Process to Compel Appearance of Person under BNSS

In the BNSS in India, there are legal provisions that empower the court to compel the appearance of a
person who is required to attend court proceedings but refuses to do so. The process to compel the
appearance of such individuals typically involves the issuance of a summons or a warrant. Here’s an
overview of the process to compel the appearance of a person under the BNSS:

Summons (Section 63 BNSS):

 When a person is required to appear before a court as a witness, accused, or in any other
capacity, the court may issue a summons. A summons is a formal order from the court requiring
the person to appear at a specified date and time.

 The person summoned is generally expected to appear voluntarily as per the summons, and this
is the least coercive measure.

Warrant of Arrest (Section 72 BNSS):

 If the person who has been summoned does not appear in response to the summons, or if the
court has reasons to believe that the person will not appear voluntarily, the court may issue a
warrant of arrest.

 A warrant of arrest is a more coercive measure and authorizes the police to arrest the person
and produce them before the court.

Execution of the Warrant (Section 77):

 Once a warrant is issued, it is sent to the police for execution. The police have the authority to
arrest the person named in the warrant and produce them before the court.

 The police must execute the warrant promptly, and the person arrested must be informed of the
reasons for their arrest and the contents of the warrant.

Bailable and Non-Bailable Warrants:

 Warrants issued under the CrPC can be bailable or non-bailable. If a warrant is bailable, the
person arrested can be released on bail, subject to the discretion of the court.

 Non-bailable warrants require the person to be arrested and produced before the court, but bail
may not be granted as a matter of right.

Attachment of Property (Section 85):

 If a person is evading arrest, and their location is unknown, the court may order the attachment
of their property to compel their appearance.

 The attachment of property is a measure to ensure that the person appears before the court to
avoid the loss of their property.

How Summons & Warrant served?

In the Indian legal system, there are various modes of issuing summons and warrants under the Code of
Criminal Procedure (CrPC) to compel the appearance of individuals in court. These modes are used
based on the circumstances of the case and the nature of the proceedings. Here are the common modes
of summons and warrants:

Modes of Summons

1. Ordinary Summons (Section 63 BNSS): An ordinary summons is a simple written order from the
court requiring the person to attend court proceedings. It is generally used for ordinary
witnesses and accused persons. The person summoned is expected to appear in court
voluntarily.

2. Bailable Summons (Section 229 BNSS): In cases where the court believes that a witness may not
appear voluntarily, it can issue a bailable summons, which is accompanied by a direction to
furnish bail security. The person summoned is required to execute a bond with or without
sureties, ensuring their appearance in court.

3. Summon to an Accused (Section 227 BNSS): When a person is accused of an offense and is not
already in custody, the court may issue a summon instead of a warrant if it believes that the
accused is not likely to abscond. This is a non-coercive method used to inform the accused about
the charges and the need to appear in court.

Modes of Warrants

1. Bailable Warrant (Section 72): A bailable warrant is issued when the court directs the person
named in the warrant to furnish bail security before being released. The person arrested under a
bailable warrant can secure their release by executing a bond with or without sureties.

2. Non-Bailable Warrant (Section 72): A non-bailable warrant is issued when the person named in
the warrant is to be arrested and produced before the court. In the case of non-bailable
warrants, bail may not be granted as a matter of right, and the accused person may have to
apply for bail separately.

3. Proclamation and Attachment (Sections 84 and 85): If a person is evading arrest, the court may
issue a proclamation requiring the individual to appear within a specified period. If the person
does not appear, the court can order the attachment of the person’s property, including movable
and immovable assets.

4. Open Warrant (Section 77): An open warrant is issued when the person to be arrested is not
identified, or their location is unknown. The police are directed to execute the warrant against
any person fitting the description and produce them before the court.

Guideliness for Issuing Warrant of Arrest

Issuing a warrant of arrest is a serious step in the legal process, and it should be done in accordance
with established guidelines and legal provisions to ensure that the rights of individuals are protected.
In India, as per the BNSS, there are specific guidelines for issuing warrants of arrest. Here are the key
guidelines for issuing a warrant of arrest:
 1. Reasonable Grounds: The court must have reasonable grounds to believe that the person
against whom the warrant is issued has committed an offense. The issuance of a warrant is not
arbitrary and should be based on credible information or evidence.

2. Nature of the Offense: The seriousness of the offense is a factor in determining whether to issue
a warrant. For non-bailable offenses (offenses for which bail may not be granted as a matter of
right), courts are more likely to issue warrants.

3. Non-Appearance: The court may issue a warrant if the accused or witness fails to appear in
court as required, despite proper summons, or if there is a concern that they may evade
appearance.

4. Bailable or Non-Bailable Warrant: The court must decide whether a bailable or non-bailable
warrant is appropriate. In some cases, the accused person may be arrested and released on bail,
while in others, they may be arrested and held in custody.

5. Safeguards for Accused: The issuance of a warrant should be in accordance with the principles
of natural justice. The accused should have an opportunity to be heard, and the court should be
satisfied that the warrant is necessary in the interest of justice.

6. Recording Reasons: The court should record the reasons for issuing the warrant in writing. These
reasons should be specific and not based on conjecture or speculation.

7. Magisterial Discretion: The magistrate has the discretion to issue a warrant based on the specific
facts and circumstances of the case. This discretion should be exercised judiciously.

8. Rights of the Accused: The rights of the accused, such as the right to legal counsel and the right
to a fair trial, should be upheld throughout the process. The accused person should also be
informed of the charges and the reasons for their arrest.

9. Immediate Execution: If a warrant is issued, it should be executed promptly by the police. The
person arrested under the warrant must be informed of the grounds of arrest and their rights.

10. Judicial Oversight: In case of any irregularity or abuse of the process, individuals have the right
to seek legal remedies, including challenging the issuance of the warrant before higher courts.

Suresh Chand Jain v. State of Madhya Pradesh (2001) 8 SCC 661:

This case highlighted the importance of recording reasons for the issuance of arrest warrants and
ensuring that they are not issued in a routine or mechanical manner.

S. R. Sukumar v. S. Sunaad Raghuram (2015) 9 SCC 609:

This case dealt with the issuance of non-bailable warrants and discussed the principles that should be
considered when deciding whether to issue non-bailable warrants

To whom Warrant of Arrest directed Section 74

Section 74 BNSS in India deals with the direction of a warrant of arrest. According to Section 74, a
warrant of arrest can be directed to one or more police officers or other persons, and it authorizes them
to execute the warrant. The section specifies the following:
 1. Police Officers: In most cases, warrants of arrest are directed to police officers. The police officer
who receives the warrant is responsible for executing it by arresting the person named in the
warrant and producing them before the court.

2. Other Persons: In certain situations, a warrant may be directed to other persons who are not
police officers, such as private individuals or court officials. This typically occurs when a private
person is authorized by law to make an arrest. For example, a court may direct a warrant to a
bailiff or a specific individual responsible for executing the warrant.

Proclamation of the Person Absconding (Section 84)

Section 84 of the BNSS in India deals with the proclamation for a person absconding. This provision is
used when an individual against whom a warrant of arrest has been issued by a court is deliberately
evading arrest or has gone into hiding. The purpose of issuing a proclamation is to give the person an
opportunity to surrender and face the legal proceedings. Here are the key aspects of Section 84 of the
BNSS:

1. Initial Warrant: Before a proclamation can be issued, a court must have already issued a warrant
for the arrest of the person. The warrant can be either bailable or non-bailable, depending on
the nature of the offense.

2. Absconding Person: Section 84 comes into play when the person against whom the warrant has
been issued is “absconding,” which means that they are intentionally evading arrest or are not
easily traceable.

3. Proclamation: The court, if satisfied that the person is absconding, may issue a proclamation
requiring the person to appear at a specific place and at a specific time. The proclamation is
published publicly, typically by affixing it at the relevant court and other public places, as well as
by other appropriate means.

4. Notice to Appear: The proclamation should also include a notice requiring the person to appear
within 30 days from the date of proclamation. If the person surrenders within this period, the
court may cancel the warrant and proceed with the legal process.

5. Attachment of Property: If the person does not appear within the specified period, the court
may proceed to attach their property. The property, both movable and immovable, can be
attached to compel the person’s appearance.

6. Continued Proceedings: Proclamation is not a substitute for the legal process. The court
proceedings will continue, and if the person eventually appears, they will have to face the
charges against them. Surrendering within the stipulated time period may also affect the
consideration of bail.

Proclaimed Offender Section 84(4) BNSS

A proclaimed offender, also known as a “PO,” is an individual who has been declared as an offender by a
court of law in India. The declaration of an individual as a proclaimed offender is made under specific
provisions of the BNSS when the person against whom a warrant of arrest has been issued deliberately
evades arrest or is in hiding. The declaration is a legal process that allows the court to proceed with the
legal case in the absence of the accused. Here are the key aspects of a proclaimed offender:

Declaration of Proclaimed Offender:

1. Issuance of Warrant: Before an individual can be declared a proclaimed offender, the court must
issue a warrant of arrest against that person. The warrant can be either bailable or non-bailable,
depending on the nature of the offense.

2. Absconding Person: A person can be declared a proclaimed offender if they are deliberately
evading arrest, have gone into hiding, or are not easily traceable.

3. Proclamation: If the court is satisfied that the person is absconding, it may issue a proclamation
under Section 84 of the BNSS. The proclamation is published publicly, typically by affixing it at
the relevant court and other public places, as well as by other appropriate means.

4. Notice to Appear: The proclamation includes a notice requiring the person to appear within 30
days from the date of proclamation. If the person does not appear within this period, they may
be declared a proclaimed offender.

Consequences of Being Declared a Proclaimed Offender:

1. Legal Status: Once declared a proclaimed offender, the person is considered an offender in the
eyes of the law. This means they are subject to legal consequences even if they are not physically
present in court.

2. Attachment of Property: The court may proceed to attach the movable and immovable property
of the proclaimed offender as a means to compel their appearance.

3. Continuation of Legal Proceedings: The legal proceedings against the proclaimed offender
continue in their absence. If the person eventually appears, they will have to face the charges
against them.

4. Aiding and Abetting: Anyone who aids or abets the proclaimed offender in evading arrest may
also face legal consequences.

5. Surrender or Arrest: The proclaimed offender has the option to surrender before the court at
any time. Upon surrender, the court may take appropriate action based on the circumstances,
which may include revoking the proclamation and proceeding with the case.

Attachment of Property of the Absconder section 85 BNSS

Section 85 in India deals with the attachment of property of a person who is declared as a proclaimed
offender or absconder. When a person against whom a warrant of arrest has been issued evades arrest
and is declared a proclaimed offender, Section 85 of the BNSS allows for the attachment of the person’s
property to compel their appearance before the court. Here are the key aspects of Section 85:

1. Declaration as Proclaimed Offender: Before property attachment under Section 85 can occur,
the person must first be declared as a proclaimed offender. This declaration is typically made
when the person against whom the warrant has been issued deliberately evades arrest and does
not appear before the court despite a proclamation issued under Section 84.
2. Authority to Attach Property: Section 83 empowers the court to order the attachment of the
property, both movable and immovable, of the proclaimed offender. This includes any property
owned or controlled by the person.

3. Purpose of Attachment: The primary purpose of attaching the property is to compel the person
to surrender and appear before the court. The attachment serves as a means to pressure the
proclaimed offender to face the legal proceedings.

4. Notice to Proclaimed Offender: Before attaching the property, the court must serve a notice to
the proclaimed offender, informing them of the court’s intention to attach their property. This
notice provides an opportunity for the person to appear and avoid the attachment of their
property.

5. Appearing to Claim Property: The proclaimed offender has the option to appear before the
court and claim their property. If they do so, the court may consider their request and may
release the attached property.

6. Continuation of Legal Proceedings: Attachment of property does not absolve the proclaimed
offender of the legal charges against them. The legal proceedings against the person continue,
and they are expected to face the charges in court.

7. Protection of Rights: While attaching the property, the court is expected to adhere to legal
procedures and safeguard the rights of the proclaimed offender. The person retains the right to
legal representation and a fair trial.