Section 251 CrPC and Discharge in Summons Cases: Part IV

[This is the fourth and final post in a series. The earlier posts can be accessed here, here, and here.]

The issue being discussed in this series has been given a sense of urgency, because a trial court in Delhi was pressed to make a reference under Section 305 of the Criminal Procedure Code 1973 [Cr.P.C.] to the Delhi High Court, raising the following questions which I've paraphrased below from the High Court's order: 

Q.1 Can a court discharge the accused after appearance in in a summons triable case based upon a complaint in general, and in a case under Section 138 NI Act in particular? 

Q.2 If so, under which Section of Cr.P.C. does such a power lie? 

Q.3 Further, at what stage can an application for discharge be entertained i.e. before framing of notice under Section 251 Cr.P.C., or before / at the time of framing of notice, or even after the framing of notice? 

Q.4 Finally, if the answer to Question 1 is yes, what shall be the scope of such a power of discharge? Will it be similar to discharge proceedings in Sessions / Warrant Cases? Can documents produced by the accused be considered at this stage? 

Q.5 On the other hand, if the answer to Question 1 is in the negative, does the accused have no remedy at the trial court, which must begin a trial after process has been issued and accused has been summoned under Section 204 Cr.P.C.? 

Summing Up the Legal Position

The previous three posts have sought to sum up the legal position on this issue of whether Summons Cases — prosecutions for offences punishable with up to two years in prison, as defined under the Cr.P.C. — can be ended prior to the stage of an acquittal / conviction by a court if the case appears to be groundless. This review could be seen as supporting the following broad conclusions:

• There is clear statutory basis to end proceedings in Summons Cases instituted upon complaints by private persons if they are baseless, before issuing process to an accused to come to court and answer the allegations [Section 203, Cr.P.C.].
• There is clear statutory basis to end proceedings in Summons Cases instituted otherwise than on a complaint, even after an accused person has been called to court. This may or may not be because the prosecution is baseless — something we can't know because the statute does not require a court to give reasons [Section 258, Cr.P.C.].
• The Supreme Court has expressly held that in Summons Cases instituted upon complaints, the trial court cannot recall the process issued to an accused, in the event of being convinced by the accused that the proceedings were baseless [Adalat Prasad, (2004) 7 SCC 338]. 
• Further, in Subramanian Sethuraman [(2004) 3 SCC 324], the Supreme Court refused to permit a discharge in a case where the request was made after notice was framed and the accused had entered a plea of not guilty.
• At the same time, the Supreme Court has not expressly considered whether a trial court could end proceedings under Section 251, Cr.P.C., by permitting the accused to address arguments on whether the proceedings are baseless. While the opportunity arose to consider the issue in Amit Sibal v. Arvind Kejriwal, that petition was ultimately decided by consent of both parties.  

Thus, the legal position as I understood it helps to partially answer some of these questions. But the materials that I examined left the essential question unanswered, i.e., whether or not a trial court has the power to end Summons Cases instituted upon complaints without conducting a full trial, even after the court has considered the Complaint for purposes of issuing process to an accused and calling her to court. 

Making the Case for Permitting Discharge in Summons Cases

But must the absence of clear statutory authority and / or judicial precedent lead to a conclusion that trial courts cannot pass an order of discharge in Summons Cases? If we consider this as purely being a point of law, then I think that the weight of authority in favour of granting trial courts the power to end Summons Cases instituted upon Complaints by discharging an accused person is quite weak. 

Strictly Legal Approach 

It is no accident that the Cr.P.C. does not contain any express provisions for discharge in Summons Cases instituted upon complaints. After all, the Cr.P.C. is designed to achieve a balance between two interests — expeditious disposal of cases, and ensuring that persons are not unnecessarily dragged to face the punishing procedure of a criminal case. 

Thus, while this sense of balance led Parliament to create multiple critical stages before judgment in Sessions Cases and Warrant Cases, where prosecutions could be terminated if found groundless, the same was not chosen for Summons Cases. The 14th and the 41st Law Commission Reports had also earmarked the procedure in Summons Cases for its ability to get quick verdicts, mainly because this procedure was not designed to have all the trappings of a full trial. This promise of speedy trials is what propelled Parliament to enhance the jurisdiction of Summons Cases from only catering to offences punishable with imprisonment for up to six months, to the position today where prosecutions for offences punishable with up to two years in prison are tried as Summons Cases. By creating an additional critical stage, we would end up dragging Summons Cases on for too long and slowly erode the very purpose behind having procedural distinctions between a Summons Case and a Warrant Case which led to expanding the ambit of the former class of cases.

Criminal Process Approach

Unfortunately, the criminal process does not always work as it is imagined in statutes or in opinions of the Supreme Court. The same goes for the gap between the ideals guiding the Cr.P.C., and how far these are realised on the ground. 

Thus, while the Cr.P.C. was modified in 1973 to help speed up the trials of various cases, NCRB data shows that delays have only gotten worse in the decades since 1973. Furthermore, very often the discretion vested in trial courts to weed out groundless cases at different critical stages is not properly exercised. This is often compounded by delays plaguing the system, requiring superhuman capacity of judges to separate the grain from the chaff. This ultimately forces aggrieved persons to move an appellate court in the judicial ladder for seeking justice by way of immediate remedy against what is perceived as an unfair prosecution that will take years to resolve. All of which, in turn, clogs appellate courts by burdening them with such matters and taking away time to finally decide pending appeals. 

It is for these reasons that incorporating a critical stage akin to discharge for Summons Cases, even if they are instituted upon a complaint, becomes necessary to help maintain that balance between the ideas of efficiency and justice in the criminal process. The same logic is what propelled the Supreme Court to gradually enhance the powers of magistrates during criminal investigations, first in Sakiri Vasu [(2008) 2 SCC 409] and more recently in Vinubhai [Crl. Appeal Nos. 478-479 of 2017, decided on 16.10.2019]. 

Considering the Reference Issues

Once we agree that having a stage akin to discharge is necessary, the answers to the remaining issues are easier. The decision in Adalat Prasad confirms that a court cannot recall a summons, and the decision in Subramanian Sethuraman similarly tells us that there is no going back on a trial once the accused has entered a plea. Which leaves a small window open for a court to consider a discharge plea — after an accused appears in court, but before the notice is framed under Section 251, Cr.P.C. 

The power to end cases must be implied as existing in the same provision, by empowering a court to not frame notice, if no basis for accusations is made out. And the scope of these discharge hearings must be more progressive than those under Section 239, Cr.P.C. for Warrant Cases. Thus, while an accused will not have carte blanche to bring in materials, there must be scope for a court to consider materials of sterling quality, the provenance of which cannot be doubted. For instance, a government document like a Form 32, confirming that an accused person arraigned in a cheque bouncing case for being the director of a company, was in fact not a director of the concerned company at the relevant point in time.

Conclusion

Criminal trials are long processes that involve serious costs for the litigants and the courts, in terms of time and money. The lengthy nature of criminal trials can often be the tradeoff society must give to prevent wrongful convictions by allowing courts to take their time. The same breath carries the idea that since not all cases will be merit-worthy, perhaps a trial could be avoided to decide patently bogus cases. Allowing courts this power goes a long to way to ensure that the process does not become the punishment for innocent persons.

In Summons Cases instituted upon complaints, statutory provisions today expressly require courts to consider whether the case has sufficient basis to proceed before calling an accused to court. The sheer number of Summons Cases and their pendency rate, when compared with the rate of conviction, suggests that courts are perhaps not able to perform the task of weeding out the bad cases from the good in the most optimal way possible. 

This is hardly surprising given the burden that every court must shoulder. So, one wonders, given that a court cannot be expected today to provide each case with the time it requires, would it not help the process if the court can secure the benefit of a proper adversarial hearing to help make its decision? Would it not help the court carry out its judicial function of securing justice without sacrificing all concerns of efficiency, if two parties committed to their position make their case and guide the court to consider all relevant facets for making a decision? It certainly would, and therefore, it is necessary that the criminal process legitimises such proceedings in Summons Cases instituted upon complaints. 

Of course, there would be no need for lengthy and dense essays on the subject if the statute could just be drafted with more clarity. Considering how these gaps in the statutory framework have been the topic of comment in judicial decisions at least since the 1980s, it cannot be said that Parliament has not had enough time to consider the issue. It is inconceivable that Parliament has chosen to stand by and not iron out the creases even after the discussions in K.M. Mathew and Adalat Prasad. Even now, any solution that the Delhi High Court offers by answering the Reference, would only help to solve these issues in one part of the vast Indian legal system. It will not, and cannot, supplant the persisting need for legislative consideration of the problem.