Inside the Legal Matrix - greaterkashmir

In the intricate world of criminal justice, the Bharatiya Nagarik Suraksha Sanhita, 2023, (hereinafter referred to as “the BNSS” has brought numerous changes to the management of summons and arrest warrants. This pivotal legislation not only transforms procedural norms but also seeks to improve transparency and streamline the legal process.

What are summons?

In Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, it was held that a summons is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. A person who is summoned is legally bound to appear before the court on the given date and time.

How should a court issue a summons?

A court summons should be:

In writing, in duplicate, signed by the presiding officer or another authorized officer, and should have the court’s seal.
Alternatively, it can be sent electronically in an encrypted form with the court’s seal or digital signature.

Who is responsible for serving a summons?

Summons can be served by a police officer, a court officer, or another public servant as per the rules set by the State Government. The police station or court registrar should keep a record of addresses, email addresses, phone numbers, and other details as specified by the State Government.

How should a summons be delivered to the person it is addressed to?

The summons should be served personally if possible, by handing one of the copies to the person. Summons can also be sent electronically with the court’s seal, following the rules of the State Government.

What should a person do when they receive a summons?

If a person receives a summons in person, they should sign a receipt on the back of the other copy if requested by the serving officer.

How is a summons served to companies, firms, or societies?

For a company or corporation: Serve the Director, Manager, Secretary, or other officer. Alternatively, send a letter by registered post to one of these officials.
For a firm or association: Serve any partner or send a letter by registered post to one of the partners. The service is considered effective when the letter would normally arrive by post.

What happens if the person summoned cannot be found?

If the person summoned cannot be found, the summons can be left with an adult member of their family living with them, except a servant, who should sign a receipt on the back of the other copy, if required.

What should be done if the summons cannot be served in the usual way?

If the usual methods fail, the serving officer should attach one copy of the summons to a prominent place on the person’s house or homestead. The court may then declare the summons served or order another method of service after making inquiries.

How are summons served on government employees?

The court should send the summons in duplicate to the head of the government office where the person works. The head of the office will ensure the summons is served and return it with a signature as proof.

How are summons served outside the local limits of a court’s jurisdiction?

The court sends the summons in duplicate to a magistrate in the area where the person lives or is present. The magistrate will serve the summons.

How is proof of service established when the serving officer is not present?

An affidavit made before a magistrate, stating that the summons was served, along with a copy of the endorsed summons, is admissible as evidence. Electronic summons are also considered duly served, with copies kept as proof.

How are summons served to witnesses?

In addition to regular methods, a court can send a summons to a witness electronically or by registered post. If there is an acknowledgment signed by the witness or an indication from postal employees that the witness refused delivery, or proof of electronic delivery, the court may consider the summons duly served.

What is an arrest warrant?

A warrant of arrest is a legal document issued by a court or authorized judicial officer that authorizes law enforcement to apprehend and detain an individual.

How should a warrant of arrest be issued by a court?

A warrant of arrest should be:

In writing, signed by the presiding officer of the court, and bearing the court’s seal.
It remains valid until it is either canceled by the court or executed.

Can a court allow a person to be released on bail when issuing a warrant?

Yes, the court can endorse the warrant, allowing the person to be released on bail if they provide a bond with sureties for their appearance in court at a specified time. The endorsement must include:

The number of sureties required.
The amount each surety and the person arrested must pay.
The time the person must appear in court.

To whom is a warrant of arrest usually directed?

A warrant of arrest is typically directed to one or more police officers. If no police officer is available and immediate execution is necessary, it can be directed to any other person or persons.

Can a warrant be directed to any person for arrest?

Yes, the Chief Judicial Magistrate or a Magistrate of the first class can direct a warrant to any person within their jurisdiction for the arrest of an escaped convict, proclaimed offender, or someone accused of a non-bailable offence evading arrest.

What was held in Inder Mohan Goswami v. State of Uttaranchal?

In Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, it was held that a non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result.

How should a person execute a warrant?

The person executing the warrant must:

Acknowledge receipt of the warrant in writing.
Arrest the person named in the warrant if they are on land or property under their charge.
Hand over the arrested person to the nearest police officer, who will then take the person to a magistrate unless security is taken.

Can a warrant directed to a police officer be executed by another police officer?

Yes, a warrant directed to a police officer can be executed by any other police officer if their name is endorsed on the warrant by the officer to whom it was originally directed.

What must be done when executing a warrant of arrest?

The officer or person executing the warrant must:

Inform the person to be arrested of the substance of the warrant.
Show the warrant to the person if requested.

What should happen after a person is arrested under a warrant?

The arrested person should be brought before the court without unnecessary delay, and this delay should not exceed 24 hours, excluding travel time to the magistrate’s court.

Where can a warrant of arrest be executed?

A warrant of arrest can be executed anywhere in India.

What is the procedure for executing a warrant outside the local jurisdiction?

If a warrant needs to be executed outside the local jurisdiction:

The court may forward it to an Executive Magistrate, District Superintendent of Police, or Commissioner of Police in the area where it needs to be executed.
The magistrate or police officer will endorse their name on the warrant and arrange for its execution.

What is the process if a warrant is directed to a police officer for execution outside their jurisdiction?

The police officer should:

Take the warrant to an Executive Magistrate or a police officer not below the rank of an officer in charge of a police station in the area where it is to be executed.
The magistrate or police officer will endorse their name, authorizing execution.
If there is a risk of delay, the police officer may execute the warrant without such endorsement.

What happens when a person is arrested outside the district where the warrant was issued?

The arrested person should be taken before the Executive Magistrate, District Superintendent of Police, or Commissioner of Police unless the issuing court is within 30 kilometers of the arrest or is closer than the local authorities, or if security is taken.

What does the Executive Magistrate do when an arrested person is brought before them?

The local magistrate or police official should:

Confirm the arrested person is the one named in the warrant.
Direct that the person be taken into custody and brought to the issuing court.
If the offence is bailable and the person can provide bail bond, the magistrate or the police official may send the bond to the issuing court.
For non-bailable offenses, the Chief Judicial Magistrate or Sessions Judge may release the person on bail based on provided information and documents.

Can a police officer take security under a warrant?

Yes, a police officer can take security when executing a warrant.

As the BNSS sets a new standard for handling summons and arrest warrants, it paves the way for a more streamlined and accountable judicial system. By embracing these changes, the law promises to fortify the integrity of the legal process while safeguarding the rights of individuals. Staying informed about these developments is essential for anyone involved in or affected by the criminal justice system. As we move forward, the clarity and efficiency introduced by these reforms will undoubtedly shape the future of legal proceedings in India.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.