Tag Archives: SUMMONS

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 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.