The presence of the Accused at the trial is one of the essential features of a fair trial. This ensures that the Accused is given a fair chance to defend himself, available in person. Further, in case he is found guilty he must be available in person to receive the sentence passed on him. Presence of the Accused at the trial can be well ensured by simply arresting, and detaining him during the trial. However, if his presence can be reasonably ensured otherwise than by his arrest and detention, the law ought not to deprive him of his liberty. The Code of Criminal Procedure, 1973 makes elaborate provisions for securing the presence of the Accused at the trial. These entails:-
1. By issuing summons (Sec.61- 69)
2. By issuing warrant (Sec.70-81)
3. Proclamation of absconding (Sec.82-86)
4. Attachment of property (Sec.87)
5. Taking of bond with or without sureties (Sec.88)
BY ISSUING SUMMONS (SEC. 61-69)
The Code classifies all criminal cases into ‘summon case’ and ‘warrant cases’. A warrant case relates to a serious offence while a summons case relates to a comparatively less serious crime. The same classification is used to make the initial decision as to whether an Accused is to be summoned to attend his trial or whether he is to be arrested and detained for the trial. Summon is sort of legal document, issued both in case of civil and criminal proceeding, wherein the Court orders an individual either to appear or to produce a document before the court, at a stipulated time and place. Section 61 to 69 of Cr.P.C. deals with issue of summons to persons.
FORM OF SUMMON (SEC. 61):
Section 61 of the Code deals with forms of summon, it provides that summons should be in :-
Ø Signed by Presiding Officer
Ø Bearing the seal of the Court
SERVICE OF SUMMONS (SECTION 62):
Section 62 of Cr.P.C. deals with how summon is to be served. It states that each summon shall be served by Police Officer, Officer of the Court, other Public Servant. Moreover, it should be delivered and tendered personally to the person to whom such summon is issued. Thereafter, such person, to whom it is issued, after the receipt of it, shall sign on the back of other duplicate in order to acknowledge the receipt of the same.
Section 64 – In case where the person to whom such summon is to be issued, is not found after due diligence, then it should be given to an adult male member of the family. Here is an exception to this Section that servant is not considered as a member of the family.
Section 65 – This Section states that when the service of summon cannot be effected after due diligence and according to Section 62, 63 and 64, the serving Officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead. Thereafter, the Court may after making the inquiry, may declare either the summon has been duly served or order fresh service of summon.
Section 66 – Where the person summoned is in the active service of the Government, the Court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by Section 62, and shall return it to the Court under his signature with the endorsement required by that section.
In case summon is to be served outside Court’s local jurisdiction then Section 67 entails a provision for that such summons is to be sent to the Magistrate within whose local jurisdiction the person summoned resides.
Section 69 – provides for service of summon on witness by registered post which can be made in addition to, and simultaneously with the issue of summons in usual way. It further provides that when an acknowledgment purporting to be signed by the witness refused to take delivery, the Court may declare that summons has been duly served.
A warrant of arrest is a written order issued and signed by a magistrate and addressed to Police Officer or some other person named specifically, and commanding him to arrest the body of Police Pfficer named in it. Generally, a warrant is issued only in serious cases and after a duly served summons is disobeyed or wilfully avoided. Section 70 of the Code provides that every warrant of arrest issued by the Court shall be made in writing, signed by the Presiding Officer of such court and shall bear the seal of the Court. It shall remain in force until it is cancelled by the Court which issued it or until it is executed. Section 71 provides that a warrant of arrest may include an endorsement that if the person arrested executes a bond and gives security for his attendance in Court, he shall be released and the Officer to whom the warrant is directed shall forward the bond to the Court. Section 75 deals with notifications of substance of warrant by the police officer or other person executing a warrant to the person to be arrested, and if required to show him the warrant.
Section 78 to 81 deals with the instances where warrant is to be executed outside the jurisdiction of the Court issuing it. Section 78 states that when the warrant is to executed beyond the jurisdiction of the court then the court issuing it forward the warrant by otherwise to the executive magistrate, District Superintendent of Police of Commissioner of police within whose local jurisdiction the warrant is issued. Section 79 talks about the warrant forwarded to the police personnel who will take it for the endorsement to executive magistrate or officer- incharge of police station in execution area, and then execute the same. It is to be noted that in immediate necessity it may not be followed. Section 80 is one of the important sections, it provides for procedure of arrest against whom the warrant is issued. 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 kilometres of the place or Commissioner of the 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 the Commissioner.
Section 81 the Executive Magistrate or District Superintendent or the Commissioner must direct the removal of arrested person to the court issuing the warrant, if such person appears to be the same person as was contemplated. However, if the offence is bailable, and such person is ready and willing to give bail, the Magistrate, Superintendent or Commissioner must take bail and forward the bond to the court issuing the warrant.
PROCLAMATION & ATTACHMENT (Sec. 82-86)
There are two other remedies available to the court against the Accused or surety or witness in case warrant of arrest remains unexecuted. In cases where a summons for the appearance of the Accused person is to be issued , but if the Court has reason to believe that the Accused has absconded or will be obey the summons is duly served for appearance fails to appear without offering any excuse for non-appearance warrant of arrest is issued against an Accused. Now in cases where a warrant of arrest has been issued against an Accused person and there are reasons to believe that the Accused person has absconded or is concealing himself to avoid the execution of the warrant, the Court may publish a written proclamation requiring such person to appear before the Court as required by the proclamation the property attached would be at the disposal of State Government and could be sold.
· Criminal Procedure Code Bare Act,1973
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