Article by Vijay Pal Dalmia, Advocate
Supreme Court of India & High Court
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In case of a cognizable offence [as defined under Sec. 2(c) of the Code of Criminal Procedure, 1973 (Cr.P.C.), "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant], for making an arrest the warrants are not necessary. The first schedule of the Cr.P.C. (https://districts.ecourts.gov.in/sites/default/files/Act%20%26%20Sections_0_1_1.pdf) details the nature of cases (cognizable/non-cognizable) and in what kind of cases bail can be granted or not. For the purpose of understanding it may be noted that a non-bailable offence does not mean that bail cannot be granted. In case of non bailable offences the bail can be granted by the courts and the courts have to use their discretion while granting bail in non-bailable offences. In bailable offences, one can seek bail at the time of arrest by police as a matter of right subject to compliance of certain formalities.
Regarding the procedure and steps for issuance of non-bailable warrants reference shall be made to Sections 70 to 81 of the Cr. P.C. To understand this process reference has to be made to Chapter VI of the Cr.P.C., which is captioned as 'processes to compel appearance' consists of four parts :
- Part A relates to Summons;
- Part B to warrant of arrest;
- Part C to proclamation and attachment and
- Part D to other rules regarding processes.
Reference shall be made to Part B of the Cr. P.C. which has in its fold sections 70 to 81.
- Section 70 deals with the form in which the warrant to arrest a person is to be issued by the Court and of its durational validity.
- The validity and duration of the warrant of arrest is indefinite, till it is cancelled by the court which issued it, or
- until it is executed.
- Section 71of the Cr.P.C. empowers the Court issuing the warrant to direct the officer who has to execute the warrant, to release that person on terms and conditions as provided therein. The warrant can be bailable as well as non-bailable.
- Section 73 of the Cr.P.C. reads as under:
- 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
- Once a bailable or non bailable warrant has been issued, Section 76 requires the police officer or other person, who executes the warrant to bring the person arrested before the Court (unless he is released in terms of Section 71), within twenty four hours.
- Going by the law laid down by the Supreme Court of India in the case of State through C.B.I. Vs. Dawood Ibrahim Kaskar and Ors. (https://www.sci.gov.in/jonew/judis/14001.pdf) , non-bailable warrant can also be issued even after filing of the charge sheet, provided the person against whom the warrants are required to be issued is an escaped convict, proclaimed offender or is a person accused of a non-bailable offence and is evading arrest. In such type of cases, the court can even grant police custody for the purpose of investigation and interrogation.
- It may be noted that the warrants for arrest are not necessary in case of a cognizable offence before charge or even after charge. The warrant for arrest becomes necessary, only when the courts wants to proceed under section 82 of the Cr. P.C. for declaring the person as absconder and attachment of the property of such person under section 83 of the Cr. P.C.
- Similarly, in a case where the accused has appeared before the Court and taken the bail in a bailable/ non-bailable offence, and thereafter does not appear before the court, in such circumstances also the courts can issue bailable/ non-bailable warrants.
- Under Section 204 of Cr. P.C. on filing of the charge sheet and taking cognizance of the case, in a warrant case the court may issue summons/warrant against the accused if it finds sufficient grounds to proceed against him.
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