The Criminal Procedure Code, 1973 [Cr.P.C.] provides three kinds of legal processes to secure the presence of a person: Summons, Warrants, and Proclamations.
A Summons [Sections 61—69] is the least coercive process available under the Cr.P.C. to secure attendance. This is because a Summons does not vest coercive powers in the officer tasked with executing it. There is a step-by-step process for service of Summons provided under the Cr.P.C. to ensure that a person is duly served: (i) personal service of the Summons; (ii) If personal service is not possible, then leaving the Summons with an adult male member; (iii) If neither (i) or (ii) are possible, then pasting the Summons on a conspicuous part of the house where the person ordinarily resides. Ultimately, the court must inquire into the facts and decide whether Summons have been duly served or, if not, whether fresh service is required.
Unlike a Summons, a Warrant is a coercive process whereby the person tasked with its execution is conferred coercive powers to secure attendance [Sections 70—81]. This is either in the form of arresting the person upon whom the Warrant is to be served, or by requiring that person to execute a bond that ensures her attendance before court at a specified time and place. Where a Warrant provides for the person to execute a bond and thus avoid arrest, such a warrant is a “Bailable Warrant”. The Warrant which does not provide for a person to execute a bond and thus necessarily requires arrest, is called a “Non-Bailable Warrant”. Ordinarily, a police officer is tasked with executing a Warrant; but a Warrant may be directed to any person in certain cases [Section 73]. All persons arrested pursuant to a Warrant must be produced before the concerned court without unnecessary delay, where the maximum time for production is 24 hours.
Proclamations [Sections 82—86] are the coercive process reserved for situations when a person has failed to appear despite issuance of a Warrant, and the court is of the opinion that the person is absconding or evading so as to frustrate the service of the Warrant. Where a court is of such an opinion, it can issue a Proclamation requiring the person to appear at a specific time and place, and publish the Proclamation as per law. If the person fails to appear despite the issuance of a properly published Proclamation, and the case involves one or more of the offences specified under Section 82(4), Cr.P.C., then the Court may pronounce her a “Proclaimed Offender”. It is not clear if this declaration of “Proclaimed Offender” applies in cases besides those specified under Section 82(4), Cr.P.C.
The Punjab & Haryana High Court (Deeksha Puri v. State of Haryana, 2013 (1) RCR (criminal) 159 (Punjab & Haryana High Court, Single Judge)) and the Delhi High Court (Sanjay Bhandari v. State, MANU/DE/2678/2018 (Delhi High Court, Single Judge)) have considered the issue and come to opposite conclusions — the former has held that the non-appearance of a person upon Proclamation in all cases results in a declaration as “Proclaimed Offender”, whereas the Delhi High Court held that a declaration of “Proclaimed Offender” is restricted to only cases involving offences specified under Section 82(4).
The consequence of not appearing pursuant to a Proclamation and / or being declared a Proclaimed Offender is that this amounts to an offence punishable under Section 174-A of the IPC. Further, a court can now order the attachment of movable and / or immovable property of such a person, which may even be done at the time of issuing the Proclamation itself [Section 83]. If a person appears thereafter, the attachment of property stands rescinded where the property has not yet been sold.
Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., (2007) 12 SCC 1 [Supreme Court of India, 3 Judge Bench]
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The Special Judicial Magistrate, Rishikesh, issued a Non-Bailable Warrant against the appellants in a case filed under Sections 420 / 467 of the IPC. The appellants sought to quash the proceedings, arguing that these amounted to an abuse of the legal process. The Supreme Court allowed the appeal, but, at the same time, specifically took up “an issue of great public importance i.e. how and when warrants should be issued by the court?” [Paragraph 47].
The Court noted that, in the instant case, Non-Bailable Warrants had been issued by the Magistrate without availing the other modes of process, which was contrary to law. The Supreme Court clarified that Non-Bailable Warrants should only be issued “when summons or bailable warrants would be unlikely to have the desired result”, such as:
- Where a person will not voluntarily appear; or
- Police is unable to find the person to serve a Summons; or
- The person’s remaining at large poses a risk of harm to society;
The Supreme Court impliedly relied upon the scheme of Section 87, Cr.P.C., and held that warrants should not be issued without proper application of mind, and ordinarily the Summons or Bailable Warrant should be preferred [Paragraph 54]. It held that as a general rule, unless the circumstances justified otherwise [offence being heinous, etc.], issuance of a Non-Bailable Warrant should be avoided [Paragraph 56].
Thus, where a Non-Bailable Warrant is issued at the outset in a case, without any facts or circumstance justifying the same, it is open for the individual to seek appropriate legal remedies for revocation of such warrants as being contrary to law.
