Introduction:
In an important decision concerning procedural fairness and the unique service conditions governing members of the Armed Forces, the Rajasthan High Court has held that summons intended for a Soldier, Sailor, or Airman serving in the Armed Forces must be served through the individual’s Commanding Officer in strict compliance with the General Rules (Civil & Criminal), 2018. The Court clarified that mere dispatch of summons through registered post cannot be treated as valid or sufficient service when the person concerned is actively serving in the Armed Forces.
The judgment was delivered by Justice Anoop Kumar Dhand in Dhananjay Kumar v. State of Rajasthan (2026 LiveLaw (Raj) 218). The Court was called upon to answer a specific legal question: whether service of summons upon a person posted as a Soldier, Sailor, or Airman can be considered legally sufficient merely because the summons were sent through registered post. After examining the statutory framework, the Court answered the question in the negative and emphasized that the procedure prescribed under Order 31 Rule 5 of the General Rules (Civil & Criminal), 2018 is mandatory in nature.
The case arose from criminal proceedings connected to allegations under Section 498A of the Indian Penal Code, which deals with cruelty by a husband or his relatives. An FIR had been registered against several individuals, including the petitioner, who at the relevant time was serving in the Indian Navy. Following investigation, the police did not file a charge sheet against the petitioner. Dissatisfied with this outcome, the complainant moved an application under Section 190 of the Code of Criminal Procedure seeking cognizance against him.
The application was initially rejected. However, the complainant subsequently challenged that rejection by filing a revision petition before the Revisional Court. The Revisional Court allowed the revision petition and passed an order adverse to the petitioner. Significantly, this order was passed ex parte, meaning that the petitioner was not heard before the decision was rendered.
The petitioner approached the Rajasthan High Court contending that he had never been properly served with notice of the revision proceedings. According to him, he was serving in the Indian Navy during the relevant period, and the mandatory procedure governing service of summons on Armed Forces personnel had not been followed. Instead, the Revisional Court relied upon a postal tracking report and proceeded to decide the matter without ensuring effective service.
The case therefore raised broader issues concerning procedural safeguards available to military personnel and the importance of complying with statutory requirements before proceeding against individuals whose service obligations may prevent them from readily participating in civil or criminal litigation. At its core, the matter involved balancing judicial efficiency with the need to ensure that those serving the nation in the Armed Forces are not deprived of their legal rights due to improper service of summons.
Arguments of the Parties:
The petitioner challenged the ex parte order primarily on the ground that it had been passed in complete violation of the mandatory provisions governing service of summons upon members of the Armed Forces.
Counsel for the petitioner argued that Order 31 Rule 5 of the General Rules (Civil & Criminal), 2018 lays down a special and exclusive procedure for serving summons upon Soldiers, Sailors, and Airmen. The provision recognizes the distinctive nature of military service and ensures that judicial processes do not interfere with operational duties without proper coordination through military authorities.
According to the petitioner, the Rule mandates that summons intended for a member of the Armed Forces must be sent to the individual’s Commanding Officer along with a duplicate copy to be retained by the concerned person. This mechanism ensures that military authorities receive adequate notice and are able to make necessary arrangements for the concerned individual to participate in legal proceedings.
The petitioner contended that none of these requirements had been followed. Instead, the Revisional Court relied solely upon a postal tracking report and presumed that service had been effected. Such an approach, it was argued, defeated the very purpose of the statutory rule and deprived the petitioner of a meaningful opportunity to contest the revision proceedings.
The petitioner further submitted that the ex parte order had serious legal consequences. The Revisional Court had reversed an order that was favourable to him without granting him an opportunity of hearing. This amounted to a violation of the fundamental principles of natural justice, particularly the rule that no person should be condemned unheard.
It was argued that compliance with Order 31 Rule 5 was not a mere procedural formality. Rather, it was a substantive safeguard designed specifically for Armed Forces personnel. Failure to comply with the rule rendered the entire proceeding legally defective.
The petitioner emphasized that because of the demands of military service, members of the Armed Forces may be stationed at remote locations, engaged in operational duties, or deployed in sensitive areas. Therefore, service through ordinary postal channels cannot ensure that such individuals receive timely notice or have a realistic opportunity to appear before a court.
On the other hand, the State sought to support the proceedings before the Revisional Court. Although detailed submissions of the State are not extensively recorded in the judgment, the proceedings indicate that the Revisional Court had proceeded on the basis that notices had been dispatched and that postal records suggested delivery.
The respondents effectively relied upon the assumption that service through registered post was sufficient to satisfy the requirements of procedural law. However, the controversy before the High Court centered on whether such service could override the special procedure prescribed specifically for Armed Forces personnel.
Thus, the dispute was not merely about whether a notice had been sent, but whether the mode of service adopted was legally valid in light of the mandatory statutory framework governing service upon military personnel.
Court’s Judgment:
After considering the rival submissions and examining the relevant provisions of the General Rules (Civil & Criminal), 2018, the Rajasthan High Court ruled in favour of the petitioner and set aside the order passed by the Revisional Court.
Justice Anoop Kumar Dhand began by examining Order 31 Rule 5 of the Rules. The Court observed that the provision specifically deals with service of summons upon Soldiers, Sailors, and Airmen serving in the Armed Forces. The language of the rule leaves little room for ambiguity and clearly requires that summons be transmitted through the concerned individual’s Commanding Officer.
The Court emphasized that the rule has been framed for a practical and important purpose. Members of the Armed Forces are not ordinary litigants who can be expected to freely attend court proceedings at short notice. Their duties involve national security, operational readiness, and adherence to strict military discipline. Consequently, any judicial process affecting them must take into account the realities of military service.
The Court observed that forwarding summons through the Commanding Officer ensures that sufficient time is available for the Armed Forces authorities to make necessary arrangements. Such arrangements may include granting leave, adjusting operational responsibilities, or otherwise facilitating the individual’s participation in legal proceedings.
According to the Court, the statutory requirement exists precisely to prevent situations where an Armed Forces member is prejudiced because of an inability to respond to legal proceedings while discharging official duties.
Justice Dhand noted that the language of the rule is mandatory and not merely directory. The provision specifically requires the Presiding Officer to send the summons to the Commanding Officer along with a copy that is to be retained by the concerned Soldier, Sailor, or Airman.
The Court held that where a statute or rule prescribes a particular manner for performing an act, the act must ordinarily be performed in that manner alone. Any deviation from the prescribed procedure undermines the purpose of the rule and may render the action legally unsustainable.
Applying these principles to the facts of the case, the Court found that the mandatory procedure had not been followed. The notices were not sent to the petitioner’s Commanding Officer as required under Order 31 Rule 5. Instead, reliance had been placed on a postal tracking report to conclude that service had been effected.
The Court categorically rejected this approach. It held that service through registered post could not substitute the special statutory procedure specifically designed for Armed Forces personnel. Since the notices had not been issued in the prescribed manner, the service could not be regarded as valid.
Justice Dhand observed that the failure to comply with the mandatory rule struck at the root of the proceedings. The petitioner had been deprived of an opportunity to contest the revision petition, and the resulting ex parte order therefore could not be sustained.
The Court accordingly quashed and set aside the impugned order passed by the Revisional Court. The matter was remitted back for fresh consideration after ensuring proper service and affording the petitioner a full opportunity of hearing.
While granting relief, the Court also issued practical directions aimed at facilitating future proceedings. Recognizing that the petitioner was now aware of the revision petition, the Court directed him to place a copy of the High Court’s order before his Commanding Officer and seek permission to appear before the Revisional Court through legal counsel.
The Court further expressed an expectation that the Commanding Officer would pass appropriate orders enabling the petitioner to effectively participate in the proceedings. This direction reflected the Court’s effort to balance judicial requirements with military administrative considerations.
The judgment is significant for several reasons. First, it reinforces the principle that procedural safeguards cannot be ignored merely for the sake of convenience. Even where postal records indicate delivery, courts must ensure compliance with special statutory procedures designed to protect particular classes of individuals.
Second, the decision highlights the judiciary’s recognition of the unique responsibilities and constraints associated with military service. By insisting upon service through the Commanding Officer, the Court acknowledged that Armed Forces personnel occupy a distinct position that necessitates special procedural protections.
Third, the ruling strengthens the broader principle of natural justice. Effective service of notice is the foundation of a fair hearing. Where service itself is defective, any subsequent proceedings risk violating the basic requirement that every person must be given a reasonable opportunity to present their case.
Ultimately, the Rajasthan High Court’s decision serves as an important reminder that procedural rules are not empty formalities. They exist to ensure fairness, transparency, and meaningful participation in the judicial process. By mandating strict compliance with Order 31 Rule 5 of the General Rules (Civil & Criminal), 2018, the Court has reaffirmed that members of the Armed Forces are entitled to the full protection of procedural law while they continue to serve the nation.