An IMPORTANCE of DIFFERENCE OF OPINION

Bare reading this term “Difference of Opinion”, one will understand that the same is used in most of the judgement so rendered by the courts including various District & High Courts.?Then what is so important in this…

In many judgements we read that the courts while discussing the judgement / citations / authorities says that “the judgement cited by the counsel is not applicable”, but in most of the cases it is absent as to why it is not applicable.?This aspect clearly reveals that the judicial officer handling the present matter has difference of opinion over the ratio which is already relied and held as precedent.?Now a days, new thing can be seen and observed, the new era of advocates never reads the judgements in full rather they chose to read it from “Indiakanoon”, “casemine”, “lawrato” etc…?Now, don’t say that in my view those are not useful or they are not providing information as you seek, but at the same time, one has to search for the relevancy of matter.?Means only because some ratio is made applicable to any judgement / order, it is not applicable to all the cases.

Some people now may say what’s new in that??So in order to understand these things, I will take you to some authorities.?So in order to understand the point, we have to take an issue: consider it as “DISCHARGE IN SUMMONS CASES”….

Now question is whether we can seek discharge in summons cases and the maintainability of the application to stop proceedings.

Supreme Court’s decision in?K.M Mathew?[AIR 1992 SC 2206].

K.M. Mathew?involved a Summons Case where the Petitioner — the Chief Editor of Malayala Manorma — challenged proceedings in a defamation case instituted upon a complaint,?after?having been summoned to face trial. All accused persons appeared before the court after summons, and convinced the magistrate to drop proceedings, having argued that no case was made out. But the High Court overturned this order. It is worthwhile to extract the Supreme Court’s discussion on the same:

Para 6 : “The High Court did not examine whether the complainant has or has not made out a case against the Chief Editor.?The High Court rested its conclusion solely on the procedural requirements of the trial of a summons-case.?It has been pointed out that in any private complaint triable as a summons-case the Magistrate, after taking cognizance of the offence and issuing process, has no jurisdiction to drop proceedings against the accused.?He is bound to proceed under Chapter XX of the Code ?of Criminal Procedure when the accused enters appearance. He will have to state the particulars of the offence and record the plea of the accused. When the accused pleads not guilty, he will have to hear the prosecution and take all such evidence produced in support of the prosecution. Then he will have to hear the accused and take all such evidence produced in support of the defence. The High Court went on to state that the question of conviction or acquittal will arise only after recording evidence of the parties. There is no question of discharging the accused at an intermediate stage.?There is no provision in the Code ?for dropping the proceedings against any accused. So stating the High Court has directed the Magistrate to proceed with the trial of all the accused.”?

This approach did not find favour with the Supreme Court at all, for it considered this was “too technical“. Instead, the Supreme Court restored the original order setting aside the prosecution, and justified this decision as follows:

Para 7 : "If one reads carefully the provisions relating to trial of summons-cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code ?indicates the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code .?But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused.?It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion.?No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled.?The fact that the process has already been issued is no bar to drop file proceedings if the complaint on the very face of it does not disclose any offence against the accused.?“

?What is changed, which is drastic?

?After all, the Court in?K.M. Mathew?did not limit its findings on Section 204, Criminal Procedure Code being an?interim order?as only applying to Summons Cases. Thus, it meant that accused persons could go ahead and argue for a recall of process even in Warrant Cases or Sessions Cases instituted upon complaints,?in addition to?already existing stages of judicial consideration of the complaint, and of framing charge. Moreover, it also encouraged courts to simply invite an accused person to argue?at the stage of issuing process, to save time.

Now from here journey of confusing judicial views starts.

The?K.M. Mathew?logic was indeed put to use in a Warrant Case in?Adalat Prasad?[(2004) 7 SCC 338], and successfully so to convince a magistrate to recall summons in a cheating case. When the matter reached the Supreme Court, it was posted before a bench of Three Justices, specifically to consider the correctness of the view taken in?K.M. Mathew. The Court unanimously held that?K.M. Mathew?was wrong.

Para 17 :?“In our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code ?which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew s case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.”

However, as it is not clear on the point whether in private summons case, accused can be discharged by taking recourse of 251 & 258 of Criminal Procedure Code .

This attempt was made before the Supreme Court in?Subramanium Sethuraman?[(2004) 13 SCC 324], a prosecution under Section 138 of the Negotiable Instruments Act, 1881 [“NI Act”].

Para No. 17 : Crucially, as per the reported decision, the appellant’s plea of not guilty had already been recorded?and a request for discharge was made thereafter. Another Three Justices’ Bench of the Supreme Court found no reason to disagree with the conclusions in?Adalat Prasad?here, and reiterated the position that the only remedy for an aggrieved accused person was to move the High Court seeking that the summoning order be quashed under Section 482, Criminal Procedure Code

The Kerala High Court in?Kamala Rajaram?[2006 Cri LJ 1447]?[based on 304-A of Indian Penal Code ] and the Delhi High Court in?SK Bhalla?[180 (2011) DLT 219] based on 509 (3 years punishment); 109 (same as for offence)] both read?Adalat Prasad?as not being authority on the scope of Section 251, Criminal Procedure Code , and held that magistrates were well entitled to discharge accused persons in Summons Cases under this provision. Importantly, though, both these cases were?not?instituted?upon a complaint, and thus one could argue that the power to end such cases already existed under Section 258, Criminal Procedure Code Indeed, in?Kamala Rajaram, Justice Basant specifically left the question open of whether or not Section 251, Criminal Procedure Code conferred powers of discharge that also covered cases instituted upon complaints.

Even A bench of the Patna High Court in?Awdesh Singh?[Crl. Misc. No. 9432/2012 decided on 14.05.2012] referred to its own Division Bench directing that Section 251, Criminal Procedure Code also required the court to confirm whether an offence was made out or not.

Specific point about discharge in Summons Cases instituted upon complaints, one finds that the Karnataka High Court in?Zulekha?v.?Mahadev Bharmaji?[Crl. Petition No. 11193/2012, decided on 26.09.2012]?specifically held that a prosecution under Section 138 of the NI Act did not entail any discharge.

The help of the Supreme Court in?Bhushan Kumar?[(2012) 5 SCC 424]?cannot be taken as it is based on 420 warrant case, and which went ahead and copied the language of?SK Bhalla,?even though it was dealing with a Warrant Case, Section 251 of Criminal Procedure Code was irrelevant.??

One of the only reasoned decisions relevant for this discussion came as late as 2014, when the Delhi High Court discussed the issue in?Arvind Kejriwal & Ors.?v.?Amit Sibal?[Crl. MC No. 5245/2013, decided on 16.01.2014].

(Para 7) Here, a defamation case was instituted upon a complaint, and the Petitioner had challenged a summoning order. The Court directed that rather than approach the High Court for setting aside the summoning order (the approach advocated for in?Adalat Prasad?and?Sethuraman), the Petitioner should urge these pleas before the magistrate at the stage of framing notice under Section 251, Criminal Procedure Code ??The logic for the Court was simple: If this course was not adopted in Summons Cases, then “the whole proceedings at the stage of framing of notice u/s 251 Criminal Procedure Code ?shall be reduced to a mere formality and the accused would be compelled to approach the High Court to challenge the notice which would lead to multiplicity of litigation.”

Besides this decision in?Arvind Kejriwal, many other judges also encouraged parties to raise these pleas before the trial court rather than file a petition under Section 482, Criminal Procedure Code before the High Court. Even in a case under Section 138 of the NI Act, which was at the heart of?Sethuraman?[For instance,?see,?Yashveer Anand?v.?RL Anand?(Crl MC 4213/2014, decided on 11.05.2015)].

The recent order by the Hon'ble Supreme Court in?Amit Sibal v. Arvind Kejriwal 2016 SCC Online 1516, has again brought to the forefront, the short but extremely important question as to :?Whether the magistrate, in a 'summons case based on a complaint' has the power to drop proceedings and discharge an accused, or not ?

The question assumes great practical significance insofar as many criminal cases such as defamation, dishonour of cheques, amongst other cases of relatively private character are triable as summons cases (based on private complaints, as opposed to investigation and charge-sheet by the police (In contrast to Summons Cases based on private complaint, in cases based on FIR (culminating into a Police Report u/s 173 of the Criminal Procedure Code ), Section 258 of the Criminal Procedure Code ?specifically provides for dropping of proceedings. However, a similar provision is conspicuously absent in Summons Cases based on a private complaint).

To set the context right for the discussion, it would be apposite to recapitulate that, earlier in 2014, in?Arvind Kejriwal and others versus Amit Sibal & Anr (2014) 1 High Court Cases (Del) 719?(in a case alleging defamation by Delhi Chief Minister Mr. Arvind Kejriwal) a?Judge of the Hon'ble High Court of Delhi had ruled that the 'Magistrate has the power to hear the accused at the time of explanation of substance of the accusation, and if no offence is made out, to drop proceedings against him at that stage itself, and the court need not, in all cases, take the matter to a full blown trial'.(Section 258).

Aggrieved by this decision, the matter was carried by the complainant (Mr. Amit Sibal) to the Supreme Court. The main ground of attack was that 'The Magistrate, in a Summons Case, has no power to drop proceedings, in absence of a specific provision in the Criminal Procedure Code ?to that effect' Pending hearing on the matter, the Supreme Court had stayed the operation of the High Court decision. The Respondents (representing the accused) did not dispute this legal position (as to Criminal Procedure Code ?not stipulating a 'discharge scenario' in summons cases) and the Supreme Court apparently agreed with this proposition and matter was remanded to the High Court for fresh consideration from the viewpoint of Section 482 of the Criminal Procedure Code , effectively implying that Trial Court would have no such power.

However, crucial aspect is that, the decision of Supreme Court was based upon the consent terms filed by both the parties to the petition.

This is similar to a?'no case to answer'?motion, wherein accused argues that even if the prosecution case is accepted at face value and taken to be correct, no case is made out against the accused. This opportunity is specifically provided vis-à-vis Warrants Cases. However, there is no analogous provision as far as Summons Cases are concerned.

Chapter XX specifically deals with the procedure relating to trial of Summons cases by Magistrates.

Section 251 of the Criminal Procedure Code ?reads as follows :-

251. Substance of accusation to be stated.— 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.

Even on a bare reading, it becomes apparent that there is no specific power of discharge or dropping of proceedings available with the Magistrate in a Summons Trial. However, the judicial opinion on this aspect is far from consistent and the position of law has meandered a great deal. A short chronology of decisions dealing with this aspect would be apposite.

The decision in Adalat Prasad was reaffirmed by the Supreme Court in?Subramanium Sethuraman v. State of Maharashtra & Anr?(2004) 13 SCC 324?(which was a Summons Case relating dishonour of cheque u/s 138 of the Negotiable Instruments Act, 1881 - "NI Act"), wherein it was held that : Discharge, Review, Re-Consideration, Recall of order of issue of process u/s 204 of the Criminal Procedure Code ?is not contemplated under the Criminal Procedure Code ?in a Summons Case. Once the accused has been summoned, the trial court has to record the plea of the accused (as per Section 251 of the Criminal Procedure Code ) and?the matter has to be taken to trial to its logical conclusion and there is no provision which permits a dropping of proceedings, along the way.?

(Though there is no provision for discharge in such cases, but the dual remedy of invoking Section 482 as well as revisional jurisdiction u/s 397 of the Criminal Procedure Code was clarified by the Supreme Court in?Dhariwal Tobacco v. State of Maharashtra (2009) 2 SCC 370.)

This position held sway for a long time, till the Supreme Court in?Bhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC 424 ruled (though the case was based on 420 of Indian Penal Code) that the Magistrate has the power to discharge an accused in a Summons Case. The relevant observations of the Court are as under :

"It is inherent in Section 251 Criminal Procedure Code ?that when an accused appears before the trial court pursuant to summons issued under Section 204 in a Summons Trial case, it is the bounden duty of the trial court to carefully go through the allegations made in the charge-sheet or complaint and consider the evidence to come to a conclusion, whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Criminal Procedure Code "

The above observation raises more questions than it answers:

????i.???????Firstly, if one delves into the facts of?Bhushan Kumar?(supra) it is revealed that the case concerned an FIR u/s 420 of the IPC, which is punishable with upto 7 years of imprisonment, and was therefore, a Warrants Case and not a Summons Case; in such a factual background, the discussion of Section 251 of the Criminal Procedure Code ?seems inapposite as Section 251 of the Criminal Procedure Code ?applies only?qua?a Summons Case;

???ii.???????Secondly, in the context of a Summons Case, the applicability of words 'discharge' and Section 239 of the Criminal Procedure Code ?is questionable; Section 239 of the Criminal Procedure Code ?figures in a separate and dedicated chapter (Chapter XIX) and applies only with respect to a Warrants case and not a Summons case (Chapter XX). The case before the court was a warrants case. In a matter triable as Warrants Case the possibility of discharge was never in question.

?iii.???????Therefore, the question as to whether the Magistrate is empowered to discharge an accused in a Summons Case never really arose before the court in this case. In fact, the case involved only the following two questions:

???????????????????a.???????Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear?

??????????????????b.???????Whether the Magistrate, while examining the question of summoning an accused, is required to assign reasons for the same?

Therefore, in absence of this question arising before the court, and the case in question being a Warrants Case which specifically provides for 'discharge',?Bhushan Kumar?(supra) don’t have precedential value for the following reasons:

???????????????????a.???????Observations qua Summons Case cannot be considered to be the?'ratio decidendi'?as the immediate case before the court was one triable as a Warrants Case.

??????????????????b.???????The court's attention not having been drawn to previous decisions in Adalat Prasad, Subramanium Sethuraman etc, and for that reason, the decision may be?per incuriam.

???????????????????c.???????being incongruent with the clear scheme of Criminal Procedure Code ?and procedure to be adopted in a Summons Case (expressly set out in Chapter XX of the Criminal Procedure Code )

The decision of the court in Bhushan Kumar (supra) was followed in a catena of decisions including?Urrshila Kerkar v. Make My Trip (India) Private Ltd?[2013 SCC OnLine Del 4563. To the same effect, also see : Raujeev Taneja v. NCT of Delhi (Crl.M.C. No.4733/2013 decided on 11th November, 2013)]?with the following observations:

"9. It is no doubt true that Apex Court in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 SCC 338 has ruled that there cannot be recalling of summoning order, but seen in the backdrop of decisions of Apex Court in Bhushan Kumar and Krishan Kumar (supra), aforesaid?decision cannot be misconstrued to mean that once summoning order has been issued, then trial must follow. If it was to be so, then what is the purpose of hearing accused at the stage of framing Notice under Section 251 of Criminal Procedure Code ?In the considered opinion of this Court, Apex Court's decision in Adalat Prasad (supra) cannot possibly be misread to mean that proceedings in a summons complaint case cannot be dropped against an accused at the stage of framing of Notice under Section 251 of Criminal Procedure Code ?even if a prima facie case is not made out."

?The Delhi High Court recently in?R.K. Aggarwal v. Brig Madan Lal Nassa & Anr [2016 SCC OnLine Del 3720. Also see :

R.P.G. Transmission Ltd v. Sakura Seimitsu (I) Ltd. & Ors, 2005 SCC OnLine Del 311,

Raj Nath Gupta & Ors v. State and Anr. 1999 SCC OnLine Del 683 and

Devendra Kumar Jain v. State, 1989 SCC (OnLine) Del 121] expressly recognised the absence of power of discharge in a summons case by holding: Para 10

"There is no basis in the contention of the petitioners for discharge for the reasons that firstly, there is no stage of discharge in a summons case. Under Chapter XX of Criminal Procedure Code , after filing a private complaint, in a summons case, the accused is either convicted or acquitted. There is no stage of discharge of an accused at any stage under Chapter XX of Criminal Procedure Code "

HAVE AN ANALYSIS OF SOME JUDGEMENTS

K Prabhakar rao / State of AP (25/11/2014)

?????????In para No. 2 last 3 lines makes it clear that the said case is based upon final report filed by police for the offence punishable under Section 339, 341, 503, 506 of Indian Penal Code.?

?Shaiikh Ahmed Hussain / State of Maharashtra 1991 (1) Mh. L. J. 71 [Based on police report].

?Ellanda Pratap / State of A. P. 1986 0 Cr L J ?2108. [Based on police report [Essential commodities Act].]

?????????In essential commodities act though as per section 12 of said act, the cases should be tried summarily (and as per law summary trials should be tried as summons case), but considering schedule 2 of Criminal Procedure Code as well as considering the punishment under Act… we can take benefit of Section 259 of Criminal Procedure Code and hence discharge application is maintainable therein.

M/s. Medicamen Bio-tech Limited / State of A. P. 2014 (0) Supreme (AP) 102. [?Based on cosmetics Act.] The trial which so far was held by virtue of wrong procedure needs to be quashed.??

Now, question remains the, as the apex court has held that in summons case discharge is maintainable, but at the same time another bench holds it not maintainable and on that the High Court comes up with another view.?So, now question arises as to whom to listen? And further what to reply upon?

In my view [not to be treated as contempt of court in any manner] a better option is while having difference of opinion one court [at least lower judiciary], must refer the matter to larger bench to get it clear.?We can find such difference of opinions as well as contrary judgement in Protection of Women from Domestic Violence Act.?In my personal opinion I never found it as an Act, but it found that the same is being enacted by a Politician, whose daughter or any relative has been meted out with cruelty and without thinking much the said Act has been enacted.??The said Act requires too much amendments, not only to stop misuse, but to get speedy justice to other spouse, also.

?I know many people will not have same views as I have, but I will say exceptions are always there.

?Thanks for reading.?