ERALOTTU CHATHU Vs. PATINGATTILLATH GOPALAN

JUDGEMENT

(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 S.415 IPC. It appears Krishnan is now working in Sultanate 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 Sultanate of Oman. The petition was dismissed on the ground that no Rules have been framed by the State Government as contemplated by S.62 of the Criminal Procedure Code. The correctness and propriety of this order is now challenged.

(2.) Chap.6 of the Code of Criminal Procedure, 1973, (for short the Code) deals with processes to compel appearance. S.61 to 69 appear under the heading "A - Summons" S.70 to 81 appear under the heading "B - Warrant of arrest". S.82 to 86 appear under the heading "C - Proclamation and attachment". S.87 to 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.) S.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. S.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. S.65 states that if by exercise of due diligence, service cannot be effected as provided in S.62 to 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.