WHEN CAN A WARRANT BE ISSUED BY A COURT IN LIEU OF SUMMONS?

Criminal Procedure Code always tries to ensure a fair trial and proceeding so that justice could
prevail in every circumstance. It lays down different provisions to safeguard the rights of victim
as well as accused. It never compromise with accused neither favors any victim. Thus to
maintain this just and fair environment, sometimes it becomes necessary to issue warrant in lieu
of summon. But before knowing the conditions under which warrant can be issued, we should
first know about summon and warrant both.

SUMMON

Summon is a document released by court either for the appearance or for producing a document
or an item which may be issued to an accused person or witness. Section 61 of the Criminal
Procedure Court states that the summons issued by the court should be given in written form and
also in duplicate along with the signature of the Presiding Officer of such Court or by such an
officer as is authorized by the High Court. The summon must have the seal of the high court. The
details provided in the summons should be specific. It should also be clear in its terms regarding
information which needs to be issued like the title of the Court, the place where the person has to
arrive; the day and time of the day when the attendance of the person summoned are required.

According to Section 62 of the Criminal Procedure Code, the summons shall be served by a
police officer or an officer of the Court or any other public servant. In case the summon cannot
brought in effect, then in such situation the serving officer can affix a duplicate summons in front
of residence of the summoned individual, and thereupon the Court, after making such enquiries
as the court have power to declare that the summon was served properly or it may also issue a
new service, which seems to good as per section 65 of code.

WARRANT

Section 70 of the Cr. P. C, deals with the aspects of a warrant of an arrest. The warrants issued
by any court needs to be in writing format and it should also contain signature of presiding
officer who belongs to that same court. The warrant which has to be issued must hold the
symbols of the court which has issued the warrant. A warrant of an arrest shall remain to

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continue in force unless it is cancelled by the respective Court which has published it in the first
place, or until it is executed. The following requirements must be followed while serving an
warrant.

1. The warrant of arrest issued by court must be in written form.

2. The warrant must state the name and the designation of the individual who is to execute
the order.
3. The warrant must give the full name and the description of the person who is to be
arrested.
4. The warrant must describe the offence which has been charged on the individual.
5. The warrant of arrest should have the sign of presiding officer.
6. The warrant of arrest must be sealed.

The purpose to issue warrant is to provide protection to individuals before the court. It is not
issued for the protection of police officer. Section 76 of criminal procedure code clearly
states that any police or any other person who execute a warrant of arrest have to bring the
arrested person before the concerned court. The arrest within such warrant is also subject
certain securities that has been discussed under section 71 of criminal procedure. It is also
important that the arrested person should bring before the concerned court without any
unreasonable delay. However, if due to any reason delay took place, then it should make
certain that the delay should not exceed the period of 24 hour in any case. However, it does
not include the time required to take the arrested person from the place of arrest to
Magistrate’s Court.

WHEN WARRANT CAN BE ISSUED IN LIEU OF SUMMONS

As per section 87 of Cr. P. C, a court may issue a summons in any case in which it is
empowered, for the appearance of any person, may issue warrant of arrest after recording the
reasons in writing if:

(a) If either before or after the issuance of summons, the court believes that the person will
not obey the summons or he has absconded.
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 (b) If the person, fails to appear before the court even after delivering of summons to him.
Also there is no any justifiable reason to support his views that why he fails to appear
before the court.

The courts which are empowered only to issue summons, may issue warrant as per the provisions
of 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. Thus, this section simply says that whenever the court feels that the person to
whom the summon has to be served, may absconded, then in such situation the court mat issue
the warrant to marks his presence. In other situation, the court may issue warrant against any
person if the concerned people fails to come before the concerned court without any reasonable
justification. Hence, it can be said that the court have power to issue a warrant against any person
depending upon the service of summons. However, the court cannot issue warrant if that court is
not empowered to issue summon. This point was very clearly stated by the Calcutta High Court
in C. McLenan v. State. The Hon’ble court in this case had invalidated the ruling of magistrate
that he has power to issue summons as per section 202 of Act. The court has stated that the
magistrate has no power to issue warrant according to section 87 as he has no power to issue
summons under that section. The court also highlighted that this section gives power to court so
that they can issue warrant of arrest and such decisions has to be exercised judiciously after
taking consideration of material facts which proves that the person to whom the summons has to
be served may absconded or he may not respond to the summons of court.

CONCLUSION

The whole purpose of Criminal law is to maintain justice but if it appears that this purpose is not
fulfilling due to irresponsible behavior of accused or of the person to whom the summon was
served, it is important to issue warrant in lieu of summons to maintain justice.