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CHAPTER 1
Practice in the trial of Criminal Cases

PART C -- (i) ATTENDANCE OF ACCUSED PERSONS

1. When summons or warrants should issue.-- When a Magistrate taking cognizance of an offence is of opinion that there is sufficient ground for proceeding, he must decide whether a summons or a warrant should issue in the first instance for the attendance of the accused. The fourth column of the second Schedule of the Code shows, in regard to offences, whether a summons or a warrant should ordinarily issue.

2. Discretion of Magistrate to issue summons or warrants.-- Even where the law provides for the issue of a warrant in the first instance, a Magistrate may, in his discretion, issue a summons. On the other hand, a Magistrate may, after recording his reasons for so doing, issue a warrant instead of summons in a case in which the law provides for the issue in the first instance of a summons. Section 90 and 204 of the Code should be referred to on this subject. The former section authorises the issue of a warrant instead of a summons (1) where the Court has reason to believe that the accused has absconded or will not obey the summons, or (2) if, after service of a summons, the accused fails to appear and offers no reasonable excuse for non-attendance.***[...]

3. Warrant should not issue unless absolutely necessary.-- Great care should be taken not to issue a warrant when a summons would be sufficient for the ends of justice. Magistrates should remember that the issue of a warrant involves interference with the personal liberty of a person and should take care to see that no greater hardship is caused than is necessary. Under section 76 of the Code, a Court has the discretion to make the warrant bailable and this discretion should be exercised with due regard to the nature of the offence, the position of the accused person and the circumstances of the case.

4. Bail.-- When the accused person appears before the Court the question of bail arises. In the case of a bailable offence, an accused person must be allowed to remain at liberty if he can furnish bail for his appearance during the course of the trial. A Magistrate has the discretion to allow bail even in the case of non-bailable offences in certain circumstances. (For detailed instructions on the subject, vide Chapter 10, Bail and Recognizance).

5. When attendance of accused may be dispensed with.-- A criminal trial must be conducted in the presence of the accused but section 205 and 540-A of the Code give a limited discretion to the court to dispense with his attendance in certain circumstances.

6. Service of process.-- Detailed instructions as to the mode of issuing and serving processes of the Criminal Courts are contained in Volume IV, Chapter 8, "Processes". The provisions of the law relating to the service of processes on persons employed in the public service require special attention.

(ii) ATTENDANCE OF PRISONERS IN CRIMINAL COURTS

Attendance of prisoners in Criminal Courts.-- The attendance of a prisoner in a criminal court is required either-

(a) to give evidence, or

(b) to answer a charge.

In the case of (a) above, if the prisoner is within the local limits of the appellate jurisdiction of the *[Lahore High Court] any criminal court in the ***[...] Punjab may issue a warrant for his production in the prescribed form as given in Schedule I to the *[Prisoners' Act, 1900 (III of 1900)], without the intervention of the High Court. Such a warrant may be forwarded direct to the officer in charge of the prison if it is situated within the district in which his presence is required. In all other cases, it should be forwarded through the District Magistrate or Sub-Divisional Magistrate within the local limits of whose jurisdiction the prisoner is confined. This is, however, subject to the condition that the warrant issued by a Court inferior to that of the Magistrate of the Ist class should be countersigned by the District Magistrate of the district. If, however, the prisoner is more than 160 kilometers distant from the court where his attendance is required or beyond the local limits of the appellate jurisdiction of the High Court, the matter should be referred to the Registrar of that Court for action under section 39 or 40 of the aforesaid Act, as the case may be.

*[All warrants for the production of prisoners should be issued well in advance of the date fixed for the hearing of the case. In the case of references made to the High Court for the production of prisoners, the date should be fixed with due regard to the distance involved and due notice should be given to this Court. When the production of the prisoner is required under the orders of the High Court, the warrant is prepared and signed by an officer of that court.]

When the evidence of a convict under sentence of death is required, the court shall proceed to the Jail for the purpose, and shall not require the convict's attendance under Part IX of the *[Prisoners' Act, 1900(III of 1900)]:

Provided that if the presence of a convict under sentence of death is required by a Court of Session or High Court for the purpose of taking additional evidence in the case under section 428 of the Code of Criminal Procedure, 1898, the convict's attendance may be required under Part IX of the Prisoners' Act, 1900 (III of 1900).

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