Processes to compel appearance and production of things
Bharatiya Nagarik Suraksha Sanhita · Unit II · Topic 7 of 25 · 6 min read
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1. Summons (ss.63–71, old ss.61–69)
- Form (s.63): either (i) in writing, in duplicate, signed by the presiding officer and bearing the seal of the court, or (ii) in encrypted or other electronic form, bearing the image of the court's seal or a digital signature.
- Who serves (s.64(1)): a police officer, or under State rules an officer of the court or other public servant. The police station or court registrar must keep a register of addresses, email addresses and phone numbers.
- Personal service (s.64(2)): by delivering or tendering a duplicate, and the person signs a receipt on the other. A summons bearing the court's seal may also be served by electronic communication under State rules.
- Companies, firms and societies (s.65): on a director, manager, secretary or other officer (or a partner of a firm), or by registered post.
- Person not found (s.66): by leaving a duplicate with an adult member of the family residing with him; a servant is not a member of the family.
- Affixing (s.67): if service still fails, a duplicate is affixed to a conspicuous part of his house; the court may then declare it duly served or order fresh service.
- Government servant (s.68): through the head of his office.
- Outside jurisdiction (s.69): sent to a Magistrate where the person resides.
- Proof (s.70): an affidavit of service is admissible; and every summons served through electronic communication under ss.64–71 is considered duly served, a copy being attested and kept as proof (s.70(3), new).
- Witnesses (s.71): the court may, simultaneously, serve a copy by electronic communication or registered post, and may deem it served on an acknowledgement, a postal endorsement of refusal, or proof of electronic delivery.
2. Warrant of arrest (ss.72–83, old ss.70–81)
- Form and duration (s.72): in writing, signed by the presiding officer and sealed; in force until cancelled or executed.
- Bailable warrant (s.73): the court may endorse that the person be released on executing a bail bond with sureties; the endorsement states the number of sureties, the amounts and the date to attend.
- To whom directed (ss.74–76): ordinarily to police officers; in urgency to any other person. The CJM or a first class Magistrate may direct a warrant to any person to arrest an escaped convict, proclaimed offender or person accused of a non-bailable offence evading arrest (s.75).
- Notification of substance (s.77): the person executing it must tell the arrested person its substance and show it if required.
- Production without delay (s.78): within 24 hours, excluding journey time.
- Anywhere in India (s.79); outside jurisdiction through the local Magistrate or police (ss.80–83). If arrested outside the district, the person is taken before the local Executive Magistrate, District SP or Commissioner unless the issuing court is within thirty kilometres or bail is taken; the police must inform the designated officers (s.82).
Summons first. In Inder Mohan Goswami v. State of Uttaranchal, 2007 INSC 1016, (2007) 12 SCC 1, the Court held that a warrant curtails liberty and should not be issued mechanically. Ordinarily a summons should come first, then a bailable warrant, and a non-bailable warrant only where the accused is unlikely to appear, or is evading the process, or is likely to tamper with evidence or harm others.
3. Proclamation and attachment (ss.84–89, old ss.82–86)
Where the person has absconded or is concealing himself so that a warrant cannot be executed, the court may publish a proclamation requiring him to appear in not less than thirty days (s.84). In cases punishable with ten years or more, life or death, a person who fails to appear may be declared a proclaimed offender (s.84(4)). The court may attach his property, simultaneously with the proclamation if he is about to dispose of or remove it (s.85); request attachment and forfeiture of his property abroad (s.86); hear third-party claims within six months (s.87); and release or sell the property, with a right of restoration within two years if he shows he did not abscond (s.88). The details are in the Unit I note on arrest, together with trial in absentia under s.356.
4. Other rules (ss.90–93)
- Warrant instead of or in addition to summons (s.90, old s.87): if the court has reason to believe the person has absconded or will not obey, or he fails to appear after due service without reasonable excuse. Reasons must be recorded.
- Bond for appearance (s.91, old s.88): a person present in court may be required to execute a bond or bail bond to appear.
- Arrest on breach of bond (s.92, old s.89).
- General application (s.93) of the Chapter to all summons and warrants.
5. Production of things (Chapter VII, ss.94–110)
- Summons to produce (s.94, old s.91): a court, or the officer in charge of a police station by written order (physical or electronic), may require production of any document, electronic communication, including communication devices likely to contain digital evidence, or other thing. The person may send it instead of attending. Privilege under the Bharatiya Sakshya Adhiniyam is not affected.
- Postal articles (s.95).
- Search warrants (s.96, old s.93): where the person will not produce, the thing's possessor is unknown, or a general search is needed. Searches of places suspected to contain stolen property, forged documents and the like (s.97); forfeiture of seditious or obscene publications (ss.98–99); search for wrongfully confined persons (s.100) and restoration of abducted women (s.101).
- Videography of search and seizure (s.105, new): the process, including the list of things seized and its signing by witnesses, shall be recorded by audio-video means, preferably a mobile phone, and the recording forwarded without delay to the District Magistrate, SDM or first class Magistrate.
- Seizure (s.106, old s.102).
- Attachment of proceeds of crime (s.107, new): with the approval of the SP or Commissioner, the investigating officer may apply to the court to attach property derived from criminal activity.
- Impounding (s.109) and reciprocal arrangements with other countries (ss.110–124).
6. Use of electronic means
The syllabus singles this out. Collect the provisions: electronic summons and service (ss.63, 64, 70(3), 71); summons or warrant issued “through electronic means” at the commencement of proceedings (proviso to s.227(1)); electronic production orders (s.94); videography of searches (s.105); judicial remand extended through audio-video means (s.187(4)); evidence by audio-video means (ss.254, 265); and the general power to hold all proceedings in electronic mode (s.530).
7. Successor-in-office (s.29, old s.35)
The powers and duties of a Judge or Magistrate may be exercised by his successor-in-office. Where there is doubt who the successor is, the Sessions Judge (for Judges) or the CJM or District Magistrate (for Magistrates) decides by written order. So a summons, warrant or bond issued by a predecessor remains effective and can be enforced by the successor, and under s.365 a successor may act on evidence already recorded by his predecessor.
How this is examined
For “processes to compel appearance”, write the four processes in order, with the key sections for each, and end with s.90 and Inder Mohan Goswami on when a warrant may replace a summons. For “service of summons”, go through ss.63 to 71 in sequence and stress the electronic provisions. A short note may ask for “proclaimed offender”, “search warrant” or “summons to produce”.
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