Process to Compel Attendance: A Balance of Constitutional Rights

Author: Aditya Kumar Mishra

3rd year, B.A.L.L.B.

National University of Study and Research in Law, Ranchi

The power to compel the attendance of a person before a Court is one of the widest powers exercised by the Courts in India. These powers have been conferred upon the Court to secure the presence of all the stakeholders and other people associated with a case before it. These powers transpire form the old saying, ‘justice delayed is justice denied’. The powers of this strata act as a catalyst towards accelerating the pace of the justice delivery system in our country.

This power mainly includes three branches. The first one is the power to issue summons. The second is the power to issue warrant and the last one is the power to issue proclamation and attachment of property. The Courts have been armed with these powers to reduce the unnecessary delay and to increase the efficacy of the justice delivery system in the country. These powers can be used by the Courts against the accused as well as the witnesses.

A bare perusal of the nature of these powers strongly indicates that these powers stand antithesis to the fundamental right of personal liberty of an individual as guaranteed by the Constitution of India. Yet these powers are the need of a democracy. This is because their presence ensures the safeguard of the right to speedy trial of the accused as well as the victim. However, an impetuous exercise of these powers can lead to the subjugation of democracy.

The Hon’ble Supreme Court has been extremely cautious about maintaining a fine balance between these two rights and has issued several guidelines to pave a road map as per which the judicial authorities in India are required to control and efficiently exercise the tremendous powers vested in them. The Hon’ble Supreme Court has always regarded the Courts as the most important kingpin of the entire criminal justice system of India. The Courts are the guardians of the rights of the people. As a result of this, they should be circumspective of the rights of the people while exercising these powers. Any mechanical or unregulated use of these powers can be havoc to the entire criminal justice system.

However, there are no scripted rules as per which the judicial authorities need to operate. The powers ascribed to the judicial authorities need to be exercised as per their discretion guided by conscience, caution, and judicial spirit.

The normal order of exhausting these powers starts from the issuance of summons and ends at proclamation and attachment. However, necessary variations are allowed to remove the impediments in the path of speedy justice. This paper will be talking about the summons and warrant only.

I. SUMMONS

This is the mildest of all the powers which are at the disposal of the Court. The literal meaning of the word ‘summons’ is the authoritative call to attend a specific place for a specific purpose. The provisions related to summons have been inscribed in the Code of criminal procedure from section 61 to 69.

There is a general conception that summons is issued in summons cases and a warrant is issued in warrant cases. However, it is the prerogative of the Court, which may issue a warrant in lieu of, or in addition to summons upon being satisfied that the summons will not be followed. This provision is available in Section 87[1] of the Cr.P.C. But this departure from the regular procedure requires a greater amount of care and caution lest it may lead to the murder of the rights of the people.

The interpretation of law put forward by the Hon’ble Supreme Court from time to time places an embargo upon the judicial authorities to jump to the severe methods like warrant before exhausting the powers to compel attendance through summons. To ensure this, the Cr.P.C. highlights three ways of service of summons which are as follows:

1. Personal Service- The provisions for this type of service finds its place in Section 62[2]of the Cr.P.C. This is also known as direct service. The Code prescribes that as far as practicable, the summons should be served to the person summoned. The reason behind this requisite of law has been explained by the Hon’ble High Court of Himachal Pradesh in the Satya securities v. Uma Erry[3]whereby the Court was dealing with the question as to whether the service of a summons is permissible through the Counsel of an accused. The Court rejected this contention and explained that the purpose of this is to save the process form becoming illegal. The Court said that in the event of a failure on the part of the person summoned to appear before the Court, it would be improper and not practically possible to issue a warrant of arrest against the Counsel. As a result of this, the entire process will become illegal and frivolous.

2. Extended Service- As the name suggests, this is the service to the person summoned, but through an extended method. The provisions are available in Section 64[4] of the Cr.P.C. The sine-qua-non for opting for this method is that despite due diligence, the person summoned could not be found by the serving officer. In such a situation, the summons can be left with an adult male member of the family.

There is no specific definition attached to the term ‘due diligence’. The steps were taken by the serving officer to find the person summoned is a clear indicator of the fact whether due diligence was exercised or not. The Hon’ble Courts have, from time to time reprimanded the necessity of ensuring that the serving authorities exhaust all the possible methods to find the person summoned before opting for this method otherwise, it would be a mockery of the legitimate intention with which this principle was carved.

3. Substituted Service- This is supposedly the last mode through which summons can be served. It is used when summons cannot be served through the above-mentioned methods. Section 65[5] of the Cr.P.C. specified this mode of service of summons. In this method, one of the duplicates of the summons is affixed by the serving officer to some conspicuous part of the house where the person summoned ordinarily resides. After this, the Court may make such inquiries as it deems fit and either declare that the summons has been duly served or order fresh service in the manner it deems fit.

It is evident that it is mandatory for the Courts to give ample opportunities to the people to wilfully show up to the Court in which their presence is required before resorting to the use of judicial force.

The reason behind this can be traced from the mandate of the Constitution which asserts that all efforts should be made to ensure that the fundamental mental rights of the people are guarded against any encroachment in any situation. The Hon’ble Supreme Court has been extremely vigilant in strengthening this great theory through the corollaries in the form of judgements. The Court has repeatedly stressed upon the fact that the Courts are the guardians of the fundamental rights of the people and there is no scope for them to show a deviation from this principle.

II. WARRANT

It is counted amongst the coercive powers available to the Court to safeguard the efficiency of the system from being extirpated due to unnecessary delays. The provisions for issuance of warrant can be found in the Code from Section 70 to 81. Since this power is a clear abrogation of the right to personal liberty, the Code has kept an alternative form of arrest even in this case. The alternative is given under Section 71[6] of the Cr.P.C. As per this, the Court issuing a warrant of arrest can endorse a direction with it that the person arrested should be released if he is ready and willing to execute a bond with sufficient sureties to ensure his presence in the Court as and when required. This type of warrant is commonly known as a ‘bailable warrant’.

It is however, open to the Court to issue a non-bailable warrant in case the person warranted still disobeys and fails to appear before the Court without furnishing sufficient reasons to support such failure. The closest incident attracted by such a warrant is the arrest of the person so warranted.

However, the option of obtaining bail in such cases is still not closed for such a person. As per Section 76[7] of the Code, it is mandatory for the police officer executing a warrant of arrest to ensure that the person so arrested is brought before the Court in which he is required by law. The Code also mandates that such products should take place within twenty-four hours after such arrest without unnecessary delay. The person so arrested can be given bail by the Court under Section 436[8] of the Code after the purpose of such arrest has been served.

When it comes to warrant, even the territorial limits do not pose any hindrance. The warrant of arrest can even be directed for execution to an authority outside its local jurisdiction. This power is available to the Court under Section 79[9] of the Cr.P.C. This power also requires the Court issuing the warrant to send along with the warrant, the particulars of the substance of arrest so that the executing authority or the Court before which the person is produced after the arrest is in a position to grant him bail under Section 80 and 81 of the Code respectively.

All these provisions relating to warrant reflect a fine balance between individual liberty and public order. These provisions ensure the uninterrupted working of the criminal justice system and at the same time the protection of the fundamental right of liberty of the people.

CONCLUSION

Thus from a general understanding, it becomes clear that summons is the process and warrant is an exception. The power to issue warrant comes under the class of powers that require due care and caution in its exercise and should be used as a last resort only. Any mechanical use of such powers has been expressly barred by the Hon’ble Supreme Court through various judgements.

The guidelines of the Supreme Court are a blessing towards the marginalized sections of the society. Owing to the social situation prevalent in India it is not difficult to imagine the hardships which the family of the person arrested entails in the absence of the sole earning member of the family. The arrest is a punishment not only for the person but for the whole family. Such punishment is against the cardinal principle of the criminal justice system that nobody should be punished for the wrong he has not committed. The adversary system of criminal justice is also based on this principle that under no circumstances should the innocent be punished.

Keeping these principles of the criminal jurisprudence in mind, it becomes very easy to conclude in the lines of the precedents set up by the Hon’ble Supreme Court that these powers have been conferred upon the Courts to safeguard the fundamental right of speedy justice of the people, and thus should be used in that spirit. The fine balance between the right to liberty and right to speedy justice is very fragile and hence should be handled with care.

[1] The Code of Criminal Procedure 1973, s.87. [2] The Code of Criminal Procedure 1973, s.62. [3]2002 CrLJ 3714 (3715) (HP). [4] The Code of Criminal Procedure 1973, s.64. [5] The Code of Criminal Procedure 1973, s.65. [6] The Code of Criminal Procedure 1973, s.71. [7] The Code of Criminal Procedure 1973, s.76. [8] The Code of Criminal Procedure 1973, s.436. [9] The Code of Criminal Procedure 1973, s.79.