CRPC PROJECT 2020

JAMIA MILLIA ISLAMIA

SUMMON AND
WARRANT
Code of Criminal Procedure

SUBMITTED BY:
YASIR AHMAD
B.A.LL.B (HONS.) S/F
8TH SEMSESTER
ROLL NO.65

SUBMITTED TO:
Dr. Asad Malik
Faculty of law
Jamia Millia Islamia

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ACKNOWLEDGEMENT
Firstly, I would like to express my profound sense of gratitude towards the Almighty “ALLAH” for
providing me with the authentic circumstances which were mandatory for the completion of my
research work.
I am also thankful to Dr.Asad Malik, for his invaluable support, encouragement, supervision and
useful suggestions throughout this research work. His moral support and continuous guidance
enabled me to complete my work successfully. His intellectual thrust and blessings motivated me to
work rigorously on this study. In fact this study could not have seen the light of the day if his
contribution had not been available. It would be no exaggeration to say that it is his unflinching faith
and unquestioning support that has provided the sustenance necessary to see it through to its present
shape.
I would like to extend my sincere thanks to my friends and family for their constant review and
honest remarks.

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Table of Contents
INTRODUCTION ............................................................................................................................................... 4

SUMMONS ......................................................................................................................................................... 6

WARRANT OF ARREST ................................................................................................................................. 11

CONCLUSION.................................................................................................................................................. 20

BIBLIOGRAPHY.............................................................................................................................................. 21

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INTRODUCTION

The basic purpose of the Criminal Procedure Code, among other things, is to ensure a fair trial where
none of the rights of the accused are compromised nor are they unjustifiably favoured. Furthermore,
to ensure that the judge concerned hears all parties who are relevant to the trial, their presence at the
trial is obviously important. That is why an entire chapter of the Code concerns itself with the
process of ensuring the attendance of any person concerned with the case, including an accused or a
witness, through various measures, viz. summons, warrant, proclamation and attachment of property.
The latter two are used when the former do not yield satisfactory results. Many would argue that the
simplest way to ensure the presence of a person, especially an accused, would be to arrest him in all
circumstances and detain him so that his presence is beyond doubt. However, such an action would
go against the fundamental right that this Constitution provides with, the right to personal liberty
under Article 21. Criminal law hinges on that right and no person can be deprived of this right unless
very cogent reasons are present which argue against his release. This is why the Code envisages both
warrant and summons to procure the attendance of persons concerned. In this project, I will look into
the four variants used to procure the attendance of persons for trial. Of course, since the provisions
are mostly procedural in nature, few substantive issues arise but interpretation of these provisions
nevertheless gives rise to various issues. Moreover, the way they are used by the various
functionaries involved viz. the judiciary and the police, also has given rise to substantive literature on
this. Furthermore, I will give special attention to procurement of attendance of witnesses and how the
provisions have been used by the functionaries in ensuring that witnesses attend the trial.

Chapter VI of the Code which is captioned as `processes to compel appearance' consists of four parts
part A relates to Summons; part B to warrant of arrest; part C to proclamation and attachment and
part D to other rules regarding processes.
Processes for compelling appearance
Chapter VI (Sections 61 to 90) of CrPC provides three ways for compelling the appearance of any
person who is required to be present in the court, in the court -

1. Summons,
2. Warrant of arrest,

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3. Proclamation and attachment, and
4.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 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) Cr.P.C. the person
accused can be declared proclaimed offender.

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SUMMONS
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. It is a ground for contempt of court.

According to PR Aiyar, Advanced aw 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.”

The summon is a milder form of process. It is an order from the court directing a person to appear
before it at a particular date. It is either
(a) For personal appearance or,
(b) For producing a document or thing as provided in sec.91-92.

A summon for appearance may be sent to:

(1) an accused person,
(2) a person to show cause against some order,
(3) a person proceeded against for maintenance of wife and chidren neglected by him
(4) a witness.

As per Section 61, every summons issued by a Court under this Code shall be in writing and in
duplicate. It must be signed by the presiding officer of the Court or by such other officer as the High
Court may, from time to time, by rule direct. It must also bear the seal of the Court.

Procedure for issuing a Summons

As per Section 204, if in the opinion of the magistrate taking cognizance of the offence, there is
sufficient ground for proceeding, he shall issue a summons if it is a summons case. If it is a warrants
case, he may issue a warrant or a summons as he thinks fit. However, Section 87, empowers a
magistrate to issue a warrant even if the case is a summons case if he has reason to believe that the
summons will be disobeyed. He must record his reasons for this action.

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The summons should contain adequate particulars such as the date, time, and place, of the offence
charged. It should also contain the date, time, and place where the summoned person is supposed to
appear. The standard format of a summons is given in Form 1 of Second schedule I.

Procedure for serving a Summons

CrPC describes the procedures for serving a summons on various categories of individuals - a
person, a corporate body, a government servant, and a person residing outside the jurisdiction of the
court.

Personal Service
Section 62 describes the procedure for serving a Summons on a person as follows -
(1) Every summons shall be served by a police officer, or subject to such rules as the State
Government may make in this behalf, by an officer of the Court issuing it or other public servant.
(2) 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.
(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a
receipt therefore on the back of the other duplicate.

Service of summons on corporate bodies and societies (Section 63) -

Service of a summons on a corporation may be effected by serving it on the secretary, local manager
or other principle 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. In this section, "corporation" means an
incorporated company or other body corporate and includes a society registered under the Societies
Registration Act, 1860.

Extended Service
Service when persons summoned cannot be found (Section 64) -
Where the person summoned cannot, by the exercise of due diligence, be found, the summons may
be served by leaving one of the duplicates for him with some adult male member of his family
residing with him, and the person with whom the summons is so left shall, if so required by the
serving officer, sign a receipt therefor on the back of the other duplicate. A servant is not considered
to be a member of the family within the meaning of this section.

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Substituted Service
Procedure when service cannot be effected as before provided (Section 65) -
If service cannot by the exercise of due diligence be effected as provided in section 62, section 63, or
section 64, 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.

Service of summons on a Govt. employee (Section 66) -

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 endorsement required by that
section.
(2) Such signature shall be evidence of due service.
Service of summons outside local limits (Section 67) -
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.

In K.M. Mathew v. State of Kerala & Anr., (1992) 1 SCC 217 43 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

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recalled by the Magistrate. Such 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 & Ors., (2004) 7 SCC 338 the SC held that in absence
of express provision in the Code, the Court has no power to recall the process issued. The larger
Bench, therefore, concluded that K.M. Mathew was not correctly decided and overruled it.
Hence in the absence of any review power orinherent power with the subordinate criminal courts, 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, 2005 SCC (Cri) 242, 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 has
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 would mean that before the accused records
his plea on the initial questioning under Section 251 of the Code, the power to recall summons can
be exercised.

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 the summons at the trial court.

State of Gujarat v. Afroz Mohammed Hasanfatta, Feb. 05, 2019 Supreme Court has re-iterated that in
a case based upon the police report, the Magistrate is not required to record any reason at the stage of
issuing the summons to the accused.
The Bench observed that in summoning the accused, it is not necessary for the Magistrate to examine

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the merits and demerits of the case and whether the materials collected is adequate for supporting the
conviction.

The court is not required to evaluate the evidence and its merits. The standard to be adopted for
summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge.
For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient
ground for proceeding….."; whereas for framing the charges, the expression used in Sections 240
and 246 IPC is "there is ground for presuming 16 that the accused has committed an offence…..".
It is also held that at the stage of taking cognizance of the offence based upon a police report and for
issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits
of the case is not required.

According to the bench the fact that after investigation of the case, the police has filed charge sheet
along with the materials thereon may be considered as sufficient ground for proceeding for issuance
of summons under Section 204 Cr.P.C

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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.
As per concise Oxford dictionary, “Warrant is an official authorization enabling the police or some
other body to make an arrest, search premises etc”.

Valid Warrant

A warrant of arrest should be (i) in writing (ii) signed by the presiding officer of the Court and (iii)
should bear the seal of the Court. It should also contain the name of the accused, his address and
indicate the offence with which he is charged. If any of these factors is absent, the warrant is not in
order and an arrest made in execution of such a warrant is illegal.
Warrants are of two kinds:
1. Bailable
2. Non-Bailable
A bailable warrant is a Court's order which contains a direction that if the person arrested executes a
bail with sufficient sureties for his attendance before the Court, he may be released from custody. In
that case it shall further state the number of sureties, the amount of the bond, and the time for
attending the Court. (Section 71 Cr.P.C.)
In case of a non-bailable warrant the direction for bail will not be endorsed on the warrant:

38. Aid to person other than police officer, executing warrant

When a warrant is directed to a person other than a police officer, any person may aid in the
execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in
the execution of the warrant.

55. Procedure when police officer deputes subordinate to arrest without warrant
When any officer in charge of a police station or any police officer making an investigation under
Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his

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presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer
required to make the arrest an order in writing, specifying the person to be arrested and the offence
or other cause for which the arrest is to be made and the officer so required shall, before making the
arrest, notify to the person to be arrested the substance of the order and, if so required by such
person, shall show him the order.
Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under section
41.

70. Form of warrant of arrest and duration.

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 sea] of the court.
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 court which
issued it, or
until it is executed.

71. Power to direct security to be taken.\

(1)Any Court issuing a warrant for the arrest of any person may in its discretion direct by
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.
(2)The endorsement shall state
(a)The number of sureties;
(b)The amount in which they and the person for whose arrest the warrant is issued, are to be
respectively bound;
(c)The time at which he is to attend before the court.
(3)Whenever security is taken under this section the officer to whom the warrant is directed shall
forward the bond to the court.

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72.Warrants to whom directed.
(1)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.
(2)When a warrant is directed to more officers or persons than one, it may be executed by all, or by
any one or more of them.

73.Warrant may be directed to any person.

(1)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.
(2)Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the
person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.
(3)When the person against whom such warrant is issued is arrested, he shall be made over with the
warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having
jurisdiction in the case, unless security is taken under section 71.

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.
According to section 72 and 73 the magistrate may issue warrant to any person. You can link it with
section 38 Cr.P.C

74.Warrant directed to police officer.

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 to whom it is directed or endorsed.

75.Notification of substance of warrant.

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.

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76.Person arrested to be brought before court without delay.
The police officer or other person executing a warrant of arrest shall (subject to the provisions of
section 71 as 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 twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate's court.

77.Where warrant may be executed.

A warrant of arrest may be executed at any place in India.

78.Warrant forwarded for execution outside jurisdictions

(1)When a w arrant 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 t o 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 thereon,
and if practicable, cause it to be executed in the manner hereinbefore provided.
(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.

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 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 t here 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

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will prevent such execution, t he police officer to whom it is directed may execute the same
w ithout such endorsement in any place beyond the local jurisdiction of the court which issued it.

80.Procedure of arrest of person against whom warrant issued.

When a warrant of arrest is executed outside the district in which it was issued, the person arrested
shall, unless the court which issued the warrant is within t hirty kilometers of the place of arrest or is
nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police
within the local limits of whose jurisdiction the arrest was made, or unless security is taken under
section 71, be taken before such Magistrate or District Superintendent or Commissioner.

81.Procedure by Magistrate before whom such person arrested is brought.

(1)The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if
the person arrested appears to be the person intended by the court which issued the warrant, direct
his removal in custody to such court:
Provided that, if the offence is bailable, and such person is ready and willing to give bail to the
satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been
endorsed under section 71 on the warrant and such person is ready and willing to give the security
required by such direction, the Magistrate, District Superintendent or Commissioner shall take such
bail or security as the case may be, and forward the bond, to the court which issued the warrant:
Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial
Magistrate (subject to the provisions of section 437), or the Sessions Judge, of the district in which
the arrest is made on consideration of the information and the documents referred to in sub-section
(2) of section 78 to release such person on bail.
(2)Nothing in this section shall be deemed to prevent a police officer from taking security under
section 71.

87. Issue of warrant in lieu of, or in addition to, summons.

A court may, in any case in which it is empowered by this Code 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 summons, or after the issue of the same but before 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.

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Section 88. Power to take 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, with or without sureties, for his appearance in such Court, or any other Court to
which the case may be transferred for trial.

90.Provisions of this Chapter generally applicable to summons and warrants of arrest.

The provisions contained in this Chapter relating to a summons and warrants, and their issue.
Service, and execution, shall, so far as may be, apply to every summons and every warrant of arrest
issued under this Code.
The issuance of non-bailable warrants involves interference with personal liberty. Arrest and
imprisonment means deprivation of the most precious right of an individual.1 In the case of Inder
Mohan Goswami & Another v. State of Uttaranchal & Others, this Hon’ble court 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; 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.

Further observed that a non-bailable warrant could be issued if: “…an accused is charged with the
commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the
evidence or is likely to evade the process of law….”

In the aforementioned case it was opined that first the court should direct serving of the summons
along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in
the second instance should issue bailable-warrant. In the third instance, when the court is fully
satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of
the non-bailable warrant should be resorted to.
The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts
and complete application of mind, due to the extremely serious consequences and ramifications
which ensue on issuance of warrants.
In State of U.P. v. Poosu & Another,5 Whether in the circumstances of the case, the attendance of

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the accused respondent can be best secured by issuing a bailable warrant or non- bailable warrant, is
a matter which rests entirely in the discretion of the court. Although, the discretion is exercised
judiciously, it is not possible to computerize and reduce into immutable formulae the diverse
considerations on the basis of which this discretion is exercised.
The issuance of non-bailable warrants involves interference with personal liberty. Arrest and
imprisonment means deprivation of the most precious right of an individual. Therefore, the courts
have to be extremely careful before issuing nonbailable warrants.
In Re: Justice C.S. Karnan, 2017 SCC OnLine SC 238, order dated 10.03.2017 Supreme Court:
Owing to the non-appearance of Justice C. S. Karnan before the Court in the contempt proceedings,
the 7-judge bench of J.S. Khehar, CJ and Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B.
Lokur, P.C. Ghose and Kurian Joseph, JJ issued a bailable warrant of Rs.10,000, in the nature of a
personal bond, to ensure the presence of Justice Karnan on 31.03.2017.
The suo motu contempt proceedings were initiated against Justice Karnan after he had written letters
to Prime Minister Narendra Modi, asking him to take actions against the corrupt sitting and retired
judges of the Supreme Court and Madras High Court when he was a Judge of the Madras High Court
and had passed an injunction against his own transfer orders.

Hindustan Coca Cola Beverages Pvt. Ltd a Private Limited Company vs The State of Madhya
Pradesh, 11-08-2017 The Madhya Pradesh High Court has advised trial courts not to exercise its
power to issue non-bailable warrant in a routine and mechanical manner and in the larger interest of
justice, try to secure the presence of the accused on the next date of hearing by way of a bailable
warrant at the first instance.

The petitioner moved the high court for cancellation of the non-bailable warrant issued against him
issued by the trial court in a case where he is co-accused.

The trial court rejected his application filed under Section 70(2) of CrPC to cancel the non- bailable
warrant issued against him on July 3, 2017.

The petitioner counsel Abhijeet Bhowmick cited a case in which this high court has held that
personal appearance of the accused is not mandated under the provisions of Section 70 (2) and that
the same can be decided in his absence by deciding one way or the other.

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Section 70(2) of the CrPC vests the court with the power to recall the warrant of arrest and the same
can also be exercised suo moto and must not be construed in a manner that would result in hardship
to the person so sought to be produced by way of a non-bailable warrant, the counsel said.

Justice Atul Sreedharan allowed the petition and quashed the non-bailable warrant issued vide order
dated 3/07/2017.
In Pankaj Jain v. Union of India & Anr. 2018 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 main issue which involved in the case was ‘whether it was obligatory for the Court to release
the appellant by accepting the bond under Section 88 Cr.P.C. on the ground that he was not arrested
during investigation or the Court has rightly exercised its jurisdiction under Section 88 in rejecting
the application filed by the appellant praying for release by accepting the bond under Section 88
Cr.P.C’.
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.
“Discretionary power given to the Court is for the purpose and object of ensuring appearance of such
person in that Court or to any other Court into which the case may be transferred for trial. Discretion
given under Section 88 to the Court does not confer any right on a person, who is present in the
Court rather it is the power given to the Court to facilitate his appearance, which clearly indicates
that use of word ‘may’ is discretionary and it is for the Court to exercise its discretion whensituation
so demands. It is further relevant to note that the word used in Section 88 “any person” has to be
given wide meaning, which may include persons, who are not even accused in a case and appeared
as witnesses”.
The Bench also noted that present is not a case where accused was a free agent whether to appear or
not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82 and 83
Cr.P.C. had been initiated. In this view of the matter he was not entitled to the benefit of Section 88.
“When accused was issued warrant of arrest to appear in the Court and proceeding under Sections 82
and 83 Cr.P.C. has been initiated, he cannot be held to be a free agent to appear or not to appear in
the Court”.

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The Court has concluded that the word ‘may’ used in Section 88 confers a discretion on the Court
whether to accept a bond from an accused from a person appearing in the Court or not. “The both
Special Judge, C.B.I. as well as the High Court has given cogent reasons for not exercising the power
under Section 88 Cr.P.C. We do not find any infirmity in the view taken by the Special Judge, C.B.I.
as well as the High Court in coming to the conclusion that accused was not entitled to be released on
acceptance of bond under Section 88 Cr.P.C. We thus do not find any error in the impugned
judgment of the High Court”, said the Bench.
Palanivel v. The State, Crl. OP No. 14320 of 2019, order dated 11 July 2019 While hearing a matter
placed before the Madras High Court, Justice Anand Venkatesh held that a Prisoner's Transit
Warrant can never be converted into a regular warrant where the accused is out on bail and that it
thereby does not authorise the Court to remand the accused on the strength of a regular warrant.
The case arose in the form of a criminal original petition filed under Section 482 of the Code of
Criminal Procedure to call for the records of a particular order of the First Additional Sessions Judge,
Salem cancelling the bail of the petitioner and to set aside the same.

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CONCLUSION
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.
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. It is addressed to a defendant in a legal proceeding.
Typically, the summons will announce to the person to whom it is directed that a legal proceeding
has been started against that person, and that a file has been started in the court records. The
summons announces a date and time on which the person must appear in court.
A warrant of arrest is a written authority given by a competent magistrate for the arrest of a person. It
is a more drastic step than the issue of a summons. It is addressed to a person, usually a police
officer, to apprehend and produce the offender in front of the court.
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.

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BIBLIOGRAPHY

1. C.K. Thakker & M. C. Thakker. Criminal procedure code LexisNexis India Gurgoan.
2. Criminal Procedure code, Bare act of Universal publication, New Delhi
3. Class notes of Criminal Procedure Code

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