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CRIMINAL PROCEDURE CODE

(CRIMINAL LAW –II)

TOPIC: SUMMONS AND PROVISIONS THEREOF --- (Sec. 61-69)

SUBMITTED BY: SUBMITTED TO:

NAME: GANESH OJHA Dr. PAWAN KUMAR MISHRA
COURSE: B.A. LL.B. FACULY
ENROLLMENT: CUSB1613125017 LAW AND GOVERNANCE
SEMESTER : 4th CUSB
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DECLARATION

This is to certify that the project titled “SUMMONS AND PROVISIONS

THEREOF” submitted by GANESH OJHA has been successfully produced under
the guidelines of (Proff.) DR. PAWAN KUMAR MISHRA, with the help of class
notes and text books on Criminal Law and further help from online resources.

Date of Submission:-…………………… GANESH OJHA

B.A. LL.B (Hons.)

4th SEMESTER
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CONTENT

1. List of Cases 3
2. Abbreviations and Acronyms 4
3. Acts and Statutes 4
4. Research Methodology 5
5. Introduction 5
6. Provision under Sections (69-69) 6
7. Contents of Valid Summons 8
8. Form of Summons 9
9. Different kinds of Summonses 9
9.1. On any individual 9
9.2. On corporate bodies and societies 10
9.3. On public/government servants 10
9.4. On person outside local limits 11
9.5. On witness 11
10. Mode of service of summons 12
11. Proof of service 13
12. Consequence of disobedience of Summons 14
13. Summons and Warrant distinguished 14
14. Judicial Interpretation- Precedents 15
15. Conclusion 17
16. Bibliography 18
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List of Cases

1. Mahar singh vs. Emperor, 22 Cri LJ 111 (All.)

2. E. Chathu vs. p. Gopalan 1981 Cri LJ 691 (Ker)
3. K. Ramesh Babu vs. State of Karnataka, 1194 Cri LJ 358 (Kant.)
4. Emperor vs. Kunwar Rananajai Singh, AIR 1928 All. 261
5. Central Bank of India vs. Delhi Development Authority, 1981 Cri LJ 1476 (Del)
6. Beni Madhab vs. Jabu Nath AIR 1926 Cal 1208
7. State of Gujarat vs. Shri Dinesbhai Mehta 1994 GLJ (Guj)
8. Sahadeo Rai v. Emperor AIR 1918 All 409
9. Manmohan v. Corporation of Calcutta AIR 1932 Cal 62
10. Shanno Devi v. Mangal Sain AIR 1961 SC 58
11. Eralottu v. Gopalan 1981 CrLJ 691
12. State v. Bimarao AIR 1963 Mys 239
13. State v. Bava (1962) 3 Guj LR 522
14. Kalipada v. State AIR 1951 Cal 207
15. Kuldip Rai v. Saran Singh AIR 1989 P&H 319
16. Basant Singh v. Roman Catholic Mission (2002) 7 SCC 531
17. Allauddin v. State 1971 All CrR 358
18. Mahajan Sheikh v. Emperor, ILR 42 Cal 708
19. Arpin Sheikli v. Arobdi Datia, ILR 24 Cal 317
20. Queen Empress v. Krishtappa, ILR 20 Mad 31
21. Brijvallabh v. A.R. Khan, AIR 1958 Raj 293
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ABBREVIATIONS AND ACRONYMS

1. SC…………………………………………………Supreme Court
2. SCC ……………………………………………….Supreme Court Cases
3. A.I.R. ……………………………………………..All India Reporter
4. A.L.J ……………………………………...………Administrative Law Judge
5. I.P.C……………………………………………… Indian Penal Code
6. Cr. P.C…………………………………………….Criminal Procedure Code
7. L.J…………………………………………………Law Journal
8. All. L.J…………………………………………….Allahabad Law Journal
9. Ker………………………………………………..Kerala
10. Karnt………………………………………...……Karnataka
11. G.L.J………………………………………………Gujarat Law Journal

STATUTE

1. INDIAN PENAL CODE (45 OF 1860)

2. THE CRIMINAL LAW (AMENDMENT) ACT, 2013(13 OF 2013)
3. CODE OF CRIMINAL PROCEDURE 1973
4. THE LOKPAL AND LOKAYUTAS ACT, 2013 (1 OF 2014)
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RESEARCH METHODOLOGY

RESEARCH STRATEGY

The researcher has adopted a purely analytical research methodology. For the successful completion
of the project, wide range of text books has been referred and exhaustive help of library of Central
University of South of Bihar has made this project more and more comprehensive to elaborate the
theme of the topic ‘SUMMONS AND PROVISIONS THEREOF’.

SCOPE AND LIMITATION OF RESEARCH

This project specifically deals the basic and the related provisions on the topic ‘SUMMONS’ under
the Code of Criminal Procedure.

RESEARCH PURPOSE

The purpose for such research to reveal the concept governing the issue and service of summons to
any person either accused, corporation, societies, witnesses and public servants.

RESEARCH APPROACH

A wide range of books and websites have been consulted for the purpose of completion of this
project. These books and websites have been mentioned at the end of the project for further
reference.
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INTRODUCTION

Summons is the process issued by the court to secure the appearance of the person summoned. Thus,
summons to an accused is an authoritative call asking him to remain present in court for a particular
purpose or to answer a particular charge. But, the term ‘summons’ has not been particularly defined
under the code of criminal procedure.
The chapter VI of the code of criminal procedure deals with the provisions for the appearance of
(i) Accused as it is necessary and of utmost importance that the trial is conducted in his
presence so as to enable him to defend himself effectively.
(ii) Witnesses for conducting fair trial.

The processes to compel appearance are dealt with Ss. 61-90 of the code of Criminal Procedure as:-
1. Summons as per section 61.
2. Warrant as per section 70.
3. Proclamation as absconder as per section 82.
4. Attachment of property and sell thereof.
5. Taking bond with or with sureties as per section 88.
Columns 4 and 5 of Schedule I determines whether a summons or warrant should be issued in the
first instance. But, when a summons has failed to secure attendance, it is open to the court or
Magistrate to issue a warrant as per provision under section 87.
For a summons to be valid, the essential requirements must be observed and if a court has no power
to issue a summons, the person served with the summons is not bound to obey it. Absence of such
requirements invalidates the liability of accused convicted for disobedience of such a summons. But
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if the defect is not essential in nature, it is an error, omission or irregularity curable under Section
465 of the code.

PROVISION UNDER SECTIONS (61-69)

The following provisions under the code of Criminal Procedure, 1973 dealing with the summons are
as follows:-

Section 61:
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.
Section 62:
(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 there for on the back of the other duplicate.

Section 63:
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
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chief officer of the corporation in India, in which case the service shall be deemed to have been
defected when the letter would arrive in ordinary course of post.

Section 64:
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 there for on the back of the other duplicate.

Section 65:
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.

Section 66:
(1) Where the person summoned is in the active service of the Government, the court issuing the
summons 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 endorsement required by that section.
(2) Such signature shall be evidence of due service.

Section 67:
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.

Section 68:
(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,
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and a duplicate of the section (64) by the person to whom it was delivered or tendered or
with whom it was 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.
Section 69:
(1) 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 acknowledgement 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 that the
summons has been duly served.

CONTENTS OF VALID SUMMONS

A summons should be clear and specific in its terms as to the title of the Court, the place at which,
the day and the time of the day when, the attendance of the person summoned is required. Following
criterion must be followed for a valid summons:-
 Must be in writing
 Must be signed- Every summons must be signed in full by the officer by whim it is issued
with the name of his office or the capacity in which he acts. The practice of signing initials
only or using a stamp is objectionable.
 Must be sealed- Seals have been prescribed for all Criminal Courts. When a summons is not
sealed, a conviction for disobedience thereto was held to be bad.1
 Must specify the offence- the accused is entitled under the law to know what offence he has
committed, and it is the duty of the prosecution to put in the sections or rules which the
accused is alleged to have contravened.

1
Mahajan Sheikh v. Emperor, ILR 42 Cal 708
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 Must state the place at which the person summoned is to appear- the place at which the
person summoned is to appear must be clearly specified. A Magistrate cannot issue a
summons requiring a person to appear before the police.2
 Must state the date and time when the person must appear.
 Must direct person summoned not to depart without leave- the accused who was
summoned to appear and answer a criminal charge is bound to wait for a reasonable time.
But, it was held in a case3 that the absence of a direction that he should not leave without
permission, the person departing is not guilty.

FORM OF SUMMONS

 Form no.1 in Schedule II of the Code is prescribed to be followed for issuing of summons to
an accused.
 Form no. 33 in Schedule II of the Code is prescribed to be followed for issuing of summons
to a witness.

DIFFERENT KINDS OF SUMMONSES

ON CORPORATION, COMPANY OR OTHER CORPORATE BODIES:-

Any incorporated company is a legal entity and service of summons can effected by serving it as per
the provisions of section 63 of the code of Criminal Procedure, 1973. Such summons can served on
the secretary, local manager or principal officer of such Corporation or company or by registered
letter to its Chief Officer in India.

2
Arpin Sheikli v. Arobdi Datia, ILR 24 Cal 317
3
Queen Empress v. Krishtappa, ILR 20 Mad 31
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When summons is issued against a company some competent representative like the secretary, local
manager or other principal officer must be described both by name and by designation as
representing the company and there must be some evidence of his representative character.

A Bank is a corporate body and where its branch has violated a provision of law, which is an offence,
the Bank is liable to be prosecuted. The Bank cannot escape liability by saying that its chairman or
the Directors in the Head Office had not been served. According to explanation under Section 63 of
Cr.P.C, corporation means an incorporated company or other body corporate and includes a society
registered under the Societies Registration Act, 1860.

CASE: ANIL D. AMBANI V. STATE OF BIHAR4

In this case, it was 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, thus,
summons issued to Managing Deputy Director of company set aside.

ON PUBLIC SERVANTS:-

Service of summons, on a Government servant can be effected by sending it to the head of the office
in which he is serving. The head of the office will serve the summons to the employee and return it
under his signature with the endorsement of the employee who is served.

When a summons is received by a superior officer under this section, it is his duty to serve that
summons. It, for any reason, his subordinate cannot appear on the date fixed for his appearance in
Court, an application may be made after service of summons either by the superior officer or by the
subordinate himself requesting the court to adjourn the case and if the application is bona fide, courts
will accommodate government servants in the matter.5

BALESHWAR SINGH V. STATE OF BIHAR6

In this case, a Government servant was summoned but not in the manner as per provision relating to
such person. The process was issued to him just showing his residence with his father. On that

4
2006(4) Pat LJR 571 (Pat,)
5
Brijvallabh v. A.R. Khan, AIR 1958 Raj 293
6
1974 Pat LJR 20 : 1974 BLJR 281
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ground, he didn’t appear and properties were attached by an order of the Magistrate. But, the order
was set aside on two grounds as:

(i) Service had not been attempted to be effected in the manner laid down said provision.
(ii) There was no evidence to show that the properties ordered to be attached belonged only
to the son.

If the superior officer to whom summons is sent under this section refused to serve it on any ground
other than that the subordinate officer was not available to the superior officer for the service of
summons like when he is on leave, it would be contempt of court on his part.

ON PERSON OUTSIDE LOCAL LIMITS:

When a summons is to be served outside the local limits of a Magistrate’s jurisdiction, the summons
should ordinarily be sent to a Magistrate within the local limits of whose jurisdiction the person
summoned resides.

When witnesses reside outside the local jurisdiction of the Court issuing the summons, it should not
be handed over to the complainant for effecting dasti service on them.

In a metropolitan area, summons to be served will be sent to the Chief Metropolitan Magistrate or,
if the rules so provide, to the District Magistrate.7

In case, the opponent resides permanently outside the local jurisdiction of the Court, then the Court
would have no option but to send summons by registered post. No ex-parte order could be passes
against him without giving him proper opportunity unless the summons was duly served on the
opponent or that he was willfully avoiding the service of summons or refused to accept the
opportunity. But, in the case of Prabhulal jeshanker v. Jayaben8, it was claimed that there are many
instances when false endorsements are made by the postal authorities at the instance of the interested
parties.

ON WITNESSES:-

7
Rule 10, Bombay Cr O., p. 8
8
1973 Guj LR 711
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When a summons is issued to a witness, as per Section 69 of the Cr.P.C, it may, in addition to the
normal course, also be sent to him by registered post addressed to him at the place where he

(i) ordinarily resides or

(ii) carries on business or
(iii) Personally works for gain.

An acknowledgement of service purporting to be signed by the witness or an endorsement purporting

to be made by the postman that the addressee refused to accept service will be enough for the service
being declared to have been duly effected. If summons had been served on the witnesses and they
didn’t attend the Court, it is the duty of the Court to issue warrants against them to enforce
attendance.

MODE OF SERVICE OF SUMMONS

Summons can be issued and made to serve by the court in different circumstances by different modes
which was provided under the provisions of the Code dealing with summons. The following are the
different modes of service of summons:

1. Service by officer of the court:-

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.

2. Service by a Police officer:-

Summons issued under subsection (1) of section 62 shall be served by a police officer. It is the duty
of the police officer to make every endeavor to serve the summons on the person for whom it is
intended. Summons have to be served on the person summoned by delivering or tendering to him
one of the duplicates of the summons and every person on whom a summons is so served, is required
to sign on the back of the other duplicate.

3. Service by registered post:-

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Service of summons by registered post on a person summoned in proceeded under the code is
permissible only in the case of an incorporated company or other body corporate or a witness.9 When
an acknowledgement 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.

4. Service to male member of family:-

Where personal service as provided for in s. 62, cannot be effected, the law under Section 64 of the
Code allows service on some adult member of the family, but not on a servant. To justify such
service, it should be shown that proper efforts were made to find the person summoned. There must
be material to show that the person summoned against was not found by exercise of due diligence
and the summons was served by leaving one of the duplicates for him with same adult member of
his family.

5. Service by affixing:-

When service cannot be effected as provided in ss. 62, 63 and 64 by the exercise of due diligence10,
it is provided under section 65 to effect the service of summons by affixation of the duplicate copy
of the summons to some conspicuous part of the home or house stead where the person summoned
ordinarily resides.

PROOF OF SERVICE

1. 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.
2. When summons served by leaving one of the duplicates for him with some adult male member of the
family, the summons shall be signed by such person on the back of the other duplicate.

9
Sections 63 and 69 of the Code of Criminal Procedure 1973
10
Beni Madhab v. Jadu Nath, AIR 1926 Cal 1208
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3. When the summons is served by annexation on some conspicuous part of the house of the person
summoned, the Court may inquire into and declare that summons has been duly served or if necessary
may order fresh service in such manner as thinks fit.
4. Section 68 of the Code provides that 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 by the person to whom it was
delivered or tendered or with whom it was left, shall be admissible in evidence.

CONSEQUENCE OF DISOBEDIENCE OF SUMMONS

Disobedience of or non-compliance with a summons issued by a competent Court is punishable

under the Indian Penal Code. Section 172 and 174 of IPC made provision of punishment for
absconding and disobedience respectively in order to avoid being served with a summons, etc., shall
be punished with simple imprisonment for a term which may extend to one month, or with fine
which may extend to five hundred rupees, or with both.

Also, if the complainant remains careless in serving summons or attending the Court, the Magistrate
in the first instance would issue notice against such irresponsible complainant for not complying
with or disobeying the orders of the Court, and in the second instance should also try to serve the
summons with the aid of process serving agency.11

SUMMONS AND WARRANT DISTINGUISHED

11
State of Gujarat vs. Shri Dineshbhai Mehta 1994 Cr LR (Guj) 110
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As both these processes namely, summons and warrant are both required to secure the appearance
of accused.

 Summon is the legal order issued by the presiding officer to defendant or witness or any other
person involved in a case. On the contrary, a warrant is a written authorization, issued by a
judicial officer, i.e. a judge or magistrate, which authorizes the police officer to perform an
act, for the regulation of justice.
 A summon contains a judicial order to appear or produce a document or thing before the
court, whose non-compliance will result in the issuance of warrant against that person. On
the other hand, a warrant is an official authorization to the police to arrest the accused and
produce before the court.
 A summons addresses the defendant or witness or any other person related to the case,
whereas warrant addresses the police officer.
 Summons aims at notifying the person of the legal obligation to appear in the court whereas
a warrant is issued with an objective of bringing accused to the court, who’ve not appeared
to the court, even after he/she is summoned.

JUDICIAL INTERPRETATION- RELEVANT CASES

E. CHATHU V. P GOPALAN12

A strict construction of this section may mean that the second part of the section cann’t be applied
unless the affixure mentioned in the first part is attempted or made. According to the Kerala High
Court such a restricted construction was not warranted. In case of a person not ‘ordinarily residing’
in India and actually working abroad, service of summons under Section 62 or 64, or first part of
Section 65 is not possible. But by construing liberally the second part of Section 65 and excercising
the very wide decretion given by the words’ order fresh service in such manner as it considers

12
1981 Cri LJ 691(Ker)
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proper.’ The court could utilize that part of the section for service of summons in the above
mentioned contingency. In deciding as to what is the proper manner of service under the second part
of Section 65, the court is not fettered by the limitations found in
Section 62(1), and the court can seek assistance by public servants working in Indian Embassies
abroad in serving summons on a person actually working abroad.

K. RAMESH BABU V. STATE OF KARNATAKA13

Service of summons could be effected by Registered Post and in case of Refusal to accept an
endorsement of the postal authorities that the person didn’t accept it, should be taken as valid service.

EMPEROR V. KUNWAR RANANJAI SINGH14

The summons issued to the accused should contain adequate particulars of the offence charged i.e.,
the place where the alleged offence was committed. If these details aren’t given in the summons, it
be disregarded; and if any further proceedings are taken thereon, and are objected to by the accused,
such proceedings would be considered as invalid.

CENTRAL BANK OF INDIA V. DELHI DEVELOPMENT AUTHORITY15

The branch manager is a local manager and if he has been served, the service shall be deemed to
have been effected on the company itself.

MAHAR SINGH V. EMPEROR16

Questions may arise as to whether failure to record reasons would vitiate the warrant (Section 87)
and make the consequent arrest illegal. Even if one takes the view that provision in Section 87 for
recording reasons is only directly and not mandatory; the object of this requirement is quite obvious.
It is to draw attention to the consideration that a warrant ought not to be issued where a summons

13
1994 Cri LJ 358 (Kant.)
14
AIR 1928 All. 261
15
1981 Cri LJ 1476 (Del)
16
22 Cri LJ (All.)
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can serve the purpose, and that care should be exercised by the court to satisfy itself that upon the
materials before it, it was necessary to issue a warrant.17

CONCLUSION

Summons and warrant are two legal documents containing a written order, which a court issues after
the case has been registered, that requires the person named in the document to appear before the
court on the stipulated date. First of all, the court issues summon to the person with respect to a legal
proceeding, that bounds him/her to appear before the judge on the stipulated time and date, or
otherwise, a warrant is issued by the court, against that person.

As per Section 204 of Cr PC, the magistrate taking cognizance of an offence can issue summons to
the accused in summons cases but it is to the discretion and the nature of the case to issue warrant
or summons to the accused in warrant cases. In a summons case, after the issue of summons, the
accused may plead guilty by post without appearing before the Magistrate. But no such provision
exists in trial of a warrant case. Thus, it can be noticed that summons is required by the court in order
to compel the appearance of the person accused, witness, or any person relevant to the case, only in
cases of mild nature where is no much threat of losing accused and fair trial.

17
37th Report p. 3, para 237
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Also, the summons to be valid in the eye of law, it must comply with the provision of the Code
strictly, otherwise it may lose its enforceability and thereby can’t made the person summoned guilty
of contempt of Court on disobedience.

BIBLILGRAPHY

BOOKS:

1. C K Thakkaer ‘Takwani’ and M C Thakker, (Takwani Criminal Procedure, LexisNexis,

4th Edition, 2016),
2. Justice Chandramauli Kumer Prasad and Namit Saxena, (The Code of Criminal
Procedure, Ratanlal and Dhirajlal, LexisNexis, 22nd Edition, 2017)
3. K. I. Vibhute (P.S.A Pillai’Criminal Law, LexisNexis, 12th Edi., 2004),
4. Prof. S.N. Misra (Code of Criminal Procedure, Central Law Publications, 12th Edi., 2004,
Allahabad)
5. Justice M L Singhal, (SOHONI’s, Code of Criminal Procedure 1973, LexisNexis, 21st
Edi, 2015)
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ONLINE RESORCES

(1.) WWW.INDIANKANOON.ORG (LAST

(2.) WWW.MANUPATRA.COM
(3.) WWW.WIKIPEDIA.ORG
(4.) WWW.LAWOCTOPUS.COM