Arrest Warrant and Role of Magistrate

As a regular writer I try to focus upon the problems that I as Magistrate regularly encounter in court. One such problem is issuance of Non-Bailable warrant, at what stage it can be issued and can it be issued on mere asking by a Police officer and guidelines if any that needs to be followed. One by one I will try to answer all these questions through this article.

Introduction

Section 73 of CrPC[i] provides that, 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
Any person who is accused of a Non-Bailable Offence and is Evading Arrest.

So the bare reading of the section shows that Magistrate has a discretion to issue Non-Bailable Warrant (NBW) and the conditions under which he can issue. Whenever Discretion comes it has to be exercised judiciously. In State of U.P. v Poosu & Another[ii], the Apex Court observed that, in the circumstances of the case, the attendance of the accused can be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which rests entirely in the discretion of the court. Although, the discretion has to be exercised judiciously and it is not possible to computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is to be exercised.

Majority of times Police officials come to the court for issuance of warrant on the ground that the accused is evading arrest and he has committed a Non-Bailable offence. They file the application for issuing of Warrant by taking help of Section 24[iii] of Police Act of 1861 and in State of Rajasthan under Section 37[iv] of Rajasthan Police Act, 2007. Both these sections use the same language. The Section 37 of Rajasthan Police Act, 2007 reads as:

37. Police-officer may lay information, etc:- It shall be lawful for any police-officer to lay any information before a Magistrate and to apply for a summon, warrant, search warrant or such other legal process as may, by law, be issued against any person committing an offence.

Considerations to be kept in Mind before issuing the Warrant under Section 37 of Police Act

Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice – liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.

In Inder Mohan Goswami vs State of Uttaranchal[v], Apex Court held that non-bailable warrants should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

it is reasonable to believe that the person will not voluntarily appear in court;
the police authorities are unable to find the person to serve him with a summon;
it is considered that the person could harm someone if not placed into custody immediately.
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.

As far as possible, if the court is of the opinion that summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.

At what stage Arrest Warrant can be issued- Can it be issued at the stage of Investigation?

Earlier the view used to be that Summons and Warrants are two modes of compelling the presence of accused under Section 204 of CrPC[vi] before the court in order to face trial after cognizance of the offence is taken by the court. So the power to issue warrant cant be exercised at the stage of investigation. It is only when the court is seized of the matter after filing of Police report, then only it can issue warrant after taking cognizance. The Division Bench of Bombay High Court in Mohd. Ahmad Yaseen Mansuri vs State of Maharastra[vii], on the same lines held that the designated court would not have issued warrants in aid of investigation and could have issued the same only by way of process issued under sections 204 of the Code. It was also held that issuance of warrant after cognizance of an offence is taken would be a process contemplated under sections 204(1)(b) of the Code, i.e., it would be a process to face trial and there is no provision in the code for issuance of warrant of arrest and custody of accused for the purpose of, or in aid of, investigation and the process contemplated is a process to face trial.

The same matter whether arrest warrants can be issued at the stage of investigation went to the Hon’ble Supreme Court in the case of State through CBI vs Daewood Ibrahim Kaskar & Ors[viii], where this issue was finally settled by the top most court. Court held that Section 73 confers a power upon a Magistrate to issue a warrant and it can be exercised by him during investigation also. To explain its point court gave an example with reference to Section 155[ix] of the Code. Under this Section a police officer can investigate into a non-cognizable case with the prior order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non-cognizable and non-bailable offence, (like Sections 466 or 467) of the Indian Penal Code and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evades the arrest, the only course left open to the Investigating Officer to ensure his presence would be to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his power under Section 73, for the person to be apprehended is accused of a non-bailable offence and is evading arrest.

Another reasoning to explain the point of issuance of warrant given by the Apex court was something like this, under sections 167 CrPC, the Magistrate has to decide whether he would remand the accused to the custody of police and, even if he has no jurisdiction to try the case, he can in a suitable case remand the accused to police custody for a maximum period of 15 days. It would be anomalous if the Magistrate had the power to remand the police custody for 15 days but would not have the power to get a person arrested by issuing NBW whom he believes to be guilty of a non-bailable and cognizable offence. It would further be anomalous that a police officer may have power to arrest a person who is reasonably suspected of having committed a cognizable offence, but the Magistrate would have no such power. The very fact that a police officer may arrest without warrant from a Magistrate under section 54 CrPC would imply that the Magistrate may issue a warrant even at the stage of Section 54 of CrPC.

Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest. Once arrested in pursuance of the Arrest Warrant and on production before Magistrate within 24 Hrs of the arrest, the Court may either release him on bail under Section 437 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167 (3) of the Code. Since warrant is and can be issued for appearance before the Court only and not solely for the production of the accused before the police in aid of investigation, hence authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him.

In the opinion of the court, it seems illogical to contend that Magistrate or courts below are powerless to issue a warrant at the stage of investigation. Undoubtedly on issuing such a warrant, the production of such accused person would be before the concerned court and not before the investigating officer and on such production, the court shall deal with the person in accordance with the provisions of law comprised under Section 167 of CrPC.

Another question that arises is that when Police Officer is empowered to Arrest a person accused of committing a cognizable offence without a warrant by virtue of powers given under Section 41 of CrPC, then why they come to court for issuance of Arrest Warrant under Section 24 of Police Act or Section 37 of Rajasthan Police Act?

It could be possible that the police after completing the investigation, even at the stage of submission of charge sheet is still unable to arrest the accused. The accused could be absconding and they ask the court to accept the Charge sheet in abscondance. After this they ask the court in routine manner to issue NBW. After sometime they report that they have made sufficient efforts to trace the accused but couldn’t arrest him. So they ask the court to take back the unexecuted warrant and after evidence of the Police officer who was unable to execute the Arrest Warrant issue proclamation against the accused under Section 82[x] of CrPC. There is no gainsaying the fact that the process under sections 82 CrPC could only be issued by the Magistrate after issuance of NBW and after expiry of one month of issuance of process under sections 82 CrPC and thereafter only the process under section 83 CrPC is issued. And after declaration of the accused as Absconder they try to finish off the case in terms of Section 299[xi] of CrPC by producing all the Prosecution witnesses. Sometimes Police do make efforts to trace the accused but many a times it has been seen that in order to shed off their burden they are in a hurry to get the accused declared Absconded and complete the case according to Section 299 of CrPC.

Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of Part `C’ of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person `against whom a warrant has been issued by it’. In other words, unless the Court issues a warrant the provisions of Section 82, and the other Sections that follow in that part, cannot be invoked in a situation where inspite of its best effects the police cannot arrest a person under Section 41. Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the Court to issue warrant of arrest under Section 73 and if need be to invoke the provisions of part `C’ of Chapter VI.

Guidelines that has to be followed before Issuing of warrant and Proclamation under CrPC

The Hon’ble High Court of Delhi in Sunil Tyagi vs Govt of Nct Of Delhi & Anr[xii] has given guidelines to ensure the NBWs are issued only against the correct persons during the stage of investigation, which are as follows:

Investigating Officer may apply to a Magistrate for issuance of warrant of arrest where the offence is cognizable & non-bailable and proposed warrantee is evading his arrest.
While applying for warrant, the Investigating Officer must show the Magistrate his efforts made for arresting the proposed warrantee.
Investigating Officer must show that the proposed warrantee is ordinarily residing at or was very recently residing at some address which is in the knowledge of the IO through any manner and that now the proposed warrantee is not available at that address due to his deliberate intention to avoid custody in the case in question.
No warrant shall be issued against a proposed warrantee merely on the ground that he is not available for the IO/ Police officials for the purpose of joining him in the investigation.
Investigating Officer must satisfy the criteria that in his belief and on the basis of material collected by him/previous IO during the investigation, he is of the opinion that the proposed warrantee is involved in the case as an accused.
Only a strong suspicion or information of secret informer may not be treated as a ground for issuance of warrant of arrest.
No warrant shall be issued against proposed warrantee unless the Police Officer has categorically stated in writing that there exists grounds of arrest and such grounds are not only legally admissible but are also sufficient to sustain filing of a charge sheet against him in the Court.
Investigating Officer must show that in his opinion custodial interrogation of the proposed warrantee is necessary for the just and fair investigation of the offence(s) in question.
The Magistrate must record his satisfaction in respect of the fact prima facie involvement of proposed warrantee, requirement of his custodial interrogation and that he is evading his arrest
The Magistrate than can exercise his powers to issue warrant of arrest even at the stage of investigation in cognizable & non-bailable offences.
Such prayers shall be endorsed by the SHOs and Asstt. P.P./Addl. P.P./Chief P.P. of the Court as well with a declaration that they are satisfied that it is a fit case for issuance of NBW.
The Investigating Officer shall share the material collected by him during investigation before the Court on the basis of which the accused is connected to the crime.
Affidavit of the police officer – The police shall file an affidavit disclosing the date, time and mode of service as well as the attempts made to search and identify the accused.

Non Bailable Warrant can be Issued even at the stage of the Execution of Sentence

The power of magistrate to issue Non Bailable Warrant is further widened in the case of Sharad Jethalal Savla v State of Gujarat[xiii], where the order of trial Court issuing a non-bailable warrant of arrest having noticed that the accused was not present at the time of pronouncement of the judgment and order of conviction and sentence in view of the provisions of Section 418 (2)[xiv] of the CrPC which is a mandatory provision was upheld by the Hon’ble Gujarat High Court.

This principle has also been reiterated in the case of Ishwarbhai Hirabhai Chunara v State Of Gujarat[xv]. It is thus quite clear that as soon as the sentence is pronounced, the accused is to be taken into custody on the strength of a warrant. In the view of the provisions of Section 418 CrPC, the courts are duty bound to issue a warrant of arrest against whom judgement is passed. When the accused is not present at the time of pronouncing the judgment and if judgment is pronounced in his absence and because, it is a judgment of conviction, the Court has to issue a non-bailable warrant for the arrest of the accused to undergo the sentence of imprisonment. Non- Bailable warrant is nothing but the warrant of arrest and a person can be sent jail after the issuance of such warrant. Issuance of such warrant is much required when the order of conviction is passed and the accused is not in custody.

Penal Effects of Non-Appearance after Proclamation

Courts have to set a practice that absconding of accused will be taken seriously and files of such criminals will not be closed easily in terms of Section 299 CrPC, making mockery of Justice System. Courts have to remember this fact that there are penal effects of Non-Appearance after proclamation or after jumping of Bail. Section 174A IPC which was inserted by the Criminal Amendment Act of 2005, penalizes the non-appearance of a person as required by a proclamation published under Section 82 CrPC and provides the following punishment: (a) for a term up to three years/fine/both in case of non-appearance consequent to a proclamation under Section 82(1) CrPC; and (b) for a term upto seven years with fine in case of a declaration under Section 82(4) CrPC (in respect of offences under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the IPC. Under Section 229A IPC, the failure of a person to appear before the Court released on bail or bond has been made a penal offence punishable with imprisonment, of either description, for a term which may extend to one year, or with fine, or with both. Section 229A IPC is an addendum to Section 174A IPC.

[i] https://indiankanoon.org/doc/718585/

[ii] (1976) 3 SCC 1 at para 13 page 5

[iii] https://www.mha.gov.in/sites/default/files/police_act_1861.pdf

[iv] https://www.police.rajasthan.gov.in/Rajpolice/pdf/policeact-english.pdf

[v] Appeal (CRL.) 1392 of 2007

[vi] https://indiankanoon.org/doc/1827798/

[vii] 1994 Cr LJ 1984 (Bombay)

[viii] (2000) 10 SCC 438

[ix] https://indiankanoon.org/doc/949418/

[x] https://indiankanoon.org/doc/1598801/

[xi] https://indiankanoon.org/doc/831107/

[xii] CRL.M.C. 5328/2013 & CRL.M.C.4438/2013