Processes to Compel Appearance — Summons, Warrants, Proclamation, Attachment

Chapter VI of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Sections 63 to 93 BNSS, corresponding broadly to Chapter VI of the Code of Criminal Procedure, 1973 (CrPC), Sections 61 to 90 — collects the four ascending instruments by which a Criminal Court compels the attendance of an accused, a witness, or any other person whose presence is required. The mildest is the summons (Sections 63 to 71 BNSS); the next is the warrant of arrest (Sections 72 to 83 BNSS); the more drastic is the proclamation against an absconding accused (Section 84 BNSS) followed by attachment of his property (Sections 85 to 86 BNSS); and the residual is the bond for appearance (Sections 88 to 91 BNSS) which may be required of any person already before the Court. The chapter is the engine-room of the criminal trial: without these processes, there is no defendant in the dock and no witness on the stand.

Two BNSS changes in this block deserve flagging. First, Section 84 BNSS — the proclamation provision — adds a sub-section (4) that empowers a Court to declare a person a "proclaimed offender" not only in respect of a Sessions-triable offence but in respect of any offence punishable with imprisonment of ten years or more, life imprisonment, or death — even where the underlying offence would otherwise be Magistrate-triable. The category of "proclaimed offender" is therefore widened beyond its 1973 contour. Second, the Sanhita preserves the proclamation-and-attachment machinery but introduces, in Section 356 BNSS, a fresh mechanism — trial in absentia of proclaimed offenders — that builds on this chapter. The chapter walks through the architecture. For the trial-in-absentia provision read this alongside the chapter on trial in absentia of proclaimed offenders, and for the broader procedural sequence the CrPC and BNSS notes.

The four instruments and the principle of escalation

The 1973 Code, in moving away from the older Schedule II classification, adopted a general rule on the choice of process. The BNSS preserves that rule. In a summons-case, a summons is to be issued in the first instance — that is the rule of Section 250 BNSS (previously Section 204(1)(a) CrPC). In a warrant-case, a warrant is ordinarily to be issued in the first instance, but the Court may, if it thinks fit, issue a summons. The Court's choice is governed by what is most likely to produce attendance with the least intrusion on liberty. The principle of escalation runs through the chapter: the Court starts with the milder instrument and moves to the harsher only on demonstrated failure of the milder. The architecture is borrowed from the long-settled doctrine that liberty is the rule, and process the exception.

Section 87 BNSS (previously Section 87 CrPC) authorises a Court that has issued or could issue a summons to issue a warrant in lieu of, or in addition to, the summons in two cases — first, where the Court has reason to believe that the person has absconded or will not obey the summons; second, where the person, after due service of the summons, fails to appear without reasonable excuse. Section 89 BNSS (previously Section 90 CrPC) collects the catch-all reservation that this Chapter applies to summons and warrants of every description issued under the Sanhita.

Summons — Sections 63 to 71 BNSS

Section 63 BNSS (previously Section 61 CrPC) prescribes the form of every summons issued by a Court: it shall be in writing, in duplicate, signed by the presiding officer or such other officer as the High Court may direct, and shall bear the seal of the Court. The summons must clearly state the title of the Court, the date and time of attendance, and — in the case of a summons to an accused — the offence to which it relates. The Sanhita preserves the requirement that summons may now also be served by audio-video electronic means; the BNSS reads the new Section 2(1)(a) BNSS definition of "audio-video electronic means" into Sections 63 onwards, permitting service by email, encrypted messaging or other electronic mode where the State has prescribed the procedure.

Section 64 BNSS (previously Section 62 CrPC) prescribes the mode of service. A summons is served by a police officer, by an officer of the Court issuing it, or — subject to State Government rules — by any other public servant. Service is, if practicable, personal, by delivering or tendering one of the duplicates to the person summoned. The serving officer obtains a signed receipt on the back of the other duplicate, which is the cogent evidence of service relied on under Section 68(2) BNSS (previously Section 66(2) CrPC).

Section 65 BNSS (previously Section 63 CrPC) deals with corporations and registered societies, allowing service on the secretary, local manager or other principal officer, or by registered post addressed to the chief officer of the corporation. Section 66 BNSS (previously Section 64 CrPC) governs service on members of the family where the person summoned cannot be found by exercise of due diligence; an adult member of the family residing with him may be served, but a servant is excluded by the Explanation. Section 67 BNSS (previously Section 65 CrPC) is the affixation rule — where service in the foregoing modes is not practicable, a duplicate may be affixed to a conspicuous part of the house in which the person ordinarily resides. Section 70 BNSS (previously Section 68 CrPC) deals with proof of service when the serving officer is not present; the High Court has long held in Sudhir v. R., AIR 1949 FC 6, that the chain of proof must be unbroken.

Disobedience to a duly served summons is punishable in two ways. The Court before which the person was summoned may, on a summary trial under Section 391 BNSS (previously Section 350 CrPC), impose a fine not exceeding one hundred rupees. Intentional disobedience is also an offence under Section 222 BNS (previously Section 174 IPC) — the omission to attend in obedience to a lawful summons. The fact-pattern question that recurs is this: a defective summons does not ground a Section 222 BNS conviction, nor does mere knowledge of a summons that has not been duly served. The Calcutta and Allahabad High Courts have, over a century, drawn the line tightly.

Warrant of arrest — Sections 72 to 83 BNSS

Section 72 BNSS (previously Section 70 CrPC) prescribes the form of every warrant of arrest issued by a Court: it shall be in writing, signed by the presiding officer, and bear the seal of the Court; it shall remain in force until cancelled or executed. Section 73 BNSS (previously Section 71 CrPC) is the bailable-warrant provision — the Court issuing a warrant may, if it thinks fit, direct by endorsement on the warrant that the person arrested be released on his executing a bond with sufficient sureties for his attendance. The endorsement must state the number of sureties, the amount of the bond and the time of attendance. Sections 74 and 75 BNSS (previously Sections 72 and 73 CrPC) deal with the addressee of the warrant — ordinarily a police officer; in special circumstances, any other person.

Section 76 BNSS (previously Section 74 CrPC) is the endorsement provision — the police officer to whom a warrant is directed may endorse it for execution by another police officer. The Andhra Pradesh High Court ruling in Kurra Rajaiah v. Government of A.P., 2007 Cr LJ 2031, on the formal requirements of the endorsement, applies with equal force to the BNSS provision. Section 77 BNSS (previously Section 75 CrPC) requires the executing officer to notify the substance of the warrant and, if required, to show the warrant. Section 78 BNSS (previously Section 76 CrPC) caps the period within which the arrested person must be produced before the Court issuing the warrant — twenty-four hours, exclusive of journey-time, in line with Article 22(2) of the Constitution. The detailed treatment of the constitutional safeguards on arrest, including the production rule, sits in the chapter on arrest of persons under Sections 35 to 47 BNSS.

Section 79 BNSS (previously Section 77 CrPC) authorises the warrant to be executed at any place in India. Section 80 BNSS (previously Section 78 CrPC) governs the procedure where the warrant is to be executed beyond the local jurisdiction of the Court that issued it. Section 81 BNSS (previously Section 79 CrPC) provides that a warrant directed to a police officer for execution beyond his local jurisdiction shall ordinarily be endorsed by an Executive Magistrate or police officer of the area where the execution is to take place. Section 82 BNSS (previously Section 80 CrPC) is the procedure on arrest beyond the issuing Court's jurisdiction — the arrested person is to be produced before the Magistrate of the district where the arrest is made, who decides whether to grant bail or commit the person to custody. Section 83 BNSS (previously Section 81 CrPC) is the corollary — the Magistrate before whom the arrested person is brought may grant bail in non-bailable offences only on satisfaction that there is reasonable ground for believing that he has not committed the offence in question.

Proclamation against absconding accused — Section 84 BNSS

Section 84 BNSS (previously Section 82 CrPC) is the third instrument. Where any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued has absconded or is concealing himself so that the warrant cannot be executed, the 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 publication. The proclamation is published — read in some conspicuous place of the town or village in which the person ordinarily resides; affixed to a conspicuous part of his house; affixed to some conspicuous part of the courthouse — and a copy is sent to a daily newspaper if the Court directs.

Section 84(4) BNSS — the BNSS innovation — empowers a Court to declare a person a "proclaimed offender" by name in respect of an offence punishable with imprisonment for ten years or more, with imprisonment for life, or with death, after the proclamation period has expired without compliance. The 1973 Code at Section 82(4) confined the declaration to offences specified in a narrower list. The widening matters because proclaimed-offender status is the trigger for several downstream consequences — the trial-in-absentia procedure under Section 356 BNSS, the inadmissibility of the absconding accused as a witness, the enhanced powers of attachment under Section 85 BNSS, and the bar on bail in some special statutes. The Supreme Court in Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, has emphasised that proclaimed-offender status, once attached, has hard practical consequences for any subsequent bail application.

Attachment of property — Sections 85 to 86 BNSS

Section 85 BNSS (previously Section 83 CrPC) is the attachment-of-property power. The Court issuing a proclamation under Section 84 BNSS may, at any time after the issue of the proclamation, order the attachment of any property — movable, immovable, or both — belonging to the proclaimed person. The attachment is effected by seizure (movable property) or by taking possession (immovable property) or, where the property is debt or other money due, by prohibition of payment. The Court may also, by order, appoint a receiver of any attached property.

Section 85(7) BNSS makes the consequence of non-appearance more drastic. If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the State Government — but it shall not be sold for six months from the date of attachment, unless it is subject to speedy and natural decay or unless the Court considers sale would benefit the owner. The six-month window is the absconder's last chance to come in, claim the property, and disgorge by compliance. The provision is preserved in the Sanhita without material change.

Section 86 BNSS (previously Section 84 CrPC) handles claims and objections by third parties. Any person other than the proclaimed person who claims an interest in the attached property may, within six months from the date of attachment, prefer his claim before the Court that ordered attachment. The Court enquires into the claim; the burden of proof is on the claimant. The decision is appealable to the Court that ordinarily exercises appellate jurisdiction over the Court that decided the claim. The detailed treatment is taken up in the chapter on disposal of property seized.

Restoration of property — Section 87 BNSS

Section 87 BNSS (previously Section 85 CrPC) provides for the restoration of attached property. If the proclaimed person appears within the time specified in the proclamation, or within two years from the date of attachment, the Court shall order the property — or the net proceeds of its sale — to be delivered up to him, on payment of the costs of attachment, after compensating any third-party claim that has succeeded under Section 86 BNSS. The two-year window is the outer limit; thereafter the State's interest in the property hardens.

Bond for appearance — Sections 88 to 91 BNSS

The fourth instrument in the chapter is the bond for appearance, governed by Sections 88 to 91 BNSS (previously Sections 88 to 90 CrPC). Section 88 BNSS empowers any Court before which a person is bound to appear, to require him at any time to execute a bond, with or without sureties, for his appearance in such Court. The provision is mainly of utility in dealing with witnesses and undertrials whose recurring presence the Court needs to secure without resort to a fresh warrant on each occasion. Sections 89 to 91 BNSS govern the consequences of breach of bond — forfeiture, recovery, and discharge of sureties. The substantive bail framework under Sections 478 to 496 BNSS — taken up in the chapter on bail-grant rules under Sections 478 to 496 BNSS — operates within the bond-for-appearance machinery here laid down. The interaction between bond-for-appearance and the substantive bail rules is one of the most-litigated points at the trial-court level: a bond once forfeited under Section 90 BNSS may be revived under Section 91 BNSS, but the discretion to revive turns on the same Article 21 considerations that animate the substantive bail jurisdiction. The careful magistrate, before forfeiting a bond, considers whether the breach was intentional, whether the surety had reasonable opportunity to produce the principal, and whether forfeiture is proportional to the default. The chapter on transfer of criminal cases picks up the related question of how bonds, summons and warrants travel with the case when a transfer is ordered under Sections 446 to 451 BNSS.

How the four instruments interact in practice

The four instruments are not independent silos; they form an escalating ladder. A summons that is duly served and disobeyed without reasonable excuse opens the door to a warrant under Section 87 BNSS. A warrant that cannot be executed because the person has absconded opens the door to a proclamation under Section 84 BNSS. A proclamation that yields no compliance opens the door to attachment under Section 85 BNSS, and — if the offence is grave enough — to declaration of proclaimed-offender status under Section 84(4) BNSS, which then opens the door to trial in absentia under Section 356 BNSS. Each step is calibrated to the failure of the preceding step. The principle of proportionality — already constitutional after Maneka Gandhi — runs through the chapter from the first summons to the last attachment.

For the trial Court, the practical guidance is straightforward. Issue the milder process first; document the failure of service or compliance carefully; escalate only on demonstrated failure; record reasons at each step. The chapter on initiation of proceedings picks up the cognizance side of the architecture; the chapter on complaint procedure picks up the issue-of-process discipline under Section 227 BNSS (previously Section 204 CrPC) which interlocks directly with the four instruments laid out here.

Modes of service in special cases

Sections 67 to 71 BNSS deal with special-case service. Where the person to be served is a Government servant, the summons is forwarded to the head of the office, who has it served. Service on a witness by registered post is permitted — only on a witness, not on an accused — under Section 71 BNSS (previously Section 69 CrPC). Service outside the local jurisdiction of the issuing Court is effected by sending the summons to a Magistrate within whose local jurisdiction the service is to be made — Section 67 BNSS. The BNSS broadens the field by permitting electronic service in line with Section 2(1)(a) BNSS, where the State has prescribed the procedure. The general principle is preserved — service must be such that proof of service can be produced before the Court, and the absence of proof generally bars consequential coercive action.

Constitutional overlay — Article 21 and 22

The processes-to-compel-appearance machinery sits on the constitutional fault line between liberty and the necessities of trial. The summons is the least intrusive instrument; it merely calls. The warrant of arrest interferes with liberty — and is therefore subject to the Article 22 safeguards on arrest, including the production rule under Section 78 BNSS and the right to be informed of grounds. The proclamation against an absconder is the State's response to deliberate evasion, and the consequent attachment of property is read against Article 300A — the right to property as a constitutional right — but is justified by the proclaimed person's deliberate refusal to come in. The Supreme Court has held in a long line of cases that proclaimed-offender status, while drastic, is a calibrated response to demonstrated abscondence and does not violate Article 21.

For the post-arrest sequence — the Magistrate's first-production hearing, the bail hearing, the remand hearing, the framing of charge — the reader should turn to the chapters on arrest of persons, bail and bonds, and framing of charge. For the new BNSS-only innovation — trial in absentia of a proclaimed offender — the chapter on trial in absentia takes the doctrine forward. The processes-to-compel-appearance chapter is the doorway through which the trial begins; everything that follows depends on the Court having got the right person before it.

Frequently asked questions

When does a Court issue a summons in the first instance and when does it issue a warrant?

Section 250 BNSS (previously Section 204(1) CrPC) sets the rule. In a summons-case — an offence not punishable with death, life imprisonment, or imprisonment exceeding two years — a summons issues in the first instance. In a warrant-case, a warrant ordinarily issues, but the Court may issue a summons if it thinks fit. The Court's choice is governed by what is most likely to produce attendance with the least intrusion on liberty. Section 87 BNSS authorises the Court to issue a warrant in lieu of or in addition to the summons where the person has absconded or, after due service, fails to appear without reasonable excuse.

What is new in Section 84 BNSS on proclaimed offenders?

Section 84(4) BNSS expands the category of 'proclaimed offender'. Where the 1973 Code at Section 82(4) confined the declaration to a narrow list of specified offences, the BNSS allows a Court to declare a person a proclaimed offender in respect of any offence punishable with imprisonment for ten years or more, life imprisonment, or death. The widening matters because proclaimed-offender status is the trigger for the new trial-in-absentia procedure under Section 356 BNSS, for enhanced attachment under Section 85 BNSS, and for hardened bail consequences.

What happens when a person against whom a warrant has been issued absconds?

The Court, having reason to believe that the person has absconded or is concealing himself, may publish a written proclamation under Section 84 BNSS requiring him to appear at a specified place at a specified time not less than thirty days from the date of publication. The proclamation is read in a public place near his residence, affixed to his house and to the courthouse, and may be published in a newspaper. If he does not appear, the Court may attach his property under Section 85 BNSS. If, after the proclamation period and the offence is grave enough, the Court may declare him a proclaimed offender under Section 84(4) BNSS, which triggers the trial-in-absentia procedure under Section 356 BNSS.

Can a summons under the BNSS be served by email or other electronic means?

Yes, where the State Government has prescribed the procedure. Section 2(1)(a) BNSS defines 'audio-video electronic means' as including any electronic mode of communication. Sections 63 onwards of the BNSS, read with that definition, permit service by email, encrypted messaging or other electronic mode in addition to the traditional modes — personal service, service through a member of the family, affixation, registered post (only for witnesses or for corporations), and service through the head of office for government servants. The form of the summons must still comply with Section 63 BNSS — written, signed by the presiding officer, bearing the seal of the Court.

What is the consequence of disobedience to a duly served summons?

Two consequences. First, the Court before which the person was summoned to appear may, on a summary trial under Section 391 BNSS (previously Section 350 CrPC), impose a fine not exceeding one hundred rupees. Second, intentional disobedience to a lawful summons is itself an offence under Section 222 BNS (previously Section 174 IPC), punishable with simple imprisonment up to one month or fine up to five hundred rupees, or both. A defective summons — one that does not bear the seal, does not specify the time and place, or does not state the offence — does not ground a Section 222 BNS conviction; the older High Court rulings on this discipline continue to apply.

How long does the property of a proclaimed person remain attached, and when is it sold?

Section 85(7) BNSS provides that on non-appearance the attached property shall be at the disposal of the State Government, but it shall not be sold for six months from the date of attachment, unless it is subject to speedy and natural decay or the Court considers sale would benefit the owner. The proclaimed person, if he appears within the proclamation period or within two years from the date of attachment, is entitled under Section 87 BNSS to restoration of the property — or its net sale proceeds — on payment of the costs of attachment, subject to any third-party claim that has succeeded under Section 86 BNSS. After the two-year outer limit the State's interest hardens.