Different modes of serving Summons and the Consequences of Avoiding and Preventing the Service of Summons

Different modes of serving Summons and the Consequences of Avoiding and Preventing the Service of Summons

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Meaning of Summons

Simply put, a summons is a legal document issued by a Court seeking before it the presence of any individual involved in a legal proceeding.

The term “summons” has not been explicitly defined under any statute. However, the essential ingredients of a summons can be found in both the Code of Civil Procedure, 1908 as well as the Code of Criminal Procedure, 1973. In the absence of a clear definition, the Courts are known to rely on the meanings and definitions as provided under various legal dictionaries and lexicons.

According to P. Ramanatha Aiyar’s Law Lexicon, a summons is a process issued from the office of a court of justice requiring the persons to whom it is addressed to attend the court for the purpose therein stated[i]. In Wharton’s Law Lexicon, a summons is defined as the means by which one party brings the other before a judge to settle matters of details in the procedure of a suit[ii].

Laws Governing Summons

Provisions under sections 61 to 69 of CrPC deal with the forms of the summons and their service in criminal cases. On the other hand, provisions under section 27 and Order V of CPC deal with the service of summons in civil cases. Order 16 deals with the summoning of witnesses.

Why is it issued?

Audi Alteram Partem is one of the two basic principles of natural justice. It means that no one should be condemned unheard. To ensure justice is being served, all the parties involved must be given a chance to be heard. This principle ensures an individual’s right to a fair trial and has been incorporated within the ethos of our Constitution and legal machinery.

A summons is issued to inform the person, to whom it is issued, about his involvement in the legal proceedings. It is to give him a chance to set the record straight with the court, give his version of the facts and defend himself. Without such information being passed, the trial won’t be fair and would be against the rule of law and principles of natural justice.

Modes of Serving Summons

The modes of serving summons are defined in CPC and CrPC for civil cases and criminal cases respectively.

The Civil Procedure Code, 1908 provides for the following modes of service[iii] of summons:

  1. Service by Court

Order V, rule 9 states that where the defendant or his agent empowered to accept the service resides within the jurisdiction of the Court in which suit is instituted, the summons shall be delivered or be sent to the proper officer to be served or sent to a Court-approved courier service. Sub-rule (3) of this rule states that such a service may be made by delivering or transmitting a copy by registered post acknowledgement due to either the defendant or such agent by speed post or a Court approved courier service.

Sub-rule (5) states that return of acknowledgement or receipt signed by the defendant or his agent, or the return of postal article containing summons along with the endorsement by the relevant postal officer/employee of refusal to take delivery shall be declared by the court as due service.

  1. Service by Plaintiff

As per the provisions of Order V, Rule 9A, in addition to the service of summons under rule 9, the Court may, on an application by the plaintiff, permit such plaintiff to affect the service of summons upon the defendant.

If such service is refused, or if the person served refuses to sign the acknowledgement of service or for any reasons the summons were not served personally, then, the Court shall reissue such summons on an application of the party.

  1. Service on Agents

Order V, Rule 13 states that when a suit regarding business or work is filed against a person who does not reside within the jurisdiction of the Court issuing summons, then the summons being served on any manager or agent personally carrying out such business or work shall be considered god service.

Order V, Rule 14 states that when in a suit to obtain relief with respect to immovable property service cannot be made on the defendant or his agent empowered to accept such service then the service must be made on any agent of the defendant who is in charge of the property.

  1. Service on Adult Member of Family

According to the provisions of Order V Rule 15, where the defendant is absent from his residence at the time of service of the summons and there is no likelihood of him being found within a reasonable period of time and he has no agent empowered to accept service on his behalf, the service may be made to any adult member of the family residing with him.

  1. Service When Defendant Refuses to Accept Service

Rule 17 of Order V provides for the procedure when the defendant refuses to accept service or cannot be found after due and reasonable diligence. In such a case, the serving officer must affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain.

The serving officer shall thereafter return the original summons to the Court that issued it along with his report stating that he affixed the copy, the circumstances under which he did so, and the name and address of the person who identified the house and in whose presence the copy was affixed.

  1. Substituted Service

The provisions of Order V, Rule 20 provide for substituted service. Such a mode of service can be adopted by the Court when it is satisfied that the defendant is keeping away for the purposes of avoiding service or for any other reason the service cannot be made in an ordinary manner. This legal position was reiterated in Dhal Singh Kushal Singh v Anandrao Kakde[iv].

As per this rule, the Court shall order that a copy of the summons be affixed on some conspicuous place in the Courthouse and also on some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally works for gain.

The court can also order service by advertising in a daily newspaper that is circulated in the locality in which the defendant is known to have last resided, or carried on business or personally works for gain.

In Chandergupt Arora v Smt Shaheen Khan & Others[v], the Court was of the view that service through publication is an extraordinary step. Before adopting such a mode, the Court must be satisfied that either the defendant is purposefully avoiding the receipt of summons or it is not possible to serve the summons in an ordinary manner. The court also observed that in these days of mechanical life, the premises were locked at a certain point of time cannot be the sole ground for permitting substituted service.

  1. Service When Defendant Resides Within Jurisdiction of another Court

When the summons is to be served upon a defendant residing in the jurisdiction of another Court, then, as per Rule 21 of Order V, the Court issuing the summons may send it to the other Court through one of its officers or by post, or by Court-approved courier service or by fax message or email.

  1. Service on Defendant in Prison

Rule 24 of Order V of CPC states that when a defendant is confined in a prison, then, the summons may be sent or delivered to the officer in charge of the prison by post, courier, fax message, email or any other means as provided under the rules made by the High Court.

  1. Service of Summons Abroad

As per Rule 25 of Order V, when the defendant resides out of India and has no agent in India empowered to accept service, then, the summons shall be sent to the defendant at the place where he is residing and send the same to him by post, courier service, fax message, or email.

The Code of Criminal Procedure, 1973 provides for the following modes for service of summons:

  1. Personal Service

Section 62 of CrPC provides for the procedure of serving summons personally. Clause (1) of this section states that summons shall be served by a police officer, or by an officer of the Court or by any other public servant in accordance with the rules made by the State Government in question.

Clause (2) states that as far as practicable, the summons must be served personally on the person summoned.

Clause (3) states that the person on whom a summons is served must sign on the back of a duplicate if asked to do so by the serving officer.

  1. Service on Corporate Bodies and Societies

According to the provisions of section 63 of CrPC, summons on corporate bodies and societies may be effected by serving it on the secretary, local manager, or other principal managers of the corporation. The summons can be served by a letter sent through registered post to the chief officer of a corporation.  Here, the service will be said to be completed when the letters arrive in the ordinary course of post.

  1. Service when Person Summoned cannot be found

Section 64 of CrPC states that when a person who is summoned cannot be found after due diligence, then, a summons may be served by leaving a duplicate with an adult male member of his family residing with him. Such an adult male member must sign a receipt on the back of another duplicate if asked by the serving officer.

  1. Substituted Service

Section 65 provides for the procedure when service of summons cannot be effected after due diligence according to the manner provided under sections 62, 63 or 64. In such a case, the serving officer shall affix one of the duplicates of summons on a conspicuous part of the house or homestead in which the person summoned ordinarily resides. The Court may declare that summons has been duly served after making inquiries as it deems fit or order fresh service.

In Mac Charles (I) Ltd v Chandrashekar And Anr.[vi], Karnataka High Court stated that the mode of service prescribed under section 65 of CrPC is substituted service and is well recognized in law even for criminal trials. Such a mode of service can be resorted to when the service of summons to the accused as per the manner prescribed under sections 62, 63 or 64 cannot be effective. In other words, section 65 can only be resorted to when the other modes of service of summons have been exhausted.

  1. Service on Government Servants

Section 66 of CrPC provides for the service of summons to a person who is inactive service of the Government. In such a case, the Court shall send a duplicate of the summons to the head of the office in which such person is employed. Thereafter, the head office must serve it to the person summoned in the manner provided under section 62 of CrPC.

The head officer must then return the duplicate to the Court under his signature which shall be considered as evidence of due service.

  1. Service on Witness by Post

Section 69 states that notwithstanding anything in the previous sections of Chapter VI CrPC, the Court may in addition to and simultaneously with the issue of summons on a witness, direct that a copy of such summons be served by registered post addressed to the witness where he ordinarily resides or works.

Such summons will be considered duly served when an acknowledgement is signed by the witness or an endorsement is made by the postal office that the witness refused to take delivery.

Service through Electronic Means

The service of summons by electronic means is not a new concept in India. Time and again, courts have permitted the use of SMS or email to serve summons[vii]. It was in Central Electricity Regulatory Commission v National Hydroelectric Power Corporation Ltd. & Ors[viii] that the Hon’ble Supreme Court gave certain guidelines regarding service to deal with arrears in Courts. The apex Court stated that service may be affected by e-mail along with the ordinary mode of service.

In KSL & Industries Ltd v Mannalal Khandelwal & State of Maharashtra[ix], the Bombay High Court was of the view that a lot of time is spent in service of summons mainly due to the accused’s tendency to avoid summons. The Court said that all pragmatic methods of services must be adopted. The repeated summons must be sent by methods including email to ensure the service of summons.

For the first time, a Financial Commissioner Court in Haryana ordered the summons to be served via WhatsApp to prevent delay. The image of summons bearing the Court’s seal was directed to be sent to the opposite party’s number and the printout of delivery report on WhatsApp was to be considered as proof of delivery[x].

In Tata Sons Limited & Ors v John Does & Ors[xi], the Delhi High Court permitted the plaintiffs to serve the defendants by text message as well as through WhatsApp and by email.

In Kross Television India Pvt. Ltd v Vikhyat Chitra Production[xii], where the defendants were informed by message and e-mail and yet they denied service, the Court held that the purpose of service is to put the other party to notice and to give him a copy of the papers. The mode is irrelevant. Email and other modes are not formally approved as acceptable simply because there are limitations in proving service.

However, seeking usage of e-mail or WhatsApp is not a matter of right but the discretion of Court. In Bhim Rathke v Mr R. K. Sharma[xiii], the Court held that there are no High Court Rules authorizing the Courts to effect service in criminal cases through email.

Consequences of Avoiding and Preventing the Service of Summons

In civil cases, avoiding and non-compliance of service of summons can lead to an ex-parte decree against the defendant. On the other hand, in criminal cases where the matters are of a serious nature, the Court first issues bailable warrants. If these warrants are not complied with, non-bailable warrants will be issued. Even then a failure to appear before Court can lead to the initiation of proceedings under sections 82 and 83 of CrPC.

Avoiding and preventing the service of summons are also recognized as offences under the Indian Penal Code, 1860.

Section 172 of IPC provides that whoever absconds to avoid being served from any public servant shall be punished with simple imprisonment of one month or a fine of five hundred rupees or both. If the summons is to attend in person or by an agent or to produce any document in a Court of Justice, then the absconder shall be punished with simple imprisonment of six months or a fine of one thousand rupees or both.

Section 173 states that whoever in any manner intentionally prevents the serving on himself, or any other person from any public servant, or intentionally prevents the affixing to any place of summons, or intentionally removes form any place any such summons, or intentionally prevents the lawful making of any proclamation must be punished with simple imprisonment of one month or fine of five hundred rupees or both. If the summons or proclamation is to attend in person or to produce a document, he shall be punished with simple imprisonment of six months or a fine of one thousand rupees or with both.

Conclusion

Summons is a legal document issued by a Court to an individual involved in a legal proceeding to ensure his/her appearance. A summons is issued to inform and give notice to such an individual of his involvement in a legal proceeding and to offer him a chance to defend himself. This is done in consonance with the principles of natural justice. The Indian legal system ensures that no party is condemned unheard and takes precautions regarding the same. The Courts employ various means to ensure the service of summons so as to ensure the presence of the defendants/accused/witness, as the case may be.


[i] P. Ramanatha Aiyar, The Law Lexicon – The Encyclopedic Law Dictionary, 4th Edition

[ii] John Jane Smith Warton, Wharton’s Law Lexicon, 14th Edition

[iii] Order V, Code of Civil Procedure, 1908

[iv] Dhal Singh Kushal Singh v Anandrao Kakde AIR 1960 MP 378

[v] Chandergupt Arora v Smt Shaheen Khan & Ors 2009 (6) ALT 451

[vi] Mac Charles (I) Ltd. V Chandrashekar And Anr. 2006 (1) ALD Cri 44

[vii] Lokesh Vyas, Admissibility of Summons through WhatsApp in Legal Proceedings, iPleaders Blog, https://blog.ipleaders.in/summons-whatsapp-legal-proceedings/

[viii] Central Electricity Regulatory Commission v National Hydroelectric Power Corporation Ltd. 2010 (10) SCC 280

[ix] KSL & Industries Ltd v Mannalal Khandelwal & State of Maharashtra Criminal Writ Petition No. 1228 of 2004

[x] Ajay Surya, In a first, Court to Send Summons via WhatsApp, 8 April 2017, https://timesofindia.indiatimes.com/city/chandigarh/in-a-first-court-to-send-summons-via-whatsapp/articleshow/58074835.cms

[xi] Tata Sons Limited & Others v John Does & Others CS(COMM) 1601/2016

[xii] Kross Television India Pvt. Ltd v Vikhyat Chitra Production 2017 Bom 1433

[xiii] Bhim Rathke v Mr R. K. Sharma Cr. Revision No. 16/2018


Shalu Bhati

Shalu Bhati

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Shalu has incredible writing and reading skills and you will never miss a flow in her writings. Her favourite leisure activity is photography. She is also a poetess and a very humble person. In other words, she is as bright as a new penny. For any clarifications, feedback, and advice, you can reach us at editor@lawcirca.com

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