PROCESS TO COMPEL APPEARANCE

A final research proposal submitted in partial fulfilment of the course Criminal

Law II, Semester – IV during the Academic Year 2017 – 18.

Submitted by

Vicky kumar, 1574

BA.LLB

Submitted to

Dr. Father peter ladis

April 2018

Chanakya National Law University

Nyaya Nagar, Mithapur

800001, Patna
 DECLARATION PAGE

I Vicky Kumar, student of B.A., LL.B. (Second year) in Chanakya National Law University
declare that the research project entitled ―Process to compel appearance submitted by me for
the fulfillment of ―Criminal Law-II course is my own work. This project has not been
submitted for any other Degree / Certificate / Course in any Institution / University.
 ACKNOWLEDGEMENT
I am feeling highly elated to work on under the guidance of my Criminal law
faculty. I am very grateful to him for the exemplary guidance. His assignment of
such a relevant topic made me work towards knowing the subject with a great
interest and enthusiasm.
I would like to enlighten my readers through this topic and I hope I have tried my
best to bring more luminosity to this topic. I am overwhelmed in all humbleness
and gratefulness to acknowledge from the bottom of my heart to all those who
have helped me to put these ideas, well above the level of simplicity and into
something concrete effectively and moreover on time.
I also want to thank all my friends, without whose cooperation this project was
not possible. Apart from all these, I want to give special thanks to the librarian of
my university who made every relevant material regarding to my topic available
to me at the time of my busy research work and gave me assistance.
I owe the present accomplishment of my project to my friends, who helped me
immensely with sources of research materials throughout the project and without
whom I couldn’t have completed it in the present way. I would also like to thank
the library staff for working long hours to facilitate us with required materials
going a long way in quenching our thirst for education. I would also like to extend
my gratitude to my parents and all those unseen hands who helped me out at every
stage of my project.
 Table of Contents
DECLARATION PAGE ...................................................................................................................... 2
ACKNOWLEDGEMENT .................................................................................................................... 3
Introduction ........................................................................................................................................... 5
Summons: .............................................................................................................................................. 7
Warrant ............................................................................................................................................... 10
Proclamation for person absconding (Section 82 of CrPc) ............................................................. 14
Attachment of his property ................................................................................................................ 17
Bond, with or without sureties, to appear before a court on a certain date. ................................. 21
Conclusion ........................................................................................................................................... 25
BIBLIOGRAPHY ............................................................................................................................... 26
BOOKS ............................................................................................................................................ 26
WEBSITES ...................................................................................................................................... 26
 Introduction
The basic purpose of the Criminal Procedure Code, among other things, is to ensure a fair trial
where none of the rights of the accused are compromised nor are they unjustifiably favoured.
Furthermore, to ensure that the judge concerned hears all parties who are relevant to the trial,
their presence at the trial is obviously important. That is why an entire chapter of the Code
concerns itself with the process of ensuring the attendance of any person concerned with the
case, including an accused or a witness, through various measures, viz. summons, warrant,
proclamation and attachment of property. The latter two are used when the former do not yield
satisfactory results. Many would argue that the simplest way to ensure the presence of a person,
especially an accused, would be to arrest him in all circumstances and detain him so that his
presence is beyond doubt. However, such an action would go against the fundamental right that
this Constitution provides with, the right to personal liberty under Article 21. Criminal law
hinges on that right and no person can be deprived of this right unless very cogent reasons are
present which argue against his release. This is why the Code envisages both warrant and
summons to procure the attendance of persons concerned. In this project, I will look into the
four variants used to procure the attendance of persons for trial. Of course, since the provisions
are mostly procedural in nature, few substantive issues arise but interpretation of these
provisions nevertheless gives rise to various issues. Moreover, the way they are used by the
various functionaries involved viz. the judiciary and the police, also has given rise to
substantive literature on this. Furthermore, I will give special attention to procurement of
attendance of witnesses and how the provisions have been used by the functionaries in ensuring
that witnesses attend the trial.1

Summons
The form in which summons should be served is given in Section 61 of the Code while a
summons case is defined as a case relating to an offence which does not provide for
imprisonment exceeding two years. Even though a summons case relates to a less serious
offence and it is estimated that person served would attend the trial, the Indian Penal Code
through Section 174 enforces coercive measure on such persons to attend the trial by enforcing
a six month punishment if such persons do not attend the trial. It has to be remembered that
though Section 61 gives the procedure of serving summons, the section does not give the
authority to issue summons. This position was enunciated in the case of Norode Baron
Mukherjee v. State of West Bengal.

Warrant
The Code discusses warrants of arrest from Section 70 onwards. These warrants are generally
used for far more serious offences where issuance of summons would not achieve the desired
objective of procuring the attendance of the person concerned. Even so, a number of interests
need to be kept in mind, particularly the fundamental right to liberty. Only when societal
interests dictate that the person be kept in custody lest he or she absconds, will the magistrate
issue a warrant of arrest. The Code does not define a warrant but as is clear from the form of
warrants, these are written orders issued and signed by the magistrate and addressed to a police
officer or some other person specially named, directing him or her to arrest the person named

1
in the warrant.. In the case of Alter Caufman v. Government of Bombay, the Magistrate issued
a warrant ordering the accused to remove themselves from India, failing which they would be
arrested. This warrant was deemed illegal because the authority to determine whether the
accused had done the needful was left to the officer entrusted with the arrest and not the
Magistrate who issued the warrant itself. Now, when an officer proceeds to arrest a person on
a warrant which is illegal, the right of private defence rests on that person to prohibit the officer
from arresting.

Section 87: Issuance Of Warrant In Addition To Or In Place Of summons

Even in cases where the Court is only empowered to issue a summons, it can, as provided by
Section 87, in two situations. First, if before the issuance of summons or after it but before the
time fixed for attendance, the Court is of the opinion that the person has absconded or will not
obey the summons. Alternatively, if the person concerned fails to appear on the decided date
with no reasonable excuse for such failure then the Court would have the power to issue a
warrant. Therefore, the power to issue a warrant would depend on the service of summons and
in cases where there is no power to issue summons, he would not be able empowered to issue
warrants by virtue of this section. In the case of C. McLenan v. State, the Calcutta High Court
invalidated the magistrate's ruling that he was empowered to issue summons under 202 of the
Act. Therefore, the Court held that since the Magistrate had no power to issue summons under
that section, consequently he had no power to issue a warrant by virtue of Section 87. This
section gives discretionary powers to the Court to issue a warrant of arrest and such discretion
has to be exercised judiciously upon a consideration of the materials before the Court which
would lead it to conclude that the person has absconded or will not reply to the summons.

Proclamation And Attachment

Even after issuance of and warrant, the Court may find that the person concerned has either
absconded or is concealing himself. This would mean that the Court cannot ensure the
attendance of that person unless it adopted some stringent measure. Section 82 of the Code lays
down that if the Court is satisfied that such are the circumstances then the Court will give a
time period of 30 days from the date of proclamation within which the person has to appear
before the Court. Hence, issuance of warrant is prerequisite for an order of proclamation.
Without having the authority to issue a warrant, a court cannot issue any order of proclamation.
Summons:

To meet the ends of justice, it is critical to produce the accused and other witness or related
parties before the court whenever needed. If the accused is found guilty at the conclusion of
the trial, he must be present in person to receive the sentence. Also, his presence is necessary
if imprisonment is to be enforced. Further, the supremacy of the law will be questionable if
there is no formal process to bring the required persons before the court. For this
reason, Chapter VI (Sections 61 to 90) of CrPC provides three ways for compelling the
appearance of any person who is required to be present in the court, in the court –

What are Summons? Introduction –

A summon is a legal document that is issued by a Court on a person involved in a legal
proceeding. When a legal action is taken against a person or when any person is required to
appear in the court as a witness in a proceeding, to call upon such person and ensure his
presence on the given date of the proceeding, summons are served.
A summon is served when a suit has been initiated by the plaintiff against the defendant, the
court directs to issue summons to the defendant as this ensures a fair trail. If the summons are
not duly served then no action can be taken against the defendant.
If on serving of the summon and the person against whom it had been issued does not appear
in the court then this will be taken as a Contempt of Court and shall be punished accordingly.
The summons is the descendant of the writ of the common law.
Section 27 and Order 5 of the Code of Civil Procedure deals with the service of summons to
the defendant and in the Code of Criminal Procedure, from section 61 to 69 deals with the
topic of summons.
Below is the content relating to summons under CrPc.

• How should be the form of Summons- Section 61 –

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.

• Mode of Service of Summons – Section 62-

(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 – Section 63 –

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.2
Explanation:- In this section “corporation” means an incorporated company or other body
corporate and includes a society registered under the Societies Registration Act.1860

Service of summons when person serving cannot be found -Section 64 –

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 therefore on the back of the other duplicate.
Explanation :- A servant is not a member of the family within the meaning of this section.

Procedure when service cannot be effected as before provided – Section 65 –

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.

66. Service of Summons on a Government servant – Section 66 –

(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
MANU/SC/0052/1954
(2) Such signature shall be evidence of due service.

Service of summons outside local limits – Section 67 –

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- Section – 68 –
(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 – Section 69 –

(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.
 Warrant
To secure the presence of the accused, the court issues warrant of arrest during the pendency
of trial. Warrant is an order addressed to a certain person directing him to arrest the accused
and produce him before the court. The warrant may be issued to Police Officer or any other
person to execute the same. As per Sec. 70 of Cr.P.C., every warrant of arrest issued by the
court under code of Criminal Procedure shall be signed by the Presiding Officer of such court
and shall bear seal of the court and every such warrant shall remain in force until it is cancelled
by the court which issued or until it is executed. The Magistrate authorized to issue warrant for
detention of person who ensures that every warrant , authorizing detention to specifies the age
of person to be detained.3
Types of Warrants
Though, there is no mention of Bailable and Non bailable warrants in the code, Warrants are
of two kinds, Bailable and Non-bailable. Sec. 71 deals with bailable warrants. As per Sec. 71
(1), any court issuing a warrant for the arrest of any person may it its discretion direct by an
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. The endorsement shall state the number of sureties, amount in which they
and the person for whose arrest warrant issued and to be respectively bound, the time at which
he attend before court. Whenever security is taken under this section, the officer who whom
warrant is directed shall forward the bond to the court.
Non-bailable warrant is other than the bailable warrant.
When Nbw Can Be Issued Against The Accused?
In a reported judgment between Inder Mohan Gowswamy and another Vs. State of Uttaranchal
and others reported in 2007(12) SCC. (1), the Hon'ble Apex court held that Non-bailable
warrant normally not to be issued if person or accused could be secured. At para 51 of the
judgment the Hon'ble Apex court held that issuance of Non-bailable warrant involves
interference with personal liberty.. Arrest and Imprisonment means deprivation of the most
precious right of an individual. Therefore the courts have to be extremely careful before issuing
non- bailable warrants.
The Hon'ble Apex court further held that non-bailable warrant should be issued to bring the
person to court when summons and bailable warrant would be unlikely issued. This could be
reasonable to believe that the person willing to appear in court or the Police authorities are
unable to find the person to serve him with summons or it is considered that the person could
harm some one if not placed in to the custody immediately. The Hon'ble Apex court held that
some times in the larger interest of the public, State becomes absolutely imperative to curtail
the freedom of individual for a certain period only; this non- bailable warrants should be issued.
Whether Nbw Can Be Issued Against Witnesses?

3
http://notesforfree.com/2017/12/21/charge-crpc-notes/
In a reported judgment between K. Srinivas Vs. State of A.P. reported in 2003 (1) ALD (Crl)
53, the Hon'ble High Court held that issuing of NBW against the petitioner/witness is not
correct. The Hon'ble High Court further held as per sec. 350 Cr.P.C. when a witness fails to
attend the court disobeying the orders issued warrant for the same, found absented himself with
a just cause a maximum punishment can be imposed is Rs.100/- and nothing more.
The Hon’ble high court further held that "Administration of justice is very solemn duty officers
administering justice, especially criminal justice which involves the liberty and reputation of
individuals should exercise the powers, especially the power to sending persons to judicial
custody, vested on them with great care and circumspection because personal liberty of
individuals, which is a fundamental right enshrined in the constitution is involved. Since Article
21 of the constitution mandates that no person shall be deprived of his life and personal liberty
except in accordance with the procedure established by law. Care should be taken to see if
person ordered to be sent to judicial remand can be deprived of his liberty under the provision
of nay statue or not?"
Whether The Presence Of Accused Is Necessary At The Time Of Filing Recall Of Nbw
Issued By The Court
In Ramakrishna Agencies, Guntur Vs. State of A.P4., the Hon'ble High Court held that no
provision of law is brought to notice that accused should be present when an application is filed
for withdrawing non-bailable warrant.
In Shaik Yousuf Vs. State of A.P,.5:- The Hon'ble High Court held that " In ordinary course of
warrant should have recalled if the court is convinced that his absence on earlier occasion was
not willful. Even otherwise if for any reason the petitioner is brought by executing a warrant
issued against him, still he can be enlarged on bail. In that case the contention of the
petitioner/accused that he was undergoing medical treatment .
In, M. Sainath Vs. Ezaf Pentawa6, the Hon'ble High court held that petitioner is directed to
appear before the court on the next date of hearing and file petition U/s. 70(2) Cr.P.C. to recall
the said warrant.
In Mita Labs Pvt. Ltd. Vs. G.E.7 Wide consumer Financial Services Ltd. reported in, the
Hon'ble High Court held that the logic of learned Magistrate that because the accused had not
executed any bonds earlier, hence it was not possible to recall NBW and filed petition U/s.
70(2) Cr.P.C. is difficult to be accepted. Order quashed in NBW cancelled, petitioner is directed
to appear the court on the next date of hearing and on such appearance they shall be bound over
terms as the Magistrate considers.
In a TMT Kaladi Vs.State8 reported in:- The Hon'ble High Court held that non-bailable warrant
pending against petitioner, hearing had been posted for furnishing copies of final report and
documents to her. Her presence was therefore required. Unless she makes appearance and

4
2000(1) LS 78
5
2001 ALT (Crl) (2) 270
6
2007 ALT (1) (Crl) 180
7
2001 ALD (2) 489
8
2006 (Crl) LJ. 2053
warrant is recalled her application U/s. 317 Cr.P.C. to condone her absence and U/s. 205 to
allow or to appearance by pleader cannot be entertained.
In Yenkey Drugs and Pharmaceuticals Pvt. Ltd., and another Vs. Bhagya Nagar Chlorides 9
reported in, the Hon'ble High Court held that when the accused is absent in the court on the
hearing date, file an application to dispense with personal appearance application dismissed
and NBW issued. Application filed to cancel the same also dismissed. The Magistrate did not
exercise his jurisdiction. NBW is cancelled and accused is directed to appear in the court on
the next date of hearing.
In Ch. Venkata Reddy Vs. State of A.P.10 reported in, the Hon'ble High Court held that if the
accused failed to appear in spite of service of summons. Hence non bailable warrants are issued.
The accused filed application to recall NBW and also to dispense with their personal
attendance. It is discretion of the learned Magistrate to dispense with personal appearance. The
accused must appear at the time of framing of charges under sec. 239 Cr.P.C. and examination
under section 313 Cr.P.C. and also on the date of pronouncement of the judgment.
In A. Venugopal Vs. State of A.P.11 and another reported in, the Hon'ble High Court of A.P.
held that when a notice was returned by an endorsement by the postal authorities which may
amounts to refusal to receive letter. The Hon'ble court held that it is possible that the letter
might have been tendered to a wrong person who might have refused to claim it as not bound
addressed to him. Under the circumstances the NBW issued on petitioner/accused has bound
recall and the petitioner shall attend the court on the next date of hearing.
In Bhagvan Premchand Vs. State of A.P12. reported in., the Hon'ble High Court held that the
Magistrate should shed wrong practice of issuing NBW, the moment the accused failed to
appear before the court without giving an opportunity to explain the circumstances under which
the accused failed to appear in the court and in the light of the language employed in Sec. 73
of Cr.P.C. NBW can be issued sparingly that to after coming to a conclusion that there is no
other way to secure the presence of accused.
In Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra13and another reported in The
Hon’ble Bombay High Court held that power of jurisdiction of court to issue proper warrant
against an accused on his bail to attend the court, such power has to be exercised judicially and
not arbitrarily. It further held that the magistrate could have issued either notice or bailable
warrant depending upon the facts .The High court directed the police officer to pay costs of
Rs.2000/- from his own account.
The facts in brief that a non bailable warrant issued against himreturnableon31.10.2002, the
appellant Raghuvansh appeared and filed a petition to re call NBW and warrant was cancelled.
On15.08.2002 the police arrested the appellant, even though he stated that NBW recalled, and
produced before the Magistrate and the magistrate directed the release of accused.
Guidelines Issued By The Apex Court

9
2003 (1) ALD 119 AP
10
2008 (3) APLJ 85
11
1999 (4) ALD 449
12
1998 (1) ALT (CrLJ) 110 A.P
13
2008 CrLJ 2127
In a reported judgment between Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra
and another14 the Hon'ble Apex court issued guide lines to the subordinate courts at the time of
issuance of NBWs. The Hon'ble Apex court directed all of the subordinate courts to use printed
and machine No. and form No.2 for issuing warrant of arrest. The court must ensure that
complete particulars of the cases are mentioned in the warrant. The Presiding Judge of the court
should put his full and legible signatures in the particulars and also ensuring that court seal
appearing with complete address of the court, prominently endorsed there on. The court must
ensure that warrant is directed to a particular police officer, it must be returnable whether
executed or non-executed on or before the date specified there in. Every court must maintain a
register in which warrant of arrest issued must be entered and chronological serial number of
such entry reflected on the top right hand of the process. No warrant of arrest shall be issued
without being entered in the register. A register similar one shall be maintained at concerned
police station. The courts should not give a long time for return of execution of warrants. On
the date fixed for return of warrant, the court must insist upon for compliance of report on the
action taken by thereon by the Station House Officer of concerned Police station. The report
of such warrant must be cogent and legible duly forwarded by a superior police officer, so as
to facilitate fixing of responsibility in case of misuse. In the event of warrant for execution
beyond satisfaction court issuing it procedure laid down under section 78 and 79 Cr.P.C. a
court must be strictly and scrupulously followed. In the event of cancellation of arrest warrant
by the court, the order cancelling warrant shall be recorded in the case file and register
maintained. A copy thereof shall be sent to the concerned authorities requiring the process to
be returned unexecuted forthwith. The date of return of unexecuted warrant will be entered in
the above said register. A copy of such order shall also be supplied to the accused.
Whether Police Can Realease The Accused By Taking Bonds When Nbw Is Executed?
Yes. In cases where the offence is bailable one.
As per sec. 81 of Cr.P.C. 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 of Police, or Commissioner or a direction has been
endorsed U/s. 71 on the warrant and such person is ready and willing to give security by such
direction, the Magistrate, District Superintendent of Police or Commissioner shall take such
bail or security as case may be and forward the bond to the court which issued the warrant.
Provided further that if the offence is Non-bailable one, it shall be lawful for Chief Judicial
Magistrate (subject to the provisions of section 437) or the session 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.

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AIR 2011SC 3393
 Proclamation for person absconding (Section 82 of
CrPc)
Legal provisions regarding proclamation for person absconding under section 82 of the Code
of Criminal Procedure, 1973.
The ordinary process for compelling appearance is in the first instance to issue summons under
Section 61. When summons so issued cannot be served it is the duty of the court to issue a
warrant. When warrant also cannot be executed the Court may issue a proclamation under
Section 82 or property of the person wanted may be attached under Section 83 of the Code
while steps are being taken to enforce the appearance of the accused under Sections 82 and 83,
the Court may, if the absconder is an accused person, proceed under Section 299 of the Code
by recording of evidence in absence of accused. Section 82 of the Code of Criminal Procedure
provides that:
(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 specified 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:
(i) (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 homestead 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.
(3) A statement in writing by the Court issuing the proclamation to the effect that the
proclamation was duly published on a specified day, in the manner specified in clause (i) of
sub-section (2), shall be conclusive evidence that the requirements of this Section have been
complied with and that the proclamation was published on such day.
(4) Where a proclamation published under sub-section (1) is in respect of a period accused of
an offence punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397,
398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to
appear at the specified place and time required by the proclamation, the Court may, after
making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a
declaration to that effect.
(5) The provisions of sub-section (2) and (3) shall apply to a declaration made by the Court
under sub-section (4) as they apply to the proclamation published under sub-section (1).
Even in summons cases and against witness, a proclamation for person absconding may be
issued. Absconding does not mean absence on one day, but it means remaining out for at least
some days.
To be an absconder in the eye of law it is not essential that a person should have run away from
his house but it is sufficient if accused hides himself to evade the process of law.
In Rohit Kumar alias Raju v. State of N.C.T., Delhi and Another, it was observed that the sine
qua non for an action under Section 82 of Cr. PC. is the prior issuance of warrant of arrest by
the Court?
There must be a report before the Magistrate that the person against whom the warrant was
issued by him had absconded or had been concealing himself so that such warrant cannot be
issued. An attachment warrant can be issued only after the issuance of proclamation.
The expression ‘reason to believe’ occurring in Section 82 suggests that the Court must be
subjectively satisfied that the person has absconded or has concealed himself on the materials
before him.
The term ‘absconded’ is not to be understood as implying necessarily that a person leaves the
place in which he is. It’s etymological and its ordinary sense is to be hide oneself. Further,
under Section 82 the Court issuing proclamation must record its satisfaction that accused had
‘absconded’ or ‘concealed himself’.
The three clauses (a), (b) and (c) of sub-section (2) (i) of Section 82, Cr. PC. are conjunctive
and not disjunctive. The factum of valid publication depends on the satisfaction of each of these
clauses. Clause (ii) of sub-section (2) is optional; it is not an alternative to clause (i). The latter
clause is mandatory.
The Magistrate must be satisfied that the accused was absconding or concealing himself for the
purpose of avoiding the service of the warrant. The mere fact that the sub-inspector could not
find the accused is not enough under this Section. What is required is the evidence of the effect
that he had known that he was wanted and was avoiding arrest.
Under Section 82 of the Code, the Magistrate issuing proclamation must record his satisfaction
that the accused had absconded or concealed himself. A person who had gone abroad before
the issue of the warrant of arrest cannot be said to be absconding or concealing. However, even
though the accused has left India before proclamation, if he continues to remain outside India
with a view to defeat or delay the execution of the warrant, he has to be taken to be absconding
person.
The term abscond does not necessarily imply change of place. It means ‘to hide oneself’ and it
matters not whether a person departs from his place or remains in it, if he conceals himself. In
either case, he is said to abscond. If a person having concealed himself before the issue of
proclamation of absconding by the magistrate, continues to do so after it is issued, he is said to
abscond.
The proclamation of absconding shall not be issued whenever a warrant fails of its effect.
Before issuing a proclamation, the officer not to serve the warrant must be examined as to the
measures adopted by him to serve it.
If, on his evidence or in any other manner, the magistrate is satisfied that the accused is
absconding or concealing, then and then only the processes of proclamation may be issued.
Process under Section 82 of the Code cannot be issued unless it is established that a warrant
had already been issued against the person wanted and that person was absconding. The
previous issue of a warrant against the person whose attendance is required before the Court is
a necessary condition.
Simultaneous issue of both the processes, namely, warrant of arrest and proclamation is ex
facie contradictory, since it is only after the first that the second can be issued where the
concerned person has absconded or is hiding.
A proclamation under Section 82 must mention the time within which and the place at which
the absconder should present himself to save the sale of his property. An omission to mention
the time and place would render the proclamation a nullity. The proclamation shall also be
ineffective if a period lesser than that provided by the Section is mentioned.
The Code of Criminal Procedure does not apply to the proceedings of contempt. Hence, the
provisions of Section 82 would also not be available to securing the presence of a person who
is alleged to have committed contempt.
The failure to comply with all the three modes of publication is considered invalid publication,
according to law as the three sub-clauses (a) to (c) are conjunctive and not disjunctive.
The most important part of the publication is the publishing of the proclamation in the
accused’s place of residence, and it is from the date of such publication that the 30 days should
be counted.
An accused person against whom a proclamation has been issued must, until he has
surrendered, be regarded as in contempt, and the Court will not entertain any application on his
behalf.
 Attachment of his property
in case of a decree from a Court, the Court may require any person (known as the defendant)
to pay any sum to the decree holder (or the plaintiff). In case the defendant fails to do so the
Court can, in execution of its decree, attach the movable and immovable properties of the
defendant and recover the amount due by disposal of these assets. However, certain assets are
not liable to attachment under a Court decree. In last month’s issue relating to Debt Recovery
Tribunals, we had seen that the Recovery Officer of the DRT can require any debtor of the
defendant to pay any sum directly to him. This excludes any amount exempt from attachment
in execution of a Court decree u/s. 60 of the Code of Civil Procedure, 1908. This Article
examines some of the provisions relating to Attachment of assets in execution of a Court
decree.

II. Execution of a Decree

2.1 The Civil Procedure Code, 1908 (“the Code”) deals with the provisions relating to a court
decree and its execution. S.2(2) of the Code defines a decree as the formal adjudication which
conclusively determines the rights of the parties with regard to the controversial matters
covered by the suit. The decree could be interim or final.
2.2 The judgment debtor is a person against whom a decree has been passed or an order
capable of execution has been made.
2.3 The decree holder means a person in whose favour a decree has been passed or an an order
capable of execution has been made.
III. Attachment
3.1 The property belonging to the judgment debtor, or property over which, or the profits of
which, he has a disposing power which he may exercise for his own benefit, is liable to
attachment and sale in execution of a decree.
3.2 The property liable to attachment may be lands, houses or other buildings, goods, money,
bank notes cheques, bills of exchange, hundis, promissory notes, Government securities, bonds
or other securities for money, debts, shares in a corporation and, other than the assets expressly
excluded, all other saleable property, movable or immovable. The property may be held in the
name of the judgment debtor or by a trustee for his benefit or on his behalf.
3.3 The following property of the judgment debtor shall not be liable to such attachment or
sale :
3.3.1 Personal property
(i) clothes, cooking vessels, beds of the judgment debtor, his wife and children, and personal
ornaments which as per religious usage, cannot be parted with by any woman
(ii) tools of artisans – court decisions have held that it only includes movable tools and not
immovable equipment.
(iii) if the judgment debtor is an agriculturist, his implements of husbandry and such cattle and
seed grain as the court deems fit to enable him to earn his livelihood as such, and such portion
of agricultural produce or of any class of agricultural produce as may have been declared to be
free from liability
(iv) houses and other buildings along with the materials and the land appurtenant thereto which
is necessary for their enjoyment, which belongs to an agriculturist or a labourer or any domestic
servant and is occupied by him
(v) all moneys payable under a policy of insurance on the life of the judgment debtor – no
conditions have been stipulated as to when the money should become payable, i.e., policies
which mature after a fixed term or after the death of the assured. In certain circumstances,
policies for the benefit of a judgment debtor’s wife and children under the Married Woman’s
Property Act, 1874, are free from attachment.
(vi) tenancies in respect of a residential building covered by the provisions of any Rent Control
Act
3.3.2 Salary
(i) stipends and gratuities allowed to pensioners of the Government or of a local authority or
of any other employer, or payable out of any notified service family pension fund and political
pension
(ii) the wages of labourers and domestic servants, whether payable in cash or kind
(iii) salary to the extent of the first Rs. 1,000 and 2/3 of the balance in execution of any decree
other than a decree for maintenance. If any part of the attachable salary has been under
attachment, for 24 months, then such portion shall be exempt from attachment until the expiry
of a further period of 12 months. Where the attachment has been made in execution of one
decree, it shall, after the attachment has continued for a total period of 24 months, be finally
exempt from attachment in execution of that decree
(iv) 1/3 of the salary in execution of any decree for maintenance
(v) salary payable to persons covered by the Air Force Act, 1950, or the Army Act, 1950, or
the Navy Act, 1957,
(vi) all compulsory deposits and other sums in or derived from any fund to which the Provident
Funds Act, 1925, or Public Provident Fund Act for the time being applies, in so far as they are
declared by the Acts to be not liable to attachment
(vii) any allowance forming part of the emoluments of any servant of the Government/ railway
/ local authority which has been notified to be exempt from attachment, and any subsistence
grant or allowance made to any such servant while under suspension
(viii) any allowance declared by any Indian law to be exempt from liability to attachment or
sale in execution of a decree
3.3.3 Incorporeal property
(i) a mere right to sue for damages
(ii) any right of personal service
(iii) an expectancy of succession by survivorship or other merely contingent or possible right
or interest
(iv) a right to future maintenance
(v) where the Judgment debtor is a person liable for the payment of land revenue, any movable
property which, under any law for the time being applicable to him, is exempt from sale for the
recovery of an arrears of such revenue
(vi) books of account

Notwithstanding anything contained in any other law, an agreement by which a person agrees
to waive the benefit of any exemption under this section shall be void.

IV. Mode of Attachment

4.1 Rules 41 to 57 of Order 21 deal with the manner in which various properties are to be
attached. Rules 44 and 45 deal with the attachment of agricultural produce.
4.2 Rule 46 provides that where the movable property is
(i) a debt, the attachment would be by prohibiting the recovery of the debt or the debtor from
making payment thereof; or
(ii) a share in a body corporate, the attachment would be by prohibiting the transfer of the
shares or from receiving any dividend.
(iii) any other movable property, the attachment would be by prohibiting the person in
possession of the property from giving possession to the judgment debtor.
4.3 In case the judgment debtor has a co-share in a movable property, then the attachment will
be by a notice prohibiting him from transferring his share/interest or in any manner creating a
charge on the share in the property.
4.4 In case the property is a negotiable instrument the attachment shall be made by way of an
actual seizure and brought to the court.
4.5 Rules 49 and 50 provide for attachment of property of a partnership firm.
4.6 Under Rule 54, if the property is immovable, then attachment will be made by a order
prohibiting any transfer or charge on the property. Any alienation after the attachment will be
null and void against all claims enforceable under the attachment.
V. Effect of Attachment
5.1 An attachment does not create any title of the decree-holder to the property nor does it
create a lien or charge over the property for the sum due to the decree-holder.
5.2 The judgment debtor continues to enjoy the attached property.
5.3 All that an attachment does is to prevent a private-transfer and that no person can benefit
from a subsequent transfer of the attached property. S. 64 of the Code provides for such private
alienation. Once a property has been attached, any private alienation of such property by private
transfer or delivery and any payment to the judgment debtor of any debt, dividend, etc.,
contrary to such attachment shall be void as against all claims enforceable under the
attachment. S.64 applies whether the property stands in the name of the judgment debtor or any
other person who is a name lender, i.e., benami property – Pradyut Shah, AIR 1979 Bom 166.
However, if the transfer is by an operation of law or pursuant to a Court order, then s.64 does
not apply. It only covers private transfers, such as, voluntary sales, gifts, mortgages. It may be
noted that the private transfers are not void ab initio but only void as against all claims
enforceable under the attachment. There is a difference of opinion amongst various Courts as
to whether or not any private transfer after attachment but in pursuance of a contract of sale
executed prior to attachment is covered by s. 64. Various decisions have held that in order that
an attachment renders a subsequent alienation as void u/s. 64, the attachment must follow the
process laid down under the Code, e.g., Rules 41 to 57 of Order 21.
VI. Auditor’s duty
The Auditor should enquire of the auditee whether any attachment proceedings are pending
against it. The Auditor can provide value added services to his clients by enlightening them
about which assets are not attachable and what are the rights and obligations in respect of an
attached property. It needs to be repeated and noted that the audit is basically under the relevant
law applicable to an entity and an auditor is not an expert on all laws relevant to business
operations of an entity. All that is required of him is exercise of ‘due care’. The Auditor should
also enquire whether the entity has obtained ‘attachment’ in cases filed by it. This will enable
the Auditor to assess the provisions for bad and doubtful debts. Though an ‘attachment’ does
not create any rights in favour of the entity but the courts normally do not grant attachment
unless the plaintiff establishes a prima facie case.
 Bond, with or without sureties, to appear before a
court on a certain date.
The Code of Criminal Procedure, 1973 prescribes various forms of release of an accused from
custody and to ensure his appearance in due time before a court for his trial. The Code mentions
four provisions of release from custody bail, security, surety and bond. Courts use them either
singly or in combination with one or more forms for purposes of releasing an accused. Each of
the above is essentially a pecuniary undertaking.
I Amount of bond and reduction thereof U/s 440 Cr.P.C.
Surety bond shall not be too excessive and the condition rought to be imposed shall not be such
as to uproot the accused from his hoe town l . Where bail amount fixed is excessive, the trial
Court can reduce the amount.2
Where accused could not be released for not fulfilling conditions attached to bail orders due to
ignorance and poverty, conditions were relaxed and accused were directed to be released.3
Il Bond of Accused and Sureties U/s 441 Cr.P.C.
A. Scope - This contemplates furnishing of a personal bond by the accused person and a bond
by one or more sufficient sureties. It does not authorise a demand of cash security by a
Magistrate Section 445 provides for a concession to an accused person who is unable to
produce sureties, An accused person is entitled as of right to bail, provided the necessary
conditions prescribed by law are fulfilled, and his sureties cannot be rejected unless the Police
Officer or Court is not satisfied about either their identity, solvency or reliability.5

Where in spite of bail granted, the accused is not released on bail immediately due to procedural
formalities, held the delay in releasing the accused on bail, stood explained.
B. Discretion - The discretion conferred on a Magistrate and nature of power conferred
thereby is a quasi-judicial discretionary power on a judicial authority. It is not a judicial act
in the sense in the which the term is understood. Nor it is unbridled executive power. 7 Where
the offence In bailable, conditions of release of bail should not be harsh and oppressive.
C. Details of bond Surety bond shall contain date and time for production of accused.9 It
is not requires by any provision that all the sureties should execute the bond printed at the
back of the form on which the accused executes the personal bond or that the accused must
execute as many bonds in identical terms as there are surety bonds by individual sureties. It
is imperative for those who are in charge of receiving bonds from accused and sureties to be
very careful in complying with the provisions of law since the bonds are to be strictly
enforced. If the time and place for the appearance of the accused is not mentioned and the
space for it in the form is left blank, the bond becomes vague and is void on that ground. ll
Similarly, if the surety bond recites that the accused has to remain present "Wherever called
upon by the Police Station Officer", it is vague and defective.] 2 Where the terms of bond
are clear that the Court on the date fixed, the failure of the surety to produce the accused
renders him liable to be proceeded against under this section,
 D. Amount of bond not to be excessive - Where the High Court directed the release
of an accused on bail to the satisfaction of the District Magistrate, and the latter
demanded a cash deposit as a condition contemplates the execution of a bond with
sureties and under this section the amount of the bond is not to be excessive and is to be
fixed according to the circumstances of each case.
E. Contract - The contract of a surety and the contract of a person released on bail
are independent of each other. The surety promises to pay a certain sum of money if the
person accused does not appear at be no question of the surety making efforts to secure
the attendance of the person accused or his being badly treated by that person of his
having made all the necessary efforts which he could make. His is a simple contract. All
he undertakes is to pay a certain sum of money if a certain event does not occur, and if
that event does not occur, he must pay. This being so, a surety bond would be valid even
though the person accused does not himself sign the bond. 15 But
16
the Bombay High Court has dissented from this view.
F. Local Surety - The Court cannot insist upon a local surety. It may in extra-
ordinary cases ask for the sureties which are easily available and at the same time ask
for bringing a certificate of solvency from the Tehsilbar.
It is not proper in every case to insist upon the solvency certificate from the Tehsildar. Even an
affidavit in the first instance should not be refused. it shocks one's conscience to ask a mason
to furnish sureties of Rs. 10,000/-. The Magistrates must be given the benefit of doubt for not
fully appreciating that our Constitution, enacted by "We, the People of India", is meant for the
butcher, the baker and candle-stick maker, the bonded labour
and pavement dweller. 15161718 The accused persons cannot be compelled to furnish the surety
bonds of person residing within the State.18
G. Cash Security - In bail bonds cash security cannot be demanded.] 9
H. Bond of accused independent of sureties - Forfeiture of personal bond of
accused is not a condition precedent to forefeiture of bond of sureties, as the undertaking
of sureties to secure the attendance of the accused is quite independent of the
undertaking given by the accused to appear before the
Court.19
I. Surety by artificial person - The whole object of execution of bonds by sureties
is to secure the presence of a person facing a trial. In accepting or rejecting a surety, the

15 Motitram v. State of M.P., AIR 1978 SC 1594: (1978) 4 SCC 47:

17 Rishikumar v. State ofRajasthan, 1984 (l ) Crimes 780 (Raj).

18 N. Sashikala v. Enforcement Officer Enforcement Directorate, Madras, 1997 CrLJ 2120.

19 Ram Lai v. State of (J.P., AIR 1979 SC 1498 : 1980 CrLJ 826 : 1979 All LJ 899.
 Court has to see that the sureties are persons of sufficient financial ability, and of
sufficient vigilance to secure the appearance and prevent absconding of the accused.
Such an obligation of vigilance cannot be effectively cast on a corporation or bank.20
The sureties must be such persons as can in all cases be imprisoned in case of default
and as such surety bonds cannot be executed by artificial persons like Banks.21
J. Sub-section (3). - A surety bond which omits to mention the name of the Court
in which and the date on which the surety is to produce the accused cannot be
enforced.23
K. Forfeiture of bond by accused not a condition precedent The responsibility of
the surety arises from the execution of the surety bond by him and is not contingent
upon execution of a personal bond by the accused. Nor is the liability of forfeiture of
the bond executed by the surety contingent upon the execution and the liability to
forfeiture of the personal bond executed by the accused. The forfeiture of the personal
bond of the accused is not a condition precedent to the forfeiture of the bonds executed
by the sureties.24 It is a well accepted principle that a surety bond should be strictly
construed. It that be• so, where there has been a joint execution of bond by all the
accused undertaking to appear before the Court and the undertaking by sureties to make
good Rs. 1500 each on default of appearance of accused, the Magistrate is not
competent to pass in order to deposit that amount for each of the defaulting accused by
each of the sureties.25
L. Cancellation of bond of sureties alone - The expression "for such sum of money
as the police -officer or the Court... thinks sufficient shall be executed by such person"
in sub-sec. (Dare spoken of in respect of the person who is either released on bail or
released on his own bond. The words in the section taken as a whole indicates that before
a person is released on bail said person is released on his own bond. the words in the
section taken as a whole indicates that before a person is released on bail the said person
must execute the bail and so also the sureties. Hence the bond executed by sureties alone
cannot be forfeited if the accused who has been released on bail has himself not executed
the bond as contemplated by the section.22
M. Default in attending Court.- the provisos of schedule Il, form 45 show that personal
bond is given by the accused for attending the court on every day on which trial is held and
surety bond is given for the purpose that the accused shall attend the court on every day on
which the trial is held and in case of default the accused binds himself and the sureties bind
themselves to forfeit to the Government certain sum of money.23
N. Holding of enquiry - Where the Judge was not satisfied with the solvency of sureties
produced and admittedly no enquiry contemplated under the section was conducted, rejection

20 Kamal Bai Gopalro Jamdar v. CJM, Gwalior, 1990 CrLJ 2550,2553 (MP); Edmund N. Schuster v. Asst. Collector
of Customs, New Delhi, Air 1967 Punj 189 : 1967 CrLJ 586.

21 Edmund N. Schuster v. Asst. Collector of Customs, AIR 1967 Punj 189.

22 Mahaeo Arnrut Gajbhiye v. State of Maharashtra, 1974 CrLJ 475, 477 (Ker).

23 Ram Shankar v. state, 1990 CrLJ 2519 (All-DB).

of application without holding an enquiry was held improper.24 When a surety furnishes a
surety bond along with an affidavit, The Magistrate can accept his surety bond and can make
further enquiry as well.25 Where sureties are insisted upon, ordinary, due weight must be given
to the affidavits produced by the sureties and insistence on an enquiry or solvency certificate
should be the exception rather than the rule.26
O. Accused need not be detained for verifying surety affidavits- Surety affidavits shall
normally, be accepted released on bail, for verifying the sufficiency of surety affidavits, the
accused shall not be detained further.27
P. Identification of surety by lawyer - Where an advocate/lawyer identifies a surety for the
purpose of bail, he acts as a lawyer, the said act is authorised by law.32

24 G.Venkat Ram Reddy v. state, 1990 CrLJ 2741 (AP).

25 Bekaru Singh v. State ofU.P., AIR 1963 SC 430 : 1963 ( l ) CrLJ 335.

26 Valson v. State of Kerala, 1984 (2) Crimes 503 (Ker).

27 State ofRajasthan v. Lai Singh, 1987 CrLJ 269 (Raj).

 Conclusion
The procedure is laid down in CrPC to compel the attendance of the persons including the
accused and witnesses by issuing of summons, arrest warrant or in case of absconding,
declaring such person as proclaimed offender and attaching his properties. • Summons and
How to serve: Summons are issued for the purpose of appearance or for production of
document or thing. Every summon issued by a court shall be in writing, in duplicate, signed by
the presiding officer of the court and shall bear the seal of the court. Every summon should be
served by a police officer personally on the person summoned by delivering a copy of summons
after taking a signature on the duplicate copy, when a person summoned is not present such
summons may be served on some adult member of the family. In case of a corporate body it
may be served to the secretary, local manager or to the principal officer of the corporation. In
case the above mentioned persons are not available for serving of summons the copy of the
summon shall be affixed to the out door of the house in which the person summoned ordinarily
resides. Where the person is summoned is a government servant summons could be served
through his employer. • Warrant of arrest and How to Issue: An arrest warrant is a written order
issued by a judge or other proper judicial officer, upon probable cause, directing the police to
arrest a particular person. Where a person has been concerned in a non-cognizable offence he
cannot (except in certain cases) be arrested without a warrant. Every warrant of arrest issued
by a court should be in writing and must contain the signature of the preceding officer, name
of the person who is to execute, name of the person to be arrested and seal of the court. Every
warrant shall remain in force until it is cancelled by the court or until it is executed. Court may
in its discretion make an endorsement on warrant for the release of the person after executing
a bond with sufficient sureties. Every warrant issued by any Magistrate in India may be
executed in any place in India or it may be forwarded for execution outside its jurisdiction 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. • Proclamation of Offender and the
attachment of properties: Where a person against whom a warrant has been issued has been
absconding or is concealing himself so that such warrant cannot be executed, court may be
publish a written notice requiring him to appear at specified place and at specified time not less
than 30 days from the date of publishing such proclamation. After issuing of such proclamation
if he fails to comply and has been avoiding his arrest the court may issue an order for the
attachment of the properties of the person absconding. The purpose and the object are to compel
the appearance of the person. • Warrant in lieu of summons: when any person who is bound by
any bond to appear before the court, does not appear, the presiding officer may issue a warrant
directing that such person be arrested and produced before him
BIBLIOGRAPHY

BOOKS

1. S.N. Misra, The code of criminal procedure, Central law publications,

20thedition,(2016).
2. R.V. Kelkar, Criminal procedure, Eastern Book Company,6th edition(2016).
3. Ratanlal and Dhirajlal, The code of Criminal procedure, 25th edition, Lexis
Nexis(2016).
4. K.D Gaur ,The code of Criminal procedure, Universal law publishing co.(2015).

WEBSITES

1. http://www.citeman.com/7032-releasesalecriminal.html
2. http://www.indiankanoon.org/doc/1649627/
3. http://www.e-lawresources.com/sec8-5-.php