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.

ADMISSIBILITY OF E-EVIDENCE:

Electronic record is documentary evidence under section 3 of the Evidence Act. Taking and recording evidence would assume great significance in administration of justice. Electronic record is documentary evidence under section 3 of the Evidence Act. An electronic record may be like computer print out, Compact Disc (CD), Video Compact Disc (VCD), Pen drive, Chip etc.

The law with regard to admissibility of E-Evidence can be studied under the following heads:

1. RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING

In the case of State of Maharashtra vs. Dr. Praful B.Desai, (2003) 4 SCC 601 The Hon’ble Supreme Court while interpreting Section 273 of the Criminal Procedure Code in the light of technological advancements held that recording of evidence through video conferencing would be perfectly legal.

The amendments carried to the Evidence Act by introduction of Sections 65-A and 65-B are in relation to the electronic record. Section 67-A and 73-A was introduced as regards proof and verification of digital signatures. As regards presumption to be drawn about such records, Sections 85-A, 85-B, 85-C, 88-A, and 90-A were added. These provisions are referred only to demonstrate that the emphasis, at present, is to recognize the electronic records and digital signatures, as admissible pieces of evidence.

In Jagjit singh vs. State of Haryana ((2006) 11 SCC 1), the Hon’ble Apex Court considered the digital evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak television channel and the Haryana News of Punjab Today television channel and determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the CD were those of the persons taking action.

2. ADMISSIBILITY OF E-MAIL:-

In Abdul Rahaman Kunji Vs. The State of West Bengal 2016 CriLJ 1159 In this case the Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such procedure to download and print the same is sufficient to prove the electronic communication.

3. AN ELECTRONIC RECORD BY WAY OF SECONDARY EVIDENCE :

In the case of Anvar P.V. vs. P.K. Basheer and others AIR 2015 SC 180

With this significant judgment in the year 2014, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed in the various High Courts and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has interpreted Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act. It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved by oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to make such electronic evidence admissible.

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

However, Recently, The position is further clarified by the Hon’ble SC in the case of SHAFHI MOHAMMAD VS STATE OF HIMACHAL PRADESH 2018 SC decided on 30.01.2018 by Hon’ble Bench of Justice A.K. Goel and U.U Lalit, whereby it is held that that if a person is not in a position to produce such certificate the provision of 65B should not be applied. Relevant paras are reproduced below:

“(11) The applicability of procedural requirement under 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B is not always mandatory.

(12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”

4. CELL-PHONE RECORDING – EVIDENTIARY VALUE:-

In the case of State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru: (2005) 11 SCC 600

The Apex Court while considering the print out of the computerized records of the calls pertaining to the cell phones in view of the production of electronic record held as follows: “150. xxx irrespective of the compliance with the requirement of section 65–B, which is a provision dealing with admissibility of the electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, sections 63 & 65. It may be that the certificate containing the details in Sub-section (4) of section 65-B is not filed in the instance case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, sections 63 & 65.”

5. ADMISSIBILITY OF TELEPHONE CALL IN A CD AND CDR:-

In Jagdeo Singh Vs. The State and Ors, MANU/DE/0376/2015,

the Hon’ble High Court of Delhi, while dealing with the admissibility of intercepted telephone call in a CD and CDR which were without a certificate u/s 65B Evidence Act, the court observed that the secondary electronic evidence without certificate u/s 65B Evidence Act is inadmissible and cannot be looked into by the court for any purpose whatsoever.

6. INTERVIEW TELECASTED ON DOORDASHAN:-

In Sharad Yadav and Ors. Vs. Union of India (UOI) and Anr  82 (1999) DLT 13,  Shri Sharad Yadav in an interview recorded in Hindi, had admitted having received a sum of Rs. 3 lac from one Jain and the said interview was telecasted on Doordarshan after due editing. Hindi version of said interview has been produced before the Court, which is as under :

“MUJHE CHMMAN BHAI PATEL KE SAATH EK JAIN AIYA THA USNE TEEN LAKH RUPEEYE DIYE HAIN AUR WOH TEEN LAKH RUPEEYE JO CHANDE KE AIYE HAIN WOH MAIN NE KISKO DIYE HAIN PARTY KI TARAF SE WOH BHI LIKHA HUWA HAL”

In this case, it was observed that tested on the touchstone of the principles of law enunciated by their Lordships of the Privy Council and the Supreme Court, the aforesaid video recorded interviews of Shri Sharad Yadav do not amount to confessions and cannot, therefore, be used to complete the offence, with which Shri Sharad Yadav was charged. In this case, it was observed that ”it would be unfair to admit only the statements against interest while excluding part of the same interview or series of interviews.”

Sajidbeg Asifbeg Mirza Vs. State of Gujarat (2007) 1 Guj LH 400

In this case, the Hon’ble Gujarat High Court observed :- We are of the view that the talk which Afzal had with the TV and press reporters admittedly in the immediate presence of the police and while he was in police custody, should not be relied upon irrespective of the fact whether the statement was made to a police officer within the meaning of Section 162 CrPC or not. We are not prepared to attach any weight or credibility to the statements made in the course of such interview prearranged by the police. The police officials in their over-zealousness arranged for a media interview which has evoked serious comments from the counsel about the manner in which publicity was sought to be given thereby. Incidentally, we may mention that PW 60 the DCP, who was supervising the investigation, surprisingly expressed his ignorance about the media interview. We think that the wrong step taken by the police should not ensure to the benefit or detriment of either the prosecution or the accused.

EFFECT OF ANVAR P.V. VS. P.K. BASHEER AND OTHERS AIR 2015 SC 180: WHETHER PROSPECTIVE OR RETROSPECTIVE?

In the case of Sonu @ Amar v. State of Haryana, (SC) 2017(3) Law Herald 2481 The Court in the last part of this judgment noted that the court in Anvar has not applied the principle of prospective ruling. While noting this, the Court expressed concerns over the law laid in Anvar being applied retrospectively on one hand, and on the other hand, it refrained from answering whether the judgment in Anvar could be made prospective in nature and has left this question open.