Whether substituted service of summons to accused is permissible in a criminal case?

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. 

IN THE HIGH COURT OF KARNATAKA

Reference in Criminal Petition No. 778/2005

Decided On: 30.06.2005

 Mac Charles (I) Ltd.  Vs.  Chandrashekar and Ors.

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Precaution to be taken by court while deciding application for substituted service of summons

 The record before the Court would indicate that the Trial Court by its order dated 9 February 2011 directed the issuance of summons to the original Defendant, returnable on 15 March 2011. In pursuance of the order, summons were issued on 4 March 2011. The report of the bailiff dated 11 April 2011 indicates that the summons were returned unserved and the bailiff was informed that the original Defendant had left the premises nearly two years earlier and resided elsewhere.

15. Order V Rules 17 provides as follows:

17. Procedure when Defendant refuses to accept service, or cannot be found.- Where the Defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the Defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and 'whose presence the copy was affixed.

Evidently as the report of the bailiff indicates, he was unable to find the Defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule 17. When the application for substituted service was filed before the Trial Court Under Order V Rule 20, a cryptic order was passed on 2 September 2011. Order V Rule 20 requires the Court to be satisfied either that there is reason to believe that the Defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it. Paragraphs 33 to 36 of Chapter III are extracted below:

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 71 of 2018 (Arising out of SLP (C) No. 5847 of 2017)

Decided On: 29.01.2018

 Neerja Realtors Pvt. Ltd. Vs.  Janglu (dead) thr. L.R.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: (2018) 2 SCC 649

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Whether Service Of Summons Without Mentioning Specific Day, Date, Year And Time Can Be Held As ‘Summons Duly Served?

The material infirmity in the summons was
that it did not mention any specific day, date, year
and time for the defendants’ appearance in the
Court. This being the requirement of Section 27
read with Order V Rule 20(3) and Process-IA of
Appendix-B, it was mandatory for the Court to
mention the specific working day, date, year and
time in the columns meant for such filling. It would
have enabled the defendants to appear before the
Court on the date so fixed therein. It is a settled
rule of interpretation that when the legislature
provides a particular thing to be done in a
particular manner then such thing has to be done
in the same prescribed manner and in no other
manner.
31) What was, however, mentioned in the
summons in question was that the defendants
should appear before the Registrar of the Court
within 15 days from the service of publication of
this summons on them exclusive of the day of such
service of the summons and are summoned to
appear before this Court in person or through
advocate to answer the plaintiff's claim on the day
the case is set down for hearing upon which date
you(defendants) must be prepared to produce all
your witness and all your documents in your
possession or power upon which you intend to rely
in support of your case. The summons then also
mentioned that you (defendants) are hereby
required to take notice that in default of your
causing an appearance to be so entered, the suit
will be liable to be heard and determined in your
absence.
32) The aforesaid wording in the summons insofar
as it pertains to giving 15 days’ time without
mentioning a specific day, date, year and time is not
in conformity with the requirements of Section 27
read with Appendix B.
33) In the light of the foregoing discussions,
service of summons on the defendants without
mentioning therein a specific day, date, year and
time cannot be held as “summons duly served” on
the defendants within the meaning of Order IX Rule
13 of the Code. In other words, such summons and
the service effected pursuant thereto cannot be held
to be in conformity with Section 27 read with the
statutory format prescribed in Appendix B Process (I
and IA) and Order 5 Rule 20(3) of the Code.
34) It is for this reason, we are of the considered
opinion that the appellant (defendant No.1) was able
to make out a ground contemplated under Order IX
Rule 13 of the Code for setting aside the ex parte
decree.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2113 OF 2018
(Arising out of S.L.P.(C) No. 14648 of 2017)

Auto Cars  Vs Trimurti Cargo Movers Pvt.Ltd. & Ors. 

Dated:February 15, 2018

Abhay Manohar Sapre, J.
Citation:AIR 2018 SC 1165,(2018) 15 SCC166

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Whether substituted service on place where defendant is not residing is proper service?

Mr. Mitter cited a three Judges' Bench judgment reported in MANU/WB/0336/1915 : 20 CWN 173 (Kossim Ebrahim Saleji v. Johurmull Khemka) and said that where there is a question of substituted service the requirements of the Court should be strictly observed in every respect even though the defendant knew about the issue of the writ of summons. There the serving officer went to defendant's place of business and not finding him on three separate occasions pasted a copy of the writ on the outer door of the said house which he erroneously believed to be the defendant's ordinary place of business was not sufficient service of summons.

IN THE HIGH COURT OF CALCUTTA

G.A. Nos. 3713 of 1998 and 3468 of 1999 and Civil Suit No. 382 of 1998

Decided On: 23.04.2002

 Sri Kamalesh Adhikary

Vs.

 Dakshin Damodar Cold Storage Private Limited

Hon'ble Judges/Coram:

Amitava Lala, J.

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How to ascertain limitation for setting aside exparte decree?

As regards the point of limitation raised by the learned advocate for the petitioners, the same is devoid of substance. In terms of section 123 of the Limitation Act an application for setting aside the ex parte decree can be filed within 30 days from the date of the decree, but where the summons or notice was not duly served, it can be filed within 30 days from the date of knowledge of the decree to the applicant. The explanation to section 123 further clearly provides that substituted service under Order V, Rule 20 shall not be deemed to be due service. In other words, in case of service of summons by substituted service under Order V, Rule 20 of C.P.C. the period of 30 days for setting aside the ex parte decree is to be counted only from the date of acquisition of knowledge of the decree by the applicant.

Bombay High Court

Shri Shantaram Fatu Prabhu Desai & ... vs Smt. Harsha Umesh Sardessai & ... on 17 February, 1998

Equivalent citations: 1998 (3) BomCR 730, 1998 (3) MhLj 631

Bench: R Khandeparkar

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When service of summons by paper publication is not permissible?

Upon hearing the learned advocates for the parties and on perusal of the records, it is seen that in terms of Order IX , Rule 13 C.P.C. the Court is empowered to set aside the ex parte decree in case it satisfies itself that the summons was not duly served upon the defendants in the suit as well as when the defendant was prevented by any sufficient cause from appearing before the Court when the suit was called out for hearing. The impugned order ex-fade discloses that on the basis of the materials on record, the trial Court has arrived at a clear finding that the petitioners had not filed any application asking for service of summons by registered A/D post. The trial Court has also arrived at the finding that the petitioners did not ask for service of summons by affixation on the outer door of the residential premises of the respondent. As rightly submitted by the advocate for the respondents, the Order VI, Rule 14-A(1) to (4) as provided by the Bombay High Court clearly provides thus:-

"14-A - Address for service of notice:-

(1) Every pleading when filed by a party shall be accompanied by a statement in the prescribed form, signed as provided in Rule 14, regarding the address of the party. Parties subsequently added shall immediately on being so added file a memorandum in writing of this nature.

(2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition. Notice of such change shall be given to such other parties as the Court may deem it necessary and the form showing the change may be served either on the pleaders or such parties or be sent to them by registered post pre-paid for acknowledgement as the Court thinks fit.

(3) The address furnished in the statement made under sub-rule (1) shall be called the "registered address" of the party, and shall until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit or in any appeal from any decree or order therein made and for the purpose of execution, and shall hold good, subject as aforesaid, for a period of six years after the final determination of the cause of matter.

(4) (i) Where a party is not found at the registered address and no agent or adult male member of his family, on whom a notice or process can be served is present, a copy of the notice or process shall be affixed to the outer door of the house. If on the date fixed such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address of that party by registered post pre-paid for acknowledgement (which pre-payment shall be made within one month from the date originally fixed for hearing) and such service shall be deemed to be as effectual as if the notice or process had been personally served.

(ii) Where a party engages a pleader, notice or process issued against the party shall be served in the manner prescribed by Order III, Rule 5, unless the Court directs service at the registered address of the party".

It is thus clear that in terms of the said Rule it is absolutely necessary for the plaintiff to take necessary steps to serve the defendant by registered post when he cannot be served through a bailiff of the Court and in addition he has to see that the copy of the summons is affixed on the outer door of the residential premises of the defendant when a person to whom the summons is addressed is not found at the premises of the registered address. The trial Court on going through the records has arrived at the finding, as already noted above, that the petitioners herein had neither taken steps for affixation of summons on the residential premises of the respondents nor for service of summons on the respondent by registered post. Indeed the fact that there was no attempt made by the petitioners either to serve the summons by registered post or to take steps for affixation of copy of the summons on the outer door of the residential premises of the respondents is not disputed. In this set of facts I do not find any case made out for interference in the impugned order wherein the trial Court in exercise of its discretion, which has been judiciously exercised, has held that the summons in the main suit was not duly served on the respondents.

As regards the last submission of the learned advocate for the petitioners that the substituted service under Order V, Rule 20 was sufficient compliance of the provisions regarding service of summons also cannot be accepted in view of clear provisions in that regard in Rule 14-A of Order VI of C.RC. The said rule clearly provides that the plaintiff shall endeavour to serve the defendants by registered post or by affixation or summons on the residential premises of the defendants when the normal service of summons by the bailiff to the person to whom the summons is directed cannot be made due to the absence of such person. Undisputedly in the instant case no such efforts were made by the petitioners and as such the service by publication under Order 5, Rule 20 cannot be a valid service.

Bombay High Court

Shri Shantaram Fatu Prabhu Desai & ... vs Smt. Harsha Umesh Sardessai & ... on 17 February, 1998

Equivalent citations: 1998 (3) BomCR 730, 1998 (3) MhLj 631

Bench: R Khandeparkar

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Supreme Court: Precaution to be taken by court while granting application for substituted service

The learned Single Judge has found that respondent being an illiterate lady living in a different town could not have known through the newspaper that her husband had filed a divorce petition against her and, therefore, she had no knowledge about the divorce petition. Consequently, the ex parte decree could be treated as one passed against the party which was not served and which had no knowledge about the said proceedings. The learned Counsel for the respondent was also justified in submitting that the Trial Court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12, 15 and 17 C.P.C. It must be kept in view that substituted service has to be resorted as the last resort when the defendant cannot be served in the ordinary way and the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. In the present case, it appears that almost automatically the procedure of substituted service was resorted to.

 Citation : AIR 1997 SC 35

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9852 of 1996.

Decided On: 08.10.1996

Smt. Yallawwa   Vs. Smt. Shantavva

Hon'ble Judges/Coram:

N.P. Singh and S.B. Majmudar, JJ.

Citation: AIR 1997 SC 35.

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