Process to Compel

Appearance of Accused
Accused’s Presence for Trial
• Fair trial requires accused’s presence during trial where he is
given a fair chance to defend himself. Further, if accused found
guilty at the end of trial, he should be available to receive the
sentence.

• How do you ensure the accused’s presence at trial?

Ensuring
accused’s
presence at trial

Arrest and
Summons
Detention
Summons and Warrant Cases
• Broadly speaking, which method is to be preferred (summons/arrest) is essentially a
decision to be taken by a judicial officer. However, the judicial discretion is guided,
and to an extent controlled, by CrPC provisions.

• Recall the classification of offences into ‘summons case’ and ‘warrant case’ based
on the seriousness of the offence. Seriousness of the offence is also the standard
used to make the initial decision as to whether the accused should be arrested or
summoned for trial.

• In a summons case, the consequences of trial are less serious to the accused than
those in a warrant case, hence less likely that the accused would abscond and
disobey the summons to attend his trial (Failure to appear is a punishable offence u/s
174 IPC). On the other hand, in a warrant case, the risk of absconding is higher.

• Therefore, the CrPC gives the general direction that in a summons case, a summons
is issued, and a warrant in a warrants case, but the judicial officer has the discretion
to depart from this rule if the circumstances so demand in a case.
 S 87 - Issue of warrant in lieu of,
or in addition to, summons
• A court may,
• In any case in which it is empowered to issue a summons for the
appearance of any person,
• Issue, after recording reasons in writing, a warrant for his arrest –
• (i) If the Court sees reason to believe that he has absconded or will not
obey the summons, or
• (ii) If at such time, he fails to appear, even when the summons is
proved to have been duly and timely served and no reasonable excuse is
offered for such failure.

• Object – A warrant ought not to be issued when a summons suffices,

and care should be exercised by the court (hence, the need to record
reasons) to satisfy itself that, upon the materials before it, it was
necessary to issue a warrant.
Arrest of Persons
Chapter V, CRPC
 Whe • Without warrant (S 41)
n • Notice of appearance before police officer (S 41A)
polic
e • On refusal to give name and residence on commission of non-cognizable offence (S 42)
may
arres
t • Procedure of arrest, duties of officer (S 41B)
• Control room at districts (S 41C)
• Right of arrested person to meet advocate during interrogation (S 41D)
• Arrest how made (S 46)
The • Search of place entered by person sought to be arrested (S 47)
manner of
arrest • No unnecessary restraint (S 49)
• Person arrested to be informed of grounds of arrest and right to bail (S 50);
Friends/relatives/nominated person of arrested person to be informed (S 50A)

• Search of arrested persons (S 51)

• Medical examination of accused at the police officer’s request (S 53)
• Medical examination of a person accused of rape (S 53A)
• Examination of arrested person by medical officer (S 54)
• Identification of arrested person (S 54A)
• Health and safety of arrested person (S 55A)
• Arrested person to be taken before Magistrate or officer in charge of police station (S 56)
•
After arrest Arrested person not to be detained for more than 24 hours (S 57)
• Police to report all arrests without warrant to the DM (S 58)
• Discharge of arrested person (S 59)
• If the arrested person escapes (S 60)
• Arrest to be made strictly according to the Code (S 60A)
 When Police May Arrest
• Arrest = deprivation of a person of his liberty by legal authority
• S 41 (esp clauses (a),(d) and (g) of 41(1)) shows that police have very wide powers of
making arrests without warrant in cases of cognizable offences. However, these
powers are subject to limitations.
• ‘May’ suggests that a police officer has discretion in making an arrest without a
warrant.
• However, requirement of reasonability and credibility is intended to prevent misuse
of such powers.
• ‘Reasonable’ and ‘credible’ refer to the mind of the police officer receiving the
information – such information must afford sufficient material for the exercise of an
independent judgment at the time of making arrest.
• Malicious and excessive exercise of powers of arrest under these sections would be
punishable under the IPC (S 220).
• The section was amended to provide an exhaustive list of circumstances which makes
it effective in preventing illegal arrests by police officers.
• The proviso makes it obligatory for the police to record reasons in writing if he
decides to not arrest a person covered under this sub-section.
 When Police May Arrest
• S 41A Notice of appearance before police officer – In all cases where the arrest of a person is not
required u/s 41(1), the police officer shall issue a notice directing the person to appear before him
or at such other place as specified.
• It shall be the duty of the person to comply with the notice.
• Where such person complies and continues to comply with the notice, he shall not be arrested
unless, for reasons to be recorded, the police is of the view that he ought to be arrested.
• Where such person, at any time, fails to comply with the terms of the notice or is unwilling to
identify himself, the police may, subject to orders of a Court, arrest him.
S 35 BNSS = Ss 41+41A of CrPC, with an additional provision that in case of an offence
punishable with imprisonment < 3 years and where such person is infirm or above 60 years of age,
no arrest shall be made without prior permission of the officer not below the rank of Deputy SP.

• S 42 Arrest on refusal to give name and residence – When any person who, in the presence of
the police, has committed or has been accused of committing a non-cognizable offence, refuses on
the police’s demand to give his name and residence or provides false information in this regard, he
may be arrested by the police.
Joginder Kumar v State of UP &
Ors. (SC, 1994)
• Background:
• This was a writ petition u/Art. 32 Constitution.
• The Petitioner, 28 year-old advocate, was called by the SSP, Ghaziabad
(Respondent 4), to the latter’s office for some inquiries. On 07.01.1994, Petitioner
appeared before the SSP at 10 am with four brothers and others. SSP kept the
Petitioner in his custody and, on being asked by the Petitioner’s brother, told him
that the Petitioner would be set free in the evening.
• Being apprehensive of the SSP’s intentions and worrying about Petitioner’s
implication in some case/fake encounter, the Petitioner’s brother made enquiries
about his whereabouts but he could not be located. On the evening of 07.01.1994, it
came to be known that the Petitioner had been detained in the illegal custody of
SHO, Police Station Mussoorie (Respondent 5).
• Till 08.01.1994, the Petitioner had not been produced before the concerned
Magistrate. Instead, the SHO, PS Mussoorie, directed the Petitioner’s relatives to
approach the SSP, Ghaziabad, for his release.
• On 09.01.1994, when the Petitioner’s relatives went to PS Mussoorie to enquire
about him, they found that he had been taken to some undisclosed location.
• Hence the present habeas corpus petition seeking release of the Petitioner.
Joginder Kumar v State of UP &
Ors. (SC, 1994)
• SC:
• (The SSP along with the Petitioner appeared before the Court on 14.01.1994.
According to the SSP, the Petitioner had been released. He also submitted that the
Petitioner was not in detention at all but that they were taking the Petitioner’s help
in some cases.)
• The Court has been receiving complaints about violation of human rights
because of indiscriminate arrests. How should the Court strike a balance
between human rights and the increasing crime rate?
• The existence of the power to arrest is one thing – the justification for the exercise
of it is quite another. The police officer must be able to justify the arrest apart
from his power to do so.
• Arrest and detention in police lock-up can do incalculable harm to the reputation and self-
esteem of a person.
• No arrest can be made in a routine manner on a mere allegation of commission of an
offence made against a person. No arrest should be made without a reasonable
satisfaction reached after some investigation as to the genuiness and bona fides of a
complaint and a reasonable belief as to the person’s complicity and the need to effect
arrest.
• Denying a person his liberty is a serious matter.
Joginder Kumar v State of UP &
Ors. (SC, 1994)
• SC:
• Except in heinous offences, an arrest must be avoided if a police officer issues
notice to person to attend the Station House and not to leave the Station without
permission to do so.
• The right of an arrested person arrested to have someone informed, the right to
consult privately with a lawyer, among others, are inherent in Arts. 21 and 22(1) of
the Constitution and require to be recognised and scrupulously protected. For
effective enforcement of these fundamental rights, the followed requirements are
issued:
• (i) An arrested person being held in custody is entitled, if he so requests to have one friend,
relative or other person who is known to him or likely to take an interest in his welfare told
as far as is practicable that he has been arrested and where he is being detained.
• (ii) The police officer shall inform the arrested person when he is brought to the police
station of this right.
• (iii) An entry shall be made in the diary as to who was informed of the arrest.
These protections from power must be held to flow from Arts. 21 and 22(1) and enforced
strictly.
Joginder Kumar v State of UP &
Ors. (SC, 1994)
• SC:
• It shall be the duty of the Magistrate before whom the arrested person is
produced, to satisfy himself that these requirements have been complied with.
• Departmental instruction shall also be issued that a police officer making an
arrest should also record in the case diary, the reasons for making the arrest.
• The above requirements are to be followed in all cases of arrest till legal provisions
made in this behalf [Subsequently incorporated as S 50A in the CrPC].
 Arnesh Kumar v S of Bihar (SC
2014)
• Background:
• Petitioner apprehended his arrest in a case u/s 498-A IPC (imprisonment <=3
years and fine, cognizable, non-bailable) and S 4 Dowry Prohibition Act,
1961 (imprisonment for <=2 years and fine).
• Petitioner’s application for anticipatory bail was rejected by the Sessions
Judge and then the HC; hence this SLP.
• SC:
• Court noted the use of arrest powers as a mode of harassment, particularly in
the context of matrimonial disputes.
• “Arrest brings humiliation, curtails freedom and casts scars forever.” The
police has not come out of its colonial image and is largely considered as a
tool of harassment, oppression and not as a friend of the public. Power to
arrest greatly contributes to the police’s arrogance, as also the failure of the
Magistracy to check it. It is also one of the lucrative sources of police
corruption. “The attitude to arrest first and then proceed with the rest is
despicable”.
 Arnesh Kumar v S of Bihar (SC
2014)
• SC:
• “We believe that no arrest should be made only because the offence is non-bailable and
cognizable and therefore lawful for the police officers to do so. The existence of the
power to arrest is one thing, the justification for the exercise of it is quite another. Apart
from the power to arrest, the police officers must be able to justify the reasons thereof.
No arrest can be made in a routine manner on a mere allegation of commission of an
offence made against a person. It would be prudent and wise for a police officer that no
arrest is made without a reasonable satisfaction reached after some investigation as to
the genuineness of the allegation.”
• S 41(1)(b):
• Considering the offence, S 41(1)(b) is relevant for the present appeal, which provides for
arrest powers in cases concerning the commission of a cognizable offence punishable with
imprisonment <=7 years and/or fine.
• From a plain reading of the provision, it is evident that a person accused of an offence
cannot be arrested by the police officer only on his satisfaction that he has committed the
offence. Before arrest, the police officer has to be further satisfied that such arrest is
necessary under any of the specified grounds in S 41(1)(b)(ii) (i.e., to prevent the person
from committing further offences; for proper investigation, etc.).
 Arnesh Kumar v S of Bihar (SC
2014)
• SC:
• S 41(1)(b):
• The law mandates the police officer to, while making an arrest, state the facts and
record reasons in writing which led him to reach a conclusion covered by any of the
grounds specified under S 41(1)(b)(ii). The law further requires the police officers to
record reasons in writing for not making the arrest.
• Therefore, before arrest, the police officer must ask himself why arrest, if it’s really
required, what purpose would it serve, what object it would achieve. It is only after
these questions are addressed and one or the other condition u/s 41(1)(b)(ii) is
satisfied that the power of arrest should be exercised.
• An accused arrested without warrant by the police has the constitutional right
u/Art. 22(2) and u/s 57 CrPC to be produced before the Magistrate without
unnecessary delay and in no circumstances beyond 24 hours excluding the
time necessary for the journey.
 Arnesh Kumar v S of Bihar (SC
2014)
• SC:
• S 41-A:
• Another provision – S 41-A CrPC – is aimed to avoid unnecessary arrest or
threat of arrest requires to be vitalised.
• S 41-A makes it clear that in all cases where the arrest of a person is not
required u/s 41(1), the police officer is required to issue notice directing the
accused to appear before him at a specified place and time.
• S 41-A obliges an accused to appear before the police officer and further
mandates that if such an accused complies with the terms of the notice, he
shall not be arrested, unless for reasons to be recorded, the police officer is of
the opinion that arrest is necessary. At this stage also, the condition precedent
for arrest as envisaged u/s 41 CrPC has to be complied with and shall be
scrutinized by the Magistrate.
• Therefore, keeping in view its objective to ensure that police officers do not
arrest the accused unnecessarily and Magistrates do not authorise detention
casually and mechanically, the Court gave certain directions.
 Arnesh Kumar v S of Bihar (SC
2014)
• SC’s Directions:
1. All the State Governments to instruct its police officers not to automatically arrest
when a case under Section 498-A of the IPC is registered but to satisfy themselves
about the necessity for arrest under the parameters laid down above flowing from
Section 41, Cr.PC;
2. All police officers be provided with a check list containing specified sub- clauses
under Section 41(1)(b)(ii);
3. The police officer shall forward the check list duly filled and furnish the reasons
and materials which necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
4. The Magistrate while authorising detention of the accused shall peruse the report
furnished by the police officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within two
weeks from the date of the institution of the case with a copy to the Magistrate
which may be extended by the Superintendent of police of the district for the
reasons to be recorded in writing;
 Arnesh Kumar v S of Bihar (SC
2014)
• SC’s Directions:
6. Notice of appearance in terms of Section 41-A of Cr.PC be served on the
accused within two weeks from the date of institution of the case, which may
be extended by the Superintendent of Police of the District for the reasons to
be recorded in writing;
7. Failure to comply with the directions aforesaid shall apart from rendering the
police officers concerned liable for departmental action, they shall also be
liable to be punished for contempt of court to be instituted before High Court
having territorial jurisdiction.
8. Authorising detention without recording reasons as aforesaid by the judicial
Magistrate concerned shall be liable for departmental action by the
appropriate High Court.
• The above directions would be applicable to such cases where offence is
punishable with imprisonment <=7 years with/without fine, and not just
cases u/s 498-A IPC or the Dowry Prohibition Act.
 Manner of Arrest
• S 41B Procedure of arrest and duties of officer making arrest – Every PO while
making an arrest shall
• bear accurate, visible, clear identification of his name,
• Prepare an arrest memo attested by at least one witness and countersigned by the person
arrested, and
• inform the arrestee of his right to have a friend/relative informed (unless arrest memo
attested by a family member).

• S 41C Control room at districts –

• State govt shall establish police control rooms in every district and at state level.
• District control rooms to display outside the rooms, names of arrestees and police officers
who arrested them.
• Police HQ control room at state level shall collect details from time to time and maintain a
database for the public.

• S 41D Right of arrestee to meet advocate of choice during interrogation, though

not throughout interrogation.
 Manner of Arrest
• S 46 Arrest how made –
• Police officer arresting shall actually touch/confine the body of the arrestee,
unless there is submission to custody by word/action.
• Woman arrestee – submission to custody presumed on oral intimation of
arrest. Unless circumstances otherwise require or police officer is female,
PO shall not touch the person when arresting her.
• If arrestee forcibly resists or tries to evade, PO may use all means necessary
to effect the arrest. (reasonable person standard)
• This section does not give the right to cause the death of a person not
accused of an offence punishable with death/life imprisonment.
• Save in exceptional circumstances, no woman shall be arrested after sunset
and before sunrise. In exceptional circumstances, woman police officer
shall make a written report to obtain prior permission of the jurisdictional
JM of the first class.
• BNSS – See S 43(3) (PO’s power to use handcuffs in certain cases)s
 Manner of Arrest
• S 47 Search of place entered by person sought to be arrested –
• If PO has reason to believe that the person to be arrested has entered/is
within any place, any person residing/in charge of such place shall, on
the PO’s demand, allow him free access and afford all reasonable
facilities for search.
• If access cannot be obtained as above, it is lawful for the PO to use
force and enter such place. (Provided that if it is an apartment occupied
by a woman who customarily does not appear in public, PO shall give
notice to her to withdraw, and allow her to do so, before using force
and entering).
• PO may break open any door/window of any house/place to liberate
himself or any person who had lawfully entered to make an arrest and
was detained therein.

• S 49 No unnecessary restraint – Arrestee shall not be subjected to more

restraint than necessary to prevent his escape.
 Manner of Arrest
• S 50 Persons arrested to be informed of grounds of arrest and of right to
bail –
• Every PO arresting without warrant shall forthwith inform the arrestee of the full
particulars of the offence for which he is arrested or other grounds of arrest.
• When a person accused of a bailable offence is arrested by a PO without warrant, the
PO shall inform the arrestee that he is entitled to bail and that he may arrange for
sureties.

• Art. 22(1) of the Constitution – “No person who is arrested shall be detained
in custody without being informed as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to be defended by, a legal
practitioner of his choice”.

• Right to be informed of the grounds of arrest is a precious right of the

arrested person. This allows the arrestee to move the proper court for bail, or
a writ of habeas corpus (if the circumstances require), or arrange for his
defence.
 Post-Arrest Procedures
• S 50A Obligation of person making arrest to inform about the arrest etc. to a
nominated person –
• Every PO shall forthwith give information regarding the arrest and place of detention to any
of the arrestee’s friends, relatives/other nominee.
• PO shall inform the arrestee of his above right as soon as he is brought to the PS.
• Information relating to who has been informed of the arrest to be entered in a book at the PS,
as specified.
• Magistrate (before whom arrestee is brought) to ensure that above two requirements were
met.

• S 51 Search of arrested persons –

• When the person arrested (with/without warrant) cannot be released on bail, the PO arresting
the person may search the arrestee and place all articles (other than necessary clothes) found
upon him in safe custody. For the articles seized, the PO shall give a receipt to the person.
• When necessary to search a female arrestee, it shall be done by another female with strict regard
to decency.
 Post-Arrest Procedures
• S 53 Examination of accused by medical practitioner at the request of police
officer (empowers senior police officers to compel arrestees to submit to medical
examination)
• When a person is arrested on a charge of committing an offence of such nature and in such
circumstances that there are reasonable grounds to believe that his examination would afford
evidence, a PO (not below the rank of sub-inspector) [‘any police officer’ u/s 51(1) BNSS]
may request a registered medical practitioner to examine the arrestee and such practitioner
may use such force as is reasonably necessary for this. (Also applies to a person on bail)
• If the arrestee is female, the examination shall be made only by (or under the supervision of)
a female registered medical practitioner.
• BNSS, S 51(3) – Medical practitioner to send examination report to IO, without delay.
• Examination includes blood, hair samples, etc.

• S 53A – Examination of person accused of rape by medical practitioner

(introduced in 2006; empowers senior officers to compel persons arrested on charge
of committing or attempting to commit rape to medical examination)
 Post-Arrest Procedures
• S 54 – Examination of arrested person by medical officer -
• Arrestee shall be examined by a medical officer soon after he is arrested.
[BNSS, S 53 first proviso – medical officer may conduct one more
examination if he thinks it necessary]
• If the arrestee is female, the examination of the body shall be made only by
a female medical officer.
• Such medical officer shall prepare a record, mentioning any injuries, marks
of violence upon the arrestee and the time when they may have been
inflicted.
• Copy of the report shall be furnished to the arrestee or the arrestee’s
nominee.

• While S 53 enables a PO to compel an arrested person to undergo a medical

examination to facilitate investigation, S 54 gives the accused the right to have
himself medically examined to enable him to establish that the offence was
not committed by him or that he was subjected to physical injury.
 Post-Arrest Procedures
• S 54A – Identification of person arrested –
• Where the arrestee’s identification by another person(s) is considered
necessary for investigation, the jurisdictional Court may, on the request
of the officer in charge of the police station, direct the arrestee to
subject himself to identification in such manner as the Court may deem
fit.
• However, if the person identifying the arrestee is mentally/physically
disabled, identification process shall take place under the Judicial
Magistrate’s supervision and the process shall be videographed.

• S 55A – It shall be the duty of the person having custody of an accused to

take reasonable care of his health and safety.
 Post-Arrest Procedures
• A PO making an arrest without warrant shall, without delay and subject to the
provisions on bail, take or send the arrestee before the jurisdictional Magistrate or
the officer in charge of a PS. (S 56)

• No PO shall detain in custody a person arrested without warrant for more than 24
hours without a special order of the Magistrate u/s 167 CrPC. The 24 hours are
exclusive of the time necessary for the journey from the place of arrest to the
Magistrate’s Court [“whether having jurisdiction or not”-BNSS,S58]. (S 57)

• Art. 22(2) Constitution – Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a period of twenty-four
hours of such arrest excluding the time necessary for the journey from the place of
arrest to the court of the magistrate and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.

• Objective – (i) to prevent arrest and detention for extracting confessions or as a

means of compelling people to give information; (ii) to prevent PS from being used
as prisons; (iii) to afford an early recourse to a judicial officer for bail, discharge
etc.
 Post-Arrest Procedures
• S 58 Police to report apprehension – Officers in charge of PS shall report to the
DM (or SDM, if DM so directs) cases of all persons arrested without warrant within
the limits of their respective stations, whether the arrestee has been admitted to bail
or otherwise.

• S 59 Discharge of person apprehended – No person arrested by a PO shall be

discharged except on his own bond/bail/under Magistrate’s special order.

• S 60 Power, on escape, to pursue and retake – If a person escapes or is rescued

from lawful custody, the person responsible for the custody may immediately
pursue and arrest him in any place in India. S 47 applies to such arrests.

• S 60A – Arrest to be made strictly according to Code – no arrest shall be made

except in accordance with the provisions of this Code or any other law providing
for arrest.
Rights of Arrested Persons
To be taken before a
To know the grounds of Magistrate without delay
arrest (S 50, Art. 22(1))
(S 56, Art. 22(2))

Not to be detained for

To be examined by a
more than 24 hours
medical practitioner
without judicial scrutiny
(S 54)
(S 57, Art. 22(2))

Others?
Please look at the
sections discussed and
identify!
 D.K.Basu v State of WB (SC
1996)
• SC’s attention was drawn (through writ petitions and letters) to the issue of custodial violence
and deaths in police lock-up. SC’s intervention was sought to formulate guidelines to
minimise/prevent custodial violence and for award of compensation to victims of custodial
torture and to the kin of those who die in custody due to torture.
• SC noted that the petitions raised important issues concerning, inter alia, police powers.
• “Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of
law, which demands that the powers of the executive should not only be derived from law but
also that the same should be limited by law.” Custodial violence is a matter of concern,
aggravated by the fact that it is committed by persons who are supposed to be the protectors
of citizens. It is committed under the shield of uniform and authority in the four walls of a PS
or lock-up, the victim being totally helpless.
• “Custodial torture is a naked violation of human dignity and degradation…” The expression
“life or personal liberty” under Art. 21 has been held to include the right to live with human
dignity and thus it would also include within itself a guarantee against torture and assault by
the State or its functionaries.
• In tune with the Constitutional guarantee, a number of statutory provisions also seek to
protect personal liberty, dignity and basic human rights of the citizens. (Chp V CrPC – S 41,
50, 56, 57, and so on).
 D.K.Basu v State of WB (SC
1996)
• Experience shows that worst violations of human rights take place during the course of
investigation, when the police, to secure evidence or confession, often resorts to third-degree
methods, including torture, and adopts techniques of screening arrest by either not recording the
arrest or describing the deprivation of liberty merely as prolonged interrogation.
• The precious right guaranteed by Art. 21 Constitution cannot be denied to convicts, undertrials,
detenus and other prisoners in custody, except according to procedure established by law by
placing such reasonable restrictions as are permitted by law.
• Instances have come to our notice where police arrest without warrant without recording the
arrest, torture the arrestee to extract information/confession, such torture and injury also leading
to death sometimes. Custodial death is not generally shown in the records of the lock-up, every
effort is made by the police to dispose of the body or make it seem that the person died after he
was released from custody. Any complaint against such torture or death is generally not given
any attention by police officers because of ties of brotherhood. No FIR registered; even if
formal prosecution launched, no direct evidence available since lock-ups are away from public
gaze and witnesses are mostly either policemen or co-prisoners. Hence, prosecution results in
acquittal.
 D.K.Basu v State of WB (SC
1996)
• “It needs no emphasis to say that when the crime goes unpunished, the criminals are
encouraged and the society suffers. The victim of crime or his kith and kin become frustrated
and contempt for law develops.”
• Conscious that police have to perform a difficult and delicate task, in view of deteriorating law
and order situation. The cure cannot, however, be worse than the disease itself.
• Freedom of an individual must yield to the security of the State. The action of the State,
however, must be ‘right, just and fair’. Using any form of torture is impermissible, being
offensive to Art. 21. “State terrorism is no answer to combat terrorism.”
• Therefore, appropriate to issue the following requirements to be followed in all cases of arrest
or detention till legal provisions made in this behalf as preventive measures. [Please refer to
the judgment for these.]
• Punitive Measures: Ss 220, 330 (torture during interrogation), 331 IPC (but they are
inadequate); civil action for damages (long drawn and cumbersome).
• Importance of Compensation – monetary compensation for victims due to breach of public
duty by State of not protecting right to life. The emphasis should be not on the punitive element,
but to “apply balm to the wounds”. Quantum would depend on the facts of each case, and may
be adjusted against any amount which may be awarded in a civil action for damages.
Summons
Chapter VI, CRPC
 Meaning and Form of Summons
• ‘Summons’ is an authoritative call to the accused person to appear in court to
answer a charge of an offence.
• S 61 Form of Summons:
• Every summons issued by a Court:
• Shall be in writing,
• In duplicate,
• Signed by the presiding officer of the Court or such other officer as the HC
may direct, and
• Shall bear the Court’s seal.
• See Form No. 1, Second Schedule, CrPC. Form indicates that the court
issuing the summons may permit the accused to appear through his lawyer.
• BNSS, S 63 – Summons may also be in the form of electronic
communication and shall bear the image of the court’s seal or digital
signature.
 Service of Summons
• S 62 Summons how served:
• By a police officer or, subject to state govt. rules, by an officer of the Court issuing it
other public servant. [BNSS, S 64 – Police Station or Court registrar shall maintain a
register with address, email, phone no. and other details provided by state govt rules]
• If practicable, summons shall be served personally on the person by delivering one of
the duplicates to him. [BNSS, S 64 – summons may also be served by electronic
communication]
• Persons served shall, if required by serving officer, sign a receipt on the back of the
other duplicate.
• [BNSS, S 70(3) – All summons served through electronic communication (Ss 64-71)
shall be considered as duly served + copy of such summons shall be attested and kept
as proof od service]
• S 64 Service when persons summoned cannot be found by exercise of due diligence:
• A duplicate may be left with an adult male member of his family residing with him, and
• Such person shall, if required by the serving officer, sign a receipt on the back of the
other duplicate.
Warrant of Arrest
Chapter VI, CRPC
 Meaning and Form of Warrant of
Arrest
• ‘Warrant of arrest’ is a written order issued and signed by a Magistrate and
addressed to a police officer or some other person specially named, and
commanding him to arrest the body of the accused person named in it.
• Decision to issue or not to issue a warrant – requires a balancing of social interests
(that an accused be arrested and detained so that he can be put on trial) and
interests of the individual accused (should not be arrested before his guilt is
established through a fair trial). Hence, decided by a judge.
• In arrests without warrant, the decision to make an arrest is made by persons other than
Magistrates and Courts, such as police officers. This is because of the exigencies of certain
situations which allow for such arrests, such as when a serious crime is committed.
• CrPC does not contemplate a general warrant of arrest, i.e., a warrant to arrest all
persons committing a particular offence(s). It would be illegal to issue such a
warrant.
• An arrest warrant remains in force till it is executed or cancelled by the court issuing
it.
 Form and Content of Warrant of
Arrest
• S 70 Form of warrant of arrest and duration –
• Every warrant of arrest shall:
• Be in writing,
• Signed by the presiding officer of the Court issuing it,
• Bear the Court’s seal,
• Remain in force until cancelled by the issuing Court or till it is executed.
• See Form No. 2, Second Schedule, CrPC (Must mention name of the person to be arrested, offence he is
charged with, person with the authority to arrest)
• S 71 Power to direct security to be taken (Bailable Warrant of Arrest) –
• Every Court issuing an arrest warrant against a 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, the officer to whom the warrant is directed shall take the security and release
the person from custody.
• Endorsement will state no. of sureties, amount, time of attendance before Court.
• Whenever security is taken, officer will forward the bond to the Court.
• See Form No. 2, Second Schedule, CrPC.
 Form and Content of Warrant of
Arrest
• S 72 Warrants to whom directed –
• Ordinarily to one or more police officers;
• But if immediate execution is necessary and no PO available, Court may direct it to any other person(s) who
shall execute it.
• If more than one PO/person directed, they may execute it all together or by one or more of them.
• S 73 Warrant may be directed to any person –
• CJM/Magistrate of First Class may direct a warrant to any person within his local jurisdiction to arrest an
escaped convict, proclaimed offender, or any person who is accused of a non-bailable offence and is evading
arrest.
• [See the provision]
• S 74 Warrant directed to police officer –
• Warrant directed to a PO may also be executed by any other PO whose name is endorsed on the warrant by
the PO to whom it was originally directed.
• S 75 Notification of substance of warrant –
• PO or other person executing a warrant shall notify its substance to the person to be arrested, and if required,
show him the warrant.
• S 76 Person arrested to be brought before Court without delay –
• Delay shall not, in any case, exceed 24 hours excluding the time necessary to travel from the place of arrest
to the Magistrate’s court.