Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Summons under the BNSS 2023 Sections 63 to 71
Summons under the BNSS, 2023: Sections 63 to 71, Form, Service, Electronic Service, Service on Companies and Government Servants, and Proof of Service
A criminal court cannot proceed against a person who is not before it. Chapter VI of the Bharatiya Nagarik Suraksha Sanhita, 2023, headed “Processes to Compel Appearance”, provides the machinery by which a court secures the presence of an accused or a witness, and it does so in a deliberate order of increasing severity. It begins with a summons, which asks; it moves to a warrant, which commands; it moves to a proclamation, which publishes; and it ends in the attachment of property. This topic deals with the first of those, sections 63 to 71.
A summons is the least coercive of the processes and by a large margin the most used. Almost every criminal case begins with one, and almost every trial is delayed by a failure to serve one. The provisions on service are therefore not technical detail but the part of the chapter that determines whether criminal cases move at all, and the changes the Sanhita has made are directed almost entirely at that problem.
1. Summons: Meaning and Essentials
Section 63, BNSS 2023: form of summons 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; (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. |
A summons is a written intimation issued by a court requiring a person to attend before it at a stated time and place. It is not an order to arrest, it does not authorise the detention of the person on whom it is served, and disobedience to it does not by itself make him liable to arrest. What disobedience does is entitle the court to move up the ladder, to a warrant under section 90.
1.1 The essentials
- It must be issued by a court. A process issued by a police officer is not a summons within this Chapter. The notice under section 35 is a police notice, and although it performs a comparable function it is governed by a different provision and, as examined below, by different rules of service.
- It must be in writing. Clause (i) requires writing in duplicate; clause (ii) permits the writing to take an electronic form.
- It must be in duplicate. One duplicate is delivered or tendered to the person summoned; on the back of the other he signs a receipt. The two-copy requirement is what makes proof of service possible.
- It must be signed and sealed. By the presiding officer or such other officer as the High Court directs by rule, and it must bear the seal of the court. In the electronic form, the image of the seal or a digital signature takes the place of the physical seal.
- It must specify the person, the time and the place. The form in the Second Schedule supplies the particulars, and section 522 permits its use with such variations as the circumstances require.
⚠ Clause (ii) is the significant change Section 61 of the Code of Criminal Procedure required a summons to be in writing, in duplicate, signed and sealed, and said nothing about any electronic form. Clause (ii) of section 63 permits a summons to be issued in an encrypted or any other form of electronic communication, with the image of the seal or a digital signature in place of the physical seal. The clause is drafted as an alternative and not as an exception. A court may issue a summons in either form, and the electronic form is not a concession requiring justification. The practical significance is in what follows. Section 64(2) permits service by electronic communication, and section 70(3) provides that a summons so served is deemed duly served. Together the three provisions create a complete electronic route from issue to proof. |
2. Service of a Summons
Figure 1: The ladder of modes of service
2.1 Who serves, and how
Section 64(1) provides that every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant. Sub-section (2) requires it to be served personally on the person summoned, if practicable, by delivering or tendering to him one of the duplicates, with a proviso permitting service by electronic communication in such form and manner as the State Government may provide by rules. Sub-section (3) requires the person on whom it is served, if so required by the serving officer, to sign a receipt on the back of the other duplicate.
Two points on the wording. Delivering or tendering covers the case of the person who refuses to take it: a summons tendered and refused is served, and the serving officer records the refusal. And the requirement that service be personal is qualified by “if practicable”, which is what opens the way to the substituted modes that follow.
2.2 Service on an adult member of the family
Section 66 provides that 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 member of his family residing with him, and the person with whom it is left shall, if so required, sign a receipt on the back of the other duplicate. An Explanation provides that a servant is not a member of the family within the meaning of the section.
Section 64 of the Code of Criminal Procedure required the duplicate to be left with an adult male member of the family. The Sanhita has dropped the word “male”. The change is small in words and considerable in effect: a summons may now be left with an adult woman of the household, which removes a provision that had become both impractical and indefensible.
2.3 Affixation
Section 67 provides that if service cannot by the exercise of due diligence be effected as provided in sections 64, 65 or 66, the serving officer shall affix one of the duplicates 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.
Affixation is therefore not itself service. It is a step which entitles the court, after inquiry, to declare service sufficient, and the declaration is a judicial act. A court that treats an affixation report as service without any inquiry has not performed the function the section gives it, and the point is worth taking where a person has been proceeded against in his absence on the strength of an affixation.
3. Special Categories
Provision | Category | Mode of service |
|---|---|---|
Section 65 | Companies and corporations | Service may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post addressed to the chief officer of the corporation in India, in which case service is deemed to have been effected when the letter would arrive in the ordinary course of post. The Explanation extends “corporation” to a company registered under the Companies Act, a society registered under the Societies Registration Act, and an association or body of persons, whether incorporated or not |
Section 68 | Government servants | Where the person summoned is in the active service of the Government, the Court shall ordinarily send the summons in duplicate to the head of the office in which he is employed; the head of office causes it to be served and returns it to the Court under his signature with the endorsement required by section 64(3), and that signature is evidence of due service |
Section 69 | Outside the local jurisdiction | Where a summons is to be served outside the local limits of the jurisdiction of the Court issuing it, the Court shall send it in duplicate to a Magistrate within whose local jurisdiction the person summoned resides or is to be served, and that Magistrate causes it to be served as if it had been issued by himself |
Section 71 | Witnesses | The Court may, in addition to and simultaneously with the ordinary mode of service, direct a copy of the summons to be served by registered post or by electronic communication at the place where the witness ordinarily resides, carries on business or personally works for gain. Where an acknowledgment purporting to be signed by the witness, or an endorsement that he refused to take delivery, is received, the Court may declare that the summons has been duly served |
Two of these deserve a note. Section 65 makes registered post a primary mode for a corporation, not a substituted one, and the deeming provision fixes the date of service without proof of actual receipt. Section 71 makes registered post and electronic communication additional and simultaneous modes for a witness, so the ordinary service is not dispensed with, and the value of the section lies in the declaration the court may make on a refusal to take delivery.
4. Electronic Service
The electronic route runs through three provisions, and it is worth setting them out together because each does a different part of the work.
Provision | What it does |
|---|---|
Section 63(ii) | Permits the summons to be issued in an encrypted or any other form of electronic communication, bearing the image of the seal of the court or a digital signature |
Section 64(2), proviso | Permits the summons to be served by electronic communication, in such form and manner as the State Government may provide by rules |
Section 70(3) | Provides that where a summons is served electronically, it shall be considered duly served, and a copy of the summons shall be attested and kept as proof of service |
Section 71 | Permits a copy of a witness summons to be served by electronic communication in addition to and simultaneously with the ordinary mode |
Section 530 | The general enabling provision: all trials, inquiries and proceedings, including the issuance, service and execution of summons and warrant, may be held in electronic mode |
⚠ The limit of the electronic route: a court summons and a police notice are different In July 2025 the Supreme Court held that a notice under section 35 of the Sanhita must be served physically, and that service through WhatsApp or other electronic communication is not a valid substitute for the modes the Sanhita prescribes. The reasoning is that non-compliance with such a notice can result in arrest, so the mode of service bears directly on liberty; and that by permitting electronic communication only for certain specified procedures, the legislature has by implication excluded it for those for which it has not been permitted. The Court expressly rejected the argument that sections 64(2) and 71, which permit electronic service of a court summons, show a general legislative preference that should be extended to a police notice. A court summons and a police notice, it held, occupy fundamentally different planes. The practical consequence is a clear line. Electronic service is available for a summons issued by a court under this Chapter. It is not available for a notice issued by a police officer under section 35 at the investigation stage. |
5. Proof of Service
Figure 2: Proof of service, and the summons to a witness
Section 70 deals with proof in the two situations in which the serving officer is not available to depose. Sub-section (1) provides that where a summons issued by a court is served outside its local jurisdiction, and the officer who served it is not present at the hearing, an affidavit purporting to be made before a Magistrate that the summons has been served, and a duplicate of the summons purporting to be endorsed by the person to whom it was delivered or tendered, shall be admissible in evidence, and the statements made in it shall be deemed to be correct unless the contrary is proved. Sub-section (2) permits the affidavit to be attached to the duplicate and returned to the Court.
Sub-section (3) is the addition the Sanhita has made. It provides that the statement made by the officer or person in the affidavit shall be admissible in evidence, and that where a summons is served electronically, it shall be considered duly served and a copy shall be attested and kept as proof of service. The attested copy therefore takes the place of the endorsed duplicate that a physical service produces.
5.1 What proof of service is for
The question whether a summons was duly served is not an end in itself. It is the foundation of everything the court may do in the absence of the person summoned. A court cannot issue a warrant under section 90 for failing to attend without being satisfied that the summons was served; it cannot proceed in the absence of an accused; and it cannot take coercive steps against a witness who has not appeared. Where service is doubtful the proper course is fresh service, which section 67 expressly permits the court to order.
📖 Indian Bank Association v. Union of India, (2014) 5 SCC 590 Facts: Complaints under the Negotiable Instruments Act, 1881 for the dishonour of cheques had accumulated in the magistracy in enormous numbers, and the principal cause of delay was the failure to serve summons on the accused, who frequently evaded service. The Court was asked to consider what steps could be taken to make the trial of such complaints expeditious. Held: The Supreme Court issued directions on procedure. Among them, it directed that on the day the complaint is presented, if it is accompanied by an affidavit and the documents, the Magistrate should scrutinise it and issue summons on the same day; that the summons should, in the first instance, be served through the post as well as by e-mail at the address available; that the Court should, in appropriate cases, take the assistance of the police or a nearby court to serve notice on the accused; and that where the accused appears, he should be asked whether he would plead guilty, and the case conducted as far as possible on a day-to-day basis. The Court framed the directions expressly with a view to shortening the period between the filing of the complaint and the disposal of the case. Ratio: Service of process is the principal cause of delay in summary criminal litigation, and the answer lies in using the additional modes the statute permits rather than in repeating an ineffective one. |
The directions were given on the provisions of the Code of Criminal Procedure, which permitted service by post in limited situations. The Sanhita has now placed electronic service on a statutory footing for court summons generally, with a deeming provision in section 70(3), so the approach the Court commended in 2014 is now the ordinary statutory route.
6. The Summons and the Order Issuing It
A summons is the instrument by which a judicial decision is communicated, and the decision is the issue of process. Section 227 of the Sanhita provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, he shall issue a summons in a summons case and a warrant, or if he thinks fit a summons, in a warrant case. The validity of the summons therefore depends on the validity of that decision.
📖 Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424 Facts: The accused challenged the summoning order on the ground that the Magistrate had issued process without recording reasons, and contended that the order was therefore unsustainable and that the Magistrate was bound to record reasons and to pass a separate order of cognizance. Held: The Supreme Court held that the expression “taking cognizance” means that the Magistrate applies his mind to the suspected commission of an offence, and that cognizance is taken prior to the commencement of the proceedings. Under the provision on the issue of process the Magistrate holds that there is sufficient ground for proceeding against the accused, and it is at that stage that the summons issues. The section does not require the Magistrate to explain his reasons in the order for taking cognizance and issuing process; what is required is that he applies his mind to the material and forms the opinion that there is sufficient ground. Summoning an accused is a serious matter and cannot be done mechanically, but the absence of recorded reasons does not by itself vitiate the order. Ratio: The issue of a summons requires the application of mind to whether there is sufficient ground for proceeding. Reasons need not be recorded in the order, but the process must not be issued mechanically. |
7. When a Summons Is Not Enough
Where a summons fails, the chapter provides for escalation.
- Section 90. A court may in any case in which it is empowered to issue a summons for the appearance of any person, issue a warrant for his arrest after recording its reasons in writing: if either before the issue of the summons, or after the issue but before the time fixed for appearance, it sees reason to believe that he has absconded or will not obey the summons; or if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing, and no reasonable excuse is offered.
- Section 91. When any person for whose appearance or arrest a court is empowered to issue a summons or warrant is present in court, it may require him to execute a bond or bail bond for his appearance.
- Section 92. When such a person breaks the condition of the bond, the court may issue a warrant directing that he be arrested and produced before it.
- Section 93. The provisions of the Chapter relating to a summons and a warrant, and their issue, service and execution, apply so far as may be to every summons and every warrant of arrest issued under the Sanhita.
Section 90 repays attention because it contains two distinct powers. The first is anticipatory: a warrant may issue before the time fixed for appearance, and even before the summons is served, where the court has reason to believe the person has absconded or will not obey. The second is consequential: a warrant may issue on failure to appear, but only where the summons is proved to have been duly served, and served in time to admit of his appearing, and no reasonable excuse is offered. In both cases the Sanhita requires the court to record its reasons in writing.
8. Key Takeaways
The position stated shortly 1. A summons is a written intimation issued by a court requiring attendance. It does not authorise arrest, and disobedience entitles the court to escalate to a warrant under section 90. 2. Section 63 requires it to be in writing, in duplicate, signed by the presiding officer and bearing the seal; or in an encrypted or other form of electronic communication bearing the image of the seal or a digital signature. 3. Section 64: service is by a police officer, an officer of the court or other public servant, personally if practicable, by delivering or tendering one duplicate; the proviso permits service by electronic communication in the form State rules provide. 4. Section 66: where the person cannot be found by due diligence, the duplicate may be left with an adult member of his family residing with him. The CrPC required an adult male member; the Sanhita has dropped the word. 5. Section 67: affixation is not itself service. It entitles the court, after such inquiry as it thinks fit, to declare service sufficient or to order fresh service. 6. Section 65: a corporation is served on the secretary, local manager or principal officer, or by registered post to its chief officer in India, with service deemed effected when the letter would arrive in the ordinary course. 7. Section 68: a Government servant is served through the head of his office, whose signature on the returned summons is evidence of due service. Section 69: outside the jurisdiction, the summons is sent to a local Magistrate. 8. Section 70(3) is new: a summons served electronically is considered duly served, and an attested copy is kept as proof of service. 9. A court summons may be served electronically; a police notice under section 35 may not. The Supreme Court so held in July 2025, on the footing that the two occupy fundamentally different planes. 10. The issue of process requires the application of mind to whether there is sufficient ground for proceeding; reasons need not be recorded, but process is not to be issued mechanically: Bhushan Kumar. |
9. Frequently Asked Questions
What are the essentials of a summons under the BNSS?
It must be issued by a court, in writing and in duplicate, signed by the presiding officer or such other officer as the High Court directs, and bearing the seal of the court; or, under clause (ii) of section 63, in an encrypted or other form of electronic communication bearing the image of the seal or a digital signature.
Can a summons be served by email or WhatsApp?
A court summons may be served by electronic communication under the proviso to section 64(2), in such form and manner as the State Government provides by rules, and section 70(3) deems such service to be duly served. A notice under section 35 issued by the police may not be served electronically.
On whom may a summons be left if the person is not found?
On an adult member of his family residing with him, under section 66, whose signature is obtained on the back of the other duplicate. A servant is not a member of the family. The Sanhita has removed the CrPC requirement that the member be male.
Is affixation of a summons good service?
Not by itself. Under section 67 the serving officer affixes a duplicate to a conspicuous part of the house where the person ordinarily resides, and the court may then, after such inquiry as it thinks fit, declare the service sufficient or order fresh service. The declaration is a judicial act.
How is a summons served on a company?
Under section 65, on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post addressed to its chief officer in India, in which case service is deemed effected when the letter would arrive in the ordinary course of post.
How is service proved when the serving officer is not present?
By an affidavit purporting to be made before a Magistrate, together with the duplicate endorsed by the person served, both of which are admissible under section 70 and the statements in which are deemed correct unless the contrary is proved. Where service was electronic, an attested copy of the summons is kept as proof under section 70(3).
Related Topics
- Warrants under the BNSS, 2023: Sections 72 to 83
- Proclamation and Attachment: Sections 84 to 89, BNSS
- Electronic Communication under the BNSS, 2023
- Forms under the Second Schedule to the BNSS, 2023
- Commencement of Proceedings before Magistrates: Chapter XVII, BNSS
- Arrest of Persons under the BNSS, 2023: Sections 35 to 62