Criminal procedure | India

Section 64 CrPC: Service When Persons Summoned Cannot Be Found

Learn how a criminal court summons may be served when the intended recipient cannot be located, and how Section 66 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), updates the earlier rule.

Current law: Section 66 BNSS is the corresponding provision to Section 64 of the Code of Criminal Procedure, 1973 (CrPC). The BNSS generally came into force on 1 July 2024. Transitional cases may remain governed by the CrPC under Section 531 BNSS, depending on the proceeding and savings provisions.

Section 64 CrPC: Original legal provision

The former Section 64, titled "Service when persons summoned cannot be found", provided:

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 therefor on the back of the other duplicate.

Explanation: A servant is not a member of the family within the meaning of this section.

Section 66 BNSS: Current provision

Section 66 of the Bharatiya Nagarik Suraksha Sanhita, 2023, retains the basic procedure but makes it gender-neutral: a duplicate summons may be left with some adult member of the family residing with the person summoned, after due diligence fails to locate that person. The family member must sign a receipt on the other duplicate if the serving officer requires it. A servant is expressly excluded from the meaning of family member.

The significant change is that the earlier restriction to an adult male family member has been removed. An adult woman who resides with the summoned person may therefore receive the summons under the applicable conditions.

Meaning of important legal terms

Due diligence

Reasonable, genuine efforts by the serving officer to find and personally serve the intended recipient before using the alternative method. Whether sufficient diligence occurred depends on the circumstances and the available service record.

Adult family member residing with the person

An adult relative who ordinarily lives with the person summoned. Mere presence at the premises or a family relationship without residence there does not automatically meet the statutory wording.

Duplicate summons and acknowledgment

One copy is left with the eligible family member; the other is used to record acknowledgment if requested by the serving officer. Proper documentation helps the court assess whether service was effected.

When can a summons be served on a family member?

  1. The summons is issued in accordance with the applicable criminal procedure law.
  2. The serving officer makes due and reasonable efforts to locate the intended recipient.
  3. The person cannot be found despite those efforts.
  4. An adult family member residing with that person is available to receive a duplicate.
  5. The recipient signs the other duplicate if the serving officer requests a receipt.

A neighbour, visiting relative or domestic servant is not automatically an eligible recipient under Section 66 BNSS. Service is not necessarily valid merely because a copy was left at an address; compliance with the statutory conditions matters.

What if service still cannot be completed?

Section 67 BNSS addresses cases where service cannot, despite due diligence, be effected under Sections 64, 65 or 66. The serving officer must affix a duplicate to a conspicuous part of the house or homestead where the person ordinarily resides. The court may then make appropriate inquiries and either declare service duly effected or order fresh service in a manner it considers proper.

Related provisions include Section 64 BNSS (how summons are served), Section 70 BNSS (proof of service, including provisions relating to electronic communication), and Section 71 BNSS (service on witnesses). These provisions should be read together where relevant.

Practical questions

Can summons be served on an adult daughter or wife?

Under Section 66 BNSS, yes, provided the person is an adult family member residing with the summoned person and the required due diligence and service conditions are satisfied.

Can summons be handed to a domestic worker?

No. The express explanation to Section 66 excludes a servant from the definition of family member for this purpose.

Is a family member always required to sign?

The statute requires the family member to sign a receipt on the other duplicate if the serving officer so requires.

Does this mean the recipient is automatically liable for the summoned person's appearance?

No. Receipt of a summons on behalf of another person is a method of service; it does not, by itself, make the receiving family member the person summoned.

Official legal references

This article provides general legal information. For proceedings begun before 1 July 2024, the applicable savings and transition provisions should be examined in the particular case.