-By Nandini Gulati*
The Code of Criminal Procedure has its foundation on principles of natural justice. Its main objective is to provide an opportunity for the accused to get a fair trial in accordance with provisions of the Constitution of India and to prevent any delay in investigation and trial to ensure fair justice. At all steps, whether it is Registering of FIR, recording of statements, Arrest, collecting evidence, Bail or appeal, liberty of accused, and the principle of being innocent until proven guilty is kept in mind by the authorities.
The criminal process can be set into motion in two ways – a) by police investigating into the alleged offence, or b) when an aggrieved person reaches the court with a complaint. Chapter XV of CrPC deals with the proceedings which follow the taking cognizance of an offence by the Magistrate on a complaint. Under Section 200, the Magistrate examines upon oath the complainant and witnesses, if any, and after, if he is satisfied that there is sufficient ground for proceeding, he issues summons under section 204, CrPC. However, if Magistrate feels that in order to determine if at all a case is made out or not, he can call for further inquiry into the case either by himself or by directing an investigation under Sec 202, CrPC.
Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint. Section 200 to 203 are useful for weeding out false, frivolous, and vexatious complaints aimed at harassing the accused person.[i] The everyday experience of courts shows many complaints are ill-founded, and it is necessary therefore that they should at the very start be carefully considered and those which are not on their face convincing should be subjected to further scrutiny so only in substantial cases should the court summon the accused person.[ii]
Section 204 provides for the issue of Summons/Warrants, after which comes the Framing of Charge (Sections 228, 240), and then – Acquittal/Conviction (Sec 232, 235,248). This broad scheme of proceeding applies to all Criminal Cases. A proximate look at the provisions of the CrPC reveals that it provides for different types of proceedings for different kinds of offences. It has categorised cases as Sessions Triable Cases (Chapter XVIII), Warrant Cases (Chapter XIX), Summons Cases (Chapter XX), and Summary Trials (Chapter XXI). This distinction is on the basis of their character ranging from most serious offences to trivial offences. While Trial of Sessions (Section 227) and Warrant Cases (Sections 239) are concerned, there are provisions which specifically provides for discharging the accused and recalling of summons before proceeding further with the trial, no such power is available with the Magistrate in Summons Cases.
The pertinent question here arises is, Whether the Magistrate has the power to discontinue the groundless prosecution midway and discharge the accused to avoid the unwarranted trial process, which will ultimately, in any case, result only in acquittal. Does he have the power to do so in accordance with Section 251, or can he dismiss the complaint under Section 203, or the only option remains with the accused is to file an application to the High Court under Section 482 of CrPC.
How did the Judiciary address this Issue?
The issue concerning the power of the Magistrate to drop proceedings against an accused in a summons case after the process is issued came first in the 1991 case, K.M. Mathew v. State of Kerala and Ors[iii]. The Supreme Court, in this case, set aside the order of the High Court by considering it “too technical” to delve so deep into the procedural requirements. The Apex court held that there is no need for a specific provision to enable a Magistrate to drop the proceedings against the accused when complaint on the very face of it does not disclose any offence against the accused, thereby allowing the Magistrate to recall the issuance of summons. Thus, a stage of discharge was acknowledged to be existing in a summons case.
This decision raised many controversies as to was it not wrong on part of the highest judicial authority of a country to go against the legislative intent. However, this decision came to be reversed 12 years after in Adalat Prasad v. Rooplal Jindal and Ors[iv], in which the Supreme Court took to consider the correctness of the view taken in K.M. Mathew. The SC unanimously held that there was no basis for recalling the summons issued by the court, which happens only after deliberate consideration of materials before the Magistrate. The Supreme Court specifically stated,
It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the CrPC does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code.
The ratio laid down in Adalat Prasad was again called for scrutiny in Subramanium Sethuraman v. State of Maharashtra[v] when it was alleged that the decision in Adalat Prasad was on a warrant procedure. SC held,
It is true that the case of Adalat Prasad pertained to a warrant case whereas in K.M. Mathew, the same pertained to a summons case. To this extent, there is some difference in the two cases, but that does not in any manner, make the law laid down by this Court in Adalat Prasad’s case a bad law.
It further stated, As observed by us in Adalat Prasad’s case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case.
The Judicial Divergence
The decision laid down in Adalat Prasad came to become the authority in matters concerning the question whether or not the Magistrate has the power to recall summons issued by him until the decision of SC in Bhushan Kumar and Ors v. State (NCT of Delhi) and Ors[vi] which connoted that the summons may be discharged if no commission of offence is disclosed under Section 251. The court held,
It is inherent in Section 251 of the Code that when an accused appears before trial Court pursuant to summons issued Under Section 204 in a summons trial case, it is the bounden duty of the trial Court to carefully go through allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in affirmative, the Magistrate shall explain the substance of accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.
It is interesting to note that in this case, no referral was made or even attention was paid to the earlier decisions of SC which renders this decision of SC into a one having no or little precedential value. Also, it goes directly against the provisions of CrPC. Moreover, the question of whether Magistrate is empowered to recall summons never really arose as an issue before the Court.
After a year, the Delhi HC also went with the scheme of Bhushan Kumar in Urrshila Kerkar v. Make My Trip (India) Private Ltd[vii], while laying down:
It is no doubt true that Apex Court in Adalat Prasad has ruled that there cannot be recalling of summoning order, but seen in the backdrop of decisions in Bhushan Kumar and Krishan KumarVariar v. Share Shoppe[viii], aforesaid decision cannot be misconstrued to mean that once summoning order has been issued, then trial must follow. If it was to be so, then what is the purpose of hearing accused at the stage of framing Notice under Section 251 of Cr.P.C. In the considered opinion of this Court, Apex Court’s decision in Adalat Prasad cannot possibly be misread to mean proceedings in a summons complaint case cannot be dropped against an accused at the stage of framing of Notice under Section 251 Cr.P.C. even if a prima facie case is not made out.
Back to the Top
After a lot of juggle with the issue – to recall or not to recall the summons issued by a magistrate on complaint cases, the apex court again went back to the previous view taken in Adalat Prasad’s case in the 2016’s appeal in the matter of Amit Sibal v. Arvind Kejriwal and Ors[ix]. In this case, the Court reiterated that the Magistrate, in a Summons Case, has no power to drop proceedings, in absence of a specific provision in the CrPC to that effect.
An issue came before the Delhi HC in the case, R.K. Aggarwal v. Brig Madan Lal Nassa & Anr[x] in which it was alleged that since there was no incriminating evidence against the accused, he is to be discharged, wherein the court categorically held,
There is no basis in the contention of petitioners for discharge for reasons that firstly, there is no stage of discharge in a summons case. Under Chapter XX of Cr.P.C, after filing a private complaint, in a summons case, accused is either convicted or acquitted.
Does the Issue stand Settled?
Though the latest decision in Amit Sibal appears to be in total sync with previous judicial decisions and the statutory scheme, it has not resolved this age-old debate of the power of recalling summons as in Amit Sibal the order was in the nature of a consent order, due to which the essential question remains in a swirl.
However, it is being anticipated that the recent reference made to the Delhi HC is supposed to settle this controversial issue once and for all. Though the case, Court on its own Motion v. State[xi] is yet to be adjudicated, there is no doubt that the above-mentioned cases will surely exert great influence on the decision. It is being expected that this will be that authoritative judicial decision which will finally examine all the nuances of the issue.
It is important for courts and legislature to take into account the fact that Summons Cases, considered to be less serious and disposed of quickly, nowadays take as much time as Warrant cases, and therefore, practically, there is no apparent reason as to hassle the accused to mandatorily face a prolonged and frivolous trial, without there being any substance in the allegation.
Rather than relying on the judicial pronouncements to clear the air on the issue and redundantly stretching the language of the sections, an amendment of the law is always a better option to solve the puzzle.
One way it can be done is by omitting the words “otherwise than upon a complaint” in Section 258 of CrPC so as to empower the Magistrate to recall summons and discharge the accused in complaint cases as well. Another course of action can be by amalgamating the words “power of discharge” within Section 251 which can enable the Magistrate to discharge the accused if he manages to prove that the allegation against him is groundless. Or by simply bringing in a suitable provision in Chapter XX which runs parallel to Section 239, applicable to warrant cases.
[i]R.V. Kelkar, Criminal Procedure (6th ed. 2018).
[ii] 41st Law Commission Report, p. 132. 16.2.
[iii] AIR 1992 SC 2206.
[iv] (2004) 7 SCC 338.
[v] (2004) 13 SCC 324.
[vi] AIR 2012 SC 1747.
[vii] (2013) SCC Online Del 4563.
[viii] (2010) 12 SCC 485.
[ix] 2016 (12) SCALE 487.
[x] 2016 SCC Online Del 3720.
[xi] Crl Ref 4/2019.
The author* is a 2nd Year Student, at the National University of Study and Research in Law, Ranchi.