CHAPTER VI, SECTION 61 TO 69OF CRIMINAL PROCEDURE CODE (CRPC)-PROCESSES TO COMPEL APPEARANCE
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A summons is a legal document that is issued by a court in a civil lawsuit, or by a government agency in an administrative action. The document notifies the defendant he is being sued, or that there is an administrative action against him, as well as the date and time of the first hearing. A summons also provides the defendant with the opportunity to respond to the case if he wishes to do so. To explore this concept, consider the following summons definition.
Definition of Summons
Noun
- A legal document that notifies a defendant that a lawsuit has been filed against him.
- A call by authority to appear before a court or judicial officer.
Origin
1250-1300 Middle English somons
What is a Summons
According to the law, when an individual (the “plaintiff”) files a complaint initiating a lawsuit against another party (the “defendant”), he is legally required to inform that party that he has done so. The summons provides the defendant with the identity of the court in which the lawsuit has been filed, identifies all of the parties involved in the lawsuit, and bears the signature and official seal of the court clerk. The summons is served with the complaint on the defendant, at which point the lawsuit officially begins.
Information in a Court Summons
In some states, summonses are written in legal English, which may be difficult to understand. Other states have drafted their court summons in plain English that prominently states ” Notice! You have been sued.” The other information contained in a summons may vary slightly by jurisdiction, but generally includes basic identifying information of the plaintiff and defendant, the date of the first hearing, if scheduled, and the amount of time the defendant has to respond to the lawsuit.
Civil Summons
A civil summons accompanies a complaint in a civil lawsuit or family law matter. The civil summons must be personally served by a process server, sheriff, constable, or other person over the age of 18. While this type of summons specifies the court in which the action is filed, and information about answering the lawsuit, it is the complaint that provides comprehensive information about the lawsuit itself. The complaint in a civil lawsuit also specifies the court in which the lawsuit is pending, provides the names of every party to the action, and details the reason for the lawsuit and what the plaintiff is seeking in damages. Failing to respond to a civil summons and complaint may result in the plaintiff being awarded a default judgment, and whatever he is seeking in damages.
Serving a Civil Summons, Complaint, or Answer
Serving a summons and complaint on the defendant, or an answer on the plaintiff, there are certain rules that must be followed. This is referred to as “service of process,” and must be completed properly, as specified by the state’s laws. There are several methods of service, all of which require service to be done by a mentally competent person over the age of 18, who is not involved in the case. While the summons and complaint must be served in person, the answer and most other documents as the case progresses may be served by mail. Whatever method of service is used, the server must complete and sign a proof of service of form, which is filed with the court.
How to Answer a Summons
The first step to take after being served with a civil summons and complaint is to read everything carefully. After assessing the situation, the defendant should determine if it is in his best interest to hire an attorney. If an attorney is hired, he will help the individual provide an answer to the summons and complaint. Answering a civil summons actually entails providing a written response to the complaint, addressing each allegation made by the plaintiff. The answer must be filed with the court within the time limit specified on the summons, and a copy served on the plaintiff.
What is an Administrative Summons
Certain governmental agencies have the right to demand records or information, including financial information, from individuals when necessary. This is done by the issuance of an administrative summons or subpoena. For example, the Internal Revenue Service issues an administrative summons when a person or entity is required to appear before the U.S. Secretary of the Treasury or other IRS employee. The person summoned may be an accountant or other person related to, or in charge of, business accounts. The summoned person is required to produce evidence in the form of records and data. He may also be required to testify under oath in front of a representative of the IRS.
Criminal Summons
A criminal summons is sometimes issued to notify an individual that he is facing criminal charges. Rather than arresting the individual, a criminal summons, or “summons in lieu of arrest,” notifies the individual of the criminal charges against him, as well as the date on which he must appear in court to enter a plea. Criminal summonses are used for both misdemeanor and felony charges, making it important for someone receiving one to consult an attorney. Failing to appear in court on the date specified in the summons usually results in an arrest warrant being issued, and may result in additional criminal charges.
A Citation or Notice to Appear
A citation or notice to appear may be issued by a law enforcement official at the scene of an incident, such as a traffic infraction, traffic accident, or certain misdemeanor crimes. This type of summons usually provides the offender with one of two options: (1) Enter a guilty plea by paying the violation before a date specified on the citation, or (2) appear before the judge on a specified date to contest the charges. If the individual who has received a summons in the form of a citation or notice to appear fails to do one or the other, he may be charged with the crime of “failure to appear.”
Jury Duty Summons
In order to find jurors to sit on any case, the court sends out questionnaires to a random list of registered voters and people possessing valid driver’s licenses within the court’s jurisdiction. The court uses these forms to determine which of these individuals are qualified to serve on a jury. The court then sends out a jury duty summons to each person on the list of potential jurors. Potential jurors who report on the date specified on the summons then face a process called “voir dire.” This process involves answering questions posed by the attorneys and the judge to determine whether they are suitable for the specific trial at hand. This is done to eliminate potential jurors who could not provide fair and unbiased decisions regarding the case.
While many people are tempted to ignore a jury duty summons, that can result in negative consequences. In some states, a person who fails to respond to a jury duty summons may face jail time or hefty fines. In fact, in 2003 alone, the state of Massachusetts handed down over 96,000,000 in fines to people ignoring jury duty summonses. If a person responds to the summons, and is selected for jury duty, he has a duty to hear witnesses, evaluate evidence, and review other information presented during the trial in order to determine whether the defendant is guilty or not guilty.
Grand Jury Summons
A grand jury summons is similar to that of a jury duty summons, but the goal of the jury and the process is different. A grand jury is a pool of people who review evidence presented by the prosecutor to determine whether or not there is enough evidence to charge an individual with a crime. Grand jurors view evidence, hear testimony, question witnesses, and work together to this end. Grand juries often serve terms of a few months, rather than being convened for only one case. Ignoring a grand jury summons can have the same negative consequences as ignoring a jury duty summons.
Related Legal Terms and Issues
- Authority – The right or power to make decisions, give orders, or to control something or someone.
- Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
- Custody – The protective care of something, or someone.
- Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
- Default – Failure to fulfill an obligation, or to appear in a court of law when summoned.
- Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
- Divorce – The legal termination of a marriage.
- Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice
- Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
Summons and Warrants
A summons is an officially issued document that is released by any Court on an individual or an entity who may be involved in a legal proceeding. A summon is usually served when legal action is taken against an individual, or a person is required to appear before a court as a witness in a proceeding. This document ensures that the person is called upon and his presence on the given date of the hearing. On the other hand, a warrant is issued to apprehend an individual committing a particular offence(s). In this article, we study the aspects of the same mention in The Criminal Procedure Code: Summons and Warrants.
Summons To Witness
(See sections 61 and 244 Criminal Procedure Code)
To
WHEREAS complaint has been made before me that (name of the accused) of (address) has (or is suspected to have) committed the offence of (state the offence concisely with time and place), and it appears to me that you are likely to give material evidence or to produce any document or other thing for the prosecution;
You are hereby summoned to appear before this Court on the day of next at ten o’clock in the forenoon, to produce such document or thing or to testify what you know concerning the matter of the said complaint, and not to depart thence without leave of the Court; and you are hereby warned that, if you shall without just excuse neglect or refuse to appear on the said date, a warrant will be issued to compel your attendance.
Dated, this ………day of………19.
(Seal of the Court) (Signature)
Summons (Sec 61-69) Cr.P.C.
Summons is issued either for appearance of the accused or the of witness or for producing documents or things. It is a process issued by Court calling upon a person to appear before Magistrate. Wilful Disobedience of the same is punishable under Sec 174 of IPC.
Section wise Explanation
Section 61: What is Summon and how is it to be made?
- shall be in writing.
- in duplicate
- signed by the presiding officer
- seal of the Court
Section 62: How to be served?
- to be served by a Police Officer/An Officer of Court/Other Public Servant.
- if practicableto be served personally.
- if required by the Court, the RECIPIENT shall sign the receipt.
Section 63: When summons to be served on Corporations.
- to be served on the Secretary/Local Manager/Other Principal Officer of the Corporation
- OR by registered post addressed to the Chief Officer of the Corporation.
of the Government
- shall ordinarily be sent to the Head of the office in which the such person is employed.
SUMMON TO PRODUCE DOCUMENT OR OTHER THINGS (Section 91& 92)
Section 91 lays down that if the Court considers any document or other thing important for the investigation then it can summon the person in possession of the same to produce it before the court.
Section 92 lays down that if Court(District Magistrate/ Chief Judicial Magistrate/ Court of Session/High Court) feels that any document, parcel or thing in the custody of the postal or telegram authority is important for the investigation then same can be acquired from them.
61. Form of summons.
Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court.
62. 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.
63. 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)
64. 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.
65. 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.
CASE
Mac Charles (I) Ltd. vs Chandrashekar And Anr. on 30 June, 200
ORDER B. Padmaraj, J.
1. The following questions of law have been referred to this Bench for decision by an order of the Hon’ble Chief Justice:
1. Where for a considerable period the accused cannot be apprehended, despite efforts by Court, whether case against him may be separated in terms of Rule 2 of chapter IV of the Karnataka Criminal Rules of Practice?
2. Whether substituted service is permissible in a criminal case?
3. Whether an accused can be proceeded exparte and a decision may be given exparte regarding his guilt or otherwise of the matter?
2. The above reference to this Bench arises this way:
A Complaint Petition came to be filed by the complainant under Section 200 of Cr.P.C. against the 12 accused persons alleging the commission of offence under Section 138 of the Negotiable Instruments Act before the trial Court. The accused No. 1 in that case is the company and the accused Nos.2 to 10 are the Directors of the said company who are alleged to be the persons incharge of the day to day affairs of the said company. The accused Nos. 11 and 12, who are the respondents herein are the employees of the first accused/ company. The first accused/company had issued two cheques in favour of the complainant. They were both dated 23.11.1996. The drawer of these two cheques is the company and they are alleged to have been signed on behalf of the company by its employees viz., the accused Nos. 11 and 12. These two cheques on being presented to the Bank have been dishonoured for want of sufficient funds. Thereupon the complainant got issued a legal notice to the accused which was stated to have been duly served on them on 18.3.1994. The accused did not issue any reply, nor did they comply with the terms of the said legal notice issued by the complainant Consequent thereupon, the compalinant instituted a complaint before the trial Court against the accused for having committed the alleged offence under Section 138 of the Negotiable Instruments Act. The trial Court took cognizance of the offence alleged against the accused on 11.9.1997 and directed for issue of summons to all the accused. Pursuant to which, the accused Nos. 11 and 12 (the respondents herein) entered appearance in the case through their Counsel and so also the accused No. 10. In the course of the proceedings, the trial Court having found that summons to the accused persons A-1 to A-9 could not be served under due process of law and their presence cannot be secured within a reasonable time, passed an order on 13.3.2000 splitting up of the case against the accused Nos. 1 to 10 from that of the accused Nos. 11 and 12. After the case against the accused Nos. 1 to 10 came to be split up by the trial Court in the manner as contemplated under chapter IV of the Karnataka Criminal Rules of Practice, 1968, the case as against the accused Nos. 10, 11 and 12 was proceeded with further. On 20.5.2000 the plea of the respondents as well as the accused No. 10 had been recorded. The said accused having pleaded not guilty and claimed to be tried, the complainant adduced evidence on his behalf in the case. In the meantime, the accused No. 10 approached this Court challenging the order taking cognizance of the offence against him and the Petition filed by him came to be allowed. Consequently the accused No. 10 stood discharged in the case. As of now, the trial of the case is pending against the respondents herein who are accused Nos. 11 and 12. When the matter was set down for hearing arguments, an application came to be filed before the trial Court challenging the order dated 13.3.2000 by the respondents herein. By that application they also sought for their discharge. That application of the respondents herein came to be dismissed by the trial Court on 5.8.2004. Aggrieved thereby, the respondents herein filed a Revision Petition before the Sessions Court which came to be dismissed on 17.8.2004. Challenging both the orders, the respondents herein came up before this Court by filing a petition under Section 482 of Cr.P.C. The said Criminal Petition after contest, came to be disposed of on 4.1.2005 with a direction to the complainant to take steps to proceed against the accused Nos. 1 to 9 as well, in addition to the accused Nos. 11 and 12. In that Criminal Petition, the learned Single Judge of this Court has however held that the order of splitting up of the case against the accused persons A-1 to A-9 is bad in law. It appears that the said order has become final and conclusive as none of the parties have challenged the said order. Thereafter the respondents herein stated to have filed a memo furnishing the addresses of the accused Nos. 2 to 9 for issue of summons to them before the trial Court. The complainant has however filed an application to take out paper publication against the accused Nos. 1 to 9. That is to say, the complainant sought for issue of notice to them by publication in the local news paper which was in circulation in the locality. The trial Court granted the prayer made in the application of the complainant. It appears that the said order came to be passed by the trial Court pursuant to the observations made by this Court in the criminal petition filed under Section 482 of Cr.P.C by the respondents in Criminal Petition No. 2906/2004. The said order of the trial Court granting the prayer of the complainant came to be challenged in revision by the respondents herein. The said Revision Petition having been allowed, the complainant has come up before this Court by filing a petition under Section 482 of Cr.P.C. In the petition so filed by the complainant under Section 482 of Cr.P.C. in Criminal Petition No. 778/2005, the present reference came to be made by the learned single Judge.
3. We have heard the arguments of the Learned Counsel on either side on the reference made to this Bench at a considerable length and carefully perused the relevant provisions of Cr.P.C, the Karnataka Criminal Rules of Practice and the Negotiable Instruments Act with their assistance.
4. Learned Counsel for the petitioner has contended that Rule 2 of the Karnataka Criminal Rules of Practice has no application to the proceedings initiated for the offence under Section 138 of the Negotiable Instruments Act. While elaborating this submission, he contended that a separate mode of service of summons has been prescribed under Section 144 of the Negotiable Instruments Act which permits the service of summons by speed post and courier service at the place where the accused has last resided and that being so, the service of summons to the accused by publication in any news paper which is widely in circulation at the place of the accused could also be considered to be one of the recognized or accepted mode of service of summons to the accused either by implication or by analogy. According to the learned Counsel for the petitioner, the institution of proceedings for the offence under Section 138 of the Negotiable Instruments Act mainly being in the nature of the recovery proceedings, they are quasi-criminal in nature and the accepted mode of service of summons in the civil proceedings could by implication be extended to such proceedings also which is mainly in the nature of the recovery proceeding based on contractual rights almost akin to the civil proceedings. He also contended that certain amendments have been introduced to the original enactment of the Negotiable Instruments Act with a view to expedite the proceedings under Section 138 of the Negotiable Instruments Act and hence such a mode of service of summons to the accused is permissible in law and the same cannot be found fault with more so, when Section 144 of the Negotiable Instruments Act as well as Section 65 of Cr.P.C recognizes the other mode of service other than the personal service and the same being treated or declared to be sufficient service by the criminal Court. He however fairly concedes that the proceedings under Section 138 of the Negotiable Instruments Act being the one initiated in accordance with the procedure prescribed under the Cr.P.C. and the offences under the Negotiable Instalments Act being tried as a summary trial, the accused who remains absent and whose presence could not be secured within a reasonable time, the case as against such accused could be split up in the manner known to law and the proceedings against the other accused who are present before the Court could be proceeded with. He also fairly conceded that such a procedure is permissible in a criminal trial in view of the provisions contained under chapter IV of the Karnataka Criminal Rules of Practice. He further contended that when once the other mode of service of summons to the accused other than the personal service is recognized, the procceedings initiated under Section 138 of the Negotiable Instruments Act can be proceeded ex-parte even in the absence of the accused whose presence could not be secured within a reasonable time and the decision could be rendered ex-parte even against the absentee accused by holding him guilty of the offence under Section 138 of the Negotiable Instruments Act and imposing the alternate sentence of fine instead of substantive sentence of imprisonment, more so, when the proceedings initiated under Section 138 of the Negotiable Instruments Act being quasi-criminal in nature and the alternate sentence of imposing of sentence of fine only is permissible under law. He therefore contended that the answers to the Questions Nos. 1 to 3 referred for decision to this Bench may be recorded in the affirmative as the same being permissible in law. In support of his submissions, he sought to draw support from the provisions contained in Sections 126 and 144 of Cr.P.C. He further placed reliance upon a decision of this Court in the case of Percy Fernandes v. Smt. Anita Patrao, 2004(4) KCCR 2216 wherein the learned single Judge of this Court while dealing with the provision of Section 145 of the Negotiable Instruments Act has held as under:
“In view of provisions of Section 145 of N.I. Act and other provisions, and the opening words of Section 145 of N.I. Act, Section 145 of N.I. Act will have over riding effect on the provisions of Cr.P.C. So, not withstanding any thing contained in Cr.P.C evidence of complainant could be given by him on affidavit and it could be read in evidence in any enquiry, trial or other proceeding under Cr.P.C. but subject to all exceptions.”
5. In response, the Learned Counsel for the respondents has contended that in the criminal petition filed before this Court, it was held that the order of splitting up of the case against the other accused is bad in law and the said decision between the parties has become final and conclusive, which cannot be reopened on the factual aspects of the case. The Learned Counsel for the respondents would however fairly concede on the question of law that such a procedure is recognized under Chapter IV of the Karnataka Criminal Rules of Practice in criminal trials as the personal presence of the accused is very much required in a criminal trial and when the personal presence of some of the accused could not be secured in the manner known to law, the case against such accused may be split up in the manner as contemplated under Chapter IV of the Karnataka Criminal Rules of Practice. Learned Counsel for the respondents would however add that in such circumstances the accused against whom the proceedings will be continued will be seriously prejudiced by such splitting up of a case, more so, when the case against a company is to be split up of which the respondents are only the employees. But the Learned Counsel for the respondents would however fairly concede that in a criminal trial the splitting up of a case against the accused whose presence could not be secured within a reasonable time in the manner known to law, is permissible under Chapter IV of the Karnataka Criminal Rules of Practice. Learned Counsel for the respondents has further contended that though there is no specific provision for service of summons to the accused by paper publication, the provisions contained in Section 65 of Cr.P.C as well as Section 144 of the Negotiable Instruments Act gives necessary guidance that such a mode of service of summons to the accused is a recognized mode of service of summons to the accused. Learned Counsel for the respondents would however contend that though substituted service is permissible in a criminal trial under Section 65 of the Cr.P.C, as well as under Section 144 of the Negotiable Instruments Act, the trial of offence charged against the accused cannot be held in his absence and the presence of the accused has to be secured for the purpose of trial by resorting to the coercive measures as contemplated under law and inspite of such coercive measures being taken against the accused if his presence could not be secured, the case against such accused has to be split up in the manner as contemplated under Chapter IV of the Karnataka Criminal Rules of Practice. Learned Counsel would therefore contend that the criminal trial whether it be for the offences under the IPC or under the Negotiable Instruments Act cannot be proceeded exparte as in the case of the civil proceedings. According to the Learned Counsel for the respondents the answer to Question No. 3 must necessarily be in the negative inasmuch as a criminal trial against an accused cannot be held exparte.
6. We have also heard the learned SPP in this reference to assist the Court in arriving at a correct decision and he has effectively assisted the Court.
7. It has to be stated at the outset that our decision in the matter shall be confined only to the questions of law referred to us for decision and we are not supposed to go into the factual aspects of the case and the same will have to be dealt with by the learned single Judge in the criminal petition pending before him after this reference is answered. The questions which have been referred to this Bench for decision are general in nature, in the sense they are generally related to a criminal trial and they are not specified to the proceedings initiated under Section 138 of the Negotiable Instruments Act. Keeping these things in mind, we shall now proceed to deal with the questions of law referred for decision to this Bench.
8. For the sake of convenience, we shall deal with Question Nos. 1 and 2 together as they are inter-related.
9. Section 65 of Cr.P.C. prescribes that if service cannot by the exercise of due diligence be effected as provided in Sections 62, 63 or 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. Indisputably the mode of service as prescribed under Section 65 of Cr.P.C. is substituted service viz., by affixture of one of the duplicates of the summons to some conspicuous part of the house of the accused. Such a mode of service of summons to the accused could be resorted to when the service of summons to the accused in the manner as contemplated under Sections 62, 63 or 64 cannot be effective. In other words, when the summons to the accused cannot be served under the due process of law, the same could be served by substituted method of service as contemplated under Section 65 of Cr.P.C. No doubt such a mode of service as prescribed under Section 65 of Cr.P.C could be resorted to only after exhausting the other mode of service of summons under Sections 62, 63 or 64 and the same having been found to be ineffective. But the fact of the matter is that the service of summons to the accused other than the personal service is recognized under law. That is to say, service of summons to an accused even in criminal trial could be effected by substituted service by affixture of one of the duplicates of the summons to some conspicuous part of the house in which the accused ordinarily resides. There cannot be any dispute that such a mode of service is recognised under law even in criminal trials. Hence the answer to Question No. 2 shall be in the affirmative. Similarly Section 144 of the Negotiable Instruments Act recognises the alternate mode of service of summons to the accused either by speed post or through courier service. In this context, a reference may be made to the provisions contained under Section 144 of the Negotiable Instruments Act which prescribes that notwithstanding anything contained in the code of criminal procedure, and for the purposes of this chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain, by speed post or by such courier services as are approved by a Court of Session and Sub-section (2) of Section 144 says where an acknowledgement purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or the courier services that the accused or the witness refused to take delivery of summons has been received, the Court issuing the summons may declare that the summons has been duly served. Therefore in terms of Section 144 of the Negotiable Instruments Act, the service of summons to an accused could be effected by resorting to one of the modes prescribed therein and such a service could be held or declared to be sufficient as in the case of Section 65 of Cr.P.C. It is to be concluded therefore that substituted mode of service to an accused is recognized in a criminal trial whether it be an offence under the IPC or under the Negotiable Instruments Act. But the next important question for consideration would be what should happen to the criminal proceeding initiated against the accused if the accused did not turn up even after such service of notice on him and the same having been declared to be sufficient service by the Court. It is needless to point out that the presence of accused in a criminal trial is a must. No criminal trial could proceed in the absence of an accused for the obvious reasons that the plea of the accused has to be recorded and if he pleads not guilty, the trial has to be held in his presence and the statement of the accused if any has to be recorded and that further in case if the accused is to be convincted his presence will be very much required before the Court, more so, when the sentence to be imposed against the accused is the substantive sentence of imprisonment. In this context, a reference may be made to Section 273 of Cr.P.C which prescribes that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with in the presence of his pleader. That means the evidence in a criminal trial cannot be taken in the absence of an accused except as otherwise provided under law. In other words, a criminal trial cannot be held in the absence of an accused or his counsel when the personal presence of the accused is dispensed with in the manner as recognized under the provisions of Cr.P.C. The only exception to this procedure appears to be the one prescribed under Section 126 of Cr.P.C. But no such exception is made in cases where the plea of the accused has to be recorded, the evidence has to be taken at the trial, the statement of the accused has to be recorded and in the event of the accused being found guilty, his presence will be required for passing an order of conviction and if he is to be sentenced with imprisonment, his presence is required. This being the position in a criminal trial, if the accused did not respond even after the service of notice to him by the other mode of service prescribed under Section 65 or under Section 144 of the Negotiable Instruments Act, the presence of the accused will have to be secured by resorting to the coercive methods like issue of warrants and proclamation in the manner as contemplated under the provisions of the Cr.P.C. This is very much necessary because in the absence of an accused, a criminal trial cannot be proceeded with effectively and the accused cannot be convicted and sentenced to custodial sentence without his personal presence being secured before the Court. There may be cases where even by resorting to such coercive measures, the presence of the accused could not be secured within a reasonable time, then the provisions as contemplated under Chapter IV of the Karnataka Criminal Rules of Practice will have to be resorted to and the case against such accused will have to be split up and it is only for the purpose of invoking the provisions contained in Chapter IV of the Karnataka Criminal Rules of Practice, the Court can resort to the procedure as prescribed under Section 299 of Cr.P.C. of recording the evidence of witnesses in the absence of the accused. Such a procedure is permissible only for the purpose of invoking the provisions contained under Chapter IV of the Karnataka Criminal Rules of Practice and not for the purpose of holding a trial when the presence of the accused could not be secured. Therefore in a criminal trial where the presence of the accused is a must and where the presence of the accused could not he secured in the manner known to law within a reasonable time, the case against such accused will have to be split up in the manner as provided under Chapter IV of the Karnataka Criminal Rules of Practice and the case against the remaining accused who are present before the Court could be proceeded with further in accordance with law. The same will be the procedure applicable even in cases instituted for the alleged offences under Section 138 of the Negotiable Instruments Act. Indisputably the provisions contained in Section 138 of the Negotiable Instruments Act is a substantive offence which deals with the conviction of the accused on being found guilty of such offence and the imposition of sentence on him on being so convicted thereunder. It is a criminal offence and not merely a recovery proceeding as sought to be argued on behalf of the petitioner and hence the proceedings instituted under Section 200 of Cr.P.C for the alleged offence under Section 138 of the Negotiable Instruments Act like any other criminal trial has to be held in the presence of the accused. It is no doubt true that the trial for such offence should be a summary trial. But summary trial does not mean that the trial could be proceeded in the absence of an accused. Section 143 of the Negotiable Instruments Act does not direct the Court to follow the procedure prescribed for trials under the Civil Procedure Code and on the contrary, it directs the Court to follow the procedure prescribed for trials under the Cr.P.C. Hence it is a criminal trial. Even in the case of summary trials, the plea of the accused has to be recorded and if the accused is found guilty after a regular trial, the accused will have to be convicted and substantive sentence of imprisonment or fine has to be imposed. That apart the evidence has to be taken in the presence of the accused. It is equally true that under Section 144 of the Negotiable Instruments Act, the evidence could be adduced in the form of an affidavit. But then that affidavit has to be countered by the other side in order to hold the accused guilty in case if the substance of the accusations made against the accused are found true and also he will have to be convicted of the substantive sentence for the offence under Section 138 of the Negotiable Instruments Act. All these cannot be done in the absence of an accused. Therefore having regard to the nature of procedure to be undergone in a criminal trial, the presence of the accused is a must. However one exception can be made in the case of an accused which is a company which cannot be convicted with a substantive sentence of imprisonment and could be sentenced with fine only in case if it is found guilty of the offence under Section 138 of the Negotiable Instruments Act. But normally a criminal trial whether it be for the offence under the IPC or under the Negotiable Instruments Act, cannot be held in the absence of an accused as the evidence at the trial has to be taken either in his presence or in the presence of his counsel in case if the personal presence of the accused is dispensed with in accordance with law. It is apparent from Section 4 that the provisions of the Cr.P.C are applicable where an offence under the Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. Section 273 of Cr.P.C makes it obligatory that the evidence for the prosecution and defence should be taken in the presence of the accused. The Rule enacted in this Section makes it imperative that all evidence in an inquiry or trial shall be taken in the presence of the accused. That being so, no exparte decision regarding the guilt or otherwise of the accused can be recorded in the absence of the accused. This being the clear position of law in case of criminal trials, it is to be held that no criminal trial where the plea of the accused has to be recorded, the evidence has to be taken at a trial and the accused if found guilty will have to be convicted and sentenced either with imprisonment or fine, could be effectively held in the absence of the accused. In other words, the exparte procedure as prescribed under the civil law is unknown to criminal law. In this view of the matter, our answer to Question No. 3 must necessarily be in the negative.
10. To conclude, our answers to Question Nos. 1 and 2 shall be in the affirmative whereas our answer to Question No. 3 shall be in the negative.
11. The reference is answered accordingly and the matter will have to be placed now before the learned single Judge to decide the case on merits with reference to the facts and circumstances of the case, in the light of the reference being answered by us in the manner as indicated above. The reference thus stands disposed of as above.
9. Section 65 of Cr.P.C. prescribes that if service cannot by the exercise of due diligence be effected as provided in Sections 62, 63 or 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. Indisputably the mode of service as prescribed under Section 65 of Cr.P.C. is substituted service viz., by affixture of one of the duplicates of the summons to some conspicuous part of the house of the accused. Such a mode of service of summons to the accused could be resorted to when the service of summons to the accused in the manner as contemplated under Sections 62, 63 or 64 cannot be effective. In other words, when the summons to the accused cannot be served under the due process of law, the same could be served by substituted method of service as contemplated under Section 65 of Cr.P.C. No doubt such a mode of service as prescribed under Section 65 of Cr.P.C could be resorted to only after exhausting the other mode of service of summons under Sections 62, 63 or 64 and the same having been found to be ineffective. But the fact of the matter is that the service of summons to the accused other than the personal service is recognized under law. That is to say, service of summons to an accused even in criminal trial could be effected by substituted service by affixture of one of the duplicates of the summons to some conspicuous part of the house in which the accused ordinarily resides. There cannot be any dispute that such a mode of service is recognised under law even in criminal trials. Hence the answer to Question No. 2 shall be in the affirmative. Similarly Section 144 of the Negotiable Instruments Act recognises the alternate mode of service of summons to the accused either by speed post or through courier service. In this context, a reference may be made to the provisions contained under Section 144 of the Negotiable Instruments Act which prescribes that notwithstanding anything contained in the code of criminal procedure, and for the purposes of this chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain, by speed post or by such courier services as are approved by a Court of Session and Sub-section (2) of Section 144 says where an acknowledgement purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or the courier services that the accused or the witness refused to take delivery of summons has been received, the Court issuing the summons may declare that the summons has been duly served. Therefore in terms of Section 144 of the Negotiable Instruments Act, the service of summons to an accused could be effected by resorting to one of the modes prescribed therein and such a service could be held or declared to be sufficient as in the case of Section 65 of Cr.P.C. It is to be concluded therefore that substituted mode of service to an accused is recognized in a criminal trial whether it be an offence under the IPC or under the Negotiable Instruments Act. But the next important question for consideration would be what should happen to the criminal proceeding initiated against the accused if the accused did not turn up even after such service of notice on him and the same having been declared to be sufficient service by the Court. It is needless to point out that the presence of accused in a criminal trial is a must. No criminal trial could proceed in the absence of an accused for the obvious reasons that the plea of the accused has to be recorded and if he pleads not guilty, the trial has to be held in his presence and the statement of the accused if any has to be recorded and that further in case if the accused is to be convincted his presence will be very much required before the Court, more so, when the sentence to be imposed against the accused is the substantive sentence of imprisonment. In this context, a reference may be made to Section 273 of Cr.P.C which prescribes that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with in the presence of his pleader. That means the evidence in a criminal trial cannot be taken in the absence of an accused except as otherwise provided under law. In other words, a criminal trial cannot be held in the absence of an accused or his counsel when the personal presence of the accused is dispensed with in the manner as recognized under the provisions of Cr.P.C. The only exception to this procedure appears to be the one prescribed under Section 126 of Cr.P.C. But no such exception is made in cases where the plea of the accused has to be recorded, the evidence has to be taken at the trial, the statement of the accused has to be recorded and in the event of the accused being found guilty, his presence will be required for passing an order of conviction and if he is to be sentenced with imprisonment, his presence is required. This being the position in a criminal trial, if the accused did not respond even after the service of notice to him by the other mode of service prescribed under Section 65 or under Section 144 of the Negotiable Instruments Act, the presence of the accused will have to be secured by resorting to the coercive methods like issue of warrants and proclamation in the manner as contemplated under the provisions of the Cr.P.C. This is very much necessary because in the absence of an accused, a criminal trial cannot be proceeded with effectively and the accused cannot be convicted and sentenced to custodial sentence without his personal presence being secured before the Court. There may be cases where even by resorting to such coercive measures, the presence of the accused could not be secured within a reasonable time, then the provisions as contemplated under Chapter IV of the Karnataka Criminal Rules of Practice will have to be resorted to and the case against such accused will have to be split up and it is only for the purpose of invoking the provisions contained in Chapter IV of the Karnataka Criminal Rules of Practice, the Court can resort to the procedure as prescribed under Section 299 of Cr.P.C. of recording the evidence of witnesses in the absence of the accused. Such a procedure is permissible only for the purpose of invoking the provisions contained under Chapter IV of the Karnataka Criminal Rules of Practice and not for the purpose of holding a trial when the presence of the accused could not be secured. Therefore in a criminal trial where the presence of the accused is a must and where the presence of the accused could not he secured in the manner known to law within a reasonable time, the case against such accused will have to be split up in the manner as provided under Chapter IV of the Karnataka Criminal Rules of Practice and the case against the remaining accused who are present before the Court could be proceeded with further in accordance with law. The same will be the procedure applicable even in cases instituted for the alleged offences under Section 138 of the Negotiable Instruments Act. Indisputably the provisions contained in Section 138 of the Negotiable Instruments Act is a substantive offence which deals with the conviction of the accused on being found guilty of such offence and the imposition of sentence on him on being so convicted thereunder. It is a criminal offence and not merely a recovery proceeding as sought to be argued on behalf of the petitioner and hence the proceedings instituted under Section 200 of Cr.P.C for the alleged offence under Section 138 of the Negotiable Instruments Act like any other criminal trial has to be held in the presence of the accused. It is no doubt true that the trial for such offence should be a summary trial. But summary trial does not mean that the trial could be proceeded in the absence of an accused. Section 143 of the Negotiable Instruments Act does not direct the Court to follow the procedure prescribed for trials under the Civil Procedure Code and on the contrary, it directs the Court to follow the procedure prescribed for trials under the Cr.P.C. Hence it is a criminal trial. Even in the case of summary trials, the plea of the accused has to be recorded and if the accused is found guilty after a regular trial, the accused will have to be convicted and substantive sentence of imprisonment or fine has to be imposed. That apart the evidence has to be taken in the presence of the accused. It is equally true that under Section 144 of the Negotiable Instruments Act, the evidence could be adduced in the form of an affidavit. But then that affidavit has to be countered by the other side in order to hold the accused guilty in case if the substance of the accusations made against the accused are found true and also he will have to be convicted of the substantive sentence for the offence under Section 138 of the Negotiable Instruments Act. All these cannot be done in the absence of an accused. Therefore having regard to the nature of procedure to be undergone in a criminal trial, the presence of the accused is a must. However one exception can be made in the case of an accused which is a company which cannot be convicted with a substantive sentence of imprisonment and could be sentenced with fine only in case if it is found guilty of the offence under Section 138 of the Negotiable Instruments Act. But normally a criminal trial whether it be for the offence under the IPC or under the Negotiable Instruments Act, cannot be held in the absence of an accused as the evidence at the trial has to be taken either in his presence or in the presence of his counsel in case if the personal presence of the accused is dispensed with in accordance with law. It is apparent from Section 4 that the provisions of the Cr.P.C are applicable where an offence under the Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. Section 273 of Cr.P.C makes it obligatory that the evidence for the prosecution and defence should be taken in the presence of the accused. The Rule enacted in this Section makes it imperative that all evidence in an inquiry or trial shall be taken in the presence of the accused. That being so, no exparte decision regarding the guilt or otherwise of the accused can be recorded in the absence of the accused. This being the clear position of law in case of criminal trials, it is to be held that no criminal trial where the plea of the accused has to be recorded, the evidence has to be taken at a trial and the accused if found guilty will have to be convicted and sentenced either with imprisonment or fine, could be effectively held in the absence of the accused. In other words, the exparte procedure as prescribed under the civil law is unknown to criminal law. In this view of the matter, our answer to Question No. 3 must necessarily be in the negative.
66. Service on Government servant.
(1) 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.
(2) Such signature shall be evidence of due service.
- 67.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 summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.
- 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 and returned to the court.
- Service of summons on witness by post.
(1) Notwithstanding anything contained in the preceding section 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.