CHAPTER XII- INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE (Section 154- 176), Part A- REGISTRATION (Section 154- 158), The Code of Criminal Procedure, 1973

FIRST INFORMATION REPORT (FIR) – Introduction

The report first recorded by the police relating to the commission of a cognizable case is the first information report, giving first information of the cognizable crime.

The term ‘first information report’ has not been defined in the Code of Criminal Procedure. But, in substance, it is that information which is given to the police-‘first in point of time.’

MADE TO-

  • Officer-in-charge of a police station.

MADE BY-

  • The complainant, or
  • Someone on his behalf

DRAFTING-

  • FIR is not an encyclopedia
  • It is not necessary that it should set out the minutest details of the occurrence. 

WHAT A FIR CONSTITUTES OF?

To constitute any statement as FIR, following 2 conditions must be fulfilled:

  • It must be something in the nature of a complaint or accusation or at least information of a crime to set the machinery of the police in motion.
  • It must be something in the nature of a complaint or accusation or at least information of a crime to set the machinery of the police in motion.
  • It must be related to a cognizable offence on the face of it.

PURPOSE TO MAKE FIR

  • To provide information (as its title suggests)
  • To set the police in motion.
  • For protection of society.
  • To corroborate or contradict, the maker of it.

OBJECT OF FIRST INFORMATION REPORT

The legal position as to the object, value and use of the first information report is well settled. As-

  • The principal of the FIR, from the point of view of the investigation authorities is to-
    • obtain information about the alleged criminal activity, so as to be able to take suitable steps for tracing, and
    • bringing to book the party.
  • Its important, as conveying the information regarding the occurrence, cannot be doubted,
    • even though, FIR does not constitute substantive evidence.
  • FIR, only be used as a previous statement for the purpose of:
    • either corroborating its maker under section 157, Indian Evidence Act, or
    • contradict him under section 145, Indian Evidence Act.

(it can by no means be utilized for contradicting or discrediting the other witnesses.)

  • Consider FIR to be- ‘first in point of time’-
    • so that the prosecution case cannot be thrown out on the ground that in the first information report an altogether different version was given by its makers.

COGNIZABLE AND NON-COGNIZABLE OFFENCES

SECTION 2(c): “cognizable offence”

“Cognizable offence means an offence for which and “cognizable case” means a case in which, a police officer may, in accordance with the first schedule or under any law for the time being in force, arrest without warrant.

To bring an offence within the definition of “cognizable offence” under section 2(c) of the Code, the offence by itself should be such for which the offender can be arrested without a warrant of arrest.

A “non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer may not arrest without warrant.

CASE: Joginder Kumar V Sate of U.P. and Others 1994 (4) SCC 260.

Section 2(c) of the Code defines ‘cognizable offence’ as an offence for which a police officer may arrest indicates that arrest is not a must in every cognizable case. It is the discretion of the police officer to arrest or not to arrest and the discretion cannot be an arbitrary one but must be guided by the principles laid down in this case.

 SECTION 154: INFORMATION IN COGNIZABLE CASES

(1)Every information relating to:

  • the commission of a cognizable offence,
  • to an officer in charge of  a police station (if given orally, shall be reduced to writing by him or under his direction and be read over to informant),
  • shall be signed by the informant (whether the report given is in writing or reduced to writing as aforesaid),
  • the substance thereof shall be entered in a book (station diary), to be kept by such officer in such prescribed form in this behalf by the State Government.

PROVIDED:

(a)SITUATION: If the information is given by the woman who is temporarily or permanently mentally or physically disabled, and

  • against whom an offence under Indian Penal Code, 1860 (45 of 1860) under section 326A, 326B, 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E, or 509 is alleged to have been committed or attempted.

CONSEQUENCE: Such information shall be:

  • recorded by a police officer,
  • at the:
    • residence of the person seeking to report such offence or
    • at a convenient place of such person’s choice,
  • in the presence of an interpreter or a special educator, as the case may be.

(b)the recording of such information shall be video graphed,

(c)the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.

(2) A copy of the information as recorded under section 154(1), shall be given forthwith, free of cost, to the informant.

(3) SITUATION: If officer in charge of a police station refuse to record the information referred under section 154(1).

CONSEQUENCE:

  • An aggrieved, may send the substance of such information:
    • in writing and by post,
    • to the concerned Superintendent of Police.
  • The concerned Superintended of Police shall-
    • either investigate the case himself (if, satisfied that such information disclose is the commission of the cognizable offence), or
    • direct ban investigation to be made by any police officer, in the prescribed manner in the code.
  • The police officer shall have all the powers of an officer in charge of the police station on relation to that offence.

(Section 154(1), regulates the recording of FIR, relating commission of cognizable offence.)

CASE: State of Haryana V Ch. Bhajan lal and Others AIR 1992 SC 604

In regard to section 154(1):

  • Condition which is ‘sine qua non’ for recording FIR- information,
  • information, disclosing a cognizable offence, (satisfying condition under section 154(1)),
  • officer in charge of police station, has no other option except to substance thereof,
  • enter, is to say register a case on the basis of such information.

In regard to section 154(3):

  • Concerned police officer cannot:
    • embrace upon an inquiry, as to whether information lay by informant (reliable or genuine), or
    • otherwise, refuse to register case on ground that the information (not reliable or credible).
  • On other hand, officer in charge statutorily obliged:
    • to register case, first and
    • then, to proceed with investigation,
    • investigation, if he has reason to suspect the commission of an offence which he is empowered under section 156 (subject to section 157).
  • SITUATION: Officer in charge of police station refuses to exercise jurisdiction vested in him to register case on information of commission.
    • CONSEQUENCE: such officer in charge statutory duty cast upon him under section 154 (3).

SECTION 155: INFORMATION AS TO NON-COGNIZABLE CASES AND INVESTIGATION OF SUCH CASES

(1)Entering the substance of the information.

SITUATION:

  • When information of the commission of a non-cognizable offence,
  • is given to an officer-in-charge of a police station, when the limits of which the offence has been committed.

CONSEQUENCE:

  • The officer in charge of police station shall-
    • enter or cause to enter the substance of the information, in a book:
      • to be kept by such officer,
      • in such form may prescribed by the State Government, and
      • refer the information to the magistrate.

(2)Any police officer shall not-

  • Investigate a non-cognizable case, without the order of a magistrate,
  • magistrate, having power to:
    • try such case, or
    • commit the case for trial.

A police officer-receiving such order of a Magistrate, may then-

  • Exercise the same powers as an officer in charge of a police station may exercise in cognizable……
  • except, the power to arrest without warrant,
  • in respect of the investigation.

A deemed cognizable case:

SITUATION: A case relates to 2 or more offences, of which at least 1 is cognizable.

CONSEQUENCE: The case shall be deemed to be cognizable case, notwithstanding that the other offences are non-cognizable.

CASE: Chattar Singh V The State of Haryana 1980 Cri. L.J. 315, P&H High Court

  • If one of the many offences that the FIR disclosed is cognizable,
  • then it is open to the police officer, to investigate even in the non-cognizable offence.

SECTION 156: POLICE OFFICER’S POWER TO INVESTIGATE COGNIZABLE CASE

(1)Any officer in charge of a police station-

  • may investigate any cognizable case, which a court is having jurisdiction over the local area, within the limits of such station, which would have power to inquire into or try under provision of chapter XIII,
  • without the order of a magistrate.

(2)In any case, at any stage, any proceeding of a police officer shall not be in question, on the ground that-

  • the case was one which such officer was not empowered under this section to investigation.

(3)Any magistrate, empowered under section 190,

  • may order such an investigation, as above mentioned.

The legal propositions that emerge are:

  • Where a magistrate orders investigation by the police before taking cognizable under section 156(3) of the Code and receives the final report from the police, he has power to issue notice to the complainant, record his statement band the statements of other witness and issue process under section 204 of the code.
  • A magistrate can order investigation under section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under section 190, 200, 204 and where a magistrate decides to take cognizance under provisions of chapter 14, he is not entitled in law to order any investigation under section 156(3) though in cases not falling within the proviso to section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by section 202 of the Code.
  • Where a magistrate chooses to take cognizance, he can adopt any of the following alternatives:
    • He can peruse the complaint and if satisfied that better are sufficient grounds for proceedings, he can straightway issue process to the accused but before he does so, he must comply with the requirements of section 200 and record the evidence of the complainant or his witnesses.
    • The magistrate can postpone the issue of process and direct an enquiry by himself.
    • The magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
  • In case the magistrate after considering the statement of the complaint and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding, h can dismiss the complaint.

CASE: Tula Ram V Kishore Singh AIR 1977 SC 2401

Where a magistrate orders investigation by the police before taking cognizance under section 156(3) of the Code and receives the report thereupon, he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind of the complaint filed before him and take action under section 190 of the Code.

SECTION 157: PROCEDURE FOR INVESTIGATION

SITUATION: An officer in charge of a police station empowered under section 156, to investigation, if:

  • has reason to suspect the commission of an offence,
  • from information received or otherwise.

CONSEQUENCE:

  • Such officer in charge shall:
    • forthwith stand a report of the same to the magistrate, empowered to take cognizance of such offence upon a police officer, and
    • proceed to the spot, to investigate (the facts and circumstances of the case):
      • in person or
      • shall depute, one of his subordinate officers not being below such rank as the state Government may, by prescribed general or special order in this behalf and
    • take measures for the discovery and arrest of the offender.

PROVIDED: Exceptions to investigation-

SITUATION 1: When information as to the commission of any such offence is:

  • given against any person by name, and
  • the case is not of a serious nature.

CONSEQUENCE: He (officer in charge of a police station) need not proceed to make an investigation on the spot:

  • in person, or
  • deputy a subordinate officer.

SITUATION 2: It appears to the officer in charge of a police station, that there is no sufficient ground for entering on an investigation.

CONSEQUENCE: He shall not investigate the case.

PROVIDED FURTHER:

  • The recording of the victim, in relation to an offence of rape shall be conducted:
    • at the residence of the victim or on the place of her choice,
    • by a woman police officer, ad far as practicable,
    • in the presence of her parents, guardian, near relatives, or social workers of the locality.

(2)The officer in charge of the police station shall-

  • State in his report, his reasons for not fully complying with the requirements of section 157(1) for its proviso clause (a) and (b), and
  • forthwith notify to the informant (in any in the prescribed manner by the State Government), the facts that the he will not investigate the case or cause it to be investigated.

CASE 1: Lal Singh V State 1980 Cri.LJ NOC 51 Raj.

  • Section 157 Cr.P.C. required reports contemplated by the section to be sent forthwith by the police officer concerned to a magistrate empowered to take cognizance of such offence.
  • This is really designed to keep the magistrate informed of the investigation of eth cognizable offences and to give appropriate direction, if necessary, under section 159 Cr.P.C. Where the copy of the FIR war received by the magistrate after two days from the day on which the alleged the fairness and genuineness of the police proceedings.

CASE 2: Govind Shanwar Chatal V Dattatraya Waman Bhanushali and another 1992 Cri.L.J. 1228, Bom.

Power of police to investigate does not flow from lodgment of the FIR. The police can undertake investigation from information received.

CASE 3: Dr. Vinod Narain V State of U.P. and others 1996 Cri.L.J. 1309 Alld. F.B.

  • Once disclosure of cognizable offence is made, arrest of the accused or suspect is a ”must”, for there is no other known method by which he may be brought before the court for trial.
  • The word “if necessary” in section 157 may at best make available a discretion to an investigating officer in a given case to defer arresting an accused or suspect if there is reasonable doubt about the identity.

CASE 4: Atique Ahmed V State of U.P. 2002 Cri.L.J. 132 (All)

  • Constitution of India, Articles 14, 19, 21, and 226- Writ of mandamus.
  • When police investigation violates rights of petitioner, a political leader, under article 14, 19, and 21 of Constitution, then judicial review under Article 226 of Constitution is permissible.

SECTION 158: REPORT HOW SUBMITTED

  • Every report sent to magistrate under section 157, if the State Government so directs,
    • shall be submitted through such superior officer of police (as the State Government appoint by general or special order, in that behalf).
  • Such Superintendent Officer:
    • may give such instructions to the officer in charge of the police station (as he thinks fit), and
    • shall, transmit the same without delay to the magistrate after recording such instructions on such report.

THIS (FIRST) PART OF THE SERIES ON THE FIR, CONSISTS OF INTRODUCTION TO THE CONCEPT OF FIR, AND REGISTRATION AND PROCEDURE OF FIR OF COGNIZABLE AND NON-COGNIZABLE OFFENCES BOTH.

NEXT PART CONSISTS OF POWERS EXISTS UNDER THIS FIR CONCEPT TO THE VARIES BODIES, EMPOWERED TO PROCEED.

CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (Section 91-105), Part D- MISCELLANEOUS (POWER OF POLICE OFFICER TO SEIZE CERTAIN PROPERTY) (Section-102), The Code of Criminal Code, 1973

D- MISCELLANEOUS (POWER OF POLICE OFFICER TO SEIZE CERTAIN PROPERTY), CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (Section 91-105)

SECTION 102: POWER OF POLICE OFFICER TO SEIZE CERTAIN PROPERTY

(1)Any police officer may seize any property-

  • which may be alleged or suspected to have been stolen, or
  • which may be found under circumstances that create suspicion of the commission of any offence.

(2)SITUATION: The police officer, seizing certain property if subordinate to the officer in charge of a police station.

CONSEQUENCE: Such police officer shall forthwith report the seizure to that officer.

(3)SITUATION: Where:

  • the property seized is such that its cannot be conveniently transported to the court, or
  • there is difficulty in securing proper accommodation for the custody of such property, or
  • the continued retention of the property in police custody may not be considered necessary for the purpose of investigation.

CONSEQUENCE: Every police officer acting under section 102(1):

  • shall, forthwith in the report the seizure to the magistrate having jurisdiction, and
  • may give custody thereof to any person on his executing a bond undertaking:
    • to produce the property before the court as and when required, and
    • to give effect to the further orders of the court as to the disposal of the same.

PROVIDED:

SITUATION: Where-

  • the property seized under section 102(1) is subject to speedy and natural decay,
  • of the person entitled to the possession of such property is unknown or absent, and
  • the value of such property is less than 500 Rupees.

CONSEQUENCE: The property seized:

  • may forthwith be sold by auction under the orders of the Superintendent of Police and
  • the provision of section 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.

THIS (FOURTH) PART OF THE SERIES CONSISTS OF POWER OF POLICE OFFICER TO SEIZE CERTAIN PROPERTY, (FROM THE MISCELLANEOUS PART OF THE CODE OF CHAPTER VII), THIRD PART OF THE SERIES CONSISTS OF GENERAL PROVISION RELATING TO SEARCH, WHICH IS PART-C OF CHAPTER-VII OF CODE. SECOND PART CONSISTS OF SEARCH WARRANTS, WHICH IS THE PART B OF CODE IN CHAPTER: VII. FIRST PART OF THE SERIES CONSISTS OF A- SUMMONS TO PRODUCE, WHICH IS PART A IN THE CODE EVEN. THIRD PART CONSISTS OF PART C OF THE CODE.

CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (Section 91-105), Part C- GENERAL PROVISIONS RELATING TO SEARCHES (Section 99-101), The Code of Criminal Code, 1973

Part C- GENERAL PROVISIONS RELATING TO SEARCHES, CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (Section 91-105)

SECTION 99: DIRECTION, etc. OF SEARCH – WARRANTS

  • The provisions of:
    • Section 38: Aid to person, other than police officer, executing warrant.
    • Section 70: Form of warrant of arrest and duration.
    • Section 72: Warrants to whom directed.
    • Section 74: Warrant directed to police officer.
    • Section 77: Where warrant may be executed.
    • Section 78: Warrant forwarded for execution outside jurisdiction, and
    • Section 79: Warrant directed to police officer for execution outside jurisdiction.
  • shall be, so far as may applicable to all the search warrants issued under section, namely:
    • Section 93: When search warrant may be issued,
    • Section 94: Search of place to contain stolen property, forged document, etc, or
    • Section 95: Power to declare certain publications forfeited and to issue search warrants for the same, or
    • Section 97: Search for persons wrongfully confined.

SECTION 100: PERSONS IN CHARGE OF CLOSED PLACE TO ALLOW SEARCH

(1)Execution of warrant, when the place to be searched is closed.

SITUATION: Any place liable to search or inspection under this chapter is closed.

CONSEQUENCE:

  • On demand of the officer, or other person executing the warrant,
  • any person residing in, or being in charge of such place, shall:
    • allow him free ingress thereto, and
    • afford all reasonable facilities from a search therein.

(2)Ingress into such not obtained.

SITUATION: If ingress into such place cannot be so obtained.

CONSEQUENCE: The officer or other person executing the warrant may proceed in the manner provided by section 47(2).

(3)Person suspected of concealing any article.

SITUATION:

Where any person in or about such place is reasonable suspected of concealing about his person any article for which search should be made.

CONSEQUENCE: Such person may be searched.

(If such person is a woman:

  • the search shall be made by another woman,
  • with strict regard to decency.)

(4) Pre-requisites of search

  • Before making a search under this chapter the officer or other person, about to make the search:
  • shall, call upon 2 or more independent and respectable, inhabitants of:
    • locality, in which the place to be search is situated, or
    • any other locality (if not such inhabitant of the said locality is available or is willing to be a witness to the search)
  • may, issue an order in writing to them or any of them so to do.

(5) List of things seized and relaxation to witness of the search.

  • A list of all things seized in the course of such search and of the places is which they are respectively found,
    • shall be prepared by such officer or other person and signed by such witness.
  • The search shall be made in the presence of person mentioned under section 100(4),
    • 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.

(6) Obligation towards the occupant of the place searched.

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

(7) Obligations under section 100(3):

  • Any person searched under section 100(3), shall be,
    • delivered with, a copy of prepared a list of all things taken possession of.

(8) Repercussions of refusing or neglecting to attend and witness a search.

  • Any person who, without reasonable cause, refuses to neglects to attend and witness a search under this section, when called upon to close to dos o by an order in written delivered or tendered to him,
    • shall be deemed to have committed an offence under section 187, Indian Penal Code, 1860 (45 of 1860).

SECTION 101: DISPOSAL OF THINGS FOND IN SEARCH BEYOND JURISDICTION

SITUATION:

  • When, in the execution of a search warrant,
  • at any place beyond the local jurisdiction of the court, which issued the same,
  • any of the things for which search is made,
  • are found.

CONSEQUENCE:

  • Things found shall be,
  • immediately taken before the court , issuing the warrant,
  • unless, such place is nearer to the Magistrate having jurisdiction therein then to such Court.

(in case: the list and things shall be immediately taken before such magistrate,

  • unless there be good cause to the contrary,
  • such magistrate shall make an order authorizing them to be taken to such court.)

THIS (THIRD) PART OF THE SERIES CONSISTS OF GENERAL PROVISION RELATING TO SEARCH, WHICH IS PART-C OF CHAPTER-VII OF CODE. SECOND PART CONSISTS OF SEARCH WARRANTS, WHICH IS THE PART B OF CODE IN CHAPTER: VII. FIRST PART OF THE SERIES CONSISTS OF A- SUMMONS TO PRODUCE, WHICH IS PART A IN THE CODE EVEN. THIRD PART CONSISTS OF PART C OF THE CODE.

CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (Section 91-105), Part B- SEARCH WARRANTS (Section 93-98), The Code of Criminal Code, 1973

B- Search Warrants (Section 93-98), CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (Section 91-105)

SEARCH WARRANTS

Search warrants are issued-

  • for production of a document or thing, (section 93)
  • for search of a house suspected to contain stolen property, forged documents, etc, (section 94)
  • for seizing any forfeited publications, (section 95 and 96) and
  • for discovery of persons wrongfully confined(section 97).

SECTION 93: WHEN SEARCH WARRANT MAY BE ISSUED

SITUATION: Where,

(a)Any Court has reason to believe that the person would not produce the document or thing, as required by such summons or requisition.

(A person, to whom:

  • a summons order (under section 91), or
  • a requisition has been or might be addressed (under section 92(1))

(b) the court does not know in whose possession such a document or thing is,

(c) the court’s purposes of any inquiry, trials, or other proceeding under this Code, will be served by a general search or inspection.

CONSEQUENCES:

  • The Court may-
    • issue a search warrant, and
    • search or inspect:
      • by the person, to whom such warrant is directed and
      • in accordance therewith and the provision thereinafter contained.

(2)Relevance of specifications in the warrant.

  • The court may (if it thinks fit):
    • the particular pace or part thereof.
  • Then, the person charged with the execution of such warrant shall then:
    • search or inspect,
    • the place or part only (so specified).

(3)This section shall authorize any Magistrate (except District magistrate and Chief Judicial Magistrate),

  • to grant a warrant to search,
  • for a document, parcel, or other thing, in the custody of postal or telegraph authority.

CASE: V.S. Kuttan Pillai V Ramakrishnan AIR 1980 SC 185

  • Issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order.
  • Issue of a search warrant being in the discretion of the magistrate:
    • it would be reasonable to expect of the magistrate to give reasons which swayed his discretion in favor of granting the request.  
    • a clear application of mind by the magistrate must be discernible in the order granting the search warrant.

SECTION 94: SEARCH OF PLACE SUSPECTED TO CONTAIN STOLEN PROPERTY, FORGED DOCUMENTS, etc.

SITUATION: If,

  • a District Magistrate, sub-divisional Magistrate, or Magistrate of the first class,
  • has reason to believe (upon information and after such inquiry as he thinks necessary) that:
    • any place is used for:
      • the deposit and sale of stolen property, or
      • the deposit, sale, or production of an objectionable article (to which this section applies),
    • any such objectionable article is deposited in any place.

CONSEQUENCE:

  • Such District magistrate, Sub-divisions magistrate, or Magistrate of first class,
  • may by warrant authorize,
  • any police officer above the rank of a constable-
    • to enter such place, with such assistance (as may be required),
    • to search such place, in the manner specified in the warrant,
    • to take possession of any property or article:
      • found therein, and
      • he suspects to be stolen property or objectionable article,
    • to convey, such property or article before a Magistrate, or
      • to guard, such property or article on the spot until:
        • the offender is taken before a Magistrate,
        • otherwise (article) to deposit it in some place of safety,
    • to take into custody and carry before a Magistrate;
      • every person:
        • found in such place, and
        • who appears to have been privy to the deposit, sale, or production of any such property, or
      • every article:
        • knowing or having reasonable cause to suspect it to be stolen property, or
        • objectionable article, to which this section applies.

(2)The objectionable articles to which this section applies are-

(a) counterfeit coin,

(b) pieces of metal made in contravention of the Metal Token Act, 1889 (1 of 1889), or

  • brought into India in contravention of any notification for the time being un force under section 11 of the Customs Act, 1962 (52 of 1962),

(c)counterfeit current note, counterfeit stamps,

(d) forged documents,

(e) false seals,

(f) obscene objects referred to in section 292 of the India Penal Code (45 of 1860),

(g) instruments or material used for the production of any the articles mentioned in clauses (a) to (f).

SECTION 95: POWER TO DECLARE CERTAIN PUBLICATIONS FORFEITED AND TO ISSUE SEARCH WARRANTS FOR THE SAME

(1)SITUATION:

  • Where,
    • any newspaper, or book, or
    • any document,
  • wherever printed,
  • appears to the State Government, to contain any matter the publication of which is punishable under the following sections of Indian Penal Code, 1860:
    • Section 124A: Sedition
    • Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence.
    • Section 153B: imputation, assertions prejudicial to national integration.
    • Section 292: Sale, etc. of obscene books, etc.
    • Section 293: Sale, etc. of obscene objects to young person.
    • Section 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

CONSEQUENCE:

  • The State Government may,
    • by notification stating the grounds of its opinion,
    • declare certain publications to be forfeited to government.
    • (Certain publications, include-
      • every copy of the issue of the newspaper containing such matter, and
      • every copy of such book or other document.)
    • thereupon, police officer may seize the same wherever found in India, and
  • Any Magistrate may,
    • by warrant authorize:
      • any police officer, not below the rank of sub-inspector,
      • to enter upon and search for the same in any premises where any copy of such issue, or any such book or other document may be reasonable suspected to be.

(2) In this section and in section 96-

(a) “newspaper” and  “book” have the same meaning as in the Press and registration of Books  Act, 1867 (25 of 1867),

(b) “document” included any painting, drawing or photograph, or other visible representation.

(3)Any order passed or action taken under this section.

  • shall not be called in question in any Court,
  • otherwise than in accordance with the provision of section 96.

CASE: Smt. P. Hemalatha V State of West Bengal AIR 1976 Andhra Pradesh 375

  • The grounds of opinion for coming to the conclusion that:
    • the publication of the matter contained in the journal sought to be forfeited by an order under section 95, is punishable under section 124A, IPC, is an integral part of section 95, and
    • compliance with its requirements is a sine qua non of the validity of the notification.

It is not enough merely to reproduce the language of section 124A, IPC without specifying as to how or in what manner there has been contravention of the provisions of that section.

SECTION 96: APPLICATION TO HIGH COURT TO SET ASIDE DECLARATION OF FORFEITURE

(1)In respect of which a declaration of forfeiture has been made under section 95,

  • any person, having any interest in any newspaper, book, or other document in respect of which a declaration of forfeiture has been made under section 95,
  • within 2 months from the date of publication in the official gazette of such declaration,
  • may, apply to the High Court, to set aside declaration, on the ground that:
    • the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter, as referred under section 95(1).

(2) Number of judges, required to hear the application.

Case1: Where, the High Court consists of 3 or more Judges.

  • ever such application shall be heard and determined by a special bench of the High Court, composed of 3 Judges, and

Case 2: Where, the High Court consists of less than 3 Judges.

  • ever such application shall be heard and determined by a Special bench of the high Court of all the judges of that High Court.

(3) Evidence in aid of the proof of forfeiture.

SITUATION: On the hearing of any such application with reference to any newspaper, in respect of which the declaration of forfeiture was made.

CONSEQUENCE: Any copy of such newspaper may be given:

  • in evidence as aid of proof,
  • of the nature or tendency of the words, signs, or visible representations contained in such newspaper.

(4) Setting aside the declaration of forfeiture.

SITUATION: If High Court is not satisfied that:

  • the issue of the newspaper, on the book more other document, in respect of which the application has been made,
  • contained any such matter as is referred to section 95(1).

CONSEQUENCES: the High Court shall, set aside the declaration of forfeiture.

(5)Decision, when difference of opinion among judges.

SITUATION: Where there is difference of opinion among the Judges forming the Special Bench.

CONSEQUENCE: The decision shall be in accordance with the opinion of the majority of those Judges.

CASE: The Trustee of Safdar Hashmi Memorial trust V Government of N.C.T. of Delhi, 2000 Cri.L.J. 3689

  • A notification in order to be legal and effective must comply with requirements. The compliance is a sine qua non for the validity of the notification.
  • To state the grounds of its opinion without stating the fact does not amount to statement by the grounds of its opinion.
  • Mere mention of an article or apart thereof in the notification would not constitute ground contemplated by section 95 of the Code. There is a distinction between facts which form the grounds for formation of opinion and opinion itself.

SECTION 97: SEARCH FOR PERSONS WRONGFULLY CONFINED

SITUATION:

  • Any District magistrate, Sub-divisional Magistrate, or Magistrate of the first class,
  • has reason to believe that any person is confined,
  • the confinement is under such circumstances that it amounts to an offence.

CONSEQUENCE:

  • He may issue a search warrant,
    • to the person whom such warrant is directed may search for the person so confined.
  • Such search shall be,
    • made in accordance therewith.
  • The person if found, shall be immediately taken before a magistrate,
    • Magistrate, who shall make such order as in the circumstances of the case, seems proper.

SECTION 98: POWER TO COMPEL RESTORATION OF ABDUCTED FEMALES

SITUATION:

  • Upon complaint made on oath of abduction or unlawful detention,
  • of a woman or a female child, under the age of 18 years,
  • for any unlawful purpose.

CONSEQUENCE:

  • A District magistrate, Sub-division Magistrate or Magistrate of the first class, may:
    • make an order for the immediate restoration,
      • of such woman to her liberty, or
      • female child to her husband, parent, guardian or other person, having the lawful charge of such child, and
    • compel compliance with such order, using such force as may be necessary.

THIS (SECOND) CONSISTS OF SEARCH WARRANTS, WHICH IS THE PART B OF CODE IN CHAPTER: VII. FIRST PART OF THE SERIES CONSISTS OF A- SUMMONS TO PRODUCE, WHICH IS PART A IN THE CODE EVEN. THIRD PART CONSISTS OF PART C OF THE CODE.

CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS(Section 91-105), Part A- SUMMONS TO PRODUCE (Section 91-92), The Code of Criminal Procedure, 1973

CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS, A- Summons to produce (Section 91-92)

The law regarding processes to compel the production of documents and other movable property is laid down in section 91 of the Code of Criminal Procedure. Such processes are of 2 kinds, a summons and a search warrant.

SECTION 91: SUMMONS TO PRODUCE DOCUMENT OR OTHER THING

(1)SITUATION: Whenever,

  • any court or any officer-in-charge (of a police station),
  • considers the necessity and desire, (by or before such court or officer):
    • for production of any document or other thing,
    • to meet the purpose of any:
      • investigation,
      • inquiry,
      • trial, or
      • other proceeding under this Code. 

CONSEQUENCE: Such Court or officer, may:

  • issue summons and a written order (respectively),
  • to the person, in whose possession or power such document or thing is believed to be,
  • requiring him to:
    • attend and produce it, or
    • produce it (at the time and place stated in the summons or order).

(2)Deemed compliance:

SITUATION: Any person (required under this section), on production of a document or other thing.

CONSEQUENCE: The person shall be deemed to have complied with the requisition:

  • merely if he causes to produce such document or thing,
  • instead of attending, to produce it, personally.

EXCEPTIONS (of this section):

  • Nothing in this section shall be deemed to effect:
    • section 123 and 124, of the Indian Evidence Act, 1872 (1 of 1872), or
    • the Banker’s Books Evidence Act, 1891 (13 of 1891), or
  • Nothing in this section shall be deemed to apply:
    • to a letter, postcard, telegram or other document or any parcel or thing,
    • which are in the custody of the postal or telegram.

SECTION 92: PROCEDURE AS TO LETTERS AND TELEGRAMS

(1)Procedure of requiring document, parcel or thing by:

  • District Magistrate,
  • Chief Judicial Magistrate,
  • Court of Session, or
  • High Court.

SITUATION:

  • If in the opinion of the District Magistrate, Chief Judicial Magistrate, Courts of Session, High Court,
  • any document, parcel, or thing in the custody of a postal or telegram authority is wanted,
  • wanted, for the purpose of any investigation, inquiry, trial, or other proceedings under this code.

CONSEQUENCE: Such Magistrate or Court may require-

  • the postal or telegram authority (as the case may be),
  • to deliver the document, parcel or thing,
  • to such person as the Magistrate or Court directs.

(2)Procedure of requiring document, parcel, or thing by:

  • Executive Magistrate,
  • Judicial magistrate,
  • Commissioner of Police, or
  • District Superintendent of Police.

SITUATION: If in the opinion of any other Magistrate, whether Executive or Judicial, any Commissioner of Police, or District Superintendent of Police,

  • any such document , parcel, or thing is wanted,
  • wanted, for any such purpose of investigation, inquiry, trial, or other proceeding under this Code.

CONSEQUENCE: Such Magistrate (Executive or Judicial), Commissioner of Police, or District Superintendent of Police, may require:

  • the postal or telegram authority (as the case may be),
  • for the pending order of a District Magistrate, Chief Judicial Magistrate, or Court (under section 92(1)),
  • in regard to such document, parcel, or thing, to cause research and detain.

CASE LAWS

CASE 1: Surendra Mohan Sarin V K.P. Mani Tripathi (1986 Cri.LJ 1324)

  • It was observed that:
    • merely because an order made by an investigating officer to produce books of accounts and other things would cause “great inconvenience” to the persons from whom it has been summoned,
  • It could not be held that:
    • the order made on this basis of the same was beyond the purview of section 91 of the Code.

CASE 2: Assistant Customs Collector, Bombay  V  L.R.Melwani (1970 72 BOMLR 782)

The Supreme Court in the case, ruled that:

  • As to whether a particular document or thing under section 91 should be summoned or not,
  • the discretion essentially lies with that of the trial Court, where the matter was initiated, and
  • the High Court should not normally interfere with that same discretion of the Court,
    • unless there are valid reasons.

CASE 3: Om Parkash Sharma V Central Bureau of Investigation (2000(5)SCC 679)

The Court held that:

  • Powers under section 91 are enabling in nature aimed only to enforce and ensure the production of documents.
  • The language of the code indicates the width of the powers to be unlimited but the in-built limitation inherent therein takes it colour and shape from the stage or point of time of its exercise.

DIFFERENCE BETWEEN SECTION 91 AND 92:

SECTION 91: SUMMONS TO PRODUCE DOCUMENT OR OTHER THING

(1)Authorities involved:

  • Any Court or police officer (officer in charge of police station)

(2)Production of:

  • Document or things,
  • Not letter or telegram.

(3)To serve purpose:

  • Production before court.

SECTION 92: PROCEDURE AS TO LETTERS AND TELEGRAMS

(1)Authorities involved:

  • Under section 92(1)- District Magistrate, Chief Judicial Magistrate, Court of Session, or High Court.
  • Under section 92(2)- Executive Magistrate, Judicial magistrate, Commissioner of Police, or District Superintendent of Police.

(2)Production of:

  • Letter or telegram (from postal authorities).

(3)To serve purpose:

  • Delivery to person, or
  • Detain in order.

THIS (FIRST) PART OF THE SERIES ON CHAPTER: VII, CONSISTS OF A- SUMMONS TO PRODUCE, WHICH IS PART A IN THE CODE EVEN. SECOND PART CONSISTS OF PART B OF THE CODE.

CHAPTER VI: PROCESSES TO COMPEL APPEARANCES (Section 61- 90), BONUS PART- DO YOU KNOW? The Code of Criminal Procedure, 1973

(1) TOTAL WAYS TO COMPEL A PERSON TO APPEAR IN COURT (under chapter- VI, Code, 1973)

There are 6 ways to compel a person to appear in court-

  • Summon, (A-chapter VI: CrPC)
  • Warrant,  (B-chapter VI: CrPC)
  • Warrant in lieu of summon, (D-chapter VI: CrPC)
  • Proclamation of an absconder, (C-chapter VI: CrPC)
  • Attachment of his property, and(C-chapter VI: CrPC)
  • Bond, with or without sureties to appear before a court on a certain date. (D-chapter VI: CrPC)

(2)WARRANT IN LIEU OF SUMMONS (Section 87 and 89)

A magistrate ought not to issue a warrant, either in lieu of, or in addition to, summons in a summons case unless he has previously recorded the reasons for his so doing.

(3) DIFFERENCE BETWEEN SUMMONS AND WARRANT:

(i)Summons– A summons is a person issued from the office of the court of justice calling upon the person to whom it is directed to attend before a judge or officer of the court.

Warrant- A warrant, on the other hand, is an order to the police or to a certain person directing him to arrest the accused and to produce him before the court.

(ii)Summons– Avoiding of service of summons is punishable under section 172, IPC, 1860 by a sentence of:

  • imprisonment for a term up to 1 month, or
  • with fine up to Rs. 500, or
  • both.

Warrant– Absconding in order to evade the service of a warrant is not so punishable.

(iii)Summons– A summons can be served on a person by means of a substituted service ,i.e. by affixing a duplicate to some conspicuous part of the house in which the person summoned ordinarily resides.

Warrant– A warrant cannot be executed in such a manner.

THIS (FIFTH) PART CONSISTS OF SOME IMPORTANT POINTS FROM THE WHOLE SERIES, FOURTH PART CONSISTS OF WARRANT IN LIEU OF SUMMONS AND WARRANT and BOND FOR APPEARANCE, AS PART-D, IN CODE, THIRD PART CONSISTS OF PROCLAMATION AND ATTACHMENT (section 82-86), AS PART-C IN THE CODE, SECOND PART OF THE SERIES ON CHAPTER 6 OF CODE OF CRIMINAL PROCEDURE, 1973 CONSISTS OF WARRANT OF ARREST, AS PART-B, IN THE CODE and FIRST PART CONSISTS OF SUMMONS, AS PART-A, IN THE CODE, and THIRD PART CONSISTS OF PART-C, OF THE CODE WHICH IS PROCLAMATION AND ATTACHMENT.

CHAPTER VI: PROCESSES TO COMPEL APPEARANCES (Section 61- 90), D- OTHER RULES REGARDING PROCESSES (Section 87- 90) The Code of Criminal Procedure, 1973

INTRODUCTION

To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed.

If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced.

There are 6 ways to compel a person to appear in court-

  • Summon, (A-chapter VI: CrPC)
  • Warrant,  (B-chapter VI: CrPC)
  • Warrant in lieu of summon, (D-chapter VI: CrPC)
  • Proclamation of an absconder, (C-chapter VI: CrPC)
  • Attachment of his property, and(C-chapter VI: CrPC)
  • Bond, with or without sureties to appear before a court on a certain date. (D-chapter VI: CrPC)

D- OTHER RULES REGARDING PROCESSES (Section 87- 90)

WARRANT IN LIEU OF SUMMONS (Section 87 and 89)

A court may issue, after recording its reasons in writing, a warrant in lieu of, or in addition to, a summons for the appearance of any person in the following 3 cases:

Case 1: Where the court believes that the person summoned has absconded or will not obey the summons,(sec. 87)

Case 2: Where although the summons is proved to have been served in time, the person summoned has without reasonable cause failed to appear,(sec. 87)

Case 3: On breach of a bond for appearance. (sec. 89)

A magistrate ought not to issue a warrant, either in lieu of, or in addition to, summons in a summons case unless he has previously recorded the reasons for his so doing.

SECTION 87: ISSUE OF WARRANT IN LIEU OF, OR IN ADDITION TO SUMMONS

SITUATION: A court is empowered by this code to issue summons for the appearance of any person.

CONSEQUENCE: The court may issue a warrant of his arrest,

  • after recording its reasons in writing.

Conditions-

  • If, either:
    • before the issue of such summons, or
    • after the issue of the same but before the time fixed for his appearance.
      • court sees reason to believe that he has absconded or will not obey the summons, or
  • If, at such time he fails to appears, and:
    • summons is proved to have been duly served in time to admit of his appearance in accordance therewith, and
    • no reasonable excuse is offered for such failure.

BOND FOR APPEARANCE (Section 88-89)

The last (sixth) method of securing attendance of a person in court is to require him to execute a bond with or without sureties, for his appearance in court.

SECTION 88: POWER TO TAKE BOND FOR APPEARANCE

SITUATION: 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.

CONSEQUENCE: such officer may require such person-

  • to execute a bond, (with or without sureties),
  • for his appearance in such court, or any other court.

SECTION 89: ARREST ON BREACH OF BOND FOR APPEARANCE

SITUATION: Any person, who is bound by any bound (taken under this code) to appear before a court does not appear.

CONSEQUENCE: The officer presiding in such court may issue a warrant-

  • warrant, directing that such person be arrested and produced before him.

SUPPLEMENTARY (Section 90)

SECTION 90: PROVISIONS OF THIS CHAPTER GENERALLY APPLICABLE TO SUMMONSES AND WARRANTS OF ARREST

  • The provision contained in this chapter, relating to:
    • a summons and warrant, and
    • their issue, service and execution.

The provisions, shall so far as may be apply to every summons and every warrant of arrest issued under this code.

THIS (FOURTH) PART CONSISTS OF WARRANT IN LIEU OF SUMMONS AND WARRANT and BOND FOR APPEARANCE, AS PART-D, IN CODE, THIRD PART CONSISTS OF PROCLAMATION AND ATTACHMENT (section 82-86), AS PART-C IN THE CODE, SECOND PART OF THE SERIES ON CHAPTER 6 OF CODE OF CRIMINAL PROCEDURE, 1973 CONSISTS OF WARRANT OF ARREST, AS PART-B, IN THE CODE and FIRST PART CONSISTS OF SUMMONS, AS PART-A, IN THE CODE, and THIRD PART CONSISTS OF PART-C, OF THE CODE WHICH IS PROCLAMATION AND ATTACHMENT.

CHAPTER VI: PROCESSES TO COMPEL APPEARANCES (Section 61- 90),Part C- PROCLAMATION AND ATTACHMENT (Section 82- 86) The Code of Criminal Procedure, 1973

INTRODUCTION

To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed.

If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced.

There are 6 ways to compel a person to appear in court-

  • Summon, (A-chapter VI: CrPC)
  • Warrant, (B-chapter VI: CrPC)
  • Warrant in lieu of summon, (D-chapter VI: CrPC)
  • Proclamation of an absconder, (C-chapter VI: CrPC)
  • Attachment of his property, and, (C-chapter VI: CrPC)
  • Bond, with or without sureties to appear before a court on a certain date. (D-chapter VI: CrPC)

C- PROCLAMATION AND ATTACHMENT (Section 82- 86)

Proclamation is on the ground of the person being absconding.

The primary meaning of ‘abscond’ is to hide and when a person I hiding from his place of residence, he is said to ‘abscond’.

In Chamber’s Twentieth Century Dictionary, the word ‘abscond’ has been defined as to hide or to quit the country in order to escape a legal process.

SECTION 82: PROCLAMATION FOR PERSON ABSCONDING

SITUATION: 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,
    • is concealing himself
  • so, that such warrant cannot be executed.

CONSEQUENCE: Such court may publish:

  • a written proclamation,
  • required him to appear:
    • at a specific place, and
    • at a specified time (not less than 30 days from the date of publishing such proclamation)
  • The proclamation-
    • Shall be published as follows-

(a)it shall be publically read, in some conspicuous place of the town or village (in which such person ordinarily resides)

(b)it shall be affixed:

  • to some of the conspicuous part of the house or homestead (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.

  • The court may also-
    • direct, a copy of the proclamation to be:
      • published in a daily newspaper,
      • circulating in a place (in which such person ordinarily resides)
  • if court thinks fit.

(3)A written statement by the Court issuing the proclamation,

  • proclamation, which was duly published:
    • on a specified day,
    • in the specified manner (under section 82(2)(i))
    • shall be conclusive evidence, that-
      • the requirements of this section have been complied with, and
      • the proclamation was published on such day.

(4) SITUATION: Proclamation published under section 82(1) is in respect of a person accused of an offence, punishable under section 302, 304, 364, 367, 382, 392, 393, 396, 397, 398, 399, 400, 402, 436, 449, 459, or 460, Indian Penal Code, 1860, and

  • such person fails to appear:
    • at the specified place, and
    • time required by the proclamation.

CONSEQUENCE: Court may after making such inquiry (as it thinks fit):

  • pronounce him a proclaimed offender, and
  • make a declaration to that effect.

(5)Provisions of section 82(2) and (3) shall apply to:

  • a declaration made by the Court (under section 82(4), and
  • to the proclamation published (under section 82(1).)

CASE: K.T.M.S. Abdul Qader V Union of India AIR 1977 Mad. 386, F.B.

Held: Even though the person left India before the passing of the detention order if they continued to remain outside India with a view to defeat or delay the execution of the detention orders they have to be taken to be absconding persons.

SECTION 83: ATTACHMENT OF PROPERTY OF PERSON ABSCONDING

(1)SITUATION: In order to, record reasons in writing at any time after the issue of the proclamation.

CONSEQUENCE: The Court issuing proclamation under section 82, may order,

  • the attachment of any property (movable or immovable or both), belonging to the proclaimed person.

PROVIDED:

SITUATION: At the time of the issue of the proclamation,

  • the court is satisfied 9by affidavit or otherwise),
  • that the person in relation to whom the proclamation is to be issued:
    • is about to dispose poof 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).

CONSEQUENCE: The court may order the attachment simultaneously with the issue of the proclamation.

(2)Such order shall authorize the attachment of any property belonging to such person-

  • within the district in which it is made, and
  • without such district when endorsed by the District magistrate within whose district such property is situated.

(3)SITUATION: The property ordered to be attached is a:

  • debt, or
  • other movable property.

CONSEQUENCE: The attachment under this section shall be made:

  • by seizure, or
  • by the appointment of a receiver, or
  • by a written order prohibiting the delivery of such property to:
    • the proclaimed person, or
    • any 1 on his behalf, or
  • by all or any of such ,methods (as the Court thinks fit).

(4)SITUATION: If the property ordered, to be attached is immovable.

  • Case 1: Land paying revenue to the State Government.
    • Consequence: The attachment under this section shall be made through the collector, of the district (in which the land is situated).
  • Case 2: All other cases.
    • Consequence: The attachment under this section shall be made through-
      • by taking possession, or
      • by the appointment of a receiver, or
      • by a written order prohibiting, the payment of rent on delivery of property to the:
        • proclaimed person, or
        • any on his behalf, or
      • by all or any, 2 of such methods as the court thinks fit.

(5)SITUATION: If the property ordered to be attached:

  • consists of, live stock,
  • is of, a perishable nature.

CONSEQUENCE:

  • The court may, order immediate sale thereof (if it thinks it expedient),
  • the proceeds of the sale shall abide the order of the Court.

(6)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 (5 of 1908).

SECTION 84: CLAIMS AND OBJECTIONS TO ATTACHMENT

(1)SITUATION: If any claim is preferred to, or objection made to the attachment,

of any property attached under section 83,

  • within 6 months from the date of such attachment,
  • by any person (other than the proclaimed person)
  • on the ground that:
    • the claimant or objector has an interest in such property, and
    • such interest is not liable to attachment under section 83.

CONSEQUENCE: The claim or objection:

  • shall be, inquired into and
  • may be, allowed or disallowed in whole or part.

PROVIDED:

  • Any claim preferred or objection made within the period allowed by the section,
  • in the event of the death of the claimant or objector,
  • may be continued by his legal representative.

(2)Claims or objections, to be preferred or made in which court.

  • Case 1: Claims or objections under section 83(1),
    • Consequence: It may be preferred or made in the court by which the order of attachment is issued.
  • Case 2: Claims or objections in respect of property attached under an order endorsed under section 83(2),
    • Consequence: It may be preferred or made in the court of Chief Judicial Magistrate of the district (in which the attachment is made)

(3)Every such claim or objection shall be inquired into,

  • by the court in which it is preferred or made.

PROVIDED:

SITUATION: If it is preferred or made in the court of Chief Judicial Magistrate.

CONSEQUENCE: Chief Judicial Magistrate may make it over for disposal to any magistrate subordinate to him.

(4)SITUATION:

Any person whose claim or objection has been disallowed (in whole or part) by an order under section 84(1).

CONSEQUENCE:

  • The person may institute a suit (within a period of 1 year from the date of such order),
  • to establish the rights, which he claims in respect of the property, in dispute,
  • the order shall be conclusive (but subject to the result of such suit, if any).

SECTION 85: RELEASE, SALE AND RESTRORATION OF ATTACHED PROPERTY

(1)RELEASE-

SITUATION: The proclaimed person appears within the time specified in the proclamation.

CONSEQUENCE: The Court shall make an order releasing the property from the attachment.

(2)SALE-

SITUATION: The proclaimed person does not appear within the time specified in the proclamation.

CONSEQUENCE: The property of the attachment shall be at the disposal of the State Government.

EXCEPTION: Until-

  • Situation 1: The expiration of 6 months from the date of the attachment, and
  • Situation 2: Any claim preferred or objective made under section 84 has been dispose of under that section,
    • Unless: cases in which the court may cause it to be sold whenever, it thinks fit)
      • Case 1: It is subject to speedy and natural decay, or
      • Case 2: The Court considers that the sale would be for the benefit of the owner.

(3)RESTORATION-

SITUATION: Within 2 years from the date of the attachment,

  • Any person (whose property is or has taken at disposal of the State Government under section 85(2)):
    • appears voluntarily, or
    • is apprehended and brought before the court (by whose order the property was attached), or
    • the court, to which such court is subordinate and process to the satisfaction of such court that-
      • he did not abscond or conceal himself for the purpose of avoiding the execution of the warrant and
      • he had not such notice of the proclamation as to enable him to attend within the time specified therein.

CONSEQUENCE:

  • Case 1: Such property or if the same has been sold.
    • the net proceeds of the sale shall be delivered to him.
  • Case 2: Part only thereof has been sold.
    • the net proceeds of the sale and the residue of the property shall be delivered to him.

(after satisfying there from all costs incurred in consequence of the attachment)

SECTION 86: APPEAR FROM ORDER REJECTING APPLICATION FOR RESTORATION OF ATTACHED PROPERTY

SITUATION: Any person referred to section 85(3), who is aggrieved by any refusal-

  • deliver property, or
  • the proceeds of the sale thereof.

CONSEQUENCE: The person may appeal to the Court-

  • Court to whom appeals ordinarily lie from the sentences of the first mentioned Court.

THIS (THIRD) PART CONSISTS OF PROCLAMATION AND ATTACHMENT (section 82-86), AS PART-C IN THE CODE, SECOND PART OF THE SERIES ON CHAPTER 6 OF CODE OF CRIMINAL PROCEDURE, 1973 CONSISTS OF WARRANT OF ARREST, AS PART-B, IN THE CODE and FIRST PART CONSISTS OF SUMMONS, AS PART-A, IN THE CODE, and THIRD PART CONSISTS OF PART-C, OF THE CODE WHICH IS PROCLAMATION AND ATTACHMENT.

 

CHAPTER VI: PROCESSES TO COMPEL APPEARANCES (Section 61- 90) Part B.- WARRANT OF ARREST (Section 70- 81), The Code of Criminal Procedure, 1973

INTRODUCTION

To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed.

If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced.

There are 6 ways to compel a person to appear in court-

  • Summon, (A-chapter VI: CrPC)
  • Warrant,(B-chapter VI: CrPC)
  • Warrant in lieu of summon, (D-chapter VI: CrPC)
  • Proclamation of an absconder, (C-chapter VI: CrPC)
  • Attachment of his property, and, (C-chapter VI: CrPC)
  • Bond, with or without sureties to appear before a court on a certain date., (D-chapter VI: CrPC)

B.- WARRANT OF ARREST (Section 70- 81)

The second method of securing attendance of a person is by means of a warrant of arrest.

  • The warrant is an order addressed to a certain person directing him to:
    • arrest the accused and
    • produce him before the court.

SECTION 70: FORM ON WARRANT OF ARREST AND DURATION

(1)Every warrant of arrest:

  • issued by a Court, under this Code, shall:
  • be written or signed by the presiding officer, of such Court and
  • bear the seal of the Court.

(2)Every such warrant shall remain in force, until:

  • cancelled by the Court, issued it or
  • It is executed.

CASE: Sanhay Suri V Delhi Administration, Delhi AIR 1988 S.C. 414

  • A magistrate or trial judge authorized to issue warrants for detention of prisoners:
    • should ensure that every warrant authorizing detention specifies the age of the person to be detained.
  • Every warrant must specify the age of the person to be detained.
  • It shall be open to the jail authorities to refuse to honor a warrant:
    • if the age of the person remanded to jail custody is not indicated.
  • It would be lawful for such officers:
    • to refer back the warrant to the issuing court
    • for rectifying the defect before it is honored.

SECTION 71: POWER TO DIRECT SECURITY TO BE TAKEN

(1)CASE:

  • Any Court issuing a warrant of arrest of any person,
  • may endorse directions on warrant,
  • regarding release of such person.

SITUATION

  • Such person executes:
    • a bond, and
    • sufficient securities-
      • for attendance,
      • before the Court and
      • at a  specified time.

CONSEQUENCE

  • The officer to whom warrant is directed shall:
    • take such security and
    • release, him from custody.

EXCEPT: The Court directs otherwise (anything else).

(2)the endorsement shall state-

(a)the number of sureties,

(b)the amount, in which they and such person are to be respectively bound,

(c)the time at which he is to attend before the Court.

(3)SITUATION

Whenever, security is taken under this section.

CONSEQUENCE

The officer (to whom, warrant is directed) shall forward the bond to the Court.

SECTION 72: WARRANTS TO WHOM DIRECTED

(1)CASE: Ordinarily, warrant of arrest is directed to one or more police officers.

SITUATION: Court issue’s warrant:

  • requiring, immediate execution and
  • having, no police officer immediately availability.

CONSEQUENCE: Direct, such warrant, to any other person or persons, who shall execute the same.

(2)SITUATION: Warrant of arrest directed to more than one police officer or persons.

CONSEQUENCE: Such warrant of arrest may be executed by all or any one or more of them.

SECTION 73: WARRANT MAY BE DIRECTED TO ANY PERSON

(1)The Chief Judicial Magistrate or a Magistrate of the first class,

  • may direct warrant:
    • to, any person within his local jurisdiction,
    • for any person, who is evading arrest and is:
      • an escaped convict or
      • a proclaimed offender, or
      • accused of non-bailable offence.

(2)SITUATION:

  • Person, for whose arrest warrant is issued,
  • is in or enters on any land or other property under this charge.

CONSEQUENCE:

  • Such person, within local jurisdiction shall:
    • acknowledge, the receipt in writing and
    • execute, the issued warrant.

(3)SITUATION: Person, against whom such warrant is issued, is arrested.

CONSEQUENCE: Such person, shall be:

  • made over, with warrant,
  • to the nearest police officer, who shall take him before a Magistrate, having jurisdiction in the case.

SECTION 74: WARRANT DIRECTED TO POLICE OFFICER

SITUATION: A warrant directed to any police officer may also be executed by any other police officer.

CONSEQUENCE: Such any other police officer, is:

  • whose name is endorsed upon the warrant,
  • to whom warrant of arrest is directed or endorsed.

SECTION 75: NOTIFICATION OF SUBSTANCE OF WARRANT

  • The police officer or other person shall:
    • notify the substance, thereof to person to be arrested, and
    • show him the warrant, if so, required.

SECTION 76: PERSON ARRESTED TO BE BROUGHT BEFORE COURT WITHOUT DELAY

  • The police officer or other person,
  • executing a warrant of arrest, shall:
    • subject to, security provision under section 71,
    • without, unnecessary delay:
      • bring arrested the person, before the Court,
      • before which, he is required by law, to produce such person.

PROVIDED

  • Such delay, shall not exceed 24 hours,
  • executive of time necessary for the journey:
    • from, the place of arrest,
    • to, the Magistrate’s Court.

SECTION 77: WHERE WARRANT MAY BE EXECUTED

A warrant of arrest may be executed at any place in India.

SECTION 78: WARRANT FORWARDED FOR EXECUTION OUTSIDE JURISDICTION

SITUATION:

  • A warrant executed outside local jurisdiction of the Court, issuing it.

CONSEQUENCE:

  • Such Court may;
    • instead of, directing the warrant to the police officer, within it’s jurisdiction,
    • forward it, to Executive Magistrate, or District Superintendent of police, or Commissioner of Police:
      • within local limits of whose jurisdiction it is to be executed,
      • shall endorse his name, thereon cause it to be in manner, hereinbefore, if practicable.

(2)The Court issuing warrant under section 78(1), shall forward:

  • the warrant,
  • substance of the information against the person to be arrest, and
  • such documents (if any):
    • may be enable the Court acting under section 81,
    • to decide whether bail, should be granted or not.

SECTION 79: WARRANT DIRECTED TO POLICE OFFICER FOR EXECUTION OUTSIDE JURISDICTION

(1)SITUATION:

  • Warrant directed to the police officer to be executed beyond local jurisdiction of the Court, issuing it.

CONSEQUENCE:

  • Such police officer,
  • shall take, such warrant,
  • for endorsement to:
    • an Executive Magistrate, or
    • the police officer, not below the rank of an officer in- charge of police station:
      • within local limits,
      • of jurisdiction, where warrant  is to be executed.

(2)Such Magistrate or police officer,

  • shall endorse his name thereon,
  • which shall be sufficient authority, to the police officer, who is:
    • to execute the directed warrant and
    • to take assistance of local police, to execute such warrant (if required).

(3)SITUATION:

  • With reason to believe that occasion got delayed,
  • by obtaining, endorsement of Magistrate or police officer, within whose local jurisdiction, warrant is to be executed,
  • will prevent such executive.

CONSEQUENCE:

  • Police officer (to whom, warrant is directed), may execute it:
    • without, such endorsement in any place,
    • beyond, local jurisdiction, of the Court, issued it.

SECTION 80: PROCEDURE ON ARREST OF PERSON AGAINST WHOM WARRANT ISSUED

SITUATION:

  • A warrant of arrest is executed outside the district in which it was issued.

CONSEQUENCE:

  • Arrested person shall be taken before:
    • Executive Magistrate or District Superintendent of Police or Commissioner,
    • of police, within local limits of whose, jurisdiction arrest was made.

UNLESS

  • The Court, issuing warrant:
    • is within 30 kilometers, of the place of arrest or
    • nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of police, within local limits whose jurisdiction arrest is made or
    • security is taken under section 71.

CASE: Ram Parvesh Singh V District Magistrate, Deoria and others, 1985 All.L.J. 570

The provisions of section 78 and 80, Cr.P.C. apply to a case where the person for whose arrest the warrant is issued is not confined in any jail but is to be arrested.

FACT:

  • In the present case the petitioner was already in detention in jail under the order of the District magistrate.
  • The order of revocation of that order and the second order of detention in jail in another district were to be served on him one after the other.
  • Both these orders were, therefore, sent to the police officer of that district for service.

HELD:

  • In these circumstances the non- compliance of section 78 and 80, Cr.P.C. does not result in detention becoming illegal.  

SECTION 81: PROCEDURE BY MAGISTRATE BEFORE WHOM SUCH PERSON ARRESTED IS BROUGHT

(1)SITUATION:

The person arrested appears to be the person intended by the Court, issued the warrant.

CONSEQUENCE:

  • The Executive Magistrate or District Superintendent of Police or Commissioner of Police,
  • shall direct his removal in custody to such Court.

PROVIDED

In order to release such person on bail, according to offences:

BAILABLE OFFENCE-

  • Either such person is ready and willing to give bail to satisfaction of:
    • Executive Magistrate or
    • District Superintendent of Police or
    • Commissioner of Police or
  • direction has been endorsed under section 71 on the warrant and
  • such person is ready and willing to give the security,
  • required by such direction of Executive Magistrate or District Superintendent of Police or Commissioner of Police shall:
    • take such bail of security as the case may be, and
    • forward bond to the Court (issued warrant).

NON- BAILABLE OFFENCE

  • It shall be lawful for:
    • Chief Judicial Magistrate under section 437 or
    • Sessions Judge,
  • of district, in which arrest is made,
  • to consider information and document,
  • to release such person on bail.

(2) Nothing under this section prevents police officer from taking security under section 71.

THIS (SECOND) PART OF THE SERIES ON CHAPTER 6 OF CODE OF CRIMINAL PROCEDURE, 1973 CONSISTS OF WARRANT OF ARREST, AS PART-B, IN THE CODE and FIRST PART CONSISTS OF SUMMONS, AS PART-A, IN THE CODE, and THIRD PART CONSISTS OF PART-C, OF THE CODE WHICH IS PROCLAMATION AND ATTACHMENT.

CHAPTER VI: PROCESSES TO COMPEL APPEARANCES (Section 61- 90), Part A.- SUMMONS (Section 61-69), The Code of Criminal Procedure, 1973

INTRODUCTION

To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed.

If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced.

There are 6 ways to compel a person to appear in court-

  • Summon, (A-chapter VI: CrPC)
  • Warrant, (B-chapter VI: CrPC)
  • Warrant in lieu of summon,, (D-chapter VI: CrPC)
  • Proclamation of an absconder, (C-chapter VI: CrPC)
  • Attachment of his property, and, (C-chapter VI: CrPC)
  • Bond, with or without sureties to appear before a court on a certain date., (D-chapter VI: CrPC)

A.- SUMMONS (Section 61- 69)

It is a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend, before:

  • a Judge, or
  • officer of the court.

Called “summons” in plural form because it’s meant to keep in duplicates in order to serve them to the concerned party.

  • Summons case relates to less serious offences, thus undertaken for a milder form of process:
    • For enforcement the appearance of the accused or of witness, and
    • For production of a document or a thing.

SECTION 61: FORM OF SUMMONS (written summons)

  • Every summons issued by a Court under this Code, shall be:
    • in writing,
    • in duplicate,
    • signed by-
      • presiding officer of such Court, or
      • such other officer as High Court may direct (from time to time, by rule),
    • bear the seal of the Court.
  • Get more clarity of this section by checking:
    • Forms of Summons: Schedule-II Form No.1 and Form No. 30.

CASE: Emperor V Rananjai Singh AIR 1928 All. 261

  • A summons must clearly show:
    • the name and address – of the person summoned,
    • the place, date and time – at which the person summoned is to attend, and
    • the place, date and nature – of the offence committed.
  • In the absence of such particulars, the proceedings taken thereon:
    • are invalid and
    • can be objected to by the person summoned.

Section 62: SUMMONS HOW SERVED

(1) Served by-

  • Every summons shall be served by:
    • a police officer, or
    • an officer of the Court:
      • one, who’s issuing the summon, or
      • other public servant (subject to such rules as the State Government may make in this behalf).

(2) Served on-

  • The summons shall (if practicable) be:
    • served personally,
    • on the person summoned,
    • by delivering or tendering to him,
    • on the duplicates of the summons.

(3)Summons proceedings-

  • Every person on whom a summons is so served shall:
    • sign a receipt therefore on the back of the other duplicate,
    • if so required by the serving officer.

CASE: Maqsood Ahmad V Must. Arifa Khatoon, 1983 All. L.J. 493

Fact:

  • In proceedings under section 126, CrPC magistrate committed illegality,
  • by restoring to postal service method for effecting service of service of summons upon the petitioner,
  • instead of issuing summons in accordance with provision under section 62, CrPC and onward.

Held:

  • Service by registered post could not effected,
  • it is obvious that the endorsement of ‘refuse’ made by the postman upon the postal cover,
  • cannot lead the court to the conclusion, that the summons was personally served upon the petitioner.

SECTION 63: SERVICE OF SUMMON ON CORPORATE BODIES AND SOCIETIES

Service of summons on a corporation may be effecting by-

  • Serving it on:
    • the secretary, local manager or other principal officer of the corporation, or
  • Letter sent (where the service shall be deemed to have been affected when the letter would arrive in ordinary course of post):
    • by registered post,
    • addressed to the chief officer of the corporation in India.

Explanation: In this section, “corporation” means-

  • an incorporated company or other body corporate, and
  • a society, registered under the societies Registration Act, 1860 (21 of 1860).

SECTION 64: SERVICE WHEN PERSON SUMMONED CANNOT BE FOUND

SITUATION: Where, the person summoned cannot be found, by the exercise of due diligence.

CONSEQUENCE: The summons may be served by;

  • Leaving 1 of the duplicates,
  • with some adult male member of his family residing with him,
  • for him (the person summoned).

(If required by the serving officer, the person with whom the summons is so left shall sign a receipt therefore on the back of the other duplicate.)

Explanation: (Exception)

  • A servant is not a member of a family within the meaning of this section.

SECTION 65: PROCEDURE WHEN SERVICE CANNOT BE EFFECTED AS BEFORE PROVIDED

SITUATION: If service cannot be exercised of due diligence, as provided under section 62, 63 or 64, be effected.

CONSEQUENCE: 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.

(Thereupon, the Court after making such inquiries (as it think fit), may either:

  • declare that the summons has been duly served, or
  • order fresh service (in a proper manner).)

SECTION 66: SERVICE ON GOVERNMENT SERVANT

(1) SITUATION: Where, the person summoned is in the active service of the government.

CONSEQUENCE: The court, issuing the summons shall,

  • ordinarily, send it in duplicate,
  • to the head of the office, in which such person in employed.

(Thereupon, such head shall:

  • cause the summons to be served (in the manner provided under section 62), and
  • return it to the Court:
    • under his signature (which, shall be evidence of due service (66(2)),
    • with endorsement (required by that section))

SECTION 67: SERVICE OF SUMMONS OUTSIDE LOCAL LIMITS

SITUATION: When a court desires that a summons issued by it shall be served at any place outside its local jurisdiction.

CONSEQUENCE: Court shall:

  • ordinarily, send such summons in duplicate,
  • to a Magistrate, within whose jurisdiction, the person summoned-
    • resides, or
    • is, to be there served.

SECTION 68: PROOF OF SERVICE IN SUCH CASES AND WHEN SERVING OFFICER NOT PRESENT

(1) SITUATION: When a summons issued by a court is served outside its local jurisdiction, and

  • in case, where the officer who has served a summons is not present at the hearing of the case.

CONSEQUENCE: An affidavit and duplicate of the summons, shall be-

  • admissible in evidence and
  • the statements made therein shall be-
    • deemed to be correct,
    • unless and until the contrary is proved.
  • (An affidavit, to be made before a Magistrate,
    • purporting that such summons has been served.
  • A duplicate of the summons,
    • purporting, to be endorsed (in manner provided by section 62 or section 64) by the person:
      • to whom it was delivered or tendered, or
      • with whom it was left.)

(2) (The affidavit mentioned in this section, may be-

  • attached to the duplicate of the summons, and
  • returned to the Court.)

SECTION 69: SERVICE OF SUMMONS ON WITNESS BY POST

  • (1) Notwithstanding, anything contained in the preceding sections of this chapter,
  • a court issuing a summons a witness may-
    • direct a copy of the summons (in addition to and simultaneously with the issue of such 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.

(2) SITUATION: An acknowledgement 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,
  • summons, which has been received.

CONSEQUENCE: The Court issuing the summons may declare that the summons has been duly served.

FIRST PART OF THE SERIES ON CHAPTER 6 OF CODE OF CRIMINAL PROCEDURE, 1973 CONSISTS OF SUMMONS, AS PART-A, IN THE CODE and SECOND PART CONSISTS OF PART-B, OF THE CODE WHICH IS WARRANT.