Notes on Acts and Laws
PART III Continued...
1. Summons to appear
Every summons issued by a Court under this Code shall be in writing in duplicate, signed and sealed by the presiding officer of such Court or by such other officer as the High Court may, from time to time by rule direct.
(2) Summons shall be served by a police-officer, or, subject to such rules as the Local Government may prescribed in this behalf, by an officer of the Court issuing it or other public servant.
Section 69 Personal Service
(2) Every person served with summons shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. (3) Service on Corporations
Service on incorporate company or other body corporate may be effected by serving it on the Secretary, local manager or other principal officer of the corporation in British India. In such case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
Service when person cannot be found may be served by leaving one of the duplicates for him with some adult male member of his family, or, in a Presidency-town, with his servant residing with him.
The person with whom it is left, shall sign on the back of the duplicate.
Substituted service is improper where sufficient steps are not taken to serve accused personally.
If this is not possible, then 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.
Service on a Government Servant or of Railway Company.
Where person summoned is in the active service of the Government or of a Railway Company, the Court issuing the summons shall ordinarily send 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 manner provided by Section 69 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 out of local limits.
When a Court desires that a summons issued by it shall be served at any place outside the local limits of its jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within the local limits of whose jurisdiction the person summoned resides or is, to be there served.
Proof of service in such cases when serving officer is not present.
( 1) An affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by S. 69 or S. 70) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.
Service on pleader is not sufficient.
6 C. W.N.927
Copy should be served and it is not enough merely to show it.
Tender amounts to service if summons is refused.
Refusing to receive summons is no offence.
II Warrantor Arrest
Warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.
(2) Difference between Summons and Warrant. Summons is an order to the person to be summoned.
Warrant is not an order to the person to be arrested. Therefore a person can be punished for disobedience of a summons. But he cannot be punished for a disobedience of a warrant.
Court may direct Security to be taken.
(1) The Issuing Court 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; and
(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.
(1) Warrant to whom directed.
Warrant shall ordinarily be directed to one or more police-officer, and when issued by a Presidency Magistrate, shall always be so directed; but any other 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) Warrant addressed to more than one person. May be executed by all or by any one or more of them.
(1) Warrant may be directed to Land holder, farmer, or manager of land,
for the arrest of (l)any escaped convict, (2) proclaimed offender, or (3) person who has been accused of a non-bailable offence, and who has eluded persuit.
(2) Who shall sign it and execute it, if the person is on the land under his charge.
(3) On arrest the person shall be made over to the nearest police station.
A police officer to whom a warrant has been addressed may endorse it on to another police officer to execute.
Arresting party shall notify the substance of the warrant to the person arrested.
Subject to the provisions of Section 76 as to Security, the arresting party shall without unnecessary delay, bring the person arrested before the Court before which he is required to produce him.
Warrant of arrest may be executed at any place in British India.
When warrant is to be executed outside the local limits of the jurisdiction of the Court issuing the same, such Court may, instead of directing such warrant to a police officer, forward the same by post or otherwise to any Magistrate, or District Superintendent of Police, or the Commissioner of Police in a Presidency town, within the local limits of whose jurisdiction it is to be executed.
(2) The Magistrate or D. S. P., .or Commissioner whom such warrant is so forwarded, shall endorse his name thereon, and if practicable, cause it to be executed in manner herein before provided, within the local limits of his jurisdiction.
When a warrant directed to a police-officer is to be executed outside the jurisdiction, he shall ordinarily take it for endorsement either to a Magistrate or to a police officer not below the rank of an officer in charge of a station within the limits within which 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.
(3) If the obtaining of endorsement is likely to cause delay, it may be executed without endorsement.
When arrest is made outside, the person arrested shall be taken to the Magistrate, D. S. P., Commissioner of Police.
They shall then direct his removal in custody to the Court issuing the warrant.
Effect of Non-execution of the warrant of arrest. Section 87
If the person is absconding, such Court may publish a written proclamation requiring him to appear at a specified place and at a specific time not less than 30 days from the date of publishing such proclamation.
(2)How to publish the Proclamation.
(a) It shall be read in the place in which he ordinarily resides.
(c) A copy of it affixed to the Court house. Section 88
The Court issuing a proclamation under Section 87 may at any time order the attachment of any property movable or immovable or both, belonging to the proclaimed person.
(2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made.
Section 89 Restoration of attached property
If the person appears within 2 years after the date of the order of attachment and satisfies (1) That he did not abscond or conceal himself and (2) that he had not such knowledge of the proclamation as to enable him to appear within time
Against whom can Warrant be issued ?
Ordinarily, one would imagine, that it can be issued only against the accused. But that is not so. The law is that warrant can be issued against any person against whom a summons can be issued except a juror or assessor.
This means that a warrant may be issued even against a witness.
Safeguard for continued presence of the Parties called before Court by due process
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.
When any person who is bound by any such bond does not appear, the officer presiding may issue a warrant directing that such person be arrested and produced before him. Besides, the necessity of having before the Court the complainant, the accused and the witnesses. There is also the necessity having before the Court the Corpus deticti, which are the subject matter of the accusation or things which are necessary to prove the accusation.
Forged document, person confined
We must therefore consider the rules relating to the production of these.
1. production oF A DOCUMENT OR A THING.
Whenever any Court considers the production of any document or thing is necessary or desirable for the purpose of investigation, inquiry or trial or other proceedings before such Court, he may issue a summons to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, at the time or place stated in the summons.
(2) When the summons is merely to produce, he need not attend. Sufficient if he sends it.
(Earlier part is not founded.)
Officer or Judge or in his presence and hearing under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge.
In cases in which the evidence is not taken down in writing by the Magistrate or Sessions Judge, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes; and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record.
Sessions Judge and Magistrate shall also record remarks regarding demeanour of the witnesses whilst under examination.
As the taking down of the evidence of each witness is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Sessions Judge may, instead of correcting the evidence, make a memorandum thereon of the objections made to it by the witness and shall add such remarks as he thinks necessary.
Omission to read over is an illegality.
II.before presidency magistrates
Appealable cases and non-appealable cases.
In appealable cases
The Magistrate shall take down the evidence of the witnesses with his own hand, or cause it to be taken down in writing from his dictation in open Court.
All evidence so taken down shall be signed by the Magistrate and shall form part of the record.
The Magistrate shall make a memorandum of the substance of the examination of the accused. Such memorandum shall be signed by the Magistrate with his own hand, and shall form part of the record.
In non-appealable cases
It shall not be necessary for a Presidency Magistrate to record the evidence or frame a charge.
Section 359,362 (2) Mode of recording Evidence
Evidence shall ordinarily be taken down in the form of a narrative, though the Court may in its discretion take down, or cause to be taken down, any particular question and answer.
Exception: Examination of the accused. Section 364
The whole of such examination, including every question put to him and every answer given by him, shall be recorded in full.
This does not apply to the record of the examination of the accused by the High Court.
II. record in summary trials Section 260
1. The District Magistrate.
3. Any Bench Magistrate invested with 1st class powers and especially empowered in this behalf by the Local Government may, if he thinks fit, try in a summary way all or any of the following offences:
(a) Offences not punishable with death, transportation or imprisonment for a term exceeding six months and certain other offences mentioned in the Section.
Cases which can be tried summarily may be appealable or nonappealable.
But they shall enter in such form as the Local Government may direct the following particulars.
(a) The serial number.
(d) The name of the complainant (if any).
(e) The name, parentage and residence of the accused.
(g) The pica of the accused and his examination if any.
(j) The dale on which the proceedings terminated.
In appealable cases Section 264
Before passing sentence the Court [f1] shall record a judgement embodying the substance of the evidence and also the particulars required in non-appealable cases.
Such judgement shall be the only record in appealable cases.
The judgement in every trial in any Criminal Court shall be pronounced, or the substance of such judgement shall be explained;
Provided that the whole shall be read if requested by the parties.
Every judgement unless otherwise provided shall be written by the presiding officer of the Court or from his dictation.
(1) Point or points for determination
(2) The decision thereon and
(4) Shall be dated and signed by the Presiding officer in open Court at the time of pronouncing it, and where it is not written by the Presiding officer with his own hand, every page of such judgement shall be signed by him
(6) When the conviction is under the 1. P. C. and it is doubtful under which of the two parts of the same section of that Code the offence falls, the Court shall directly express the same and pass judgement in the alternative.
(7) If it be a judgement of acquittal it shall state the offence of which he is acquitted and direct that he be set at liberty.
(8) If the accused is convicted of offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall give reasons.
Provided that in trials by jury, the Court need not write a judgement but the Court of Session shall record heads of charge.
When sentence of deathsentence shall direct that he be hanged by the neck till he is dead.
Section 369 Alteration of judgement
Save as otherwise provided by the Code or other law or in the case of the High Court, no Court, when it has signed its judgement, shall alter or review the same except to correct a clerical error.
(Even the High Court has no power.)
Section 370 Judgement by a Presidency Magistrate
Instead of recording a judgement in the above, a Presidency Magistrate shall record the following particulars :
(a) Serial number.
(i) In all cases, where the sentence is imprisonment or fine exceeding 200 or both, a brief statement of reasons for the conviction.
Copy of judgement to be given to accused without delay In cases other than summons cases it shall be given free of cost.
In trials by jury, a copy of heads of charge by the jury shall be given to him.
In sentence of death, shall inform the accused of the period of limit for appeal.
Court of Session to send copy of finding and sentence to the District Magistrate.
Criminal proceedings other than trial of an offender
II. Those dealing with the enforcement of certain obligations. Family obligation and public nuisance.
III. Those dealing with the maintenance of public peace.
1. THOSE DEALING WITH THE PUBLIC ASSEMBLYKEEPING OF PEACE AND MAINTAINING ORDER.
It is better to prevent crime than only to punish it when it is committed.
This theory is not accepted universally. Attempt to prevent crime may involve undue interference in the liberty of the individual.
English theory is inclined towards the view that the state should intervene only when the conduct of an individual amounts to a crime.
On the other hand, the Indian Law takes a different view. E. g. Press Act, Public Meetings Act.
That being so, the Criminal Procedure Code enacts certain Sections to enable the Criminal Courts to prevent the commission of offences. (Page left blanked.)
Chapter VIII deals with offences against public tranquillity.
(Page left blanked.)
The Court Contemplates the following usage fit for such preventative or anticipatory action.
1. There are quarrelsome people in every country in the world, and there are some quarrels which may lead to violence and even to serious crime.
2. In the same way certain forms of propaganda, if carried on without any restraint, may induce ignorant persons to do harmful things, they may be circulating falsehoods, or even more deadly half-truths, cause ignorant persons to believe, to act upon the belief, that malicious designs are being entertained which in fact are not entertained by any one.
3. Again there are those who prefer a life of idleness, varied by occasional crime when detection seems unlikely, to one of honest work. There are also persons who live mainly on the proceeds of crime committed by themselves, or on a share of the proceeds of crime committed by others, whom they help to escape detection, or assist by setting up an Organisation which affords its supporters both opportunity to dispose of the proceeds of their dishonesty and a fair prospect of immunity from punishment.
4. Habitual Offenders. Section 183
9. Where an offence is committed while the offender is on a journey or voyage, the offence may be inquired into or tried by a Court through or into the local limits of whose jurisdiction
the offender or | passed in the
the person against whom or | course of that
the thing in respect of which the offence was committed | journey or voyage