Section 258CrPC Not Applicable To 138 Cases- Supreme Court Suggests Amendment To NI Act Empowering Magistrate To Recall Summons

The Supreme Court has recommended an amendment empowering Magistrate to recall summons in respect of complaints under Section 138 Negotiable Instrument Act.

The Constitution Bench headed by CJI SA Bobde observed that Section 258 of the Code of Criminal Procedure is not applicable to complaints under Section 138 of the Negotiable Instruments Act and the Magistrates are not empowered to discharge the accused if the complainant is compensated to the satisfaction of the court.

However, the bench observed that amendment to the NI Act empowering the Trial Court to reconsider/recall summons may be considered on the recommendation of the Committee constituted in this regard.

Section 258 of the Code empowers the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal in any summons case instituted otherwise than upon complaint. Since Section 258 CrPC is not applicable to a summons case instituted on a complaint, it cannot come into play in respect of the complaints filed under Section 138 NI Act, the court observed while holding that findings to the contrary in Meters and Instruments Private Limited and Another v. Kanchan Mehta do not lay down correct law.

The Constitution Bench comprising CJI SA Bobde, Justices L Nageswara Rao, BR Gavai, AS Bopanna and S Ravindra Bhat reiterated the observations made in Adalat Prasad v. Rooplal Jindal 2004) 7 SCC 338 and Subramanium Sethuraman v. State of Maharashtra (2004) 13 SCC 324 that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint, the bench observed.

Section 258 CrPC : Power to stop proceedings in certain cases

Section 258 reads as follows: In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.

Section 143 NI Act deals with the Power of Court to try cases summarily. It provides that the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such summary trials.

In Meters and Instruments Private , the Supreme Court had observed that that Section 143 of the Act confers implied power on the Magistrate to discharge the accused, if the complainant is compensated to the satisfaction of the court. It was held that apart from compounding by the consent of the parties, the Trial Court has the jurisdiction to pass appropriate orders under Section 143 in exercise of its inherent power.  While holding that this is not a good law, the bench made following observations:

Conferring power on the court by reading certain words into provisions is impermissible. 

"The judgment of this Court in Meters and Instruments (supra) in so far as it conferred  power on the Trial Court to discharge an accused is not good law. Support 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. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation.. The Judge's duty is to interpret and apply the law, not to change it to meet the Judge's idea of what justice requires. The court cannot add words to a statute or read words into it which are not there."

Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. 

The Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. As held above, this Court, in its anxiety to cut down delays in the disposal of complaints under Section 138, has applied Section 258 to hold that the Trial Court has the power to discharge the accused even for reasons other than payment of compensation. 

Case: In Re Expeditious Trial Of Cases Under Section 138 of N.I Act

Coram : CJI SA Bobde, Justices L Nageswara Rao, BR Gavai, AS Bopanna and S Ravindra Bhat

Counsel:Senior Advocates Sidharth Luthra, R Basant and Advocate K Parameshwar (Amici Curiae)

Citation : LL 2021 SC 217

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