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SUMMARY TRIALS UNDER CODE OF CRIMINAL PROCEDURE: ANALYSIS OF SUPREME COURT DECISIONS BETWEEN 2010 AND 2020.
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SUMMARY TRIALS UNDER CODE OF
CRIMINAL PROCEDURE: ANALYSIS OF SUPREME COURT DECISIONS BETWEEN 2010 AND 2020.
AUTHORED BY - NAINA VISWARAJ
INTRODUCTION
The following paper addresses the
question of the complexity of the other procedure and how summary trials come
to the rescue of it. While it is a universally acknowledged fact that court
procedures are cumbersome and difficult if it is conducted in a regular manner,
summary trials are the reason why they are to a large extent put at an ease.
There are different forms of trials namely- summary trials, summons trial,
warrant trial and sessions trial. Summary trial is carried out in case the
offences are petty and not very serious.
AIMS AND OBJECTIVES
The following are the aims and
objectives of this paper-
1) To
understand the procedure followed with regard to summary trials under CRPC-
2) To analyse
the scope of section 263 of CRPC
3) To
understand what cases are can be tried summarily?
4) To go
through some of the major decisions undertaken by the Supreme court between the
years 2010 and 2020.
HYPOTHESIS
- Summary trials are essentially for
the speedy disposal of cases, yet the succeeding magistrate is barred from
providing for a judgement that he/she has not tried which is indicative of the
fact that there aren’t any reasonable grounds for isolating summary trials when
other types of offences could be tried so.
-
Summary trials cannot be initiated until and unless it is expressly
mentioned in the statute. If Negotiable instruments act contain provision of
summary trial, it cannot be assumed that other statutes of the similar nature
can be tried so until and unless it is expressly mentioned in it.
STATEMENT OF PROBLEM
The purpose of this law is to observe
the changing trends in the summary trial methodologies in India. The effective
solution to the increasing arbitrariness to the system is to be curbed with the
inculcation of proper strategies.
RESEARCH QUESTIONS
1) What were
the major changes that were brought forth in between the years 2010 and 2020?
2) Is the
essential purpose of summary trial i.e., speedy disposal of cases followed at
the end of the day?
LITERATURE REVIEW
Case laws-
1) White Industries ltd V Republic of
India, IIC 529 (2011)
2) Purushottam Sabra V State of Orissa,
1992 Cri LJ 1417 (Ori)
3) Shivaji Sampat Jagtap V Rajan Hiralal
Arora, 2007 CriLJ 122
4) Shivaji Sampat Jagtap V Rajan Hiralal
Arora, 2007 CriLJ 122.
5) Rajesh Agarwal V State & Anr, 171 (2010)
DLT 51
6) Mangi Lal, (1945) All 131
7) Karan Singh, (1878) 1 All 680.
8) Balachand v. Madsam Municipality, AIR
1960 MP 20
9) Dilip Kulkarni and Ors. V Bahadurmal
Chowdary and Sons and Ors, 2005 (2) ALD Cri 171
10) Nitinbhai Saevatilal and anr V Manubhai
Manjibhai and others, (2011) 9 SCC 638
11) J Baharuni and anr V State of Gujarat and anr,
2015 ALL MR (Cri) 357
12) SEBI V Classic Credit Ltd, 2017 SCC Online SC
961
13) Indian Bank Associations and ors V UOI and
ors, (2014) 5 SCC 590
14) Meters and instruments pvt ltd V Kanchan Mehta,
(2018) 1 SCC 560
15) Mandvi Cooperative Bank ltd V Nimesh B
Thakore, AIR 2010 SC 1402
16) Sudin Dilip Talaulikar V Polycap Wires pvt
ltd, AIR 2019 SC 3380
Important sections pertaining to summary trials
1) Section 260
– power of the court to try the summarily
2) Section
261- power of the magistrate of second class to try the case summarily
3) Section
262-procedure for summary trials
4) Section
263-Record in summary trials
5) Section
264-Judgement of cases tried summarily
6) Section
265-Language of the record and judgement
7) Section
251- Provides for the examination of the accused person
8) Section
326- if a case is partly heard by one magistrate and partly heard by another.
PURPOSE OF SUMMARY TRIAL
Summary trial is basically done in
order to ease the burden on judiciary, it upholds the maxim, and justice
delayed is justice denied. Summary trials are only done in case of small
offences. It is done to prevent the existing cumbersome regime followed in the
criminal trials ordinarily; an important factor to be taken note of is that no
convict would be denied of a fair hearing even if the cases are tried
summarily. In the case of White Industries ltd V Republic of India[1],
unreasonable delays in the justice system was viewed as an infringement to the
treaty obligations, this shows that inadvertent delays in the justice system
was prevalent in the Indian judicial system since time immemorial. The
processes in a normal trial such as examination of witness and production of
evidences are still done in order to forgo arbitrariness. Crimes which are
heinous and grave are not brought within the ambit of summary trials as those
cases are to be tried with extensive proofs and facts which are supposed to be
carefully corroborated. These crimes brought within the scope of summary trials
are common and happen on an everyday basis, it is high-time that we get rid of this
troublesome conduct of the accused and have an effective speedy remedy for the
same.
Section 261 to 265 of CRPC deals with
the cases that can be tried summarily-
In case, the case is tried by a Chief
Magistrate, metropolitan magistrate or first class magistrate, the following
are the types of cases that can be tried so by them.
1) Offences
that cannot be charged with capital punishment or imprisonment exceeding 2
years.
2) Theft as
explained in the sections 378, 380 and 381 of IPC provided that the value of
the stolen items does not exceed Rs 200.
3) Confiscation
of any stolen property worth not more than Rs 200.
4) Assisting
in seclusion of any of the stolen goods.
5) Trespassing
into an individual’s property without due consent of that individual as per
section 454 of IPC
6) Criminal
intimidation as per section 504 of IPC.
7) Instigation
of any of the offences
In case the case is tried by a
magistrate of second class, the following are the category of offences that can
be tried by them.
1) Offences
which have the punishment of less than 6 months with or without fine.
2) Any offence
with which the penalty of it is just a fine.
3) Instigation
or attempt to commit any of the following offence.
Difference between summary trials and warrant trials
The following are the major
differences between a summary trial case and a warrant trial case,
1) Cases which are tried summarily are
not as heinous and grave as the cases that are tried otherwise.
2) The testimony of the witnesses are
not recorded entirely with every little detail pertaining to the statement that
they have given to the jury in a summary trial. Whereas in a warrant trial,
every each and every testimony of each of the witnesses are detailed
meticulously.
3) Same goes with the recording of
evidence also; there is only a summary of each of the evidences that is being
recorded whereas in warrant cases the evidences are recorded extensively.
4) A formal charge sheet is not a
primary requisite in summary trials but in a warrant case the charge sheet is
required to be formulated.[2] The
charges are only read out to the accused in a summary trial whereas in a normal
case, the charges are supposed to be in writing. This is given under sections
253-258 of the code.
PROCEDURE FOLLOWED IN THE CASE OF A
SUMMARY TRIAL
1) First and
foremost step is registering an FIR, just like any other criminal case
formulating an FIR is a primary mandate which has to be followed mandatorily
because an FIR is the only document which can set any criminal case in motion.
2) Producing
the accused before a competent magistrate. It goes without saying because every
citizen is entitled to a fair trial and this ensured when he/she is represented
by a lawyer of his/her choice and then the fate must be decided by the
competent judge in the respective court.
3) The charges
are read to the accused. All the charges which are against the accused are read
to him/her as soon as they are brought for the trial.
4) The accused
is then supposed to either plead guilty or not guilty. This scenario is
accompanied with two possible outcomes-
a) In case the
accused pleads guilty, if the accused pleads guilty it will up to the
discretion of the magistrate to either convict them or not.
However, this discretion
is not to be exercised arbitrarily, it should be carefully analysed with
adequate evidences backing the conviction.in the case of Purushottam Sabra V
State of Orissa[3], it was
held that no accused should be convicted without proper evidences backing the
claims of the prosecution. The report containing all the evidences leading to
the conviction of the accused should be fair and genuine.
b) In case the
accused pleads not guilty, the magistrate proceeds with the trial by hearing
both sides of the prosecution and defence.
Particulars which are to be recorded in a summary trial
The following are the particulars
that are to be recorded in a summary trial proceeding-
1) Serial no
of the case
2) The date on
which the offence was committed
3) The date on
which the complaint was made
4) Name of the
guardians of the accused
5) Name and
address of the accused
6) The value
of the property stolen in case the offence is of theft
7) The plea of
the accused and the examination in furtherance to the plea
8) Discovery
of the magistrate
9) Judgment of
final order of the magistrate
10) The date on
which the trial concludes.
The trial is to be conducted by a
competent magistrate because in case he/she ceases to have jurisdiction, the
case cannot be tried. In the case of Shivaji Sampat Jagtap V Rajan Hiralal Arora[4],
the judicial magistrate ceased to have jurisdiction yet the trial was conducted
following all the credentials mentioned as per section 263 of CRPC.
The magistrate should give reasons as
to why a case should not be tried summarily. In the case of Rajesh Agarwal V
State & Anr[5], several
important particulars of a summary case were addressed. According to section
143 of the Negotiable instruments Act, it is evidently mentioned that all the
offences mentioned in this chapter are to be tried summarily but in case there
is any reason that this case should not be tried summarily, the magistrate
shall give adequate reasons for the same. In such a scenario, the magistrate
can re-hear and re-examine any witness who have provided testimony before.
48th Law commission report
The accused persons are heard on the
question of sentence in both summons and warrant trial. The law commission has
rightfully pointed out that there shouldn’t be any distinction between the
natures of the trials. The accused should be heard as and when they are
sentenced regardless of the nature of their trial. Crime in a sense is a
product of distortion of mind and any trial and the impact on the accused is
the same regardless of the crimes that they are convicted for.
SOME OF THE EARLIER DECISIONS THAT ESTABLISHED THE CONCEPT
OF SUMMARY TRIAL[6]
1) Any deformity in the trial conducted
summarily would be deemed as illegality and not as an irregularity.[7]
2) If the evidences are not
satisfactory, the magistrate can examine the witnesses extensively and can even
order to a re-trial.[8]
3) Section 260 confers the power to the
magistrate to try a case summarily for the cases that he can already try but in
a specified procedure.[9]
4) If in the middle of the trial, the
magistrate comes to a conclusion that this trial should not be conducted
summarily then the case should be tried as a summons case immediately.[10]
5) Dilip Kulkarni and Ors. V Bahadurmal
Chowdary and Sons and Ors[11]
the power of the court to convert a summary case into a summons case and a
warrant case was described here. Section 260 impliedly empowers a magistrate to
re-call the witnesses and re-hear the case. This can be considered as the power
of conducting criminal trial in the form of a summons trial. As per section
259, the magistrate can convert a summons case into a warrant case.
SOME OF THE MAJOR DECISIONS OF THE SUPREME COURT
BETWEEN THE YEARS 2010 AND 2020.
1) Nitinbhai Saevatilal and anr V
Manubhai Manjibhai and others[12], this
case primarily based on the issue of whether a magistrate can give the
judgement of a case that he/she has not tried? The pre-recorded evidences were
the only the source of information available in order to determine the fate of
the accused.
Analysis- To provide an
answer for this question, it is essential for us to look at section 326 of CRPC.
Section 326 deals with
the scenario in which a conviction is based on evidences partly recorded by one
magistrate and partly by another. This section is accompanied with three
possibilities.
a) In case a
judicial ceases to exercise jurisdiction in the case or if he/she is
transferred, then the succeeding magistrate can act up on the pre-recorded
evidence and base determine the decision. If the evidences are partly recorded
he/she can record the rest of the evidences and conclude the trial with a reasonable
decision.
b) Sub clause
(1) essentially reads as follows- the transfer of a magistrate even after all
the recording of the evidences it refrains him/her from dealing with the case
and the succeeding magistrate will take over the case.
c) This sub
clause reads as nothing mentioned in the above sub clauses are applicable to
summary trials or any other cases stayed under section 322 of CRPC.
In the following case,
the accused was found guilty by the succeeding magistrate after evaluating the
evidences that his predecessor has already recorded and aggrieved by the said
decision the accused sent in the case for an appeal wherein the conviction of
the accused was upheld. Finally, the case was brought before the apex court
wherein, the issue of lack of authority of the second magistrate to provide for
a conviction or acquittal in this case was pointed out. Section 326 is only for
the offences mentioned in chapter 24 of the code. It is expressly mentioned in
section 326(3) of the code of criminal procedure that these provisions are not
applicable for a summary trial proceeding. This is indicative of the fact in a
summarily tried case, only the magistrate who records the evidence can provide
for a verdict resulting in the conviction and acquittal of the case. In a situation
wherein the new magistrate takes charge on the stipulated date the verdict is
supposed to be given, he/she is required re-record all the evidences and carry
out the proceed in the way that deems fit and then reach a verdict. This
principle is enshrined under section 461(1) of the code which reads as follows-
In case of any
irregularities in the trial because of any factors, the verdict reached by the
magistrate shall be deemed void and hence the trial is to be re conducted.
2) In the case of J Baharuni and anr V
State of Gujarat and anr[13],
the matter of the nature of a case i.e, whether a case can be tried by as a
summons case even when it is to be tried summarily?
Analysis- Section 143 of
the Negotiable Instruments act dealing with dishonour of the cheque is always
triable summarily. However, in this case the accused were tried with the record
of elaborate evidences and the examination of the witnesses were conducted in
an extensive manner which are the indeed the characteristics of a regular
trial. So, following the conventional pattern of a trial, the judicial
magistrate recorded the evidences and testimonies following which he was
transferred. He was succeeded by a new judicial magistrate. The situation here
is that when section 326(3) is read carefully, we can conclude that the
principle of barring a judicial magistrate from barring a judicial magistrate
from acting upon the previously recorded evidence is applied only when the case
is tried summarily. So keeping this contention in mind, the magistrate passed a
verdict resulting in the acquittal of the accused. This was however challenged
before the appellate wherein it was stated that the present judicial magistrate
is not competent enough to give the verdict since he was succeeded by a judge
who already recorded all the evidences and according to section 326(3), the
judicial magistrate succeeded is not empowered to act upon the evidence if the
case is of summary nature.
The appellate court
dismissed this contention stating that though the above mentioned case was
tried summarily, this case was never tried as one and therefore, the magistrate
who succeeded the previous one applied his judicial mind effectively and gave
the verdict based on the evidences already recorded which is permissible in a
regular summons case. The case was appealed further, and was requested by the
appellants to be tried as a de novo case (a trial wherein the higher asks the
lower court re conduct the trial because the court has based its decision on
misread facts and unreasonable application of evidence. Thus, a case can be
tried by way of summons case even though it is triable summarily provided the
judicial application of mind is exercised effectively.
Part 2 of the same case-
in the same another important question regarding failure to record reasons as
to why a case is not tried summarily was raised?
The answer to the
question is that no magistrate is required to show reasons as to why a case is
tried as per the requirements of a regular trial and not tried summarily.
3) SEBI V Classic Credit Ltd[14],
an important question that was dealt with in this case was that whether a
statute or legislation can presume that it can try the cases summarily even
when it is not specified in the statute?
Analysis- unlike the
Negotiable Instrument act, it is not specifically mentioned in the SEBI
regulations act as to whether the cases under this act can be tried summarily
neither was it provided in any of the amended provisions of the act. The
accused alleged that he was deprived of a summary trial which was followed in
most of the cases governed by similar statutes. The case when observed by the
Supreme Court was primarily baseless as in order to the conduction of a case by way of a summary trial, the first
and foremost thing to be considered whether the High Court has expressly
provided that this particular case can be tried summarily. So in a nut shell,
it can be concluded that a case is triable summarily only if it is mentioned in
the statute otherwise it cannot assume the provisions that it does not have. Even
before the amendment of 2002, the SEBI cases were both triable by the
magistrate and sessions judge but after the amendment, SEBI withdrew such
jurisdiction conferred on the magistrate court and now the cases are tried only
in the sessions court which indeed proves that there was no intention by the statute
to conduct the trials summarily. Hence, none of the accused is entitled to
summary trial until and unless it is expressly mentioned in the statute.
4) In the case of Indian Bank
Associations and ors V UOI and ors[15],
the question of whether admissibility of evidences as per section 145(1) in the
form of affidavits was brought before the apex court.
Analysis- It is to be
noted that the main purpose of summary trial is the speedy disposal of cases.
Since the cases under the negotiable instruments are prevalent today, it is
important that these cases are tried summarily but effectively. In order to
analyse this concept completely it is essential to look at section 145(1) which
reads as follows-
Notwithstanding anything
contained in the CRPC, the evidences must be submitted by way of an affidavit
by the complainant.
However, the question
before the honourable court was with respect to the elaborate procedures which
were conducted usually, whether they stand cancelled depriving a right to fair
trial of the accused. The court answered this question stating that if any case
is decided to be tried summarily then the court will not neglect the procedure
of examination-in-chief, the difference is that all the witnesses may be called
in for their testimonies as and when it deems fit, it is up to the discretion
of the court.
5) Meters and instruments pvt ltd V
Kanchan Mehta[16], the
question before the court was the validity of a trial after the compensation
was deposited by the accused person. Hence the question of whether the
provisions of summary trial are predominantly criminal or civil arose.
Analysis- In this case,
the court has regarded the cases under negotiable instrument act as
predominantly civil and nature of it is mainly compensatory. As soon as the
compensation is deposited by the accused, the damage control was done and
hence, the case ceases to exist. However, it is important to take note of the
fact that the remaining proceedings leading to the conclusion of the trial will
be conducted online.
This claim is
substantiated with section 143(2) of the Negotiable Instrument Act as follows-
The trial could be
continued by the judge as and when he deems it fit. However, if there are
essential reasons as to why the case should be adjourned, it can be done
provided the reasons are recorded in writing.
6) In the case of Mandvi Cooperative
Bank ltd V Nimesh B Thakore[17],
the question of the validity of section 143, 145 and 146 of the Negotiable
instrument act arose; these provisions were overriding the criminal procedure
code which is the apex statute of all the criminal law statutes. Also, section 146
is also contrary to the provisions mentioned in the evidence act. The accused
cannot depose any evidences after the witnesses have provided their
testimonies.
7) In the case of Sudin Dilip Talaulikar
V Polycap Wires pvt ltd[18],
the question of admissibility of a ‘moonshine’ defence was questioned.
Analysis- Moonshine
defences are false and baseless defences raised by the defence in case of a
trial. However in case of a summary trial, if the defence produces ample
reasons as to just and fair conduction of trial then the question of a
moonshine defence does not arise, it can grant leave on a conditional basis if
there is a slight doubt, but it is based on the subjective satisfaction of the
judge. When there is a bigger possibility of doubt in the mind of the judge
that the defence is producing an unreasonable or a fabricated evidence and then
the court can impose conditions as to both or mode of the trial, with the
condition precedent that the object of the summary trial that is speedy and
expeditious disposal of cases is not hindered with.
The following are the
major developments brought forth during the years 2010 and 2020.
1) A
magistrate cannot act upon the evidence already recorded by another magistrate.
2) A case can
be tried by way of summons nature even when the case is triable summarily.
3) No statute
can presume the powers that have not been conferred upon it.
4) Evidences
in the form of an affidavit by the complainant are admissible in the case of
negotiable instruments act.
5) Nature of
summary trial is mainly compensatory in nature.
6) Provisions
of sections 143-146 are sometimes overriding to the provisions under CRPC.
7) The court
can conditionally grant leave when the court has a mild suspicion as to the
nature of the defence as moonshine.
CONCLUSIONS AND SUGGESTIONS
The norm that exists now is liberal
and is effectively permitting the magistrates to take decisions according to
their whims and fancies. As mentioned earlier magistrates are conferred with
the power of changing the nature of the cases from summary to summons, summons
to warrant. This can alter the whole purview of the trial; the trial is not
going to be conducted in a simplified manner neither is going to be serving the
purpose of summary trial that is speedy disposal of cases. Such cases occur
time and again on an everyday basis, therefore, it is not be given much
importance than it is supposed to be given. The factors barring the succeeding
magistrate from providing for the judgement in cases already tried by his/her
predecessor is also rather unreasonable and unsatisfactory, if other offences
which are not summary in nature is granted with this privilege then so should
be the case with summary trials as well. Speedy remedy does not mean remedies
which are rushed through without careful consideration of the evidence.
Therefore, an accused is not entitled to summary trial until and unless the
statute expressly provides for one. Hence, a summary trial is not a right that
an accused can claim in order to ease the nature of his/her sentencing.
Some of the suggestions could be with
respect to providing for an effective strategy with respect to ease the
judicial burden by not barring a transferred judge in making a decision based
on the evidences that he/she has recorded. Also another important factor could
be with respect to the alteration of nature of cases to an entirely new scheme
which can be cumbersome and long. Therefore, re-recording of any evidence and
subsequent change in the nature of the case should be recorded by the
magistrate in writing.
BIBLIOGRAPHY
2) https://lawtimesjournal.in/summary-trials/
4) The criminal procedure code, 1973
5) Negotiable Instrument Act, 1881
[2] Neitseizonou Solo, Summary trials under Crpc, (29th
August 2020, 11:00 pm)
https://crlreview.in/summary-trials-under-crpc/#:~:text=Summary%20trial%20is%20the%20name,for%20summons%20or%20warrant%20trials.
[3] Purushottam Sabra V State of
Orissa, 1992 Cri LJ 1417 (Ori)
[4] Shivaji Sampat Jagtap V Rajan
Hiralal Arora, 2007 CriLJ 122.
[6] Parul Soni, Summary trials, (29th August 2020, 12:00 pm)
https://lawtimesjournal.in/summary-trials/
[7] Mangi Lal, (1945) All 131
[8] Karan Singh, (1878) 1 All 680.
[9] Balachand v. Madsam Municipality,
AIR 1960 MP 20.
[10] D.N. Patel, 1971 Cr LJ 1244.
[11]Dilip Kulkarni and Ors. V
Bahadurmal Chowdary and Sons and Ors, 2005 (2) ALD Cri 171
[13] J Baharuni and anr V State of
Gujarat and anr, 2015 ALL MR (Cri) 357
[14] SEBI V Classic Credit Ltd, 2017
SCC Online SC 961
[16]Meters and instruments pvt ltd V
Kanchan Mehta, (2018) 1 SCC 560
[17] Mandvi Cooperative Bank ltd V
Nimesh B Thakore, AIR 2010 SC 1402
Article Information
SUMMARY TRIALS UNDER CODE OF CRIMINAL PROCEDURE: ANALYSIS OF SUPREME COURT DECISIONS BETWEEN 2010 AND 2020.
Authors: NAINA VISWARAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/23
- Issue 7
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International Journal for Legal Research and Analysis
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