Service and Examination of Processes

 Service and Examination of Processes

(Criminal Rules and Order Rule 43 to Rule 71)

R. 43. Every summons on a Police Officer shall be served through the superintendent of the District or the Officer-in-charge of the Police Station to which such officer is posted.

Note. In the case of officers of the Government Railway Police a summons should be served through the officer-in-charge of the Government Railway Police Station concerned.

R. 44. (1) A summons on a Medical Officer shall be served through the Chief Medical Officer of Health of the District in order to enable the latter to make arrangements for conduct of medical duties during his absence.

(2) A summons on a Medical Officer in the mofussil which does not involve his leaving the station shall be sent to him direct and not through the Chief Medical Officer of Health.

R. 45. A summons to a Judicial Officer may be served through the District and Sessions Judge of the District to which he is posted and the latter shall permit him to attend the Court concerned after making arrangements for the disposal of his duties during his absence: Provided that such a summons may also be served through the Registrar, Appellate Side of the High Court, in case the present place of posting of the officer concerned is not known to the issuing Court.

R. 46. (1) A summons to be served upon the Members of the Parliament shall be served direct on the Members concerned outside the precincts of the Parliament, that is, at their residence or some other place and no attempt shall be made to serve such summons through the Presiding Officers, namely. the Speaker of the Loksabha or the Chairman of the Rajya Sabha, as the case may be, or through the Parliament Secretariat. (2) The procedure in sub-rule (1) shall be followed mutatis mutandis in effecting the service of summons upon the Members of the State Legislatures.

R. 47. A summons on an officer or soldier in the Army shall be forwarded to the Officer Commanding for service and return and sufficient time should always be given in such a case to admit of arrangements being made for the relief of the witness summoned.

R. 48. An attempt should be made by all Courts to have the officers who are about to leave the district on leave or transfer examined in any pending case in which they are important witnesses before their departure if the same can be done without violation of any important rule of procedure.

COMMENTARY

Service of summons upon Government Officers.-Section 66 of the Criminal Procedure Code provides as below:-

”Where the person summoned is in the active service of the government the court issuing 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 (ie, by delivering a duplicate of the summons to the employee personally) and shall return it to the court”.

The heads of the offices though which the summons of employees of some of the departments are to be served have been mentioned in these rules. But só far as service upon the Members of the Parliament or the Legislative Assembly, is concerned the same shall be sent directly to them. Rule 60 provides the authorities to whom the summons of the Income Tax Department of officials are to be sent.

R. 49. The witnesses brought under arrest should be dealt with not as criminals but simply as persons arrested on civil process.

R. 50. Application for the employment of the service of the Govern- ment Examiner of Questioned documents in criminal proceedings shall be made to the Presiding Officers of the Courts and sent direct to the Government Examiner of Questioned Documents, Bureau of Police Research and Development, Ministry of Home Affairs, 30, Gora Chand Road, Calcutta-700 014.

Note 1- Such applications will ordinarily be accepted but may be refused at the discretion of the Government Examiner of Questioned Documents, if they cannot be undertaken without detriment to his works.

Note 2-Applications received direct from private individuals shall not be entertained.

R. 51. (1) The signature required under sub-section (3) of section 62 of the Code, should, in the case of illiterate persons, be held to mean the thumb impression, witnessed by somebody before whom it is affixed.

(2) If the person on whom the summons is to be served refuses to sign or give his thumb impression on the original process but wants to retain the copy, it shall not be made over to him but shall be served in the manner stated in sub-rule (4).

(3) In case the person is not known to the serving officer, the name and address of the person on whose identification service is effected shall be stated in the report.

(4) If the person refuses to receive the process, he shall be informed verbally of its nature and a copy of the process shall be fixed to the door of his residence in the presence of at least two witnesses whose names and addresses shall be mentioned in the report.

(5) If after due and reasonable enquiry the persons addressed cannot be found the service shall be effected on an adult male member of his family in the manner indicated in this rule.

R. 52. If the person addressed in the process has a place or residence, but neither he nor any male member of his family can be found, a copy of the process shall be affixed to the door of his residence in the presence of at least two witnesses whose names and addresses shall be recorded in the report.

R. 53. (1) If the person addressed has no place of residence and he cannot be found this fact should be stated in the report with the names and addresses of at least two persons from whom the facts are ascertained.

(2) If the person addressed has ceased to live at the place, his present address, if procurable, should be reported.

(3) If the person addressed is dead, the date of his death, and the source of knowledge shall be stated in the report and the process shall be returned unserved.

R. 54. If the issuing court directs that service shall be effected in any manner other than that prescribed in the foregoing rules, the serving officer shall comply with the directions of the Court and shall state in the report the date, time, place and manner of service and the names and addresses of two persons present whose signature or thumb impression, as the case may be, should be taken on the back of the original process.

COMMENTARY

Substituted service-Section 65 of the Criminal Procedure Code provides for substituted service only when personal service is not possible by exercise of due diligence. So unless there is attempt for personal service, it is illegal to serve summons in substituted manner-Hemendra Nath v. Archana, AIR 1971 Cal 244: 1971 Cr LJ 817; State v. Bhimrao, AIR 1963 Mys 239:

Gurdyal Singh v. State, 1968 Raj LW 494.

It may however be noted that even if a summons cannot be served personally it can be served upon the adult member of the family under section 64 of the Criminal Procedure Code before substituted services is resorted to. A servant is however not a member of the family for the purpose of this provision.

R. 55. If the process is addressed to more than one person, the report shall describe the manner of service on each person.

R. 56. (1) The report of service shall be recorded by the serving officer on the back of the original porcess stating (a) the date, time and place of service, (b) the manner of service, and (c) the name and address of at least one person present at the time of service.

(2) The date of signature and designation of the serving officer shall be appended to the report.

COMMENTARY

Service report-The report of service shall be recorded on the back of the original process by the Serving Officer with his signature under it. It would be the duty of the Serving Officer to record the time, date and place of service, the manner of service and the name of at least one witness present at the time of service.

So the serving officer should be very much particular so that service is effected in presence of some witness. Otherwise the service will be liable to challenge as doubtful. When the process is addressed to more than one person the report shall mention manner of service upon each person separately.

It may however be mentioned that an order of acquittal in a case cannot be recorded unless all the processes are exhausted to secure the attendance of witnesses-C. N. Dey v. State of West Bengal, 1989 C Cr LR (Cal) 23.

R. 57. (1) When any document, parcel or thing in the custody of the Postal or Telegraph Authorities is wanted under sub-section (1) of section 92 of the Code for the purposes of investigation, inquiry, trial etc., the Magistrate or the Court concerned should depute an officer to the office, where such document, parcel or thing may be and direct in writing the Postal or Telegraph Authorities to make over with a note the document etc., to the officer so deputed, who will then be in a position to prove that the same as produced from the custody of the Postal or Telegraph Authorities.

(2) The attendance of Telegraph Office Clerks should be required only if they are in a position to prove the handwriting or the message or otherwise identify the writer or person who handed it for transmission or to give material ⚫evidence on other relevant matters which cannot be proved from other sources.

R. 58. Summons to employees under the Public Bodies, Companies and firms shall be served through their departmental heads or the Secretary.

R. 59. (1) The Chief Inspector of Explosives in India should be summoned to attend the Court personally only when he himself has examined an exhibit produced in court, but when the examination was done by any of his assistants, the assistant concerned should, if necessary, be summoned to give evidence in court.

(2) Where, however, the Chief Inspector of Explosives is summoned simply to give his opinion as an export and has had nothing to do previously with any of the exhibits produced in the court, he may be summoned by his official designation instead of by name with a direction on the summons in suitable cases that if necessary he may send one of his assistants to attend the Court as witness.

R. 60. Summons on the employees of the Income Tax Department, shall be sent for service to-

(1) The Commissioner of Income Tax. In cases of-

(a) All Assistant Commissioners, of Income Tax, Income Tax Officers and Assistant Income Tax Officers;

(b) Personal Assistants to the Commissioner of Income Tax, and (c) Ministerial and menial establishments of Commissioner‘s Office.

(2). The Assistant Commissioner of Income Tax of a Range. In case of executive officer‘s ministerial and menial establishments in his own office and Executive Officer attached to the Income Tax Officers in his Range..

(3) The Income Tax Officers of an Income Tax District. In case of ministerial and menial establishments in his office.

R. 61. Whenever production of a document or a certified copy thereof in the custody of the Parliament or a State Legislature or a Committee thereof and/or evidence of an Officer in the Secretariat of the Parliament or a State Legislature or a Committee thereof is required in a case, a letter of request in the Prescribed [Form No. (P) 14] shall be issued instead of summons in the ordinary form.

Note. In issuing a letter of request in accordance with the above Rule, the provisons of sub-section (2) of section 78 of the Evidence Act, 1872, should be borne in mind so as to ensure that the Parliament or a State Legislature is moved only when unpublished documents in its custody are required in evidence.

R. 62. As regards the service of processes upon the staff of the Foreign Diplomatic Missions, the procedure laid down in the High Court‘s General Letter No. 9 (Civil/Criminal of 1954) General Letter No.3 (Civil/Criminal) of 1960 and General Letter No. 6 (Civil/Criminal) of 1962 should be followed.

R. 63. In all appropriate cases, where the summons to a witness can be most expeditiously served by registered post, the Court shall resort to the mode of service provided in section 69 of the Code.

3. Service of Process through Police

R. 64. (1) All processes to be served by the Police should ordinarily be collected from the Court by the Court Police Officer on duty and sent to the Officer-in-Charge of the Police Station within whose jurisdiction the processes are to be served:

Provided that the Court may send a Warrant or Arrest for execution direct to a Police Officer concerned. (2) On receipt of the process the Officer-in-Charge of a Police Station shall cause the same to be entered in the register (R) 13 immediately.

(3) The register (R) 13 shall be shown to the Chief Judicial Magistrate or to the Sub-divisional Judicial Magistrate whenever they want to inspect the same and the Chief Judicial Magistrate and the Sub-divisional Judicial Magistrate may record any remark on the register in respect of any delay or negligence noticed by them in the matter of service or execution of a process.

R. 65. (1) All processes sent to Police for service or execution shall be served or executed within the time fixed by the Court and if for any reason the same be not possible, the process should be returned to the Court with a short note for delay before date fixed so that it can be re-issued with a new date.

(2) In no case, the Police should retain a process without service or execution beyond the date fixed without informing the court of the reason of the non-service or non-execution of the process concerned.

(3) The Superintendent of Police or the Commissioner of Police shall make necessary arrangements so that processes sent to the Police for service or execution are served or executed with utmost expedition and may for this purpose order the constitution of a special process serving cell in each police station.

R. 66. (1) All cases of avoidable delay or wilful default in the matter of service or execution of process shall be reported by the Chief Judicial Magistrate or the sub-divisional Judicial Magistrate concerned to the Superintendent of Police or the Commissioner of Police or such other Officer as may be specified by such Superintendent of Commissioner. (2) All cases reported under sub-rule (1) shall be investigated by the

Superintendent of Police or the Commissioner of Police or by the Officers specified by them under the said sub-rule and if any gross negligence is found in the matter of compliance with the Court’s order necessary disciplinary action should be taken against the persons responsible for such negligence, by the Police Authorities and the Chief Judicial Magistrate shall be informed of the action so taken.

R. 67. Having regard to the provisions of section 483 of the Code, Superintendent of Police or the Commissioner of Police, as the case may be, shall issue necessary instructions to all the Police Officers entrusted with the service or execution of process that all processes issued by the court are promptly and expeditiously served or executed so that unnecessary adjournments may be avoided by the courts concerned in all cases.

R. 68. The Officer-in Charge of the Police station shall send a pending list of all processes, received by him for service or execution during the month but remaining unserved or unexecuted, to the Sub-divisional Judicial Magistrate concerned, stating the reasons for the non-service or the non execution of the same.

R. 69. The rules applicable to the service of processes generally shall also apply to a process to be served by the police.

4. Government servants Summoned as Witnesses

R. 70. When Government Officers residing at the station are summoned arrangements should be made to send for them only when they are actually wanted.

R. 71. When Governments servants appear as witnesses, Courts shall as far as possible, give precedence in the matter of hearing to cases in which they appear, and give preference, in the order in which witnesses are examined, to such witnesses or discharge them after recording their evidence if it be of a formal nature.