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Summons To A Witness And A Person Accused Of An Offence: Procedure, Statement And Its Admissibility

An investigation by the police starts as soon as the First Information Report or F.I.R u/s 154 of Criminal Procedure Code (CrPC) is registered in respect of an offence (s). The police collect evidence and during such investigation examine any person acquainted with the facts of the case so as to get information about the said offence.

Notice /summon to a witness

Under section 160 of the Code Of Criminal Procedure, 1973 police officer has the power to require the attendance of any person for investigation:
  1. The investigating officer may by order in writing require the attendance before himself, of any person acquainted with the facts and circumstances of the case.
     
  2. However, such a person can be required to appear only within the limits of his own or any adjoining station. In Krishan Bans Bhadur v. State of Himachal Pradesh, 1975 Cri LJ 620 (H.P.) it was held that a police officer conducting an investigation has the power to summon a witness under Section 160 of the Cr.P.C only if such witness is within the limits of his own police station or within the limits of an adjoining police station. Hence, when the person summoned was residing in a place out of the jurisdiction of the police officer and did not attend the investigation, there was no non-compliance of summon issued u/s 160 CrPC
     
  3. No male person under the age of fifteen years or a woman shall be asked to attend at any place except where such male person or woman resides.
     
  4. Such person shall also be provided payment, as per Rules, by the police officer of the reasonable expenses of every person, when he or she attend at any place other than his residence. A person appearing in the office of IO may ask for expenses.
     
  5. The summon issued u/s 160 CrPC should bear particulars of the FIR and offences and name, designation & address of the Investigating Officer.


Notice/summon to a suspect /accused person

  1. Under section 160 CrPC police can also summon a person accused of an offence
    Supreme Court in Nandini Satpathy vs Dani (P.L.) And Anr held on on 7 April, 1978 that Sec. 161(2) is a sort of parliamentary commentary on Art. 20(3) of the Constitution. The scope of section 161does include actual accused and suspects and therefore the police have power under sections 160 and 161 of the Cr.P.C. to question a person who then was or in the future may incarnate as an accused person. 'Any person in section 161 Cr.P.C. would include persons then or ultimately accused.
     
  2. Under section 41A of CrPC ( Notice of appearance before police officer)
    A police officer shall in all cases where the arrest of a person is not required for offences having punishment up to seven years only, issue a notice directing the person to appear before him or at such other place as may be specified in the notice.

    Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

    Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

    Under this provision, a police officer may not arrest a person accused of any offence punishable up to seven years, till he continues to join the investigation. However, he can arrest the person if he fails to appear for investigation or for reasons to be recorded that in the opinion of the police officer he ought to be arrested.

Several guidelines were also issued by the Supreme Court in Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 Criminal Appeal No 1277 of 2014, SLP(Crl.) No.9127 of 2013:
  1. Police officers should not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically
  2. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
  3. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
  4. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
  5. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
  6. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

Thereafter High Court of Delhi in Amandeep Singh Johar vs State of Nct Of Delhi & Anr W.P.(C) 7608/2017 issued several guidelines regarding Procedure for issuance of notices/order by police officers under Sections 41A(i)
  1. Police officers should mandatorily be required to issue notices under Section 41A CrPC (in the prescribed format)
     
  2. The concerned suspect / accused person will attend at the requisite time and place.
     
  3. Should the accused be unable to attend at the time for any valid and justifiable reason, the accused should in writing immediately, intimate the investigating officer and seek an alternative time within a reasonable period, which should ideally not exceed a period of four working days, from the date on which he/she were required to attend unless he is unable to show justifiable cause for such non-attendance.
     
  4. If the investigating officer believes that such extension is being sought to cause delay to the investigation or the suspect / accused person is being evasive by seeking time, deny such request and mandatorily require the said person to attend.
     
  5. A suspect / accused on formally receiving a notice under section 41A CrPC and appearing before the concerned officer for investigation/interrogation at the police station, may request the concerned IO for an acknowledgment.
     
  6. TA duly indexed booklet containing serially numbered notices in duplicate/carbon copy format should be issued by the SHO of the Police Station to the Investigating Officer. The original is served on the Accused/Suspect; A carbon copy (on white paper) is retained by the IO in his / her case diary, which can be shown to the concerned Magistrate as and when required; Used booklets are to be deposited by the IO with the SHO of the Police Station who shall retain the same till the completion of the investigation and submission of the final report under section 173 (2) of the Cr.P.C.
     
  7. The Notice should necessarily contain Serial Number, Case Number. Date and time of appearance, Consequences in the event of failure to comply, Acknowledgment slip
     
  8. Failure on the part of the IO to comply with the above procedure shall render him liable to appropriate disciplinary proceedings as well as contempt of Court in terms of the directions of the Hon'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273.
     
  9. The above procedure shall apply also to the working of Sections 91, 160 and 175 of the CrPC as well. The above procedure shall be mandatorily followed by the Delhi Police when working the requirements of all the above-noted sections.

Statement of a witness

  1. Under section 161 CrPC the police officer may examine orally any person supposed to be acquainted with the facts and circumstances and may reduce into writing any statement made to him in the course of an examination. of the case
  2. Such person shall be bound to answer truly all questions relating to such case except those which would expose him to a criminal charge or to a penalty or forfeiture.
  3. The statement recorded under this section need not be signed by such person.
  4. Section 162 of the Code states that the statement given to police shall not be signed by the person giving such statement.

Whether confession of a person accused of an offence before a Police Officer valid

  1. Section 25 of The Indian Evidence Act, 1872 categorically states that no confession made to a police officer shall be proved as against a person accused of any offence. This means that the admission of guilt made by a person accused of any offence before a police officer is not admissible in the court of law.
     
  2. However, there is an exception to this section
    Section 27 of The Indian Evidence Act, 1872 states how much information received from the accused may be proved. According to this section when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

    This states that when there is any recovery pursuant to any information given by the accused, only such part of the statement is admissible in law.
     
  3. Confession without any corroboratory recovery is inadmissible and should be discarded at the first point.

Power to issue Summons to produce a document or other thing

Under section 91 of CrPC, any officer-in-charge of a police station may issue a written order to the person in whose possession or power document or thing, necessary for any investigation, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

However, the person is not bound to produce such document or thing which may be against such person
What happens when a person does not comply with the summon under Section 160 of CRPC?

In case any person does not comply with the summon issued by a police officer, he is liable to be prosecuted u/s 174 IPC which provides punishment with simple imprisonment for a term which may extend to one month, or with a fine which may extend to five hundred rupees, or with both.

Written By: Prem Chandra Khanduri - BSc ( Hons) L.LB, MBA, MA( Psychology), Diploma in Human Rights Presently working in Delhi Police as Inspector. He has worked in NCB, Narcotic and Crime Branch of Delhi Police and has vast experience of investigation of a variety of cases.
Ph no: 9911441848
Also Read:
  1. Summons: A Initiate Stage Of Civil Suit
  2. What is summon and warrants, it's procedure
  3. What To Do After You Have Been Served With Summons As A Respondent?
  4. Examination Of Witness By The Court In The Absence Of Prosecutor
  5. Right of Complainant To Produce Any Additional Witness At Pre-Charge Evidence Stage
  6. Section 91(1) CrPc: An analysis of Constitutional Validity
  7. Summoning of Registrar of Trademark To Prove Trademark Registration
  8. Successive Applications For Recalling Witnesses Should Not Be Encouraged
  9. Various Mode Of Effecting Service Of Summons On A Defendant
  10. Delhi HC Issues Directions For Streamlining The Recording of Victims/Witnesses Testimonies of Foreign Nationals In Cases of Sexual Assault

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