Warrant of Arrest under the | Section 72 to 83 BNSS

Warrant of Arrest under the BNSS, 2023: Sections 72 to 83, Form and Duration, Bailable and Non-Bailable Warrants, and Execution Outside the Jurisdiction

A warrant of arrest is a written order of a court directing that a named person be arrested and produced before it. It is the second step on the ladder of processes to compel appearance, and it differs from a summons in kind and not merely in degree: a summons asks a person to attend, and a warrant authorises his liberty to be taken away so that he does. That difference is why the Bharatiya Nagarik Suraksha Sanhita, 2023 prescribes the form of a warrant with some precision, why it fixes who may execute it and where, and why the courts have repeatedly said that a non-bailable warrant is not to be issued as a matter of routine.

Sections 72 to 83 govern the subject. They fall into three groups: the form, duration and contents of the warrant; the persons to whom it may be directed and the manner of its execution; and the special machinery that applies when it is executed outside the jurisdiction of the issuing court.

1. Summons and Warrant Compared

	Summons	Warrant of arrest
Nature	An intimation requiring attendance	An order directing arrest and production
Effect on liberty	None. It does not authorise detention	It authorises the person to be taken into custody
Addressed to	The person summoned	The officer or person who is to execute it, not the person named in it
Governing provisions	Sections 63 to 71	Sections 72 to 83
Form	In writing, in duplicate, signed and sealed; or in electronic form with the image of the seal or a digital signature	In writing, signed by the presiding officer, bearing the seal. No electronic form is provided for
Duration	Spent once the date of attendance passes	Remains in force until cancelled or executed: section 72(2)
Consequence of disobedience	The court may issue a warrant under section 90, after recording reasons	The court may proceed to proclamation under section 84 and attachment under section 85
When each is issued	Section 227: ordinarily a summons in a summons case; in a warrant case a warrant, or a summons if the Magistrate thinks fit	Where a summons would not secure attendance, or on its failure

One point of drafting is worth noticing because it is often got wrong. A summons is addressed to the person summoned; a warrant is addressed to the officer who is to execute it. The person named in a warrant is its subject, not its addressee, which is why section 77 has to make separate provision requiring the substance of the warrant to be notified to him and the warrant to be shown to him if he asks.

A second point concerns the absence of any electronic form for a warrant. Section 63(ii) permits a summons to be issued in an encrypted or other form of electronic communication; section 72 contains no equivalent. Whether that is a deliberate distinction or an omission is not settled, but the text as it stands requires a warrant of arrest to be in writing, signed and sealed in the ordinary way.

2. Form and Duration: Section 72

Section 72, BNSS 2023

(1) Every warrant of arrest issued by a Court under this Sanhita 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.

Figure 1: Form, duration and the two kinds of warrant

2.1 The three formal requirements

In writing. An oral direction to arrest is not a warrant. A Magistrate may arrest or order an arrest under section 41 where an offence is committed in his presence, but that is a distinct power and is not the execution of a warrant.
Signed by the presiding officer. Unlike a summons, which may be signed by such other officer as the High Court directs by rule, a warrant must be signed by the presiding officer himself.
Bearing the seal of the court. The seal authenticates the document to an officer who has no other means of verifying it, and to the person arrested, who is entitled to see it under section 77.

2.2 Duration

A warrant does not lapse by effluxion of time. It remains in force until it is cancelled by the court which issued it or until it is executed. Two consequences follow. A warrant issued years earlier and never executed is still a live authority to arrest, which is why the recall of warrants issued in error matters so much in practice. And the court which issued it is the only court that can cancel it, so a warrant issued by one court is not spent by an order of another.

The contents of the warrant are supplied by the form in the Second Schedule, which section 522 permits to be used with such variations as the circumstances require. The form requires the name and description of the person to be arrested and the offence with which he is charged, and requires the officer to whom it is directed to arrest him and produce him before the court.

3. Bailable and Non-Bailable Warrants

Section 73, BNSS 2023: 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 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.

The expressions “bailable warrant” and “non-bailable warrant” appear nowhere in the Sanhita. They describe the presence or absence of the endorsement which section 73 permits. A warrant carrying the endorsement is executed by taking the bond and sureties and releasing the person, who is then bound to attend on the date specified; a warrant without it is executed by taking the person into custody and producing him before the court under section 78.

	Bailable warrant	Non-bailable warrant
Statutory basis	The endorsement under section 73	A warrant under section 72 without that endorsement
What the executing officer does	Takes a bond with sufficient sureties in the amount the endorsement specifies, and releases the person	Arrests the person and brings him before the court under section 78
Production before the court	Not required at the time of execution; the person attends on the date the endorsement specifies	Without unnecessary delay, and in no case beyond twenty-four hours exclusive of journey time
What happens to the bond	Forwarded to the court by the executing officer: section 73(3)	Does not arise
When appropriate	Where the court needs the person’s presence but has no reason to think he will not attend once secured	Where there is reason to believe he will not appear voluntarily, will abscond, or will tamper with evidence or threaten witnesses
Breach	Arrest on breach of the bond under section 92	Proclamation under section 84 and attachment under section 85

📖 Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1

Facts: Non-bailable warrants were issued against the accused in a dispute arising out of an agreement to sell property, in circumstances where the accused had not been shown to be evading the process of the court. The question was in what circumstances a court should issue a non-bailable warrant, and what the consequences of issuing one mechanically are.

Held: The Supreme Court held that personal liberty is paramount and that the issue of a non-bailable warrant involves interference with it. Arrest and imprisonment mean deprivation of the most precious right, and a non-bailable warrant should be issued only when it is reasonable to believe that the person will not voluntarily appear, or when the authorities are satisfied that he will abscond, or when he will tamper with the evidence or threaten or influence witnesses, or when it is impossible to trace or contact him. The Court held that the discretion must be exercised with care and caution, that in complaint cases at the first instance the court should issue a summons or a bailable warrant rather than a non-bailable warrant, and that where a non-bailable warrant has been issued in error, the court should recall it on the matter being brought to its notice.

Ratio: A non-bailable warrant is an interference with personal liberty and must be justified by a real apprehension that the person will not appear. Where a summons or a bailable warrant would answer, the court should not issue one.

📖 Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791

Facts: A non-bailable warrant was executed against the appellant notwithstanding that the court had subsequently cancelled it, the cancellation not having been communicated to the executing officer. He was arrested, handcuffed and paraded, and he complained of the manner of execution and of the absence of any mechanism to prevent the execution of a recalled warrant.

Held: The Supreme Court reiterated that a non-bailable warrant should be issued only where the circumstances warrant it, and laid down directions to prevent its misuse. It directed that all courts should maintain a register of warrants, with particulars of the case, the person against whom it was issued and the date of issue; that the warrant should be issued in duplicate, one copy to be returned by the executing officer with a report; that a warrant should ordinarily specify a date by which it is to be executed and returned; that where a warrant is cancelled or recalled, the fact should be communicated immediately and entered in the register; and that the person executing it should verify the identity of the person arrested with care. The Court also deprecated the handcuffing and parading of the appellant.

Ratio: The issue and execution of a non-bailable warrant require an administrative discipline of record, duplicate, return and immediate communication of recall, so that a warrant no longer in force is not executed.

4. Execution: To Whom Directed, and How

Figure 2: To whom a warrant may be directed, and where it may be executed

Provision	Content
Section 74	Warrants to whom directed. A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing it 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 it. Where 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
Section 75	Warrant may be directed to any person. 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 an escaped convict, a proclaimed offender, or a person accused of a non-bailable offence who is evading arrest. 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. When the person is arrested he shall be made over, together with the warrant, to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction, unless security is taken under section 73
Section 76	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
Section 77	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
Section 78	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 73 as to security, without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person
Section 79	Where warrant may be executed. A warrant of arrest may be executed at any place in India

⚠ Three points on execution

Section 77 is a right of the person arrested, not a formality. He must be told the substance of the warrant, and if he asks, the warrant must be shown to him. A person arrested under a warrant he was never told about, and was not permitted to see, has a substantial grievance, and the requirement corresponds to the duty under section 47 to communicate the grounds of an arrest without warrant.

Section 78 is subject to section 73. Where the warrant carries the security endorsement, the executing officer takes the bond and releases the person, and no production arises. Where it does not, the person must be brought before the court without unnecessary delay, and the twenty-four hour limit in Article 22(2) and in section 58 applies.

Section 75 confers a power on a private person. A person to whom a warrant is directed under that section is not a police officer, and his authority is confined to executing the warrant on land or property under his charge and to making the person over to the nearest police officer.

5. Execution Outside the Jurisdiction

Section 79 permits a warrant to be executed at any place in India. Sections 80 to 83 then supply the machinery that applies when it is executed beyond the local jurisdiction of the court that issued it, and the scheme is one of endorsement before execution and production before removal.

Section 80. Warrant forwarded for execution outside jurisdiction. When a warrant is to be executed outside the local jurisdiction of the Court issuing it, that Court may, instead of directing it to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate, District Superintendent of Police or Commissioner of Police within whose jurisdiction it is to be executed. The Magistrate or officer shall endorse his name on it and, if practicable, cause it to be executed.
Section 81. Warrant directed to a police officer for execution outside jurisdiction. When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the issuing Court, he shall ordinarily take it for endorsement 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 it is to be executed. Such endorsement is sufficient authority to the police officer to whom the warrant is directed to execute it, and the local police shall, if so required, assist. Where delay occasioned by obtaining the endorsement would prevent the execution, the officer may execute it without endorsement in any place beyond the local jurisdiction of the issuing Court.
Section 82. Procedure on arrest of person against whom warrant issued. When a warrant is executed outside the district in which the Court issuing it is situate, the person arrested shall, unless the Court which issued it is within thirty kilometres of the place of arrest, or is nearer than the Executive Magistrate or District Superintendent or Commissioner within whose jurisdiction the arrest was made, or unless security is taken under section 73, be taken before such Magistrate or officer.
Section 83. Procedure by Magistrate before whom such person arrested is brought. The Executive Magistrate, District Superintendent or Commissioner shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to that Court. But if the offence is bailable and the person is ready to give bail to their satisfaction, or a direction under section 73 has been endorsed on the warrant, they shall take the bail or security and forward the bond to the Court which issued the warrant.

⚠ The exception in section 81 does not travel to section 82

Section 81 permits execution without endorsement where the delay in obtaining it would prevent the execution. The test is prevention, not convenience: the officer must be able to say that had he sought the endorsement, the person would have escaped.

Even where that exception applies, section 82 continues to operate. The person arrested must still be taken before the local Executive Magistrate, District Superintendent or Commissioner unless the issuing court is nearer or within thirty kilometres, or security has been taken. Dispensing with the endorsement does not dispense with the production.

The reason for the production is that the principal risk in executing a warrant far from the issuing court is that the wrong person is taken and removed a long distance in custody. Section 83 addresses that risk directly by requiring the local authority to satisfy itself that the person arrested appears to be the person intended.

6. When a Warrant May Be Issued

Provision	Circumstance
Section 227	On taking cognizance, where there is sufficient ground for proceeding: a warrant in a warrant case, or a summons if the Magistrate thinks fit
Section 90	In any case in which a court is empowered to issue a summons, after recording its reasons in writing: where before or after the issue of the summons the court has reason to believe the person has absconded or will not obey it; or where he fails to appear and the summons is proved to have been duly served in time, and no reasonable excuse is offered
Section 92	Where a person who has executed a bond or bail bond for appearance under section 91 breaks its condition
Section 84	The issue of a warrant is a precondition of a proclamation: the section operates where the court has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself
Section 492	Where a bond or bail bond is cancelled, the court may issue a warrant for the arrest of the person released on it

Section 90 is the provision most often relied on, and it repays close reading. It contains two powers, not one. The first is anticipatory, exercisable before the time fixed for appearance and even before the summons has been served, where the court has reason to believe the person has absconded or will not obey it. The second is consequential, exercisable on failure to appear, and it is conditional on the summons being proved to have been duly served, and served in time to admit of his appearing, and on no reasonable excuse being offered. In both cases the Sanhita requires the court to record its reasons in writing, which is the textual answer to the practice of issuing warrants without consideration.

7. Key Takeaways

The position stated shortly

1. A warrant is addressed to the officer who is to execute it, not to the person named in it. That is why section 77 separately requires its substance to be notified to him and the warrant to be shown on demand.

2. Section 72: every warrant shall be in writing, signed by the presiding officer, and bear the seal of the court. No electronic form is provided for, unlike a summons under section 63(ii).

3. A warrant remains in force until cancelled by the issuing court or executed. It does not lapse with time, which is why the prompt recall of a warrant issued in error matters.

4. The expressions bailable and non-bailable warrant describe the presence or absence of the endorsement under section 73, which directs the executing officer to take a bond with sureties and release the person.

5. A non-bailable warrant is an interference with personal liberty and is to be issued only where there is reason to believe the person will not appear voluntarily, will abscond, or will tamper with evidence or threaten witnesses: Inder Mohan Goswami.

6. Courts should maintain a register of warrants, issue them in duplicate with a date for execution and return, communicate a recall immediately, and verify the identity of the person arrested: Raghuvansh Dewanchand Bhasin.

7. A warrant is ordinarily directed to police officers; it may be directed to any other person where immediate execution is necessary and no police officer is available (section 74), and to any person within the jurisdiction for an escaped convict, a proclaimed offender, or a person accused of a non-bailable offence evading arrest (section 75).

8. Section 78 requires the person arrested to be brought before the court without unnecessary delay, subject to the security endorsement; section 79 permits execution at any place in India.

9. Outside the jurisdiction, sections 80 and 81 require endorsement, and sections 82 and 83 require production before the local authority unless the issuing court is nearer or within thirty kilometres, or security has been taken. Dispensing with the endorsement does not dispense with the production.

10. Section 90 contains two powers, one anticipatory and one on failure to appear, and requires the court to record reasons in writing in both cases.

8. Frequently Asked Questions

What is the difference between a summons and a warrant?

A summons is an intimation addressed to the person requiring him to attend, and it does not authorise detention. A warrant is an order addressed to the officer executing it, directing that the person be arrested and produced. A summons is spent once the date passes; a warrant remains in force until cancelled or executed.

What is a bailable warrant?

A warrant carrying the endorsement permitted by section 73, directing the executing officer to take a bond with sufficient sureties for the person’s attendance and to release him from custody. The endorsement states the number of sureties, the amount and the time of attendance, and the bond is forwarded to the court.

When should a non-bailable warrant be issued?

Only where it is reasonable to believe that the person will not voluntarily appear, or that he will abscond, or that he will tamper with the evidence or threaten or influence witnesses, or where it is impossible to trace or contact him. Where a summons or bailable warrant would secure his presence, a non-bailable warrant should not be issued: Inder Mohan Goswami.

Does a warrant of arrest expire?

No. Under section 72(2) it remains in force until it is cancelled by the court which issued it, or until it is executed. Only the issuing court can cancel it.

Must the warrant be shown to the person arrested?

The officer executing it must notify the substance of the warrant to the person to be arrested, and must show him the warrant if he so requires: section 77.

How is a warrant executed in another State?

Under section 79 it may be executed at any place in India. Under section 80 the issuing court may forward it to a local Executive Magistrate, District Superintendent or Commissioner for endorsement; under section 81 an officer carrying it should ordinarily obtain a local endorsement unless the delay would prevent execution; and under sections 82 and 83 the person arrested is taken before the local authority, which directs his removal in custody or takes bail in a bailable offence.

Related Topics

Summons under the BNSS, 2023: Sections 63 to 71
Proclamation and Attachment: Sections 84 to 89, BNSS
Pursuit of Offenders into Other Jurisdictions: Section 45, BNSS
Arrest of Persons under the BNSS, 2023: Sections 35 to 62
Forms under the Second Schedule to the BNSS, 2023
Bailable and Non-Bailable Offences under the BNSS, 2023