Report No. 14
41. Summary trials.-
A modification in procedure which ensures speedy disposal of cases is known as the procedure for summary trials. The procedure is, however, not suitable for adoption in complicated cases which call for detailed scrutiny.
42. Courts competent to try summarily.-
The shortening of the duration of a case in a summary trial is achieved not so much by a radical pruning of the procedure as by empowering a magistrate to record the evidence in a more summary fashion. Generally speaking, certain kinds of offences, mostly of a petty nature, are triable under this procedure. All cases not punishable with death, or imprisonment for life or imprisonment for a term exceeding six months are triable in this fashion, in addition to certain other offences specified in section 260 of the Criminal Procedure Code. Only district magistrates and magistrates of the first class specially empowered in this behalf by the State Government are competent to adopt this procedure. An important exception is that a magistrate who has been empowered under section 30 of the Code to award enhanced sentences and to try as a magistrate some of the more serious offences is not authorised to adopt this procedure in the trial of these serious cases.
43. Procedure in such cases (Abbreviated procedure) (Limitations on the power).-
The procedure relating either to the trial of summons cases or warrant cases has to be followed by a magistrate even if he tried cases summarily, except for some slight modifications. In cases where no appeal lies it is not necessary for the magistrate to record the evidence of the witnesses or to frame a formal charge; but certain particulars have to be noted by him in a prescribed form. In case of conviction, "a brief statement of the reasons" has to be given in this form. In cases where an appeal lies, the substance of the evidence of the witnesses and a judgment also has to be recorded.
The most important limitation on the powers of a magistrate trying a case under this procedure is that he cannot impose a sentence of imprisonment for a term exceeding three months. The magistrate has, therefore, to determine either upon a perusal of the record or after hearing the prosecutor and the accused, whether the case should be tried summarily or not. If he decides to try the case summarily, then, the next question for determination would be the procedure to be followed whether that relating to a summons case or to a warrant case.
Therefore, the magistrate will have to determine either upon the facts on record, or after the examination of the witnesses, whether the case would be one in which an appealable sentence would be passed. It may be mentioned that under section 414, Criminal Procedure Code, no appeal lies in cases tried summarily in which a magistrate acting under section 260, Criminal Procedure Code, passes a sentence of fine not exceeding Rs. 200. To that extent, therefore, he will have to judge before hand what sentence would have to be awarded in the event of the accused being found guilty.
In the majority of cases tried summarily, the facts are not likely to be complicated and an opinion in this respect can easily be formed by the magistrate. If the magistrate decides that the case is one in which a non-appealable sentence would eventually be passed if the accused is found guilty, the evidence of the witnesses would not have to be recorded, nor a formal charge framed. The particulars of the case, the plea of the accused and finding are recorded in a prescribed form. In appealable cases, in addition to these details, the magistrate has to reduce to writing the substance of the evidence of the witnesses and also to record a judgment before he passes sentence.
44. Defects of the procedure.-
The procedure for the summary trial of offences is one devised for use by a fairly experienced magistrate. In the majority of cases, non-appealable sentences are likely to be passed; no evidence would be recorded and no judgment written. There would thus be practically no record which could be scrutinised by a court of revision. It follows, therefore, that only experienced magistrates should be invested with this power. It is undeniable that, by this procedure, a great deal of time occupied in recording the evidence which, under the Code, has to be read over to the witness in his language and admitted by him to be correct is saved.
Nevertheless, we must point out that the court of revision sometimes finds it difficult to do justice to a convicted person, if the record which it has, does not contain even the substance of the evidence of witnesses. We have discussed this aspect of the matter and made appropriate recommendations in the chapter on "Criminal Revisions."
45. Distinction between summons and warrant procedure to go in summary trials.-
There seems also no reason why in cases which are tried summarily, two different kinds of procedure should be followed. When the Code defines the offences triable summarily and provides for the appointment of specially empowered magistrates for the purpose of holding such trials, it would seem to be sufficient to provide a uniform procedure for trial of such cases, whether they are warrant cases or summons cases. The majority of the offences which can be tried in this manner is that in which the punishment provided is imprisonment for six months or less. They would be summons cases.
Even in those specified offences where the warrant-case-procedure is to be followed, the maximum sentence that can be passed is limited to three months. No particular advantage would, therefore, be derived in following the more complicated warrant procedure, if the case is to be tried summarily. A uniform procedure in all cases triable summarily can, therefore, be adopted without any untoward consequences.
46. Recording of evidence.-
It will be noticed that expeditious disposal of these causes results only from the summary manner in which the evidence is recorded. Hence, it has been provided that in all summons cases and cases summarily triable under section 260(1) clauses (b) to (m) Cr. P.C., any magistrate of the first or the second class, even if he is not specially empowered to try cases summarily, need record only a memorandum of the substance of the evidence of the witnesses (section 355). But the trial will not be a summary one attracting the provisions relating to appealable and non-appealable cases; the different procedures, according to as the case is a summons or a warrant case, will have to be strictly followed.
47. Second class magistrates to be empowered to try cases summarily.-
The Chapter on Summary Trials also contains provisions whereby the State Government can empower any Bench of magistrates invested with the powers of the second or third class magistrate to try summarily certain offences under the Indian Penal Code and also offences under the Municipal Acts, Conservancy Laws, or Police and other Acts, which are punishable only with fine or with imprisonment for a term not exceeding one month with or without fine and attempts to commit any of the specified offences. This power can be conferred only upon Benches of magistrates and not on individual magistrates. In States where there are magistrates of the second class, a power enabling them, sitting singly, to try such cases summarily would achieve expedition.
48. Summary of conclusion.-
We may summarise our conclusions on this head as follows:-
(1) The structure of criminal courts in our country is not complicated and does not need simplification.
(2) The institution of honorary magistrates is capable of serving a very useful purpose by relieving the regular magistracy from the large number of petty cases. It also serves to associate the public with the administration of criminal justice.
(3) Care should be taken in appointing suitable persons as honorary magistrates and the State Government should make such appointments with the concurrence of the High Court.
(4) Honorary magistrates like other magistrates should sit during fixed hours and be provided with the necessary staff.
(5) After the judiciary has been separated from the executive, first class magistrates of five years' experience may be empowered to impose a sentence of imprisonment up to four years.
(6) Consequential amendments to Schedule II to the Criminal Procedure Code will have to be made and the existing provisions for specially empowering first class magistrates under section 30 of the Criminal Procedure Code will have to be repealed.
(7) All cases relating to offences punishable with imprisonment for a term not exceeding three years should be classified as summons cases and the summons procedure adopted in their trial.
(8) The new procedure prescribed for the trial of warrant cases instituted on police report has not prejudiced the accused but there is no room for shortening or curtailing the procedure further in such cases.
(9) In all cases tried summarily only the procedure relating to the trial of summons cases should be followed.
(10) State Governments may be empowered to authorise second class magistrates sitting singly to try summarily those cases in which summary procedure can now be followed by a Bench of second class magistrates.