This article is written by Mehar Verma, a 3rd year law student from Jindal Global Law School. In this article, the author talks about the essential steps to ensure accused’s presence at the trial through issue of summons, warrants and proclamation.
Every person, including an accused in a criminal case, has the right to be heard and the right to appear before the Court. A fair trial is the one where the accused is allowed to be present at the case and to ensure the attendance of the accused, the Court is required to issue a notice to all the accused in the suit through summons or warrants. If the accused still do not appear, then the Court can issue a proclamation. If the Court issues a summons under the Criminal Procedure Code to ‘A’, informing him about the charges against him and asking to appear before a court. If he fails to do so, the court will issue a warrant, asking a third person to procure ‘A’ to the Court. If ‘A’ absconds or voluntarily conceals himself, the Court will issue a notice of proclamation against ‘A’ and attach the property of ‘A’.
Importance of presence of accused at trial
The presence of the accused at trial is the fundamental principle of criminal procedure which ensures that the fundamental rights of the accused are not abridged. The accused’s presence not only helps in establishing the factual circumstances but also ensures that the accused has an effective right to defence. The physical presence of the accused at the trial allows him to participate in a meaningful and informed manner, right to present his case, right to cross-examine the witnesses and the right to be understood. Thus for the conduct of a fair trial, all proceedings of a trial should take place in front of the accused or his counsel and ex parte decisions should not be made in criminal proceedings. In the spirit of fair trial and ensuring the rights of the accused are not hampered, under Section 238 of the Criminal Procedure Code, the Magistrate must provide with all the necessary documents, including a copy of the charge sheet, statements of the witnesses and all other documents about the investigation to the accused. Section 273 of the Criminal Procedure Code provides that all evidence or other proceedings of the trial shall be taken in the presence of the accused or his pleader. Further Section 317 of the Code states that a Magistrate can proceed with the trial, without the presence of the accused only if it is necessary to do so in the interest of justice.
In Mohd. Hussain @ Julfikar v The State of Delhi, the accused was allowed to cross-examine only one witness, whereas there were fifty-six witnesses in total. The court held that the accused’s conviction must be set aside as it is not a fair trial and a person accused of a serious charge should not be denied to attend the proceedings.
Steps to procure the presence of the accused
As the presence of accused and hearing of both parties, is the essence of a free trial, an entire chapter of the Code deals with the process of ensuring attendance of all the defendants by serving a summons, warrant or proclamation, and attachment of property. After taking cognizance of an offence, the Magistrate has to decide whether a summons or a warrant should be issued for the attendance of the accused.
Summons of arrest
Summons is an order given by the court asking a person to appear before the court in criminal matters.
Form of summons
Section 61 of the Code provides the form of summons. Every summon shall:
- Be in writing;
- A duplicate copy should be made;
- It should be signed by the presiding officer of such court or any other officer as may be prescribed by the High Court;
- Have the seal of the court.
Form 1, of Schedule 2 of the Code provides the format of the summons and it contains the name of the accused, address of the accused, date of issuing the summons, the signature of the Magistrate and seal of the Court.
Summons how served
Section 62 of the Code provides the procedure of servicIng the summons. Clause (1) of the Section says that every summons shall be served by a police officer or any officer of the court, or other public servants, subject to the rules of the State Government in question.
Clause (2) of the Section states that the copy of summons should be served personally to the person summoned, if possible.
Clause (3) of the Section states that every person on whom a summons is served shall sign on the back of the duplicate copy if it is required by the serving officer.
Services of summons on corporate bodies and societies
As per Section 63 of the Code, summons on corporate bodies and societies may be effected by serving it to the secretary, local manager or any other principal officer of the corporation. The summons can be served through a letter or post addressed to the chief officer of the corporation in India. In such cases, the service of the summons is completed when the letters arrive in the ordinary course of the post.
In this section ‘corporation’ does not include a society registered under the Societies Registration Act, 1860, rather it only includes an incorporated company or other corporate bodies.
Service of summons when person serving cannot be found
Section 64 of the Code states that in cases where the person cannot be found even after due diligence, a copy of the summons can be served to an adult male member of his family residing with him. The Section also provides that if the serving officer feels necessary, he can get the duplicate copies signed.
Service on Government servant
Section 66 provides that in cases where the person summoned is a government servant, the court shall send a duplicate of the summons to the head of the office in which such person is employed. Thereafter, the head officer shall serve it upon the person summoned following the conditions laid down in Section 62 of the Code and shall return it to the Court under his signature. The signature of the accused serves as evidence.
Proof of service in such cases when serving officer is not present
The court requires proof of service of summons. Section 68 provides that in cases where the summons was issued outside the local jurisdiction of the Court, and in cases where the person who served the summons is not available at the hearing, in such cases an affidavit stating that the summons was made is to be presented before the Court. The affidavit and a duplicate of the summons are admissible evidence and the statements made in the affidavit are deemed to be true unless the contrary is proved.
Warrant of arrest
In cases where the summons are not complied with or if the offences are extremely serious, the court can issue a warrant. A warrant is an order given by the court to a third party, usually a police officer to procure a person before the Court. A warrant can be bailable as well non-bailable.
Form and contents of a warrant of arrest
Section 70 of the Code provides the form of warrant of arrest and duration. Every warrant of arrest shall:
- Be in writing;
- Be signed by the presiding officer;
- Shall have the seal of the court.
The warrant shall remain in force until it is canceled by the Court that executed it.
Form 2 of Schedule 2 of the Code provides the format of issuing a warrant, it should contain the name and designation of the person or persons who execute the warrant, name, and address of the accused, date of issuing the warrant, the signature of the Magistrate and the seal of the Court.
Modes of execution of a warrant of arrest
Under Section 72 of the Code, a warrant of arrest is usually executed by a police officer. However, if immediate action is required and there are no police officers available at that point, the Court may direct any other person to execute the warrant.
This Section also provides that when a warrant is directed to more than one officer or person, then the warrant can be executed by anyone of them or all of them.
The procedure of arrest of a person with a warrant
The procedure for arrest of a person with a warrant is dealt with in Section 80 of the Code. When a warrant is issued outside the local jurisdiction of the court, the person shall be taken before the Magistrate or District Superintendent or Commissioner of original jurisdiction. However, if the place of arrest is within 30 km of the court which issued the warrant, then the person arrested would be taken to the court issuing the warrant itself. For example, the Metropolitan Magistrate of Delhi issues an arrest warrant of a person in Sonipat. However, the accused resides at the border of Delhi- Sonipat and his residence is within 30 kms from the Metropolitan Magistrate, then, in this case, the accused will be taken before the Metropolitan Magistrate of Delhi and not the Magistrate of Sonipat.
The procedure by Magistrate after the arrest
The person arrested has the right to appear before a Magistrate within 24 hours of arrest. Section 81 of the Code enumerates that if the offence is bailable and the person arrested is willing to give bail as required by the Magistrate, District Superintendent or Commissioner or if there has been a direction to endorse security on the warrant and the person arrested is willing to give such security, District Superintendent or Commissioner shall take such security or bail and forward a bond to the Court.
If the offence is non-bailable, the Chief Judicial Magistrate or the Sessions Judge may grant bail to the person arrested based on the information and documents procured before the Court.
Proclamation and attachment of the property
Proclamation means giving a final chance to the person to appear before the Court himself and is made when a person avoids warrants or absconds. A person is served with a proclamation notice at his residence or last known address giving him 30 days to appear before the Court and if he fails to do so, he has declared a proclaimed offender. Such a person may be arrested by any police officer in the country and his property may also be attached and sold.
Proclamation for person absconding
Clause (1) of Section 82 states that when a person absconds or is intentionally hiding so that a warrant cannot be executed, the Court may issue a written proclamation against such person, requiring them to appear at a specified time and place within 30 days of issue of such proclamation.
Clause (2) of the Section provides the procedure of publishing the proclamation:
- It must be publically read in a place visible in the town or village where the person ordinarily resides;
- It shall be attached to some part of the house in which the person ordinarily resides;
- A copy of the proclamation is attached in the court house;
- The proclamation may also be published in a daily newspaper if the Court thinks the same is necessary.
A statement in writing given by the Court is considered as admissible evidence that the proclamation was made. The statement contains that the requirement of this Section have been complied with and the date on which the proclamation was made.
Attachment of property of person absconding
Under Section 83, if the Court believes that the person against whom proclamation is issued, is going to dispose of his property or is going to remove the property from the local jurisdiction of the Court, the Court may order attachment of such property along with the issue of the proclamation.
If the property ordered to be attached is a movable property, the attachment under this section shall be made:
- by seizure;
- by appointing a receiver;
- by an order in writing prohibiting the delivery of such property to the proclaimed person;
- by any or all of the above orders.
If the property in question is immovable and where the land paying revenue is made to the State Government, the property is attached through the collector of the district and in all other cases, the attachment shall be made:
- By taking possession;
- By appointing a receiver;
- By prohibiting payment of rent to the proclaimed person;
- By any or all of the above orders.
If the property attached is perishable in nature of includes live-stock, the Court can order immediate sale.
Claims and objections to attachment
According to Section 84 of the Code, if an objection is made by any person except the person proclaimed within 6 months of attachment of the property, claiming that he has an interest in the property attached, the Court is required to inquire about the claim or objection made.
The suit for such objection or claim can be made in the Court which issued the attachment or in the Court which made the attachment, if different.
Any person whose claim or objection is disallowed can appeal within one year from the date of such order.
Release, sale, and restoration of attached property
According to Section 85 of the Code, if the proclaimed person appears before the Court before the expiration of 30 days, the property attached is to be released.
If the proclaimed person does not appear, the attached property is at the disposal of the State Government. However, the Government cannot sell the property before the expiration of 6 months from the date of attachment unless the property is perishable and it is in the best interest of the owner to sell the property.
If within two years, the person who was proclaimed voluntarily comes before the court and proves that he did not abscond, rather he did not have any notice of proclamation made, the attached property is to be released and if it has already been sold, then the sale proceeds be delivered to him.
The Criminal Procedure Code gives due importance to the presence of accused at trial and thus an entire chapter of the Code deals with attendance of the accused. The court can issue summons asking a person to appear before the Court in the prescribed form. The summons is made in writing and a duplicate copy is to be signed and sealed by the Court. The summons can be served by any public officer of the Court or other public servants as may be prescribed by the State Government.
In cases where the summons are not complied with or serious offences, the court issues a warrant in the prescribed form. Just like summons, the warrant is also made in writing, sealed and signed by the Court.
If the accused tries to absconds and avoids warrants, the Court can issue a proclamation, giving a person a final chance to appear before the Court. If the Court seems necessary it can also attach the property of the person proclaimed.
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