FACULTY OF LAW,
JAMIA MILLIA ISLAMIA
THE CODE OF CRIMINAL PROCEDURE
PROJECT
TOPIC: SUMMON AND WARRANT
PROJECT SUBMITTED TO:
DR. ASAD MALIK
(FACULTY: CRPC)
PROJECT SUBMITTED BY:
ANAM IQBAL
ROLL NO. 7
SEM. VIII (REGULAR)
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ACKNOWLEDGEMENT
Gratefulness is the noble response of one’s soul to kindness or help generously rendered by
another and its acknowledgment is an obligation and joyance. So it is that I express whole
heartedly to those who have made the creation of this project possible.
First of all I thank the almighty, Lord on whom I believe and depend on. My each and every
achievement is nothing but the showers of blessing He gives me.
I also thank DR.ASAD MALIK SIR for selecting me to work on this project and guiding me
throughout. I am extremely grateful to all my friends and all my well wishers who had helped in
the completion of this project. Last but never the least I extend my wholehearted thankfulness to
the librarians & and the office staff.
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TABLE OF INDEX
CONTENTS PAGE NUMBER
Introduction 4
Summon 5
Service of Summons 6
Case relating to summon 7
Warrant of Arrest 9
Case laws on Warrant 12
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INTRODUCTION:
A summons is an officially issued document that is released by any Court on an individual or an
entity who may be involved in a legal proceeding. A summon is usually served when legal action
is taken against an individual, or a person is required to appear before a court as a witness in a
proceeding. This document ensures that the person is called upon and his presence on the given
date of the hearing. On the other hand, a warrant is issued to apprehend an individual committing
a particular offence(s). In this assignment, I will deal with the aspects of the same mentioned in
The Criminal Procedure Code: Summons and Warrants.
Chapter VI (Section 61 to 90) of CRPC provides three ways of compelling any person who is
required to be present in the court:
1. Summon
2. Warrant
3. Proclamation for person absconding
While Summons is an order of the court to the person to appear before it, Warrant is an order
of the court given to a third person to bring the person who is required to be present in the
court, in the court. Which method is to be used in a particular situation depends on the
judicial officer, who is guided by the provisions of this code. The third method is used when
the person has absconded or is in any other way avoiding arrest, in which case the Court may
publish 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 and in certain
offences as per section 82 (4) of Cr.P.C. the person accused can be declared proclaimed
offender.
Here we will mainly discuss Summon and Warrant. They are two of the processes to compel
appearances. Section 61 deals with summon and Section 70 deals with warrant.
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SUMMON:
“Summon” is a document that commands a person to whom it is served to appear before the
court and to answer the complaint made against him. Summon is issued by the Magistrate to the
accused under section 204(1) (a) of Cr.P.C, 1973.
A Summons is a process issued by a Court, calling upon a person to appear before a
Magistrate. It is used for the purpose of notifying an individual of his legal obligation to
appear before the Magistrate as a response to a violation of the law. A person who is
summoned is legally bound to appear before the court on the given date and time. Willful
disobedience is liable to be punished under Section 174 of IPC.
A summon is issued either for appearance or for producing a document or thing which may be
issued to an accused person or witness. Every summons issued by the Court shall be in writing,
in duplicate, signed by the Presiding Officer of such Court or by such officer as is authorized by
the High Court and shall bear the seal of the Court (Section 61). The summons should be clear
and specific in its terms as to the title of the Court, the place at which, the day and time of the
day when, the attendance of the person summoned is required.
According to PR Aiyar, Advanced law lexicon: “A summon to an accused is an authoritative
call asking him to remain presents in court for a particular purpose or to answer a particular
charge.”
When a case is initiated by a plaintiff (the aggrieved party), against the defendant (accused), the
summons is served. The court orders to issue summons to the defendant to notify that he/she is
being sued, ensuring a fair trial. It is also issued to other persons who are directly or indirectly
involved in the case.
A summon is in writing, created in duplicate, duly signed by the presiding officer of the
concerned court or by the officer authorized by the high court in this regard. The police officer or
officer of the court or any other person who is a public servant, delivers summon, to the
defendant. However, summon issued to witness is served to him/her by a registered post,
wherein the acknowledgement letter should be signed by the witness, on receiving summon.
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SERVICE OF SUMMONS
The summons shall be served by a police officer or by an officer of the Court or other public
servant (Section 62).
In case the service cannot be effected by the exercise of due diligence, the serving officer can
perform substituted service by affixing one of the duplicates of the summons to some
conspicuous part of the house or homestead in which person summoned ordinarily resides, and
thereupon the Court, after making such enquiries as it thinks fit may either declare that the
summons has been duly served or order fresh service, as it considers proper (Section 65).
The service of summons on a corporation may be effected by serving it on the secretary, local
manager or other principal officer of the corporation, or by letter sent by registered post,
addressed to the Chief Officer of the corporation in India, in which case the service shall be
deemed to have been effected when the letter would arrive in ordinary course of post.
The word “corporation” in this Section means an incorporated company or other body corporate
and includes a society registered under the Societies Registration Act, 1860. Thus, the societies
may not be formally incorporated, yet they fall within the purview of this section. (Section 63)
When personal service of summons cannot be affected under Section 62, the extended service
under Section 64 can be secured by leaving one of the duplicates with some adult male member
of his family residing with him who may also be asked to sign the receipt for that. A servant is
not a member of the family within the meaning of Section 64.
Section 66 details the procedure for serving a summons on a Government employee as
follows:
(1) Where the person summoned is in the active service of the Government, the Court issuing
the summons shall ordinarily sent 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
endorsements.
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(2)When a Court desires that a summons issued by it shall be served at any place outside its
local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within
whose local jurisdiction the person summoned resides, or is believed to be there, served.
The service of summons on a witness can also be done by post, as per Section 69:
(1) 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.
(2) 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.
CASE LAWS RELATING TO SUMMONS:
In K.M. Mathew v. State of Kerala & Anr 1 the issue before this Court was whether the
Magistrate had power to recall an order of summoning the accused?!
Considering the relevant provisions of the Code, the Court held that an order of summoning
an accused could be recalled by the Magistrate. Since such an order is merely an interim
order and not a judgment and recalling thereof would not amount to review.
But the correctness of K.M. Mathew again came up for consideration before a three -Judge
Bench of this Court in Adalat Prasad v. Rooplal Jindal & Ors2 the SC held that in absence of
express provision in the Code, the Court has no power to recall the summon ordered. Hence a
larger bench came to the conclusion that since there is no express provision. Therefore it was
concluded that the former judgment was not correctly decided and it was overruled.
1
(1992) 1 SCC 217 43
2
(2004) 7 SCC 338
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In the absence of any provision to review power or inherent power with the subordinate
court, the remedy lies in invoking section 482 of the code.
The Supreme Court had another occasion to consider the ratio laid down in Adalat Prasad in
Subramanium Sethuraman v. State of Maharashtra 3, In this judgment, the attention of the
Court was drawn to the fact that its decision in Adalat Prasad case was on warrant procedure.
The Court had also considered the prohibition contained in Section 362 of the Code in Adalat
Prasad case. As already pointed out, in para 17 of Adalat Prasad case the Supreme Court had
left the issue open and did not dwell upon it as to whether the order issuing process would be
a judgment or a final order, terminating the case on hand. However, it is encouraging that it
held in Subramanium Sethuraman case that the recall of the summons is permissible before
recording the plea of the accused under Section 252 of the Code. This meant that before t he
recording of the plea during the preliminary questions under the Section 251 of the code, the
summon order could be recalled.
In order to remove the difficulties and stop the harassment of innocent persons who have
been arraigned as accused in groundless prosecutions, the Court has to conduct the
proceedings as a mute spectator, even though the accused bring to the notice of the Court that
the complaints are liable for dismissal at threshold. Alternatively, the accused should
approach the jurisdiction of the High Court under Section 482 of the Code, which is not an
easy option when compared to the erstwhile practice of recalling of summon in trial court.
3
2005 SCC (Cri) 242
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WARRANT OF ARREST:
It is a written order issued by a Court to a police officer to arrest the person named in the warrant
and produce an offender or to search his premises for a particular thing. A police officer who
executes the warrant shall notify the substance thereof to the person to be arrested and if he
demands, shall show him the warrant. He is expected to bring the required person before the
Court without unnecessary delay.
Section 70 of the Criminal Procedure Code states the aspects of a warrant of an arrest. Every
warrant of arrest that is issued by a Court under this Section has to be in writing and signed by
the presiding officer of the respective Court. The warrant should also bear the seal of the same
Court that issued the warrant. A warrant of an arrest shall remain in force unless it is cancelled
by the respective Court that published it in the first place, or until it is executed. Form No. 2 of
the Second Schedule shows the form of a warrant of arrest. The following are the requirements
that are to checked off to issue a legal order of arrest.
1. The warrant of arrest must be in writing.
2. The warrant must state the name and the designation of the individual who is to execute
the order.
3. The warrant must give the full name and the description of the person who is to be
arrested.
4. The warrant must state the offence charged on the individual.
5. The presiding officer must sign the warrant of arrest.
6. The warrant of arrest must be sealed.
The warrant of arrest is generally issued for the protection of an individual before the concerned
Court and not for the police officer. Under Section 76 of the Code, a police officer or another
person in power to execute a warrant of arrest shall bring the individual arrested before the
Court. The arrest is subject to the provisions of Section 71 that talks about security. The arrested
individual must be brought before the Court without any unnecessary delay. If delayed, it should
be ensured that the delay shall not, in any case, exceed 24 hours excluding the time required to
get from the place of arrest to the Magistrate’s Court.
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There are two types of warrant:
1. Bailable Warrant
2. Non-bailable Warrant
Section 71 deals with Bailable warrant : It is a type of notice issued by the magistrate, generally
to the police to arrest the person concerned named in the notice with the condition that if the said
person execute a bond with sufficient sureties (of the amounts mentioned in the warrant) that he
will appear before the court on the date and time mentioned in the warrant and thereafter also,
then the police officer serving the said warrant shall release the person concerned from his
custody on his executing such a bond. On the other hand Non-bailable Warrant is also a sort of
notice, generally to the police to arrest the person concerned named in the notice but without any
condition. The police officer to whom this warrant is addressed is obliged to trace out the person
concerned and to arrest him and to produce him before the court without any delay (Section 76).
It is normally issued when the person concerned does not appear before the court despite receipt
of summons and/or bailable warrant. The Non-bailable Warrant may be cancelled by the court
when the person, against whom NBWs have been issued, appear in the court with an application
for cancellation of Non-bailable Warrants explaining the reasons for his not appearing earlier. If
the court is satisfied, it cancels the Non-bailable Warrants, but if it is not, then it sends him to jail
for a few days so that he does not repeat it again.
Form of Warrant is dealt under section 70 of the code.
(1) Every warrant of arrest issued by a court under this Code shall be in writing, signed by the
Presiding officer of such court and shall bear the seal of the court.
(2) Every such warrant shall remain in force until the court, which issued it, cancels it or until it
is executed.
• The validity and duration of the warrant of arrest is indefinite, till it is cancelled by the
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court which issued it, or
• until it is executed.
Under section 72 of the code it is mentioned that 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. Section 74 further says that a warrant directed to any police officer may also
be executed by any other police officer whose name is endorsed upon the warrant by the officer
Section 75 says that the police officer or other person executing a warrant of arrest shall notify
the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.
Under the provision of section 76 in order to avoid delay to bring the arrested person before the
court warrant can be executed outside the local jurisdiction, provided that such delay shall not, in
any case, exceed twenty-four hours exclusive of the time necessary for the journey from the
place of arrest to the Magistrate’s court.
Under Section 78 Warrant forwarded for the execution outside local jurisdiction:
(1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such
court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by
post or otherwise to any Executive Magistrate or District Superintendent of Police or
Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the
Executive Magistrate or District Superintendent or Commissioner shall endorse his name.
(2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the
substance of the information against the person to be arrested together with such documents, if
any, as may be sufficient to enable the Court acting under section 81 to decide whether bail
should or should not be granted to the person.
Under section 79 Warrant directed to police officer for execution outside jurisdiction.
(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of
the court issuing the same, he shall ordinarily take it for endorsement either to an Executive
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Magistrate or to a police officer not below the rank of an officer in charge of a police station,
within the local limits of whose jurisdiction the warrant is to be executed.
(2) Such Magistrate or police Officer shall endorse his name thereon and such endorsement shall
be sufficient authority to the police officer to whom the warrant is directed to execute the same,
and the local police shall, if so required, assist such officer in executing such warrant.
(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement
of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed
will prevent such execution, the police officer to whom it is directed may execute the same
without such endorsement in any place beyond the local jurisdiction of the court which issued it.
CASE LAWS OF WARRANT:
It’s important to discuss when can Non bailable Warrant be issued?
The court in the landmark case of Inder Mohan Goswami & Another v. State of Uttaranchal &
Others4 had laid down few guidelines for the courts with regards to issuance of non-bailable
warrants: it is reasonable to believe that
• The person will not voluntarily appear in court which means person cannot be found; or
• The police authorities are unable to find the person to serve him with a summon; or
• It is considered that the person could harm someone if not placed into custody
immediately.
In such cases only, NBWS will be issued.
In another case Vikash v. State of Rajasthan5 the question was whether issue of Non-bailable
Warrant without serving bailable warrant is valid or not?
The Supreme court held that direct issue of NBW without bailable warrant and summon is
violation of Article 21.
4
2007(12)Scale 15,at para 52
5
2014,SC
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In one of the recent case Pankaj Jain v. Union of India & Anr6 , The Supreme Court of India has
held that it is not obligatory for a Court to release an accused by accepting the bond under
Section 88 Cr.P.C. on the ground that he surrendered before the Court voluntarily and he was not
arrested during investigation. The Two Judge Bench of Justices AK Sikri and Ashok Bhushan
was hearing an appeal against the judgment and order of Allahabad High Court dismissing a
Writ Petition filed by an accused challenging the Trial Court’s order denying bail to him. The
Bench held that Section 88 of the Cr.P.C. does not confer any right on any person, who is present
in a Court.
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AIR 2018
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