BNSS Section 71 – Service of Summons on Witness

Introduction

Summons are an indispensable component of criminal procedure. They constitute formal directions issued by a court requiring an individual to appear before it on a specific date and time. While summons may be directed to an accused, a witness, or even a party in possession of documents relevant to adjudication, the efficacy of the justice system rests heavily upon the prompt and proper service of summons to witnesses. Witness testimony frequently determines the outcome of criminal trials, and delays in their appearance often prolong proceedings unnecessarily.

With the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replacing the Code of Criminal Procedure, 1973 (CrPC), Parliament has sought to modernise procedural law. Section 71 of the BNSS specifically addresses the Service of summons on witness, providing courts with broader powers and technologically updated mechanisms to ensure that summons reach their intended recipients without delay. This provision symbolises the legislative intent to integrate digital communication with traditional methods, thereby reducing procedural bottlenecks.

Text of Section 71

Section 71 of the BNSS sets out the legal framework for serving summons on witnesses in the following terms:

A court issuing a summons to a witness may, in addition to and simultaneously with the ordinary process, direct that a copy be served either through electronic communication or by registered post. The summons must be addressed to the place where the witness ordinarily resides, carries on business, or personally works for gain.
Where an acknowledgement purporting to be signed by the witness is received, or where a postal endorsement indicates that the witness refused delivery, or where proof of electronic delivery is available under Section 70(3), the court may presume that the summons has been duly served.

The combined effect of these subsections is that the Service of summons on witness no longer depends solely on traditional physical methods but extends to modern digital systems of communication.

Key Features

Several key features can be identified from Section 71:

Simultaneous Modes of Service
Courts may adopt multiple methods of service at the same time—personal delivery, registered post, and electronic communication—thereby minimising the scope for avoidance or denial by witnesses.
Recognition of Electronic Communication
For the first time, the law expressly acknowledges service through electronic means such as email or other court-approved platforms. This significantly speeds up the process of Service of summons on witness.
Presumption of Service
Courts may presume valid service if there is an acknowledgement signed by the witness, an endorsement of refusal by a postal employee, or reliable proof of electronic delivery. This ensures that technical objections cannot be easily raised to delay trials.
Flexibility of Address
Summons may be sent to a witness’s residence, workplace, or business address, making the system more adaptive to real-world circumstances.

Comparison with CrPC, 1973

The CrPC, 1973 provided for personal service or postal delivery but did not explicitly embrace electronic methods. This limitation often caused procedural delays. Section 71 of the BNSS marks a clear departure from the past, as shown in the table below:

Aspect	CrPC, 1973	BNSS, 2023 (Section 71)
Mode of Service	Primarily personal or postal.	Personal, postal, and electronic simultaneously.
Proof of Service	Depended largely on acknowledgement or postal reports.	Includes acknowledgement, refusal by witness, or electronic proof.
Technological Adaptation	Silent on electronic means.	Explicit recognition of electronic communication.

This transformation demonstrates the legislature’s intention to strengthen the Service of summons on witness by equipping courts with faster and more reliable tools.

Judicial and Practical Implications

The adoption of Section 71 will likely influence both judicial practice and day-to-day court administration.

Efficiency in Trial Management
Courts will be able to reduce adjournments caused by witnesses failing to appear. Multiple modes of Service of summons on witness reduce excuses for non-attendance.
Strengthening Proof Mechanisms
Digital acknowledgements, email receipts, or server confirmations can be relied upon as proof of service, thereby providing stronger evidentiary backing to courts.
Reducing Burden on Police
Police officers, who were traditionally tasked with physical delivery of summons, may see their workload reduced as courts adopt electronic methods.
Challenges in Authentication
Courts will, however, need to carefully examine authenticity to ensure that electronic service has genuinely reached the intended witness. Safeguards against manipulation or fraudulent acknowledgements must be maintained.

Importance of Section 71

The Service of summons on witness is often the single largest factor causing delays in criminal trials. Witnesses either evade service or fail to appear, leading to repeated adjournments. Section 71 directly addresses this issue by:

Reducing procedural delay through simultaneous service.
Increasing compliance by recognising refusal of delivery as valid service.
Bringing the legal process in line with India’s digital transformation initiatives.
Protecting the right to a fair trial by ensuring that proceedings are not indefinitely stalled.

Challenges and Concerns

Despite its advantages, Section 71 is not without difficulties.

Digital Divide
Many witnesses, especially in rural areas, may not have access to email or reliable internet. In such cases, electronic service may be ineffective.
Proof of Actual Receipt
A witness may argue that although a message was delivered, it was not read. This raises questions about whether mere proof of delivery is sufficient for valid Service of summons on witness.
Risk of Misuse
False endorsements or technical glitches may lead to erroneous assumptions about service. This could potentially prejudice witnesses.
Training and Infrastructure
Successful implementation requires adequate training for judicial staff and investment in secure technological infrastructure. Without this, electronic service may remain more theoretical than practical.

Balancing Efficiency with Fairness

The overarching goal of Section 71 is efficiency, but courts must remain vigilant that efficiency does not come at the cost of fairness. Proper safeguards, such as verified digital signatures, secure servers, and audit trails, will be essential. In ensuring fairness, courts must balance the rights of the witness with the need for timely justice. The legitimacy of the Service of summons on witness must therefore rest on transparent, verifiable, and accessible systems.

Illustrative Example

Consider a case where a witness resides in another state. Traditionally, the process of serving summons could take weeks, with the possibility of further delay if the witness avoided service. Under Section 71, however:

The court may send the summons via registered post and also through email.
If the postal endorsement shows refusal of delivery and the email server confirms successful delivery, the court may deem service complete.
The witness cannot later evade responsibility by claiming ignorance.

This example shows how Section 71 strengthens the credibility and timeliness of the Service of summons on witness.

Future Prospects

Looking ahead, Section 71 may serve as a foundation for even more advanced reforms. Some possibilities include:

Dedicated Court Portals: Witnesses may securely log in to download and acknowledge summons.
Integration with Aadhaar-linked Contacts: Ensuring summons reach the correct individual with minimal ambiguity.
Use of Digital Signatures: To eliminate doubts regarding authenticity of acknowledgements.
Automated Tracking Systems: Allowing real-time monitoring of the status of summons.

Such innovations will further strengthen the Service of summons on witness, aligning it with global best practices.

Conclusion

Section 71 of the BNSS reflects a conscious legislative effort to modernise procedural law. By enabling courts to serve summons not only through traditional methods but also through registered post and electronic communication, the provision seeks to eliminate one of the most persistent causes of delay in criminal trials. The Service of summons on witness under this new framework is flexible, efficient, and aligned with technological realities.

That said, practical challenges such as digital accessibility, authenticity of electronic communication, and the need for institutional capacity cannot be ignored. Implementation must therefore be cautious, ensuring that the rights of witnesses are preserved while enhancing the efficiency of courts.

Ultimately, Section 71 represents a significant step towards a justice system that is both technologically empowered and procedurally fair. By addressing long-standing difficulties in the Service of summons on witness, it contributes to the broader objective of timely and effective justice under the Bharatiya Nagarik Suraksha Sanhita.

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