SUMMON: ANALYSIS

INTRODUCTION
Summon under the Criminal Procedure Code (CrPC) is a legal instrument employed
by the judicial system to ensure the appearance of individuals before a court. This
process plays a pivotal role in the criminal justice system, balancing the interests of
justice, the accused, and the smooth functioning of legal proceedings.

The CrPC, a comprehensive legal framework governing criminal procedures in India,

empowers magistrates to issue summons. A summon is a formal order requiring an
individual's presence before the court. Its fundamental purpose is to secure the
attendance of the accused or witnesses during the trial, thereby facilitating a fair and
transparent dispensation of justice.

The legal basis for summoning individuals under CrPC is primarily enshrined in
Sections 61 to 69 of the Code. Section 61 empowers a court to issue a summon when
it receives information that an offense has been committed. This foundational
provision underscores the proactive role of the court in initiating legal proceedings.
Additionally, Section 204 elucidates the circumstances under which a magistrate may
issue a summon instead of a warrant for the arrest of an accused. This discretion is
crucial in balancing the interests of justice and the rights of the accused.

The purpose of summoning individuals under CrPC is multifaceted. Firstly, it serves

as a means to notify the accused about the charges levied against them and inform
them of the scheduled court proceedings. This aligns with the constitutional principle
of providing an accused person with a fair opportunity to defend themselves. The
summon acts as a legal instrument to communicate the court's expectations regarding
the individual's presence during trial stages.

Furthermore, summoning witnesses is integral to the fact-finding process. By

compelling witnesses to testify in court, the legal system ensures the availability of
crucial evidence. This process contributes to the court's ability to establish facts and
arrive at just conclusions. Summoning, therefore, plays a crucial role in the truth-
seeking function of the criminal justice system.

The use of summons also reflects the principle of proportionality in legal

proceedings. It provides a less intrusive means compared to arrest warrants,
demonstrating the legal system's commitment to respecting individual liberties,
particularly in situations where a person's arrest may not be immediately necessary.

In conclusion, summon under CrPC serves as a cornerstone in the criminal justice

edifice. Its definition and purpose are rooted in the principles of fairness, justice, and
the protection of individual rights. The legal basis within the CrPC outlines the
authority of the courts to issue summons, emphasizing a nuanced approach that
respects the rights of the accused. This legal instrument, while ensuring the court's
control over legal proceedings, underscores the delicate balance between the interests
of justice and the protection of individual freedoms.

Initiation of summoning process

Filing of Complaint or FIR

The initiation of the summoning process hinges upon the filing of a complaint or the
registration of a First Information Report (FIR). A complaint, which can be filed by
any person with knowledge of an offense, serves as the initial communication to legal
authorities. Simultaneously, an FIR, lodged with the police, formalizes information
regarding a cognizable offense.

These documents act as triggers for the involvement of the Magistrate. The
Magistrate, upon receiving this information, assumes a pivotal role in the summoning
process. Section 204 of the Criminal Procedure Code provides the legal framework,
empowering the Magistrate to decide whether to issue a summon based on the nature
and evidence presented. This discretion ensures a judicious and balanced initiation of
legal proceedings.

In essence, the filing of a complaint or FIR marks the commencement of the legal
trajectory, while the Magistrate's subsequent role determines the issuance of a
summon, setting the stage for the accused's involvement in the criminal justice
process.

Role of Magistrate

The role of the Magistrate is central to the initiation of the summoning process under
the Criminal Procedure Code (CrPC). Once a complaint or First Information Report
(FIR) is filed, the Magistrate assumes a pivotal position in the legal proceedings.

The Magistrate acts as a gatekeeper, reviewing the information presented and

exercising discretion to determine the need for summoning. This judicial officer
assesses the grounds for proceeding, weighing the evidence and circumstances of the
alleged offense. Section 204 of the CrPC explicitly outlines the Magistrate's authority
to issue a summon when it deems the accused's immediate arrest unnecessary.

The Magistrate's role extends beyond administrative tasks; it is fundamentally

judicial. By deciding to issue a summon, the Magistrate ensures the fair initiation of
legal proceedings, preventing unwarranted arrests and upholding the principles of
justice. This includes safeguarding the accused's right to defend themselves and
maintaining the integrity of the criminal justice system.

In essence, the Magistrate's involvement in the summoning process is a critical aspect

of the legal system, embodying the principles of fairness, discretion, and the careful
administration of justice.

Conditions and requirements

Grounds for Issuing a Summon:

The issuance of a summon under the Criminal Procedure Code is contingent upon the
existence of sufficient grounds. Section 204 of the CrPC empowers the Magistrate to issue a
summon if, after considering the evidence and circumstances, it is deemed unnecessary to
arrest the accused immediately. These grounds may include situations where the accused's
presence can be secured without resorting to immediate arrest, maintaining a delicate
balance between the interests of justice and individual liberties. The discretion afforded to
the Magistrate ensures a nuanced approach, considering the nature of the offense and the
available evidence.

Jurisdiction:
Jurisdiction is a fundamental prerequisite for the lawful issuance of a summon. The
Magistrate must have the legal authority over the territorial area where the offense occurred
or where the accused resides. Section 204, in conjunction with other relevant provisions,
establishes the geographical limits within which a Magistrate can validly issue a summon.
Adhering to jurisdictional boundaries is essential for upholding the rule of law, ensuring that
legal processes are conducted by the appropriate authority. A summon issued without proper
jurisdiction may be legally challenged, emphasizing the significance of this condition in
maintaining the integrity of the criminal justice system.

Format and Content of Summon

Information Included:

A summon under the Criminal Procedure Code typically includes essential

information to notify the recipient about their legal obligations. This encompasses
details such as the court's name, the case number, and the names of the parties
involved. The summon specifies the nature of the alleged offense and outlines the
charges against the accused or the role of the witness. Additionally, it includes the
date and time for the individual's appearance in court. This information aims to
provide clarity and ensure that the recipient is well-informed about the legal
proceedings.
Form and Language:
The form and language of a summon are standardized to maintain consistency and
clarity. It is usually presented in a formal document format, bearing the seal of the
court. The language used is clear and unambiguous, ensuring that the recipient
comprehends the legal requirements. The summon is typically drafted in the official
language of the court, and efforts are made to make it accessible to individuals who
may not be well-versed in legal terminology. The use of precise and straightforward
language is crucial to convey the seriousness of the legal notice and to facilitate a
proper understanding of the recipient's obligations.

How will the Summons be issued

Service of summons will be issued to a person where he ordinarily resides or
conducts business. Section 64 provides that when the person is not found, it shall be
served to the adult male member of the family residing with him by providing
duplicate of the service. It is to be noted that the explanation to this section clearly
mentions that a servant is not a member of the family. Section 63 of the CrPC
provides for service of summons on a corporate body or society. It states that service
of summons shall be served on the organization’s secretary, local manager or other
principal officer of the corporation or by a letter sent through a registered post
addressed to the chief officer of the corporation. If the summons could not be served
upon the person/party as provided in Section 62, 63 and 64, the serving officer shall
affix the duplicate of the summons on a conspicuous part of the house where the
party summoned ordinarily resides. If the person on whom the service of summons is
to be issued is a government employee, the court will send the duplicate to the head
of the office in which he works. A Court issuing a summons to a witness directs 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.
In HDFC Bank Ltd V. Amit Kumar Singh (2009), the Supreme Court reiterated that a
summons to an accused cannot be sent by a post but should be delivered personally.
Only when the summons is to be issued to a witness, it can be sent through a
registered post. In Sanjay Kumar V. State of Bihar (2018), the Patna High Court held
that it is the duty of the court to enquire about the service of the summons. If the
summons is not served, it is the ultimate duty of the court to see to it that they are
served.The court further observed that liberty of an individual and social interest
should be balanced and the judicial power conferred upon them to issue warrants
must be used with utmost caution so as not to cause any prejudice to any parties.
This court referring to Patna High Court’s judgement in Cr. Misc No. 629 observed
that at the first instance, the court should order serving of summons. If the accused is
avoiding the summons, the court, in the second instance should issue bailable
warrant. In the third instance, when the court is satisfied that the accused is avoiding
the court's proceeding intentionally, the process of issuance of the non-bailable
warrant should be resorted to. Personal liberty is paramount; therefore, the court
cautioned that courts should, at the first and second instance, refrain from issuing
non-bailable warrants.

What happens if the person upon whom summons is served does not appear
before the court?
Section 87(b) of CrPC provides that if such person fails to appear and the summons is
proved to have been duly served in time to admit of his appearing in accordance
therewith and no reasonable excuse is offered for such failure, the court may, after
recording its reason in writing, issue warrant of such person. The Court after making
such inquiries as it thinks fit, may either declare that the summons has been duly
served or order fresh service in such manner as it considers proper as provided under
Section 65 Cr.P.C. In Ram Chandra Mishra V. The State (1994), the Orissa High
Court held that temporary absence does not attract Section 64 and due diligence must
be carried out to serve the summons. There must be an attempt to find out the person
summoned against and the process server's report should show that an attempt was
made. In the absences of proof that the person summoned cannot, after exercise of
due diligence, be found, service on adult male member of the family residing with
him is not valid. If a petition is filed under Section 125 of Cr.P.C for maintenance and
if the husband is willfully avoiding the service of summons or court proceedings the
court has the power to hear the case and pass ex parte orders. It is to be noted here
that this proviso in Section 126 is an exception to the rule laid down in Section 126
which states that all proceedings in this case will be heard in the presence of the
person against whom an order for payment of maintenance is desired. It is again clear
that the court should have taken sufficient steps to find the person on whom the
summons is to be served.
Essentials of Summons:

The summons should be specific and clear in its terms regarding information such as
the title of the Court, the place at which, the day and time of the day when the
attendance of the person summoned are required. The essentials of summons, issued
by the court under Section 61 of The Code of Criminal Procedure, are:

◦ It must be in writing;
◦ It must be in duplicate form;
◦ It must be signed and sealed by the presiding officer of the court or such other
officer authorized by the High Court;
◦ It must mention the time and place of the rule directed; and
◦ it must bear the seal of the court.

Methods of Serving Summons:

1. By personal service under Section 62

2. By service on corporate bodies and societies under Section 63
3. By extended service when a person summoned cannot be found under Section
64
4. By Service on Government servant under Section 66
5. By Service of summons outside local limits under Section 67

Section 62: The Code of Criminal Procedure, 1973:

Summons How Served:

(1) Every summons shall be served by a police officer, or subject to such rules as the
State Government may make in this behalf, by an officer of the Court issuing it or
other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned,
by delivering or tendering to him one of the duplicates of the summons.

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

Who can serve the summons?

◦ a police officer, or
 ◦ by an officer of the Court issuing it, or
◦ other public servant.
Procedure to Serve Summons:

◦ Prepare Summons considering its all essentials as per Section 61 and as given in
Schedule II Form 1 of CrPC
◦ A police officer or an officer of the Court issuing the summons or other public
servant has to serve it to the person summoned if practicable personally;
◦ The serving officer should explain it to the person summoned.
◦ Its duplicate copy is to be given to the person summoned.
◦ A receipt of the summons by the person summoned should be confirmed by his
signature on the back of the other duplicate.
In Karsanlal Danatram (1868) 5 BHRC (Cr C) 20 case, the Court held that the mere
showing of a summons to a witness is not sufficient to service. Either summons
should be left with the witness or exhibited to him and a copy of it delivered or
tendered.

In Queen v. Punamalai, (1882) 5 Mad 199 case, the Court held that the tender of a
copy of the summons to the witness is sufficient service.

Section 62 of the Code do not contemplate issuance of summons to accused by post,

though permissible to witness.

In Nav Maharashtra Chakan Oil Ltd. v. Shivshakti Poultry Farm, (2002) 3 BC 403
case, the Court held that the dismissal of the complaint for non-payment of RPAD
charges for issuing summons to the accused by post would be illegal.

In Satya Securities v. Uma Erry, 2002 Cr LJ 3714 (HP) case, the Court held that
service on accused through his counsel is not permissible and as such on the failure of
the accused to appear, a warrant would not be issued; the procedure would be illegal.

In State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 case, the Court held
that when a power is conferred then same has to be exercised in the mode prescribed
in the statute and in no other way.

Section 63: The Code of Criminal Procedure, 1973

Service of Summons on Corporate Bodies and Societies:

Service of a summons 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. Explanation:

In this section” corporation” means an incorporated company or other body corporate

and includes a society registered under the Societies Registration Act, 1860 (21 of
1860 ).

Generally, the meaning of the word ‘corporate’ in this Section of the Criminal
Procedure Code means an incorporated company or any other corporate body. This
also includes a society that is registered under the Societies Registration Act of 1860.
Therefore, societies may not be a body that is formally incorporated although, in
Section 63, it is mentioned that societies fall within the scope of this law.

To whom such summons can be served?

◦ secretary,
◦ local manager or
◦ other principal officer of the corporation,
Summons under this Section can also be served by letter sent by registered post,
addressed to the chief officer of the corporation in India. In such a case the service
shall be deemed to have been effected when the letter would arrive in ordinary course
of post.

In Anil D Ambani v. State of Bihar, 2006 (4) Pat LJR 571 (Pat) case a summons was
issued to the Managing Deputy Director of a company. The Court held that when a
corporate body is an accused before the Court, the summons for appearance of the
corporate body has to be sent in the name of the corporate body itself and the Court
held the service illegal.

In Central Bank of India v. Delhi Development Authority, 1981 Cr LJ 1476 (Del)

case, the Court held that with regard to service of summons on a corporation, service
of the same on its branch manager shall be deemed to be a service on the bank itself.

Section 64: The Code of Criminal Procedure, 1973

Service When Persons Summoned 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 for him with some adult
male member of his family residing with him, and the person with whom the
summons is so left shall, if so required by the serving officer, sign a receipt therefor
on the back of the other duplicate.

Explanation:

A servant is not a member of the family within the meaning of this section.

The personal service under Section 62 of the Code is the best service. But if
irrespective of proper and sincere efforts, the serving officer failed to deliver the
summons to the person summoned personally then under Section 64 of the Code, it
can be delivered to some other member of the family, who is satisfying following
conditions

◦ He is adult (Age more than 18 years)

◦ He is a male
◦ He is not insane or intoxicated
◦ He should be residing with the person summoned.
A duplicate copy of the summons should be left with the person receiving it.
Explanation clearly mentions that a servant is not a member of the family within the
meaning of this section. In Hemendra Nath v. Archana, 1971 CrLJ 817 (Cal) case, the
Court held that to justify service under Section 64 of CrPC, it should be shown that
proper efforts were made to find the person summoned.

In Ram Chandra Mishra v. State of Orissa, 1995 (4) Crimes 54 (56) (Ori) case, the
Court held that a temporary absence of the person summoned from the home is not
sufficient to justify service under Section 64 of CrPC. The Court further held that
offer to a male member not sufficient service within the meaning of Section 64 of
CrPC. Section 64 of the Code do not contemplate issuance of summons to accused by
post, though permissible to witness.

Section 65: The Code of Criminal Procedure, 1973

Procedure when service cannot be effected as before provided:

If service cannot by the exercise of due diligence be effected as provided in section

62, section 63 or section 64, the serving officer shall affix one of the duplicates of the
summons to some conspicuous part of the house or homestead in which the person
summoned ordinarily resides; and thereupon the Court, after making such inquiries as
it thinks fit, may either declare that the summons has been duly served or order fresh
service in such manner as it considers proper.
To serve summons under Section 65, the police officer should justify that he had
taken proper efforts to serve it as prescribed in Section 62 and then Under 64 and
failed to serve. Thus the use of Section 64 can be effected only if the serving officer
is unable to serve under Section 62 and 64. If the summons is not served it is a duty
of the court to see that it is served. Under Section 65 of the Code, the serving officer
shall affix one of the duplicates of the summons to some conspicuous part of the
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.

In Mac Charles (I) Ltd. v. Chandrasekhar, 2005 Cr LJ 3700 (3705) (Kan-DB) case,
the Court held that when personal service cannot be effected under Section 62 and
extended service under Section 64 cannot be secured, the law permits substituted
service.

Section 65 of the Code do not contemplate issuance of summons to accused by post,

though permissible to witness.

Section 66: The Code of Criminal Procedure, 1973

Service on Government servant:

(1) Where the person summoned is in the active service of the Government, the Court
issuing the summons shall ordinarily sent 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.

(2) Such signature shall be evidence of due service.

When a Government Servant is to be summoned and is in active service of the

Government, then the summons in duplicate shall ordinarily be sent to the Head of
the office in which such person is employed. Now, the head of the office is bound to
serve it to such person as specified under 62 of the Code. And after obtaining
signature on the back of the duplicate from such person, he has to return the signed
copy with endorsement to the Court.

Section 67: The Code of Criminal Procedure, 1973

Service of summons outside local limits:

When a Court desires that a summons issued by it shall be served at any place outside
its local jurisdiction, it shall ordinarily send such summons in duplicate to a
Magistrate within whose local jurisdiction the person summoned resides, or is, to be
there served

When a Court wants to summon someone beyond its local jurisdiction then the Court
should send such summons in duplicate a Magistrate under whose jurisdiction the
person resides. The Magistrate under whose jurisdiction the person resides issue it to
concerned police officer to serve it.

Section 68: The Code of Criminal Procedure, 1973

Proof of service in such cases and when serving officer not present:

(1) When a summons issued by a Court is served outside its local jurisdiction, and in
any case where the officer who has served a summons is not present at the hearing of
the case, an affidavit, purporting to be made before a Magistrate, that such summons
has been served, and a duplicate of the summons purporting to be 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, and the
statements made therein shall be deemed to be correct unless and until the contrary is
proved.

(2) The affidavit mentioned in this section may be attached to the duplicate of the
summons are returned to the Court

Sometimes the jurisdiction in which the person resides lies very much away from the
jurisdiction of the Court who has issued summons, that the serving officer of the
jurisdiction in which the person resides is unable to attend the trials. In such a case he
can make an affidavit saying that he has served the summons in the manner provided
by section 62 or section 64 of the Code. This affidavit with duplicate signed copy of
the summons shall be considered as admissible in evidence, and the statements made
therein shall be deemed to be correct unless and until the contrary is proved.

Section 69: The Code of Criminal Procedure, 1973

Service of summons on witness by post:

(1) Notwithstanding anything contained in the preceding sections of this Chapter, 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
(2) When an acknowledgment purporting to be signed by the witness or an
endorsement purporting to be made by a postal employee that the witness refused to
take delivery of the summons has been received, the Court issuing the summons may
declare that the summons has been duly served.

The Summons to witness can be served by post. It can also be served through
registered post. When postman is delivering it to such person and he refused to accept
it and the postman put a remark on it that the receiver refused to accept, then it is
considered as evidence and the issuing Court may declare that the summons is duly
served.

CONCLUSION

In conclusion, the summoning process under the Criminal Procedure Code (CrPC) is
a linchpin in the fabric of criminal justice in India. Summons serve as legal
instruments, initiating the participation of individuals in legal proceedings while
upholding principles of fairness and justice.

Summons encapsulates a procedural mechanism initiated upon the filing of a

complaint or First Information Report (FIR), marking the beginning of the legal
trajectory. The role of the Magistrate is pivotal, involving a judicious review of the
grounds for issuing a summon. Section 204 of the CrPC grants the Magistrate
discretion, emphasizing a balanced approach that considers the nature of the offense,
the available evidence, and the necessity of immediate arrest.

The grounds for issuing a summon are rooted in the idea that immediate arrest may
not always be imperative, aligning with the principles of proportionality and
individual liberties. This discretion ensures a nuanced response to diverse situations,
maintaining a delicate equilibrium between the interests of justice and the rights of
the accused or witnesses. The implications of the summoning process reverberate
through the criminal justice system. It ensures due process by notifying individuals of
their legal obligations and offering them an opportunity to participate in their defense.
This contributes to the truth-seeking function of legal proceedings by securing the
presence of the accused and witnesses.

In the broader context, the summoning process reflects a commitment to a legal

system that values fairness, transparency, and individual rights. It is not merely a
procedural formality but a mechanism that underlines the principles of justice. The
careful balance struck by the summoning process holds profound implications for the
credibility and effectiveness of the criminal justice system, ensuring that legal
proceedings are conducted with diligence, respect for rights, and adherence to the
rule of law.
 BIBLIOGRAPHY

Legislation:
• Criminal Procedure Code, 1973 (CrPC), Act No. 2 of 1974, India.

Book:

• Chandrashekaran Pillai, kelkar Lecturer on Criminal Procedure, Eastern BookCo.

• Ratanlal and Dheerajlal,CrPC, Universal,Delhi

Online resources

• Legal Service India

• Scc online

• Manupatra