Issue and service of summons in Civil and Criminal Cases

Abstract

The service and issue of summons is significant in both civil and criminal cases. The Indian law provides that everyone should be heard to achieve the objective of a free and fair trial. Both the law contains important provisions regarding the issue and service of summons to the defendant as well as the witnesses. The article aims to examine the concept of issue and service summons in both civil and criminal cases and its importance in the jurisprudence. The article will also explain the objective, legal provisions and mode of service of summons in both the laws.

Introduction

A summons is considered as a legal document which is generally issued by the court of law on a person involved in a legal proceeding. It is issued under the seal, stamp and signature of the presiding officer of the court. It is an obligation for the party in a suit or criminal prosecution to attend the legal proceeding of the court. When a suit or a criminal case is filed against a person, it is an obligation upon such person to appear before the court of law on the mentioned date and time at the time of hearing of the case. A summon is generally issued to the party in a suit to ensure that whether the person has received the information regarding the hearing of a suit or case.[1] 

Moreover, witnesses are also being served with a summons by the court to ensure that the information of the date of hearing has reached the witnesses. Witnesses in a suit play a vital role to testify for either party and assist them to prove their case in the court of law. The summons is generally issued to witnesses to inform them about the date of hearing to avoid the consequences of adjournment of the case. Therefore, issue and service of summons are significant in both the civil and criminal cases as it provides a mechanism to start legal proceedings before the court of law.

Issue and service of summons in civil cases

  • Objective

Summons are generally issued to the defendant in a suit and the witnesses who are being called to adjudicate the case in any civil proceedings. The main objective and purpose to serve a summon to acknowledge the information about the date of hearing to the defendant so that he can explain his case and file a response before the court. It is based on the principle of ‘Audi Alteram Partem’ which states that ‘let the other side be heard as well’. 

On the other hand, summons is also served and issued to the witnesses by the court as they cannot refuse to appear before the court which in case of the summons issued by the parties to the witnesses may be possible. Therefore, summon is served and issued to the witnesses to know about the hearing and proceedings and testify for the same. It also helps in speedy disposal of cases.   

  • Legal provisions

Order V of the Code of Civil Procedure, 1908[2] deals with the process of service of summons on the defendant in a suit before the court of law. Order XVI of the Code deals with the issue and service of summons on the witnesses in the proceedings so that they can testify for the same. There are various provisions enshrined under the Code which deals with the different aspects of issue and service of summons by the court. These provisions also provide information when the summon should be issued by the court and the information attached with the summons document. 

Rule 1 provides that after the plaintiff files a complaint before the court of law, the court should issue the summons on the defendant to answer the issues raised by the plaintiff in his plaint and to file a written statement on the basis of it. Rule 11-15 deals with the service of summons where there is more than one defendant in a suit.[3] 

  • Modes of service of summons

After the court issues the summon in the favour of the defendant, then the summon is taken to the person who is being summoned by the officer appointed by the court or through the postal service. This process is called the service of summons. Rule 10 of the Code 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.” In Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq[4], the Apex court held that “under the provisions of the service could be effected on the defendant personally, by the registered post, through his authorized agent, or on a male member of his family in accordance with these provisions.”  

There are different modes in which a summon can be served upon the defendant in a suit:

  1. Service by hand: This is the most reliable and the oldest method of serving a summons on the defendant. The officer appointed by the court or the plaintiff delivers the copy of the actual summons to the defendant or the witnesses. The person who is receiving the summon has to be acknowledged by the other party and the person who is giving the summon have to keep an additional copy with himself. 
  2. Service by post: A summon can also be served to the defendant or the witnesses through the postal service. It replaced the delivery of the summons by hand because this mode was very convenient and a large number of summons can be served at the same without compromising with the time of the court. When the summons sent by registered post is returned with an endorsement “refused”, the burden of proof is on the defendants to prove that the endorsement is false.
  3. Service by Email: With the increasing use of digital technology in society, courts started adopting this mode of serving summons to the parties and save time and money. In the case of Central Electricity Regulatory Commission v. National Hydroelectric Power Corp. Ltd., [5]the Supreme Court held that summons can be served through email and other digital technology but a copy of it needs to be sent through the postal service. Hence, email can be used as a faster mode to serve summons to the defendant.
  4. Service through WhatsApp: In Tata Sons Ltd. &Ors v. John Doe[6], the Delhi Court held that it is permitted to serve summons to the defendant via WhatsApp. It is noted that double tick on WhatsApp shall be the conclusive proof of the receipt of the summons.[7]   

Issue and service of summons in Criminal cases

  • Objective

There are two types of cases in criminal law are summons-case and warrant case. In a summons case, it is compulsory for the adjudicating officer to issue a summons to the accused person so that he can surrender before the court of law and render any explanation to the case which is necessary for a free and fair trial. Audi Alteram Partem is an essential principle which needs to considered by Indian Courts. Summons are issued to the accused person so that he has a fair chance to represent himself before the court and granting the opportunity to be heard.[8] 

Summons are also issued to witnesses in criminal cases by the court so that they can help in examining the evidence of the case. These summonses contain brief information and their role related to the case. The most essential role of summons in criminal cases is that it helps in the speedy disposal of cases.[9]

  • Legal provisions

Chapter 6 of the Code of Criminal Procedure deals with the issue and service of summons on the accused person and the witnesses in criminal law. There are various provisions regarding the service of summons in criminal law and section 61-69[10] deals with service and issue of summons. Section 61 deals with the issue of summons and the rest of the other sections deal with the service of summons.  The summons needs to be signed and sealed by the adjudicating officer of the court. According to section 61, a summon must be issued in the writing and a copy of such document must be sent to the accused or the witnesses. 

A summon must be served in person by hand in a criminal case unless it is not practicable at all. Also, it is required to be served by an investigation officer in the case or any other person subordinate to such police officer.

  • Modes of service of summons
  1. Service by hand: The police officer is required to serve the summons to the accused or the witnesses at his residential place in a criminal case. A copy of the summon is received with the acknowledgement of the accused of the receipt of the summons.
  2. Service to corporate bodies: Section 63 of the Code deals with the summons to be served on corporate bodies. When the accused person is a company or corporative society, the summon must be served to the manager or the secretary of the organisation through the postal service. 
  3. Service of summons when a person cannot be found: The Section 64 of the Code provides that when the accused person is missing or cannot be found, the summon should be served to the adult member of his house where the person is accountable to intimate the accused person. A summon can be attached to the house of the accused person where summon can be easily visible if the officer is unable to find the next family members or any next kin to whom the summons can be served. 
  4. Service on Government servant: section 66 of the Code provides for serving a summons on the government servant. It states that 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.
  5. Service of summons on witness by post: Section 69 provides that 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.  

Conclusion 

A Summon is a legal document that is issued by a Court on a person involved in a legal proceeding. When a legal action is taken against a person or when any person is required to appear in the court as a witness in a proceeding, to call upon such person and to ensure his presence on the given date of the proceedings, summons is served. Every summons shall be signed by the judge or such officer appointed by him and shall be sealed by the court of law. There are various provisions enshrined under both civil and criminal law related to the issue and service of summons to either the defendant or witnesses. 

The service of summons plays a very crucial role in both civil and criminal cases. One of the objects of issuance and service of the summons is to ensure a fair trial where no rights of the summoned person are violated. It is necessary for a suit or a trial that the judge concerned hears all the parties who are relevant, so their presence in the proceedings is obviously important.

References

  1. https://www.legalbites.in/issue-and-service-of-summons-in-civil-and-criminal-cases/#:~:text=When%20the%20court%20drafts%20the,is%20called%20service%20of%20summons.
  2. https://articlesonlaw.wordpress.com/2018/07/15/service-of-summons-in-civil-cases/
  3. https://highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol-iv-pdf/Volume%20IV,%20Chapter%208%20Part%20A.pdf
  4. http://www.legalservicesindia.com/article/2578/Summoning-of-Defendant.html

[1]https://www.legalbites.in/issue-and-service-of-summons-in-civil-and-criminalcases/#:~:text=When%20the%20court%20drafts%20the,is%20called%20service%20of%20summons. (19-07-2020, 04:46 PM).

[2] Order V of Code of Civil Procedure, 1908- issue and service of summons.

[3]http://www.legalservicesindia.com/article/2578/Summoning-of-Defendant.html (20-07-2020, 06:34 PM).

[4]1985 SCMR 1228.

[5](2010) 10 SCC 280

[6]LU 2018 DEL.

[7]Avtar Singh, The Code of Civil Procedure, (5th 2018).


[8]https://highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol-iv-pdf/Volume%20IV,%20Chapter%208%20Part%20A.pdf (20-07-2020, 07:23 PM).

[9]C. Sarkar, Sarkar Code of Civil Procedure, (2017).

[10]Section 61-69 of the Code of Criminal Procedure, 1973- issue and service of summons.

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