DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL T RIAL 16
ACKNOWLEDGEMENT Firstly, I would like to express my profound sense of gratitude towards the Almighty “ALLAH” for providing me with the authentic circumstances which were mandatory for the completion of my research work I am also thankful to Dr.Asad Dr.Asad Malik , for his invalua!le support, encouragement, supervision and useful suggestions throughout this research work His moral support and continuous guidance ena!led me to complete my work successfully His intellectual thrust and !lessings motivated me to work rigorously on this study In fact this study could not have seen the light of the day if his contri!ution had not !een availa!le It would !e no exaggeration to say that it is his unflinching faith and un"uestioning support that has provided the sustenance necessary to see it through to its present shape I am thankful to the Li!rarians, Faculty of Law, #amia $illia Islamia for helping me in collecting the relevant material for my pro%ect report I would like to extend my sincere thanks to my friends and family for their constant review and honest remarks
Research methodology meth odology 1 | Page
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL T RIAL 16 &his research was conducted using the '(octrinal) method of research (octrinal legal research, as conceived in the legal research domain, is research 'a!out) what the prevailing state of legal doctrine, legal rule, or legal principle is A legal scholar undertaking doctrinal legal research, therefore, takes one or more legal propositions, principles, rules or doctrines as a starting point p oint and focus of his study I located located principles principles,, rules or doctrines doctrines in statutory statutory instrument*s+ instrument*s+,, %udicial %udicial opinions opinions thereon, thereon, discussions thereof in legal treatises, commentaries, text!ooks, encyclopaedias, legal periodicals, and de!ates, if any, that took place at the formative stage of such a rule, doctrine or proposition &hereafter, I 'read) them in a holistic manner and made an 'analysis) of the material as well as of the rules, doctrines and formulated my 'conclusions) (octrinal legal research, thus, involves - .ystem .ystemati aticc analys analysis is of statut statutory ory provisio provisions ns and of legal principl principles es involved involved therein, therein, or derived therefrom, and / Logical Logical and rational rational orderin ordering g of the legal legal proposit propositions ions and and principles principles
Method of Research &he researcher has adopted a purely doctrinal method of research &he researcher has made extensive use of the li!rary at the #amia $illia Islamia 0niversity and also the internet sources Aims and Objectives: &he aim of the pro%ect is to present a detailed study of the “trial procedure and differences !etween them” Scope and Limitations: &he pro%ect pro%ect deals deals with with the 1ight 1ight of the 2icti 2ictim m and Accus Accused ed in the code of &he 3rimin 3riminal al
4rocedure Any perception of this work would perhaps seem minuscule considering the fact that this work has produced from a mere student of law, particularly in the light of the knowledge that so many legal luminaries have deli!erated on o n the matter since time immemorial &he study due to incorporation of a num!er of restrictions like time and resources, deals keeping in focus all the states and union territories in India &he study study !y puttin putting g forwar forward d its its recomm recommenda endati tions ons,, most most hum!ly hum!ly,, hopes hopes to make make a small small contri!ution in the field of legal reforms in India
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16
Sources of Data: &he following secondary sources of data have !een used in the pro%ect5 -6ooks /7e!sites Method of Writin: &he method of writing followed in the course of this research paper is primarily analytical Mode of !itation: &he researcher has followed a uniform mode of citation throughout the course of this research paper
INTRODUCTION 3 | Page
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 &he 3ode of 3riminal 4rocedure -89: *in short 3r43+ is a procedural law providing the mechanism in which manner the criminal trial is to !e conducted on the !asis of su!stantive criminal law ie I43 and other criminal statute &he primary o!%ect of the criminal %ustice system is to ensure that the trial must !e fair &he 4residing ;fficer is supposed to treat the accused innocent till charge is proved against him !ut at the same time the guilty person should not !e escaped from the punishment &he word "trial# is not defined anywhere in the 3riminal 4rocedure 3ode, however, it means an commonly understood the stage of trial !egan after framing the charge and end with the conviction or ac"uittal &he criminal procedure for %udicial ad%udications is divided in :9 chapter and classified in two schedules *i+ the offences classified under I43 and *ii+ the offences classified other than I43 &he nature of trial are divided on the !asis of seriousness of offences, its gravity and %urisdiction and on the !asis of the gravity, seriousness of the offences the su!stantive law ie I43 is divided into :9 parts !y granting separate nomenclature particularly the nature of offences like the offence against .tate, human !ody, property, pu!lic tran"uility, documents, marriage etc
TRIAL PROCEDURE UNDER THE PREENT INDIAN !TEM 0nder the Indian criminal procedure it is o!ligatory that evidence for the prosecution and defence should !e taken in the presence of the accused A &rial is vitiated !y failure to examine the witnesses in the presence of the accused -If a fair trial is the main o!%ect of the criminal procedure, any threat to the continuance of a fair trial must !e immediately arrested If an accused person !y his own conduct puts the fair trial into %eopardy it would !e the primary and paramount duty of criminal courts to ensure that the risk to the fair trial is removed and criminal courts are allowed to proceed with the trial smoothly and without any interruption or o!struction 3r L# :89 *ori+ # Hassain *I+ 2 .tate AI1 -8?= .3 :9@ .tate 2 Anantha .ingh -89/ 3r I L# $ .ee Articles -> and -- of the 0niversal (eclaration of Human 1ights adopted and proclaimed !y the Beneral Assem!ly of the 0C ;n (ecem!er ->, -8D=
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16
THE ACCUATORIAL TRIAL PROCEDURE It is a cornerstone of adversary system that an accused is presumed innocent unless and until proved guilty !eyond reasona!le dou!t &he .tate must esta!lish guilt !y evidence independently and freely secured and may not !y coercion prove its charge against an accused out of his own mouth A common law trial is and always should !e an adversary proceeding &hus, the presumption of the innocence of the accused is transformed into court room procedure in the common law adversary system
THE PREUMPTION O% INNOCENCE ;ne of the cardinal principles which should always !e kept in our system of administration of %ustice in criminal cases is that a person arraigned as an accused is presumed to !e innocent unless and until proved otherwise Another golden thread which runs through the we! of administration of %ustice in criminal cases is that if two views are possi!le on the evidence adduced in the case5 one pointing to the guilt of the accused and the other to his innocence, the view which is favoura!le to the accused is to !e accepted*2ide Ealiram v &he .tate of H4 5AI1 -89: .3 /99:, .heo C an da n 4 a swa n v.tate of 6ihar5 AI1 -8=: .3 -8D5 Cishar Ali v .tat e of 045 AI1 -8?9 .3 :@@+ven in an appeal against ac"uittal, the presumption of innocence in favour of the accused is not weakened and in considering an appeal against ac"uittal, the High 3ourt has to keep this presumption in mind *.AA 6iya!ani v .tate of $adras5 AI1 -8?D.35 @D?, 1am #og v .tate of 045AI1 -89D .3 @>@ 1a%endra 1ai v .tate of 6ihar GAI1 -89D .3 /-D?, Autar .ingh v .tate of 4un%a!5 AI1 -898 .3 --==, .tate of A4v An%aneulau G AI1 -8=/ .3 -?8=, 6a!u v .tate of 045 AI1 -8=: .3 :>=, 1am%i .ur%iya v .tate of $aharashtra5AI1 -8=: .3 =-> and 3handra Eanta (e! v .tateof &ripur a5 AI1 -8= @ .3 @>@ + In paragraph D> of the 3onstitution 6ench decision of the Apex 3ourt in 61Eapur v .tate of &C G />>- *9+ .33 /:- it has !een o!served that when a lower court convicts an accused and sentences him, the presumption that he is innocent comes to an end
&ENE%IT O% DOU&T 5 | Page
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16
&he criminal %urisprudence, no dou!t, re"uires a high standard of proof for D imposing pu nishment to an ac cused 6ut it is e"ua lly impo rtan t that on hypo thetical grounds and surmises prosecution evidence of a sterling nature should not !e !rushedaside and dis!elieved to give undue !enefit of dou!t to the accused *2ide .tate of 04 v 1am .evak and others5/>>: *-+ 3rimes D@- *.3+&he law should not !e stretch edmor!idly to em!race every hunch hesitancy and degree of dou!t ;ur %urisprudential enthusiasm for presumed innocence must !e moderated !y the pragmatic need to make criminal %ustice potent and realistic G *2ide .hiva%i v .tate of $aharashtra G AI1-89: .3 /@// + (ou!ts must !e actual and su!stantial as to the guilt of the accused p erson arisin g from the evid ence or from th e la ck of it , as op po se d to me re va gu e apprehensions A reasona!le dou!t in not an imaginary trivial or a merely possi!le dou!t !ut a fair dou!t !ased upon reasons and common sense 0ninformed legitimiation of trivialities would make a mockery of administration of criminal %ustice A I1 - 8= = . 3 /-?D G .tate of 04 v Erishna Bopal &he criminal law has a purpose to serve Its o!%ect is to suppress criminal enterprise and p unish the g uilty In th is pro cess it must h owev er !e e nsure d tha t reasona!le dou!ts alone are given to the accused *2ide .tate of Eerala v Carayanan 6haskaran G -883rlL#/:= -88- */+ EL& /-9+
THE 'UDGE ROLE An important feature of the accusatorial type of procedure is that the %udge is expected to !e independentant, impartial, and competent in conducting the trial &he criminal procedure code has also made the provisions for separation of %udiciary from the executive lt also provide for keeping the courts open,D %udge or magistrate not to !e personally interested in the case, transfer of cases to secure impartial trial if felt necessary In order to achieve the o!%ect of fair trial, measures have !een made to have competent %udges of integrity and character through hierarchy of criminal courts &hus the adversary model of criminal trial is aimed at the foremost notion of fair trial
ROLE O% COMPETENT LAW!ER
( Eehar .ingh 2 .tate *(elhi+ -8== : .33 @>8 6 | Page
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 For the purpose of finding out the real perpetrator of the criminal act and to punish the guilt the .tate has taken much care !y appointing pu!lic prosecutor and Assistant 4u!lic 4rosecutors &he 4rosecutors play a pivotal role in assisting the trial %udge to find out the real culprit &he accused must also !e represented !y a lawyer of his choice Article //J-K ;F &H 3;C.&I&0&I;C provides that no person arrested shall !e denied right to consult and to !e defended !y a legal practitioner of his choice .ection :>: of 3r43 provides that any person accused of an offence !efore a criminal court, or against whom proceedings are instituted, may of right to !e defended !y a pleader of his choice It has !een held that the right to consult a lawyer for the purpose of defence !egins from the time of arrest of the accused person and even !efore actual !eginning of the trial &he right to counsel is recognised !ecause of the o!vious reason that ordinarily an accused person does not have the knowledge of law and professional skill to defend himself !efore a court of law wherein the prosecution is conducted !y a competent and experienced prosecutor &he criminal procedure code has made provisions to provide a lawyer to the indigent accused person in a trial !efore a court of session the code also ena!les a .tate Bovernment to extent this right to any class of trials !efore other courts in the .tateJ.3&l;C :>D of 3r43K? ln Hussainara Ehatoon v .tate of 6ihar @ the .upreme 3ourt, after referring to the constitutional directive contained in Article :85A regarding e"ual %ustice and free legal aid, and also approvingly referring to the creative interpretation of Article /- of the 3onstitution of India as propounded in its earlier decision in $CEA BAC(HI 2. 0CI;C ;F IC(IA9, has explicitly o!served as follows &he right to free legal services is, therefore , clearly an essential ingredient of reasona!le, fair and %ust procedure for a person accused of an offence and it must !e held implicit in the guarantee of Article /- &his is a constitutional right of every accused person who is una!le to engage a lawyer and secure legal senMices on account of reasons such as poverty, indigence or in communicado situation and the .tate is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of %ustice so re"uired, provided of course the accused person does not o!%ect to the provisions of such lawyer=
) .ection :>D of 3r43 * *-8=>+ - .33 8- + *-89=+ - scc /D= , Husssainare Ehatoon v .tate of 6ihar *-8=>+ - .33 8=, ->? 7 | Page
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 It is now made as an o!ligation on the trial courts, to inform the accused that if he is una!le to engage a lawyer on account of poverty, he is entitled to o!tain free legal services at the cost of the .tates)8 &he venue of trial is considered to !e one which must !e one convenient to the accused &he criminal procedure code provides for the same 0nder the accommodative system of criminal trial the accused is presumed innocent till the prosecution proves its case !eyond all the reasona!le dou!ts &he !urden is on the shoulder of the prosecution to the case against the accused $ere suspicion a!out any information or evidence will !e given !enefit to the accused who gets the !enefit of dou!t and escapes from the clutches of law under the reason that the prosecution had failed to prove its case !eyond all the reasona!le dou!ts
TRIAL AND THE RIGHT O% THE ACCUED.o as to have the trial in a fair manner the criminal procedure code recognised some rights to the accused person &hey are, J-K 1ight to know a!out the accusation J/K 1ight to !e tried in his presence J:K1ight to have evidence to !e taken in his presence JDK 1ight to have a competent legal practitioner of his choice J?K 1ight to cross examination prosecution witnesses J@K 1ight to adduce evidence in defence etc
DI%%ERENT T!PE O% CRIMINAL TRIAL &he criminal procedure code of -89:, provides different types of criminal trials for various kinds of criminal cases &here are more ela!orate, simple and less ela!orate trial procedures for various kinds of offences according to their seriousness and less seriousness 3lassification of criminal cases has !een made for making a primary decision as to the type of trial procedure to !e adopted in respect of any criminal case &he code of criminal procedure provides for four types of trial procedure &hey are J-K &rial !efore a court of session, J/K &rial in 7arrant 3ases . .uk (as v 0nion &erritory of Arunachala 4radesh *-8=@+ / .33 D>- 8 | Page
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 J:K &rial in .ummon 3ases , and JDK .ummary trials
TRIAL &E%ORE A COURT O% EION After taking cogniance of a case !y a $agistrate having competency the offences exclusively tria!le !y a court of sessions are committed to the sessions courtN -> later a court of sessions is not to take cogniance of any offence 6ut it can take cogniance of an offence in respect of deformation of a high dignitary or a pu!lic offcial -- &here is a special procedure which has to !e adopted for trial of such matters in which direct cogniance was taken !y the sessions c>urtN-/
TRIAL IN WARRANT CAE 7arrant cases are those cases in which an offence attracts a penalty of imprisonment for more than seven years and it includes offences punisha!le with death and life imprisonment In such cases, the trial starts either !y filing of FI1 or !y filing a complaint !efore a magistrate And if the magistrate finds that the case relates to an offence carrying a punishment for more than two years, the case is sent to the sessions court for trial .ection -8: of the 3riminal 4rocedure 3ode clearly states that the session court cannot take cogniance of any offence unless the case has !een sent to it !y a magistrate &he process of sending it to session)s court is generally called committing it to session’s court.
TRIAL IN UMMON CAE A summon case is a case which is not a warrant case .o in simple words, those cases in which an offence is punisha!le with an imprisonment of less than two years is a summon case In this case, one must understand that if a magistrate, after looking into the case, thinks that a case is not a summon case he may convert it into a warrant case In respect of summons cases, there is no need to frame a charge &he court gives su!stance of the accusation, which is called “notice”, to the accused when the person appears in pursuance to the summons
"/ .ection /8> of 3r 43 -89: "" .ection -88 of 3r 43 -89: "# .ection /:9 of 3r43-89: 9 | Page
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16
UMMAR! TRIAL .ummary trial means short trials avoiding the regular lengthy procedure .ummary trial aims at speedy or "uick disposal of minor offences &he procedure followed in the summary trial is to some extent the procedure of trial of summons cases having some differences to the effect that in summary trial not the formal and ela!orate recording of evidence and %udgment !ut only a memorandum of the su!stance of evidence or a !rief statement are recorded In summary trial no sentence of imprisonment for a term more than three months can !e imposed !y the $agistrate 3ase of offenses punisha!le with an imprisonment of not more than six months can !e tried in a summary way It is also to !e noted that if the case has !een tried in a summary way, a person cannot !e awarded a punishment of imprisonment for more than three months 6oth the trial !efore the court of sessions and warrant cases !y magistrates are tried under the procedure of warrant cases and the remaining two are tried in a summons cases trial .ection /9/ of 3r43 empowers the .tate Bovernment to determine what shall !e the language, for the purpose of each court within the .tate other than the High court However the depositions and evidence adduced !y the witness in their mother tongue will !e translated to the language of the court &he dossiers of case records are translated to the language known or understanda!le !y the accused so as to have a fair trial .ection :-- of 3r43 ena!les the criminal courts, at any stage of any trial or in"uiry to summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recallor re5examine any person who has !een already examined-:&he code of criminal procedure also ena!les the courts to order payment of expenses of complainants and witnesses-D
PROCEDURE IN WARRANT TRIAL &here are two types of cases provided in 3r43 ie .ummons cases and 7arrant case 7arrant case means a case relating to an offence punisha!le with death, or imprisonment for life, or imprisonment for a term exceeding two years, while .ummons cases means an case relating to an offence, and not !eing a warrant case "$ .ee 6aiwant .ingh v .tate of 1a%asthan -8=@ 3ri L# -:9D *1a% H;+ "( .ection :-/ of 3r43 10 | P a g e
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 &hus, the trials are normally divided into warrant trial and a summons trial For trial of warrants cases !y $agistrate two procedures are prescri!ed ;ne is adopted !y $agistrate in cases instituted on police reports *.ections /:= to /D: 3r43 and /D= to /?> of 3r43+ and other is for cases instituted otherwise than police reports *.ections /DD to /D9 of 3r43 and /D= to /?>, /9? 3r43+
CAE INTITUTED ON POLICE REPORT 0nder .ection /:= 3r43 when in a warrant case, instituted on a police report, the accused appear or is !rought !efore the $agistrate, the $agistrate has to satisfy himself that he has !een supplied the all necessary documents su!mitted with chargesheet .ection /:8 3r43 provides that if the $agistrate after considering the chargesheet filed uMs -9: 3r43 and hearing, considers the charge to !e groundless, he would discharge the accused and record his reason for so doing If, on examination of aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trail, he proceeds to frame the charge
After framing a charge under Section 240 CrPC,
*-+ If, upon such consideration examination, if any, and hearing, the $agistrate is of opinion that there is ground for presuming that the accused has committed an offence tria!le under this 3hapter, which such $agistrate is competent to try and which, in opinion could !e ade"uately punished !y him, he shall frame in writing a charge against the accused */+ &he charge shall then !e read and explained to the accused, and he shall !e asked whether he pleads guilty of the offence charged or claims to !e tried If the accused pleads guilty, the $agistrate shall record the plea and may, in his discretion, convict him thereon under .ection /D- 3r43 ie 3onviction on plea of guiltyAnd if the accused refuses to plead or does not plead, or claims to !e tried or the $agistrate does not convict him then the magistrate will follow .ection /D/ 3r43 ie v idence for prosecution, as follows, *-+ If the accused refuses to plead or does not plead, or claims to !e tried or the $agistrate does not convict the accused under section /D- $agistrate shall fix a date for the examination of witnesses
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 */+ &he $agistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing *:+ ;n the date so fixed, the $agistrate shall proceed to take all such evidence as may !e produced in support of the prosecution 4rovided that the $agistrate may permit the cross5examination of any witness to !e deferred until any other witness or witnesses have !een examined or recall any witness for further cross5 examination &hen the $agistrate has to proceed under .ection /D/ 3r43 and under su!section *:+ of that .ection the $agistrate is !ound to proceed to take all such evidence as may !e produced in support of the prosecution
This provision and the provisions in subsection (1) and (2) of the Section 24, CrPC are mandator!" Section $%& !r'!. (vidence for defence.
*-+ &he accused shall then !e called upon to enter upon his defence and produce his evidence and if the accused puts in any written statement, the $agistrate shall file it with the record */+ If the accused, after he had entered upon his defence, applies to the $agistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross5 examination, or the production of any document or other thing, the $agistrate shall issue such process unless he considers that such application should !e refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of %ustice and such ground shall !e recorded !y him in writing 4rovided that, when the accused has cross5examined or had the opportunity of cross5examining any witness !efore entering on his defence, the attendance of such witness shall not !e compelled under this section, unless the $agistrate is satisfied that it is necessary for the ends of %ustice *:+ &he $agistrate may, !efore summoning any witness on an application under su!5section */+, re"uire that the reasona!le expenses incurred !y the witness in attending for the purposes of the trial !e deposited in court &he provisions of s /D: apply e"ually to cases instituted on police report or on private complaint After the examination and crossexamination of all prosecution witnesses, ie after the completion of the prosecution case the accused shall !e called upon to enter upon his defence and any written statement put in shall !e filed with the record
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16
CAE INTITUTED OTHERWIE THAN ON POLICE REPORT vidence for prosecution 5 4reliminary hearing .ections /DD to /D9 of 3r 43 deal with warrant cases instituted otherwise than on a police report 7hen the accused is !rought !efore a magistrate, he should proceed to hear the prosecution and take all such evidence as may !e such evidence as may !e produced &he $agistrate should also summon such persons whom the prosecution wishes to give evidence to support its case-? .uch evidence must !e taken in the manner said down in .-:= of the India vidence Act and if the accused so desires he cannot !e refused on opportunity to cross5examine the witness produced in support of the prosecution &he opportunity allowed !y the legislature to the accused in ./D@*D+ of cross examining witness for the prosecution after the charge has !een framed can not !e su!stituted for the opportunity to which he is entitled when the witnesses are examined and !efore the charge is framed-@&he fact that the prosecution does not keep all its witness present when the accused appears !efore the magistrate does not necessarily mean that the prosecution does not want to examine all of them &he magistrate should !efore closing evidence and framing the charge, ask the prosecution whether it wants more of its witnesses to !e examined in support of the complaint Failure to do so results in non5compliance with su! .*-+-D? 0nlike under section /?/*/+ of the old code of -=8=, under the new section /DD*/+ the magistrate is not under an o!ligation to summon any witness on his own It is now the responsi!ility of the prosecution to more the magistrate !y an application to issue a summons to any of its witnesses directing Oion to attend or produce any document or other things-D@ 3ourt can permit examination of witness not mentioned in the list of witnesses lt is not necessary that all witnesses named in the list should have !een examined !efore granting such permission 0nder section /DD of 3r 4 3 when in any warrant case instituted otherwise than on a police report, the accused appears or is !rought !efore the $agistrate, the $agistrate shall proceed to hear the prosecution and shall take all such evidence as may !e produced in support of the prosecution After taking all evidence under section /DD*-+ of 3r 43 the $agistrate reached at the conclusion that no case against accused has !een made out, the $agistrate shall discharge accused for the reasons recorded If there is a strong suspicion a!out the commission of the offence and the
") 'ethalal 2 Ehim%i, *-89:+ 9@ 6om L1 /9> "* .yed $ohammad Husain Af"ar v $ira Fakhrulla 6eg *-8:/+ = Luds -:? -89/ 3r L# :@9
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EL, 6hasin 2 .undar .ingh,
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 involvement of accused the court shall proceed to frame charge instead of discharging the accused
When Accused shall be Dischared ln a warrant case instituted otherwise than on a police report, discharge and ac"uittal are two different concepts &he word discharge is used in sections /:8 and /D? Cormally, a person cannot !e discharged unless the prosecution evidence has !een taken and the $agistrate considers for reasons to !e recorded that no case is made out gainst the accused .u!5section */+ of s/D? is an exception to this rule in so far as it empowers the $agistrate to discharge the accused at any previous stage if he considers that the charge is ground less .u!5 section *-+ ena!les the $agistrate to discharge an accused after taking all the evidence produced !y the prosecution .ince his order is su!%ect to revision, he is re"uired to record his reasons in writing &he $agistrate cannot pass an order of discharge until he has examined all the witnesses of the prosecution and such an order passed only after examining the complainant, an d not all the witnesses, will !e illegal -9 &he order of discharge passed exclusively on the !asis of material in cross5examination and without considering other vital pieces of evidence and documentary evidence on record held sufficient to make out a prima facie case &he order wasset aside-=7hile considering scope of s/D?, trial court shall not go intometiculous consideration of material produced It has to see whether a prima facie case has !een made out or grounds exist to connect the accused to the alleged offence-8-?D In a food adulteration case, the $agistrate had discharged the accused !efore framing of charge, as in his view no case was prima facie made out &he reason given was the cash5memo of the alleged adulterated article itself mentioned that 'goods sold were not meant for human consumption' &he High 3ourt reversed the order holding that the factum of purchase was not disputed and printing 'not meant for human consumption' was only a clever device to get over the provisions of the Food Adulteration Act and to make the Act a dead letter /> ln a dowry5death case, the (elhi High 3ourt refused to order for discharge of the accused simply !ecause 3F.L negatived the test for common poison, o!serving that the deceased died in mysterious circumstances, which will !e gone into
"+ Pesgidavau v, 2gas%arm *-89/+ 9D 6om Lr 9-9 -89: 3r L# ->>9 ", $ani Eant .ohal v 4E6anthrNa, -88-, 3r L# -/D9 *6om+ ". .6angarappa v BCHegade, -88/ 3r L# :9== *Ent+ #/.tate of ;rissa v 1amwatar Agarwall, -88? 3r L# />?: *;r+ 14 | P a g e
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 #f the accused is not discharged under section 24$ of Cr"P"C
*-+ If, upon taking all evidence referred to in section /DD the $agistrate considers, for reasons to !e recorded that the case against the accused has !een made out which, if unre!utted, would warrant his conviction, the $agistrate shall discharge him */+ Cothing, in this section shall !e deemed to prevent a $agistrate from discharging he accused at any previous stage of the case if, for reasons to !e recorded $agistrate, he considers the charge to !e groundless Then the %agistrate sha&& proceed to frame charge under section 24' of Cr" P" C" against the accused" Section 24'" Procedure here accused is not discharged
*-+ If, when such evidence has !een taken, or at any previous stage of the case, the $agistrate is of opinion that there is ground r presuming that the accused has committed an offence tria!ie under this 3hapter,wilich such $agistrate is competent to try and which, in his opinion, could !e ade"tiateiv punished !y him, he shall frame in writing a charge against the accused */+ &he charge shall then !e read and explained to the accused, and he shall !e asked whether he pleads guiltty or has any defence to make *:+ lf the accused guilty, the $agistrate shall record the plea, and may, in his discretion convict him thereon *D+ lf the accused refuses to plead, or does not plead or claims to !e tried or if the accused is not convicted under su!5section *:+ he shall !e re"uired to state, at the commencement of the next hearing of the case or, if the $agistrate for reasons to !e recorded in writing so thinks fit, forthnwitth whether he wishes to cross5examine any, and if so which of the witnesses for the prosecution whose evidence has !een taken *?+ lf he says he does so wish, the witnesses named !y him shall !e recalled and, after cross5 examination and re5examination *if any+, they shall !e discharged *@+ &he evidence of any remaining witnesses for the prosecution shall next !e taken and afier cross5examination and re5examinalion *if any+, they shall also !e discharged 3harge shall then !e read and explained to the accused and then he has to !e asked whether he pleads guilty or has any defence to make If the accused refuses to plead or does not plead or claims to !e tried he shall !e re"uired to state whether he wanted to cross examine any witnesses for the prosecution whose evidence has !een taken If the accused is ready to cross examine the
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 witnesses, they shall !e recalled for cross examination and re examination if any &he witnesses shall !e discharged after cross5examination or reexamination 0nder section /D9 of 3r 4 3 the accused shall !e called upon to enter upon his defence and to produce his defence if any
CONCLUION O% WARRANT TRIAL 0 COMMON TO POLICE CAE AND OTHERWIE POLICE CAE1 2 Section $%) : Ac*uittal or !onviction.
*-+ If, in any case under this 3hapter in which a charge has !een framed, the $agistrate finds the accused not guilty, he shall record an order of ac"uittal */+ 7here, in any case under this 3hapter, the $agistrate find the accused guilty, !ut does not proceed in accordance with the provisions of section :/? or section :@>, he shall, after hearing the accused on the "uestion of sentence, pass sentence upon him according to law *:+ 7here in any case under this 3hapter, a previous conviction is charged under the provisions of su!5section *9+ of section /-- and the accused does not admit that he has !een previously convicted as alleged in the charge, lhe $agistrate may, after he has convicted the said aceused, take evidence in respect of the alleged previous conviction said shall record a finding thereon 4rovided that no such charge shall !e read out !y the $agistrate nor shall the accused !e asked to plead thereto nor shall the previous conviction !e referred to !y the prosecution or in any evidence adduced !y it, unless and until the accused has !ee convicted under su!5section */+ &he section means that in a warrant case !oth instituted on police report and private complaint the only order that can !e passed after charges is either a+ac"uittal or !+conviction
!ompensation for accusation +ithout reasonable cause As per section /?> of 3r 4 3 if in any case the accused is discharged or ac"uitted and the person upon whose complaint or information the accusation was made is present, the $agistrate 16 | P a g e
DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 ma, call upon him to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one If the complainant is a!sent then the summons may !e issued to him to appear 0nder section /?> J-K the accusation must !e proved to have !een made without reasona!le cause &he provisions of section /?> of 3r 4 3 apply to summons cases as well as warrant cases Record in Warrant cases As per section /9? of 3r43 in all warrant cases tried !efore a $agistrate, the evidence of each witness shall !e taken down in writing !y either !y $agistrate himself or !y dictation in open court .uch evidence shall ordinarily !e taken down in the form of a narrating !y the $agistrate &he $agistrate may in his discretion taken down or cause to !e taken any part of such evidence in the form of "uestion and answer
UMMON TRIAL2 A summons case means a case relating to an offence not !eing a warrant case, implying all cases relating to offences punisha!le with imprisonment not exceeding two years In respect of summons cases, there is no need to frame a charge &he court gives su!stance of the accusation, which is called “notice”, to the accused when the person appears in pursuance to the summons In view of .ection /?- of 3r43 the $agistrate is re"uired to explain the particulars of the offence of which the accused is prosecuted As per section /?/ if the accused pleads guilty, the $agistrate shall record his plea as nearly as possi!le in the words used !y the accused and may in his discretion, convict him thereon Section 2$" Conviction on p&ea of gui&t! in absence of accused in pett! cases"
*-+ 7here a summons has !een issued under section />@ and the accused desires to plead guilty to the charge without appearing !efore the $agistrate, he shall transmit to the $agistrate, !y post or !y messenger, a letter containing his plea and also the amount of fine specified in the summons */+ &he $agistrate may, in his discretion, convict the accused in his a!sence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted !y the accused shall !e ad%usted towards that fine, or where a pleader authorised !y the accused in this !ehalf pleads guilty on !ehalf of the accused, the $agistrate shall record the plea as nearly as possi!le in the words used !y the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 .ection /?: of 3r43 is an exception to general rule which provides a simple procedure for disposing of petty cases without the presence of accused in court !y post and messenger also 6y this provision discretion is given to the $agistrate to convict the accused It also ena!les the pleader authorised !y the accused to plead guilty on !ehalf of his client when offence is punisha!le only with fine However, as per Section $-% of 3r43 if the accused is not convicted under .ection /?/ or /?: the court shall hear prosecution and take evidence lead !y the prosecution and also hear the accused and take all such evidence as he produces in his defence Section 2$4" Procedure hen not convicted"
*-+ If the $agistrate does not convict the accused under section /?/ or section /?:, the $agistrate shall proceed to hear the prosecution and take all such evidence as may !e produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence */+ &he $agistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing *:+ A $agistrate may, !efore summoning any witness on such application, re"uire that the reasona!le expenses of the witness incurred in attending for the purposes of the trial !e deposited in court Section $-- of 3r43 deals with the ac"uittal or conviction *-+ If the $agistrate, upon taking the evidence referred to in section /?D and such further evidence, if any, as he may, of his own motion, cause to !e produced, finds the accused not guilt, he shall record an order of ac"uittal
*/+ 7here the $agistrate does not proceed in accordance with the provisions of section :/? or section :@>, he shall, if he finds the accused guilty, pass sentence upon him according to law *:+ A $agistrate may, under section /?/ or section /??, convict the accused of any offence tria!le under this 3hapter which form the facts admitted or proved he appears to have committed, whatever may !e the nature of the complaint or summons if the $agistrate is satisfied that the accused would not !e pre%udiced there!y Section $- of 3r43 deals with the circumstances of non appearance or death of the complainant
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 *-+ If the summons has !een issued on complaint and on the day appointed for the appearance of the accused, or any day su!se"uent thereto to which the hearing may !e ad%ourned, the complainant does not appear, the $agistrate shall notwithstanding anything herein!efore contained, ac"uit the accused unless for some reason he thinks it proper to ad%ourn the hearing of the case to some other day 4rovided that where the complainant is represented !y a pleader or !y the officer conducting the prosecution or where the $agistrate is of opinion that the personal attendance of the co mplainant is not necessary, the $agistrate may dispense with his attendance and proceed with the case */+ &he provisions of su!5section *-+ shall, so far as may !e, apply also to cases where the non5 appearance of the complainant is due to his death
Section $-/ of 3r43 deals with the withdrawal of complaint su!%ect to the satisfaction of the $agistrate Apparently this section applies to summons cases If a complainant, at any time !efore a final order is passed in any case under this 3hapter, satisfies the $agistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there !e more than one accused, against all or any of them, the $agistrate may permit him to withdraw the same, and shall thereupon ac"uit the accused against whom the complaint is so withdrawn Section $-) of 3r43 deals with the powers to stop proceeding in certain cases In any, summons that case instituted otherwise than upon complaint, a $agistrate of the first class or, with the previous sanction of the 3hief #udicial $agistrate, any other #udicial $agistrate, may, for reasons to !e recorded !y him, stop the proceedings at any stage without pronouncing any %udgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has !een recorded, pronounce a %udgment of ac"uittal, and in any other case release, the accused, and such release shall have the effect of discharge Section $-0 of 3r43 empowers the $agistrate to convert a summons case into warrant case *-+ if the offence is punisha!le with imprisonment for more than six months, Q */+ if he is of the opinion that it would !e in the interest of %ustice try such case in accordance with the procedure for the trial of warrant cases Section $/% of 3r43 deals with the record in summons cases and in"uires &he $agistrate shall, as the examination of each witness proceeds, make a memorandum of the su!stance of his evidence in the language of the 3ourt However, if the magistrate is una!le to make such memorandum himself, he shall, after recording the reason of his ina!ility, cause such memorandum to !e made in writing or from his dictation in open 3ourt
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16
DI%%ERENCE &ETWEEN UMMON AND WARRANT TRIAL It would !e pertinent to !ring out the differences !etween a summons case and a warrant case from the point of procedure to !e adopted for trial of these cases &he differences !etween the two are as follows *-+&he 3ode of 3riminal 4rocedure prescri!es two procedures for the trial of a warrant case !y $agistrates, namely, one to !e adopted !y the $agistrate in case instituted on a 4olice 1eport while the other in case instituted otherwise than on a 4olice 1eport 6ut there is only one procedure prescri!ed for trial of a summons case whether it is instituted on a 4olice 1eport or a complaint */+A summons5case means a case relating to an offence and not !eing a warrant5case a warrant5 case means a case relating to an offence punisha!le with death, imprisonment for life or imprisonment for a term exceeding two years J.ection / *I2+K *:+A case assumes the character of a summons5case or warrant5case according to the nature and measure of punishment which the law attaches to the offence &hose cases which are punisha!le with imprisonment for two years or under are summons5case, while those which are punisha!le with imprisonment exceeding two years are warrant5cases *D+.erious offences are thus tried under the procedure laid down for warrant5cases and light or minor offences under the procedure prescri!ed for summons5cases *?+In a summons5case a summons is ordinarily issued on a complainant, !ut in a warrant5case a warrant is not ordinarily issued on a complaint *@+In a summons5case when the accused appears !efore the $agistrate, the particulars of the offence of which he is accused are stated to him and he is asked to show cause why he should not !e convicted If he admits the guilt or fails to show any sufficient cause, he may !e convicted straight away *.ection /?-+ 6ut Co such power of summary conviction exists in warrant5cases In such cases the $agistrate !egins to hear the case of the prosecution !y examining the complainant and other prosecution witnesses, and when a prima facie case is made out against the accused he frames a charge and then asks the accused whether he pleads guilty or not *.ection /D@+
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 *9+In a summons5case the $agistrate first in"uires from the accused whether he pleads guilty to the charge and if he does not admit, his guilt prosecution evidence is recorded *.. /?- and /?/+ In a warrant5case evidence for the prosecution is taken first and then a charge is framed and the accused is asked whether he pleads guilty or not *.s /:= and /D@+ *=+In a summons5case the accused has to cross5examine each of the prosecution witnesses immediately after their examination5in5chief *.ection /?D+ In a warrant case the accused has a right to reserve his cross5examination until the charge is framed *.ections /D: and /D@+ *8+In a summons5case the complainant may withdraw his complaint with the permission of the court and on such withdrawal the accused is ac"uitted *.ection /?9+ 6ut In warrant case no such withdrawal is permitted, except when the offence is a compounda!le one *->+In a summons case if the complainant is a!sent on the date of hearing the accused shall !e ac"uitted 0nless for some reason he thinks it proper to ad%ourn the hearing of the case to some other day *.ection /?@+ 6ut on non5appearance of the complainant in a warrant case, the $agistrate, in his discretion at any time !efore the charge has !een framed, discharge the accused if the offence is compounda!le or non5cognia!le 6ut if it is otherwise he shall proceed with the trial and dispose of the case on merits *.ection /D8+ *--+In a summons case the accused may !e convicted from the facts admitted or proved whatever may !e the nature of the complaint or summons *.ection //?+ 6ut in a warrant case the procedure is otherwise A charge must !e framed, read and explained to the accused and he shall then !e asked to enter upon his defense and produce his evidence *.ections /D@ and /D9+ *-/+&he trial of a warrant case as a summons case is a serious irregularity which would vitiate the trial if the accused has !een pre%udiced 6ut the trial of a summons case as a warrant5case is only an irregularity which is cura!le under .ection D@? of the 3ode 12&3 7here a warrant case has !een tried as a summons case and it has resulted into ac"uittal of the accused, such ac"uittal shall operate only as a discharge under .ection /D? of the 3ode ;n the other hand where a summons case has !een tried as a warrant case and the accused is discharged under .ection /D?, the discharge will amount to an ac"uittal under .ection /?? of the 3ode 12%3 7hen the accused appears or is !rought !efore a $agistrate in a warrant case, the $agistrate shall proceed to hear the prosecution and take all such evidence as may !e produced in support of the prosecution 6ut in a summon case, the particulars of offence are stated to the accused and he shall !e asked whether he pleads guilty or wishes to defend himself
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16 12-3 Framing of a formal charge is necessary in a warrant case !ut it is not necessary in a summons case 123 7hen the charges reveal !oth, a warrant case and a summons case, the former is to !e preferred 12/3 A charge under warrant case cannot !e split up into its constituents for trial as under a summons case 12)3 In a warrant case, the accused gets more than one opportunity to cross5 examine the prosecution witnesses whereas in a summons case he gets onl y one opportunity to cross5examine the prosecution witnesses 1203 A warrant case may result into discharge of the accused under .ection /D8 in the a!sence of the complainant !ut in a summons case, the result would !e ac"uittal of the accused under .ection /?@ of the 3ode 1$43 In a warrant case a complaint cannot !e withdrawn !y the complainant !ut in a summons case the complainant may withdraw the complaint with the permission of the $agistrate 1$23 &he $agistrate is empowered to convert a summons case into a warrant case under 3hapter RR of the 3ode !ut a warrant case cannot !e converted into a summons case 1$$3 In a warrant case, after convicting the accused, the $agistrate may take evidence regarding the alleged previous conviction, which is not admitted !y the accused, and shall record his finding thereon 6ut no such power is conferred on the $agistrate while trying the accused in a summons case 1$&3 In a summons case, after the issue of summons, the accused may plead guilty !y post without appearing !efore the $agistrate 6ut no such provision exists in trial of a warrant case
6I6LI;B1A4HP Books
• • •
&he 3onstitutional Law of India 5 6y5 (r #C 4andey 3riminal 4rocedure 5 Eelkar Indian 3onstitutional Law 5 6y5 4rof$4 #ain
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DIFFERENCE BETWEEN SUMMON AND 2015WARRANT TRIAL 16
Online Resources
http://ncmei.gov.in/
www.maef.nic.in/
www.ncm.nic.in/constitutional_provisions.html
http://ncmei.gov.in/writereaddata/filelinks/c296efcb_Guidelines.pdf
www.sabrang.com/cc/archive/200/apr0/chapter2.pdf
www.!stor.org
www.epw.in wwwncmnicinMconstitutionalSprovisionshtml httpMMwwwncpedporgMeductnMed5resrchhtmm httpMMsocial%usticenicin httpMMwwwpu!lichealthlawnet
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