By Abhinav Sekhri
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.
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.
[The author is an advocate based out of Delhi. This post first appeared on ‘The Proof of Guilt’ on October 26th, 2019.]