Law and You >Procedural Laws > CrPC > Summons: (Ss. 61 – 69 of CrPC)
Chapter VI of the Code of Criminal Procedure 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.
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
A – Summons (Sections 61 – 69)
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.
Section 61: The Code of Criminal Procedure, 1973:
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.
In Norode Baran Mukherjee v. State of West Bengal, 1976 Cr LJ 370 (Cal-DB) case, the Court observed that Section 61 of this Code deals with forms of summons and nothing to do with the authority of the Court to issue summons.
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 61 of The Code of Criminal Procedure, 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 of the rule directed; and
- it must bear the seal of the court.
The forms of the summons to an accused person is given in Schedule II Form No. 1 of the Code.
| FORM NO.1 SUMMONS TO AN ACCUSED PERSON (See section 61) |
| To (name of accused) of (address) WHEREAS your attendance is necessary to answer to a charge of (state shortly the offence charged), you are hereby required to appear in person (or by pleader, as the case may be) before the (Magistrate) of (Name of the Court) on the day (Date) of (Month) (Year) Herein fail not. Dated, this day (Date) of, (Month) (Year) (Seal of the Court) (Signature) |
The word ‘issued’, is very important. The issuance of summons is required. In Driver v. 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.
Methods of Serving Summons:
- By personal service under Section 62
- By service on corporate bodies and societies under Section 63
- By extended service when a person summoned cannot be found under Section 64
- By Service on Government servant under Section 66
- By Service of summons outside local limits under Section 67
Section 62: The Code of Criminal Procedure, 1973:
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.
Who can serve the summons?
- a police officer, or
- by an officer of the Court issuing it, or
- other public servant.
Procedure to Serve Summons:
- Prepare Summons considering its all essentials as per Section 61 and as given in Schedule II Form 1 of CrPC
- 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.
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.
Section 62 of the Code do not contemplate issuance of summons to accused by post, though permissible to witness.
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.
In State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 case, the Court held that when a power is conferred then same has to be exercised in the mode prescribed in the statute and in no other way.
Section 63: The Code of Criminal Procedure, 1973
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 ).
Generally, the meaning of the word ‘corporate’ in this Section of the Criminal Procedure Code means an incorporated company or any other corporate body. This also includes a society that is registered under the Societies Registration Act of 1860. Therefore, societies may not be a body that is formally incorporated although, in Section 63, it is mentioned that societies fall within the scope of this law.
To whom such summons can be served?
- secretary,
- local manager or
- other principal officer of the corporation,
Summons under this Section can also be served by letter sent by registered post, addressed to the chief officer of the 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.
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.
Section 64: The Code of Criminal Procedure, 1973
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.
The personal service under Section 62 of the Code 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 64 of the Code, 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, 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. The Court further held that offer to a male member not sufficient service within the meaning of Section 64 of CrPC.
Section 64 of the Code do not contemplate issuance of summons to accused by post, though permissible to witness.
Section 65: The Code of Criminal Procedure, 1973
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.
To serve summons under Section 65, the police officer should justify that he had taken proper efforts to serve it as prescribed in Section 62 and then Under 64 and failed to serve. Thus the use of Section 64 can be effected only if the serving officer is unable to serve under Section 62 and 64. If the summons is not served it is a duty of the court to see that it is served. Under Section 65 of the Code, 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 and extended service under Section 64 cannot be secured, the law permits substituted service.
Section 65 of the Code do not contemplate issuance of summons to accused by post, though permissible to witness.
Section 66: The Code of Criminal Procedure, 1973
Service on Government servant:
(1) Where the person summoned is in the active service of the Government, the Court issuing the summons shall ordinarily sent 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.
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 62 of the Code. 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.
Section 67: The Code of Criminal Procedure, 1973
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
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.
Section 68: The Code of Criminal Procedure, 1973
Proof of service in such cases and when serving officer not present:
(1) 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 62 or section 64) 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.
(2) The affidavit mentioned in this section may be attached to the duplicate of the summons are returned to the Court
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 62 or section 64 of the Code. 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.
Section 69: The Code of Criminal Procedure, 1973
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.
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.