Bharatiya Nagarik Suraksha Sanhita, 2023
Section 70
Proof of service in such cases and when serving officer not present
(1) When a summons issued by a Court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by section 64 or section 66) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.
(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.
(3) All summons served through electronic communication under sections 64 to 71 (both inclusive) shall be considered as duly served and a copy of such summons shall be attested and kept as a proof of service of summons.
Why this exists
Criminal procedure requires courts to be sure that people were actually informed about court proceedings against them (summons). But requiring the delivering police officer or process server to personally appear in court every time to confirm delivery is impractical, especially when service happens far away. This provision, carried forward from the old Code of Criminal Procedure (Section 68) with an added clause for electronic service, lets an affidavit substitute for live testimony and recognizes modern electronic delivery methods introduced by the Bharatiya Nagarik Suraksha Sanhita, 2023.
How courts read it
Under the corresponding provision in the earlier Code of Criminal Procedure, courts generally treated such affidavits as raising a presumption of proper service, shifting the burden to the person disputing service to show it did not happen. Courts have been cautious to ensure the endorsement and affidavit comply with the manner prescribed (as in sections 64 and 66) before relying on them. No major judicial interpretation is yet available specifically for the new electronic-service clause introduced by the BNSS, as it is a recent addition.
Common misconceptions
- Myth: The person who delivered the summons must always appear in court to prove it was delivered.
Fact: The law allows a sworn affidavit to replace their personal appearance as valid proof of service. - Myth: Electronic summons (like emails) aren't legally valid unless someone confirms receipt.
Fact: Under sub-section (3), electronically sent summons are automatically considered duly served, with an attested copy as proof.