Whenever a case is brought to a court, that court must ensure that a fair trial is conducted and therefore, the appearance or presence of all the parties involved in the case is necessary. This is done through two procedures – Summons and Warrant.
In criminal law, the criminal procedure Code, 1973, provides the provisions in this regard in Section 204 and Section 87.
Section 204 states that in a summons case, if the magistrate is reasonably satisfied, he may issue a summon for the appearance of the accused at the hearing and a warrant, as necessary to bring the accused before the court or any magistrate having the jurisdiction.
While, Section 87 provides that a court who has the power to issue a summons, can also issue a warrant, after recording the reasons in writing form, if
- The court believes that the person has absconded or may not obey the summons sent to him.
- The person fails to appear without any reasonable excuse and the summons has been properly served.
What is Summons?
Summons refer to the legal notice issued by a court of justice to a person requiring them to appear before the court on a particular date and time mentioned in the document for hearing.
Summons can be served upon the following persons:-
(a) The defendant or the Opposite Party: When a legal proceeding is undertaken in a court, the court has the duty to inform the defendant or the opposite party that a case has been instigated against them.
(b) Witness: It is also issued to call upon any witnesses related to the case to appear and testify before the court. The official notice is required so that no witness is absent and justice is duly served.
(c) A Person in the Possession of Documents: The court may also serve summons to any person directing them to produce some documents or any other thing necessary for investigation, inquiry, trial according to the provision in Section 91 of Criminal Procedure Code, 1973.
Summons is generally issued to ensure the appearance of a person for a legal proceeding.
Summons in Criminal Law
Under Criminal Law, Section 61 to 69 of chapter 6 in the Criminal Procedure Code, 1973 mainly deals with the issuance of summons.
Section 2 defined summons case as a case relating to an offence, and not being a warrant case” which means a less serious offence.
Form of Summons
Section 61 of the code provides “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.”
In other words, summons should fulfill these requirements to be considered valid:
- It must be in the writing form.
- It must be produced in duplicate i.e. two copies.
- The document must have been signed by the presiding officer or judge of the court or any other person directed by the High Court.
- It must bear the seal of the said court.
The summons also mentions the date, the time, and the place where the summoned person is bound to appear. But if the person fails to appear for any reason without informing the court, then the court may issue a warrant against him.
However, in Bhushan Kumar Vs State (NCT of Delhi), the court held that it is not mandatory for the magistrate to state the reason as to why the summons was issued, as it’s not a prerequisite for validity.
Modes of Service
Section 62 to 69 provides how the summons is served and is effected on the person.
According to Section 62, the summon has to be served by a police officer, any officer as per the rules specified by the state government, the court may also allow summons to be served personally by delivering or tendering to the person, one of the duplicates of the summons if necessary.
Clause (3) also states that if required by the serving officer, the person on whom the summons is served must sign a receipt on the back of the other duplicate.
The summons is effected on a corporation by serving it on the secretary, local manager, or any other principal officer or by sending a letter through post addressed to the chief officer.
If the summoned person is not available, then the serving officer can leave one of the duplicates with any residing adult male relative.
By any chance the service cannot be effected through the modes mentioned before, the service officer can simply affix one duplicate to some part of the house in which the person resides, and after inquires, the court can declare it as served or order fresh summons.
The other duplicated summon is send to the head of the office if the person summoned is under government service and the head has to sign it as per section 62 and return it to the court.
Section 67 provides the service of summons outside local limits, where a duplicate is sent to a magistrate within whose the person summoned resides or is present.
Section 68 provides a special provision to prove that the service of the summons is done.
Section 69 provides for the procedure of service of summoning to a witness.
Summons is generally preferred to be served personally through a serving officer, but it can also be sent through the Post, E-mail, and even WhatsApp.
Summons in Civil Law:
Under Civil Law, Summons is governed by Order 5 of the Code of Civil Procedure, 1908. It prescribes 30 various rules and principles relating to a summons being served to the defendant and their appearance in the court of justice.
Order 5 is divided into two parts:
- Issue of Summons
- Service of Summons
While Order 18 of the code deals with the provisions for summoning witnesses.
According to Rule 1 of Order 5, Summons is issued to all the defendants in the case ordering them to appear in the court and submit a written statement. The summons must be sent with a copy of the complaint made by the plaintiff.
Rules 1 to 8 deal with the issue of summons, whereas Rules 9 to 30 states the provisions for the service of summons.
The provisions state when the summon are issued by the court and the documents or any information that should be contained in the summons document.
Purpose of Issue of Summons
The main purpose of the summons is to ensure a fair trial and the speedy disposal of the case.
Summons gives a chance to the defendant to appear in the court and submit a written statement pleading their side.
While summons to a witness is necessary as the witness could refuse to appear in court if requested by any parties to the case and he may deny any information or knowledge which might be important to enact justice.
However, if one party fails to appear on the day of the hearing, the court has the discretion to pass an ex-parte decree in favor of the party who is present before the court. [Read How To Cancel Ex-Parte Decree]
Mode of Service
Summons can be served to the defendant and witness through post, or by a serving officer under Rule 9 of Order 5.
The plaintiff can also deliver a summons signed by the judge and bearing the seal of the court with the permission from the court under Rule 9-A in addition the summons sent by the court.
What is a Warrant?
A warrant is a written order from a judicial officer authorizing a police officer or any other law enforcement body, to undertake some acts for the administration of justice.
In other words, a warrant gives the official permission to commit an act that would have been otherwise illegal. For example, the arrest of a person would deprive them of their liberty and violate their fundamental rights but there should be a proper reason for the arrest.
Under criminal law, Section 2 defines a warrant case as an offence that can punishable with death, imprisonment for life, or for a term exceeding 2 years.
While, in civil law, Section 32 states that a court may issue a warrant if the person fails to appear after being summoned.
The issued warrant can be executed at any place in India without any kind of restriction.
Types of Warrant
In India, there are two types of warrants that can be issued in criminal cases, which are:
- Arrest Warrant
- Search warrant
Arrest Warrant is a warrant issued by a judicial magistrate authorizing a police officer or any other person, to arrest a person and take them into custody.
An arrest warrant is issued when there is a reasonable belief that a person has committed an offence and has a chance to abscond.
In criminal law, Section 70 to 81 of the code deals with an arrest warrant.
The arrest Warrant is further divided into two:-
- Bailable Warrant (Section 71)
- Non- Bailable Warrant (Section 76)
According to Section 70, an arrest warrant must be in writing, signed by the presiding officer of the court, and bear the seal of the court issuing it.
Other than the above-mentioned requisites, there are some other requisites to be fulfilled as well:
- It should mention the name and designation of the person executing it.
- It must give full details of the person to be arrested so the identification could be done easily.
- It must also specify the offences charged.
A Warrant contents the following:-
- Name of the court
- Name of the police officer executing it
- The offence for which the person is accused of
- The Place where the offence has been committed
- Seal of the court
- Sign of the presiding officer
- Name and Address of the accused person
The warrant remains effective till it is executed or canceled by the order of the court issuing it.
The code also provides that if the arrested person is willing to execute a bail bond assuring his/her appearance at the court, then the police officer has to release them, in case of a bailable offence.
It is also to be noted that a court can order any person other than a police officer to apprehend an accused but after the arrest, he/she has to take the arrested person to the nearest police station so that further proceedings could be undertaken.
The police officer in charge is also bound to produce the arrested person in the court within 24 hours without any unreasonable delay.
A search warrant is a written order issued by a court or a magistrate authorizing a police officer or any person having the permission to conduct a search of a person, their house, premises, vehicles, or other belongings and also confiscate any suspicious thing which may be used as a piece of evidence.
Section 93, 94, 95, and 97 of the Criminal Procedure Code, 1973, mainly deals with the provision of search warrant.
Section 93 states the circumstances as to when a search warrant can be issued and Section 94 provides the procedure for the search of a place that might have some stolen property, forged documents, etc.
In the case of Kalinga Tubes Ltd. And Ors. Vs D. Suri, the court stated that police officers should take precautions and care while using a search warrant and refrain from abusing their power and authority.
Distinction Between Summons And Warrant
While Summons and Warrant are both issued to compel appearances of a person concerning a case instigated in a court, they are quite different from each other. Some of the differences Between Summon And Warrant are:
1. Summons is a written order issued by a court or magistrate to the defendant or a witness or any other person involved in the case. While a Warrant is a written authorization by a judicial officer to the police empowering them to execute an action to regulate justice.
2. A summons is specifically addressed to the defendant, witness, or any person involved in the case while a warrant is addressed to the police officer, not to the person against whom it is issued.
3. A summons orders the defendant to appear before the court or produce a document. Whereas a warrant is a written authorization to the law enforcement body to apprehend the accused and produce before the court.
4. In a summon case, the complaint can be allowed to withdraw with permission from the magistrate. Whereas in a warrant case, the complaint cannot be withdrawn even after a request from the complaint.
5. A summons case can be changed to a warrant case. However, a warrant case cannot be changed to a summon case.
A Fair trial is a basic right of every human being. Ensuring this can be very difficult with the absence of even one party to the case, which is why summons and warrant serve as an important mode to deliver proper justice to the people.
This article has been written by Shruti Sudha Samantaray, 3rd Year, BA.LLB(HONS.) at University Law College, Bhubhaneswar, Odisha.
Also Read – What is Death Warrant? When It is Issued?