Concept Applications 6.4: Essay Type Answers on Processes

Law and You >Procedural Laws > BNSS > Concept Applications 6.4: Essay Type Answers on Processes (12/13/16 Marks)

Expected Answer is in 1000 to 1200 Words

Q1. Explain the provisions related to the service of summons under the Bharatya Nagarik Suraksha Sanhita, 2023.

Synopsis:

Introduction
Need for issuing Summons
Service of Summons
Personal Service under S. 64 of BNSS
Service of Summons on Corporate Bodies, Firms, and Societies under S. 65 of BNSS
Service When Persons Summoned Cannot be Found under S. 66 of BNSS:
Procedure when Service Cannot be Effected as Before Provided under S. 67 of BNSS:
Service on Government Servant under S. 68 of BNSS:
Service of Summons Outside Local Limits under S. 69 of BNSS:
Proof of Service in Such Cases and When Serving Officer not Present under S. 70 of BNSS:
Service of Summons on Witness by Post under S. 71 BNSS:
Conclusion

Introduction:

Process is defined as any means which is used by court to compel appearance of a defendant before it. The different modes to compel appearance of a person in Court are by issuing Summons, Warrant of Arrest and Proclamation and Attachment

Need of Issuing Summons:

To inform a person, when a legal action is taken against him i.e. to inform accused.
To inform a person that he is required to appear in the court as a witness in a proceeding at specified time.
To inform person for producing a document or thing.

Service of Summons:

Summons can be served by following methods:

By personal service under Section 64 of BNSS
By service on corporate bodies and societies under Section 65 of BNSS
By extended service when a person summoned cannot be found under Section 66 of BNSS
Procedure when Service Cannot be Effected as Before Provided under S. 67 of BNSS
By Service on Government servant under Section 68 of BNSS
By Service of summons outside local limits under Section 69 of BNSS

Personal Service under S. 64 of BNSS:

Every summons shall be served by a police officer, or by an officer of the Court issuing it, or other public servant. The police station or the registrar in the Court shall maintain a register to enter the address, email address, phone number and such other details as the State Government may, by rules, provide. The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. The summons bearing the image of Court’s seal may also be served by electronic communication in such form and in such manner, as the State Government may, by rules, provide. Every person on whom a summons is so served personally shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

Service of Summons on Corporate Bodies, Firms, and Societies under S. 65 of BNSS:

A service of a summons on a company or corporation may be effected by serving it on the Director, Manager, Secretary or other officer of the company or corporation, or by letter sent by registered post addressed to the Director, Manager, Secretary or other officer of the company or corporation in India. The service shall be deemed to have been effected when the letter would arrive in ordinary course of post.

In case of firms or association of individual a service of summons may be effected by serving it on any partner of such firm or association, or by letter sent by registered post addressed to such partner. The service shall be deemed to have been effected when the letter would arrive in ordinary course of post.

In Anil D Ambani v. State of Bihar, 2006 (4) Pat LJR 571 (Pat) case a summons was issued to the Managing Deputy Director of a company. The Court held that when a corporate body is an accused before the Court, the summons for appearance of the corporate body has to be sent in the name of the corporate body itself and the Court held the service illegal.

Service When Persons Summoned Cannot be Found under S. 66 of BNSS:

The personal service under Section 64 of the Sanhita is the best service. But if irrespective of proper and sincere efforts, the serving officer failed to deliver the summons to the person summoned personally then under Section 66 of BNSS, it can be delivered to some other member of the family, who is satisfying following conditions

He/She is adult (Age more than 18 years)
He/She is not insane or intoxicated
He/She should be residing with the person summoned.

A duplicate copy of the summons should be left with the person receiving it. Explanation clearly mentions that a servant is not a member of the family within the meaning of this section.

In Satya Securities v. Uma Erry, 2002 Cr LJ 3714 (HP) case, the Court held that service on accused through his counsel is not permissible and as such on the failure of the accused to appear, a warrant would not be issued; the procedure would be illegal.

Procedure when Service Cannot be Effected as Before Provided under S. 67 of BNSS:

To serve summons under Section 67, the police officer should justify that he had taken proper efforts to serve it as prescribed in Section 64 and then Under 66 and failed to serve. Thus the use of Section 66 can be effected only if the serving officer is unable to serve under Section 64 and 66. If the summons is not served it is a duty of the court to see that it is served. Under Section 67 of the Sanhita, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead where the person summoned resides ordinarily.

After that Court will make such enquiries as it thinks fit upon which it may either declare that summons has been duly served or will order fresh service in a manner as it considers proper.

In Hemendra Nath v. Archana, 1971 CrLJ 817 (Cal) case, the Court held that to justify service under Section 64 of CrPC (66 of BNSS), it should be shown that proper efforts were made to find the person summoned.

Service on Government Servant under S. 68 of BNSS:

When a Government Servant is to be summoned and is in active service of the Government, then the summons in duplicate shall ordinarily be sent to the Head of the office in which such person is employed. Now, the head of the office is bound to serve it to such person as specified under 64 of the Sanhita. And after obtaining signature on the back of the duplicate from such person, he has to return the signed copy with endorsement to the Court.

Service of Summons Outside Local Limits under S. 69 of BNSS:

When a Court wants to summon someone beyond its local jurisdiction then the Court should send such summons in duplicate a Magistrate under whose jurisdiction the person resides. The Magistrate under whose jurisdiction the person resides issue it to concerned police officer to serve it.

Proof of Service in Such Cases and When Serving Officer not Present under S. 70 of BNSS:

Sometimes the jurisdiction in which the person resides lies very much away from the jurisdiction of the Court who has issued summons, that the serving officer of the jurisdiction in which the person resides is unable to attend the trials. In such a case he can make an affidavit saying that he has served the summons in the manner provided by section 64 or section 66 of the Sanhita. This affidavit with duplicate signed copy of the summons shall be considered as admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.

Service of Summons on Witness by Post under S. 71 BNSS:

The Summons to witness can be served by post. It can also be served through registered post. When postman is delivering it to such person and he refused to accept it and the postman put a remark on it that the receiver refused to accept, then it is considered as evidence and the issuing Court may declare that the summons is duly served.

Conclusion:

Summons under BNSS are issued by a court to compel the attendance of a person as a witness or accused in a criminal case. It serves the purpose of ensuring that individuals involved in legal proceedings appear before the court to facilitate fair and just adjudication. Upon receiving a summons, individuals are legally obligated to appear before the court on the specified date and time. Failure to comply can lead to legal consequences, including issuance of warrants for arrest. Summons are a part of the due process of law and are essential for maintaining the rule of law. They provide an opportunity for individuals to participate in legal proceedings, present their side of the case, and ensure their rights are protected.

Q2. Explain the provisions related to the warrant of arrest under the Bharatya Nagarik Suraksha Sanhita, 2023.

Synopsis:

Introduction
Types of Wararnts
Form of Warrant of Arrest and Duration (S. 72 BNSS)
Power to Direct Security to be Taken (S. 73 BNSS)
Warrants to whom Directed (S. 74 of BNSS)
Warrant may be Directed to any Person (S. 75 of BNSS)
Warrant Directed to Police Officer (S. 76 of BNSS)
Notification of Substance of Warrant (S. 77 of BNSS)
Person Arrested to be Brought before Court without Delay (S. 78 of BNSS)
Where Warrant may be Executed (S. 79 of BNSS)
Issue of Warrant in lieu of, or in Addition to, Summons (S. 90 BNSS)
Conclusion

Chapter VI of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the processes to compel appearance of the accused or witness in the court. The Court can compel the person to be present in the Court using summons, warrant of arrest, or proclamation and attachment. In this article let us discuss provisions related to warrant of arrest in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

A warrant is a written instrument issued by the Judge or Magistrate on behalf of the state which authorizes the arrest and detention of an individual or the search and seizure of an individual’s property. Warrants serve to uphold the principles of justice, ensure the presence of individuals involved in legal proceedings, and maintain the integrity and efficiency of the criminal justice system.

Types of Warrant under BNSS:

Under S. 72 BNSS, the Bharatiya Nagarik Suraksha Sanhita, 2023, there are primarily two types of warrants of arrest issued by courts:

Bailable Warrant: This type of warrant is issued when the offense is bailable, meaning the accused can be released on bail after arrest.
Non-Bailable Warrant: This type of warrant is issued when the offense is non-bailable, meaning the accused cannot be released on bail immediately after arrest, and they must be produced before a magistrate.

Form of Warrant of Arrest and Duration (S. 72 BNSS):

As per the section 72 of BNSS, the essentials of a warrant are as follows:

The warrant is to be in writing;
It must be signed by a presiding officer of Court issuing it; and
It must bear the seal of the Court;.

Besides above requirements, warrant must contain following information:

It must bear the name and designation of the executant of such warrant;
It must indicate the clear name and address of the accused;
It must state the offence with which the accused is charged;
It must indicate date of issue; and
It must indicate the date of appearance.

Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

Power to Direct Security to be Taken (S. 73 BNSS):

As per Section 73 of BNSS, any court issuing a warrant for the arrest of any person may in its discretion direct by an endorsement on the warrant that if such person executes a bond with sufficient sureties for his attendance before the court at a specified time and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall take such security and shall release such person from custody. Whenever security is taken under this section, the officer whom warrant is directed shall forward the bond to the court.

Warrants to whom Directed (S. 74 of BNSS):

According to Section 74 of BNSS, a warrant may be directed to the police officer or any person. If it is directed to more officers or persons than one, then warrant may be executed by all, or by any one or more of them.

Warrant may be Directed to any Person (S. 75 of BNSS):

Under Section 75 BNSS, 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, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. The person to whom warrant is directed must acknowledge in writing that they have received the warrant. The person must execute the warrant if the wanted person is already on any land or property under that person’s charge, or subsequently enters such land or property. The obligation to arrest arises only in relation to property that is under the person’s control or management.

After the arrest is made, the arrested person must be handed over, along with the warrant, to the nearest police officer. The police officer must then take the arrested person before the Magistrate having jurisdiction over the case.

If the warrant contains an endorsement under Section 73 permitting release on execution of a bail bond with sufficient sureties, and the required security is furnished, the arrested person may be released in accordance with that provision instead of being produced in custody before the Magistrate.

Warrant Directed to Police Officer (S. 76 of BNSS):

Ordinarily, when a Court issues a warrant of arrest, it is addressed to a specific police officer or to certain police officers. Section 76 permits the police officer to whom the warrant is addressed to endorse (authorise in writing) another police officer to execute the warrant. Note that, the provision applies only to warrants addressed to police officers.

Notification of Substance of Warrant (S. 77 of BNSS):

This provision lays down that when a police officer or any other person authorized by law executes an arrest warrant, they cannot simply arrest the person without explanation. They have two legal duties. First to notify the substance of the warrant to the person being arrested; and second to show the warrant if the person asks to see it.

Person Arrested to be Brought before Court without Delay (S. 78 of BNSS):

Under Section 78 BNSS, when a police officer or any other authorized person arrests someone under a warrant, the person making the arrest must bring the arrested person before the proper Court without unnecessary delay, and follow the procedure prescribed by law regarding production before the Court.

Where Warrant may be Executed (S. 79 of BNSS):

According to Section 79 of the Bharatiya Nagarik Suraksha Sanhita, 2023 a warrant of arrest may be executed at any place in India.

Issue of Warrant in lieu of, or in Addition to, Summons (S. 90 BNSS):

Section 90 BNSS deals with issuing a warrant in lieu of, or in addition to, a summons. It allows the court to issue a warrant for the arrest of an individual if they believe the individual has absconded or will not obey a summons, or if they fail to appear after being properly served with a summons.

In State v. Dawood Ibrahim Kaskar, AIR 1997 SC 2494 case, the Supreme Court held that, even in the course of investigation and before taking the cognizance of the case warrant can be issued.

In Shaik Yousuf v. State of Andhra Pradesh, 2001(2) ALT (Crl) 270 (AP) case, the Court held that a warrant once issued remains in force until it is cancelled or executed even though it bears returnable date.

In Karim Shah v. State of UP, 2008 Cr LJ 2974 case, the Court held that after the accused has been taken into custody, the liabilities if sureties comes to an end. If subsequently he absconds from the custody of the court the sureties cannot be held liable.

Conclusion:

Warrants of arrest under the Bharatiya Nagarik suraksha sanhita, 2023 (BNSS) are crucial instruments in the Indian legal system, designed to ensure the appearance of individuals in court and uphold the administration of justice. Bailable warrant allows the accused to be released on bail upon arrest, generally issued for less severe, bailable offenses. This warrant balances the need to secure the accused’s presence in court with their right to liberty. Non-bailable warrant requires the accused to be produced before the court without the option of bail from the arresting officer, typically issued for more serious, non-bailable offenses. This warrant is vital for preventing evasion of the judicial process and ensuring compliance with court orders.

Q3. Explain procedure under BNSS to compel the appearance of an accused person and consequence of non-appearance.

Synopsis:

Summons
Wararnt of Arrest
Prclamation
Attachment
Conclusion

Process is defined as any means which is used by court to compel appearance of a defendant before it. The different modes to compel appearance of a person in Court are by issuing:

Summons:

Summons is a legal document issued from the office of the court of Justice calling upon the person to whom it is directed to attend before a Judge or officer of court at a specified time for a certain purpose. It must be in writing; in a duplicate and signed and sealed by the presiding officer of the Court.

Under Section 64 BNSS, Every summons shall be served by a police officer, or by an officer of the Court issuing it, or other public servant. The summoned person must sign a receipt therefor on the back of the duplicate.
Under Section 65 BNSS, a service of a summons on a company or corporation may be effected by serving it on the Director, Manager, Secretary or other officer of the company or corporation, or by letter sent by registered post. The service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
Under 66 BNSS, if irrespective of proper and sincere efforts, the serving officer failed to deliver the summons to the person summoned personally then under Section 66 of BNSS, it can be delivered to some other adult member of the family residing with the person summoned.
Under 67 BNSS, if the serving officer is unable to serve under Section 64 and 66, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead where the person summoned resides ordinarily.
Under 68 BNSS, when a Government Servant is to be summoned and is in active service of the Government, then the summons in duplicate shall ordinarily be sent to the Head of the office in which such person is employed. Now, the head of the office is bound to serve it to such person as specified under 64 of the Sanhita.
Under 69 BNSS, when a Court wants to summon someone beyond its local jurisdiction then the Court should send such summons in duplicate a Magistrate under whose jurisdiction the person resides. The Magistrate under whose jurisdiction the person resides issue it to concerned police officer to serve it.
Under Section 70 BNSS, in a case if the summons serving officer is far away from the court issuing summons, he can make an affidavit saying that he has served the summons in the manner provided by section 64 or section 66 of the Sanhita.
Under Section 71 BNSS, the Summons to witness can be served by post.

Issuance of Warrant for Appearance:

As per the section 72 of BNSS, a warrant must be in writing; it must be signed by a presiding officer of Court issuing it; and it must bear the seal of the Court. Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.
Under Section 73 of BNSS, any court issuing a warrant for the arrest of any person may in its discretion direct by an endorsement on the warrant that such arrested person can be released on a bail with or without sureity.
According to Section 74 of BNSS, a warrant may be directed to the police officer or any person. If it is directed to more officers or persons than one, then warrant may be executed by all, or by any one or more of them.
Under Section 75 BNSS, 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, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.
Section 76 permits the police officer to whom the warrant is addressed to endorse (authorise in writing) another police officer to execute the warrant.
Under Section 77 BNSS, the arresting ppolice officer or person have to notify the substance of the warrant to the person being arrested; and to show the warrant if the person asks to see it.
Under Section 78 BNSS, the person making the arrest must bring the arrested person before the proper Court without unnecessary delay.
According to Section 79 of the Bharatiya Nagarik Suraksha Sanhita, 2023 a warrant of arrest may be executed at any place in India.
Under Section 90 BNSS, the court to issue a warrant for the arrest of an individual if they believe the individual has absconded or will not obey a summons, or if they fail to appear after being properly served with a summons.

In State v. Dawood Ibrahim Kaskar, AIR 1997 SC 2494 case, the Supreme Court held that, even in the course of investigation and before taking the cognizance of the case warrant can be issued.

Proclamation:

Under Section 84, when a Court has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself so that the warrant cannot be executed, the Court may publish a written proclamation requiring that person to appear at a specified place and time. The date fixed for appearance must be not less than thirty days from the date of publication of the proclamation.
The proclamation must be properly published. It is publicly read in a conspicuous place in the town or village where the person ordinarily resides. It is also affixed to a conspicuous part of the person’s house or homestead, or another conspicuous place in the town or village. A copy is also affixed to a conspicuous part of the courthouse. The Court may additionally direct publication of the proclamation in a daily newspaper circulating in the area where the person ordinarily resides.
Where the proclaimed person is accused of an offence punishable with imprisonment of ten years or more, imprisonment for life, or death, and fails to appear in accordance with the proclamation, the Court may, make a declaration that the person is a proclaimed offender.

If a person fails to appear in a court after declaration of proclamation within specified period, he is punishable under Section 209 of the Bharatiya Nyaya Sanhita, 2023.

In K.T.M.S. Abdul Qader V Union of India AIR 1977 Mad. 386 case, the Madras High Court held that even though the person left India before the passing of the detention order if they continued to remain outside India with a view to defeat or delay the execution of the detention orders they have to be taken to be absconding persons.

Attachment of Property:

Before ordering attachment, the Court must ensure that the process of proclamation under Section 84 has been duly completed.
After issuing the proclamation, the Court may, under Section 85, order the attachment of any property, movable or immovable, belonging to the proclaimed person. In the case of movable property, attachment may be effected by seizure, appointment of a receiver, or an order prohibiting delivery of the property to the proclaimed person or anyone acting on their behalf. In respect of debts or other movable property, attachment may be made through an appropriate written order. In the case of immovable property, attachment may be effected by taking possession, appointing a receiver. The Court must follow the procedure prescribed by law.
Under Section 86, on a written request from a police officer not below the rank of Superintendent of Police or Commissioner of Police, the Court may initiate proceedings to seek assistance from a Court or authority in a contracting State for the identification, attachment and forfeiture of property belonging to a proclaimed person.
Under Section 87, a person other than the proclaimed person having a legitimate interest in the attached property may raise a claim or objection before the competent Court. The Court may investigate the claim and pass an appropriate order. A person whose claim or objection is disallowed may, subject to the statutory requirements, establish their right through a suit within one year from the date of such order.
Under Section 88, the Court may also order release or restoration of attached property in accordance with the BNSS. Thus, attachment is an important coercive measure intended to secure the appearance of an absconding person while protecting the legitimate rights and interests of other persons in the attached property.

In Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel (2008) 4 SCC 649 case, the Supreme Court observed that since the purpose of Section 83 CrPC (S. 85 BNSS) is not to punish the absconder but to compel his appearance, once the absconding accused surrenders before the Court and the Standing warrants cancelled, he is no longer an absconder. The purpose of attaching his property comes to an end. It is to be released subject to the provisions of the Code (Sanhita).

Conclusion:

The provisions relating to proclamation and attachment under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provide an important mechanism for ensuring that an accused person does not evade the process of law by remaining absconding.

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Concept Applications 6.4: Essay Type Answers on Processes (12/13/16 Marks)

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