Code of Criminal Procedure Project

Meaning of

Warrant of Arrest
&

Execution Thereof

Compiled By Ankit Chowdhri 10/09

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

Validity of Detention Order

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

Warrant of Arrest & Execution Thereof

An 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 an 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.1 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.2 A warrant of arrest is a written authority given by a competent magistrate for the arrest of a person. The warrant of arrest may be in 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 of arrest may also 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 direction is commonly known as a bailable warrant of arrest.3 These essentials have been provided by Sections 70 to 73 of the Code of Criminal Procedure. A warrant directed to any police officer can also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or

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

Section 70: Form of Warrant of Arrest and Duration

Section 70 of the Code of Criminal Procedure reads as under: 70. 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.

Scope & Application of Section 70

Section 70 does not make any distinction between warrant of arrest to be executed within India and outside India.7 This section deals with the form of arrest of warrant and has nothing to do with the authority of the Court issuing the warrant of arrest.8 The warrant must conform to Form No. 2 of the second schedule of the Code and must be addressed to certain persons to arrest the accused and to take him into custody and to produce him before the Court issuing the warrant.9 Where local or special enactment does not prescribe the form of warrant, the form provided by the Court should be used.10 Since a warrant of arrest affects the personal liberty of a citizen, it must bear the signature and seal of the Court issuing the warrant and any defect in this regard might result in serious consequence.11

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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Requisites of a Valid warrant of Arrest

Since the arrest on the strength of a warrant results in deprivation of the personal liberty of the person arrested, the Court observe the formalities strictly in accordance with the law before issuing such a warrant.12 It is necessary that such a warrant of arrest must bear the signature of the presiding officer issuing it and the seal of the Court concerned.13 It is also the requirement of a warrant that it must contain clear and complete description of the person to be arrested which would include inter alia the name of his father, occupation and residence of the person to be arrested.14 The Apex Court in Sanjoy Suri v. Delhi Administration15 has ruled that the age of the person to be detained under the warrant of arrest must be specified therein failing which the jail authorities may refuse to honour the same. It must also specify the offence punishable and should include a distinct and unequivocal intention to the person to be arrested that he is the individual sought to be arrested under the warrant thereof. 16 So, warrants completely in accordance with the law in this regard are only valid.17

Meaning of Presiding Officer

The Presiding Officer occurring in this section means the officer who presides over the Court when the warrant is issued and need not necessarily be the officer who presides in the Court at the time when cognizance of the offence was taken.18 Similarly, the law does not demand that each copy of warrant forwarded should bear the signature of the presiding officer himself.19

Other Salient Topics

In addition to the features referred to above there are several other aspects covered under Section 70. They have been enlisted below:

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

Section 71: Power to Direct Security to be Taken

Section 71 of the Code of Criminal Procedure reads as under: 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 the Court, the officer to whom the warrant is directed shall take such security and shall release the person from custody. (2) The endorsement shall state
20 21

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.

Scope and Application of the Section

The provisions of sub-section (1) are only permissive and not mandatory in nature.28 This section empowers the Court issuing the warrant of arrest of a person to make it a bailable one and in doing so there should be an endorsement on the warrant to the effect that if the arrested person executes a bond with sufficient securities for his attendance before the Court at a specified time and date the officer executing the warrant shall take such security and release the person from custody and the bond who direct the attendance before the Court issuing the warrant and not the Police Officer.29 In the 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. 30 It is also to be noted that when a person is accused of bailable offence, it is always necessary to make that endorsement on the warrant of arrest.31 The provision of the section will be sufficiently complied with if the Court directs that security to be taken for release after arrest.32

Duty of the Magistrate

The power of the Magistrate issuing bailable warrant should be exercised with due restraint and circumspection.33 Where the accused does not appear in spite of executing the

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

Section 72: Warrants to Whom Directed

Section 72 of the Code of Criminal Procedure reads as under: 72. Warrants 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 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.

Scope of the Section

The general rule underlying the 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 if immediate arrest of the accused. In such a situation the warrant may be directed to any private person as well.36 It was decided in Banke Behari v. Emperor37that 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.

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

Execution by Several Persons

It is clear from a reading of the sub-section (2) 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
34 35

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

Section 73: 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 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 Magistrate having jurisdiction in the case, unless security is taken under Section 71.

Scope and General Interpretation of the Section

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. 40 A warrant cannot be issued by the Court for appearance of the accused before the police in aid of investigation. 41 The Court has no jurisdiction to issue a warrant for arrest if such a person is only required for information of the Police.42 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.43

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

Section 74: 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.

Scope of the section

Section 74 deals with warrant directed to Police officer and as such it has no application to a detention order under the Defence of India Rules which does not require its execution by a particular Police Officer but is forwarded to the Superintendent of Police of a District for execution of the warrant.49 Similarly, the present section has no application to warrant issued under the Public Gambling Act.50 Also this section has no application to warrant issued under Bengal

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

Scope of Endorsement of Warrant

It may be executed by any other Police Officer whose name is endorsed thereon by the officer to whom it is directed.53 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 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.54 But 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 favour of any person other than a Police Officer such as a Process Server or a Watcher would be per se illegal.55 Secondly, the endorsement must be made by any of the person to whom entrusted as otherwise execution of the warrant shall become illegal.56 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 Kartick v. Emperor.57 Although full signatures of the Police Officer making the endorsement are desirable, the endorsement made under initial will not itself render the warrant invalid.58 It is evident that the endorsement made only by the Police Officer to whom the warrant has been directed and not by any other Police Officer.59

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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Connotations of Police officer

The expression any Police officer occurring in the section includes a member of the Police service irrespective of his current post as such he is competent to execute a warrant of arrest under this section.60

Requisites of Special Warrants

A special warrant must be executed by the officer or officers named thereunder and delegation by endorsement to some other Police Officer permissible under the law. 61 Similarly, when a warrant is directed for execution outside the local limits of jurisdiction of the court issuing it, it must be executed by the Police Officer to whom it is directed and he cannot delegate his power by ensuring it to some other Police Officer.62

Section 75: Notification of Substance of Warrant

Section 75 of the Code of Criminal Procedure reads as under: 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.

Scope of the section

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 to him.63 The requirements of the section should be deemed to have been applied with if the person to be arrested had reasonable opportunity of opportunity of knowing about the charge for which he is being arrested and the Court before which he was to appear. 64 So far as the arrest of a deserter of an army is concerned the showing of the report of the Commanding Officer is sufficient compliance of the provisions of this section. It is, However, not the

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

Validity of Detention Order

Where petitioner detenu was informed about reason of arrest when detention order against him was passes, it cannot be said substance of warrant was not notified to petitioner detenu, therefore, if ground of detention was served upon detenu within four days from date of detention, it was held that detention was valid.68

Section 76: 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 being the person arrested before the Court before which he is required by law to produce such person: 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 Magistrates Court.

Scope & Object of the Section

This section should be read together with Section 71 which deals with arrest in execution of a bailable warrant.

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

Arrested Person to be produced before 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.70

Section 77: 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.

Plea of Execution of Warrant

Section 77 only declares that, every warrant issued by any Magistrate on 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.71 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 More72that where the accused were reportedly hiding at Hong Kong, the Magistrate was authorised to issue a warrant and send it for execution to the authorities on Hong Kong through the Ministry of External Affairs, Government of India.

Necessity of Extradition Proceedings

Section 77 and 79 dealt with the mode of warrant of arrest in case of accused persons residing outside the jurisdiction of the issuing Court. Now the procedure for execution of
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

Section 78: Warrant Forwarded 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 jurisdiction of the Court issuing it, such Court may, instead of directing the warrant to a police officer within its jurisdiction, forwarded 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 that person.

Scope & Application of the Section

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.74 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 the local limits of whose jurisdiction the warrant is to be executed.75 It was held by the Calcutta High Court 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.76

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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Alternatives for Execution of Warrant outside the Jurisdiction

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 directing such warrant to a 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.77

Power of Granting Bail

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. Where no arrest has been made, the Magistrate having jurisdiction over the place of arrest cannot grant bail.78 Under the proviso to Section 81, bail can be granted only where the accused has been arrested in execution of warrant issued under Section 78.79 In view expressed provision contained in sub-section (2) of Section 78, it has been held 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.80

Section 79 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 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.

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.

Scope of the Section

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.81

Section 80: Procedure on Arrest of Person against Whom Warrant is Issued

Section 80 of the Code of Criminal Procedure reads as under: 80. Procedure on arrest of person against whom warrant is 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 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 71, be taken before such Magistrate or District Superintendent or Commissioner.

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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Scope of the Section

This provision pertains to person if arrested beyond territorial jurisdiction of issuing Court.82 When a person is arrested in execution of a warrant issued by a Court beyond the territorial limits of its jurisdiction, he must be produced before the issuing Court where it is within thirty kilometres 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.83

Section 81: Procedure by Magistrate before whom such Person is brought

Section 81 of the Code of Criminal Procedure reads as under: 81. Procedure by Magistrate before whom such person is brought. (1) The Executive Magistrate or District 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, 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 the section 437), 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 78, to release such persons on bail. (2) Nothing in this section shall be deemed to prevent a police officer from taking security under section 71.

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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Scope of the Section

The word shall occurring in this section, viewed in the context of the scope of this section is mandatory in nature and not merely directory.84

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.

Grant of Bail to the Person Arrested

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.87

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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