Very recently, the Delhi High Court received a reference under Section 395 of the Criminal Procedure Code, 1973 [Cr.P.C.] to clarity certain issues of law. The matter has been registered as Crl. Reference No. 4 of 2019. The issues presented to the High Court are detailed in the order of 11.10.2019, and are extracted below:
Q.1 Does the Court of a Magistrate have the power to discharge the accused upon his appearance in Court in a summons triable case based upon a complaint in general, and in a case under Section 138 NI Act in particular, once cognizance has been taken and process issued under Section 204 Cr.P.C.?
Q.2 If the answer to Question 1 is in the affirmative, under which Section of Cr.P.C. does such a power lie?
Q.3 Further, if the answer to Question 1 is in the affirmative, at what stage can such an application for discharge be entertained i.e. before the framing of notice of accusation under Section 251 Cr.P.C., or before / at the time of framing of notice of accusation under Section 251 Cr.P.C. or before / at the time/even after the framing of notice of accusation under Section 251 Cr.P.C.?
Q.4 Finally, if the answer to Question 1 is in the affirmative, what shall be the scope of such a power of discharge and what will be the scale of standard of proof on which the accused will be required to make his contention acceptable – similar / stricter / lesser vis-a-vis what is so contemplated under Sections 227 / 239 / 245 Cr.P.C.? Moreover, can documents produced by the accused be allowed to be taken into consideration at that stage for deciding such an application?
Q.5 On the other hand, if the answer to Question 1 is in the negative, will it be correct to say that the accused shall not have any remedy vis-a-vis the magisterial court which will only conduct a proper trial once process has been issued and accused has been summoned?
The total absence of any mention of this case in the news media does not reflect just how important it is to the administration of the criminal process, in Delhi and also for the rest of India. Over the course of the next few posts, the aim will be to try and engage with the issues at hand in Crl. Reference No. 4 of 2019 — Whether a magistrate can end proceedings in a Summons Case without going through a full trial, and if so, how — but also to offer a critique of India's Criminal Procedure Code and its policy of incrementalism while handling a case. The critique is reserved for the end, after we have first spent some time examining the law. And the first step towards that is to clear some basics.
Basics of the Criminal Process
If you are someone fluent with the criminal process, then I suggest moving ahead to the next section. If not, then this summary might be helpful to get a grip on the issues at hand.
The criminal process can be set in motion either by police investigating into an alleged offence, or an aggrieved person approaching a court with a complaint alleging that an offence took place. Courts might be involved with the case during the investigative stage, but that doesn't concern us too much here. Rather, our focus is to consider how courts judicially engage with a criminal case. One way to think about this judicial engagement is to imagine it as a series of critical stages, where at every such stage the judge is asked to decide if the case should proceed further or not. These stages are (i) Taking cognizance [Section 190 Cr.P.C.], (ii) Issuing Summons / Warrants to the Accused [Sections 203, 204 Cr.P.C.], (iii) Framing the Charge [Sections 227, 228 Cr.P.C.; Sections 239, 240 Cr.P.C.; Sections 245, 246 Cr.P.C.], and (iv) Acquittal / Conviction [Sections 232, 235 Cr.P.C.; Section 248 Cr.P.C.; Section 255 Cr.P.C.; Section 264 Cr.P.C.].
This broad schematic applies to all kinds of criminal cases. But as we dig deeper, we find that the law prescribes different processes for different kinds of offences. The Cr.P.C. classifies different cases as (i) Sessions triable cases [Chapter 18], (ii) Warrant Cases [Chapter 19], (iii) Summons Cases [Chapter 20], and (iv) Summary Cases [Chapter 21]. Usually, serious offences, carrying life imprisonment or the death sentence, are triable as Sessions Cases, and trivial offences are taken up through Summary Trials. This nod to gravity is also reflected in the definition of Warrant Cases and Summons Cases: the latter only pertains to prosecution of offences punishable with imprisonment of up to two years [Section 2(w), (y) Cr.P.C.].
A closer look at these procedures suggests that the idea of critical stages is designed to achieve the twin goals of preventing innocent persons from suffering the criminal process, and also achieving a speedy resolution of cases. Thus, while none of the procedures statutorily allow arguments from parties at the stages of (i) taking cognizance, and (ii) summoning an accused to face trial, we find that in both Sessions Cases and Warrant Cases, the statutory provisions invite arguments before framing charge. However, such express provisions are absent in the procedures for both Summons Cases and Summary Trials.
The Issue and the Statutory Provisions
To appreciate things better, a few provisions from the procedure for Summons Cases, as present in Chapter 20 of the Cr.P.C. 1973, are extracted below:
Section 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.
Section 258. Power to Stop Proceedings in Certain Cases. — In any summons-case instituted otherwise than upon a complaint, a Magistrate of the First Class ... may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.
Section 259. Power of Court to Convert Summons-Case into Warrant-Cases. — When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant-cases and may re-call any witnesses who may have been examined.
Now, does the absence of any clear provision in the procedure for Summons Cases similar to those prescribing arguments on the point of charge, necessarily mean that this critical stage is excluded altogether here? Having this critical stage would help in securing one of the two key interests that we had flagged above, i.e. protecting individuals from unnecessarily having to suffer the rigours of the criminal process by weeding out bad cases. But, since it is fair to assume that many cases will not be unnecessary prosecutions, adding this stage would bring a real cost in terms of the time required to finish a Summons case. Essentially, in Crl. Reference No. 4 of 2019, the High Court has been called upon to decide what is the best way to strike a balance between these seemingly competing interests.
Discussing these issues will take much more groundwork, though, and the next post will inch further towards this task by tracing the statutory history of these provisions on Summons Cases. It will also look at how courts considered the issue of ending proceedings in Summons Cases before the stage of acquittal / conviction, in the time before the 1973 Cr.P.C. was passed.
Hi can I get the case number?
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