Can a court issue a non-bailable warrant against the accused in a criminal case if a summons were issued to him on Whatsapp?
The Crl.M.C is filed aggrieved by the non-bailable warrant issued against the petitioner. The specific case put forth by the petitioner is that the summons, alleged to have been sent through WhatsApp to his mobile phone, had never reached him, as he has not downloaded the WhatsApp application on his phone.
4. The above provisions do not provide for service of summons
through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons.
6. In the case at hand, the summons is stated to have been
issued through WhatsApp, which is not an accepted mode of service.
As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANOOP JACOB Vs STATE OF KERALA
Crl.M.C.No.1658 of 2021
Dated this the 9th day of April, 2021
PRESENT
MR.JUSTICE V.G.ARUN
The petitioner is the 1st accused in C.C.No.134 of 2021 on the
files of the Additional Chief Judicial Magistrate (Special Court for Cases
related to MPs/MLAs), Ernakulam. The offences alleged are under
Sections 143, 147, 149, 269, 271 and 188 of IPC, Section 118(e) of the
Kerala Police Act and Sections 4(2)(a), 4(2)(e) and 5 of the Kerala
Epidemic Disease Ordinance, 2020. The Crl.M.C is filed aggrieved by
the non-bailable warrant issued against the petitioner. The specific
case put forth by the petitioner is that the summons, alleged to have
been sent through WhatsApp to his mobile phone, had never reached
him, as he has not downloaded the WhatsApp application on his
phone.
2. In view of the contentions, it may be apposite to have a look at
Section 62 of Cr.P.C, dealing with mode of service of summons;
“62. Summons how served.
(1) 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.
(2) The summons shall, if practicable, be served personally
on the person summoned, by delivering or tendering to him one
of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if
so required by the serving officer, sign a receipt therefor on the
back of the other duplicate.”
3. Going by Section 65 of Cr.P.C, if service could not be effected
as provided under Section 62, the serving officer shall affix one of the
duplicates of the summons to the conspicuous part of the house or
homestead in which the person summoned ordinarily resides.
Thereafter, the court should make such enquiries as it thinks fit and
either declare the summons to have been duly served or order fresh
service in such manner as it considers proper. As per Rule 7 of the
Criminal Rules of Practice, Kerala, summons issued to the accused and
witnesses shall ordinarily be signed by the Chief Ministerial Officer of
the Court and the words “By order of the Court” shall invariably be
prefixed to the signature of the Ministerial Officer.
4. The above provisions do not provide for service of summons
through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, it may be
pertinent to note the insertion of Section 144 in the Negotiable
Instruments Act (for short, 'the Act') for the purpose of overcoming the
delay in serving summons on the accused in complaints under Section
138 of the Act. Section 144, providing for service of summons by
speed post or by approved courier service, was inserted by Act 55 of
2002. In Indian Banks Assn. v. Union of India [(2014) 5 SCC 590],
the Honourable Supreme Court alerted the Magistrates about the need to adopt a pragmatic and realistic approach while issuing process and
had directed to issue summons by post as well as by email. Later, in
Meters & Instruments (P) Ltd. v. Kanchan Mehta [(2018) 1 SCC
560], the Apex Court observed that in complaints under Section 138, it may be desirable for the complainant to give his bank account number and if possible, the email ID of the accused. Recently, in Makwana Mangaldas Tulsidas V. State of Gujarat [(2020) 4 SCC 695], it has
been held that the Banks are bound to provide the requisite details by
developing an information sharing mechanism, where the Banks can
share all the requisite available details of the accused, who is the
account holder, with the complainant and the Police for the purpose of
execution of process.
6. In the case at hand, the summons is stated to have been
issued through WhatsApp, which is not an accepted mode of service.
As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.
In the result, the Crl.M.C is disposed of permitting the petitioner
to appear before the Additional Chief Judicial Magistrate's Court
(Special Court for Cases related to MPs/MLAs), Ernakulam in
C.C.No.134 of 2021 and to move an application for bail. In such event, the bail application shall be considered on the same day, deeming the petitioner to have appeared on summons. In order to provide an opportunity for the petitioner to appear before the court below and seek bail, the non-bailable warrant issued against him shall be kept in abeyance for a period of four weeks.
