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.    

Section 251 CrPC and Discharge in Summons Cases: Part II

[This is Part II of a multi-part series. The previous post in this series is here.]

The previous post teased the issue of whether magistrates have the power to end criminal proceedings in Summons Cases at a stage prior to acquittal / conviction, after the magistrate has gone ahead and summoned the accused person. As mentioned in the previous post, this issue has also been referred to the Delhi High Court for clarification. Having given an overview of the statutory framework to help appreciate the issue, this post traces how the statutory text developed over time. It then looks at the courts, to show how this issue was considered by courts in the regimes prior to the current one that was introduced with the 1973 Criminal Procedure Code [Cr.P.C.].

The Evolution of the Statutory Text

The 1973 Cr.P.C. is only the latest iteration of a procedural law that has been operating in India since 1861. A look at the several variants that have come and gone reveals that not too much has changed over time. The same can be said about the statutory provisions pertaining to the trial of Summons Cases under the procedural law, as this section demonstrates.

The 1861 Code 

Act XXV of 1861 [Starts at pg. 133 of the linked PDF] was the first iteration of the Criminal Procedure Code. It is a fascinating statute, but we must restrict our discussion to the subject at hand. On that note, perhaps the first important thing to note is the division made between different kinds of trials. The centrepiece was the Trial before a Sessions Court, and an extensive process of Committal was provided for where magistrates could weed out the cases that need not be sent for a full trial [See Sections 179 to 232]. After this came the trials before magistrates on complaints, where a division was made as to whether an accused person will be summoned by issuing a Warrant or a Summons to answer the complaint [Chapters 14 and 15]. A warrant would lie against the accused if the complaint alleged an offence punishable for a term more than six months imprisonment [Section 248], whereas a summons would lie if the alleged offence was punishable with a maximum of six months [Section 257].    

How would the trials proceed? In both scenarios it appears that magistrates had little discretion on the point of getting the accused to court to answer the complaint. The differences came afterwards: In the warrant triable cases, the magistrate would consider the complainant's case, examine the accused if necessary, and decide whether the complaint's allegations are bogus. If so, the magistrate could then discharge the accused [Section 250]. But, for the summons triable cases, there were no provisions on discharge. Rather, the appreciation of material seems to happen in one go, beginning with the accused being informed about the substance of the complaint and whether she pleads guilty [Section  265]. The language of this provision is important, and the relevant part read as follows: "If the accused person admit the truth of the complaint, and show no sufficient cause why he should not be convicted, the magistrate may convict him accordingly." [emphasis mine]

If the accused does not plead guilty, the magistrate proceeds to consider the evidence for both sides and record it in a memorandum [Sections 266, 267]. At all stages, though, the magistrate had the power to dismiss a frivolous complaint, and with costs imposed on a complainant [Section 270].

The 1872 Code

Act X of 1872 [Starts at pg. 337 of the linked PDF] brought about drastic changes to the scheme of the criminal procedure Code. Perhaps the most relevant changes pertaining to the issue at hand was how this Code described the legal process for starting the criminal process. While the provisions in the 1861 Code did not seemingly confer much discretion upon magistrates on the point of issuing process to an accused person on complaints (except, in Sessions Cases), the 1872 Code had notably broadened this sphere of discretion [Chapter XI]. Now, there was an explicit procedure whereby the magistrate had to examine the complainant, and if she had cause to distrust the complaint then order an inquiry before issuing process to call an accused person to court. The magistrate could also choose to dismiss the complaint altogether, rather than issue process [Sections 144, 146, 147].        

The division between a summons triable and warrant triable cases was retained on similar lines — if alleged offences were punishable up to six months imprisonment (or with fine, or both), a summons would lie, and in other cases a warrant. But this time, Section 4 of the Code expressly called these a "Summons Case" and a "Warrant Case". The procedure for trials of Summons Cases was laid out in Chapter 16, and that for Warrant Cases was laid out in Chapter 17. Both followed the same scheme as that under the 1861 Code, which meant that while there was no express provision on discharge for a Summons Case, the Magistrate could always dismiss a frivolous complaint [Which had the effect of an acquittal (Section 212)], and also, the accused had the ability to show cause "why he should not be convicted".

The 1882 and 1898 Codes

Act X of 1882 is not easily available online, which is a shame, considering it laid the foundations for the 1898 Code (and, by extension, the current Code of 1973). The 1882 Code adopted the changes brought about in 1872, whereby magistrates had more extensive discretion explicitly conferred upon them to dismiss complaints at the outset in all kinds of cases [Sections 200 to 204]. It also retained the same set of procedures for the trial of warrant cases [Sections 251 to 259]. But, there were some important changes made to the procedure for Summons Cases [Sections 241 to 250].

There were changes to the procedure on guilty pleas: earlier, the text suggested some discretion remained with the magistrate even where an accused admitted the offence. But now, that provision [Section 243] read: "If the accused admits that he has committed the offence of which he is an accused, his admission shall be recorded ... and if he shows no sufficient cause why he should not be convicted, the Magistrate shall convict him accordingly." [Emphasis mine]. Two important changes were also made to the provisions relating to ending cases without passing a judgment. First, a new provision was inserted which enabled magistrates to "stop the proceedings at any stage without pronouncing any judgment" in Summons Cases that were not based upon a complaint [Section 249]. Second, the power to dismiss frivolous complaints was removed altogether, and only the power of compensating an accused for a frivolous prosecution now remained, and such power could only be exercised after acquittal [Section 250].

Act V of 1898 [Starts at Page 22 of the linked PDF] retained the scheme of the 1882 Code almost in its entirety. However, while the power to dismiss frivolous cases was not restored, the language of the compensatory provision [Section 250] saw significant changes. The power to order compensation was no longer limited to cases of acquittals, but also expressly included cases where an accused person was discharged.

Summing Up

Let us consider this evolution of the statutory provisions on the process of Summons Cases from the lens of "critical stages" that the previous post introduced. The 1861 Code did include such a strategy for cases involving serious offences — especially Sessions Cases — whereby it installed lengthy pre-trial procedures to weed out bad cases. Some element of critical stages was also present in Summons Cases, for the provisions could be read as allowing for magistrates to end cases if an accused person could demonstrate the accusations are frivolous and thus show cause as to why a conviction is not merited. The 1872 Code expanded this scope, with its explicit recognition of magistrates having the power to dismiss complaints in all cases before issuing process to an accused person.

The 1882 and 1898 Codes introduce us to a problem. An accused person is still asked to show cause "why he should not be convicted" as per the statutory text. But, if the accused person succeeds, does the magistrate have any discretion to terminate proceedings prior to judgment? Both the 1861 and the 1872 Codes had scope for this in the text as they provided that magistrates "may convict" an accused, and also provided for dismissing complaints. But the 1882 and 1898 Codes changed this may to a "shall convict", and also took away the power for magistrates to dismiss complaints after an accused appears in court, insofar as the case was launched on a complaint. Was this done because the Code now provided magistrates with powers to dismiss frivolous complaints at the outset — which is why it made sense to retain these powers for all cases other than those instituted upon complaints? If so, why retain the power for discharge in Warrant Cases that could also have been launched on the basis of complaints? Were the legislators intentionally reducing the critical stages for Summons Cases, as opposed to Warrant Cases, because the former weren't as grave as the latter?    

Judicial Engagement with Statute

As the previous section discussed, by 1898, there was a serious problem on deciding whether nor not a Summons Case launched on a complaint could be terminated prior to judgment, after an accused person had been issued a summons to appear in court and answer the complaint. How did courts deal with this problem? The available databases did not point to any 19th Century reported decisions discussing the issue. Only a handful of citations come up in context of the 1898 Code, from cases that are all in the 20th Century. 

None of the pre-independence cases are on point, but they offer some interesting observations that can be relevant. For instance, in Emperor v. San Dun [(1905) 2Cri LJ 739 (FB)] a Full Bench of the Chief's Court in Rangoon held that the provisions pertaining to joinder of charges would apply even in Summons Cases, despite the fact that there was no requirement for framing charge in such cases. At the same time, two different decisions — Narayanaswami Naidu [(1909) 9 Cri LJ 192 (FB)] and Bechu Lal Kayastha [AIR 1927 Cal 250] — both contain observations that "in summons cases the matter should be finally decided (save in cases under section 249). It should proceed to a conviction or acquittal — not merely end in a discharge." Lastly, in Ali Husain [AIR 1932 All 188], the magistrate passed an order after appearance of the accused stating that he was discharged. However, the magistrate later changed this to read acquitted, and there was no discussion of this aspect in the appellate court decision. Thus, one could find citations to support the theory of magistrate's having the power to end cases prior to judgment, as well as oppose it.  

References to the notion of "discharge" in summons cases appear more frequently in cases after 1950. Importantly, the Supreme Court endorsed the idea of a magistrate passing an order of "discharge" in Summons Cases instituted upon a complaint in Municipal Council, Raipur [AIR 1970 SC 1923], in which the Inspector of the Municipal Council had filed a complaint which was dismissed at the post-summoning stage due to preliminary objections raised by an accused person. But here, the accused went ahead and filed preliminary objections even before the accusations were stated to him, and this fact seems to have played a role for the Supreme Court concluding that the order was a "discharge" and not an "acquittal".

Conclusion: Much Uncertainty Abounds

This post traversed the landscape of the Indian criminal process from 1861 to 1970, pertaining to the issue of whether magistrates have powers to end Summons Cases instituted upon complaints after an accused person has been brought to court. The evolution of statutory text revealed that many subtle changes to this legal regime took place between 1861 and 1882, and the 1882 provisions are arguably the point from which the explicit absence of such powers can be said to begin. However, despite the explicit statutory absence of such powers, the Indian Supreme Court went ahead and affirmed that the magistrate could prematurely end a Summons Case based on a complaint by discharging an accused, even though there is no procedure for framing charges in such cases. However, this decision did not engage in any discussion of how the statutory provisions evolved over time, and seemed to be based on the peculiar fact pattern presented before the Court.

Thus, it would be accurate to state that by the time the 1973 Code was introduced, there was a need to clarify the legal position on this aspect. Did the legislature consider the problem we are discussing today? And what about the courts? All this will be the discussed in the next post.     

   

Section 251 CrPC and Discharge in Summons Cases: Part I

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.