By Radhika M
The Covid-19 pandemic brought a lot of changes in the procedures of Court. The Courts have been conducting virtual sessions for more than a year now. As a part of such change, the Court also revisited the mode of service of summons.
What is a summons?
A summons is a notice issued to a person by a Court asking him/her to appear before the Court, on the date and place specified therein.
It is normally issued to a party in the suit and witnesses involved. The purpose of summons originates from the principle of natural justice “audi alteram partem”. No one shall be condemned unheard and everyone shall be afforded with a chance to prove their case before the Court of law.
Section 61 to 69 of the Code of Criminal Procedure deal with summons.
Every summons shall be in writing, in duplicate, signed by the presiding officer of the Court and bearing the seal of the Court. A summons under the Code shall be served by a police officer or by any other authorised officer. The summons shall be served to the summoned person in all practicable cases and the recipient of the summons shall acknowledge the same.
When the person who is summoned cannot be found, it shall be served to some adult male member of the family. If it is not possible to deliver the summons to the summoned person or his family member, then it shall be affixed in a conspicuous part of the house where the summoned person ordinarily resides.
If a summons is to be delivered to a person who resides outside the local jurisdiction of the Court which summons him, it shall be sent in duplicate to the Magistrate in whose jurisdiction he resides.
Section 27 to 32 and Order V of the Code of Civil Procedure deal with summons and discovery.
When a suit has been instituted, summons shall be issued to the defendant who shall appear before the Court and answer the claims. He may either appear himself or authorise a pleader to represent him on the date of hearing.
Every summons shall be accompanied by a copy of the plaint. The summons shall be delivered or sent to a proper officer of the Court to be served by him or one of his subordinates or to such courier services as are approved by the Court.
The service of summons shall be affected by delivering or transmitting a copy thereof by registered post acknowledgement due, to the defendant or his agent. It may also be sent through speed post or courier service approved by the High Court.
Sub rule (3) of the rule 9 in Order V states that,
“The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court”
So, the CPC provides for the service of summon through any other means of transmission of documents including electronic mail or fax message.
How the pandemic remoulded the Court procedure
When the pandemic hit, Supreme Court changed its mode of hearing to virtual. Then we saw Supreme Court and various High Courts adopting certain Standard Operating Procedure for video conferencing. The guidelines issued by the Court to inferior Courts directed for the need of a transparent yet accessible virtual mode of hearing.
The Supreme Court issued a circular to the effect that, it will be hearing matters through video conferencing via VIDYO platform. And the documents which shall be filed before the Court by the parties and the counsels shall be done through e-filing.
Even though the Court resumed functioning through virtual mode, still there were challenges. It was difficult for lawyers as well as parties to get used with the virtual system. So every Court prioritised the cases and only cases which required immediate attention were heard.
There was a necessity of extending the period of limitation because people were asked to remain within their homes as far as possible. Movement was greatly restricted in several parts of the country and local curfews were still in existence. And the partial functioning of government offices with 50% occupancy affected the paper work associated with Court procedures.
Taking note of these facts, Court also tried to ease up the service of summons.
As we have discussed earlier, the summons was served to the summoned person either by way of delivering it to him personally by an authorised officer or through a registered post.
The acknowledgement of the service of summons is also mandatory. But taking in to consideration of the restricted movement and prescribed less interaction between people during the pandemic, the Court ordered that various other modes of transmission of summons can be followed.
So, the Court in re Cognizance for extension of limitation[1] observed that service of summons, notice and pleadings is indispensable in every Court proceeding. But such physical delivery of the items may not be possible during the period of lockdown as postal or courier services are severely hit due to the restriction in movements.
So service of summons may be effected by way of sending them through e-mail , fax message etc. Also the Court included instant messaging applications like Whatsapp, Signal and Telegram in the list.
However if a party wants the service to be effected by way of an instant messaging application, he shall also a send a copy of the documents through an e-mail.
Views of High Courts
Even though the Supreme Court observed that service of notices, summons and pleadings may be effected through email, fax, Whataspp , Signal or Telegram , such issues fall in the domain area of High Courts.
From approving the courier services which can be engaged for serving the summons to the rule making power regarding adoption of any other transmission modes, High Courts have a wide ranging power.
Therefore the viewpoint of various High courts in this aspect becomes relevant as it involves the lower Courts also.
Delhi High Court
In a circular dated 09.06.2020 , the Delhi High Court directed that
“till further orders, all documents/notices/summons/Daks through physical mode be dispensed with, except where there is a specific order to that effect by the Hon’ble Court, and that such service be instead permitted to be effected through e-mail/fax/whatsapp. The necessary e- mail address and other details will be required to be furnished by the concerned party seeking to affect the service. The process of sending the documents/summons/daks in electronic mode will continue to be done by the Despatch Branch/Process Serving Agency, in co-ordination with respective judicial branches and IT Branch, from their seats only. The conventional mode of physical delivery may be permitted to be restored once the normalcy returns”
So the High Court of Delhi made it mandatory that the notices, summons and documents shall be served through digital platforms unless it orders otherwise.
Bombay High Court
Even before the pandemic hit, the Bombay High Court in 2018 held that service of processes through e-mail, whatsapp etc would be sufficient, if the receiver has acknowledged them.
In the case of Kross Television India Pvt Ltd v. Vikhyat Chithra Production[2], the plaintiffs tried to serve the defendants with the notice through courier. However they shifted from the place, which compelled the plaintiffs to serve the notice through e-mail and Whatsapp. When defendants claimed that there was no proper service of summons, the court observed that “It cannot be that our rules and procedure are either so ancient or so rigid (or both) that without some antiquated formal service mode through a bailiff or even by beat of drum or pattaki, a party cannot be said to have been ‘properly’ served. The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is surely irrelevant.”
The Court opined that the defendants were provided with the previous orders of the Court, allied documents and was intimated with the date of the hearing through Whataspp and e-mail. This would be sufficient for them ‘to notice’ of the process of the Court.
Madras High Court
Madras High Court in 2018 held that summons may be issued through e-mail.
In the case of Premkumar Thangadurai v State By The Inspector Of Police[3], a couple who were charged under the Emigration Act approached the Madras High Court seeking that they may be allowed to travel abroad provided that they will appear before the Court whenever the summons is served.
The Court asked them to furnish an affidavit citing their respective email addresses and stating that they wouldn’t dispute the mode of service of summons in the future.
Kerala High Court
Even though the above mentioned High Courts and the Supreme Court seem to welcome the idea of serving the legal processes through digital platforms including Whatsapp, that is not the case with Kerala High Court.
Recently in the case of Anoop Jacob v. State of Kerala[4] , the Court held that service of summons through whatsapp is not an accepted mode of service. The petitioner was charged under the provisions of Negotiable Instruments Act and he was served with summons through Whatsapp.
He didn’t appear on the mentioned date and the summons was converted in to a non-bailable warrant. The petitioner contended that he has not downloaded the said application on his phone. The Court held that such a service of summons is invalid.
Conclusion
The decision of recourse to digital mode of service during the covid-19 pandemic is indeed worth appreciating. Delaying the processes of court due to the lapses in postal offices and exposing people to pandemic can be avoided through such service of legal processes.
Even before the pandemic hit, many High Courts have been supporting the idea of moving to digital platforms. It has been shown by various studies that, the process of serving summons consumes a lot of time in the court procedure. If this is shifted to digital platforms, the delay in deciding cases can be reduced.
However, people who are not well-versed with digital platforms may find it very difficult. If they misses a chance to properly represent themselves owing to digital illiteracy or technical glitches, it will be a failure of principles of natural justice.
References
3. WhatsApp summons aren’t acceptable in law
- SUO MOTO WRIT PETITION (C) NO. 3/2020 dated 10th July 2020 ↑
- 2017 SCC OnLine Bom 1433 ↑
- 2018 (1) TLNJ (Criminal) 99 ↑
- Decided on 9th April 2021 ↑