Pre-trial Procedure: Steps to Ensure Accused’s Presence at the Trial

Importance of procuring accused’s presence at trial

Fair trial requires that the trial proceedings are conducted in the presence of the accused and that he is given a fair chance to defend himself. Further, in case the accused is found guilty at the conclusion of the trial, he must be available in person to receive the sentence passed on him.The presence of the accused at the trial can well be ensured by simply arresting and detaining him during trial. However, this course, though apparently simple and expedient, should not be resorted to in every case. It may be stated as a broad principle that the liberty of a person should not be taken away without just cause. If the presence of the accused at the trial cannot be procured except by arrest and detention, the accused should by all means be arrested and detained pending his trial; however, if his presence can be reasonably ensured otherwise than by his arrest and detention, the law ought not to deprive him of his liberty. Moreover, the detention of the accused prior to or pending trial is likely to cause direct or indirect obstructions in the preparation of his defence and would not therefore be quite conducive to a fair trial. Consequently, the provisions regarding the issue of a summons, or of a warrant of arrest, and the provisions relating to arrest without warrant (or for that matter even provisions regarding release of the arrested accused on bail) are all aimed at ensuring the presence of the accused at his trial without unreasonably depriving him of his liberty.

How to procure the presence of the accused at the trial

The Code contemplates mainly of two methods of procuring the attendance of the accused at his trial, i.e. either by issuing a summons to him, or by his arrest and detention. Broadly speaking, whether one method is to be preferred to the other in a given case is essentially a decision to be taken by a Judicial Officer. The judicial discretion in this matter is however guided, and to an extent controlled, by the provisions of the Code.The Code classifies all criminal cases into summons cases and warrant cases. A “warrant case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;1 and a “summons case” means a case relating to an offence, and not being a warrant case.2 Obviously the basis of the classification is the seriousness of the offence to which the case relates. A warrant case relates to a serious offence while a summons case relates to a comparatively less serious crime. Therefore the trial-procedure prescribed for a warrant case is much more elaborate than that provided for summons case.3The same classification based on the seriousness of the crime has been used to make the initial decision as to whether the accused is to be summoned to attend his trial or whether he is to be arrested and detained for the trial. In a summons case, the consequences of the trial being less serious to the accused than those in a warrant case, it is relatively less probable that he would abscond and disobey the summons issued to him to attend his trial. This is particularly so as the intentional omission to attend the court in obedience to a summons has been made an offence punishable under Section 174, Penal Code, 1860 (IPC) with six months’ imprisonment. On the other hand, if the offence with which the accused is charged is punishable with severe punishment (as in a warrant case) the risk of the accused not obeying the summons and of absconding is greater. The Code therefore gives the general direction that in a summons case a summons is to be issued to The Code contemplates mainly of two methods of procuring the attendance of the accused at his trial, i.e. either by issuing a summons to him, or by his arrest and detention. Broadly speaking, whether one method is to be preferred to the other in a given case is essentially a decision to be taken by a Judicial Officer. The judicial discretion in this matter is however guided, and to an extent controlled, by the provisions of the Code.The Code classifies all criminal cases into summons cases and warrant cases. A “warrant case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;1 and a “summons case” means a case relating to an offence, and not being a warrant case.2 Obviously the basis of the classification is the seriousness of the offence to which the case relates. A warrant case relates to a serious offence while a summons case relates to a comparatively less serious crime. Therefore the trial-procedure prescribed for a warrant case is much more elaborate than that provided for summons case.3The same classification based on the seriousness of the crime has been used to make the initial decision as to whether the accused is to be summoned to attend his trial or whether he is to be arrested and detained for the trial. In a summons case, the consequences of the trial being less serious to the accused than those in a warrant case, it is relatively less probable that he would abscond and disobey the summons issued to him to attend his trial. This is particularly so as the intentional omission to attend the court in obedience to a summons has been made an offence punishable under Section 174, Penal Code, 1860 (IPC) with six months’ imprisonment. On the other hand, if the offence with which the accused is charged is punishable with severe punishment (as in a warrant case) the risk of the accused not obeying the summons and of absconding is greater. The Code therefore gives the general direction that in a summons case a summons is to be issued to the accused in the first instance and in a warrant case a warrant of arrest is normally to be issued for the arrest of the accused. The Code, however, gives discretion to the Judicial Officer to depart from this general rule if the circumstances so demand in a particular case. The relevant provisions in this connection are contained in Section 204 and Section 87 which are as follows:

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be —(a) a summons case, he shall issue his summons for the attendance of the accused, or(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time Page No 45 before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.…(5) Nothing in this section shall be deemed to affect the provisions of Section 87.

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 such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

It will be seen from Section 204(1) that while in a summons case the Magistrate concerned shall issue a summons, in a warrant case he may issue a warrant or (if he thinks fit) a summons. This is further indicated by Section 87 which, while empowering a court to issue a warrant in lieu of, or in addition to summons in certain circumstances, requires the court to record reasons for doing so.Questions may arise as to whether failure to record reasons would vitiate the warrant and make the consequent arrest illegal.4 Even if one takes the view that the provision in Section 87 for recording reasons is only directory and not mandatory, the object of this requirement is quite obvious. It is “to draw attention to the consideration that a warrant ought not to be issued where a summons can serve the purpose, and that care should be exercised by the court to satisfy itself that upon the materials before it, it was necessary to issue a warrant”.5

Summons to the accused and its service

(a) Meaning and form.— A summons in case of an accused person is an authoritative call to the accused person to appear in court to answer to a charge of an offence. The manner in which a summons is to be prepared is described in Section 61, which is as follows:

Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court.

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. …

The summons issued to the accused should contain adequate particulars of the offence charged i.e. the day and time when, and the place where the alleged offence was committed. If these details are not given in the summons it can be disregarded; and if any further proceedings are taken thereon, and are objected to by the accused, such proceedings would be considered as invalid

(b) Mode of service.— Sections 62 to 67 provide for different modes of effecting the service of the summons in diverse situations and conditions. Those sections are 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 therefor on the back of the other duplicate.

Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal 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.Page No 47 Explanation.— In this section, “corporation” means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860 (21 of 1860).The Branch Manager is a local manager and if he has been served, the service, shall be deemed to have been effected on the company itself.7

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.Explanation.— A servant is not a member of the family within the meaning of this section.

64. If service cannot by the exercise of due diligence be effected as provided in Sections 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.

A strict construction of this section may mean that the second part of the section cannot be applied unless the affixture mentioned in the first part is attempted or made. According to the Kerala High Court such a restricted construction was not warranted. In case of a person not “ordinarily residing” in India and actually working abroad, service of summons under Section 62 or 64, or first part of Section 65 is not possible. But by construing liberally the second part of Section 65 and exercising the very wide discretion given by the words “order fresh service in such manner as it considers proper”, the court could utilise that part of the section for service of summons in the abovementioned contingency. In deciding as to what is the proper manner of service under the second part of Section 65, the court is not fettered by the limitations found in Section 62(1), and the court can seek assistance of public servants working in Indian Embassies abroad in serving summons on a person actually working abroad.

66. (1) Where the person summoned is in the active service of the Government, 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 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.

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 Page No 48 duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.

(c) Proof of service in particular cases.— In cases where the summons is served outside the jurisdiction of the court issuing the summons, or in cases where the serving officer is not present at the hearing of the case, a special procedure for proving the service of summons in such cases is provided by Section 68 with a view to avoid delay that might be caused in pursuing the normal mode of proving service of summons. Section 68 is as follows:

68. (1) When a summons issued by a Court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, 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 Section 62 or Section 64) 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 copy of the summons and returned to the Court.

Service of summons could be effected by Registered Post and in case of refusal to accept, an endorsement of the postal authorities that the person did not accept it, should be taken as valid service.9