Wednesday, January 13, 2016

Judicial Appreciation at Different Stages of Trial

Criminal trials require the prosecution to prove its case beyond reasonable doubt (well, most trials at least). This is a satisfaction that the judge arrives at. But this is not the only determination that a judge has to make during the trial, that has material bearings on the life of the trial itself. The same judge is required to do this at three other instances - (i) while taking cognizance, (ii) while summoning the accused, and (iii) upon framing charge. The text of the Cr.P.C. indicates different levels of satisfaction are required to proceed further at each stage, as the stakes keep increasing. But since cases are decided by human judges and not robots, subjectivity creeps in, and so does confusion. Here, I argue a lot of confusion has crept in regarding the satisfaction required at each stage. A lot of noise has developed due to judicial dictum, obscuring what the text might have meant. Besides making the law confusing, it has also contributed to increased delays.  

Understanding the Three Stages

1. Cognizance
Cognizance is the first time a Magistrate is presented with the facts, in the form of either a Police Report [Section 190(1)(b)], or a Complaint disclosing the commission of an offence [Section 190(1)(a)], or due to facts in the knowledge of the Magistrate herself [Section 190(1)(c)]. Must a Court take cognizance upon any of these occurring? Section 190 using 'may' and not 'shall' suggests not. The Supreme Court agrees [for instance, Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668]. In suggesting there exists discretion, the Supreme Court did little to suggest how such discretion should be exercised though. Here, no support could be had from the text. Unlike other stages, Section 190 contained no test explaining the satisfaction required for taking cognizance and moving ahead. Nevertheless, the Court went ahead and created a right for aggrieved complainants to be heard at this stage as well [Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285],

Could it be though, that the Code was not intend for Magistrates to evaluate merits at this stage in any way, but only consider whether mandatory requirements were fulfilled? By mandatory requirements, I refer to the various other provisions between Section 190 and 200, that restrict the taking of cognizance. For instance, suppose a complaint under Section 497 IPC [Adultery] is filed before a Magistrate. Section 198 Cr.P.C. does not allow everyone to file complaints for this offence. So maybe, all that the Magistrate is required to do was determine whether the complaint was filed by a proper person, and then proceed? The 'may' in Section 190 Cr.P.C. continues to make sense, and we don't have any subjective discretion creeping in. The interpretation adopted by the Supreme Court opened the doors for challenges to orders on cognizance before appellate courts, causing delays at the very inception of litigation.

2. Summoning
Once the Magistrate takes cognizance of offences, the next step is summoning the proposed accused for trial. Here the Cr.P.C. clearly requires some application of mind, evident from Section 203 which allows dismissal of complaints, and the language of Section 204 which pertains to summoning. It says that there must be 'sufficient ground for proceeding' . Is this determined through argument? And, is there any objective marker to determine whether there exist such sufficient grounds? Although we haven't reached trial, the importance of this stage must not be lost. This decides whether an accused must enter appearance. Where criminal litigation was pursued to mount pressure, this may well be the most important step for litigants. Lets keep answering these questions in abeyance for now, as it is important to first briefly explain what is framing charge

3. Framing Charge
Charges are what determine a trial - this is what the accused must plead to. The Cr.P.C. envisages different trial procedures for different kinds of offences - the more serious offences get a more rigorous trial, so to speak. Framing charge is therefore not found across all trials - Sessions and Warrant cases only, as Summons cases have what is called "Framing of Notice". The Code allows the court to conclude that no charge should be framed, allowing that an accused be discharged. These provisions on discharge vary in style across the different kinds of trial, as seen on a comparison of Sections 227, 239 and 245 of the Code.

Conflating Summoning with Framing Charge

Do we Need to Argue?
Now, lets run back to those questions on summoning. Would the sufficient grounds for proceeding be determined through argument? Section 204, which talks about issue of process, comes right after provisions explaining procedure of complaints before Magistrates. A Magistrate upon reading a complaint examines the complainant on oath. He can also order a police inquiry to determine "whether or not there is sufficient ground for proceeding". If this is a Police Report, there is no such requirement as we already had a lengthy investigation. Summoning is also followed by charge in most trials, and the possibility of discharge for the accused. The Cr.P.C. requires the court to examine the record, and hear both sides, before deciding whether charges should be framed. Both these requirements are conspicuously absent at the time of summoning. To kill the suspense, the answer is that arguments on summoning are always heard when cognizance of offences is taken on a complaint case. Summons are always issued when cognizance is taken on a police report.

Amazingly, earlier the court heard both sides at this stage as well, making differences between the stages quite limited. If arguments were being advanced, naturally the complainant would rely upon the record of the case. The accused couldn't, as documents are supplied post summoning, but would secure some material to have an effective hearing. All of this obviously compounded the problem of delays. Thankfully, today an accused does not have a right of hearing at this stage [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338]. The reason was increasing delays and too many re-adjudications. Delays persist in another form, as the order remains open to scrutiny. Revision proceedings are possible despite the seemingly interim nature of the order [owing to another decision, Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551]. If the trial court dismissed the complaint and didn't issue summons, any challenge to that order must make the accused a party [Manharibhai Mujlibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517].

Levels of Satisfaction
Where summoning requires 'sufficient grounds', the discharge provisions are differently worded for the different trials. Section 227 says that the judge may discharge if there is "not sufficient ground for proceeding". Section 239 discharges where the Magistrate considers the "charge against the accused to be groundless", and Section 245 adopts this where no evidence is recorded. How do we differentiate summoning from charge? Moreover, how do we distinguish between all these tests for charge itself?

If we imagine summoning to be a stage where there is no argument, then the difference is perceptible. The former is a basic inquiry to determine whether or not one should proceed. The supporting material is not looked at, only the basic allegations in the complaint are considered. Later we have consideration of the record, and both sides being heard, making for a deeper inquiry. This also makes little of an interesting dilemma that arises when we place 204 with 227 - the court first finds sufficient grounds to proceed, only to later conclude there is not sufficient ground! But in our argumentative setup, differences become difficult to identify. When the Court hears arguments on summoning, it implicitly allows reliance on the record. Today, the materials are made exhibits during pre-summoning and considered to the extent of their admissibility and reliability. This problem is very real, and I think is visible in the three judge bench decision of Sunil Bharti Mittal [(2015) 4 SCC 609. See the observations in Pepsi Foods v. Special Judicial Magistrate, 1998 Cri LJ 1 as well]. The reasons behind this are obvious - summoning means the accused must appear in Court, and sometimes the stakes are just too high to make sure that doesn't happen,*

So what about framing charge? This is the first stage at which the accused gets to argue, and at that level there is undoubtedly a difference between this and every earlier stage. But now we have a different problem. The Complainant is, potentially, addressing the Court for the third time (and at least the second time). Although the accused is arguing, the rules of the game are already set and she cannot introduce any material now for the court's consideration [another decision, Debendra Nath Padhi v. State of Orissa, (2005) 1 SCC 568]. The accused might have some material that wipes out the allegations against him, but will not be able to rely upon it before the trial court, or even a court in revision. Only the High Court can make a difference, exercising its extraordinary jurisdiction under Section 482, Cr.P.C.

As for the levels of satisfaction required, a bare reading of the Code may lead one to think that getting discharge gets more difficult depending on how serious the offence is. But the Supreme Court disagreed and said that the different words mean nothing. All that framing charge requires is establishing a prima facie case [R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045]. What is a prima facie case? Again the Court does not help much while inserting standards for the existing text. A multiplicity of decisions express the same thing differently only to confuse further, and introduce other standards not faithful to the text - requiring grave suspicion, for instance [Niranjan Singh v. Jitendra Bhimraj, AIR 1990 SC 1962]. The text enables a court to consider the record but how far can that analysis go without it becoming a mini-trial? Hearings at this stage, and judgments, often end up relying upon decisions rendered on merits in appeals to advance an argument on fact. Is it proper, though, to rely upon such decisions for conclusions on facts, while considering the life of a case pre-trial? The routine way in which courts accept this suggests that fine lines are long gone.

Codification, and here I draw from the formation of the Indian Evidence Act, was an exercise where the legislature intended to divorce the law from the effects of judicial law-making. The text was to guide decision-making. A reading of the text as contained in the Cr.P.C. offers clear guidance. That guidance, or sound, appears to have been lost through the noise generated over decades of verbose dicta. Cutting through the noise to the sound is perhaps inconceivable today, but the exercise is eye-opening. I admit that the arguments in this post have an underlying fallacy - it carries an implicit faith in the judiciary. Perhaps the extra intervention by the parties remains necessary because judges are overburdened and require additional assistance. The problems created by the noise run deeper though, and I argue this has resulted in draining any clarity that might have existed in the exercise of judicial discretion through these stages of taking cognizance, summoning the accused, and framing charge.

* An interesting thought. Given that the decision in Adalat Prasad took away an accused's right to be heard at the stage of summoning, is it legal to rely upon decisions before Adalat Prasad to explain the degree of  satisfaction to determine whether sufficient grounds exist for framing charge? Would there not be a difference in the level to which a court requires to be satisfied when the accused is not there to present his case, in whatever manner and form? This would make reliance on Pepsi Foods illegal.


  1. Hi. When you say Niranjan Singh Karam Singh Punjabi's approved standard of "some suspicion but not grave suspicion" being grounds for discharge, is a standard not faithful to the text of the CrPC, do you say so simply because the text does not seem to reflect that interpretation, or because there is force in the argument that even "some suspicion" based on the record may be sufficient to frame charge?

    1. Hi. I said so because of the former. The text of the discharge provisions don't suggest any such test. If one was to assume this test is valid, then I would say grave suspicion is better than some suspicion as it helps prevent frivolous prosecution. But one man's bread is another's poison, so all these phrases are doomed by their inherent ambiguity.