TRAIL OF SUMMON CASES

Introduction
The Criminal Procedure Code of 1973 is, as is clearly indicated by
its title, a comprehensive enactment laying down the law relating to
criminal procedure. But it is worth mentioning that the code is not a
pure adjective law of procedure; there are some provisions in it
which take the nature of substantive law. For instance, chapters
VIII, X and XI which deals with ‘prevention of offences’ and
chapter IX that deals with ‘maintenance of proceedings’. As per the
Code, criminal trials can be divided into three categories namely:
warrant cases, summons cases and summary trials. The focus of this
article shall be summons cases.

Summons Cases
The term “summons cases” has been defined, in a negative sense,
under Section 2(w) of the CrPC as “a case relating to an offence,
not being a warrant case”. On the other hand, a “warrant case”
means a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two
years[1].
The two definitions, thus, lead to the conclusion that the basis of
classification between summons case and warrant cases is the
seriousness of the offence. This classification becomes applicable
while determining the type of trial procedure to be adopted in a case.
The trial procedure provided for summons cases is devoid of much
formality and technicality as in warrant cases since the former is
relatively less serious in nature. Chapter XX (Ss. 251-259) of the
Criminal Procedure Code delineates the procedure for trial of
summons cases.

The following are the stages to be followed in

respect of procedure relating to the trial of
summons case:
1. Substance of accusation to be stated to the accused

When in a summons cases 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.[3] It is necessary that the accused should
have a clear statement made to him as to the particulars of the
offence of which he is charged.[4]An accused may not be convicted
even on his admission of guilt if the prosecution report does not
make out an offence under a statute.[5]

2. 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.[6] If the accused admits some or all
of the charges alleged by the prosecution but pleads “not guilty”, the
court is bound to proceed according to law by examining the
witnesses of prosecution and defence.[7]

3. Conviction on plea of guilty in absence of accused in petty cases

Section 253 of CrPC provides an even simpler procedure for

disposing of petty cases without the presence of accused in the
court. Where the accused wants to plead guilty without appearing in
the court, the accused is supposed to send Rs.1000/- by post or
through a messenger (pleader) to the Magistrate. The Magistrate can
on his discretion convict the accused.

4. Procedure when not convicted by the Magistrate—

[Hearing the Prosecution and Defence case]

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 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.[8]
The Magistrate may, on the application of the prosecution, issue
summons to any witness directing him to attend or produce
evidence.[9] The Magistrate is bound to examine all the witnesses
and he is not empowered to limit the number of witnesses.
The Magistrate may, before summoning any witness on such
application, require that the reasonable expenses of the witness
incurred in attending for the purposes of trial be deposited in
court.[10]

5. Acquittal or conviction

If the Magistrate after considering evidence finds the accused not

guilty, he shall record an order of acquittal.[11] He may also decide
to release the offender after admonition, or on probation of good
conduct after under Section 360, or under Probation of Offender
Act,1958 after considering the nature of offence, character of
offender and circumstances of the case.[12] A Magistrate may
convict the accused of any offence (amenable to the trial in a
summons case) which from the facts admitted or proved the accused
appears to have committed.[13] This can only be done if the
Magistrate is satisfied that it would not prejudice the accused.[14]
If the Magistrate, while discharging or acquitting the accused, thinks
that there was no reasonable ground for making accusation against
the accused person, he may call upon the person making such
accusation to show cause as to why he should not pay compensation
to the accused person after which the Magistrate may, for reasons to
be recorded, make an order fixing the compensation to be paid by
such person to the accused.[15]

6. The court can convert a summons case into a warrant case

Section 259 of the CrPC provides that if in the course of the trial of
a summons case relating to an offence punishable with
imprisonment 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 trial of warrant cases, he may
proceed to re-hear the case in the manner provided by the Code for
the trial of warrant cases and may even recall any witness who may
have been examined.
The words “re-hear the case” indicate that the Magistrate should
commence the proceedings from the very start or de novo.[16]
Contributed by – Shivam Singh
Unity Law and Degree College
[1] Section 2(x) of the Code of Criminal Procedure, 1973.
[2] (1996) 4 SCC 127
[3] Section 251
[4] Acharjee Lall (1878) 3 CLR 87
[5] Purushottam Sabra v. State of Orissa, 1992 Cri LJ 1417
(Ori).
[6] Section 252
[7] Somabhai, (1907) 9 Bom LR 1346
[8] Section 254(1) of CrPC 1973
[9] Section 254(2) of CrPC 1973
[10] Section 254(3) of CrPC 1973
[11] Section 255(1)
[12] Section 255(2)
[13] R.V. Kelkar, “Lectures on Criminal Procedure”, Fourth
Edition, 2006.
[14] Section 255(3)
[15] D.M. Seth v. Ganeshnarayan R. Podar, 1993 Cri LJ
1899(Bom)
[16] Ratanlal and Dhirajlal, “The Code of Criminal Procedure”
Introduction
“Summon” is a document that commands a person to
whom it is served to appear before the court and to
answer the complaint made against him. Summon is
issued by the Magistrate to the accused under section
204(1) (a) of Cr.P.C, 1973. “Summon case” means a
case relating to an offence, not being a warrant case[1].
Summon cases can be referred from the definition of the
warrant case i.e., offences punishable with death,
imprisonment for life and imprisonment for the terms
exceeding two years called as warrant cases[2]. So
summon cases are those in which punishment will not
exceed imprisonment for two years. It can be said that
summon cases are not of serious nature, so it needs to
be decided speedily, without dispensing the requisites of
the fair trial. The procedure to deal with such matter
provided in section 251 to 259 of Cr.P.C, 1973 which is
not as serious/formal as other trials (Session trial,
warrant case instituted on the police report and warrant
cases instituted otherwise than on police report).
The main emphasis in the present article is on the
procedure of the summon cases. General steps of a
procedure in summon case is same as other trials, but
this trial is less formal for the speedy remedy.

Procedure of trial in summon-cases

Explanation of the particulars of the offence

Section 251 provides that it is not mandatory to frame

charges but the section does not dispense with the
explanation of the particulars of the offence when
accused is brought or appear before the Court. This is
done to make the accused cognizant for the allegations
made against him. If in case unable to convey the
particulars than this will not vitiate the trial and it will not
lead to the prejudice with the accused as this irregularity
is remediable under section 465 of the code[3]. Under
section 251 courts shall ask the accused whether the
accused pleads guilty, and section 252 and 253 needs to
comply for conviction on such plea of guilty.

Conviction on plea of guilty

Section 252 and 253 provides conviction on the plea of

guilty. Section 252 provides plea of guilty in general and
section 253 provides plea of guilty in case of the petty
cases. In case accused plead guilty, the answer is
affirmative than in accordance with law court will record
the plea in the exact words of the accused on the basis of
which accused can be convicted on the Court’s discretion.
If not affirmative than the court needs to proceed further
with Section 254. If the accused plead guilty, and the
charges against him do not constitute any offence than
mere plea will not amount to the conviction of the
accused. As the magistrate has the discretion to convict
on the plea or not, if on plea the accused is convicted
than the magistrate shall proceed according to section
360 otherwise hear the accused on the question of
sentence and sentence him according to law. If the plea
of guilty is not accepted than magistrate shall proceed
according to section 254.
Procedure if the accused not convicted on plea

Section 254 provides about both prosecution and defence

case if the accused not convicted on plea under section
252 and 253.

Prosecution case

The magistrate will hear the accused and take all the
evidence. In the hearing, the prosecution will be given
chance to open its case by putting facts and
circumstances which constitute the case and by revealing
the evidence which he relied upon to prove the case. The
magistrate on the application of the prosecution, serve
summon to any witness to attend and to produce any
document or thing. The magistrate will prepare the
memorandum of the evidence according to section 274.
Same as other trials in summon cases also the
magistrate will comply with section 279 i.e.,
interpretation of evidence to the accused and 280 i.e.,
recording of the demeanor of the witnesses.
Hearing of the defence: – (Defence Case)

After the prosecution evidence under 254 and

examination of defence under section 313, in the
continuance of this, the court will proceed with the
defence hearing under section 254(1). In the hearing of
the defence means accused will be asked for accused say
against the prosecution evidence. Failure of hearing of
the accused in any case will amount to the fundamental
error in the criminal trial and it can not be cured under
section 465. Evidence produced by the accused will be
recorded in the same manner as in case of prosecution
under section 274, 279, 280. After the submission of the
evidence of the defence, he will be allowed to submit his
arguments under section 314.

Acquittal or conviction

After recording the evidence under 254 the magistrate

will acquit the accused if he finds the accused not guilty.
If the accused is guilty than Magistrate shall proceed
according to Section 360 or 325 otherwise, sentence him
according to the law.
 Accused appear or brought
before the court

Explanation of the particulars of

the offence

⇓
⇓

Conviction on the plea of guilty procedure

when not convicted on a plea

⇓ ⇓
⇓

Acquittal Conviction
Prosecution hearing and record of evidence

⇓
 Defence
hearing and record of evidence

Submission
of argument under section 314

Acquittal/conviction

Non-appearance or the death of the complainant

According to section 256 on the date fixed for the

appearance of the accused nonexistence of the
complainant will empower the court to acquit the accused
unless the court has the reason to adjourn the case to
some other day. Section 256(1) is also applicable in case
of the death of the complainant↓. In case the
representative of the dead complainant does not appear
for 15 days where the defendant appeared, the
defendant can be acquitted held by the Supreme Court.[4]

Discharge in case of Summon cases

I summon cases instituted otherwise than the complaint

Section 258 authorize the first class Magistrate, with the
prior sanction of the Chief Judicial Magistrate, to stop the
proceeding at any stage. Therefore if he stops the
proceeding ‘after record of the evidence’ than it is the
pronouncement of a judgment of acquittal, and in case
stops ‘before the record of the evidence’ it is released
which has the effect of discharge.

It is controversial that in summon case instituted on

complaint Magistrate do not have any power of dropping
of the case even if he has no sufficient ground to proceed
against the accused. This is because if the Magistrate
does so then he will recall his own order. Supreme Court
said that the issue of process is interim order of the
Magistrate, not the judgment so it can be recalled. No
provision is required to empower the magistrate to drop
the case in such circumstances[5]. In summon cases on
complaint Magistrate cannot discharge, review and recall
the order of the issue of the process. There is no
dropping of the case, the trial court has to conclude the
trial.[6] In summon cases the Magistrate of the trial court
has no power to drop the proceeding in the absence of
such provision in the law. A person can approach the
High Court under section 482 of Cr.P.C in such
circumstances[7]. There is no provision of discharge in
summon cases instituted on complaint accused will be
either convicted or acquitted.[8]

Analysis

The trial of the summon cases is less formal than other

trial procedure just for the speedy remedy. Therefore the
Section 258 which does not empower the Magistrate to
drop the case, even in the absence of sufficient ground is
somehow prejudice to the accused. Court’s opinion in the
K.M. Matthew case was that the Magistrate has the
implied power to drop the case if the allegation against
accused does not prove the commission of any crime. In
various judicial pronouncements, it has dissented.
In Arvind Kejriwal case Supreme Court held law does not
specifically empower Magistrate in regard to dropping of
the case under 258 and passed the case to the high court
to deal with it under section 482. But the point needs to
be considered that the High court also again need to look
into the case to find out whether there is any sufficient
ground to proceed against the accused, all this will
impede the main objective of the summon case i.e.
speedy trial. Though this matter was addressed before
the apex court in various cases, it must be scrutinized
again to keep the fair trial and the right of the accused
out of jeopardy in such circumstances.

[1] Section 2(w) of Criminal procedure code, 1973

[2] Section 2(x) of Criminal procedure Code, 1973

[3] Manbodh Biswal v. Samaru Pradhan 1980 Cri LJ

1023(ori); Nayan Ram v. Prasanna Kumar, 1953 cri LJ
1574;

[4] S. Rama Krishna v. S Rami Reddy (2008) 5 SCC 535

[5] K. M. Matthew v. State of Kerala (1992) 1 SCC 217

[6] Subramanium Sethuraman v. State of Maharashtra &

Anr, (2004) 13 SCC 324

[7] Arvind Kejriwal and others v. Amit Sibal & Anr (2014)
1 High Court Cases (Del) 719

[8] R.K. Aggarwal v. Brig Madan Lal Nassa & Anr 2016
SCC Online Del 3720