@ Author,
Very confusing query – I mean where family bounding commences and ends in this query is beyond my limited knowledge of family laws BTW where is your Advocate vanished among all these J
Where is the verbatim datewise summoning record + what is the reference to context here of the court to make sense of actually what you want to found out from us quoting high end family law section 64 crpc. BTW it is The Code in short hereafter not family law playing here!
Above first opening para jayamala besides the point let me try to figure out now and allow me to try to give a remedy at the end of actual section of The Code and its utility before BW and then NBW is issued - pressed by your side;
1. See S. 61 deals with the form of summons; S. 62 provides as to how summons are required to be served; S. 63 refers to the service of summons on corporate bodies and societies; S. 64 provides as to how summons should be served when the person summoned cannot be found; S. 65 provides the procedure when service cannot be effected in the way and manner as provided for in the preceding Sections. S. 87, Cr.P.C. empowers the Court in any case in which it is empowered by the Cr.P.C. to issue summons to the appearance of any person, to issue, after recording its reasons in writing, a warrant for his arrest under the circumstances as reflected therein.
2. Now where does S.64 of Cr.P.C. says and I quote you;
"in which parents, adult brother & sister, sister-in-law are legally bound to give the information of their adult son/brother to the Government officer for the court, under the conditions when all of them know his whereabouts, have very strong emotional relations and regular contact with him."
My oh my little brother actually this emotional attaychar sentence is what your sides Advocate or State APP might be bringing to the Notice of the concerned Magistrate Court and to me you seems to be from Wife's side trying to get hold of A1 (main accused in some 498a / DV matter) – right or you are the hidden accused makign a reverse entry here as knowledge sharing kar riya si kar ke?
3. Now as help let me tell you the process flow actually to be followed at this emotional juncture - the Sections relevant to consideration in your quote – unquote juncture are S. 64 and 65 of Cr.P.C. no doubt about it but I never heard in Law such quotes actually inked even in Bare Acts as you have quoted about his entire family above – where it is mentioned in Law books J brother mere…..
4. S. 64 of Cr.P.C which corresponds to S. 70 of 1898 Cr.P.C., - reads as under :
"Section 64: Where the person summoned cannot by the exercise of due diligence, be found, the 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 therefore on the back of the other duplicate."
S. 65 of Cr.P.C which corresponds to Section 71 of the 1898 Cr.P.C. reads as under:
"Section 65: If service cannot by the exercise of due diligence be effected as provided in Section 62, Section 63 or Section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned 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."
S. 87 of Cr.P.C reads as under :
" 87. Issue of warrant in lieu of, or in addition to, summons.
A court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest-
(a) if either before the issue of summons, or after the issue of the same but before time fixed for his appearance, the court sees reason to believe that he has absconded or will not obey the summons; or
(b) if, at such time 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. Now careful perusal of the provisions reflected in S. 64 would go to show that if a person summoned cannot be found by the exercise of due diligence, the 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 thereof on the back of the other duplicate.
6. Sir, when the records of the Court is not mentioned here in you query by you then I presume that the material records do not disclose that the method of serving summons prescribed in S. 70 Cr.P.C. was ever attempted or was found to be impossible to give effect to, the service of summons by affixing a copy will be bad in law because S. 71 can be resorted to only after the methods prescribed in S. 69 and 70 are found to be ineffective after the exercise of due diligence on the part of the process server. It is necessary to notice here that S. 71 of the 1898 Cr.P.C. corresponds to S. 65 of the present Code and S. 70 of the old Code corresponds to S. 64 of the present Code.
7. Thus I have shown above as to how the summons cannot be said to have been duly served at all having regard to the fact that the mode of service with reference to S. 64, Cr.P.C. was not exhausted at all. Further, there is also nothing to show by you in your query (court order verbatim copy should have been placed besides your query to know exactly what course the JFMC Court is following till date) that the conditions referable to Clause (a) in S. 87 Cr.P.C. were not in existence. It is also necessary to notice here that S. 87 of the Cr.P.C. can be invoked only under the circumstances reflected either in Clause (a) or under Clause (b) of the said Section. Before these clauses are resorted to it is absolutely necessary for the Magistrate to be satisfied about the conditions reflected in Clause (a) or the Magistrate will have to be satisfied that the summons are duly served.
Hence sum total your query is confusing to me and I could not give better remedy then above as to what course your side needs to have pressed instead of above quoted emotional angle !.
Let other experts give shorter – sweeter remedy and make you satisfied atleast! But at the end I will ask again where is Family Law section involved here :-) It's pure The Code playing its it due process.
