Report No. 41
Trial of Summons Cases by Magistrates
20.1. Section 24.-Introductory.-
Summons cases are tried with much less formality than warrant cases, and the manner of their trial is less elaborate. There need, for instance, be no formal charge, and at present even a formal plea by the accused is not necessary. As soon as the accused appears, "the particulars of the offence of which he is accused" are stated to him, and he is asked "if he has any cause to show why he should not be convicted". If he admits that he has committed the offence and shows "no sufficient cause why he should not be convicted", he can be convicted at once.
In case the Magistrate does not on such admission convict him or if the accused "does not make such an admission", the Magistrate proceeds to hear the complainant, take "such evidence as may be produced" to support the prosecution, and then to hear the accused and take such evidence as he produces in defence. The proceedings are then virtually over, unless of course the Magistrate himself thinks it necessary to call some more evidence; and all that remains to be done by the Magistrate is to consider the evidence and either acquit or convict and sentence the accused. Even the method of preparing the record is less formal.
The whole of the evidence is not required to be taken down; a memorandum of the substance of the evidence is enough (section 355). The scheme is simple, and the intention clearly is that these not very serious but numerous cases should be decided quickly. We agree that this is how it should be. All the essentials of a fair trial are present here, and the nature of these cases is such that a more elaborate method would only add to the expense and perhaps harassment of the parties without substantially aiding the cause of justice. Without departing from the substance of the existing provisions, therefore, we have considered if some changes of detail would improve the working of the existing scheme.
20.2. Sections 241A (New).-
We have provided1 in Chapter XVII that in the case of certain petty offences, an accused who is willing to plead guilty need not be compelled to appear in Court, either in person or through pleader. Our object is to avoid unnecessary trouble to offenders who have committed petty offences and are willing to pay the penalty. To provide for the procedure in such cases, a new1 section 241A has also been proposed to be included in this Chapter.
1. Section 205A (proposed).
2. See para. 17.8 above.
20.3. Sections 242 and 243.-
We recognise that a formal charge is not necessary in summon.-cases, and it is sufficient to state the particulars of the offence. Section 242 then says that the accused should be asked "if he has any cause to show why he should not be convicted". This tends to be a little ambiguous. The intention, we take it, is to provide an opportunity to the accused to plead guilty or not guilty. The language of sections 242 and 243, however, is likely to create the impression that an admission of guilt alone may not be sufficient ground for a conviction.
We think it would be better if a straigh.-forward provision is made for the accused to plead guilty or not at that stage, as everybody understands these days what is meant by "pleading guilty" or "not guilty", and the Code itself uses this expression on other occasions. If the accused pleads guilty, he can be convicted at once; but if he does not, the case has to be decided on the evidence. On this view, sections 242 and 243 may be amended to read as follows.-
"242. Substance of accusation to be stated.- When 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.
243. Conviction of 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."
20.4. Procedure under section 242 when attendance of accused has been dispensed with.-
While doing this, we hope to set at rest a controversy that seems to have arisen at times about the meaning of section 242 when considered along with section 205. It will be noticed that section 205 enables a Magistrate issuing a summons for an accused to dispense with his personal attendance and to permit him to appear by his pleader. This power is likely to be used mostly in summons cases. Yet, in such cases, the proceedings have to start with the questioning of the accused about the accusation against him, so that if that questioning has to be personal, the power mentioned in section 205 cannot be usefully exercised.
One view, therefore, has been that in cases where the personal attendance of the accused is dispensed with, his pleader can, in his stead, plead to the "charge" or make an answer to the statement of allegations. The other view is, that such an admission of guilt is a serious matter, and if made negligently by a pleader, it can burden the accused with severe penalty, so that the accused alone can make such an admission and the questioning of the accused must be intended to be personal.
There is little doubt that nowadays in the Criminal Courts a pleader is in every case a practising lawyer. We do not think a member of the legal profession is likely to act without clear instructions in such a matter; and we therefore see no great danger in entrusting this task to the accused's pleader. We propose therefore that where the personal attendance of the accused has been dispensed with, his pleader may answer the charge against him.
20.5. Section 244.-
The wording of su.-section (1) of section 244 is unnecessarily verbose. All the situations mentioned there, in detail are covered by the opening words, the only two possibilities being when the Magistrate convicts on a plea of guilty, and when the Magistrate does not do so and the case proceeds to evidence. The proviso to the su.-section is also unnecessary. The sd.-section may be revised to read as follows.-
"Procedure when not convicted.- (1) If the Magistrate does not convict the accused under section 243 .... 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."
In su.-section (2) also, the word "prosecution" may be substituted for the word "complainant" in order to cover polic.-cases besides complaint cases.