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.