Electronic Summons under the | BNSS 2023

Electronic Summons under the BNSS, 2023: Section 63 on the Form of a Summons, Service by Electronic Communication under Section 64, and the Proof of Service

The oldest and most ordinary cause of delay in a criminal court is a case which cannot proceed because the summons has not been served. Dates are wasted, witnesses attend and are sent away, and the file returns with the endorsement that the person could not be found. The Sanhita’s answer is to permit a summons to be issued and served electronically.

Two provisions do the work. Section 63 deals with the form of a summons, and permits it to be in encrypted or any other form of electronic communication bearing the image of the seal of the Court or a digital signature. Section 64(2) deals with service, and its proviso permits service by electronic communication in such form and manner as the State Government may by rules provide.

1. The Form of the Summons

Figure 1: Sections 63 and 64

Section 63, BNSS 2023

Every summons issued by a Court under this Sanhita shall be —

(i) in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court; or

(ii) in an encrypted or any other form of electronic communication and shall bear the image of the seal of the Court or digital signature.

An electronic summons is a summons. Clause (ii) does not create a lesser instrument. A summons in encrypted or other electronic form, bearing the image of the seal or a digital signature, has exactly the same force as one written in duplicate and sealed by hand, and non-appearance on it attracts exactly the same consequences.
The seal or the signature is what authenticates it. An electronic communication which bears neither the image of the seal nor a digital signature is not a summons at all. Those are what distinguish a process of the Court from an ordinary message, and they are the safeguard against a forged or spurious summons — a risk which electronic transmission makes far easier to run.
The traditional form survives unchanged. Clause (i) remains, and a Court may issue a summons in writing and in duplicate exactly as before. The two clauses are alternatives, not a rule and an exception.

2. Service

Section 64, BNSS 2023 — the substance

(1) Every summons shall be served by a police officer, or, subject to such rules as the State Government may make, 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:

Provided that such summons may also be served by electronic communication in such form and in such manner as the State Government may, by rules, provide.

(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt on the back of the other duplicate.

The proviso is not self-executing. Service by electronic communication is valid only in the form and manner the State Government has prescribed by rules — which will ordinarily specify the address to be used, the record to be kept, and what constitutes proof of despatch and of delivery. Until those rules exist and are followed, an electronic despatch is not service under the section.

Note also the word also. Electronic service is an additional mode, not a substitute for the others. The ordinary modes survive in full — personal service with a signed receipt; service on an adult member of the family where the person cannot be found after due diligence; affixation to a conspicuous part of the house where neither is possible; service on a government servant through the head of his office; and service outside local limits through a Magistrate having jurisdiction. And the Court retains the power to direct personal service where the case requires it.

3. Proof of Service

Figure 2: The modes of service and the questions of proof

An electronic summons is not dispensed from proof. The record must show what was sent, to what address, and when — and the rules made by the State Government will prescribe what form that proof takes. But four questions will recur before courts whatever the rules say, and they are worth anticipating.

Was the address the right one? Service to an address the accused does not use, or has abandoned, is not service however faithfully the rules were followed. The correctness of the address is a question of fact which the record must support.
Is despatch the same as receipt? The rules will say what proof is required. But a court asked to take a consequential step against an absent person will want to know whether the summons actually reached him, and not merely that it was sent into the electronic ether.
Was the summons authenticated? Did it bear the image of the seal or a digital signature? Without one of those it is not a summons, and nothing follows from ignoring it.
And should a consequence follow from non-appearance? A warrant, a proclamation, or ultimately a trial in absentia all rest on proof that the person knew he was required to attend. That is a higher standard than proof that a message was despatched, and a court should not treat the two as equivalent.

⚠ The connection with the rest of the Sanhita

Section 530 places the whole of this on a general footing: all trials, inquiries and proceedings, including the issuance, service and execution of summons and warrants, may be held in electronic mode.

Section 65 permits service on a company or corporate body by electronic communication, which is where the facility is likely to be most used in practice.

Section 71 provides for service of a summons on a witness by post or by electronic communication, which is where it matters most for the pace of a trial — an unserved witness being the commonest cause of an adjournment.

And section 346 now permits not more than two adjournments during a trial. The two provisions work together: the Sanhita restricts adjournments and simultaneously removes the most frequent excuse for needing one.

4. Key Takeaways

The position stated shortly

1. Section 63 permits a summons to be in writing and in duplicate with the seal, or in encrypted or other electronic form bearing the image of the seal or a digital signature.

2. The two clauses are alternatives. An electronic summons has exactly the same force as a written one.

3. The seal or the digital signature is what authenticates it. An electronic communication bearing neither is not a summons at all.

4. Section 64(2) requires service personally if practicable, by delivering or tendering a duplicate, with a signed receipt if the serving officer requires one.

5. The proviso permits service also by electronic communication — but only in the form and manner the State Government prescribes by rules.

6. The proviso is not self-executing: until the rules exist and are followed, an electronic despatch is not service.

7. Electronic service is an additional mode. The ordinary modes survive, and the Court may still direct personal service.

8. An electronic summons is not dispensed from proof: the record must show what was sent, to what address, and when.

9. Four questions recur — whether the address was right, whether despatch equals receipt, whether the summons was authenticated, and whether a consequence should follow from non-appearance.

10. A warrant, proclamation or trial in absentia rests on proof that the person knew he was required to attend — a higher standard than proof of despatch.

5. Frequently Asked Questions

Can a summons be issued electronically?

Yes. Section 63(ii) permits a summons to be in an encrypted or any other form of electronic communication, provided it bears the image of the seal of the Court or a digital signature.

What authenticates an electronic summons?

The image of the seal of the Court or a digital signature. An electronic communication bearing neither is not a summons at all, and nothing follows from failing to attend upon it.

Can a summons be served electronically?

Yes, under the proviso to section 64(2) — but only in such form and in such manner as the State Government may by rules provide. The proviso is not self-executing.

Does electronic service replace personal service?

No. The word in the proviso is also. Electronic service is an additional mode; the ordinary modes survive in full, and the Court may still direct that a summons be served personally where the case requires it.

Is proof of despatch enough?

The rules will prescribe what proof is required. But where a consequential step is sought against an absent person — a warrant, a proclamation, or a trial in absentia — a court will want to be satisfied that the person knew he was required to attend, which is a higher standard than proof of despatch.

Why does this matter for the pace of a trial?

Because unserved summonses are the commonest cause of adjournments, and section 346 now permits not more than two adjournments during a trial. The Sanhita restricts adjournments and simultaneously removes the most frequent excuse for needing one.

Related Topics

Electronic Trials and Proceedings: Section 530, BNSS
Summons and Warrants: Chapter VI, BNSS
Electronic Trials under Section 530
Proclamation and Attachment: Sections 84 to 89, BNSS
Trial in Absentia of a Proclaimed Offender: Section 356
Major Changes Introduced by the BNSS, 2023