Issue and Service of Summons in Civil and Criminal Cases

This article aims to explain the meaning, issue and service of a summons and its importance in civil and criminal jurisprudence. It shall further look into the purpose and procedure of issue and service of summons in Civil and Criminal cases under the Code of Criminal Procedure, 1973 and Code of Civil Procedure, 1908.

Introduction

A summon is a document issued by a court of law under its stamp and signature of the presiding judge of that court requiring the attendance of a person involved in a legal proceeding. When legal action is taken against a person i.e. a suit is filed against a person or a criminal complaint is lodged against him, such person is required to appear before the court on the date and time when the case is fixed for hearing.

To ensure that the person has been informed of such hearing and that the person appears and explains any circumstance in his personal knowledge or any information in his favour the court shall issue a summon to that person to remind and inform him of such date and time.

Moreover, in a legal proceeding, several witnesses are required to testify for either parties to assist them to prove their case. The witness may be known to the parties personally but they are required to be served with official communication by the court to ensure that no witness is absent on the date of the hearing and there is no adjournment of the case. Therefore, summons are also issued to all the witnesses proposed to be examined by both the parties in the same manner as the accused or defendant.

On receipt of such summons, the receiver is obliged to follow the same and appear before the court for the purpose mentioned in the summons itself on the specified date and time.

I. Summons in Civil Cases

Legal Provisions

Order V of the Civil Procedure Code, 1908 (hereinafter, CPC) deals with the procedure of service of summons on the defendants and respondents in a civil suit while Order XVI of the Code deals with the procedure of service of summons on the witnesses in the proceeding. There are 30 rules under Order V that give detail explanation of the procedure of issue and service of summons distinctly.

Rules 1 to 8 specifically deal with the issue of summons and Rules 9 to 30 deal with the service of summons and various catena in service of summons. These provisions explain when the summon should be issued by the court and documents or information that should be contained in the summons document. Further, it explains how it should be served and ensure that the service is complete.

Rule 1 states that when the plaintiff has filed the plaint and the plaint has been admitted by the court, the court should issue a summon calling the defendant to answer the claims of the plaintiff and file a written statement which is basically a reply to the plaint.

Rules 11 to 15 explain service of summons when there are more than one defendants. According to these rules, summon should be served to each of the defendants individually and in person as far as practicable. Rule 13 and 14 provide that a summon can be served to the agent of the defendant or any representative in his place of work and that shall complete proper service of summons.

Purpose of Issue of Summons

As aforementioned, summons are issued to two types of persons in any civil proceeding, i.e. the defendant against whom the suit is instituted and the witnesses who need to be called to decide the case. The purpose to serve a summon to a defendant is to allow him to explain his case and his response to the claims of the plaintiff and further enable him to file a written statement within the specified statutory period. ‘

On the other hand, summons are served to the witnesses because the witnesses may refuse to be present in the court on the request of the parties and deny the knowledge of such hearing. Therefore, summon is issued to ensure that the witness knows about the proceedings and can testify for the same.

The most essential object for introducing summons or for having the concept of summons is to allow speedy disposal of cases.

Let’s say summons were not there in the Indian laws, it would have been very convenient for the parties or witnesses to deny the information about the case and refuse to appear before the court stretching every case to a very long and tidy process.

Since the CPC provides for the issue of summons, cases can be disposed of as soon as possible. If the summoned person appears on the date ushered, the case continues without adjournment and moreover, the court is empowered to pass an ex-parte decree, i.e. award in favour of the party who is present in the court if the other party does not appear even after receiving the summons.

Modes of Service of Summons

First of all, it is necessary to understand that issue of summon and service of summon is different. When the court drafts the summoning document and it is signed and handed over to the court officer for dispatch, it is called the issue of summons.

On the other hand, when the summon is taken to the person who is being summoned either by the court officer himself or through the post, it is called service of summons. If the person accepts the summons, it is said that service is complete and if the person does not receive it for any reason, the service is attempted but failed.

Rule 10 of the CPC provides that summon must be served by delivering a copy of the original summoning document prepared by the judge to the defendant sealed with the court’s seal and signature. There are many ways of service of summons under the CPC that have been recognized by the courts. These are:

1. Service by hand: This is the oldest and still preferable mode of service of summons. The plaintiff or the court officer, depending on the order of the judge, carries a copy of the actual summon and delivers it to the defendant or the witnesses purported to be summoned through that document. The serving person keeps an additional copy of the summon or directory with details of the person receiving the summon and the same has to be acknowledged by the other party. This method was the oldest mode when post and electronic means were absent and delivery by hand was the only option.
2. Service by Post: A summon can be delivered to the summoned person by sending it through the post. Posting of summons replaced the delivery by hand because it was convenient and maximum summons could be served in the same without compromising with the time of the court. A summon must be sent through registered post such as India Post. The post office allows the sender to track the summon and the tracking receipt is required to be produced before the court to prove that the summon was served successfully. This mode has only one loophole that it is time-consuming and receipt of summons in many cases can take up to a week’s time.
3. Service by E-mail: With the passage of time and development of technology, the courts have been inclined to use electronic means to serve summons and notices to save time and money. In the case of Central Electricity Regulatory Commission v. National Hydroelectric Power Corp. Ltd.[1], the apex court allowed the service of a notice through email but ordered that a copy should also be sent through post. Further, in KSL Industries v. State of Maharashtra, the Bombay High Court made a significant remark and held that there is a lot of delays caused in legal proceedings due to unserved summons. Therefore, all practical means should be used to avoid this delay and hence, e-mail can be used to serve summons.
4. Service through WhatsApp: WhatsApp, needless to explain, is one of the most popular messaging application used by people all over the world. The application has threefold tests to check the status of a sent message. It provides ‘one tick’ for messages that are sent, ‘double tick’ for messages that are received and ‘a blue double tick’ for messages that have been either read or at least opened. In Tata Sons v. John Doe, the Delhi High Court permitted the plaintiff to serve summons to the defendant via WhatsApp and e-mail. The landmark case in this regard, however, is Ruma Pal v. Kumar. In this case, the defendant husband had fled to Australia to avoid any suit filed by his wife for domestic violence and it was very difficult to serve summons while he was in Australia. Justice Surabhi Sharma of the Delhi High Court allowed the plaintiff to serve the summons through WhatsApp and also held that double tick on WhatsApp shall be the conclusive proof of the receipt of the summons.

II. Summons in Criminal Cases

Legal Provisions

Chapter 6 of the Code of Criminal Procedure, 1973 deals with issue and service f summons upon the accused person and the witnesses in a criminal case. Sections 61 to 69 are the relevant provisions whereby Section 61 deals with issue of summons and remaining provisions deal with service of summons.

Section 61 states that a criminal court shall issue summons in writing only and the duplicate of such summon should be sent to the accused or the witness as the case may be. The summons needs to be signed by the presiding officer of the court along with the seal of the court.

Unlike in civil cases, Section 62 of CrPC requires that a summon be served upon the accused by a police officer investigating in the case or any other officer subordinate to such police officer. Similar to the procedure in civil cases, a summon, in a criminal case, is required to be served in person by hand unless it is not practicable at all.

Purpose of Issue of Summons

A criminal case is divided into different types according to its grave nature and severity of punishment. The main two types of cases are summons-case and warrant-case. In a summons case, it is obligatory for the court to issue summons to the accused person to enable him to surrender before the court and render any explanation that he deems necessary for a fair and impartial trial.

A Magistrate may also issue summon in a warrant case to allow the accused to appear in lieu of arresting him and forcefully producing before the court. Audi alteram partem is a very essential principle of natural justice which means no one shall be condemned unheard. Summons are issued to accused persons with the main purpose of upholding this principle and granting the accused opportunity to be heard in a court of law.

Summons are also issued to witnesses in a criminal case whom the prosecution of the defence proposes to examine. These summons contain a brief explanation of the matter and their role in the case and their need to testify.

The purpose of issuing summons to witnesses is to avoid any delay that may be caused due to the absence of the witness who may claim ignorance about the case. The most essential object for introducing summons or for having the concept of summons is to allow speedy disposal of cases.

Modes of Service of Summons

Since, in a criminal case, the summon is not sent through court officers or the parties but police officers, there are not multiple ways of service of summons. Summons are served in person or through post only. However, the service of summons depends upon the accused and the recognized modes are:

1. Service by hand: As already explained, the police officer carries the summon issued by the court and the same is delivered to the accused person at his residential address and a copy of the summon is received with acknowledgement from the accused of the receipt of the summons. The same applies to witnesses as well.
2. Service to Corporate Bodies: When the accused is a company or co-operative society or any other form of body corporates, the summon may be served through the post to the secretary of the organization or the Local Manager or any person in authority who is the principal officer of the organization.
3. Service to Missing Persons: When the accused cannot be found or is missing, the summon can be served to any adult member of his family provided the family members are residing in the same dwelling house or the same city and the family is responsible to intimate the accused. If there are no family members or any next kin to whom the summon can be served, the police officer may annex a copy of the summon on the house of the accused or on the walls of the places near his house where they can be easily located and read by the accused.

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References

1. V. Kelkar, Lectures on Criminal Law (8th ed. 2016).

[1] Central Electricity Regulatory Commission v. National Hydroelectric Power Corp. Ltd., (2010) 10 SCC 280.

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2. Civil Procedure Code