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1978 Supreme(J&K) 48
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
A.S. Anand, J.
Hassan Sheikh - Appellant
Versus
Ab. Rashid & Ors. - Respondent
Cr. Revision No. 80/1978
Decided On : 18 August, 1978
Advocate For Appellant: Sunil Hali
Advocate For Respondent: P.N. Qazi
Service of summons by registered post letter on a person summoned in proceedings under Section 488 Cr.P.C. is not permitted by law.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 488 - SERVICE OF SUMMONS - REGISTERED POST LETTER - LEGALITY - INTERPRETATION - COURT ANALYSIS AND CONCLUSION - RATIO DECIDENDI - FINAL DECISION - MAINTENANCE - SECTION 488 CR.P.C. - SERVICE OF SUMMONS BY REGISTERED POST LETTER - NOT PERMITTED - SERVICE BY REGISTERED POST LETTER ONLY CONTEMPLATED UNDER SECTION 69(3) CR.P.C. FOR INCORPORATED COMPANY OR OTHER BODY CORPORATE - SERVICE OF SUMMONS ON A PERSON SUMMONED IN PROCEEDINGS UNDER CR.P.C. IS PERMISSIBLE ONLY IN CASE OF AN INCORPORATED COMPANY OR OTHER BODY CORPORATE AND IN NO OTHER CASE - SERVICE BY REGISTERED POST LETTER ON A PERSON SUMMONED IN PROCEEDINGS UNDER SECTION 488 CR.P.C. IS NOT PERMITTED - ORDER OF MAGISTRATE SETTING CASE EXPARTE AGAINST PETITIONER ON GROUND OF REFUSAL TO ACCEPT REGISTERED LETTER IS WITHOUT JURISDICTION - REVISION PETITION ACCEPTED - ORDER OF MAGISTRATE AND SESSIONS JUDGE SET ASIDE - CASE REMANDED FOR PROCEEDING IN ACCORDANCE WITH LAW.
Fact of the Case:
Petitioner challenged the order of the trial court setting the case ex parte against him in a maintenance proceeding under Section 488 Cr.P.C. on the ground that service of summons by registered post letter was not permitted by law. The trial court had directed service by registered post letter after the summons sent to the petitioner were not received back within a short period of time. The petitioner argued that the service of summons by registered post letter was not permissible under the Cr.P.C. and that the trial court erred in setting the case ex parte against him.
Finding of the Court:
The court held that service of summons by registered post letter on a person summoned in proceedings under Section 488 Cr.P.C. is not permitted by law. The court observed that Section 69(3) of the Cr.P.C. specifically provides for service by registered post only in the contingency of an incorporated company or other body corporate. The court further held that the trial court erred in setting the case ex parte against the petitioner on the ground that he had refused to accept the registered letter, as refusal to receive summons by registered post cannot amount to "due service" under the law.
Issues: 1. Whether service of summons by registered post letter on a person summoned in proceedings under Section 488 Cr.P.C. is legally valid? 2. Whether the trial court erred in setting the case ex parte against the petitioner on the ground that he had refused to accept the registered letter?
Ratio Decidendi: The court relied on the provisions of Chapter VI of the Cr.P.C., which prescribes the procedure for compelling appearance of the parties in a case. The court observed that Section 69(3) of the Cr.P.C. specifically provides for service by registered post only in the contingency of an incorporated company or other body corporate. The court further held that the trial court erred in setting the case ex parte against the petitioner on the ground that he had refused to accept the registered letter, as refusal to receive summons by registered post cannot amount to "due service" under the law.
Final Decision: The court accepted the revision petition, set aside the order of the trial court setting the case ex parte against the petitioner, and remanded the case to the trial court for proceeding in accordance with law.
2. The respondents to this petition, claiming to be the wife and children of the petitioner herein, filed an application under section 488 Cr. P. C. claiming maintenance. On 25th April, 1974, the learned trial magistrate directed the issuance of summons to the petitioner. The case was adjourned to 7th May, 1974. Summons were not received back by that date and the learned trial court directed the service of the petitioner by a registered post letter. On 11th of June, 1974, the court directed the case to be set exparte against the petitioner on the ground that he had refused to accept the registered post letter. After setting the case exparte, the respondents were given opportunity to establish their case and vide order dated 18th June, 1974, the court awarded maintenance at the rate of Rs. 120/- P.M. in favour of the respondents. Aggrieved against the order, the petitioner filed a revision petition before the learned Sessions Judge, Anantnag. The revision petition was dismissed vide order dated 31st December, 1975. The petitioner thereafter filed the present revision petition in this court on 19-2-1976.
3. Mr. Hali, learned counsel for the petitioner has argued that apart, from the fact that no service was in fact effected on the petitioner, the service of summons by registered post letter on the petitioner was not permitted by law, and as such, the learned trial court committed an error in law in directing the petitioner to be proceeded exparte.
4. Chapter VI of the Code of Criminal Procedure prescribes the procedure for compelling appearance of the parties in a case. It would at this stage, be profitable to first notice the relevant provisions of this chapter.
Section 68 provides;
"Form of summons: - (1) Every summons issued by a Court under this Code shall be in writing, in duplicate, signed and sealed by the presiding officer of such Court, or by such other officer as the High Court may, from time to time, by rule, direct.
(2) Summons by whom served: - Such summons shall be served by a police officer, or subject to such rules as the High Court may prescribe in this behalf, by an officer of the Court issuing it or other public servant."
Section 69 provides: -
"Summons how served: - (1) 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) Signature of receipt for summons: - 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) Service of summons on an incorporated company or other body corporate may be effected by serving it on the Secretary, local manager or other principal officer of the corporation or by registered post letter addressed to the chief officer of the corporation in Jammu and Kashmir State. In such case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
Section 70 provides;
"Service when person summoned cannot be found: -
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 and the person with whom the summon is so left, shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate."
Section 71 provides: -
"Procedure when service cannot be effected as before provided: -
If service in the manner mentioned in sections 69 and 70 cannot by the exercise of due diligence be effected, the serving officer shall affix one of duplicates of the summons to some conspicuous part of the house or home,--a stead in which the person summoned ordinarily resides ; and th
