The process to compel appearance are dealt with here: (1) Summons sec.61 and (2) Warrant sec.70. Whether a summons or warrant be issued in the first instance is determined by columns 4 and 5 of Schedule I. Where a summons has failed to secure attendance, it is open to the Court or Magistrate to issues a warrant sec.87. In cases where warrant fails to take effect, the procedure of(3) proclamation as absconder sec.82 is taken and if the absconder is not forth coming,(4) his property is attached and sold sec.83 and 85. One more method of securing attendance is (5) the taking of bond with or with out sureties(sec.88).
The summons is a milder form of process issued for (i) enforcing the appearance of the accused or witness and (ii) for production of document or thing. It should bear the seal of the court and contains the name address of the person summoned, date and time , when a person summoned is required to appear before the court, and it should go to say that such person is not to leave the court without leave,and if the case in which he has been summoned is adjourned , without ascertaining the date to which it is adjourned.
Procedure for service of summons :
Forms of summons(Section61)- every summons issued by a court under this code shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer sd the High Court may from time to time, by rule direct and shall bear the seal of the court.
Summons how served(sec.62)- summons shall be served as far as possible, personally to the person summoned by delivering or tendering him the first copy and shall get the acknowledgement by obtaining his signature on the back of the duplicate.
Service of summons on corporate bodies and societies(sec.63)- when a person summoned is a society or corporation, it is to be served to its principal officer, its local manager, secretary of the corporation addressing a registered letter to its Chief Officer in India.
Central Bank of India v. D.D.A.(1981 Cr.LJ 1476 Delhi): it is held that Branch Manager is a local manager and if summons has been served on him, the service shall be deemed to have been effected on the company.
Service , when person summoned cannot be found (sec.64)– when police were either unable to or did not serve summons on the witnesses whom the accused wanted to examine the summons may be served by leaving one of the duplicates for him with some adults male member of his family residing with him , if so required by the serving officer on the back of the other duplicate .
A servant is not a member of the family within the meaning of this section.
Procedure when service cannot be effected as before provided(65): if a summon cannot be served ain person, a duplicate copy of the summons is to be affixed to some conspicuous part of the house.
Service of government servant(66): in case ,the person summoned is a public servant, it is to be served to the Head of the Depertment.
Service of summons outside local limits(67): by no norm of interpretation can it be suggested that a Court has no way to reach a person living outside its jurisdiction limits, other than the one prescribed in the section.
Proof of service in such case and when serving officer not present (68): when summon was received by witness omission of signature by the presiding officer was held not to be be defect in procedure. The affidavit mentioned in this section may be attached to the duplicate of the summon and returned to the court.
Service of summon of witness received by post (69): where summon is served to witnessed , a copy of the same should be sent simultaneously to his residential address by registered post. 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 of the summons to be served by registration post addressed to the witness at the place where he ordinarily resides or carries on business or personally work for gain.
Warrant( section 70- 81)
Warrant is a written order of a court/magistrate addressed to one or more Police Officer , whose name or designation is mentioned in it, directing to arrest a person, whose name and address is given with offence charged for the purpose of producing him before the magistrate, issued shall remain in force until it is cancelled by the court, which issued it or until it is executed.
The requisites of a valid warrant can be gathered from this section and the form of warrant of arrest in Form No.2 of the Second Schedule. They are s follows;
- 1. The warrant must be in writing
2. It must bear the name and designation of the person who is to execute it
3. It must give full name and description of the person to be arrested
4. It must state the offence charged
5. It must be signed by the presiding officer
6. It must be sealed.
A warrant once disused remain in force until it is cancelled or executed even though it bears a returnable date. A magistrate is however only competent to issue warrant of arrest for production of a person before his own court and not before a police officer.
Procedure: the Police Officer to whom warrant is addressed shall notify the substance of the warrant to be person to be arrested, and shall shoe it to him if necessary (sec75). The journey period from place of arrest to the court is excluded for the purpose of computing 24 hours. The warrant may be executed anywhere in India. Section 78-81 of the code lay down the procedure to be adopted for execution of warrant outside the local limit of jurisdiction.
Attachment of property(sec83-85): section 83 deals with attachment of property of person absconding. Section 84 speaks about claims and objection with regard to attachment. Section 85 deals with release of sale and restoration of the attached property. It is the last step of the court to compel the appearance of the accused before the court.
Under section 82, the magistrate issuing proclamation must record his satisfaction that the accused had absconded or concealed himself. A person who had gone abroad before the issue of warrant of arrest cannot be said to be absconding or concealing(M.S.R.Gundappa v. Sate of Karnataka, 1977CrLJ (NOC) 187).
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