Section 64 CrPC: Service When Person Summoned Cannot Be Found
Section 64 of the Code of Criminal Procedure, 1973 prescribed an alternative method for service of a summons when the person summoned could not be found despite the exercise of due diligence.
What was Section 64 of the CrPC?
Section 64 dealt with the situation in which a summons could not be served personally because the person summoned could not be found even after the exercise of due diligence.
The provision permitted substituted service on a specified family member residing with the person summoned. It therefore operated as an alternative to personal service where genuine efforts to find the person had been unsuccessful.
Section 64 CrPC - Service When Persons Summoned Cannot Be Found
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.
The family member with whom the summons is left shall, if required by the serving officer, sign a receipt on the back of the other duplicate.
Explanation: A servant is not treated as a member of the family for the purpose of Section 64.
Meaning and Requirements of Section 64 CrPC
Section 64 did not make service upon a family member the first method of serving a summons. The provision became relevant when the person summoned could not be found despite the exercise of due diligence.
The expression "due diligence" indicates that reasonable efforts should first have been made to find and personally serve the person summoned. Section 64 then provided an alternative mode of service when those efforts were unsuccessful.
Conditions for Service Under Section 64
- The person summoned could not be found despite the exercise of due diligence.
- One duplicate of the summons could be left with an adult male member of the person's family.
- The family member had to be residing with the person summoned.
- The serving officer could require that family member to sign a receipt on the back of the other duplicate.
- A servant was expressly excluded from the meaning of a family member for this purpose.
Who Could Receive the Summons?
Under the wording of Section 64 CrPC, service could be made by leaving a duplicate with an adult male member of the family residing with the person summoned.
Both aspects of the statutory requirement were important: the recipient had to be an adult male family member and had to reside with the person for whom the summons was intended.
Could a Servant Accept the Summons?
No. The Explanation to Section 64 expressly provided that a servant was not a member of the family within the meaning of the section. Merely finding a servant or domestic employee at the residence therefore did not satisfy the specific mode of service prescribed by Section 64.
Relationship Between Sections 62 and 64 CrPC
Section 62 CrPC contained the general provisions governing service of summons and contemplated personal service where practicable.
Section 64 addressed the next situation: the person summoned could not be found despite due diligence. In such circumstances, the Code permitted service through the specified family member residing with that person.
What If Service Under Section 64 Was Also Not Possible?
If service could not be effected by the methods contemplated in the preceding provisions, Section 65 CrPC prescribed the procedure to be followed when service could not be effected as previously provided.
Position After Introduction of BNSS
The Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the Code of Criminal Procedure, 1973 with effect from 1 July 2024. Accordingly, for proceedings governed by the new law, the relevant BNSS provisions should now be examined instead of treating Section 64 CrPC as the generally applicable current provision.
At the same time, the repeal and savings provisions of the BNSS preserve the application of the former CrPC to specified appeals, applications, trials, inquiries and investigations that were pending immediately before commencement of the BNSS. The applicable procedural law should therefore be determined from the facts and commencement status of the particular proceeding.
Summary
Section 64 CrPC provided an alternative method of serving a summons where the person summoned could not be found despite due diligence. A duplicate could be left with an adult male member of the person's family residing with him, and that family member could be required to acknowledge receipt on the other duplicate. A servant was specifically excluded from the meaning of family member.