[ad_1]
“Assuming there is a defect or an omission in the words
used by the legislature, the court would not go to its aid to
correct or make up the deficiency. The court cannot add words to a
statute or read words into it which are not there1…”
The question of discharge or dropping of proceedings in summons
case(s) instituted on a complaint has been a topic of relentless
deliberation before various courts across the country.
Significantly, though, there are specific provisions under the Code
of Criminal Procedure, 1973 (“CrPC/
Code“) which confer explicit powers on the Court of
Session2 and Court of Magistrate, in
warrant cases instituted on a police report3 or otherwise4, to
discharge an accused, however, no such mandate exists with
the magistrate while dealing with summons cases. At the same time,
provisions under Section 258 of CrPC, which deal with the
Magistrate’s5 power to stop/ drop proceedings,
restrict their applicability to summons-cases instituted otherwise
than upon a complaint. However, despite the absence of an explicit
statutory directive, there are numerous judicial precedents which
favor the exercise of powers of discharge and/ or dropping of
proceedings by Magistrate even in summons cases instituted on a
complaint. In contrast, there is also a plethora of pronouncements
which eschew such an exercise of power, terming it as excessive and
in violation of the statutory provisions. Regrettably, these
conflicting decisions have not only escalated confusion in the
minds of magistrate while dealing with such case, rather, resulted
in subsistence of ambiguity in law, especially in cheque dishonor
proceedings in terms of the provisions of the Negotiable
Instruments Act, 1881 (“NI Act“).
Pertinently, the provisions for discharge are premised on an
understanding6 that before proceeding with a
trial against an accused, “the Court should be satisfied
that the accusation made against the accused person is not
frivolous and that there is some material for proceeding against
him.” Further, in this regard, the courts7 have consistently
observed, “[i]f there is no legal evidence, then obviously
framing of charge would be redundant and then only it can be said
that compelling the accused to go to trial will amount to
infringement of his right under Article 21 of the
Constitution.” However, this power is not unfettered,
rather, circumscribed within certain judicially defined parameters.
It is trite law8 that the application of discharge,
within the statutorily permissible limits, may be entertained on
the examination of the establishment of a prima facie9
case against the accused. Further, the courts have unswervingly
declared that the test to determine existence or non-existence of a
prima facie case depends upon the facts of each case and
that there are no rules of universal application to the said
effect. In fact, the Hon’ble Apex Court10 in this regard
has cautioned that while exercising its jurisdiction of discharge,
“court 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”. At the same time it has been mandated,
“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 if he was conducting a trial.”
One of the earlier cases wherein the Hon’ble Apex Court
professed in favor of the exercise of power of discharge/ dropping
of proceedings by magistrates in summons case, instituted on a
complaint, was rendered in K.M. Mathew v. State of
Kerala11. As per the Hon’ble Court12,
“[i]t is open to the accused to plead before the
Magistrate that the process against him ought not to have been
issued. The Magistrate may drop the proceedings if he is 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.” In fact, in the
instant case, the Hon’ble Court went to the extent of holding
that an order issuing the process is an interim order and that the
same can be varied or recalled. However, subsequently, while
distinguishing13 the decision in K.M.
Mathew case, the Hon’ble Court14 in
John Thomas v. K. Jagadeesan (Dr)15,
explicitly declared, “Section 258 of the Code has no
application to cases instituted upon complaints.”
Significantly, since the decisions in, both, the said cases were
rendered by Division benches of the Hon’ble Supreme Court, the
uncertainty in law prevailed until a three 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 specific provision is
required for recalling an erroneous order, amounting to
one without jurisdiction, does not lay down the correct
law.” In fact, the Hon’ble Court clarified,
“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
provisions of Sections 200 and 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
Criminal Procedure Code 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 the Code.” Appositely, the decision in
Adalat Prasad case was reaffirmed by
another three Judges’ bench of the Hon’ble Apex Court in
Subramanium Sethuraman v. State of
Maharashtra18, by reiterating, “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.” In fact, the Hon’ble Court, in
the instant case, specifically dispelled the argument favoring
reconsideration of the decision 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 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 case….a bad
law.”
Significantly, despite a clear mandate of law in
Adalat Prasad and Subramanium
Sethuraman cases, 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 appears before the trial court pursuant to summons
issued under Section 204 of the Code in a summons trial case, it is
the bounden duty of the trial court to carefully go through the
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 the affirmative, the
Magistrate shall explain the substance of the 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.”
Significantly, though, the said decision was rendered in the
context where the Hon’ble Apex Court did not consider the
earlier decisions of its larger benches, however, the same view
prevailed and was reiterated by several Courts20, while permitting
applications for discharge even in summons cases instituted on
complaint. In fact, the Hon’ble High Court of Delhi in
Urrshila Kerkar v. Make My Trip (India) Private
Limited21, attempting to distinguish the
decision of the Hon’ble Apex Court in Adalat Prasad
case observed, “[i]t is no doubt true that
Apex Court in Adalat Prasad v. Rooplal Jindal…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 (supra), 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……decision in Adalat Prasad (supra) cannot possibly be
misread to mean that proceedings in a summons 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.” Subsequently, the Hon’ble High Court in
Arvind Kejriwal v. Amit Sibal22
went a step ahead, mandating, “in the event of the learned
Magistrate not finding a prima facie case against the accused, the
Magistrate shall discharge/drop the proceedings against the
accused……these directions are being issued in exercise of power
under Section 482 read with Section 483 CrPC and Article 227 of the
Constitution to secure the ends of justice; to avoid needless
multiplicity of procedures, unnecessary delay in trial/protraction
of proceedings; to keep the path of justice clear of obstructions
and to give effect to the principles laid down by the Supreme Court
in Bhushan Kumar case..” Pertinently, though, the said
decision of the Hon’ble High Court of Delhi was set aside in an
appeal23, however, while passing its
decision, the Hon’ble Apex Court did not deliberate and delve
deep into the recourse adopted by the Hon’ble High Court. In
fact, the Hon’ble Supreme Court merely recorded that the
parties to the said case had acceded before it that the,
“order permitting the respondents to raise such
contentions at the stage of framing of notice and directing the
Metropolitan Magistrate to consider the same and pass appropriate
order is contrary to law.” Accordingly, while accepting
the said view and based on the suggested proposal, the Hon’ble
Supreme Court referred the matter back to High Court for
reconsideration.
Similar to the extension of principles of discharge in summons
cases, the Hon’ble Apex Court in Meters and
Instruments (P) Ltd. v. Kanchan Mehta24
extended the provisions of Section 258 CrPC to a proceeding under
Section 138 of the NI Act. In fact, in the instant case, the
Hon’ble Court, while taking recourse to the provisions of
Section 14325 of the said enctament, inter
alia, observed, “Section 258 CrPC which enables
proceedings to be stopped in a summons case, even though strictly
speaking is not applicable to complaint cases, since the provisions
of CrPC are applicable “so far as may be”, the principle
of the said provision is applicable to a complaint case covered by
Section 143 of the Act which contemplates applicability of summary
trial provisions, as far as possible i.e. with such deviation as
may be necessary for speedy trial in the context.”
Significantly, reasoning behind the extension of the provisions of
discharge and/ or dropping of proceedings to summons case,
understandably, relates to expeditious resolution of disputes, to
prevent protraction of proceedings, ensure interest of justice,
etc., however, quite recently, a five 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 exercise of
jurisdiction by magistrate. The Hon’ble Court in its said
pronouncement, in fact, upheld the decisions rendered in
Adalat Prasad and Subramanium
Sethuraman cases as interpreting the law, correctly
noting that there is, “no inherent power of Trial Courts
to review or recall the issue of summons.” At the same
time, the Hon’ble Court while holding that the decision in
Meters and Instruments case, in so far as
it conferred power on the Trial Court to discharge an accused, does
not lay down a good law, observed, “[s]upport taken from
the words “as far as may be” in Section 143 of the Act is
inappropriate. The words “as far as may be” in Section
143 are used only in respect of applicability of Sections 262 to
265 of the Code and the summary procedure to be followed for trials
under Chapter XVII. Conferring power on the court by reading
certain words into provisions is impermissible.”
Accordingly, it was resolutely affirmed by the Hon’ble Court
that the provisions of Section 258 of the Code are not applicable
to a summons case instituted on a complaint, including the
proceedings initiated under Section 138 of the NI Act.
Clearly, the recent 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 seems to premised on an age old adage,
“Quando aliquid prohibetur ex directo, prohibetur et per
obliquum28“ to the effect
that a magistrate cannot exercise its power indirectly by
discharging an accused or discontinuing summons proceedings, in the
absence of conferment of explicit power of recalling or reviewing
its order (of summons) under the Code. However, considering the
ground realities regarding the huge pendency of cases, delay in
adjudication, etc., even in summons cases29, reasonableness
of the approach adopted by the Hon’ble Apex Court appears to be
futile and purposeless. In fact, awareness of these difficulties,
is the likely reason why that, though, the Hon’ble Court
refrained to diverge from the statutory provisions, however, dodged
the responsibility on the legislature to consider amendment in the
statutory provisions, empowering the Trial Court to reconsider/
recall its order of summons. Nevertheless, till the time any
initiative is taken by the legislature in the said direction, law
seems to be more or less settled that a magistrate is devoid of
powers to discharge and/ or drop proceedings in summons case/
summons cases instituted on a complaint, including the proceedings
in cheque dishonor cases.
Footnotes
1.
P.K. Unni v. Nirmala Industries, (1990) 2 SCC
378
2. Refer
to the provisions under Section 227 of the Code of Criminal
Procedure, 1973/ CrPC.
3. Refer
to the provisions under Section 239 CrPC.
4. Refer
to the provisions under Section 245 CrPC.
5. As per
Section 258 CrPC, being the Magistrate of the first class or, with
the previous sanction of the Chief Judicial Magistrate, any other
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 is prima facie
evidence or the material against the accused in support of the
charge (allegations) he may frame charge in accordance with Section
240 Cr.P.C. But if he finds that the charge (the allegations or
imputations) made against the accused do not make out a prima facie
case and do not furnish basis for framing charge, it will be a case
of charge being groundless, so he has no option but to discharge
the accused.” [Refer to Arun Vyas and Ors. v.
Anita Vyas, (1999) 4 SCC 690]
9.
“If there is no prima facie evidence or the evidence is
totally unworthy of credit, it is the duty of the Magistrate to
discharge the accused, on the other hand, if there is some evidence
on which the conviction may reasonably be based, he must 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 K. Jagannatha Shetty and HMJ
Yogeshwar Dayal
13.
“The learned Senior Counsel made a last attempt to save
the appellant from prosecution on the strength of the decision of
this Court in K.M. Mathew v. State of Kerala….. In that case
prosecution against the Chief Editor was quashed for want of
necessary averments in the complaint regarding his role in the
publication. That part of the decision rests entirely on the facts
of that case and it cannot be imported to this
case….”
14.
Bench comprising of HMJ K.T. Thomas and HMJ R.P. Sethi
15.
(2001) 6 SCC 30
16.
HMJ Santosh Hegde, HMJ S.B. Sinha and HMJ A.K. 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.K. 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 anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), all offences under this
chapter shall be tried by a Judicial Magistrate of the first class
or by a Metropolitan Magistrate and the provisions of Sections 262
to 265 (both inclusive) of the said Code shall, as far as may 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 means, “When anything is prohibited
directly, it is prohibited indirectly.”
29.
Since the offences are of lesser gravity and triable by simple
procedure it is usually expected that the same would be resolved
expeditiously.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
[ad_2]
Source link