There are six ways of process to compel a person to appear in court, viz. (1) Summons; (2) Warrant; (3) Warrant in lieu of summons; (4) Proclamation of an absconder; (5) Attachment of his property; and (6) Bond, with or without sureties, to appear before a court on a certain date.
(1) Summons:
It is a document issued from the office of a court of justice calling upon the person to whom it is directed to attend before a judge or officer of the court. Section 61 of the Code requires that every summons issued by a court shall be in writing in duplicate signed and sealed by the presiding officer of such court.
ADVERTISEMENTS:
It states in clear terms the title of the court, the place at which and the day or time of the day when the attendance of the person summoned is required.
The summons shall be served by a police officer or an officer of the court issuing it or other public servant. [Section 62]
The summons has to be served personally on the person, summoned by delivering a duplicate copy of the summons, who signs receipt therefore on the back of the other (duplicate). (Section 62)
Service on a corporation:
Service of a summons on an incorporated company may be affected by serving it on the secretary, local manager or other principal officer of the corporation or by registered post letter addressed to the chief officer of the corporation in India. (Section 63).
Where the person summoned not found:
ADVERTISEMENTS:
Where the person summoned cannot be found, the summons may be served by leaving one of the duplicates for him with some adult member of his family residing with him, and the person with whom the summons is so left shall sign a receipt therefore on the back of the other duplicate. (Section 64). A servant is not a member of the family within the meaning of Section 64.
If service in the manner mentioned above in Sections 62, 63 and 64 cannot be effected, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides, and thereupon the Court after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper. This is called substituted service. (Section 65).
Service on Government servant:
If a Government servant has to be summoned, the summons shall be sent by the court 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 personally on the person summoned and shall return a duplicate copy to the court under his signature with the endorsement of receipt effected thereon. (Section 66).
Service of summons outside local limits:
Where a summons is to be served outside the local limits of jurisdiction of the court issuing it, service has to be effected by sending it in duplicate to the Magistrate within whose jurisdiction the person summoned resides.
Service of summons on witness by post:
ADVERTISEMENTS:
Notwithstanding anything contained in the preceding sections 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. (Section 69).
(2) Warrant of Arrest:
The second method of securing attendance of a person is by means of a warrant of arrest. The warrant is an order addressed to a certain person directing him to arrest the accused and to produce him before the court.
It is executed by a Magistrate on good and legal ground only. Section 70 of the Code gives the essentials of a warrant of arrest. It lays down that every warrant of arrest issued by a court shall be in writing, signed by the presiding officer of such court, and shall bear the seal of the court.
From a reading of the above it is clear that in order to be valid a warrant must fulfil the following requisites:
(i) It must be in writing;
(ii) It must be signed by the presiding officer;
(iii) It must bear the name and designation of the police officer or other person who is to execute it;
(iv) It must give full particulars of the person to be arrested so as to identify him clearly;
(v) It must specify the olfences charged; and
(vi) It must be scaled.
Continuance of the warrant of arrest:
Every warrant shall remain in force until it is cancelled by the court which issued it or until it is executed. A warrant of arrest does not become invalid on the expiry of the date fixed for return of the warrant.
Warrants are of two kinds: bailable and non-bailable. Section 71 deals with bailable warrant and lays down that a warrant may contain a direction of the court that if the person to be arrested executes a bond with sufficient sureties for his attendance before the court at a specified time, the serving officer shall take such security and release him from custody.
Such a bailable warrant shall also state the number of sureties, the amount of the bond and the time at which the arrested person is to attend the court.
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. (Section 72).
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 any escaped convict, offender or person accused of a non-bailable offence, or a proclaimed offender evading arrest. (Section 73)
The police officer or any other person executing a warrant has to notify the substance thereof to the person to be arrested, and if so required, to show him the warrant (Section 75).
The police officer or other person executing a warrant shall (subject to the provisions of Section 71 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 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court. (Section 76).
A warrant of arrest may be executed at any place in India. (Section 77).
(3) Warrant in lieu of summons:
A court may issue a warrant in lieu of or in addition to a summons for the appearance of any person in the following three cases:
(i) Where the court believes that the person summoned has absconded or will not obey the summons;
(ii) Where although the summons is proved to have been served in time, the person summoned without reasonable cause fails to appear; and
(iii) On breach of a bond for appearance.
A Magistrate ought not to issue a warrant either in lieu of or in addition to summons in a summons case unless he has previously recorded the reason for his so doing. (Sections, 87, 89).
(4) And (5) Proclamation for person absconding and attachment:
The fourth and fifth processes of compelling the appearance of a person before a court are by a proclamation and attachment. If a court has reasons to believe 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 publish a written proclamation requiring him to appear at a specified place and time not less than thirty days from the date of publishing such proclamation.
The proclamation shall be published: (i) by publicly reading in some conspicuous place of the town or village in which such person ordinarily resides, (ii) by affixing it 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; and (iii) by affixing a copy thereof to some conspicuous part of the court-house. The court may also, if it thinks fit, direct a copy of the proclamation to be published in daily newspaper circulating in the place in which such person ordinarily resides. (Section 82).
Before the issue of a proclamation the Magistrate should be satisfied that the accused was absconding or concealing himself for the purpose of avoiding the service of a warrant. The proclamation also should direct appearance of the person concerned within thirty days, and if the date fixed for the appearance is less than thirty days, it is illegal.
The court issuing a proclamation may for reasons to be recorded in writing at any time order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person. There may even be a simultaneous order of attachment along with the order of proclamation.
If the court is satisfied that the person in relation to whom the proclamation is issued—(a) is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local jurisdiction of the court. Since the object of attachment is to enforce the appearance of the absconder, the attachment usually accompanies the proclamation. (Section 83).
Modes of attachment:
If the property ordered to be attached is a debt or other movable property, the attachment may be made—(i) by seizure, or (ii) by the appointment of a receiver; or (iii) by an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or (iv) by all or any two of such methods, as the court thinks fit.
If the property ordered to be attached is immovable, the attachment 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.
If the immovable property is not the land paying revenue to the State Government, the attachment shall be: (i) by taking possession; or (ii) by the appointment of a receiver; or (iii) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to anyone on his behalf, or by all or any two of such methods, as the court thinks fit.
If the property to be attached consists of livestock or is of a perishable nature, the court may order its immediate sale. (Section 83).
Objections to attachment by third person:
Any person other than the proclaimed person may prefer a claim or make an objection to the attachment of property within six months from the date of attachment on the ground that the claimant or objector has an interest in the attached property and that such interest is not liable to attachment.
Every such claim or objection shall be inquired into by the court in which it is preferred and may be allowed or disallowed. If the claim or objection is disallowed in whole or in part, the claimant or objector may within a period of one year institute a suit to establish his right in respect of the property in dispute, but subject to the result of such suit, if any, the order of the court disallowing the claim shall be conclusive. (Section 84).
If the proclaimed person appears within the time specified in the proclamation, the court shall make an order releasing the property from attachment. If, however, he does not appear within such specified time, the property under attachment shall be at the disposal of the State Government and shall not be sold before six months from the date of the attachment and until the disposal of any claim or objection made by a person other than the proclaimed offender.
But if the property is subject to speedy and natural decay or if the court considers that the sale would be for the benefit of the owner, the court may cause it to be sold whenever it thinks fit. (Section 85).
Restoration of attached property:
If the proclaimed person appears within two years from the date of the attachment and satisfies the court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and that he had no notice of the proclamation, the property or net proceeds of the sale after deducting the cost of the attachment shall be delivered to him. (Section 85).
6. Bond of appearance:
The sixth method of securing attendance of a person in court is to require him to execute a bond, with or without sureties, for his appearance in court. When a person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant is present in such court, he may require such person to execute a bond, with or without sureties for his appearance in such court. When the person so bound by any bond to appear before a court does not appear, the presiding officer may issue a warrant directing that such person be arrested and produced before him. (Ss. 88-89).