Recalling of Summon or Warrant in the Absence of Accused
“Summon” is a document that commands a person to whom it is served to appear before the court and to answer the complaint made against him.
According to Section 2(w) of Code of Criminal Procedure (hereinafter “CrPC”), those cases in which an offense is punishable with an imprisonment of fewer than two years is a summon case. A summons is always addressed to the person whose attendance is required,
“Warrant” is not an order served on any person, it is an order to the police to arrest a person.
According to Section 2(x) of CrPC, a warrant case is one which relates to offenses punishable with death, imprisonment for life or imprisonment for a term of seven years or more.
A warrant may be issued for the attendance of
- an accused,
- a person called upon to show cause against a Magistrate’s order, or
- a witness, subject to the provisions of section 87.
In a warrant case, it is open to a Magistrate to issue a summons. A warrant, which always implies personal arrest and restraint, is not to be issued when a summons to attend would be sufficient for the ends of justice. A warrant remains valid unless it is executed or cancelled.
The ordinarily course of action after filing of chargesheet/complaint:
- Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
- If such an Accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
- Non Bailable Warrant can be issued on failure to appear despite issuance of Bailable Warrant.
“Non Bailable Warrant” is issued whenever accused persons fail to appear during one of the hearing in the case and when the counsel representing them also fail to appear or fail to file petitions seeking condonation for the absence of the accused.
But if the accused appears before the same trial Court and file petitions explaining the reasons for their non-appearance, it is for the trial Court to consider such petitions properly without adjourning the petitions and remand the accused while they had been already released on bail. The trial Courts should properly consider such petitions, on the same date, and pass suitable orders. It is a matter for the Court and the accused concerned, which Courts are aware of and in such circumstances, the Court need not wait for the representations to be made by the concerned Assistant Public Prosecutor or the police. If the Court is convinced that the absence of the accused was not willful, the warrant should be recalled.
Non Appearance of Accused
Absence of accused, issue of warrant – Accused appearing and explaining delay-Earliest disposal of such petitions. When the concerned accused persons appear before the same trial court and file petitions explaining the reasons for their non-appearance, it is for the trial court to consider such petitions properly without adjourning the petitions and remanding the accused concerned to a future day which may unnecessarily put the accused in prison for a few days while they had been already released on bail. The trial courts should properly consider such petitions on the same date and pass suitable orders. It is a matter for the Court and the accused concerned, about which Courts are aware of and in such circumstances, the Court need not wait for the representations to be made by the concerned Assistant Public Prosecutors or the Police.
Non Bailable Warrant may be canceled or converted into a Bailable Warrant/Summons without insisting physical appearance of Accused if such an application is moved on behalf of the Accused before execution of the Non Bailable Warrant on an undertaking of the Accused to appear physically on the next date/s of hearing. Bail applications of such Accused on appearance may be decided w/o. the Accused being taken in physical custody or by granting interim bail till the bail application is decided.
Absence of Accused in cases of Negotiable Instruments Act
The power to grant exemption from personal appearance is discretionary, facts and circumstances of each case are to be seen. Courts should be generous in exempting accused persons from personal appearance,” especially in cases under s. 138, Negotiable Instruments Act, 1881.
In trivial cases and technical cases where no moral turpitude is involved, where the accused are ladies, old and sick persons, factory workers, labourers, busy business people, accused living at distant places the Courts should exempt such persons from personal attendance.
Dispensing Personal Attendance
Section 205 empowers the Magistrate whenever he issues a summons to dispense with the personal attendance of the accused and permit him to appear by a pleader. Exemption from personal attendance under this section may be granted not only at the time of issuing summons, but even at a later stage. However, such power can be exercised only by the Magistrate who issued the summons and not one to whom the case may have been subsequently transferred.
The High Court in the exercise of power under s. 482 CrPC can even consider the plea of an accused for dispensing with his personal attendance as provided in s. 205(1), CrPC in cases warrant has been issued at the first instance in place of even summons
The court has the discretion to dispense with the personal appearance of the accused even on the first hearing. An order granting exemption from personal appearance remains in force, till it is revoked/recalled by the Court. However, Magistrate may constrain to issue the arrest warrant not only because the petitioner did not appear in the court on a particular day but if he fails to file an application either under Section 317 or Section 205 of the Code of Criminal Procedure seeking the permission of the court to dispense with his appearance on that day.
It is imperative that courts and legislature take into account that Summons Cases, considered to be less serious and disposed of quickly, in reality, take as much time as Warrant cases, and therefore, there is no apparent reason to hassle the accused to mandatorily face a prolonged and frivolous trial, without there being any substance in the allegation.
Rather than placing our reliance on judicial pronouncements to clear the air on the issue and redundantly stretching the language of the sections, an amendment of the law is always a better option to put this matter to rest.
Written by Parthvi Patel, student at United World School of Law.