Can An Accused Be Discharged In 138 NI Act Case ?

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.?

It is apposite to mention that the case is still pending adjudication, thus the aforesaid questions are yet to be decided. This is not the first time when the issue of discharge of an accused in summons cases arose. In fact, the jurisprudence on this subject is quite rich. However, the lack of uniformity in dealing with the aforesaid question is something which might have asked the High Court of Delhi to reconsider the aforesaid issue.

Fundamental provisions of law

Under the Code, the cases are largely divided under two main heads i.e. 'warrant cases'^[2] and 'summons cases'^[3]. Warrant cases are those where the punishment is death, imprisonment for life or imprisonment for a term exceeding two years, whereas the cases which are not warrant cases are the summons cases.

Negotiable Instruments Act, 1881, inter alia, deals with the issue of dishonored cheques vide Chapter XVII, containing sections 138 to 147. 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.

Provision of discharge in the Code

The Code has clearly given powers to the Sessions Court to discharge the accused in warrant cases vide section 227; and the Code also empowers the Magistrate vide section 239 to discharge the accused in warrant cases subject to the merits of the case. However, the Code is bereft of any provision/ section which can lead to discharge of an accused in summons cases. 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.

Related case laws

The scope of discharge of an accused in summons cases have been dealt with and discussed by the various courts on more than one occasion. At times, the judiciary chose to follow the strict literal interpretation rule and held that the Code doesn't have any provision which can allow the Magistrate to discharge the accused person in summons cases, but on other occasions, the courts adopted the liberal way and enlarged the scope of the Code and tried to provide relief to the accused persons. Some of the important case laws are hereby highlighted presenting the different stands taken up the courts on a very precise issue of law.

TheSupreme Court of India:-

In K.M. Mathew vs. State of Kerala & Ors^[6], the Supreme Court observed that the Magistrate has the judicial discretion to rescind the process issued against the accused and no specific provision qua the same is required. In other words, the Court clarified that the accused can be discharged in summons cases subject to the facts and merits of the case.

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.

In "Subramanium Sethuraman vs. State of Maharashtra and Ors"^[8], the  Supreme Court while placing 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.

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.

The  High Court of Kerala

In the case titled, Thomas v. Varghese^[9], the  Kerala High Court held that there is no scope of discharge in summons cases and consequently, the Magistrate is not empowered to discharge the accused in summons cases.

However, In Joseph John and Ors. vs. 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.".

The High Court of Kerala in the Joseph case has taken the liberal approach and provided the right to the accused in summons cases. The High Court in the said case has placed reliance upon the case of "Cricket Association of Bengal and Others v. The State of West Bengal and Others"^[11]. The  Supreme Court in the said case held that "even if the order of discharge is to be treated as passed in a case where summons case procedure is to be followed, it was within the jurisdiction of the Magistrate and hence it cannot be characterized as either illegal or not justified."

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.

Nevertheless, vide the Joseph case, the  High Court of Kerala has provided new approach to the issue.

The High Court of Delhi

In an interesting case the High Court of Delhi has categorically held that the Magistrate does have the power to discharge the accused in the summary case being initiated upon the private complaint. The High Court in the case titled Arvind Kejriwal and Ors. vs. Amit Sibal and Ors^[12], held that the accused has right to present his case at time of framing of notice under section 251 of the Code and if the Magistrate deems fit that there is no case against the accused, then the Magistrate is well within his power to discharge the accused even where the summons case is being initiated upon the private complaint. It'd be worth to refer the following excerpt of the judgment.

"The non availability of the remedy of discharge to the accused at the stage of notice under Section 251 Cr.P.C. is therefore discriminatory and arbitrary, considering that the said remedy is available to the accused in warrant cases as well as summons cases based on police reports. For example, in a case of Section 138 Negotiable Instruments Act read with Section 420 IPC, the offence being warrant case, the accused can seek discharge under Section 239 Cr.P.C., whereas in a case of Section 138 Negotiable Instruments Act, being summons case, the accused cannot seek discharge at the stage of notice under Section 251 Cr.P.C."

However, this case was subsequently challenged by the appellant in the  Supreme Court of India. The  Apex Court in the case titled "Amit Sibal vs. Arvind Kejriwal & Ors."^[13] while allowing the appeal didn't clarify the scope of the powers provided to the magistrate qua discharge of an accused in summons case and remanded the case back to the  High Court of Delhi without commenting upon the merits of the case. Thus, the Court highlighted the issue which was no more res integra.

But on other occasion, the Delhi High Court in the case titled "R K Aggarwal & Ors. vs. Madan Lal Nassa & Ors.^[14]" held that there is no stage of discharge in a summons case and thereby clarified the aforesaid issue in the clear and unambiguous terms.

Subsequently in 2019, the High Court of Delhi in the case titled "Court on its own Motion vs. State"^[15] is, inter alia, referred with proposition of law which has already been dealt by the various courts including by theSupreme Court of India.

It is submitted that the High Court of Delhi has now the golden opportunity to settle this controversial issue once for all. Therefore, it'd be interesting to see the fate of the aforesaid case which will surely create a huge impact upon the chances of the innocent parties who are unnecessarily arraigned as accused in the false and frivolous summons cases.