This article has been written by Gunjeet Singh Bagga, pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).
A well-settled principle of Common Law as incorporated into the Indian Code of Criminal Procedure, 1973 is that a trial ought to be conducted in presence of the accused person. The accused’s presence gives him a fair chance to understand the prosecution’s case against him and prepare his defence accordingly. The CrPC expressly provides that all evidence in a trial shall be taken in the accused’s presence and the accused has to seek leave of the court to not attend a trial against him. In some cases, the Trial court may itself direct the accused to not appear before the court and in other cases, the Trial Court may direct the personal attendance of the accused before it.
The Supreme Court in Bhaskar Industries vs. Bhiwani Denim & Apparel Ltd observed that an accused’s presence is mandated in a trial to enable the court to proceed with the trial. The SC held that exemption from appearance under Section 317 CrPC shall only be given if it is in the interests of justice and the accused gives an undertaking that he/ she will not dispute their identity during the trial and the accused’s counsel has no objection in taking evidence while he is not present in court.
There are 4 methods to secure the attendance of a person under CrPC –
(1) Issuing summons,
(2) Issuing warrants for arrest,
(3) Proclamation, attachment, and selling of the property,
(4) Executing bond for attendance in Court under Section 88 where the person against whom summons or warrants were to be issued was present in court.
- A list of prosecution witnesses has to be filed by the prosecution [vide Section 204(2)]
- If the proceedings are instituted upon a written complaint, then the summons/ warrants must be accompanied by it [vide Section 204(3)]
- Process Fee or any other fees prescribed shall be paid [vide Section 204(4)]
The Magistrate, while hearing prosecution’s evidence, may upon prosecution’s application, issue summons to a witness. Similarly, the Magistrate may issue summons to a witness upon the accused’s application after he has stated his defense or after the accused pleads guilty.
Section 2(x) of CrPC defines a warrant case is a case in relation to an offence punishable with death, life imprisonment or imprisonment of more than 2 years while Section 2(w) defines a summons case as a case other than a warrant case.
Summons may be defined as a written order of the court requiring the attendance of the person so summoned in the court. Summons are issued ordinarily in all summons cases [vide Section 204(1)(a)] and in warrant cases at the court’s discretion [vide Section 204(1)(b)]. They may be served through a police officer, a court officer, or any other public servant. If the person summoned cannot be found, the summons may be served to an adult male member of the family residing with the person so summoned.
Section 63, 65-69 of CrPC provides for different modes of service of summons depending upon varied circumstances including but not limited to substituted service, service to corporate bodies & societies, service on govt. servants, service outside local limits, etc.
The Supreme Court, in Bhushan Kumar vs. State, held that there is no requirement of writing a reasoned order while summoning a person but the magistrate ought to have applied his mind to the materials placed before him.
A warrant is an order by the Magistrate to arrest a person, including a witness, and bring him before the court. It is issued ordinarily in all warrant cases and even in summons cases if deemed necessary by the court [vide Section 204(1)(b)]. A warrant may also be issued in case of breach of bond under Section 88 CrPC which was executed for the appearance of a person who was present in court when the bond was executed [vide Section 89].
Under Section 87 a magistrate, through a reasoned order, may issue a warrant after issuing summons if the magistrate has reason to believe that a person has absconded and will not obey the summons or that a person fails to appear in court without any reasonable excuse while it is proved that the summons was duly served upon him.
A warrant of arrest is directed to a police officer or police officers for execution and it may be executed anywhere in India. The person executing the warrant has to show it to the arrested person if demanded and also state the reason for his arrest. It is within the discretion of the magistrate to make the arrest warrant either bailable or non-bailable.
In Inder Mohan Goswami vs. State of Uttaranchal, The Supreme Court held that a court should balance both personal liberty & societal interest before issuing warrants and should properly scrutinize facts and apply its mind to the facts of the case because of the extremely serious consequence of curtailment of personal liberty of a person. The court ought to examine whether the criminal complaint or FIR has been filed with an oblique motive. Summons should be preferred over warrants and bailable warrants should be preferred over non-bailable warrants.
The SC further held that non-bailable warrants should be issued when it is reasonable to believe that the person will not appear in court voluntarily, police are unable to find the person to serve him with a summons or that person could harm someone if not arrested.
In Raghuvansh Bhasin vs. State of Maharashtra, the Supreme Court issued very detailed directions to the subordinate courts and police with respect to the issuance of non-bailable warrants.
Proclamation, attachment and selling of the property
If a person is absconding even after issuance of an arrest warrant, the Magistrate may order proclamation and attachment of the property of the accused as per the procedure prescribed under Section 82 and 83 of CrPC. The court shall require the person against whom a proclamation is published to appear at a specified time and place within 30 days of such publication. If the person does not appear at the specified time and place, the court in cases of offences specified under section 82(4) CrPC shall declare the person a proclaimed offender. Thereafter, a court issuing proclamation may order the attachment of movable and/or immovable property of the proclaimed person. The court may order proclamation and attachment simultaneously if the proclaimed person is about to dispose of his property or move it out of the court’s jurisdiction.
Movable property shall be attached by seizure, appointing a receiver, prohibiting delivery of attached property to proclaimed person or someone on their behalf, etc. Immovable property shall be attached by taking possession, appointing a receiver, prohibiting payment of rent on delivery of the attached property to the proclaimed person or anyone on his behalf, etc.
The property attached shall be sold by the State Government 6 months after attachment under Section 85(2) CrPC. Under section 85(3) CrPC, if the proclaimed person appears before the court within 2 years of the attachment, and proves that he did not abscond for avoiding execution of a warrant, and he did not have the notice of proclamation, the court shall, after deducting the costs incurred in attachment, deliver to him the net proceeds of sale and residue property, if any.
The Delhi High Court in Sunil Tyagi vs. Govt. of NCT of Delhi, in para 494 directed the subordinate courts to not close the matter after declaring a person a proclaimed person or offender; rather the courts should direct the police to file status reports and monitor actions taken by police with respect to tracing the absconding person.
Offences and penalties under The Indian Penal Code
Section 172 of Indian Penal Code, 1860, inter alia, makes it punishable with simple imprisonment upto 1 month &/or fine upto Rs. 500 for a person who absconds to avoid summons, notice, etc. being served from any public servant.
Section 173 IPC, inter alia, provides that whoever intentionally prevents the service of summons, notices etc. upon himself or any other person shall be punishable with simple imprisonment upto 1 month and/ or fine upto Rs. 500.
Section 174 IPC, inter alia, makes intentional non-attendance of a person in response to the summons from a public servant punishable with imprisonment upto 6 months and/ or fine upto Rs. 1000.
The non-appearance in response to a proclamation published under Section 82(1) CrPC shall be punishable under Section 174A IPC with imprisonment upto 3 years and/or fine and if the person has been declared a proclaimed offender under Section 82(4) CrPC, then imprisonment upto 7 years and fine.
Section 183 IPC makes it punishable with imprisonment upto 6 months and/or fine upto Rs. 1000 for any person who resists the public servant who is lawfully taking any property.
Section 184 IPC makes it punishable with imprisonment upto 1 month and a fine upto Rs. 500 for any person who obstructs any public servant from lawfully selling any property.
It can be seen from the discussion so far that the Code of Criminal Procedure prescribes different methods for securing the attendance of persons as well as procuring the documents and other relevant things required for the purposes of investigation, inquiry, and trial. As far as securing the attendance of the accused is concerned, we have seen that the methods like summons, warrant, proclamation, and attachment of property are the measures adopted by the Court. Summons being a milder method should be used at first instance and in case it is not obeyed by the accused person the court may resort to other methods. But in no case, the proclamation and attachment proceeding shall begin before the issuance of a warrant. Issuance of warrant is a condition precedent for invoking the proceeding of proclamation and attachment of property. We have also discussed that non-bailable warrants must not be issued at first instance. It has been observed by the courts that such issuance of a non-bailable warrant is violative of Article 21 right. Similarly, in the case of production of documents and other things that the Code prescribes for issuance of summons and search warrants as effective methods to procure the same. In this regard, both police and Magistrates are given power under the Code. The foregoing discussion also revealed the safeguards or protections provided to individuals against arbitrary search and seizure.
- (2012) 9 SCC 791 CRL.M.C. 5328/2013 Dated 28/6/2021; Available at: https://www.livelaw.in/pdf_upload/jrm28062021crlmm44382013193732-395810.pdf
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