S.258 CrPC | Magistrate Can Stop Proceedings When Presence Of Accused Cannot Be Secured Despite Best Efforts: Kerala High Court

The Division Bench comprising Dr. Justice AK Jayasankaran Nambiar and Dr. Justice Kauser Edappagath made it clear that Section 258 CrPC empowered a Magistrate to order stoppage of proceedings at any stage of the trial, after issuance of summons and before completion of trial. It observed that proceedings can be stopped when the Magistrate is satisfied that the presence of the accused cannot be secured before the court owing to the incorrect/fake address of the accused or for any other valid reasons, despite the prosecution having made sincere and earnest efforts.

“In our view, not only is the power vested in the Magistrate sufficiently wide in its nature and scope but also in cases where the presence of the accused cannot be secured notwithstanding the earnest and sincere efforts of the Prosecutor, the Magistrate is duty bound to exercise his/her power to stop the proceedings. The Magistrate must record reasons before stopping the proceedings and releasing the accused. “

The court also clarified that proceedings cannot be stopped by the Magistrate under Section 258 CrPC in cases where the accused was absconding after service of summons or intentionally dodging the service of summons.

The suo motu case was instituted based on a resolution dated August 22, 2023 of the Administrative Committee of the court regarding the pendency of cases.

The court remarked that earlier orders which held that Magistrate cannot order stoppage of proceedings under Section 258 of CrPC if presence of accused could not be secured despite initiation of coercive proceedings, and that it can be invoked only in peculiar circumstances (when no prima facie case was made out or no offence was committed or the prosecution was bound to fail due to technical defect), were not good law.

Analyzing the powers of the Magistrate under Section 258 CrPC, the court opined that wording of the provision was very wide and could cover many circumstances where the Magistrate can order stoppage of proceedings. It cautioned that the Magistrate shall exercise such powers sparingly in appropriate cases only.

“The wording of the Section is undoubtedly very wide and can cover any set of circumstances in which a Magistrate thinks that the proceedings in a summons case ought not to be continued any longer. No doubt, the power vested in the Magistrate is to be sparingly exercised only in appropriate cases, where proceeding with the case would amount to an abuse of the process of law or result in undue harassment of the accused or otherwise result in a miscarriage of justice. The primary intent of the legislation was to prevent the wastage of time of courts and to reduce backlog of cases, increasing time and economic efficiency.”

The court held that the intent of the legislature behind procedures stipulated for dealing with the petty offence was to obtain expeditious disposal of cases, to reduce congestion in Magistrate Courts which were petty in nature and numerous in number to save public time and money.

Accordingly, the court observed that stoppage of proceedings can be initiated by the Magistrate under Section 258 CrPC where it finds it difficult or impossible to proceed with the cases. Further, the court also noted that Section 258 CrPC does not provide or mention situations when the Magistrate can or cannot order stoppage of proceedings and it could be decided only based on the facts and circumstances in each case.

The court thus laid down the situations where the Magistrate can order stoppage of proceedings to prevent the pendency of cases from being satisfied with the report of the prosecution that they cannot secure the presence of the accused despite best efforts: 

1. In petty offences, the Magistrate shall scrutinize the report submitted prosecution and on being satisfied that reasonably sufficient steps have been taken to ensure the presence of the accused or that the costs of ensuring the appearance of such accused far exceeded the maximum fine that is prescribed under the Statute for the offence concerned.
2. In summons cases instituted otherwise than upon a complaint, that does not qualify as petty offences, the Magistrate shall scrutinize the report submitted prosecution and on being satisfied that reasonably sufficient steps have been taken to ensure the presence of the accused or that the costs of ensuring the appearance of such accused far exceeded the maximum fine that is prescribed under the Statute for the offence concerned.

Advocate Nandagopal S Kurup acted as Amicus Curiae

Special Public Prosecutor SU Nazar and Public Prosecutor EC Bineesh appeared for respondents

Citation: 2023 LiveLaw (Ker) 711

Case Title: Suo Moto High Court of Kerala v. State of Kerala and Anr.

Case number: O.P(CRL.) NO.809 OF 2023

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