The processes to compel appearance are dealt with here: (1) Summons (section 61) and (2) Warrant (Section 70). Whether a summons or warrant should be issued in the first instance is determined by columns 4 and 5 of Schedule I. Where a summons has failed to secure attendance, it is open to the Court or Magistrate to issue a warrant (Section 87). In cases where a warrant fails to take effect, the procedure of (3) proclamation as absconder (Section 82) is taken; and if the absconder is not forthcoming, (4) his property is attached and sold (section 83 and 85). One more method of securing attendance is (5) the taking of bond with or without sureties (section 88).
BNSS Sec 63: Every summons issued by a Court under this Sanhita shall be,— (i) 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
(ii) in an encrypted or any other form of electronic communication and shall bear the image of the seal of the Court or digital signature.
Sec 61. Forms 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.
Comment
The summons is a milder form of process. It is either (a) for appearance or (b) for producing a document or a thing. A summons for appearance may be issued to an accused person or a witness.
BNSS Sec 64: . (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:
Provided 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 State Government may, by rules, provide.
(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:
Provided 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.
(3) 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.
Sec 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 there for on the back of the other duplicate.
Comment
This section deals with personal service. The mere showing to a witness of a summons is not sufficient service. The summons either should be left with the witness or should be exhibited to him and a copy of it delivered or tendered. The tender of the copy is sufficient service.
Where summons issued by a Court for examination of witnesses are sent by 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 summonses had been sent. The section ensures a two-fold safeguard for proper service: firstly, by providing that the service should be effected by a police officer or an officer of the Court who should see that the summons is served in the manner provided in the Coe and who should be able to report tot eh court as to the manner in which the summons was actually served and secondly, by authorizing the serving officer to obtain a signed acknowledgement of the service which should ordinarily be treated as very cogent evidence of service. Section 61 and 62 do not contemplate service of summons through registered post only in the case of service of summons on witnesses, service by post is contemplated, and no such service is provided for in case of maintenance proceedings. An order of maintenance passed ex parte without following the correct procedure for service of summons was liable to be set aside.
The procedure of issuing process to accused by post is not permissible.
BNSS Sec 65: (1) 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.
Explanation.—In this section, "company" means a body corporate and "corporation" means an incorporated company or other body corporate or a society registered under the Societies Registration Act, 1860.
(2) 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.
Section 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).
BNSS Section 66. 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.—A servant is not a member of the family within the meaning of this section.
Section 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 there for on the back of the other duplicate.
Explanation - A servant is not a member of the family within the meaning of this section.
Comment
Where personal service as provided for in section 62 of crpc cannot be affected, the law allows service on some adult member of the family, but not on a servant. To justify such service, it should be shown that proper efforts were made to find the person summoned.
When police were either unable to or did not serve summons on the witnesses whom the accused wanted to examine, the accused was given the right to seek assistance of the Court to enforce the attendance of those witnesses. Closing the evidence without permitting him to take steps to enforce the attendance of those witnesses amounted to denial of fair opportunity to put forth his case.
BNSS Section 67. 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.
Section 65: Procedure when service cannot be effected as before provided - If service cannot be 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.
Comment
Where personal service cannot be effected under section 62 and extended service under section 64 cannot be secured, the law permits a substituted service. The procedure provided in this section cannot be made use of, unless service in the manner mentioned in section 62, 63 and 64 cannot be effected by the exercise of due diligence. The Court may, in such a case, either declare the summons to have been duly served or direct fresh service. The summons can be served by affixing its copy to the outer door of the house in which the person summoned ordinarily resides.
BNSS Section 68. (1) 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.
(2) Such signature shall be evidence of due service
Section 66 - Service on Government servant - —(1) 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.
Comment
This section applies to all Government servants, including the police, but summons must be issued by a Court. It would not apply where summons is issued by a police officer in exercise of his powers of investigation.
BNSS Section 69: 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 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.
By no norms of interpretation can it be suggested that a Court has no way to reach person living outside its jurisdiction limits, other than the one prescribed in the section.
BNSS Section 70: (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 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.
(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.
(3) All summons served through electronic communication under sections 64 to 71 shall be considered as duly served and a copy of such electronic summons shall be attested and kept as a proof of service of summons.
Section 68: 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 and returned to the Court.
Comment
When summons was received by witness, omission of signature by the presiding officer was held not to be a defect in procedure.
BNSS Section 71: . (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 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:
(2) 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 had been duly served.
Section 69: 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 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, the Court issuing the summons may declare that the summons has been duly served.
STATE AMENDMENT Andaman and Nicobar Islands U.T. In section 69 of the Code of Criminal Procedure, 1974 in is application to the Union Territories of the Andaman and Nicobar Islands and Lakshdeep,—
(a) in sub-section (1), after the words “to be served by registered post” the words “or of the substance thereof to be served by wireless message” shall be inserted.
(b) in sub-section (2), for the words “that the witness refused to take delivery of the summons” the words “or a wireless messenger that the witness refused to take delivery of the summons or the message, as the ease may be” shall be substituted. [Vide Andaman and Nicobar Islands U.T. Act 6 of 1977, s. 2.]
Comment
This provision intends to avoid delay in the service of summons on witnesses by providing for service of such summons by post in addition to, or simultaneously with, the issue of summons in the usual way. The section is confined to service on witnesses only.
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