CRIMINAL PROCEDURE CODE | SUMMARY NOTES
The
basic purpose of the Criminal Procedure Code, among other things, is to ensure
a fair trial where none of the rights of the accused are compromised nor are
they unjustifiably favoured. Furthermore, to ensure that the judge concerned
hears all parties who are relevant to the trial, their presence at the trial is
obviously important. That is why an entire chapter of the Code concerns itself
with the process of ensuring the attendance of any person concerned with the
case, including an accused or a witness, through various measures, viz.
summons, warrant, proclamation and attachment of property. The latter two are
used when the former do not yield satisfactory results. Many would argue that
the simplest way to ensure the presence of a person, especially an accused,
would be to arrest him in all circumstances and detain him so that his presence
is beyond doubt. However, such an action would go against the fundamental right
that this Constitution provides with, the right to personal liberty under
Article 21. Criminal law hinges on that right and no person can be deprived of
this right unless very cogent reasons are present which argue against his
release. This is why the Code envisages both warrant and summons to procure the
attendance of persons concerned. In this project, I will look into the four
variants used to procure the attendance of persons for trial. Of course, since
the provisions are mostly procedural in nature, few substantive issues arise
but interpretation of these provisions nevertheless gives rise to various
issues. Moreover, the way they are used by the various functionaries involved
viz. the judiciary and the police, also has given rise to substantive
literature on this. Furthermore, I will give special attention to procurement
of attendance of witnesses and how the provisions have been used by the
functionaries in ensuring that witnesses attend the trial.
Summons
The
form in which summons should be served is given in Section 61 of the Code while
a summons case is defined as a case relating to an offence which does not
provide for imprisonment exceeding two years. Even though a summons case
relates to a less serious offence and it is estimated that person served would
attend the trial, the Indian Penal Code through Section 174 enforces coercive
measure on such persons to attend the trial by enforcing a six month punishment
if such persons do not attend the trial. It has to be remembered that though
Section 61 gives the procedure of serving summons, the section does not give
the authority to issue summons. This position was enunciated in the case of
Norode Baron Mukherjee v. State of West Bengal. The power to issue summons or
warrants, for that matter, comes from Section 204 of the Code but that is only
restricted to complaint cases. Moreover, although Section 61 is derived from
Sections 152 and 153 of the Code of 1872 which limited the serving of summons
to the accused only, Section 61 incorporates the spirit of Section 68 of the
Code of 1898 which applied to other persons as well. By virtue of Section 61, a
summons must be in writing, signed and sealed¸ specifying the offence, must
state the date and time when the person must appear and must direct person
summoned not to depart without leave. If these requirements are not fulfilled,
then no person can be convicted for non-compliance with summons under Section
174. But this would not mean that trial would be vitiated as the only way that
might happen, would be because of a defect in the trial proceedings itself.
Section
62 takes off from Section 61 and describes the actual serving of summons and
who is competent to serve it. In most cases, as the Section lays down, it is
desirable that a police officer should deliver the summons to the person
concerned but in some cases an officer of the Court or any other public servant
may do the same. Section 64 and 65 offer solutions when the person on whom the
summons is to be served, is not found. While the former talks about leaving the
document in duplicate with any adult member of the family, the latter states
that in cases where no member of the household is present, the summons should
be affixed in some conspicuous part of the house in which the person ordinarily
resides and subsequently declare that the summon had been served or issue
orders for fresh service. Before such provisions are resorted to, it has to be
shown by the officer concerned that due diligence was exercised in searching
for the person summoned. Only after that can the officer resort to the
abovementioned provisions. Furthermore, as Section 64 clearly limits the
service to adult members of the family, neither female members nor servants can
be included under the ambit of persons to whom the summons can be served. It
has to be kept in mind again that Section 65 can only be resorted to, if
Section 64 does not solve the problem. Sections 66, 67 and 68 provide for
service to government servants, service outside local limits and proof of
service of summons respectively. Section 69 applies only to witnesses and lays
down that summons can be sent to the witness by registered post. In the case of
Madan Mohan Shrivastava v. State, the accused was served summons by registered
post which the Court invalidated. The Court categorically laid down that
Section 69 was limited to witnesses only.
Warrant
The
Code discusses warrants of arrest from Section 70 onwards. These warrants are
generally used for far more serious offences where issuance of summons would
not achieve the desired objective of procuring the attendance of the person
concerned. Even so, a number of interests need to be kept in mind, particularly
the fundamental right to liberty. Only when societal interests dictate that the
person be kept in custody lest he or she absconds, will the magistrate issue a
warrant of arrest. The Code does not define a warrant but as is clear from the
form of warrants, these are written orders issued and signed by the magistrate
and addressed to a police officer or some other person specially named, directing
him or her to arrest the person named in the warrant. In this way, a warrant is
different with respect to a summons as in the latter case, the summons is
explicitly directed to the person sought to be summoned while in the former,
the warrant is directed to the person who is ordered to arrest. The essential
requirements for a warrant of arrest are that it must be in writing, must be
signed by Presiding Officer, must be sealed, must clearly identify the person
to be arrested, must specify the offence charged, must name the persons
directed to arrest, must indicate the authority of the Magistrate, and must
mention the age of the person sought to be arrested. It has to be kept in mind
that warrants of arrest cannot, in any case, be general or blank. A warrant
directing officers to arrest unspecified persons is illegal. Moreover,
conditional warrants directing some action to be done, the failure of which
would lead to arrest, are also deemed illegal. In the case of Alter Caufman v.
Government of Bombay, the Magistrate issued a warrant ordering the accused to
remove themselves from India, failing which they would be arrested. This
warrant was deemed illegal because the authority to determine whether the
accused had done the needful was left to the officer entrusted with the arrest
and not the Magistrate who issued the warrant itself. Now, when an officer
proceeds to arrest a person on a warrant which is illegal, the right of private
defence rests on that person to prohibit the officer from arresting.
As
is evident from Section 70(2), a warrant does not lapse; it remains valid as
long as the Magistrate does not explicitly revoke it. Section 71 basically
deals with bailable warrants where the person sought to be arrested can be
released on execution of bond with sufficient sureties. Bailable warrants are
mostly issued in case of offences which are bailable but in some cases bailable
warrants have also been issued against non-bailable offences. An issue arose in
a Rajasthan High Court case where the Magistrate refused to cancel the warrant
after the bail bonds had been forfeited. The High Court, however, held that the
magistrate was empowered to cancel the warrant and had taken an erroneous view.
Sections
72 to 74 are inherently procedural and deal with direction of warrants to
concerned officers. 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. Section 76 stipulates that the person arrested must be brought
before the Court without unnecessary delay. The time period, originally, was
not mentioned but with the addition of the proviso it is clear that the delay,
unless caused by extraneous circumstances, cannot be more than twenty-four
hours. Sections 77 to 80 talk about jurisdiction of execution of warrant and
while Section 77 gives 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. This can be illustrated by a simple example. If, for example,
the Metropolitan Magistrate issues an arrest warrant for an accused and the
accused is in Patna, then the officers directed may go themselves and endorse
the warrant by the Executive Magistrate of Patna district or the Metropolitan
Magistrate can forward it to the Executive Magistrate or the District
Superintendent of Police for execution.
Section
87: Issuance Of Warrant In Addition To Or In Place Of summons
Even
in cases where the Court is only empowered to issue a summons, it can, as
provided by Section 87, in two situations. First, if before the issuance of
summons or after it but before the time fixed for attendance, the Court is of
the opinion that the person has absconded or will not obey the summons.
Alternatively, if the person concerned fails to appear on the decided date with
no reasonable excuse for such failure then the Court would have the power to
issue a warrant. Therefore, the power to issue a warrant would depend on the
service of summons and in cases where there is no power to issue summons, he
would not be able empowered to issue warrants by virtue of this section. In the
case of C. McLenan v. State, the Calcutta High Court invalidated the
magistrate's ruling that he was empowered to issue summons under 202 of the
Act. Therefore, the Court held that since the Magistrate had no power to issue
summons under that section, consequently he had no power to issue a warrant by
virtue of Section 87. This section gives discretionary powers to the Court to
issue a warrant of arrest and such discretion has to be exercised judiciously
upon a consideration of the materials before the Court which would lead it to
conclude that the person has absconded or will not reply to the summons.
Proclamation
And Attachment
Even
after issuance of and warrant, the Court may find that the person concerned has
either absconded or is concealing himself. This would mean that the Court
cannot ensure the attendance of that person unless it adopted some stringent
measure. Section 82 of the Code lays down that if the Court is satisfied that
such are the circumstances then the Court will give a time period of 30 days
from the date of proclamation within which the person has to appear before the
Court. Hence, issuance of warrant is prerequisite for an order of proclamation.
Without having the authority to issue a warrant, a court cannot issue any order
of proclamation.
These
seemingly harsh measures are important as financial sanctions impel the person
to come to the Court. Therefore, before an order of proclamation is issued,
what the Court must ensure is that it has the reasons for issuing such an
order. An order of proclamation without sufficient cause would be illegal and
therefore any consequent action arising out of that order like attachment would
be deemed illegal as well. Therefore, much turns on the fact that whether the
Court's satisfaction that the person has absconded or is concealing himself is
justified or not. The meaning of the word ‘absconding' thus has invited a lot
of attention. Now, it is obvious that the word has a sense of continuity to it.
A person cannot be said to have absconded if he was not present in the house
for that day. Absconding would occur if a person would run away hastily or
secretly so as to avoid the legal process. In Vinod Kumar Khanna v. State, the
petitioner sought to challenge the order of proclamation by virtue of Section
482 of the Code. In that case, a notice of appearance was due to be served on
the petitioner but since he was in a foreign country, the notice was served on
an official of the company in which the petitioner was the chairman. The
official had intimated that the petitioner would appear before the
Investigating Officer but on his non-appearance a warrant of arrest was issued
which also could not be executed. Thereafter, the Court thought it prudent to
issue a proclamation and then proceed for attachment under Section 83 of the
Code. The petitioner contended that at no point of time had he evaded the
warrant of arrest and that the warrant of arrest never came to his knowledge
and he could not have been said to have absconded. This was invalidated by the
Court as the facts did not point to such a conclusion. The petitioner had
officials who were working in India and it was inconceivable that he would not
be apprised of the notices and the subsequent warrant of arrest. Moreover, he
had also proceeded to execute a power of attorney to dispose of his assets so
that the attachment would not be carried out. All these facts pointed to the
conclusion that the petitioner was well aware of the notices and the warrant of
arrest and on evasion of the same, could be said to have absconded. Thus, as is
evident from the case, knowledge of the order of the appearance, in whatever
form, and then non-appearance is essential to constitute absconding.
The
amendment to the Code in 2005 also brought in a few changes with regard to the
order of proclamation. A new subsection(4) was added to Section 82 which
mandated that when a person accused of an offence punishable by certain
sections, including Section 302, fails to appear within the specified time and
place as given by the order of proclamation , he would be declared a proclaimed
offender. Section 174A was also included through the 2005 amendment which
stipulated a punishment of three years maximum with or without fine in case of
proclamation issued under Section 82(1) and seven years maximum with fine in
case a proclaimed offender.
Sections
83-86 deal with attachment and the effects arising thereof. Section 83 empowers
the Court to attach the property of any person concerned against whom a
proclamation has been issued. Therefore, an order of attachment can only be
made after an order of proclamation has been issued for justifiable reasons.
This is in direct contrast to the Old Code where the attachment order could be
issued at any time, even simultaneously with the order of proclamation. Even in
the present Code, the attachment order can be made simultaneously with a
proclamation order on two occasions: one, when the property is about to be
disposed of and two, the property is about to be removed from the local
jurisdiction of the Court. The Court can attach both moveable and immoveable
property but a curious wrangle arises when it comes to attaching joint family
property. In Trigala Veeraya v. State, the Court laid down that the rights of
the Government in case of attachment of a part of the joint family property are
the same as any coparcener. As the coparcener derives an interest from the
property, the Government too derives an interest and is therefore entitled to
the income accruing from that part of the property. Section 84 relates to
claims and objections regarding attachments. If a person, other than the person
proclaimed person, has an interest in the property to be attached he may object
to that attachment within six months. Section 85 talks about release of the
attached property on appearance of the proclaimed person within the specified
time and Section 86 lays down the rule regarding appeal from order rejecting
application for restoration of attached property.
SOURCES:
https://www.lawteacher.net/free-law-essays/criminal-law/criminal-procedure-code.php
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