Bombay High Court Sets Aside Cost Imposed On Constable

1. By this application, the applicant/State is

challenging the order passed by the learned

Additional Sessions Judge-11, Fast Track Special

Court/POCSO Court, Nagpur on 21.01.2026 in Special

Case No.262/2018 below Exh. 1.

2. From the order it reflects that the case was

posted for recording evidence of prosecution as the

case being part heard. It is mentioned in the order

that the summons report was filed before the Court

which discloses that summons is served through

mobile phone to the witnesses. Witnesses namely

Gunjal Prabhakar Kharabe and Dnyeshwar Sitaram

Munde are absent. Service of summons through

mobile phone to the witnesses is not allowed.

Therefore, due to non-service of the summons by

legal mode case is delayed and in that circumstances,

the Special Judge has imposed the cost on the

concerned Constable.

3. Heard learned learned Public Prosecutor for

the applicant/State, who submitted that in fact the

order is passed by ignoring the provisions of law i.e.

Section 70 and Section 530 of the Bharatiya Nagarik

Suraksha Sanhita, 2023 (hereinafter referred to as

‘BNSS’). He also submitted on the factual aspect so

also the order passed by the Special Court is wrong

and illegal. He invited my attention towards the

summons report and submitted that initially, the

summons was served on the witnesses and the date

communicated to them on 03.11.2025. Thereafter,

the summons was again reissued on 03.11.2025

which was never handed over to the concerned

Constable to serve the same. He has also placed

reliance on the diary, which is maintained by the

concerned Constable regarding the receipt of the

summons from the Court.

4. He also placed reliance on the decision of

this Court in Kross Television India Pvt. Ltd., and

another Vs. Vikhyat Chitra Production and

others reported in 2017 SCC OnLine Bom 1433,

wherein he submitted that this Court has very nicely

considered that what is the purpose of the summons

and it is only that the fact is to be brought to the

notice of the person who is receiving the said notice

therefore that knowledge is already there. In view of

that, the application deserves to be allowed.

5. On hearing the learned Public Prosecutor, I

do not feel that the notice is required to be served on

the non-applicant.

6. From the impugned order, it reveals that

as the summons was served through the mobile

phone and therefore, the cost is imposed by the

Special Court. Admittedly, there is amended

provision in view of Section 70 of BNSS which deals

with proof of service in such cases when serving

officer not present. The sub-Section (3) specifically

states that all summons served through electronic

communication under sections 64 to 71 shall be

considered as duly served and a copy of such

electronic summons shall be attested and kept as a

proof of service of summons as well as Section 530 of

the BNSS also deals with the aspect of trial and

proceedings to be held in electronic mode which

reproduced as under:

All trials, inquires and proceedings under

this Sanhita, including issuance, service and

execution of summons and warrants, examination of

complainant and witness, recording of evidence in

inquiries and trials, all appellate proceedings or any

other proceedings, may be held in electronic mode,

by use of electronic communication or use of audiovideo

electronic means.

7. Thus, after going through this provision it

reveals that now the electronic mode is very well

accepted by the amendment in BNSS and the

purpose which is rightly considered by this Court in

the case of Kross Television India Pvt. Ltd., and

another referred supra wherein it specifically

mentioned that the purpose of service is put the

other party to notice and to give him a copy of the

papers. The mode is surely irrelevant. Here in the

present case also as the communication was already

there as initially the summons was already served

and the witnesses were bond over therefore, the

communication through the mobile phone by the

Constable regarding the information of date is of

course not illegal it was only the purpose which

required to be seen and now the mobile service by

the electronic media is already accepted in view of

Section 70 of BNSS. The learned trial Court

apparently ignored the said provision and passed an

order and unnecessarily imposed the cost on the

Constable. On the factual aspect also the order

passed by the trial Court is wrong as the record

shows that the after 03.11.2025, when the witnesses

were bond over again the summons was reissued and

the said summons were not handed over to the

Constable for service, therefore, the order on the

factual aspect is also incorrect.

8. In the above circumstances, the

application deserves to be allowed.

9. The order passed below Exh.1 in Special

Case No.262/2018, directing to recover the costs

from the concerned Officer/Police Constable, is

hereby quashed and set aside.

The application is disposed of.

(URMILA JOSHI-PHALKE, J.)