Processes To Compel Appearance Of Persons In Court

Key Takeaways

• Chapter VI of the Cr. P.C. contains the provisions relating to Processes to Compel Appearance of Persons in Court.
• Warrants of arrest can be directed to Police Officers as well as other persons, depending upon the circumstances.Before issuing Warrants for arrest, the person (whose appearance is required) is given a chance to appear on his own by way of issuing summons.
• Summons must ordinarily be served on the person who has been summoned. But if that person is not available, the service can be done on an adult male family member of the summoned person.If service of summons could not be done in a normal way, then the serving officer can affix the summons on the house of the person who has been summoned.
• While arresting the person against whom a warrant has been issued, the arresting officer must notify the substance of the warrant to such person.
• If the court thinks that a person is absconding the arrest after the issuance of warrants against him, the court can issue a written proclamation against him, specifying a time & place to appear.If the person does not appear at the specified place & time after the issuance of the proclamation, then the court can order the attachment of that person’s property.

Introduction

Chapter VI (Sections 61 to 90) of the Code of Criminal Procedure, 1973 contains the provisions relating to Processes to Compel Appearance of Persons in Court.In most cases, the court first issues Summons to the person whose attendance is required before the Court. If the person fails to appear after receiving the Summons, then Warrants are issued. But if Warrants also fail to compel the attendance of a person, then that person is declared as a Proclaimed Absconder. Now, if the person does not appear before the court even after the proclamation, then the court can attach and sell the absconder’s property. Apart from this, Bonds (with or without sureties) are also used for securing the attendance of persons. Now, in this article, I will explain each of these processes in detail, one by one.

Processes to Compel Appearance in Court

Summons (Section 61 to 69, CrPC)

The presence of an accused or any other person can simply be ensured by directly arresting him and keeping him confined till the date of hearing of the case in which his presence is necessary. But this would unreasonably encroach upon the Fundamental Rights of that person. So, by way of issuing summons, the person (whose appearance is required) is given a chance to appear on his own.

Section 61– Form of Summons

This Section provides the provisions relating to the ‘Form of summons’. It states that every summons issued by the court must be in writing, in duplicate, and signed by the Presiding Officer of the Court. Furthermore, it states that the summons must bear the seal of the court. Form No. 1 of the Second Schedule of CrPC provides a template for preparing summons.

Section 62– Procedure of service of summons

It provides the manner in which summons need to be served. This Section states that the summons can be served by –

(i) a police officer,

(ii) an officer of the court issuing the summons, and

(iii) any other public servant.

The summons must (unless impractical) be served personally on the person who has been summoned to the court and the person who has been served, has to provide an acknowledgment by signing a duplicate copy of the summons.

So, to summarise Sections 61 and 62, two written copies of summons are issued by the court. Then, these are served by a public servant, by giving one of the copies to the person who has been summoned. The 2nd copy is brought back to the court after obtaining the signatures of the summoned person on that copy.

In the case of Guthikonda Sri Hari Prasad Rao v. Guthikonda Lakshmi Rajyama (1992 CrLJ 1594 AP), it was held that an order of maintenance passed ex parte without following the correct procedure for service of summons was liable to be set aside.

Section 63 –Service on corporate bodies

This section provides provisions for the service of summons on corporate bodies and societies. They can be served by affecting service:

(i) On the secretary, local manager, or another principal officer of the corporation, or

(ii) By letter sent by registered post, addressed to the chief officer of the corporation in India.

Section 64 – Service on Adult Male Family Member

This section provides provisions for a scenario where the person who has been summoned by the court, cannot be found by the serving officer. In such cases, the serving officer can leave one of the copies of the summons with an adult male member of the family of the person who has been summoned. The important point to note over here is that the adult male family member (to whom the summons is delivered) must reside with the person who has been summoned. Furthermore, a servant is not considered a family member for the delivery of summons under this section.

In the case of Hemendra Nath v. Archana (1971 CrLJ 817), it was observed that before effecting service on Adult Male Family Member (under Section 64), it must first be shown that proper efforts were made and due diligence was exercised by the serving officer for delivering the summons to the summoned person.

Section 65 – CHASPA Service

This section provides provisions for a special scenario, where after following the procedure laid down under Sections 62, 63& 64, the service of summons could not be affected. Section 65 of CrPC provides that if service through modes mentioned under Ss. 62, 63, and 64 fails, then the serving officer must affix one of the copies of the summons to some visible part of the house of the person who has been summoned to appear in the court. This mode of servicing of summons is called CHASPA service.

In the case of Beni Madhab v. Jadu Nath [(1925) 31 CWN 148], it was held that the procedure mentioned under Section 65 cannot be used unless service under Sections 62, 63, or 64 could not be affected even after proper efforts.

Section 66 – Service on Government Servant

This section provides the procedure for effecting service on a Government Servant. In these cases, the Court has to send the summons to the head of the department of the summoned person. Then, the head of the department affects the service by following the procedure laid down under Section 62. After effecting service, the head of the department puts his signature on the 2nd copy of the summons and then returns it to the Court.

Section 67 – Service outside local jurisdiction of Court

This section provides that if a summoned person resides outside the local jurisdiction of a court, then the court has to send the summons to the Magistrate, in whose jurisdiction the summoned person resides. That magistrate then affects the service of summons.

In the case of Ghulam Mohd. v. Rasoolan [1991 CrLJ 2937 (J&K)], it was clarified that by no norms of interpretation can it be suggested that a court has no way to reach a person living outside its jurisdiction limits, other than the one prescribed in Section 67.

Section 68 – Proof of service when serving officer not available

This section provides for a situation where the serving officer (who claims to have served the summons) might not be available at the hearing of the case. In such a situation, Section 68 provides that an affidavit made before a magistrate, stating that the summons has been served, along with a signed 2nd copy of the summons shall be evidence enough to declare that the service of summons has been successful.

Section 69 – Service on witness by post

This section provides that, while issuing summons to a witness, the Court may (in addition to other forms of service)direct a copy of the summons to be served through Registered Post addressed to the residence of the witness, or his place of business or employment. In this case, if the witness refuses to accept the summons and the postal employee gives an acknowledgment regarding that, then the court can anyway declare that the summons has been properly served.

Warrant of Arrest (Sections 70 to 81)

Section 70 – Form of warrant of arrest

This section provides the Form of Warrant. It states that the warrant must be:

(i) in writing,

(ii) signed by the presiding officer of the court, and

(iii) must bear the sear of the court

Furthermore, this section states that the Warrant of Arrest stays in force until & unless it has been cancelled by the court that issued it, or until it has been executed, This was upheld inKing-Emperor v. Binda Ahir (1928 7 Pat 478).

Section 71 – Bailable Warrants

This section provides the provisions for issuing a ‘Bailable Warrant’. It states that a courtwhile issuing a warrant, may specify that if the person (against whom the warrant has been issued) gives sufficient sureties for his appearance in the court, then the warrant officer must release that person from custody.The officer has to then forward the surety bond to the court which had issued the warrant.

In the case of Karim Shah v. State of UP (2008 CrLJ 2974 All), it was clarified that the liability of sureties exists only until theaccused has not been arrested. On the arrest of the accused, the liability of the sureties comes to an end and they cannot be made liable if the accused subsequently absconds from the custody of the Court.

Section 72–Warranted to whom directed

It provides that a warrant must be directed:

(i) ordinarily to one or more police officers, or

(ii) If immediate execution of the warrant is necessary & no police officer is immediately available, toany other person or persons.

When awarrant is directed to more than one person or police officer, it can be executed by any of them.

Section 73 – Warranted may be directed to any person

This section provides that a Chief Judicial Magistrate (CJM) or 1st Class Judicial Magistrate (JMIC)can direct a warrant to any person for the arrest of:

(i) Any escaped convict, or

(ii) Proclaimed offender, or

(iii) Any person accused of a non-bailable offence and is evading arrest.

There are certain safeguards mentioned within Section 73 itself. Any person (to whom a warrant is directed under this Section) can execute it only if the person for whose arrest the warrant was issued, enters the property or land under his charge. Also, the arrested person must be taken over to the nearest police station by the person who arrests him.

In the case of Inder Mohan Goswami v. State of Uttaranchal (AIR 2008 SC 251), the Hon’ble Supreme Court has observed that non-bailable warrants deprive a person of his liberty, guaranteed by Article 21 of the Constitution of India. So, they must be issued with due care.

Section 74 – Warrant directed to a police officer

This section says that the police officer to whom a warrant is directed can endorse the name of another police officer on the warrant. After the endorsement, other police officers can also affect the warrant.

In the case of Kunjumoosa Kunju v State of Kerala [1962 2 CrLJ 437], it was observed that where there is no such endorsement as specified by Section 74, the arrest will not be legal.

Section 75–Notification of substance of warrant to the arrested person

While arresting the person against whom a warrant has been issued, the arresting officer/person must notify the substance of the warrant or show the warrant to the person who is being arrested. This has been upheld by the court in Satish Chandra Rai v. Jodu Nandan (1899 26 Cal 748).

Section 76–Person arrested to be brought before Court without delay

This section provides that after the arrest of the person against whom a warrant was issued, that person must be brought before the court that issued the warrant as quickly as shall be practicable. The Section lays down a limit of 24 hours from the time of arrest (excluding the time needed during the transport).

Section 77–Where warrant may be executed

This section says that a warrant of arrest can be executed all around India by the person to whom it is directed.

Section 78 – Warrant forwarded for execution outside Court’s Jurisdiction

If the court has the knowledge that the warrant (that has been issued by it) is to be executed outside the local jurisdiction of that court, then the court canforward it to the Executive Magistrate or DSP or Commissioner of Police within whose jurisdiction the warrant is to be executed.

In the case of S. Velappan v. The State of Kerala (AIR 1965 Ker 72), a warrant issued under Section 78 directing the arrest of the proprietor of a firm without mentioning either the name or the description of the person to be arrested was held to be invalid.

Section 79 – Warrant directed to a police officer for execution outside Court’s jurisdiction

This section provides that where a warrant is directed to a police officer, but the place where the warrant is to be executed is outside the jurisdiction of the court that issued it, the police officer (to whom the warrant is directed) must take the warrant for endorsement to Executive Magistrate or a police officer of the rank of in-charge of a police station, within whose local jurisdiction the warrant is to be executed.

After endorsement, the police officer to whom it is directed can execute the warrant as if it is to be executed within the local jurisdiction of the court that issued it.

But, in cases where immediate execution of the warrant is required and there is no time to get an endorsement, the police officer to whom the warrant was directed, can directly execute it even outside the local jurisdiction of the court that issued it.

Section 80 - Procedure on the arrest of the person against whom warrant is issued

After the arrest of a person under Section 79, such person has to be taken to the Executive Magistrate or DSP or Commissioner within whose jurisdiction he has been arrested, unless the court that issued the warrant is within 30 km of the place of arrest.

Section 81 – Procedure by Magistrate before whom such arrested person is brought

Under Section 80, once an arrested person has been taken to the Executive Magistrate or DSP or Commissioner, such officer has to send that arrested person to the court that issued the warrant after ensuring that the right person has been arrested, except if the offense for which the person has been arrested is a bailable one or if a bailable warrant was issued under Section 71, and the arrested person is ready to provide surety bonds.

Proclamation and Attachment (Section 82 to 86)

Section 82–Proclamation for person absconding

This section states that if in the opinion of the court, a person against whom a warrant has been issued, has absconded or is concealing himself so that the warrant cannot be executed, then the court can publish a written proclamation mandating such person to appear at a specified place & time. Such specified time cannot be less than 30 days from the date of the issuance of the proclamation.

This proclamation has to be:

(i) Publicly read in the town or village where the person against whom the proclamation has been issued resides.

(ii) Affixed on some visible part of the house or village where such person resides ordinarily.

(iii) Affixed at some visible part of the courthouse.

In its discretion, the court can even direct a copy of the proclamation to be published in a daily newspaper that circulates in the area where such a person resides.

In cases where a proclamation has been issued against a person who is accused of an offence punishable under Section 302, 304, 367, 382, 392 to 400, 402, 436, 449, 459 or 460 of the IPC and the said person does not appear on the date & time specified in the proclamation, then the court can pronounce him as a proclaimed offender.

In the case of M.S.R. Gundappa v. State of Karnataka (1977 Cr LJ NOC 187), it was held that a person who had gone abroad even before the issue of the warrant of arrest cannot be said to be absconding or concealing himself with the intention to disrupt the execution of that warrant.

Furthermore, it has been clarified by the case of Main Jan v. Abdul [1905 27 All 572] that a proclamation is a nullity if it omits to mention the time within which and the place at which the absconder should present himself,to save the sale of his property.

Section 83 – Attachment of property of person absconding

The court can order attachment of the property of the person against whom a proclamation has been issued under Section 82. Such attachment can be made even simultaneously with the issuance of proclamation under Section 82 if the court is of the view that such a person is about to dispose of his property. This section mentions the procedure for such attachment in detail, with respect to the movable as well as the immovable property.

The Hon’ble Supreme Court in the case of Vimlaben Ajitbhai Patel v. Vaishlaben Ashokbhai Patel (AIR 2008 SC 2675) has observed that the attachment of property of an absconder does not affect the rights of the tenant of that property.

The object of Section 83 was clarified in the case of Dayanand Kalu v. State of Haryana (AIR 1976 Punj 190). The court observed that the object of this section is not to punish the absconder but to compel his appearance. So, if the property has not been confiscated or disposed of, the title continues to vest in the owner and therefore, in his/her heirs.

Also, if there is an absence of the material on record to show that the accused has absconded, then the order of attachment is illegal (Ratish Roy v. Mohesh Singh, 1985 Cr LJ 94 Gau).

Section 84 – Claim & Objections to attachment

This section provides that a claim and/or objection can be filed by a 3rd party regarding the property that has been ordered to be attached under Section 83. Such claim and/or objection must be based on the ground that the claimant and/or objector has an interest in the party that is being attached. So, this section protects the interests of 3rd parties who might get aggrieved by the orders of attachment.

Section 85 – Release, sale, and restoration of attached property

The court must release the property from attachment if the proclaimed absconder appears at the place specified in the proclamation at the specified time. Otherwise, if the person does not appear, then the property will be at the disposal of the State Government. It can be sold after 6 months of the date of attachment, once all the claims& objections on such property have been resolved.

If within two years from the date of attachment, the proclaimed person appears voluntarily or is arrested and brought before the court that ordered the attachment of his property. Then, upon satisfaction that such person had reasonable cause for not appearing at the place & time specified in the proclamation, the court must declare that the net proceeds of the sale of his property shall be given to him.

Section 86

This section provides that an appeal can be made against an order of the court rejecting the application for restoration of attached property.

Other rules regarding Processes (87 to 90)

Section 87 – Issue of warrant in addition to the summons

This section provides power to any court to issue a warrant in cases where it originally has the power to issue the summons. According to this section, a Warrant of arrest can be issued if the person to whom the summons was issued has either failed to appear after receiving the summons or in the opinion of the court, the person has absconded and will not obey the summons.

In the case of Prodyot Kumar Baidya v. Chaya Rani Baidya [1995 Cr LJ 3155 (Cal)], it was observed that in Section 125 maintenance proceedings, instead of closing evidence if witnesses do not turn up despite sufficient service, the Magistrates must exercise their power under Section 87 to secure the attendance of those witnesses.

Section 88 – Power to take bond for appearance

It provides that for ensuring whose appearance a summons or a warrant has been issued, when any personis present in the Court, the presiding officer of such court can ask him to execute a bond (with or without sureties) for his appearance in the court later on.

Section 89 – Arrest on breach of bond

This section provides that if a person, who has been given a bond for an appearance in the court, breaches such bond, then the presiding officer of the court can issue a warrant for that person’s arrest.

In the case of Pramod Kumar Patnaik v. State of Orissa (1995 Cr LJ 3573 Ori), it was clarified that a Magistrate, other than the actual presiding officer of that court in which the case is pending, would be incompetent to pass an order for issuance of a warrant of arrest under Section 89.

Section 90

It states that the provisions laid down under Chapter VI will apply to every summon and/or warrant of arrest issued under the Code of Criminal Procedure.

Conclusion

In this way, Chapter VI of the Code of Criminal Procedure provides detailed provisions relating to the processes that can be used to compel the appearance of persons in the courts. The courts have been given such wide powers to ensure that the business of the courtrooms is not disturbed by the non-appearance of witnesses or accused persons. An attempt to maintain a balance has also been made by enacting provisions for Bailable Warrants and by allowing the courts to restore attached properties.

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