Issuance of Summons, Warrants and Bailable/Non-Bailable Warrants

Every criminal trial begins with a deceptively simple problem: how does the court lawfully drag a reluctant person before it without crushing personal liberty in the process? The Code answers with a graduated toolkit — summons first, then bailable warrant, and only as a last resort the non-bailable warrant. Chapter VI of the Code of Criminal Procedure, 1973 (now Chapter VI, Sections 63–93 of the Bharatiya Nagarik Suraksha Sanhita, 2023) calls these the processes to compel appearance, and the state Criminal Rules of Practice translate them into the office routine of seals, registers and forms. For the judiciary aspirant, this is one of the highest-yield topics: it fuses bare-section recall, the discretion of the issuing magistrate, and a celebrated line of Supreme Court cases on the misuse of arrest warrants. This chapter walks through each instrument, the form it must take, the manner of service and execution, and the constitutional caution the courts have built around the non-bailable warrant.

The scheme: a ladder of compulsion

Chapter VI of the CrPC — reproduced with a fresh numbering and a digital overlay as Chapter VI of the BNSS — is built around a single organising idea: the court should use the least coercive process that will actually secure attendance, and escalate only when that fails. The chapter opens with summons (Sections 61–69 CrPC / 63–71 BNSS), moves to warrants of arrest (Sections 70–81 CrPC / 72–83 BNSS), then to proclamation and attachment for absconders (Sections 82–86 CrPC / 84–86 BNSS), and closes with three pivotal cross-cutting provisions — issue of warrant in lieu of summons (Section 87 CrPC / 90 BNSS), power to take a bond from a person present in court (Section 88 CrPC / 91 BNSS), and the general-application clause (Section 90 CrPC / 93 BNSS).

The internal logic matters for examiners. A summons is a polite invitation backed by the threat of escalation; a warrant is a command addressed to a police officer to seize the body of the accused. Whether the warrant carries an endorsement permitting release on bail is what separates a bailable warrant from a non-bailable one. The Criminal Rules of Practice of each High Court — Maharashtra, Madras, Allahabad, Karnataka and others — then prescribe the printed forms, the seal, the register entries and the diarising that turn these statutory powers into clerkable office procedure. For the wider architecture of how these courts are constituted to exercise such powers, see our note on the constitution and sittings of criminal courts.

Summons: form under Section 61 CrPC / Section 63 BNSS

A summons is the gentlest of the compelling processes — a written direction to a person to attend court on a stated day. Section 61 CrPC lays down its essential form: every summons must be (i) in writing, (ii) in duplicate, (iii) signed by the presiding officer of the court (or such other officer as the High Court may by rule direct), and (iv) bear the seal of the court. The duplicate is the heart of the design: one copy is tendered to the person, and his signature or thumb-impression is taken on the reverse of the other copy as proof of service.

Section 63 BNSS reproduces this but adds a decisive modernisation: a summons may now be issued in an encrypted or any other form of electronic communication and shall bear the image of the seal of the court or the digital signature. This statutory recognition of electronic summons — absent from the 1973 Code — is the single most examinable point of departure between the two regimes. The Criminal Rules of Practice supply the prescribed printed form and require the issuing court to keep a process register, so that the duplicate, once returned with the acknowledgment, becomes a record of due service.

Service of summons: Sections 62–69 CrPC / 64–71 BNSS

Form is only half the law; service is the other. Section 62 CrPC (Section 64 BNSS) prescribes the ordinary mode: a summons is served by a police officer, or by an officer of the issuing court or other public servant, and shall if practicable be served personally on the person summoned by delivering or tendering one of the duplicates, against acknowledgment on the other. Personal service is the rule; the substituted modes are exceptions that may be resorted to only when personal service cannot be effected.

Where the person cannot be found, Section 64 CrPC (Section 66 BNSS) permits the duplicate to be left with some adult member of his family residing with him — the CrPC said "adult male member", and a servant is expressly not treated as family. Section 65 CrPC (Section 67 BNSS) supplies the last resort: if service in either earlier manner cannot by the exercise of due diligence be effected, the serving officer shall affix one duplicate to a conspicuous part of the house where the person ordinarily resides, and the court, after such enquiry as it thinks fit, may declare the summons duly served. Sections 66–69 CrPC further provide for service on government servants through the head of office, service outside local limits, and service of summons on witnesses by post. The BNSS, in Section 71, expands the post mode and dovetails it with electronic service, reflecting the digital-first orientation of the new Code.

Summons-case, warrant-case and the choice of process

The choice between summons and warrant is not free-floating; it is partly dictated by the classification of the offence and partly left to judicial discretion. The First Schedule and Section 2(w) and 2(x) CrPC (Section 2(1)(w) and (x) BNSS) divide cases into summons-cases (offences punishable with imprisonment up to two years) and warrant-cases (death, life imprisonment or imprisonment exceeding two years). When a magistrate takes cognizance and issues process under Section 204 CrPC (Section 227 BNSS), the section itself tells him: in a summons-case, issue a summons; in a warrant-case, he may issue a warrant or, if he thinks fit, a summons.

Crucially, the classification fixes only the starting instrument; it does not compel the harshest one. Even in a warrant-case the magistrate retains discretion to begin with a summons, and the higher courts have repeatedly read Section 204 as favouring the less coercive option at the threshold. How the court reaches the cognizance stage at all — through complaint, FIR or charge-sheet — is taken up in our note on the filing of complaints, FIRs and charge-sheets.

Warrant of arrest: form and duration under Section 70 CrPC / Section 72 BNSS

A warrant of arrest is a written order issued and signed by the presiding officer of a court, bearing the court's seal, directing a named police officer or person to arrest the accused and produce him before the court. Section 70 CrPC (Section 72 BNSS) prescribes both its form and its life: every warrant of arrest shall be in writing, signed by the presiding officer and bear the seal of the court, and shall remain in force until it is cancelled by the court which issued it, or until it is executed. A warrant therefore does not lapse with time; it is a standing command until cancellation or execution.

This permanence is exactly why courts insist on caution before issuing one. Because a warrant directly authorises seizure of the body, the Supreme Court in Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791, stressed that the issuing court must ensure that a warrant which has been recalled or whose purpose is spent is promptly cancelled and the cancellation communicated, so that no person is arrested on a dead warrant. In that case the Court upheld compensation awarded against the police officer who executed a cancelled non-bailable warrant against a practising advocate — a vivid illustration of the cost of mechanical process.

Bailable warrant: the Section 71 CrPC / Section 73 BNSS endorsement

A bailable warrant is not a separate species of order but an ordinary warrant of arrest carrying a special endorsement. Section 71 CrPC (Section 73 BNSS) empowers the court, in its discretion, to direct by endorsement on the warrant that if the person arrested executes a bond with sufficient sureties for his attendance before the court, the officer executing the warrant shall take such security and release him from custody. The endorsement must state (a) the number of sureties, (b) the amount of the bond, and (c) the time at which the person is to attend the court.

The practical effect is humane: the arrested person need not be brought into the lock-up at all if he can furnish bail at the point of arrest. The endorsement under Section 71 is what makes the warrant bailable; its absence makes the same instrument a non-bailable warrant. The Criminal Rules of Practice prescribe a distinct printed form for the bailable warrant and require the executing officer to record on the warrant the bond and sureties taken, returning the warrant to the issuing court with that endorsement.

Non-bailable warrant: when the body must be produced

A non-bailable warrant is simply a warrant of arrest without the Section 71 endorsement: the executing officer has no power to release the arrested person and must bring the body before the court. Section 70 CrPC (Section 72 BNSS) read with Section 56 and Section 76 requires that the arrested person be produced before the court without unnecessary delay and, in any event, within twenty-four hours exclusive of journey time — the constitutional guarantee of Article 22(2) operating through the Code.

Because a non-bailable warrant is the bluntest instrument the court possesses, its issuance is hedged with the most stringent judicial caution. It is reserved for situations where summons or a bailable warrant would be unlikely to secure attendance — where the accused is absconding, evading service, or where the gravity of the offence and the risk of flight or tampering genuinely demand custody. The line of authority discussed below treats the non-bailable warrant not as a routine docket-management tool but as an exception to be justified on recorded reasons.

Judicial discretion: State of U.P. v. Poosu

The foundational statement on how a court chooses between a bailable and a non-bailable warrant comes from State of U.P. v. Poosu, (1976) 3 SCC 1. The Supreme Court held that whether, in the circumstances of a case, the attendance of the accused can best be secured by issuing a bailable warrant or a non-bailable warrant is a matter that rests entirely in the discretion of the court. That discretion, the Court cautioned, cannot be reduced into an immutable formula applicable in all situations, nor exercised mechanically.

In exercising it, the court must weigh a cluster of factors: the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, the possibility of his absconding, the likelihood of his tampering with witnesses, and the larger interest of the public and the State. Poosu thus supplies the analytical checklist that every later judgment refines — the warrant is an instrument of compulsion, and the degree of compulsion must be calibrated to the demonstrated need.

The leading caution: Inder Mohan Goswami v. State of Uttaranchal

The single most cited authority on non-bailable warrants is Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1. A Special Judicial Magistrate at Rishikesh had issued a non-bailable warrant against the appellants on the strength of an FIR under Sections 420 and 467 IPC. The Supreme Court, allowing the appeal, laid down the now-classic graduated approach: personal liberty is paramount, and a non-bailable warrant should be issued to bring a person to court only when summons or bailable warrants would be unlikely to have the desired result.

The Court articulated a three-stage ladder. At the first instance, the court should direct service of summons together with a copy of the complaint. If the accused appears to be avoiding the summons, the court may, at the second instance, issue a bailable warrant. Only at the third instance — when the court is fully satisfied that the accused is deliberately evading the court's process — should it resort to a non-bailable warrant. Inder Mohan Goswami warns that non-bailable warrants cannot be issued to harass, intimidate or humiliate, and that courts must be "extremely careful" before signing one. This is the framing line of the entire topic and almost certain to appear in any mains answer.

Warrant in lieu of, or in addition to, summons: Section 87 CrPC / Section 90 BNSS

Section 87 CrPC (Section 90 BNSS) is the statutory hinge that permits escalation. It empowers a court that has issued, or is empowered to issue, a summons to instead issue a warrant for arrest — either in lieu of or in addition to the summons — but only in two situations and only after recording its reasons in writing: (a) if, either before or after the issue of summons but before the time fixed for appearance, the court sees reason to believe that the person has absconded or will not obey the summons; or (b) if at the appointed time the person fails to appear and the summons is proved to have been duly served in time to admit of his appearing, and no reasonable excuse is offered.

The recording of reasons is not a formality. As the Supreme Court reiterated, drawing on Poosu and the Section 87 framework, a magistrate who escalates to a warrant must record that the accused has been absconding, or will not obey the summons, or has failed to appear despite proof of due service. The Court returned to this theme in Sharif Ahmed v. State of Uttar Pradesh, 2024 INSC 363, cautioning against the routine issuance of non-bailable warrants without first satisfying service of summons or bailable warrants and without a genuine reason to believe the accused is evading process. Section 87 is therefore the textual anchor for the entire Inder Mohan Goswami doctrine.

Power to take a bond: Section 88 CrPC / Section 91 BNSS

Where the person whose appearance is wanted is already present in court, the law offers a frictionless alternative to any warrant. Section 88 CrPC (Section 91 BNSS) provides that when any person for whose appearance or arrest the presiding officer is empowered to issue a summons or warrant is present in court, the officer may require that person to execute a bond, with or without sureties, for his appearance in that court or any other court to which the case may be transferred.

Section 88 is discretionary — the word is "may" — and the Supreme Court has clarified that it confers no right on the accused to demand that a bond be taken in lieu of arrest. Its utility lies in avoiding needless coercion: if the accused is before the court and willing to bond himself, there is no occasion to issue a warrant at all. In practice the Criminal Rules of Practice prescribe the bond form and require the bond, once executed, to be filed and registered, completing the chain of record that began with the process register.

When warrants fail: proclamation and attachment, Sections 82–83 CrPC / 84–85 BNSS

If even a non-bailable warrant cannot be executed because the accused has absconded, the Code supplies a further tier of compulsion. Section 82 CrPC (Section 84 BNSS) allows a court that has reason to believe — after issuing a warrant — that the person has absconded or is concealing himself to publish a written proclamation requiring him to appear at a specified place and time, not less than thirty days from the date of publication. The proclamation must be publicly read, affixed to a conspicuous part of the person's house and of the courthouse, and published as the rules direct.

Section 83 CrPC (Section 85 BNSS) then permits the court, for reasons recorded in writing, to order attachment of the absconder's movable or immovable property at any time after the issue of the proclamation — and even simultaneously, where the court is satisfied the person is about to dispose of or remove his property. Sections 84–86 CrPC deal with claims and objections to attachment, release, sale and restoration. Together, proclamation and attachment convert the failed warrant into economic and reputational pressure, and a person who fails to appear in answer to a proclamation under Section 82 may be declared a proclaimed offender — a status with serious downstream consequences for bail and trial.

Execution of warrants: direction, jurisdiction and safeguards

Sections 72–81 CrPC (Sections 74–83 BNSS) govern to whom a warrant is directed and how it is executed. Ordinarily a warrant is directed to one or more police officers (Section 72 CrPC); but Section 73 CrPC (Section 75 BNSS) allows the Chief Judicial Magistrate or a Magistrate of the first class to 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. Section 74 provides for execution by the police officer to whom it is directed, and Sections 77–81 deal with execution within and outside the issuing court's jurisdiction, including endorsement of warrants by the local magistrate or police officer where the arrest is to be made beyond local limits.

The procedural safeguards are constitutional in weight. The officer executing a warrant must notify the substance of the warrant to the person arrested and, if required, show it (Section 75 CrPC / 77 BNSS), and must produce the arrested person before the court without unnecessary delay (Section 76 CrPC / 78 BNSS), subject always to the bailable endorsement under Section 71. Raghuvansh Dewanchand Bhasin remains the cautionary tale: execution must track a live, valid warrant, and a warrant once recalled must not be allowed to circulate. The discipline of these provisions feeds directly into the later trial — once the accused is before the court, the focus shifts to the recording of evidence in criminal trials and to charge.

General application and the Criminal Rules of Practice

Section 90 CrPC (Section 93 BNSS) is the tidy-up clause: the provisions of Chapter VI relating to summonses and warrants, and to their issue, service and execution, apply so far as may be to every summons and every warrant of arrest issued under the Code — including those issued under other chapters, such as a witness summons or a warrant under the security provisions. This prevents the careful machinery of Chapter VI from being confined to the cognizance stage alone.

It is the Criminal Rules of Practice of each High Court that turn these abstract powers into office routine. The rules prescribe the exact printed forms for summons, bailable warrant, non-bailable warrant, proclamation and bond; they fix the seal and signature requirements; they mandate process registers, diaries and return-of-service entries; and they regulate process fees and the duties of process-serving officers. A judicial officer who masters both the bare sections and these procedural rules can issue, track and cancel process without exposing the court or the police to the liability that befell the officer in Raghuvansh Dewanchand Bhasin. For the foundational vocabulary and the place of this topic in the syllabus, begin with the introduction to Criminal Rules of Practice, and return to the Criminal Rules of Practice hub for the full chapter map.