Untangling the Many Threads of the Sarla Gupta Judgment

A Three Justices' Bench of the Supreme Court rendered its judgment in Sarla Gupta & Anr. v. Directorate of Enforcement [2025 INSC 645 (Sarla Gupta)]. The Court was hearing different appeals together, which presented somewhat similar issues that could loosely be grouped under the category of obligations on prosecuting agencies to disclose the material gathered during an investigation to the accused, in context of cases under the Prevention of Money Laundering Act 2002 ['PMLA']. 

While the judgment itself does not categorise issues, I think it is helpful if we are to try and make sense of its conclusions [summarised at Paragraph 55]. An attempt at the issues is as follows:

1. Whether the accused has a right of disclosure to seek copies of documents seized during searches done under the PMLA by the Enforcement Directorate? 

1A. If so, at what stage can the right be enforced and the documents disclosed / shared with the accused?

2. Whether the accused has a right of disclosure to seek copies of the documents filed by the prosecuting agency in support of its complaint under the PMLA ('relied upon documents')?

2A. If so, at what stage can the right be enforced and the relied upon documents disclosed / shared with the accused?

3. Whether the accused has a right of disclosure to seek copies of the documents seized but not placed in support of its complaint under PMLA by the prosecuting agency ('un-relied upon documents')?

3A. If so, at what stage can the right be enforced and the un-relied upon documents disclosed / shared with the accused?

Issues 1 and 1A

The first set of issues — 1 and 1A — were the easiest to answer for the Court. The PMLA itself provides that in event of a search and seizure, a list of seized items must be supplied to the person concerned, and the person can apply to get a copy of the documents when the authority concerned has decided to retain them [Sections 17 to 21]. So, the answer to issue 1 was 'yes', and the answer to 1A was that the person can apply to get copies after a decision is made to retain them for longer than thirty days.

Issues 2 and 2A

The next set of issues — 2 and 2A — are slightly more complicated because of how the PMLA and the general procedural law under the Criminal Procedure Code 1973 ['Cr.P.C.'] — now  the Bharatiya Nagarik Suraksha Sanhita 2023 ['BNSS'] — operate. The Cr.P.C. applies to PMLA prosecutions, but where there is a conflict between the two laws, the PMLA governs. In this realm of supplying complaints etc., there is no specific clause within the PMLA, taking us back to the Cr.P.C. [clarified within Sarla Gupta as well]. 

Indian criminal law envisages prosecutions can start either by a state agency investigating facts and bringing a case, or by an aggrieved party filing a case basis material it has in its possession to prove wrongdoing. Ordinarily, the state agency tasked with investigating cases is the police, and police files what is called a 'police report'. The disclosure rules for material filed with a police report are fairly clear: material which the agency is relying upon to support its case, has to be supplied [Sections 173(5), 207]. 

When it comes to a 'complaint', the Cr.P.C. stipulates that if a court finds that a person ought to face trial upon the allegations in a complaint, it must ensure a copy of the complaint is given to an accused. But, there is no corresponding right of disclosure availing to an accused here, as it is with cases launched pursuant to a police report. The limited exception, textually speaking, is a requirement for a magistrate's court to ensure that materials filed with a complaint are furnished to the accused in cases where the prosecution is one which must be conducted before a sessions court [Sections 204, 208]. I say textually, because courts have read in a similar disclosure requirement in cases launched on complaints for some time now.

This background is necessary to understand issues 2 and 2A. Even though prosecutions under PMLA are lodged after investigations by a state agency — the Enforcement Directorate — the document launching the prosecution is styled as a 'complaint' and not a police report [Section 45 PMLA]. The Cr.P.C., as we have seen, confers clear rights in cases launched on a police report, but is not so strongly worded when it comes to complaints. What this reflects is that, unlike issues 1 and 1A, here the Court in Sarla Gupta had some options on how to proceed. 

How has it answered the issues framed above? On issue 2, the Court has taken two steps. First, it clarifies that when a person is brought to court to face trial in a PMLA case, they must be provided with not just the complaint but also the materials being relied upon in support thereof [Paragraph 25]. This was held necessary owing to the general Cr.P.C. rule on supplying copies of complaints to accused persons. In other words, the Court recognised an obligation on part of the agency to supply a copy of the material it proposes to rely upon in support of its case. 

What about the right of the accused within the statute to demand for such relied upon material? Here, recall, that the rights-language is far clearer for police reports than for complaints. But since the PMLA involves no assignment of a case from a magistrate to a sessions court, the Court in Sarla Gupta noted that the Cr.P.C. complaints' clause on disclosure would not strictly apply to the PMLA [Paragraph 30]. 

It could have deemed the 'complaint' filed by the Enforcement Directorate as a 'police report' or adopted some other means to hold that the rules of Section 207 Cr.P.C. applied to PMLA complaints. If it would have done so, the Court would have thrown open the doors to topple the investigative scheme of the PMLA, because it hinges upon treating these complaints by state agencies as not being akin to police reports. There are many investigative powers that flow to the Enforcement Directorate (and other agencies) from simply not being labelled 'police'. Any ruling that dents this scheme would be extremely troubling for central investigative agencies which file 'complaints'. 

The Court was certainly aware of this position, which had been restated a few months ago by a bench comprising the Chief Justice. As a result, rather than apply either Section 207 or Section 208 by twisting their language, the Supreme Court in Sarla Gupta conveniently holds that the 'principles' of both clauses apply to the PMLA context, and all relied upon materials should be supplied [Paragraph 30]. 

Thus, the answer to issue 2 is a 'yes', but it is more an obligation on part of the agency and court rather than an issue that the accused must chase by enforcing their rights. There is a right too, just to be clear, and issue 2A stands answered by telling us that this right can be enforced from the time that an accused is first summoned to court to face a trial under the PMLA. If any deficiency exists in terms of material that the agency relied upon, the accused can seek copies, and arguments on the aspect of charge should not start till this supply of material is complete.

Issues 3 and 3A

Which then brings us to the last issues of the lot — issue 3 and 3A. That an accused has a right to seek the copy of un-relied upon documents has been an unequivocally clear position now for quite some time, and the Court merely reiterated precedent to stress upon this aspect [Paragraphs 31-33]. Issue 3A is where the controversy existed — at what stage would this right to get un-relied upon documents trigger? This section of the judgment is couched with qualifiers and it is safer to first set out the general position that the Court has identified, before delving into the devilish details:

• There is a clear right to be supplied with a list of the un-relied upon material, and this must be given along with the entire copy of the PMLA complaint i.e. prior to arguments on charge [Paragraph 41].
• There is no clear right to seek copies of un-relied upon material at the time of arguments on charge [Paragraphs 33-41].
• There is a clear right to seek copies of un-relied upon material during defence evidence by moving an appropriate application for summoning such records [Paragraphs 42-51].
• There is a clear right to seek copies of un-relied upon material during bail hearings by moving an appropriate application, and the extent of the right depends upon the stage at which the investigation is [Paragraphs 52-54].

Out of these four conclusions, the first brooks no exception nor generates any controversy. The Supreme Court has endorsed this approach of directing the agency to prepare a list of un-relied upon materials that must be supplied as part of a set of guidelines for better functioning of trials issued in 2021. Sarla Gupta has extended that logic to the PMLA as well. 

The 2021 judgment did not specifically say anything about the stage at which the accused can seek copies of the un-relied materials cited by an agency. This aspect was touched upon in two subsequent decisions — Manoj [2022 INSC 606] and Ponnusamy [2022 INSC 1177]. Out of the two, Manoj did not specifically mention a stage either and generally observed that disclosure of the un-relied upon materials was necessary to secure a fair trial. It was only Ponnusamy which specifically dealt with this exact issue — the two opinions from the bench diverged on precisely this aspect of a right to un-relied upon documents and the stage at which it would trigger. 

Curiously though, Ponnusamy is not mentioned anywhere within Sarla Gupta. This is a problem because it would seem that Sarla Gupta has diverged from the view taken in Ponnusamy. Both Ponnusamy and Sarla Gupta hold that there is no right to seek copies of un-relied upon material at the stage of charge. But where Ponnusamy held that the right would trigger at trial and that a court could consider the relevance of the material sought to be summoned while considering the request, Sarla Gupta has specifically linked the right to defence evidence, not trial generally, and has limited the scope of discretion vesting with a judge to refuse a request for summoning the materials (permitting it only on grounds of delay). 

It is unclear why Sarla Gupta specifically linked the prospect of seeking un-relied upon materials to defence evidence, and not adopted the view taken in Ponnusamy. The Supreme Court's logic in stressing upon the existence of a right for accused persons is that there is a reverse burden operating after charge is framed under the PMLA. In that case, why specifically link the right to only defence evidence? No reasons are offered to explain why an accused should remain quiet throughout prosecution evidence when having this material would enable a more effective cross-examination of witnesses at the relevant stage. Instead, the Court proposes a tortuous route, suggesting that an accused after applying for this material and obtaining it can then apply for recalling of witnesses to cross-examine them on this material. 

This course of action does not commend itself on logical grounds as mentioned above, nor does it commend itself on grounds of efficiency, economy, or strategy. Accused persons will have to adopt an artificial posture and work out two potential cross-examinations of the same witness. If a second cross-examination yields new incriminatory evidence from the witness, that would necessitate a trial court to put these statements to an accused and record a fresh statement under Section 313 Cr.P.C. These are only surface-level problems, mind you, and I am sure that more emerge the moment that lawyers and courts begin to try and apply the rules of Sarla Gupta to the facts of actual cases.    

We are left with the second and fourth conclusions then — no general right to copies of un-relied material at charge, but a right to apply for such material during bail. Although Ponnusamy is not cited anywhere within Sarla Gupta, it has followed the holding in Ponnusamy that there is no right to seek un-relied materials at the stage of charge by moving applications under Section 91 Cr.P.C. It also relies upon another earlier Three Justices' Bench decision in this context, Debendra Nath Padhi, which held that the hearing at charge must be confined to the record of the case, and this record consisted only of material that the prosecution brought forth. But while doing so Sarla Gupta has not slammed the door shut upon potential requests for un-relied upon material at this stage since it qualifies its position by repeatedly stating that 'ordinarily' an accused would not have the right to apply under Section before trial for copies of such materials [Paragraphs 33, 37, 49]. In the right facts, then, one may still have a chance to get un-relied materials prior to framing charge.

What complicates matters a great deal further is the fourth conclusion — that an accused has a right to apply for un-relied upon material during bail hearings. In this section of the judgment, the Court has moved entirely free of any past precedent and taken a view that fairness demands that the accused must have this right because bail under the PMLA places an onus upon the accused to show that no offence is made out. To ensure a fair opportunity for an accused to discharge this burden, the Court felt it was necessary to have a right to seek un-relied upon material which the agency might have.

This section greatly complicates the task of making sense of Sarla Gupta. Firstly, because it further undermines the already logically precarious position to allow a right to apply for un-relied upon material at the stage of defence evidence alone, since the reverse burden operates at the time the trial begins. Secondly, because if the reverse burden on an accused is such a critical hit to fairness, then why should an accused have to suffer framing charge on the basis of potentially unfair prosecutorial conduct and then get a valuable right to expose this during trial? Thirdly, and finally, because ordinarily bail will be a stage that comes before charge is framed, and if a court ends up viewing the un-relied material as being relevant to deciding the bail application it will undoubtedly end up thinking it is relevant to decide the point of charge as well. This creates a weird and inconsistent position where persons in custody may have greater opportunities to fair hearings at the stage of charge than those who are never arrested during investigation.

Sarla Gupta cites many past decisions of the Supreme Court on this issue of disclosing un-relied upon materials by prosecuting agencies. A unifying theme through all those past decisions was clearsighted acknowledgment that there was a need for a right of disclosure to mitigate against the very real possibility of unfair suppression by prosecuting agencies of material gathered in an investigation but of an exculpatory nature. But in Sarla Gupta the issue of suppression is nothing but an elephant in the room. Throughout its 86 pages, not once does Sarla Gupta mention this aspect of possible suppression and the unfair prejudice it causes, even though it is clearly the driving force behind the Court conferring a right to un-relied upon material at the bail stage. A full and frontal acknowledgment of this issue being one of the guiding reasons to confer a right of disclosure may well have yielded different configurations of how the right operates.

Conclusion

To conclude, then, One is left feeling that Sarla Gupta is yet another one of those judgments in which a bench of the Supreme Court is torn between adopting fairness as a yardstick for reading rules of criminal procedure, but is unable to adopt this yardstick consistently when faced with the ghost past judicial precedent that has taken a restrictive and unfairly textual view of the statute. Even so, the judgment is bound to be immensely relevant not just for PMLA cases, but criminal trials generally, and criminal trials with reverse onus clauses more specifically. One cannot help escape the feeling that this is not the end of the matter, but only the start of new complexities in the law on disclosure obligations and rights of accused persons. 

Guest Post: A 'ubiquitous power disparity' - on the discharge order of Sharjeel Imam, Asif Iqbal Tanha & ors.

(This is a guest post by Gautam Bhatia, cross posted with permission from the ICLP Blog)

On the ICLP blog, we have discussed in some detail various judicial proceedings that have arisen out of the events of late 2019 and early 2020, commonly referred to as the “Delhi riots cases.” Most of these cases have involved bail applications under the Unlawful Activities Prevention Act [“UAPA”]. The judiciary’s conflicting orders in these cases (sometimes handed down by the same judge) have reflected a deeper tension in how our courts engage with the UAPA. 

There is a pro-liberty strain of judgments that subjects the State’s case to a degree of scrutiny, and refuses to fill in the gaps in the chargesheet through inferences and assumptions (see the bail order in Asif Iqbal Tanha); but there is also a pro-executive strain that does the exact opposite (see the bail orders in Safoora Zargar, Umar Khalid (I) and Umar Khalid (II). 

In this context, the discharge order passed by Additional Sessions Judge Arul Varma, on 4th February 2023, in another of the Delhi riots cases, is an important addition to the pro-liberty strand. At the outset, we must note two features which distinguish this case from the bail cases discussed above. First, the case did not involve UAPA offences, and was limited (for the most part) to more benign offences under the Indian Penal Code. And secondly, the case was not about bail, but discharge. 

This very fact, however, is what makes the order significant: when a judge is deciding whether or not to frame charges against an accused, they must decide whether “there are sufficient grounds to proceed,” on the basis of the police chargesheet. Readers will recognise that this is a standard somewhat (although not entirely) similar to the prima facie standard under bail proceedings under the UAPA. Therefore, even if the case itself did not involve UAPA offences, Arul Varma J.’s reasoning is nonetheless significant and instructive in thinking about those cases where the UAPA is applied. 

Indeed, the facts of the case show striking similarities with the UAPA cases that have arisen out of the Delhi riots (some of the protagonists – such as Sharjeel Imam, Safoora Zargar, and Asif Iqbal Tanha – are also arraigned in UAPA cases). The basis of the police case was that a protest organised in the area of Jamia University on 13th December 2019 – with the avowed objective of marching to Parliament to oppose the Citizenship Amendment Bill – turned violent, with stones being thrown at the police, and the deployment of tear gas. According to the chargesheet, the accused were all present at the scene, and were part of a common object and conspiracy to breach prohibitory orders and engage in an unlawful assembly. 

The Court found, however, that at no point had it been alleged or shown that the accused persons had committed any overt act of violence. This, then, raised the question of whether the presence of the accused in an assembly that had allegedly turned violent and broken the law, was sufficient to charge them under the unlawful assembly provision of the IPC. 

Readers will recall that in the bail cases that we have flagged above, the facts were often similar: there was no overt violent act that could be attributed to an accused person, and therefore, the question boiled down to the extent to which the Court was willing to bridge the gap between the legal overt action (a speech, or presence at the scene, or the exchange of WhatsApp messages) and the allegation (conspiracy to commit riots, to engage in an unlawful assembly, etc.)

Arul Varma J, however, gave short shrift to any suggestion that it was the Court’s task to fill in the gaps in the prosecution’s case. He repeatedly noted that the Prosecution had failed to show any overt act – beyond presence – from which it could be legitimately inferred that the accused shared a common object. Following Supreme Court precedent, Arul Varma J noted that the standard was one of actual knowledge: that is, the accused persons should have known that an offence was likely to be committed in the course of the unlawful assembly. In this case, however: 

There is no evidence on record which reflects that the accused herein were even aware that other protestors were armed or not. The accused were protesting against a piece of legislation, and sloganeering against enactment thereof. Positive knowledge that their sloganeering would result in such a maelstrom, is something that cannot be attributed to them sans any cogent proof. (paragraph 33)

While this may sound like basic common sense, it is significant in the present context. Recall, for example, that while denying bail to Safoora Zargar (see above) – despite the fact that no overt act of violence had been attributed to her – the trial court had noted that “when you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire.” In other words, the trial court in that case had dispensed with any causal link between the accused’s act (a protest speech) and what the accused was in the dock for (riots). 

As is obvious, this standard expands the bounds of liability to an infinite degree, and stretches the concept of individual responsibility (arguably the backbone of criminal law) to the vanishing point.

Arul Varma J.’s order, on the other hand, showed a keen awareness of this problem. As he noted, relying upon Supreme Court precedent, protests are fluid events, and it is not the case that everyone who joins a (peaceful) protest that subsequently turns violent, has a common object of fomenting violence. 

To draw that link, there must be evidence of at least some overt act that casts light upon the object of the accused; however, if the accused’s presence at a protest that later turned violent was sufficient, then this – as Arul Varma J noted – would entirely collapse the distinction between (legitimate) dissent and (illegitimate) insurrection. 

It would, essentially, make the accused “vicariously liable for the acts of the mob” (paragraph 34). Relying upon the Supreme Court’s judgment in Masalti, Arul Varma J held that in these kinds of cases – involving mass protests – one would need to have more than one, consistent account of exactly what the accused did, in order to attribute a common object to them. This had not happened, and indeed, the Court came down heavily on the police’s attempt to improve its own case by filing a third chargesheet when the arguments on charge were almost over. Consequently, Varma J held: 

It is apparent that the police has arbitrarily chosen to array some people from the crowd as accused, and others from the same crowd, as police witnesses. This cherry picking by the police is detrimental to the precept of fairness. (paragraph 38)

For the same reasons, the Court held that the case of conspiracy – which required a meeting of minds – had also not been met. 

Finally, in his concluding remarks, Arul Varma J framed the issue as one where the State was obligated to draw a clear line between dissent and insurrection, especially in the context of protests like these, where the prosecution sought to blur them. 

Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest. Liberty of protesting citizens should not have been lightly interfered with. It would be pertinent to underscore that dissent is nothing but an extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19 of the Constitution of India, subject to the restrictions contained therein. 

It is therefore a right which we are sworn to uphold. As laid down in P Vijayan (supra), this Court is duty bound to lean towards an interpretation which protects the rights of the accused, given the ubiquitous power disparity between them and the State machinery. (paragraph 45)

Apart from everything else, the last line is particularly important, as it constitutes a rare acknowledgement by a court that where two interpretations are possible, the judiciary – as the protector of fundamental rights – should lean towards the accused, given the immense structural power difference between the State and the individual. Indeed, one can see this underlying philosophy present throughout the order – in particular, in the Court’s refusal to fill in the gaps in the Prosecution’s case, and to insist that there be a demonstrable link between the act and the offence, one that requires something more than assumptions, inferences, and allegations of conspiracy to fill. 

One might be present at a protest and one might participate in a protest, but that does not automatically make one vicariously liable for every illegality committed in the course of that protest. To hold otherwise would be to outlaw protests themselves, and to turn Article 19(1)(a) into a dead letter. It is this fundamental insight – regrettably missed by so many courts in so many Delhi riots cases – that Arul Varma J grasped, and articulated it in pellucidly clear terms.

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.

Section 251 CrPC and Discharge in Summons Cases: Part III

[This is Part III in a multi-part series. The previous posts can be accessed, here and here]

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.