"Can Magistrate Discharge Accused In Summons Cases, Especially In S.138 NI Act Matters?" Delhi HC To Examine

Delhi High Court has recently agreed to consider a reference under Section 395 of Code of Criminal Procedure regarding Magistrates' power to discharge an accused in summons cases.

A Division bench comprising Justice Manmohan and Sangita Dhingra Sehgal has appointed Senior Advocate N.Hariharan as amicus curiae.

Q.1 Does the Court of a Magistrate have the power to discharge the accused upon his appearance in Court in a summons triable case based upon a complaint in general, and in a case under Section 138 NI Act in particular, once cognizance has been taken and process issued under Section 204 Cr.P.C.?

Q.2 If the answer to Question 1 is in the affirmative, under which Section of Cr.P.C. does such a power lie?

Q.3 Further, if the answer to Question 1 is in the affirmative, at what stage can such an application for discharge be entertained i.e. before the framing of notice of accusation under Section 251 Cr.P.C., or before / at the time of framing of notice of accusation under Section 251 Cr.P.C. or before / at the time/even after the framing of notice of accusation under Section 251 Cr.P.C.?

Q.4 Finally, if the answer to Question 1 is in the affirmative, what shall be the scope of such a power of discharge and what will be the scale of standard of proof on which the accused will be required to make his contention acceptable – similar / stricter / lesser vis-a-vis what is so contemplated under Sections 227 / 239 / 245 Cr.P.C.? Moreover, can documents produced by the accused be allowed to be taken into consideration at that stage for deciding such an application?

Q.5 On the other hand, if the answer to Question 1 is in the negative, will it be correct to say that the accused shall not have any remedy vis-a-vis the magisterial court which will only conduct a proper trial once process has been issued and accused has been summoned? 

The bench has posted the matter for hearing on November 25.