All about Process to Compel Appearance under Code of Criminal Procedure,1973 By: Pinky Dass

July 15, 2018:

All about Process to Compel Appearance under Code of Criminal Procedure,1973 By- Pinky Dass (Download PDF)

All about Process to Compel Appearance under Chapter VI of Code of Criminal Procedure,1973 By: Pinky Dass

The Author, Pinky Dass is a 3rd year student of BA.LLB (H) at Amity Law School, Delhi. She is Currently interning with LatestLaws.com.

Part - A ( Summons )

Q1:  What do you mean by the term “Process” ?

Ans- Process is defined as any means which is  used by court to compel appearance of a defendant before it.

Q2: What are the modes to compel appearance?

Ans- Following are the modes to compel appearance of a person by issuing:

• Summons
• Warrant of Arrest
• Proclamation for Person Absconding

Q3: What are summons? Who can issue summons?

Ans- Summons is a legal document issued from the office of court of Justice calling upon the person to whom it is directed to attend before a Judge or officer of court.

Q4: Why summons are served?

Ans- When a legal action is taken against a person or when any person is required to appear in the court as a witness in a proceeding, summons are served to call such person and also to ensure that he is present on the given date of the proceedings.

Q5: How summons are served?

Ans- A summon is served when a suit has been initiated by the plaintiff against the defendant, the court directs to issue summons to the defendant to ensures a fair trial. No action can be taken against the defendant if summons are not served properly.

Q6: What happens when a summon is served on a person and he does not appears ?

Ans- If on serving of the summon, the person against whom it had been issued does not appear in the court then this will be taken as a Contempt of Court and shall be punished accordingly.

Q7: How summons are formed? What are the essentials of a summon?

Ans- Every summon issued by the court under Section 61 of The Code of Criminal Procedure,1973 shall be:

• In writing
• In duplicate form
• Signed and sealed by the presiding officer of the court
• It should mention the time and place of the rule directed and shall bear the seal of the court

Q8: By whom summons are served? Who can serve summons?

Ans- Following persons can serve the summons as per Section 62 of The Code of Criminal Procedure,1973:

• Police Officer
• By an officer, subject to such rules as the State Govt. may prescribe.
• The court may allow summons to be served personally by delivering or tendering to him one of the duplicates of the summons if any request is made by complainant or accused.

Every person on whom summons is served shall sign a receipt on the back of the other duplicate as per required by the serving Officer.

Q9: What are the mode of service of summons?

Ans- Following procedure shall be adopted:

1. A)  By personal service
2. B) By Service on corporate bodies and societies under Section 63
3. C) By Service when person summoned cannot be found under Section 64
4. D) By Service on Government servant under Section 66
5. E) By Service of summons outside local limits under Section 67

Q10: How summons are served on corporate bodies and societies?

Ans- As per Section 63 of The Code of Criminal Procedure,1973 Service of a summon 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.

*In this section “ corporation” means an incorporated company or other body corporate and also includes a society registered under the Societies Registration Act,1860.

Q11: How to serve summons when persons summoned cannot be found?

Ans- Where the person summoned cannot be found, the summons may be served by:

• leaving one of the duplicates for him with some adult member of his family residing with him,
• the person with whom the summons is so left shall sign a receipt therefore on the back of the other duplicate.

*A servant is not a member of the family within the meaning of Section 64 of The Code of Criminal Procedure,1973.

Q12: What are the procedures when service cannot be done as per mentioned under Section 62,63 and 64 of Code of Criminal Procedure,1973 or What is the substituted mode of service?

Ans- If service cannot be done as per Section 62 63 and 64 the Serving Officer shall:

• Shall affix one of the duplicates of the summons to some conspicuous part of house
• or homestead where the person summoned resides ordinarily
• After that Court will make such enquiries as it thinks fit upon which it may either declare that summons has been duly served or will order fresh service in a manner as it considers proper.

Q13: How summons are served on Government servants?

Ans- Section 66 states services of summon on government employees can be effected either personally or through head of department in which such person is employed. As per Section 62 duplicate copies are send to head of the office who shall serve the summons in the manner provided by section 62 and shall return it to the Court under his signature with the endorsement. The signature shall be evidence of due service.

Q14: How summons are served outside local limits?

Ans- Where a summons is to be served outside the local limits of jurisdiction of the court issuing it, service has to be effected by sending it in duplicate to the Magistrate within whose jurisdiction the person summoned resides.

Q15: What are the procedures when serving officer is not present? How to prove service of summons?

Ans- As per Section 68 of The Code of Criminal Procedure,1973 the Officer who served the summons outside local jurisdiction needs to submit an affidavit regarding the fact that the summon was served if he is himself not present in the Court at the time of hearing. And also duplicate of summons endorsed as per manner provided under Section 62 or Section 64 will be admissible as evidence by the person to whom it was delivered or tendered. The affidavit may be attached to the duplicate of the summons and has to be returned to the Court.

Q16: How summons are served on witness by post?

Ans- According to Section 69 of The Code of Criminal Procedure,1973 Court directs a copy of summons which has to be served by registered post addressing to the witness at the place where he ordinarily resides or carries on his business or personally works for gain.

Then witness has to sign an acknowledgement or endorsement has to be made by a postal employee that witness refused to take delivery of summons has been received. On this Court may declare summons has been duly served.

Part – B ( Warrant of Arrest )

Q17: What is Warrant and Warrant of Arrest?

Ans- It is the second method of securing attendance of a person by means of a warrant of arrest. The warrant is an order addressed to a certain person directing him to arrest the accused and to produce him before the court. It is executed by a Magistrate on good and legal ground only.

Q18: What are the forms and duration of warrant of arrest?

Ans- Section 70 of The Code gives the essentials of a warrant of arrest. It lays down that Court will issue warrant of arrest which shall be in writing, signed by the presiding officer of such court, and shall bear the seal of the court.

In order to be valid a warrant must fulfil the following requisites:

• It must be in writing;
• It must be signed by the presiding officer;
• It must bear the name and designation of the police officer or other person who is to execute it;
• It must give full particulars of the person to be arrested so as to identify him clearly;
• It must specify the offences charged; and
• It must be scaled.

Q19: What is the duration of a warrant ?

Ans- Every warrant shall remain in force until it is cancelled by the court which issued it or until it is executed. A warrant of arrest does not become invalid on the expiry of the date fixed for return of the warrant.

Q20: What is the procedure of granting security to an Arrested person by Court?

Ans- Section 71 of The Code of Criminal Procedure,1973 deals with bailable warrant and lays down that a warrant may contain a direction of the court that if the person to be arrested executes a bond with sufficient sureties for his attendance before the court at a specified time, the serving officer shall take such security and release him from custody.

Such a bailable warrant shall also include the number of sureties, the bond amount and the time period during which the arrested person is supposed to attend the court and the officer to whom warrant is directed shall forward the bond to the court.

Q21: To whom Warrant can be directed?

Ans- According to Section 72 of The Code of Criminal Procedure,1973- The warrants are to be directed to the following persons :

• To one or more Police Officer
• If no police officer is immediately available than the court may direct it to any other person or persons.

When warrant is directed to more officers or persons instead of one than it may be executed by all or by any one of them or more of them.

Q22: What are the contents of the Warrant ?

Ans- Following are the important contents of the warrant :

• Name of court
• Name of police officer
• Offence
• Place where offence has committed
• Seal of the court
• Signed by the presiding officer
• Name and Address of the accused

Q23: Can warrant may be directed to any person ?

Ans- As per Section 73 of The Code of Criminal Procedure,1973 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, offender or person accused of a non-bailable offence, or a proclaimed offender evading arrest who is accused of a non-bailable offence.

Q24: How a warrant can be executed by any person?

Ans- According to Section 73 of The Code of Criminal Procedure,1973 Such person shall acknowledge the receipt of warrant in writing. After that such person shall execute the warrant against whom it was issued if he enters any land or other property under his charge. After the arrest has been made, arrested person shall be made over with the warrant to the nearest Police Officer who shall take him before a Magistrate having jurisdiction in the case unless security has been taken under Section 71.

Q25: How the execution of the warrant is done by a Police Officer?

Ans- According to Section 74 a warrant can be executed by a Police Officer to whom it has been directed or may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom warrant was directed or endorsed.

Q26: What is the notification of substance of warrant?

Ans- Section 75 deals with notification of the substance of the warrant and mandates every police officer (or any other officer) to notify the substance of the warrant to the person whom he or she is arresting. Failure on the officer's part would give the person sought to be arrested, the right of private defence and consequently any resistance offered by such person will not be punishable.

Q27: What is procedure to brought an arrested person before Court without any delay?

Ans- Section 76 stipulates that the person arrested must be brought before the Court( subject to provisions of Section 71 as to security) without unnecessary delay. As per the proviso it is clear that the delay, unless caused by extraneous circumstances, cannot be more than twenty-four hours from the place of arrest to the Magistrate's Court.

Q28: Where warrant can be executed?

Ans-  Section 77 of The Code of Criminal Procedure,1973 provides the functionaries the power to execute warrants anywhere in India, the other sections are merely procedural and lay down elaborate rules of dealing with the execution of warrants outside the local jurisdiction of the Court issuing it.

Q29: What is the procedure for execution of a warrant outside jurisdiction?

Ans- The provisions of Section 78 provides adequate safeguards to a person to be arrested so that he is not arrested without having a proper authority and applied his mind as to the legality of the warrant and authorised the arrest outside the jurisdiction of the Court which had issued the warrant. Such warrant is forwarded to the local authorities under whose jurisdiction it is to be executed instead of directing the warrant to a police officer.

Where a warrant under this section is issued, it should bear the name and description of the particular person intended to be arrested; otherwise it will not be a valid warrant.

Sub-section (2) makes it obligatory for the issuing Court to forward warrant as well as substance of the information against the person to be arrested and also documents, if any. This will enable the Court to decide whether bail may or may not be granted before whom such person is produced.

Q30: What is the procedure to direct a Police Officer for execution of a warrant outside jurisdiction?

Ans- Section 79 of The Code of Criminal Procedure,1973 states that a warrant may be directed to a Police Officer outside the jurisdiction of the Judicial Magistrate, however this must be endorsed by the Executive Magistrate or to a Police Officer not below the rank of an officer in charge of a Police Station.

Sub-section (2) states endorsement of his name by Such Magistrate or Police Officer shall be sufficient authority to the Police Officer to whom the warrant is directed and to execute the same the local police shall assist such Officer.

Sub-section (3) gives power to the Police Officer to whom warrant is directed to execute the same when there is reason to believe that delay can be occasioned by obtaining the endorsement. Than he can without endorsement of Magistrate or Police Officer within whose local jurisdiction the warrant has to be executed, may execute the same in any place beyond the local jurisdiction of the Court who has issued it.

Q31: What is the procedure on arrest of person against whom warrant is issued?

Ans- Section 80 of The Code of Criminal Procedure,1973 states that the person shall be arrested and shall be taken to the Court who issued the warrant if the Court is within 30 kilometres of the place of arrest. Otherwise, the person shall be taken to the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was done or unless security has been taken under Section 71, then he has to be taken before such Magistrate or District Superintendent or Commissioner.

Q32: What procedure is followed by Magistrate before whom arrested person is brought?

Ans- Section 81 of The Code of Criminal Procedure,1973 lays down the procedure to be followed by the Executing Magistrate before whom person arrested under a warrant is produced.

It also states that once the arrested person is produced before the Magistrate, the Magistrate shall grant a bail to a person who is arrested for a bailable offence provided that the person is ready to provide the security. If the person is arrested for a non-bailable offence then the Magistrate may grant bail based on documents of the case.

*Also Section 81 does not envisage the grant of bail by the C.J.M. or the Court of Session having jurisdiction over the place of person arrested by the police without warrant.

Part C- ( Proclamation and attachment )

Q33: Who is a Proclaimed Offender?

Ans- If any Court has reason to believe that any person against whom a warrant of arrest 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 specified place and at a specified time not less than 30 days from the date of publishing such proclamation.

Where a proclamation published is in respect of a person accused of certain specified heinous offences and such person fails to appear at the specified place and time required by the proclamation may pronounce him a ‘Proclaimed Offender’ under Section 82 of The Code of Criminal Procedure,1973.

Q34: What are the offences for which the Court may declare an absconder to be a Proclaimed Offender?

Ans- The Court may pronounce an absconder as a proclaimed offender if he is accused of any of the following offences:

• Murder; Culpable homicide not amounting to murder
• Kidnapping or abducting in order to murder; Kidnapping or abducting in order to subject person to grievous hurt, slavery etc.
• Committing theft after making preparation for death, hurt or restraint in order to commit the theft;
• Committing robbery or attempting to do so; Causing hurt in committing robbery; Committing dacoity/ dacoity with murder; Committing robbery/dacoity with attempt to cause death or grievous hurt;
• Attempting to commit robbery/dacoity when armed with deadly weapon; Preparing to commit or assembling to commit dacoity; Belonging to a gang of dacoits,
• Causing mischief by fire or explosive substance with intent to destroy house, etc.
• Committing house-trespass in order to commit offence punishable with death; Causing grievous hurt/death while committing lurking house-trespass or house-breaking; Being member of group that causes grievous hurt/death while committing lurking house-trespass or house-breaking by night.

Q35: How proclamation is published for person absconding?

Ans- Procedure of Proclamation are as follows:

• It shall be read publicly in conspicuous place of the town or village where such person resides ordinarily;
• It shall be affixed to some conspicuous part of the house or homestead where such person ordinarily resides or to some conspicuous place of such town or village.
• A copy shall also be affixed to some conspicuous part of the Court-house.
• Court can also direct if it thinks fit, a copy of Proclamation to be published in a daily newspaper circulating in the place where that person resides ordinarily.

Q36: Who can arrest a Proclaimed Offender?

Ans- The primary responsibility for securing the arrest of a proclaimed offender rests with the police of the station in which he is a resident. A Proclaimed Offender may, however, be arrested by any police officer without any order from a Magistrate and without a warrant. Any private person may arrest a Proclaimed Offender and hand him over without unnecessary delay to a police officer or to the nearest police station.

Q37: What is the punishment for non-appearance in response to the proclamation under section 82 of the Code of Criminal Procedure?

Ans- 1) Whoever fails to appear at the specified place and the specified time as required by a proclamation by the Court is punishable with imprisonment for a term which may extend to 3 years or with fine or with both, and

2) Where a declaration has been made by the Court pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to 7 years and shall also be liable to fine. s. 174-A Indian Penal Code.

Q38: Can a Proclaimed Offender’s property be attached?

Ans- The Court issuing a proclamation may order the attachment of any property whether movable or immovable, or both belonging to the proclaimed person in order to compel his appearance before the Court under Section 83 of The Code of Criminal Procedure,1973. The Court will record it’s reasons in writing.

The attachment order can be made simultaneously with a proclamation order on two occasions:

• one, when the property is about to be disposed of the whole or any part,
• two, the whole or part of the property is about to be removed from the local jurisdiction of the Court.

Q39: What are the modes of attachment of property?

Ans- According to Section 83 there are three modes for attachment of property:

• If the property ordered to be attached is a debt or other movable property, the attachment may be made—

1. by seizure, or
2. by the appointment of a receiver; or

• by an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or

1. by all or any two of such methods, as the court thinks fit.

• If the property ordered to be attached is immovable, the attachment 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 situated, and in all other cases:

1. by taking possession; or
2. by the appointment of a receiver; or

• by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to anyone on his behalf, or by all or any two of such methods, as the court thinks fit.
• If the property to be attached consists of livestock or is of a perishable nature, the court may order its immediate sale.

Q40: How claims and objections are attached to the property? Who can claim and object other than the proclaimed person?

Ans- Section 84 of The Code of Criminal Procedure,1973 states that Any person other than the proclaimed person may prefer a claim or make an objection to the attachment of property within six months from the date of attachment on the ground that the claimant or objector has an interest in the attached property and that such interest is not liable to attachment.

• Every such claim or objection shall be inquired into by the court in which it is preferred and it may be allowed or disallowed.
• If the claim or objection is disallowed in whole or in part, the claimant or objector may within a period of one year institute a suit to establish his right in respect of the property in dispute, but subject to the result of such suit, if any, the order of the court disallowing the claim shall be conclusive.
• Proviso of this section states that any claim which has been made within the period allowed shall be continued by legal representative if claimant or objector is dead.
• The section does not bar a party to institute a suit in a Civil Court within one year for his right in respect of attached property which has been disallowed by the Criminal Court. Therefore, right of a person to institute a suit in a Civil Court is not barred by this section.
• No claims or objections in respect of property attached can be preferred after such property is released from attachment. But a third party can file a civil suit for adjudication of his right or claim.

Q41: How release, sale and restoration of attached property is done? What is the procedure for release, sale and restoration of the attached property?

Ans- According to Section 85 Release is done:

• if the proclaimed absconder appears before the Court within the time specified in the proclamation, his property shall be released from the attachment.

Sale is done when:

• he does not so appear within time, his property shall be at the disposal of the State Government and it will remain under the absolute control of the Government. But it shall not be sold until six months of expiration period from the date when attachment was done and no claims and objections were made under Section 84. But if property is of perishable nature then Court may sold it whenever it thinks sale would be for the benefit of the owner.

Restoration of property is done:

• If the proclaimed person appears within two years from the date of the attachment and satisfies the court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and that he had no notice of the proclamation, the property or net proceeds of the sale after deducting the cost of the attachment shall be delivered to him.

Q42: How an aggrieved person can appeal if his application for restoration of attached property is rejected? What is the procedure for appeal for restoration of property?

Ans- Section 86 lays down the rule regarding appeal from order rejecting application for restoration of attached property. Any person who is refused under sub-section (3) of Section 85 to get back his property or delivery of property is not done or the proceeds of the sale are not given to the aggrieved person than he may appeal to the Court where appeals lie ordinarily from the sentences of the first-mentioned Court.

Part D- Other rules regarding Processes

Q43: When can a warrant be issued by a Court in lieu of summons?

Ans- Section 87 of The Code of Criminal Procedure,1973 empowers a Court to issue warrant in lieu of, or in addition to, summons. It provides: `A court is empowered in any case 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-

• When Court sees reason to believe that person has been absconding or will not obey the summons then it will issue such summons either before or after but before the time fixed for his appearance.
• And if such person fails to appear and the summons is proved to have been duly served in time to admit his appearing and no reasonable excuse is offered for such failure.

Q44: What are the powers of a Court to take bond for appearance from a person who is present before the court and for whose appearance such court is empowered to issue summons or warrant?

Ans- Section 88 of The Code of Criminal Procedure,1973 empowers the Court to take bond for appearance. It lays down when an officer is present in a Court who is empowered to issue a summons or warrant for arrest and appearance of any person. Such Officer is empowered to require such person to execute a bond with or without sureties for his appearance in such Court or any other Court where the case may be transferred for trial.

Q45: Can a person who has filed a bond be arrested?

Ans- Section 89 of The Code of Criminal Procedure,1973 states that 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.

Section 89 has reference to the case of a person who is bound by a bond to appear in the court. It provides for a warrant only in case the person does not appear at the time when he is bound by the bond to appear; but it does not apply to a case where prior to the time for appearance, arrest by warrant is sought to be effected.