By Ayushi Budholia
Published on: April 24, 2022 at 22:51 IST
INTRODUCTION
The principle of natural justice provides for Audi Alteram Partem which provides for hearing both the sides, i.e., no person should be condemned unheard. This principle of natural justice forms the basis from where the concept on summons developed.
A summons is a document issued by the Court to a person or an entity informing them about their involvement in a legal proceeding. After a plaint is duly instituted, the Court send an intimation to the other party to appear before the Court and defend it.
There are provisions related to in both the Code of Civil Procedure, 1908 (CPC) as well as the Code of Criminal Procedure, 1973 (CrPC).
Generally, a summons must clearly mention the purpose for sending it, signature of the Judge and seal of the Court, specified date of appearance of the defendant, copy of plaint, and appropriate directions.[1]
HOW CPC DEALS WITH SUMMONS?
Under the Code of Civil Procedure, 1908 Section 27 to Section 32 along with Order V of the Code deals with the Summons.
Section 27 – Section 32 of the Code of Civil Procedure, 1908 provides as follows :
- Section 27: Summons to defendants
Section 27 of the Code of Civil Procedure, 1908 provides that after a suit has been duly instituted, the Court should issue a summon to the defendant to appear and answer the claim. The summon should be served on such day not beyond thirty days from the date of institution of the suit.
- Section 28: Service of summons where defendant resides in another state
Section 28 of the Code of Civil Procedure, 1908 provides for the procedure to be followed when the defendant is residing in another state. It provides that the summons should be served through the Court of that state according to the rules in force in the state in which it is sent to.
- Section 29: Service for foreign summonses
Section 29 of the Code of Civil Procedure, 1908 states that –
“Summonses and other processes issued by—
(a) any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extend, or
(b) any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or
(c) any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply, may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts”
- Section 30: Power to order discovery and the like
Section 30 of the Code of Civil Procedure, 1908 provides that the Court have the power to make orders either on its own motion or on application of party relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid and order any fact to be proved by affidavit.
- Section 31: Summons to witness
Section 31 of the Code of Civil Procedure, 1908 provides that where a witness is required to appear before the court to give evidence or to produce documents or other material objects, then summon is to be sent to such person according to Section 27, 28 and 29 of the Code of Civil Procedure, 1908.
- Section 32: Penalty for default
If a Summon is sent to any person who does not comply with it. The Court can compel the attendance of such person by issuing a warrant for his arrest; attach and sell his property; impose a fine of not exceeding five thousand upon him; order him to furnish security for his appearance and in default commit him to the civil prison.
WHAT ARE THE MODES OF SERVICE OF SUMMONS?
The modes of Service Summons are given under Rule 9, 9A, 10-16, 17, 18, 19 and 20 of Order V of the Code of Civil Procedure, 1908.
- Delivery of summons by Court [Order V Rule 9]
- Service by plaintiff (Dasti Summons) [Order V Rule 9A]
- Personal or Direct Service [Order V Rule 10-16, 18]
- Substituted Service [Order V Rule 17, 19-20]
- Service by Post.
HOW CrPC DEALS WITH SUMMONS?
Under the Code of Criminal Procedure, 1973 Section 61 to 69 deals with issuance and service of summons.
- Section 61: Form of Summon
The Section 61 of the Code of Criminal Procedure, 1973 lays down four essentials of summons.
- It should be in writing.
- It should be served in duplicate.
- It should be 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.
- It shall bear the seal of the Court.
- Section 62: Summons how served
The Section 62 of the Code of Criminal Procedure, 1973 provides that summons shall be served by the police, or subject to rules made by the State Government on this behalf, by an officer of the court or other public servant. If practicable, the summons shall be served personally on the person summoned who shall sign a receipt.
- Section 63: Service of summons on corporate bodies and societies
The Section 63 of the Code of Criminal Procedure, 1973 provides that a summon on the corporate can be served on its secretary, local manager or other principal officer of the corporation. It further provides that the summon can be served on 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.
- Section 64: Service when persons summoned cannot be found
The Section 64 of the Code of Criminal Procedure, 1973 provides that where even after due diligence cannot be found, then 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.
- Section 65: Procedure when service cannot be effected as before provided
The Section 65 of the Code of Criminal Procedure, 1973 provides for the procedure when service of summon cannot be effected in accordance with Section 62, Section 63 and Section 64, the duplicate of summons shall be affixed to some conspicuous part of the house in which the person summoned resides. This is also known as substituted service of summons.[2]
- Section 66: Service on Government servant
The Section 66 of the Code of Criminal Procedure, 1973 provides that where the summons is to be served on a Government Servant, a duplicate of the summon shall be send to the head of the department in which such person is employed.
- Section 67: Service of summons outside local limits
The Section 67 of the Code of Criminal Procedure, 1973 provides that when the person to be summoned resides outside the local jurisdiction of the state, then such summon shall be sent in duplicate to a Magistrate within whose local jurisdiction, the person resides.
CASE LAWS
- Satish Corporation Company Vs Allahabad Bank[3]
Requirement of the Court to record its satisfaction
In this case, the Madhya Pradesh High Court observed that while passing order under Order V Rule 20 of the Code of Civil Procedure, 1908 the Court is required to record its satisfaction that there were enough evidences to show that the defendant was keeping out of the way for the purpose of avoiding service or in the alternative it is required to record its satisfaction that for any other reasons the summons could not be served in the ordinary way.
- Sunil Poddar & Ors. Vs Union Bank of India[4]
Summons served through newspaper
In this case, the court observed that were summons is served by publication in newspaper, the plea of the defendant that he has not read the newspaper is not open to the party.
- Basant Singh and another Vs Roman Catholic Mission[5]
Publication of summon in newspaper other than the one ordered by the Court
In this case, the Court observed that where the publication of summon is made by the plaintiff in a newspaper other than the one ordered by the Court, such publication will not result to invalidate the effect of substituted service.
- Central Electricity Regulatory Commission Vs National Hydroelectric Power Corporation Ltd[6]
Admissibility of emails to serve summons
In Central Electricity Regulatory Commission case, the Court permitted the service of summons and legal notices through emails.
- In Re: Cognizance for Extension of Limitation[7]
Service of notices/summons/ document via WhatsApp and Telegram
In this case, the Supreme Court for the first time allowed the admissibility of Service of notices and summons through Whatsapp and Telegram in addition to email.
The Court observed that in such a case, the blue ticks are very much required to be received. In absence of blue ticks summon is not considered to be duly served as it is not possible to prove the service via blue tick.
CONCLUSION
Under the Indian Law, both Code of Civil Procedure, 1908 (CPC) and the Code of Criminal Procedure, 1973 (CrPC) provides for the provisions related to summons.
The Section 27 to Section 32 and Order V under the CPC and Section 61 to Section 69 under the CrPC provides for the issuance and service of summons. Further, with the development in technological changes, the Court have also allowed the admissibility of summons through emails, WhatsApp and telegram.
ABOUT THE AUTHOR
Ayushi Budholia is a third year B.A.LL.B student from Lloyd Law College, Greater Noida.
REFERENCES
- Patna Law College, “Issue and Service of Summons”, available at: http://www.patnalawcollege.ac.in/econtent/ISSUE%20AND%20SERVICE%20OF%20SUMMONS.pdf (last visited on March 30, 2022). ↑
- WritingLaw, “WHAT IS SUMMONS UNDER THE CRIMINAL PROCEDURE CODE”, available at: https://www.writinglaw.com/summons-under-crpc/ (last visited on March 30, 2022). ↑
- Satish Corporation Company Vs Allahabad Bank, AIR 1999 MP. ↑
- Sunil Poddar & Ors. Vs Union Bank of India, (2008) 2 SCC 326. ↑
- Basant Singh and another Vs Roman Catholic Mission, (2002) 7 SCC 531. ↑
- Central Electricity Regulatory Commission Vs National Hydroelectric Power Corporation Ltd, (2010) 10 SCC 280. ↑
- In Re: Cognizance for Extension of Limitation, Suo Motu Writ (Civil) No. 3 of 2020. ↑