Chapter VIII
Section 113 CrPC: Summons or warrant in case of person not so present
New Law Update (2024)
Section 139 BNSS
TRIAL COURT
Punishment
Procedural – Warrant / Summons Process
Cognizable?
Bailable?
Compoundable?
Bare Act Text
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.
Important Sub-Sections Explained
Main Provision (Appearance)
This part details the standard procedure for securing the presence of a person against whom security proceedings (under Sections 107-110 CrPC) have been initiated but who is not currently in Court. The Magistrate is mandated to issue a summons for appearance or, if the person is already in custody, a warrant for their production before the Court.
Proviso (Immediate Arrest)
This crucial proviso grants the Magistrate an exceptional power to issue a warrant for immediate arrest. This power can only be exercised if, based on a police report or other information (the substance of which must be recorded), the Magistrate fears a breach of the peace and is satisfied that such a breach cannot be prevented without the person’s immediate arrest.
Landmark Judgements
Madhu Limaye v. S.D.M. Monghyr (1970 AIR 1302):
The Supreme Court laid down fundamental principles for all proceedings under Chapter VIII CrPC, emphasizing that the Magistrate must apply his mind judicially, record satisfaction based on information, and not act mechanically. These principles are crucial for the valid exercise of power under Section 113, especially the proviso for immediate arrest, requiring careful consideration before infringing personal liberty.
Gopalan Nair v. State of Kerala (1979 CriLJ 131):
The Kerala High Court held that the power under the proviso to Section 113 to issue a warrant for immediate arrest is an extraordinary power and must be exercised with extreme caution. It stressed that the Magistrate must be fully satisfied that a breach of the peace cannot be prevented by any other means, and the reasons for such satisfaction must be recorded.
Khet Singh v. State of U.P. (1975 All LJ 79):
The Allahabad High Court highlighted that for issuing an arrest warrant under the proviso to Section 113, the Magistrate must not only record the substance of the report or information but also specifically state that a breach of peace cannot be prevented otherwise than by the immediate arrest of the person, demonstrating subjective satisfaction.