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Thana Ram Vs. Jaoat Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 278 of 1968
Judge
Reported in9(1973)DLT395; 1973RLR400
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 68
AppellantThana Ram
RespondentJaoat Singh and ors.
Advocates: P.N. Gera, Adv
Excerpt:
it was adjudged that the court could not compel a compliant to effect dusty service of summons on the accused under sections 68 to 74 of the criminal procedure code, 1898. - - which prescribe the method of serving the summons, provide for the service of summons dusty by a private person like the complainant. (4) thereforee, the order of the learned magistrate directing the complainant to serve dusty summons on the unserved respondents who are residing outside the local limits of the jurisdiction of the court is clearly illegal and cannot be sustained......of the court, the learned magistrate passed an order directing that the complainant should serve dusty summons on these respondents for 27th january, 1968. the petitioner was not willing to serve the summons dusty on the respondents and, thereforee, filed a revision petition in the court of session against the order of the magistrate directing him to serve summons dusty on the unserved respondents. the additional sessions judge, however, dismissed the revision petition on the ground that the magistrate was competent to direct the co mplelant to serve dusty summons on the unserved respondents. the petitioner, thereforee, filed the present revision petition against the said order of the learned additional sessions judge.(2) section 73 cr p.c. prescribes the method of service of.....
Judgment:

M.R.A. Ansari, J.

(1) The petitioner filed a cornplaint against the respondents in the court of the Magistrate 1st Class, Delhi, for an offence under section 408 1. P. C. Summons were issued to all the respondents, but two of the respondents, namely, Jagat Singh and Raj Pal, were served and they appeared in court on 27th December, 1967. The other respondents were not served. As the other respondents were reaiding outside the jurisdiction of the court, the learned Magistrate passed an order directing that the complainant should serve dusty summons on these respondents for 27th January, 1968. The petitioner was not willing to serve the summons dusty on the respondents and, thereforee, filed a revision petition in the Court of Session against the order of the Magistrate directing him to serve summons dusty on the unserved respondents. The Additional Sessions Judge, however, dismissed the revision petition on the ground that the Magistrate was competent to direct the co mplelant to serve dusty summons on the unserved respondents. The petitioner, thereforee, filed the present revision petition against the said order of the learned Additional Sessions Judge.

(2) Section 73 Cr P.C. prescribes the method of service of summons outside the local limits of the jurisdiction of the Court. It reads as follows '-

'73.Service of summons outsids local limits.-When a Court desires that a Salomons issued by it shall be served at any place outside the local limits of its jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within the local limits of whose jurisdiction the person summoned resides or is, to be there served.'

thereforee. according to section 73 Cr. P. C. the learned Magistrate ought to have served the respondents who were residing outside his Jurisdiction by sending the summons in duplicate to the Magistrate within the local limits of whose jurisdiction the respondents resided. Instead of doing that, the learned Magistrate directed the complainant himself to serve the summons dusty on the respondents. The learned Magistrate has not referred to any provision of the Code of Criminal Procedure which authorises the service of summons dusty on the respondents by the complainant himself The learned Additional Sessions Judge sought to derive support for the order passed by the learned Magistrate from the word 'ordinarily' appearing in section 73 Cr. P. C. and according to the learned Additional Sessions Judge, this word means that the Court may. If It desires, send the summons to a Magistrate for being served on the accused who lives outside its jurisdiction and that this section dees not debar the Court from asking the complainant to take dusty summons far expenditious disposal of the case. The learned Additional Sessions Judge also has not referred to any provision of the Code of Criminal Procedure in support of the view expressed by him.

(3) Chapter Vi of the Code prescribes the procedure, inter alia, for the service of sunimors. Section 68 Cr P. C. reads as follows :-

'68.Form of summons.-(1) Every summons Issued by a Court under this Code shall be In writing, in duplicate, signed and sealed by the presiding officer of such Court, or by such other officer as the High Court may, from time to time, by rule, direct. (2) Such summons shall be served by a Police Officer, or subject to such rales as the State Government may prescribe in this behalf, by an Officer of the Court issuing It or other public servant. (3) This section applies also to the police in the towns of Calcutta and Bombay.'

thereforee, the mode of service of summons ordinary cases on Persons who reside within the local limits of the jurisdiction of the Court is the method prescribed by sub-section (2) of section 68 Cr. P.C. Section 70 prescribes the method of service of summons when the person summoned cannot be found. But even under section 70 Cr. P C , the person who ii to serve the summons can only he the person mentioned In sub- section (2) of section 68 It is only section 72 that prescribes a different method of service of summons on a Government servant or a servant of a Railway Company. This section reads as follows :-

'72.Service on servant of Government or of Railway Company.-(1) Where the person summon is in the active service of the Government or of a Railway Company, the Court issuing the summons shall ordinarily send It In duplicate to the head of-the office in which such person is employed; and such head shall thereupon reuse the summon to beserved in menner provided by section 69, end shall return it to the Court under his signature with the endorsement required by that section.'

None of the provisions, namely, section 68 to section 74 Cr. P.C. which prescribe the method of serving the summons, provide for the service of summons dusty by a private person like the complainant. Service of summons dusty actually means that the party at whose instance the summons are issued takes the process server of the Court Along with him and has suoamons served on the witness or on that respondent or on the accuied, as the case may be. through the process sever. But the Court cannot compel a party who is not willing to have the summons served dusty to do so.

(4) thereforee, the order of the learned Magistrate directing the complainant to serve dusty summons on the unserved respondents who are residing outside the local limits of the jurisdiction of the Court is clearly illegal and cannot be sustained. The order of the learned Magistrate is, thereforee, set aside and he is directed to issue the summons in accordance with law. The petitioner and the respondents are directed to appear before the Chief Judicial Magistrate, Delhi, on 4th May, 1972, because the Magistrate who passed the impugned order has been replaced by a Judicial Magistrate. The revision petition is allowed.


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