Other Rules Regarding Processes (Ss. 90 to 93 BNSS)

Law and You >Procedural Laws > BNSS > Other Rules Regarding Processes (Ss. 90 to 93 BNSS)

List of Sub-Topics:

Introduction
Issue of Warrant in lieu of, or in Addition to, Summons (S. 90)
Power to Take Bond or Bail Bond for Appearance (S. 91)
Arrest on Breach of Bond or Bail Bond for Appearance (S. 92)
Provisions of this Chapter Generally Applicable to Summons and Warrants of Arrest (S. 93)
Conclusion
Related Topics

In criminal cases service of process is required for seeking production of the accused, witnesses or related parties whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced. In previous articles we have discussed Ss. 63 to 89 BNSS dealing with service of summons and warrants. In this article we shall discuss Ss. 90 to 93 BNSS dealing with other rules regarding processes.

Chapter VI (Sections 63 to 101) of Bharatiya Nagarik Suraksha sanhita, 2023 (BNSS) provides three ways for compelling the appearance of any person who is required to be present in the court:

Summons,
Warrant, and
Proclamation for person absconding

Other Rules Regarding Processes

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 (normally a police officer) to bring the person who is required to be present in the court. It is at the discretion of the judicial officer to decide which method to be used in a particular situation, who is guided by the provisions of this Sanhita. 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 publication of such proclamation.

S. 90 BNSS:

Issue of Warrant in lieu of, or in Addition to, Summons:

A Court may, in any case in which it is empowered by this Sanhita to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—

(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or

(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

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.

A summons is an order requiring a person to appear before the Court at a specified time. However, the law recognises that sometimes a summons may be ineffective. Therefore, the Court can issue an arrest warrant, but it must record its reasons in writing.

Under Clause (a), before the summons is issued, or after the summons is issued but before the date fixed for appearance, the Court has reason to believe that the person has absconded or will not obey the summons.

Before issuing the summons, the Court receives information showing that the person to be summoned has gone into hiding and is deliberately avoiding the Court. In such situation, the Court can issue an arrest warrant, instead of merely issuing a summons.
After issuing the summons, the Court learns that the person summoned has absconded or is deliberately avoiding the summons. The Court may issue an arrest warrant before the date fixed for appearance, provided it has reason to believe that X has absconded or will not obey the summons.

Under Clause (b), if the person summoned actually fails to appear on the date fixed for appearance. The Court has to check that the summons was properly served in sufficient time, the person had an opportunity to appear, he/she deliberately failed to appear, and he/she has no reasonable excuse. After confirming the Court can issue an arrest warrant.

Thus, the primary purpose of Section 90 BNSS is to ensure the court’s jurisdiction over individuals who are required to appear in court but may attempt to avoid it. If a court issues a summons for a person to appear in court, but the person subsequently disappears, the court can use Section 90 BNSS to issue a warrant for their arrest.

In Brij Nandan Nagaich v. State of U.P., 2007 CRILJ 378 case, the Allahabad High Court opined that, the Court normally issues summons and does not issue non-bailable warrant simultaneously unless it has reason to believe that the accused has absconded and/or will not obey the summons.

In R. Babu Shankar v. State of Karnataka, 2004 CRILJ 3214 case, the Karnataka High Court held that a combined reading of Section 87(a) CrPC (S. 90(a) BNSS) and 204(1) of CrPC (S. 227 BNSS) makes it clear that recording of reasons for issuing a warrant instead of a summons is mandatory in a summons case and it is not so in a warrant case. When the accused in a warrant case is shown to have absconded, no illegality is committed, if the Court orders for issuing NBW.

S. 91 BNSS:

Power to Take Bond or Bail Bond for Appearance:

When any 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, such officer may require such person to execute a bond or bail bond for his appearance in such Court, or any other Court to which the case may be transferred for trial.

Section 91 BNSS grants the court the power to require a person to execute a bond, with or without sureties, for their appearance in court. This is applicable when the person is present before the court and is required to appear or has been arrested. The bond ensures the person’s presence in court, either for the original trial or for any other court to which the case may be transferred. Thus, the section empowers the presiding officer of a court to require a person to execute a bond.

The bond’s primary purpose is to ensure the person’s appearance in court. The bond can be with or without sureties, depending on the circumstances. If the case is transferred to another court, the bond ensures the person’s appearance in the new court. Section 91 is not independent and is subject to the provisions of Section 480 BNSS, which deals with bail.

In V R Mathus Mass Communication Limited, Hyderabad v. State of Andhra Pradesh, Criminal Petition 4426 of 2001 case, the Andhra Pradesh High Court observed: “The provision is meant to enable the persons, who have been directed to execute a bond with or without sureties for a sum fixed by the court and who are not able to produce sureties, to make a request to court to permit them to deposit the amount covered by the bond in lieu of executing the bond. Therefore it is concession given to the accused person who is unable to produce the sureties. The court is not bound to accept the cash surety in all cases”.

S. 92 BNSS:

Arrest on Breach of Bond or Bail Bond for Appearance:

When any person who is bound by any bond or bail bond taken under this Sanhita to appear before a Court, does not appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him.

Section 92 BNSS deals with the arrest of a person who has breached a bond of appearance. When a person bound by a bond to appear before a court fails to appear, the presiding officer can issue a warrant for their arrest and production.

The provision applies when a person fails to appear before a court as required by a bond taken under the BNSS. The presiding officer of the court can issue a warrant directing the arrest and production of the person. The purpose of Section is to ensure the presence of the accused before the court.

S. 93 BNSS:

Provisions of this Chapter Generally Applicable to Summons and Warrants of Arrest:

The provisions contained in this Chapter relating to summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Sanhita.

Section 93 BNSS states that the provisions of the chapter relating to summons and warrants, including their issue, service, and execution, generally apply to all summons and warrants of arrest issued under the Sanhita. In essence, it ensures that the same procedures for summons and arrest warrants are followed across different parts of the BNSS.

Section 93 BNSS specifies that the rules and procedures outlined in Chapter VI of the BNSS (which deals with “Processes to Compel Appearance”) are applicable to all summons and warrants of arrest issued under the BNSS. This includes procedures for issuing summons and warrants, how they should be served to the accused, and the steps involved in executing the warrant (e.g., arrest). The section ensures that there is a consistent approach to issuing and executing summons and arrest warrants throughout the BNSS, regardless of the specific offense or situation.

Conclusion:

Under the BNSS, the service of summons and warrants is governed by specific rules. The BNSS also outlines procedures for compelling the production of documents or things.

Summons are usually served by a police officer or an officer of the court. If practicable, the summons should be served personally on the person summoned. The person served with the summons should sign a receipt on the back of the summons. If personal service is not possible, alternative methods may be used, such as substituted service.

Arrest warrants are a type of warrant used to compel the appearance of a person. Warrants are directed to the person in charge of a police station, or if surety and security are provided, to a court. Warrants can be executed at any place in India by sending them to the relevant police authority. Warrants can be bailable, meaning a person can be released on bail.

If a person is concealing themselves, the court may issue a proclamation and may also attach their property.

The court can issue a summons to a person to produce a document or thing. If a summons is not complied with, a search warrant may be issued.

Section 90 BNSS 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. Section 91 BNSS grants the court the power to require a person to execute a bond, with or without sureties, for their appearance in court. Section 92 BNSS deals with the arrest of a person who has breached a bond of appearance. Section 93 BNSS states that the provisions of the chapter relating to summons and warrants, including their issue, service, and execution, generally apply to all summons and warrants of arrest issued under the Sanhita.

If the person in respect of whom a summons or warrant is to be issued is present in Court, the Presiding Officer of the Court may require such a person to execute a bond with or without sureties, for his appearance in Court. When a person who have given a bond for appearing before a Court does not appear, a warrant can be issued for the arrest and production of such a person.

For More Articles on BNSS Click Here

For More Articles on Different Acts, Click Here

The Legal Quotient

Like this: