Processes for compelling appearance
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. Further, the supremacy of the law will be questionable if there is no
formal process to bring the required persons before the court. For this reason, Chapter
VI (Sections 61 to 90) of CrPC provides three ways for compelling the
appearance of any person who is required to be present in the court, in the
court -
1. Summons,
2. Warrant, and
3. Proclamation for
person absconding
While Summons is an order of the court to the person to appear before
it, Warrant is an order of the court given to a third person to bring the
person who is required to be present in the court, in the court. Which method
is to be used in a particular situation depends on the judicial officer, who is
guided by the provisions of this code. The third method is used when the person
has absconded or is in any other way avoiding arrest, in which case the Court may
publish a written proclamation requiring him to appear at a specified place and
at a specified time not less than thirty days from the date of publishing such
proclamation
The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if the offence is punishable by death, imprisonment for life or imprisonment for more than two years. A summons case is a case that is not a warrant case. Thus, the basis of classification is the seriousness of the offence. Since summons case contains a lesser sentence, there is less probability of the accused violating the court order. Therefore, generally, a summons is issued for a summons case and a warrant is issued for a warrant case. However, when a summons is not productive in making a person appear before the court, the count may issue a warrant to a police officer or any other person to forcibly produce the required person before the court.
Summons
The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if the offence is punishable by death, imprisonment for life or imprisonment for more than two years. A summons case is a case that is not a warrant case. Thus, the basis of classification is the seriousness of the offence. Since summons case contains a lesser sentence, there is less probability of the accused violating the court order. Therefore, generally, a summons is issued for a summons case and a warrant is issued for a warrant case. However, when a summons is not productive in making a person appear before the court, the count may issue a warrant to a police officer or any other person to forcibly produce the required person before the court.
Summons
A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 of IPC. It is a ground for contempt of court.
As per Section 61, every summons issued by a Court under this Code shall be in writing and in duplicate. It must be signed by the presiding officer of the Court or by such other officer as the High Court may, from time to time, by rule direct. It must also bear the seal of the Court.
Procedure for issuing a Summons
When a request in appropriate format is made to the court for compelling the
appearance for a person, the court either rejects the request or issues a
Summons. As per Section 204, if in the opinion of the magistrate
taking cognizance of the offence, there is sufficient ground for proceeding, he
shall issue a summons if it is a summons case. If it is a warrants
case, he may issue a warrant or a summons as he thinks fit. However, Section
87, empowers a magistrate to issue a warrant even if the case is a
summons case if he has reason to believe that the summons will be disobeyed. He
must record his reasons for this action.
The summons should contain adequate particulars such as the date, time, and place, of the offence charged. It should also contain the date, time, and place where the summoned person is supposed to appear. The standard format of a summons is given in Form 1 of Second schedule.
As per Section 205, a magistrate issuing the summons may permit the accused to appear by his lawyer if he sees reason to do so.
Procedure for serving a Summons
The summons should contain adequate particulars such as the date, time, and place, of the offence charged. It should also contain the date, time, and place where the summoned person is supposed to appear. The standard format of a summons is given in Form 1 of Second schedule.
As per Section 205, a magistrate issuing the summons may permit the accused to appear by his lawyer if he sees reason to do so.
Procedure for serving a Summons
CrPC describes the procedures for serving a summons on various categories of
individuals - a person, a corporate body, a government servant, and a person
residing outside the jurisdiction of the court.
Section 62 describes the procedure for serving a Summons on a person as follows -
Section 62 describes the procedure for serving a Summons on a person as follows -
(1) Every summons shall be served by a police officer, or subject to
such rules as the State Government may make in this behalf, by an officer of
the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.
In case of Danatram Karsanal, 1968, it was held that summons should not only be shown but a copy of it be left, exhibited, delivered, or tendered, to the person summoned. In a case, where a copy was tendered to the person, it was held that the summon was served.
In E Chathu vs P Gopalan, 1981, it was held that when the person sought to be summoned is employed abroad, the court can send summons to the concerned embassy official for the purpose of service since the embassy official is also a public servant. Merely affixing the summon on a conspicuous part of the house will not amount to service of the summon.
Service of summons on corporate bodies and societies (Section 63)
Service of a summons on a corporation may be effected by serving it on the
secretary, local manager or other principle officer of the corporation, or by
letter sent by registered post, addressed to the chief officer of the corporation
in India, in which case the service shall be deemed to have been effected when
the letter would arrive in ordinary course of post. In this section,
"corporation" means an incorporated company or other body corporate
and includes a society registered under the Societies Registration Act, 1860.
In the case of Central Bank of India vs Delhi Development Authority, 1981, it was held that a Branch Manager is a local manager and if he has been served the service shall be deemed to have been effected on the company itself.
Service when persons summoned cannot be found (Section 64) -
Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. A servant is not considered to be a member of the family within the meaning of this section.
Procedure when service cannot be effected as before provided (Section 65) -
If service cannot by the exercise of due diligence be effected as provided in section 62, section 63, or section 64, 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; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.
The service of summons on a witness can also be done by post. As per Section 69 -
(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the 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) When an acknowledgment 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 has been received, the Court issuing the summons may declare that the summons has been duly served.
Service of summons on a Govt. employee (Section 66)
In the case of Central Bank of India vs Delhi Development Authority, 1981, it was held that a Branch Manager is a local manager and if he has been served the service shall be deemed to have been effected on the company itself.
Service when persons summoned cannot be found (Section 64) -
Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. A servant is not considered to be a member of the family within the meaning of this section.
Procedure when service cannot be effected as before provided (Section 65) -
If service cannot by the exercise of due diligence be effected as provided in section 62, section 63, or section 64, 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; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.
The service of summons on a witness can also be done by post. As per Section 69 -
(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the 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) When an acknowledgment 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 has been received, the Court issuing the summons may declare that the summons has been duly served.
Service of summons on a Govt. employee (Section 66)
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Section 66 details the procedure for serving a summons on a
Government employee as follows -
(1) Where the person summoned is in the active service of the Government, the Court issuing the summons shall ordinarily sent it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the Court under his signature with the endorsement required by that section.
(2) Such signature shall be evidence of due service.
Service of summons outside local limits (Section 67) -
When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is believed to be there, served.
(1) Where the person summoned is in the active service of the Government, the Court issuing the summons shall ordinarily sent it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the Court under his signature with the endorsement required by that section.
(2) Such signature shall be evidence of due service.
Service of summons outside local limits (Section 67) -
When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is believed to be there, served.
Source: hanumant