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“Assuming there’s a defect or an omission within the phrases
utilized by the legislature, the courtroom wouldn’t go to its help to
right or make up the deficiency. The courtroom can not add phrases to a
statute or learn phrases into it which aren’t there1…”
The query of discharge or dropping of proceedings in summons
case(s) instituted on a criticism has been a subject of relentless
deliberation earlier than numerous courts throughout the nation.
Significantly, although, there are particular provisions beneath the Code
of Criminal Procedure, 1973 (“CrPC/
Code“) which confer express powers on the Court of
Session2 and Court of Magistrate, in
warrant circumstances instituted on a police report3 or in any other case4, to
discharge an accused, nevertheless, no such mandate exists with
the Justice of the Peace whereas coping with summons circumstances. At the identical time,
provisions beneath Section 258 of CrPC, which take care of the
Magistrate’s5 energy to cease/ drop proceedings,
prohibit their applicability to summons-cases instituted in any other case
than upon a criticism. However, regardless of the absence of an express
statutory directive, there are quite a few judicial precedents which
favor the train of powers of discharge and/ or dropping of
proceedings by Magistrate even in summons circumstances instituted on a
criticism. In distinction, there may be additionally a plethora of pronouncements
which eschew such an train of energy, terming it as extreme and
in violation of the statutory provisions. Regrettably, these
conflicting selections haven’t solely escalated confusion within the
minds of Justice of the Peace whereas coping with such case, moderately, resulted
in subsistence of ambiguity in legislation, particularly in cheque dishonor
proceedings by way of the provisions of the Negotiable
Instruments Act, 1881 (“NI Act“).
Pertinently, the provisions for discharge are premised on an
understanding6 that earlier than continuing with a
trial towards an accused, “the Court ought to be happy
that the accusation made towards the accused individual is just not
frivolous and that there’s some materials for continuing towards
him.” Further, on this regard, the courts7 have persistently
noticed, “[i]f there isn’t any authorized proof, then clearly
framing of cost could be redundant after which solely it may be mentioned
that compelling the accused to go to trial will quantity to
infringement of his proper beneath Article 21 of the
Constitution.” However, this energy is just not unfettered,
moderately, circumscribed inside sure judicially outlined parameters.
It is trite legislation8 that the applying of discharge,
throughout the statutorily permissible limits, could also be entertained on
the examination of the institution of a prima facie9
case towards the accused. Further, the courts have unswervingly
declared that the take a look at to find out existence or non-existence of a
prima facie case relies upon upon the info of every case and
that there aren’t any guidelines of common software to the mentioned
impact. In reality, the Hon’ble Apex Court10 on this regard
has cautioned that whereas exercising its jurisdiction of discharge,
“courtroom can not act merely as a Post Office or a mouthpiece
of the prosecution, however has to think about the broad possibilities of
the case, the entire impact of the proof and the paperwork
produced earlier than the Court, any fundamental infirmities showing within the
case and so forth”. At the identical time it has been mandated,
“this nevertheless doesn’t imply that the Judge ought to make a
roving enquiry into the professionals and cons of the matter and weigh the
proof as if he was conducting a trial.”
One of the sooner circumstances whereby the Hon’ble Apex Court
professed in favor of the train of energy of discharge/ dropping
of proceedings by magistrates in summons case, instituted on a
criticism, was rendered in Okay.M. Mathew v. State of
Kerala11. As per the Hon’ble Court12,
“[i]t is open to the accused to plead earlier than the
Magistrate that the method towards him ought to not have been
issued. The Magistrate could drop the proceedings if he’s happy
on reconsideration of the criticism that there isn’t any offence for
which the accused might be tried. It is his judicial discretion. No
particular provision is required for the Magistrate to drop the
proceedings or rescind the method.” In reality, within the
prompt case, the Hon’ble Court went to the extent of holding
that an order issuing the method is an interim order and that the
identical could be various or recalled. However, subsequently, whereas
distinguishing13 the choice in Okay.M.
Mathew case, the Hon’ble Court14 in
John Thomas v. Okay. Jagadeesan (Dr)15,
explicitly declared, “Section 258 of the Code has no
software to circumstances instituted upon complaints.”
Significantly, because the selections in, each, the mentioned circumstances had been
rendered by Division benches of the Hon’ble Supreme Court, the
uncertainty in legislation prevailed till a 3 Judges’ bench16 of
the Hon’ble Court in Adalat Prasad v. Rooplal
Jindal17, firmly declared, “the
view of this Court in Mathew case…that no particular provision is
required for recalling an misguided order, amounting to
one with out jurisdiction, doesn’t lay down the right
legislation.” In reality, the Hon’ble Court clarified,
“if a Magistrate takes cognizance of an offence, points
course of with out there being any allegation towards the accused or
any materials implicating the accused or in contravention of
provisions of Sections 200 and 202, the order of the Magistrate could
be vitiated, however then the aid an aggrieved accused can receive at
that stage is just not by invoking Section 203 of the Code as a result of the
Criminal Procedure Code doesn’t ponder a evaluate of an order.
Hence within the absence of any evaluate energy or inherent energy with the
subordinate prison courts, the treatment lies in invoking Section
482 of the Code.” Appositely, the choice in
Adalat Prasad case was reaffirmed by
one other three Judges’ bench of the Hon’ble Apex Court in
Subramanium Sethuraman v. State of
Maharashtra18, by reiterating, “the
solely treatment out there to an aggrieved accused to problem an order
in an interlocutory stage is the extraordinary treatment beneath Section
482 of the Code and never by the use of an software to recall the
summons or to hunt discharge which isn’t contemplated within the trial
of a summons case.” In reality, the Hon’ble Court, in
the moment case, particularly dispelled the argument favoring
reconsideration of the choice in Adalat Prasad
case by observing, “[i]t is true that the
case of Adalat Prasad…pertained to a warrant case whereas Mathew
case…pertained to a summons case. To this extent, there may be some
distinction within the two circumstances, however that doesn’t, in any method, make
the legislation laid down by this Court in Adalat Prasad case….a nasty
legislation.”
Significantly, regardless of a transparent mandate of legislation in
Adalat Prasad and Subramanium
Sethuraman circumstances, a division bench of the Hon’ble
Apex Court, subsequently, in Bhushan Kumar v. State
(NCT of Delhi)19 rendered a diverging view by
holding, “[i]t is inherent in Section 251 of the Code that
when an accused seems earlier than the trial courtroom pursuant to summons
issued beneath Section 204 of the Code in a summons trial case, it’s
the bounden responsibility of the trial courtroom to fastidiously undergo the
allegations made within the charge-sheet or criticism and take into account the
proof to come back to a conclusion whether or not or not, fee of any
offence is disclosed and if the reply is within the affirmative, the
Magistrate shall clarify the substance of the accusation to the
accused and ask him whether or not he pleads responsible in any other case, he’s certain
to discharge the accused as per Section 239 of the Code.”
Significantly, although, the mentioned choice was rendered within the
context the place the Hon’ble Apex Court didn’t take into account the
earlier selections of its bigger benches, nevertheless, the identical view
prevailed and was reiterated by a number of Courts20, whereas allowing
purposes for discharge even in summons circumstances instituted on
criticism. In reality, the Hon’ble High Court of Delhi in
Urrshila Kerkar v. Make My Trip (India) Private
Limited21, making an attempt to differentiate the
choice of the Hon’ble Apex Court in Adalat Prasad
case noticed, “[i]t is little question true that
Apex Court in Adalat Prasad v. Rooplal Jindal…has dominated that
there can’t be recalling of summoning order, however seen within the
backdrop of choices of Apex Court in Bhushan Kumar and Krishan
Kumar (supra), aforesaid choice can’t be misconstrued to imply
that after summoning order has been issued, then trial should comply with.
If it was to be so, then what’s the function of listening to accused at
the stage of framing Notice beneath Section 251 of
Cr.P.C……choice in Adalat Prasad (supra) can not probably be
misinterpret to imply that proceedings in a summons criticism case can not
be dropped towards an accused on the stage of framing of Notice
beneath Section 251 of Cr.P.C. even when a prima facie case is just not made
out.” Subsequently, the Hon’ble High Court in
Arvind Kejriwal v. Amit Sibal22
went a step forward, mandating, “within the occasion of the realized
Magistrate not discovering a prima facie case towards the accused, the
Magistrate shall discharge/drop the proceedings towards the
accused……these instructions are being issued in train of energy
beneath Section 482 learn with Section 483 CrPC and Article 227 of the
Constitution to safe the ends of justice; to keep away from unnecessary
multiplicity of procedures, pointless delay in trial/protraction
of proceedings; to maintain the trail of justice away from obstructions
and to offer impact to the rules laid down by the Supreme Court
in Bhushan Kumar case..” Pertinently, although, the mentioned
choice of the Hon’ble High Court of Delhi was put aside in an
enchantment23, nevertheless, whereas passing its
choice, the Hon’ble Apex Court didn’t deliberate and delve
deep into the recourse adopted by the Hon’ble High Court. In
reality, the Hon’ble Supreme Court merely recorded that the
events to the mentioned case had acceded earlier than it that the,
“order allowing the respondents to lift such
contentions on the stage of framing of discover and directing the
Metropolitan Magistrate to think about the identical and go applicable
order is opposite to legislation.” Accordingly, whereas accepting
the mentioned view and based mostly on the steered proposal, the Hon’ble
Supreme Court referred the matter again to High Court for
reconsideration.
Similar to the extension of rules of discharge in summons
circumstances, the Hon’ble Apex Court in Meters and
Instruments (P) Ltd. v. Kanchan Mehta24
prolonged the provisions of Section 258 CrPC to a continuing beneath
Section 138 of the NI Act. In reality, within the prompt case, the
Hon’ble Court, whereas taking recourse to the provisions of
Section 14325 of the mentioned enctament, inter
alia, noticed, “Section 258 CrPC which allows
proceedings to be stopped in a summons case, though strictly
talking is just not relevant to criticism circumstances, because the provisions
of CrPC are relevant “so far as may be”, the precept
of the mentioned provision is relevant to a criticism case lined by
Section 143 of the Act which contemplates applicability of abstract
trial provisions, so far as potential i.e. with such deviation as
could also be needed for quick trial within the context.”
Significantly, reasoning behind the extension of the provisions of
discharge and/ or dropping of proceedings to summons case,
understandably, pertains to expeditious decision of disputes, to
forestall protraction of proceedings, guarantee curiosity of justice,
and so forth., nevertheless, fairly lately, a 5 judges’ bench26 of
the Hon’ble Apex Court in In Re: Expeditious Trial
of Cases Under Section 138 of the Negotiable Instruments Act,
202127 deprecated such an train of
jurisdiction by Justice of the Peace. The Hon’ble Court in its mentioned
pronouncement, in truth, upheld the selections rendered in
Adalat Prasad and Subramanium
Sethuraman circumstances as decoding the legislation, accurately
noting that there’s, “no inherent energy of Trial Courts
to evaluate or recall the difficulty of summons.” At the identical
time, the Hon’ble Court whereas holding that the choice in
Meters and Instruments case, in as far as
it conferred energy on the Trial Court to discharge an accused, does
not lay down a superb legislation, noticed, “[s]upport taken from
the phrases “as far as may be” in Section 143 of the Act is
inappropriate. The phrases “as far as may be” in Section
143 are used solely in respect of applicability of Sections 262 to
265 of the Code and the abstract process to be adopted for trials
beneath Chapter XVII. Conferring energy on the courtroom by studying
sure phrases into provisions is impermissible.”
Accordingly, it was resolutely affirmed by the Hon’ble Court
that the provisions of Section 258 of the Code aren’t relevant
to a summons case instituted on a criticism, together with the
proceedings initiated beneath Section 138 of the NI Act.
Clearly, the current mandate by the Constitutional bench of the
Apex Court in In Re: Expeditious Trial of Cases Under
Section 138 of the Negotiable Instruments Act, 2021
case appears to premised on an age previous adage,
“Quando aliquid prohibetur ex directo, prohibetur et per
obliquum28“ to the impact
{that a} Justice of the Peace can not train its energy not directly by
discharging an accused or discontinuing summons proceedings, within the
absence of conferment of express energy of recalling or reviewing
its order (of summons) beneath the Code. However, contemplating the
floor realities concerning the massive pendency of circumstances, delay in
adjudication, and so forth., even in summons circumstances29, reasonableness
of the strategy adopted by the Hon’ble Apex Court seems to be
futile and purposeless. In reality, consciousness of those difficulties,
is the doubtless cause why that, although, the Hon’ble Court
refrained to diverge from the statutory provisions, nevertheless, dodged
the duty on the legislature to think about modification within the
statutory provisions, empowering the Trial Court to rethink/
recall its order of summons. Nevertheless, until the time any
initiative is taken by the legislature within the mentioned course, legislation
appears to be roughly settled {that a} Justice of the Peace is devoid of
powers to discharge and/ or drop proceedings in summons case/
summons circumstances instituted on a criticism, together with the proceedings
in cheque dishonor circumstances.
Footnotes
1.
P.Okay. Unni v. Nirmala Industries, (1990) 2 SCC
378
2. Refer
to the provisions beneath Section 227 of the Code of Criminal
Procedure, 1973/ CrPC.
3. Refer
to the provisions beneath Section 239 CrPC.
4. Refer
to the provisions beneath Section 245 CrPC.
5. As per
Section 258 CrPC, being the Magistrate of the primary class or, with
the earlier sanction of the Chief Judicial Magistrate, another
Judicial Magistrate.
6. Refer
to Richard Winn Harcos v. State of West Bengal, 1975
SCC OnLine Cal 170 : 1975 Cri LJ 1256
7. Refer
to Kaushalya Devi v. State of M.P., 2003 SCC OnLine MP
672 : (2003) 8 AIC 755 and Somen Bal v.
State of West Bengal, 2018 SCC OnLine Cal 14158 : (2018) 3 Cal LT
601
8.
“If the Magistrate finds that there’s prima facie
proof or the fabric towards the accused in assist of the
cost (allegations) he could body cost in accordance with Section
240 Cr.P.C. But if he finds that the cost (the allegations or
imputations) made towards the accused don’t make out a prima facie
case and don’t furnish foundation for framing cost, it will likely be a case
of cost being groundless, so he has no possibility however to discharge
the accused.” [Refer to Arun Vyas and Ors. v.
Anita Vyas, (1999) 4 SCC 690]
9.
“If there isn’t any prima facie proof or the proof is
completely unworthy of credit score, it’s the responsibility of the Magistrate to
discharge the accused, however, if there may be some proof
on which the conviction could fairly be based mostly, he should commit the
case.” Sajjan Kumar v. CBI, (2010) 9 SCC
368
10.
Refer to Union of India v. Prafulla Kumar Samal, (1979)
3 SCC 4
11.
(1992) 1 SCC 217
12.
Division bench comprising of HMJ Okay. Jagannatha Shetty and HMJ
Yogeshwar Dayal
13.
“The realized Senior Counsel made a final try to avoid wasting
the appellant from prosecution on the energy of the choice of
this Court in Okay.M. Mathew v. State of Kerala….. In that case
prosecution towards the Chief Editor was quashed for need of
needed averments within the criticism concerning his function within the
publication. That a part of the choice rests solely on the info
of that case and it can’t be imported to this
case….”
14.
Bench comprising of HMJ Okay.T. Thomas and HMJ R.P. Sethi
15.
(2001) 6 SCC 30
16.
HMJ Santosh Hegde, HMJ S.B. Sinha and HMJ A.Okay. Mathur
17.
(2004) 7 SCC 338
18.
(2004) 13 SCC 324
19.
(2012) 5 SCC 424
20.
Refer to Raujeev Taneja v. NCT of Delhi & Ors, Crl
MC 4733/2013 (dated 11.11.2013, DHC);
S.Okay. Bhalla v. State, (2011) 180 DLT
219
21.
2013 SCC OnLine Del 4563
22.
(2014) 1 HCC (Del) 719: 2014 SCC OnLine Del
212
23.
Amit Sibal v. Arving Kejriwal & Ors., (2018) 12 SCC
165
24.
(2018) 1 SCC 560
25.
“(1) Notwithstanding something contained within the Code of
Criminal Procedure, 1973 (2 of 1974), all offences beneath this
chapter shall be tried by a Judicial Magistrate of the primary class
or by a Metropolitan Magistrate and the provisions of Sections 262
to 265 (each inclusive) of the mentioned Code shall, so far as could also be,
apply to such trials:..”5
26.
Comprising of HMJ S.A. Bobde, HMJ L. Nageswara Rao, HMJ B.R. Gavai,
HMJ A.S. Bopanna and HMJ S. Ravindra Bhat
27.
2021 SCC OnLine SC 325
28.
Latin maxim which suggests, “When something is prohibited
instantly, it’s prohibited not directly.”
29.
Since the offences are of lesser gravity and triable by easy
process it’s often anticipated that the identical could be resolved
expeditiously.
The content material of this text is meant to supply a common
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