A fair trial requires that the trial proceedings are conducted in the presence of the accused and that he is given a fair chance to defend himself. The presence of the accused at the trial can be ensured by simply arresting and detaining him during the trial, but applying the principle of “Natural justice and liberty” that should not be taken away without just cause. If the presence of accused at the trial cannot be procured except by the arrest & detention, the accused by all means be arrested and detained pending his trial, however, if his presence can be judiciously confirmed otherwise than by his arrest and detention, the law ought not to deprive him of his liberty. The provisions under The Code Of Criminal Procedure, 1973 contain the provisions regarding the issuance of summons, or of a warrant of arrest, and the provisions relating to arrest without a warrant are all aimed at ensuring the presence of the accused at his trial without reasonably depriving him of his liberty.
How to procure the presence of the accused at the trial: The code prescribes mainly two methods of procuring the attendance of the accused at his trial, i.e by issuing summons to him or by his arrest and detention. Now the decision to apply which of the given method is at the discretion of the judicial officer exercising his power within the ambit of this code[I].
The code classifies all criminal cases into summons cases and warrant cases. “A warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.”[II] “A summon case means a case relating to an offence, and not being a warrant case.”[III] The basis of this classification is the seriousness of the crime. Therefore the trial proceedings for warrant case is much more elaborate than summon case.
The most basic and easier form of the process is “the summons” which may be issued in order to make an appearance of the accused or any other person for examination for the purpose of the trial. Summons are issued originally by the court with the seal of the court which has to be required to be conveyed by the police officer of the court or any public servant to someone personally. Summons include the clear and specific details of the case, place, and date and time for the appearance of a person is required. A brief detail of the case, charges, date of hearing, etc are provided in the summons.
According to Section 61 of the code of criminal procedure, 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 this seal of the Court.[IV] The summons issued to the accused should contain adequate particulars of the offence charged i.e the day and time when and the place where the said alleged offence was committed. If these details are not given in the summons it can be disregarded and if proceedings are taken and if objected by the accused it can be considered invalid.[V]
A warrant is a written order of a Magistrate giving official authority to arrest a suspected criminal or accused person. The Code of Criminal Procedure does not define the expression warrant of arrest but it is clear from the code that a warrant is an order address to a police officer or some other person specially named and commanding him to arrest the body of the accused person named in it.[VI]
An arrest warrant is a written legal order issued by a judge or any judicial officer, directing the police to arrest a particular person. Based on the police report. The magistrate executes it on legal grounds only. Section 70 of the CrPC explains the essentials needed for a warrant to be issued for arrest.
In the case of M/s oracle financial services software limited and ors. vs state by Mahadev Pura police station and ors.[VII]
Section 112 ensures that arrest warrant issued under section 70 shall be complied with and whoever fails to abide by the order of the court with the police report shall be convicted. The people are bound by the reasonable directions of the police.
Warrant in lieu of summons:
“According to Section 87 of the Code of Criminal Procedure – 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.”[VIII]
In a summon case the magistrate concern will issue a summons, in a warrant case, he may issue a warrant or a summons. Further section 87 states that the court to issue a warrant in lieu of summon requires the court to record reasons for doing so. A question that may arise is that as to whether failure to record reasons would vitiate the warrant & make consequent arrest illegal.[IX]
Proclamation of an absconder:
In cases where a summons for the appearance of the accused person is to be issued, but if the court has the reason to believe that the accused has absconded or will not obey the summons, a warrant of arrest can be issued. But when a warrant of arrest has been issued against an accused and there are reasons to believe that the accused person has absconded or concealing himself to avoid execution of the warrant, the court may publish a written proclamation to appear before the court and may attach his property. if the accused person fails to appear before the court as required by the proclamation of property attached would be at disposal of the state government and can be sold.
Section 82 of the Code of Criminal Procedure 1973 provides:
(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may public 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.
(2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it 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 thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing 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 section 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, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and 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 a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).”[X]
The terms of the above section are mandatory and imperative, and a proclamation cannot be issued without first issuing a warrant of arrest.[XI] Therefore if there is no authority to issue a warrant of arrest, the issuance of the proclamation would be obviously illegal.
Attachment of his property of person absconding:
“Section 83 of the code of criminal procedure provides that;
(1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person: Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise that the person in relation to whom the proclamation is to be issued, –
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation.
(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made, and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situated.
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; on
(d) by all or any two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situated, and in all other cases-
(a) by taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to anyone on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case, the proceeds of the sale shall abide the order of the Court.
(6) The powers, duties, and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908(5 of 1908).”[XII]
The court issuing the proclamation can attach the property at any time and it is not necessary to wait till the expiry of the time prescribed in the proclamation of appearance. It has been ruled out by Allahabad High Court that unless 30 days have elapsed after the proclamation was issued under section 82 no attachment could be ordered under section 83.[XIII]
The compelling appearance of a person by the court or judiciary through different methods draws to the conclusion that the law has provisions for the persons who disobey the orders of the court and when the court needs any man can be summoned or a warrant can be issued. The sections from 61-89 give the crux of the matter and the precedents in the Indian law also keep on discussing the matters regarding the compelling procedure.
I- R.V Kelkar’s, Criminal Procedure, Pre-trial procedure, 44 (sixth edition, 2014, reprinted 2018), EBC Publishing, Lucknow
II- The Code Of Criminal Procedure, 1973, No. 2, (Section 2(x))
III- The Code Of Criminal Procedure, 1973, No. 2, (Section 2(w))
IV- The Code Of Criminal Procedure, 1973, No. 2, (Section 61)
V- Emperor v. Kunwar Rananjai Singh, AIR 1928 All 261, Gajraj Singh V. Emperor, AIR 1936 All 761, R.V Kelkar’s, Criminal Procedure, Pre-trial procedure, 46 (sixth edition, 2014, reprinted 2018), EBC Publishing, Lucknow
VI- R.V Kelkar’s, Criminal Procedure, Pre-trial procedure, 49 (sixth edition, 2014, reprinted 2018), EBC Publishing, Lucknow
VII- Criminal petition no. 2746/2012 https://indiankanoon.org/doc/156717737/
VIII- The Code Of Criminal Procedure, 1973, No. 2, (Section 87)
IX- Kuruthan, re,ILR (1915) 38 Mad IO 88, Indira Devi V. Sarngat Singh, AIR 1955, Punj 81
X- The Code Of Criminal Procedure, 1973, No. 2, (Section 82)
XI- Bishnudayal V. Emperor, AIR 1943, Pat 366
XII- The Code Of Criminal Procedure, 1973, No. 2, (Section 83)
XIII- Devendra Singh Negi V. State of U.P, 1994, CriLJ 1783 (All)