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Report No. 154

Chapter VIII

Summon Cases-warrant Cases-summary Trial-changes in Procedure

1. The Code of Criminal Procedure is essentially a procedural law with the object of providing a machinery for the punishment of offenders under the substantive criminal law. It lays down the procedure to be followed in every investigation, enquiry and trial, for every offence under the Indian Penal Code or under any other law. The concern for speedy trial is the main premise underlying the Code, both with regard to investigation and also with regard to trial. In respect of offences other than those tried at the Session Courts a broad division into summons cases and warrant cases, is made.

2. Section 2(x) defines warrant-case as one relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

Section 2(w) lays down that the summons-case means a case relating to an offence, and not being a warrant case, thereby implying that all cases relating to offences punishable with imprisonment not exceeding 2 years, shall come in the category of summons cases.

3. Chapter XIX provides for two types of procedure for the trial of warrant cases by the Magistrate, viz. those instituted upon a police report and those instituted upon a complaint. The procedure therein is somewhat elaborate.

In respect of cases instituted on police report, section 239 provides for the discharge of the accused if the Magistrate upon consideration of the police report and the documents sent with it and after making such examination. If any of the accused, considers the charge to be groundless before framing of the charge and if the accused pleads guilty conviction follows under section 241. Sections 242 and 243 lay down the procedure for taking evidence by the prosecution and defence respectively. In respect of the cases instituted otherwise than' on police report the Magistrate, as provided under section 244 has to hear the prosecution and take the evidence as may be produced.

Section 245 provides for discharge of the accused if the evidence taken makes out no case against the accused.

Sections 246 and 247 elaborate the further procedure where the accused is not discharged, and in the opinion of the Magistrate, the regular trial has to go on after framing a charge etc.

Sections 248 to 250 deal with conclusion of the trial and are common to both types of cases.

4. In respect of the summons cases Chapter )0( contains the necessary procedure. The main difference between the two procedures is that in respect of the summons cases there is no need to frame the charge. In this class of cases arising on a private complaint or on a police report, the evidence of both sides generally has to be made ready and has to be recorded at a single sitting and is to be followed by a judgment without any delay. The trial of the cases under this procedure is thus designed to occupy the minimum amount of time.

5. In both procedures section 249 and 256 provide that in the absence of the complainant, the accused may be discharged or acquitted. In the case of summons procedure section 257 provides for the withdrawal of the complaint. One other important provision in respect of summons procedure is section 259 whereunder the court has the power to convert summons case into warrant case. If in the course of the trial of a summons case relating to an offence punishable with imprisonment for a term exceeding six months, if the Magistrate thinks that in the interest of justice the offence should be tried in accordance with the procedure for the trial of warrant cases, he may do so.

6. Chapter XXI deals with summary trials. As provided under section 260, certain Magistrates of First Class, especially empowered by the High Court may try in a summary way any of the offences mentioned therein. Sub-section 2 of section 260 lays down that when in the course of summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try summarily, he may even recall the witnesses and proceed to rehear the case in the manner provided by the Code. Section 261 gives powers to Second Class Magistrate to try summarily an offence which is punishable only with fine or with imprisonment for a term not exceeding six months.

7. Section 262, however, lays down that in summary trial the procedure specified for the trial of summons cases shall be followed except as mentioned therein. Section 262(2) further lays down that no sentence of imprisonment for a term exceeding 3 months shall be passed in the case of any conviction under that Chapter. Section 263 gives the particulars to be entered in the record to be made at the time of summary trial.

Section 264 lays down that in every case tried summarily in which accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. A combined reading the provisions of the summons procedure and the summary trial procedure would show that the latter is meant to be more brief and the summons procedure to be followed in respect of summary trials is further abridged by virtue of sections 263 and 264. The Court is required to record only reasons in a brief manner in support of the findings.

8. The Fourteenth Report of the Law Commission observed that the division between the summons cases and warrant cases is arbitrary. It has also observed that in certain classes of offences, the ingredients of the offences are the same. But some of the them fall under the category of summons cases merely on the basis of sentence.

The Law Commission recommended that as a general rule all offences which do not carry punishment of imprisonment for more than three years can be tried under the summons procedure without any prejudice to the accused. If such a course is adopted, there will be the addition of one hundred and twenty seven more offences under the Indian Penal Code alone to the existing list of offences triable by the procedure applicable to summons cases and that alone where sentence is of similar nature.

9. A perusal of the two procedures would show that they are somewhat alike in many respects. To ensure speedy trial, the procedure must be simplified so that the bulk of cases which are being handled by the Magistrate can be disposed of more expeditiously. In all the workshops conducted, it was unanimously voiced that the summary procedure is not being adopted 'and that is one of the reasons for heavy pendency and delay.

It is also suggested that all the summons cases and the other offences mentioned under section 260 should be made compulsorily triable by way of summary trials. The survey conducted also shows that there is unanimity about the suggestion to convert all offences carrying punishment upto three years imprisonment into summons cases and to make it mandatory that all such offences should be tried summarily.

10. The important aspect to be noticed is whether all the summons cases can be tried summarily except such of those which by virtue of the nature or circumstances of the offences or accused warrant a full trial and if in respect of such class of cases summary procedure is not found to be salutary then whether a provision has to be made enumerating such offences which cannot be tried by way of summary trials or leave it to the discretion of the magistrate as provided under sub-section (2) of section 260.

This provision applies when the magistrate during the course of the trial discovers that it will be more appropriate for the court to try the accused on the regular side because of the character and nature of the case. Naturally, such a course should be exceptional and the magistrate should give sufficient reasons for adopting such a course. For such class of cases, the warrant procedure can be applied and all the other categories of cases called summons cases should be tried summarily. Then the summons procedure under Chapter XX can be dispensed with.

A provision can also be made by amending section 260 to the effect that in all cases tried summarily, the punishment cannot exceed six months or fine upto Rs. 3000. Accordingly section 262(2) be deleted. If provisions are made to this effect, section 206 which provides issuing such summons in cases of petty offences enabling the accused to put forward his plea in writing where he pleads guilty and transmit the same by post or his pleader to plead on his behalf can also be revised.

In such special summons, the amount of fine to be levied can also be specified. Even scope for the accused for plea bargaining as well as indicating his willingness to compound the offence should be made available. On the basis of such plea, the magistrate can record his plea and pass appropriate orders. In all summons cases which can be tried summarily as indicated above, the procedure can be simplified as provided under sections 263 and 264.

11. We are also of the view that as voiced in many workshops, the summons procedure is not strictly being followed and the summary trial procedure is also not being adhered to and as a result, heavy pendency is there and trials are inordinately delayed.

12. In the light of the above discussion, we suggest that section 2(x) defining warrant cases should be amended to the effect that warrant case means a case relating to an offence punishable with death, or imprisonment for term exceeding three years. Likewise section 2(w) should be amended to the effect that summons case means relating to an offence and not being a warrant case summarily triable under Chapter XXI thereby laying down that all offences, which do not fall under the definition of warrant case, fall under the category of summons cases summarily triable.

In this context, it can also be noticed that section 274, which deals with the recording of evidence in summons cases, also is to the effect that in all summons cases tried the magistrate shall, as the examination of each witness proceeds, make a memorandum of substance of the evidence in the language of the court. This is in accordance with the summary procedure under Chapter )(XI as well as the changes proposed by us and this section be changed by adding the word "summarily" after the words "summons cases tried".

13. As we are trying to bring under the umbrella of summons cases all those offences which are punishable with imprisonment of three years, the coverage thus gets increased and a large number of offences can also be brought under summary trial. However, we have suggested the amendment of section 260 so that the magistrate shall have the power to award sentence of imprisonment upto a period of six months or a fine upto Rs. 3,000. But there may be cases of serious nature warranting higher punishment depending upon the seriousness and gravity of offence and other circumstances.

In such a situation, the magistrate who is trying the case summarily can have recourse to sub-section (2) of section 260. It may be mentioned that section 259 in Chapter XX provides that the courts shall have the power to convert the summons case into a warrant case where in the course of trial of summon case relating to an offence punishable with imprisonment for a term exceeding six months, in the interest of justice, it appears to the magistrate that the same should be tried as a warrant case, he may proceed to do so.

Since we are proposing to dispense with summons procedure altogether, sub-section (2) of section 260 needs further amendment to the effect that where the magistrate takes recourse thereunder should give valid reasons for doing so, namely, that it is undesirable to try summarily and he may convert the same into a warrant case and try accordingly.

14. As a consequence of the above proposed changes. Chapter )0( providing for summons cases can be deleted and sub-section (1) of section 260 shall also be amended to the effect that all summons cases as per the proposed definition should be summarily tried. In section 260(1) the Sub-clauses (i) to (ix) stand deleted. A new clause (d) under sub-section (1) should be inserted with effect that in all cases tried summarily, the imprisonment shall be up to six months or fine up to Rs. 3,000. Further section 260(2) be amended as mentioned above.

15. Coming to the procedure to be adopted in such summarily trials, the question is to what extent some of the provisions, of summons procedure are to be followed in view of section 262(1). The said provisions lay down that in summary trials under Chapter XXI, the procedure specified in the Code for the trial of summons-case shall be followed except as thereinafter mentioned.

Now as we are suggesting the deletion of Chapter XX dealing with the trial of summons cases, some provisions in that chapter have to be incorporated in Chapter XXI, rather appropriately in section 262. The aspects of procedure contained in sections 251, 252, 253, 256, 257 and 258 of the Code can suitably be incorporated in section 262 by way of an amendment. Section 262 should then read as under:

"262. Procedure for summary trials.-(1) When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused 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.

(2) 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.

(3) Where a summons has been issued under section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons.

(4) If the Magistrate does not convict the accused under sub-sections (2) and (3), the Magistrate shall proceed to record evidence as provided under section 274 and conclude the trial as provided under sections 263 and 264.

(5) (a) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complaint 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.

(b) The provisions of clause (a) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

(6) If a complaint, 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.

(7) In any summons-case tried summarily 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."

Accordingly, the existing sub-sections (1) and (2) of section 262 be deleted and substituted by the aforesaid sub-sections (1) to (7) in section 262. However, if the Magistrate does not convict the accused under section 262(2) and 3 he shall proceed with summary trial in accordance with sections 263, 264 and 265. However, in view of the deletion of clause (i) to (ix) of section 260, clause (f), section 263 stands deleted.

16. Even in respect of warrant cases triable under Chapter XIX, it has to be considered whether the procedure can be further simplified.

17. The Law Commission in its 41st Report suggested certain changes to the then existing provisions and we find in the Code of 1973 the changes have been introduced to a large extent. However, even in the existing provisions under Chapter XIX, we find the two procedures to some extent being the same with a difference upto a particular stage in respect of the cases arising out of police report and those arising otherwise than on a police report.

The Law Commission in its Fourteenth Report also noticed the difference and recommended no change.

18. In the workshops held, it has been voiced that the manner of examination of the witnesses needs modification. It is also highlighted that unnecessary time is being taken by postponing the proceedings in view of the procedures regulating the witnesses for further cross-examination. We find that the views expressed are correct and some changes have to be made in this regard.

19. In cases arising out of a police report, all the statements having been recorded during investigation should be supplied in advance and the cross-examination should proceed continuously. In the case of other types of cases arising otherwise than on police report also, evidence already recorded before issuing process would be available furnishing sufficient material for cross-examination, and many adjournments just for the purpose of carrying on further cross-examination can be avoided.

Accordingly sections 242(2), (3) and 246(4) be amended.



The Code of Criminal Procedure, 1973 Back




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