Pre-Trial Proceedings

Code of Criminal Procedure (CrPC) is the procedural law for conducting a criminal trial in India. The basic importance of criminal procedure has to be borne in mind, as it is the procedure that spells much of the difference between rule of law and rule by whim and caprice.[1]

A Fair trial means that both the parties are given equal opportunity to represent themselves as we followed by Principles of Natural Justice i.e. ‘the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem)’.

Pre-Trial proceedings is a concept under the Criminal Procedure Code which deals with the procedure that takes place before starting of actual trial before Magistrate. Pre-trial proceedings are that proceedings held before a criminal trial.

Importance of Presence of Accused at Trial

The presence of the accused at trial is the fundamental principle of criminal procedure which ensures that the fundamental rights of the accused are not abridged. The accused’s presence not only helps in establishing factual circumstances but also ensures that the accused has an effective right to defense. The physical presence of the accused at the trial allows him to participate in a meaningful and informed manner, right to present his case, right to cross-examine the witnesses, and the right to be understood. Thus, for the conduct of a fair trial, all proceedings of a trial should take place in front of the accused or his counsel and ex parte decisions should not be made in criminal proceedings.

In the spirit of fair trial and ensuring the rights of the accused are not hampered, under Section 238 of the Criminal Procedure Code, the Magistrate must provide with all the necessary documents, including a copy of the charge sheet, statements of the witnesses and all other documents about the investigation to the accused. Section 273 of the Criminal Procedure Code provides that all evidence or other proceedings of the trial shall be taken in the presence of the accused or his pleader. In Mohd. Hussain Julfikar v. The State of Delhi[2] it was held that ‘the accused was allowed to cross-examine only one witness, whereas there were fifty-six witnesses in total. The court held that the accused’s conviction must be set aside as it is not a fair trial and a person accused of a serious charge should not be denied to attend the proceedings.’[3]

Steps to procure the presence of the accused

As the presence of accused and hearing of both parties, is the essence of a free trial, an entire chapter of the Code deals with the process of ensuring attendance of all the defendants by serving a summons, warrant or proclamation, and attachment of property. After taking cognizance of an offence, “the Magistrate has to decide whether a summons or a warrant should be issued for the attendance of the accused”.

Summons of arrest

Summons is an order given by the court asking a person to appear before the court in criminal matters.

Form of summons

Section 61 of the Code provides the form of summons. Every summon shall:

  1. Be in writing;
  2. A duplicate copy should be made
  3. It should be signed by the presiding officer of such court or any other officer as may be prescribed by the High Court
  4. Have the seal of the court.

Summons how served

Section 62 of the Code provides ‘the procedure of servicing the summons. 62 (1) of the Section says that every summons shall be served by a police officer or any officer of the court or other public servants, subject to the rules of the State Government in question’.62 (2) of the Section states that the copy of summons should be served personally to the person summoned if possible.62 (3) of the Section states that every person on whom a summons is served shall sign on the back of the duplicate copy if it is required by the serving officer.

Warrant of arrest

In cases where the summons are not complied with or if the offences are extremely serious, the court can issue a warrant. A warrant is an order given by the court to a third party, usually a police officer to procure a person before the Court. A warrant can be bailable as well as non-bailable.

Form and contents of a warrant of arrest

Section 70 of the Code provides the form of warrant of arrest and duration. Every warrant of arrest shall:

  1. Be in writing;
  2. Be signed by the presiding officer;
  3. Shall have the seal of the court.

The warrant shall remain in force until it is canceled by the Court that executed it.

Form 2 of Schedule 2 of the Code provides the format of issuing a warrant, it should contain the name and designation of the person or persons who execute the warrant, name, and address of the accused, date of issuing the warrant, the signature of the Magistrate and the seal of the Court.

A warrant of arrest remains in force till it is executed, or cancelled by the court issuing it. Accordingly, it has been held that it would not be invalid simply on expiry of the date fixed by the court for the return of warrant[4]

Modes of execution of a warrant of arrest

A warrant of arrest is usually executed by a police officer. However, if immediate action is required and there are no police officers available at that point, the Court may direct any other person to execute the warrant.[5]

The Supreme Court has held an opportunity to deal with a case in which an advocate came to be arrested through the warrant against him was cancelled but he failed to produce documentary evidence of the cancellation of the warrant to the arresting authority.[6]

The procedure of arrest of a person with a warrant

The procedure for arrest of a person with a warrant is dealt with in Section 80 of the Code. When a warrant is issued outside the local jurisdiction of the court, the person shall be taken before the Magistrate or District Superintendent or Commissioner of original jurisdiction. However, if the place of arrest is within 30 km of the court which issued the warrant, then the person arrested would be taken to the court issuing the warrant itself. For example, the Metropolitan Magistrate of Delhi issues an arrest warrant of a person in Meerut. However, the accused resides at the border of Delhi- Meerut and his residence is within 30 km from the Metropolitan Magistrate, then, in this case, the accused will be taken before the Metropolitan Magistrate of Delhi and not the Magistrate of Meerut.

The procedure by Magistrate after the arrest

The person arrested has the right to appear before a Magistrate within 24 hours of arrest. If the offence is bailable and the person arrested is willing to give bail as required by the Magistrate, District Superintendent or Commissioner or if there has been a direction to endorse security on the warrant and the person arrested is willing to give such security, District Superintendent or Commissioner shall take such security or bail and forward a bond to the Court.[7]

If the offence is non-bailable, the Chief Judicial Magistrate or the Sessions Judge may grant bail to the person arrested based on the information and documents procured before the Court.

Proclamation and attachment of the property

Proclamation means giving a final chance to the person to appear before the Court himself and is made when a person avoids warrants or absconds. A person is served with a proclamation notice at his residence or last known address giving him 30 days to appear before the Court and if he fails to do so, he has declared a proclaimed offender. Such a person may be arrested by any police officer in the country and his property may also be attached and sold.

Proclamation for person absconding

When a person absconds or is intentionally hiding so that a warrant cannot be executed, the Court may issue a written proclamation against such person, requiring them to appear at a specified time and place within 30 days of issue of such proclamation.[8]

The procedure of publishing the proclamation:

  1. It must be publicly read in a place visible in the town or village where the person ordinarily resides;
  2. It shall be attached to some part of the house in which the person ordinarily resides;
  3. A copy of the proclamation is attached in the courthouse;
  4. The proclamation may also be published in a daily newspaper if the Court thinks the same is necessary.[9]

A statement in writing given by the Court is considered as admissible evidence that the proclamation was made. The statement contains that the requirement of this Section have been complied with and the date on which the proclamation was made.

Attachment of property of person absconding

If the Court believes that the person against whom proclamation is issued, is going to dispose of his property or is going to remove the property from the local jurisdiction of the Court, the Court may order attachment of such property along with the issue of the proclamation.[10]

If the property ordered to be attached is a movable property, the attachment under this section shall be made:

  1. by seizure;
  2. by appointing a receiver;
  3. by an order in writing prohibiting the delivery of such property to the proclaimed person; 
  4. by any or all of the above orders.

If the property in question is immovable and where the land paying revenue is made to the State Government, the property is attached through the collector of the district and in all other cases, the attachment shall be made:

  1. By taking possession;
  2. By appointing a receiver;
  3. By prohibiting payment of rent to the proclaimed person;
  4. By any or all of the above orders.

If the property attached is perishable in nature of includes live-stock, the Court can order immediate sale.

Any person whose claim or objection is disallowed can appeal within one year from the date of such order.

If the proclaimed person appears before the Court before the expiration of 30 days, the property attached is to be released.[11]The Allahabad High Court ruled that unless 30 days have elapsed after the proclamation was issued under section 82 no attachment could be ordered under Section 83.[12]

If within two years, the person who was proclaimed voluntarily comes before the court and proves that he did not abscond, rather he did not have any notice of proclamation made, the attached property is to be released and if it has already been sold, then the sale proceeds be delivered to him.

Conclusion

We can conclude by this that the Criminal Procedure Code gives due importance to ‘the presence of accused at trial’ and thus an entire chapter of the Code deals with ‘attendance of the accused’.‘ In cases where the summons are not complied with or serious offences, the court issues a warrant in the prescribed form. Just like summons, the warrant is also made in writing, sealed and signed by the Court’. If the accused tries to absconds and avoids warrants, ‘the Court can issue a proclamation, giving a person a final chance to appear before the Court. If the Court seems necessary it can also attach the property of the person proclaimed’. Further, the main trial before the magistrate begins is to find out whether the accused is guilty or not.


[1] 37th Report, p.i.

[2] Delhi12 SC 750: (2013) 2 SCR 1003 

[3] Criminal procedure code by R.V. Kelkar

[4] Emperor v. Binda Ahir(1928) 29 Cri LJ 1007, 1008 (Pat)

[5] Section 72 of CrPC

[6] Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791: AIR 2011 SC 3393

[7] Section 81 of CrPC

[8] Section 82 of CrPC

[9] Section 82(2) of Crpc

[10] Section 83 of CrPC

[11] Section 85 of CrPC

[12] Devendra Singh Negi v. State of U.P., 1994 Cri LJ 1783 (All).

Komal Vaid from Delhi Metropolitan Education affiliated to GGSIPU

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