Author: Neitseizonou Solo | Featured-Pic Credit: Shashwat Ashiya


Introduction

Both Summons and Warrants perform similar functions, they are both orders issued by the courts in service of their functions. Summons and warrants are used by the court to instruct a party of the case to appear before the court but they are used in different circumstances.

Summons

Definition

Summons are written orders issued by a court to the defendant of a case in order to ensure their presence before the court. It is necessary to issue a summons so as to ensure a fair trial between the two parties of the case as the defendant is informed of such proceedings against him furthermore the defendant is also provided the opportunity to defend himself before the court; both parties are on equal footing. If summon is not served when necessary then the case cannot proceed against the defendant.

Who issues and receives

Summons are issued by a court to a party of a case. Summons is issued in the following cases:

  • When there are legal proceedings against a person or body
  • When a person is to act as a witness in a particular case 

Criminal Law

Under Code of Criminal Procedure, the sections 61-69 deal with the issuance of summons. Section 204 also deals with the issuance of summons by Magistrates after cognizance of offences.

Form of Summons

The Summons should be in writing, duplicated and signed by the presiding officer of the court and it shall also hold the seal of the court.

Section 204 further states that if the Magistrate is satisfied that there are sufficient grounds for proceedings then he can issue a summons in either a warrants case or summons case.

In the case of Bhushan Kumar v. State (NCT of Delhi)[1]the court held that it is not mandated that the Magistrate must expressly provide reasons for issuing such summon and it is not a pre-requisite for deciding the validity of a summons.

In the case of V.Selvam v.  M/S. Shanthi Processing Unit Pvt.[2]the court held that a revision filed by a petitioner challenging issuance of summons was not maintainable.

Mode of Service of such Summons

The Summons so issued will be served by police officer or subject to rules the state governments may make, by any officer of the court or any other designated public servant.

When is the Summons Considered Served?

Given below are the different circumstances under which summons may be considered served;

  1. In case of an individual, the summons is served when it is delivered or tendered to him by the appointed officer.
  2. According to section 67, in case the summons is to be served to a party outside its local jurisdiction then the court shall send duplicate of the summons to the Magistrate under whose jurisdiction the individual resides in.
  3. In case the individual cannot be found the summons may be delivered to an adult male of his family and a receipt may be signed according to section 64. Further, if the person summoned cannot be reached through the options provided in section 62, 63 and 64 then a copy of the summons may be attached to the homestead or house of the defendant.
  4. In case of summons to a corporation,according to section 63, the summons may be affected by serving the summons to the secretary, local manager or other principalofficer of the said corporation. Further, the summons may also be served though post addressed to the chief officer, in this case, the summons is deemed to be served when it arrives to the corporation.
  5. According to section 66,if summons is to be sent to a government, a copy of such summons is to be sent to the head of the office in which such employee works. His signature on the document is returned to the court and it shall act as evidence of due service.
  6. According to Section 69, a summons for a witness may simultaneously and additionally be sent through post.

Civil Law

Under Code of Civil Procedure (CPC), summons are governed by section 27 and Order 5. According to Rule 1 of Order V, summons are to be issued to the defendants of a case so that they may appear before the court and submit a written statement of defence unless the defendant has appeared for the presentation of the plaint and has admitted the claim of the plaintiff. The summons should be accompanied by a copy of the complaint.

Purpose of the Summons

The Summons are issued in order to settle the issues that have arisen between the two parties or to finally dispose of the suit according to Rule 5 of Order V. To fulfil the above purpose summonsare issued for the following reasons;

  • Under Rule 1(1) the date on which the defendant is to appear before the court is set, the date is provided so that the defendant has the opportunity to prepare before appearing before the court.
  • According to Rule 7, an order for the defendant to produce the documents that the defendant relied on for building his case.
  • According to Rule 8 when summons for the final disposal of the case is issued then the defendant will also be ordered to produce witnesses relied on to build his case.

Mode of Service

According to Rule 10 of Order V, the summons shall be made by either delivering or tendering a copy of the summons. The summons shall be signed by the judge or an officer appointed on his behalf, the seal of the court must also be present in the copy.

When is the Summons Considered Served?

Given below are the different circumstances under which summons may be considered served;

  1. Under Rule 9 the summons shall, unless the court otherwise directs, be delivered or sent to the proper officer who will serve the summons or to a courier service approved by the court for delivery.
  2. Under Rule 9(3) summons served by delivered through registered post, speed post, courier or other transmission methods like email and fax.
  3. The Plaintiff may serve summons to the defendant under Rule 9-A of Order V but this will be in addition to the summons served under Rule 9 by the court and it can be done only on application by the plaintiff and permission of the court. The plaintiff may deliver or tender a copy of the summons to the defendant personally, such a copy must be signed by the judge or appointed officer and must bear the seal of the court.
  4. It is given in Rule 16 that the person served the summons or his agent or anyone on his behalf has to sign an acknowledgement if the summonses have been delivered personally.
  5. According to the Rule 15 of Order V in case the defendant is not present at his residence and he cannot be found within a reasonable time, the summons may be serviced to a male member of his family. Further, according to Rule 17 if the summons cannot be serviced to the defendant due to his refusal to sign acknowledgement or if he cannot be found and he has no agent or any other appropriate person who can be serviced on his behalf then a copy of the summons can be affixed on his house of residence, place of business or work.
  6. The summons can also be sent through post in addition to being personally serviced according to Rule 19-A.
  7. When the defendant resides outside the jurisdiction of the court, the summons is to be sent to the court having jurisdiction in the place where the defendant resides according to Rule 21. The court receiving the summons will then issue the summons as if the summons had originally been issued by it, this is provided in Rule 20.
  8. When the defendant resides abroad and has no agent in India, the summons will be sent through post to the place where he is residing.

Evolution of means of serving summons

Under CPC the law has given the courts wide ambit in using electronic means to serve summons to the defendant in question, it is expressly provided that email and fax are valid means of serving summons. Recently the use of WhatsApp to serve summons has become a question of law especially with respect to criminal law. Under CrPC the summons must be personally served to the person being summoned.

In the case of Ksl and Industries Ltd., (Formerly known as Krishna Texport Industries Ltd.), a Company Duly Incorporated Under Companies Act, 1956 v. MannalalKhandelwaland the State of Maharashtra through the Office of the Government Pleader[3]the court held thatsummons may be served using all practical services including email.

Further, in the case of Tata Sons Ltd. & Ors. V. John Does[4], the Delhi High Court allowed summons to be served through WhatsApp texts as well as to the defendant.

In a 2018 criminal case of domestic violence, the court allowed the serving of summons to the husband residing in Australia by means of WhatsApp, messaging and email. Other means of serving summons had been exhausted as his last known residence was in Delhi and service of summons could not be completed even after 8 months.

Consequences of non-appearance

In case a summons is served to the defendant and the defendant does not appear before the court then in civil cases under CPC Order IX  Rule 6 and 10, the plaintiff has to prove service of the summons and if it is proved the court may proceed against the defendant ex parte. This provision only applies to the first hearing. In criminal cases, if the person receiving the summons does not respond then it is may be considered contempt of court. The court can issue arrest warrant and may also impose a fine. If the service of the summons is refused by the receiving party, the summons is still deemed to be served. According to section 87 of CrPc, the court can issue a warrant of arrest in case the court believes that the person being summoned will have absconded or will not obey the summons


 

Warrant

Warrants are those orders issued by a court to a law enforcer commanding them to fulfil a certain act. It commands the law enforcer to perform a particular act in order to provide justice. Different types of warrants perform different functions and each of the types is prescribed their own procedures.

Who issues and receives

Unlike in summons warrants are issued to the law enforcer rather than to the parties of the case as it is done in summons. According to section 72 of CrPC, the warrants are usually issued to one or more police officers or any other person when there is no police officer available and need for warrant is immediate. Further, it provided in section 73 that those warrants are directed for the arrest of escaped convict, offender or any other person accused of a non-bailable offence and is evading arrest.

Types of warrants

The major types of warrants- Arrest Warrants and Search Warrants

Arrest Warrants

An arrest warrant is a written order issued by the court for the capture and confinement of a person involved as a perpetrator in a criminal case.

Form

Section 70 of CrPC provides for the form of the arrest warrant. It states that the warrant shall be in writing, signed by the presiding officer and will bear the seal of the court.

Types of Arrest Warrants

  1. Bailable- Bailable warrants are dealt with in section 71 of CrPC .and they are those warrants which are issued on the condition that if the person can execute bonds with sufficient sureties for his attendance before the court on specified date and time and thereafter the person arrested shall be released by the police after he executes such a bond.
  2.  Non-Bailable Warrant- It is provided for in section 76 of CrPC, the police officer executing the warrant has to produce the arrested person before the court without unnecessary delay and the delay must not exceed 24 hours minus the time taken for the journey between place of arrest and court.

In the case of K. Srinivas v. State of Andhra Pradesh[5], the High Court held that it is not correct to issue non-bailable warrants to petitioner or witnesses.

In the case of RaghuvanshDewanchandBhasin v. State of Maharashtra AIR 2011 SC 3393, the Supreme Court issued certain guidelines for courts to follow when issuing non-bailable warrants. Some of the guidelines are as follows;

  1. Printed form no. 1 and 2 for issuing warrants of arrest.
  2. Complete particulars of the case in question.
  3. Presiding judge should put his signature which should be full and legible on the particulars on the document detailing the particulars of the case.
  4. The seal of the court should also be present.
  5. Every court is to maintain a register for arrest warrants issued and the register must be chronologically numbered.

Procedure

  1. The person being arrested is to be notified of the substance of the arrest warrant and if required, may show the warrant to the said person according to section 75.
  2. The person arrested is to be taken over by the nearest police officer in case the person to whom the warrant is directed is not a police officer. After this, the arrested person shall be produced before the court unless they fall under section 72. This is provided for in section 73(3).

In the case of Thirumali Kumar v. State Represented by S.I. of Police Bail Appeal no. 7819 of 2009 the court held that a Magistrate can issue a warrant of arrest if he finds relevant information necessitation such a warrant. A police report is not a prerequisite for an arrest warrant to be issued by the court.

Search Warrant

A search warrant is an order issued by the court and it allows police to search the location or property of a person and confiscate anything which is illegal or which will act as evidence.

A search warrant may be issued in the following circumstances:

Documents

  • It is provided in section 93 (1)(a) that when the court believes that a summons for productions of documents required for the proceedings of the case will not or would not be produced.
  • According to section 93(1)(b) when the required documents are not known to be in possession of anyone.
  • According to section 93(1)(c) search warrant may be issued when the court procurement of such documents will serve to benefit the proceedings of the case.

Stolen Property

The court has the power to issue search warrant for the search of a place which is suspected to contain stolen property, forged documents, counterfeit coins, counterfeit notes, false seals, obscene objects etc which is provided for in section 94. The District Magistrate, Sub-Divisional Magistrate or Magistrate of first class can issue such a warrant upon information and after inquiry. He can authorize the police officer to;

To enter the place and search the place in the manner provided for in the warrant.

  1. To take possession of anything which is covered under this section and to convey it to the magistrate or guard it until offender is produced before a magistrate or dispose of such an item.
  2. To arrest and produce before the magistrate any person found who appears to have played a part in any crime related to the items.

Forfeited Publication

It is provided in section 95 that the court can issue search warrants for any publications that have been declared as forfeited to the government by notification from the state government stating the grounds on which the publication is forfeited.

Wrongfully Confined Persons

It is given in section 97 that the court can issue a search warrant if it has reason to believe that the person is confined under such circumstance which would amount to an offence. The person found will be taken before a Magistrate immediately and he shall issue proper order according to the circumstances of the case

Procedure

  • It is provided in section 100 the procedure in case a place that is to be searched is closed. It is given that:
  1. The person liable for such place is to allow free ingress as well as to provide reasonable facilities for searching on demand of executing officer.
  2. When such person is suspected of concealing anything which is pertinent to the search, they may be searched as well.
  3. Two or more inhabitants of the locality in which the search is taking place or inhabitants of other locality if no one of same locality is willing or available are to be present as witnesses to the search. A list of seized things is to be prepared and signed by witnesses. Any person who refuses to be a witness without reasonable cause when called upon to do is considered to have committed an offence.
  4. The occupant of place searched or any other person on his behalf is allowed to attend the search and a copy of seized items with signatures of the witnesses shall also be delivered to him. Further, a person searched due to suspicion of concealment will also be allowed to get a list of all the things that taken possession of.
  5. According to section 102, the police can seize property which is suspected to have been stolen or acquired through commitment of an offence. Such seizure will be reported to the Magistrate.
  6. It is provided in section 104 that the police have the power to impound documents, etc., as the court thinks fit to impound.


[1]2012 STPL (Web) 209 SC

[2]Crl.R.C.No.526 of 2009

[3]Criminal Writ Petition No. 1228 of 2004

[4]CS(COMM) 1602/2016

[5]2003 (1) ALD (CrL) 53


About the Author: Neitseizonuo is a 2016-21 Batch student at Hidayatullah National Law University.


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