PROCESS TO COMPEL
APPEARANCE- PART I-
SUMMONS
CHAPTER -6
• Q1: What do you mean by the term “Process” ?
• Ans- Process is defined as any means which is used by court to compel
appearance of a defendant before it.
• Q2: What are the modes to compel appearance?
• Ans- Following are the modes to compel appearance of a person by issuing:
• Summons
• Warrant of Arrest
• Proclamation for Person Absconding
• Q3: What are summons? Who can issue summons?
• Ans- Summons is a legal document issued from the office of court of Justice calling upon the person to
whom it is directed to attend before a Judge or officer of court.
• Q4: Why summons are served?
• Ans- 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, summons are served to call such person and also to ensure that he is
present on the given date of the proceedings.
• Inder Mohan Goswami & Another vs State Of Uttaranchal & Others on 9 October, 2007
• As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of
the accused in the court, the summon or the bailable warrants should be preferred. f the accused seem
to be avoiding the summons, the court, in the second instance should issue bailable- warrant. In the
third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding
intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty
is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-
bailable warrants.
• Sanjay Kumar vs State Of Bihar & Anr on 8 March, 2018
• The learned Magistrate has adopted a procedure which is dangerous one and can leave to drastic
consequences. It is entirely undesirable that the Magistrate should ignore the prescribed rules and
the ratio laid down by the Supreme Court. From the order sheet it is manifest that the service
report of summonses was not being received. However, the Magistrate issued warrant of arrest
(bailable and non- bailable) without taking any action against those who were responsible for not
effecting processes. Be it noted that the Magistrate is not powerless if processes are not served or
orders passed by a Magistrate are not carried out by the persons authorized to execute it. There is
nothing on the record to show that the Magistrate took any steps to enforce the service of
summonses or warrants of arrest (bailable and non-bailable) or took any action against those who
were entrusted with the duty to serve processes issued by the court. Instead of showing control
over the proceedings of the court, she adopted an easy route by taking drastic steps against the
accused persons and issued order of proclamation and attachment of property even without Patna
High Court Cr.M isc. No.629 of 2018 dt.08-03-2018 19/ 19 recording any reason for the same.
• Q5: How summons are served?
• Ans- A summon is served when a suit has been initiated by the plaintiff against the defendant, the
court directs to issue summons to the defendant to ensures a fair trial. No action can be taken
against the defendant if summons are not served properly.
• Q6: What happens when a summon is served on a person and he does not appears ?
• Ans- If on serving of the summon, the person against whom it had been issued does not appear in
the court then this will be taken as a Contempt of Court and shall be punished accordingly.
• In karsamal dattaram 1968, held that section 62 of Cr PC deals with personal service of
summons. It requires that summons should not only be shown but a copy of it to be left,
exhibited, delivered or tendered to the person summoned.
Q7: HOW SUMMONS ARE FORMED? WHAT ARE THE
ESSENTIALS OF A SUMMON?
• Ans- Every summon issued by the court under Section 61 of The Code of
Criminal Procedure,1973 shall be:
• In writing
• In duplicate form
• Signed and sealed by the presiding officer of the court
• It should mention the time and place of the rule directed and shall bear the
seal of the court.
• Sudhir Kumar Dutt 1945, held that by requiring to obtain signed
acknowledgement of the service of summons, subsection (3) of section 62,
ensures a cogent service of evidence
Q8: BY WHOM SUMMONS ARE SERVED? WHO
CAN SERVE SUMMONS?
• Ans- Following persons can serve the summons as per Section 62 of The Code of Criminal
Procedure,1973:
• Police Officer
• By an officer, subject to such rules as the State Govt. may prescribe.
• The court may allow summons to be served personally by delivering or tendering to him
one of the duplicates of the summons if any request is made by complainant or accused.
• Every person on whom summons is served shall sign a receipt on the back of the other
duplicate as per required by the serving Officer.
Q9: WHAT ARE THE MODE OF SERVICE OF SUMMONS?
• Ans- Following procedure shall be adopted:
• A) By personal service
• B) By Service on corporate bodies and societies under Section 63
• C) By Service when person summoned cannot be found under Section 64
• D) By Service on Government servant under Section 66- in Dhani Ram v State, 1974
Cr LJ 1234 ALL held, that a notice of proceeding, on a a government servant by
registered post or by publication in news paper is not warranted. The head of the
office must cause it to serve personally.
• E) By Service of summons outside local limits under Section 67
Q10: HOW SUMMONS ARE SERVED ON CORPORATE
BODIES AND SOCIETIES?
• Ans- As per Section 63 of The Code of Criminal Procedure,1973 Service of a summon on a
corporation may be effected by serving it on the :
• secretary,
• local manager or other principal officer of the corporation,
• or 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.
• *In this section “ corporation” means an incorporated company or other body corporate and also
includes a society registered under the Societies Registration Act,1860.
• Central Bank of India v DDA, 1981 Cr LJ 1496 Dehi, service of summons on branch manager will be
deemed to have been served
Q11: HOW TO SERVE SUMMONS WHEN PERSONS
SUMMONED CANNOT BE FOUND?
• Ans- Where the person summoned cannot be found, the summons may be served by:
• leaving one of the duplicates for him with some adult member of his family residing with him,
• the person with whom the summons is so left shall sign a receipt therefore on the back of the other
duplicate.
• *A servant is not a member of the family within the meaning of Section 64 of The Code of Criminal
Procedure,1973.
• G.Kavitha vs Union Of India on 29 June, 2006, Madras HC , was asked to hold section 64 violative
of Article 14 of Indian constitution, insofar as the restriction that service of summons shall be made
only on adult male member of the family of the person summoned. Though the Court said that in the
face of it , it was unconstitutional but at the instance of the petitioner alone, Section 64 of the Code of
Criminal Procedure cannot be struck down from the statute on the ground that it is discriminatory. The
copy of this order is directed to be forwarded to the Chairman, Law Commission of India and the
Member Secretary, National Legal Service Authority to do the needful in the matter.
Q12: WHAT ARE THE PROCEDURES WHEN SERVICE CANNOT
BE DONE AS PER MENTIONED UNDER SECTION 62,63 AND 64
OF CODE OF CRIMINAL PROCEDURE,1973 OR WHAT IS THE
SUBSTITUTED MODE OF SERVICE?
• Ans- If service cannot be done as per Section 62 63 and 64 the Serving Officer shall:
• Shall affix one of the duplicates of the summons to some conspicuous part of house
• or homestead where the person summoned resides ordinarily
• After that Court will make such enquiries as it thinks fit upon which it may either
declare that summons has been duly served or will order fresh service in a manner as
it considers proper.
Q13: HOW SUMMONS ARE SERVED ON
GOVERNMENT SERVANTS?
• Ans- Section 66 states services of summon on government employees can be
effected either personally or through head of department in which such person is
employed. As per Section 62 duplicate copies are send to head of the office who
shall serve the summons in the manner provided by section 62 and shall return it
to the Court under his signature with the endorsement. The signature shall be
evidence of due service.
• Q14: How summons are served outside local limits?
• Ans- Where a summons is to be served outside the local limits of jurisdiction of
the court issuing it, service has to be effected by sending it in duplicate to the
Magistrate within whose jurisdiction the person summoned resides.
Q15: WHAT ARE THE PROCEDURES WHEN
SERVING OFFICER IS NOT PRESENT? HOW TO
PROVE SERVICE OF SUMMONS?
• Ans- As per Section 68 of The Code of Criminal Procedure,1973 the Officer
who served the summons outside local jurisdiction needs to submit an affidavit
regarding the fact that the summon was served if he is himself not present in
the Court at the time of hearing. And also duplicate of summons endorsed as
per manner provided under Section 62 or Section 64 will be admissible as
evidence by the person to whom it was delivered or tendered. The affidavit
may be attached to the duplicate of the summons and has to be returned to the
Court.
Q16: HOW SUMMONS ARE SERVED ON WITNESS
BY POST?
• Ans- According to Section 69 of The Code of Criminal Procedure,1973 Court directs a copy
of summons which has to be served by registered post addressing to the witness at the place
where he ordinarily resides or carries on his business or personally works for gain.
• Then witness has to sign an acknowledgement or endorsement has to be made by a postal
employee that witness refused to take delivery of summons has been received. On this Court
may declare summons has been duly served.
