly mention the name and other

particulars of the person to be arrested and must specify the

offence with which he is charged. The warrant must necessarily

show clearly the person to whom the authority to arrest has been

given.

The warrant contemplated in section 70 of the Code of

Criminal Procedure, 1970 is a warrant issued by Court in India and

that such warrant is executable at any place in India within or

without the local limits of the jurisdiction of the Court issuing the

warrant.2

Essentials of Warrant

Since the arrest on the strength of a warrant results in

deprivation of the personal liberty of the person arrested, the Court

2
Woodroffe Sir John, Commentaries on Code of Criminal Procedure, 2nd Ed., Vol. 1, Law Publishers (India)
Private Limited, Allahabad, 1994, p. 164
 Page |4

observe the formalities strictly in accordance with the law before

issuing such a warrant.3 Warrant of arrest shall be in such a form as

is prescribed in Form No. 2 of the second schedule of the Code of

Criminal Procedure. The following are the requisites of a valid

warrant:

1. It shall be in writing.

2. It shall be signed by the Presiding Officer of the court.

3. It shall bear the seal of the Court.

4. It shall bear the name and designation of the person who is to

execute it.

5. It must indicate clear name and address of the accused.

6. It must also state the offence with which the accused is charged.

7. It should indicate the date of issue.

A warrant once issued shall remain in force until it is

cancelled or executed even though it bears a returnable date. A

magistrate is competent to issue a warrant of arrest for production

of a person before his own court and not before a police officer.4

3
Jugan v. Chief Presidency Magistrate, AIR 1968 Cal. 220
4
Misra S. N., The Code Of Criminal Procedure, 12th Ed., Central Law Publications, Allahabad, 2005, p. 58
 Page |5

Bailable Warrant of Arrest

The warrant of arrest may include a direction that if the

person arrested under the warrant executes a bond and gives

security for his attendance in court, he shall be released. A warrant

with such a direction is commonly called a “Bailable warrant of

arrest”.5 Such provision has been provided under section 71 of the

Code of Criminal Procedure, 1973. It reads as follows:

“71. Power to direct security to be taken. - (1) 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 bond with sufficient sureties for his attendance

before the Court at a specified time and thereafter until

otherwise directed by Court, the officer to whom the warrant is

directed shall take such security and shall release such person

from custody.

(2) The endorsement shall state -

(a) the number of sureties;

5
Kelkar R. V., Criminal Procedure, 5th Ed., Eastern Book Comapany, Lucknow, 2012, p. 49
 Page |6

(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.

(3) Whenever security is taken under this section, the officer to

whom the warrant is directed shall forward the bond to the

Court.”

The provisions of sub-section (1) are only permissive and

not mandatory in nature. In this section, the Court has no power to

order the presence of the persons arrested in person before some

other authority but only direct the release of the person arrested on

executing a bond and lay down the condition for such release. 6 This

section empowers a Magistrate, in issuing warrant for the arrest of

any person, to direct that he shall be admitted to bail. A police

officer executing a bailable warrant is bound to give the person

arrested the option of the bail. This section provides for issue of

bailable warrant but does not empower the Court to order the

physical delivery of the arrested person to another. A non-bailable

warrant cannot be issued against an unwanted person. The power

of the Magistrate issuing bailable warrant should be exercised with

6
Chhotelal v. Emperor, AIR 1948 All. 72
 Page |7

due restraint and circumspection. Where the accused does not

appear in spite of executing the bond, order for re-arrest would be

proper.

Issuing a Warrant of Arrest

When a request in appropriate format is made to the court

for compelling the appearance of a person, the court either rejects

the request or issues a Warrant. Sections 72-74 of the Criminal

Procedure Code describe the persons to whom the warrants may be

directed or endorsed.

Warrant To Whom Directed

Section 72, exclusively, of the Code of Criminal Procedure

reads as follows:

“72. Warrant to whom directed. - (1) 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

 Page |8

to any other person or persons, and such person or persons shall

execute the same.

(2) 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.”

The general rule underlying this section is that a warrant of

arrest should ordinarily be directed to a Police Officer for execution

except when Police Officers are not available and there is some

urgency of immediate arrest of the accused. In such a situation the

warrant may be directed to any private person as well.

It was decided in Banke Behari v. Emperor7, that to avoid

administrative difficulty every warrant need not be issued in the

name of the concerned Police Officer but by his designation which

would not be illegal but a mere irregularity curable under Section

465 of the Code.

Sub-section (2) states that when a warrant is directed to

more officers or persons then one, it may be executed by all or by

one or more of them i.e. to say if any one of the persons to whom

7
AIR 1918 Pat. 613
 Page |9

the warrant is directed, the execution thereof will not be illegal

although the warrant was directed to several persons.8

Warrant May Be Directed To Any Person

Section 73 of the Code of Criminal Procedure reads as

under:

“73. Warrant may be directed to any person. - (1) 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.

(2) 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.

(3) 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

8
Sen, D. N., The Code of Criminal Procedure, Vol. I, Premier Publishing Company, Allahabad, 2004, p. 170
 P a g e | 10

Magistrate having jurisdiction in the case, unless security is taken

under section 71.”

It is evident from the above provision that the Code does

not contemplate the issue of a general warrant of arrest i.e. a

warrant to arrest all persons committing a particular offence or

offences, and it would be illegal to issue such a general warrant. 9 It

was held in State through CBI v. Dawood Ibrahim Kaska 10, that a

warrant cannot be issued by the Court for appearance of the

accused before the police in aid of investigation. It was held in the

same case that under section 73 it is possible for the investigating

agency to procure the presence of an accused evading arrest by

way of a warrant issued by a Magistrate and the magistrate can

require him to be available for investigation.

A warrant of arrest can only be issued on three

circumstances; (1) for the arrest of escaped convict, (2) for arrest

of proclaimed offender and (3) for arrest of any person who is an

accused of a non-bailable offence and is evading arrest. A

requisition for warrant of arrest must disclose existence of

involvement of accused in non bailable offence and that he is

9
Kelkar R. V., Criminal Procedure, 5th Ed., Eastern Book Comapany, Lucknow, 2012, p. 50
10
AIR 1997 SC 2494
 P a g e | 11

evading arrest. An order under Section 73 of the Code can be

passed only after taking into consideration the totally of the

circumstances thereof.11

Warrant Directed To Police Officer

Section 74 of the Code of Criminal Procedure reads as

under:

“74. Warrant directed to police officer. - 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.”

Section 74 deals with warrant directed to Police officer. It

may be executed by any other Police Officer whose name is

endorsed thereon by the officer to whom it is directed. In the case

of Asgar Ali v. Emperor12, where the copies of the warrant did not

establish any endorsement of arrest by the respondent police

officers and there was also no other document making an

endorsement by the Superintendent of Police under Section 36 of

11
Sohoni’s, The Code of Criminal Procedure, 1973, Vol. I, Premier Publishing Company, Allahabad, 2010, p. 169
12
AIR 1940 Bom 127
 P a g e | 12

Cr. P.C., it was held that there was clear violation of the procedure

established by law under Section 74 of Cr. P.C. in arresting the

petitioners.

The conditions for delegation by the Police Officer are that

the person to whom it is endorsed must also be a Police Officer and

that endorsing in favor of any person other than a Police Officer

such as a Process Server or a Watcher would be per se illegal. It is

evident that the endorsement made should only be by the Police

Officer to whom the warrant has been directed and not by any other

Police Officer.13 It is also the requirement of law that endorsement

must bear the signatures of the Police Officer endorsing the warrant

and it must appear on the warrant itself. It is further not necessary

that the official designation of the endorsee must also appear on the

endorsement.14 Although full signatures of the Police Officer making

the endorsement are desirable, the endorsement made under initial

will not itself render the warrant invalid.15

13
Durga Charan v. Emperor, ILR 27 Cal. 457
14
Kartick v. Emperor, AIR 1932 Pat 171
15
Mangaram v. Emperor, AIR 1931 Sindh 89
 P a g e | 13

Execution of Warrant of Arrest

Execution of the warrant of arrest has been described in

various aspects under sections 75-79 of the code.

Notification of Substance of Warrant

Starting from section 75 of the Code, it reads as follows:

“75. Notification of substance of warrant. – 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.”

The requirements of the section should be deemed to have

been applied with if the person to be arrested had reasonable

opportunity of knowing about the charge for which he is being

arrested and the Court before which he was to appear. If the

Executing Officer shows the warrant to the person in the first

instance and allows him to read it out and also informs him of his

right to secure bail, the subsequent arrest would not be illegal

simply because the substance of warrant was not notified separately

 P a g e | 14

to him.16 It is, However, not the requirement of law that in every

case the Executing Officer is to show the warrant of arrest to the

person arrested unless such person so demands.17 Where a person

entrusted to execute a warrant fails to comply with the

requirements of the section the arrest would be illegal.18

Person Arrested To Be Brought Before Court Without

Delay

Section 76 of the Code of Criminal Procedure reads as

under:

“76. Person arrested to be brought before Court without

delay.– The Police Officer or other person executing a warrant of

arrest shall (subject to the provisions of Section 71 as to

security) without unnecessary delay bring the person arrested

before the Court before which he is required by law to produce

such person:

16
Bank of Bihar v. Emperor, AIR 1918 Pat 613
17
Triuban v. Emperor, AIR 1918 Oudh 162
18
Sohoni’s, The Code of Criminal Procedure, 1973, Vol. I, Premier Publishing Company, Allahabad, 2010, p. 172
 P a g e | 15

Provided 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.”

This section should be read together with Section 71 which

deals with arrest in execution of a bailable warrant. It states that

the person arrested in execution of the arrest warrant shall be

produced before the court issuing the warrant within twenty four

hours of arrest excluding the time utilized during journey from the

place of arrest to the court. The person arrested in execution of a

warrant even outside the limit of jurisdiction of the Court issuing the

warrant should be brought back and produced before the Court

which issued the warrant of arrest.19

Where Warrant May Be Executed

Section 77 of the Code of Criminal Procedure reads as

under:

“77. Where warrant may be executed. - A warrant of arrest may

be executed at any place in India.”

19
Sayad Jajarul Hassan v. State, AIR 1986 Pat 194
 P a g e | 16

Section 77 only declares that, every warrant issued by any

Magistrate in India may be executed at any place in India.

Execution of the warrant is not restricted to the local limits of the

jurisdiction of the Magistrate issuing these warrants or of the Court

to which he is subordinate.

Although the Code, specifically, does not provide for

execution of a warrant outside India, a subject governed by the

provision of the Extradition Act. It has been held by the Supreme

Court in the case of State of West Bengal v. Jugal Kishore More,20

that where the accused were reportedly hiding at Hong Kong, the

Magistrate was authorized to issue a warrant and send it for

execution to the authorities of Hong Kong through the Ministry of

External Affairs, Government of India.

Warrant For Execution Outside Jurisdiction

Section 78 of the Code of Criminal Procedure reads as

under:

“78. Warrant forwarded for execution outside jurisdiction. –

(1) When a warrant is to be executed outside the local

20
AIR 1969 SC 1171
 P a g e | 17

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.

(2) 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 81 to decide whether bail should or should not be granted

to the person.”

This section provides for arrest of a person beyond the local

limits of jurisdiction of the Court issuing the warrant in some place

within India but does not extend to the execution outside India.

Section 78 does not impose any obligation on the Magistrate who

had issued warrant to get the warrant forwarded to either the

Executive Magistrate or the District Superintendent of Police within

 P a g e | 18

the local limits of whose jurisdiction the warrant is to be executed.

It was held by the Calcutta High Court in Jugal Kishore v. C.P.

Magistrate, Calcutta,21 that the term “outside the jurisdiction” has

reference to India. A Magistrate has no jurisdiction to issue warrant

of arrest to be executed outside India.

The Code of Criminal Procedure provides for two

alternatives to be adopted by the Court issuing warrant to be

executed outside the local limits of its jurisdiction:

1. The Court may, instead of directing such warrant to police

officer, forward the same 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

2. He may direct a warrant to a police officer exercising powers

within the local limit of his jurisdiction for execution. 22

According to sub-section (2) of Section 78, a bail under the

proviso to Section 81 can be granted where the person has been

arrested in execution for warrant issued under Section 78. It has

21
AIR 1968 Cal. 220
22
Batuk Lal, Code of Criminal Procedure, 2nd Ed., Central Law Agency, Allahabad, 2010, p. 312
 P a g e | 19

been held in the case of Gabino Prasad v. State of West Bengal,23

that when a person arrested in Calcutta by Punjab Police with the

help of Calcutta Police, the Chief Metropolitan Magistrate, Calcutta

has the jurisdiction to grant him bail, if he is concerned in a bailable

offence.

Warrant Directed To Police Officer For Execution

Outside Jurisdiction

Section 79 of the Code of Criminal Procedure reads as

under:

“79. Warrant directed to police officer for execution outside

jurisdiction. - (1) 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.

(2) Such Magistrate or police officer shall endorse his name

thereon and such endorsement shall be sufficient authority to the

23
1975 Cr.L.J. 1249
 P a g e | 20

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.

(3) 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 whom it is

directed may execute the same without such endorsement in any

place beyond the local jurisdiction of the Court which issued it.”

When a warrant is directed to a police officer to be executed

beyond the local jurisdiction of the Court issuing the same, he has

to obtain an endorsement of Magistrate or the officer-in-charge of a

police station within the local limits of whose jurisdiction the

warrant is to be exercised. But in the special circumstance

envisaged in sub-section (3) of the section, in order to avoid delay,

he may directly execute the warrant without waiting for such

endorsement.24

24
Sen, D.N., The Code of Criminal Procedure, Vol. I, Premier Publishing Company, Allahabad, 2004, p. 177
 P a g e | 21

Procedure after Execution of Arrest Warrant

The above said procedure has been described in section 80

and 81 of the code.

Arrest Of Person Against Whom Warrant Issued

Section 80 of the Code of Criminal Procedure reads as

under:

“80. Procedure of arrest of person against whom warrant

issued. - 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 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 71, be taken before such

Magistrate or District Superintendent or Commissioner.”

This section pertains to person if arrested beyond territorial

jurisdiction of issuing Court. When a person is arrested in execution

of a warrant issued by a Court beyond the territorial limits of its

 P a g e | 22

jurisdiction, he must be produced before the issuing Court where it

is within thirty kilometers of the place of arrest or nearer than the

Executive Magistrate or District Superintendent of Police or the

Commissioner of Police within whose jurisdiction he is arrested and

in other cases before the Executive Magistrate or the

Superintendent of Police of the District Commissioner of the Police

as the case may be.25

Procedure By Magistrate

Section 81 of the Code of Criminal Procedure reads as

under:

“81. Procedure by Magistrate before whom such person

arrested is brought. - (1) 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 :

Provided that if the offence is bailable, and such person is ready

and willing to give bail to the satisfaction of such Magistrate,

25
Khemchand v. State, 1971 Cr.L.J. 149
 P a g e | 23

District Superintendent or Commissioner, or a direction has been

endorsed under section 71 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 or security, as the case may be, and forward the

bond, to the Court which issued the warrant:

Provided further that if the offence is a non-bailable one, it shall

be lawful for the Chief Judicial Magistrate (subject to the

provisions of section 437), or the Sessions Judge, of the district

in which the arrest is made on consideration of the information

and documents referred to in sub- section (2) of section 78, to

release such person on bail.

(2) Nothing in this section shall be deemed to prevent a police

officer from taking security under section 71.”

The word ‘shall’ occurring in this section, as per needs, is

mandatory in nature and not merely directory. In view of the

expression “the person arrested appears to be the person intended,

makes it clear that when the person arrested is brought before a

Magistrate, no elaborate enquiry contemplated under Section 187 of

the Code is called for although the Magistrate is to be satisfied

 P a g e | 24

prima facie about the identity of the person arrested as mentioned

in the warrant.”26 However, the Magistrate is in some doubt as to

the correct identity of the person arrested, he will be at a liberty to

release the person without forwarding him in custody to the Court

issuing the warrant, that is to say vagueness regarding the identity

of the person arrested will entitle the Magistrate to release him and

not to forward him in custody to the Court issuing the warrant.

It is clear that by the virtue of the section proviso to sub-

section (1) bail can be granted by the concerned authority to the

person arrested on the strength of a non-bailable warrant. The

second proviso to section 81 (1), however, empowers the Chief

Judicial Magistrate say, Sessions Judge of the District in which the

arrest is made to grant bail after considering the information

available and the document referred to in the sub-section (2) of

Section 78. Such power is available when the person arrested is

accused of a non-bailable offence and can be executed by the

Sessions Judge or the Chief Judicial Magistrate in appropriate

cases.27

26
Kinhaseem v. State of Kerala, (1962) 1 Cr.L.J. 645
27
Sohoni’s, The Code of Criminal Procedure, 1973, Vol. I, Premier Publishing Company, Allahabad, 2010, p. 178
 P a g e | 25

Bibliography

 Woodroffe Sir John, Commentaries on Code of Criminal Procedure,

2nd Ed., Vol. 1, Law Publishers (India) Private Limited, Allahabad,
1994.

 Sen, D. N., The Code of Criminal Procedure, Vol. I, Premier

Publishing Company, Allahabad, 2004.

 Sohoni’s, The Code of Criminal Procedure, 1973, Vol. I, Premier

Publishing Company, Allahabad, 2010.

 Batuk Lal, Code of Criminal Procedure, 2nd Ed., Central Law Agency,
Allahabad, 2010.

 Kelkar R. V., Criminal Procedure, 5th Ed., Eastern Book Comapany,

Lucknow, 2012.

 Misra S. N., The Code Of Criminal Procedure, 12th Ed., Central Law
Publications, Allahabad, 2005.

 Universal’s Criminal Manual, Universal Law Publishing Co., New

Delhi, 2013.

 http://en.wikipedia.org/wiki/Arrest_warrant

 http://hanumant.com/CrPC-Unit2-Warrant.html