Criminal Procedure Code


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Q. When is a person declared Absconder? Explain the procedure for publication of proclamation for persons absconding with reference to Sections 82, 83, 84, 85

When a person is hiding from his place of residence so as to frustrate the execution of a warrant of arrest, he is said have absconded. A person may hide within his residence or outside away from his residence. If a person comes to know about the issuance of a process against him or if he anticipates such a process and hides or quits the country, he is said to have absconded. In Kartary vs State of UP, 1994, All HC held that when in order to evade the process of law a person is hiding from (or even in) his place of residence, he is said to abscond. A person is not said to abscond merely when he has gone to a distant place before the issuance of a warrant. Similarly, it is necessary that the person is hiding himself and it is not sufficient that an inspector is unable to find him.

Normally, if a person fails to appear before the court even after being served a summons, the court issues a warrant of arrest. However, if the person absconds to avoid the arrest, the drastic step of Proclamation for Persons Absconding needs to be taken, which is described in Section 82..

Proclamation for person absconding (Section 82(1)) -
If the court has reason to believe that a person has absconded to avoid the execution of his arrest warrant, the court may publish a written proclamation requiring such person to appear before it at the specified place and time. The date and time of appearance must not be less than thirty days from the date of proclamation.

Procedure for Publication of the Proclamation (Section 82(2)) -
As per section 82(2), the proclamation must be read in some conspicious place of the town or village in which the person resides. It shall also be affixed to some conspicuous part of the house in which the person resides or to some conspicuous place of the town or village. Further, a copy of the same must also be affixed to some conspicious part of the court house. The court may also direct a copy of the proclamation to be published in a daily newspaper circulating in the place is which such person ordinarily resides.

The terms of Section 82 are mandatory and a proclamation cannot be issued without first issuing a warrant of arrest. Therefore, as held in Bishnudayal vs Emperor AIR 1943, if there is no authority to arrest, the issuing of proclamation would be illegal.

Consequences of Proclamation
Section 83 - Attachment of property of person absconding -
The publication of proclamation in accordance with the procedure described in section 82, is the last of the steps taken to produce a person before the court. If the person still fails to appear before the court, Section 83 empowers the court to attach the property of the person who is absconding at any time. The court must record the reasons for doing so. The property can be movable or immovable. The property can be any property within the district or even outside the district of the District magistrate of the other district endorses the proclamation.

Further, if, at the time of making proclamation, the court is satisfied that the person is about to dispose of his property or is about to move his property out of the jurisdiction of the court, it may order the attachment of the property simultaneously with the issue of proclamation.

If the property to be attached is a debt or is movable property, the attachment is done either by seizure, by the appointment of a receiver, by an order ins writing prohibiting the deliver of sch property to the proclaimed person or to anyone on his behalf. Court can also use any one or more of these modes as it thinks fit. If the property is immovable, it can be attached by taking possession, by appointing a receiver, by an order prohibiting the payment of rent to the proclaimed persons or by any or all of these methods.

Section 84 provides a means to protect the interests of any person other than the proclaimed person in the attached property. Any such person who has an interest in the attached property can claim it within six months from the date of attachment on the ground that the claimant has an interest in the property and the interest is not liable to be attached under section 83. The claim shall be inquired into and may be allowed or disallowed in whole or in part.

(1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:

Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.

(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made.

(3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made:
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him.

(4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.

Section 85 - Release, Sale, and restoration of the property -
(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.

(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit.

(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale, and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him.




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Q. What do you understand by Arrest? How is an arrest made? When can the police arrest a person without an order from a magistrate and/or without a warrant? Explain the rights of an arrested person. [Right to know the grounds of arrest - Art 22(1), Sec 50, 50(A), Right to consult and to be defended by legal practitioner of his choice - Art 22(1), Sec 303, Right to legal aid - Art 21, Sec 304, Right to bail Sec 50(2), Right to be produced before nearest magistrate within 24 hrs - Art 22(2) Sec 56, 57, Right not to be detained in custody beyond 24 hrs - Art 22(2) Sec 57, 167, Right to be examined by medical practitioner] 

Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus, after arrest, a person's liberty is in control of the arrester. Arrest is an important tool for bringing an accused before the court as well as to prevent a crime or prevent a person suspected of doing crime from running away from the law. Cr P C contemplates two types of arrests - an arrest that is made for the execution of a warrant issued by a magistrate and an arrest that is made without any warrant but in accordance with some legal provision that permits arrest.

Section 41 to 44
contain provisions that govern the arrest of a person by police and private citizens, while Section 46 describes how an arrest is a made.

(Note - Arrest in case of Warrant is discussed in another question.)

Arrest without warrant
There are situations when a person may be arrested by a police officer, a magistrate or even private citizen without a warrant. These are described in Section 41, 42, 43, and 44 as follows -

Arrest by Police - Section 41. When police may arrest without warrant (CIPSODOBO)
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -
(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest. Further, in State vs Bhera, CrLJ, 1997, it was held that the "reasonable suspicion" and "creditable information" must relate to definite averments which must be considered by the Police Officer himself before he arrests the person.


Section 42 allows a police officer to arrest a person for a non-cognizable offence, if he refuses to give his name and residence.  As per Section 42(1),  when any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
However, as per sub clause (2), the person must be released when the true name and residence of such person have been ascertained. He may be required to execute a bond, with or without sureties, to appear before a Magistrate if necessary.

Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
Further,  as per sub clause (3), should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.


Arrest by Private person 
Even private persons are empowered to arrest a person for protection of peace in certain situations. This is important because police cannot be present at every nook and corner and it is up to private citizens to protect the society from disruptive elements or criminals. As per section 43(1),  any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. Thus, if a person is drunk and is committing assault on others, he may be rightly arrested by any citizen and taken to the nearest police station.

However, it is important to note that this power can be exercised only when the person making an arrest is under a bona fide impression that a non-bailable and cognizable office is being committed in his presence. One does not have a right to arrest on mere suspicion or on mere opinion that an offence has been committed.

Procedure on arrest by private person -
As mentioned above, the private person must take the arrested person to the police officer or police station without any reasonable delay. If he keeps the person in his own custody, he will be guilty of wrongful confinement as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him. Further, as per section 43(3), if there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

A new provision has been incorporated as Section 50A, which makes it obligatory for the police officer or any other person making an arrest to give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. Further,  the police officer shall inform the arrested person of his rights under subsection as soon as he is brought to the police station. He must make an entry of the fact as to who has been informed of the arrest of such person in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. It is the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of this section has been complied with in respect of such arrested person.

Arrest by Magistrate
As per Section 44(1), when any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. Further, (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Important thing to note here is that magistrates have wider power than private citizen. A magistrate can arrest on the ground of any offence and not only on cognizable offence. As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the arrested person must be produced before another magistrate within 24 hours, otherwise his detention will be illegal.

Arrest how made -

Section 46 describes the way in which an arrest is actually made. As per Section 46(1), unless the person being arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the body of the person to be arrested.  Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or physical touching to confine the body will not amount to arrest. The submission to custody may be by express words or by action. For example, as held in the case of  Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a statement to the police accusing himself of committing an offence, he would be considered to have submitted to the custody of the police officer. Similarly, if the accused proceeds towards the police station as directed by the police officer, he has submitted to the custody. In such cases, physical contact is not required. In case of Birendra Kumar Rai vs Union of India, CrLJ, 1992, it was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words if the person submits to custody.

Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. Thus, if the person tries to runaway, the police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the accused.  However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping.

Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.


Rights of an Arrested person (GBMLLIM)

Cr P C  gives wide powers to the police for arresting a person. Such powers without appropriate safeguards for the arrested person will be harmful for the society. To ensure that this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as recognition of the rights of a person being arrested.  Further, once arrested, a person is already at a disadvantage because of his lack of freedom and so he cannot take appropriate steps to defend himself. Thus, to meet the needs of "fair trial", several provisions are given in CrPC, that give specific rights to an arrested person.  These rights can be described as follows -

1. Right to know the grounds of arrest - Section 50(1) - According this provision, 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.
Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55, the subordinate officer must notify the person to be arrested of the substance of the written order given by the senior officer, which clearly specifes the offence for which he is being arrested. The same provision exists in case of an arrest made under a warrant in Section 75. In this case, the police officer or any person making arrest under warrat must notify the substance of the warrant to the person being arrested and if required, must show the warrant. As held in Satish Chandra Rai vs Jodu Nandan Singh, ILR 26 Cal 748, if the substance of the warrant is not notified, the arrest would be unlawful.

In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows him to move the proper court for bail, make a writ petition for habeas corpus, or make appropriate arrangements for his defence.

This right is also a fundamental right given by the Constitution in Art 22(1), which says, "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.". It embodies two distinc rights - the right to be told of the grounds of arrest and the right to consult a legal practioner of his choice. The second right of consulting a legal practitioner of his choice actually depends on the first right of being told about the grounds of arrest. If the person doesn't know why he is being arrested, he cannot consult a legal practioner meaningfully. In Harikishan vs State of Maharashtra AIR 1962, SC held that the grounds of arrest must be communicated to the person in the language that he understands otherwise it would not amount to sufficient compliance of the constitutional requirement.

2. Right to be informed of the provision for bail - Section 50(2) - Some offences that are not very serious do not require the offender to be kept in custody. For such offences, Cr P C allows the offender to ask for bail as a matter of right. However, not every person knows about Cr P C and so they cannot know that they can get bail immediately.  Thus, Section 50(2), provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, 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.

3. Right to be taken to magistrate without delay - Holding a person in custody without first proving that the person is guilty is a violation of human rights and is completely unfair. At the same time, holding a person in custody is necessary for the police to carry on their investigation of a crime. These two are contradictory requirements and a balance must be found between them. Since police has arrested the person, it cannot be the agency that determines whether person must be kept confined further. This can only be decided by a competent judicial authority. This is exactly what is embodied in Art 22(2) that gives a fundamental right to the arrested person that he must be produced before a magistrate within 24 hours of arrest. It says, "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."

Section 57 of CrPC also contains a similar provision for a person arrested without a warrant. It says, "No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a 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."

Section 76 contains a similar provision for a person arrested under a warrant. It says, "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."

Thus, it can be see that it is a very important right that is meant to prevent abuse of police power and to prevent the use of a police station as a prison. It prevents arrest merely for the purpose of extracting confessions. The arrested person gets to be heard by a judicial authority that is independent of the police.

In Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours be scrupulously met. This is a healthy provision that allows magistrates to keep a check on the police investigation. It is necessary that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.

Further, in Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police officer fails to produce an arrested person before a magistrate within 24 hours, he shall be held guilty of wrongful detention.

Constitutional Perspective on Art 22(2) -  On the face of it, this article seems to be applicable on arrests with or without warrants. However, in State of Punjab vs Ajiab Singh AIR 1953, SC observed that it applies only to cases of arrests without warrant because in case of an arrest with warrant, the judicial mind has already been applied while issuing the warrant. So further safeguard is not required. This decision has been widely criticized. In any case, the proviso to Section 76 unmistakably provides that a person arrested under a warrant must be produced before a magistrate within 24 hours.

4. Right to consult Legal Practitioner -  Art 22 (1) - For conducting a fair trial it is absolutely necessary that the accused person is able to consult with a legal practitioner whom he trusts. Second part of Article 22(1) gives this fundamental right to an arrested person. It says that no person who is arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. However, this does not mean that the State must provide a legal practitioner of the person's choice. It is up to the arrested person to contact and appoint a such a legal practitioner. The State's responsibility is only to ensure that he is not prevented from doing so.

The same right is also provide by CrPC under Section 303, which says, "Any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice."

5. Right to free legal aid -  Art 21 and Section 304 - A person who does not have the means to hire a legal practitioner is unable to defend himself appropriately. This casts a cloud on the fairness of the trial. Therefore, Section 304 provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State. In Khatri (II) vs State of Bihar 1981 SCC, Supreme Court has also held that access to a legal practitioner is implicit in Article 21, which gives fundamental right to life and liberty. The state is under constitutional mandate to provide free legal aid to an indigent accused person and this constitutional obligation arises not only when the trial is commenced but also when the person is first produced before a magistrate and also when he is remanded from time to time. In Suk Das vs Union Territory of Arunachal Pradesh 1986, SCC, SC has held that non-compliance of this requirement or failure to inform the accused of this right would vitiate the trial entailing setting aside of the conviction and sentence. The right of an accused person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be within the presence of a police officer but not within the police officer's hearing. SC also held that it is the duty on all courts and magistrates to inform the indegent person about his right to get free legal aid.

6. Right to be informed about the right to inform of his arrest to his relative or friend -
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in Joginder Kumar vs State of UP 1994, formulated the rules that make it mandatory on the police officer to inform one friend, relative, or any other person of the accused person's choice, about his arrest. These rules were later incorporated in CrPC under section 50 A in 2005.

Section 50 A (1) provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person's choice, about his arrest. He must also tell the place where the arrested person has been kept. This is a very important step in ensuring justice with the arrested person because this allows the arrested person and his well wishers to take appropriate legal steps to secure his release. However, all this will amount to nothing if the arrested person does not even know about this very critical right. Thus, Section 50 A (2) provides that the police officer must inform the arrested person of this right. Further, as per Section 50 A (3) he must note down the name and address of the person who was informed about the arrest. To make sure that there is no violation of this right, section 50 A (4)  makes it a duty of the magistrate to verify that the provisions of this section were complied with.

7. Right to be examined by a medical practitioner - While Section 53 allows a police officer to get the accused examined by a registered medical practitioner, Section 54(1) gives the accused a right to get himself examined by a registered medical practitioner. Section 54 (1) says thus, "When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of' the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice". While Section 53 is meant to aid the police in investigation, Section 54(1) is meant for the accused to prove his innocence. This right can also be used by the accused to prove that he was subjected to physical injury.

In Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the arrested accused person must be informed by the magistrate about his right to be medically examined in terms of Section 54(1).

However, it is not clear in the section whether the medical person must be of the choice of the accused or shall be appointed by the magistrate. The section is also silent on who will bear the expense of the examination.

Non compliance to this important provision prompted Delhi High court to issue directions that make it obligatory for the magistrates to ask the arrested person as to whether he has any complaint of torture or maltreatment in police custody.

Consequences of non-compliance with the provisions relating to arrest -
In general, non-compliance does not void a trial. Just because any provision relating to arrest was not complied with does not affect whether the accused is guilty or not. However, the violation will be material in case the accused is prosecuted on the charge of resistance to or escape from lawful custody.
Further, everybody has a right to defend himself against unlawful arrest and a person can exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury caused due to it. Also, a person who is making an illegal arrest is guilty of wrongful confinement and also exposes himself  to damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private person who does not have an authority to arrest, arrests a person with full knowledge that the arrest is illegal, can be prosecuted under Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of false imprisonment.

It is important to note that the provisions regarding arrest cannot be by-passed by alleging that there was no arrest but only an informal detention. Informal detention or restraint of any kind by the police is not authorized by law.




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Q. What is a Charge? What are the contents of a Charge? Discuss the effects of errors in a Charge? How is a Charge different from FIR?  

Charge
As per Wharton's law Lexicon, Charge means to prefer an acusation against some one. To charge a person means to accuse that person of some offence. However, charge is not a mere accusation made by a complainant or an informant. A charge is a formal recognition of concrete accusations by a magistrate or a court based upon a complaint or information against the accused. A charge is drawn up by a court only when the court is satisfied by the prima facie evidence against the accused. The basic idea behind a charge is to make the accused understand what exactly he is accused of so that he can defend himself. A charge gives the accused accurate and precise information about the accusation against him.A charge is written in the language of the court and the fact that the charge is made means that every legal condition required by law to constitute the offence charged is fulfilled in the particular case.

It is a basic principle of law that when a court summons a person to face a charge, the court must be equipped with at least prima facie material to show that the person being charged is guilty of the offences contained in the charge. Thus, while framing a charge, the court must apply its mind to the evidence presented to it and must frame a charge only if it is satisfied that a case exists against the accused. In the case of State vs Ajit Kumar Saha 1988, the material on record did not show a prima facie case but the charges were still framed by the magistrate. Since there was no application of mind by the magistrate, the order framing the charges was set aside by the High Court.


According to Section 2(b) of Cr P C, when a charge contains more than one heads, the head of charges is also a charge.

Contents of a Charge
Section 211 specifies the contents of a Charge as follows [ONDSLP] -
(1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law that creates the offence gives it any specific name, the offence may be described in the charge by that name only.
(3) If the law that creates the offence does not give it any specific name so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may think fit to award for the subsequent offence, the fact date and place of the previous, conviction shall be stated in the charge; and if such statement has been omitted, the court may add it at any time before sentence is passed.

A charge must list the offence with which the person is charged. It must specify the law and the section against which that offence has been done. For example, if a person is charged with Murder, the charge must specify Section 300 of Indian Penal Code. If the law gives a name to that offence, the charge must also specify that name and if the law does not specify any name for that offence, the charge must specify the detail of the offence from the definition of the offence so that the accused is given a clear idea of it.

In many cases, on offender is given a bigger sentence for subsequent offence. In such cases, the charge must also state the date and place of previous conviction so that a bigger punishment may be given.

Illustrations -

(a) A is charged with the murder of B. This is equivalent to a statement that A's act fell within the definition of murder given in sections 299 and 300 of the Indian Penal Code (45 of 1860); that it did not fall within any of the general exceptions of the said Code; and that it did not fall within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one or other of the three provisos to that exception applied to it.
(b) A is charged under section 326 of the Indian Penal Code (45 of 1860) with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the said Code, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property-mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property-mark, without reference to the definition, of those crimes contained in the Indian Penal Code; but the sections under which the offence is punishable must, in each instance, be referred to in the charge.
(d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.

Time and Place of the offence
Further, as per section 212, the charge must also specify the essential facts such as time, place, and person comprising the offence.  For example, if a person is charged with Murder, the charge must specify the name of the victim and date and place of the murder. In case of Shashidhara Kurup vs Union of India 1994, no particulars of offence were stated in the charge. It was held that the particulars of offence are required to be stated in the charge so that the accused may take appropriate defence. Where this is not done and no opportunity is afforded to the accused to defend his case, the trial will be bad in law for being violative of the principles of natural justice.

It is possible that exact dates may not be known and in such cases, the charge must specify information that is reasonably sufficient to give the accused the notice of the matter with which he is charged. In cases of criminal breach of trust, it will be enough to specify gross sum or the dates between which the offence was committed.

Manner of committing the offence

Some times, even the time and place do not provide sufficient notice of the offence which which a person is charged. In such situations, Section 213, mandates that the manner in which the offence was made must also be specified in the charge. It says that when the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner is which the alleged offence was committed as will be sufficient for that Purpose.

Illustrations-

(a) A is accused of the theft of a certain article at a certain time and place the charge need not set out the manner in which the theft was effected
(b) A is accused of cheating B at a given time and place. The charge must be set out the manner in which A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge or his public functions at a given time and place. The charge must set out the manner obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save punishment. The charge must set out the disobedience charged and the law infringed.

Effects of errors in a Charge
In general, an error in a Charge is not material unless it can be shown that the error misled the accused or that the error caused injustice. Section 215 says, "No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."

Illustrations:

(a) A is charged under section 242 of the Indian Penal Code (45 of 1860), with "having, been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit," the word "fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The court may infer from this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. Court may infer from such facts that the omission to set out the manner of was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January. 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The court may infer from this that A was misled, and that the error was material.

The above illustrations show that when the accused in not misled, the error is not material. For example, in the case of Rawalpenta Venkalu vs State of Hyderabad, 1956, the charge failed to mention the Section number 34 of IPC but the description of the offence was mentioned clearly. SC held that the the section number was only of acedemic significance and the ommission was immaterial.

Section 464 further provides that an order, sentence, or finding of a court will not be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder  of charges, unless in the opinion of the court of appeal, confirmation, or revision, a failure of justice has in fact happened because of it. If such a court of appeal, confirmation, or revision find that a failure of justice has indeed happened, in case of omission, it may order that a charge be immediately framed and that the trial be recommenced from the point immediately after the framing of the charge, and in case of error, omission, or irregularity in the charge, it may order new trial to be held upon a charge framed in whatever manner it thinks fit.

As is evident, the object of these sections is to prevent failure of justice where there has been only technical breach of rules that does not affect the root of the case as such. As held in the case of Kailash Gir vs V K Khare, Food Inspector, 1981, the above two sections read together lay down that whatever be the irregularity in framing the charge, it is not fatal unless there is prejudice caused to the accused.

Further, Section 216 allows the court to alter the charge anytime before the judgement is pronounced.

Section 216:
(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court to prejudice the accused in his defence or the prosecutor in the conduct of the case the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) lf the offence stated in the altered or added charge is one for the prosecution of which previous section is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

Thus, even if there is an error in a charge, it can be corrected at a later stage. An error in a charge is not important as long as the accused in not prejudiced and principles of natural justice are not violated.

Difference between Charge and FIR
A First Information Report is a description of the situation and the act that constitutes a cognizable offence as given to the office in charge of a police station by any person. Such information is signed by the person giving the information. If the information is given orally, it is reduced in writing by the officer in charge, read over to the informant, and then signed by the person. The substance of this information is also entered into a register which is maintained by the officer. This is the first time when an event is brought to the attention of the police. The objective of the FIR is to put the police in motion for investigating the occurance of an act, which could potentially be a cognizable offence.

An FIR is a mere allegation of the happening of a cognizable offence by any person. It provides a description of an event but it may not necessarily provide complete evidence. No judicial mind has to be applied while writing the FIR. However, upon receipt of an FIR, the police investigates the issue, collects relevant evidence, and if necessary, places the evidence before a magistrate. Based on these preliminary findings of the police, the magistrate then formally prepares a charges , with which the perpetrator is charged.

Thus, an FIR is one path that leads to a Charge. An FIR is vague in terms of the offences but Charge is a precise formulation of the offences committed. An FIR is a description of an event, while a Charge is a description of the offences committed in that event. An FIR may or may not name an offender but a charge is always against a person. An FIR is always of a cognizable offence, but a charge may also include a non-cognizable offence.

Q. Explain the principle of separate charges for distinct offences. Are there any exceptions? (sec 218, 219, 220, 221, 223). When can multiple offences be charged separately, when can they be tried in the same/different trial? What do you understand by Joinder of charges?

The initial requirement in conducting a fair trial in criminal cases is a precise statement of the charges of the accused. This requirement is ensured by CrPC through Sections 211 to 214, which define the contents of a charge.  Precise formulation of charges will amount to nothing if  numerous unconnected charges are clubbed together and tried together. To close this gap, Section 218 enunciates the basic principle that for every distinct offence there should be a separate charge and that every such charge must be tried separately.

Section 218 says thus -
(1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person.
Illustration
A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.

The object of Section 218 is to save the accused from being frustrated in his defense if distinct offences are lumped together in one charge or in multiple charges but tried in the same trial. Another reason is that the court may become prejudiced against the accused if he were tried in one trial for multiple charges resting on different evidence since it might be difficult for the court not be get influenced on one charge by evidence against him on other charges.
It must be noted that Section 218 says "distinct offences" must be charged and tried separated. It does not say "every offence" or "each offence". It has been held in Banwarilal Jhunjhunwala vs Union of India AIR 1963, that "distinct offence" is different from "every offence" and "each offence". Separate charge is required for distinct offence and not necessarily for every offence or each offence. Two offences are distinct if they are not identical and are not in any way interrelated. A distinct offence may distinguished from other offences by difference in time or place of commitment, victims of the offence, or by difference in the sections of the law which make the acts as offence.

However, a strict observance to Section 218 will lead to multiplicity of trials, which is also not desirable. Therefore sections 219 to 223 provide certain exceptions to this basic rule. These are as follows -
[3TBDGDJ]

Exception 1. Three offences of the same kind within a year - Section 219 - When a person is accused of more than one offences of the same kind within a span of twelve months, he may be charged and tried at one trial for any number of such offences not exceeding three. For example, if a person is accused of theft in three different homes in the span 12 months, he can be charged with all the three at once and tried at the same trial. The period of 12 months is counted from the occurance of the first offence up to the last offence.  
An offence is considered to be of the same kind if it is punishable by the same amount of punishment under the same section of IPC or of the local or special law. Further, if the attempt to commit an offence is an offence, then it is considered an offence of the same kind for the purpose of this section.

Exception 2. Offences committed in the course of same transaction - Section 220(1) - If a person commits multiple offences in a series of acts that constitutes one transaction, he may be charged with and tried in one trial for every such offence. The code does not define the meaning of the term transaction. However, it is well accepted that a precise definition of transaction is not possible and even Supreme Court has not attempted to define it. In case of State of AP vs Cheemalapati Ganeshwara Rao, AIR 1963, SC observed that, it would always be difficult to define precisely what the expression means. Whether a transaction is to be regarded as same would depend upon the facts of each case. But is is generally thought that were their is proximity of time, place, or unity of purpose and design or continuity of action in a series of acts, it may be possible that they form part of the same transaction. It is however not necessary that every one of these elements should coexist for considering the acts as part of the same transaction.
For example, A commits house-breaking by day with intent to commit adultery, and commits in the house so entered, adultery with B's wife. A may be separately charged with, and convicted of, offences under sections 454(Lurking house trespass or house breaking with an intention to commit offence punishable with imprisonment) and 497(Adultery) of the Indian Penal Code.

Exception 3 - Offences of criminal breach of trust or dishonest misappropriation of property and their companion offences of falsification of accounts - Section 220(2) - Usually the offence of criminal breach of trust or dishonest misappropriation of property is committed with the help of offence of falsification of accounts to conceal the main offence. This section allows such offences to be charged with and tried at one trial.

Exception 4 -  Same act falling under different definitions of offences - Section 220(3) - If an act constitutes an offence under two or more separate definitions of any law in force, the person may be charged with and tried at one trial for each of the offences. For example, A wrongfully strikes B with a cane. This act constitutes an offence as per Section 323 (Voluntarily causing hurt) as well as Section 252 (Assult or criminal force otherthan on grave provocation). Thus, the person may be charged with both and tried for both the offences at the same trial.

Exception 5 - Acts forming an offence, also constituting different offences when taken separately or in groups -  Section 220(4) - When several acts together constitute an offence and those acts, which taken individually or in groups, also constitune another offence or offences, the person committing those acts may be be charged with and tried at one trial. For example, A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged, with and convicted of offences under sections 323(Voluntarily causing hurt), 392(Robbery) and 394(Voluntarily causing hurt while committing robbery) of the Indian Penal Code.
 
Exception 6 - Where it is doubtful what offence has been committed -  Section 221 - If a single act or a series of acts is of such nature that it is doubtful which of the several offence the facts of the case will constitute, the accused may be charged with having committed all or any of such offences and all or any of such charges may be tried at once. Further, in such a situation, when a person is charged with an offence but according to evidence it appears that he committed another offence, he may be convicted of the offence which he is shown to have committed even if he is not charged with that offence. For example,  A is accused of an, Act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property or criminal breach of trust or cheating.
Further, in the same case mentioned, lets say, A is only charged with theft and it appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust of receiving stolen goods (as the case may be) though he was not charged with such offence.

Another illustration is as follows - A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot to be proved which of these contradictory statements was false.

Exception 7 - Certain persons may be charged jointly -  Section 223 - The following persons may be charged and tried together, namely:-
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges :

Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.




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Q. Explain general provisions concerning bond [Sec 441 - 450]. Explain the procedure that is followed when a bond is forfeited [Section 446].

Bond
As per Section 441, before any person is released on bail or is released on his own bond, a bond for an appropriate sum of money shall be executed by the person and if required by one or more sureties, stating that the person will appear before the court at the given date and time mentioned in the bond.
In other words, a bonds provides a kind of monetary guarantee that the person being released will appear before the court as and when required.

General Provisions of Bonds -  ( ABNRI DDFFIMAL)
Section 440 - Amount of bond should not be excessive. High Court and Court of Session have power to reduce the amount.
Section 441 - Court may accept affidavits in proof of fitness of sureties or it may also hold an inquiry to determine the sufficiency of sureties.
Section 441 A - Every surety must state the number of person he is currently standing surety for.
Section 442 - As soon as the bond is executed, the person should be released.
Section 443 - If through mistake, fraud or otherwise, insufficient sureties have been accepted or if they afterwards become insufficient, the court may issue a warrant of arrest and may ask him to provide fresh sureties.
Section 444 - A surety can apply to be discharged from the bond, in which case, the person for whom the surety is given will be arrested and asked to provide new surety.
Section 445 -  A court may permit a person to deposit money instead of executing a bond with or without sureties.
Section 446 -  If a bond is forfeited, the sureties may be asked to pay the penalty.
Section 446 A - When a bond for appearance of a person is forfeited for a breach of condition, the bond executed by the person and the sureties shall stand canceled.
Section 447 - If a surety becomes insolvent or dies, the court may ask for new sureties.
Section 448 - If the person from whom bond is required is minor the court may accept a bond executed by sureties only.
Section 449 - Appeal from orders under Section 446 will lie to Sessions Judge if the order is made by a magistrate and to High Court if the order is made by Sessions Judge.
Section 450 - The High Court or Court of Session may direct any magistrate to levy the amount due on a bond for appearance or attendance at such High Court or Session Court.

Procedure on forfeiture of a Bond
If the court is satisfied that the bond has been forfeited -
    1. It may ask any person bound by the bond to pay penalty or to show cause why it should not be paid.
    2. If sufficient cause is not shown and penalty is not paid, the court may proceed to recover the same as if the penalty was a fine imposed by the court.
    3. If the penalty cannot be recovered, the person bound as surety is liable to be imprisoned in civil jail for up to 6 months
    4. The court may remit any portion of the penalty and require the payment in part. It must record its reasons for doing so.
    5. If a surety to a bond dies, his estate shall be discharged from all liability in respect of the bond.




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Q. 8 What is meant by Commencement of proceedings? [Sec 200, 201, 202] When can a complaint be dismissed?[Sec 203] 

"Commencement of proceedings" happens with the proceedings that take place after "taking of cognizance" of an offence by a magistrate under Section 190, which can happen either on a complaint by any person, a police report, any other source other than a police officer, or upon his own knowledge. However, when cognizance is take upon a complaint made by any person, it is critical to examin the complainant to ensure that the complaint is genuine before starting the trial and summoning an accused. According to 41st Law Report, everyday experience of the court shows that a vast number of complaints to the magistrate are ill founded and therefore they should be carefully considered at the very start and those which are not very convincing on the face should be subjected to further scrutiny so that an accused person is summoned only in substantial cases. What this means is that frivolous and vexatious cases that are just meant to harass an accused must be weeded out. This is exactly the objective of Section 200, which implores a magistrate to examin the compainant under oath and any witnesses. 

Section 200 says: 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-
(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.

In MacCulloch vs State, 1974, it was held by SC that the provisions of section 200 are not a mere formality, but have been intended by the legislature to be given effect to for the protection of the accused persons against unwarranted complaints.

It is also necessary that to start the trial process, the magistrate must be competant to take cognizance the alleged offence. Section 201 says that if the magistrate is not competant to take congnizace of an 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.

To further protect a person from frivolous cases arising from complaints from private parties, Section 202 empowers a magistrate to 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 and he can postpone the issue for process for this purpose.

It is important to note that the "weeding" as envisaged by Section 200-203 is only applicable to cases where cognizance is taken by the magistrate upon a complaint by a private party. It is not applicable to cognizance taken upon a police report.

Issue of Process (Section 204)
Once it is determined that a prima facie case exists against the accused, the magistrate proceeds with the case as per Section 204 by the way of issuing a process.  Which means :
(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.
(5) Nothing in this section shall be deemed to affect the provisions of section 87 (Section 87:  Issue of warrant in lieu of, or in addition to, summons).


Dismissal of a Complaint - Section 203
As mentioned before, upon receiving a complaint, a magistrate can conduct an inquiry or direct investigation of the complaint under Section 202(1). Section 203 empowers a magistrate to dismiss the complaint, if, after considering the statements on oath from the complainant or his witnesses or the result of the inquiry or investigation, he believes that there are no sufficient grounds for proceeding further. He must record the reasons for dismissal. The magistrate must apply his mind on the collected statements and inquiry report to determine whether there is any merit in the complaint. However, as held by SC in Chandra Deo Singh vs Prokash Chandra Bose, 1963, the test specified by Section 203 for dismissing a complaint is only whether sufficient grounds exist for proceeding further and not whether sufficient grounds exist for conviction.  Thus, even if the magistrate does not see sufficient grounds for conviction but sees sufficient ground for proceeding further with the trial, he must not dismiss the complaint. SC further observed that where there is a prima facie evidence against the accused, even though the accused might have a defence, the issue of process cannot be refused because the hearing of defence must be done at the appropriate stage and at appropriate forum.