1

“ TRIAL OF SUMMONS CASES BY MAGISTRATES’’

FINAL DRAFT SUBMITTED BY:

VIVEK KUMAR
Semester IV, Section A

ROLL NO. 1775

Session : - 2017-2022

FINAL DRAFT SUBMITTED TO:

DR. Fr. Peter Ladis F.
(FACULTY OF CRIMINAL LAW-II)

CHANAKYA NATIONA L LAW UNIVERSITY

SUBMITTED ON:

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR MITHAPUR,PATNA-800001

1
 2

DECLARATION

I hereby declare that the work reported in the B.A., LL.B. (Hons.) Project
Report entitled “Trial of Summons Cases By Magistrates” submitted at
Chanakya National Law University, Patna is an authentic record of my work
carried out under the supervision of Dr.Fr.Peter Ladis F. I have not submitted
this work elsewhere for any other degree or diploma. I am fully responsible for
the contents of my Project Report.

CHANAKYA NATIONA L LAW UNIVERSITY

2
 3

ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide
Dr. Fr.Peter Ladis F.for his exemplary guidance, monitoring and constant encouragement
throughout the course of this research. The blessing, help and guidance given by him time to
time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to Dr. Fr.Peter Ladis F.for
providing me this research topic and for her cordial support, valuable information and
guidance, which helped me in completing this task through various stages.

Lastly, I thank almighty, my parents, brother and friends for their constant encouragement
without which this assignment would not be possible.

Thank You!

Vivek Kumar

Roll no:- 1775

CHANAKYA NATIONA L LAW UNIVERSITY

3
4

TABLE OF CONTENTS

 Introduction......................................................................................pg.05

1. Trial in The Court...............................................................................pg.07

2. T r i a l o f S u m m o n s C a s e s b y M a g i s t r a t e s . . . . . . . . . . . . . . . . . . . . . . . . . . . p g . 1 3

3. Discharge In Summon Cases................................................................pg.16

4. Conclusion......................................................................................... pg.21

5. Bibliography........................................................................................pg.22

CHANAKYA NATIONA L LAW UNIVERSITY

4
 5

INTRODUCTION
The Criminal Procedure Code of 1973 is, as is clearly indicated by its title, a comprehensive
enactment laying down the law relating to criminal procedure. But it is worth mentioning that
the code is not a pure adjective law of procedure; there are some provisions in it which take
the nature of substantive law. For instance, chapters VIII, X and XI which deals with
‘prevention of offences’ and chapter IX that deals with ‘maintenance of proceedings’. As per
the Code, criminal trials can be divided into three categories namely: warrant cases, summons
cases and summary trials. The focus of this article shall be summons cases.
Summons Cases
The term “summons cases” has been defined, in a negative sense, under Section 2(w) of the
CrPC as “a case relating to an offence, not being a warrant case”. On the other hand, a
“warrant case” means a case relating to an offence punishable with death, imprisonment for
life or imprisonment for a term exceeding two years1.
The two definitions, thus, lead to the conclusion that the basis of classification between
summons case and warrant cases is the seriousness of the offence. This classification
becomes applicable while determining the type of trial procedure to be adopted in a case. The
trial procedure provided for summons cases is devoid of much formality and technicality as
in warrant cases since the former is relatively less serious in nature. Chapter XX (Ss. 251-
259) of the Criminal Procedure Code delineates the procedure for trial of summons cases.

AIMS AND OBJECTIVES

 To know about procedure prescribed in trial of summon cases

 To analyze the rights and obligations of magistrate in trial of summon cases.
CHANAKYA NATIONA L LAW UNIVERSITY

HYPOTHESIS

1
Section 2(x) of the Code of Criminal Procedure, 1973.

5
 6

RESEARCH METHODOLOGY

The study is collected from the national and international journals and books
and publication from various websites and legislations, recent articles which
give importance and more information to designing trial of summon cases.

SOURCES OF DATA

The researcher will be relying on both primary and secondary sources to complete the
project.

1. Primary Sources : Bare Act.

2. Secondary Sources :Books, criminal journal etc.

LIMITATIONS OF THE PROJECT

The most important limitation for this project is the Time limit. The researcher has territorial
and monetary limitants in completing the project at hand morever, taking the time into
consideration, the researcher has to rely upon the doctrinal method of research.

CHANAKYA NATIONA L LAW UNIVERSITY

6
 7

1.TRIAL IN THE COURT

The Code of Criminal Procedure 1973 (in short Cr.P.C.) is a procedural law providing the
mechanism in which manner the criminal trial is to be conducted on the basis of substantive
criminal law i.e. I.P.C. and other criminal statute. The primary object of the criminal justice
system is to ensure that the trial must be fair. The Presiding Officer is supposed to treat the
accused innocent till charge is proved against him but at the same time the guilty person
should not be escaped from the punishment. The word trial is not defined anywhere in the
Criminal Procedure Code, however, it means commonly understood the stage of trial began
after framing the charge and end with the conviction or acquittal. The criminal procedure for
judicial adjudications is divided in 37 chapter and classified in two schedules (i) the offences
classified under I.P.C. and (ii) the offences classified other than I.P.C. The nature of trial are
divided on the basis of seriousness of offences, its gravity and jurisdiction and on the basis of
the gravity, seriousness of the offences the substantive law i.e. I.P.C. is divided into 37 parts
by granting separate nomenclature particularly the nature of offences like the offence against
State, human body, property, public tranquillity, documents, marriage etc.

9.1 SESSIONS TRIAL

Police case-225 to 237 Cr.P.C. Chapter XVIII of Cr.P.C. starting with Sec.225 and ending
with section 237 deals with provisions governing the trial before a Court of Session. Sec.225
Cr.P.C. enjoins that in every trial before a Court of Session the prosecution shall be
conducted by a Public Prosecutor. When the accused appears or is brought before court
pursuant to the commitment of the case, the Public Prosecutor should open the case by
describing the charge brought against the accused and stating by what evidence he proposes
to prove the guilt of the accused. After considering the record of the case and the documents
CHANAKYA NATIONA L LAW UNIVERSITY

submitted along with such record and after hearing the submissions of the accused and the
prosecution, if the judge considers that there are no sufficient grounds for proceeding against
the accused, he shall discharge the accused giving reasons for doing so. If, however, the
judge is of the opinion that there is ground for presuming that the accused has committed the
offence he may frame the charge against the accused in writing. At this stage the Sessions
Judge is entitled to consider only the documents produced by the prosecution along with the
charge sheet. The accused is not entitled to produce or cause production of any document at
this stage for the consideration of the Sessions Judge. After framing the charge same shall be

7
 8

read over and explained to accused in vernacular manner. And then he shall be asked as to
whether he pleads guilty of the offence charged or whether he claims to be tried for the
charge. If the judge is of opinion that the offence that is actually made out is not one
exclusively triable by a court of Sessions then he shall frame a charge against the accused and
transfer the case for trial to the Chief Judicial Magistrate who shall try the case as if it were a
warrant case instituted on a police report. Section 229 of Cr.P.C. provides that if the accused
pleads guilty the Judge shall record the plea and may, in his discretion, convict him thereon.
Even though Sec.229 Cr.P.C. gives discretion to the judge to convict the accused, in case he
pleads guilty, the charge in a sessions case being for grave offences, it is desirable that the
accused is not straightaway convicted. The proper course would be to call upon the
prosecution to prove its case by adducing evidence. Where the accused does not plead guilty
the court shall call upon the prosecution to adduce evidence in support of its case. After the
conclusion of the prosecution evidence, the accused is to be examined under Sec.313 (1) (b)
Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence
for the prosecution. After the examination of the accused the court has to post the case for
hearing under Sec.232 Cr.P.C. if after hearing the prosecution and the defence the judge
considers that there is no evidence to indicate that the accused committed the offence with
which he is charged the judge can record an order of acquittal under Sec.232 Cr.P.C. After
hearing under Sec.232 if the accused is not acquitted thereunder, the accused shall be called
upon to enter on his defence and to adduce any evidence which he might have in support
thereof. After the conclusion of the defence evidence, if any, the case has to be taken up for
arguments. After hearing the arguments, the court has to pass the judgment in accordance
with Secs.235 Cr.P.C. If the judgment is one of conviction and the judge does not proceed to
invoke the beneficial provision of the Probation of Offenders Act, 1958, he shall hear the
CHANAKYA NATIONA L LAW UNIVERSITY

accused on the question of sentence and then pass a sentence in accordance with law.

Complaint case: S.190 to 210 of Cr.P.C. Ch. XIV of Cr.P.C. lays down provisions containing
conditions required for initiation of proceedings and especially regarding cognizance of
complaint case. Sec. 190 to 204 deals with 'cognizance' of cases and Sec. 190(1) lays that,
Magistrate can take cognizance of offence a) upon complaint; b) upon police report; or c)
upon his own knowledge, d) or upon information received from any other person, other than
a police officer. Sec.193 Cr.P.C. provides that except as otherwise expressly provided by the
Cr.P.C. or any other law, no Court of Session shall take cognizance of any offence as a court

8
 9

of original jurisdiction unless the case has been committed to it by a Magistrate under the
Cr.P.C. except in special enactments. Ch. XV of Cr.P.C. lays down the procedure which a
Magistrate has to follow when a complaint is made to him. The very object of law is to give a
person an access to justice other than upon police report. After above referred examination,
question of issuance of summons comes in. Magistrate can either issue the summons or order
inquiry under Sec. 202. If evidence collected above is found insufficient to take decision,
Magistrate may either inquire himself or direct investigation by police officer under Sec.
202(1) of Code. Such investigation is only for helping the Magistrate to decide whether or not
there is sufficient ground to proceed further. After receiving the report of investigation under
Sec.202, the Court will consider whether there is sufficient ground to proceed. If there is no
sufficient ground to proceed, the Court shall dismiss the complaint under Sec. 203. If there is
sufficient ground to proceed, then the Magistrate will issue summons or warrant, as the case
may be. Options which are available to the Magistrate after receipt of complaint could be
summarized thus. Following five options are available to the Judicial Magistrate who is
competent to take cognizance of the case. a. Rejection of the complaint, b. Order of
investigation under Sec. 156(3), c. Taking cognizance of the offence, The provisions
regarding committal of case are prescribed in Sec. 209 of Cr.P.C. and Para 9 to 12 of Chapter
3 of Criminal Manual. In all cases instituted on Police Reports or otherwise, whenever the
accused appears or is brought before the Magistrate, and it appears to the Magistrate that the
offence is triable exclusively by the Court of Sessions, he shall commit the case to the Court
of Sessions, send to that Court the record of the case and the documents and articles, if any,
which are to be produced in evidence and notify to the Public Prosecutor of the commitment
of the case to the Court of Sessions under Section 209 of the Code of Criminal Procedure,
1973. Sec. 210 of Cr.P.C. provide the procedure to be followed when there is complaint case
CHANAKYA NATIONA L LAW UNIVERSITY

and police investigation in respect of the same offence and if Magistrate is satisfied that same
are in respect of same offence he shall clubbed together both proceeding.

WARRANTS TRIAL

There are two types of cases provided in Cr.P.C. i.e. Summons cases and Warrant case.
Warrant case case means a case relating to an offence punishable with death, or
imprisonment for life, or imprisonment for a term exceeding two years while summons cases
means a case relating to an offence, and not being a warrant case. Thus, the trials are
normally divided into warrant trial and a summons trial. For trial of warrants cases by

9
 10

Magistrate two procedures are prescribed. One is adopted by Magistrate in cases instituted on
police reports (Sections 238 to 243 Cr.P.C. and 248 to 250 of Cr.P.C.) and other is for cases
instituted otherwise than police reports. (Sections 244 to 247 of Cr.P.C. and 248 to 250, 275
Cr.P.C.) 9.2.1 Police case Under Section 238 Cr.P.C. when in a warrant case, instituted on a
police report, the accused appear or is brought before the Magistrate, the Magistrate has to
satisfy himself that he has been supplied the all necessary documents submitted with charge
sheet. Section 239 Cr.P.C. provides that if the Magistrate after considering the charge sheet
filed u/s. 173 Cr.P.C. and hearing, considers the charge to be groundless, he would discharge
the accused and record his reason for so doing. If, on examination of aforementioned
documents, he comes to the prima facie conclusion that there is a ground for proceeding with
the trail, he proceeds to frame the charge. After framing a charge under Section 240 Cr.P.C.,
the Magistrate has to proceed under Section 242 Cr.P.C. and under subsection (3) of that
Section the Magistrate is bound to proceed to take all such evidence as may be produced in
support of the prosecution. This provision and the provisions in sub-section (1) and (2) of the
Section 243, Cr.P.C. are mandatory. The provisions of s. 243 apply equally to cases instituted
on police report or on private complaint. After the examination and cross examination of all
prosecution witnesses, i.e. after the completion of the prosecution case the accused shall be
called upon to enter upon his defence and any written statement put in shall be filed with the
record.

Private case

Section 244 to 250 of Code of Criminal Procedure are pertaining to cases instituted
otherwise then on police report. Under section 244 of Cr. P. C when in any warrant case CHANAKYA NATIONA L LAW UNIVERSITY

instituted otherwise than on a police report, the accused appears or is brought before the
Magistrate, the Magistrate shall proceed to hear the prosecution and shall take all such
evidence as may be produced in support of the prosecution. After taking all evidence under
section 244(1) of Cr. P.C. the Magistrate reached at the conclusion that no case against
accused has been made out, the Magistrate shall discharge accused for the reasons recorded.
If there is a strong suspicion about the commission of the offence and the involvement of
accused the court shall proceed to frame charge instead of discharging the accused. If the
accused is not discharged under section 245 of Cr.P.C the Magistrate shall proceed to frame
charge under section 246 of Cr. P. C. against the accused. Charge shall then be read and
explained to the accused and then he has to be asked whether he pleads guilty or has any
1
0
 11

defence to make. If the accused refuses to plead or does not plead or claims to be tried he
shall be required to state whether he wanted to cross examine any witnesses for the
prosecution whose evidence has been taken. If the accused is ready to cross examine the
witnesses, they shall be recalled for cross examination and re- examination if any. The
witnesses shall be discharged after cross-examination or re-examination. Under section 247
of Cr. P. C. the accused shall be called upon to enter upon his defence and to produce his
defence if any. Section 248: Acquittal or Conviction- The section means that in a warrant
case both instituted on police report and private complaint the only order that can be passed
after charges is either (a) acquittal or (b) conviction.

SUMMON TRIAL

A summons case means a case relating to an offence not being a warrant case, implying all
cases relating to offences punishable with imprisonment not exceeding two years. In respect
of summons cases, there is no need to frame a charge. The court gives substance of the
accusation, which is called notice, to the accused when the person appears in pursuance to the
summons. In view of Section 251 of Cr.P.C. the Magistrate is required to explain the
particulars of the offence of which the accused is prosecuted. As per section 252 if the
accused pleads guilty, the Magistrate shall record his plea as nearly as possible in the words
used by the accused and may in his discretion, convict him thereon. Section 253 of Cr.P.C. is
an exception to general rule which provides a simple procedure for disposing of petty cases
without the presence of accused in court by post and messenger also. By this provision
discretion is given to the Magistrate to convict the accused. It also enables the pleader
authorised by the accused to plead guilty on behalf of his client when offence is punishable CHANAKYA NATIONA L LAW UNIVERSITY

only with fine. However, as per Section 254 of Cr.P.C. if the accused is not convicted under
Section 252 or 253 the court shall hear prosecution and take evidence lead by the prosecution
and also hear the accused and take all such evidence as he produces in his defence. Section
255 of Cr.P.C. deals with the acquittal or conviction. Section 256 of Cr.P.C. deals with the
circumstances of non-appearance or death of the complainant. Section 257 of Cr.P.C. deals
with the withdrawal of complaint subject to the satisfaction of the Magistrate. Apparently this
section applies to summons cases. Section 258 of Cr.P.C. deals with the powers to stop
proceeding in certain cases. Section 259 of Cr.P.C. empowers the Magistrate to convert a
summons case into warrant case (1) if the offence is punishable with imprisonment for more
than six months, & (2) if he is of the opinion that it would be in the interest of justice try such
1
1
 12

case in accordance with the procedure for the trial of warrant cases. Section 274 of Cr.P.C.
deals with the record in summons cases and inquires. The Magistrate shall, as the
examination of each witness proceeds, make a memorandum of the substance of his evidence
in the language of the Court. However, if the magistrate is unable to make such memorandum
himself, he shall, after recording the reason of his inability, cause such memorandum to be
made in writing or from his dictation in open Court.

SUMMARY TRIAL

The object of summary trial is to disposal of cases speedily. Procedure prescribed for trial of
summons cases should be followed (S.262). There is no appeal in such a trial if a sentence of
fine only not exceeding two hundred rupees has been awarded. There can be an application
for revision to the High Court. The provisions of section 262 are imperative and a breach
thereof amounts to an illegality and not an irregularity. Section 264 lays down that in every
case tried summarily the Magistrate must record the substance of the evidence and the
judgment that is delivered must also contain a brief statement of the reason for coming in a
particular finding. Section 265 emphasizes that every such record i.e. the particulars
mentioned in s. 263 and the substance of evidence and judgment must be recorded in the
language of the Court. The provision of Section 326 (3), Cr.P.C. bars the use of pre-recorded
evidence by successor Judge only when the trial has to be conducted according to the
provisions of Sections 262 and 265, Cr.P.C. (i.e. summary trial). When in a summary trial,
the evidence has been recorded partly be one Magistrate who has taken notes of evidence and
made them part of the record of the case and that Magistrate is succeeded by another
Magistrate, the successor can decide the case on the evidence partly recorded by his CHANAKYA NATIONA L LAW UNIVERSITY

predecessor and partly recorded by himself. It is not required that in every case where the
case is sent to another Magistrate, the evidence must be re-heard. It depends upon the
particular case and the manner in which the evidence has been recorded. In Shivaji Sampat
Jagtap v. Rajan Hiralal Arora220 , the Hon'ble Bombay High Court observed that, The
succeeding Magistrate, however, in a case, where the procedure contemplated under section
263 and 264 of the Code and the view is upheld in J.V.Baharuni v. State of Gujrat221

1
2
 13

2.TRIAL OF SUMMONS- CASES BY MAGISTRATES

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.

252. Conviction on plea of guilty. - If the accused pleads guilty, the Magistrate shall record
the plea as nearly as possible in the words used by the accused and may, in his discretion,
convict him thereon.

253. Conviction on plea of guilty in absence of accused in petty cases. - (1) Where a
summons has been issued under Section 206 and the accused desires to plead guilty to the
charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or
by messenger, a letter containing his plea and also the amount of fine specified in the
summons.

(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of
guilty and sentence him to pay the fine specified in the summons, and the amount transmitted
by the accused shall be adjusted towards that fine, or where a pleader authorised by the
accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the
plea as nearly as possible in the words used by the pleader and may, in his discretion, convict
the accused on such plea and sentence him as aforesaid.
CHANAKYA NATIONA L LAW UNIVERSITY

254. Procedure when not convicted. - (1) If the Magistrate does not convict the accused
under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and
take all such evidence as may be produced in support of the prosecution, and also to hear the
accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused,
issue a summons to any witness directing him to attend or to produce any document or other
1
3
 14

thing.

(3) The Magistrate may, before summoning any witness on such application, require that the
reasonable expenses of the witness incurred in attending for the purposes of the trial be
deposited in Court.

255. Acquittal or conviction. - (1) If the Magistrate, upon taking the evidence referred to in
Section 254 and such further evidence, if any, as he may, of his own motion, cause to be
produced, finds the accused not guilty, he shall record an order of acquittal.

(2) Where the Magistrate does not proceed in accordance with the provisions of Section 325
or Section 360, he shall, if he finds the accused guilty, pass sentence upon him according to
law.

(3) A Magistrate may, under Section 252 or Section 255, convict the accused of any offence
triable under this Chapter, which from the facts admitted or proved he appears to have
committed, whatever may be the nature of the complaint or summons, if the Magistrate is
satisfied that the accused would not be prejudiced thereby.

256. Non-appearance or death of complainant. - (1) If the summons has been issued on
complaint, and on the day appointed for the appearance of the accused, or any day subsequent CHANAKYA NATIONA L LAW UNIVERSITY

thereto to which the hearing may be adjourned, the complainant does not appear, the
Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless
for some reason he thinks it proper to adjourn the hearing of the case to some other day :

Provided that where the complainant is represented by a pleader or by the officer conducting
the prosecution or where the Magistrate is of opinion that the personal attendance of the
complainant is not necessary, the Magistrate may dispense with his attendance and proceed
with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-
appearance of the complainant is due to his death.

1
4
 15

257. Withdrawal of complaint. - If a complainant, at any time before a final order is passed in any
case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him
to withdraw his complaint against the accused, or if there be more than one accused, against all or
any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the
accused against whom the complaint is so withdrawn.

258. Power to stop proceedings in certain cases. - In any summons-case

instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous
sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, 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.

259. Power of Court to convert summons-cases 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
rehear the case in the manner provided by this Code for the trial of warrant-cases and may recall any
witness who may have been examined.

CHANAKYA NATIONA L LAW UNIVERSITY

1
5
 16

3.DISCHARGE IN SUMMON CASES

Even a cursory glance at the Criminal Procedure Code, 1973 will make it very clear that the
principle of audi alterm partem and the cardinal principle of Criminal Jurisprudence that the
person is innocent until and unless proven guilty. Whether it is arrest, issuing summons,
registering of FIR, recording confessions, Framing of Charges, collecting evidence, bail,
execution of conviction, suspension of conviction and finally appeal against the conviction, in
all these events a reasonable opportunity was given to accused and convict to prove himself
not guilty. What about the summons cases,2where a private complaint was registered in front
of the magistrate,3 and after examining complaint and witnesses, he issued process under
Sec.204, CrPC,4 is the aforesaid mentioned principles followed in these summons cases. The
questions arises does the magistrate has power in summons case to discharge the accused
after being satisfied by hearing the accused version as he have in warrant cases under
Sec.239, CrPC,1973. It is pertinent to mention that this question attains great significance in
criminal cases such as Cheque Bounce and Defamation. In this Paper, the author will
specifically dealt with the powers of the Magistrate to discharge accused in summons cases
on the basis of complaint, does he has the power to do so under Sec.251, CrPC, 5 or the only
Recourse available to accused is to approach High Court Under Sec. 482, CrPC. ANALYSIS
OF AVAILABLE STATUARY PROVISIONS The Provisions relating to Trial of the
Sessions and Warrant cases is clearly defined under XVIII of Criminal Procedure Code.
Sometimes it is necessary to discontinue the groundless prosecution half way and discharge
the accused to avoid unwarranted trial process which is ultimately result in acquittal.
SESSION CASES In the cases, triable exclusively by magistrate an ample opportunity was
provided to discharge the accused on the grounds of insufficient ground by the virtue of
CHANAKYA NATIONA L LAW UNIVERSITY

Sec.227, CrPC. In the case of Kewal Krishna v. Suraj Bhan, 6the Supreme Court explained
the Purpose behind this section and held that, this is a beneficent provision to save the
accused from the prolonged harassment which is a necessary concomitant of a protracted
2
Such cases where punishment is less than 2 years of Imprisonment, Sec.2(w) CrPc,1973
3
Sec.190, Criminal Procedure Code, 1973
4
204. Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient
ground for proceeding, and the case appears to be- (a) a summons- case, he shall issue his summons for the
attendance of the accused, or (Contd.)
5
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 defense to make, but it shall not be necessary to frame a formal
charge.
6
1980 Supp SCC 499; Charan Singh v. Shanti Devi, 2004 CriLJ 2408 (All).
1
6
 17

trial. Furthermore, in the case of Satish Mahra v. Delhi Admn., 7 the Hon’ble Supreme Court
held that, the words “not sufficient grounds” clearly shows that the Judge is not a mere post
office to frame the charge at the behest of the Prosecution, but has to exercise his judicial
mind to the facts of the case in order to determine whether a case for trial has been made out
by the prosecution.

WARRANT CASES

The Warrant cases which are triable by magistrate, the magistrate is vested by power as
similar to session case to discharge under Sec.239, CrPc. In the case of Preeti Gupta v. State
of Jharkhand, 8
the Hon’ble Supreme Court held that, “while considering an application for
discharge the Court can examine the evidence on record and discharge the accused persons if
there is no possibility of the accused being found guilty on the basis of such evidence
specially in cases where the accused produces unimpeachable evidence in support of his
defense” GROUNDS FOR DISCHARGING In the case of Union of India v. Prafulla Kumar
Samal and Anr, Justice Fazl Ali, Summarized the following principle regarding the discharge
of an accused; That the Judge while considering the question of framing the charges under
section 227 of the Code has the undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie case against the accused has been
made out: Where the materials placed before the Court disclose grave suspicion against the
accused which has not been properly explained the Court will be, fully justified in framing a
charge and proceeding with the trial. The test to determine a prima facie case would
naturally depend upon the facts of each case and it is difficult to lay down a rule of universal
application. By and large however if two views are equally possible and the Judge is satisfied
CHANAKYA NATIONA L LAW UNIVERSITY

that the evidence produced before him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his right to discharge the accused. That
in exercising his jurisdiction under section 227 of the Code the Judge which under the
present Code is a senior and experienced Judge cannot act merely as a Post office or a
mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This however does not mean that the Judge
should make a roving enquiry into the pros and cons of the matter and weigh the evidence as

7
(1996) 9 SCC 766.
8
(20100 7 SCC 667;
1
7
 18

if he was conducting a trial. In the case of Amit Kapoor v. Ramesh Chander, the Hon’ble
Supreme Court held that, “Once the facts and ingredients of the Section exists, then the Court
would be right in presuming that there is ground to proceed against the accused and frame the
charge accordingly. This presumption is not a presumption of law as such. At the initial stage
of framing of a charge, the court is concerned not with proof but with a strong suspicion that
the accused has committed an offence, which, if put to trial, could prove him guilty. All that
the court has to see is that the material on record and the facts would be compatible with the
innocence of the accused or not. The final test of guilt is not to be applied at that stage.” At
this stage. The Court is not to see whether there is sufficient ground for conviction of the
accused or whether the trial is sure to end in his conviction. Strong suspicion against the
accused, if the matter remains in the region of suspicion, cannot take the place of proof of his
guilt at the conclusion of the trial.9 But at the initial stage if there is a strong suspicion which
leads the Court to think that there is ground for presuming that the accused has committed an
offence then it is not open to the Court to say that there is no sufficient ground for proceeding
against the accused. 16 Hence there is specific Provision and judicial decisions which clearly
stated that court has the power to discharge in warrant and session cases but the same is not
stipulated in the case of summon cases which are of much serious nature and grave intensity.
Discharge in Summons Case Since there are three different categories of cases triable by
various courts, there is no provision of discharge in the case of summons case and this is sole
controversy regarding the same. (2012) 9 SCC 460 Stree Atyachar Virodi Parishad v. Dilip
Nathumal Chordia and Anr.,(1989) 1 LEGISLATIVE INTENT The very fact that in a
Summons Case there is no specific provision of a discharge, as opposed to a Warrants Case
(S.227/239/245 of the CrPC) speaks as conformity to the legislative intent of not having an CHANAKYA NATIONA L LAW UNIVERSITY

elaborate hearing at the time of framing of notice. It was expected that, since Summons Cases
relate to offences of relatively lesser gravity and capable of being completed expeditiously,
having a dedicated charge hearing would only delay matters unnecessarily, without any
corresponding benefit. The legislative intent to have a relatively abridged form of trial in
Summons Cases is writ large on the face of the provisions.10 JUDICIAL TREND The issue
was first dealt-with at length by the Supreme Court in K. M. Matthew v. State of Kerala,
18where the accused had sought recalling of the summoning order in a Summons Case. It
was held by the Supreme Court that, "The Magistrate may drop the proceedings if he is

9
Stree Atyachar Virodi Parishad v. Dilip Nathumal Chordia and Anr.,(1989) 1 SCC 715
10
41st Law Commission Report, p. 178, para 22.1
1
8
 19

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 the proceedings if the complaint on the very face of it does not
disclose any offence against the accused" This particular leaves certain important questions to
ponder that wouldn’t such an order would amount to the court reviewing its own order. The
controversy was settled by the Supreme Court after the period of Twelve Years (12) in the
case of Adalat Prasad v. Rooplal Jindal, where court held that, “If the Magistrate issues
process without any basis, the remedy lies in petition u/s 482 of the CrPC, there is no power
with the Magistrate to review that order and recall the summons issued to the accused.” The
Decision was reaffirmed in the case of Subramanium Sethuraman v. State of Maharashtra &
Anr, 20 where the court held that, “Discharge, Review, Re-Consideration, Recall of order of
issue of process u/s 204 of the CrPC is not contemplated under the CrPC in a Summons Case.
Once the accused has been summoned, the trial court has to record the plea of the accused (as
per Section 251 of the CrPC) and the matter has to be taken to trial to its logical conclusion
and there is no provision which permits a dropping of proceedings, along the way.”
JUDICIAL DIVERGENCE REGARDING DISCHARGE IN SUMMON CASES Though the
dispute regarding the discharge was being settled by the court in the case of Rooplal Jindal
and the same position was held for a long time but in the case of Bhushan Kumar v. State
(NCT of Delhi), the Supreme Court ruled that magistrate has the power to discharge in
Summons case, this decision of Bhushan Kumar case was followed in catena of decisions and
in the case of Urrshila Kerkar v. Make My Trip (India) Private Ltd, 11
and court held that, “It CHANAKYA NATIONA L LAW UNIVERSITY

is no doubt true that Apex Court in Adalat Prasad v. Rooplal Jindal and Ors. (2004) 7 SCC
338 has ruled that there cannot be recalling of summoning order, but seen in the backdrop of
decisions of Apex Court in Bhushan Kumar and Krishan Kumar, 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 (supra) cannot possibly be misread to mean that proceedings in a summons

11
(2013) SCC OnLine Del 4563, Raujeev Taneja v. NCT of Delhi (Crl.M.C. No.4733/2013 decided on 11th
November, 2013)
1
9
 20

complaint case cannot be dropped against an accused at the stage of framing of Notice under
Section 251 of Cr.P.C. even if a prima facie case is not made out."

AMIT SIBAL CASE: RECTIFICATION OF DIVERGENCE REGARDING

SUMMONS CASE Recently in the case of Arvind Kejriwal and others v. Amit Sibal & Anr,
12
the Delhi High Court held that, “Magistrate has the power to hear the accused at the time of
explanation of substance of the accusation, and if no offence is made out, to drop proceedings
against him at that stage itself, and the court need not, in all cases, take the matter to a full
blown trial'. On appeal to the Supreme Court the Court held 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” and matter was remanded to the High Court for fresh consideration from
the viewpoint of Section 482 of the CrPC, effectively implying that Trial Court would have
no such power. Also in the year 2016, the Delhi High Court in the Case of R.K. Aggarwal v.
Brig Madan Lal Nassa & Anr, the Court held that, “There is no basis in the contention of the
petitioners for discharge for the 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, the accused is either convicted or acquitted. There is no stage of discharge of an accused
at any stage under Chapter XX of Cr.P.C"

CHANAKYA NATIONA L LAW UNIVERSITY

12
(2014) 1 High Court Cases (Del) 719
2
0
 21

4.CONCLUSION

The foregoing discussion reveals that police organizations of many countries have launched
various schemes and programmes for people’s participation in policing.
But there is still a need for the modification of the situation and thereby the agency of
criminal justice system namely the police to protect the human rights of citizens and fulfil the
objective of welfare state. The most important transition that merits urgentattention hinges on
the attitude of the average policemen in their day-to-day work. To make this task possible, a
great amount of social awareness coupled with the self-awareness on the part of the police
personnel is a primary pre-requisite. In specific cases related to arrests and other offences
also where there is a scope for the misuse of police power, the abuse of police power can be
stopped by Transparency of action and Accountability.

CHANAKYA NATIONA L LAW UNIVERSITY

2
1
 22

BIBLIOGRAPHY

Books

1. Paranjape P.V, Criminology and Penology (2006)

2. Sharma R.N, Criminology and penology, Surjeet publication, New Delhi (2008)
3. Ratan lal and Dhiraj lal, Criminal Procedure Code,15th Edition (2000)
4. Ratan lal and Dhiraj lal, Indian penal Code, 30th Edition,(2008)

Website Referred

 www.wikipedia.com

 www.helplinelaw.com

 www.halsbury.com

 www.legalserviceindia.com

CHANAKYA NATIONA L LAW UNIVERSITY

2
2