Sameeksha Dubey
Many times, a summon and a warrant is misunderstood to be the same. The article defines and explains the meaning and motive of issuing a summon and a warrant. It further speaks about the major differences between the two as well.
What is Summon?
Summon is defined in Section 2(w) of the Code of Criminal Procedure, 1973. It is a legal notice which is issued both in case of a criminal and civil proceeding under which a court orders an individual to appear or to produce a document before the court according to the place and time mentioned i.e., it means a legal order issued to defendant or witness by a judicial officer.
How it is issued and served?
It is issued under Section 204(1) (a) of the Criminal Procedure Code by a Magistrate taking cognizance of an offence. A duplicate copy is created in a writing format which is signed by the presiding officer of the concerned court or by the officer authorized by the High Court in these aspects. It is issued to the accused or anyone related to the case so that he appears before the court and cooperate in a fair and impartial trial.
It is served against the defendant after the initiation of a case by the plaintiff.
It is issued to the defendant to notify them that they are being sued. It is also issued to any other persons who are directly or indirectly involved in the case. Section 61 specifies that summons should be signed by the President of the Judge and should also bear the seal of the court. Summon without the mentioned elements are considered to be invalid and the person to whom it is issued may refuse to accept it.
The description of the court, the place, date, and time should be clearly mentioned in a Summon.
Summon is delivered to the defendant by the police officer or officer of the court or any other person who is a public servant whereas it is delivered to the witness by a registered post which makes the signing of acknowledgment letter necessary after receiving the summon.
Types of Summon
(I) Civil Summon: A judicial summon given to a private person or entity to another private person or entity to appear in the court and respond to a petition filed in a court. It is issued in the following matters such as breach of contract, injunction, etc.
(II) Criminal Summon: It is a judicial summon issued by a peace officer or police and otherwise by the prosecutor which notifies someone to appear in a criminal court. It includes cases such as trespassing, assault, murder, etc.
(III) Administrative Summon: – It is issued by an administrative body that is authorized in law to handle a specific type of investigation or legal matters. It can be issued by various courts such as Tax courts, Immigration courts, Labour courts, and Professional courts.
There are various terms used to refer to summon but all those are included in the above-mentioned categories.
Other aspects of Summon
A magistrate can convert a summon case into a warrant case. The complainant may withdraw the complaint with the permission of the Magistrate. Summon bounds the person to appear before the court on the described time and date. The aim of the summon is to notify the person of his legal obligation to appear in court. It is a type of notice issued by the court to a person that includes some details such as the name of the complainant and the accused.
Trial of Summons case
Section 252-259 of the Criminal Procedure Code deals with the procedure for trial of summons case. It is less serious than a warrant case with a maximum punishment of 2 years term. The trial procedure of the summons case is not in a detailed format, unlike the warrant case.
Section 91: It deals with summoning to produce a document or other thing.
Section 251 explains the substance of the allegation of the accused. The conviction on a plea of guilty is prescribed in Section 252. The procedure which is to be followed in the absence of the accused is mentioned in Section 253. The following section deals with the procedure when the accused is not convicted on the plea.
Section 255 deals with the order of acquittal or conviction by Magistrate after following the evidence carefully. The following section explains the action on the death or non-appearance of the complainant. S. Rama Krishna v. Rami Reddy is a case about Section 256.
Section 257 explains the procedure of withdrawing a complaint before the final decision. The procedure for discharge of a summons case is prescribed in the subsequent section. Arvind Kejriwal and others v. Amit Sibal is one of the cases concerning the same. Section 259 prescribes the power of the court to convert a summons case into a warrant case.
What is a Warrant?
A warrant is defined in Section 2(x) of the CrPC which is explained as a legal document empowering police officer to arrest, search or seize the premises or take any action which concerned the administration of justice. This legal document is an authorization issued by a judge or magistrate. It gives authority to the police to act in an area that is not under their scope.
Legal provisions of Warrant
A warrant may be issued either by the Judge or Magistrate who passed the sentence or by his successor in the office. It is directed to a sheriff, a constable, or a police officer. It is issued to validate the act which would otherwise be illegal as it may violate the fundamental rights guaranteed in Part III of the Indian Constitution.
It normally includes a search, arrest, and execution warrant. It is issued to create an apprehension in someone’s mind, search the premises, seize the property or carry out any such activity which is required for regulation of justice.
It is executed by the Magistrate only when the valid grounds are available. A warrant contains the name and description of the person against whom the warrant is issued. According to Section 70 of the Criminal Procedure Code, the warrant must have the seal of the court, and the presiding officer of the court must sign it. A court can state in the warrant regarding the payment of a certain amount of security by a person as an assurance of producing himself before the court so that his arrest may be avoided. The immediate execution can be done by a person who is not a police officer as it may be required.
The execution of a warrant by a Magistrate can be on any person entering his territory and the mentioned person can be anybody within his local jurisdiction. It was held in State v. Dawood Ibrahim Kaskar that a warrant can be issued even in the course of the investigation and before taking cognizance of the case.
Types of Warrant
There is no description of the types of warrants in the Criminal Procedure Code. There are two types of warrant in day to day business that is, bailable and non-bailable. The bailable warrant has been discussed in Section 71 of the Code which explains the warrant of arrest of any person. Whenever the security is taken under this section, the bond must be forwarded to the court by the officer to whom the warrant is issued.
Section 73 of the Code deals with the non-bailable warrant which is a warrant against persons. This warrant is direct by the Chief Judicial Magistrate or a Magistrate of the First Class. It was held in Inder Mohan Gowswamy and Anr. v. State of Uttaranchal and others that a non-bailable warrant should not be issued if the presence of accused could be secured.
The various types of warrant are as follows:
(I) Arrest warrant: It is issued by a Judge or Magistrate which is supported by a signed affidavit that shows probable cause that a specific crime has been committed and the person mentioned has committed it. This authorizes the arrest and detention of an individual. A warrant is not required if police have the necessary probable cause to arrest someone. It is mentioned in Section 70 of the Code.
(II) Search warrant: – Section 93 deals with the search warrant. It is issued by a Judge to search a specific premise for the evidence of a specific crime if he finds a probable cause to believe that such evidence exists based on the information provided by the police.
(III) Execution warrant: – It is issued by a Judge to authorize the death of someone which is dealt with under Section 77 of the Code.
(IV) Possessory warrant: – It is a civil writ issued by a judge ordering property delivered to a named person.
Procedure of trial in a Warrant case
Section 238-250 deals with the trial of a warrant case by magistrates. The procedure of a trail is divided into two types:
Section 173 of the Criminal Procedure Code deals with the trial by a police report and the procedure explaining the method of its working.
It is any other method than a police report in which the complaint is filed directly with the Magistrate.
The trial by Magistrate in warrant cases is done in accordance with the following procedures as mentioned in Section 238-247.
Section 238 states that the police report should be in compliance with Section 207. The process of discharge of accused on a baseless charge is prescribed in Section 239. The following explains how the charges are framed against an accused. The process of conviction on a guilty plea is explained in Section 241. Section 242 explains the procedure of evidence for the prosecution whereas the procedure for evidence for the defence is dealt with under Section 243.
Sections 244, 245, 246, and 247 deals with the procedure of a warrant case which is framed otherwise than on a police report. Section 244 deals with the procedure of how the evidence for the prosecution in warrant cases generated otherwise than a police report.
Evidence must be considered under section 138 of the Indian Evidence Act. The following section deals with the process of discharging the accused. Section 246 deals with the framing of charges, its explanation made to the accused, conviction on a guilty plea, choice of the accused to recall prosecution witnesses.
The process of evidence for the defence is explained under Section 247 as he has the right of doing so. The judgment and the connected matters are dealt with under Section 248 of the Code of Criminal Procedure. Section 250 explains the procedure for the cases where the accused is not found guilty.
The person must be immediately discharged and the Magistrate may order to pay a particular amount of compensation which should not be more than the amount of fine. The compensation will only be paid to the accused and not to any of his relatives.
How Summon and Warrant differ from each other?
Meaning
Summon states a legal document or order which is issued by a judicial officer to the defendant or witness in respect of a legal proceeding whereas, a warrant is a legal document that authorizes the police officer to perform an act that would otherwise be illegal.
Provision of definition
Summon is defined in Section 2(w) of the Code whereas the warrant is described in Section 2(x) of the code.
What does it contain?
Summon contains an instruction to appear or produce a document before the court whereas the warrant is a document that provides authority to the police.
Summon is addressed to a defendant or witness whereas the warrant is addressed to the police officer.
Based on its objectives
A summons is issued to a person to notify about the legal obligation to appear in court. On the other hand, a warrant is issued to bring accused to the court who have ignored the Summon and not appeared in court.
Based on the procedure followed
The Code of Criminal Procedure prescribes only one procedure for the trial of a summons case whether generated on a police report or a complaint. The procedure is prescribed under Section 252-259 of the Code.
On the other hand, two procedures are mentioned for the trial of a warrant case by magistrates. One of the procedures is for the case instituted on a police report while the other deals with the case instituted other than on a police report.
Based on the difficulty level of trial
The trial of summons cases is far easier and simpler than whereas that of warrant cases are complicated and slower. Warrant cases deal with the offences which are more serious than those in summons cases and therefore, it cannot be dealt in the manner as the summons case are solved.
Based on the opportunity available to the accused
The accused in the summons case gets only one opportunity to cross-examine the prosecution witnesses and that is the final chance available to him. On the other hand, the accused in the warrant case gets more than one opportunity to cross-examine the prosecution witnesses.
Based on the conversion of a case
A magistrate is given the power to convert a summons case into a warrant case under the Code but a warrant case cannot be converted into a summons case.
Presence of provision for pleading guilty
An accused in a summons case may plead guilty by post without appearing before the Magistrate. It is done only when the Summon to the accused has been issued. There are no such provisions available for the trial in a warrant case.
The charge in a warrant case cannot be split into its constituents so that a trial can be initiated under a summons case.
Opportunities for defence
Warrant case gives greater opportunities for defence whereas the same is not possible under the summons case.
Framing of charge
The framing of a formal charge is not necessary in a summons case whereas the same is necessary in the warrant case.
Procedural difference
The procedure of summons cases is prescribed in Section 252-259 whereas that of a warrant case is mentioned in Section 238-247.