The previous post in this series traced how the statutory text pertaining to the procedure for trial in Summons Cases developed from 1861 till the late 1960s. This historical arc was traced to identify how, at different points of time, Summons Cases had provisions for ending a case before the final stage of judgment. In other words, to examine whether the critical stage of discharge was present for these cases, in any shape or form.
Recap
The historical review confirmed that explicit provisions for discharge have never been part of the trial procedure for Summons Cases. But, the gradual development of statutory text definitely suggested that legislators intended to provide for a critical stage permitting that a Summons Case may be ended without having to go through the rigmarole of a full-length trial. This evolution was seen in how, after the 1861 Code, successive Codes permitted magistrates to undertake a more detailed inquiry before issuing process to an accused, calling upon her to answer the allegations in the complaint. Further, it was also seen through provisions that permitted magistrates to end the case before judgment after an accused had come to court, by dismissing complaints that were frivolous or vexatious.
However, by 1898, the power to dismiss frivolous cases after an accused had entered appearance was taken away, to be replaced by a power to end only those cases that were not instituted upon a complaint. One way to read this development would be to argue that since in complaint cases the law now provided for an inquiry before issuing process, it made sure that only genuine cases were going to trial. And since this setup was not available for the cases not instituted upon a complaint, it made sense to empower magistrates to end only those cases not instituted upon complaints after process had been issued to compel an accused to appear in court.
Judicial engagement with these provisions, especially after 1950, suggested that even though there was no exact substitute of the discharge stage in Summons Cases, magistrates were taking steps that had similar effect. Further, in some cases, accused persons were indeed appearing at the inquiry stage to assist the court, before they were formally summoned to appear and answer the allegations against them. This judicial engagement meant that even in the Summons Case, a critical stage was very much present, which permitted a court to terminate proceedings without having to conclude a full trial.
The 1973 Code
The 1973 Code [Cr.P.C.] retained most of the scheme as present in the erstwhile 1898 Code. This was by design, as made clear by Chapter 20 of the 41st Law Commission Report [The Chapter starts at page 12 of the PDF]. However, it did go ahead and refine some parts of the process. Some notable revisions were:
- Summons Cases were no longer those punishable up to six months. This limit had been extended to one year by an amending act of 1955, and was now extended to a maximum of two years imprisonment, with or without fine [Sections 2(w) & 2(x), Cr.P.C.]. While this is not discussed in the 41st Report, a reading of the 14th Report [Page 723 of the PDF] and the 37th Report [Page 44 of the PDF] suggest this was done to expand the number of offences triable as Summons Cases, and reduce the arbitrariness within the Code which permitted largely similar offences to be tried differently;
- The provision for guilty pleas was refined to exclude language which required that an accused answer "if he has any cause to show why he should not be convicted", as this language was found to be confusing by the Law Commission [Sections 251 & 252, Cr.P.C.];
- The provision for awarding compensation to accused persons for frivolous or vexatious cases, was shifted out of the procedure for Summons Cases into the procedure for Warrant Cases [Section 250, Cr.P.C.]. This resolved the incongruity, of this provision referring to "discharge" in the 1898 Code, even though a Summons Case did not involve the framing of charges.
A reading of the 41st Law Commission Report that led to the 1973 Code reveals no mention of our issue, i.e. whether or not magistrates have a power akin to discharge in Summons Cases. However, this is perhaps understandable. The Law Commission Report was published in September 1969, only a month after the decision in Municipal Corporation, Raipur, where the Supreme Court upheld orders of a magistrate discharging a person in a Summons Case instituted upon a complaint. Perhaps the Report was already finalised before this judgment, and thus, the issue couldn't be considered.
Judicial Engagement — The Journey till Adalat Prasad
A survey of reported decisions on online databases, of cases after the enactment of the Cr.P.C., 1973, did not lead me to a flood of citations cropping up where the issue of discharge was argued in the months after the new Code came into force. Rather, my most relevant search result was the decision in Raj Kumar Aggarwal [1987 (12) DRJ 62], which suggested that in Delhi at least, accused persons were appearing before magistrates to address legal arguments when the case was at the stage of framing notice under Section 251, Cr.P.C. [the High Court did not mention whether or not this was proper]. The lack of results in the databases could mean many things, of course. One such inference is that this is not because accused persons were happily facing trial in all Summons Cases, but rather that accused persons were engaging in attempts at pre-trial dismissal of cases at a stage other than framing of notice under Section 251, Cr.P.C. And what makes this inference credible is the Supreme Court's decision in K.M Mathew [AIR 1992 SC 2206].
K.M. Mathew involved a Summons Case where the Petitioner — the Chief Editor of Malayala Manorma — challenged proceedings in a defamation case instituted upon a complaint, after having been summoned to face trial. All accused persons appeared before the court after summons, and convinced the magistrate to drop proceedings, having argued that no case was made out. But the High Court overturned this order. It is worthwhile to extract the Supreme Court's discussion on the same:
The High Court did not examine whether the complainant has or has not made out a case against the Chief Editor. The High Court rested its conclusion solely on the procedural requirements of the trial of a summons-case. It has been pointed out that in any private complaint triable as a summons-case the Magistrate, after taking cognizance of the offence and issuing process, has no jurisdiction to drop proceedings against the accused. He is bound to proceed under Chapter XX of the Code of Criminal Procedure when the accused enters appearance. He will have to state the particulars of the offence and record the plea of the accused. When the accused pleads not guilty, he will have to hear the prosecution and take all such evidence produced in support of the prosecution. Then he will have to hear the accused and take all such evidence produced in support of the defence. The High Court went on to state that the question of conviction or acquittal will arise only after recording evidence of the parties. There is no question of discharging the accused at an intermediate stage. There is no provision in the Code for dropping the proceedings against any accused. So stating the High Court has directed the Magistrate to proceed with the trial of all the accused. [Emphasis supplied]
This approach did not find favour with the Supreme Court at all, for it considered this was "too technical". Instead, the Supreme Court restored the original order setting aside the prosecution, and justified this decision as follows:
If one reads carefully the provisions relating to trial of summons-cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code indicates the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. 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 file proceedings if the complaint on the very face of it does not disclose any offence against the accused. [Emphasis supplied]
K.M Mathew suggested that since the need for trial only arose if there was an allegation that the accused had committed the crime, where no such allegation was found to be made on a complaint, then a court was without jurisdiction to continue on its basis. The decision also offered a route to give effect to this reasoning: It told courts to treat the order issuing process under Section 204, Cr.P.C. as an interim order, which could be recalled if an accused person was able to satisfy the court that no case was made out. Thus, a critical stage of discharge was acknowledged as existing for a Summons Case. But this was not located exclusively at the point of framing notice under Section 251 Cr.P.C. alone. While an accused person would logically make arguments when the case had reached this stage in its life, courts were not to pass an order on this stage, and instead go ahead and revisit the earlier stage at which the court had decided to summon an accused upon being satisfied that there was sufficient grounds to proceed on a complaint.
It will not be unfair to say that even though the outcome might have been a fair one, the path adopted by K.M. Mathew to reach this outcome was convoluted to say the least. Unwittingly, this strained approach also opened doors for litigants to effect even more drastic changes to how complaint cases would proceed through the system by creating an all new critical stage. After all, the Court in K.M. Mathew did not limit its findings on Section 204, Cr.P.C. being an interim order as only applying to Summons Cases. Thus, it meant that accused persons could go ahead and argue for a recall of process even in Warrant Cases or Sessions Cases instituted upon complaints, in addition to already existing stages of judicial consideration of the complaint, and of framing charge. Moreover, it also encouraged courts to simply invite an accused person to argue at the stage of issuing process, to save time.
The K.M. Mathew logic was indeed put to use in a Warrant Case in Adalat Prasad [(2004) 7 SCC 338], and successfully so to convince a magistrate to recall summons in a cheating case. When the matter reached the Supreme Court, it was posted before a bench of Three Justices, specifically to consider the correctness of the view taken in K.M. Mathew. The Court unanimously held that K.M. Mathew was wrong. But since there are two parts to K.M. Mathew — the means and the ends — it is important to note what exactly did Adalat Prasad declare was wrong. This was the means adopted by K.M. Mathew to enable magistrates to terminate Summons Cases. The Three Justices held that there was no basis for recalling the process issued by a court, which happens after due consideration even if it was an interim order, and the only basis for challenging this order was by moving the High Court under Section 482, Cr.P.C. Critically, there was no discussion about the idea of needing a discharge-like critical stage for Summons Cases, and whether or not this could be implemented through Section 251, Cr.P.C.
Judicial Engagement — The Fifteen Years Since Adalat Prasad
Considering it was dealing with a Warrant Case, and that it did not mention anything about the idea of using Section 251, Cr.P.C. as a critical stage for terminating Summons Case prior to judgment, a fair point could be made for limiting the scope of Adalat Prasad. This attempt was made before the Supreme Court in Subramanium Sethuraman [(2004) 13 SCC 324], a prosecution under Section 138 of the Negotiable Instruments Act, 1881 ["NI Act"]. Crucially, as per the reported decision, the appellant's plea of not guilty had already been recorded and a request for discharge was made thereafter. Another Three Justices' Bench of the Supreme Court found no reason to disagree with the conclusions in Adalat Prasad here, and reiterated the position that the only remedy for an aggrieved accused person was to move the High Court seeking that the summoning order be quashed under Section 482, Cr.P.C.
With due respect, the refusal in Sethuraman to limit Adalat Prasad to its facts was improper. And, in any event, the Court in Sethuraman could have simply decided the case on the strength of the fact, that the plea of not guilty had already been recorded and thus the accused had elected to stand trial. In any case, even though the Supreme Court did not draw these distinctions, the High Courts were much more vigilant in their reading of the law and restricted Adalat Prasad to its facts. Thus, the Kerala High Court in Kamala Rajaram [2006 Cri LJ 1447] and the Delhi High Court in SK Bhalla [180 (2011) DLT 219] both read Adalat Prasad as not being authority on the scope of Section 251, Cr.P.C., and held that magistrates were well entitled to discharge accused persons in Summons Cases under this provision. Importantly, though, both these cases were not instituted upon a complaint, and thus one could argue that the power to end such cases already existed under Section 258, Cr.P.C. Indeed, in Kamala Rajaram, Justice Basant specifically left the question open of whether or not Section 251, Cr.P.C. conferred powers of discharge that also covered cases instituted upon complaints.
On our specific point about discharge in Summons Cases instituted upon complaints, one finds that the Karnataka High Court in Zulekha v. Mahadev Bharmaji [Crl. Petition No. 11193/2012, decided on 26.09.2012] specifically held that a prosecution under Section 138 of the NI Act did not entail any discharge. But a bench of the Patna High Court in Awdesh Singh [Crl. Misc. No. 9432/2012 decided on 14.05.2012] referred to its own Division Bench directing that Section 251, Cr.P.C. also required the court to confirm whether an offence was made out or not. It did not help that the Supreme Court in Bhushan Kumar [(2012) 5 SCC 424] went ahead and copied the language of SK Bhalla, even though it was dealing with a Warrant Case where Section 251, Cr.P.C. was irrelevant.
One of the only reasoned decisions relevant for this discussion came as late as 2014, when the Delhi High Court discussed the issue in Arvind Kejriwal & Ors. v. Amit Sibal [Crl. MC No. 5245/2013, decided on 16.01.2014]. Here, a defamation case was instituted upon a complaint, and the Petitioner had challenged a summoning order. The Court directed that rather than approach the High Court for setting aside the summoning order (the approach advocated for in Adalat Prasad and Sethuraman), the Petitioner should urge these pleas before the magistrate at the stage of framing notice under Section 251, Cr.P.C. The logic for the Court was simple: If this course was not adopted in Summons Cases, then "the whole proceedings at the stage of framing of notice u/s 251 CrPC shall be reduced to a mere formality and the accused would be compelled to approach the High Court to challenge the notice which would lead to multiplicity of litigation." Besides this decision in Arvind Kejriwal, if one peruses orders of different benches of the Delhi High Court around this time on this issue, one finds many other judges also encouraging parties to raise these pleas before the trial court rather than file a petition under Section 482, Cr.P.C. before the High Court. Even in a case under Section 138 of the NI Act, which was at the heart of Sethuraman [For instance, see, Yashveer Anand v. RL Anand (Crl MC 4213/2014, decided on 11.05.2015)].
Conclusion — Setting the Stage for Crl. Reference No. 4 of 2019
The Delhi High Court's order in Arvind Kejriwal was set aside by the Supreme Court by way of an order passed by the consent of both parties [Order dated 17.11.2016 in SLP (Crl) 1306/2014]. In the aftermath of this peculiar order of the Supreme Court, the law had continued to remain in a flux [See here, for a shorter discussion on the judicial engagement up till this point]. In spite of this, different benches of the Delhi High Court have continued to remand petitions under Section 482, Cr.P.C. that challenge summoning orders, urging petitioners to argue their cases at the stage of framing notice. However, none of these orders affirmatively discussed whether or not a right to argue a case at the framing of notice stage existed in the first place.
The next post returns to where this series started: Criminal Reference No. 4 of 2019, where the Delhi High Court has been invited to clarify the legal position. Besides considering this development of statutory text, and the concerns expressed through judicial decisions, the post will also consider the data made available on Summons Cases through NCRB reports in a bid to offer realistic and practical solutions to a pressing concern in the criminal process.
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