Code:
If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the Court:
Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.
Explanation:
- This section empowers the court to issue summons or warrant to a person who is absent from their usual residence if their attendance is required in a criminal proceeding.
- The court must be satisfied that the person is absent from their usual residence and that their attendance cannot be secured through ordinary means.
- The court can issue either a summons or warrant depending on the nature of the case and the seriousness of the offense.
- The summons or warrant will specify the place where the person is believed to be and the date and time they are required to attend the court.
Illustration:
A witness in a murder trial is residing in another state. The trial court is unable to serve him with a summons despite trying various means. The court can, under Section 113 CrPC, issue a warrant to the place where the witness is believed to be, requiring him to attend the court for his testimony.
Common Questions and Answers:
Q: What is considered “sufficient proof” of absence?
A: The court may consider various factors like information from reliable sources, documentary evidence, or witness statements.
Q: What are “ordinary processes” of the court?
A: This includes issuing summons, sending registered letters, or engaging a process server to serve the summons.
Q: When can a warrant be issued instead of a summons?
A: If the court believes that the person may not appear voluntarily or if their presence is urgently required.
