WHETHER THE MAGISTRATE, IN A 'SUMMONS CASE BASED ON A COMPLAINT' HAS THE POWER TO DROP PROCEEDINGS AND DISCHARGE AN ACCUSED, OR NOT ?

WHETHER THE MAGISTRATE, IN A 'SUMMONS CASE BASED ON A COMPLAINT' HAS THE POWER TO DROP PROCEEDINGS AND DISCHARGE AN ACCUSED, OR NOT ?

The question assumes great practical significance insofar as many criminal cases such as defamation, dishonour of cheques, amongst other cases of relatively private character are triable as summons cases (based on private complaints, as opposed to investigation and charge-sheet by the police).

From the bare perusal of the provisions relating to trial of 'Warrants Cases and 'Summons Cases' would quickly reveal that as far as Trials of Sessions [Sections 225-237 CrPC] and Warrants cases [Sections 238-250 CrPC] are concerned, there are specific provisions in the form of Section 227 and 239 and 245 CrPC respectively, which stipulate affording an opportunity to the accused to make submissions on the point of charge and seek discharge at the very threshold. This is similar to a 'no case to answer' motion i.e. no prima facie case, wherein accused argues that even if the prosecution case is accepted at face value and taken to be correct, no case is made out against the accused. This opportunity is specifically provided vis-à-vis Warrants Cases. However, there is no analogous provision as far as Summons Cases are concerned.

Chapter XX [Sections 251-259 CrPC] specifically deals with the procedure relating to trial of Summons cases by Magistrates.

Section 251 of the CrPC reads as follows :-

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.

Even on a bare reading, it becomes apparent that there is no specific power of discharge or dropping of proceedings available with the Magistrate in a Summons Trial. However, the judicial opinion on this aspect is far from consistent and the position of law has meandered a great deal. A short chronology of decisions dealing with this aspect would be appropriate.

Judicial Interpretation of Section 251 of the CrPC

1.    K.M.Matthew v. State of Kerala (1992) 1 SCC 217 

Briefly, the accused (who was a Chief Editor of a daily newspaper) was summoned for an offence u/s 500 of the Indian Penal Code, 1860 ("IPC") (defamation). The Chief Editor, on appearance, moved an application seeking 'dropping of proceedings' on the premise that there was no specific allegation against him and offence against him was not made out. The Magistrate had accepted this plea and held that complaint, insofar as it concerned the Chief Editor, could not be proceeded with.

On the matter finally reaching the Supreme Court, it was held that:

"If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused. 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. No specific provision is required for the 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"

With these observations, the proceedings against the accused were dropped. This judgment gave rise to many questions such as, would not such a decision amount to the court reviewing its own order.

2.    Adalat Prasad v. Rooplal Jindal & Ors (2004) 7 SCC 338

In this case the Hon’ble Supreme Court held 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" and overruled the dictum laid down in K.M.Matthew (supra) case.

3.    Subramanium Sethuraman v. State of Maharashtra & Anr (2004) 13 SCC 324

In this case the decision in Adalat Prasad (supra) was reaffirmed wherein it was held 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 (as per Section 251 of the CrPC) 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.

4.    Bhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC 424

However, in this case the Supreme Court ruled that the Magistrate has the 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"

5.    Amit Sibal v. Arvind Kejriwal (SC) 2016(12) Scale 487 

Briefly, the facts, Earlier in 2014, in Arvind Kejriwal and others versus Amit Sibal & Anr(2014) 1 High Court Cases (Del) 719 (in a case alleging defamation by Delhi Chief Minister Mr. Arvind Kejriwal) a Single Judge of the Hon'ble High Court of Delhi had ruled that the 'Magistrate has the power to hear the accused at the time of explanation of substance of the accusation, and if no offence is made out, to drop proceedings against him at that stage itself, and the court need not, in all cases, take the matter to a full blown trial'.

Aggrieved by this decision, the matter was carried by the complainant (Mr.Amit Sibal) to the Supreme Court. The main ground of attack was that 'The Magistrate, in a Summons Case, has no power to drop proceedings, in absence of a specific provision in the CrPC to that effect' Pending hearing on the matter, the Supreme Court had stayed the operation of the High Court decision. The Respondents (representing the accused) did not dispute this legal position (as to CrPC not stipulating a 'discharge scenario' in summons cases) and the Supreme Court apparently agreed with this proposition and matter was remanded to the High Court for fresh consideration from the viewpoint of Section 482 of the CrPC, effectively implying that Trial Court would have no such power.

The order of the Supreme Court is basically in the nature of a 'consent order'.

6.    R.K. Aggarwal v. Brig Madan Lal Nassa & Anr 2016 SCC OnLine Del 3720

The Delhi High Court recently in this case expressly recognized the absence of power of discharge in a summons case by holding:

"There is no basis in the contention of the petitioners for discharge for the reasons that firstly, there is no stage of discharge in a summons case. Under Chapter XX of Cr.P.C, after filing a private complaint, in a summons case, the accused is either convicted or acquitted. There is no stage of discharge of an accused at any stage under Chapter XX of Cr.P.C"

Analysis.

The very fact that in a Summons Case there is no specific provision of a discharge, as opposed to a Warrants Case (S.227/239/245 of the CrPC) speaks volumes as to the legislative intent of not having an elaborate hearing at the time of framing of notice. What also deserves to be borne in mind is the fact that Summons Cases were not envisaged to be as long-drawn out as Warrants Case and the need for a specific discharge hearing was ousted.

It was expected that, since Summons Cases relate to offences of relatively lesser gravity and capable of being completed expeditiously, having a dedicated charge hearing would only delay matters unnecessarily, without any corresponding benefit. The legislative intent to have a relatively abridged form of trial in Summons Cases is writ large on the face of the provisions.

The latest decision in Amit Sibal (supra) is in perfect harmony with the statutory scheme.

Sample Answer for Judicial mains Examination where a case is based on circumstantial evidence:

Q. A is charged for the murder of his wife. During the trial the following facts are established:

(a) Deceased suffered burn injuries on her body;

(b) The last seen evidence points out that A was the only person present in the house at the relevant time;

(c) Before dying the deceased made a dying declaration that her sari caught fire due to an explosion in the stove when she was cooking food;

(d) As per the post mortem report she had suffered 90% burns and traces of kerosene were found on her head;

(e) No pieces of the stove were found at the scene of occurrence.

Solution:

Considering the facts and evidence in the case in hand, evidently, the case of the prosecution is based on the circumstantial evidence. Thus, before adverting the facts of the case in hand, it is appropriate to recall the well-established principles while appreciating the case based on circumstantial evidence.

            Circumstantial evidence is unrelated facts that, when considered together, can be used to infer a conclusion about something unknown. Information and testimony presented by a party in a civil or criminal action that permit conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove.

            An example of circumstantial evidence is the behavior of a person around the time of an alleged offense. If someone were charged with theft of money, and were then seen in a shopping spree purchasing expensive items, the shopping spree might be regarded as circumstantial evidence of the individual's guilt. Similarly if a witness arrives at a crime scene seconds after hearing a gunshot to find someone standing over a corpse and holding a smoking pistol, the evidence is circumstantial, since the person may merely be a bystander who picked up the weapon after the killer dropped it. The popular notion that one cannot be convicted on circumstantial evidence is false. Most criminal convictions are based, at least in part, on circumstantial evidence that sufficiently links criminal and crime.

            The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.

            Similarly in the famous case of Bodh Raj V. State of Jammu & Kashmir, Court held that circumstantial evidence can be a sole basis for conviction provided the conditions as stated below is fully satisfied. Conditions are:

1) The circumstances from which guilt is established must be fully proved;

2) That all the facts must be consistent with the hypothesis of the guilt of the accused;

3) That the circumstances must be of a conclusive nature and tendency;

4) That the circumstances should, to a moral certainty, actually exclude every hypothesis expect the one proposed to be proved.

The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence are laid down in Sharad v. State of Maharashtra (AIR 1984 SC 1622). It reads as follows:

The following conditions must be fulfilled before a case against an accused can be said to be fully established:

1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved” as was held by Apex Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: [SCC para 19, p.807:SCC (Cri) p.1047]

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.

2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

3) The circumstances should be of a conclusive nature and tedency.

4) They should exclude every possible hypothesis except the one to be proved, and

5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

                                 

                                  Now, in the case in hand, the Post Mortem Report shows that the deceased had 90% burn injuries on her body, and that traces of kerosene are found on her head. The deceased had made a dying declaration that her sari caught fire due to an explosion in the stove when she was cooking food, this dying declaration does not involve the accused.  There is no evidence that how and who drenched her in kerosene and set her on fire. The only circumstance relied upon by the prosecution against the accused is that he was the only person in the house at the relevant time.  In Anjan Kumar Sarma v. State of Assam 2017(3)(R.A.J.)555 Supreme Court held that where Murder case is based on circumstantial evidence and Prosecution could only prove circumstance of last seen. Accused could not be convicted on basis of last seen evidence alone if no other circumstances were proved.

            It is a settled principle of law that prosecution is required to prove the guilt of the accused, by direct or circumstantial evidence, beyond reasonable doubt. Findings of the court cannot be based on mere conjectures and surmises, assumptions and presumptions. Even in the present case, one cannot make a guess work that accused might have removed the pieces of stove etc. Further, it is to be noted here that the Dying Declaration is made admissible in evidence on the basis that presumption of truth is attached to it. So if dying declaration does not involve the accused and other circumstances are not sufficient to connect the accused with the commission of crime, it casts a serious doubt on the case of the prosecution.   

            No doubt medical evidence shows that traces of kerosene were found on the head of deceased which is not possible in case of explosion of stove, but no evidence at the same time that accused did it. It is important to note here that there is no motive for the accused to commit the crime, proved by the prosecution and in cases based on circumstantial evidence motive assumes more significance.

            So, in totality of the circumstances, it can be said that two views are possible. In such situation, view in favour of accused, specifically in case where all circumstances taken together do not indicate towards the guilt of accused, accused is entitled to the benefit of doubt and thus, liable to be acquitted.