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 civilised 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.
When non-bailable warrants should be issued against the Accused
Non-bailable warrant 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; or
- the police authorities are unable to find the person to serve him with a summon; or
- it is considered that the person could harm someone if not placed into custody immediately.
As far as possible, if the court is of the opinion that a 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.‖ (Emphasis supplied)
In Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791, the Supreme Court issued the following guidelines:
―28. However, before parting with the judgment, we feel that in order to prevent such a paradoxical situation, we are faced with in the instant case, and to check or obviate the possibility of misuse of an arrest warrant, in addition to the statutory and constitutional requirements to which reference has been made above, Signature Not Verified Digitally it would be appropriate to issue the following guidelines to be adopted in all cases where non- bailable warrants are issued by the courts: 28.1. All the High Court shall ensure that the subordinate courts use printed and machine numbered Form 2 for issuing warrant of arrest and each such form is duly accounted for;
28.2. Before authenticating, the court must ensure that complete particulars of the case are mentioned on the warrant;
28.3. The presiding Judge of the Court (or responsible officer specially authorised for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon;
28.4. The court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein;
28.5. Every court must maintain a register, in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process;
28.6. No warrant of arrest shall be issued without being entered in the register mentioned above and the court concerned shall periodically check/monitor the same to confirm that every such process is always returned to the court with due report and placed on the record of the case concerned;
28.7. A register similar to the one in para 28.5 supra shall be maintained at the police station concerned. The Station House Officer of the police station concerned shall ensure that each warrant of arrest issued by the court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution;
28.8. Ordinarily, the courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long; 28.9. On the date fixed for the return of the warrant, the court must insist upon a compliance report on the action taken thereon by the Station House Officer of the police station concerned or the officer in charge of the agency concerned;
28.10. The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse;
28.11. In the event of warrant for execution beyond jurisdiction of the court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and 28.12. In the event of cancellation of the arrest warrant by the court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the authority concerned, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused.(Emphasis supplied)
The Supreme Court and different High Courts have repeatedly sought to address the issue of routine issuance of warrants in Vikas v. State of Rajasthan, (2014) 3 SCC 321; Mani Shandly v. State, (2008) 102 DRJ 578; G. Sagar Suri v. State, (2003) 106 DLT 439; Washeshar Nath Chadha v. State, (1992) 47 DLT 152; V.G.K. Senthilnathan v. The Director General of Police, Tamil Nadu Police Headquarters, (2009) 3 MWN (Cri) 246, and M/s Jeevan Emu Care Indian (P) Limited v. The State of Tamil Nadu, (2015) 3 MWN (Cri) 88.
Suggestions for Issuance of Warrants during the Investigation
Investigating Officer may apply to a Magistrate for issuance of warrant of arrest where the offence is cognizable and the accused/suspect is evading his arrest.
While applying for a warrant, the Investigating Officer must show the efforts made for arresting the accused/suspect.
Investigating Officer shall show that the accused/suspect is ordinarily residing at the specific address and that now the accused/suspect 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 an accused/suspect on the ground of unavailability.
Investigating Officer must show that in his opinion interrogation of the accused/suspect is necessary for the just and fair investigation of the offence(s) in question.
Such prayers shall be endorsed by the SHOs and Asst. PP/Chief PP as well with declaration that they are satisfied that it is a fit case for issuance of non-bailable warrants. Suggestions in Respect of Process of Issuance of Proclamation during the Investigation
No proclamation shall be issued by a Court qua an accused/suspect unless the Police Officer has categorically stated in writing that there exists grounds for arrest.
No proclamation shall be issued by a Court qua an accused/suspect unless the jurisdictional Assistant Commissioner of Police ratifies in writing that service has been effected and yet the accused/suspect is evading service.
No proclamation shall be issued by a Court qua an accused/suspect unless the Court records prima facie satisfaction to the effect that the accused/suspect has been duly served with a notice/warrant or is satisfied that the accused/suspect has absconded or is concealing himself so that such warrant cannot be executed.
No proclamation shall be issued by a Court qua accused/suspect merely on the ground that the accused/suspect is not available to the Investigating Officer or the concerned police official for the purpose of joining the investigation. Measures to Enhance the Efficiency and Accuracy in Execution of Warrants and/or Execution of Proclamations
The Investigating Officer or the SHO, shall ensure that they shall personally or through one of their Sub-ordinate official visit the address disclosed by the accused/suspect so as to check its Signature correctness before or while seeking a warrant of arrest from the Court.
The Investigating Officer or the SHO shall record in the case diary the name of at least two respectable persons of the locality of accused/suspect with their contact details like addresses and telephone numbers who ratifies that the address of the accused/suspect mentioned in the applications for seeking warrant of arrest of the accused/suspect is correct and complete. Photocopies of any identity proofs and a photograph of such witnesses shall also be procured by the concerned police officials. For this purpose, a photograph taken by the concerned police official shall be sufficient and the witness will not be required to the police station of the photograph.
The Investigating Officer or the SHO must ascertain the additional addresses of the accused/suspect, permanent or the native place address. In the event that the addresses mentioned are located in other jurisdictions/States, the same shall be sought to be verified through a subordinate or by any other means through the local police authorities of the address disclosed.
The Investigation Officer or the SHO should ascertain mobile, landline connections, identity cards issued in the name of the accused, email address.
The Investigating Officer or the SHO shall take photographs of the dwelling unit of the accused/suspect which is claimed to be the address of the accused/suspect and append the same with the application for issuance of warrants and initiation of proceedings under Section 82/83 of the Code.
The Investigation Officer or the SHO shall ascertain the job profile of the accused/suspect and shall obtain his complete address of his place of work. In cases of private complaint, the complainant shall share all the addresses known and file a documentary proof of the mentioned addresses.
The data of the proclaimed offenders in cases involving the Delhi Police is available on ZIPNET and should be made accessible to the public.
Where the service is required to be undertaken in a foreign jurisdiction, the Trial Courts must issue a warrant, and subsequently a proclamation, only upon being satisfied that the summons has not been able to be served in spite of following the procedure prescribed under the relevant statute of the country where it is sought to be served.
Bail
In Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, the Supreme Court held that anticipatory bail should be not given to an accused who has been declared as an absconder and not cooperated with the investigation. An absconder or a Proclaimed Offender in terms of Section 82 CrPC is not entitled to the relief of anticipatory bail. Whoever knowingly harbours a proclaimed offender to prevent his apprehension is liable to be punished under Section 216 IPC with imprisonment upto 7 years in certain cases. The Court issuing a proclamation may order the attachment of any property belonging to the proclaimed person in order to compel his appearance before the Court under Section 83 CrPC.
In State of Maharashtra v. Dawood Ibrahim Kaskar, 1997 (2) Crimes 92 (SC), the Supreme Court held that a warrant of arrest can be issued by the Court against a person, who is accused of a non- bailable offence and is evading arrest. Enquiries should be made from his relatives, friends and other persons who are likely to be aware of his movements and they should all be warned against harbouring him.
If the accused continues to evade arrest and the warrant cannot be executed, the Police Officer entrusted with the execution of the warrant should be produced before the Magistrate to give evidence to the effect that the warrant could not be executed. The Magistrate should then be requested to issue proclamation under Section 82 CrPC and attachment of property order under Section 83 CrPC. Proceedings under Sections 82 and 83 CrPC should be completed expeditiously.
Section 82 CrPC lays down that if the Court is satisfied that such circumstances exist, the Court will give a time period of 30 days from the date of proclamation within which the person has to appear before the Court. The issuance of warrant is prerequisite for an order of proclamation.
Since non-appearance of accused in response to the proclamation under Section 82 CrPC has been made a substantive offence, the provisions of Section 174A IPC are required to be invoked against absconding accused. When the accused fails to appear before the court in response to the proclamation issued under Section 82(1) CrPC, within the period of 30 days from the date of proclamation, or fails to appear at the specified place and time required by the proclamation issued under Section 82(4) CrPC, he is punishable with imprisonment for a term which may extend to three years or with fine or with both and imprisonment for a term which may extend to seven years or with fine or both, respectively. Submissions of Mr. Surinder.S.Rathi, OSD-cum-Registrar of Delhi High Court When a person declared as an absconder or proclaimed offender (PO)
The word `absconder’ is not defined in the Code of Criminal procedure. It occurs in other provisions of criminal law e.g. Sections 87 and 90(a) CrPC and Section 172 IPC. From the context and object of these provisions an absconder may be said to be one who intentionally makes himself inaccessible to the processes of law. Hence, it is not enough if it is shown that it was not possible to trace him soon after the occurrence.
During Trial
The scenario of abscondance during trial stands on a different footing, at least as compared to abscondance during investigation. In this category, the accused has crossed the stage of joining of investigation and he has been summoned by a Court as an accused to face trial after recording a finding of existence of sufficient material against him. By this time, cognizance of the offence is also taken by the Magistrate/Sessions Courts under Section 190 and 193 CrPC.
There can be two sub-categories. First category can be of those who have not entered appearance in the trial even once. The second category would contain those accused who stop appearing during the course of trial after initially entering appearance and furnishing the bail bond. In the first category, the Court has to ensure that the address at which the accused is sought to be served is the true and complete address of the accused. Many a times, either deliberately or out of ignorance, the prosecuting agency, complainant end up furnishing and incorrect and incomplete address of the accused. Consequently, the Court is constrained to issue processes at such address resulting in non-service and many a times, it leads up to issuance of proclamation against the accused as his last known address.
All the Courts below are directed not to close the matter after declaring a person as a Proclaimed Person/Offender. Rather, the Courts shall direct the police to file the Status Report with respect to the efforts made to trace the Proclaimed Persons/Offenders; efforts made to trace or attach their movable/ immovable assets/properties and their prosecution in accordance with law. The concerned Courts shall monitor the action taken by the Police and shall issue such fresh directions as may be considered necessary. The Court may, in appropriate cases, record the evidence of the witnesses under Section 299 CrPC.
The Ministry of External Affairs shall not issue passport facilities to the absconding accused. The passport of such accused should be revoked under Sections 6 and 10 of the Passport Act, 1967.
Arrest memo
Mandatory affixation of photograph of the accused on the Arrest Memo – The modified Arrest Memo shall also have a mandatory column for affixation of front and side pose photograph of the arrestee. Inclusion of photograph would not only bring credibility to the Arrest Memo but would also come handy in the future proclamation proceedings, if any. Also, once included in the Data Bank of National Crime Record Bureau (NCRB), the photo can be used to identify the repeat offender with the help of latest software tools which use face recognition techniques like super imposition etc.