IMPORTANT POINT
The court established that under Section 66 of BNSS 2023, service can be made through any adult family member, expanding the options compared to the previous law.

JUDGMENT :

(Rakesh Thapliyal, J.)

1. Present petition has been preferred under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as BNSS).

2. The present applicant is challenging the order dated 28.05.2024, passed by the Sessions Judge, Pithoragarh in Misc. Application No. 21 of 2024, Manish Singh Bisht vs. Jagdish Chandra Punetha & anr., whereby the application preferred by the present applicant for the purposes of taking effective steps to serve respondent through wife has been rejected.

3. The present applicant was convicted in a proceeding initiated under Section 138 of the N.I. Act, and sentenced to undergo rigorous imprisonment with fine of Rs. 7,50,000/- and being aggrieved with the said order of conviction, a statutory appeal was preferred on 17.10.2019 along with delay condonation application. The said delay condonation application was rejected on the ground that no supporting document along with delay condonation application has been enclosed, subsequently, the applicant approach this Court and preferred an application under Section 482 Cr.P.C., being C482 No. 635 of 2024 has been preferred wherein he has annexed the supporting documents, and the same was disposed of by this Court on 10.04.2024 and a liberty was given to the applicant to move fresh delay condonation application along with the relevant documents.

4. In compliance to the opportunity given to the applicant by this Court vide order dated 10.04.2024 in C482 No. 635 of 2024, the applicant has submitted fresh delay condonation application on 13.05.2024 and along with said application another application was also moved with a request that the applicant be permitted to take fresh steps to serve the respondent through his wife. The said application was rejected by the learned Sessions Judge, Pithoragarh by order dated 20.05.2024, and being aggrieved with this, the present application has been preferred under Section 528 of BNSS 2023.

5. Learned counsel for the applicant submits that the respondent/complainant has been declared as an absconder and award of Rs. 50,000/- has been declared upon him since he is wanted in criminal case no. 109 of 2021, for the offences punishable under Sections 420, 406, 506, 120B PC read with Section 3 of UPID Act, at Kotwali Pithoragarh. It is submitted by the learned counsel for the applicant that at present the applicant is not having correct address of the respondent/ complainant, since he himself is absconding, and, therefore, he submits that there is no any option except to serve the complainant through his wife since, he himself in Criminal Case No. 109 of 2021 has been declared absconder.

6. The Session Judge, Pithoragarh rejected the application by observing that under Section 64 of Code of Criminal Procedure, the service cannot be affected upon the respondent/complainant through his wife, since in the said provision if the person summoned cannot be found then in such eventuality the service can be affected with some adult male members of his family residing with him.

7. The learned counsel for the applicant submits that the applicant is not aware about any male members of the respondent/complainant, and, therefore, he requested that he may be permitted to serve respondent/complainant, through his wife but the same has been rejected.

8. I perused the order passed by the Session Judge, Pithoragarh dated 28.05.2024, though, I do not find any illegality in the said order because mandate of Section 64 Cr.P.C provides that if the person summoned cannot be found then in that eventuality the service can be affected upon him only through adult male member.

9. Learned counsel for the applicant drew attention of Section 66 of the new Act, ie., Bhartiya Nagarik Suraksha Sanhita, 2021 and submits that in this provision the service can be affected through any adult members of the family of the person concerned. He submits that since there is no other way out to take fresh steps, therefore, by way of Se