A summons is a form of process issued by a Court, calling upon a person to appear before a Magistrate. Section 61 provides that every summons issued by a Court must be in writing, in duplicate, and signed by the Presiding Officer of Court. It must also bear the seal of the Court. If any summons does not comply with all these requirements, it is invalid, and it can be objected to and be disregarded by the person to whom it is addressed.
It is to be noted that a summons should be clear and specific in its terms, as to the description of the Court, the place, date and time at which the person summoned is to attend.
Image Source: 185.26.182.219
ADVERTISEMENTS:
In a case decided by the Bombay High Court, an accused was summoned to appear in a particular Court at 10 a.m. He attended the Court at the appointed time, but finding the Magistrate absent, he went away after two or three minutes. The Court held that in the circumstances, he was bound to wait for a reasonable time, and that staying on for two or three minutes would not be sufficient. (Kisan Babu, 10 Bom. 93)
Every summons must be served by a Police Officer, and if practicable, must be served personally on the person who is summoned, by delivering or tendering to him one of the duplicates of the summons. If so required by the serving Officer, the person on whom the summons is served must sign a receipt on the other copy.
Summons may be served on a corporation by serving it on the Secretary, Local Manager or other Principal Officer of the Corporation, or by a letter sent by Registered Post addressed to the Chief Officer of such corporation in India.
When the person who is summoned is not found after due diligence, the summons may be served leaving a duplicate thereof with an adult male member of his family residing with him, who must, if so required, give a receipt for it. However, it may be noted that a servant cannot be said to be a member of the family for the purpose of acceptance of summons.
ADVERTISEMENTS:
It is to be remembered that if the person summoned cannot be found, the summons may be served on any adult male member of his family. Therefore, the service of summons on the mother of the accused would not be sufficient compliance. (Sawan Singh,—26 Cr. L.J. 1393)
The Code also deals with what is known as substituted service. This may happen when the accused does not reside in his usual place of residence, and there may be no other male member of the family to accept the summons. Therefore, as a last resort, the procedure prescribed by S. 65 may be followed.
This section lays down that, after due diligence, if service of the summons cannot be effected in any manner prescribed above, the serving officer must affix a duplicate of the summons on some conspicuous part of the house where the person summoned ordinarily resides.
In such cases, the Court, after making the necessary enquiries, may either declare that the summons has been properly served, or it may order fresh service of the summons in such manner as it may consider proper.
ADVERTISEMENTS:
If the person who is summoned is a Government servant, ordinarily, the summons is to be sent to the head of the office in which such person is employed. The head has, in turn, to serve it on the person concerned, and return it to the Court with the proper signature and endorsements.
If a summons is to be served at a place outside the local jurisdiction of the Court, it is normally sent in duplicate to the Magistrate within whose jurisdiction the person summoned resides. In such cases, if the officer who has actually served the summons is not present at the hearing of the case, an affidavit made before the Magistrate to the effect that the summons was properly served is admissible in evidence, and all statements made in such an affidavit are presumed to be correct unless and until the contrary is proved.
In addition to the various modes prescribed above, when the person to be summoned is a witness, the Court may also direct that a copy of the summons be served on that person by registered post in addition to, and simultaneous with, the issue of such summons in any of the above modes. (S. 69) This is a new provision, and is intended to cut out the delay in the service of summons on witnesses, by providing for service by post in addition to, or simultaneously with the issue of a summons in the usual way. It is to be noted that this provision applies only to witnesses.
A specimen form of a summons is given below:
To
(Name of accused and his address)
WHEREAS your attendance is necessary to answer to a charge (the offence charged is to be shortly stated here), you are hereby required to appear in person (or by pleader, as the case may be) before the Chief Executive Magistrate at Esplanade, Mumbai, on the
1st day of April, 20 at 10 a.m. Herein fail not.
Dated this 10th day of March, 20
(Seal of the Court)
(Signature)