Report No. 41
Processes to Compel Appearance
It is a standing complaint that there is a great deal of avoidable delay in the service of summonses and that the execution of coercive processes is often unsatisfactory. Improvements in this regard can only be effected by administrative action and there is little that can be achieved by amendment of the law. Most of the changes recommended in Chapter VI by the previous Report are of a formal character. Reference should however be made to one important recommendation regarding the service of summonses to witnesses by registered post for which the Commission has proposed a new section. The other changes proposed in this Chapter relate to matters of detail and are briefly reviewed below.
6.2. Section 68.-
In su.-section (1) of section 68, an addition is suggested) to bring it into line with section 75 in respect of summonses issued by a Bench of Magistrates. The su.-section will read.-
"(1) Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court (or in the case of a Bench of Magistrates, by any Member of such Bench) or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court."
The previous Report has recommended the addition of a su.-section (4) to the effect that "nothing in this section shall affect the provisions of section 174A", which is the new section proposed for service of summons by post. Since other modes of service are provided for in detail also in sections 69 to 74, we do not think it will be desirable to include such a su.-section only in section 68. Since issue of summons by post is to be in addition to, and not in lieu of, any other mode of service adopted by the Court in the particular case, there is really nothing in section 68(2) or in the other sections to affect the new section. It would be sufficient to say expressly in section 74A that its provisions operate notwithstanding anything contained in the preceding sections.
6.3. Section 69.-
No change was recommended in section 69 in the previous Report. With reference to su.-section (3), however, it was noted that the procedure to be followed after service on a body corporate pertained to the chapter on general provisions in inquiries and trials. This subject is considered2 in detail under Chapter XXIV but it may be noted here that societies registered under the Societies Registration Act, 1860, although not formally incorporated, possess some of the attributes of a corporation and it is desirable that such societies should be treated on a par with corporation in criminal proceedings. While section 69 deals with service of summonses on individuals and incorporated companies, it is silent as to service of summonses on registered societies. To remove this lacuna, it is desirable to add a su.-section (4) to section 69 reading as follows.-
"(4) The provisions of su.-section (3) shall apply to a society registered under the Societies Registration Act, 1860, as they apply to an incorporated company."
6.4. Section 70.-
In regard to section 70, the previous Report has recommended1 that the special provision regarding service of summons on a person in a Presidenc.-town through a servant residing with him should be omitted, and instead, an explanation should be added that a servant is not a member of the family of the person to be summoned within the meaning of this section, whether it be in a Presidenc.-town or outside. This section will accordingly be amended to read as follows.-
"70. Service when person summoned cannot be found.- Where the person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving one of the duplicate for him with some adult male member of his family residing with him; and the person with whom the summons is so left shall, if so required by the serving officer, sign an receipt therefor on the back of the other duplicate.
Explanation.-A servant is not a member of the family within the meaning of this section."
1. 37th Report, para. 218.
2. See Order 5, rule 15, Code of Civil Procedure, 1908.
6.5. Section 71.-
As regards section 71, it is recommended1 in the previous Report that it should be amended to bring it into line with the corresponding provision in the Code of Civil Procedure. For the words "and thereupon the summons shall be deemed to have been duly served" there should be substituted the following words2.-
"and the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper."
1. 37th Report, para. 219.
2. See Order 5, rule 19, Code of Civil Procedure, 1908.
6.6. Issue of summons to witness by pos.-new section 74A.-
We have already referred1 to the recommendation made in the previous Report for the insertion of a new section relating to service of summons on a witness by post. This section may be as follows.-
"74A. Service of summons of witness by post.- (1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness under any of the said sections may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.
(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery has been received, the Court issuing the summons may declare that the summons has been duly served.2"
1. See paras. 6.1 and 6.2 above.
2. Cf. Order 5, rule 20A, Code of Civil Procedure, 1908.
6.7. Section 77.-
In section 77, the special provision relating to Presidency Magistrate will have to be omitted. Su.-section (1) may be revised to read as follows.-
"(1) a warrant of arrest shall ordinary be directed to one or more polic.-officers, but the Court issuing such a warrant may, if its immediate execution is necessary and no polic.-officer is immediately available, direct it to any offer person or persons, and such person or persons shall execute the same."
1. Cf. 37th Report, para. 225.
6.8. Section 78.-
Section 78 at present confers a power on the District Magistrate or Su.-divisional Magistrate to issue a special type of "warrant to a lan.-holder, farmer or manager of land within his district or su.-division for the arrest of an escaped convict, proclaimed offender or person who has been accused of a no.-bailable offence and who has eluded pursuit". Although the power is infrequently exercised there appears to be no objection to conferring it on all Magistrates of the first class and all Executive Magistrates.1
It is not very clear whether the two clauses "who has been accused of a no.-bailable offence and who has eluded pursuit" are intended to qualify only persons other than escaped convicts and proclaimed offenders. The words "eluded pursuit" are also not very apt in the context. It is accordingly proposed that this su.-section may be revised as follows.-
"78. (1) A Magistrate of the first class or an Executive Magistrate may direct a warrant to any lan.-holder, farmer or manager of land within his local jurisdiction for the arrest of any escaped convict or proclaimed offender or of any person who is accused of a non bailable offence and is evading arrest."
1. Cf. 37th Report, para. 225.
6.9. Section 87.-
In su.-section (2) of section 87, which prescribes the mode of publishing a proclamation regarding an absconding offender, the previous Report has recommended1 an additional provision to the effect that "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."
1. 37th Report, para. 280.
6.10. Section 88.-
Section 88 deals with the attachment of property of an absconding person and with the investigation of claims and objections made to such attachment and other consequential matters. In the previous Report,1 two formal amendments have been suggested in su.-sections (2), (6B) and (6C), the effect of which will be to empower the Chief Judicial Magistrate in addition to the District Magistrate and Chief Presidency Magistrate mentioned in the su.-section.
On reconsidering the matter it appears to us that the power to endorse an attachment order under su.-section (2) should be with the Chief Judicial Magistrate within whose district the attached property is situate, and not with the District Magistrate of the District. The amendments to be made in section 88 may accordingly be as follows.-
"(i) In su.-section (2) and in su.-section (6B), for the words "District Magistrate or Chief Presidency Magistrate", the words "Chief Judicial Magistrate" shall be substituted; (ii) In su.-section (6C), for the proviso, the following proviso shall be substituted, viz.,
'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'.' "
1. 37th Report paras. 231, 233 and 234.
6.11. Section 91.-
As regards section 91, the previous Report1 has recommended the addition of the following words at the end, namely, "or any other Court to which the case may be transferred for trial".
1. 37th Report, para. 238.