Notes on Acts and Laws
_____________________________________________
Contents
PART III Continued...
Section
68 1.
Summons to appear and II. Warrant to arrest
Section
68
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
(1)
Summons shall if, practicable, be served personally
on the persons summoned, by delivering or tendering to him one of the-duplicates
of the summons.
(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.
Section
70
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.
Section
71
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.
Section
72
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.
Section
73
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.
Section
74
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.
(2)
The affidavit
mentioned in this section may be attached to the duplicate of the summons and returned
to the Court.
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
Section
75
(1)
Shall be in writing,
signed by the Presiding
Officer,
or in the
case of a Bench of Magistrates, by any member of such Bench and shall bear the seal of the
Court.
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.
Section
76
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.
Section
77
(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.
Section
78
(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.
Section
79
A
police officer to whom a warrant has been addressed may endorse it on to another police
officer to execute.
Section
80
Arresting
party shall notify the substance of the warrant to the person arrested.
Section
81
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.
Section
82
Warrant
of arrest may be executed at any place in British India.
Section
83
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.
Section
84
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.
Section
85
When
arrest is made outside, the person arrested shall be taken to the Magistrate, D. S. P.,
Commissioner of Police.
Section
86
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.
(b) It shall be affixed to some conspicuous part of the
house in
which he 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—
Section
90
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.
Provided:
(1)
The
Court sees
reason to believe before the time for appearance
that he has absconded or will not obey the summons ; or
(2)
That at such time
he fails to appear, and the summons is shown to have been duly served
to enable him to appear
in time but he does not appear.
Safeguard
for continued presence
of the Parties called before Court by due process
Section
91
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.
Section
92
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.
Section
94
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 found—ed.)
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.
Section
363
Sessions
Judge and Magistrate shall also record remarks regarding demeanour of the witnesses whilst
under examination.
Section
360
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
Section
362
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.
2. Magistrate
1st class especially empowered in this behalf by the Local Government.
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.
Section
263
But
they shall enter in such form as the Local Government may direct the following
particulars.
(a) The
serial number.
(b) The
date of the Commission of the offence.
(c) The
date of the Report or Complaint.
(d) The
name of the
complainant (if any).
(e) The name, parentage and residence of the accused.
(f) The
offence complained
off and the
offence
(if any proved) and the value of the property in respect of which the offence
is committed.
(g) The
pica
of the accused and his examination if any.
(h) The
finding and in conviction
brief statement
of the reasons for it.
(i) Sentence
or other
final order; and
(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.
Judgement
Section
366
The
judgement in every trial in any Criminal Court shall
be pronounced, or the substance of such judgement shall be explained;
(1)
In open Court, either
immediately
or in subsequent date to be notified.
Provided that the whole shall be read if
requested by the parties.
(2)
The accused shall, if in custody, be brought up and if not in custody be brought up to hear
judgement delivered.
Except
where his personal attendance
has been dispensed with and the sentence is of fine only or he is acquitted.
N. B.— (3) Judgement shall not be
read if delivered
in absence.
Section
367
Every judgement unless otherwise provided shall be written by the presiding officer of the Court or
from his dictation.
Shall
contain
(1)
Point or points for determination
(2)
The decision thereon and
(3)
The reasons
for the
decision
(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
(5)
It shall specify the offence (if any) of which, and the Section of the I. P. C.
or other
law under
which the accused is convicted, and the punishment to which he is sentenced.
(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.
Section
368
When
sentence of death—sentence 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.
(b)
The
date of the commission of offences.
(c)
Name of the complainant (if any).
(d)
Name
of the accused and (except in the case of European British subject) his percentage and
residence.
(e)
The
offence complained of or proved.
(f)
Plea
of the accused and his exam (if any).
(i)
In
all cases, where the sentence is imprisonment or fine exceeding 200 or both, a brief
statement of reasons for the conviction.
Section
371
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.
Section
373
Court
of Session to send copy of finding and sentence to the District Magistrate.
Criminal
proceedings other than trial of an offender
I.
Those dealing with keeping of peace and maintaining
good order.
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 ASSEMBLY—KEEPING 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.
E. g.— English law of sedition, assembly.
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 blank—ed.)
***
Chapter
VIII deals with offences against public tranquillity.
(Page
left blank—ed.)
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