Law and You >Procedural Laws > BNSS > Serving Summons (Ss. 63 to 71 of BNSS)
Chapter VI of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the processes to compel appearance of the accused or witness in the court. The Court can compel the person to be present in the Court using summons, warrant of arrest, or proclamation and attachment. In this article let us discuss provisions related to service of summons in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Summons provides legal notice to a party about a lawsuit. It is the first official notice that a defendant receives to notify him or her that he or she is being sued. In some instances, the summons may specify a specific court date, but in others, it does not. The Summon shall indicate the name of the Court before which the person is required to remain present along with the details of the case and the date on which the person is required to appear before the Court. Thus, summons play a crucial role in upholding the principles of natural justice, giving individuals the chance to defend themselves and provide their version of events. It also facilitates the smooth progression of legal proceedings by ensuring the presence of the relevant parties.
Process is defined as any means which is used by court to compel appearance of a defendant before it. The different modes to compel appearance of a person in Court are by issuing:
- Summons
- Warrant of Arrest
- Proclamation and Attachment
What is Summons?
Summons is a legal document issued from the office of the court of Justice calling upon the person to whom it is directed to attend before a Judge or officer of court at a specified time for a certain purpose. It is a milder form of process. A summons is served when an aggrieved party initiates a case against the defendant (accused). It can be issued to any person directly or indirectly involved in the case. It is issued in the form of a legal document with details such as the name of the individual who lodged the complaint and the name of the accused. The office of the court, police officer or any other public servant delivers the summon to the defendant. However, summon, which is issued to the witness, is delivered by the registered post. If on the serving of the summons, the person against whom it had been issued does not appear in the court then this will be taken as a Contempt of Court and shall be punished accordingly.
Need of Issuing Summons:
- To inform a person, when a legal action is taken against him i.e. to inform accused.
- To inform a person that he is required to appear in the court as a witness in a proceeding at specified time.
- To inform person for producing a document or thing.
Form of Summons (S. 63 of BNSS):
According to Section 63 of the Bharatiya Nagarik Suraksha Sanhita, 2023 every summons issued by a Court under this Sanhita 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; or in an encrypted or any other form of electronic communication and shall bear the image of the seal of the Court or digital signature.
Essentials of Summons:
The summons should be specific and clear in its terms regarding information such as the title of the Court, the place at which, the day and time of the day when the attendance of the person summoned are required. The essentials of summons, issued by the court under Section 63 of The Bharatiya Nagarik Suraksha Sanhita, 2023, are:
- It must be in writing;
- It must be in duplicate form;
- It must be signed and sealed by the presiding officer of the court or such other officer authorized by the High Court;
- It must mention the time and place where attendance of person summoned required; and
- it must bear the seal of the court.
- If the summon is in an encrypted or any other form of electronic communication then it shall bear the image of the seal of the Court or digital signature.
Format of Summons:
The forms of the summons to an accused person is given in Schedule II Form No. 2 of the Sanhita.
In Norode Baran Mukherjee v. State of West Bengal, 1976 Cr LJ 370 (Cal-DB) case, the Court observed that Section 61 of CrPC (S. 63 of BNSS) deals with forms of summons and nothing to do with the authority of the Court to issue summons.
In State v. Driver Mohmed Valli, (1961) 2 Guj LR 222 case, the Court held that the mere making of an order for the issue of summons is quite different from the issuance of summons.
Summons How Served:
Summons can be served by following methods:
- By personal service under Section 64 of BNSS
- By service on corporate bodies and societies under Section 65 of BNSS
- By extended service when a person summoned cannot be found under Section 66 of BNSS
- By Service on Government servant under Section 67 of BNSS
- By Service of summons outside local limits under Section 68 of BNSS
Serving Summons Personally under S. 64 BNSS:
- According to Section 64(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.
- The Proviso attached to Section 64(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down that the police station or the registrar in the Court shall maintain a register to enter the address, email address, phone number and such other details as the State Government may, by rules, provide.
- According to Section 64(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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
- The Proviso attached to Section 64(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down that summons bearing the image of Court’s seal may also be served by electronic communication in such form and in such manner, as the State Government may, by rules, provide.
- According to Section 64(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 every person on whom a summons is so served personally shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.
Who can serve the summons under S. 64 of BNSS?
- a police officer, or
- by an officer of the Court issuing it, or
- other public servant.
Procedure to Serve Summons under S. 64 of BNSS:
- Prepare Summons considering its all essentials as per Section 63 and as given in Schedule II Form 2 of BNSS
- A police officer or an officer of the Court issuing the summons or other public servant has to serve it to the person summoned if practicable personally;
- The serving officer should explain it to the person summoned.
- Its duplicate copy is to be given to the person summoned.
- A receipt of the summons by the person summoned should be confirmed by his signature on the back of the other duplicate.
- Summons bearing the image of Court’s seal may also be served by electronic communication in such form and in such manner, as the State Government may, by rules, provide.
- Police station or the registrar in the Court shall maintain a register to enter the address, email address, phone number and such other details of the person in whose name the summons is issued as the State Government may, by rules, provide.
In Karsanlal Danatram (1868) 5 BHRC (Cr C) 20 case, the Court held that the mere showing of a summons to a witness is not sufficient to service. Either summons should be left with the witness or exhibited to him and a copy of it delivered or tendered.
In Queen v. Punamalai, (1882) 5 Mad 199 case, the Court held that the tender of a copy of the summons to the witness is sufficient service.
In Nav Maharashtra Chakan Oil Ltd. v. Shivshakti Poultry Farm, (2002) 3 BC 403 case, the Court held that the dismissal of the complaint for non-payment of RPAD charges for issuing summons to the accused by post would be illegal.
In Satya Securities v. Uma Erry, 2002 Cr LJ 3714 (HP) case, the Court held that service on accused through his counsel is not permissible and as such on the failure of the accused to appear, a warrant would not be issued; the procedure would be illegal.
Service of Summons on Corporate Bodies, Firms, and Societies (S. 65 of BNSS):
- According to Section 65(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 service of a summons on a company or corporation may be effected by serving it on the Director, Manager, Secretary or other officer of the company or corporation, or by letter sent by registered post addressed to the Director, Manager, Secretary or other officer of the company or 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.
- In this section, “company” means a body corporate and “corporation” means an incorporated company or other body corporate registered under the Companies Act, 2013 or a society registered under the Societies Registration Act, 1860.
- According to Section 65(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 service of a summons on a firm or other association of individuals may be effected by serving it on any partner of such firm or association, or by letter sent by registered post addressed to such partner, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
To whom Summons under S. 65 of BNSS can be served?
- Director; or
- Manager; or
- Secretary; or
- Other officer of the company; or
- Corporation Secretary.
Summons under this Section can also be served by letter sent by registered post, addressed to the Director, Manager, Secretary or other officer of the company or corporation in India. In such a case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
Service of a summons on a firm or other association of individuals may be effected by serving it on any partner of such firm or association. In this case the service of summons on a firm or other association of individuals by letter sent by registered post addressed to such partner. In such a case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
In Anil D Ambani v. State of Bihar, 2006 (4) Pat LJR 571 (Pat) case a summons was issued to the Managing Deputy Director of a company. The Court held that when a corporate body is an accused before the Court, the summons for appearance of the corporate body has to be sent in the name of the corporate body itself and the Court held the service illegal.
In Central Bank of India v. Delhi Development Authority, 1981 Cr LJ 1476 (Del) case, the Court held that with regard to service of summons on a corporation, service of the same on its branch manager shall be deemed to be a service on the bank itself.
Service When Persons Summoned Cannot be Found (S. 66 of BNSS):
- According to Section 66 of the Bharatiya Nagarik Suraksha Sanhita, 2023 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 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 attached to Section 66 of the Bharatiya Nagarik Suraksha Sanhita, 2023 makes it clear that a servant is not a member of the family within the meaning of this section.
The personal service under Section 64 of the Sanhita is the best service. But if irrespective of proper and sincere efforts, the serving officer failed to deliver the summons to the person summoned personally then under Section 66 of BNSS, it can be delivered to some other member of the family, who is satisfying following conditions
- He is adult (Age more than 18 years)
- He is a male
- He is not insane or intoxicated
- He should be residing with the person summoned.
A duplicate copy of the summons should be left with the person receiving it. Explanation clearly mentions that a servant is not a member of the family within the meaning of this section.
In Hemendra Nath v. Archana, 1971 CrLJ 817 (Cal) case, the Court held that to justify service under Section 64 of CrPC (66 of BNSS), it should be shown that proper efforts were made to find the person summoned.
In Ram Chandra Mishra v. State of Orissa, 1995 (4) Crimes 54 (56) (Ori) case, the Court held that a temporary absence of the person summoned from the home is not sufficient to justify service under Section 64 of CrPC (66 of BNSS). The Court further held that offer to a male member not sufficient service within the meaning of Section 64 of CrPC (66 of BNSS).
Section 66 of the Sanhita do not contemplate issuance of summons to accused by post, though permissible to witness.
Procedure when Service Cannot be Effected as Before Provided (S. 67 of BNSS):
- According to Section 67 of the Bharatiya Nagarik Suraksha Sanhita, 2023 if service cannot by the exercise of due diligence be effected as provided in section 64, section 65 or section 66, 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.
To serve summons under Section 67, the police officer should justify that he had taken proper efforts to serve it as prescribed in Section 64 and then Under 66 and failed to serve. Thus the use of Section 66 can be effected only if the serving officer is unable to serve under Section 64 and 66. If the summons is not served it is a duty of the court to see that it is served. Under Section 67 of the Sanhita, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead where the person summoned resides ordinarily.
After that Court will make such enquiries as it thinks fit upon which it may either declare that summons has been duly served or will order fresh service in a manner as it considers proper.
In Mac Charles (I) Ltd. v. Chandrasekhar, 2005 Cr LJ 3700 (3705) (Kan-DB) case, the Court held that when personal service cannot be effected under Section 62 (S. 64 of BNSS) and extended service under Section 64 (S. 66 of BNSS) cannot be secured, the law permits substituted service.
Section 67 of the Sanhita do not contemplate issuance of summons to accused by post, though permissible to witness.
Service on Government Servant (S. 68 of BNSS):
- According to Section 68(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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 64, and shall return it to the Court under his signature with the endorsement required by that section.
- According to Section 68(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 such signature shall be evidence of due service.
When a Government Servant is to be summoned and is in active service of the Government, then the summons in duplicate shall ordinarily be sent to the Head of the office in which such person is employed. Now, the head of the office is bound to serve it to such person as specified under 64 of the Sanhita. And after obtaining signature on the back of the duplicate from such person, he has to return the signed copy with endorsement to the Court.
Service of Summons Outside Local Limits (S. 69 of BNSS):
- According to Section 69 of the Bharatiya Nagarik Suraksha Sanhita, 2023 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.
When a Court wants to summon someone beyond its local jurisdiction then the Court should send such summons in duplicate a Magistrate under whose jurisdiction the person resides. The Magistrate under whose jurisdiction the person resides issue it to concerned police officer to serve it.
Proof of Service in Such Cases and When Serving Officer not Present (S. 70 of BNSS):
- According to Section 70(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 when a summons issued by a Court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by section 64 or section 66) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.
- According to Section 70(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 the affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.
- According to Section 70(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 all summons served through electronic communication under sections 64 to 71 (both inclusive) shall be considered as duly served and a copy of such summons shall be attested and kept as a proof of service of summons
Sometimes the jurisdiction in which the person resides lies very much away from the jurisdiction of the Court who has issued summons, that the serving officer of the jurisdiction in which the person resides is unable to attend the trials. In such a case he can make an affidavit saying that he has served the summons in the manner provided by section 64 or section 66 of the Sanhita. This affidavit with duplicate signed copy of the summons shall be considered as admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.
Service of Summons on Witness by Post (S. 71 BNSS):
- According to Section 71(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 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 electronic communication or by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.
- According to Section 71(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 when an acknowledgement 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 or on the proof of delivery of summons under sub-section (3) of section 70 by electronic communication to the satisfaction of the Court, the Court issuing summons may deem that the summons has been duly served.
The Summons to witness can be served by post. It can also be served through registered post. When postman is delivering it to such person and he refused to accept it and the postman put a remark on it that the receiver refused to accept, then it is considered as evidence and the issuing Court may declare that the summons is duly served.
Conclusion:
Summons under BNSS are issued by a court to compel the attendance of a person as a witness or accused in a criminal case. It serves the purpose of ensuring that individuals involved in legal proceedings appear before the court to facilitate fair and just adjudication. Upon receiving a summons, individuals are legally obligated to appear before the court on the specified date and time. Failure to comply can lead to legal consequences, including issuance of warrants for arrest. Summons are a part of the due process of law and are essential for maintaining the rule of law. They provide an opportunity for individuals to participate in legal proceedings, present their side of the case, and ensure their rights are protected.
The issuance and service of summons are governed by procedural safeguards to prevent misuse or arbitrary exercise of power. This includes adherence to proper legal procedures and rights of the individuals summoned. Summons are crucial during both investigation and trial stages. They enable the gathering of evidence, examination of witnesses, and ensure the presence of the accused for fair trial proceedings.
Summons are fundamental to the functioning of the criminal justice system. They uphold the principles of fairness, accountability, and transparency in legal proceedings, thereby contributing to the overall integrity of the judicial process. In essence, summons are a cornerstone of procedural justice, ensuring that all parties involved in criminal cases have the opportunity to present their case and participate in legal proceedings effectively.