Study Notes

Section 61 of the Code of Criminal Procedure lays down the provisions for the form of summons and the consequences of non-compliance with the same. The section can be divided into the following headings:

I. Form of Summons:
-Every summons issued by a Court under this Code must be in writing, in duplicate, and bear the seal of the Court.
-The summons must be signed by the presiding officer of the Court or any other officer as directed by the High Court through rules.

II. Punishment for Non-Compliance with Summons:
-If a person disobeys a summons without any valid excuse, the Court can impose a fine of up to Rs. 100 on the person.
-This penalty can be awarded by the Court before which the person was summoned to appear, on a summary trial, under section 350 of the Code.
-However, if the Court issuing the summons did not have the power to issue it, or if there is no proof of the summons being duly served and the person having knowledge of it, then this section would not be applicable.

III. Consequences of Intentional Disobedience:
-In case of intentional disobedience of a legally valid summons, the person can be punished under section 174 of the Indian Penal Code.
-Section 174 of the IPC is applicable to an accused, witness, or any other person who is legally bound to attend in obedience to a summons, and includes even a verbal order.
-This section would also be attracted where the person appears in Court but leaves without waiting for a reasonable time or leaves before the case against him is over without the Court’s leave.

IV. Effect of Defects in Summons on Trial:
-Any defect or omission in the summons shall not vitiate the trial unless it has occasioned a failure of justice under section 465 of the Code.
For example, if the summons on the accused did not mention the offence and he objected to it in proper time, it could result in a failure of justice, and therefore, vitiate the trial.

This section should be read along with:-
Cr.P.C:

• s.350
• s.465

I.P.C:

• s.174

C.P.C

• Order 5 Rule 1(3)

Study Notes

Section 62 of the Code of Criminal Procedure pertains to the mode of service of a summons. The notes are as follows:

Mode of Service: Every summons issued under this Code shall be served by a police officer, or subject to the rules made by the State Government, by an officer of the Court issuing it, or any other public servant.

Personal Service: The summons should be served personally on the person summoned by delivering or tendering one of the duplicates of the summons, if practicable.

Acknowledgment: Every person on whom the summons is served shall, if so required by the serving officer, sign a receipt on the back of the other duplicate.

Safeguards for proper service: This section ensures proper service of summons in two ways:
a. By providing that the service should be effected by a police officer or an officer of the Court or some other public servant who can report to the Court regarding the manner in which the summons was actually served.
b. By authorising the serving officer to obtain a signed acknowledgment of the service which should ordinarily be treated as cogent evidence of service [ s. 66(2)].

Punishment for prevention of service: Intentional prevention of service of summons by any public servant legally competent to serve it is punishable under Section 173 of the Indian Penal Code (IPC). Intentional disobedience to summons is punishable under Section 174 of the IPC. However, there cannot be any conviction under this section unless it is proved that the summons had been issued and duly served upon such person as prescribed in Chapter-6.

This section should be read along with:-
Cr.P.C:

• s.66(2)
• s.465

I.P.C:

• s.173
• s.174

Study Notes

Section 63 of the Code of Criminal Procedure specifies the mode of service of a summons on corporate bodies and societies. The notes are as follows:

• Service on a Corporation: A summons can be served on a corporation by serving it on the secretary, local manager, or other principal officer of the corporation. It can also be served by letter sent through registered post, addressed to the chief officer of the corporation in India. In the latter case, the service will be deemed to have been effected when the letter would arrive in the ordinary course of post.
• Meaning of Corporation: The term “corporation” refers to an incorporated company or any other body corporate, including a society registered under the Societies Registration Act, 1860 (21 of 1860).

This section provides for an alternative mode of service for corporate bodies and societies, as the traditional method of personal service may not always be practical or feasible. By allowing service through registered post, this provision ensures that the corporation is made aware of the summons and is given an opportunity to respond to it.

Study Notes

Section 64 of the Code of Criminal Procedure deals with the mode of service of a summons when the person summoned cannot be found. The following are detailed notes:

• Non-availability of Person Summoned: When the person summoned cannot be found, despite the exercise of due diligence, the summons may be served by leaving one of the duplicates with an adult male member of his family residing with him.
• Definition of Family: For the purpose of this section, a family member does not include a servant.
• Acknowledgement: The person with whom the summons is left should sign a receipt on the back of the other duplicate if required by the serving officer.
• Alternative Service Modes: This section provides for an alternative mode of service when personal service is not practicable, ensuring that the person summoned is made aware of the summons and is given an opportunity to respond to it.

Example: A police officer is required to serve a summons on a person named John, but he cannot find John at his residence despite making reasonable efforts. In such a case, the police officer can leave one of the duplicates of the summons with an adult male member of John’s family residing with him and obtain a signed receipt. This would be considered as a valid mode of service under section 64.

Comparison between Order 5 Rule 15 of CPC and Section 64 of CrPC

Both Order 5 Rule 15 of the Civil Procedure Code (CPC) and Section 64 of the Code of Criminal Procedure (CrPC) deal with the situation where the person summoned cannot be found. However, there are some differences between the two provisions.

Scope and Applicability: Order 5 Rule 15 of CPC applies specifically to suits, whereas Section 64 of CrPC is applicable to all criminal cases where summons is to be served.

Service on an Adult Member of Defendant’s Family: Under Order 5 Rule 15 of CPC, if the defendant is absent from his residence and there is no likelihood of him being found at the residence within a reasonable time, and he has no agent empowered to accept service, then service may be made on any adult member of the family, whether male or female, who is residing with him. In contrast, Section 64 of CrPC provides that if the person summoned cannot be found despite due diligence, then the summons may be served by leaving one of the duplicates with an adult male member of his family residing with him.

Gender of the Adult Member of the Family: Order 5 Rule 15 of CPC permits service on any adult member of the family, whether male or female, who is residing with the defendant. On the other hand, Section 64 of CrPC only allows service on an adult male member of the family residing with the person summoned.

Servant Not Considered as Member of Family: Both provisions make it clear that a servant is not considered a member of the family for the purpose of service of summons.

In conclusion, while both Order 5 Rule 15 of CPC and Section 64 of CrPC provide for substituted service in case the person summoned cannot be found, there are differences in the scope and applicability of the two provisions, as well as in the rules regarding service on an adult member of the family and the gender of such member.

Study Notes

Here are detailed notes basedfor Section 65:

-General rule of service

• The general rule of service is personal service, which means serving the summons or legal notice directly to the person concerned.
• This mode of service is considered the most effective as it ensures that the person being summoned or notified is made aware of the legal proceedings against them.

-Methods of service

• The Code of Criminal Procedure (CrPC) provides various methods of service in sections 62-64.
• Section 62 allows for service on individuals, while section 63 allows for service on corporations and societies.
• Section 64 provides for service when the person summoned cannot be found.

-Procedure when previous methods of service fail

• If the methods of service provided in sections 62-64 have failed, the serving officer can resort to section 65.
• Section 65 allows for service by affixing one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides.
• The court must make inquiries to determine if the service has been duly served or if fresh service is needed.

This section should be read along with:-

• CPC- Order 5 Rule 17

Study Notes

Section 66 of the Code of Criminal Procedure, 1973 provides for the mode of service of summons on a government servant. The section states the following:

-When a person summoned is in the active service of the Government, the Court issuing the summons shall send it in duplicate to the head of the office where such person is employed.

-The head of the office shall cause the summons to be served in the manner provided by section 62 of the Code of Criminal Procedure, 1973.

-The head of the office shall return the summons to the Court under his signature with the endorsement required by section 62 of the Code of Criminal Procedure, 1973.

-Such signature shall be considered as evidence of due service.

This section should be read along with:-

• CPC- Order 5 Rule 27

Study Notes

Section 67 of the Criminal Procedure Code (CrPC) deals with the service of summons outside local limits. Here are the detailed notes:

• Purpose: The purpose of this section is to facilitate the service of a summons issued by a court in one jurisdiction on a person residing or present in another jurisdiction.
• Sending summons in duplicate: When a court desires to serve a summons outside its local jurisdiction, it shall send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides or is to be served.
• Duty of the Magistrate: The Magistrate receiving the summons shall cause it to be served in the same manner as if it were a summons issued by himself, and after service, return it to the court which issued it, along with the endorsement required under section 62.
• Ordinarily to be sent: The use of the word “ordinarily” in this section indicates that the court has discretion to determine whether to send the summons in duplicate to a Magistrate outside its jurisdiction, or to use other methods of service.
• Example: Suppose a court in Delhi wants to serve a summons on a person residing in Mumbai. The court can send the summons in duplicate to a Magistrate within whose jurisdiction the person resides, or is to be served. The Magistrate in Mumbai shall cause the summons to be served and return it to the court in Delhi, along with the required endorsement.

This section should be read along with:-

CPC- Order 5 Rule 21

Study Notes

Section 68 of the CrPC deals with the proof of service in cases where a summons is served outside the local jurisdiction of the court or when the serving officer is not present at the hearing of the case. The section provides the following details:

• If a summons issued by a court is served outside its local jurisdiction or the serving officer is not present at the hearing of the case, an affidavit is required to be made before a Magistrate, stating that the summons has been served.
• Along with the affidavit, a duplicate of the summons, 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.
• The statements made in the affidavit and the duplicate of the summons shall be deemed to be correct unless and until the contrary is proved.
• The affidavit may be attached to the duplicate of the summons and returned to the court.

Thus, this section provides for the admissibility of an affidavit and a duplicate of the summons as evidence of service in cases where a summons is served outside the local jurisdiction of the court or when the serving officer is not present at the hearing of the case.

Study Notes

Section 69 of the Code of Criminal Procedure pertains to the service of summons on a witness by post. The section can be broken down as follows:

1. Service by Registered Post: The court issuing a summons to a witness may direct a copy of the summons to be served by registered post, in addition to the issuance of the original summons. The copy of the summons is addressed to the witness at the place where he or she ordinarily resides, carries on business, or personally works for gain.
2. Acknowledgement of Service: When an acknowledgement purporting to be signed by the witness is received, the court may declare that the summons has been duly served. In case the witness refuses to take delivery of the summons, an endorsement purporting to be made by a postal employee can also serve as evidence of service, and the court may declare that the summons has been duly served.

Overall, this section provides a convenient and efficient method for the service of summons on a witness, while also ensuring that due process is followed.

• This section should be read along with:-

CPC-

• Order 5 Rule 9(3)