Warrant will issue.
Summons not accepted, accused not present
Hello, my wife has filed an FIR & its chargesheet is being filed in the court. The first hearing date was 31 Aug 2023 & since then 7 dates have passed. On 30 Aug 2024 when my wife appeared before the judge & orally asked why the accused have not yet appeared on which the judge has to say, that the accused have not yet accepted the summons & now the court has given the next date aft 3 months. What is the remedy to make the accused appear before the court. Please explain me with sections.
Asked 4 months ago in Criminal Law
Religion: Hindu
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
10 Answers
if accused has refused to accept summons it is proper service
2) court can issue bailable warrant against accused
The wife is the defacto complainant in this case.
It is for the police to follow it up properly by making sure that the summons are served on the accused without further delay.
Hence it is the police which has to reply and not the court
- Your wife can move an application before the said court for the issuance of NBW against the accused.
Dear Client,
Since the accused is required to appear in court although the FIR and charge sheet have been filed, you have some legal measures under the Bharatiya Nagarik Suraksha Sanhita (BNSS) {previously, Code of Criminal Procedure (CrPC)}. According to section 227 of BNSS (previously, Section 204 of the Criminal Procedure Code), the magistrate may issue summons to the accused person. In the event that they do not show up after being called by the magistrate, you can ask the magistrate of get a warrant of arrest under Section 72 of BNSS (previously, Section 70 of CrPC). If an accused refuses to respond to or ignore the summons issued to them, you can apply for a bailable warrant under Section 90 of BNSS (previously, Section 87 of CrPC). If the accused fails to follow the direction of the court, the court may order for the arrest of the accused under Section 91 of BNSS (previously, Section 88 of the Criminal Procedure Code) or it may order for a non-bailable warrant. In case the magistrate fails to take proper action you can go to sessions court under Section 438 of BNSS (previously, Section 397 of CrPC) and ask for revision so as to ensure that the summons are enforced to compel the accused to appear. It is necessary to take records of all the hearings and stay in touch with your attorney to manage this process and achieve the goal of punishment for the accused.
Hope this advice helps in solving your query.
Greetings.
1. Court can issue non-bailable warrants of the accused.
2. Proclaimed Offender proceedings can be initiated against the accused if accused does not appear even after issuance of the non bailable warrants.
3. after he is declared PO, the court can move forward with the trial.
4. as the informant, you cannot do much to force the presence of the accused but it is the court's prerogative that trial is conducted in the accused's presence.
Let me know if any clarification is required.
I have attended court today in the above matter, Judge madam says that summons has not been served to the accused & hence court cannot move ahead with any applications for issuing NBW/BW until summons served. Also the Judge madam says, assist to PP cannot give any application on record. What remedy do i have now & under which section/rule. I still have the day pending to move any application as per the suggestions. Thanking in advance -Kundan P
Asked 23 days ago
wait for service of summons
judge is correct unless summons served no NBW OR BW can be issued
Until the summons are served on the accused the court have to wait for the summons to be served on the accused.
The complainant's role in a criminal case is to assist the prosecution, not to lead it. The state can take over as the complainant, making the original complainant a witness.
Under section 302 Cr. P.C., the defacto-complainant may be permitted to prosecute through a counsel of his choice. Once the magistrate thinks that the cause of justice would be served better by granting such permission, the magistrate would generally grant such permission without any restriction.
- If the accused has not served , then you can ask the Court a Dasti summon for the service of the accused.
- The Court cannot proceed further in the absence the service of summon to the accused.
- However, if the Court is avoiding the summons , then the Court should issue warrant against him.
Dear Client
Since in your case the summons are yet to be served to the accused, the court can go ahead. But you can move to court to declare the accused as absconding under Section 267 of BNSS (earlier Section 82 of CrPC), when it is clear that accused is avoiding service of summons deliberately. You can even file an application before the court to direct the police to resort to further measures for making effective service of summons, even at the accused's residence with affixation or a newspaper as provided under Section 229 of BNSS and formerly under Section 65 of CrPC. If the accused fails to appear even after this order, you can move an application for the issue of a non-bailable warrant under Section 91 of BNSS (earlier Section 88 of CrPC). See that they are filed in time and are in touch with your lawyer and public prosecutor to fasten up the process.
Hope you find this answer beneficial for resolving the dispute.