Types of “Warrants” in Criminal Law in India

The basic meaning of warrant is a document signed by a legal or government representative granting permission for the police or another organization to conduct a search or make an arrest as part of the administration of justice.

Section 70 of CrPC

Form of warrant of arrest and duration.

(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed

The elements of a warrant for an arrest are described in Section 70 of the Criminal Procedure Code. Each warrant of arrest issued by a Court in accordance with this Section must be in written and bear the presiding officer’s signature. The same court that issued the warrant’s seal should be on it as well. A warrant for an arrest is valid until it is either executed or it is revoked by the court that issued it in the first place. The form of an arrest warrant is shown on Form No. 2 of the Second Schedule.

Requirement to issue a warrant

The following are the requirements that are to checked off to issue a legal order of arrest.

1. The warrant of arrest must be in writing.

2. The warrant must state the name and the designation of the individual who is to execute the order.

3. The warrant must give the full name and the description of the person who is to be arrested.

4. The warrant must state the offence charged on the individual.

5. The presiding officer must sign the warrant of arrest.

6. The warrant of arrest must be sealed.

Typically, an arrest warrant is not issued for the police officer but rather for the protection of a person in front of the relevant court. A police officer or another person authorized to execute an arrest warrant must present the arrested person to the Court in accordance with Section 76 of the CrPC. The restrictions of Section 71’s security measures apply to the arrest. Without further delay, the arrested person must be brought before the court. If there is a delay, it must be ensured that it will never go above 24 hours, not counting the time needed to travel from the place of arrest to the Magistrate’s Court.

Search Warrant

Section 93 to Section 97 of CrPC

According to Section 93, a search warrant may be issued in any of the following circumstances.

1. When a court has cause to suspect that someone who has been asked to produce something is not going to do it.

2. In a situation where the Court is unaware that a particular person is in possession of a particular item or document.

3. In the event that a general examination or search is necessary. A search warrant, however, may be generic or specific in that it pertains to any location or a specific area inside.

However, unless specifically directed by a separate District Magistrate or a Chief Judicial Magistrate, a search warrant shall not be obtained for searching a document, parcel, or any other material in the possession of the authorities of the postal or telegraph service. In addition, if the search warrant would violate Sections 123 and 124 of the Indian Evidence Act of 1872 or the Bankers’ Book Evidence Act of 1891, no search warrant would be allowed.

Bailable Warrant and Non Bailable Warrant

Due to the extremely serious implications and ramifications that result from the issuance of warrants, whether they are bailable or not, they should never be issued without careful consideration of the circumstances and full application of the intellect. In the aforementioned case, it was suggested that the court should first order the summons and a copy of the complaint to be served. In the second instance, the court should issue a bailable warrant if the offender appears to be eluding the summons. When the court is absolutely certain that the accused is purposefully avoiding the legal procedure in the third situation, the process of issuing the non-bailable warrant should be used. Personal liberty was also deemed to be of utmost importance;Therefore, courts were warned not to issue non-bailable warrants in the first and second instances. Because the power is discretionary, it must be used wisely, carefully, and cautiously. Before granting warrants, the court should appropriately weigh society interests and individual liberties.

According to Section 87, a magistrate may issue a warrant after serving a summons if the magistrate has grounds to believe that the person has evaded capture and will not follow the summons or that the individual has failed to appear in court after having been duly served with the summons.

Anywhere in India, a police officer or police officers may carry out an arrest order that is addressed to them. If requested, the person carrying out the warrant must show the arrestee the warrant and provide the justification for the arrest. The magistrate has the option to decide whether to render the arrest warrant bailable or not.

In State of U.P. v. Poosu and Another, it was held that broadly speaking, the court would take into account the various factors such as the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and the State

In Inder Mohan Goswami vs. State of Uttaranchal, The Supreme Court held that a court should balance both personal liberty & societal interest before issuing warrants and should properly scrutinize facts and apply its mind to the facts of the case because of the extremely serious consequence of curtailment of personal liberty of a person. The court ought to examine whether the criminal complaint or FIR has been filed with an oblique motive. Summons should be preferred over warrants and bailable warrants should be preferred over non-bailable warrants. 

The SC further held that non-bailable warrants should be issued when it is reasonable to believe that the person will not appear in court voluntarily, police are unable to find the person to serve him with a summons or that person could harm someone if not arrested.

In Raghuvansh Bhasin vs. State of Maharashtra, the Supreme Court issued very detailed directions to the subordinate courts and police with respect to the issuance of non-bailable warrants.

Proclamation, attachment and selling of the property

If a person is absconding even after issuance of an arrest warrant, the Magistrate may order proclamation and attachment of the property of the accused as per the procedure prescribed under Section 82 and 83 of CrPC.

Section 82 of CrPC

(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:— (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall 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; (c) a copy thereof shall be affixed to some conspicuous part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

(4) [(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).]

Section 83 of CrPC

(1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person.(There are other provision in this section please refer CrPC bare act for that)

Within 30 days of the proclamation’s publication, the court must order the subject of the proclamation to attend at a designated time and location. In cases involving offences listed under section 82(4) CrPC, the court shall designate the person a proclaimed offender if they fail to appear at the appointed time and location. After then, a court that issued the proclamation may order the attachment of the proclaimed person’s moveable and/or immovable property. If the individual being proclaimed is preparing to sell his property or relocate it outside the court’s jurisdiction, the court may order proclamation and attachment at the same time.

Movable property must be seized, a receiver appointed, distribution of attached property to the proclaimed person or someone acting on their behalf prohibited, etc. Taking possession, appointing a receiver, forbidding rent payments upon transfer of the attached property to the proclaimed person or anyone acting on his behalf are all examples of how movable property can be seized and put under attachment.

According to Section 85(2) of the CrPC, the State Government must sell the seized property after six months. According to section 85(3) of the Criminal Procedure Code, if the proclaimed person shows up in court within two years of the attachment and demonstrates that he did not flee to evade the execution of a warrant and that he was not in possession of the notice of proclamation, the court must deliver to him the net proceeds of the sale and any residual property, if any, after deducting the costs associated with the attachment.

The Delhi High Court in Sunil Tyagi vs. Govt. of NCT of Delhi, in para 494 directed the subordinate courts to not close the matter after declaring a person a proclaimed person or offender; rather the courts should direct the police to file status reports and monitor actions taken by police with respect to tracing the absconding person.

 

Offences and penalties under The Indian Penal Code

Section 172 of Indian Penal Code, 1860, inter alia, makes it punishable with simple imprisonment upto 1 month &/or fine upto Rs. 500 for a person who absconds to avoid summons, notice, etc. being served from any public servant.

Section 173 IPC, inter alia, provides that whoever intentionally prevents the service of summons, notices etc. upon himself or any other person shall be punishable with simple imprisonment upto 1 month and/ or fine upto Rs. 500.

Section 174 IPC, inter alia, makes intentional non-attendance of a person in response to the summons from a public servant punishable with imprisonment upto 6 months and/ or fine upto Rs. 1000.

The non-appearance in response to a proclamation published under Section 82(1) CrPC shall be punishable under Section 174A IPC with imprisonment upto 3 years and/or fine and if the person has been declared a proclaimed offender under Section 82(4) CrPC, then imprisonment upto 7 years and fine.

Section 183 IPC makes it punishable with imprisonment upto 6 months and/or fine upto Rs. 1000 for any person who resists the public servant who is lawfully taking any property.

Section 184 IPC makes it punishable with imprisonment upto 1 month and a fine upto Rs. 500 for any person who obstructs any public servant from lawfully selling any property.