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.

Judicial Appreciation at Different Stages of Trial

Criminal trials require the prosecution to prove its case beyond reasonable doubt (well, most trials at least). This is a satisfaction that the judge arrives at. But this is not the only determination that a judge has to make during the trial, that has material bearings on the life of the trial itself. The same judge is required to do this at three other instances - (i) while taking cognizance, (ii) while summoning the accused, and (iii) upon framing charge. The text of the Cr.P.C. indicates different levels of satisfaction are required to proceed further at each stage, as the stakes keep increasing. But since cases are decided by human judges and not robots, subjectivity creeps in, and so does confusion. Here, I argue a lot of confusion has crept in regarding the satisfaction required at each stage. A lot of noise has developed due to judicial dictum, obscuring what the text might have meant. Besides making the law confusing, it has also contributed to increased delays.  

Understanding the Three Stages

1. Cognizance

Cognizance is the first time a Magistrate is presented with the facts, in the form of either a Police Report [Section 190(1)(b)], or a Complaint disclosing the commission of an offence [Section 190(1)(a)], or due to facts in the knowledge of the Magistrate herself [Section 190(1)(c)]. Must a Court take cognizance upon any of these occurring? Section 190 using 'may' and not 'shall' suggests not. The Supreme Court agrees [for instance, Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668]. In suggesting there exists discretion, the Supreme Court did little to suggest how such discretion should be exercised though. Here, no support could be had from the text. Unlike other stages, Section 190 contained no test explaining the satisfaction required for taking cognizance and moving ahead. Nevertheless, the Court went ahead and created a right for aggrieved complainants to be heard at this stage as well [Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285],

Could it be though, that the Code was not intend for Magistrates to evaluate merits at this stage in any way, but only consider whether mandatory requirements were fulfilled? By mandatory requirements, I refer to the various other provisions between Section 190 and 200, that restrict the taking of cognizance. For instance, suppose a complaint under Section 497 IPC [Adultery] is filed before a Magistrate. Section 198 Cr.P.C. does not allow everyone to file complaints for this offence. So maybe, all that the Magistrate is required to do was determine whether the complaint was filed by a proper person, and then proceed? The 'may' in Section 190 Cr.P.C. continues to make sense, and we don't have any subjective discretion creeping in. The interpretation adopted by the Supreme Court opened the doors for challenges to orders on cognizance before appellate courts, causing delays at the very inception of litigation.

2. Summoning

Once the Magistrate takes cognizance of offences, the next step is summoning the proposed accused for trial. Here the Cr.P.C. clearly requires some application of mind, evident from Section 203 which allows dismissal of complaints, and the language of Section 204 which pertains to summoning. It says that there must be 'sufficient ground for proceeding' . Is this determined through argument? And, is there any objective marker to determine whether there exist such sufficient grounds? Although we haven't reached trial, the importance of this stage must not be lost. This decides whether an accused must enter appearance. Where criminal litigation was pursued to mount pressure, this may well be the most important step for litigants. Lets keep answering these questions in abeyance for now, as it is important to first briefly explain what is framing charge

3. Framing Charge
Charges are what determine a trial - this is what the accused must plead to. The Cr.P.C. envisages different trial procedures for different kinds of offences - the more serious offences get a more rigorous trial, so to speak. Framing charge is therefore not found across all trials - Sessions and Warrant cases only, as Summons cases have what is called "Framing of Notice". The Code allows the court to conclude that no charge should be framed, allowing that an accused be discharged. These provisions on discharge vary in style across the different kinds of trial, as seen on a comparison of Sections 227, 239 and 245 of the Code.

Conflating Summoning with Framing Charge

Do we Need to Argue?
Now, lets run back to those questions on summoning. Would the sufficient grounds for proceeding be determined through argument? Section 204, which talks about issue of process, comes right after provisions explaining procedure of complaints before Magistrates. A Magistrate upon reading a complaint examines the complainant on oath. He can also order a police inquiry to determine "whether or not there is sufficient ground for proceeding". If this is a Police Report, there is no such requirement as we already had a lengthy investigation. Summoning is also followed by charge in most trials, and the possibility of discharge for the accused. The Cr.P.C. requires the court to examine the record, and hear both sides, before deciding whether charges should be framed. Both these requirements are conspicuously absent at the time of summoning. To kill the suspense, the answer is that arguments on summoning are always heard when cognizance of offences is taken on a complaint case. Summons are always issued when cognizance is taken on a police report.

Amazingly, earlier the court heard both sides at this stage as well, making differences between the stages quite limited. If arguments were being advanced, naturally the complainant would rely upon the record of the case. The accused couldn't, as documents are supplied post summoning, but would secure some material to have an effective hearing. All of this obviously compounded the problem of delays. Thankfully, today an accused does not have a right of hearing at this stage [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338]. The reason was increasing delays and too many re-adjudications. Delays persist in another form, as the order remains open to scrutiny. Revision proceedings are possible despite the seemingly interim nature of the order [owing to another decision, Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551]. If the trial court dismissed the complaint and didn't issue summons, any challenge to that order must make the accused a party [Manharibhai Mujlibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517].

Levels of Satisfaction
Where summoning requires 'sufficient grounds', the discharge provisions are differently worded for the different trials. Section 227 says that the judge may discharge if there is "not sufficient ground for proceeding". Section 239 discharges where the Magistrate considers the "charge against the accused to be groundless", and Section 245 adopts this where no evidence is recorded. How do we differentiate summoning from charge? Moreover, how do we distinguish between all these tests for charge itself?

If we imagine summoning to be a stage where there is no argument, then the difference is perceptible. The former is a basic inquiry to determine whether or not one should proceed. The supporting material is not looked at, only the basic allegations in the complaint are considered. Later we have consideration of the record, and both sides being heard, making for a deeper inquiry. This also makes little of an interesting dilemma that arises when we place 204 with 227 - the court first finds sufficient grounds to proceed, only to later conclude there is not sufficient ground! But in our argumentative setup, differences become difficult to identify. When the Court hears arguments on summoning, it implicitly allows reliance on the record. Today, the materials are made exhibits during pre-summoning and considered to the extent of their admissibility and reliability. This problem is very real, and I think is visible in the three judge bench decision of Sunil Bharti Mittal [(2015) 4 SCC 609. See the observations in Pepsi Foods v. Special Judicial Magistrate, 1998 Cri LJ 1 as well]. The reasons behind this are obvious - summoning means the accused must appear in Court, and sometimes the stakes are just too high to make sure that doesn't happen,*

So what about framing charge? This is the first stage at which the accused gets to argue, and at that level there is undoubtedly a difference between this and every earlier stage. But now we have a different problem. The Complainant is, potentially, addressing the Court for the third time (and at least the second time). Although the accused is arguing, the rules of the game are already set and she cannot introduce any material now for the court's consideration [another decision, Debendra Nath Padhi v. State of Orissa, (2005) 1 SCC 568]. The accused might have some material that wipes out the allegations against him, but will not be able to rely upon it before the trial court, or even a court in revision. Only the High Court can make a difference, exercising its extraordinary jurisdiction under Section 482, Cr.P.C.

As for the levels of satisfaction required, a bare reading of the Code may lead one to think that getting discharge gets more difficult depending on how serious the offence is. But the Supreme Court disagreed and said that the different words mean nothing. All that framing charge requires is establishing a prima facie case [R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045]. What is a prima facie case? Again the Court does not help much while inserting standards for the existing text. A multiplicity of decisions express the same thing differently only to confuse further, and introduce other standards not faithful to the text - requiring grave suspicion, for instance [Niranjan Singh v. Jitendra Bhimraj, AIR 1990 SC 1962]. The text enables a court to consider the record but how far can that analysis go without it becoming a mini-trial? Hearings at this stage, and judgments, often end up relying upon decisions rendered on merits in appeals to advance an argument on fact. Is it proper, though, to rely upon such decisions for conclusions on facts, while considering the life of a case pre-trial? The routine way in which courts accept this suggests that fine lines are long gone.

Conclusion
Codification, and here I draw from the formation of the Indian Evidence Act, was an exercise where the legislature intended to divorce the law from the effects of judicial law-making. The text was to guide decision-making. A reading of the text as contained in the Cr.P.C. offers clear guidance. That guidance, or sound, appears to have been lost through the noise generated over decades of verbose dicta. Cutting through the noise to the sound is perhaps inconceivable today, but the exercise is eye-opening. I admit that the arguments in this post have an underlying fallacy - it carries an implicit faith in the judiciary. Perhaps the extra intervention by the parties remains necessary because judges are overburdened and require additional assistance. The problems created by the noise run deeper though, and I argue this has resulted in draining any clarity that might have existed in the exercise of judicial discretion through these stages of taking cognizance, summoning the accused, and framing charge.

* An interesting thought. Given that the decision in Adalat Prasad took away an accused's right to be heard at the stage of summoning, is it legal to rely upon decisions before Adalat Prasad to explain the degree of  satisfaction to determine whether sufficient grounds exist for framing charge? Would there not be a difference in the level to which a court requires to be satisfied when the accused is not there to present his case, in whatever manner and form? This would make reliance on Pepsi Foods illegal.

Reversing Burdens - Unconsidered Issues

In the previous post, I discussed the position of law regarding reverse-onus clauses in India. The judiciary has restricted the use of these egregious innovations and also took away a great part of their bite. The use of reverse-onus clauses, however, does raise other associated issues of procedure. General criminal procedure is designed upon the assumption that the burden to prove rests with the prosecution. Statutes reversing burdens therefore do provide a supporting special procedure, but there are always some questions left unanswered. 

Arguments on Charge and Reverse-Onus Clauses

I raise one such issue here to make the point. The 1973 Criminal Procedure Code [Cr.P.C.] provided for arguments to be heard at the stage of charge, allowing a Court to discharge the accused person if it appears that there is no case made out on a prima facie evaluation. For instance, Section 227, Cr.P.C. states:

"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

"Documents submitted herewith" refers to documents submitted by the Prosecution. Section 207, Cr.P.C. tells us what these documents are: (i) the Final Report [colloquially called the charge-sheet] (ii) the First Information Report recorded under Section 154, Cr.P.C., (iii) statements of witnesses recorded under Section 161(3), Cr.P.C., (iv) confessions recorded under Section 164, Cr.P.C, and (v) any other relevant document in the eyes of the Prosecution. 

Can the accused be allowed to produce material during arguments on charge to further his case? A three judge bench of the Supreme Court held that an accused person cannot present material during arguments on charge [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568], unless there are exceptional circumstances that necessitate that such material be considered [see, Rukmini Narvekar v. Vijaya Satardekar & Others, (2008) 14 SCC 1]. The threshold for something to become an "exceptional circumstance" of this nature is quite high; mistaken identities and the like.

The norm for criminal trial and investigation is that the prosecution must prove its case beyond reasonable doubt. The Police are thus tasked with conducting a meticulous investigation of the kinds elucidated under the Cr.P.C. from sections 154 to 173 to collect evidence sufficient to bring home the charges against an accused. So it seems entirely appropriate that the question of charge must be decided on the strength of this material. But here lies the catch. What about cases where the prosecution only has a limited burden, and the accused has to prove his innocence? 

At trial the accused would be required to lead evidence to prove his case, that there was no mens rea accompanying the acts/omissions that the prosecution established had occurred. If in ordinary cases, the Court considers prosecution material to determine the existence of mens rea, there is every reason to accept defence material at the stage of charge in such cases to determine the same question. However, neither do the special statutes provide any legislative support to the argument, nor has it been judicially considered as of yet. To my mind though, there is no reason to reject the claim.