Criminal Procedure Code
The basic purpose of the Criminal Procedure Code, among other things, is to ensure a fair trial where none of the rights of the accused are compromised nor are they unjustifiably favoured. Furthermore, to ensure that the judge concerned hears all parties who are relevant to the trial, their presence at the trial is obviously important. That is why an entire chapter of the Code concerns itself with the process of ensuring the attendance of any person concerned with the case, including an accused or a witness, through various measures, viz. summons, warrant, proclamation and attachment of property. The latter two are used when the former do not yield satisfactory results. Many would argue that the simplest way to ensure the presence of a person, especially an accused, would be to arrest him in all circumstances and detain him so that his presence is beyond doubt. However, such an action would go against the fundamental right that this Constitution provides with, the right to personal liberty under Article 21. Criminal law hinges on that right and no person can be deprived of this right unless very cogent reasons are present which argue against his release. This is why the Code envisages both warrant and summons to procure the attendance of persons concerned. In this project, I will look into the four variants used to procure the attendance of persons for trial. Of course, since the provisions are mostly procedural in nature, few substantive issues arise but interpretation of these provisions nevertheless gives rise to various issues. Moreover, the way they are used by the various functionaries involved viz. the judiciary and the police, also has given rise to substantive literature on this. Furthermore, I will give special attention to procurement of attendance of witnesses and how the provisions have been used by the functionaries in ensuring that witnesses attend the trial.
The form in which summons should be served is given in Section 61 of the Code while a summons case is defined as a case relating to an offence which does not provide for imprisonment exceeding two years. Even though a summons case relates to a less serious offence and it is estimated that person served would attend the trial, the Indian Penal Code through Section 174 enforces coercive measure on such persons to attend the trial by enforcing a six month punishment if such persons do not attend the trial. It has to be remembered that though Section 61 gives the procedure of serving summons, the section does not give the authority to issue summons. This position was enunciated in the case of Norode Baron Mukherjee v. State of West Bengal. The power to issue summons or warrants, for that matter, comes from Section 204 of the Code but that is only restricted to complaint cases. Moreover, although Section 61 is derived from Sections 152 and 153 of the Code of 1872 which limited the serving of summons to the accused only, Section 61 incorporates the spirit of Section 68 of the Code of 1898 which applied to other persons as well. By virtue of Section 61, a summons must be in writing, signed and sealed¸ specifying the offence, must state the date and time when the person must appear and must direct person summoned not to depart without leave. If these requirements are not fulfilled, then no person can be convicted for non-compliance with summons under Section 174. But this would not mean that trial would be vitiated as the only way that might happen, would be because of a defect in the trial proceedings itself.
Section 62 takes off from Section 61 and describes the actual serving of summons and who is competent to serve it. In most cases, as the Section lays down, it is desirable that a police officer should deliver the summons to the person concerned but in some cases an officer of the Court or any other public servant may do the same. Section 64 and 65 offer solutions when the person on whom the summons is to be served, is not found. While the former talks about leaving the document in duplicate with any adult member of the family, the latter states that in cases where no member of the household is present, the summons should be affixed in some conspicuous part of the house in which the person ordinarily resides and subsequently declare that the summon had been served or issue orders for fresh service. Before such provisions are resorted to, it has to be shown by the officer concerned that due diligence was exercised in searching for the person summoned. Only after that can the officer resort to the abovementioned provisions. Furthermore, as Section 64 clearly limits the service to adult members of the family, neither female members nor servants can be included under the ambit of persons to whom the summons can be served. It has to be kept in mind again that Section 65 can only be resorted to, if Section 64 does not solve the problem. Sections 66, 67 and 68 provide for service to government servants, service outside local limits and proof of service of summons respectively. Section 69 applies only to witnesses and lays down that summons can be sent to the witness by registered post. In the case of Madan Mohan Shrivastava v. State, the accused was served summons by registered post which the Court invalidated. The Court categorically laid down that Section 69 was limited to witnesses only.
The Code discusses warrants of arrest from Section 70 onwards. These warrants are generally used for far more serious offences where issuance of summons would not achieve the desired objective of procuring the attendance of the person concerned. Even so, a number of interests need to be kept in mind, particularly the fundamental right to liberty. Only when societal interests dictate that the person be kept in custody lest he or she absconds, will the magistrate issue a warrant of arrest. The Code does not define a warrant but as is clear from the form of warrants, these are written orders issued and signed by the magistrate and addressed to a police officer or some other person specially named, directing him or her to arrest the person named in the warrant. In this way, a warrant is different with respect to a summons as in the latter case, the summons is explicitly directed to the person sought to be summoned while in the former, the warrant is directed to the person who is ordered to arrest. The essential requirements for a warrant of arrest are that it must be in writing, must be signed by Presiding Officer, must be sealed, must clearly identify the person to be arrested, must specify the offence charged, must name the persons directed to arrest, must indicate the authority of the Magistrate, and must mention the age of the person sought to be arrested. It has to be kept in mind that warrants of arrest cannot, in any case, be general or blank. A warrant directing officers to arrest unspecified persons is illegal. Moreover, conditional warrants directing some action to be done, the failure of which would lead to arrest, are also deemed illegal. In the case of Alter Caufman v. Government of Bombay, the Magistrate issued a warrant ordering the accused to remove themselves from India, failing which they would be arrested. This warrant was deemed illegal because the authority to determine whether the accused had done the needful was left to the officer entrusted with the arrest and not the Magistrate who issued the warrant itself. Now, when an officer proceeds to arrest a person on a warrant which is illegal, the right of private defence rests on that person to prohibit the officer from arresting.
As is evident from Section 70(2), a warrant does not lapse; it remains valid as long as the Magistrate does not explicitly revoke it. Section 71 basically deals with bailable warrants where the person sought to be arrested can be released on execution of bond with sufficient sureties. Bailable warrants are mostly issued in case of offences which are bailable but in some cases bailable warrants have also been issued against non-bailable offences. An issue arose in a Rajasthan High Court case where the Magistrate refused to cancel the warrant after the bail bonds had been forfeited. The High Court, however, held that the magistrate was empowered to cancel the warrant and had taken an erroneous view.
Sections 72 to 74 are inherently procedural and deal with direction of warrants to concerned officers. Section 75 deals with notification of the substance of the warrant and mandates every police officer (or any other officer) to notify the substance of the warrant to the person whom he or she is arresting. Failure on the officer's part would give the person sought to be arrested, the right of private defence and consequently any resistance offered by such person will not be punishable. Section 76 stipulates that the person arrested must be brought before the Court without unnecessary delay. The time period, originally, was not mentioned but with the addition of the proviso it is clear that the delay, unless caused by extraneous circumstances, cannot be more than twenty-four hours. Sections 77 to 80 talk about jurisdiction of execution of warrant and while Section 77 gives the functionaries the power to execute warrants anywhere in India, the other sections are merely procedural and lay down elaborate rules of dealing with the execution of warrants outside the local jurisdiction of the Court issuing it. This can be illustrated by a simple example. If, for example, the Metropolitan Magistrate issues an arrest warrant for an accused and the accused is in Patna, then the officers directed may go themselves and endorse the warrant by the Executive Magistrate of Patna district or the Metropolitan Magistrate can forward it to the Executive Magistrate or the District Superintendent of Police for execution.
Section 87: Issuance Of Warrant In Addition To Or In Place Of summons
Even in cases where the Court is only empowered to issue a summons, it can, as provided by Section 87, in two situations. First, if before the issuance of summons or after it but before the time fixed for attendance, the Court is of the opinion that the person has absconded or will not obey the summons. Alternatively, if the person concerned fails to appear on the decided date with no reasonable excuse for such failure then the Court would have the power to issue a warrant. Therefore, the power to issue a warrant would depend on the service of summons and in cases where there is no power to issue summons, he would not be able empowered to issue warrants by virtue of this section. In the case of C. McLenan v. State, the Calcutta High Court invalidated the magistrate's ruling that he was empowered to issue summons under 202 of the Act. Therefore, the Court held that since the Magistrate had no power to issue summons under that section, consequently he had no power to issue a warrant by virtue of Section 87. This section gives discretionary powers to the Court to issue a warrant of arrest and such discretion has to be exercised judiciously upon a consideration of the materials before the Court which would lead it to conclude that the person has absconded or will not reply to the summons.
Proclamation And Attachment
Even after issuance of and warrant, the Court may find that the person concerned has either absconded or is concealing himself. This would mean that the Court cannot ensure the attendance of that person unless it adopted some stringent measure. Section 82 of the Code lays down that if the Court is satisfied that such are the circumstances then the Court will give a time period of 30 days from the date of proclamation within which the person has to appear before the Court. Hence, issuance of warrant is prerequisite for an order of proclamation. Without having the authority to issue a warrant, a court cannot issue any order of proclamation.
These seemingly harsh measures are important as financial sanctions impel the person to come to the Court. Therefore, before an order of proclamation is issued, what the Court must ensure is that it has the reasons for issuing such an order. An order of proclamation without sufficient cause would be illegal and therefore any consequent action arising out of that order like attachment would be deemed illegal as well. Therefore, much turns on the fact that whether the Court's satisfaction that the person has absconded or is concealing himself is justified or not. The meaning of the word ‘absconding' thus has invited a lot of attention. Now, it is obvious that the word has a sense of continuity to it. A person cannot be said to have absconded if he was not present in the house for that day. Absconding would occur if a person would run away hastily or secretly so as to avoid the legal process. In Vinod Kumar Khanna v. State, the petitioner sought to challenge the order of proclamation by virtue of Section 482 of the Code. In that case, a notice of appearance was due to be served on the petitioner but since he was in a foreign country, the notice was served on an official of the company in which the petitioner was the chairman. The official had intimated that the petitioner would appear before the Investigating Officer but on his non-appearance a warrant of arrest was issued which also could not be executed. Thereafter, the Court thought it prudent to issue a proclamation and then proceed for attachment under Section 83 of the Code. The petitioner contended that at no point of time had he evaded the warrant of arrest and that the warrant of arrest never came to his knowledge and he could not have been said to have absconded. This was invalidated by the Court as the facts did not point to such a conclusion. The petitioner had officials who were working in India and it was inconceivable that he would not be apprised of the notices and the subsequent warrant of arrest. Moreover, he had also proceeded to execute a power of attorney to dispose of his assets so that the attachment would not be carried out. All these facts pointed to the conclusion that the petitioner was well aware of the notices and the warrant of arrest and on evasion of the same, could be said to have absconded. Thus, as is evident from the case, knowledge of the order of the appearance, in whatever form, and then non-appearance is essential to constitute absconding.
The amendment to the Code in 2005 also brought in a few changes with regard to the order of proclamation. A new subsection(4) was added to Section 82 which mandated that when a person accused of an offence punishable by certain sections, including Section 302, fails to appear within the specified time and place as given by the order of proclamation , he would be declared a proclaimed offender. Section 174A was also included through the 2005 amendment which stipulated a punishment of three years maximum with or without fine in case of proclamation issued under Section 82(1) and seven years maximum with fine in case a proclaimed offender.
Sections 83-86 deal with attachment and the effects arising thereof. Section 83 empowers the Court to attach the property of any person concerned against whom a proclamation has been issued. Therefore, an order of attachment can only be made after an order of proclamation has been issued for justifiable reasons. This is in direct contrast to the Old Code where the attachment order could be issued at any time, even simultaneously with the order of proclamation. Even in the present Code, the attachment order can be made simultaneously with a proclamation order on two occasions: one, when the property is about to be disposed of and two, the property is about to be removed from the local jurisdiction of the Court. The Court can attach both moveable and immoveable property but a curious wrangle arises when it comes to attaching joint family property. In Trigala Veeraya v. State, the Court laid down that the rights of the Government in case of attachment of a part of the joint family property are the same as any coparcener. As the coparcener derives an interest from the property, the Government too derives an interest and is therefore entitled to the income accruing from that part of the property. Section 84 relates to claims and objections regarding attachments. If a person, other than the person proclaimed person, has an interest in the property to be attached he may object to that attachment within six months. Section 85 talks about release of the attached property on appearance of the proclaimed person within the specified time and Section 86 lays down the rule regarding appeal from order rejecting application for restoration of attached property.