⚠ Section 227 gives the Court a choice

Having found sufficient ground for proceeding, the Magistrate issues a summons in a summons case and a warrant in a warrant case.

But the section permits a warrant in a summons case, and a summons in a warrant case, if he thinks fit — so the classification of the case does not by itself dictate the process.

What ought to guide the choice is the object: the process is to secure the attendance of the person, and a Court should use the least coercive means that will achieve it.

And section 91 permits a Court, in any case in which it is empowered to issue a summons, to issue a warrant instead where it has reason to believe the person has absconded or will not obey the summons — or where he fails to appear without reasonable cause.

📖 GHCL Employees Stock Option Trust v. India Infoline Limited, (2013) 4 SCC 505

Facts: A Magistrate issued summons on a complaint by an order which gave no indication that he had considered the material or the position of the individual persons summoned, several of whom were named only by virtue of their association with a company.

Held: The Supreme Court held that summoning an accused in a criminal case is a serious matter and that criminal law cannot be set into motion as a matter of course. It held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable — and that while he is not required to write a detailed order, he must indicate that he considered the allegations and the material and formed a view that a case was made out. The Court held that where a complaint names several persons connected with a company, the Magistrate must examine whether there is material against each of them individually, and must not summon a person merely because he holds an office. It held that an order passed mechanically, without application of mind, is liable to be set aside, and observed that the consequences of being summoned in a criminal case are serious enough to require that care at the threshold.

Ratio: Summoning an accused is a serious matter and criminal law cannot be set in motion as a matter of course. The order must reflect application of mind to the facts and the law, and must consider whether there is material against each person individually.

📖 Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609

Facts: Persons holding senior positions in companies were summoned to face trial on the footing that, as those in charge of the affairs of the companies concerned, they were answerable for offences alleged against the companies themselves.

Held: The Supreme Court held that an individual cannot be summoned merely because he holds a position in a company which is alleged to have committed an offence. The Court held that there are only two circumstances in which such a person may be proceeded against: where there is sufficient material showing his active role together with the criminal intent, and where a statutory provision specifically makes him vicariously liable. In the absence of either, summoning him is without foundation. The Court held that the degree of criminal liability is personal, and that the criminal law does not, in the absence of a statutory provision, attribute the acts of a company to those who direct it merely by reason of their position. It emphasised that the order summoning an accused must record the satisfaction on which it proceeds, and that a court taking cognizance must apply its mind to the role of each person it proposes to summon.

Ratio: A person cannot be summoned merely because he holds a position in a company alleged to have offended. There must be material showing his active role with criminal intent, or a statutory provision making him vicariously liable.

The position stated shortly

1. A summons is an order to attend; a warrant is an order to arrest. The first depends on compliance; the second operates by force.

2. A summons may be in writing and in duplicate with the seal, or in encrypted or electronic form with the image of the seal or a digital signature.

3. Section 72(2): a warrant remains in force until cancelled or executed. A summons is spent once the date passes.

4. A warrant may be executed anywhere in India, sections 79 to 83 supplying the machinery for execution outside the issuing Court’s jurisdiction.

5. Section 90: on failure to appear on a summons, the Court may issue a warrant; and where that cannot be executed, proclamation (section 84) and attachment (section 85) follow.

6. The two form a ladder: each step is more coercive than the last, and each must be justified.

7. Section 227 permits a warrant in a summons case and a summons in a warrant case if the Magistrate thinks fit — so the classification does not dictate the process.

8. Summoning an accused is a serious matter, and criminal law is not to be set in motion as a matter of course: GHCL Employees Stock Option Trust.

9. The order must reflect application of mind, and must consider whether there is material against each person individually.

10. A person cannot be summoned merely because he holds a position in an entity alleged to have offended: there must be material showing his own role, or a statutory provision making him liable: Sunil Bharti Mittal.