Table of Contents
Introduction
Whenever any type of case is taken to a Court, that court must ensure that a fair trial is conducted. The presence of all the parties who are involved in the case is essential. This is done through two actions – Summons and Warrant. The summon and warrant most important modes for compelling the attendance of any person before a Criminal Court.
The Criminal Procedure Code, 1973, provides the provisions in this regard in Section 204 and Section 87.
Section 204 of CrPC
If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons- case, he shall issue his summons for the attendance of the accused, or (b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accom- panied by a copy of such complaint. (4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87.
Simple means in a Summons Case- If the magistrate is reasonably satisfied and he may issue a summon for the appearance of the accused at the hearing and a warrant, as necessary to bring the accused before the court or any magistrate having the jurisdiction.
Section 87
Issue of warrant in lieu of, or in addition to, summons. A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest- (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
Simply state that a court that has the power to issue a summons, can also issue a warrant, after recording the reasons in writing form, if
The court believes that the person has absconded or may not obey the summons sent to him.
The person fails to appear without any reasonable excuse and the summons has been properly served.
What is Summons?
Summons state the legal notice issued by a court to a person requiring them to appear before the court on a specific date and time mentioned in the document for hearing.
Persons to whom a summon is served
(a) The accused or the Opposite Party: When a legal proceeding is undertaken in a court, the court has the duty to inform the accused or the opposite party that a case has been initiated against them.
(b) Witness: summon is also issued to any witnesses related to the case to appear and testify before the court. The official notice is required so that no witness is absent and justice is duly served.
Summons is generally delivered to confirm the appearance of a person for a legal proceeding. (c) A Person in the Possession of Documents: The court may also serve summons to any person directing them to produce some documents or any other thing necessary for investigation, inquiry, or trial according to the provision in Section 91 of Criminal Procedure Code, 1973
Summons in case of Criminal Law
Section 61 to 69 in the Criminal Procedure Code, 1973 mainly deals with the issuance of summons.
Section 2 of Crpc, defined ” summons- case” means a case relating to an offense, and not being a warrant- case;
Section 61
Form of summons. 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 as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court
Summons should fulfill these requirements to be considered valid:
- It must be in writing form.
- It must be produced in duplicate i.e. two copies.
- The document must have been signed by the presiding officer or judge of the court or any other person directed by the High Court.
- It must bear the seal of the said court.
The summons also mentions the date, the time, and the place where the summoned person is bound to appear. But if the person fails to appear for any reason without informing the court, then the court may issue a warrant against him.
However, in Bhushan Kumar Vs State (NCT of Delhi), the court held that it is not mandatory for the magistrate to state the reason as to why the summons was issued, as it’s not a prerequisite for the validity.
Section 62
Summons how served.
- Every summons shall be served by a police officer, or subject to such rules as the State Government may make on this behalf, by an officer of the Court issuing it or other public servants.
- 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.
- 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.
Section 63
Service of a summons on a corporation may be effected by serving it on the secretary, local manager, or other principal officers 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 the ordinary course of post.
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.
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 summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.
Section 68
- When a summons issued by a Court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by section 62 or section 64) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.
- The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.
Section 69
- Notwithstanding anything contained in the preceding section 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.
- 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.
Summons is generally preferred to be served personally through a serving officer, but it can also be sent through the Post, E-mail, and even WhatsApp.
Summons in case of Civil Law:
Summons is governed by ORDER V of CIVIL PROCEDURE CODE (CPC) – ISSUE AND SERVICE OF SUMMONS.
Order 5 is divided into two parts:
- Issue of Summons
- Service of Summons
According to Rule 1 of Order 5
When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified:
Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff’s claim:
Provided further that where a summons has been issued, the Court may direct the defendant to file the written statement of his defense, if any, on the date of his appearance and cause an entry to be made to that effect in the summons.
Rules 1 to 8 of Order 5
It deals with the issue of summons.
Rules 9 to 30 of Order 5
It states the provisions for the service of summons.
Rule 10 Mode of Service
Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints on this behalf, and sealed with the seal of the Court.
FORM NO. 1
SUMMONS TO AN ACCUSED PERSON
To ........ ......(name of accused) of......................(address)
WHEREAS your attendance is necessary to answer to a charge of......... state shortly offence charged), you are hereby required to appear in person (or by pleader, as the case may before the (Magistrate) of............ to the........ Day of ......Herein fail not Dated, this........ day of. .20..)
(Seal of the Court) (Signature)What is Warrant?
A Warrant is a document issued by a Court to a person or an entity involved in a legal proceeding.
A Warrant is issued only in serious offenses and/or after duly served summons is contravened or if the accused has willfully avoided the services of the summons. For example, the arrest of a person would deprive them of their liberty and violate their fundamental rights but there should be a proper reason for the arrest.
Warrant in case of Criminal Law
Section 2 of Crpc, defined ” warrant- case” means a case relating to an offense punishable with death, imprisonment for life, or imprisonment for a term exceeding two years;
Section 32 of Civil Law, defined a court may issue a warrant if the person fails to appear after being summoned.
Types of Warrant
- Arrest Warrant
- Search warrant
Arrest Warrant
An arrest warrant is issued when there is a reasonable belief that a person has committed an offense and has a chance to escape.
An Arrest Warrant is a warrant issued by a judicial magistrate allowing a police officer or any other person, to arrest a person and take them into custody.
Sections 70 to 81 deal with an Arrest Warrant.
Section 70
Form of warrant of arrest and duration.
Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court, and shall bear the seal of the Court.
Every such warrant shall remain in force until it is canceled by the Court which issued it, or until it is executed.
Section 72
- A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.
- When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them
Section 73
- The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of an escaped convict, proclaimed offender, or any person who is accused of a non-bailable offense and is evading arrest.
- Such person shall acknowledge in writing the receipt of the warrant and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.
- When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.
Section 74
A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.
Section 75
The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.
Section 76
The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person;
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
Section 77
A warrant of arrest may be executed at any place in India.
Section 78
- When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such Court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided.
- The Court issuing a warrant under Sub-Section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81 to decide whether bail should or should not be granted to the person.
Section 79
- When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed.
- Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant.
- Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it.
Section 80
When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within thirty kilometers of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 71, be taken before such Magistrate or District Superintendent or Commissioner.
Search Warrant
A search warrant is a written order issued by a court or a magistrate allowing a police officer or any person having the permission to conduct a search of a person, their house, premises, vehicles, or other belongings and also seize any suspicious thing which may be used as a piece of evidence.
Conclusion
A Reasonable trial is a basic civil right of every human being. the absence of even one party to the case can be very difficult which is why summons and warrants serve as an important mode to deliver proper justice to the people.