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Quashing Of Warrant Of Arrest

An Arrest Warrant, or a Warrant of Arrest, is an official legal document that allows law enforcement officers to apprehend specific individuals. The warrant is issued in duplicate and carries the authorization of a judge or magistrate from the associated court. It contains details about the offense committed, as well as the name and address of both the court and the accused person. In addition, it specifies whether bail is allowed for the offense.

If bail is allowed, police can release arrested individuals upon meeting bail conditions; otherwise, they must transfer them to court custody. The court has discretion in deciding whether an individual should be granted bail or detained further in police custody or jail. An arrest warrant remains valid until it is executed or revoked by the issuing court. An arrest warrant does not become invalid solely due to exceeding its specified return date, as established in Emperor v. Bindra Ahir case law.

Object of Warrant of Arrest

Issuing a warrant of arrest serves multiple purposes, beyond simply compelling the accused to appear in court. It also acts as a precautionary measure, especially when dealing with individuals who have a history of committing crimes or have already been convicted in the past. Allowing unrestricted movement for such individuals would not be in the public's best interest. While there are instances where a person can be arrested without a warrant as per the Code of Criminal Procedure, it is important to note that they cannot be held in police custody for more than 24 hours from their time of arrest.

Sometimes, the police may submit a charge sheet to the court in a case where they have been unable to arrest the accused individuals. In such situations, they request that the court issue a warrant of arrest against the absconding suspects. The court then issues the warrant of arrest accordingly.

Additionally, during an investigation, the officer in charge of a police station can approach the court and request for issuance of a warrant of arrest, if the accused is found absconding, and then can submit prayer to the court for issuance of order of the accused being a proclaimed offender. These measures are taken to compel them to either surrender before the police or appear in court. Furthermore, it is within the court's authority to issue a warrant of arrest on its own accord as means to ensure that an accused individual attends trial.

When Warrant of Arrest is Issued:

Under Section 73 of the CrPC, a Chief Judicial Magistrate or a Magistrate of the first class has the authority to issue warrant of arrest for:
  1. Escaped Convict
  2. Proclaimed Offender
  3. Accused of serious crime avoiding arrest

According to Section 76 CrPC, once a warrant is issued, whether it's bailable or non-bailable, the person arrested must be presented before the Court within 24 hours. However, there are instances where they may be released under Section 71 CrPC.

As per a Supreme Court ruling (State through C.B.I. v. Dawood Ibrahim Kaskar and Ors.), non-bailable warrants can be issued even after the charge sheet is filed, if the individual is a fugitive, proclaimed offender, or accused of a serious crime and is avoiding arrest. In such instances, the court has the authority to grant police custody for investigation and questioning purposes.

For cognizable offenses, arrest warrants are not required before or after charges are filed. However, if the court aims to declare someone as an absconder under Section 82 of the CrPC and seize their property under Section 83 of the CrPC, warrants become necessary.

In the same way, if someone accused of a bailable or non-bailable offense has been granted bail but fails to appear in court, the court can issue warrants accordingly.

According to Section 204 of the CrPC, once the charge sheet has been filed and the court has taken cognizance of the case, it can issue summons or warrants against the accused if there are reasonable grounds to proceed with the case.

If a witness does not appear in court when summoned, warrant of arrest can be issued by the court. In such cases bailable warrant of arrest is issued first and then non-bailable warrant of arrest is issued on non-appearance of the said witness.

If a person disrupts court proceedings, the court may issue a warrant of arrest for their arrest for contempt of court.

Essentials of Warrant of Arrest:

As enshrined in Section 70 of the Code of Criminal Procedure:

  • The warrant of arrest must be in writing.
  • It must be signed by the Magistrate.
  • The seal of the court must be present on it.
Contents of Warrant of Arrest
  • It must mention the name and other particulars of the person who is to be arrested.
  • The offence with which the person to be arrested is charged must be noted in the warrant of arrest.
  • It must specify the offense with which the person to be arrested is charged.
  • The warrant must clearly show the person's authority to arrest.
  • It may also include a direction that if the person arrested executes a bond and gives security, he shall be released in bailable cases. If the case is non-bailable, he will be produced before the court within 24 hours of arrest.

Execution of Warrant of arrest
According to section 72 of the Code of Criminal Procedure, a warrant may be directed to the police officer or any person.

Under Section 74 of the CrPC, any police officer subordinate to another superior police office' can also carry out an order directed to that authorized officer.

Execution outside the local jurisdiction
According to section 78 of the Code of Criminal Procedure, when the warrant is to be executed outside local jurisdiction then, such warrant will not be directed to the police officer. It shall instead be directed to any Executive Magistrate, District Superintendent of Police or Commissioner of Police in whose local jurisdiction the warrant is to be executed; they can further confirm the name of the police officer on it.

Bailable & Non-Bailable Warrant of Arrest
When it comes to arrest warrants in criminal cases, there are two types: bailable warrants and non-bailable warrants. These two warrant types differ based on the severity of the crime, whether or not the defendant can obtain bail prior to being arrested, and the procedures surrounding bail. Here are the key distinctions between bailable and non-bailable warrants:

Nature of Crime

Bailable Warrant: Bailable warrants are usually issued for less serious crimes and the defendant can be released on bail by posting a bond prior to arrest according to a bail schedule specified by law. In this scenario, the defendant can be released on bail immediately upon arrest, provided they adhere to the specified bail conditions.

Non-bailable Warrant: Non-bailable warrants are issued for more serious crimes, where the defendant is not entitled to bail before their arrest. In this situation, the defendant must appear in court after being arrested, and the court will determine whether or not to grant bail based on various factors surrounding the case.

Granting of Bail

Bailable Warrant: When a bailable warrant is executed and the defendant is arrested, he or she has the opportunity to apply for bail prior to arrest by submitting a bail bond or surety determined by the court or by law. If granted bail, the defendant can be released pending trial.

Non-bailable Warrant: When a non-bailable warrant is issued, the accused does not have the right to get bail before arrest. They must be brought before the court, where the decision of granting bail will be made at the court's discretion. The court takes into account factors such as the severity of the offense, possibility of fleeing, and evidence strength when determining whether or not to grant bail.

Procedure for Arrest:
  • Bailable Warrant: After executing a bailable warrant, the police may arrest the defendant, but the defendant is usually released on bail at a police station as directed by the court.
  • Non-bailable Warrant: In the case of a non-bailable warrant, the police must arrest the accused but cannot release them on bail without a court order. The defendant must be produced before the court as quickly as possible.

Bail Warrant: If someone commits minor traffic violations, certain property crimes, or non-serious misdemeanors, a bail warrant may be issued.

Non-bailable Warrant: Non-bailable warrants are issued for more serious crimes such as murder, terrorism, drug trafficking, and other significant offenses that require the suspect's arrest.

To summarize, the main difference between bailable warrants and non-bailable warrants depends on the severity of the offense and the accused's ability to obtain bail before arrest. Bailable warrants are connected to less serious crimes, allowing the accused to secure bail prior to court presentation. Non-bailable warrants, on the other hand, are issued for more serious offenses and require the court to decide on bail after the arrestee appears in court. Depending on court proceedings, if bail is not granted, the accused may be sent either into police custody (if requested by them) or judicial custody.

Different Sections of CrPC dealing with Warrant of Arrest
The following section of CrPc (70-82) deal with the subject of Warrant of Arrest:
Section 70 CrPC
  1. Every arrest warrant issued by a court under CrPC must be in writing, signed by the presiding officer of such court and stamped with the court's stamp.
  2. Every such order shall remain in force until set aside by the court which made it or until it is executed.

Section 71 CrPC
It gives the court the power to ask for a security bond when issuing an arrest warrant.

When a court issues an arrest warrant, it has the option to allow the person to be released from custody if they can provide a bond signed by enough individuals (sureties) who vouch for their appearance in court at a designated time.

The written endorsement on the warrant should include:
  • The number of people vouching for the person (sureties).
  • The amount of money they and the arrested person promise to pay if the arrested person doesn't show up in court.
  • The date and time of appearance of the person in court.
  • When the security bond is taken, the officer who has the arrest warrant must send the bond to the court.

Section 72 CrPC
Section 72 of the Code of Criminal Procedure, 1973, talks about who will execute a warrant and how it can be executed.

Arrest warrants are typically issued to police officers. However, in urgent situations where there are no available officers, the court may grant the warrant to an authorized individual who is then responsible for executing it.

If multiple officers or people are granted a warrant, they have the option to execute it together as a group or individually as needed.

Section 73 CrPC
It talks about people against whom warrant of arrest can be issued and what should be done when the person is arrested.

A warrant to arrest is issued by the Chief Judicial Magistrate or a Magistrate of the first class in the specific area against someone who has escaped from custody, is a proclaimed offender, or is accused of a serious crime for which bail is not allowed.

Once the warrant is received, the responsible individual must provide written confirmation of its receipt. They are then expected to carry out the arrest if the person being sought is found on any land or property under their jurisdiction.

After the person mentioned in the warrant is arrested, they must be immediately transferred to the nearest police officer. The officer will then bring them before the appropriate Magistrate, unless bail has already been granted under section 71 CrPC.

Section 74 CrPC
An arrest warrant directed to any police officer may also be executed by any other police officer whose name is endorsed on the warrant by the officer to whom it is directed or endorsed.

Section 75 CrPC
When a police officer or other authorized individual is executing an arrest warrant, they are required to inform the person being arrested about the details of the warrant. Additionally, if asked, the officer must present the actual warrant to provide clarity and transparency. This ensures that the individual being arrested has clear knowledge of the grounds for their arrest.

Section 76 CrPC
A police officer or other person executing an arrest warrant shall (subject to the provisions of section 71 CrPC) present the arrested person without undue delay to the court where he is obliged by law to present such person; in no case shall it exceed twenty-four hours without the time necessary for the journey from the place of arrest to the magistrate's court.

Section 77 CrPC
A person may be arrested on the basis of warrant of arrest at any place in India.

Section 78 CrPC
If a warrant needs to be executed outside the local jurisdiction of the issuing Court, the Court has the option to send it through mail or any other means to an Executive Magistrate, District Superintendent of Police, or Commissioner of Police within the jurisdiction where it should be executed. The appointed authority will endorse their name on the warrant and execute it as per the established procedure if feasible.

When a court thus issues a warrant, it must include the details of the charges against the person to be arrested. The court should also provide any supporting documents that may help another court determine whether bail should be granted or denied for that person, according to section 81.

Section 79 CrPC
When a warrant is issued to a police officer for execution outside the area where the court issued it, the police officer should usually get it endorsed (approved) by either an Executive Magistrate or a police officer of at least the rank of a station in-charge within the area where the warrant needs to be enforced.

When a Magistrate or police officer endorses a warrant, it grants permission for the police officer to execute it. In case of any need, the local police should provide assistance.

If there's a risk that waiting for this endorsement will delay the execution of the warrant, the police officer directed in the warrant can execute it without the endorsement in a place beyond the local jurisdiction of the court that issued it.

Section 80 CrPC

When an arrest warrant is executed in a different district, the person arrested should be taken to one of these three places:
  • The court that issued the warrant, but only if it's within 30 kilometers of the place of arrest.
  • The Executive Magistrate or District Superintendent of Police or Commissioner of Police in the area where the arrest happened.
  • Alternatively, if the person has been placed under security as per section 71, they can be brought before the court that issued the warrant.
  • The goal is to ensure that individuals who are arrested are efficiently and promptly presented before the appropriate authorities.

Section 81 CrPC
The Executive Magistrate, District Superintendent of Police, or Commissioner of Police, if they are satisfied that the arrested person is the one mentioned in the warrant, will direct that person to be taken to the court that issued the warrant.

If the offense for which the person is arrested allows for bail and if the arrested individual meets the satisfaction of the Magistrate or Commissioner in terms of providing bail, or if the warrant specifies a requirement for security under section 71, and the arrested person agrees to provide that security, then bail can be granted. The Magistrate or Commissioner will then send the bond to the issuing court.

In cases where the offense is non-bailable, the Chief Judicial Magistrate or Sessions Judge in the district of arrest has the authority to grant bail after examining the details and documents provided in Section 78(2). However, this release on bail is subject to specific conditions outlined in Section 437 CrPC.

Importantly, this section doesn't prevent a police officer from taking security under Section 71 if it's applicable.

Section 82 CrPC
If a court believes that a person against whom it has issued an arrest warrant is hiding and cannot be found, it can publish a written proclamation. The proclamation requires the individual to appear at a designated location and time, usually with a notice of at least thirty days.

The proclamation must be made public in the following ways:
  • It should be publicly read in a noticeable place in the person's town or village of residence.
  • It should be visibly displayed on a prominent part of the individual's house or property, within their local town or village.
  • The court's declaration should be visibly attached to a prominent part of the building.
  • In certain circumstances, the court may choose to publish a copy of the document in a local newspaper if it deems it necessary.
  • If the court provides written confirmation that the notice was published correctly, it will serve as evidence that the court has fulfilled the requirement.
  • If the person wanted for serious offenses listed in this section fails to appear when summoned by the court, the court may conduct an investigation and declare them a "proclaimed offender."

The rules and consequences regarding the publication of the proclamation and being declared a proclaimed offender also apply to the court's declaration.

Quashing of Warrant of Arrest:
In India, both the High Court and the Supreme Court hold the authority to quash an arrest warrant. This power is derived from their inherent jurisdiction to uphold justice and safeguard fundamental rights. If an individual believes that the issuance of an arrest warrant against them is arbitrary, illegal, or infringes upon their fundamental rights, they have the option to seek relief by approaching either the High Court or the Supreme Court.

High Courts have the authority to use their inherent powers, as stated in Section 482 of the Code of Criminal Procedure (CrPC), to quash warrant of arrest where the accusations do not actually amount to an offense. This power is exercised when malafides are involved. Moreover, under writ jurisdiction outlined in Articles 226 and 32 of the Constitution, High Courts and the Supreme Court respectively possess the ability to quash warrants of arrest that are deemed an abuse of the legal process.

Under the following circumstances, the courts have the authority to invalidate or "quash" a warrant of arrest.
  • Lack of jurisdiction: If the court that issued the warrant does not have jurisdiction, the High Court or Supreme Court has the authority to nullify it.
  • Violation of Fundamental Rights: When an arrest warrant infringes on the fundamental rights guaranteed by the Constitution of India, such as the right to life and personal liberty, the courts have the authority to intervene and safeguard these rights.
  • Abuse of Process: The court has the authority to nullify a warrant if it is obtained through an abuse of the legal process or with malicious intent.
  • Illegality: This includes situations where the warrant has legal defects or irregularities that make it invalid.
  • Lack of Evidence: When there is not enough evidence to support the issuance of a warrant, the court has the authority to cancel or reject the warrant.

Court Judgment
The Orissa High Court recently (May, 2023) made a significant ruling regarding the issuance of non-bailable warrant (NBW). In this ruling, while quashing the NBW it clarified that a court cannot simply issue an NBW without carefully considering the entirety of the facts and circumstances. The court must be satisfied that the accused is intentionally avoiding the court proceedings. This decision was made when three individuals faced non-bailable warrants in a cheque bounce case. Justice Savitri Ratho emphasized that due to its severe impact on personal liberty, NBWs should not be issued without thoughtful consideration.

However, it's important to understand that the decision to quash a warrant is determined individually for each case, taking into account the specific facts and circumstances. When someone wants to cancel a warrant, they usually file a writ petition such as habeas corpus or certiorari in the appropriate court to challenge its validity. After careful examination of the case's merits, the court will make a decision.


Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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