Section 73, BNSS 2023

(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 such person from custody.

(2) The endorsement shall state — (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.

📖 State of Uttar Pradesh v. Poosu, (1976) 3 SCC 1

Facts: A warrant of arrest was issued without the endorsement permitting the person to be released on security, and the question was on what considerations a Court exercises the discretion the provision confers, and whether its exercise is examinable.

Held: The Supreme Court held that the provision confers a judicial discretion, and that whether the Court should issue a bailable or a non-bailable warrant has to be determined judicially on the facts and circumstances of each case — it is not a matter of routine, and the discretion is not to be exercised mechanically one way or the other. The Court held that the matters to be weighed include the nature and seriousness of the offence, the past conduct of the person, his age, health and social status, and above all the likelihood of his appearing in answer to the process. It held that where the object of securing attendance can be achieved by a bailable warrant, that is what should issue; and that a non-bailable warrant is appropriate where there is reason to believe the person will not appear voluntarily, will abscond, or will tamper with the evidence. The Court emphasised that the discretion, being judicial, must be exercised on relevant considerations and may be examined on that footing.

Ratio: Whether to issue a bailable or non-bailable warrant is a judicial discretion to be determined on the facts of each case, weighing the seriousness of the offence, the past conduct, the circumstances of the person, and above all the likelihood of his appearing.

📖 Vikas v. State of Rajasthan, (2014) 3 SCC 321

Facts: Non-bailable warrants were being issued as a routine response to non-appearance, without any consideration of whether the person’s attendance could be secured by less drastic means, and the Supreme Court considered the discipline that should govern their issue.

Held: The Supreme Court held that personal liberty is of the utmost importance, and that a non-bailable warrant should not be issued as a matter of course. The Court held that such a warrant should issue only where the person is unlikely to voluntarily appear in court; where the police authorities are unable to find him to serve him with a summons; or where it is considered that he could harm someone if not placed in custody immediately. It held that a court must balance the need for the presence of the accused against the deprivation of his liberty, and must consider whether a summons or a bailable warrant would serve. The Court emphasised that non-bailable warrants cannot be issued to compel a person to attend where there is nothing to suggest he will not come, and that the discretion must be exercised with care and caution, since a warrant wrongly issued causes a deprivation of liberty for which the law offers no adequate remedy.

Ratio: A non-bailable warrant should not be issued as a matter of course. It is appropriate only where the person is unlikely to appear voluntarily, cannot be found for service, or may cause harm — and the need for his presence must be balanced against his liberty.

⚠ The practical discipline

Use the least coercive means that will work. A summons where a summons will serve; a bailable warrant where the object is attendance and there is no reason to suppose he will abscond; a non-bailable warrant only where the circumstances require it.

Record reasons, however briefly. An order which simply says “issue NBW” shows no application of mind and is difficult to defend when examined.

Check whether the summons was actually served. A great many non-bailable warrants issue against persons who never knew they were required to attend — which is why proof of service matters more, not less, now that electronic service is permitted.

And recall the warrant when its purpose is served. Section 72(2) keeps a warrant in force until cancelled or executed, so one left outstanding after the person has appeared is a continuing and unjustified exposure to arrest. The Court should cancel it of its own motion.

The position stated shortly

1. The Sanhita does not use the expressions. Section 73 permits a Court to direct by endorsement that a person arrested on a warrant be released on executing a bond with sufficient sureties.

2. A warrant carrying that endorsement is a bailable warrant; one without it a non-bailable warrant.

3. The endorsement must state the number of sureties, the amount, and the time at which he is to attend — and one which omits these leaves the officer nothing to act on.

4. On a bailable warrant the officer takes the security, releases the person, and forwards the bond to the Court.

5. On a non-bailable warrant he brings the person before the Court without unnecessary delay, and within twenty-four hours.

6. The choice is a judicial discretion to be exercised on the facts of each case, not mechanically: Poosu.

7. The matters to weigh are the seriousness of the offence, the past conduct of the person, his circumstances, and above all the likelihood of his appearing.

8. A non-bailable warrant should not be issued as a matter of course, personal liberty being of the utmost importance: Vikas.

9. It is appropriate where the person is unlikely to appear voluntarily, cannot be found for service, or may cause harm — and the need for his presence must be balanced against his liberty.

10. And a warrant should be cancelled once its purpose is served, since section 72(2) keeps it in force until cancelled or executed.