MODULE II: ARREST, BAIL AND PRE-TRIAL PROCEEDINGS

❖ Arrest and Rights of an Arrested Person

Under Section 57/167of the CrPC, the accused must be produced before a
Magistrate within 24 hours of arrest. If the investigation cannot be concluded within
this time, a Magistrate may order for the remand of the arrested person to police
custody u/s 167 (3) of the Cr.P.C. The Magistrate should be fully satisfied that
there is good ground to remand the accused to police custody. Under Section
50 of the CrPC, the arrested person is to be informed of the particulars of the
offence or any other grounds for arrest. Further, if arrested without a warrant
for an offence which is bailable, he/she must be informed that he/she is entitled to
be released on bail. Under Section 50A of the CrPC, the arrested person is entitled
to have a person nominated by him informed about the arrest and moreover the
Magistrate is required to satisfy himself that the provisions of this Section are
complied with. The Supreme Court has also recognized the right of the arrested
person to have access to a lawyer in Nandini Satpathy [(1978) 2SCC 424] and DK
Basu [(1997) 1 SCC 410]. Under Section 51 CrPC, a person who is arrested may
be searched and a list shall be prepared of any articles found on his person. This
personal search memo is especially important if there is any allegation of recovery
of incriminating material from the person of the accused.

Under Section 54 CrPC, the arrested person can request that he/she be examined
by a medical practitioner if the examination of his person will either disprove the
commission of the offence by him, or will prove the commission of any offence
against his body by another person. Under Section 53 and 53A CrPC, the police
can send the arrested person for medical examination.

“Arrest” means:

“a seizure or forcible restraint; an exercise of the power to deprive a person of

his or her liberty; the taking or keeping of a person in custody by legal authority,
especially, in response to a criminal charge.” [Legal Dictionary by Farlex]

The purpose of an arrest is to bring the arrestee before a court or otherwise secure
the administration of the law. An arrest serves the function of notifying the
community that an individual has been accused of a crime and also may admonish
and deter the arrested individual from committing other crimes. Arrests can be
made on both criminal charges and civil charges, although civil arrest is a drastic
measure that is not looked upon with favor by the courts. The federal Constitution
imposes limits on both civil and criminal arrests.

ARREST HOW MADE:

Section 46 of Criminal Procedure Code (hereinafter Cr.P.C) –

(1) In making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade
the arrest, such police officer or other person may use all means necessary to effect
the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not
accused of an offence punishable with death or with imprisonment for life.

[(4) Save in exceptional circumstances, no woman shall be arrested after sunset and
before sunrise, and where such exceptional circumstances exist, the woman police
officer shall, by making a written report, obtain the prior permission of the Judicial
Magistrate of the first class within whose local jurisdiction the offence is committed
or the arrest is to be made.] {Ins. by Act 25 of 2005, S. 6 (w.e.f 23-6-2006)}

ARREST means a curtailment of personal liberty, for legal purposes. Arrest means
preventing a person from having free movement by applying the authority under
law.

Who can arrest

: 1. A police officer may arrest without a warrant under Cr. P.C. Sections 41 (1) to
151; under a warrant under Sections 72 to 74; under the written order of an
officer in charge under Sections 55 and 157; under the orders of magistrate u/s
44 and in non cognizable offence u/s 42 Cr. P.C.
2. A superior officer u/s 36 Cr. P.C. 3. An Officer-in-Charge of a Police Station
u/s 42 (2) and 157 Cr. P.C. 4. A magistrate u/s 44 Cr. P.C. 5. A military officer u/s
130 and 131 Cr. P.C. 6. A private person without warrant u/s 43 Cr. P.C., with
warrant u/s 72 and 73, under order of a Police officer u/s 37 and under order of
a magistrate u/s 37 and 44 Cr. P.C. and also 60 (1) Cr. P.C.

Powers of the Police to arrest : Sections 41, 42, 151 Cr. P.C. and a Police officer
may arrest without warrant u/s 41 Cr. P.C. in the following conditions :- a. Who has
been concerned in any cognizable offence b. Who has in possession, without, lawful
excuse, of any house breaking weapon c. Who has been proclaimed as an offender
either under Cr. P.C. or by order of the State Govt. d. Who is in possession of any
stolen property e. Who obstructs a police officer while in the execution of his duty
or who has escaped, or attempts to escape, from lawful custody f. Who is
reasonably suspected of being a deserter from any of the Armed forces of the
Union g. Who has been concerned in any law relating to extradition h. Who, being
a released convict commits a breach of any rule made under sub-section (5) of
Section 356 Cr. P.C. (i) For whose arrest any requisition has been received from
another police officer specifying the person to be arrested and the offence and other
cause for which the arrest is to be made.
RIGHTS OF ARRESTED PERSON:

Article 22 of the Constitution provided certain fundamental rights for the arrested
persons –

a. Right to know the grounds of his arrest

b. Right to consult the lawyer of his choice

c. Right to be defended through a counsel d. Right to be produced before the

magistrate within 24 hours of arrest

e. Right not to be detained beyond 24 hours

f. Right to a corresponding duty of the police officer to procure a direction from the

Magistrate if the detention is needed beyond 24 hours. In a JUDGEMENT the

Supreme Court of India recognised some more rights of an arrested person under
Articles 21 and 22 (2) of the Constitution of India – g. Right to communicate the
information of arrest to a friend, relative or well wisher.

h. Right to consult a lawyer

i. Right to be informed about his right to seek information to relative friends, well
wisher through the police j. Right to a corresponding duty that a police officer has
to record the details of the person to whom the information about the arrest is
given, in a diary.

Besides, the arrested person must be produced before a registered medical officer
for treatment and checkup immediately after arrest.

There are two types of rights of arrested person: -

(i) At the time of arrest

(ii) At the time of trial

In India accused have more rights as compared to victim: -

(a) Right to be informed of ground of arrest.

Section 50 (1) of Cr. P.C.: Every police officer or other person arresting any person
without warrant shall forthwith communicate to him full particulars of the offence
for which he is arrested or other grounds for such arrest.

Object: – It is one of the principles of natural justice.

(b) Obligation of person making arrest to inform about the arrest etc. to a nominated
person.

Section 50 A of Cr. P.C.: [(1) Every police officer or other person making any arrest
under this Code shall forthwith give the information regarding such arrest and place
where as may be disclosed or nominated by the arrested person for the purpose of
giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section

(1) as soon as he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such form as
may be prescribed in this behalf by the State Government.

(4) It shall be the duty of the Magistrate before whom such arrested person
produced, to satisfy himself that the requirements of sub-section (2) and sub-section
(3) have been complied with in respect of such arrested person.]

(c) Right to be informed of right to bail.

Section 50 (2) of Cr. P.C.: Where a police officer arrests without warrant any
person other than a person accused of a non-bailable offence, he shall inform the
person arrested that he is entitled to be released on bail and that he may arrange for
sureties on his behalf.

(d) Right to be produced before the Magistrate without delay.

Section 56 of Cr. P.C.: Person arrested to be taken before Magistrate or officer in

charge of police station. –A police officer making an arrest without warrant shall,
without unnecessary delay and subject to the provisions herein contained as to bail,
take or send the person arrested before a Magistrate having jurisdiction in the case,
or before the officer in charge of a police station.

(e) Right of not being detained for more than twenty-four hours.

Section 76 of Cr. P.C.: Person arrested to be brought before Court without delay. –
The police officer or other person executing a warrant of arrest shall (subject to the
provisions of

Section 71 as to security) without unnecessary delay, bring the person arrested

before the Court before which he is required by law to produce such person:
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive
of the time necessary for the journey from the place of arrest to the Magistrate’s
Court.

(f) Right of not being detained for more than twenty-four hours without judicial
scrutiny.
Section 57 of Cr. P.C.: No police officer shall detain in custody a person arrested
without warrant for a longer period than under all circumstances of the case is
reasonable, and such period shall not, in the absence of special order of a
Magistrate under section 167, exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate’s Court.

Arrest has far reaching consequences; the social status and dignity of an individual
suspect becomes at stake, even his discharge cannot blot out the stigma
consequent upon arrest. There are financial implications for the arrested person
and his family. The public suffers its repercussion as we. Naturally, it needs to be
ensured that arrests are not effected in a frivolous manner and that the rights of
arrested persons are fully guaranteed. Towards this effect, The Cr.P.C. lays down
safeguards such that the rights of persons enshrined in Art. 21 and 22(1) are not
violated. However, it has been some time before the statutory provisions have been
understood in all its implication and they have been given effect to. Mostly the
criminal administration system ignores such safeguards and the judiciary for quite
some time has been lax about ensuring the proper observance of prisoner’s rights.
So there have been many later declarations and statutory enactments which reaffirm
the faith in the rights of arrested persons. The endeavor is to look into various rights
of arrested persons, enshrined in statutes, conventions and judicial pronouncements

❖ Provision for Bail under the Code

The system that governs the status of individuals charged with committing crimes,
from the time of their arrest to the time of their trial, and pending appeal, with the
major purpose of ensuring their presence at trial.

In general, an individual accused of a crime must be held in the custody of the court
until his or her guilt or innocence is determined. However, the court has the
option of releasing the individual before that determination is made, and this
option is called bail. Bail is set by the judge during the defendant's first appearance.
For many misdemeanors, bail need not be set. For example, the defendant may be
released on the issuance of a citation such as a ticket for a driving violation or when
booked for a minor misdemeanor at a police station or jail. But for major
misdemeanors and felonies, the defendant must appear before a judge before bail
is determined.

The courts have several methods available for releasing defendants on bail. The
judge determines which of these methods is used. One alternative is for the
defendant to post a bail bond or pledge of money. The bond can be signed by a
professional surety holder, the accused, or the family and friends of the accused.
Signing the bail bond is a promise that the defendant will appear in the specified
criminal proceeding. The defendant's failure to appear will cause the signers of
the
bond to pay to the court the amount designated. The amount of bail is generally an
amount determined in light of the seriousness of the alleged offense.

A defendant can also be released upon her or his own recognizance, which is the
defendant's written, uninsured promise to return for trial. Such a release occurs only
if the suspect has steady employment, stable family ties, and a history of residence
in the community. Willful violation of the terms of a personal recognizance
constitutes a crime.

Other conditions may also be set regarding the release of the defendant. The Bail
Reform Act of 1984 (18 U.S.C.A. §§ 3141–3150) provided for many additional
conditions that do not rely upon finances and that reflected current trends to move
away from financial requirements for freedom. These conditions came about, in
part, owing to concerns regarding the discriminatory nature of bail toward the poor.
The Bail Reform Act allows for conditional releases dependent upon such
circumstances as maintaining employment, meeting curfews, and receiving
medical or psychiatric treatment.

Section 436 Cr. P.C. provides that when a person is arrested in a bailable case, bail
is a right to the arrested person. Section 437 Cr. P.C. – It relates to non bailable
offences. Section 438 Cr.
P.C. directions for grant of bail to person apprehending arrest. When any person
has reason to believe that the may be arrested on an accusation of having committed
a nonbailable offence, he may apply to the High Court or Court of Sessions for
a direction under this section, and that Court may, if it thinks fir, direct that in the
event of such arrest, he shall be released on bail. Section 439 Cr. P.C. – Special
powers of High Court or Court of Sessions regarding bail. The directions of the
Supreme Court should strictly be followed in the matter of arrest of any person
under any law

Anticipatory Bail

Section 438 of the CrPC enables the superior courts to grant anticipatory bail.
An anticipatory bail can be applied for when the person has reason to believe that
he/ she may be arrested. An application for anticipatory bail can be made to the
Sessions Court, the High Court or even the Supreme Court. However, normally it
is to be presumed that the Court of Sessions would be first approached for grant of
anticipatory bail. The court may consider the following aspects when considering an
application for anticipatory bail:

(i) the nature and gravity of accusation;

(ii) the antecedents of the applicant;

(iii) The possibility that the accused may flee from justice; and

(iv) The accusation appears to be aimed at humiliating the applicant.

The CrPC has not given any test or criterion to determine cognizable or non-
cognizable offences. The First Schedule of CrPC, however, indicates that all
offences punishable with imprisonment for not less than three years are taken as
serious offences and are treated as cognizable. Offences such as murder, robbery,
dacoity, rape and kidnapping are cognizable offences. Offences relating to marriage
including bigamy and adultery are punishable with more than five years
imprisonment, yet they have been included in the category of non-cognizable
offences. Other offences though serious have been considered as non-cognizable
only.

(i) such person shall not be so released if there appears reasonable grounds for
believing that he has been guilty of an offence punishable with death or
imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and
he has been previously convicted of an offence punishable with death,
imprisonment for life or imprisonment for seven years or more, or he had been
previously

convicted on two or more occasions of a non-bailable and cognizable offence.

(iii) Provided that the Court may direct that a person referred to in clause (1) of clause

(ii) be released on bail if such person is under the age of sixteen years or is a woman
or is sick or infirm:

(iv) Provided further that the Court may also direct that a person referred to in clause

(ii) be released on bail if it is satisfied that it is just and proper so to do for any other
special reason:

(v) Provided also that the mere fact that an accused person may be required for
being identified by witnesses during investigation shall not be sufficient ground for
refusing to grant bail if he is otherwise entitled to be released on bail and gives an
undertaking that he shall comply with such directions as may be given by the Court.

(vi) If it appears to such officer or Court at any stage of the investigation, inquiry or
trial, as the case may be, that there are no reasonable grounds for believing that the
accused has committed a non-bailable offence, but there are sufficient grounds
for further inquiry into his guilt, the accused shall, subject to the provisions of

Section 446A and pending such inquiry, be released on bail, or, at the discretion
of such officer or Court, on the execution by him of a bond without sureties for his
appearance as hereinafter provided

(vii) When a person accused or suspected of the commission of an offence

punishable with imprisonment which may extend to seven years or more or of
an offence under Chapter VI,
Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement
of, or conspiracy or attempt to commit, any such offence, is released on bail under
sub-section (1), the Court may impose any condition which the Court considers
necessary,-

(a) in order to ensure that such person shall attend in accordance with the conditions
of the bond executed under this Chapter, or

(viii) in order to ensure that such person shall not commit an offence similar to the
offence of which he is accused or of the commission of which he is suspected, or
otherwise in the interests of Justice.

(ix) An officer or a Court releasing any person on bail under sub-section (1)
or subsection (2), shall record in writing his or its reasons or special reasons,
for so doing.
(x) Any Court which has released a person on bail under sub-section (1) or subsection

(2), may, if it considers it necessary so to do, direct that such person be arrested and
commit him to custody.

(xi) If, in any case triable by a Magistrate, the trial of a person accused of any
nonbailable offence is not concluded within a period of sixty days from the first
date fixed for taking evidence in the case, such person shall, if he is in custody
during the whole of the said period, be released on bail to the satisfaction of the
Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise
directs.

(xii) If, at any time, after the conclusion of the trial of a person accused of a
nonbailable offence and before judgment is delivered, the Court is of opinion that
there are reasonable grounds for believing that the accused is not guilty of any such
offence, it shall release the accused, if he is in custody, on the execution by him of
a bond without sureties for his appearance to hear judgment delivery.

❖ Process to Compel Appearance of Person

Summons

Form of summons—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.

Summons how served

(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 therefore on the back of the other duplicate.

Service of summons on corporate bodies and societies

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.

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)

Service when persons summoned cannot be found —

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 65.

Procedure when service cannot be effected as before provided If service cannot

by the exercise of due diligence be effected as provided in section 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.

Service on Government servant

(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. Service of summons outside local
limits

When a Court desires that a summons issued by it shall be served at any place
outside its local jurisdiction, it shall ordinarily send summons in duplicate to a
Magistrate within whose local jurisdiction the person summoned resides, or is, to
be there served.

Proof of service in such cases and when serving officer not present –

(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 of the
summons and returned to the Court. Service of summons on witness by post

(1) Notwithstanding anything contained in the preceding section of this Chapter, a

Court issuing a summons to a witness may, in addition to and simultaneously with
the issue of such summons, direct a copy of the summons to be served by registered
post addressed to the witness at the place where he ordinarily resides or carries on
business or personally works for gain

2) When an acknowledgment purporting to be signed by the witness or an

endorsement purporting to be made by a postal employee that the witness refused
to take delivery of the summons has been received, the Court issuing the summons
may declare that the summons has been duly served

Form of warrant of arrest and duration

(1) Every warrant of arrest issued by a Court under this Code shall be in writing,
signed by the presiding officer of such Court and shall bear the seal of the Court

(2) Every such warrant shall remain in force until it is cancelled by the Court which
issued it, or until it is executed

Power to direct security to be taken

(1) Any Court issuing a warrant for the arrest of any person 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

Warrants to whom directed

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but
the

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) When a warrant is directed to
more officers or persons than one, it may be executed by all, or by any one or more
of them

Warrant may be directed to any person

(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a
warrant to any person within his local jurisdiction for the arrest of any escaped
convict, proclaimed offender or of any person who is accused of a non-bailable
offence and is evading arrest

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall
execute it if the person for whose arrest it was issued, is in, or enters on, any land or
other property under his charge

(3) When the person against whom such warrant is issued is arrested, he shall be
made over with the warrant to the nearest police officer, who shall cause him to be
taken before a Magistrate having jurisdiction in the case, unless security is taken
under section 71.

Warrant directed to police officer

A warrant directed to any police officer may also be executed by any other police
officer whose name is endorsed upon the warrant by the officer to whom it is
directed or endorsed.

Notification of substance of warrant

The police officer or other person executing not a warrant of arrest shall notify the
substance thereof to the person to be arrested, and, if so required, shall show him
the warrant.

Person arrested to be brought before Court without delay

The police officer or other person executing a warrant of arrest shall (subject to the
provisions of section 71 as to security) without unnecessary delay brings the person
arrested before the Court before which he is required by law to produce such
person:
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive
of the time necessary for the journey from the place of arrest to the Magistrate's
Court.

Where warrant may be executed

A warrant of arrest may be executed at any place

in India Warrant forwarded for execution
outside jurisdiction
(1) When a warrant is to be executed outside the local jurisdiction of the Court
issuing it, such Court may, instead of directing the warrant to a police officer within
its jurisdiction, forward it by post or otherwise to any Executive Magistrate or
District Superintendent of

Police or Commissioner of Police within the local limits of whose jurisdiction it

is to be executed; and the Executive Magistrate or District Superintendent or
Commissioner shall endorse his name thereon, and if practicable, cause it to be
executed in the manner hereinbefore provided

(2) The Court issuing a warrant under sub-section (1) shall forward, along with the
warrant, the substance of the information against the person to be arrested together
with such documents, if any, as may be sufficient to enable the Court acting under
section 81 to decide whether bail should or should not be granted to the person

Warrant directed to police officer for execution outside jurisdiction -

(1) When a warrant directed to a police officer is to be executed beyond the local
jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement
either to an

Executive Magistrate or to a police officer not below the rank of an officer in charge
of a police station, within the local limits of whose jurisdiction 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, and the local police shall, if so required, assist such
officer in executing such warrant

(3) Whenever there is reason to believe that the delay occasioned by obtaining the
endorsement of the Magistrate or police officer within whose local jurisdiction the
warrant is to be executed will prevent such execution, the police officer to whom it
is directed may execute the same without such endorsement in any place beyond
the local jurisdiction of the Court which issued it.

Procedure of arrest of person against whom warrant issued

When a warrant of arrest is executed outside the district in which it was issued, the
person arrested shall, unless the Court which issued the warrant is within thirty
kilometres of the place of arrest or is nearer than the Executive Magistrate or
District Superintendent of Police or Commissioner of Police within the local limits
of whose jurisdiction the arrest was made, or unless security is taken under section
71, be taken before such Magistrate or District

Superintendent or Commissioner

Procedure by Magistrate before whom such person arrested is brought

(1) The Executive Magistrate or District Superintendent of Police or Commissioner

of Police shall, if the person arrested appears to be the person intended by the
Court which issued the warrant, direct his removal in custody to such Court:
Provided that, if the offence is bailable, and such person is ready and willing to give
bail to the satisfaction of such Magistrate, District Superintendent or Commissioner,
or a direction has been endorsed under section 71 on the warrant and such person
is ready and willing to give the security required by such direction, the Magistrate,
District Superintendent or Commissioner shall take such bail or security, as the case
may be, and forward the bond, to the Court which issued the warrant:

Provided further that if the offence is a non-bailable one, it shall be lawful for the
Chief

Judicial Magistrate (subject to the provisions of section 437), or the Sessions

Judge, of the district in which the arrest is made on consideration of the
information and the documents referred to in sub-section (2) of section 78 to release
such person on bail
(2) Nothing in this section shall be deemed to prevent a police officer from taking
security under section 71 Proclamation and attachment

Proclamation for person absconding

(1) If Any Court has reason to believe (whether after taking evidence or not) that
any person against whom a warrant has been issued by it has absconded or is
concealing himself so that such warrant cannot be executed, such Court may publish
a written proclamation requiring him to appear at a specific place and at a specified
time not less than thirty days from the date of publishing such proclamation

(2) The proclamation shall be published as follows—

(a) it shall be publicly read in some conspicuous place of the town or village in
which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or home-stead in which

such person ordinarily resides or to some conspicuous place of such town or village;
(c) a Copy thereof shall be affixed to some conspicuous part of the Court-house;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be
published in a daily newspaper circulating in the place in which such person
ordinarily resides.

Attachment of property of person absconding

(1) The Court issuing a proclamation under section 82 may, for reasons to be
recorded in writing, at any time after the issue of the proclamation, order the
attachment of any property, movable or immovable, or both, belonging to the
proclaimed person:

(2) Provided that where at the time of the issue of the proclamation the Court is
satisfied, by affidavit or otherwise, that the person in relation to whom the
proclamation is to be issued,— (a) is about to dispose of the whole or any part of
his property, or (b) is about to remove the whole or any part of his property from
the local jurisdiction of the Court, it may order the attachment simultaneously with
the issue of the proclamation

(2) Such order shall authorise the attachment of any property belonging to such
person within the district in which it is made; and it shall authorise the attachment
of any property belonging to such person without such district when endorsed by
the District Magistrate within whose district such property is situate

(3) If the property ordered to be attached is a debt or other movable property, the
attachment under this section shall be made—

(a) by seizure; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed

person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit

(4) If the property ordered to be attached is immovable, the attachment under this
section shall, in the case of land paying revenue to the State Government, be made
through the

Collector of the district in which the land is situate, and in all other cases— (a) by
taking possession; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the payment of rent on delivery of property to
the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit

(5) If the property ordered to be attached consists of live-stock or is of a perishable

nature, the Court may, if it thinks it expedient, order immediate sale thereof, and
in such case the proceeds of the sale shall abide the order of the Court

(6) The powers, duties and liabilities of a receiver appointed under this section shall

be the same as those of a receiver appointed under the Code of Civil Procedure,
1908

Other rules regarding processes

Issue of warrant in lieu of, or in addition to, summons

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
 • Power to take bond for appearance

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, or any other Court to which the case may be transferred
for trial

• Arrest on breach of bond for appearance

When any person who is bound by any bond taken under this Code to appear
before a Court, does not appear, the officer presiding in such Court may issue
a warrant directing that such person be arrested and produced before him
Provisions of this Chapter generally applicable to summons and warrants of arrest

The provisions contained in this Chapter relating to a summons and warrants, and
their issue, service and execution, shall, so far as may be, apply to every summons
and every warrant of arrest issued under this Code

❖ Process to Compel Production of Things

Summons to produce document or other thing

(1) Whenever any Court or any officer in charge of a police station considers that
the production of any document or other thing is necessary or desirable for the
purposes of any investigation, inquiry, trial or other proceeding under this Code by
or before such Court or officer, such Court may issue a summons, or such officer
a written order, to the person in whose possession or power such document or
thing is believed to be, requiring him to attend and produce it, or to produce it, at
the time and place stated in the summons or order

(2) Any person required under this section merely to produce a document or other
thing shall be deemed to have complied with the requisition if he causes such
document or thing to be produced instead of attending personally to produce the
same

(3) Nothing in this section shall be deemed— (a) to affect, sections 123 and 124
of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers, Books Evidence
Act, 1891(13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing
in the custody of the postal or telegraph authority.

• Search-warrants

When search-warrant may be issued

(1) (a) Where any Court has reason to believe that a person to whom a summons or
order under section 91 or a requisition under sub-section (1) of section 92 has been,
or might be, addressed, will not or would not produce the document or thing as
required by such summons or requisition, or (b) where such document or thing is
not known to the Court to be in the possession of any person, or (c) where the
Court considers that the purposes of any inquiry, trial or other proceeding

—General provisions relating to searches

Direction, etc, of search-warrants

The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be,
apply to all
search-warrants issued under section 93, section 94, section 95 or
section 97 Persons in charge of closed place to allow search
(1) Whenever any place liable to search of inspection under this Chapter is closed,
any person residing in, or being in charge of, such place, shall, on demand of the
officer or other person executing the warrant, and on production of the warrant,
allow him free ingress thereto, and afford all reasonable facilities for a search
therein

(2) If ingress into such place cannot be so obtained, the officer or other person
executing the warrant may proceed in the manner provided by sub-section (2) of
section 47

(3) Where any person in or about such place is reasonably suspected of concealing
about his person any article for which search should be made, such person may be
searched and if such person is a woman, the search shall be made by another woman
with strict regard to decency

(4) Before making a search under this Chapter, the officer or other person about to
make it shall call upon two or more independent and respectable inhabitants of the
locality in which the place to be searched is situate or of any other locality if no such
inhabitant of the said locality is available or is willing to be a witness to the search,
to attend and witness the search and may issue an order in writing to them or any
of them so to do

(5) The search shall be made in their presence, and a list of all things seized in the
course of such search and of the places in which they are respectively found shall
be prepared by such officer or other person and signed by such witnesses; but no
person witnessing a search under this section shall be required to attend the Court
as a witness of the search unless specially summoned by it

(6) The occupant of the place searched, or some person in his behalf, shall, in every

instance, be permitted to attend during the search, and a copy of the list prepared
under this section, signed by the said witnesses, shall be delivered to such occupant
or person

(7) When any person is searched under sub-section (3), a list of all things taken
possession of shall be prepared, and a copy thereof shall be delivered to such
person

(8) Any person who, without reasonable cause, refuses or neglects to attend and
witness a search under this section, when called upon to do so by an order in writing
delivered or tendered to him, shall be deemed to have committed an offence under
section 187 of the Indian Penal Code (45 of 1860)

❖ Condition Requisites for Initiation of Proceeding

Cognizance of offences by Magistrates -

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any

Magistrate of the second class specially empowered in this behalf under sub-
section (2), may take cognizance of any offence— (a) upon receiving a complaint of
facts which constitute such offence; (b) upon a police report of such facts; (c) upon
information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class
to take cognizance under sub-section (1) of such offences as are within his
competence to inquire into or try

Transfer on application of the accused –

When a Magistrate takes cognizance of an offence under clause (c) of sub-section

(1) of section 190, the accused shall, before any evidence is taken, be informed that
he is entitled to have the case inquired into or tried by another Magistrate, and if
the accused or any of the accused, if there be more than one, objects to further
proceedings before the Magistrate taking cognizance, the case shall be transferred
to such other Magistrate as may be specified by the Chief Judicial Magistrate in this
behalf

Making over of cases to Magistrates –

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make
over the case for inquiry or trial to any competent Magistrate subordinate to him
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial

Magistrate may, after taking cognizance of an offence, make over the case for inquiry
or trial to such other competent Magistrate as the Chief Judicial Magistrate may,
by general or special order, specify, and thereupon such Magistrate may hold the
inquiry or trial.

❖ Complaint to Magistrate

Examination of complainant -

A Magistrate taking cognizance of an offence on complaint shall examine upon oath

the complainant and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by the complainant and
the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not
examine the complainant and the witnesses—

(a) If a public servant acting or purporting to act in the discharge of his official duties
or a

Court has made the complaint; or (b) if the Magistrate makes over the case for
inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate
under section 192 after examining the complainant and the witnesses, the latter

Magistrate need not re-examine them.

Procedure by Magistrate not competent to take cognizance of the case -

If the complaint is made to a Magistrate who is not competent to take cognizance

of the offence he shall,—

(a) If the complaint is in writing, return it for presentation to the proper

Court with an endorsement to that effect;

(b) If the complaint is not in writing, direct the complainant to the

proper Court Postponement of issue of process
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised
to take cognizance or which has been made over to him under section 192,
may, if he thinks fit, postpone the issue of process against the accused, and either
inquire into the case himself or direct an investigation to be made by a police
officer or by such other person as he thinks fit, for the purpose of deciding whether
or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,—

(a) where it appears to the Magistrate that the offence complained of is triable
exclusively by the Court of Sessions; or

(b) where the complaint has not been made by a Court, unless the complainant and
the witnesses present (if any) have been examined on oath under section 200

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take
evidence of witness on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable
exclusively by the Court of Session, he shall call upon the complainant to produce
all his witnesses and examine them on oath
(3) If an investigation under sub-section (1) is made by a person not being a police
officer, he shall have for that investigation all the powers conferred by this Code on
an officer in charge of a police station except the power to arrest without warrant

Dismissal of complaint -

If, after considering the statements on oath (if any) of the complainant and of the
wit nesses and the result of the inquiry or investigation (if any) under section 202,
the Magistrate is of opinion that there is no sufficient ground for proceeding, he
shall dismiss the complaint, and in every such case he shall briefly record his
reasons for so doing.

❖ Commencement of Proceeding before

Magistrate Issue of process
(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 before such Magistrate or
(if he has no jurisdiction himself) some other Magistrate having jurisdiction

(2) No summons or warrant shall be issued against the accused under sub-section
(1) until a list of the prosecution witnesses has been filed

(3) In a proceeding instituted upon a complaint made in writing, every summons or

warrant issued under sub-section (1) shall be accompanied by a copy of such
complaint

(4) When by any law for the time being in force any process-fees or other fees are
payable, no process shall be issued until the fees are paid and, if such fees are not
paid within a reasonable time, the Magistrate may dismiss the complaint

(5) Nothing in this section shall be deemed to affect the provisions of section 87.

Magistrate may dispense with personal attendance of accused -

(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
(2) But the Magistrate inquiring into or trying the case may, in his discretion,
at any stage of the proceedings, direct the personal attendance of the accused,
and, if necessary, enforce such attendance in the manner hereinbefore
provided.