CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA 824236

Trial in summon cases

School of Law and Governance

Submitted to: - Name- Jata Shankar

Mr. Deep Narayan CUSB1713125017

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 ACKNOWLEDGEMNT

Every project big or small is successful largely due to the effort of a number of wonderful souls
who have always given their valuable advice and lent their helping hands.

I owe my sense of gratitude to almighty god for showing his blessing throughout the completion
of this project. I am highly indebted to “Mr. Deep Narayan” for his guidance and constant
supervision as well as for providing necessary information regarding the project during class
lectures. However, it would not have been possible without the kind support and help of many
individuals and organizations. I would also like to extend my gratitude to my colleague,
librarian, and non- teaching staff who have willingly helped me out with their abilities. This
research would not have been possible without all mentioned above. The subject matter of the
project work is very revolutionary and it helped me a lot to know and learn about sections and
provisions mentioned under Criminal Procedure Code1973.

Last but not the least I place a deep sense of gratitude to my family members who has been
constant source of inspiration during the presentation of this project.

Jata Shankar

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 CHAPTERISATION

CHAPTER I :- Introduction, Research Methodology, Scope, Objective &

Limitations

Scope-----------------------------------------------------------------------------------------------------------4

Research Methodology & Objective -------------------------------------------------------------------- 5

Introduction------------------------------------------------------------------------------------------------ 6-
7

CHAPTER II: - Constitutional Provisions, Jurists Review & Invocation of Emergency

Constitutional Provisions------------------------------------------------------------------------------- 8-9

Invocation--------------------------------------------------------------------------------------------------- 10

CHAPTER III: - Lacuna of Article 356

Misuse of Emergency--------------------------------------------------------------------------------- 11-13

Judicial Review-----------------------------------------------------------------------------------------14-15

CHAPTER IV: - Case Laws

S.R. Bommai V Union of India --------------------------------------------------------------------- 16-17

CHAPTER V:- Inference

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Conclusion, References------------------------------------------------------------------------------- 18-19

CHAPTER I :- Introduction, Research Methodology, Scope, Objective &

Limitations

SCOPE

This project talks about the development of Article 356 since the making of the constitution and
it throws light on the misuse of this Article in India by the central government. It also talks about
the how the misuse of this article has gone down with the help of few contemporary.

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RESEARCH METHODOLOGY

Subject: Constitutional Law II

Topic: Failure of constitutional machinery in the state under Constitution of India

The research method which I opted for doing this project is Doctrinal research from primary and
secondary sources. I researched on web database having articles and reports related to my topic.
In addition to that, I also referred books available on Article 356. This research is descriptive and
analytical in nature. Footnotes have been provided wherever needed to acknowledge the source.

OBJECTIVES

 To discuss about failure of machinery in state under Article 356 of Constitution of India.

 To study and discuss about the procedure of invocation of emergency.

 To discuss the implementation of judicial Review in case of reviewing ‘president rule’.

 To study the evolution of the theory of president rule before S.R Bommai case and after S.R
Bommai case.

 To discuss the misuse of Article 356 by Union.

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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

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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

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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

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[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

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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

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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.

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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

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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

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 ⇓ ⇓ ⇓

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

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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

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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

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[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

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CHAPTER II: - Constitutional Provisions, Jurists Review & Invocation of
Emergency

Constitutional Provisions

Invocation

CHAPTER III: - Lacuna of Article 356

Misuse of Emergency

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Judicial Review

CHAPTER IV: - Case Laws

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CHAPTER V:- Inference

Conclusion

References

BOOKS -
 Introduction to the Constitution of India ( D. D. Basu )
 Bare Act- The Constitution of India
 Constitutional law of India ( V. N. Shukla )
 Constitutional Law (M. P. Jain)
 Government of India (Constitutional Assembly Debates)
 Use and Misuse of Article 356 (H. R. Khanna)
 The Indian Constitution- Cornerstone of a nation (Glanville Austin)

INTERNET –

 http://www.law.qub.ac.uk/humanrts/emergency/india/ind6.html
 https://currentaffairs.gktoday.in/tags/presidents-rule

UNPUBLISHED SOURCES –

 Interview with H.V.Kamath on 24th Jan 1979

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