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Deliberation On Right Of An Accused To Seek Discharge In A Trial Of Summons Case

Unlike a trial of warrants-case wherein specific provision[1] under the Code of Criminal Procedure, 1973 (Hereinafter, referred to as 'the Code') has been engrafted to discharge an accused before framing of any charges, if the material against the accused is found to be groundless; No such provision is categorically encapsulated in chapter XX of the Code which provides for Trial of a summons cases by Magistrates.

The question with respect to the power of a magistrate vis a vis right of an accused in relation to discharge in a summons case has been lingering proper consideration and different Courts have taken frictional views.

Whether absence of express 'stage to seek discharge' in a summons case would imply that the magistrate is bound to proceed with trial once summons have been issued to an accused?
OR
Power to acquit / discharge an accused in absence of any triable case, post summoning, are inherent in Chapter XX of the Code, specifically section 251 of the Code?
A Reproduction of the erstwhile provision in relation to summons-case and its comparison with the extant law is necessary to reach a wholesome conclusion.
Extract from the Code of Criminal Procedure, 1898 [Repealed]

CHAPTER XX
OF THE TRIAL OF SUMMONS-CASES BY MAGISTRATES
…
242. When the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he Shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge.
…
Extract from the Code of Criminal Procedure, 1973
CHAPTER XX
TRIAL OF SUMMONS-CASES BY MAGISTRATES
251. Substance of accusation to be stated. - When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.
…
A comparison of the above reproduced extracts would show that in the 1898 Code once the accused entered appearance upon summoning, he was required to show why he should not be convicted. However, in the 1973 Code, in furtherance of granting fair opportunity to defend and to cut down maliciously instituted cases, the accused after being summoned, is stated particulars of the offence of which he is accused of and is asked whether he pleads guilty or has any defence to make. Thereby, providing an accused an opportunity to argue his case at the stage of framing of Notice.

A routine summoning Order, without due application of mind, may cause prejudice to a person arraigned as an accused. If there is no allegation in complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused. In such a scenario, it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued.

The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion as observed by the Hon'ble Supreme Court in K.M. Matthew v. State of Kerala reported at (1992) 1 SCC 217. It was further held that no specific provision is required for a Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.

However, the Hon'ble Court in the case titled as Adalat Prasad v. Rooplal Jindal & Ors. reported at (2004) 7 SCC 338 while adjudicating upon an issue in a warrant case had observed that if the Magistrate issues process without any basis, the remedy lies in petition u/s 482 of the CrPC, there is no power with the Magistrate to review that order and recall the summons issued to the accused.

The said proposition was although reaffirmed by the Hon'ble Supreme Court in Subramanium Sethuraman v. State of Maharashtra & Anr. reported at (2004) 13 SCC 324 by stating that discharge, Review, Re-Consideration, Recall of order of issue of process u/s 204 of the CrPC is not contemplated under the CrPC in a Summons Case. Once the accused has been summoned, the trial court has to record the plea of the accused and the matter has to be taken to trial to its logical conclusion and there is no provision which permits a dropping of proceedings, along the way.

Though there is no provision for discharge in such cases, but the dual remedy of invoking Section 482 as well as revisional jurisdiction u/s 397 of the CPC was clarified by the Supreme Court in Dhariwal Tobacco v. State of Maharashtra reported at (2009) 2 SCC 370.

The conflicting views lead to an anomaly and to lay down the correct position of law the Hon'ble Supreme Court in the case titled Bhushan Kumar v. State (NCT of Delhi) reported at (2012) 5 SCC 424 held that the Magistrate has power to discharge an accused in a Summons Case.

The relevant observations of the Court are as under:
"It is inherent in Section 251 CrPC that when an accused appears before the trial court pursuant to summons issued under Section 204 in a Summons Trial case, it is the bounden duty of the trial court to carefully go through the allegations made in the charge-sheet or complaint and consider the evidence to come to a conclusion, whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the CrPC"

In view of the Bhushan Kumar (Supra), the Hon'ble High Court of Delhi in several Criminal Misc. Main Cases filed under section 482 of the code, challenging Order of summoning, has granted liberty to the Petitioners therein to seek remedy before the concerned Magistrate, acknowledging the inherent power under section 251 of the Code, to grant acquittal / Discharge to an accused at the stage of framing of Notice.

In Urrshila Kerkar v. Make My Trip (India) Private Ltd. reported at  2013 SCC OnLine Del 4563 the Hon'ble High Court of Delhi has clarified that the Apex Court in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 SCC 338 has ruled that there cannot be recalling of summoning order, but seen in the backdrop of decisions of Apex Court in Bhushan Kumar (supra), aforesaid decision cannot be misconstrued to mean that once summoning order has been issued, then trial must follow.

If it was to be so, then what is the purpose of hearing accused at the stage of framing Notice under Section 251 of the Code. The Honble Court further observed that Apex Court's decision in Adalat Prasad (supra) cannot possibly be misread to mean that proceedings in a summons complaint case cannot be dropped against an accused at the stage of framing of Notice under Section 251 of the Code even if a prima facie case is not made out.

That the Hon'ble High Court of Delhi in a Petition preferred on behalf of Mr. Arvind Kejriwal titled as Arvind Kejriwal v. Amit Sibal reported at (2014) 1 HCC (Del) 719, while considering that dicta laid down in Bhushan Kumar (Supra) had held the accused are entitled to hearing before a Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C in all summons cases arising out of complaints and the Magistrate has to frame the Notice only upon satisfaction that a prima facie case is made out against the accused. However, in the event of the Magistrate not finding a prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused.

The Hon'ble Court, further, while observing that since there is no express provision or prohibition in this regard in the Code, passed directions in exercise of power under Section 482 read with Section 483 of the Code and Article 227 of the Constitution to secure the ends of justice; to avoid needless multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar (supra), Krishan Kumar Variar v. Share Shoppe reported at  (2010) 12 SCC 485  and Maneka Gandhi v. Union of India reported at AIR 1978 SC 597.   

That the above cited Order passed in Arvind Kejriwal (Supra) was challenged before the Hon'ble Supreme Court in a petition moved on behalf of Mr. Amit Sibal, titled as Amit Sibal v. Arvind Kejriwal reported at (2018) 12 SCC 165. The appellant had challenged, that in a complaint case where summoning order has been issued and no charge is to be framed and, the order permitting the respondents to raise such contentions at the stage of framing of notice and directing the Metropolitan Magistrate to consider the same and pass appropriate order is contrary to law.

The Counsels appearing for the respondents submitted that in such an eventuality, when the petition filed by the respondents under Section 482 CrPC has not been decided by the High Court on its merits, the matter be sent back to the High Court for decision of the said petition.

Considering the above, the Hon'ble Apex Court remitted the case to the High Court while passing a consented Order and without making any observation on the aforesaid submissions. The same has been misconstrued by several Courts to believe that the power to discharge / acquit an accused at the stage of framing of Notice is absent under the code in trials of summons cases.

However, the Hon'ble High Court of Delhi has reaffirmed the proposition of law laid down by Bhushan Kumar (Supra) in the case titled as R. Narayanan v. State (Govt. NCT of Delhi) reported at 2019 SCC OnLine Del 6392.

Conclusion
It is a trite law that once summoning order has been passed against certain accused, the same may not be recalled or reviewed by the concerned Magistrate. Thus, an effective remedy to seek quashing of a summoning order lies under section 482 of the Code. However, considering the change in law upon a comparison of the erstwhile Code and the Code of 1973 and the above cited judicial precedents, it may be inferred that the power to frame Notice against an accused in a trial of summons case, under section 251 of the Code, inherently includes the power to drop the proceedings if the material against the accused is found to be groundless and no case is made out against the accused.

End-Notes:
  1. See section 239 of the code: When accused shall be discharged.—If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
     
Written By: Sahil Modi, Advocate

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