Wednesday, 28 April 2021

Can a court issue a non-bailable warrant against the accused in a criminal case if a summons were issued to him on Whatsapp?

 The Crl.M.C is filed aggrieved by the non-bailable warrant issued against the petitioner. The specific case put forth by the petitioner is that the summons, alleged to have been sent through WhatsApp to his mobile phone, had never reached him, as he has not downloaded the WhatsApp application on his phone.

4. The above provisions do not provide for service of summons

through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons.

6. In the case at hand, the summons is stated to have been

issued through WhatsApp, which is not an accepted mode of service.

As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANOOP JACOB Vs STATE OF KERALA

Crl.M.C.No.1658 of 2021

Dated this the 9th day of April, 2021

PRESENT

 MR.JUSTICE V.G.ARUN


The petitioner is the 1st accused in C.C.No.134 of 2021 on the

files of the Additional Chief Judicial Magistrate (Special Court for Cases

related to MPs/MLAs), Ernakulam. The offences alleged are under

Sections 143, 147, 149, 269, 271 and 188 of IPC, Section 118(e) of the

Kerala Police Act and Sections 4(2)(a), 4(2)(e) and 5 of the Kerala

Epidemic Disease Ordinance, 2020. The Crl.M.C is filed aggrieved by

the non-bailable warrant issued against the petitioner. The specific

case put forth by the petitioner is that the summons, alleged to have

been sent through WhatsApp to his mobile phone, had never reached

him, as he has not downloaded the WhatsApp application on his

phone.

2. In view of the contentions, it may be apposite to have a look at

Section 62 of Cr.P.C, dealing with mode of service of summons;

“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.”

3. Going by Section 65 of Cr.P.C, if service could not be effected

as provided under Section 62, the serving officer shall affix one of the

duplicates of the summons to the conspicuous part of the house or

homestead in which the person summoned ordinarily resides.

Thereafter, the court should make such enquiries as it thinks fit and

either declare the summons to have been duly served or order fresh

service in such manner as it considers proper. As per Rule 7 of the

Criminal Rules of Practice, Kerala, summons issued to the accused and

witnesses shall ordinarily be signed by the Chief Ministerial Officer of

the Court and the words “By order of the Court” shall invariably be

prefixed to the signature of the Ministerial Officer.

4. The above provisions do not provide for service of summons

through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, it may be

pertinent to note the insertion of Section 144 in the Negotiable

Instruments Act (for short, 'the Act') for the purpose of overcoming the

delay in serving summons on the accused in complaints under Section

138 of the Act. Section 144, providing for service of summons by

speed post or by approved courier service, was inserted by Act 55 of

2002. In Indian Banks Assn. v. Union of India [(2014) 5 SCC 590],

the Honourable Supreme Court alerted the Magistrates about the need to adopt a pragmatic and realistic approach while issuing process and

had directed to issue summons by post as well as by email. Later, in

Meters & Instruments (P) Ltd. v. Kanchan Mehta [(2018) 1 SCC

560], the Apex Court observed that in complaints under Section 138, it may be desirable for the complainant to give his bank account number and if possible, the email ID of the accused. Recently, in Makwana Mangaldas Tulsidas V. State of Gujarat [(2020) 4 SCC 695], it has

been held that the Banks are bound to provide the requisite details by

developing an information sharing mechanism, where the Banks can

share all the requisite available details of the accused, who is the

account holder, with the complainant and the Police for the purpose of

execution of process.

6. In the case at hand, the summons is stated to have been

issued through WhatsApp, which is not an accepted mode of service.

As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.

In the result, the Crl.M.C is disposed of permitting the petitioner

to appear before the Additional Chief Judicial Magistrate's Court

(Special Court for Cases related to MPs/MLAs), Ernakulam in

C.C.No.134 of 2021 and to move an application for bail. In such event, the bail application shall be considered on the same day, deeming the petitioner to have appeared on summons. In order to provide an opportunity for the petitioner to appear before the court below and seek bail, the non-bailable warrant issued against him shall be kept in abeyance for a period of four weeks.


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