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    Friday, 17 February 2017

    Accused person be compelled to appear before the court

    Compelling the attendance of an accused before a court of law has been prescribed in the code of criminal procedure, it is very important to act in accordance with their under mentioned sequence and order , otherwise negative effects on the case may not be ruled out.

    Following are the modes to be adopted by the court to compel appearance of the accused.
    1. Summon ( section 68 )
    2. Warrant  ( section 75 )
    3. Proclamation ( section 87 )

    4. Attachment of property ( section 88 )

    1. Summon ( section 68 )
    When the court tries a criminal case and if it thinks that the case can be tried under the law, it issues summons to compel attendance of the accused or a witness or any person in possession of a material evidence  with the direction to submit written reply before the court. The summons is an order of the court to either party of the case calling for his explanation on a fixed date and time. Summon is issued under the seal of the court sign by the presiding office of the court.

    Essentials of a summon
    Following are the essential of summon

    1. It must be written
    2. It should bear the signature of the presiding officer of the court or any other person authorized by the court
    3. Nature of the offence must be mentioned thereupon
    4. The place where the offence was committed should be mentioned
    5. The point or question which the court intends to put to the accused must be mentioned therein
    6. The date and time required for appearance of the accused must be stated.
    7. It should also be mentioned whether accused should appear personally or through counsel.
    8. The name and place of the court must be mentioned
    9. The particular of accused such as full name, parentage, residential address, etc should be stated in the summon
    10. A clear declaration for not leaving the territorial jurisdiction without permission of such court should also be mentioned.

    Service of the summon
    According to section 69 the summons as far as is practicable should be served in duplicate upon the accused personally through process server of the court in case of non practicable it can be served through registered post . the person who received the summons should sign a receipt in case of absence of accused  the summon should sign by any adult member of family of the accused on behalf of the accused.

    2.Warrant  ( section 75 )
    There comes a warrant where the process in the form of summons fails to compel the attendance of an accused or a witness. A warrant is an always issued as an order of the court in the name of concerned station house officer whereby such officer is directed to arrest the required person and produce him before the court on a date and time specified in such warrant

    Kinds of warrant

    Following are the kinds of warrant
    1. Warrant for arrest or attendance

    2. Search warrant

    Warrant for arrest or attendance
    According to section 75 , this is such an order of the court whereby the concerned SHO is directed to arrest the person named in the warrant and produce him before the court at the place , time and date specified in such warrant.

    Following are the ingredients of an arrest warrant. 

    1. Name of the court issuing it must me mentioned
    2. It must bear the signature of the presiding officer of the court along with the seal of the court
    3. It must carry full particular of the person to be arrested

    4. Brief description of the offence for which the arrest of the accused is required should be mentioned

    How long a warrant remain in force
    According to sub section 2 of section 75 a warrant of arrest shall remain in force until

    A) It is cancelled by the court which issued it under the law

    B) It is executed and the person is arrested.

    Difference between bailable and non bailable warrant
    Every warrant issued by the court is not bailable . every court is authorized to issue bailable warrant for arrest of any required person keeping in view the facts of the case.

    For bailable warrant, it is mandatory for the court to mention on the back of such warrant that,
    a) Sufficient number of sureties for his attendance
    b) The sum for which the sureties and the person for whose arrest such warrant is issued, are to be respectively bound

    c) The accused must be produced before the court on the specified time and date.

    2. search warrant
    Where the court of competent jurisdiction has reason to believe that the person in whose name a summons of the court or order for production of any material or document is issued, will not appear or produce such material or document . in this situation, the court may issue search warrant.

    Condition for issuing search warrant
    The search warrant may be issued in the following circumstances
    A) When any investigation  complaint or any other proceeding is already continuing; and

    B) The court without any prejudice arrives at a conclusion that such interference is necessary for such investigation.

    3.Proclamation ( section 87 )

    When an accused could not be arrested in execution of a warrant and his presence at a specified place is not known to the court, the court may declare such person absconder, such court may publish a warrant proclamation requiring such person to appear at a place mentioned and time specified not less than thirty days from the date of publishing such proclamation.

    Procedure for issuance of proclamation

    The proclamation of the court shall be proclaimed in the following manner.

    a) The proclamation shall be read out at some open place of the area, that is town or village where such persons ordinarily reside;
    b) The proclamation shall be affixes at some conspicuous place of the house or adjacent property, where such person resides

    c) A copy of such proclamation shall also be affixes at some conspicuous part of the court.

    4.Attachment of property ( section 88 )
    The court which has already issued proclamation for compelling personal attendance of an accused, may pass an order for reattachment of movable or immovable property or both belonging to the accused, such order may be passed even before passage or lapse of time limit specified in the order for proclamation.

    Procedure for attachment 
    Following are the procedure for attachment of movable or immovable property

    Movable property or loan
    In case of movable property or loan the attachment shall be made in the following manner;
    By seizure;
    By the appointment of receiver; or
    By an order in writing prohibiting the deliver of such property to the proclaimed person or to any one on his behalf; or

    By all or any two of such methods, as the court thinks fit.

    1. Immovable property
    In case of immovable property the attachment shall be made in following manner
    a) Where property to be attached is paying land revenue to the provincial government, its attachment shall be made through the collector of the district in which such land is situated;

    In other cases;
    i) By taking possession or
    ii) By the appointment of receiver; or

    iii) By all or any two of such methods as the court deems fit.

    5. Other devices
    For the attendance of the parties before the court fax and email services can also be used by the court if needed.
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