This article is written by Sai Aravind R, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
A summons is a written notice served on a person under the authority of the court to appear personally before the court. Summons in Civil Procedure Code, 1908 (hereinafter referred to as “CPC”) are served on the defendants and witnesses. Defendants are summoned to intimate the suit filed against them. Whereas as the witnesses are summoned to demand evidence or to produce documents or both.
The concept of summons emanates from the natural justice principle of audi alteram partem (hear both sides). Only through such summons, the defendants become aware of proceedings against them. In the later stage of a suit, the parties can prove their case with the help of witnesses. To bring such witnesses to the court, the parties seek the court’s support. Thus, summons are sent to the witnesses through the procedure laid under Order 16 of CPC. Without summons, the parties cannot enforce the presence of witnesses and establish their case. Bereft of such process, the attendance of witnesses cannot be achieved thereby the dispute cannot be resolved on merits.
Who cannot be summoned
According to CPC, certain people cannot be summoned to appear in person. So, it should be made sure that a summon is not served to such people. According to Rule 19 of Order 16, the court cannot serve summons to persons who are residing outside the original jurisdiction of the court. The rule is exempted if such a person’s residence is situated less than fifty miles from the courthouse and even in the case where the person’s residence is situated less than two hundred miles from the courthouse where there is an availability of public transport.
Apart from this, women according to certain customs who do not appear in public cannot be summoned to appear in person before a court nor arrested under section 132 of CPC. Section 133 exempts persons holding constitutional positions from personal appearance in the court. So they cannot be summoned by the court either.
List of witnesses
Order 16 Rule 1 of CPC stipulates that a list of witnesses has to be submitted to the court by the parties. Such a list consisting of witnesses has to state details such as whether the witnesses are summoned for giving evidence or to produce documents or both. This list has to be submitted within fifteen days from the date on which the issues are framed.
But the entire summons process itself is not mandatory under CPC. A witness can also be produced before the court without the name in the witness list or even without a summons under Rule 1A of Order 16. This is used in cases where the party does not require the court’s help in bringing a witness to the court. So, only when the party is unable to bring the witness by himself, the court’s help is sought and a summon is sent.
Under Rule 14 of Order 16, the court may also summon a witness suo moto if the court feels it is necessary to serve justice. The court can examine such witnesses on its discretion and may require such a person to produce any evidence or documents he can.
Essentials in a summons
As per Order 5 Rule 1, the basic necessity in any summons is the sign of the Judge and seal of the court issuing the summons. With respect to the summons to a witness, Rule 5 of Order 16 states that particulars such as date and time at which the witness is required to attend are to be specified. Along with these, the reason for the procurement of the attendance of the witness such as to give evidence or to produce a document or both should also be mentioned in the summons. If the witness is called for producing any document, the name and description of the document required should also be mentioned in the summons.
Mode of service of summons
Summons to a witness can be served in different ways as it is served to a defendant under Order 5. Summons can be delivered personally to the person or his authorised agent. If the person cannot be found in his residence for a reasonable time, the summons can be delivered to any adult family member residing with the witness.
The court can serve the summons through its court officer or by registered post acknowledgement due. This shall be the most preferred method as there is a proof of acknowledgement slip and there can be no false report of service of summons. If the person consciously avoids the summons and cannot be reached by any means, the court officer can affix the summon on the door or the other conspicuous part of the house where the person resides or on the place where the person carries business.
The Supreme Court recently in a suo moto writ petition for the extension of limitation period due to lockdown held that digital mediums such as WhatsApp, Telegram and Email can be used to send summons. It was also held that the blue tick in WhatsApp can be considered as the acknowledgement of the service.
Summons outside the court’s jurisdiction
A court cannot summon a person residing outside its jurisdiction. In that case, Order 5 Rule 21 provides that the court may issue the summons to a court having jurisdiction over the person’s residence through its officer or by other means such as post or electronic mail service. Then Rule 23 enables such a court to which the summons is sent to serve the summons.
According to Section 31 of CPC, Section 27, 28 and 29 can also apply in the case of summons to witnesses. Wherein Section 28 in service of summons outside the State states that the summons has to be sent to a court with jurisdiction in the other State and it has to be in accordance with the rules in the transferee State. Such a court can serve the summon and a translation can also be made accordingly. Similarly, under section 29, a foreign summons passed by a court in India which does not come under CPC or a court under the authority of Central Government of Indian outside India or a court notified by the Government in official gazette under the section can be sent to courts under the CPC for service of such summons.
Non-compliance with summons
In case the witness fails to comply with the summons served, the person will face consequences laid under Rule 10 of Order 16. On such a situation, it is given that the court may issue a proclamation stating the person to be present at a specific time and date for giving evidence or to produce the document and a copy of the proclamation has to be affixed on the witness’s outer door or any conspicuous part of the house. Along with this, the court on its discretion may also issue a warrant to arrest the person for not appearing. Rule 12 states that the court could impose a fine less than five hundred rupees for non-appearance. Pertaining to which the court could also attach the property of the person in order to recover the fine if imposed. All this consequence could be avoided if the person gives any lawful excuse to the court for his absence.
Once the issues are framed in a civil dispute, the parties initially have to classify the witness whom they can bring by themselves and whom they cannot. Accordingly, a list of witnesses consisting of witnesses who can be produced only with the court’s assistance has to be made and submitted to the court. Thus, the summons are issued and they should be served on the witnesses in modes prescribed by the statute. By which those witnesses become legally responsible to attend the proceedings. Such witnesses will be penalised if they don’t obey the summons and appear before the court.
Criminal sanctions for the failure to obey the summons illustrates the significance of summons to witnesses. In a dispute, the witnesses usually have no interest in the case. They have nothing to lose if they don’t carry out the responsibility of a witness. But a summon from court creates a liability on the person to whom it is issued. By which the person has to attend unless they come under the given exceptions. The reason behind such a coercive process is to obtain a just decision in the end which can be done based only on the evidence and documents acquired from the witnesses.
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