Summons

The proviso, which is new. The police station or the registrar in the Court shall maintain a register to enter the address, email address, phone number and such other details as the State Government provides by rules. That register is what makes electronic service workable, because it is where the address is drawn from.

Sub-section (2). The summons shall, if practicable, be served personally, by delivering or tendering to the person one of the duplicates.

The proviso. A summons bearing the image of the Court's seal may also be served by electronic communication, in the form and manner the State Government provides by rules.

Sub-section (3). Every person served personally shall, if so required by the serving officer, sign a receipt on the back of the other duplicate. That signed duplicate goes back to the Court and is the proof.

Section 65: companies, firms and associations

Sub-section (1), companies and corporations. Service may be effected by serving the Director, Manager, Secretary or other officer, or by letter sent by registered post addressed to one of them in India, in which case service is deemed effected when the letter would arrive in the ordinary course of post.

The Explanation defines the words: "company" means a body corporate, and "corporation" means an incorporated company or other body corporate registered under the Companies Act, 2013, or a society registered under the Societies Registration Act, 1860.

Sub-section (2), firms and other associations of individuals. Service may be effected on any partner of the firm or association, or by registered post addressed to such a partner, with the same deeming rule.

Section 66: when the person cannot be found

Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates with some adult member of his family residing with him, and that person shall, if required, sign a receipt on the back of the other duplicate.

The Explanation is short and it is asked in examinations: a servant is not a member of the family within the meaning of this section.

Three conditions, then. Due diligence first. An adult. And a member of the family who resides with him.

Section 67: affixing

If service cannot, by the exercise of due diligence, be effected under section 64, 65 or 66, the serving officer shall affix one of the duplicates to some conspicuous part of the house or homestead in which the person summoned ordinarily resides. The Court may then, after making such inquiries as it thinks fit, either declare that the summons has been duly served or order fresh service in such manner as it considers proper.

Notice that affixing does not by itself complete service. The Court has to apply its mind afterwards, and it has two choices.

Sections 68 and 69: Government servants, and service outside the district

Section 68. Where the person summoned is in the active service of the Government, the Court shall ordinarily send the summons in duplicate to the head of the office in which he is employed. That head causes it to be served in the manner provided by section 64 and returns it to the Court under his signature with the endorsement section 64 requires. His signature is evidence of due service, sub-section (2).

Section 69. Where a Court wants a summons served outside its local jurisdiction, it shall ordinarily send it in duplicate to a Magistrate within whose local jurisdiction the person resides or is, to be served there.

Sections 70 and 71: proving service, and witnesses

Section 70(1). Where a summons is served outside the Court's local jurisdiction, or where the officer who served it is not present at the hearing, an affidavit purporting to be made before a Magistrate that the summons has been served, together with a duplicate purporting to be endorsed under section 64 or 66 by the person to whom it was delivered or tendered or with whom it was left, is admissible in evidence, and the statements in it are deemed correct unless and until the contrary is proved.

Sub-section (2) allows the affidavit to be attached to the duplicate and returned to the Court.

Sub-section (3), and it is new. All summons served through electronic communication under sections 64 to 71 shall be considered as duly served, and a copy of such summons shall be attested and kept as proof of service.

Section 71, witnesses. Notwithstanding the preceding sections, a Court issuing a summons to a witness may, in addition to and simultaneously with the summons, direct a copy to be served by electronic communication or by registered post addressed to the witness where he ordinarily resides or carries on business or personally works for gain. Where an acknowledgement purporting to be signed by the witness, or an endorsement by a postal employee that the witness refused delivery, is received, the Court may declare the summons duly served.

Section 71 is the belt and braces provision for witnesses: ordinary service and electronic or postal service run at the same time, so a witness cannot delay a trial by avoiding the process server.

A worked example

The Court of a Judicial Magistrate at Borivali issues a summons to Kiran to attend as an accused in a summons case.

Form. It is prepared in duplicate, signed by the presiding officer and sealed, under section 63(i). Alternatively it could have been issued as an encrypted electronic communication bearing the image of the seal, under section 63(ii).

Service. A police officer takes it to Kiran's flat and hands him one duplicate. Kiran signs a receipt on the back of the other, under sections 64(2) and 64(3). Service is complete.

Kiran is not at home and is away for a month. The officer, having exercised due diligence, may leave a duplicate with Kiran's adult brother who lives with him, under section 66. He may not leave it with Kiran's domestic help, because the Explanation says a servant is not a member of the family.

Nobody suitable is there either. The officer affixes a duplicate to a conspicuous part of the house, under section 67. The Court then makes such inquiries as it thinks fit and either declares service good or orders fresh service.

Kiran turns out to live in Nashik. The Borivali Court sends the summons in duplicate to a Magistrate in Nashik for service there, under section 69. When it comes back, an affidavit made before a Magistrate plus the endorsed duplicate is admissible and presumed correct, under section 70(1).

Kiran is a clerk in a Central Government office. The Court ordinarily sends it in duplicate to the head of his office, under section 68(1), whose signature on the return is evidence of due service.

Kiran is a private limited company rather than a person. Service may be on its Director, Manager or Secretary, or by registered post to one of them in India, and service is deemed effected when the letter would arrive in the ordinary course of post, under section 65(1).

A witness has to be summoned. The Court may, simultaneously with the ordinary summons, direct a copy to be sent by electronic communication or registered post to where she ordinarily resides or works, under section 71(1).

Distinctions

What this does NOT mean

Affixing under section 67 is not service by itself. The Court must afterwards declare service good or order fresh service.

A servant is not a member of the family. The Explanation to section 66 says so expressly, and this is a favourite short question.

Section 65's deeming provision is not about actual receipt. Where registered post is used, service is deemed effected when the letter would arrive in the ordinary course of post, whether or not it was in fact collected.

And electronic service is not an optional extra that still needs paper. Section 70(3) provides that summons served through electronic communication shall be considered as duly served, with an attested copy kept as proof.

Quick revision

• Section 63: in writing, in duplicate, signed and sealed; or in encrypted or other electronic communication with the image of the seal or a digital signature.
• Section 64: served by a police officer, an officer of the Court or another public servant; register of address, email and phone to be maintained; personally if practicable; electronic service allowed; receipt signed on the back of the other duplicate.
• Section 65: companies and corporations through a Director, Manager, Secretary or other officer, or by registered post; firms through any partner; deemed served when the letter would arrive in ordinary course of post.
• Section 66: an adult member of the family residing with him, only after due diligence. A servant is not a member of the family.
• Section 67: affix to a conspicuous part of the house; the Court then declares service or orders fresh service.
• Section 68: Government servants through the head of office, whose signature is evidence of due service.
• Section 69: service outside local limits through a Magistrate of that place.
• Section 70: affidavit before a Magistrate plus endorsed duplicate is admissible and presumed correct; electronic service is duly served and an attested copy is kept.
• Section 71: a witness may be served simultaneously by electronic communication or registered post; an acknowledgement or a postal endorsement of refusal lets the Court declare service good.

Test yourself

1. In what two forms may a summons now be issued? In writing in duplicate, signed and bearing the seal of the Court; or in an encrypted or other form of electronic communication bearing the image of the seal of the Court or a digital signature, section 63.

2. May a summons be left with the accused's cook? No. Section 66 permits it to be left with an adult member of the family residing with him, and the Explanation says a servant is not a member of the family.

3. What happens after a summons is affixed under section 67? The Court, after making such inquiries as it thinks fit, either declares the summons duly served or orders fresh service in such manner as it considers proper.

4. When is service on a company by registered post deemed effected? When the letter would arrive in the ordinary course of post, section 65(1).

5. How is service proved where the serving officer is not present at the hearing? By an affidavit purporting to be made before a Magistrate that the summons was served, with the endorsed duplicate; the statements in it are deemed correct until the contrary is proved, section 70(1).

6. Is a summons served by email good service? Yes. Section 64(2)'s proviso permits service by electronic communication where the summons bears the image of the Court's seal, and section 70(3) provides that such service shall be considered duly served, with an attested copy kept as proof.

7. What is special about serving a witness? Section 71 allows the Court, in addition to and simultaneously with the ordinary summons, to direct a copy to be served by electronic communication or registered post at the place where the witness ordinarily resides, carries on business or personally works for gain.