779 March 12 2023

Everything you need to know about "Summons" as per Indian Laws by Adv. Alok Kumar

Usually when summons served to common people they have several questions like "what is next step?" "Summons kya hota hai?" "Summons ka reply kese karte hai?" "Summons ki date per jana padega kya?" "Kya mere vakil ko bhejna thik hoga?" "Kya mera jana jaruri hai?" "kya police arrest kar sakti hai?" well all these questions answered in this article by the Advocate Alok Kumar. 
   
When the Court required someone's personal attendance before the Court for proceedings to be completed effectively, this can be achieved by issuing summons and warrant. Now the real question comes whether the Court issues summons or warrant at first instance is determined by the offence either cognizable or not and bailable or non bailable. Usually the Court first issue summons if a summons failed to secure attendance of person, it is open to the Court or Magistrate to issue a warrant. 

Not an end here, if a warrant failed to secure attendance of the person then the Court can resort to issue process for proclamation as absconder. If that person still failed to appear before the concerned Court, the Court may proceed with attachment of his/her property and later sold his/her property. One more method of securing attendance is the taking of bond with or without sureties. 

Well every summons issued by the Court under the Criminal Procedure Code,1973 (Cr.P.C.) shall be in writing, in duplicate, signed by the Presiding Officer (Judge) of such Court or by such officer as the High Court may, from time to time, by the rule direct, and shall bear the seal of the Court. What is mentioned in summons is that summons should be clear and specific in its terms as to the title of the Court, the place at which, the day and the time of the day when, the attendance of the person summoned is required, and it should go on to say that such person is not to leave the Court without permission, and if the case in which he has been summoned is adjourned, must confirm the next date of hearing (N.D.O.H.)

Let's see some of the important sections as per the Criminal Procedure Code,1973  about Summons and Warrant.

Section 61: This section talks about forms of summons and there are two forms of summons for accused such as Form 1 for serious crime and Form 30 for a pitty offence.

Section 62: This section talks about procedure, how summons to be served upon the accused or witness. This section clearly said Summons must be served by the police officer or the other public servants subject to state rules. It also explains that summons duplicate shall be signed by the person being summoned which is called signed acknowledgement. Although summons sent to witnesses by the post instead of sending them out as provided in this section, no inference can be legitimately drawn against the accused from the fact that there was no response from any of the witnesses to whom the summons had been sent. In case of Guthikonda Sri Hari Prasad Rao Vs. Guthikonda Lakshmi Rajyama in 1992, Hon'ble Supreme Court held that an order of maintenance passed "ex parte" without following the correct procedure for service of summons was liable to be set aside. Also in case of Nav Maharashtra Chakan Oil Mil Ltd Vs. Shivashakti Poultry Farm in 2002, Hon'ble Supreme Court held that procedure of issuing process to accused by post is not permissible.

Section 63: This section talks about procedure, how summons served upon the corporate body or societies. Summons may be served on the secretary or manager of the corporation or societies or letter sent by registered post, addressed to Chief officer of the corporation in India.

Section 64: This section is crucial because many times the accused misused this section with the help of bad police officers. This section talks about what procedure to follow when the person summoned cannot be found at the location mentioned in the summons. As per this Section, when a person summoned is not found, serving police officers leaving one of the duplicates with some adult male member of his family residing with him but it doesn't mean police officer cannot give one of the duplicates to adult  female member  of his family in absence of any adult male member, and member shall sign the acknowledgement. To be clear that this section doesn't allow it to be served on a servant because the servant is not a member of the family.

Section 65: This section talks about the procedure when service cannot be possible. If no one appears or present at the location mentioned in the summons then the serving officer or police officer shall affix one of the duplicates of the summons to some conspicuous part of the house or address in which the person summoned ordinarily resides. Most importantly to use this section one must with due diligence exhausted all the procedures mentioned in section 62, 63 and 64. After the process under this Section complete by affixing summons duplicate on wall, the Court either declares the summons duly served or order fresh service.

Section 66: This section talks about summons to Government servants which means this section only deals with government employees. This section explains the procedure where the person summoned is in the active service of the Government and the Court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed,  such head shall serve the summons in the manner provided by section 62 and shall return it to the Court under his signature. Point to be noted that this section applies to all Government servants including the police.

Section 67: This section talks about the procedure to follow when the summoned person is not in the Court  jurisdiction, in such case it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides.

Section 68: This section talks about procedures to be followed in such cases where a serving officer is not present or resides in a far distant place. When the serving officer is in another state, he may return the duplicate of summons with an affidavit mentioning that summons duly served to the person summoned.

Section 69: This section deals with witnesses only. Under this section, the Court in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by a registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain. Even when a postal employee made an endorsement that the witness refused to take delivery of the summons, the Court issuing the summons declare that the summons has been duly served. So, refusing to take delivery is not a good idea.

As per Criminal Procedure Code, 1973 Sections 61 to 69 defined as follows:

Section 61 in The Code Of Criminal Procedure, 1973
61. Form of summons. Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court.

Section 62 in The Code Of Criminal Procedure, 1973
62. Summons how served.
(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

Section 63 in The Code Of Criminal Procedure, 1973
63. Service of summons on corporate bodies and societies. Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post. Explanation.- In this section" corporation" means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860 (21 of 1860 ).

Section 64 in The Code Of Criminal Procedure, 1973
64. Service when persons summoned cannot be found. Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. Explanation.- A servant is not a member of the family within the meaning of this section.

Section 65 in The Code Of Criminal Procedure, 1973
65. Procedure when service cannot be effected as before provided. If service cannot by the exercise of due diligence be effected as provided in section 62, section 63 or section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.

Section 66 in The Code Of Criminal Procedure, 1973
66.
(1) Service on Government servant. Where the person summoned is in the active service of the Government the Court issuing the summons shall ordinarily send it in
duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the Court under his signature with the endorsement required by that section.
(2) Such signature shall be evidence of due service.

Section 67 in The Code Of Criminal Procedure, 1973
67. Service of summons outside local limits. When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.

Section 68 in The Indian Penal Code
68. Imprisonment to terminate on payment of fine.—The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.

Section 69 in The Code Of Criminal Procedure, 1973
69.
(1) Service of summons on witness by post. (1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.
(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the summons may declare that the summons has been duly served.

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This Article is written by Adv. Alok Kumar practicing advocate in Delhi High Court, for any kind of suggestion you may contact here advocatealok21@gmail.com and 9953184869.

Author

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Adv. ALOK KUMAR
Advocate Serving Delhi NCR
Delhi High Court & District Courts
LL.B.▪︎Faculty of Law▪︎Delhi University


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