Report No. 41
From the point of view of procedure, a summary trial is an abridged form of the regular trial and is resorted to in order to save time in trying petty cases. Shor.-cuts in procedure in criminal cases are not without risks; but in view of the safeguards provided as to the type of judicial officers who may exercise this power, the nature of the offences that may be so tried and the punishment that may be inflicted in such trials, summary jurisdiction is justifiable.
22.2. Section 26.-Classes of Magistrates who may try summarily.-
Under section 260(1), the Magistrates who can try a case summarily are (a) the District Magistrate, (b) any first class Magistrate specially empowered by the State Government, and (c) any Bench of Magistrates invested with the powers of a first class Magistrate and specially empowered by the State Government.
In view of the proposed separation and change in nomenclature, the reference to "District Magistrate" should be changed to read "Chief Judicial Magistrate". However, we do not consider it necessary to include the Chief Judicial Magistrate as, in practice, he would hardly have the time or occasion to try cases summarily.
At present, Presidency Magistrates are not mentioned in section 260, because under section 362(4) Presidency Magistrates are not required to record the evidence or to frame a charge in a case in which an appeal does not lie. We propose to remove this special provision and to equate the procedure to be I adopted by Presidency Magistrates in such cases with that laid down for summary trials. This not only avoids repetition, but also indicates clearly the record to be kept in the case. Hence we are adding Presidency Magistrates in section 260(1). (Compare the amendment made by Bombay Act 54 of 1959 on this point in section 260 and in section 362).
As regards first class Magistrates, the power to try cases summarily should be conferred, not by the State Government, but by the High Court which is in overall control and is in a better position to know their capabilities. As regards Benches of Magistrates also, the conferment of powers under this section should be by the High Court and not by the State Government.
Thus the three classes of Magistrates who may try cases summarily will b.-
(a) any Presidency Magistrate,
(b) any Judicial Magistrate of the first class specially empowered in this behalf by the High Court, and
(c) any Bench of Magistrates invested with the powers of a Judicial Magistrate of the first class and specially empowered in this behalf by the High Court.
Suggestions have been received that such powers should be given only to senior Judicial Officers. While it should be desirable that only experienced Magistrates with, say, 5 years' experience as a first class Magistrate should be given these powers, a statutory provision of a rigid character is not necessary. In fact, we find that powers under this section are even now conferred only upon experienced Magistrates.
22.3. Section 26.-offences that may be tried summarily.-
Section 260(1) gives in clauses (a) to (m) a list of the offences that may be tried summarily.
Clause (a) provides that all offences punishable with imprisonment upto six months may be tried summarily. This coincided with the definition of summons cases in the Code before the amendment of 1955. We are of the view that since the definition of "summons cases" has been now changed to cover offences punishable with imprisonment upto one year, the scope of offences triable summarily should also be correspondingly widened by substituting "one year" for "six months" in this clause.
Consequentially clauses (b) and (c) should be omitted, since the offences punishable under sections 264, 265, 266 and 323 of the Penal Code are punishable with imprisonment that may extend to one year only. It has been suggested that the offences under section 324 may be added in clause (c), and that, in clause (m), offences under the Prevention of Gambling Act, Opium Act, Excise Act and Dangerous Drugs Act may be added. The offence under section 324 (voluntarily causing hurt by dangerous weapons) is much more serious than that under section 323; it is cognizable, not bailable and punishable with imprisonment that may extend to three years and with fine. As regards offences under the Opium Act, a general provision covering all such offences would not be desirable. The suggestion has not, therefore, been accepted.
A suggestion has been made to effect the following changes in section 260(1):
(i) in clauses (d), (e), (f) and (g), the limit laid down for the value of the property should be increased from Rs. 200 to Rs. 1000; and
(ii) offences under sections 406, 417, 419 and 420 involving property not exceeding Rs. 1000 in value should be included in the section.
So far as the increase in the value of the property is concerned, we note that the value mentioned before the Amendment of 1955 was Rs. 50 and it was increased to Rs. 200 in 1955. As not much time has elapsed since the increase, we are not inclined to recommend a further increase.
As regards offences under section 406 (criminal breach of trust), 419 (cheating by personation) and 420 (cheating and dishonestly inducing delivery of property), these offences often involve complicated questions of facts and law, and it appears to us that an extension of the procedure for summary trials to such offences is not without risk. The offence under section 417 (cheating) will be covered by the proposed extension of section 260(1)(a) to offences punishable with imprisonment upto one year. We do not, therefore, recommend any amendment in this respect.
In clause (i), the reference to hous.-trespass under section 448 should be omitted since the offence is punishable with imprisonment up to one year only. The reference to section 457 should also be omitted since this is a grave offence punishable with five years' imprisonment and when connected with theft with 14 years' imprisonment.
Clause (m) is not accurately worded. Section 20 of the Cattle Trespass Act, 1871, does not create an offence, by itself. It is by virtue of the definition in section 4(1) of the Code of Criminal Procedure that any act in respect of which a complaint may be made under section 20 is included in the definition of "offence". The clause should be amended to rea.-
"(m) any offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871."
22.4. Section 261.-
Under section 261, the State Government can confer on any Bench of Magistrates invested with the powers of a Magistrate of the second or third class the powers to try summarily the specified offences. As in the case of the Benches mentioned in the previous section, we consider that the conferment of powers under this section also should be by the High Court, and not by the State Government.
In an earlier Report1, the Law Commission observed that in States where there are Magistrates of the second class, summary jurisdiction should be given to such Magistrates sitting singly. In our view, however, it would not be proper to give the power in question to individual Magistrates of the second class, having regard to the need for experience and maturity for a proper exercise of summary jurisdiction.
As for the offences which the Bench of Magistrates may try summarily, one of the sections of the Indian Penal Code mentioned is section 352 (assault or use of criminal force otherwise than on grave and sudden provocation), but the offence under section 358 (assault or use of criminal force on grave and sudden provocation) is not mentioned. The former is punishable with imprisonment upto 3 months, or fine upto Rs. 500 or both, while the latter is punishable with simple imprisonment upto one month or fine upto Rs. 200 or both. It has been suggested that the offence under section 358, Indian Penal Code should be included in section 261(a) of the Code of Criminal Procedure. Having regard to the fact that the latter offence is in all respects a less serious one than the former, we would accept the suggestion.
1. 14th Report, Vol. 2.
22.5. Section 262(1.-Summons case (Procedure in all summary trials).-
Section 262(1) provides that in summary trials the procedure prescribed for summons cases shall be followed in summons cases and the procedure prescribed for warrant cases shall be followed in warrant cases, except as mentioned in sections 263, 264 and 265. In an earlier Report1 the Law Commission recommended that this distinction between summons cases and warrant cases should be abolished in summary trials. Since the Code defines the offences triable summarily and contemplates the appointment of specially empowered Magistrates for trying such cases, it was recommended that a uniform procedure should be followed in all such cases.
It was pointed out, that in the majority of the offences so triable, the punishment was imprisonment for 6 months or less (which would be summon.-cases under section 4(1)(w) as it stood before 1955), and that the maximum sentence that could be passed was limited to three months even when the specified offences were warrant cases. For these reasons, the Law Commission recommended that summons case procedure should be followed in all cases, as no particular advantage would be gained by following the more complicated warrant case procedure if the case was to be tried summarily. We entirely agree with this recommendation.