Effect of non appearance and its remedies in different proceedings civil,criminal,constitutional ,matrimonial

matters,contractual matters ,ipr,labour,arbitration,lok adalat.

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LIST OF ABBREVIATIONS

SCC: Supreme court cases HC: High court SC: Supreme Court i.e: That is pg: Page no Air-All India Report Sec: Section Para: Paragraph Ed: Edition Vol: Volume Art: Article

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Table of Cases

Cases

Abdu v Mahomed(1894)21 Cal 605.....................................................................................................18Abdul Habib v State ,1974 Cri LJ 248...................................................................................................37Adireppa v Pragji AIR 1924 Bom 366...................................................................................................24Arjun Singh v Mohindra Kumar AIR 1964 SC 993...................................................................................8Arunachalam v Veerappa(1932)55 Mad 17.........................................................................................22Babu Lal v Raghunandan (1930)52 All 839..........................................................................................22Baljit Singh v Munnu Lal 1958 (1)All 389.............................................................................................18Bapurao v Sadhu(1923)47 Bom 485....................................................................................................17Bhura Mal v Har Kishan Das (1902)24 All 383......................................................................................21Binoy Jacob v CBI,1993 Cri LJ 1293 (Del)..............................................................................................31Bishundayal v Emperor,AIR 1943 Pat 366............................................................................................38Chajju Ram v Neki(1922)49 IA 144......................................................................................................14Chandi Charan v Sarat Chandra AIR 1955 Assam 231..........................................................................24Currimbhoy v Moos(1929)31 Bom LR 468...........................................................................................19Damu v Vakrya (1920)44 Bom 767........................................................................................................5Debendra v Satyabala 54 CWN 110.....................................................................................................12Delhi Development Authority v Shanti Devi AIR 1982 Del 159..............................................................9Delhi Develpoment Authority v Shanti Devi AIR 1982 Del 159..............................................................8Devendra Singh Negi v State of U.P,1994 Cri LJ 1783..........................................................................39Dhapon v Vijay Singh (1980) Rev LR 52..................................................................................................8Dhirajlal v Hormusji 32 Bom 534...........................................................................................................7Dulhin Suga v Deorani Kuer AIR 1952 Pat 72.......................................................................................18Emperor v Binda Ahir,29 Cri LJ 1007,1008(Pat)...................................................................................32Girish Chandra v Kalachand 1958 (1)Cal 85........................................................................................18Gyanammal v Abdul Husain (1932)55 Mad 228..................................................................................19Haricharan v Manmatha (1914)41 Cal 1..............................................................................................22Hingu Singh v Jhuri Singh (1918)40 All 590............................................................................................5Hukam Chand v Mani AIR 1934 Lah 984................................................................................................5Jagdev Khan v Emperor,AIR 1948 Lah 151...........................................................................................38Jaharlal v Jyoti Prasad(1938) 42 Cal WN 806.........................................................................................5Jaswant Singh v Darshan Kaur AIR 1983 Pat 132...................................................................................8Jnanendra v Profullananda AIR 1928 Cal 812......................................................................................17K G Mani v Leutin AIR 1955 Mys 2.......................................................................................................10Kailas v Nabadwip(1898)2 CWN 318...................................................................................................15Kartarey v State of U.P.(1975) SCC (Cri) 803........................................................................................38Kesri Chand v National Jute Mills Co (1913)40 Cal 119........................................................................10Koti Reddi v Venkayya AIR 1951 Mad 813.............................................................................................8Kshirode v Nabin Chandra (1915)19 CWN 1231..................................................................................18Kudalayya v Sidilingappa 1958(1) And WR 166....................................................................................12Kulamoni Barik v Lokenath Mohapatra(1949) 1 Cut 446.....................................................................11Kumud Lata v Inder Prasad AIR 1997 SC 34.........................................................................................22

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Kumud Nath v Jotindra Nath 38 Cal 394..............................................................................................17Mangilal v Shivram AIR,1956 Bom 755................................................................................................16Marula Sidda Sivamulu v Emperor, 12 Cri LJ 430 (Mad)......................................................................32Mathura v Ram Charan 37 All 208.......................................................................................................17Md Hassan v Md Abbas AIR 1984 Cal 170...........................................................................................19Moopan v Karuppanna 6 Rang 446........................................................................................................6Narsingh Das v Rafikan (1910) 37 Cal 197............................................................................................18Navnitlal v Hasmukhlal AIR 1988 Guj 34..............................................................................................19Raj Narain v Ananga (1899)26 Cal 598.................................................................................................14Raj Narain v Lakshmi Narayan (1925)49 Bom 839...............................................................................14Ram Rakhan v Govind Das 1945 All 499..............................................................................................17Ram Ranbijaya v Sakalpat Tewary AIR 1942 Pat 56...............................................................................5Ram Reddy v Yenka Reddy 1956 Hyd 551..............................................................................................5Ramji Dass v Bhunpender Singh AIR 1962 Punj 443..............................................................................7Rampati Devi v Chandrika Devi AIR 1979 Pat 314,316.........................................................................22Ross & Co v Scriven 43 Cal 1001............................................................................................................6Sangram Singh v Election Tribunal 1955(2) SCR 1..................................................................................8Sangram Singh v Election Tribunal 1955(2)SCR 1..................................................................................6Shaligram v Pundalik 1955 Nag 569.....................................................................................................18Sheik Mohamad v Mt Ruknina Kunwar AIR 1946 All 506.....................................................................10Sohan Singh v Hans Raj AIR 1960 Punj 34..............................................................................................6Somayya v Subbamma(1903)26 Mad 599...........................................................................................18Subbaraya v Sundaresa AIR 1933 Mad 5.............................................................................................12Sumera v Madan Lal AIR 1989 MP 224................................................................................................23Sunanda v Gundopant 1961 Bom 296.................................................................................................16Suraj Prasad v Rambaran AIR 1956 Pat 127...........................................................................................5Suryaprakasa v Sreeramula(1930)59 Mad LJ 918................................................................................22Traders Bank Ltd v Avtar Singh AIR 1988 Del 55..................................................................................20Tulsi Devi v Sri Krishna 1950 All 6..........................................................................................................8Venugopalchariar v Chunilal 49 Mad 935............................................................................................12Visnu v Datta (1907)9 Bom LR 1099.....................................................................................................20Yallawwa v Shatavva AIR 1997 SC 35...................................................................................................23Zendoo Nal v Kishorilal ILR(1899)23 Bom 716.....................................................................................23

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TABLE OF CONTENT

TABLE OF CONTENTSCERTIFICATE i

ACKNOWLEDGEMENT ii

ABBREVIATIONS iii

LIST OF CASES iv

INTRODUCTION v

IN CIVIL PROCEEDINGS………………………………………………………………….2

(A)WHERE NEITHER PARTY APPEARS ,SUIT TO BE DISMISSED [SECTION 98 ]

(B) PROCEDURE WHERE THE DEFENDANT APPEARS ON DAY OF ADJOURNED HEARING AND ASSIGNS GOOD CAUSE FOR PREVIOUS NON-APPEARANCE [SECTION 101]

(C) PROCEDURE WHERE DEFENDANT ONLY APPEARS [SECTION 102]

(D)DECREE AGAINST PLAINTIFF BY DEFAULT BARS FRESH SUIT [SECTION 103]

(E) SETTING ASIDE DECREE EX PARTE AGAINST DEFENDANT [SECTION 108]

(F) NO DECREE TO BE SET ASIDE WITHOUT NOTICE TO OPPOSITE PARTY [SECTION 109]

IN CRIMINAL PROCEEDINGS………………………………………………………….23

(A) PROCURING THE APPEARANCE OF ACCUSED IN COURT

(B) IMPORTANCE OF PROCURING ACCUSED’S PRESENCE OF THE ACCUSED AT THE TRIAL

(C) HOW TO PROCURE THE PRESENCE OF THE ACCUSED AT THE TRIAL

(D)ISSUE OF PROCESS [SECTION 204]

(E) ISSUE OF WARRANT IN LIEU OF OR IN ADDITION TO SUMMONS [SECTION 87]

(F) SUMMONS HOW SERVED [SECTION 62]

(G)SERVICE OF SUMMONS ON CORPORATE BODIES AND SOCIETIES [SECTION 63]

(H)SERVICE WHEN PERSONS SUMMONED CANNOT BE FOUND [SECTION 64]

(I) CLAIMS AND OBJECTIONS TO ATTACHMENT [SECTION 84]

SAME PROCEEDINGS WILL BE HELD IN CONSTITUTIONAL, MATRIMONIAL MATTERS,CONTRACTUALMATTERS,IPR,LABOUR,ARBITRATION,LOK ADALAT…………………………………………………………………………………….39

CONCLUSION……………………………………………………………………………...40

BIBLIOGRAPHY…………………………………………………………………………41

INTRODUCTION

It is a well settled law that a criminal court has no power like the one which a civil court possesses under Order IX of the Code of Civil Procedure1908 (CPC) to restore a complaint dismissed in default, as the accused stands discharged or acquitted depending on the case being a warrant-case or a summons-case. In order to get the complaint restored, a complainant, poor or rich, has to knock the door of the High Court under section 482 of the Code of Criminal Procedure 1973 (CrPC). If a Magistrate has the power to entertain a complaint and decide it on merits after summoning the accused, he should also have power to restore it on good or sufficient cause being shown and re-summon the accused to face the trial on merits.

The relevant provisions of the CrPC are:(i) Section 249 relating to warrant-cases -“Absence of complainant.- When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.”(ii) Section 256 relating to summons-cases -“Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto, to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where non-appearance of the complainant is due to his death.

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In Civil Proceedings

Where neither party appears, suit to be dismissed [Section 98]

Where neither party appears when the suit is called on for hearing, the court may make an order that the suit be dismissed.

Where neither party appears- A sues B and C. A. and C do not appear when the suit is called on for hearing but B appears. The court makes an order dismissing the suit. As between A and B the order is one under r 8, so as to attract the applicability of r 9. But as between A and C, there order is one under the present rules so that r 4 applies, and not r 9.1

Unless a date has been fixed for the appearance of the defendant and neither party appears when the suit is called on for hearing on the day fixed, this rule will not apply.2 There can be no question of a suit being called on for hearing, unless there parties had been served, and where that had not been done, the suit cannot be dismissed under this rule for default of appearance of the plaintiff. 3This rule applies where there is default of appearance when the suit is called on for hearing and it is immaterial that there had been appearance, even earlier on that very date in an application in the suit. Mere physical presence is not appearance for the purpose of this rule.4 Where a judge is absent the clerk of the court has no power to fix the date and failure to appear on a date so fixed does not justify dismissal in default. 5

If the plaintiff appears on the date fixed for the hearing, but the defendant does not appear, and the suit is dismissed owing to failure on the part of the plaintiff to adduce evidence in support of his claim, the dismissal is on the merits and not under this rule. 6

Where plaintiff’s pleader appeared before the court and made a statement to the effect that his client’s agent had informed him that the plaintiff would not precede with the case and the court dismissed the suit for default, the defendant being absent, it was held that the order was under this rule7. When, on the defendant’s application, no order is passed but the suit is dismissed because the plaintiff did not appear, it has been held by the Orissa High Court that the dismissal order is not under this rules but under r 8.

1 Damu v Vakrya (1920)44 Bom 7672 Ram Ranbijaya v Sakalpat Tewary AIR 1942 Pat 563 Ram Reddy v Yenka Reddy 1956 Hyd 5514 Suraj Prasad v Rambaran AIR 1956 Pat 1275 Hukam Chand v Mani AIR 1934 Lah 9846 Hingu Singh v Jhuri Singh (1918)40 All 5907 Jaharlal v Jyoti Prasad(1938) 42 Cal WN 806

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Adjourned hearing . - This rule applies where there is default of appearance at the first hearing. Where the default takes place at an adjourned hearing, it is O 17 that applies. This rule does not apply after preliminary decree has been passed and a suit cannot be dismissed for default of appearance on an application for a final mortgage decree.8 If a tribunal passes an order on the merits in the absence of both parties, that is opposed to natural justice. 9

Procedure when only plaintiff appears.

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then- (a) When summons duly served. If it is proved that the summons was duly

served, the court, may make an order that the suit shall be heard ex parts. (b) When summons not duly served. If it is not proved that the summons was

duly served, the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time. If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the court shall order the plaintiff to pay the costs occasioned by the postponement.

Called on for hearing -Discussing the scope of r 6(1)(a), the Supreme Court observed that it is ‘confined to the first hearing in the suit and does not per se apply to subsequent hearing’.10 The word hearing is used in this rule in a technical sense and means a hearing in which the Judge takes evidence, or hears arguments on questions arising for adjudication on the rights of the parties in the suit, and not one in which interlocutory matters are to be disposed, such as the report of a Commissioner. 11

Ex parte decree - If the defendant does not appear, and it is proved that the summons was duly served upon him, the court may proceed ex parte. If the plaintiff makes out a prime facie case, the court may pass a decree for the plaintiff. If the

8 Chandra v Amir (1927)49 All 5929 Madhao Narayan v Ragho Niloo AIR 1970 Bom 13210 Sangram Singh v Election Tribunal 1955(2)SCR 111 Sohan Singh v Hans Raj AIR 1960 Punj 34

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plaintiff fails to make out a prima facie case, the court may dismiss the plaintiff’s suit. Every Judge in dealing with an ex parte case should take good care to see that the plaintiff’s case is at least prima facie proved. The mere absence of the defendant does not of itself justify the presumption that the plaintiff’s case is true. The court has no jurisdiction to pass an ex parte decree without any evidence being given by or on behalf of the plaintiff12,and the provisions of O 8 r 10 apply only when the court has under O 8 r9 required the defendant to file a written statement.13 The amendment of O 8 r 10 in 1976 has, however, altered the position in this respect. The court has no power to pass an ex parte decree before the returnable date mentioned in the summons.14As to the effect of an order declaring the defendant ex parte in subsequent proceedings, see the undermentioned cases. 15

Minors- Where applications for appointment of a guardian ad litem have been already made, the passing of an ex parte decree against the minor is highly improper.

12 Ross & Co v Scriven 43 Cal 100113 Moopan v Karuppanna 6 Rang 44614 Dhirajlal v Hormusji 32 Bom 53415 Ramji Dass v Bhunpender Singh AIR 1962 Punj 443

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Procedure where the defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. [Section 101]

Where the Court has adjourned the hearing of the suit parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to cost or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. This rule has no application where the defendant merely desires to proceed from the stage at which he appears. It is only when he wants the court to go back on what has been done that he must apply under this rule.16 The contrary view takes in the decisions noted below is no longer good law.17 Nor does it apply when the entire hearing has been completed and the case is merely adjourned for judgment.18 The Election Commissioner has no jurisdiction to set aside under this rule, an order made by him. 19

Counsel’s affidavit- In a Delhi case, counsel for the defendant filed (along with an application under O 9 r 7) his own affidavit to the effect that he was busy in his personal matter and therefore could not attend the court when the suit was called out by the court. He also stated that when he reached the court 10.15 a m he came to know about the order regarding ex parte hearing. This was held to be a good cause for the absence of the counsel. 20

Service in appeal - In a Petition to the Supreme court for special leave to appeal against a decree passed by the High Court in second appeal, it had been stated that the principal respondent had not been served with notice of appeal. The Supreme Court remanded the case to the High Court for disposal according to law.

In a suit filed on behalf of the plaintiff for a declaration that he was the3 licensee of the premises in question and had a right to remain in possession there of for the period mentioned in the plaint, it is not open to the defendant to make a prayer for eviction of the plaintiff by way of counter-claim. The order of the trial court allowing the defendant to make a counter-claim against the plaintiff and also allowing him to pray for a decree for eviction of the plaintiff, in the suit which had been filed on behalf of the plaintiff, amounted to an exercise of jurisdiction illegally and with

16 Sangram Singh v Election Tribunal 1955(2) SCR 117 Tulsi Devi v Sri Krishna 1950 All 618 Arjun Singh v Mohindra Kumar AIR 1964 SC 99319 Koti Reddi v Venkayya AIR 1951 Mad 81320 Delhi Develpoment Authority v Shanti Devi AIR 1982 Del 159

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material irregularity, and was liable to be set aside in revision.21 On a plaint being amended by changing the suit for declaration into one for possession, defendants are entitled to take the plea of adverse possession which they could not take earlier. 22

Limitation -To an application under O 9 r 7 art 137, Limitation Act 1963 appliers.

Exparte order -An ex parte order was made on a certain date, and on the next date of hearing, an application for setting aside that order was made. It was held that the application could not be dismissed on the ground that it was not filed within thirty days; as no limitation period is prescribed for such an application. 23

Appeal and res judicata-Where the court refuses to set aside an ex parte decree, the order itself is not appealable, But the fact that the defendant thereafter does not participate in later proceedings does not operate as res judicata so as to prevent him from appealing against the main decree.

Rejection of application -Where an application for setting aside ex parte order is rejected. It does not debar him from participating in the later proceedings of the stage. Its only effect is of denying him relegation to the stage at which the proceedings stood at the commencement of the trial.

21 Jaswant Singh v Darshan Kaur AIR 1983 Pat 13222 Dhapon v Vijay Singh (1980) Rev LR 5223 Delhi Development Authority v Shanti Devi AIR 1982 Del 159

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Procedure where defendant only appears. [Section 102]

Where there defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

Scope of the Rule-This rule would not apply where the suit is dismissed for the plaintiff’s non-appearance on a date fixed, not for the hearing of the suit but for some interlocutory matter. 24

One of the defendants was ex parte, and the others contested the suit. The suit was dismissed under this rule for non-appearance of the plaintiff when it was called for hearing. The plaintiff then applied to get the decree amended by granting him an ex parte decree against the defendant who was ex parte. But the plaintiff’s application was dismissed on the ground that by remaining ex parte, the defendant cannot be held to have admitted the claim. 25

When the plaintiff does not appear, and the suit is decreed ex parte to the extent the defendant admits, and dismissed as to the rest, what is the remedy open to the plaintiff in respect of the portion dismissed.

Where only defendant appears- If neither party appears on the day fixed for the hearing of the suit, procedure laid down in r 3 is to be followed. If the plaintiff appears and the defendant does not appear, the procedure laid down in r 6 is to be followed. If the defendant appears and the plaintiff does not appears the procedure laid down in the present rule is to be followed. All that a defendant is entitled to under this rule is to have the plaintiff’s suit dismissed. He is not entitled to call any evidence, even though it be to disprove charges of fraud or the like that may have been made against him in the plaint. 26

If the plaintiff does not appear- See notes to r 9 below, ‘Appearance’ This rule does not apply to the case of non-appearance by reason of death. Where a sole plaintiff dies before the hearing of a suit, and the suit is dismissed for non-appearance under this rule, the fact of his death not being known to the court, there is inherent jurisdiction in the court under s 151 to set aside the dismissal, and thus rectify the mistake which has

24 Sheik Mohamad v Mt Ruknina Kunwar AIR 1946 All 50625 K G Mani v Leutin AIR 1955 Mys 226 Kesri Chand v National Jute Mills Co (1913)40 Cal 119

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been inadvertently made. It is then for the legal representative of the plaintiff to apply to be brought on the record under O 22 r 3. Similarly, the rule does not apply if the plaintiff has been adjudged insolvent before the hearing, for there is no person on the record who has any right or duty to appear; and the court should not dismiss the suit, but should, under O 22 r 8 fix a time within which the Official Assignee may decide to continue the suit. Where on the day fixed for hearing, the plaintiff does not appear and the defendant appears but applies for time, and the court dismiss the suit for default, the order falls under this rule and not under r 4 above.

More plaintiffs than one-This rule provides for the case where a single plaintiff or all the plaintiff if there are more than one, do not appear. Rule 10 provides for a case where there are more plaintiff than one and one or more of them appear and others do not appear. 27

More defendants than one-If there are several defendants of whom one appears the suit will be dismissed against the defendant who appears under O 9 r8 and the plaintiff will, under O 9 r9, be precluded from bringing a fresh suit against him. But as against the defendants who have not appeared the dismissal will be under O 9 r3 and the plaintiff will under O 9 r4 be at liberty to bring a fresh suit against them.

Remedies in case of dismissal under this rule-Notes to r 9 below ‘Remedies in case of dismissal under r 8’

The Court shall make an order that the suit be dismissed. These words have been substituted for the words ‘the court shall dismiss the suit’ [Code of 1882, s182]. An order of dismissal under this rule for default of plaintiff’s appearance is not a decree, and is not, therefore, appealable. See s 2(2)(b).

Effect -Dismissal for default falls under O 9 r 8 and not under O 17 r3.

27 Kulamoni Barik v Lokenath Mohapatra(1949) 1 Cut 446

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Decree against plaintiff by default bars fresh suit. [Section 103]

(1) Where a suit is wholly or partly dismissed under r 8 the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

Object-The rule barring a fresh suit is based on sound public policy. It is based on the well-established juristic principle that no defendant should be vexed twice on the same cause of action. This rule provides for restoration of suits dismissed under r 9 for non-appearance. It is condition for the application of this rule that there should be default on the part of the plaintiff. It has in consequence no application when the defendant had not been served28 or if the date of hearing had not been fixed or if the same had not been notified to the plaintiff.

Scope This rule is applicable to the High Court in the exercise of its original jurisdiction29,to applications in forma pauperis30, to applications under the Madras Agriculturist relief act and to proceedings under Displaced Persons (Debt Adjustment) Act 1951. It has no application to probate proceedings for annulment of an order of adjudication, under s 43(1) of the Provincial Insolvency Act 192031. But it has been held that an application for adjudication as insolvent under s 4 of the Insolvency Act, which had been dismissed for default, could be restored under this rule or under s 151 of the Code. The rule applies to proceedings under the Hindu Marriage Act.

As already stated in the notes on s 141, the provisions of O 9 do not apply to proceedings in execution.

Election petition-An application for restoring an election petition dismissed for default would be maintainable, but it can be filed only by the election petitioner, and not by any respondent.

Difference between r 4 and r 9-Rule 4 and r 9 of O 9 differ in basic points as under:

28 Kudalayya v Sidilingappa 1958(1) And WR 16629 Debendra v Satyabala 54 CWN 11030 Subbaraya v Sundaresa AIR 1933 Mad 531 Venugopalchariar v Chunilal 49 Mad 935

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(i) Where a suit is dismissed under O 9 r 2 or O 9 r 3, a fresh suit on the same cause of action is not barred while it can be restored under r 4. In contract, where a suit is dismissed under O 9 r 8, a fresh suit on the same cause of action is precluded by O 9 r 9.

(j) Before restoration under O 9 r 4, notice to the defendant is not provided for, but, before restoration under O 9 r 9 notice is mandatory.

Probate proceedings- Provisions of O 9 r 9 are applicable to probate proceeding in view of s 141 of CPC and ss 268 and 295 of Succession Act.

Original side-Order 9 r 9 is attracted in the case of an order setting aside an order dismissing a suit for non-prosecution by a single Judge on the Original Side (High Court). As the provision is attracted, art 122 of the Limitation Act 1963 is also attracted. Therefore, such an application must be made within 30 days from dismissal as provided by the Limitation Act.

Hearing date-A pre-emption case was fixed for petitioner taking certain steps. He could not attend owing to illness and the case was dismissed for default.

It was held that: (a) the restoration could not be ordered under O 9 r 9. (b) But as the date was not for hearing, s 151 could be used.

Liberal approach-A liberal approach should be adopted in dealing with an apparition for restoration of a suit which is dismissed for default.

Limitation-An application for restoration cab be entertained even after limitation, if proper application for condonation of delay is made.

Sufficient cause -In a Delhi case, the trial court dismissed the suit for default on the ground that counsel for the plaintiff was not present. However, counsel’s absence was due to the fact that he was busy in a case in the High Court. It was held that this was sufficient cause for non-appearance. There must of course be some explanation for the counsel’s non-appearance.

Mistake in cause list -Where the plaintiff was prevented from appearing at the hearing owing to a mistake in the cause title as mentioned in the cause list and the suit was dismissed for his non-appearance, it is a fit case for restoration of the suit.

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Suit for partition-Order 9 r 9 applies to a situation where the suit is dismissed by a court for the reason that the defendant appears and the plaintiff does not appear. Similarly, O 9 r 13 deals with a situation where a court makes an ex parte decree against the defendant on the ground that he does not appear. Therefore, when a suit for partition is dismissed as withdrawn by the plaintiff to attract O 9 r( and also no ex parte decree was passed to attract O 9 r 13. Consequently, O 43 r 1 which provided for a right of appeal against any order made under O 9 r 9 would have no application.

Where the court had granted permission to the plaintiff to withdrawn the partition suit without giving notice to all the contesting defendants, the court would be deemed to have acted without jurisdiction as the court had clearly denied the defendants their lawful right to prosecute the suit by getting transposed as plaintiffs and as such, the order granting permission would be liable to be set aside in exercise of powers of revision under s 115.

Remedies in case of dismissal under r 8-A plaintiff, whose suit is dismissed under r 8 for default of appearance on the fixed for the hearing, cannot appeal from the order of dismissal, as such an order is not a decree [s 2 cl (2), sub-cl (b)] or a judgment so as to attract cl 15 of the Letters Patent but he may—

(1) Apply for a review of the order under O 47 r 132, though the High Court of Bombay has held that since the decision of the Privy Council 33a plaintiff whose suit has been dismissed under r 8 has no remedy by way of review. The High Court of Calcutta was also inclined to the view taken by the Bombay High Court.

Or he may-- (2) Apply under this rule for an order to set aside the order of dismissal.

He is entitled to apply for a review without a previous application to set aside the dismissal under this rule34. The period of limitation for an application for a review of the order is ten days from the date of the order in the case of an order made by the Provincial Court of Small Causes, twenty days from the date of the order in the case of an order made by any of the Chartered High Court in the exercise of its original jurisdiction, and ninety days from the date of the order in other cases. The period of limitation for an application under this section is thirty days from the date of the dismissal of the suit.

The first remedy is open to any plaintiff whose suit has been dismissed, whatever the ground of dismissal may be, whether it is dismissed for default of

32 Raj Narain v Lakshmi Narayan (1925)49 Bom 83933 Chajju Ram v Neki(1922)49 IA 14434 Raj Narain v Ananga (1899)26 Cal 598

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appearance at the hearing or on the merits after a hearing. But the second remedy, that is, the remedy provided by this rule, can only be availed of by a plaintiff who does not appear at the hearing and the suit is dismissed for default of appearance under r 8 above. The remedy given by this rule is not open to plaintiff whose suit is dismissed on any ground other than default of appearance. Hence, if a plaintiff’s suit is dismissed on his failure to establish his case by reason of non-attendance of his witness or for want of evidence, the dismissal is not under r 8 and he cannot, therefore, avail himself of the remedy provided by this rule.

There is a conflict of decisions whether if a plaintiff does not apply under this rule within the thirty days allowed by law, he is entitled to apply for review under O 47 r 1 after the expiration of that period. The Patna High Court has held, following an earlier decision of the Calcutta High Court35, that he is not. On the other hand, the Calcutta High Court has held in a later case that he is. The ground of the Patna decision is that to allow a review in such a case would be an evasion of the rule of limitation.

Setting aside decree ex parte against defendant. [Section 108]

35 Kailas v Nabadwip(1898)2 CWN 318

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In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Explanation- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

Amendment -The second proviso and the Explanation were inserted in 1976.

Application of the rule-This rule applies to proceedings in the High Court in the exercise of its original jurisdiction, to proceedings under s 30 of the Land acquisition Act 1984, under the provincial insolvency Act 1920, under the Hindu marriage act 1955,36 and under the Mysore Agriculturists relief Act 1947. It has been held that it has no application to a decree passed under s 17 of the Arbitration act 1940, as it cannot be said to be ex parte, nor to an ex parte order made under s 24 of the Bombay Agriculturists Debtors Relief Act 194737, nor to an application to set aside a decree passed in a summary suit under O 37 r 4.

Remedies-The defendant has the following courses open to him, when ex parte decree has been passed:

(1) He may appeal from the ex parte decree under s 96. (2) He may apply for a review of judgment under O 47 r 1, (3) He may apply under this rule for an order to set aside the ex parte decree,

provided the application is made, in cases to which the Limitation Act 1908, 36 Sunanda v Gundopant 1961 Bom 29637 Mangilal v Shivram AIR,1956 Bom 755

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applies, within 30 days from the date of the decree or where the summons was not duly served, when he has knowledge of the decree, and in cases to which the Limitation Act 1877, applies within 30 days from the date of executing any process for enforcing the judgment. As to ‘knowledge of the decree’, it has been held that it must be knowledge of a particular decree passed against the defendant in a particular court in favour of a particular person and for a particular sum, and not merely the knowledge that a decree has been passed by some court against him. 38

Remedies concurrent-All the three remedies stated above are concurrent. The defendant is entitled to apply under this rule to set aside the ex parte decree passed against him and at the same time to appeal from the decree. Further, he is entitled to appeal from the decree without a previous application to set aside the decree under this rule. Similarly, he is entitled to apply for a review without previously applying under this rule. The point has been discussed whether in an appeal preferred against an ex parte decree, the appellate court can only go into the question of the correctness of the decision or otherwise on the merits, or whether it can consider if there was sufficient cause for non-appearance, and whether in the latter case it can in a proper case, remand the case for trial on the merits. The law may now be taken to be settled that it can examine whether the defendant had sufficient cause for non-appearance, and if satisfied that he had, then remand the case for trial on the merits.39 The question has also been discussed as to the proper forum which can consider whether there was sufficient cause, when there is both an application to set aside the ex parte decree, and an appeal against it. The authorities have held that the proper court to decide the question is the one which passed the ex parte decree. 40

When an appeal is preferred against an ex parte decree, and the appellate court confirms it or disposes of it otherwise under O 41 r 32, can the court of first instance thereafter hear an application to set it aside, even if that application was made before the appeal was filed The High Courts of Allahabad, Calcutta, kerala and Madhya Pradesh, and the Chief Court of Oudh have held that it cannot for the reason that the original decree has merged in that of the appellate court41. The High Courts of Madras and Lahore have, on the other hand, held that it has got the power to dispose of the application. If the appeal is dismissed for default the original court can entertain application.42

The Explanation (inserted in 1976) adopts the former view.

38 Bapurao v Sadhu(1923)47 Bom 48539 Jnanendra v Profullananda AIR 1928 Cal 81240 Kumud Nath v Jotindra Nath 38 Cal 39441 Mathura v Ram Charan 37 All 20842 Ram Rakhan v Govind Das 1945 All 499

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Explanation -The Supreme Court, has held that if any appeal against an ex parte decree has been disposed of on any ground (other than the ground that the appellant has withdrawn the appeal), no application will be entertained for setting aside the ex parte decree under O 9 r 13. In other cases of disposal, the filing of the application to set aside the ex parte decree is not barred.

Ex parte decree obtained by fraud -A regular suit does not lie to set aside an ex parte decree, merely on the ground non-service of summons.43 But such a suit is maintainable on the ground of fraudulent suppression of summons. But where an ex parte decree is alleged to have been obtained by a plaintiff by fraud, the defendant is entitled to institute a regular suit to set aside the decree on the ground of fraud.44 Such a suit is maintainable even through the defendant was unsuccessful in his application, made under this rule, to set aside the ex parte decree and through he did not appeal against the order rejecting his application. It has been held that through neither non-service of summons nor the falsity of the claim is itself a ground for setting aside a decree on the ground of fraud, when once non-service is established, as also the falsity of the claim, fraud could be inferred and the ex parte decree set aside. 45

Who can apply under this rule-A mortgagor who has sold the hypothec is entitled to apply under this rule46 and so also the purchaser in a court auction of the equity of redemption47. Where an application by the vendor under O 9 r 13 was dismissed, the purchaser is entitled to file an appeal against the order48. The legal representatives of a deceased judgment-debtor can also apply under this rule vide s 146 of the Code. A person who was not the defendant in the suit cannot apply to set aside an ex parte decree. A person who is not a party cannot apply.

Grounds on which ex parte decree may be set aside- These are stated in the second paragraph of the rule, the one being that the summons was not duly served upon the defendant and the other that though the summons was duly served, the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing49. A summons cannot be said to be duly served if it is a misleading document having no relevance to the real proceedings which are contemplated and having no reference to the order ultimately passed. When a summons was served upon a pardanashin lady, to whom the serving officer was not able to obtain access, by

43 Narsingh Das v Rafikan (1910) 37 Cal 19744 Abdu v Mahomed(1894)21 Cal 60545 Girish Chandra v Kalachand 1958 (1)Cal 8546 Baljit Singh v Munnu Lal 1958 (1)All 38947 Shaligram v Pundalik 1955 Nag 56948 Dulhin Suga v Deorani Kuer AIR 1952 Pat 7249 Somayya v Subbamma(1903)26 Mad 599

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affixing a copy of the summons on the outer door of her dwelling house under O 5 r 17, and it appeared that the lady had no knowledge of the suit against her, the court set aside the ex parte decree passed against her on the ground that she was prevented by ‘sufficient cause’ from appearing at the hearing of the suit. 50

Sufficient cause-Summons served upon the defendant was not accompanied by a copy of the plaint. However, the defendant had full knowledge of the date of hearing. It was held that there was no sufficient cause for setting aside the ex parte decree.

According to the Allahabad view, there could be no proof of ‘due service’ if the postman is not examined, and hence there is sufficient ground for setting aside the ex parte decree. Substituted service is as effectual as personal service for the purpose of going on with the proceedings of the court. It is not necessarily due service and it is open to the defendant to show that he had no knowledge of the claim51.

Under the second proviso inserted in 1976, a decree passed ex parte cannot be set aside merely on the ground of irregularity in the service of summons it the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Where an ex parte decree has been passed against a defendant who has failed to appear at the hearing, he is not entitled to have the decree set aside as a matter of course even if he applies on the same day for the purpose. It is a matter for the discretion of the court.52

No valid guardian-If, in a suit against a minor, there is no validily appointed guardian, the notice served upon the guardian is no notice at all and the decree can be set aside on that ground under O 9 r 13. 53

Medical certificate-There was nothing on record to show that the landlord has challenged the veracity of the medical certificate, nor did he appear to have expressed his desire to cross-examine the doctor who has issued the certificate. The court also did not express any doubt about its genuineness or correctness. Hence, in the circumstances of the case, the court below should have accepted the medical certificate as correct and the ground for remaining absence should have been

50 Kshirode v Nabin Chandra (1915)19 CWN 123151 Gyanammal v Abdul Husain (1932)55 Mad 22852 Currimbhoy v Moos(1929)31 Bom LR 46853 Md Hassan v Md Abbas AIR 1984 Cal 170

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considered sufficient. It should have set aside the ex parte decree and disposed of the case on merits.54

Summons in English language-In a Karnataka case, summons was issued English language. Defendant did not know English and was therefore unable to understand its contents and remained absent on the date of hearing. It was held that ex parte decree should be set aside.

Absence on what date-Defendant has only to show valid cause for his absence on the day when his case is heard ex parte.

Defendant appearing-Defendant appeared in court, but failed to file written statement within time granted by court. Court passed decree. This decree cannot be said to be ex parte decree and cannot be set aside. 55

Disposal in defendant’s absence -Where the trial court passed a decree disposing of a suit on the basis of the plaintiff’s evidence, owing to the defendant’s non-appearance at subsequent hearing, the decree is to be considered as passed ex parte.

Failure to file written statement -Order 9 r 13 applies where disposal is under O 8 r 10 (failure to file a written statement.)

Condonation of delay -Non-disposal of the application for condonation of delay, filed by a person filing an application to set aside an ex parte decree does not make the latter application non est.

Ex parte decree against minor defendant-It is ground for setting aside an ex parte decree passed against a minor defendant, that the Nazir who was appointed guardian-ad-litem of the minor did not appear and defend the suit, if the failure to defend was owing to the fact that the Nazir did not receive instruction from any person to defend the suit. It would be otherwise if fraud, collusion or gross negligence on the part of the guardian-ad-litem were proved56 or he had betrayed his trust as guardian, and in such a case, the minor may apply through another guardian to set aside the decree. But there is no cause to set aside the decree if the guardian has no case to put forward and honestly decides that no good purpose would be served by appearing.

First proviso to the rule -Cases under this proviso fall into two classes—

54 Navnitlal v Hasmukhlal AIR 1988 Guj 3455 Traders Bank Ltd v Avtar Singh AIR 1988 Del 5556 Visnu v Datta (1907)9 Bom LR 1099

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1. Where the decree is ex parte against all the defendants, but the application to set aside the decree is made only by some of them.

2. Where against some of the defendants the decree is passed ex parte, but against others who have appeared and defended the suit, it is passed on the merits, and the application to set aside the decree is made by one or more of the defendants against whom the decree was passed ex parte.

In cases under both classes the question is whether, if the decree is set aside as against the applicant, the court can set aside the decree as against the other defendants also, so as to reopen the whole suit, and if so, in what cases. No. provision was made in the old section as to there case. The present rule expressly provides for these cases. The first para of r 13 says that where a defendant against whom a decree is passed ex parte applies for an order to set it aside, and satisfies the court that the summons was not duly served upon him etc , the court shall make an order setting aside the decree as against him [that is the applicant]. This does not, however, confer any right on the party. It only vests a power in the court. The proviso to r 13 says that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may set aside as against all or any of the other defendants. The object is to provide for cases where it may be necessary in the ends of justice to set aside the decree not only against the applicant but also against the other defendants.

This would as a general rule be so: (1) where the decree is one and indivisible,(2) Where the suit would result in inconsistent decrees, if the decree were not set

aside as against the other defendants also. (3) Where the relief to which the applicant is entitled in the suit could not

effectively be given otherwise than by aside the decree as against the other defendants also, 57

(4) Where the decree proceeds on a ground common to all the defendants. These four cases may be considered under the two classes referred to above.

Class 1 -Where the decree is passed ex parte against all the defendants, but the application to set aside the decree is made by some of them only.

Class II -Where against some of the defendants the decree is passed ex parte, but against others who have appeared and defended the suit, it is passed on the merits, and the application to set aside the decree is made by one or more of the defendants against whom the decree was passed ex parte. In this case the question arises whether, if the decree is of such a nature that it cannot be set aside as against the applicant only, but must be set aside also as against the defendants against whom the decree was

57 Bhura Mal v Har Kishan Das (1902)24 All 383

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passed on the merits, the court has the power to set aside the decree as against such defendants also. It is submitted that it has. The words ‘the decree’ in the proviso mean the decree passed in the suit, not only against the defendants who did not appear but also against the defendants who did appear. The words ‘other defendants’ in the proviso mean defendants other than applicant against whom the decree is passed, whether as against them it was passed ex parte or after a hearing.

Inherent power of the court to set aside ex parte decree-Notwithstanding that a different view was taken in the decisions noted below, there is practical unanimity among the High Courts, that if no case is made out under O 9 r 13, the ex parte decree should not be set aside by resort to inherent power under s 151. The Supreme Court has approved the latter view.

There is no inherent power to set aside an ex parte decree, where the case does not fall within O 9 r 13.

Whether this rule applies to execution proceedings -This rule does not apply to proceedings in execution of a decree. See notes to s 141 above. The rule does not apply even though the order passed in execution falls under s 47 and is, therefore, under s 2 deemed to be a decree.58

No service- The second proviso to O 9 r 13 does not apply where there is no service of summons at all; it covers only irregularities in service. The person claiming the benefit of the proviso must prove that all necessary conditions have been fulfilled.59

Ex parte order -An ex parte order directing the attachment of the judgment-debtor’s property cannot be set aside under this rule.

Conditions -A court, setting aside the decree (as the defendant had not been informed of the date of hearing), cannot impose a conditions that the defendant should deposit one-fifth of the amount claimed by the plaintiff in the suit (Rs. 2 Lakhs), within 60 days. Such onerous terms cannot be justified.

A mother-in-law obtained an ex parte decree against the daughter-in-law for possession. The judgment-debtor applied to set it aside. The court imposed a condition that mesne profits as at Rs 2,000 should be deposited every month. The Supreme Court set aside the condition, having regard to the relationship between the parties. At the same time, the discretionary power of the court was recognized by the Supreme Court in this regard.60

58 Arunachalam v Veerappa(1932)55 Mad 1759 Rampati Devi v Chandrika Devi AIR 1979 Pat 314,31660 Kumud Lata v Inder Prasad AIR 1997 SC 34

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Orders-An ex parte order under O 21 r 10 or an order restoring a claimant to possession cannot be set aside,61 nor an ex parte order under O 21 r 35 delivering possession to a decree holder purchaser, nor an order under O 21 r 93 confirming a sale. An application for a personal decree under O 34 r 6 is not an ‘application in execution’ and so, an ex parte personal decree against a mortgagor may be set aside under this rule. 62

The principle of the rule has been extended to an application to set aside a decree for future mesne profits which the court has directed to be ascertained for execution.63

Want of instructions-Where counsel pleads want of instruction his only choice is to retire from the case. He cannot plead want of instruction and also argue that defendant be treated as absent.

Counsel’s negligence -Counsel’s negligence is not in itself sufficient to set aside the decree.

Counsel’s fraud-An ex parte decree can be properly set aside if it is found by the trial court that at the original hearing counsel had kept the client in the dark about the date of hearing. Such order should not be interfered with in revision.

Direction for deposit -In a suit for eviction, a direction was made to deposit rent under s 11 A of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1947. Suit was decreed ex parte, but the decree was set aside under O 9 r 13. Earlier direction for making deposit was held to be revived.

Appeal -After the defendant avails himself of the remedy under O 9 r 3 against the ex parte decree, he cannot appeal against that decree. 64

Explanation -Against an ex parte decree, revision was applied for under s 25, Provincial Small Cause Courts, Act. It was dismissed for default. It was held that another application to set is aside is barred under O 9 r 13, explanation. The word ‘appeal’, in that explanation should be taken as including such revision also.

Furnishing of security -In O 9 r 13 the words ‘or otherwise’ indicate that the court can direct the furnishing of security as a condition for setting aside the decree.

61 Haricharan v Manmatha (1914)41 Cal 162 Babu Lal v Raghunandan (1930)52 All 83963 Suryaprakasa v Sreeramula(1930)59 Mad LJ 91864 Sumera v Madan Lal AIR 1989 MP 224

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Decree for divorce-A husband obtained a decree for divorce ex parte. The husband subsequently died. The wife moved an application under O 9 r 13 to set aside the decree. It was held that she could so apply. The cause of action survived, even after the death of the husband. 65

Application to set aside ex parte decree after it has been executed -The fact that an ex parte decree has been satisfied does not preclude the defendant from applying to the court for an order to set it aside under this rule. A obtains an ex parte decree against B, and attaches B’ s goods in execution of the decree. B pays the amount of the decree under protest and applies for an order to set aside the decree on the ground that the summons was not served upon him. The court may make an order setting aside the decree, notwithstanding that the decree has been satisfied.66

Effect of setting aside ex parte decree-If an ex parte decree is set aside under this rule, the suit is restored. The suit is also restored if the ex parte decree is set aside in a suit not only the ground that the summons was suppressed. But if the ex parte decree is set aside in a suit not a only on the ground of suppression of summons by fraud, but also on the ground that the original claim was fraudulent, the suit itself cannot be restored or retried, for the issue, whether the plaintiff in the original suit had a right to obtain a decree against the defendant is barred by res judicata. This question has since been considered in a number of decisions and it has been held that when an ex parte decree is set aside in an independent suit on the ground of fraud in the service of summons, the original suit is revived, but not if it is set aside also on the ground of falsity of claim. The question as to under what category the case falls must be determined on a consideration of the pleadings, the issues, and the judgment.67

Where, after an ex parte decree is set aside, the defendant again fails to appear at the hearing of the case, can a fresh decree be passed on the evidence recorded at the original hearing one view is that it cannot be, because the effect of setting aside the ex parte decree is to render the evidence recorded prior to it inadmissible. But the better opinion is that that evidence is admissible, as it is part of the record, though the defendant is entitled to cross examine the witnesses, and adduces rebutting evidence, and so a fresh decree can be passed on the basis of that evidence. An ex parte decree against a firm is not an ex parte decree against its partners and cannot be set aside on the application of a partner on the ground that he had not been served.

65 Yallawwa v Shatavva AIR 1997 SC 3566 Zendoo Nal v Kishorilal ILR(1899)23 Bom 71667 Chandi Charan v Sarat Chandra AIR 1955 Assam 231

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Section 144- In s 144 words ‘or other proceedings’ apply to proceedings under O 9 r 13.

Decree after stay-In an Allahabad case, the High Court had stayed proceedings in a suit, but the trial court, in ignorance of the stay order, passed an ex parte decree. It was held that the decree was liable to be set aside when the stay order was brought to the notice of the court. 68

No Decree to be set aside without notice to opposite party. [Section 109]

No decree shall be set aside on any such application as aforesaid unless, notice thereof has been served on the opposite party.

Criminal proceedings

68 Adireppa v Pragji AIR 1924 Bom 366

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Procuring the appearance of accused in Court.

By issuing if accused happens to be by arresting Summons in court, by requiring him to accused

Execute bond for appearance (Section 88)

Summons are issued- (i) Ordinarily in all summons cases (section 204 read with section 2(w) (ii) Also in warrant cases at court’s discretion (Section 204 read with section 2(x)]

Note:- Personal attendance of accused in court may be dispensed with at court’s discretion (section 205).

With warrant With Warrant

Warrant is issued:-

(a) Ordinarily in all warrant (a) By police officer[Section 41(1);Cases[Sec 204 reads 2(x)]; Section 42];

(b) Even in summons cases,if (b) By police officer in charge ofNecessary(Section 87); police station [Section 41(2)];

(c) In case of breach of bond for (c) By a Magistrate(Section 44);Appearance under Section 88 (d) By private person(Section 43);(Section 89).

Exception created in case of members

of Armed Forces(Section 45).

Importance of procuring accused’s presence at trial- Fair trial requires that the trial proceeding are conducted in the presence of the accused and that he is given a fair chance to defend himself. Further, in case the accused is found guilty at the conclusion of the trial, he must be available in person to receive the sentence passed on him.

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The presence of the accused at the trial can well be ensured by simply arresting and detaining him during trial. However, this course, through apparently simple and expedient, should not be resorted to in every case. It may be stated as a broad principle that the liberty of a person should not be taken away without just cause. If the presence of the accused at the trial cannot be procured except by arrest and detention, the accused should by all means be arrested and detained pending his trial; however, if his presence can be reasonably ensured otherwise than by his arrest and detention, the law ought not to deprive him of his liberty. Moreover, the detention, the accused prior to or pending trial is likely to cause direct or indirect obstructions in the preparation of his defense and would not therefore be quite conducive to a fair trial. Consequently, the provisions regarding the issue of a summons, or of a warrant of arrest, and the provisions relating to arrest without warrant (or for that matter even provisions regarding release of the arrested accused on bail) are all aimed at ensuring the presence of the accused at his trial without unreasonably depriving him of his liberty.

How to procure the presence of the accused at the trial:- The code contemplates mainly of two methods of procuring the attendance of the accused at his trial, i.e. either by issuing a summons to him, or by his arrest and detention, Broadly speaking, whether one method is to be preferred to the other in a given case is essentially a decision to be taken by a judicial officer. The judicial discretion in this matter is however guided, and to an extent controlled, by the provisions of the code.

The code classifies all criminal cases into summons cases and warrant cases. A “warrant case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years; and a “summons case” means a case relating to an offence, and not being a warrant case. Obviously the basis of the classification is the seriousness of the offence to which the case relates. A warrant case relates. A warrant case relates to a serious offence while a summons case relates to a comparatively less serious crime. There the trial-procedure prescribed for a warrant case is much more elaborate than that provided for summons case.

The same classification based on the seriousness of the crime has been used to make the initial decision as to whether the accused is to be summoned to attend his trial or whether he is to be arrested and detained for the trial. In a summons case, the consequences of the trial being less serious to the accused than those in a warrant case, it is relatively less probable that he would abscond and disobey the summons issued to him to attend his trial. This is particularly so as the intentional omission to attend the court in obedience to a summons has been made an offence punishable under section 174 of IPC with six months’ imprisonment. On the other hand, if the offence with which the accused is charged is punishable with severe punishment (as in a warrant case) the risk of the accused not obeying the summons and of absconding is greater.

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The code therefore gives the general direction that in a summons case a summons is to be issued to the accused in the first instance and in a warrant case a warrant of arrest is normally to be issued for the arrest of the accused. The code however gives discretion to the Judicial officer to depart from this general rule if the circumstances so demand in a particular case. The relevant provisions in this connection are contained in Section 204 and section 87 which are as follows: Sec 204 Issue of Process: - (1) If in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, and the case appears to be- (a) Summon case, he shall issue his summons for the attendance of the

accused, of (b) Warrant case, he may issue a warrant, or, if he thinks fit, a summons, for

causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. ………………………………..

(5) Nothing in this section shall be deemed to affect the provisions of Section 87.

Sec 87. Issue of Warrant in lieu of, or in addition to, summons- A Court may, in any case in which it is empowered by this code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest-

(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or

(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

It will be seen from section 204(1) that while in a summons case the Magistrate concerned shall issue a summons, in a warrant case he may issue a warrant or (if he thinks fit) a summons. This is further indicated by section 87 which, while empowering a court to issue a warrant in lieu of, or in addition to summons in certain circumstances, requires the court to record reasons for doing so.

Questions may arise as to whether failure to record reasons would vitiate the warrant and make the consequent arrest illegal. Even if one takes the view that the provision in section 87 for recording reasons is only directory and not mandatory, the object of this requirement is quite obvious. It is “to draw attention to the consideration that a warrant ought not to be issued where a summons can serve the purpose, and that

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care should be exercised by the court to satisfy itself that upon the materials before it, it was necessary to issue a warrant”.

Summons to the accused and its service- (a) Meaning and from- A Summons

in case of an accused person is an authoritative call to the accused person to appear in court to answer to a charge of an offence. The manner in which a summons is to be prepared is described in section 61, which is as follows:-

Form of summons: - 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

. Sec 62 Summons how served- (1) Every summons shall be served by a police

officer, or subject to such rules as the state government may make in this behalf, by an officer of the court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt thereof on the back of the other duplicate.

Sec 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, 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 921 of 1860).

The Branch manager is a local manager and if he has been served, the service, shall be deemed to have effected on the company itself.

Sec 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 therefore on the back of the other duplicate.

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Arrest with or without a warrant - As mentioned earlier a magistrate taking cognizance of an offence can issue a warrant for the arrest of the accused as provided by Section 204 read with Section 87. Arrest probably is the most effective method of securing the attendance of the accused at his trial though for other reasons it is not quite desirable to use it in each and every case.

Arrest may be necessary not only for the purpose of securing the attendance of the accused at the time of trial, but it may become necessary as a preventive or precautionary measure in respect of a person intending to commit a cognizable offence, or a habitual offender or an ex-convict, or a person found under suspicious circumstances (See Sections 151, 41 (2) read with Sections 110, 41(1) (h), 41(1)(b) and (d)]. Arrest may sometimes become necessary for obtaining the correct name and address of a person committing a non-cognizable offence (Section-42). A person obstructing a police officer in discharge of his duties is liable to be arrested to put a ‘stop to such’ obstruction (Section 41(1)(e)]. So also a person escaping from lawful custody is liable to be arrested and re-taken in custody.

Arrest means apprehension of a person by legal authority resulting in deprivation of his liberty. The code contemplates two types of arrests: (a)…. made in pursuance of a warrant issued by a magistrate; and (b) arrest made without such warrant but made in accordance with some legal provision permitting such arrest.

A warrant of arrest is a written order issued and signed by a magistrate and addressed to a police officer or some other person specially named, and commanding him to arrest the body of the accused person named in it.

The decision to issue or not to issue a warrant involves a balancing of social interests with those of the individual accused. If the accused person is likely to abscond and disobey a summons, social interests would demand that he be arrested and detained so that he can be effectively put on his trial. On the other hand, the accused person would claim that he should not be subjected to arrest and detention before his guilt is established in a fair trial. The code rightly assumes that these conflicting claims can be best settled if the decision regarding arrest is made by a judge- the judge being a person known for his ability and impartiality.

In case of arrests without warrant the decision to make arrest is no doubt made by persons other than magistrates and courts i.e. by police officers, private citizens, etc. These persons may not have the judicious mind and detached outlook, and yet because of the exigencies of certain situations the code allows them to make the arrest-decisions themselves without obtaining warrants of arrest from the magistrates.

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In a case where a serious crime has been perpetrated by a dangerous person and there is every chance of the person absconding unless immediately arrested, it would be certainly unwise to insist on the arrest being made only after obtaining a warrant from a magistrate. Preventive action may sometimes be necessary in order to avert the danger of sudden outbreak of crime, and immediate arrest of the trouble- marker may be an important step in such preventive action.

Sometimes, the police officer may not arrest the main accused due to influence, even though his co-accused might be arrested. The Delhi High court in such a case opined that the discretion of the investigating agency to arrest does not mean whim, fancy or wholly arbitrary exercise of discretion.69Sometimes the police denies the arrest to enable him to keep the accused in his custody for investigation.In such cases on complaint the magistrate can make inquiry and pass appropriate order.

Though the code allow a person to be arrested without warrant under certain circumstances, it does not allow such arrested person to remain in custody for more than 24 hours from the time of arrest. Further detention of the arrested persons shall be illegal unless permitted by a competent judicial magistrate.

If the arrested person is prepared to give security for his attendance in court for his trial, he might be released on bail under certain circumstances.

These matters would be discussed in detail in the succeeding paragraphs.

Form and contents of a warrant of arrest. – A warrant of arrest is written authority given by a competent magistrate for the arrest of a person. The warrant of arrest must be in writing and must have been signed and sealed by a magistrate or court. It must clearly mention the name and other particulars of the person to be arrested and must specify the offence with which he is charged. The warrant must necessarily show clearly the person to whom the authority to arrest has been given. The warrant of arrest may also include a direction that if the person arrested under the warrant executes a bond and gives security for his attendance in court, he shall be released. A warrant with such direction is commonly called a “bailable warrant of arrest’

These matters have been provided by sections 70-73 which are as follows.

From of warrant of arrest and duration.- (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.

(3) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

69 Binoy Jacob v CBI,1993 Cri LJ 1293 (Del)

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Warrants to whom directed. – (1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other or persons, and such person or persons shall execute the same.

(3) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.

Warrants may be directed.- (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offered or of any person who is accused of a non-bailable offence and is evading arrest.

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it is the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.

When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71

It is obvious from the above provisions that the code does not contemplate the issue of a general warrant of arrest i.e. a warrant to arrest all persons committing a particular offence or offences, and it would be illegal to issue such a general warrant.

Under section 73 it is possible for the investigating agency to procure the presence of an accused evading arrest by way of a warrant issued by a Magistrate and the magistrate can require him to be available for investigation.

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 the expiry of the date fixed by the Court for the return of the warrant.70

A ‘bailable’ warrant can be issued both in case of bailable and non- bailable offences. If the non-bailable offence is only of a technical nature, then in case of such an offence it would be appropriate to issue a ‘bailable’ warrant’.71

A form of warrant of arrest has been prescribed in the Second schedule as form No. 2 which reads as follows:-

Arrest without warrant.- As maintained earlier, the exigencies of the circumstances may require a person to be arrested without warrant if such person is reasonably suspected to have committed a serious (cognizable) offence. Even in case of a less serious crime (non-cognizable offence) immediate arrest without warrant may become necessary to ascertain the name and address of the offender perpetrating 70 Emperor v Binda Ahir,29 Cri LJ 1007,1008(Pat)71 Marula Sidda Sivamulu v Emperor, 12 Cri LJ 430 (Mad)

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the crime. It may also the be necessary as a preventive measure to make arrests without warrant for the forestalling of impending crimes, and for enabling the police to discharge their duties effectively. Arrests without warrant can be made by police officers or even by private citizens in emergencies.

Wide powers have been conferred on the police for making arrests without warrant under circumstances mentioned in sections 41 and 42. These sections read as follows:-

When police may arrest without warrant:- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without a lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

(c) who has been proclaimed as an offender either under this code or by order of the state Government; or

(d) in whose possession anything is found which may reasonable be suspected to be stolen property and who may reasonable be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonable suspected of being a deserter from any of the armed forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who being a released convict, commits a breach of any rule, made under sub-section (5) of section 365; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

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Arrest on refusal to give name and residence- (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. (2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required. (3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest of should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction. Clauses (a), (d) and (g) of Section 41(1) clearly show that the police have very wide powers of making arrests without warrant in respect of cognizable offences, However, these powers are not without limitations.19The requirement of reasonability and credibility would hopefully prevent the misuse of such powers. What is a reasonable complaint or suspicion or what is credible information must depend upon the facts and circumstances in each case 20 Personal feelings of the police officer or vague surmise would not be enough. The word “reasonable” brings in the requirement of honest belief based on facts. The words “reasonable” and “credible” have reference to the mind of the police officer receiving information, and such information must afford sufficient materials for the exercise of an independent judgment at the time of making arrest.21 The police certainly have no power to arrest persons without warrant on the chance of something being thereafter proved against such persons. When the legality of an arrest without warrant is challenged in court, the burden is on the police officer to satisfy the court that he had reasonable grounds of suspicion.22 It may be noted that malicious and excessive exercise of the powers of arrest under these sections would be punishable under section 220, IPC.

The word “may” in section 41(1) suggests that a police officer has discretion in making arrest without warrant. Question may arise as to whether a police officer is entitled to obtain a warrant of arrest from a magistrate under the circumstances mentioned in Section 41. The code makes no express provision in this connection. A magistrate can issue a warrant of arrest only after taking cognizance of an offence.23 However considering the import of section 167 and section 41 it might be inferred that a magistrate might issue a warrant even before taking cognizance of an offence but in the circumstances in which a police officer can arrest without warrant under section 41. 24 Further, a view has been expressed that even if a police officer has been empowered by section 41 to arrest without warrant, this power is to be exercised in

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circumstances where the obtaining of a warrant from a magistrate would involve unnecessary delay defeating the arrest itself25 This view, it appears, has not yet been universally adopted by the courts.

While in several other clauses of section 41(1) there is a distinct provision made to enable a police officer to act upon a reasonable suspicion, in clause (b) there is no such provision. Therefore the inference is that clauses (b) contemplates definite knowledge or information on the part of the police before he takes action under section 41. The law certainly does not intend to give a license to every policeman moving about on the road to search any person at his sweet will merely upon some suspicion of his own which may have no reasonable foundation at all that the said person might have an implement of house-breaking in his possession. The police officer acting under clause (b) must have definite knowledge or at least definite information that a certain person is in possession of an implement of house-breaking before putting that person under arrest.

Clause (i) of section 41 (1) has been designed to facilitate the arrest of a person at a distance. A police officer may be sending a requisition to another police officer can get wanted person arrested by such other police officer. Such requisition can be made in writing or even through telephone or wireless. The clause however requires that the requisition must specify the person to be arrested and the offence or other cause for which the arrest is to be made. The police officer receiving such requisition can arrest such person without warrant only if it appears to him from the requisition that the person might lawfully be arrested without warrant by the officer sending the requisition.

While section 41(1) empowers any police officer to arrest a person without warrant under the circumstance mentioned therein, sub-section (2) of section 41 permits only a police officer in charge of a police station to arrest without warrant the persons specified in sections 109 and 110. Persons specified in section 109 are those found taking precautions to conceal their presence with a view to commit cognizable offences; and persons specified in section 110 are habitual robbers, thieves, house-breakers, forgers, dealers in stolen property, kidnappers, abductors, extortioners, cheats, mischief-maker and dangerous persons, persons habitually committing or attempting or abetting the commission of offences involving a breach of peace or of offences relating to coins, currency notes, Government stamps, or of social and economic offences under the Drugs and cosmetics Act, Foreign Exchange Regulation Act, Essential Commodities Act, Protection of Civil Rights Act, 1955 or the Customs Act, or under any other law providing for the prevention of any hoarding, or profiteering or of adulteration of food or drugs or of corruption. This long list of

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persons would show the wide sweep of the powers given to a police officer in charge of a police station to arrest without warrant persons within his local jurisdiction. These powers would enable station-house officer to take immediate steps against dangerous bad characters found within his jurisdiction before there is time to go to a magistrate and seek preventive orders against such bad characters under section 111. The words “in like manner” refer to sub-section (1) of section 41 and arm the station-house officer to arrest without an order from a magistrate and without a warrant any person specified in sections 109-110.

The Supreme Court has also dealt with the issue of arrest of women between dusk and dawn. Modifying the Bombay High Court’s order that no ‘female person to be arrested without the presence of a lady constable and in no case in the night’, the Court held that all efforts should be made to keep a lady constable present but strict compliance can cause practical difficulties to investigating agencies and create room for evading the process of law by unscrupulous accused. Therefore the Court ruled that while arresting a female person, all efforts should be made to keep a lady constable, but in the circumstances where the arresting officers are reasonably satisfied that such presence of a lady constable is not available or possible and the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation, such officer for reasons to be recorded, be permitted to arrest a female person at any time of the day or night depending on the circumstances of the case even without the presence a lady constable28 This position has now been incorporated in section 46(4) under which in exceptional circumstances the woman police is required to obtain prior permission of Judicial magistrate of first class within whose jurisdiction the offence is committed/arrest is made.

Section 42 in clear in itself. If a person commits a non-cognizable offence in the presence of a police officer and refuses to give his name and address when demanded by such officer, he can be arrested by such officer in order to ascertain his name and residence. However if his name and address were ascertain his name and address were previously known to the police officer, he cannot be arrested and detained under this section .

Arrest by private person and procedure on such arrest:- (1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

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The power of arrest without warrant given by this section can be exercised only in respect of an offence which is both non-bailable and cognizable. What is a cognizable offence has been already discussed earlier31`. The expressions “bailable offence” and “non-bailable offence” have been defined in clause (a) of section 2 which is as follows:-

(a) “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;From this definition and from the provisions of First schedule it would be clear

that broadly speaking non-bailable offences are serious offences. While section 42 allows a police officer to arrest without warrant a person

committing or accused of committing a non-cognizable offence in his presence, this section allows a private citizen to arrest without warrant, only and only if a non-bailable and cognizable offence has been committed in his presence. The right of arrest under section 43 accrues to a private citizen on the basis of his own personal knowledge derived from the use of his own eyes in seeing a non-bailable and cognizable offence being committed.72Where a private citizen seeing a person fleeing with a knife in hand being pursued by many persons shouting for his apprehension, attempts to arrest the fleeing person, the arrest is without any right contemplated by section 43.The right of arrest under this section must be exercised simultaneously with the commission of the offence.

Proclamation for person absconding:- In cases where a summons for the appearance of the accused person is to be issued, but if the court has reason to believe that the accused has absconded or will not obey the summons, or in case where the accused person on whom the summons is duly served for appearance fails to appear without offering any excuse for non-appearance, a warrant of arrest can be issued. Now in cases where a warrant of arrest has been issued against an accused person and there are reasons to believe that the accused person has absconed or is concealing himself to avoid the execution of the warrant, the court may publish a written proclamation requiring such person to appear before it and may attach his property. If the accused person fails to appear before the court as required by the proclamation the property attached would be at the disposal of state Government and could be sold.

This stringent provision would exert considerable pressure on the accused and would impel him to appear before the court in order to avoid deprivation of his property. These matters have been provided in detail by sections 82-86. Section 86

72 Abdul Habib v State ,1974 Cri LJ 248

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which provides for the publication of the proclamation for the absconding accused person. Is as given below

Proclamation for person absconding:- (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

i. (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village.

(c) A copy thereof shall be affixed to some conspicuous part of the Court-house. ii. The court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (4) A statement in writing by the Court issuing the proclamation to the effect that

the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

The terms of the above section are mandatory and imperative, and a proclamation cannot be issued without first issuing a warrant of arrest73. Therefore if there is no authority to issue a warrant of arrest, the issuing of proclamation would be obviously illegal. Before issuing a proclamation the court is to satisfy itself by examining the serving officer or in any other manner that a warrant of arrest had already been issued and that the accused is absconding, concealing, or evading the execution of the warrant. Also, he should consider exercising his powers for dismissal under section 203 before he invokes his powers under section 82. The word “abscond” does not necessarily mean leaving a place. Its ordinary and etymological sense is to “ hide oneself”. When in order to evade the process of law a person is hiding from ( or even in) his place of residence, he is said to ‘abscond’.74 A person cannot said to abscond to evade the execution of warrant when he had gone to a distant place before the issue of the warrant. The section must be strictly construed as the failure to obey the orders in this section has penal

73 Bishundayal v Emperor,AIR 1943 Pat 36674 Kartarey v State of U.P.(1975) SCC (Cri) 803

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consequences. The requirement as to time and place is mandatory, and if the period fixed is less than 30 days the subsequent proceedings will be invalid.75

As part of the efforts to arm the courts to help investigations without the possibility of human rights violations, the code of Criminal Procedure (Amendment) Act, 2005 now empowers the Court to declare a person proclaimed offender if he is accused of some serious offences and fails to appear in response to its proclamation under sub-section (4) of section 82. A new section 174-A making the non-appearance an offence has also been incorporated in the IPC.

Attachment of property of person absconding.- The property of the person against whom a proclamation is issued under section 82 can be attached (and later disposed of) in order to compel his appearance in court. This has been provided by section 83 as follows:

Attachment of property of person absconding.- (1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the court is satisfied by affidavit or otherwise, that the person in relation to whome the proclamation is to be issued,-

(a) is about to dispose of the whole or any part of his property, or(b) is about to remove the whole or any part of his property from the local

jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation. (2) Such order shall authorize the attachment of any property belonging to such person within the district in which its is made; and it shall authorize, the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate. (3) if the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-

(a) by seizure; or(b) by the appointment of a receiver; or (c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or (d) by all or any two of such methods as the Court thinks fit.

75 Jagdev Khan v Emperor,AIR 1948 Lah 151

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(5) If the property ordered to be attached consists of livestock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sales shall abide the order of the Court. (b) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the code of Civil Procedure, 1908 (5 of 1908).

The court issuing the proclamation can attach the property at any time and it is not necessary to wait till the expiry of the time prescribed in the proclamation for appearance. It has been ruled by the Allahabad High Court that unless 30 days have elapsed after the proclamation was issued under section 82 no attachment could be ordered under section 83.76 The court however is required to record reasons while issuing the order of attachment. If the conditions mentioned in the proviso to sub-section (1) are present, the order of attachment can be passed simultaneously with the order made for the publication of the proclamation.

If any person other than the proclaimed person is in any manner aggrieved by the order of attachment, section 84 provides:

Sec 84 Claims and objections to attachment.- (1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:

Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.

(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property under an order endorsed under sub-section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made.

(3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made:

Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him.

(4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in

76 Devendra Singh Negi v State of U.P,1994 Cri LJ 1783

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respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.

Release, sale and restoration of attached property.- This has been provided by sections 85-86 which are as given below

Release, sale and restoration of attached property.- (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.

(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the state Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or under objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the court considers that the sale would be for the benefit of the owner; in either of which cases the court may cause it to be sold whenever it thinks fit.

(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the state Government, under sub-section (2), appears voluntarily or is apprehended and brought before the court by whose order the property was attached, or the Court to which such court is subordinate, and proves to the satisfaction of such court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him.

Appeal from order rejecting application for restoration of attached property- Any person referred to in sub-section (3) of section 85, who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may appeal to the Court to which appeals ordinarily lie from the sentences of the first-mentioned Court.

It will be seen that Section 85(3) provides a remedy where there has been a good and legal publication of proclamation under section 82; however it does not provide for the contesting of the legality of the proclamation itself. Probably the High Court in the exercise of its inherent powers under section 482 may grant relief, or the aggrieved party can seek his remedy by a suit in civil court..

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WHEREAS THE SAME PROCEEDING WILL BE HELD IN CONSTITUTIONAL,MATRIMONIAL MATTERS,CONTRACTUAL MATTERS,IPR,LABOUR,ARBITRATION,LOK ADALAT.

CONCLUSION

The code contemplates mainly of two methods of procuring the attendance of the accused at his trial, i.e. either by issuing a summons to him, or by his arrest and detention. The code classifies all criminal cases into summons cases and warrant cases. A “warrant case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years; and a “summons case” means a case relating to an offence, and not being a warrant case. Obviously the basis of the classification is the seriousness of the offence to which the case relates. A warrant case relates. A warrant case relates to a serious offence while a summons case relates to a comparatively less serious crime. There the trial-procedure prescribed for a warrant case is much more elaborate than that provided for summons case.

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A proceeding before a judicial officer in which the officer must decide whether a crime was committed, whether the crime occurred within the territorial jurisdiction of the court, and whether there is Probable Cause to believe that the defendant committed the crime.

After the police have arrested a crime suspect, the suspect is entitled to a preliminary hearing. Designed as a safeguard against unreasonable arrest and detention, the hearing is conducted to determine whether there is sufficient evidence to hold the defendant for trial. State and federal rules of Criminal Procedure provide for when a hearing must be held and what issues must be raised, which depend in large part on whether the crime is a misdemeanor, gross misdemeanor, or felony.

The most common preliminary hearing is the initial appearance, which is also called the first appearance. Various procedural steps may be taken during the initial appearance. In minor misdemeanor cases, the initial appearance may be the only one, if the defendant pleads guilty. When the charge is more serious, the accused at the initial appearance may be informed of the charges, advised of the Right to Counsel and the right to remain silent, warned that any statement made may be used against the suspect in court, and advised of how to seek release on bail. In some jurisdictions, including the federal courts, a plea may be entered and bail may be set at this first appearance. In other jurisdictions, the suspect will not be allowed to make a plea if the offense is a felony or gross misdemeanor, and a preliminary hearing, also called a preliminary examination, will be promptly scheduled

BIBLIOGRAPHY

WEBSITE

WWW.INDIAKANOON.ORG WWW.MANUPATRA.COM WWW.WEKIPEDIA.COM

BOOKS

CRIMINAL PROCEDURE-R.V.KELKAR’S CRIMINAL PROCEDURE- K.D. GAUR

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CIVIL PROCEDURE- MULLA CIVIL PROCEDURE-C.K.TAKWANI

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