Supreme Court: Court can not discharge accused in summons case. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case.
What is the concept of discharge in summon cases?
This article deals with the concept of discharge in summon cases. The trial of summons case is dealt under Chapter XX of the Criminal Procedure Code, 1973 (hereinafter “CrPC”). There is no special section which exclusively provides for discharge of an accused in summons triable cases.
Can a magistrate discharge an accused in a summons case?
The bare perusal of the aforesaid cases demonstrates that the Supreme Court has taken the literal interpretation and refused itself to add more to the Code and held that the Magistrate doesn't have power to discharge the accused in summons cases. In the case titled, Thomas v.
Can a summons case be discharged on merits?
The present article discusses the law regarding discharge (on merits) in summons cases based on complaints (predominantly affecting, inter alia, Defamation and NI Act), once accused has been summoned and how conflicting decisions have caused this issue to crop up repeatedly.
What is the absence of power of discharge in a summons?
Brig Madan Lal Nassa & Anr11 expressly recognised the absence of power of discharge in a summons case by holding: “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.
What is the difference between summon case and warrant case?
The procedure for summon case is similar to that of the procedure of trial in warrant case, but the only core facet that makes difference in every aspect of the trial is that the nature of the offence, i.e. seriousness of the offence is less in summon case, whereas in warrant case, the offence is grievous.
What is a discharge petition in India?
Under the Criminal Procedure Code, 1973, the Discharge Application is the remedy that is granted to the person who has been maliciously charged. If the allegations which have been made against him are false, this Code provides the provisions for filing a discharge application.
What happens if complainant does not appear in court in India?
Answers (1) In such a scenario when the complainant does not turn up in the court for evidence, the court will issue summons against the complainant to come to the court and depose.
When can accused be discharged?
If, upon due consideration of the police report and all the documents sent under Section 173 along with examination of the accused, if any, as Magistrate thinks obligatory and after hearing prosecution as well as accused, the Magistrate considers the charge to be groundless against the accused, he shall discharge the ...
Under what circumstances an accused may be discharged?
When the accused appears or is brought before the Magistrate, and if the Magistrate, upon consideration of the record of the case and the documents submitted therewith and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity ...
What if the accused doesn't show up?
As regards the accused who have not appeared, he shall give the case a new number and enter it in the register of cases received, and if it remains pending for a long time and efforts to secure the presence of the accused have failed and the case against the accused who have appeared has been disposed of, the ...
What happens if accused does not appear in court?
In your case if accused is not appearing before court, your lawyer may request to court to issue nbw and after that he may request to court to pass a order to attach the property of accused. Your should clear all the proceedings from your lawyer.
What is a good reason to not appear in court?
One of the most common valid excuses to miss a court hearing is when you were not properly notified of the date within a reasonable amount of time. If the court didn't send out your date, you can reasonably explain your situation to the judge. If the court makes the error, you have a valid excuse.
Why are discharge petitions rarely used?
Discharge petitions are rare. A successful discharge petition embarrasses the leadership; as such, members of the majority party are hesitant to support something that would make the Speaker and their own leaders look bad.
What is difference between discharge and acquittal?
Acquittal is a verdict in the criminal case that the accused is not guilty of the offence. On the other hand, discharge is an order given by the Magistrate that there are not enough grounds to lead the proceedings further against the accused. Discharge of the accused takes place, prior to the framing of charges.
Can discharge petition be filed after framing of charges?
stage and an application for discharge can be made at any time even after the charge was framed under Section 239 of the...
Is discharge and quashing same?
Discharge is temporary relief, where the person can be made liable for his act, for the same reason anytime, again. Quash is termination of case. It cannot be resumed, except by appeal or review.
Friday, 25 October 2019
The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted.
Supreme Court: Court can not discharge accused in summons case
The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted.
Which court has recognised the absence of power of discharge in a summons case?
The Delhi High Court recently in R.K. Aggarwal v. Brig Madan Lal Nassa & Anr11 expressly recognised the absence of power of discharge in a summons case by holding:
Which court case ruled that the magistrate has the power to discharge an accused in a summons case?
This position held sway for a long time, till the Supreme Court in Bhushan Kumar v. State (NCT of Delhi)9 ruled that the Magistrate has the power to discharge an accused in a Summons Case. The relevant observations of the Court are as under :
What is the substance of accusation to be stated?
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.
What is the power of discharge in a case?
A decision which reads into Section 251 itself ‘the power of discharge’ may be required. One way in which the same can be done is by holding that the power to frame notice in a case, has implicit within itself the power not to frame a notice when no case is made out against the accused.
Which Supreme Court case dealt with recalling of summoning order?
The issue was first dealt-with at length by the Supreme Court in K.M.Matthew v. State of Kerala4 where the accused had sought recalling of the summoning order in a Summons Case.
Does the Supreme Court drop summons?
The recent order of the Supreme Court in Amit Sibal (supra), appears to be the much needed course correction and seems to suggest that the trial court has no power to drop proceedings/discharge in a Summons Trial. This also appears to be in sync with the settled judicial view and also the scheme of CrPC, wherein separate and distinct procedures have been laid down for Warrants, as opposed to Summons Cases (or those cases triable summarily for that matter).
Is summons discharge a specific provision?
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 volumes as to the legislative intent of not having an elaborate hearing at the time of framing of notice.
How can a summons case be tried?
Summons case can be tried either by instituting a complainant case by any individual, and secondly, by lodging of a FIR by the police in which State becomes a party as such instances are endangering public tranquillity.
What does discharge mean in court?
In simpler terms, it can be said that discharge means refusing to proceed further after issue of process. [1] However, none of these sections deal with the issue of summons case. It has been provided clearly that summons case means cases in which the punishment is of maximum two years is made out. [2]
What does it mean when a magistrate considers a charge to be groundless?
If, upon due consideration of the police report and all the documents sent under Section 173 along with examination of the accused, if any, as Magistrate thinks obligatory and after hearing prosecution as well as accused, the Magistrate considers the charge to be groundless against the accused, he shall discharge the accused and also record the reasons for doing so.
What does the Magistrate do at any previous stage of a trial?
Likewise, at any previous stage of the trial, if there stands a ground for presuming that the accused has committed an offence, the Magistrate must frame the charge accordingly under the provisions of the Code.
What does a magistrate feel about allegations?
Magistrate must feel that the allegations are baseless and hold no ground.
What happens if the evidence provided before the Court is not sufficient to satisfy the offence so alleged?
In the event that the evidence so provided before the Court is not sufficient to satisfy the offence so alleged, and in the absence of any prima facie case against him, he is entitled to be discharged.
When the grounds against the accused are found to be baseless, upon the condition that no evidence is present against the accused?
In the instance where the grounds against the accused are found to be baseless, upon the condition that no evidence is present against the accused, the Court shall consider that there is no prima facie case against the accused and must be discharged.
What is the power of summons trial?
In summons trial, there is no specific power to discharge the accused post summons, except as provided in section 258, Cr.P.C., which however does not apply in complaint cases. In warrant and session trials, the power is expressly provided in the form of Section 227/239/245 Cr.P.C. Judicial Examination:
Can you discharge someone after a summons?
The present article discusses the law regarding discharge (on merits) in summons cases based on complaints (predominantly affecting, inter alia, Defamation and NI Act), once accused has been summoned and how conflicting decisions have caused this issue to crop up repeatedly. In summons trial, there is no specific power to discharge the accused post summons, except as provided...
Can a summons be discharged?
In summons trial, there is no specific power to discharge the accused post summons, except as provided...
What is the Supreme Court case in Subramanium Sethuraman vs. State of Maharashtra?
In " Subramanium Sethuraman vs. State of Maharashtra and Ors " [8], the Supreme Court while plac ing reliance over Adalat Prasad case held that the accused person doesn't have any right to get discharged once the process is issued against him under section 204 of the Code . The only remedy which the accused enjoys is to challenge the order of issuance of process by filing the petition under section 482 and not by way of an application seeking the discharge which is clearly not given under the Code.
What case did the Supreme Court overrule?
However, in " Adalat Prasad vs. Roopal Jindal & Ors. " [7], the Supreme Court overruled the KM Mathew case and held that "the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law." Thus, the Supreme Court clarified that the accused has limited rights under the summons cases and he can't seek discharge as the same is not provided under the Code.
What is the punishment for dishonorable cheques?
The punishment for these cases could be imprisonment for upto 2 (two) years or fine or both [4], therefore the said cases fall under the category of summons cases.
Can you use the word "discharge" in a summons case?
State of Kerala & Ors [10] ., the Kerala High Court distinguished the Thomas vs. Verghese case and held that the accused person can move the application seeking discharge in summons case. The Court further observed that " if the word 'discharge' is used in a summons case, it cannot be said to be illegal. The court may use the word 'release' or 'discharge' when it finds that the proceedings cannot be continued in a summons case and consequently it drops the proceedings .".
When was the Cricket Association case pronounced?
It is to be noted that the Cricket Association case is pronounced prior to 1973 Code and the High Court didn't discuss the Adalat Prasad and Subramanium cases. Therefore, the sole reliance upon the judgment which was pronounced before the enactment of the Code and not discussing the other cases which came into light after the enactment of the Code may invite few questions.
Can a summons case be discharged?
However, the proceedings under summons cases being initiated otherwise than upon the complaint can be stopped in certain cases [5]. Thus, the literal interpretation of the Code shows that the accused can't be discharged in summons cases.
Which court has provided new approach to the issue of Joseph?
Nevertheless, vide the Joseph case, the High Court of Kerala has provided new approach to the issue.
An Overview of The Statutory Realm
- Speaking purely in terms of statutory provisions, an examination and juxtaposition of the provisions relating to trial of ‘Warrants Cases’ and ‘Summons Cases’ would quickly reveal that as far as Trials of Sessions and Warrants cases (for offences punishable with imprisonment of 2 years or more) are concerned, there are specific provisions in the form of Section 227 and 239 C…
Judicial Interpretation of Section 251 of The Crpc
- The issue was first dealt-with at length by the Supreme Court in K.M.Matthew v. State of Kerala4where the accused had sought recalling of the summoning order in a Summons Case. The facts of the case lie in very narrow conspectus; the accused (who was a Chief Editor of a daily newspaper) was summoned for an offence u/s 500 of the Indian Penal Code, 1860 (“IPC”) (defa…
An Aberration
- This position held sway for a long time, till the Supreme Court in Bhushan Kumar v. State (NCT of Delhi)9ruled that the Magistrate has the power to discharge an accused in a Summons Case. The relevant observations of the Court are as under : “It is inherent in Section 251 CrPC that when an accused appears before the trial court pursuant to summons ...
Course Correction
- The recent order of the Supreme Court in Amit Sibal (supra), appears to be the much needed course correction and seems to suggest that the trial court has no power to drop proceedings/discharge in a Summons Trial. This also appears to be in sync with the settled judicial view and also the scheme of CrPC, wherein separate and distinct procedures have been l…
Analysis.
- 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 volumes as to the legislative intent of not having an elaborate hearing at the time of framing of notice. What also deserves to be borne in mind is the fact that Summons Cases were not envisaged to be as long-drawn out as Warrants …
Conclusion
- A decision which reads into Section 251 itself ‘the power of discharge’ may be required. One way in which the same can be done is by holding that the power to frame notice in a case, has implicit within itself the power not to frame a notice when no case is made out against the accused. Such a judicial pronouncement is required to clear the air on this issue. Amendment of the law is, of c…