The Code Of Criminal Procedure Project: “procedure For Issuing Warrant”

“Procedure for issuing warrant”

The Code of Criminal Procedure Project

Under Submitted by Dr. Asad Malik Faculty of Law

the

Supervision Shivam Dalmia Semester VIII (Fourth year) sec-B

FACULTY OF LAW JAMIA MILLIA ISLAMIA, NEW DELHI-25 1

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Acknowledgement I convey my hearty affection to all those people who helped and supported me, for completion of my project.

My deepest thanks to our subject Professor (Dr. Asad Malik) for guiding and correcting various topics of mine with attention and care. He has taken pain to go through the project and make necessary correction as and when needed

Shivam Dalmia April 2019

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Contents Acknowledgement.......................................................................................................................................2 Warrant of Arrest..................................................................................................................................4 Section 82 & Section 83: Proclamation and Attachment.....................................................................5 Section 93 to Section 97: Search Warrant..................................................................................11 Section 107: Security for keeping peace in other cases......................................................................17 Biblography...............................................................................................................................................18

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Warrant of Arrest

Section 70 of the Criminal Procedure Code states the aspects of a warrant of an arrest. Every warrant of arrest that is issued by a Court under this Section has to be in writing and signed by the presiding officer of the respective Court. The warrant should also bear the seal of the same Court that issued the warrant. A warrant of an arrest shall remain in force unless it is cancelled by the respective Court that published it in the first place, or until it is executed. Form No. 2 of the Second Schedule shows the form of a warrant of arrest. The following are the requirements that are to checked off to issue a legal order of arrest. 1. The warrant of arrest must be in writing. 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 state the offence charged on the individual. 5. The presiding officer must sign the warrant of arrest. 6. The warrant of arrest must be sealed. The warrant of arrest is generally issued for the protection of an individual before the concerned Court and not for the police officer. Under Section 76 of the Code, a police officer or another person in power to execute a warrant of arrest shall bring the individual arrested before the Court. The arrest is subject to the provisions of Section 71 that talks about security. The arrested individual must be brought before the Court without any unnecessary delay. If delayed, it should be ensured that the delay shall not, in any case, exceed 24 hours excluding the time required to get from the place of arrest to the Magistrate’s Court. Here under is the form of warrant of arrest.

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Section 82 & Section 83: Proclamation and Attachment

The Criminal Procedure Code offers two remedies when a warrant remains unexecuted. They are as follows: 1. Section 82: Issuing a Proclamation 2. Section 83: Attachment and sale of property

Normally any accused person whose presence is required by Court is to be at first instance called upon by summons. Sub section (1) of Section 204 of the Code of Criminal Procedure (in short CrPC) reads as follows- 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. 5

Further sub section (5) of Section 204 CrPC says- Nothing in this section shall be deemed to affect the provisions of section 87.        Section 87 of the Code of Criminal Procedure empowers a Court to issue warrant in lieu of, or in addition to, summons. It can be exercised in two cases (a) where the Court believes that the person summoned, either before or after the issue of summons, has absconded or will disobey the summons, or  (b) where he has without reasonable cause failed to appear. The recording of reasons by the Court is a condition precedent to the exercise of the power. The other processes to compel the appearance of persons before the criminal courts are 1. Proclamation as absconder, where a warrant fails to take effect;  2. Attachment and sale of property, if the absconder is not forthcoming; 3. Taking of bond with or without sureties.

Section 82, CrPC provides as to when and how proclamation can be issued for an absconding person. If any court had reason to believe that any person against whom a warrant had been issued by it, had absconded or was concealing himself so that such warrant could not be executed, such Court may publish a written proclamation requiring, him to appear at specified place and at specified time not less than thirty days from date of publishing such proclamation.     Sub section (2) of Section 82, CrPC says – 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 homestead in which such person ordinarily resides or to some conspicuous place of such town or village; 

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(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. Every person who is not immediately available cannot be characterized as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provision of Section 82 requires that the Court must in the instance, issue a warrant and it must put down its reason for believing that the accused is absconding or concealing himself.

Attachment of property of person absconding The property of the person against whom a proclamation is issued under Section 82, CrPC can be attached in order to compel his appearance in court. This has been provided by Section 83.  According to Section 83, CrPC the Court issuing 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: 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  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. The object of Section 83 CrPC is to penalize a person who seeks to avoid his arrest under warrant and against whom a proclamation is issued under Section 82, for disobedience of the

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proclamation, he incurs liability to be punished under Section 174 and 174 A of the Indian Penal Code. The procedure laid down under Section 83 CrPC has to be followed strictly. Jurisdiction to pass an attachment order cannot be assumed unless a proclamation under Section 82 has been issued. The normal rule is to wait until expiry of thirty days to enable the accused to appear in terms of the proclamation which is to be computed from the date of publication of proclamation and the provisions in this respect are mandatory. Section 88, CrPC empowers the Court 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 trail.

Remedy available to an aggrieved personThe following four remedies are available to an aggrieved person 1. Remedy by way of a claim or objection under Section 84, CrPC 2. Remedy by way of civil suit to establish a claim (Section 84, CrPC) 3. An appeal under Section 86, CrPC 4. Under certain circumstance, a revision application under Section 397, CrPC. ‘No property can be declared to be attached', was observed by the Privy Council in Muthiah Chettiar v Palaniappa Chettiar[25]‘unless first the order for attachment has been issued, and secondly inexecution of that order, the other things prescribed by the rules in the Code have been done’. Therefore, firstly there must be first anorder of attachment and secondly, in execution of that order formalities prescribed therein have to be complied with, that is, there should be a 8

prohibitory order restraining the person from in anyway alienating the property sought to be attached. The formalities required under this section are mandatory since the intention behind it is to prevent the judgment-debtor from transferring or alienating the property. When the property to be attached is movable property which is not an agricultural produce, then the attaching officer can seize the property and keep it in his custody. But if the property seized is of perishable nature or the cost of keeping it is likely to exceed its value the attaching officer can sell it immediately. If the attachment officer fails to sell such property, he can at the instance of judgment-debtor or decree-holder or anyone interested in such property leave it in the custody of a respectable person in the village or place where it has been attached. The custodian will later be liable for the inability to produce such property before the court, or for any loss or damage caused to it. When the property to be attached is agricultural produce, a copy of the warrant of attachment can be affixed on the land on which such crop is grown, or where the produce has been cut or gathered, or on the threshing treading floor or fodder-stack. One other copy can be affixed on any conspicuous part of the judgment-debtors house. When growing crops are being attached the court requires it to be made in the application the time at which it is likely to be fit to be cut or gathered. The judgment-debtor ought to take all necessary steps or actions for preserving or maturing it and if the judgment-debtor fails to do the same, the decree-holder can carry out these needful steps and recover the expenses from the judgment-debtor. In Krishnamukhlalv.Bhawan it was held that even if the attachment of agricultural lands is irregular or invalid for want of non-publication in the office of the collector as required by O.21, R.54, C.P.C, it would not prevent the court from proceeding further with the sale of the properties, because, the law does not say that an immovable property cannot be sold in execution of a decree without first attaching it. In case of a money decree the decree-holder can apply to the court to orally examine the judgment-debtor or officer or any other person, as to what means he has to satisfy the decree, and also direct him to make an affidavit stating the particulars of his assets, if the debts have been unpaid for a period exceeding 30 days. In case of adecree for rent or mesne profitsor any other 9

matter which is to be determined subsequently, the property of the judgment-debtor can be attached before even ascertaining the amount as done in the case of ordinary money decrees. Rule 46 can be divided into 3 parts. Firstly, attachment of a debt not secured by negotiable instrument. The attachment can be made by a written order prohibiting the creditor from recovering the debt and debtor from making any payments against it until a court order on its behalf. This provision mainly deals with garnishee proceedings, where the judgment-debtors money is in the hands of third persons.. The prohibitory order can be issued and the debt amount need not be ascertained at this period of time. Rules 46A to 46I deals exclusively with the garnishee proceedings. “Garnishee” means a judgment-debtors debtor. “Garnisher” would be the decree-holder who initiates the garnishee proceedings, and “garnishment” is the process through which decree holder seeks to get the property of the judgment-debtor. “Garnishee proceeding” is a judicial proceeding where the decree-holder prays to the executing court to direct third party who is a debtor of the judgment-debtor to pay the amount to the garnisher. “Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the judgment-debtor because the latter is indebted to the garnisher. Garnishee proceedings cannot be taken in respect of a debt which cannot be attached under this code. Where the garnishee disputes his liability, the court must raise an issue, and determine the liability of garnishee. Secondly, in case ofattachment of share in the capital of a corporation the owner of the share will be prohibited from transferring the share or receiving any dividend according to an order of the court. Finally in case ofattachment of movable property not in the possession of judgmentdebtor, except a property deposited with the court, or in the custody of the court, the person in the possession of such property will be stopped from giving it to the judgment-debtor as per the order from the court. Whenshare or interest in movables is the property to be attached, a notice will be forwarded to the judgment-debtor prohibiting him from transferring or charging the same. Furthermore, the attachment of salary of government or railway authority servants can be done by withholding it subject to section 60 of CPC. A partnership property cannot be attached in execution of a decree. Such an attachment would be allowed only in a situation where the decree is passed against the firm or the partners. If the decree-holder makes an application against the partner, the court can 10

issue an order and appoint a receiver to ascertain the partners share in the profit or any amount he has to receive and further make a sale. Where the decree is against the partnership firm, the partnership property can be attached. Where the property to be attached is a negotiable interest which is not within the custody of public officer, or deposited in the court, the process of attachment can be carried out through actual seizure. Where any property to be attached is within the custody of court or public officer, a notice will be served to them stating that such property should be held subject to further orders of the court. In a case where the property attached is a current coin or currency notes, the court can direct such items to be handed over to the decree-holder in satisfaction of his claim.

Removal & determination of attachment The attachment shall be deemed to be withdrawn in the following cases : (a) The decreed amount, all costs, charges, and expenses from the attachment of property are paid into the court, or (b) Satisfaction of the decree is made through the court or certified to the court, or (c) The decree is set aside or reversed In case of immovable property, the withdrawal of attachment can be proclaimed by the judgment-debtor and the copy of such a proclamation can be affixed in a conspicuous part of the property and a conspicuous part of the court house at his expense. Determination is as to the status of the attachment. In cases where the property has been attached but later the court passes an order dismissing such an execution, the court will direct the status of the attachment, i.e, whether the attachment will continue or cease to exist. On failure from the court to give an express direction, it is considered implied that the attachment has ceased.

Section 93 to Section 97: Search Warrant A search warrant can be issued in any of the following situations according to Section 93.

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1. In a case where a Court has a reason to believe that an individual summoned to produce any item or document is unwilling to deliver it. 2. In a case where a document or an item is unknown to the Court to be in possession of an individual. 3. In a case where a general inspection or a search is required to be conducted. However, a search warrant may be in general or in restriction as it’s as to any place or a part thereof. Although, a search warrant shall not be issued for searching a document, parcel or any other item in the custody of the authorities of the postal or telegraph service unless ordered by a respective District Magistrate or a Chief Judicial Magistrate. A search warrant would also not be issued if it affects Section 123 and Section 124 of the Indian Evidence Act of 1872 or the Bankers’ Book Evidence Act of 1891. What is a search warrant? Search warrant is a written authority given to a police officer or any other authority by a Magistrate or Court for conducting the search of a place either generally or for specified items or documents or for persons who have been wrongfully detained.  The Courts have time and again cautioned that the power to issue search warrants shall be exercised with all care and circumspection. Circumstances under which a Search warrant may be issued The Code enumerates the circumstances under which a search warrant can be issued and they are: 1.

Where the Court has reason to believe that the person to whom a summon or order or requisition has been addressed will not produce such document/ thing;

2.

Where such document is not known to the Court to be in the possession of any person;

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Where the Court considers that the purpose of any inquiry, trial would not be served by a general search or inspection;

1.

If the Magistrate or Court has reason to believe upon information or inquiry that any place is used for the deposit or sale of stolen property or for the deposit, sale or production of any objectionable article;

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2.

A Magistrate/ Court can issue search warrant under Section 95 of CrPC to enter upon any premises for search and seizure of any newspaper, book, document or publication which appears to the State Government to contain any material that is punishable for the offence of sedition under the Indian Penal Code.

3.

If a District/ Sub-Divisional Magistrate/ Magistrate of First Class has reason to believe that any person is confined unlawfully, he may issue search warrant for the search of that person.

Constitutional Validity of Search Warrants In several cases, the constitutional validity of search warrant has been questioned. For instance, in the case of V. S. Kuttan Pillai v. Ramakrishnan, wherein it was opined that a search of the premises occupied by the accused does not amount to compulsion on him to give evidence against himself and hence was not violative of Article 20(3) of the Constitution of India. Remedies against a Search Warrant 1.

Instituting a writ petition under Article 226 of the Constitution for quashing an illegal search warrant and for return of the seized thing/document.

2.

An order under Section 93 can be set aside under 401 of CrPC in revision if it can be shown that the Magistrate had not applied its mind judicially.

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A search carried out in contravention of law constitutes an actionable trespass and a suit for damages can be filed against the person executing the illegal warrant.

Cases V. S. Kuttan Pillai vs Ramakrishnan & Anr  In exercise of the power conferred by s. 91 a summons can be issued by the Court to a person in whose possession or power any document or other thing considered necessary or desirable for

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the purpose of any investigation, inquiry, trial or other proceeding under the Code calling upon him to produce the document or thing at the time and place to be mentioned in the summons. On

the advent of the Constitution, and especially in view of the provision contained in Art. 20(3), Courts were faced with a problem whether the person referred to in s. 91(1) of the Code (s 94 of old Code) would include an accused. In other words, the question was whether a summons can be addressed to the accused calling upon him to produce any document which may be in his possession or power and which is necessary or desirable for the purpose of an investigation, inquiry, trial, etc. in which such person was an accused person. The wider question that was raised soon after the enforcement of the Constitution was whether search of the premises occupied or in possession of a person accused of an offence or seizure of anything therefrom would violate the immunity from self-incrimination enacted in Article 20(3). In M. P. Sharma & others v. Satish Chandra, District Magistrate, Delhi & ors.,(ll) the contention put forth was that a search to obtain document for investigation into an offence is- a compulsory procuring of incriminatory evidence from the accused himself and is, therefore, hit by Art. 20(3) as unconstitutional and illegal. A specific reference was made to ss. 94 and 96 of the Criminal Procedure Code, 1898 ('old Code' for short), both of which are re-enacted in almost identical language as ss. 91 and 93 in the new Code, in support of the submission that a seizure of documents on search is in the contemplation or law a compelled production of documents. A Constitution Bench of 8 judges of this Court unanimously negatived this contention observing: "A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches". It was concluded that a search under the enabling provisions of the Criminal Procedure Code cannot be challenged as illegal on the ground of violation of Article 20(3). It must be made clear that the question whether there is any element of compulsion in issuing a summons to a person accused of an offence under s. 94 (old) s. 91 (new) to produce a document or thing in his

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possession or power considered n necessary or desirable for any inquiry, investigation or, trial under the Code of Criminal Procedure was kept open. In other words, the question whether the

expression 'person' in s. 94 (old) s. 91 (new) would comprehend a person accused of an offence was left open Rajmal Heeralal Jain vs. Manmal (1.) This revision petition is directed against the order dt. 3-4-1984 passed by the Judicial Magistrate First Class, Neemuch in Criminal Case No. 190 of 1981 whereby the petitioner's application under S.93 of the Cr. P. C., 1973 (for short 'the Code') for issue of search warrant has been rejected. (2.) Circumstances giving rise to the revision petition are these. The petitioner instituted a criminal complaint against the non-applicants before the learned Magistrate in respect of offences punishable under Ss.406 and 420 of the I.P.C. in relation to certain ornaments. (3.) The learned Magistrate in exercise of powers under S.93(1)(a) of the Code ordered issue of search warrant. Pramod Kumar Bhandari vs State On the application under Section 93 of the Code, the learned Metropolitan Magistrate, Delhi issued general search warrant against unknown persons referring the matter to the Dcp (Crime & Railways) for search and seizure of the. goods under the trade-mark 'MK' within the Union Territory of Delhi. Pursuant to the said general search warrant, the factory premises of the petitioner at C-106, Geetanjali Apartments, Karkardooma, Delhi was visited by the police and the portion of the factory premises was sealed and the Seizure Memo prepared in respect of the goods, as mentioned in the Seizure Memo itself. It is this order of issuance of general search warrant dated 19th April 1996 passed under Section 93 of the Code which is assailed and sought to be revised in this petition. Brijendranath Agarwal vs. Pharmed Private Limited M. Wahajuddin, J. opinioned The first ground urged is that there is a violation of Article 20 of the Constitution as any accused person cannot be called upon to furnish any incriminating evidence against him. Reliance has 15

been placed upon the case of State of Gujarat v. Shyam Lal Mohan Lal Choksi, AIR 1965 SC 1251 wherein it was held that no search warrant could be issued to search for documents known

to be in possession of the accused, but a general search or inspection can still be ordered. The learned Counsel for the opposite side relied upon the case of V.S. Kuttan Pillai v. Ramakrishnan reported in : AIR 1980 SC 185. In that case the following observations have been made: It was however, urged that Section 93(1)(c) must be read in the context of section 93(1)(b) and it would mean that where documents are known to be at a certain place and in possession of a certain person any general search warrant as contemplated by Section 93(1)(c) will have to be ruled out because in such a situation section 93(1)(a) alone would be attracted. Section 93(1)(b) comprehends a situation where the Court issues a search warrant in respect of a document or a thing to be recovered from a certain place but it is not known to the Court whether that document of thing is in possession of any particular person. Under Clause (b) there is a definite allegation to recover certain document or thing from a certain specific place but the Court is unaware of the fact whether that document or thing or the place is in possession of a particular person. Section 93(1)(c) comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary. One cannot, therefore, cut down the power of the Court under Section 93(1) (c) by importing into it some of the requirements of Section 93(1)(b). No canon of construction would permit such an erosion of power of the Court to issue a general search warrant. It also comprehends not merely a general search but even an inspection meaning thereby inspection of a place and a general search thereof and seizure of documents or things which the Court considers necessary or desirable for the purpose of an investigation, inquiry, trial or other proceedings under the Code. The High Court accordingly sustained the general search warrant in this case under Section 93(1)(c). I have considered the implication. It may be observed that in paragraph Nos. 10 and 11, read together, it was observed that the court was proceeding on a certain assumption in view of the decision in Shyamlal Mohanlal's case though there are conflicting observations in different pronouncements and a search under Section 93(1) Code of Criminal Procedure would not be issued where the summons could not be issued to a person accused of an offence, calling upon him to produce documents or things considered necessary. It would thus appear that in no way there has been any dissent from the earlier pronouncements so far as this particular aspect is concerned and the aforesaid pronouncement lays down that while otherwise, general search warrant can be issued as contemplated under Section 93(1)(c) Code of Criminal 16

Procedure. It cannot be issued in case covered under Section 93(1)(a) Code of Criminal Procedure. In the present case, the application, Annexure I, itself

would indicate that the case was covered under Section 93(1)(a) Code of Criminal Procedure.

Section 106: Security for the keeping of peace on conviction When a Court of Session or a Court of a Magistrate of the First Class finds a person guilty of any of the offences specified in Sub-section (2) or of abetting any of the mentioned offences and has an opinion that it is necessary to take a form of security from such an individual for keeping the peace, the Court may, at the time of declaring a sentence on such a person, order him to execute a bond, with or without sureties, for keeping the period with peace that does not exceed three years, as it thinks fit. The offences mentioned under Sub-section (2) are as follows. 1. An offence that is punishable under Chapter VIII of the Indian Penal Code 1860. 2. An offence which comprises of or includes assault or the use of criminal force or committing mischief. 3. An offence with a nature of criminal intimidation. 4. An offence which causes or was intended to likely to cause a breach of the peace. However, if a conviction is set-aside on an appeal or otherwise, the bond executed shall become void as stated in Section 106 of the Criminal Procedure Code.

Section 107: Security for keeping peace in other cases An Executive Magistrate may require an individual to show cause as to why he should not be ordered to issue a bond for keeping the peace for a period that does not exceed one year as the Magistrate deems fit. This happens when the Executive Magistrate receives information that the individual is likely to commit one of the following. 1. Commit a breach of peace. 2. Disturb the tranquillity of the public. 3. Do anything wrongful that may probably cause a breach of the peace. 17

 

Biblography

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