Trial Of Summons Cases Explained By Justice V Ramkumar [Part-II]

TRIAL OF SUMMONS CASE INSTITUTED ON A COMPLAINT

S.251: Substance of accusation to be stated - When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make. But it shall not be necessary to frame a formal charge.

S.252: Conviction on plea of guilty

- If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him thereon.

S.253: Conviction on plea of guilty in absence of accused in petty cases.

S.254: Procedure when not convicted - (1) If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.

S.313: Power to examine the accused - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court--

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case:

Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

S.255: Acquittal or conviction - (1) If the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilt, he shall record an order of acquittal.

(2) Where the Magistrate does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.

(3) A Magistrate may, under Section 252 or Section 255, convict the accused of any offence triable under this Chapter which form the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby.

S.256: Non-appearance or death of complainant - (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

S.257: Withdrawal of complaint - If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.

S.259: Power of Court to convert summons-cases into warrant cases - When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant-cases and may recall any witness who may have been examined.

1. Supply of copies to the accused: As and when the accused is present before the Magistrate, he should be supplied with copies of the “complaint”, documents produced along with the complaint, sworn statement of witnesses etc.
2. S.251 Cr.P.C.:

Pre-trial release of the accused

• The purpose of stating the “particulars of the offence” to the accused under Section 251 Cr.P.C and thereafter taking his plea is for deciding whether or not the accused should be tried for the alleged offences. Once the accused pleads not guilty to the “substance of accusation” stated to him, the trial starts. Once the trial starts, the view taken by the Supreme Court is that the Magistrate cannot go back to the pre-trial stage and prematurely terminate the proceedings and that the trial which has already started should reach its logical culmination by “conviction” or “acquittal” as the case may be. In other words, after the commencement of trial there cannot be any dropping of the proceedings midway. (Vide Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4674 = (2004) 7 SCC 338 – 3 Judges – N. Santhosh Hegde, S. B. Sinha, A. K. Mathur – JJ; Subramanium Sethuraman v. State of Maharashtra AIR 2004 SC 4711 = (2004) 13 SCC 324 – 3 Judges - N. Santhosh Hegde, S. B. Sinha, Tarun Chatterjee – JJ). So, in a given case, if the accused is to be released for the reason that there is no offence made out against him, it has to be done prior to the commencement of trial. Hence, taking the cue from the aforesaid decisions of the Supreme Court, the Kerala High Court has held that even before the “substance of the accusation” is read over to the accused, the proceedings against him can be dropped and the accused can be released. (Vide Anandavel v. Food Inspetor 2010 (3) KLT 49 = ILR 2010 (3) Ker. 145 – V. Ramkumar – J.)

How to state the “substance of accusation”

• Mere reading of the complaint filed by the complainant is not sufficient, but the particulars of the offence must be explained to the accused. Magistrate should state the necessary ingredients of the offence. Accused should be apprised of the substance of the accusation and it should be made clear for what he is being tried. (Vide State of Kerala v. Raman Nair 1961 KLT 465 = 1962 (1) Cri.L.J. 429 – P. Govinda Menon – J).

“Substance of accusation” should disclose the offence

• When the substance of accusation is read over to the accused, the Magistrate should bear in mind that the same does disclose the ingredients of the alleged offence. Otherwise, if the accused were to plead guilty to the substance of accusation, his plea may only amount to an admission of the facts alleged by the prosecution which, even if it be true, may not be sufficient to constitute an offence. (Vide State v. Gopinatha Pillai 1978 KLT 779 – Subramonian Poti – J). In the trial of a summons case there is no framing of charge.

3. S.252 Cr.P.C.:

Conviction on pleading guilty

Plea of the accused should be “ipsissima verba”

• If the accused voluntarily pleads guilty to the particulars of the offence read over to him, the Magistrate should record the plea as nearly as possible in the words of the accused himself (“ipsissima verba”).

The Magistrate may in his discretion convict the accused on his plea of guilty in case the Magistrate is convinced that the plea of guilt has been made voluntarily i.e. of his own accord and free from any extraneous influence or pressure.

Conviction on plea of guilt may estop the accused from challenging the conviction

• Section 252 Cr.P.C. is an important provision because where the accused has voluntarily pleaded guilty and he is thereupon convicted, he is precluded from challenging his “conviction” in view of the bar under Section 375 Cr.P.C. and he can only challenge the legality of the “sentence” imposed on him.

The bar against challenging the conviction will not apply if the “substance of accusation” does not make out any offence

• But, as already noticed, if the “substance of accusation” to which the accused pleaded guilty, is insufficient to constitute an offence, then the bar under Section 375 Cr.P.C. against challenging the conviction will not apply to him. He may be entitled to challenge both the conviction and sentence. (Vide Gopinatha Pillai (Supra – 1978 KLT 779).

Conviction on plea of guilt is discretionary

• Even when the accused voluntarily pleads guilty, the Magistrate has the discretion to convict or not to convict the accused.

No trial when the accused is convicted on pleading guilty

• Conviction under Section 252 Cr.P.C. is without taking any evidence and, therefore, there is no trial at that stage.

Pleading guilty cannot be an incentive for reducing sentence

• Just because the accused has pleaded guilty, the same should not be taken as a circumstance for taking a lenient view regarding the sentence since courts have deprecated the practice of passing flea-bite sentences as a bargain for pleading guilty. (Vide para 13 of Muralidhar Meghraj Loya v. State of Maharashtra AIR 1976 SC 1929 = (1976) 3 SCC 684 – V. R. Krishna Iyer, P. K. Goswami – JJ).

Accused can be convicted for any other “admitted” or “proved” offence

• While convicting the accused on his pleading guilty under Section 252 Cr.P.C. it is open to the Magistrate to convict the accused if he appears to have committed another offence admitted to have been committed or proved by the evidence in view of Section 255 (3) Cr.P.C.

S.253 Cr.P.C. : This has been dealt with in the article on “SUMMARY TRIAL” falling under Chapter XXI Cr.P.C.

4. S.254 Cr.P.C.: THE “TRIAL” PROPER

• Where the accused is not convicted under Section 252 Cr.P.C even on his “pleading guilty” or where the accused “pleads not guilty”, the Magistrate should proceed to hear the prosecution and take all such evidence as may be “produced” in support of the prosecution. The word “produce” cannot be given any restricted meaning so as to saddle the prosecution with the entire responsibility of producing evidence. The Court has also the duty to enforce attendance of witnesses by issuing process under Section 254 (2) Cr.P.C. (Vide para 7 of State v. Veerappan AIR 1980 Mad. 260 – Paul – J).

5. 313 Examination:

• Except in cases where the Magistrate had dispensed with the personal attendance of the accused during trial, after the close of the prosecution evidence, with a view to enable the accused to explain any of the circumstance appearing against him in the evidence for the prosecution, the Magistrate should examine the accused under Section 313 (1) (b) Cr.P.C. This is a facet of “audi alteram partem” laid down under the principles of natural justice in which no person shall be condemned unheard. Courts have taken the view that if the explanation of the accused has not been taken with regard to any of the incriminating circumstance appearing against him in the prosecution evidence, it is impermissible for the Court to rely on such circumstance for recording a conviction against the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 = (1984) 4 SCC 116 – 3 Judges – S. Murtaza Fazal Ali, A. Varadarajan, Sabyasachi Mukharji – JJ).

6. S.255 (1) Cr.P.C.:

Acquittal on merits only after evidence

• An order of acquittal under Section 255 (1) Cr.P.C. can be passed only after taking evidence. Even in a case where the prosecution had not produced witnesses under Section 254 (1) Cr.P.C. in support of its case, it is the duty of the Court to summon and enforce the attendance of witnesses. An acquittal without doing it will not be proper. If in spite of such measures taken by the Court the presence of witnesses could not be secured by the prosecution either on account of pronounced negligence or recalcitrance, then the Court, being left with no alternative, would be justified in acquitting the accused for want of evidence. (Vide State v. Veerappan AIR 1980 Mad. 260 – Paul – J; Shantamma Radhamaniyamma v. Kumju Pillai 1980 KLT 393 = 1981 Cri.L.J. 247 – S. K. Khader – J).

7. S.255 (2) Cr.P.C.:

Accused to be found guilty on merits unless the Magistrate proceeds under Section 325 (1) or Section 360 Cr.P.C.

• Where the Magistrate does not acquit the accused under Section 255 (1) Cr.P.C. and where he does not decide to submit the case to the CJM under Section 325 (1) Cr.P.C. for the reason that the Magistrate is of the opinion that he cannot pass a sentence sufficiently severe, and where the Magistrate does not proceed under Section 360 Cr.P.C. (or under the benevolent provisions of the Probation of Offenders Act, 1958), he shall find the accused guilty and pass a sentence according to law.

8. S.255 (3) Cr.P.C.:

Accused can be convicted for any other “admitted” or “proved” offence

• While convicting the accused on merits under Section 255 (2) Cr.P.C it is open to the Magistrate to convict the accused if he appears to have committed another offence admitted to have been committed or proved by the evidence, in view of Section 255 (3) Cr.P.C.

9. S.256 Cr.P.C.:

Non-appearance of the complainant

• In a summons case when the complainant is absent on the date of hearing, three courses are open to the Magistrate –

1. The accused may be acquitted
2. The case may be adjourned, or
3. The Magistrate may proceed with the trial if the personal attendance of the complainant is not necessary.

A discretion is vested with the Magistrate to adjourn the case even though the words used are “if the complainant does not appear the Magistrate shall acquit the accused”. Hence if the Magistrate in his discretion adjourn the case, it cannot be said that the order is either improper or illegal. (Vide Sunderesan v. M. S. Hardwares 1995 (1) KLT 689 – K. P. Balanarayana Marar – J.)

• The conduct of the complainant plays a significant role. (Vide S. Rama Krishna v. S. Rami Reddy AIR 2008 SC 2066 = (2008) 5 SCC 535 – S. B. Sinha, L. S. Panta – JJ.)
• An accused who is under an obligation to attend the Court on all the posting days, will be put to much harassment if the complainant were to practice dilatory tactics. Section 256 affords a protection to the accused against such tactics practiced by the complainant who remains absent. The Magistrate in such a case would be justified in dismissing the complaint and acquitting the accused under Section 256 Cr.P.C. But, the discretion to acquit the accused or to proceed with the trial must be exercised judicially and fairly without impairing the cause of justice. If the personal attendance of the complainant is not necessary on a particular day, the Magistrate has the power to dispense with his attendance and proceed with the case. It is only in a situation which does not justify the case being adjourned, can the Magistrate dismiss the complaint and acquit the accused. (Vide Associated Cement Co. Ltd. v. Keshvanand AIR 1998 SC 596 = (1998) 1 SCC 687 – M. K. Mukherjee, K. T. Thomas – JJ.)
• When the complainant in a case is a body corporate, it is the de jure complainant and it must necessarily associate a human being as the de facto complainant to represent the company in Court proceedings. No Magistrate shall insist that the particular person whose statement was taken on oath at the first instance alone can continue to represent the company till the end of the proceedings. There may be occasions when different persons may have to represent the company. (Vide Associated Cement Co. Ltd. v. Keshvanand AIR 1998 SC 596 = (1998) 1 SCC 687 – M. K. Mukherjee, K. T. Thomas – JJ.)
• In a case where the Magistrate had given several adjournments, still the complainant did not appear and his witnesses were not present and there was no representation also in Court, the Magistrate was justified in dismissing the complaint and acquitting the accused. (Vide Manuel v. State 1984 KLT 859 - Bhaskaran Nambiar – J.)

10. S.256 Cr.P.C.: Death of the complainant

(Such a contingency will not happen in a summons case instituted on a “police report” since in such a case “State” is the complainant.)

• There is no specific provision in the Cr.P.C. to the effect that on the death of the complainant, the complaint will abate. Adjourning the case consequent on the death of the complainant is within the powers of the Magistrate under Section 256 Cr.P.C. If in the meanwhile, one of the legal representatives of the deceased complainant or an otherwise fit and proper person comes forward seeking permission to continue the proceedings, it is within the powers of the Magistrate to permit such person to continue the proceedings. (Vide Santhi Balagopan v. Benilde 1992 (2) KLT 488 –Balanarayana Marar – J.)
• Upon the death of the complainant, his legal heirs can file a petition under Section 302 Cr.P.C. seeking permission to continue the prosecution. (Vide Balasaheb K. Thackeray v. Venkat (2006) 5 SCC 530 = (2006) 3 KLT 509 – Arijit Pasayat, C. K. Thakker – JJ.)
• Even though the absence of the complainant on the day fixed for the hearing may entail the dismissal of the complaint and acquittal of the accused, in a case where the absence of the complainant is due to his death, the Magistrate can adjourn the hearing of the case and permit the son of the deceased complainant to proceed with the complaint. (Vide Jayarajan v. Jayarajan 1992 (2) KLT 586 – Pareed Pillai – J.)

11. S.257 Cr.P.C.:

(Section 257 Cr.P.C. applies only to summons cases instituted on private complaints (Vide para 11 of Y. P. Baiju v. State of Kerala 2007 (4) KLT 1082 – R. Basant – J.)

• The withdrawal of the complaint and consequent acquittal of the accused in a summons case instituted on a complaint cannot be made in the absence of a request for withdrawal by the complainant. (Vide B. Udayakumar v. Boban K. P. 2007 (3) KLT 247 – K. Hema – J.) In the absence of compliance with the pre-condition in the form of a request for exercising jurisdiction under Section 257 Cr.P.C., the matter remitted to the trial court for deciding afresh in accordance with law. (Vide Provident Fund Inspector, Tirupati v. Madhusudana Chaudhury (2000) 9 SCC 506 – G. B. Pattanaik, M. B. Shah – JJ.)
• A complainant figuring as a public interest litigant, after pursuing his case against quashing of the criminal proceedings up to the Supreme Court, not justified in seeking withdrawal of his complaint. Instead, he ought to have submitted to the discipline of the Court. (Vide Sampath Singh v. State of Haryana (1993) 1 SCC 561 – S. Ratnavel Pandian, K. Jayachandra reddy – JJ.)

12. S.259 Cr.P.C.:

Conversion of summons-case into a warrant-case

• This Section which is a new provision empowers the Magistrate to convert a summons-case into a warrant-case if –

1. the offence is punishable with imprisonment for more than 6 months, and
2. if the Magistrate is of the opinion that it would be in the interest of justice to try the case in accordance with the procedure for trial of warrant-cases. The words “re-hear the case” indicate that the Magistrate should commence the proceedings de novo i.e. from the very start.

The provisions of “summary trial” contained in Sections 262 to 265 Cr.P.C applicable for the trial of offences under the Negotiable Instruments Act, 1881 cannot be converted into warrant trial by pressing into service Section 259 Cr.P.C. (Vide Steel Tubes of India v. Steel Authority of India 2006 Cri.L.J. 1988 (MP) – S. L. Kochar – J).