6.3 Compelling Appearance & Production of Things

6.3 Compelling Appearance & Production of Things

[!NOTE] Judicial Authority & Process: Where voluntary attendance fails, the sovereign authority of the criminal court is exerted through statutory processes to compel appearance (Chapter VI, Sections 63 to 93 BNSS) and to compel the production of documents, digital evidence, and movable property (Chapter VII, Sections 94 to 114 BNSS). The BNSS modernizes process service by establishing electronic summons, gender-neutral family service, and mandatory audio-video documentation of search and seizure operations.

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Summons: Form and Service (Sections 63 to 71 BNSS)

A summons is an authoritative judicial command directing a person to appear before a court at a designated date and hour:

• Form of Summons [Section 63 BNSS / CrPC Section 61]: Every summons issued by a court shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may direct, and shall bear the seal of the court.
• The Electronic Summons Revolution [Section 63(ii) BNSS]: A major modernization in the BNSS is the explicit statutory codification of electronic summons:

  "(ii) in an electronic form bearing the encrypted signature of the presiding officer of such court or such other officer as the High Court may direct, or the image of the seal of the court, and may be delivered by electronic communication in such form and manner as the State Government may make rules in this behalf." Electronic summons can be served via authenticated email, registered mobile messaging applications, and court portal notifications, dramatically truncating service delays.

Modes of Serving Summons

1. Personal Service [Section 64 BNSS / CrPC Section 62]: Summons shall be served by a police officer, or by an officer of the court issuing it, or other public servant. The summons shall, if practicable, be served personally on the person summoned by delivering or tendering to him one of the duplicates. The recipient must sign a receipt on the back of the other duplicate.
2. Service on Corporate Bodies and Societies [Section 66 BNSS / CrPC Section 63]: Service 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 or electronic communication addressed to the chief officer.
3. Substituted Service on Family Member [Section 67 BNSS / CrPC Section 64]: 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 member of his family residing with him, who shall sign a receipt.
   • Critical Statutory Reform: CrPC Section 64 permitted service only on an "adult male member". The BNSS has adopted complete gender neutrality: service can be accepted by any adult member (male or female). A servant is not a member of the family within the meaning of this section.
4. Service by Affixation [Section 68 BNSS / CrPC Section 65]: If service cannot by the exercise of due diligence be effected under Sections 64, 66, or 67, the serving officer shall affix one of the duplicates to some conspicuous part of the house or homestead in which the person summoned ordinarily resides. The court may, after making inquiry, declare the summons duly served or order fresh service.

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Warrants of Arrest: Form, Execution & Cancellation (Sections 72 to 83 BNSS)

A warrant of arrest is a direct judicial order addressed to a police officer or other person commanding the apprehension of the accused:

• Form and Duration [Section 72 BNSS / CrPC Section 70]: Every warrant of arrest issued by a court shall be in writing, signed by the presiding officer, and bear the seal of the court. Every such warrant shall remain in force until it is cancelled by the court which issued it, or until it is executed. A warrant of arrest never lapses merely due to the expiration of a return date.
• Bailable Warrant [Section 73 BNSS / CrPC Section 71]: Any court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the court at a specified time, the executing officer shall take such security and shall release such person from custody.
• Non-Bailable Warrant (NBW) Judicial Restraints: In Inder Mohan Goswami v. State of Uttaranchal ((2007) 12 SCC 1), the Supreme Court emphasized that personal liberty is a paramount constitutional value. Courts must strictly adhere to the graduated escalation of process: issuance of summons in the first instance, followed by a bailable warrant if the summons is disregarded, with a non-bailable warrant reserved strictly as a measure of last resort where the accused is deliberately evading court process.

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Proclamation for Person Absconding (Section 84 BNSS)

Where a warrant of arrest cannot be executed because the person is evading process, the court resorts to proclamation under Section 84 BNSS (CrPC Section 82):

                     PROCLAMATION & ATTACHMENT PIPELINE
                     
  Warrant of Arrest Issued ───> Accused Absconds or Conceals Himself
                                              │
                                              ▼
  Section 84 BNSS Proclamation Published ────> Mandatory MINIMUM 30 DAYS Notice
                                              │ to appear at specified place/time
        ┌─────────────────────────────────────┴─────────────────────────────────────┐
        ▼                                                                           ▼
  Standard Publication Modes:                                               Section 84(4) Declaration:
  1. Publicly read in town/village                                          Grave offences (10+ yrs/life/death):
  2. Affixed to house/homestead                                             Court may pronounce accused a
  3. Affixed to Court-house                                                 <b>"PROCLAIMED OFFENDER"</b>
  4. Published in daily newspaper
        │
        ▼
  Section 85 BNSS: Attachment of Property (Movable and Immovable)
  (Simultaneous attachment permitted if accused is about to dispose of/remove property)
        │
        ├─────────────────────────────────────┐
        ▼                                     ▼
  Claims & Objections [Section 86]       Restoration of Property [Section 87]
  Within <b>6 MONTHS</b> by 3rd parties.         Accused appears within <b>2 YEARS</b> and proves
  If disallowed, civil suit within <b>1 YEAR</b>.  he did not abscond to avoid warrant.

Essential Statutory Conditions for Valid Proclamation

1. Reason to Believe: The court must record its subjective satisfaction that the person against whom the warrant was issued has absconded or is concealing himself so that the warrant cannot be executed.
2. Mandatory 30-Day Notice Period: The proclamation must require the person to appear at a specified place and a specified time not less than thirty days from the date of publishing such proclamation (Devendra Singh Negi v. State of U.P., 1994 Cri LJ 1883). Specifying a date providing fewer than 30 full days from publication renders the proclamation and any subsequent attachment void ab initio.
3. Modes of Publication [Section 84(2) BNSS]:
   • It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
   • 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;
   • A copy thereof shall be affixed to some conspicuous part of the court-house;
   • 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. Proclaimed Offender Status [Section 84(4) BNSS]: Where a proclamation is published in respect of a person accused of an offence punishable with imprisonment for ten years or more, imprisonment for life, or death, and such person fails to appear, the court may, after recording satisfaction, pronounce him a proclaimed offender.

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Attachment of Property (Sections 85 to 87 BNSS)

• Attachment Order [Section 85 BNSS / CrPC Section 83]: The court issuing a proclamation under Section 84 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, belonging to the proclaimed person.
  • Simultaneous Attachment: The court may order proclamation and attachment simultaneously where it is satisfied by affidavit that the person is about to dispose of the whole or part of his property, or is about to remove the property from the local jurisdiction of the court.
• Claims and Objections to Attachment [Section 86 BNSS / CrPC Section 84]:
  • Any claim or objection by a person other than the proclaimed person, asserting an interest in the attached property, must be preferred within six months from the date of attachment.
  • If the claim is disallowed in whole or in part, the claimant may, within a period of one year from the date of the disallowance order, institute a civil suit to establish the right which he claims in respect of the property.
• Restoration of Attached Property [Section 87 BNSS / CrPC Section 85]: If within two years from the date of attachment, the proclaimed person appears voluntarily or is apprehended, and proves to the satisfaction of the court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, the property or net sale proceeds shall be delivered to him after deducting all costs.

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Summons to Produce Document or Thing (Section 94 BNSS)

Section 94 BNSS (corresponding to Section 91 CrPC) empowers a court or officer in charge of a police station to issue a summons or written order to any person in whose possession or power a document or thing is believed to be, requiring him to attend and produce it, if such production is necessary or desirable for the purposes of any investigation, inquiry, trial, or other proceeding.

[!CAUTION] The Constitutional Bar in Shyamlal Mohanlal: In the historic Constitution Bench ruling State of Gujarat v. Shyamlal Mohanlal Choksi (AIR 1965 SC 1251), the Supreme Court authoritatively held that Section 91 CrPC (now Section 94 BNSS) does NOT apply to an accused person. Compelling an accused to produce incriminating documents or evidence in his possession would directly violate the fundamental right against self-incrimination guaranteed under Article 20(3) of the Constitution of India ("No person accused of any offence shall be compelled to be a witness against himself").

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Search Warrants & Mandatory Electronic Recording (Sections 96 to 105 BNSS)

• Search Warrants [Section 96 BNSS / CrPC Section 93]: Issued where the court has reason to believe that a person summoned under Section 94 will not produce the document, or where such document is not known to be in the possession of any person, or where a general search or inspection is necessary for the inquiry or trial.
• Search of Closed Place [Section 103 BNSS / CrPC Section 100]: Ingress must be allowed by the occupant. The search must be conducted in the presence of two or more independent and respectable inhabitants of the locality (panchas). A search list (panchnama) containing all seized articles must be prepared and signed by the witnesses, and a copy delivered to the occupant.

Mandatory Audio-Video Recording under Section 105 BNSS

A transformative evidentiary mechanism enacted in the BNSS is Section 105, which completely alters search and seizure protocol:

"The process of conducting search of a place or taking possession of any property, article or thing under this Chapter or under section 185, including preparation of the list of all things seized in the course of such search or seizure and signing of such list by witnesses, shall be recorded through any audio-video electronic means preferably mobile phone and the police officer shall forward without delay the recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class."

This mandatory recording eliminates allegations of planted recoveries, fabricated panchnamas, and tutored witnesses, ensuring direct compliance with electronic evidence certification under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).

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