PROCESS TO COMPEL APPEARANCE OF PERSON

This article is written by Kratika Singhal of 3^rd Year of Government Law College Kota, Rajasthan, an intern under Legal Vidhiya

Abstract:

This article examines the importance of process to compel appearance of person. It is a procedure that a person appears before a court and the person can be anyone like the parties, witnesses and attorneys. Chapter VI (Sections 61 to 90) of the Code of Criminal Procedure,1973 contains the provisions relating to Processes to Compel Appearance of Persons in Court. The courts are given such wide powers to ensure that the procedure of the courtrooms is not disturbed by the non-appearance of witnesses or accused persons. This is an attempt to maintain the balance by enacting provisions for bailable warrants and by allowing the courts to restore attached properties.

Keywords: compel, attorneys, summon, accused, tenancy, absconder, proclaimed offender.

Introduction:

Chapter VI (Sections 61 to 90) of the Code of Criminal Procedure, 1973 contains the provisions relating to Processes to Compel Appearance of Persons in Court. In most cases, the court first issues Summons to the person whose attendance is required before the Court. If the person fails to appear after receiving the summons, then Warrants are issued. But if warrants also fail to compel the attendance of a person, then that person is declared as a proclaimed absconder. Now, if the person does not appear before the court even after the proclamation, then the court can attach and sell the absconder’s property. In an appearance the person comes before the court and formally notifies the court that the person is ready to participate in the case.

What is an appearance of a person before a Court?

In an appearance, a person comes before a Court and formally notifies the court that the person will participate in a case. Parties, witnesses and attorneys can all make an appearance.

Different types of appearances

There are different types of appearances. For example, in a General Appearance, a party consents to the jurisdiction of the Court and agrees to participate in the case. In a special Appearance, also known as a “Limited Appearance”, the party is only contesting jurisdiction. In criminal matter, the Defendant’s first court appearance is called an “Arraignment”.

Ways or Processes to Compel a person to appear in Court

There are some processes to compel a person to appear in the Court.

1. SUMMONS: Summon is the document issued by a Court ordering a specific person to appear at a specific time for some specific purpose. It is issued either directly to the person or to the law officer who must carry out all the instructions. Often the purpose of a summon is to require a person to answer charges or a complaint filed against him. It may be used simply to notify a person that he has an interest in the proceedings at hand, which it would be to his advantage to attend.

[1]According to Section 61 of the Code of Criminal Procedure, every summon issued by a court under this Code shall be presented in writing, in duplicate, signed by the presiding officer of such Court, or by such other officer as the High Court may, from time to time by rule direct and shall bear this seal of such Court.

According to Section 61 of the Code of Criminal Procedure 1973 summons may be sent to the following persons

(a) The accused

(b) A witness

(c) The person proceeded against under Section 125 of the Code and

(d) A person to show cause against some order.

Pointers for Summon:

1. If on serving of the summon, the person against whom it had been issued does not appear in the Court then this will be taken as a Contempt of Court and shall be punished accordingly.

2. Every summon issued by the Court under Section 61 of the Code of Criminal Procedure,1973 shall be:

• In writing

• In duplicate person

• Sealed and Signed by the Presiding officer of the Court

• It should mention the time and the place of the rule directed and shall bear the seal of the Court.

3. As per [2]Section 63 of the Code of Criminal Procedure, 1973, Service of a summon on a corporation may be affected by serving it on the:

• Secretary

• Local manager or another principal officer of the corporation

• Or by letter sent by the registered post, addressed to the Chief officer of the Corporation in India, in which case the service shall be deemed to have been affected when the letter would arrive in ordinary course of post.

4. [3]Section 66 states service of summon on government employees can be affected either personally or through Head of Department in which such person is employed. As per [4]Section 62, duplicate copies are sent to Head of the Office who shall serve the summons in the manner provided by Section 62 and shall return it to the Court under this signature with the endorsement. The signature shall be evidence of due service.

2.WARRANT: A warrant is generally an order that serves as a specific type of authorization, that is a writ issued by a competent officer, usually a judge or magistrate that permits an otherwise illegal act which will violate individual rights and affords the person executing the writ protection from damages if the act is performed. A warrant is usually issued by a Court and is directed to a Sheriff, a constable or a police officer. Warrants normally issued by a Court include search warrants, arrest warrants and execution warrants.

TYPES OF WARRANTS:

• Arrest Warrant: It isissued by a judge to detain someone.
• Warrant of Committal: It isissued by a judge ordering enforcement of a previous order against a non-cooperative person or corporation.
• Execution Warrant: It isawrit issued by a judge authorizing the death of someone.
• Possessory Warrant: It isa civil writ issued by a judge ordering property searched for, then delivered to a named person.
• Warrant of Execution: It isa writ issued by a judge allowing law enforcement officers to seize or confiscate property.
• Search Warrant: It isa writ issued by a judge allowing law enforcement to look inside a property.
• Warrant of Delivery: It isa civil writ issued by the judge ordering property delivered to a named person.
• Warrant of possession: It isan Australian judge ordered to terminate of a residential real estate tenancy.

Pointers for Warrant:

1. [5]Section 70 of the Code gives the essentials of a warrant of arrest. It lays down that Court will issue warrant of arrest which shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.

In order to be a valid warrant, it must fulfill the following requisites:

• It must be writing.

• It must be signed by the presiding officer

• It must bear the name and designation of the police officer or other person who is to execute it.

• The warrant must give full particulars of the person to be arrested so as to identify him clearly.

• It must clearly specify the offences charged; and

• It must be scaled.

2. Every warrant shall remain in force until it is cancelled by the Court which issued it or until it is executed. A warrant of arrest does not become invalid on the expiry of the date fixed for return of the warrant.

3. Important Contents of the Warrant are:

• Name of Court

• Name of Police Officer

• Offence

• Place where offence has committed

• Seal of the Court

• Signed by the Presiding officer

• Name and address of the Accused

4. [6]Section 73 of the Code of Criminal Procedure 1973, The Chief Judicial Magistrate or a Magistrate of First Class may direct a warrant to any person within his local jurisdiction for arrest of any escaped convict, offender or person accused of a non-bailable offence, or a proclaimed offender evading arrest who is accused of a non-bailable offence. Such person shall acknowledge the receipt of warrant in writing. After that such person shall execute a warrant against whom it was issued if he enters any land or other property under his charge. After the arrest had been made, arrested person shall be made over with the warrant to the nearest Police Officer who shall present him before a Magistrate having jurisdiction in that case unless security has been taken under Section 71.

5. According to [7]Section 74 a warrant can be executed by a Police Officer to whom it has been directed or may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom warrant was directed or endorsed.

6. [8]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.

7. [9]Section 76 stipulates that the person arrested must be brought before the Court (subject to provisions of Section 71 as to security) without unnecessary delay. As per proviso it is absolutely clear that the delay, unless caused by extraneous circumstances, cannot be more than twenty-four hours from the place of arrest to the Magistrate’s Court.

8. [10]Section 77 of The Code of Criminal Procedure,1973 provides 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.

9. [11]The provisions of Section 78 provide adequate safeguards to a person to be arrested so that he is not arrested without having a proper authority and applied his mind as to the legality of the warrant and authorised the arrest outside the jurisdiction of the Court which had issued the warrant. Such warrant is forwarded to the local authorities under whose jurisdiction it is to be executed instead of directing the warrant to a police officer.

Where a warrant under this section is issued, it should bear the name and description of the particular person intended to be arrested; otherwise it will not be a valid warrant.

Sub-section (2) makes it obligatory for the issuing Court to forward warrant as well as substance of the information against the person to be arrested and also documents, if any. This will enable the Court to decide whether the bail should be granted or not before whom such person is produced.

10. [12]Section 79 of The Code of Criminal Procedure,1973 states that a warrant may be directed to a Police Officer outside the jurisdiction of the Judicial Magistrate, however this must be endorsed by the Executive Magistrate or to a Police Officer not below the rank of an officer in charge of a Police Station.

Sub-section (2) states endorsement of his name by Such Magistrate or Police Officer shall be a sufficient authority to the Police Officer to whom the warrant is directed and to execute the same the local police shall assist such Officer.

Sub-section (3) gives power to the Police Officer to whom warrant is directed to execute the same when there is reason to believe that delay can be occasioned by obtaining the endorsement. Than he can without endorsement of Magistrate or Police Officer within whose local jurisdiction the warrant has to be executed, may execute the same in any place beyond the local jurisdiction of the issuing Court.

11. [13]Section 80 of The Code of Criminal Procedure,1973 states that the person shall be arrested and shall be taken to the Court who issued the warrant if the Court is within thirty kilometers of the place of arrest. Otherwise, the person shall be taken to the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was done or unless security has been taken under Section 71, then he has to be taken before such Magistrate or District Superintendent or Commissioner.

12. [14]Section 81 of The Code of Criminal Procedure,1973 lays down the procedure to be followed by the Executing Magistrate before whom person arrested under a warrant is produced.

It also states that once the arrested person is produced before the Magistrate, the Magistrate shall grant a bail to a person who is arrested for a bailable offence provided that the person is ready to provide the security. If the person is arrested for a non-bailable offence then the Magistrate may grant bail based on documents of the case.

*Also, Section 81 does not envisage the grant of bail by the C.J.M. or the Court of Session having jurisdiction over the place of person arrested by the police without warrant.

3. WARRANT IN LIEU OF SUMMONS: According to [15]Sec 87 of the Code of Criminal Procedure – A Court may in case in which it is empowered by this Code to issue the summon for the appearance of any person after recording its reasons in writing a warrant for his arrest-

a) If either before the issue of such summon, or after the issue of the such summon but before the time fixed for his appearance, the Court has the reason to believe that he has absconded or will not obey the summon; or

b) If at such time he fails to appear and the summon is proved to have been duly served to him in time to admit of his appearing in accordance therewith and no reasonable excuse is found for such failure.

4. PROCLAMATION OF AN ABSCONDER: [16]Section 82 of the Code of Criminal Procedure 1973 provides-

1. ) If any Court has the reason to believe (whether after taking evidence or not) that any person against whom a warrant has been duly issued by the court and he has absconded or is concealing himself so that such warrant cannot be executed, such Court may issue 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 of such proclamation.

2.) The proclamation shall be published likewise: –

a. shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

b. shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

c. A copy of it thereof shall be affixed to some conspicuous part of the Court-house.

d. The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in that place the person ordinarily resides.

3.) A statement in writing by a Court issuing the proclamation to the effect that the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of sub-section (2) shall be conclusive evidence that the requirements of this sections have been complied with, and that the proclamation was published on such day.

4.) Where a proclamation published under Sub-Section (1) is in respect of a person accused of an offence punishable under Section 302,304,364,367,382,392-400,402,436,449,459 or 460 of The Indian Penal Code 1860 and such person fails to appear at the specified place and at the specified time required by the proclamation, the Court may after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

5.) The provisions of Sub-Sections (2) and (3) shall apply to the declaration made by the Court under Sub-Section (4) same as they apply to the proclamation published under Sub-Section (1).

5. ATTACHMENT OF HIS PROPERTY OF PERSON ABSCONDING-

A person against whom a proclamation has been issued by the Court under [17]Section 82 of Criminal Procedure Code, his property can be attached as per Section 83 of the Code of Criminal Procedure, 1973. This is done to compel the person to appear before the Court on trial proceedings.

Where if the Court has the reason to believe that the proclaimed person is either disposing the immoveable property or move it out of court’s jurisdiction, then the Court may attach the property of the proclaimed person.

6. BOND WITH OR WITHOUT SURETIES TO APPEAR BEFORE A COURT ON A CERTAIN DATE

[18]Section 88 of Criminal Procedure Code, when any person for whose appearance or arrest the officer presiding in any Court is empowered to issue summons or warrant, is present in such Court, such officer may require such person to execute the bond, with or without sureties, for his appearance in such Court, or any other Court as the case may be.

 LANDMARK JUDGEMENTS

1. In the case of [19]Guthikonda Sri Hari Prasad Rao v. Guthikonda Lakshmi Rajyama (1992 CrLJ 1594 AP), it was held that an order of maintenance passed ex parte without following the correct procedure for service of summons was liable to be set aside.
2. In the case of [20]Hemendra Nath v. Archana (1971 CrLJ 817), it was observed that before effecting service on Adult Male Family Member (under Section 64), it must first be shown that proper efforts were made and due diligence was exercised by the serving officer for delivering the summons to the summoned person.
3. In the case of [21]Ghulam Mohd. v. Rasoolan [1991 CrLJ 2937 (J&K)], it was clarified that by no norms 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 Section 67.
4. In the case of [22]Karim Shah v. State of UP (2008 CrLJ 2974 All), it was clarified that the liability of sureties exists only until the accused has not been arrested. On the arrest of the accused, the liability of the sureties comes to an end and they cannot be made liable if the accused subsequently absconds from the custody of the Court.

Conclusion

Chapter VI of the Code of Criminal Procedure provides detailed provisions relating to the processes that can be used to compel the appearance of persons in the courts. The courts have been given such wide powers to ensure that the business of the courtrooms is not disturbed by the non-appearance of witnesses or accused persons. This is an attempt to maintain a balance by enacting provisions for bailable warrants and by allowing the courts to restore attached properties.

References:

https://www.lacriminaldefenseattorney.com/legal-dictionary/a/appearance/#:~:text=In%20an%20appearance%20a%20person,are%20different%20types%20of%20appearances.

https://www.latestlaws.com/articles/all-about-process-to-compel-appearance-under-code-of-criminal-procedure1973-by-pinky-dass

https://devgan.in/crpc/chapter_33.php

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[1] Code of Criminal Procedure, 1973, § 61, No. 2, Acts of Parliament, 1973 (India)

[2] Code of Criminal Procedure, 1973, § 63, No. 2, Acts of Parliament, 1973 (India)

[3] Code of Criminal Procedure, 1973, § 66, No. 2, Acts of Parliament, 1973 (India)

[4] Code of Criminal Procedure, 1973, § 62, No. 2, Acts of Parliament, 1973 (India)

[5] Code of Criminal Procedure, 1973, § 70, No. 2, Acts of Parliament, 1973 (India)

[6] Code of Criminal Procedure, 1973, § 73, No. 2, Acts of Parliament, 1973 (India)

[7] Code of Criminal Procedure, 1973, § 74, No. 2, Acts of Parliament, 1973 (India)

[8] Code of Criminal Procedure, 1973, § 75, No. 2, Acts of Parliament, 1973 (India)

[9] Code of Criminal Procedure, 1973, § 76, No. 2, Acts of Parliament, 1973 (India)

[10] Code of Criminal Procedure, 1973, § 77, No. 2, Acts of Parliament, 1973 (India)

[11] Code of Criminal Procedure, 1973, § 78, No. 2, Acts of Parliament, 1973 (India)

[12] Code of Criminal Procedure, 1973, § 79, No. 2, Acts of Parliament, 1973 (India)

[13] Code of Criminal Procedure, 1973, § 80, No. 2, Acts of Parliament, 1973 (India)

[14] Code of Criminal Procedure, 1973, § 81, No. 2, Acts of Parliament, 1973 (India)

[15] Code of Criminal Procedure, 1973, § 87, No. 2, Acts of Parliament, 1973 (India)

[16] Code of Criminal Procedure, 1973, § 82, No. 2, Acts of Parliament, 1973 (India)

[17] Code of Criminal Procedure, 1973, § 82, No. 2, Acts of Parliament, 1973 (India)

[18] Code of Criminal Procedure, 1973, § 88, No. 2, Acts of Parliament, 1973 (India)

[19] Guthikonda Sri Hari Prasad Rao v. Guthikonda Lakshmi Rajyama (1992 CrLJ 1594 AP)

[20] Hemendra Nath v. Archana (1971 CrLJ 817)

[21] Ghulam Mohd. v. Rasoolan [1991 CrLJ 2937 (J&K)]

[22] Karim Shah v. State of UP (2008 CrLJ 2974 All)