Once a court takes cognizance of an offence, it must secure the appearance of the accused for trial. The BNSS provides two processes: summons (milder) and warrant of arrest (stronger). The choice between them depends on the nature of the offence and the court's assessment of whether the accused will voluntarily appear.
Legal Framework
| Provision | Subject |
|---|---|
| S.64 BNSS (formerly S.61 CrPC) | Summons: form and service |
| S.65 BNSS | Service of summons on corporate bodies and societies |
| S.66 BNSS | Service when person summoned cannot be found |
| S.67 BNSS | Substituted service |
| S.68 BNSS (formerly S.74 CrPC) | Service on corporate bodies and societies |
| S.69 BNSS (formerly S.78 CrPC) | Service outside jurisdiction |
| S.70 BNSS (formerly S.80 CrPC) | Proof of service |
| S.70 BNSS (formerly S.80 CrPC) | Proof of service |
| S.72-83 | Warrant of arrest: form, execution, bail |
Why: The court cannot try a person who is not before it. The process to compel appearance ensures the accused's presence while respecting proportionality. Summons is the default for less serious offences; warrant is reserved for serious offences or when summons is unlikely to secure attendance.
Example Escalating ladder of compulsion:
- A shopkeeper accused of selling adulterated food (fine only) → court issues summons by registered post: "Appear on 5 August."
- Same shopkeeper ignores the summons twice → court now issues bailable warrant: police bring him, but he's released on bond at the station.
- A murder accused who has no fixed address and has fled once before → court issues non-bailable warrant: police arrest and produce him in custody; bail is for the court to decide, not the police.
The system escalates proportionally: from a polite letter to physical custody, each step triggered by the previous one's failure or the gravity of the offence.
Summons (S.64-71)
Form of Summons (S.64):
| Element | Requirement |
|---|---|
| Written | In writing and signed by presiding officer |
| Duplicate | Two copies: one for service, one for return |
| Substance | Specifies offence, date, time, place of appearance |
| Warning | States that failure to appear will result in warrant |
| Electronic service | S.65: permitted through electronic means |
Modes of Service:
| Mode | Section | Detail |
|---|---|---|
| Personal | S.64 | Delivered to person summoned |
| Through adult member of household | S.64(2) | If person not found |
| Electronic | S.65 | Email, SMS, or other electronic means |
| Substituted | S.67 | Affixture at residence; publication |
| On corporation | S.68 | Served on secretary, director, or principal officer |
| Outside jurisdiction | S.69 | Forwarded to Magistrate within whose jurisdiction person resides |
Effect of Non-Compliance:
If person summoned fails to appear without lawful excuse:
- Court may issue bailable warrant
- If still fails to appear, court may issue non-bailable warrant
- May proceed ex parte in summons cases
Warrant of Arrest (S.72-83)
When Issued Instead of Summons:
| Situation | Justification |
|---|---|
| Offence punishable with death/life/7+ years | Gravity demands immediate presence |
| Summons previously disobeyed | Compliance not expected voluntarily |
| Person likely to abscond | Flight risk |
| Summons cannot be served | Personal service impossible |
| Court considers necessary | Judicial discretion |
Types:
| Type | Feature |
|---|---|
| Bailable warrant | Endorsed: person released on bail upon arrest |
| Non-bailable warrant | Person must be produced before court |
Electronic Service (New under BNSS)
S.65 permits service of summons through electronic means including:
- Email to registered address
- SMS to registered mobile number
- Any other electronic mode prescribed
Why: Physical service consumes time and often fails. Electronic service is faster, creates a digital trail, and reaches the person regardless of physical location.
Recall Check
- What are the two processes to compel appearance of an accused?
- When can a court issue a warrant instead of summons?
- What new mode of service does BNSS introduce?
Key Cases
Bhaskar Industries v. Bhiwani Denim (2001) Bhaskar-Industries-v-Bhiwani-Denim-2001 Issue: Whether service of summons on an agent or employee of a corporation constitutes valid service. Rule: S.63 CrPC (now S.68 BNSS): service on corporation by serving the secretary, local manager, or principal officer. Held: Service on any person authorized to accept service or on the principal officer of the local office constitutes valid service. If the corporation has multiple offices, service at the registered office or the office within whose jurisdiction the court lies is sufficient.
Distinctions
| Parameter | Summons | Warrant |
|---|---|---|
| Nature | Notice to appear | Command to arrest |
| Severity | Milder process | Stronger process |
| Default for | Summons cases (up to 2 years) | Warrant cases (above 2 years) |
| Force | No physical compulsion | Police may use force |
| Issue | For first instance appearance | When summons fails or serious offence |
| Bail | N/A (person is free) | Can be bailable or non-bailable |
| Electronic service | Permitted (S.65) | Permitted (S.64 for notification) |
Flashcards
Q: What are the two processes to compel appearance under BNSS? A: Summons (S.64-71) and warrant of arrest (S.72-83).
Q: When can summons be served electronically? A: S.65: through email, SMS, or other prescribed electronic means.
Q: What happens if a person disobeys summons? A: Court may issue bailable warrant; if still non-compliant, non-bailable warrant.
Q: How is summons served on a corporation? A: S.68: on the secretary, local manager, director, or other principal officer.
Q: In what situations is warrant issued instead of summons? A: Serious offences (death/life/7+ years), prior non-compliance, flight risk, or impossibility of personal service.
Q: What must a summons contain? A: Offence specified, date/time/place of appearance, warning of consequences of non-appearance; in writing, signed by presiding officer.
Exam Scenario
A Magistrate issues summons to accused Y in a cheque bounce case (S.138 NI Act). The summons is sent by registered post to Y's last known address. Y does not appear on the date fixed. The Magistrate immediately issues a non-bailable warrant. Y challenges. Advise.
The Magistrate must follow the graduated process. S.138 NI Act is a summons case (punishable up to 2 years). When a person summoned fails to appear: (1) the court must first be satisfied that service was effective (proof of service under S.70), (2) if service is proved and no lawful excuse exists, the court should issue a bailable warrant first (not directly a non-bailable warrant), (3) only if the bailable warrant fails to secure attendance may the court escalate to a non-bailable warrant. Issuing a non-bailable warrant directly upon first non-appearance in a summons case is disproportionate and contrary to the graduated scheme. Y's challenge should succeed; the court should issue a bailable warrant first and consider whether substituted service or electronic service (S.65/S.67) would be more effective.