April 8, 2017 10:10:41 am
ENSURING THAT the traditional mechanism of legal procedures’ enforcement should not be a hindrance in taking cases to a logical conclusion and technological advancement should be better utilised, the Court of Haryana Financial Commissioner has ordered service of summons through WhatsApp messenger on mobile phone of a person residing in Nepal.
In one of its kind orders, probably for the first time in the country, when it came to the fore that in an ancestral property partition case of Hisar district, one of the family members could not be served summons since he has shifted to Kathmandu, the Court of Haryana Financial Commissioner Dr Ashok Khemka ordered issuing of summons on his cellphone through WhatsApp.
At the same time, Khemka directed to paste the summons at some conspicuous place in or near the joint land holding and the house in the village where Krishan Kumar used to live before shifting to Kathmandu, according to provisions of Punjab Land Revenue Act, 1887, read with Rule 17 of the Code of Civil Procedure.
“The modern age is made highly mobile due to technological advancements. The physical address is no longer permanent as before and keeps changing. But electronic mail address and mobile phone number of a person is relatively more permanent than his physical address. The law is not fossilised. Law is a living concept and follows technological advancements. An email address or a mobile phone number is also the address of a person in the present times,” Khemka reasoned.
Khemka is PhD in computer science from Tata Institute of Fundamental Research in Mumbai and is currently pursuing LLB at Panjab University, Chandigarh.
Senior advocates in Punjab and Haryana High Court, dealing in land matters, say they have never heard of summon service through WhatsApp though there is a provision for sending notices via e-mail. Senior Advocate Shailendra Jain says, “It is a good step.”
The financial commissioner’s directive reads that Order V, Rule 9(2) of the CrPC specifies that summons may be sent in such a manner as the court may direct and in Rule 9(3) any other means of transmission are provided.
Khemka also took support from Supreme Court’s observations in “M/s SIL Import, USA vs M/s Exim Aides Silk Exporters, Bangalore” where the apex court had ruled, “When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipment already in vogue and also in store for future. If the court were to interpret the words giving notice in writing in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process would fail to cope up with the change of time.”
When the case came up for hearing on April 6 before the Court of Haryana Financial Commissioner, it was informed that one Krishan Kumar could not be served notice as the halqa patwari reported that he had shifted to Kathmandu where his address is not known. Patwari had also informed Krishan Kumar about the court summons on his mobile phone and asked him to appear in court. But when the patwari asked Krishan Kumar’s address in Kathmandu, he refused.
The court ordered that the summons should be sent on Krishan Kumar’s WhatsApp from the mobile of a counsel, who shall produce proof of electronic delivery via WhatsApp by taking a printout and duly authenticating it by affixing his or her signature.
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