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

TRIAL OF SUMMONS CASE INSTITUTED ON A POLICE REPORT

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.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.258: Power to stop proceedings in certain cases - 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.

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. S.207 Cr.P.C.: As and when the accused is present before the Magistrate, he should be supplied with copies of the “Police Report”, “FIR” recorded under Section 154 Cr.P.C., statements and all other records mentioned in Section 207 Cr.P.C.
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 cannot 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 in between. (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 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 under Section 258 Cr.P.C. (Vide Dr. Kamala Rajaram v. Dy.S.P, Office of the S.P (Rural) Neyyattinkara 2005 (3) KLT 617 = 2005 KHC 951 – R. Basant – J).

How to state the “substance of accusation”

• Mere reading of the charge sheet filed by the police 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. 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

• This 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 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 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.

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 circumstance appearing against him in the evidence, the Magistrate should examine the accused under Section 313 (1) (b) Cr.P.C. This is a facet of “audi alteram partem” 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 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, or 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.258 Cr.P.C.:

Discharging the accused consequent on stoppage of proceedings

• This is a special provision available only in a case instituted on a “police report”. After the appearance of the accused and commencement of trial if the Magistrate finds it difficult or impossible to proceed in the normal way under Section 254 Cr.P.C, he will be justified in stopping the proceedings under Section 258 Cr.P.C. without pronouncing any judgment. Where such stoppage is made after the evidence of the principal witnesses has been recorded, the Magistrate can pronounce a judgment of acquittal and in any other case the Magistrate may release the accused and such release shall have the effect of a discharge. This power is not available to a Magistrate trying a “summons-case” instituted on a “complaint”. This power can be exercised by the Magistrate only with the previous sanction of the Chief Judicial Magistrate. Sub-section (5) of Section 300 Cr.P.C. enables the Magistrate to revive the proceedings and try the accused again with the consent of the Chief Judicial Magistrate in a case where the accused was discharged under Section 258 Cr.P.C.

A Division Bench of the Kerala High Court on 05-12-2023 in 2023 KHC OnLine 821 – Jayasankaran Nambiar, Kauser Edappagath – JJ, has taken the view that the Magistrate can exercise the power under Section 258 Cr.P.C even before the appearance of the accused in a case where the accused could not be served even after coercive steps taken against him. The Bench held that the Magistrate can in such a contingency, stop the proceedings. The said view is not only contrary to the scheme under the Cr.P.C but also against the verdict of the Supreme Court in Renuka v. State of Karnata (2009) 14 SCC 345 = 2009 Cri.L.J. 2245 – S. B. Sinha, Cyriac Joseph – JJ). The Division Bench in my view, was wrong in holding that an earlier verdict of a learned Single Judge of the Kerala High Court in 2019 (3) KLT 98 = 2019 (3) KHC 188 – Raja Vijayaraghavan – J, was not correct.

The remedy against evasion of process is not Section 258 Cr.P.C. but Part-C of Chapter VI Cr.P.C.

10. 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 –

(i) the offence is punishable with imprisonment for more than 6 months, and

(ii) 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).