With the advent of digital transformation, the insemination of information through fast, reliable and accessible mode of Internet has become more reachable than humans. We live within the contours of the internet because it makes our work easy to do and also far more effective and result oriented. Considering the outbreak of the pandemic and the post era in which we will be living in, using WhatsApp, E-mail, Telegram or any other online modes of facilities available in court is neither surprising nor something fascinatingly new and could prove to be a boon for those suffering from lis pendente at the initial stages of service of summons. This usage per se also strengthens the existence of the right to speedy trial, which is a fundamental right of every citizen. Allowing WhatsApp, Email, Telegram or any other online mode of facilities to serve the court summons has caused huge discussion on the Internet and has become a point of contention. The authors through this article have tried to highlight the need of the hour for online modes to be emphatically used in promoting service of summons in legal proceedings.
In the modern era, technology provides information at the touch of a single button wherein all major services can be found through electronic media as such. The increasing digitization has not affected the judicial system much but the need of the hour puts forth a question in front of us as to amendments to be brought with regards to digital modes to be used for service of summons. The outbreak of the pandemic witnessed a major use of technology for effectively undertaking judicial activities, such as filing of petitions, arguments and passing of the order. The Indian judiciary has been beleaguered with the traditional approaches to the legal system. However, recent developments in the sphere have sharply rebutted this claim and have opened a Pandora of boxes. The technology has brought about a rapid change in the system and the need of the hour further facilitates the usage of “Digitalisation in the courts”.
Procedure of Issuing of Summons
Summon is basically a legal instrument which is used by a court to call upon a person who is involved in a legal proceeding. They are served to ensure the presence of a person before the court on the given date of the proceeding and can be issued in both civil and criminal cases whereby the legal provisions are very well embedded under Section 61-69 of the Cr.P.C, 1973 and under Section 27 and Order 5 of the CPC, 1908. The principle method of the service of summons is personal service and the other method is affixing a copy of the summons on the outside door, or by way of a registered post where the defendant resides. In most cases, due to lack of manpower or lack of training, the summons is not timely served which ultimately ruins the purpose of institution of suits/petitions.
The validity of Summons served via Electronic Means was taken into consideration after the amendment in the Civil Procedure Code, 1908. Further, as we look into the Order V Rule 9(2) of Civil Procedure Code which empowers the court to deliver summons in such manner as the court deems fit. Likewise, Order 5 Rule 9(3) uses the expression “any other means of transmission” which includes fax message or electronic mail service. Therefore, it can very well be said that the proposed usage of WhatsApp or any other electronic mode by the court is not against the existing legal provisions rather finds its root and can be said that the same was the legislative intent while framing the law. Serving of summons through electronic media finds its existence even earlier and it cannot be completely said to be a naïve development altogether. There have been instances in the past where the court allowed usages of email or SMS to serve summons. There have been various precedents being laid down which makes us ponder over its effectiveness and the said provision includes transmission of summons through electronic media as well. In Tata Sons Limited & Ors vs. John Doe(s) & Ors., the Hon’ble Delhi High Court permitted affidavit of service through text message, WhatsApp or by email to serve summons to the defendant. In Kross Television India Private Limited & Anr. vs. Vikhyat Chitra Production & Ors., the Hon’ble the Bombay High Court considered the copies of the plaint, Notice of Motion to be served and received via WhatsApp after normal attempts for serving summons failed.
Furthermore, in SBI Cards & Payments Services Pvt. Ltd vs. Rohidas Jadhav the Hon’ble Bombay High Court held that, “For the purposes of service of Notice under Order XXI Rule 22, I will accept this. I do so because the icon indicators clearly show that not only was the message and its attachment delivered to the Respondent’s number but that both were opened.” Not only this, the Hon’ble Delhi High Court went a step ahead in a recent matter and while setting a milestone, allowed the petitioner to serve summons on the respondent through WhatsApp, text messages and email held that, “Double tick on WhatsApp is a prima facie proof of delivery of summons.” Also, The Hon’ble Supreme Court of India in Central Electricity Regulatory Commission Vs National Hydroelectric Power Corporation Ltd. & Ors. held that where the Advocates seek urgent interim reliefs, service of notices may be effected by E-mail, in addition to normal mode of service. The Delhi High Court notified the Rules on February 9, 2011, wherein service by fax and electronic mail was provided for. Following the same, the Hon’ble Andhra Pradesh High Court as well as the Hon’ble Bombay High Court as well has paved the way for such similar rules specially looking into the delay caused by persons who do not wish to be located and escape from the wriggles of law.
Overall if we guise into the precedents available with us, it ex-facie transpires that there is a dire need of amendments to be brought in the Code of civil procedure and Code of Criminal Procedure and other related laws. As a matter of fact, this shows that claiming the usage of WhatsApp or email is not a matter of right of the applicant for the time being as the same awaits codification and as such it is solely dependent upon the discretion of the court and may differ from case to case involving peculiar circumstances as there have been instances where the courts have dismissed the applications filed by the parties for substituted mode of service bereft of those mentioned in Order 5 Rule 20 of the CPC. Arguendo, in Dr. Madhav Vishwanath Dawal Bhakta & Ors. vs. M/s. Bendale Brothers, the High Court of Bombay sumptuously discussed and held that if the Court is satisfied that either the defendant is deliberately avoiding the service, the Court can take into account the modern ways of service and observed that the summons can be served also by courier or by email or by WhatsApp etc.
Here it would not be out of place to mention that, The Hague convention on the Service of Summons, 1965 is applicable where service of summons are to be affected by a foreign court in India or on a foreign national or a corporate entity by an Indian Court. Furthermore, India has opposed all modes of service under Article 10, which means that no service of documents shall be affected by postal channels, and can be done only through the Ministry of Law, Government of India. However, a United States Court has recognized service of summons in India vide facebook and e-mail by holding that there is no impediment under Article 10. In Anupama Sharma v. Union of India, the summons issued by the New York Court was privately delivered to the Petitioner in the proceedings which were pending before the New York Court. However, the Bombay High Court observed that it will not be possible for it to stay the service of summons while exercising its writ jurisdiction under Article 226 of the Constitution of India and the petitioner can take the said objection of non compliance of Article 3, 5 and 10 before the New York Court itself.
Concluding Remarks
As a crux of the abovementioned cases, it can be deduced that Indian legal system is ready to accept changes only if the vicissitudes align to meet the ends of justice and have a positive impact on the entirety. If we look into this approach where digitalisation can be brought into effect with amendments than various stages of legal proceedings would be simplified and it would also have an effective impact as it would be less time consuming. The use of electronic mode in serving summons is the last resort which means that it should be used when all the other available means are exhausted. Moreover, the Indian judiciary has left not even as single stone unturned whenever it touched the interest of innocent parties at stake. The grundnorm dogma of speedy trial designated as one of the fundamental rights under Article 21 by the application of Article 141 of the Constitution of India, 1950 has been reaffirmed by extending the service of summons through the new and advanced digital platforms is yet another example of judicial activism. Therefore, digitalisation in courts is the need of hour. Moreover, even in the grave situations such as the present pandemic of COVID-19 where it has caused a huge delay in this service of summons, it could have proved to be a boon. Therefore, these electronic modes of serving of summons can be proved to be a boon if given a proper legal emphasis and succulently it can be a major change in the legal system, if the present laws are amended.
Adv. Mohit Singhvi is founder and head, Singhvi & Co. Coauthor Priyal Kothari is pursuing law at Bangalore Institute of Legal Studies.
