Criminal procedure | Arrest warrants
Section 71 CrPC and Section 73 BNSS: Power to Direct Security to Be Taken
A court issuing an arrest warrant may endorse it with conditions permitting release upon execution of the required bond and sureties. This provision was contained in Section 71 of the Code of Criminal Procedure, 1973 (CrPC), and is now addressed by Section 73 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Meaning and purpose of the provision
Section 73 BNSS authorises the court, at its discretion, to endorse an arrest warrant with conditions for the arrested person's release on a bail bond with sufficient sureties. If the specified conditions are fulfilled, the officer executing the warrant must accept the security and release the person from custody. This is commonly associated with a bailable warrant, as distinct from a warrant without such an endorsement.
The provision does not give the executing officer unrestricted power to determine bail. The authority comes from the issuing court's endorsement, and the officer must follow its stated terms.
Section 73 BNSS: Current statutory provision
Power to direct security to be taken
Sub-section (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 bail 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.
Sub-section (2). The endorsement shall state:
- the number of sureties;
- the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound;
- the time at which he is to attend before the Court.
Sub-section (3). Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court.
Section 71 CrPC: Earlier statutory provision
Under the Code of Criminal Procedure, 1973, Section 71 was titled "Power to direct security to be taken" and provided as follows:
(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:
- the number of sureties;
- the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound;
- 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.
Requirements for release under an endorsed warrant
- Judicial endorsement: The issuing court must expressly authorise release on security in the warrant.
- Specified sureties: The endorsement must identify the number of sureties required.
- Bond amounts: The financial obligations of the person and sureties must be stated.
- Appearance date: The endorsement must specify when the person must appear before the court.
- Acceptance and release: Upon compliance with the endorsement, the executing officer takes the security and releases the person.
- Transmission to court: The officer must forward the executed bond to the issuing court.
Difference between Section 71 CrPC and Section 73 BNSS
| Subject | Section 71 CrPC | Section 73 BNSS |
|---|---|---|
| Legislation | Code of Criminal Procedure, 1973 | Bharatiya Nagarik Suraksha Sanhita, 2023 |
| Warrant endorsement | Permitted at the court's discretion | Permitted at the court's discretion |
| Security instrument | Refers to a "bond" | Expressly refers to a "bail bond" |
| Conditions and forwarding | Sureties, amounts, appearance time and forwarding to court | Corresponding requirements retained |
| Present application | Subject to applicable saving provisions | Current general procedural framework from 1 July 2024 |
Practical example
A court issues an arrest warrant and endorses it to permit release if the person executes a bail bond for the stated amount with two sureties and undertakes to appear on the specified date. When the officer executing the warrant obtains security satisfying those conditions, the officer must release the person and forward the bond to the court. The person must then comply with the obligation to attend court.
Frequently asked questions
Does every arrest warrant permit release on security?
No. Release under Section 73 BNSS depends on an endorsement made by the issuing court. It is not automatic for every arrest warrant.
Who determines the number of sureties and the bond amount?
The issuing court specifies these requirements in its endorsement on the warrant.
Can the police officer release a person under this section?
Yes, where the court has endorsed the warrant and the person satisfies the specified bail bond and surety conditions. The officer must forward the bond to the court.
Is Section 71 CrPC still applicable?
The CrPC has been repealed and replaced by the BNSS from 1 July 2024. However, Section 531 BNSS contains savings for certain pending investigations, inquiries, trials, appeals and applications. The applicable law depends on the procedural history of the particular case.
Official legal sources
- Bureau of Police Research and Development - BNSS text and CrPC references (PDF)
- National Crime Records Bureau - BNSS section index
- India Code - official central legislation database
This article provides general legal information. For a particular warrant or pending proceeding, review the court order, applicable statutory provisions and relevant case-specific advice.