Dokument #2033242
IRB – Immigration and Refugee Board of Canada (Autor)
Research Directorate, Immigration and Refugee Board of Canada
In correspondence with the Research Directorate, an associate professor of criminal justice at Indiana University, who has researched Indian police and criminal justice policy issues, explained that summonses are issued by the designated court, and the issuance procedures are governed by the Code of Criminal Procedure, which is applicable to all areas of the country and "followed by every judicial court and police department" (Associate Professor 13 May 2020). The same source further states that the information contained in summonses include the name and specific particulars of the person (such as address) and the day and time to appear before a specific court and the reason for serving the summons (such as being related to an ongoing criminal case) (Associate Professor 13 May 2020). Summonses are "[m]ostly" issued by mail, but in some cases the police will serve the summons on behalf of the court (Associate Professor 13 May 2020).
The Code of Criminal Procedure provides the following:
62. Summons how served.—
63. Service of summons on corporate bodies and societies.—Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
Explanation.—In this section, “corporation” means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860 (21 of 1860).
64. Service when persons 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 duplicates 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 a 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.
65. Procedure when service cannot be effected as before provided.—If service cannot by the exercise of due diligence be effected as provided in section 62, section 63 or section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon 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.
66. Service on Government servant.—
67. Service of summons outside local limits.—When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.
68. Proof of service in such cases and when serving officer not present.—
69. Service of summons on witness by post.—
Article 9(3) of Order V of the Code of Civil Procedure provides the following:
3. The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:
Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff. (India 1908)
Indian news source Firstpost reports that the Bombay High Court has decided that summons can be served using "'modern ways of service which are available due to internet connection'," and that delivery methods can include the following: "'by courier or by email or by WhatsApp[,] etc.'" (Firstpost 17 Aug. 2018). The source adds that "[c]ourts across various jurisdictions have included the 'electronic means' in their respective rules in order to speed up the summons process," noting that the Delhi High Court and the Rohini Civil Court in Delhi have accepted "tick" marks that appear in WhatsApp as proof that the summons has been delivered (Firstpost 17 Aug. 2018). Similarly, according to S.S. Rana & Co. Advocates, a law firm in India that specializes in intellectual property law and corporate law (S.S. Rana & Co. n.d.), several courts, including the Delhi High Court, the Financial Commissioner Court in Haryana, the Bombay High Court, Rohini Civil Court in Delhi, and Delhi Metropolitan Court have included WhatsApp as an acceptable electronic means of serving a summons, and that a "[d]ouble [t]ick" has been accepted as proof of receipt of the summons (S.S. Rana & Co. 1 June 2018).
Section 61 of the Code of Criminal Procedure provides the following: "Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court 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" (India 1973).
The Associate Professor noted that the process of issuing summons is "uniform" across the country (Associate Professor 13 May 2020). Further and corroborating information on the uniformity of summonses across India could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
Order V of the Code of Civil Procedure provides the following:
30. Substitution of letter for summons.—
Information on the security features of summonses could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
Templates of a Summons to an Accused Person, in English and in Hindi, as provided on the website of the District Court of India, are attached to this Response (Attachments 1 and 2).
Templates of a Special Summons to a Person Accused of a Petty Offence, in English and in Hindi, as provided on the website of the District Court of India, are attached to this Response (Attachments 3 and 4).
Section 2(a) of the Code of Criminal Procedure provides the following definition: "'bailable offence' means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and 'non-bailable offence' means any other offence"; the Code includes the First Schedule and the full list of such offences (India 1973).
The Associate Professor noted that the issuance process for an arrest warrant is governed by the Code of Criminal Procedure, and is uniform across India, explaining that warrants are executed by the police and are issued when a person does not obey a summons (Associate Professor 13 May 2020). In its handbook on practice and procedures, the Supreme Court of India states that "[i]n criminal proceedings, to compel appearance of an accused, the Court may direct issuance of warrant and other process in the manner provided by the Code" (India 2017, 174). The same source also explains that "'Code' means the Code of Civil Procedure, 1908 (5 of 1908) or the Code of Criminal Procedure, 1973 (2 of 1974), as the case may be" (India 2017, 2).
The Code of Criminal Procedure provides the following:
71. Power to direct security to be taken.—
72. Warrants to whom directed.—
…
74. Warrant directed to police officer.—A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.
75. Notification of substance of warrant.—The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.
76. Person arrested to be brought before Court without delay.—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.
77. Where warrant may be executed.—A warrant of arrest may be executed at any place in India.
78. Warrant forwarded for execution outside jurisdiction.—
79. Warrant directed to police officer for execution outside jurisdiction.—
80. Procedure on arrest of person against whom warrant issued.—When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within thirty kilometres of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 71, be taken before such Magistrate or District Superintendent or Commissioner.
81. Procedure by Magistrate before whom such person arrested is brought.—
Section 70 of the Code of Criminal Procedure provides the following: "(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. (2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed" (India 1973).
Information on the security features of bailable arrest warrants could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
Templates of arrest warrants, as provided on the websites of the District Court of India and the Aizawl District Court, are attached to this Response (Attachments 5-8).
A template of a bailable arrest warrant, as provided on the website of the District Court of India, is attached to this Response (Attachment 9).
An article by written by a partner at Vaish Associates Advocates, a full-service law firm in India with offices in New Delhi, Mumbai and Bengaluru (Vaish Associates Advocates n.d.), explains that “a non-bailable offence does not mean that bail cannot be granted. In case of non bailable offences[,] the bail can be granted by the courts and the courts have to use their discretion while granting bail in non-bailable offences” (Vaish Associates Advocates 20 May 2019).
According to a report summarizing various documents related to arrest warrants, available on the website of the Maharashtra Judicial Academy, which is affiliated with the Government of Maharashta's Department of Law and Justice (Maharashtra n.d.),
[i]n a reported judgment Inder Mohan Gowswamy and Anr. Vs. State of Uttaranchal and others reported in (2007)12 SCC 1, the Hon'ble Apex court [India's Supreme Court] held that [a] [n]onbailable warrant [is] normally not to be issued if [the] presence of [the] accused could be secured. It is further held that, issuance of [a] [n]onbailable warrant involves interference with personal liberty. Arrest and [i]mprisonment means deprivation of the most precious right of an individual. Therefore the courts have to be extremely careful before issuing nonbailable warrants. The Hon'ble Apex court further held that [a] nonbailable warrant should be issued to bring the person to court when [a] summons and bailable warrant would be unlikely to have the desired result. This could be reasonable to believe that the person willing to appear in court or the Police authorities are unable to find the person to serve him with summons or it is considered that the person could harm some one if not placed into custody immediately. The Hon'ble Apex court held that some times in the larger interest of the public and the State it becomes absolutely imperative to curtail the freedom of individual for a certain period[;] only then nonbailable warrants should be issued. (Maharashtra 15 Nov. 2014, para. 5)
An article published by Bar and Bench, a news source that covers the Indian legal system (Bar and Bench n.d.), citing a statement by the Jharkhand High Court, reports that the "'mere absence' of [the] accused in Court cannot lead to a [n]on-[b]ailable [w]arrant" (Bar and Bench 28 Apr. 2020). The same source adds that the Court emphasized that, according to the Code of Criminal Procedure, non-bailable arrest warrants "can be issued only after the conditions envisaged in the respective sections [of the Code] are 'strictly' followed" and observed that "a non-bailable warrant can only be issued if the accused is (i) [an] escaped convict, or (ii) a proclaimed offender, or (iii) a person [a]ccused of a non-bailable offence and who is evading arrest" (Bar and Bench 28 Apr. 2020).
As cited in the report on the website of the Maharashtra Judicial Academy, India's Supreme Court provided the following guidelines to the subordinate courts for the issuance of non-bailable warrants, in a 2012 decision:
d. The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein;
e. Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process;
f. No warrant of arrest shall be issued without being entered in the register mentioned above and the concerned court shall periodically check/monitor the same to confirm that every such process is always returned to the court with due report and placed on the record of the concerned case;
g. A register similar to the one in Clause (e) supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution;
h. Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants a prone to misuse if they remain in control of executing agencies for long;
i. On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned Police Station or the Officer Incharge of the concerned agency;
j. The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse;
k. In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and
l. In the event of cancellation of the arrest warrant by the Court, the order canceling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused. (Maharashtra 15 Nov. 2014, para. 9)
Section 73 of the Code of Criminal Procedure provides the following:
73. Warrant may be directed to any person.—
Citing the 2012 Supreme Court decision, the report available on the website of Maharashtra Judicial Academy provides the following description of non-bailable warrants:
(Maharashtra 15 Nov. 2014)
Information on the security features of non-bailable arrest warrants could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
A template of a non-bailable arrest warrant, as provided on the website of the District Court of India, is attached to this Response (Attachment 10).
The Code of Criminal Procedure provides the following:
82. Proclamation for person absconding.—
A template of a Proclamation Requiring the Appearance of a Person Accused, as provided on the website of the District Court of India, is attached to this Response (Attachment 11).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Associate Professor, Indiana University. 13 May 2020. Correspondence with the Research Directorate.
Bar and Bench. 28 April 2020. Rintu Mariam Biju. "'Mere Absence' in Court Does Not Imply Accused Is Evading Arrest, Cannot Be Sole Ground to Issue Non-Bailable Arrest Warrant: Jharkhand HC." (Factiva) [Accessed 21 May 2020]
Bar and Bench. N.d. Facebook. "About." [Accessed 9 June 2020]
Firstpost. 17 August 2018. Raghav Pandey and Neelabh Bist. "Bombay High Courts' Ruling to Serve Notice via WhatsApp and Emails a Welcome Step." [Accessed 5 June 2020]
India. 2017. Supreme Court of India. Handbook on Practice and Procedure and Office Procedure. [Accessed 3 June 2020]
India. 1973 (amended 2014). The Code of Criminal Procedure, 1973. [Accessed 5 May 2020]
India. 1908 (amended 2018). The Code of Civil Procedure, 1908. [Accessed 25 May 2020]
Maharashtra. 15 November 2014. Law and Judiciary Department, Maharashtra Judicial Academy. Summary of All Papers on Topic "B": "Warrants – Arrest, Remand and Committal". [Accessed 5 May 2020]
Maharashtra. N.d. Law and Judiciary Department, Maharashtra Judicial Academy. "Allied Offices." [Accessed 9 June 2020]
S.S. Rana & Co. 1 June 2018. "India: Changing Face of Serving Summons: From Post to WhatsApp." [Accessed 25 May 2020]
S.S. Rana & Co. N.d. "The Firm." [Accessed 5 June 2020]
Vaish Associates Advocates. 20 May 2019. Vijay Pal Dalmia. "India: Procedures and Steps Involved for Issuance of a Non-Bailable Warrants." Mondaq. [Accessed 1 June 2020]
Vaish Associates Advocates. N.d. "About Us." [Accessed 8 June 2020]
Oral sources: Centre for Public Affairs; Commonwealth Human Rights Initiative; law firms (2) in India; professor of political science who studies the police system in India.
Internet sites, including: Amnesty International; Commonwealth Human Rights Initiative; Human Rights Watch; The Hindu; India – High ourt of Bombay, High Court of Delhi, National Crime Records Bureau; National Law University, Jodhpur; The Times of India; UN – Refworld; US – Department of State.
Inde : information sur les assignations, les mandats d'arrêt et les documents policiers afférents, y compris leur apparence, leurs caractéristiques de sécurité, les procédures de délivrance et des spécimens (2017-juin 2020) [IND200261.EF] (Anfragebeantwortung, Französisch)