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E-Notes

Class : B.A.LL.B VI Sem A+B+C

Paper Code : LLB 310

Subject : Code of Criminal Procedure

Faculty Name : Mr. Saurabh Sharma

Unit-2

UNIT-II: ARREST, BAIL AND PRE-TRIAL PROCEEDINGS

1. Arrest and Rights of an Arrested Person

 The procedure under Section 57/167of the Cr.P. C, the accused must be
produced before a Magistrate within 24 hours of arrest. On the off chance
that the examination can't be finished up inside this time, a Magistrate may
arrange for the remand of the captured individual to police guardianship u/s
167 (3) of the Cr.P.C.

 The Magistrate ought to be completely satisfied that there is acceptable

ground to remand the denounced to police care. Under Section 50 of the
CrPC, the captured individual is to be educated regarding the points of
interest of the offense or some other reason for capture. Further, he/she

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without a warrant for an offense which is bailable, he/she should be educated

that he/she is qualified for be released on bail.
 Under Section 50A of the CrPC, the arrested person is entitled to have a
person nominated by him informed about the arrest and moreover the
Magistrate is required to satisfy himself that the provisions of this Section
are complied with.

The Supreme Court has also recognized the right of the arrested person to have
access to a lawyer in Nandini Satpathy [(1978) 2SCC 424] and DK Basu [(1997) 1
SCC 410]. Under Section 51 CrPC, a person who is arrested may be searched and a
list shall be prepared of any articles found on his person. This personal search
memo is especially important if there is any allegation of recovery of incriminating
material from the person of the accused.

 Under Section 54 CrPC, the arrested person can request that he/she be
examined by a medical practitioner if the examination of his person will
either disprove the commission of the offence by him, or will prove the
commission of any offence against his body by another person.
 Under Section 53 and 53A CrPC, the police can send the arrested person for
medical examination.

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Arrest

Arrest signifies: "a seizure or persuasive restriction; an activity of the ability to

deny an individual of their freedom; the taking or keeping of an individual in care
by lawful power, particularly, because of a criminal accusation.

Arrests can be made on both criminal charges and civil charges, although civil
arrest is a drastic measure that is not looked upon with favor by the courts. The
federal Constitution imposes limits on both civil and criminal arrests.

ARREST HOW MADE:

Section 46 of Criminal Procedure Code (hereinafter Cr.P.C) –

(1) In making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action.

(2) If such person forcibly resists the Endeavour to arrest him, or attempts to evade
the arrest, such police officer or other person may use all means necessary to effect
the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not
accused of an offence punishable with death or with imprisonment for life.

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[(4) Save in exceptional circumstances, no woman shall be arrested after sunset

and before sunrise, and where such exceptional circumstances exist, the woman
police officer shall, by making a written report, obtain the prior permission of the
Judicial Magistrate of the first class within whose local jurisdiction the offence is
committed or the arrest is to be made.] {Ins. by Act 25 of 2005, S. 6 (w.e.f 23-6-
2006)}.

ARREST means a curtailment of personal liberty, for legal purposes. Arrest means
preventing a person from having free movement by applying the authority under
law.

Who can arrest :

1. A police officer may arrest without a warrant under Cr. P.C. Sections 41 (1) to
151; under a warrant under Sections 72 to 74; under the written order of an officer
in charge under Sections 55 and 157; under the orders of magistrate u/s 44 and in
non cognizable offence u/s 42 Cr. P.C.

2. A superior officer u/s 36 Cr. P.C.

3. An Officer-in-Charge of a Police Station u/s 42 (2) and 157 Cr. P.C.

4. A magistrate u/s 44 Cr. P.C.

5. A military officer u/s 130 and 131 Cr. P.C.

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6. A private person without warrant u/s 43 Cr. P.C., with warrant u/s 72 and 73,
under order of a Police officer u/s 37 and under order of a magistrate u/s 37 and 44
Cr. P.C. and also 60 (1) Cr. P.C.

Powers of the Police to Arrest :

Sections 41, 42, 151 Cr. P.C. and a Police officer may arrest without warrant u/s 41
Cr. P.C. in the following conditions :-

A. Who has been concerned in any cognizable offence

B. Who has in possession, without, lawful excuse, of any house breaking
weapon
C. Who has been proclaimed as an offender either under Cr. P.C. or by order
of the State Govt.
D. Who is in possession of any stolen property
E. Who obstructs a police officer while in the execution of his duty or who has
escaped, or attempts to escape, from lawful custody
F. Who is reasonably suspected of being a deserter from any of the Armed
forces of the Union
G. Who has been concerned in any law relating to extradition
H. Who, being a released convict commits a breach of any rule made under
sub-section (5) of Section 356 Cr. P.C. (i) For whose arrest any requisition

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has been received from another police officer specifying the person to be
arrested and the offence and other cause for which the arrest is to be made.

RIGHTS OF ARRESTED PERSON:

Article 22 of the Constitution provided certain fundamental rights for the arrested
persons –

a.. Right to know the grounds of his arrest

b. Right to consult the lawyer of his choice

c. Right to be defended through a counsel

d. Right to be produced before the magistrate within 24 hours of arrest

e. Right not to be detained beyond 24 hours

f. Right to a corresponding duty of the police officer to procure a direction from

the Magistrate if the detention is needed beyond 24 hours.

In a JUDGEMENT the Supreme Court of India recognized some more rights of an

arrested person under Articles 21 and 22 (2) of the Constitution of India.

g. Right to communicate the information of arrest to a friend, relative or well

wisher.

h. Right to consult a lawyer

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i. Right to be informed about his right to seek information to relative friends, well
wisher through the police

j. Right to a corresponding duty that a police officer has to record the details of the
person to whom the information about the arrest is given, in a diary. Besides, the
arrested person must be produced before a registered medical officer for treatment
and checkup immediately after arrest.

There are two types of rights of arrested person: -

(i) At the time of arrest

(ii) At the time of trial In India accused have more rights as compared to victim: -

(a) Right to be informed of ground of arrest. Section 50 (1) of Cr. P.C.: Every
police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is
arrested or other grounds for such arrest.

Object: – It is one of the principles of natural justice

(b) Obligation of person making arrest to inform about the arrest etc. to a
nominated person.

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Section 50 A of Cr. P.C.:

[(1) Every police officer or other person making any arrest under this Code
shall forthwith give the information regarding such arrest and place where as
may be disclosed or nominated by the arrested person for the purpose of giving
such information.

(2) The police officer shall inform the arrested person of his rights under sub-
section (1) as soon as he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such form
as may be prescribed in this behalf by the State Government.

(4) It shall be the duty of the Magistrate before whom such arrested person
produced, to satisfy himself that the requirements of sub-section (2) and sub-
section (3) have been complied with in respect of such arrested person.]

(c) Right to be informed of right to bail. Section 50 (2) of Cr. P.C.: Where a
police officer arrests without warrant any person other than a person accused of
a non-bailable offence, he shall inform the person arrested that he is entitled to
be released on bail and that he may arrange for sureties on his behalf.

(d) Right to be produced before the Magistrate without delay. Section 56 of Cr.
P.C.: Person arrested to be taken before Magistrate or officer in charge of police
station. –A police officer making an arrest without warrant shall, without

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unnecessary delay and subject to the provisions herein contained as to bail, take
or send the person arrested before a Magistrate having jurisdiction in the case,
or before the officer in charge of a police station.

(e) Right of not being detained for more than twenty-four hours. Section 76 of
Cr. P.C.: Person arrested to be brought before Court without delay. –The police
officer or other person executing a warrant of arrest shall (subject to the
provisions of Section 71 as to security) without unnecessary delay, bring the
person arrested before the Court before which he is required by law to produce
such person: Provided that such delay shall not, in any case, exceed twenty-four
hours exclusive of the time necessary for the journey from the place of arrest to
the Magistrate’s Court.

(f) Right of not being detained for more than twenty-four hours without judicial
scrutiny

Section 57 of Cr. P.C.: No police officer shall detain in custody a person

arrested without warrant for a longer period than under all circumstances of the
case is reasonable, and such period shall not, in the absence of special order of a
Magistrate under section 167, exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate’s Court.

Arrest has sweeping results; the economic wellbeing and respect of an

individual suspect becomes in question, even his release can't obliterate the

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disgrace subsequent upon capture. There are monetary ramifications for the
captured individual and his family.

The public endures its repercussion. Normally, it should be guaranteed that

arrests are not affected in a paltry way and that the privileges of captured people
are completely ensured. Towards this impact, The Cr.P.C. sets down protections
to such an extent that the privileges of people revered in Art. 21 and 22(1) are
not abused.

In any case, it has been some time before the legal arrangements have been
perceived taking all things together its suggestion and they have been offered
impact to. Generally the criminal organization framework disregards such
defends and the legal executive for a long while has been careless about
guaranteeing the appropriate recognition of detainee's privileges.

So there have been many later declarations and statutory enactments which
reaffirm the faith in the rights of arrested persons. The endeavor is to look into
various rights of arrested persons, enshrined in statutes, conventions and
judicial pronouncements.

Provision for Bail under the Code

The framework that oversees the situation with people accused of perpetrating
wrongdoings, from the hour of their capture to the hour of their preliminary,
and forthcoming allure, with the significant motivation behind guaranteeing
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their quality at preliminary. By and large, an individual blamed for a

wrongdoing should be held in the authority of the court until their blame or
blamelessness is resolved.

Nonetheless, the court has the alternative of delivering the person before that
assurance is made, and this choice is called bail. Bail is set by the adjudicator
during the litigant's first appearance. For some, offenses, bail need not be set.

For example, the defendant may be released on the issuance of a citation such
as a ticket for a driving violation or when booked for a minor misdemeanor at a
police station or jail. But for major misdemeanors and felonies, the defendant
must appear before a judge before bail is determined. The courts have several
methods available for releasing defendants on bail. The judge determines which
of these methods is used. One alternative is for the defendant to post a bail bond
or pledge of money.

The bond can be endorsed by an expert guarantee holder, the denounced, or the
loved ones of the charged. Marking the bail bond is a guarantee that the
respondent will show up in the predefined criminal continuing. The
respondent's inability to show up will make the underwriters of the bond pay to
the court the sum assigned. The measure of bail is for the most part a sum
decided considering the reality of the supposed offense. A respondent can
likewise be delivered upon her or his own recognizance, which is the litigant's

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composed, uninsured guarantee to return for preliminary. Such a delivery

happens just if the suspect has stable job, stable family ties, and a past filled
with home locally. Stubborn infringement of the particulars of an individual
recognizance comprises a wrongdoing. Different conditions may likewise be set
in regards to the arrival of the litigant.

The Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141–3150) provided for many
additional conditions that do not rely upon finances and that reflected current
trends to move away from financial requirements for freedom. These conditions
came about, in part, owing to concerns regarding the discriminatory nature of
bail toward the poor. The Bail Reform Act allows for conditional releases
dependent upon such circumstances as maintaining employment, meeting
curfews, and receiving medical or psychiatric treatment. Section 436 Cr. P.C.
provides that when a person is arrested in a bailable case, bail is a right to the
arrested person. Section 437 Cr. P.C. – It relates to non bailable offences.
Section 438 Cr. P.C. directions for grant of bail to person apprehending arrest.
When any person has reason to believe that the may be arrested on an
accusation of having committed a nonbailable offence, he may apply to the
High Court or Court of Sessions for a direction under this section, and that
Court may, if it thinks fir, direct that in the event of such arrest, he shall be
released on bail. Section 439 Cr. P.C. – Special powers of High Court or Court

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of Sessions regarding bail. The directions of the Supreme Court should strictly
be followed in the matter of arrest of any person under any law

Anticipatory Bail

Section 438 of the CrPC enables the superior courts to grant anticipatory bail.
An anticipatory bail can be applied for when the person has reason to believe
that he/ she may be arrested. An application for anticipatory bail can be made to
the Sessions Court, the High Court or even the Supreme Court. However,
normally it is to be presumed that the Court of Sessions would be first
approached for grant of anticipatory bail.

The court may consider the following aspects when considering an application
for anticipatory bail: (i) the nature and gravity of accusation;

(ii) the antecedents of the applicant;

(iii) The possibility that the accused may flee from justice; and

(iv) The accusation appears to be aimed at humiliating the applicant.

The CrPC has not given any test or criterion to determine cognizable or non-
cognizable offences. The First Schedule of CrPC, however, indicates that all
offences punishable with imprisonment for not less than three years are taken as
serious offences and are treated as cognizable. Offences such as murder,
robbery, dacoity, rape and kidnapping are cognizable offences. Offences

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relating to marriage including bigamy and adultery are punishable with more
than five years imprisonment, yet they have been included in the category of
non-cognizable offences. Other offences though serious have been considered
as non-cognizable only.

(i) such person shall not be so released if there appears reasonable grounds for
believing that he has been guilty of an offence punishable with death or
imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence
and he has been previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for seven years or more, or
he had been previously convicted on two or more occasions of a non-
bailable and cognizable offence.
(iii) Provided that the Court may direct that a person referred to in clause (1)
of clause (ii) be released on bail if such person is under the age of sixteen
years or is a woman or is sick or infirm:

(iv) Provided further that the Court may also direct that a person referred to
in clause (ii) be released on bail if it is satisfied that it is just and proper
so to do for any other special reason:

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(v) Provided also that the mere fact that an accused person may be required for
being identified by witnesses during investigation shall not be sufficient
ground for refusing to grant bail if he is otherwise entitled to be released
on bail and gives an undertaking that he shall comply with such
directions as may be given by the Court.

(vi) If it appears to such officer or Court at any stage of the investigation,

inquiry or trial, as the case may be, that there are no reasonable grounds
for believing that the accused has committed a non-bailable offence, but
there are sufficient grounds for further inquiry into his guilt, the accused
shall, subject to the provisions of Section 446A and pending such
inquiry, be released on bail, or, at the discretion of such officer or Court,
on the execution by him of a bond without sureties for his appearance as
hereinafter provided

(vii) When a person accused or suspected of the commission of an offence

punishable with imprisonment which may extend to seven years or more
or of an offence under Chapter VI,

Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement
of, or conspiracy or attempt to commit, any such offence, is released on bail under

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sub-section (1), the Court may impose any condition which the Court considers
necessary,-

(a) in order to ensure that such person shall attend in accordance with the
conditions of the bond executed under this Chapter, or
(viii) In order to ensure that such person shall not commit an offence similar to
the offence of which he is accused or of the commission of which he is
suspected, or otherwise in the interests of Justice.
(ix) An officer or a Court releasing any person on bail under sub-section (1)
or subsection (2), shall record in writing his or its reasons or special
reasons, for so doing.
(x) Any Court which has released a person on bail under sub-section (1) or
subsection (2), may, if it considers it necessary so to do, direct that such
person be arrested and commit him to custody.
(xi) If, in any case triable by a Magistrate, the trial of a person accused of any
non bailable offence is not concluded within a period of sixty days from
the first date fixed for taking evidence in the case, such person shall, if he
is in custody during the whole of the said period, be released on bail to
the satisfaction of the Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.
(xii) If, at any time, after the conclusion of the trial of a person accused of a
non bailable offence and before judgment is delivered, the Court is of

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opinion that there are reasonable grounds for believing that the accused is
not guilty of any such offence, it shall release the accused, if he is in
custody, on the execution by him of a bond without sureties for his
appearance to hear judgment delivery.

Process to Compel Appearance of Person Summons Form of summons—

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.

Summons how served

(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.

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Service of summons on corporate bodies and societies 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.

Explanation—In this section "corporation" means an incorporated company or

other body corporate and includes a society registered under the Societies
Registration Act, 1860 (21 of 1860) Service when persons summoned cannot be
found — 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 therefor on the back of the other duplicate Explanation—A
servant is not a member of the family within the meaning of this section 65.

Procedure when service cannot be effected as before provided 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

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duly served or order fresh service in such manner as it considers proper. Service
on Government servant

(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) Such signature shall be evidence of due service. Service of summons outside
local limits 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 –

(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

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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
(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

3) 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 Form of
warrant of arrest and duration

(1) Every warrant of arrest issued by a Court under this Code shall be in
writing, signed by the presiding officer of such Court and shall bear the seal of
the Court

(2) Every such warrant shall remain in force until it is cancelled by the Court
which issued it, or until it is executed Power to direct security to be taken

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(1) Any Court issuing a warrant for the arrest of any person may in its
discretion direct by 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 Warrants to whom directed

A warrant of arrest shall ordinarily be directed to one or more police officers;

but the Court issuing such a warrant may, if its immediate execution is
necessary and no police officer is immediately available, direct it to any other
person or persons, and such person or persons shall execute the same.

When a warrant is directed to more officers or persons than one, it may be

executed by all, or by any one or more of them.

Warrant may be directed to any person

(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a
warrant to any person within his local jurisdiction for the arrest of any escaped
convict, proclaimed offender or of any person who is accused of a non-bailable
offence and is evading arrest

(2) Such person shall acknowledge in writing the receipt of the warrant, and
shall execute it if the person for whose arrest it was issued, is in, or enters on,
any land or other property under his charge
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(3) When the person against whom such warrant is issued is arrested, he shall
be made over with the warrant to the nearest police officer, who shall cause him
to be taken before a Magistrate having jurisdiction in the case, unless security is
taken under section 71. Warrant directed to police officer A warrant directed to
any police officer may also be executed by any other police officer whose name
is endorsed upon the warrant by the officer to whom it is directed or endorsed.
Notification of substance of warrant. The police officer or other person
executing not a warrant of arrest shall notify the substance thereof to the person
to be arrested, and, if so required, shall show him the warrant. Person arrested
to be brought before Court without delay The police officer or other person
executing a warrant of arrest shall (subject to the provisions of section 71 as to
security) without unnecessary delay brings the person arrested before the Court
before which he is required by law to produce such person:

Provided that such delay shall not, in any case, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the
Magistrate's Court. Where warrant may be executed A warrant of arrest may be
executed at any place in India Warrant forwarded for execution outside
jurisdiction

(1) When a warrant is to be executed outside the local jurisdiction of the Court
issuing it, such Court may, instead of directing the warrant to a police officer
within its jurisdiction, forward it by post or otherwise to any Executive

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Magistrate or District Superintendent of Police or Commissioner of Police

within the local limits of whose jurisdiction it is to be executed; and the
Executive Magistrate or District Superintendent or Commissioner shall endorse
his name thereon, and if practicable, cause it to be executed in the manner
hereinbefore provided

(2) The Court issuing a warrant under sub-section (1) shall forward, along with
the warrant, the substance of the information against the person to be arrested
together with such documents, if any, as may be sufficient to enable the Court
acting under section 81 to decide whether bail should or should not be granted
to the person Warrant directed to police officer for execution outside
jurisdiction –

(1) When a warrant directed to a police officer is to be executed beyond the

local jurisdiction of the Court issuing the same, he shall ordinarily take it for
endorsement either to an Executive Magistrate or to a police officer not below
the rank of an officer in charge of a police station, within the local limits of
whose jurisdiction the warrant is to be executed

(2) Such Magistrate or police officer shall endorse his name thereon and such
endorsement shall be sufficient authority to the police officer to whom the
warrant is directed to execute the same, and the local police shall, if so required,
assist such officer in executing such warrant

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(3) Whenever there is reason to believe that the delay occasioned by obtaining
the endorsement of the Magistrate or police officer within whose local
jurisdiction the warrant is to be executed will prevent such execution, the police
officer to whom it is directed may execute the same without such endorsement
in any place beyond the local jurisdiction of the Court which issued it.

Procedure of arrest of person against whom warrant issued

When a warrant of arrest is executed outside the district in which it was issued,
the person arrested shall, unless the Court which issued the warrant is within
thirty kilometres of the place of arrest or is nearer than the Executive Magistrate
or District Superintendent of Police or Commissioner of Police within the local
limits of whose jurisdiction the arrest was made, or unless security is taken
under section 71, be taken before such Magistrate or District Superintendent or
Commissioner Procedure by Magistrate before whom such person arrested is
brought

(1) 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 or Commissioner, or a direction has been endorsed under

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 Chanderprabhu Jain College of Higher Studies
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School of Law
An ISO 9001:2015 Certified Quality Institute
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section 71 on the warrant and such person is ready and willing to give the
security required by such direction, the Magistrate, District Superintendent or
Commissioner shall take such bail or security, as the case may be, and forward
the bond, to the Court which issued the warrant: Provided further that if the
offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate
(subject to the provisions of section 437), or the Sessions 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

(2) Nothing in this section shall be deemed to prevent a police officer from
taking security under section 71 Proclamation and attachment Proclamation for
person absconding:-

(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 specific place and at
a specified time not less than thirty days from the date of publishing such
proclamation

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An ISO 9001:2015 Certified Quality Institute
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(2) The proclamation shall be published as follows— (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 home-stead 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.

Attachment of property of person absconding

(1) The Court issuing a proclamation under section 82 may, for reasons to be
recorded in writing, at any time after the issue of the proclamation, order the
attachment of any property, movable or immovable, or both, belonging to the
proclaimed person:

(2) Provided that where at the time of the issue of the proclamation the Court is
satisfied, by affidavit or otherwise, that the person in relation to whom the
proclamation is to be issued,—

(a) is about to dispose of the whole or any part of his property, or

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School of Law
An ISO 9001:2015 Certified Quality Institute
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(b) is about to remove the whole or any part of his property from the local
jurisdiction of the Court, it may order the attachment simultaneously with the
issue of the proclamation

(2) Such order shall authorise the attachment of any property belonging to such
person within the district in which it is made; and it shall authorise the
attachment of any property belonging to such person without such district when
endorsed by the District Magistrate within whose district such property is
situate

(3) If the property ordered to be attached is a debt or other movable property,

the attachment under this section shall be made— (a) by seizure; or (b) by the
appointment of a receiver; or (c) by an order in writing prohibiting the delivery
of such property to the proclaimed person or to any one on his behalf; or (d) by
all or any two of such methods, as the Court thinks fit

(4) If the property ordered to be attached is immovable, the attachment under

this section shall, in the case of land paying revenue to the State Government,
be made through the Collector of the district in which the land is situate, and in
all other cases—

(a) by taking possession; or

(b) by the appointment of a receiver; or

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 Chanderprabhu Jain College of Higher Studies
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School of Law
An ISO 9001:2015 Certified Quality Institute
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(c) by an order in writing prohibiting the payment of rent on delivery of

property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit

(5) If the property ordered to be attached consists of live-stock or is of a

perishable nature, the Court may, if it thinks it expedient, order immediate sale
thereof, and in such case the proceeds of the sale shall abide the order of the
Court

(6) The powers, duties and liabilities of a receiver appointed under this section
shall be the same as those of a receiver appointed under the Code of Civil
Procedure, 1908 Other rules regarding processes Issue of warrant in lieu of, or
in addition to, summons A Court may, in any case in which it is empowered by
this Code to issue a summons for the appearance of any person, issue, after
recording its reasons in writing, a warrant for his arrest—

(a) if, either before the issue of such summons, or after the issue of the same but
before the time fixed for his appearance, the Court sees reason to believe that he
has absconded or will not obey the summons; or

(b) if at such time he fails to appear and the summons is proved to have been
duly served in time to admit of his appearing in accordance therewith and no
reasonable excuse is offered for such failure.

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Power to take bond for appearance

When any person for whose appearance or arrest the officer presiding in any
Court is empowered to issue a summons or warrant, is present in such Court,
such officer may require such person to execute a bond, with or without
sureties, for his appearance in such Court, or any other Court to which the case
may be transferred for trial

Arrest on breach of bond for appearance

When any person who is bound by any bond taken under this Code to appear
before a Court, does not appear, the officer presiding in such Court may issue a
warrant directing that such person be arrested and produced before him
Provisions of this Chapter generally applicable to summons and warrants of
arrest The provisions contained in this Chapter relating to a summons and
warrants, and their issue, service and execution, shall, so far as may be, apply to
every summons and every warrant of arrest issued under this Code

Process to Compel Production of Things Summons to produce document

or other thing

(1) Whenever any Court or any officer in charge of a police station considers
that the production of any document or other thing is necessary or desirable for
the purposes of any investigation, inquiry, trial or other proceeding under this
Code by or before such Court or officer, such Court may issue a summons, or
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School of Law
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such officer a written order, to the person in whose possession or power such
document or thing is believed to be, requiring him to attend and produce it, or to
produce it, at the time and place stated in the summons or order

(2) Any person required under this section merely to produce a document or
other thing shall be deemed to have complied with the requisition if he causes
such document or thing to be produced instead of attending personally to
produce the same

(3) Nothing in this section shall be deemed— (a) to affect, sections 123 and 124
of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers, Books Evidence
Act, 1891(13 of 1891), or (b) to apply to a letter, postcard, telegram or other
document or any parcel or thing in the custody of the postal or telegraph
authority.

Search-warrants

When search-warrant may be issued

(1) (a) Where any Court has reason to believe that a person to whom a
summons or order under section 91 or a requisition under sub-section (1) of
section 92 has been, or might be, addressed, will not or would not produce the
document or thing as required by such summons or requisition, or

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An ISO 9001:2015 Certified Quality Institute
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(b) where such document or thing is not known to the Court to be in the
possession of any person, or

(c) where the Court considers that the purposes of any inquiry, trial or other
proceeding

The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be,
apply to all search-warrants issued under section 93, section 94, section 95 or
section 97 Persons in charge of closed place to allow search

(1) Whenever any place liable to search of inspection under this Chapter is
closed, any person residing in, or being in charge of, such place, shall, on
demand of the officer or other person executing the warrant, and on production
of the warrant, allow him free ingress thereto, and afford all reasonable
facilities for a search therein

(2) If ingress into such place cannot be so obtained, the officer or other person
executing the warrant may proceed in the manner provided by sub-section (2)
of section 47

(3) Where any person in or about such place is reasonably suspected of

concealing about his person any article for which search should be made, such
person may be searched and if such person is a woman, the search shall be
made by another woman with strict regard to decency

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School of Law
An ISO 9001:2015 Certified Quality Institute
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(4) Before making a search under this Chapter, the officer or other person about
to make it shall call upon two or more independent and respectable inhabitants
of the locality in which the place to be searched is situate or of any other
locality if no such inhabitant of the said locality is available or is willing to be a
witness to the search, to attend and witness the search and may issue an order in
writing to them or any of them so to do

(5) The search shall be made in their presence, and a list of all things seized in
the course of such search and of the places in which they are respectively found
shall be prepared by such officer or other person and signed by such witnesses;
but no person witnessing a search under this section shall be required to attend
the Court as a witness of the search unless specially summoned by it

(6) The occupant of the place searched, or some person in his behalf, shall, in
every instance, be permitted to attend during the search, and a copy of the list
prepared under this section, signed by the said witnesses, shall be delivered to
such occupant or person

(7) When any person is searched under sub-section (3), a list of all things taken
possession of shall be prepared, and a copy thereof shall be delivered to such
person (8) Any person who, without reasonable cause, refuses or neglects to
attend and witness a search under this section, when called upon to do so by an

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An ISO 9001:2015 Certified Quality Institute
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order in writing delivered or tendered to him, shall be deemed to have

committed an offence under section 187 of the Indian Penal Code (45 of 1860).

Condition Requisites for Initiation of Proceeding

Cognizance of offences by Magistrates –

(1) Subject to the provisions of this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially empowered in this behalf
under sub-section

(2), may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or
upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second
class to take cognizance under sub-section

(1) of such offences as are within his competence to inquire into or try Transfer
on application of the accused – When a Magistrate takes cognizance of an
offence under clause (c) of sub-section (1) of section 190, the accused shall,
before any evidence is taken, be informed that he is entitled to have the case

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School of Law
An ISO 9001:2015 Certified Quality Institute
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inquired into or tried by another Magistrate, and if the accused or any of the
accused, if there be more than one, objects to further proceedings before the
Magistrate taking cognizance, the case shall be transferred to such other
Magistrate as may be specified by the Chief Judicial Magistrate in this behalf
Making over of cases to Magistrates –

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence,
make over the case for inquiry or trial to any competent Magistrate subordinate
to him

(2) Any Magistrate of the first class empowered in this behalf by the Chief
Judicial Magistrate may, after taking cognizance of an offence, make over the
case for inquiry or trial to such other competent Magistrate as the Chief Judicial
Magistrate may, by general or special order, specify, and thereupon such
Magistrate may hold the inquiry or trial.

Complaint to Magistrate Examination of complainant –

A Magistrate taking cognizance of an offence on complaint shall examine upon

oath the complainant and the witnesses present, if any, and the substance of
such examination shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not
examine the complainant and the witnesses—
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(a) If a public servant acting or purporting to act in the discharge of his official
duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another
Magistrate under section 192: Provided further that if the Magistrate makes
over the case to another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need not re-examine them.

Procedure by Magistrate not competent to take cognizance of the case - If the

complaint is made to a Magistrate who is not competent to take cognizance of
the offence he shall,—

(a) If the complaint is in writing, return it for presentation to the proper Court
with an endorsement to that effect;

(b) If the complaint is not in writing, direct the complainant to the proper Court
Postponement of issue of process

(1) Any Magistrate, on receipt of a complaint of an offence of which he is

authorised to take cognizance or which has been made over to him under
section 192, may, if he thinks fit, postpone the issue of process against the
accused, and either inquire into the case himself or direct an investigation to be
made by a police officer or by such other person as he thinks fit, for the purpose
of deciding whether or not there is sufficient ground for proceeding: Provided
that no such direction for investigation shall be made,—
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(a) where it appears to the Magistrate that the offence complained of is triable
exclusively by the Court of Sessions; or

(b) where the complaint has not been made by a Court, unless the complainant
and the witnesses present (if any) have been examined on oath under section
200 (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit,
take evidence of witness on oath: Provided that if it appears to the Magistrate
that the offence complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses and examine them
on oath

(3) If an investigation under sub-section (1) is made by a person not being a

police officer, he shall have for that investigation all the powers conferred by
this Code on an officer in charge of a police station except the power to arrest
without warrant.

Dismissal of complaint –

If, after considering the statements on oath (if any) of the complainant and of
the wit nesses and the result of the inquiry or investigation (if any) under
section 202, the Magistrate is of opinion that there is no sufficient ground for
proceeding, he shall dismiss the complaint, and in every such case he shall
briefly record his reasons for so doing

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Commencement of Proceeding before Magistrate

Issue of process

(1) If in the opinion of a Magistrate taking cognizance of an offence there is

sufficient ground for proceeding, and the case appears to be—

(a) a summons-case, he shall issue his summons for the attendance of the
accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for
causing the accused to be brought or to appear at a certain time before such
Magistrate or (if he has no jurisdiction himself) some other Magistrate having
jurisdiction

(2) No summons or warrant shall be issued against the accused under sub-
section (1) until a list of the prosecution witnesses has been filed

(3) In a proceeding instituted upon a complaint made in writing, every

summons or warrant issued under sub-section (1) shall be accompanied by a
copy of such complaint

(4) When by any law for the time being in force any process-fees or other fees
are payable, no process shall be issued until the fees are paid and, if such fees
are not paid within a reasonable time, the Magistrate may dismiss the complaint

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(5) Nothing in this section shall be deemed to affect the provisions of section
87. Magistrate may dispense with personal attendance of accused - (1)
Whenever a Magistrate issues a summons, he may, if he sees reason so to do,
dispense with the personal attendance of the accused and permit him to appear
by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at
any stage of the proceedings, direct the personal attendance of the accused, and,
if necessary, enforce such attendance in the manner hereinbefore provided.

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