Institution of Criminal Proceedings through a Warrant or Summons

Introduction:

This note will discuss the institution of criminal proceedings through a complaint to the District Magistrate and the processes that may be issued by the District Magistrate upon such a complaint.

Institution of Criminal Proceedings by Complaint to the Magistrate and Obtaining a Summons or Warrant:

In Section 60 (1)(a) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) , it is provided that:

(1) Subject to article 88 of the Constitution, criminal proceedings may be instituted before a District Court,

(a) by making a complaint and applying for the issue of a warrant or a summons in the manner prescribed under section 61

A. Nature and Procedure of Making Complaint:

The making of the complaint is governed by Section 61 of Act 30 . Summarily, the section provides that:

1. If a person believes from a reasonable and probable cause that an offence has been committed by another person, he may make a complaint of the offence to the District Magistrate.
2. The District Magistrate must be one who has jurisdiction to try or enquire into the alleged offence. Alternatively, if the person accused resides in the area in which the District Magistrate has jurisdiction, the complaint may be made to him.
3. The complaint may be made orally or in writing by the complainant. However, if it is made orally, it must be reduced into writing by the District Magistrate, and both the complainant and the District Magistrate must sign.
4. The complaint must be made on oath else the warrant will not be issued in the first instance.

B. What Happens After the Complaint:

Per Section 61(3) of Act 30, the District Magistrate may refuse to issue the warrant or summons upon receiving the complaint. If he refuses, he must record reasons for the refusal.

The District Magistrate may, however, issue a summons or warrant upon hearing the complaint. Per Section 61(4), the purpose for which the summons or warrant is issued is to compel the attendance of the accused person before the District Court which the Magistrate is empowered to hold, or if the offence appears to be one which the Magistrate is not empowered to try or enquire into, before any other competent Court having jurisdiction in that area.

Note that the District Magistrate may either issue:

1. A summons.
2. A Warrant.

These two processes are different in content and effect. These are now briefly explained.

1. Summons:

The meaning and effect of a summons is provided for in Section 62(2). It provides that “Every summons shall be directed to the person summoned and shall require him to appear at a time or place to be therein appointed before a District Court having jurisdiction to enquire into and deal with the complaint or charge...”

In terms of form, Section 62 of Act 30 provides that a summons shall be in writing, signed by the presiding officer of the Court (often the District Magistrate), directed to a person to appear at a specified time or place to respond to a stated offence. Per Section 63, the summons is served personally on the person named on it by a police officer or any other officer of the court. When the person cannot be found, Section 64 provides that the summons may be served by leaving it with a person above the age of eighteen at the usual or last known place of abode or business of that person. If this too cannot be done, Section 65 allows for the summons to be affix a duplicate of the summons to a conspicuous part of the house or homestead in which the person summoned ordinarily resides.

2. A Warrant: This is often issued if the person summoned to appear at a specified time and place fails or refused to do so. This is provided for in Section 72 (1) of Act 30 which reads:

(1) Where the accused does not appear at the time and place appointed in and by the summons, and the accused’s personal attendance has not been dispensed with under section 70, the Court may issue a warrant to arrest the accused and cause the accused to be brought before the Court.

However, before the time specified in a summons for the appearance of the accused, Section 71(1) allows the court to issue a warrant.

In issuing the warrant, Section 73 (2) requires that it be signed by the judge or magistrate issuing it, state shortly the offence with which the person is charge, state the name of the person, and order the person to whom it is issued to bring the accused person before the court to answer to a charge mentioned in the warrant.

After the warrant is issued, Section 73 (2) provides that it shall remain in force until it is executed or until it is cancelled by the Court which issued it.

Conclusion:

This note discussed two ways of commencing criminal proceedings, all of which start with a complaint to the District Magistrate. Upon such complaint, the District Magistrate may issue a summons requesting a person to appear at a specified time or place. Alternatively, the District Magistrate may also issue a warrant if the person fails to appear, or even before the expiration of the time specified in the summons. In a subsequent note, we will discuss how to commence criminal proceedings using a charge sheet.