Professional Documents
Culture Documents
Meaning of
Warrant of Arrest
&
Execution Thereof
Table of Contents
Warrant of Arrest & Execution Thereof: An Introduction Section 70: Form of Warrant of Arrest & Duration Scope & Application of Section 70 Requisites of a Valid Warrant of Arrest Meaning of Presiding Officer Other Silent Topics Section 71: Power to Direct Security to be Taken Scope & Application of the Section Duty of Magistrate Section 72: Warrants to Whom Directed Scope of the Section Warrant of Appearance Execution by Several Persons Section 73: Warrant may be Directed to any Person Scope & General Interpretation of the Section Section 74: Warrant directed to Police Officer Scope of the Section Scope of Endorsement of Warrant Connotations of Police Officer Requisites of Special Warrants Section 75: Notification of Substance of Warrant Scope of the Section Effect of Non-Compliance
1 2 2 3 3 3 4 5 5 6 6 6 6 7 7 8 8 9 10 10 10 10 11
11 11 11 12 12 12 12 13 13 14 14 14 15 15 16 16 17 17 17 18
Section 76: Person Arrested to be brought before Court without Delay Scope & Object of the Section Arrested Person to be Produced before Court Section 77: Where Warrant May be Executed Plea of Execution of Warrant Necessity of Extradition Proceedings Section 78: Warrant Forwarded for Execution outside Jurisdiction Scope & Application of the Section Alternatives for Execution of Warrant outside the Jurisdiction Power of Granting Bail Section 79: Warrant Directed to Police Officer for Execution outside Jurisdiction Scope of the Section Section 80: Procedure on Arrest of Person against Whom Warrant is Issued Scope of the Section Section 81: Procedure by Magistrate before whom such Person is brought Scope of the Section Duty of Magistrate Grant of Bail to Person Accused Bibliography
Pillai, Dr. K.N. Chanderasekharan, R.V. Kelkars Criminal Procedure, Eastern Book Company, Lucknow, 5 th Ed., 2011, p. 48. 2 Ibid. 3 Pillai, Dr. K.N. Chanderasekharan, R.V. Kelkars Criminal Procedure, Eastern Book Company, Lucknow, 5 th Ed., 2011, p. 49.
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endorsed.4 However, this rule will not control the special procedure provided by Sections 7881 for the execution of warrants outside the local jurisdiction of the Court issuing the same. A warrant of arrest can be executed at any place in India. 5 When a warrant of arrest can be executed outside the local jurisdiction of the court of issuing it, the procedure laid down in Sections 78-81 shall be followed. These sections are discussed in the heads to follow.6
4 5
See Section 74 of the Code of Criminal Procedure, 1973. See Section 77 of the Code of Criminal Procedure, 1973. 6 Pillai, Dr. K.N. Chanderasekharan, R.V. Kelkars Criminal Procedure, Eastern Book Company, Lucknow, 5 th Ed., 2011, p. 51. 7 Navendra Gudgud v. CBI (EOW), Calcutta, 2009 CrLJ 2127 (Bom.). 8 N.B. Mukherjee v. State, 1976 CrLJ 370. 9 Jagdish v. Emperor, AIR 1940 All. 178. 10 Alter Caufman v. Government of Bombay, ILR 18 Bom. 636. 11 Easwar Merty v. Emperor, AIR 1944 PC 54.
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12
Jugan v. Chief Presidency Magistrate, AIR 1968 Cal. 220: 1968 CrLJ 604. Also see Sohonis, The Code of Criminal Procedure, 1973, Premier Publishing Company, Allahabad, Vol. I, 2010, p. 164. 13 Mahajan v. Emperor, AIR 1915 Cal. 737. 14 Sen, D.N., The Code of Criminal Procedure, Premier Publishing Company, Allahabad, Vol. I, 2004, p. 166. 15 AIR 1988 SC 414: 1988 CrLJ 705. 16 S. Dhalappa v. State of Kerala, AIR 1965 Ker. 72: 1965 (1) CrLJ 296. 17 For other examples of invalid warrants see Sohonis, The Code of Criminal Procedure, 1973, Premier Publishing Company, Allahabad, Vol. I, 2010, p. 164. Also see Form 2 of the second schedule of the Code of Criminal Procedure. 18 Kartick Chandra v. Emperor, AIR 1932 Pat. 175. 19 Md. Maquble v. State of Jammu & Kashmir, AIR 1972 SC 963.
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A conditional warrant of arrest indicating that the person named therein is to do a certain thing with a further direction for his arrest and imprisonment in the event of his failure to do is not valid.20
For cancellation of a warrant of arrest no formal order of the Court issuing it is called for.21 It is also within the discretion of the Magistrate on sufficient ground being shown to cancel the warrant and issue summons instead.22
A warrant of arrest is a public document and can be proven through a certified copy.23 The warrant must specify the name and designation of the person to whom it is addressed for the execution of the same.24 The execution of an order passed by the Court may be an executive function but even then if an obstruction if caused in the matter of its execution the question whether such obstructions was lawful or not should be determined judicially.25
The warrant of arrest will be presumed to be invalid until it is executed or cancelled.26 Execution of non-bailable warrant issued against the accused could be stayed if the accused was ready and willing to surrender.27
H.C. Jain v. M/s R.K. Synthetics and Fibers Pvt. Ltd., 1999 CrLJ 2922 (Bom.). Jagdish v. Emperor, AIR 1940 All. 178. 22 Alter Caufman v. Governor of Bombay, ILR 18 Bom. 636. 23 Kanti Lal v. State, AIR 1968 Guj. 100: 1968 CrLJ 758. 24 Jamna v. Emperor, AIR 1924 All. 128. 25 State v. Nanavati, AIR 1960 Bom. 502. 26 Kundan v. State, 1952 CrLJ 1592. 27 Yogesh Kumar Bhargava v. State of Uttar Pradesh, 2001 CrLJ 2835.
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(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. (3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court.
28
See Sohonis, The Code of Criminal Procedure, 1973, Premier Publishing Company, Allahabad, Vol. I, 2010, p. 166. 29 Queen Empress v. Yogendra Nath, ILR 24 Cal. 320. 30 Chhotelal v. Emperor, AIR 1948 All. 72. 31 Lachmi v. Emperor, AIR 1939 All. 156. 32 Sen, D.N., The Code of Criminal Procedure, Premier Publishing Company, Allahabad, Vol. I, 2004, p. 169. 33 P.K. Dasgupta v. Jaizukhal, 1989 (2) Guj. LJ 943.
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bond, order for rearrests would be proper.34 But at the same time where a warrant is cancelled, it cannot be reissued.35
Warrant of Appearance
Magistrate cannot direct the accused through Counsel. If at all he is satisfied that the accused are evading service or are wilfully not appearing in the Court then coercive measures could be adopted but only against the accused.38
Kurnam v. State of Rajasthan, 1983 (2) CrLJ 826. In re: Gurucharan, 1 CWN 650. 36 Pasuvarthim v. Emperor, AIR 1928 Mad. 624. 37 AIR 1918 Pat. 613. 38 M/s Satya Securities v. Uma Erry, 2002 CrLJ 3714.
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any one of the persons to whom the warrant is directed, the execution thereof will not be illegal although in the warrant was directed to several persons.39
39 40
Sen, D.N., The Code of Criminal Procedure, Premier Publishing Company, Allahabad, Vol. I, 2004, p. 170. Pillai, Dr. K.N. Chanderasekharan, R.V. Kelkars Criminal Procedure, Eastern Book Company, Lucknow, 5 th Ed., 2011, p. 50. 41 State through CBI v. Dawood Ibrahim Kaska, AIR 1997 SC 2494: 1997 CrLJ 2989. 42 W.N. Chadda v. State, 1993 CrLJ 3214. 43 State through CBI v. Dawood Ibrahim Kaska, AIR 1997 SC 2494: 1997 CrLJ 2989.
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A warrant of arrest remains in force till it is executed, or cancelled by the Court issuing it. Accordingly it has been held that it would not be invalid simply on the expiry of the date fixed by the Court for the return of the warrant.44 A bailable warrant can be issued both in case of bailable and non-bailable offences. If the non-bailable offences is only of technical nature, then in case of such an offence it would be appropriate to issue a bailable warrant.45 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.46 A requisition for warrant of arrest must disclose existence of involvement of accused in non bailable offence and that he is evading arrest.47 An order under Section 73 of the Code can be passed only after taking into consideration the totally of the circumstances thereof.48
44 45
Emperor v. Binda Ahir, 29 CrLJ 1007 (Pat.). Marula Sidda Sivamulu v. Emperor, 12 CrLJ 430 (Mad.). 46 Randhir Sharma alias Rupesh v. State of Bihar & Others, 2009 CrLJ 3889 (Pat.). 47 Ibid. 48 See Sohonis, The Code of Criminal Procedure, 1973, Premier Publishing Company, Allahabad, Vol. I, 2010, p. 169. 49 M.N. Ugrappa v. Government of Mysore, AIR 1966 Mys. 207 : 1966 CrLJ 929. 50 Kundan v. Emperor, AIR 1948 Lah. 81: 49 Cri LJ 150 : Kimat Mal v. State, AIR 1956 All 449.
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Charukala Act Naser v. Emperor,51 as well as warrants issued under Bombay Gambling Act.52
51 52
ILR 37 Cal 122. Asgar Ali v. Emperor, AIR 1940 Bom 127. 53 Devi Singh v. State, AIR 1964 Raj 36; (1964) 1CrLJ 359; Indar v. State of Bihar, AIR 1967 Pat 141: 1967 CrLJ 574. 54 Kua Rajaiah alias K. Rajanna and others v. Government of A.P. and others, 2007 CrLJ 2031 (AP). 55 Durgacharan v. Emperor, ILR 27 Cal 457. 56 Kachhu Kunja v. State of Kerala, (1962) 2 CrLJ 237. 57 AIR 1932 Pat 171 : 33 Cri LJ 706. 58 Abdul v. Mathur, 5 CWN 447; Mangaram v. Emperor, AIR 1931 Sindh 89 : 32 CrLJ 916. 59 Durga Charan v. Emperor, ILR 27 Cal. 457; Indar v. State of Bihar, AIR 1967 Pat. 14.
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60 61
Kasyap v. State, AIR 1959 J&K 56 : 1959 CrLJ 709. Emperor v. Thabarmal Rupchand, AIR 1929 Bom 157: 30 CrLJ 597. 62 Devilal v. State, AIR 1964 Raj 36: (1964) 1 CrLJ 359. 63 Bank of Bihar v. Emperor, AIR 1918 Pat 613 : 19 Cri LJ 747. 64 Katiram v. Emperor, AIR 1932 Pat 171 : 33 Cri LJ 706.
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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.65
Effect of Non-Compliance
The burden of proof is on the person who alleges that requirement of the section were not compiled with and to establish that and in the absence of evidence to the contrary the presumption can be drawn that official acts have been duly performed.66 Where a person entrusted to execute a warrant fails to comply that the requirement of the section the arrest would be illegal.67
65 66
Triuban v. Emperor, AIR 1918 Oudh 162. Zar Khan v. Emperor, AIR 1940 Push. 10. 67 See Sohonis, The Code of Criminal Procedure, 1973, Premier Publishing Company, Allahabad, Vol. I, 2010,172. 68 Ibid.
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It is, however, to be noted like the proceeding Section 75 the provisions of this section do not apply to the proceedings pertaining to arrest and detention under the Preventive Detention Act.69
See Sohonis, The Code of Criminal Procedure, 1973, Premier Publishing Company, Allahabad, Vol. I, 2010, 173. 70 Sayad Jajarul Hassan v. State, AIR 1986 Pat. 194. 71 State of West Bengal v. Jugal Kishore More, AIR 1969 SC 1171. 72 AIR 1969 SC 1171.
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warrant of arrest against a person residing in a country with which the Government of India has an Extradition Treaty, initiation of execution proceedings necessary.73
73 74
Navendra Gudgud v. CBI, Calcutta, 2009 CrLJ 4278 (Cal.). In Re: Sagarmal Khemraj, AIR 1940 Bom. 397: 42 CrLJ 205. 75 Kura Rajaiah alias Rajanna and Others v. Government of A.P. and Others, 2007 CrLJ 2031 (AP). 76 Jugal Kishore v. C.P. Magistrate, Calcutta, AIR 1968 Cal. 220. Also See Batuk Lal; Code of Criminal Procedure; Central Law Agency; Allahabad; 2nd Ed.; 2010, p. 312.
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77 78
Batuk Lal; Code of Criminal Procedure; Central Law Agency; Allahabad; 2nd Ed.; 2010, p. 312. See Sen, D.N., The Code of Criminal Procedure, Premier Publishing Company, Allahabad, Vol. I, 2004, p. 175. 79 Ibid. 80 Gabino Prasad v. State of West Bengal, 1975 CrLJ 1249.
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(2) 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. (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 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.
81
Devi Singh v. State of Rajasthan, AIR 1964 Raj. 36: 1964 (1) CrLJ 359. Also see Sen, D.N., The Code of Criminal Procedure, Premier Publishing Company, Allahabad, Vol. I, 2004, p. 177.
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82
Sohonis, The Code of Criminal Procedure, 1973, Premier Publishing Company, Allahabad, Vol. I, 2010, p. 176. 83 Khemchand v. State, 1971 CrLJ 149.
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Duty of Magistrate
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 prima facie about the identity of the person arrested as mentioned in the warrant.85 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,86 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.
84 85
Khan Chand v. State, 1971 CrLJ 149. Kinhaseem v. State of Kerala, (1962) 1 CrLJ 645. 86 See Sen, D.N., The Code of Criminal Procedure, Premier Publishing Company, Allahabad, Vol. I, 2004, p. 178. 87 Sayed Jafrul Hussain v. State of Bihar, AIR 1986 Pat. 195. Also see Sohonis, The Code of Criminal Procedure, 1973, Premier Publishing Company, Allahabad, Vol. I, 2010, p. 178.
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Bibliography
Batuk Lal; Code of Criminal Procedure; Central Law Agency; Allahabad; 2nd Ed.; 2010.
Pillai, Dr. K.N. Chanderasekharan, R.V. Kelkars Criminal Procedure, Eastern Book Company, Lucknow, 5th Ed., 2011.
Pillai, Dr. K.N. Chanderasekharan, R.V. Kelkars Lectures on Criminal Procedure, Eastern Book Company, Lucknow, 5th Ed., 2011.
Sen, D.N., The Code of Criminal Procedure, Premier Publishing Company, Allahabad, Vol. I, 2004.
Sohonis, The Code of Criminal Procedure, 1973, Premier Publishing Company, Allahabad, Vol. I, 2010.
Universals Criminal Manual, Universal Law Publishing Co., New Delhi, 2011.
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