Rules Common to Summons and Warrants
Chapter Seventeen
Syllabus topic 1.6, "Process to Compel Appearance and Production of Things and Reciprocal Arrangements Sections 61 to 105L"
Pages 105 to 108 of 699
In one line
A short set of rules that link the two processes: when a warrant may replace or accompany a summons, how a person already in court can be made to promise to come back, what happens if he breaks that promise, and that the whole chapter applies to every summons and warrant under the Sanhita.
In exam wording: sections 90 to 93 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empower a Court to issue a warrant in lieu of or in addition to a summons after recording reasons, to take a bond or bail bond for appearance from a person present in Court, to issue a warrant on breach of such a bond, and apply the provisions of Chapter VI to every summons and warrant issued under the Sanhita.
Why the law has this at all
Because the choice between asking and compelling is not made once and for ever. A Court starts with a summons because that is the lighter process. Then the person absconds, or the summons is duly served and he simply does not turn up. The Court must be able to move up to a warrant without starting again, and section 90 lets it.
The other two sections deal with a different situation: the person is standing in front of the Court. There is no need to serve him with anything. What the Court needs is a promise, secured by a bond, that he will come back, and a remedy if he does not.
Some words this chapter uses
In lieu of means instead of. In addition to means as well as, so a warrant may issue while a summons is outstanding.
A bond is a personal undertaking without surety, section 2(1)(e). A bail bond is an undertaking with surety, section 2(1)(d).
Duly served means served in one of the ways [Summons] describes, and proved in one of the ways section 70 allows.
Section 90: a warrant in lieu of, or in addition to, a summons
A Court may, in any case in which it is empowered by the Sanhita 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 the summons, or after its issue 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 that time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance with it, and no reasonable excuse is offered for the failure.
Take clause (b) apart, because it has three separate requirements and an answer that gives only the first is incomplete. He must have failed to appear. The summons must be proved to have been duly served, and served in time for him to have attended. And no reasonable excuse must have been offered.
Rules Common to Summons and Warrants
The words "after recording its reasons in writing" are the change from the old Code. A warrant is now a reasoned order, not a routine consequence of an absence, and that record is what an application to recall the warrant is argued on.
Section 91: taking a bond from a person present in Court
Where a person for whose appearance or arrest the officer presiding in a Court is empowered to issue a summons or warrant is present in that Court, the officer may require him to execute a bond or bail bond for his appearance in that Court, or in any other Court to which the case may be transferred for trial.
The section is a convenience with a purpose. The Court has the person in front of it, so process is unnecessary; what it wants is security for his return. And the bond covers not only that Court but any Court to which the case is later transferred, so a transfer does not require a fresh bond.
Section 92: breach of the bond
Where a person bound by any bond or bail bond taken under the Sanhita to appear before a Court does not appear, the officer presiding in that Court may issue a warrant directing that he be arrested and produced before him.
Notice the width of the opening words: any bond or bail bond taken under the Sanhita, not only one taken under section 91. So a bond taken by a police officer under section 39(2), or a bail bond taken on a section 73 endorsement, is covered.
Section 93: the chapter applies generally
The provisions of this Chapter relating to summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Sanhita.
This is a sweeping-up provision and it is worth a sentence in an answer because it prevents an argument. A summons to a witness under section 254, or a warrant issued under section 92, does not have its own service rules. Chapter VI supplies them, so far as may be.
A worked example
A Judicial Magistrate at Vasai issues a summons to Ganesh, an accused in a summons case, for 10 March.
Ganesh does not appear on 10 March. Can the Court issue a warrant at once? Only if three things are established under section 90(b): that he failed to appear; that the summons is proved to have been duly served, and served in time for him to attend; and that no reasonable excuse is offered. And the Court must record its reasons in writing.
Rules Common to Summons and Warrants
Before 10 March the police report that Ganesh has left for Nepal. The Court may issue a warrant under section 90(a) even though the date fixed has not arrived, because it sees reason to believe he has absconded. Again, reasons in writing.
Ganesh is later arrested and produced. He is now present in Court. The Magistrate may require him to execute a bond or bail bond for his appearance, under section 91, and that bond covers any Court to which the case may be transferred for trial.
He fails to appear on the next date. Section 92 lets the presiding officer issue a warrant for his arrest and production.
The case is transferred to Palghar. The bond he executed under section 91 still binds him, because the section covers the Court "to which the case may be transferred for trial".
Distinctions
| Section 90(a) | Section 90(b) | |
|---|---|---|
| When | Before the summons issues, or after it issues but before the appearance date | At the appearance date |
| Basis | Reason to believe he has absconded or will not obey the summons | Failure to appear, proof of due and timely service, and no reasonable excuse |
| Common requirement | Reasons recorded in writing | Reasons recorded in writing |
| Section 91 | Section 92 | |
|---|---|---|
| Situation | The person is present in Court | A person bound by a bond does not appear |
| What the Court does | Requires a bond or bail bond for appearance | Issues a warrant for arrest and production |
| Reach | That Court, and any Court to which the case may be transferred | Any bond or bail bond taken under the Sanhita |
What this does NOT mean
Section 90 is not automatic. Absence alone is not enough under clause (b): service must be proved, it must have been in time, and the excuse offered must have been considered.
Section 91 is not bail. The person is not in custody; the Court is taking security for future attendance from somebody who is present.
And section 93 does not make Chapter VI override a special provision. The words are "so far as may be", so where another provision of the Sanhita or another law lays down its own mode, that prevails.
Quick revision
- Section 90: a warrant in lieu of or in addition to a summons, after recording reasons in writing, on either of two grounds: reason to believe he has absconded or will not obey; or failure to appear where the summons was proved duly served in time and no reasonable excuse is offered.
- Section 91: where the person is present in Court, the presiding officer may require a bond or bail bond for appearance in that Court or any Court to which the case may be transferred.
- Section 92: on failure to appear in breach of any bond or bail bond taken under the Sanhita, the presiding officer may issue a warrant for arrest and production.
- Section 93: Chapter VI applies, so far as may be, to every summons and every warrant of arrest issued under the Sanhita.
Rules Common to Summons and Warrants
Test yourself
1. On what grounds may a Court issue a warrant instead of a summons? Under section 90(a), where before or after the issue of the summons but before the appearance date it sees reason to believe the person has absconded or will not obey; and under section 90(b), where he fails to appear, the summons is proved to have been duly served in time to admit of his appearance, and no reasonable excuse is offered.
2. What did the Sanhita add to that power? The requirement that the Court record its reasons in writing before issuing the warrant.
3. A person is in Court. Can the Court take security for his future attendance without issuing any process? Yes, under section 91, by requiring him to execute a bond or bail bond for his appearance in that Court or any Court to which the case may be transferred for trial.
4. Does section 92 apply only to bonds taken under section 91? No. It applies to any bond or bail bond taken under the Sanhita to appear before a Court.
5. Where does a summons issued to a witness at trial get its rules of service from? From Chapter VI, which section 93 applies, so far as may be, to every summons and warrant of arrest issued under the Sanhita.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.