Process service
What is a Process Service?
In the context of Indian court language, "process service" refers to the legal procedure of delivering court documents or notices to the parties involved in a legal matter. These documents may include summons, complaints, subpoenas, or any other legal notifications. The purpose of process service is to officially notify individuals or entities about legal actions or proceedings against them and to ensure that they are aware of their rights and obligations.
The process service is a crucial step in the legal system as it ensures that all parties have been properly notified and given the opportunity to respond or participate in the legal proceedings. It is essential for due process and fairness in the legal system.
Official definition:
Under the civil procedure code:
Provisions relating to process service in civil cases are laid down in Section 27 It talks about the summons to the defendants, Section 28 It talks about the Service of summons where defendant resides in another State, Section 29 talks about the Service of foreign summonses, Section 143 talks about postages which is a state amendment, and Order V (Rules 9 to 30) talks about service of summons like delivery of summons explained in rule 9 and various others mentioned from rule 9a to 30, Order XXVII (Rule 4) it talks about Agent for Government to receive process, Order XXIX (Rule 2) it talks about the Service of process on corporation, Order III (Rules 3, 5 and 6) Rule 3 talks about Service of process on recognised agent Rule 5 talks about Service of process on pleader Rule 6 talks about Agent to accept service, Order XXVIII (Rule 3) talks about Service on person so authorised, or on his pleader, to be good service, Order XXX (Rule 3) talks about the service of summons to partners, and Order XLI (Rule 14) talks about Publication and service of notice of day for hearing appeal of the Code of Civil Procedure. Some of these provisions have been amended by Amendment Acts in 1999 and 2002 to tackle the problem of delays in court processes.
The provisions that have undergone amendments are mentioned below:
1. As per section 27, the summons may be served on such day not beyond thirty days from the date of the institution of suit.
2. Order V Rule 1 which also deals with service of summons has been amended and states that no service of summons is necessary in cases where the defendant has appeared at the time of presentation of the plaintiff and admitted the petitioner's claim. Amendment has further added a provision that the defendant has to file his written statement within thirty days from the date of service of summons and if the defendant fails to file the same within the prescribed period, the court may extend the time but not more than ninety days for the reasons to be recorded in writing.
3. Rule 9 Order V deals with delivery of summons by court. This Rule as amended in 2002, mandates delivery has to be either through proper officer or by post acknowledgment due or by speed post or through an approved courier, fax, email.
4. Rule 9- A provided service could also be done by the plaintiff by taking delivery of summons from the court and tendering the same to the defendant personally or by Fax, courier, email etc.
5. Rule 9 Sub Rule 4 provides service of summons on a defendant residing outside the territorial jurisdiction of that court through any one of the courier services approved by it. An improvement over the 1999 Act insofar as the local court has now got power to approve the courier service, whereas earlier only the high courts had the power to do so. The decentralisation would speed up the process of service.
6. Order IX Rule 2 provides dismissal of suit where summons are not served in consequence of plaintiff’s failure to pay costs. Where on the day fixed for hearing it is found that on the failure of the plaintiff to file process fee or pay court fee or any other reason attributable to the plaintiff, service has not been affected on the defendant, the court may dismiss the suit.
Under criminal procedure code (BNSS):
In criminal cases service of process is required for seeking production of the accused, witnesses or related parties whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced. For this reason, Chapter VI (Sections 61 to 90) of Code of Criminal Procedure (Cr.P.C) provides three ways for compelling the appearance of any person who is required to be present in the court:
1. Summons,
2. Warrant, and
3. Proclamation for person absconding
1. As per Section 61(section 63 of BNSS), every summons issued by a court under this code shall be in writing and in duplicate. It must be signed by the presiding officer of the court or by such other officers as the high court may, from time to time, by rule directly. It must also bear the seal of the court. A person who is summoned is legally bound to appear before the court on the given date and time. Willful disobedience is liable to be punished under Section 174 of Indian Penal Code ( IPC). It is a ground for contempt of court.
2. Section 204 of Cr.P.C (section 207 of BNSS) empowers magistrate taking cognizance of an offence to issue a summons if there is sufficient ground for proceeding in a summons case. If it is a warrants case, he may issue a warrant or a summons as he thinks fit.
3. The summons should contain adequate particulars such as the date, time, and place of the offence charged. It should also contain the date, time, and place where the summoned person is supposed to appear. The standard format of a summons is given in Form 1 of second schedule.
4. Section 62(section 64 of BNSS) describes the procedure for serving a summons on a person as follows –
(i) Every summons shall be served by a police officer, or subject to such rules as the state government may make on their behalf, by an officer of the court issuing it or other public servant.
(ii) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the copies of the summons.
(iii) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt thereof on the back of the other copy.
5. Section 65 lays down the procedure for service of summons by way of affixation and Section 69 states that the service of summons on a witness can also be done by post in addition to other modes of service.
6. However, Section 87 empowers a magistrate to issue a warrant even if the case is a summons case if he has reason to believe that the summons will be disobeyed. He must record his reasons for this action.
7. Section 202 of Cr.P.C deals with postponement of issue of process. Many times false complaints are filed against persons residing at far off places simply to harass them which also leads to clogging of frivolous litigation. In order to see that innocent persons are not harassed by unscrupulous persons, this section was amended in 2005 to make it obligatory upon the magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or any other person he thinks fit for finding out whether there is sufficient ground for proceeding against the accused.
8. Section 105 provides for reciprocal arrangements to be made by the Central Government with the foreign governments with regard to the service of summons / warrants/ judicial processes. The Ministry of Home Affairs have issued comprehensive guidelines for service of summons/notices/judicial process on the persons residing abroad.
The technological compatibility for issuance and service of summons is explained under the BNSS under the following sections:
- The Section 64(2) of the BNSS says that the court can electronically send summons with the image of the court's seal in it.
- The Section 71(1) of the BNSS says the court shall simultaneously issue another summons through post to the address or the place of work of the witness even though the summons has already been sent through electronic means.
Under the Indian Court Fee Act, 1870:
Section 20 of the Indian court fee act, 1870 talks about the rules as to cost of processes.
(i) the fees chargeable for serving and executing processes issued by such court in its appellate jurisdiction and by the other Civil and Revenue Courts established within the local limits of such jurisdiction;
(ii) the fees chargeable for serving and executing processes issued by the Criminal Courts established within such limits in the case of offences other than offences for which police-officers may arrest without a warrant; and
(iii) the remuneration of the peons and all other persons employed by leave of a court in the service or execution of processes.
The High Court may from time to time alter and add to the rules so made.
Types of Process Service:
Personal Service:
This is the most common method where the court documents are personally delivered to the party concerned. The person delivering the documents typically needs to be a common individual and not a party to the case.
Substituted Service:
When personal service is not possible or effective, the court may allow substituted service. This can include delivering documents to another responsible person at the recipient's residence or workplace.
Registered Post with Acknowledgment Due:
In some cases, court documents may be sent through a registered post with acknowledgment due. The recipient signs an acknowledgment receipt upon receiving the documents, and this receipt serves as proof of service.
Publication of Summons:
In situations where the whereabouts of the party are unknown or the party is intentionally evading service, the court may allow the publication of summons in newspapers. This is typically done in cases where the defendant cannot be located.
Court Commissioner:
A court commissioner may be appointed by the court to serve the documents. The commissioner has the authority to serve documents and file a report with the court regarding the service.
Electronic Service:
With the advancement of technology, some courts may allow service of documents through electronic means, such as email or fax. However, the rules for electronic service may vary, and it may not be applicable in all types of cases.
Appearances in official databases.
E-committee supreme court of india website:-
A new web application called NSTEP was established by the e-committee of supreme court of India, the main purpose of it is to track the process service and notices and summons in real time.NSTEP web application enables allocation of published processes to bailiffs if service is to be effected within their jurisdiction. It also facilitates allocation of published processes to respective court establishments inter-district or inter-state.
NSTEP thus accomplishes the following significant goals: –
- Enables serving of Notice/Summons in electronic form
- Posting and recordal of real time updates from remote locations reducing inordinate delays in process service
- Time required for serving Inter-district or Inter-state process by Post is drastically reduced by serving it in electronic form
- Transparent tracking of service of process and summons by all stakeholders
- GPS connectivity with Bhuvan Maps (India’s geo-platform developed by ISRO.
Research that engages with:
Summons in the Digital Age: Integrating Information and Communication Technology in the Process of Serving Summons
This report is based on the study conducted by Vidhi and Daksh on Bangalore rural courts and their way of service of summons and what can be done for service of summons in an efficient manner.They proposed a three step process re-engineering, they are:
- Diversifying methods of collecting information about parties.
- Re-engineering internal processes of generation and storage of summons.
- Expanding modes of communication for service.
International Experiences:
In the United States, the landscape of process serving is shaped by diverse state laws, with recent developments in New York exemplifying increased regulation. Stringent measures now require process servers to obtain licences, employ electronic logging systems, and adhere to specific time constraints, notably a 120-day completion window for service in most cases. Globally, there is a discernible shift towards acknowledging unconventional methods, such as Facebook and Twitter, as legitimate means for effecting process service. A noteworthy U.S. legal case involved individuals in India accused of duping American consumers, highlighting the challenges in employing traditional international service methods. Faced with these obstacles, the court creatively utilises Facebook for service, exploiting its capabilities within the bounds of constitutional due process. The court's approach was nuanced, incorporating a two-pronged strategy that prioritised email as the primary method of service and employed a Facebook message as a secondary means. This innovative blend of technology and legal tradition showcased a responsive legal system adapting to the complexities of international cases, ensuring both effectiveness and adherence to constitutional norms in the realm of process serving.
Also known as:
Legal Notification:
Refers to the formal notification of legal documents to parties involved in a legal proceeding.
Court Summons:
Denotes the official document issued by the court to notify an individual or entity of legal actions being taken against them.
Legal Notice:
Represents the formal communication of legal intentions or actions, often served to parties involved in a legal matter.
Judicial Notice:
Indicates the formal acknowledgment or notification by the court regarding legal proceedings.
Service of Summons:
Describes the act of delivering court summons or legal notices to the concerned parties.
Legal Process Notification:
Signifies the communication of legal documents or notifications as part of the legal process.
References:
- The code of Civil Procedure Code 1908
- The Code of Criminal Procedure Code 1973
- Brief note on process service in Courts by West Bengal Judicial Academy.
- Supreme court e-courts committee website.
- Summons in the digital age: ITC integration in the service of summons.
