U.L. Bhat, J.
1. The revision petitioner is the complainant in C.C. No. 33 of 1979 on the file of the Judicial I Class Magistrate, Badagara. He filed a private complaint against the present 1st respondent Gopalan (2nd accused) and one Krishnan (1st accused) alleging an offence punishable under Section 415 I.P.C. It appears Krishnan is now working in Sultanats of Oman, a Gulf country. The 1st respondent was served with summons and appeared in court. Krishnan could not be served. The complainant ultimately filed a petition before the Magistrate praying that summons may be sent through the Indian Embassy in the Sultanats of Oman. The petition was dismissed on the ground that no Rules have been framed by the State Government as contemplated by Section 62 of the Cr. P.C. The correctness and propriety of this order is now challenged.
2. Chapter VI of the Cr. P.C. 1973, (for short the Code) deals with processes to compel appearance. Sections 61 - 69 appear under the heading 'A-Summons'. Sections 70 - 81 appear under the heading 'B-War-rant of arrest'. Sections 82 - 86 appear under the heading 'C-Proclamation and attachment'. Sections 87 - 90 appear under the heading 'D-Other rules regarding processes. The present being a summons case, the learned Magistrate ordered the issue of summons.
3. Section 62 states 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. Summons, shall, if practicable, be served personally on the accused by delivering or tendering to him one of the duplicates. He is required to affix his signature on the back of the other duplicate. Section 64 lays down that where he cannot be found by exercise of due diligence, summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. Section 65 states that if by exercise of due diligence, service cannot be effected as provided in Sections 62 - 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house in which the accused 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.
4. Section 63 deals with service of summons on corporate bodies and societies. Section 66 deals with service on Government servants. Section 67 deals with service outside the local limits of the Magistrate's jurisdiction though it will not apply to persons abroad. Sections 70 - 81 deal with execution of warrants issued by the Magistrate and Sections 82 - 86 deal with the Proclamation and attachment in regard to an accused person found to be absconding. Section 87 lays down that after recording reasons in writing either before the issue of summons or thereafter, the Court may issue a warrant for arrest of the accused if there is any reason to believe that he has absconded or will not obey the summons, or where he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
5. Section 62(1) of the Code directs summons to be served by a Police Officer. It also permits service through a court officer or other public servant, subject to such rules as may be framed by the State Government. It is submitted by both sides that such rules have not been framed by the State Govt. under Section 62(1) of the Code enabling summons to be got served by officials of Indian Embassy abroad, Hence it follows that, in the first instance, that is, under Section 62(1) of the Code, Court has no power to send summons to any Embassy official for the purpose of service. But it has to be considered if at any later stage, such a course could be adopted in appropriate cases.
6. If the person sought to be summoned is ordinarily residing in India, but is on a visit to a foreign country, service can be effected as contemplated in Section 64 of the Code, if any adult male member of his family resides with him in his house (i.e. in India). Service can also be attempted under the first part of Section 65 of the Code by affixture to a conspicuous part of his house in India where he ordinarily resides. If, however, the person sought to be summoned is employed abroad, though he can be regarded as a 'resident' of India, it cannot be said that he 'ordinarily resides' in his house in India. In such a case he ordinarily resides not in his house in India, but at the place of his employment abroad. The expression 'ordinarily resides' has been used in Section 65 of the Code deliberately to strike a note of departure from the expression 'resides'. In a case where the person sought to be summoned is actually working abroad, summons cannot be served by affixture to any house in India under Section 65(1) of the Code.
7. A strict construction of Section 65 of the Code may mean that the second part of the Section cannot be applied unless affixture is attempted or made. But I do not think that it is proper to give such a restricted construction to the second part of Section 65 of the Code. The second part of Section 65 states that after making such enquiries as it thinks fit, the Court may declare that the summons has been duly served or order fresh service in such manner as it considers proper; this rule should be applied even in a case where a person resides abroad and cannot be treated as a person ordinarily residing in an Indian home. A person working abroad, during his return home on holidays or leave can be attempted to be served personally under Section 62 or by delivery to an adult male member of his family under Section 64 of the Code or by affixture under the first part of Section 65 of the Code. But when he is on duty abroad and has not returned home on holidays or leave, he cannot be served under Section 62 or Section 64 or first part of Section 65 of the Code. Giving a liberal interpretation to Section 65 of the Code, I am inclined to hold that the second part of Section 65 could be utilised by Courts for service in contingencies where the person sought to be summoned is actually on duty abroad.
8. Section 65 refers to 'order fresh service in such manner as it considers proper'. A reading of this clause will make it clear that the statute has conferred on the Court very wide discretion of very broad import. It is for the Court in every case to consider the circumstances obtaining in each case and decide the proper manner of service contemplated in second part of Section 65 of the Code. In deciding as to what is the proper manner of service under Second part of Section 65 of the Code, the Court cannot allow itself to be fettered by the limitations found in Section 62(1) of the Code. In other words, in ordering fresh service in such manner as it considers proper, the Court cannot take it that service through 'other public servant' or service in any other manner cannot be made in the absence of Rules framed by the State Government. That is why, even at the outset I stated that this limitation will apply only to service in the first instance. It cannot apply to service at later stage covered by second part of Section 65 of the Code. The exercise of discretion under the latter part of Section 65 of the Code must be untrammeled by the limitations contemplated in Section 62(1) of the Code.
9. The officers working in the Indian Embassy abroad are certainly public servants for the purposes of the Cr. P.C. They are persons working under the Government of India, discharging public duties as laid down by the Government of India and receiving their emoluments out of public funds. They can therefore be treated as public servants. In contingencies contemplated by the second part of Section 65 of the Code, I can find no difficulty or disability for the Court to seek the assistance of such public servants in serving summons. It cannot be said that an attempt to serve summons through the Embassy officials will be an illegal act or an irregular act. If circumstances would justify such a course, I find no limitation in the power of the Magistrate to pass an order to that effect. Of course this may not be of much assistance in an enquiry or trial in a prosecution, because service of summons through the Embassy may not be of much practical significance unless the accused himself responds to it and turns up before the Court. But this will have a significant effect in at least some other areas. In a proceeding under Section 125 of the Code, in an appropriate case the Magistrate is entitled to proceed and determine a case ex parte. The procedure under discussion in this case would prevent embarrassment and solve many difficulties which the Courts may have to face in the matter of service of summons in such cases.
10. Under these circumstances, I hold that in declining to issue summons through the concerned Embassy, the learned Magistrate refused to exercise a jurisdiction vested on him, and therefore his order calls for interference.
11. I may, in passing, refer to Rule 36 of the Criminal Rules of Practice (Travan-core-Cochin State). When there are several accused persons in a case and only some of them have appeared or been produced before the Court, if the Magistrate is satisfied that the presence of the other accused cannot be secured within a reasonable time, it is open to the Magistrate under Rule 36 of the above Rules to proceed with the case as against such of the accused as have appeared and dispose it of according to law. The Rule also lays down that in the case of accused who have not appeared, the Magistrate may give the case a new number and enter it in the register of cases received. The Rule contains further instructions which may be usefully followed, A finding that one or more accused persons are absconding is not a pre-condition for proceeding under Rule 36 of the Rules. Therefore in a case like the present one, even in the absence of attempt to arrest the accused persons by issue of warrant or enforcing the other provisions of Chap. VI of the Code, it is open to a Magistrate to proceed in accordance with Rule 36 of the above Rules.
In the result, I set aside the order of the learned Magistrate and direct him to issue summons to the 1st accused and route the summons through the Indian Embassy at the concerned place, the particulars of which will be provided by the complainant. The Criminal Revision Petition is allowed.