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E-NOTES

Class : B.A.LL.B VI Semester

Paper Code : LLB 310

Subject : Code of Criminal Procedure

UNIT-2

Arrest and Rights of an Arrested Person

The procedure under Section 57/167of the Cr. P.C, the accused must be produced before a
Magistrate within 24 hours of arrest. On the off chance that the examination can't be finished up
inside this time, a Magistrate may arrange for the remand of the captured individual to police
guardianship u/s 167 (3) of the Cr. P.C.

The Magistrate ought to be completely satisfied that there is acceptable ground to remand the
denounced to police care. Under Section 50 of the Cr. P.C, the captured individual is to be educated
regarding the points of interest of the offense or some other reason for capture. Further, he/ she
without a warrant for an offense which is bailable, he/ she should be educated that he/she is
qualified for be released on bail.

Under Section 50A of the Cr. P.C, the arrested person is entitled to have a person nominated by him
informed about the arrest and moreover the Magistrate is required to satisfy himself that the
provisions of this Section are complied with.

The Supreme Court has also recognized the right of the arrested person to have access to a lawyer
in Nandini Satpathy [(1978) 2SCC 424] and DK Basu [(1997) 1 SCC 410]. Under Section 51 Cr.
P.C, a person who is arrested may be searched and a list shall be prepared of any articles found on
his person. This personal search memo is especially important if there is any allegation of recovery
of incriminating material from the person of the accused.

Any person has to be treated as a human being, irrespective of the fact that such person is a
criminal. The accused persons are also granted certain rights, the most basic of which are found in
the Indian Constitution. The basic assumption behind these rights is that the government has
enormous resources available to it for the prosecution of individuals, and individuals, therefore, are
entitled to some protection from misuse of those powers by the government. An accused has certain
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rights during the course of any investigation; enquiry or trial of offence with which he is charged,
and he should be protected against arbitrary or illegal arrest. Given below are some of the most
important rights of an arrested person:

The ‗right to silence‘ has been derived from common law principles. It means that normally courts
or tribunals should not conclude that the person is guilty of any conduct merely because he has not
responded to questions which were asked by the police or by the court. The Justice Malimath
Committee in its report was of the opinion that right to silence is very much needed in societies
where anyone can be arbitrarily held guilty of any charge. As per the law of evidence, any
statement or confession made to a police officer is not admissible in a court of law. Right to silence
is mainly concerned about confession. The breaking of silence by the accused can be before a
magistrate but should be voluntary and without any duress or inducement.

As per Article 20(3) of Constitution of India guarantees every person has been given a right against
self-incrimination, it states that any person who has been accused of any offence, shall not be
compelled to be a witness against himself. The same was again reiterated by a decision of Supreme
Court in the case of Nandini Sathpathy v. P.L.Dani; wherein it was held that no one can forcibly
extract statements from the accused and that the accused has the right to keep silent during the
course of interrogation (investigation). The Supreme Court again in the year 2010, held that narco-
analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of
India.

Irrespective of the fact, that whether the arrest was made with or without a warrant, the person who
is making such arrest has to bring the arrested person before a judicial officer without any
unnecessary delay. Further, the arrested person has to be confined in police station only and
nowhere else, before taking him to the Magistrate. These matters have been provided in Cr. P.C.
under sections 56 and 76 which are as given below:

Section 56 of Cr. P.C. states that ―Person arrested to be taken before Magistrate or officer in charge
of police station- A police officer making an arrest without warrant shall, without unnecessary
delay and subject to the provisions herein contained as to bail, take or send the person arrested
before a Magistrate having jurisdiction in the case, or before the officer in charge of a police
station‖.

Section 76 of Cr. P.C. states that ―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
71 as to security) without unnecessary delay bring the person arrested before the Court before
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which he is required by law to produce such person‖.

Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed 24
hours in any case. While calculating the time period of 24 hours, the time necessary for the journey
is to be excluded. The same has been enumerated in the Constitution as a Fundamental Right under
Article 22(2). This right has been created with a view to eliminate the possibility of police officials
from extracting confessions or compelling a person to give information.

If the police officials fails to produce an arrested person before a magistrate within 24 hours of the
arrest, the police officials shall be held guilty of wrongful detention.

Under Section 54 Cr. P.C, the arrested person can request that he/she be examined by a medical
practitioner if the examination of his person will either disprove the commission of the offence by
him, or will prove the commission of any offence against his body by another person.
Under Section 53 and 53A Cr. P.C, the police can send the arrested person for medical
examination.

Arrest
Arrest signifies: "a seizure or persuasive restriction; an activity of the ability to deny an individual
of their freedom; the taking or keeping of an individual in care by lawful power, particularly,
because of a criminal accusation.
Arrests can be made on both criminal charges and civil charges, although civil arrest is a drastic
measure that is not looked upon with favor by the courts. The federal Constitution imposes limits
on both civil and criminal arrests.

Arrest how made:

Section 46 of Criminal Procedure Code (hereinafter Cr. P.C) –
In making an arrest the police officer or other person making the same shall actually touch or
confine the body of the person to be arrested, unless there be a submission to the custody by word
or action.

If such person forcibly resists the Endeavour to arrest him, or attempts to evade the arrest, such
police officer or other person may use all means necessary to effect the arrest.
Nothing in this section gives a right to cause the death of a person who is not accused of an offence
punishable with death or with imprisonment for life. Save in exceptional circumstances, no woman
shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist,
the woman police officer shall, by making a written report, obtain the prior permission of the
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Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the
arrest is to be made.] {Ins. by Act 25 of 2005, S. 6 (w.e.f 23-6- 2006)}.

Arrest means a curtailment of personal liberty, for legal purposes. Arrest means preventing a person
from having free movement by applying the authority under law.

Who can arrest:

A police officer may arrest without a warrant under Cr. P.C. Sections 41 (1) to 151; under a warrant
under Sections 72 to 74; under the written order of an officer in charge under Sections 55 and 157;
under the orders of magistrate u/s 44 and in non-cognizable offence u/s 42 Cr. P.C.
 A superior officer u/s 36 Cr. P.C.
 An Officer-in-Charge of a Police Station u/s 42 (2) and 157 Cr. P.C.
 A magistrate u/s 44 Cr. P.C.
 A military officer u/s 130 and 131 Cr. P.C.
 A private person without warrant u/s 43 Cr. P.C., with warrant u/s 72 and 73, under order of a
Police officer u/s 37 and under order of a magistrate u/s 37 and 44 Cr. P.C. and also 60 (1) Cr.
P.C.

Powers of the Police to Arrest:

Sections 41, 42, 151 Cr. P.C. and a Police officer may arrest without warrant u/s 41 Cr. P.C. in the
following conditions: -
 Who has been concerned in any cognizable offence
 Who has in possession, without, lawful excuse, of any house breaking weapon
 Who has been proclaimed as an offender either under Cr. P.C. or by order of the State Govt.
 Who is in possession of any stolen property
 Who obstructs a police officer while in the execution of his duty or who has escaped, or
attempts to escape, from lawful custody
 Who is reasonably suspected of being a deserter from any of the Armed forces of the Union
 Who has been concerned in any law relating to extradition
 Who, being a released convict commits a breach of any rule made under sub-section (5) of
Section 356 Cr. P.C. (i) For whose arrest any requisition has been received from another police
officer specifying the person to be arrested and the offence and other cause for which the arrest
is to be made.

Rights of Arrested Person:

Article 22 of the Constitution provided certain fundamental rights for the arrested persons –
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 Right to know the grounds of his arrest

 Right to consult the lawyer of his choice
 Right to be defended through a counsel
 Right to be produced before the magistrate within 24 hours of arrest
 Right not to be detained beyond 24 hours
 Right to a corresponding duty of the police officer to procure a direction from the Magistrate if
the detention is needed beyond 24 hours.

In a judgment the Supreme Court of India recognized some more rights of an arrested person under
Articles 21 and 22 (2) of the Constitution of India.
 Right to communicate the information of arrest to a friend, relative or well- wisher.
 Right to consult a lawyer
 Right to be informed about his right to seek information to relative friends, well- wisher
through the police
 Right to a corresponding duty that a police officer has to record the details of the person to
whom the information about the arrest is given, in a diary. Besides, the arrested person must be
produced before a registered medical officer for treatment and checkup immediately after
arrest.

There are two types of rights of arrested person: -

 At the time of arrest
 At the time of trial in India accused have more rights as compared to victim
Right to be informed of ground of arrest. Section 50 (1) of Cr. P.C.: Every police officer or other
person arresting any person without warrant shall forthwith communicate to him full particulars of
the offence for which he is arrested or other grounds for such arrest.

Object: – It is one of the principles of natural justice. Obligation of person making arrest to inform
about the arrest etc. to a nominated person.

Section 50 A of Cr. P.C.:

Every police officer or other person making any arrest under this Code shall forthwith give the
information regarding such arrest and place where as may be disclosed or nominated by the arrested
person for the purpose of giving such information.
The police officer shall inform the arrested person of his rights under sub- section (1) as soon as he
is brought to the police station.
An entry of the fact as to who has been informed of the arrest of such form as may be prescribed in
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this behalf by the State Government.

It shall be the duty of the Magistrate before whom such arrested person produced, to satisfy himself
that the requirements of sub-section (2) and sub- section (3) have been complied with in respect of
such arrested person.]
Right to be informed of right to bail. Section 50 (2) of Cr. P.C.: Where a police officer arrests
without warrant any person other than a person accused of a non-bailable offence, he shall inform
the person arrested that he is entitled to be released on bail and that he may arrange for sureties on
his behalf.

Right to be produced before the Magistrate without delay. Section 56 of Cr. P.C.: Person arrested to
be taken before Magistrate or officer in charge of police station. –A police officer making an arrest
without warrant shall, without unnecessary delay and subject to the provisions herein contained as
to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before
the officer in charge of a police station.

Right of not being detained for more than twenty-four hours. Section 76 of Cr. P.C.: 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 71 as to security) without unnecessary delay, bring
the person arrested before the Court before which he is required by law to produce such person:
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate‘s Court.

Right of not being detained for more than twenty-four hours without judicial scrutiny Section 57 of
Cr. P.C.: No police officer shall detain in custody a person arrested without warrant for a longer
period than under all circumstances of the case is reasonable, and such period shall not, in the
absence of special order of a Magistrate under section 167, exceed twenty-four hours exclusive of
the time necessary for the journey from the place of arrest to the Magistrate‘s Court.

Arrest has sweeping results; the economic wellbeing and respect of an individual suspect becomes
in question, even his release can't obliterate the disgrace subsequent upon capture. There are
monetary ramifications for the captured individual and his family.

The public endures its repercussion. Normally, it should be guaranteed that arrests are not affected
in a paltry way and that the privileges of captured people are completely ensured. Towards this
impact, The Cr. P.C. sets down protections to such an extent that the privileges of people revered in
Art. 21 and 22(1) are not abused.

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In any case, it has been some time before the legal arrangements have been perceived taking all
things together its suggestion and they have been offered impact to. Generally, the criminal
organization framework disregards such defends and the legal executive for a long while has been
careless about guaranteeing the appropriate recognition of detainee's privileges.
So there have been many later declarations and statutory enactments which reaffirm the faith in the
rights of arrested persons. The endeavor is to look into various rights of arrested persons, enshrined
in statutes, conventions and judicial pronouncements.

Provision for Bail under the Code

The framework that oversees the situation with people accused of perpetrating wrongdoings, from
the hour of their capture to the hour of their preliminary, and forthcoming allure, with the
significant motivation behind guaranteeing their quality at preliminary. By and large, an individual
blamed for a wrongdoing should be held in the authority of the court until their blame or
blamelessness is resolved.

Nonetheless, the court has the alternative of delivering the person before that assurance is made,
and this choice is called bail. Bail is set by the adjudicator during the litigant's first appearance. For
some, offenses, bail need not be set.

For example, the defendant may be released on the issuance of a citation such as a ticket for a
driving violation or when booked for a minor misdemeanor at a police station or jail. But for major
misdemeanors and felonies, the defendant must appear before a judge before bail is determined.
The courts have several methods available for releasing defendants on bail. The judge determines
which of these methods is used. One alternative is for the defendant to post a bail bond or pledge of
money.

The bond can be endorsed by an expert guarantee holder, the denounced, or the loved ones of the
charged. Marking the bail bond is a guarantee that the respondent will show up in the predefined
criminal continuing. The respondent's inability to show up will make the underwriters of the bond
pay to the court the sum assigned. The measure of bail is for the most part a sum decided
considering the reality of the supposed offense. A respondent can likewise be delivered upon her or
his own recognizance, which is the litigant's composed, uninsured guarantee to return for
preliminary. Such a delivery happens just if the suspect has stable job, stable family ties, and a past
filled with home locally. Stubborn infringement of the particulars of an individual recognizance
comprises a wrongdoing. Different conditions may likewise be set in regards to the arrival of the
litigant.

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The Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141–3150) provided for many additional conditions
that do not rely upon finances and that reflected current trends to move away from financial
requirements for freedom. These conditions came about, in part, owing to concerns regarding the
discriminatory nature of bail toward the poor. The Bail Reform Act allows for conditional releases
dependent upon such circumstances as maintaining employment, meeting curfews, and receiving
medical or psychiatric treatment. Section 436 Cr. P.C. provides that when a person is arrested in a
bailable case, bail is a right to the arrested person. Section 437 Cr. P.C. – It relates to non bailable
offences. Section 438 Cr. P.C. directions for grant of bail to person apprehending arrest. When any
person has reason to believe that the may be arrested on an accusation of having committed a
nonbailable offence, he may apply to the High Court or Court of Sessions for a direction under this
section, and that Court may, if it thinks fir, direct that in the event of such arrest, he shall be
released on bail. Section 439 Cr. P.C. – Special powers of High Court or Court of Sessions
regarding bail. The directions of the Supreme Court should strictly be followed in the matter of
arrest of any person under any law

Anticipatory Bail
Section 438 of the Cr. P.C enables the superior courts to grant anticipatory bail. An anticipatory bail
can be applied for when the person has reason to believe that he/ she may be arrested. An
application for anticipatory bail can be made to the Sessions Court, the High Court or even the
Supreme Court. However, normally it is to be presumed that the Court of Sessions would be first
approached for grant of anticipatory bail.

The court may consider the following aspects when considering an application for anticipatory bail:
the nature and gravity of accusation; the antecedents of the applicant; The possibility that the
accused may flee from justice; and the accusation appears to be aimed at humiliating the applicant.
The Cr. P.C has not given any test or criterion to determine cognizable or non- cognizable offences.
The First Schedule of Cr. P.C, however, indicates that all offences punishable with imprisonment
for not less than three years are taken as serious offences and are treated as cognizable. Offences
such as murder, robbery, dacoit, rape and kidnapping are cognizable offences. Offencesrelating to
marriage including bigamy and adultery are punishable with more than five years‘ imprisonment,
yet they have been included in the category of non-cognizable offences. Other offences though
serious have been considered as non-cognizable only. Such person shall not be so released if there
appear reasonable grounds for believing that he has been guilty of an offence punishable with death
or imprisonment for life;such person shall not be so released if such offence is a cognizable offence
and he has been previously convicted of an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been previously convicted on two or more
occasions of a non- bailable and cognizable offence.
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Provided that the Court may direct that a person referred to in clause (1) of clause (ii) be released
on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on
bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by
witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is
otherwise entitled to be released on bail and gives an undertaking that he shall comply with such
directions as may be given by the Court.

If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case
may be, that there are no reasonable grounds for believing that the accused has committed a non-
bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall,
subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the
discretion of such officer or Court, on the execution by him of a bond without sureties for his
appearance as hereinafter provided- When a person accused or suspected of the commission of an
offence punishable with imprisonment which may extend to seven years or more or of an offence
under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or
abatement of, or conspiracy or attempt to commit, any such offence, is released on bail undersub-
section (1), the Court may impose any condition which the Court considers necessary, -in order to
ensure that such person shall attend in accordance with the conditions of the bond executed under
this Chapter, or In order to ensure that such person shall not commit an offence similar to the
offence of which he is accused or of the commission of which he is suspected, or otherwise in the
interests of Justice. An officer or a Court releasing any person on bail under sub-section (1) or
subsection (2), shall record in writing his or its reasons or special reasons, for so doing.

Any Court which has released a person on bail under sub-section (1) or subsection (2), may, if it
considers it necessary so to do, direct that such person be arrested and commit him to custody.
If, in any case triable by a Magistrate, the trial of a person accused of any non bailable offence is
not concluded within a period of sixty days from the first date fixed for taking evidence in the case,
such person shall, if he is in custody during the whole of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise
directs.
If, at any time, after the conclusion of the trial of a person accused of a non bailable offence and
before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing
that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on
the execution by him of a bond without sureties for his appearance to hear judgment delivery.
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Process to Compel Appearance of Person Summons Form of summons—

Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the
presiding officer of such Court or by such other officer as the High Court may, from time to time,
by rule direct, and shall bear the seal of the Court.

Summons how served

Every summons shall be served by a police officer, or subject to such rules as the State Government
may make in this behalf, by an officer of the Court issuing it or other public servant. The summons
shall, if practicable, be served personally on the person summoned, by delivering or tendering to
him one of the duplicates of the summons.
Every person on whom a summons is so served shall, if so required by the serving officer, sign a
receipt therefore on the back of the other duplicate. Service of summons on corporate bodies and
societies Service of a summons on a corporation may be effected by serving it on the secretary,
local manager or other principal officer of the corporation, or by letter sent by registered post,
addressed to the chief officer of the corporation in India, in which case the service shall be deemed,
to have been effected when the letter would arrive in ordinary course of post.

Explanation—In this section "corporation" means an incorporated company or other body corporate
and includes a society registered under the Societies Registration Act, 1860 (21 of 1860) Service
when persons summoned cannot be found — Where the person summoned cannot, by the exercise
of due diligence, be found, the summons may be served by leaving one of the duplicates for him
with some adult male member of his family residing with him, and the person with whom the
summons is so left shall, if so required by the serving officer, sign a receipt therefore on the back of
the other duplicate Explanation—A servant is not a member of the family within the meaning of
this section 65.

Procedure when service cannot be effected as before provided If service cannot by the exercise of
due diligence be effected as provided in section 62, section 63 or section 64, the serving officer
shall affix one of the duplicates of the summons to some conspicuous part of the house or
homestead in which the person summoned ordinarily resides; and thereupon the Court, after making
such inquiries as it thinks fit, may either declare that the summons has been duly served or order
fresh service in such manner as it considers proper. Service on Government servant.

Where the person summoned is in the active service of the Government, the Court issuing the
summons shall ordinarily send it in duplicate to the head of the office in which such person is
employed; and such head shall thereupon cause the summons to be served in the manner provided
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by section 62, and shall return it to the Court under his signature with the endorsement required by
that section.

Such signature shall be evidence of due service. Service of summons outside local limits When a
Court desires that a summons issued by it shall be served at any place outside its local jurisdiction,
it shall ordinarily send summons in duplicate to a Magistrate within whose local jurisdiction the
person summoned resides, or is, to be there served. Proof of service in such cases and when serving
officer not present –
When a summons issued by a Court is served outside its local jurisdiction, and in any case where
the officer who has served a summons is not present at the hearing of the case, an affidavit,
purporting to be made before a Magistrate, that such summons has been served, and a duplicate of
the summons purporting to be endorsed (in the manner provided by section 62 or section 64) by the
person to whom it was delivered or tendered or with whom it was left, shall be admissible in
evidence, and the statements made therein shall be deemed to be correct unless and until the
contrary is proved.

The affidavit mentioned in this section may be attached to the duplicate of the summons and
returned to the Court. Service of summons on witness by post

Notwithstanding anything contained in the preceding section of this Chapter, a Court issuing a
summons to a witness may, in addition to and simultaneously with the issue of such summons,
direct a copy of the summons to be served by registered post addressed to the witness at the place
where he ordinarily resides or carries on business or personally works for gain
When an acknowledgment purporting to be signed by the witness or an endorsement purporting to
be made by a postal employee that the witness refused to take delivery of the summons has been
received, the Court issuing the summons may declare that the summons has been duly served Form
of warrant of arrest and duration

Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the
presiding officer of such Court and shall bear the seal of the Court
Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it
is executed Power to direct security to be taken

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
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Warrants to whom directed

A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing
such a warrant 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 the
same.

When 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.

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 any escaped convict, proclaimed offender or of any
person who is accused of a non-bailable offence and 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 against whom such warrant is issued is arrested, he shall be made over with the
warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having
jurisdiction in the case, unless security is taken under section 71. 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. Notification of
substance of warrant. The police officer or other person executing not a warrant of arrest shall
notify the substance thereof to the person to be arrested, and, if so required, shall show him the
warrant. 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 71 as to security) without
unnecessary delay brings the person arrested before the Court before which he is required by law to
produce such person:

Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate's Court. Where warrant may be
executed A warrant of arrest may be executed at any place in India Warrant forwarded for
execution outside jurisdiction.

When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such Court
may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or
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otherwise to any Executive.

Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of
whose jurisdiction it is to be executed; and the Executive Magistrate or District Superintendent or
Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the
manner hereinbefore provided- The Court issuing a warrant under sub-section (1) shall forward,
along with the warrant, the substance of the information against the person to be arrested together
with such documents, if any, as may be sufficient to enable the Court acting under section 81 to
decide whether bail should or should not be granted to the person Warrant directed to police officer
for execution outside jurisdiction –

When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the
Court issuing the same, he shall ordinarily take it for endorsement either 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 the warrant is to be executed.

Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be
sufficient authority to the police officer to whom the warrant is directed to execute the same, and
the local police shall, if so required, assist such officer in executing such warrant.

Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the
Magistrate or police officer within whose local jurisdiction the warrant is to be executed will
prevent such execution, the police officer to whom it is directed may execute the same without such
endorsement in any place beyond the local jurisdiction of the Court which issued it.
Procedure of arrest of person against whom warrant issued.

When a warrant of arrest is executed outside the district in which it was issued, the person arrested
shall, unless the Court which issued the warrant is within thirty kilometers of the place of arrest or
is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of
Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken
under section 71, be taken before such Magistrate or District Superintendent or Commissioner
Procedure by Magistrate before whom such person arrested is brought.

The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if

the person arrested appears to be the person intended by the Court which issued the warrant, direct
his removal in custody to such Court: Provided that, if the offence is bailable, and such person is
ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or
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Commissioner, or a direction has been endorsed undersection 71 on the warrant and such person is
ready and willing to give the security required by such direction, the Magistrate, District
Superintendent or Commissioner shall take such bail or security, as the case may be, and forward
the bond, to the Court which issued the warrant: Provided further that if the offence is a non-
bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of section
437), or the Sessions Judge, of the district in which the arrest is made on consideration of the
information and the documents referred to in sub-section (2) of section 78 to release such person on
bail.

Nothing in this section shall be deemed to prevent a police officer from taking security under
section 71 Proclamation and attachment Proclamation for person absconding: -
If Any Court has reason to believe (whether after taking evidence or not) that any person against
whom a warrant has been issued by it has absconded or is concealing himself so that such warrant
cannot be executed, such Court may publish a written proclamation requiring him to appear at a
specific place and at a specified time not less than thirty days from the date of publishing such
proclamation

The proclamation shall be published as follows— (a) it shall be publicly read in some conspicuous
place of the town or village in which such person ordinarily resides; it shall be affixed to some
conspicuous part of the house or home-stead in which such person ordinarily resides or to some
conspicuous place of such town or village; (c) a Copy thereof shall be affixed to some conspicuous
part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to
be published in a daily newspaper circulating in the place in which such person ordinarily resides.

The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at
any time after the issue of the proclamation, order the attachment of any property, movable or
immovable, or both, belonging to the proclaimed person: Provided that where at the time of the
issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation
to whom the proclamation is to be issued, — is about to dispose of the whole or any part of his
property, or is about to remove the whole or any part of his property from the local jurisdiction of
the Court, it may order the attachment simultaneously with the issue of the proclamation.

Such order shall authorize the attachment of any property belonging to such person within the
district in which it is made; and it shall authorize the attachment of any property belonging to such
person without such district when endorsed by the District Magistrate within whose district such
property is situate.

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If the property ordered to be attached is a debt or other movable property, the attachment under this
section shall be made— (a) by seizure; or (b) by the appointment of a receiver; or (c) by an order in
writing prohibiting the delivery of such property to the proclaimed person or to any one on his
behalf; or (d) by all or any two of such methods, as the Court thinks fit.

If the property ordered to be attached is immovable, the attachment under this section shall, in the
case of land paying revenue to the State Government, be made through the Collector of the district
in which the land is situate, and in all other cases— by taking possession; or by the appointment of
a receiver; or by an order in writing prohibiting the payment of rent on delivery of property to the
proclaimed person or to any one on his behalf; or by all or any two of such methods, as the Court
thinks fit.

If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court
may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale
shall abide the order of the Court. The powers, duties and liabilities of a receiver appointed under
this section shall be the same as those of a receiver appointed under the Code of Civil Procedure,
1908 Other rules regarding processes Issue of warrant in lieu of, or in addition to, summons A
Court may, in any case in which it is empowered by this Code to issue a summons for the
appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest— if,
either before the issue of such summons, or after the issue of the same but before the time fixed for
his appearance, the Court sees reason to believe that he has absconded or will not obey the
summons; or if at such time he fails to appear and the summons is proved to have been duly served
in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for
such failure.

Power to take bond for appearance

When any person for whose appearance or arrest the officer presiding in any Court is empowered to
issue a summons or warrant, is present in such Court, such officer may require such person to
execute a bond, with or without sureties, for his appearance in such Court, or any other Court to
which the case may be transferred for trial

Arrest on breach of bond for appearance

When any person who is bound by any bond taken under this Code to appear before a Court, does
not appear, the officer presiding in such Court may issue a warrant directing that such person be
arrested and produced before him Provisions of this Chapter generally applicable to summons and
warrants of arrest The provisions contained in this Chapter relating to a summons and warrants, and
their issue, service and execution, shall, so far as may be, apply to every summons and every
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warrant of arrest issued under this Code.

Process to Compel Production of Things Summons to produce document or other thing, Whenever
any Court or any officer in charge of a police station considers that the production of any document
or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other
proceeding under this Code by or before such Court or officer, such Court may issue a summons, or
such officer a written order, to the person in whose possession or power such document or thing is
believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated
in the summons or order.

Any person required under this section merely to produce a document or other thing shall be
deemed to have complied with the requisition if he causes such document or thing to be produced
instead of attending personally to produce the same. Nothing in this section shall be deemed—
(a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers,
Books Evidence Act, 1891(13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of
the postal or telegraph authority.

Search-warrants
A search warrant is a document signed by a magistrate giving law enforcement officers the
authority to search a specified place for specific items that are particularly described in the warrant.
A warrant must be based on another document called an affidavit, which is signed under oath by
some person (a police officer or any other person) expressing the belief that certain items will be
found at the location to be searched and giving facts that support the belief. Those facts must
constitute probable cause that the objects of the search will be found at the described location. Only
those items specifically named in the warrant can be searched for. A warrant can authorize the
search and seizure of computer hardware, digital information, or both. Overly broad language (such
as authorization to seize ―all records‖ or ―all computers‖) can result in the warrant being
invalidated; the warrant must specify the crime(s) to which the evidence pertains.

Search warrants only apply to law enforcement and those who are acting under the color of
law enforcement. If private citizens carry out actions or investigations or on behalf of law
enforcement, then these individuals are acting under the color of law and can be considered
as agents of law enforcement. An example of acting under the color of law would be when law
enforcement becomes involved in a corporate case and corporate security professionals are seizing
data under direct supervision of law enforcement. If a person is acting under the color of law, then
they must be cognizant of the Fourth Amendment rights related to unreasonable searches and
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seizures. A person acting under the color of law who deprives someone of his or her
constitutionally protected rights can be found guilty of having committed a crime under Title 18. U.
S. C. Section 242—Deprivation of Rights Under Color of Law.

A search warrant is not required if law enforcement is not involved in the case. However,
organizations should exercise care in ensuring that employees are made aware in advance that their
actions are monitored, and that their equipment, and perhaps even personal belongings, are subject
to search. Certainly, these notifications should only be made if the organization‘s security policy
warrants them. Further, corporate policy regarding search and seizure must take into account the
various privacy laws in the applicable jurisdiction.

When search-warrant may be issued

Where any Court has reason to believe that a person to whom a summons or order under section 91
or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or
would not produce the document or thing as required by such summons or requisition, or where
such document or thing is not known to the Court to be in the possession of any person, or where
the Court considers that the purposes of any inquiry, trial or other proceeding.

Search warrants and the supporting affidavits must follow strict guidelines as to form and content,
and the reliability of the affiant (the person signing the affidavit) must be established to the
satisfaction of the magistrate who issues the warrant. From the officer's point of view, it is always
preferable to have a search warrant rather than searching without a warrant, because a warrant
relieves the officer of the responsibility of showing that probable cause and/or applicable
exceptions to the search warrant requirements existed.

The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all search-
warrants issued under section 93, section 94, section 95 or section 97 Persons in charge of closed
place to allow search. Whenever any place liable to search of inspection under this Chapter is
closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or
other person executing the warrant, and on production of the warrant, allow him free ingress
thereto, and afford all reasonable facilities for a search therein.

If ingress into such place cannot be so obtained, the officer or other person executing the warrant
may proceed in the manner provided by sub-section (2) of section 47. Where any person in or about
such place is reasonably suspected of concealing about his person any article for which search
should be made, such person may be searched and if such person is a woman, the search shall be
made by another woman with strict regard to decency. Before making a search under this Chapter,
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the officer or other person about to make it shall call upon two or more independent and respectable
inhabitants of the locality in which the place to be searched is situate or of any other locality if no
such inhabitant of the said locality is available or is willing to be a witness to the search, to attend
and witness the search and may issue an order in writing to them or any of them so to do.

The search shall be made in their presence, and a list of all things seized in the course of such
search and of the places in which they are respectively found shall be prepared by such officer or
other person and signed by such witnesses; but no person witnessing a search under this section
shall be required to attend the Court as a witness of the search unless specially summoned by it

The occupant of the place searched, or some person in his behalf, shall, in every instance, be
permitted to attend during the search, and a copy of the list prepared under this section, signed by
the said witnesses, shall be delivered to such occupant or person

When any person is searched under sub-section (3), a list of all things taken possession of shall be
prepared, and a copy thereof shall be delivered to such person (8) Any person who, without
reasonable cause, refuses or neglects to attend and witness a search under this section, when called
upon to do so by an order in writing delivered or tendered to him, shall be deemed to have
committed an offence under section 187 of the Indian Penal Code (45 of 1860).

Condition Requisites for Initiation of Proceeding

Cognizance of offences by Magistrates –
Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under sub-section, may take cognizance of any
offence—
 upon receiving a complaint of facts which constitute such offence;
 upon a police report of such facts;
 upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.

The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance
under sub-section of such offences as are within his competence to inquire into or try Transfer on
application of the accused – When a Magistrate takes cognizance of an offence under clause (c) of
sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he
is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of
the accused, if there be more than one, objects to further proceedings before the Magistrate taking
cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief
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Judicial Magistrate in this behalf Making over of cases to Magistrates –

Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for
inquiry or trial to any competent Magistrate subordinate to him
Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may,
after taking cognizance of an offence, make over the case for inquiry or trial to such other
competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and
thereupon such Magistrate may hold the inquiry or trial.
Complaint to Magistrate Examination of complainant –

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any, and the substance of such examination shall be
reduced to writing and shall be signed by the complainant and the witnesses, and also by the
Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the
complainant and the witnesses—If a public servant acting or purporting to act in the discharge of
his official duties or a Court has made the complaint; or if the Magistrate makes over the case for
inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate
makes over the case to another Magistrate under section 192 after examining the complainant and
the witnesses, the latter Magistrate need not re-examine them.

Procedure by Magistrate not competent to take cognizance of the case - If the complaint is made to
a Magistrate who is not competent to take cognizance of the offence he shall, —
If the complaint is in writing, return it for presentation to the proper Court with an endorsement to
that effect; If the complaint is not in writing, direct the complainant to the proper Court
Postponement of issue of process.

Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take

cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone
the issue of process against the accused, and either inquire into the case himself or direct an
investigation to be made by a police officer or by such other person as he thinks fit, for the purpose
of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction
for investigation shall be made,—where it appears to the Magistrate that the offence complained of
is triable exclusively by the Court of Sessions; or where the complaint has not been made by a
Court, unless the complainant and the witnesses present (if any) have been examined on oath under
section 200 (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take
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evidence of witness on oath: Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he shall call upon the complainant to
produce all his witnesses and examine them on oath(3) If an investigation under sub-section (1) is
made by a person not being a police officer, he shall have for that investigation all the powers
conferred by this Code on an officer in charge of a police station except the power to arrest without
warrant.

Dismissal of complaint –
If, after considering the statements on oath (if any) of the complainant and of the wit nesses and the
result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that
there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case
he shall briefly record his reasons for so doing

Commencement of Proceeding before Magistrate Issue of process

If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be—a summons-case, he shall issue his summons for the
attendance of the accused, ora warrant-case, he may issue a warrant, or, if he thinks fit, a summons,
for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he
has no jurisdiction himself) some other Magistrate having jurisdiction No summons or warrant shall
be issued against the accused under sub- section (1) until a list of the prosecution witnesses has
been filed

In a proceeding instituted upon a complaint made in writing, every summons or warrant issued
under sub-section (1) shall be accompanied by a copy of such complaint
When by any law for the time being in force any process-fees or other fees are payable, no process
shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the
Magistrate may dismiss the complaint.

Nothing in this section shall be deemed to affect the provisions of section87. Magistrate may
dispense with personal attendance of accused –
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the
personal attendance of the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the
proceedings, direct the personal attendance of the accused, and, if necessary, enforce such
attendance in the manner hereinbefore provided.

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Campus: Plot No. OCF, Sector A-8, Narela, Delhi-110040

Ph: 91-11-27284333 / 34. Toll Free No. : 1800117677. Website: www.cpj.edu.in. E-mail: [email protected]