UNIVERSITY OF LUCKNOW

FACULTY OF LAW
SESSION:-2024-2025
TOPIC
PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

SUBMITTED TO
Dr. Archna Singh

SUBJECT: - Bhartiya Nagrik Suraksha Sanhita -I

ROLL NO: - 2310013115218
CLASS: - LL.B (3 year) 3rd SEMESTER SECTION: - ‘A’
CLASS ROLL NO.: - 46

SUBMITTED BY
SIDDHARTH GAUTAM
 PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

INTRODUCTION
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is a legislative framework
that seeks to reform and modernize criminal laws in India, replacing the previous
Criminal Procedure Code (CrPC), 1973. The BNSS aims to enhance the efficiency
and effectiveness of criminal justice administration. One of the critical mechanisms
under the BNSS is the process to compel appearance through summons. This
assignment explores the provisions, procedures, and implications of summons under
the BNSS, supported by suitable illustrations and case laws.

A summons is an official legal document issued by a Court that informs an

individual or organization about a legal action or proceeding that concerns them. It
generally contains details about the case, the court's authority, and the obligation of
the recipient to reply. The summons acts as a formal request for the individual to
attend court or address a legal claim within a designated period.

Not adhering to a summons may result in legal repercussions, including default

judgments, issuance of warrant of arrest or penalties. It plays a vital role in the legal
process by ensuring that all parties are notified and given a chance to engage in the
case. Summons may be issued to defendants, respondents or witnesses.

The relevant provisions related with the process to compel appearance through
summons are defined in Chapter VI under section 63 to section 71 of Bhartiya
Nagrik Suraksha Sanhita, 2023.

Purpose of Summons:

 To notify the individual of the ongoing legal proceedings and provide an

opportunity to appear voluntarily.

 To facilitate the participation of witnesses, accused persons, and other relevant

parties in the judicial process.

 To ensure transparency and fairness in the administration of justice.

 PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

Relevant Provisions under the Bharatiya Nagarik Suraksha

Sanhita (BNSS), 2023
The BNSS, 2023, provides detailed provisions under Chapter VI for processes to
compel appearance, including summons. The relevant sections are:

Section 63 (Form of Summons):

All summonses issued by a Court under this Sanhita (BNSS) must be:

i. Written in duplicate, signed either by the presiding officer of the Court or by

another officer as designated by the High Court through rules, and must include
the Court's seal; or

ii. Sent in an encrypted format or another form of electronic communication that

displays either the Court's seal image or a digital signature.

Note: A new addition has been made in the form of clause (ii) of Section 63 BNSS,
which states that Courts are now permitted to issue summons through encrypted
communication or any other electronic format that includes the Court's seal or a digital
signature.

The prescribed form—Form 2 of the Second Schedule—in which a summons to an

accused person is ordinarily issued is as given below:

FORM No. 2
SUMMONS TO AN ACCUSED PERSON
(See section 63)

To..............................................(name of accused) of ..............................................(address)

WHEREAS your attendance is necessary to answer to a charge of..........................................

..............................................(state shortly the offence charged), you are hereby required to
appear in person (or by an advocate, before the (Magistrate) of..............................................,
on the..............................................day............................................... Herein fail not.

Dated, this.............................................. day of.............................................. , 20 ............. .

(Seal of the Court) (Signature)

 PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

Section 64 (Summons How Served):

A police officer shall be responsible for the service of every summons, or it
may be served by an officer from the issuing Court or another public servant, in
accordance with any regulations established by the State Government regarding this
matter. The police station or the Court's registrar is required to keep a register that
records the address, email address, phone number, and any other details specified by
the State Government through regulations.

Whenever possible, the summons should be served directly to the individual

being summoned by handing over or presenting one of the duplicate copies of the
summons. However, a summons that includes the Court's seal may also be served via
electronic communication, following the format and method set forth by the State
Government in its regulations.

Any individual who receives a summons personally must, if asked by the

serving officer, provide a signature on the back of the other duplicate as
acknowledgment of receipt.

Note: The provision has been revised. A new Sub-section (1) has been added,
stipulating that police stations or registrars in the Courts are responsible for
maintaining a register of the required details. Additionally, a proviso to Sub-section
(2) has been introduced, allowing for the service of summons via electronic
communication in a manner determined by rules set forth by the state government.

Section 65 (Service of Summons on Corporate Bodies, Firms, and

Societies):

A summons can be served on a company or corporation by delivering it to the

Director, Manager, Secretary, or any other officer of the organization. Alternatively, it
may be sent via registered post addressed to the Director, Manager, Secretary, or
relevant officer of the company or corporation located in India. In this case, the
 PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

service will be considered complete upon the letter's arrival during regular postal
delivery.

Explanation: For the purposes of this section, "company" refers to a body corporate,
while "corporation" denotes an incorporated company or any other corporate body
registered under the Companies Act, 2013, or a society registered under the Societies
Registration Act, 1860.

A summons intended for a firm or an association of individuals may be served

by delivering it to any partner of that firm or association. Alternatively, it may be sent
by registered post to that partner, with service being deemed effective once the letter
is typically delivered by post.

Note: The provision has been amended. The title has been revised from "Service of
summons on corporate bodies and societies" to "Service of summons on corporate
bodies, firms, and societies." The term "Company" has been included in Sub-section
(1) alongside the word "corporation," reinforcing the concept that a company
functions as a separate legal entity.

In the Explanation of Sub-section (1), "Company" is defined as a body

corporate as outlined in the Companies Act of 2013. Additionally, a new Sub-section
(2) has been introduced, which states that a summons directed to a firm or other
association of individuals can be served by delivering it to any partner of the firm or
association, or by sending a letter via registered post to such a partner. In this case, the
service will be considered complete once the letter arrives in the ordinary course of
postal delivery.

Section 66 (Service When Persons Summoned Cannot be Found):

If the individual who has been summoned cannot be located despite reasonable
efforts, the summons may be served by leaving one of the duplicates with an adult
 PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

family member who resides with the summoned individual. The person receiving the
summons must sign a receipt on the back of the other duplicate if requested by the
serving officer. A servant does not qualify as a family member under this provision.

Note: The language in this provision has been updated. The term "adult male
member" has been changed to "adult member," which promotes inclusivity and is
gender-neutral.

Section 67 (Procedure When Service Cannot Be Effected as

Before Provided):

In instances where service cannot be carried out as outlined in sections 64, 65, or 66
despite the exercise of due diligence, the serving officer is required to attach one of
the duplicates of the summons to a visible area of the residence or homestead where
the summoned individual typically resides. Subsequently, the Court, after conducting
any inquiries it deems appropriate, may either declare that the summons has been
properly served or direct that a new service be executed in a manner it finds suitable.

Section 68 (Service on Government Servant):

If the individual summoned is currently serving in active Government duty, the Court
issuing the summon should typically send two copies to the head of the office where
the individual is employed. The head of the office shall then ensure that the summons
is served in accordance with the provisions outlined in section 64 and return it to the
Court with the required endorsement, signed by them.

This signature will serve as proof of proper service.

Section 69 (Service of Summons Outside Local Limits):

When a court wishes for a summons it has issued to be delivered outside its
designated jurisdiction, it typically forwards two copies of the summons to a
Magistrate who has authority over the area where the individual to be served resides
or is currently located.
 PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

Section 70 (Proof of Service in Such Cases and When Serving

Officer Not Present):

When a court issues a summons that is served outside of its local jurisdiction, and the
officer responsible for serving the summons does not attend the case hearing, an
affidavit claiming to have been sworn before a Magistrate, indicating that the
summons was served, alongside a duplicate of the summons that appears to be
endorsed (as specified in section 64 or section 66) by the individual to whom it was
delivered, tendered, or left, will be admissible as evidence. The statements contained
within it shall be regarded as accurate until proven otherwise.

The affidavit referenced in this section may be attached to the duplicate of the
summons and submitted back to the Court.

All summons served via electronic communication in accordance with sections 64 to

71 (both inclusive) shall be regarded as properly served, and a copy of such summons
must be certified and maintained as proof of service.

Note: There is a change in this provision. Sub-section (3) to Section 70 has been
inserted, which provides legitimacy to service of summons in any form of electronic
communication, and it clarifies that these summons will be considered duly served.

Section 71 (Service of Summons on Witnesses):

Notwithstanding the provisions outlined in the previous sections of this Chapter, a

Court that issues a summons to a witness may, at the same time, authorize that a copy
of the summons be delivered via electronic communication or sent by registered mail
to the witness's usual residence, place of business, or workplace where they earn an
income.

If an acknowledgment signed by the witness is received, or if there is an

endorsement from a postal employee indicating that the witness refused to accept the
summons, or if proof of delivery of the summons is established under Sub-section (3)
 PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

of Section 70 through electronic communication to the Court's satisfaction, the Court

that issued the summons may consider it to have been properly served.

Illustrative Examples

Illustration 1: Summons to a Witness

Suppose Mr. A is a witness in a criminal case and resides outside the jurisdiction of
the issuing court. The court issues a summons under Section 69 and sends it to a
magistrate in the area where Mr. A resides. The local magistrate serves the summons,
and Mr. A appears before the issuing court on the scheduled date.

Illustration 2: Service of Summons through Affixation

Ms. B is accused of a minor offense, but she cannot be located at her residence. The
serving officer, after due diligence, affixes a copy of the summons to the front door of
Ms. B’s house and records the action. This service is deemed valid under Section 65
of the BNSS, 2023.

Relevant Case Laws:

Emperor vs. Dhananjay Singh (AIR 1927 All 311)

Facts:

Dhananjay Singh was accused of an offense and the magistrate issued a summons to him
under the applicable legal provisions at that time. The accused challenged the process of
summoning, questioning its validity and arguing procedural irregularities.

Issue:

The primary issue before the court was whether the magistrate had followed the correct
procedure in issuing the summons to Dhananjay Singh and whether the summons was issued
without sufficient legal grounds.

Judgment:

The court held that in this case, the magistrate had issued the summons without properly
considering the necessary prerequisites, which included a proper inquiry into the facts and
circumstances of the case. As a result, the summons was deemed to be issued irregularly, and
the court set it aside.

Hemendra Nath v. Archana (1971 CrLJ 817)

Facts:
 PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

The case involved a dispute over the proper service of summons under the Code of Criminal
Procedure (now BNSS). Hemendra Nath challenged the validity of the service of summons,
which was not directly served on him but instead on an adult male member of his family. He
argued that this service did not comply with the procedural requirements laid down in CrPC
(BNSS).

Issues:

 Whether the summons was served correctly

 Whether proper efforts were made by the process server to serve the summons directly
on the summoned person (Hemendra Nath) before resorting to serving it on a family
member.

Judgment:

The court held that Summons must first be served on the individual personally before
considering alternative methods of service, such as serving a family member. The process
server must make proper and reasonable efforts to locate the individual. In this case, the court
found that due diligence was not exercised in trying to serve the summons directly to
Hemendra Nath. The service of summons on the adult male family member, therefore, did
not comply with the procedural requirements under Section 64 of CrPC(BNSS).

E. Chatu v. P. Gopalan, AIR 2004 SC 1032

Facts:

The case revolves around a dispute regarding the appointment of a member in the governing
body of a college. The petitioner, E. Chatu, was a candidate for the governing body of a
college run by a society. The respondent, P. Gopalan, was declared elected, but the petitioner
contended that the election was conducted improperly. The petitioner alleged that there were
irregularities in the election process and sought to challenge the election results.

Issues:

 Whether the election process for the governing body of the college was conducted in
accordance with the prescribed rules and regulations.
 Whether the petitioner had the locus standi to challenge the election results.

Judgment:

The Supreme Court examined the election procedure and the qualifications required for the
candidates. It was held that the election was indeed conducted in violation of the established
norms and regulations. The Court ruled in favor of the petitioner, stating that the election of
P. Gopalan was invalid due to the irregularities found during the process. The Court
emphasized the importance of adhering to the proper election procedure to ensure fairness
and transparency in the election process.
 PROCESS TO COMPEL APPEARANCE THROUGH SUMMONS

Consequences of Non-compliance with Summons under BNSS

If a person fails to comply with a summons issued under the BNSS, 2023, the
following consequences may ensue:

 Issuance of Warrant: The court may issue a bailable or non-bailable warrant for
the arrest of the person.
 Ex parte Proceedings: The court may proceed with the case in the absence of the
person, passing orders or judgments based on available evidence.
 Imposition of Penalties: The court may impose fines or penalties for non-
compliance.
 Attachment of Property: In some cases, the court may order the attachment of
the person's property to compel appearance or compliance.

CONCLUSION

The process to compel appearance through summons under the Bharatiya Nagarik
Suraksha Sanhita, 2023, is a crucial aspect of criminal procedure in India. It provides
a fair opportunity for individuals to appear before the court and present their case
while ensuring that justice is served efficiently. The BNSS has introduced several
modernized provisions, such as electronic service and substituted service, to adapt to
contemporary needs. Understanding these provisions and their practical application is
essential for legal practitioners and stakeholders in the criminal justice system.

REFERENCES:

1. The Bhartiya Nagrik Suraksha Sanhita, 2023(46 of 2023).

2. https://lawbhoomi.com
3. Indiankanoon.org
4. Criminal Procedure, R.V. Kelkar, 6th edition, 2014