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Service Of Summons Through WhatsApp

Anushree Dubey
13 Jun 2021 4:12 PM GMT
Service Of Summons Through WhatsApp
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Considering the era we live in, the usage of WhatsApp in courts is neither surprising nor it is something new. But is the double blue tick on WhatsApp a prima facie proof of delivery of summons? Several courts in the country are experimenting with the usage of technology in judicial proceedings, especially while serving of official documents. There have been instances where the...

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Considering the era we live in, the usage of WhatsApp in courts is neither surprising nor it is something new. But is the double blue tick on WhatsApp a prima facie proof of delivery of summons?

Several courts in the country are experimenting with the usage of technology in judicial proceedings, especially while serving of official documents. There have been instances where the court allowed electronic means of communication to facilitate the court proceedings and expedite the delivery of justice. Such usage may facilitate the right to a speedy trial which is a Fundamental Right.

Summon literally means "to demand the presence" or "to call someone". It is an instrument used by the court to call to court any person involved in a legal proceeding.

Need for rules on service of summons and notices through electronic means:-

The concept of E-courts has a vital role in the judicial setup, and is making efforts for digitalisation of court system. But, digital media is not able to properly facilitate service of summons.

Provisions under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and Order V, Rule 9 of the Code of Civil Procedure, 1908 enable the High Court to make rule and regulations with regard to service of summons. The Delhi High Court has made rules regarding the service of legal notices through email by the virtue of this discretion.

Legal provisions related to summons are also present in Criminal Procedure Code, 1973.

CRIMINAL PROCEDURE CODE, 1973

Section 61 to 69 and section 91-92

CIVIL PROCEDURE CODE, 1908

Section 27, 28, 29,31 read with Order 5

Table 1: Provisions related to service of summons.

There are provisions in CPC, 1908 which allow electronic means to serve summons and legal notices.

Order 5 Rule 9(2)

Empowers court to deliver summon in such manners as the court deems fit.

Order 5 rule 9(3)

"Any other means of transmission" which includes fax message or electronic mail service.

Table 2: CPC provisions allowing electronic delivery of summons.

Although these provisions are given in CPC, 1908, their applicability to digital delivery of summons is unclear because order 5 rule 9(6) provides that "The High Court or the District Court , as the case may be shall prepare a panel of courier agencies for the purpose of order 5 rule 9(1).

Order V, Rule 19-A was inserted in Order 5 w.e.f. 1-2-1977 by Amendment Act No. 104 of 1976. In order to avoid delay in actual service, a provision was made for the service of summons through registered acknowledgement due post. Sub-rule (2) of Rule 19-A is analoguous to Section 27 of the General Clauses Act, 1897. The proof that a letter has been posted is usually evidence of its delivery under section 16 of the Evidence Act.

Summons/Notices through E-mail:-

Ksl and Industries Ltd., (Formerly Known as Krishna Texport Industries Ltd.), a Company Duly Incorporated Under the Companies Act, 1956 vs Mannalal Khandelwal and the State of Maharashtra Through the Office of the Government Pleader (Criminal Writ Petition No. 1228 of 2004)

The Bombay High Court held that to avoid the delay in legal proceedings because of unserved summons, summons must be delivered by using all the practical methods and services including emails. Moreover, the Court said "The Court should avoid giving long dates. Instead, the Court must repeatedly issue summons to secure the presence of the accused. The Court must ensure that the accused are not permitted to abuse the system."

Central Electricity Regulatory Commission v. National Hydroelectric Power Corporation Ltd [(2010) 10 SCC 280]

The Supreme Court resolved this question after observing the cases that were pending before the courts due to non-serving of notices. Most of these case were commercial cases. Here, the court permitted the service of Notice by email along with the ordinary mode of serving notice

Indian Bank Association & Ors vs Union Of India & Anr (2014) 5 SCC 590

The Supreme Court gave directions and said that while issuing summons by Metropolitan Magistrate/Judicial Magistrate a pragmatic and realistic approach should be embraced. Serving of summons should be proper with right address and must be sent properly by post as well as by the email address received from the complainant. If a need arises, the assistance of the police or the nearby Court to serve notice to the accused may be taken by the court. Furthermore, the Apex Court also said that a short date should be fixed for notice of appearance and if the summons is received back un-served, follow up action should be taken immediately.

SERVICE OF SUMMON THROUGH WHATSAPP

The court expanded the scope of electronic media by using Whatsapp to serve summons. The maiden such instance happened in Haryana where financial commission headed by IAS officer Ashok Khemka in a property dispute matter allowed the serving of summons through Whatsapp to one of the respondents who had shifted to Kathmandu, Nepal.

In Tata Sons Limited & Ors vs John Does CS(COMM) 1601/2016, Justice Rajiv Sahai Endlaw of the Delhi High Court permitted the right to serve summons to the defendant via Whatsapp texts as well as by emails to a defendant.

In Kross Television India Pvt Ltd & Another vs Vikhyat Chitra Production & Others, On 23rd March 2017 Justice Gautam Patel of Bombay High Court in a case of copyright infringement allowed the serving of the notice of summons through Whatsapp after normal attempts for serving summons failed.

In Bhim Rathke vs Mr. R.K. Sharma on 22 February 2018, Special Judge of Patiala House Courts, New Delhi dismissed the application of complainant who sought the usage of email and Whatsapp for serving summons. Rejecting the application, the Hon'ble Court pointed out that the court system does not have the facility to effect the service through electronic mode. Curiously enough, it is important to note that claiming the usage of Whatsapp or email is not a matter of right of the applicant rather it is the discretion of the court to grant permission for the same.

On 11 july, 2020, the Hon'ble Supreme Court agreed in principle that serving notices and summons, integrgral to judicial processes, on persons through instant messaging services like Whatsapp and Telegram in addition to emails would be legally valid. A bench of Chief Justice S A Bobde, and Justices R S Reddy and A S Bopanna agreed with the suggestions of attorney general K K Venugopal and solicitor general Tushar Mehta that service of summon/notices through email would contitute a valid delivery of these legal instruments asking a respondent/person to either appear before the court or respond to a court query. It said that this innovation was needed as physical delivery of notices/summons during lockdown periods has been difficult.

The Indian legal system is ready to accept changes if they meet the ends of justice. The main purpose of the judiciary is to impart justice, and this is not limited to punishing wrongdoers or providing compensation to the aggrieved. All the stages of legal proceedings should serve the interest of people. Only then can it be said that justice has been served.

Although use of Whatsapp in legal proceedings is in its nascent stage in India, yet its contribution cannot be overlooked. The use of Whatsapp in serving summons is the last resort which means that it should be used when all the other available means are exhausted.

Moreover, it cannot be claimed as a matter of right by the applicant because Indian laws explicitly do not allow it. But at the same time, the power to interpret statutes lies with the court and allows judges to expand the meaning of the law.

Indian judiciary has never left a stone unturned whenever it felt the interest of an innocent party at stake. The principle underlying expedited trials is the right to a speedy trial. The court has followed the same principle by allowing the use of Whatsapp to serve summons, therefore it is in harmony with constitutional ideals and must be embraced.

Views are personal.

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