1

TRAIL OF SUMMONS CASES BY MAGISTRATE: A CRITICAL ANALYSIS

SUBMITTED TO
Dr. ARCHANA SHYAM GHAROTE
FACULTY MEMBER IN CRIMINAL PROCEDURE CODE

SUBMITTED BY
ONINDYA MITRA
B.A. LL.B (HONOURS) STUDENT
SEMESTER VII, SECTION – B, ROLL NO: 194

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

Date of submission: 18-08-18

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ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them with words is
beyond the domain of my lexicon.

This project wouldn’t have been possible without the help of my teacher Dr. Archana Shyam
Gharote, Faculty Member, HNLU, Raipur, who had always been there at my side whenever I
needed some help regarding any information. He has been my mentor in the truest sense of the
term. The administration has also been kind enough to let me use their facilities for research
work, I thank them for this.

Onindya Mitra
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CONTENTS

Acknowledgements ................................................................................................................ 2
Chapter 1: Introduction .......................................................................................................... 4
Research Objective ................................................................................................................ 5
Literature Review .................................................................................................................. 5
Methodology ......................................................................................................................... 5
Hypothesis ............................................................................................................................. 5
Research Questions ............................................................................................................... 5
Mode of Citation ................................................................................................................... 5
Chapter 2: Trial procedure under the present Indian Legal System .....................................6
Chapter 3: Summon Trial...................................................................................................... 9
Chapter 4: Difference between Summon trial and warrant trial .......................................... 14
Conclusions .......................................................................................................................... 17
Bibliography/ References...................................................................................................... 18
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CHAPTER 1: INTRODUCTION

The Code of Criminal Procedure 1973 (in short Cr.P.C.) is a procedural law providing the
mechanism in which manner the criminal trial is to be conducted on the basis of substantive
criminal law i.e. I.P.C. and other criminal statute. The primary object of the criminal justice
system is to ensure that the trial must be fair. The Presiding Officer is supposed to treat the
accused innocent till charge is proved against him but at the same time the guilty person should
not be escaped from the punishment. The word “trial” is not defined anywhere in the Criminal
Procedure Code, however, it means an commonly understood the stage of trial began after
framing the charge and end with the conviction or acquittal. The criminal procedure for judicial
adjudications is divided in 37 chapter and classified in two schedules (i) the offences classified
under I.P.C. and (ii) the offences classified other than I.P.C. The nature of trial are divided on the
basis of seriousness of offences, its gravity and jurisdiction and on the basis of the gravity,
seriousness of the offences the substantive law i.e. I.P.C. is divided into 37 parts by granting
separate nomenclature particularly the nature of offences like the offence against State, human
body, property, public tranquility, documents, marriage etc.
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RESEARCH OBJECTIVE
The objectives of this research project are as follows:
1) To study the provisions of Chapter XX of the Code in light of the object of the
legislation;

2) To study the differences between trial of warrants and summons cases;

3) To study the judicial trend and judicial divergence in summons cases

LITERATURE REVIEW
1) BATUK LAL ET. AL., COMMENTARY ON THE CODE OF CRIMINAL
PROCEDURE, 1973 VOL. I 488 (6TH ED. THOMSON REUTERS 2016).

This extensive commentary provides insight into the background and history of the provisions of
Chapter XX. This seminal piece explores the various aspects of the implementation of the
Sections, and also the object and purpose of the sections.
.

METHODOLOGY
This research project has been made following the descriptive-analytical approach. Reliance has
been placed on both primary and secondary sources of data. A number of case laws and
commentaries on Summons cases were relied upon for the purpose of making this project.

HYPOTHESIS
The primary hypothesis behind this project is that the procedure established for trial of summons
cases under criminal procedure code, 1973 is different from the trial of warrants cases and the
provisions for trial of summons cases under section 251-259 have been elaborately interpreted by
the judiciary.

RESEARCH QUESTIONS
1) Chapter 1 – What is the procedure for trial under the present Indian legal system?

2) Chapter 2 –What is a summon trial?

3) Chapter 3 – What is the difference between Summon trial and warrant trial?

MODE OF CITATION
This research project has been made following the Bluebook Style of Citation (19th Ed.)
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CHAPTER 2: TRIAL PROCEDURE UNDER THE PRESENT INDIAN LEGAL SYSTEM

Under the Indian criminal procedure it is obligatory that evidence for the prosecution and
defense should be taken in the presence of the accused. A Trial is vitiated by failure to examine
the witnesses in the presence of the accused.1 If a fair trial is the main object of the criminal
procedure, any threat to the continuance of a fair trial must be immediately arrested. If an
accused person by his own conduct puts the fair trial into jeopardy it would be 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
obstruction?2 The idea of a fair criminal trial has been accepted as a universal human rights.3
Thus, in the common law model of Indian Criminal trial, fair trial is not only adopted but also
worshipped.

THE ACCUSATORIAL TRIAL PROCEDURE

It is a cornerstone of adversary system that an accused is presumed innocent unless and until
proved guilty beyond reasonable doubt. The State must establish guilt by evidence independently
and freely secured and may not by coercion prove its charge against an accused out of his own
mouth. A common law trial is and always should be an adversary proceeding. Thus, the
presumption of the innocence of the accused is transformed into court room procedure in the
common law adversary system.

THE PRESUMPTION OF INNOCENCE

One of the cardinal principles which should always be kept in our system of administration of
justice in criminal cases is that a person arraigned as an accused is presumed to be innocent
unless and until proved otherwise. Another golden thread which runs through the web of
administration of justice in criminal cases is that if two views are possible on the evidence
adduced in the case- one pointing to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused is to be accepted.(Vide Kaliram v. The State of H.P.-
AIR 1973 SC 2773, Sheo Nandan Paswan v.State of Bihar- AIR 1983 SC 194- Nishar Ali v.
State of U.P.- AIR 1957 SC 366).Even in an appeal against acquittal, the presumption of
innocence in favour of the accused is not weakened and in considering an appeal against
acquittal, the High Court has to keep this presumption in mind. (S.A.A. Biyabani v. State of

1
Singh V. State of Orissa, 1990 Cr LJ 397 (ori).
2
Hassain (I) V. State AIR 1958 S.C. 376; State V Anantha Singh 1972 Cr. I LJ.
3
See Articles 10 and 11 of the Universal Declaration of Human Rights adopted and proclaimed by the
General Assembly of the U.N. On December 10, 1948.
 7

Madras- AIR 1954SC645, Ram Jog v. State of U.P.-AIR 1974 SC 606; Rajendra Rai v. State of
Bihar –AIR 1974 SC 2145, Autar Singh v. State of Punjab- AIR 1979 SC 1188, State of A.P.v.
Anjaneulau – AIR 1982 SC 1598, Babu v. State of U.P.- AIR 1983 SC 308, Ramji Surjiya v.
State of Maharashtra-AIR 1983 SC 810 and Chandra Kanta Deb v. Stateof Tripura- AIR 1986
SC 606). In paragraph 40 of the Constitution Bench decision of the Apex Court in B.R.Kapur v.
State of T.N. – 2001 (7) SCC 231 it has been observed that when a lower court convicts an
accused and sentences him, the presumption that he is innocent comes to an end.

The criminal jurisprudence, no doubt, requires a high standard of proof for 4 imposing
punishment to an accused. But it is equally important that on hypothetical grounds and surmises
prosecution evidence of a sterling nature should not be brushedaside and disbelieved to give
undue benefit of doubt to the accused. (Vide State of U.P. v. Ram Sevak and others-2003 (1)
Crimes 461 (SC).The law should not be stretch edmorbidly to embrace every hunch hesitancy
and degree of doubt. Our jurisprudential enthusiasm for presumed innocence must be moderated
by the pragmatic need to make criminal justice potent and realistic – (Vide Shivaji v. State of
Maharashtra – AIR1973 SC 2622). Doubts must be actual and substantial as to the guilt of the
accused person arising from the evidence or from the lack of it, as opposed to mere vague
apprehensions. A reasonable doubt in not an imaginary trivial or a merely possible doubt; but a
fair doubt based upon reasons and common sense. Uninformed legitimization of trivialities
would make a mockery of administration of criminal justice. AIR 1988 SC2154 – State of U.P.
v. Krishna Gopal. The criminal law has a purpose to serve. Its object is to suppress criminal
enterprise and punish the guilty. In this process it must however be ensured that reasonable
doubts alone are given to the accused. (Vide State of Kerala v. Narayanan Bhaskaran – 1991
Crl.L.J.238 = 1991 (2) KLT 217).

TRIAL AND THE RIGHTS OF THE ACCUSED.

So as to have the trial in a fair manner the criminal procedure code recognised some rights to the
accused person. They are,

[1] Right to know about the accusation

[2] Right to be tried in his presence

[3]Right to have evidence to be taken in his presence

[4] Right to have a competent legal practitioner of his choice

[5] Right to cross examination prosecution witnesses

[6] Right to adduce evidence in defence etc.

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DIFFERENT TYPES OF CRIMINAL TRIALS

The criminal procedure code of 1973, provides different types of criminal trials for various kinds
of criminal cases. There are more elaborate, simple and less elaborate trial procedures for various
kinds of offences according to their seriousness and less seriousness. Classification of criminal
cases has been made for making a primary decision as to the type of trial procedure to be adopted
in respect of any criminal case. The code of criminal procedure provides for four types of trial
procedure. They are

[1] Trial before a court of session,

[2] Trial in Warrant Cases

[3] Trial in Summon Cases , and

[4] Summary trials.

TRIAL IN WARRANT CASES

Warrant cases are those cases in which an offence attracts a penalty of imprisonment for more
than seven years and it includes offences punishable with death and life imprisonment. In such
cases, the trial starts either by filing of FIR or by filing a complaint before 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. Section 193 of the Criminal Procedure Code
clearly states that the session court cannot take cognizance of any offence unless the case has
been sent to it by a magistrate. The process of sending it to session’s court is generally called
committing it to session’s court.

TRIAL IN SUMMON CASES

A summon case is a case which is not a warrant case. So in simple words, those cases in which
an offence is punishable 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. The court gives substance of the accusation, which is called “notice”, to
the accused when the person appears in pursuance to the summons.
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CHAPTER 3: SUMMON TRIAL

A summons case means a case relating to an offence not being a warrant case, implying all cases
relating to offences punishable with imprisonment not exceeding two years. In respect of
summons cases, there is no need to frame a charge. The court gives substance of the accusation,
which is called “notice”, to the accused when the person appears in pursuance to the summons.

In view of Section 251 of Cr.P.C. the Magistrate is required to explain the particulars of the
offence of which the accused is prosecuted. As per section 252 if the accused pleads guilty, the
Magistrate shall record his plea as nearly as possible in the words used by the accused and may
in his discretion, convict him thereon.

Section 253. Conviction on plea of guilty in absence of accused in petty cases.

(1) Where a summons has been issued under section 206 and the accused desires to plead guilty
to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by
post or by messenger, a letter containing his plea and also the amount of fine specified in the
summons.

(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of
guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by
the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in
this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly
as possible in the words used by the pleader and may, in his discretion, convict the accused on
such plea and sentence him as aforesaid.

Section 253 of Cr.P.C. is an exception to general rule which provides a simple procedure for
disposing of petty cases without the presence of accused in court by post and messenger also. By
this provision discretion is given to the Magistrate to convict the accused. It also enables the
pleader authorised by the accused to plead guilty on behalf of his client when offence is
punishable only with fine.

However, as per Section 254 of Cr.P.C. if the accused is not convicted under Section 252 or 253
the court shall hear prosecution and take evidence lead by the prosecution and also hear the
accused and take all such evidence as he produces in his defence.

Section 254. Procedure when not convicted.

(1) 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 such 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.
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(2) The Magistrate 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.

(3) A Magistrate may, before summoning any witness on such application, require that the
reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited
in court.

Section 255 of Cr.P.C. deals with the acquittal or conviction.

(1) If the Magistrate, upon taking the evidence referred to in section 254 and such further
evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilt,
he shall record an order of acquittal.

(2) Where the Magistrate does not proceed in accordance with the provisions of section 325 or
section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.

(3) A Magistrate may, under section 252 or section 255, convict the accused of any offence
triable under this Chapter which form the facts admitted or proved he appears to have committed,
whatever may be the nature of the complaint or summons if the Magistrate is satisfied that the
accused would not be prejudiced thereby.

Section 256 of Cr.P.C. deals with the circumstances of non appearance or death of the
complainant.

If the summons has been issued on complaint and on the day appointed for the appearance of the
accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant
does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the
accused unless for some reason he thinks it proper to adjourn the hearing of the case to some
other day: Provided that where the complainant is represented by a pleader or by the officer
conducting the prosecution or where the Magistrate is of opinion that the personal attendance of
the complainant is not necessary, the Magistrate may dispense with his attendance and proceed
with the case.

The provisions of sub-section (1) shall, so far as may be, apply also to cases where the
nonappearance of the complainant is due to his death.

Section 257 of Cr.P.C. deals with the withdrawal of complaint subject to the satisfaction of
the Magistrate.

Apparently this section applies to summons cases. If a complainant, at any time before a final
order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient
grounds for permitting him to withdraw his complaint against the accused, or if there be more
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than one accused, against all or any of them, the Magistrate may permit him to withdraw the
same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.

Section 258 of Cr.P.C. deals with the powers to stop proceeding in certain cases.

In any, summons that case instituted otherwise than upon complaint, a Magistrate of the first
class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial
Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without
pronouncing any judgment and where such stoppage of proceedings is made after the evidence of
the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other
case release, the accused, and such release shall have the effect of discharge.

Section 259 of Cr.P.C. empowers the Magistrate to convert a summons case into warrant
case (1) if the offence is punishable with imprisonment for more than six months, & (2) if he is
of the opinion that it would be in the interest of justice try such case in accordance with the
procedure for the trial of warrant cases.

Section 274 of Cr.P.C. deals with the record in summons cases and inquires. The Magistrate
shall, as the examination of each witness proceeds, make a memorandum of the substance of his
evidence in the language of the Court. However, if the magistrate is unable to make such
memorandum himself, he shall, after recording the reason of his inability, cause such
memorandum to be made in writing or from his dictation in open Court.

LEGISLATIVE INTENT

The very fact that in a Summons Case there is no specific provision of a discharge, as opposed to
a Warrants Case (S.227/239/245 of the CrPC) speaks as conformity to the legislative intent of
not having an elaborate hearing at the time of framing of notice. It was expected that, since
Summons Cases relate to offences of relatively lesser gravity and capable of being completed
expeditiously, having a dedicated charge hearing would only delay matters unnecessarily,
without any corresponding benefit. The legislative intent to have a relatively abridged form of
trial in Summons Cases is writ large on the face of the provisions.4

JUDICIAL TREND

The issue was first dealt-with at length by the Supreme Court in K. M. Matthew v. State of
Kerala,5where the accused had sought recalling of the summoning order in a Summons Case. It
was held by the Supreme Court that, "The Magistrate may drop the proceedings if he is satisfied
on reconsideration of the complaint that there is no offence for which the accused could be tried.
It is his judicial discretion. No specific provision is required for the Magistrate to drop the

4
41st Law Commission Report, p. 178, para 22.1
5
(1992) 1 SCC 217
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proceedings or rescind the process. The order issuing the process is an interim order and not a
judgment. It can be varied or recalled. The fact that the process has already been issued is no
bar to drop the proceedings if the complaint on the very face of it does not disclose any offence
against the accused".

This particular leaves certain important questions to ponder that wouldn’t such an order would
amount to the court reviewing its own order. The controversy was settled by the Supreme Court
after the period of Twelve Years (12) in the case of Adalat Prasad v. Rooplal Jindal,6 where
court held that, “If the Magistrate issues process without any basis, the remedy lies in petition u/s
482 of the CrPC, there is no power with the Magistrate to review that order and recall the
summons issued to the accused.” The Decision was reaffirmed in the case of Subramanium
Sethuraman v. State of Maharashtra & Anr,7 where the court held that, “Discharge, Review,
Re-Consideration, Recall of order of issue of process u/s 204 of the CrPC is not contemplated
under the CrPC in a Summons Case. Once the accused has been summoned, the trial court has
to record the plea of the accused (as per Section 251 of the CrPC) and the matter has to be taken
to trial to its logical conclusion and there is no provision which permits a dropping of
proceedings, along the way.”

JUDICIAL DIVERGENCE REGARDING DISCHARGE IN SUMMON CASES

Though the dispute regarding the discharge was being settled by the court in the case of Rooplal
Jindal and the same position was held for a long time but in the case of Bhushan Kumar v. State
(NCT of Delhi),8 the Supreme Court ruled that magistrate has the power to discharge in
Summons case, this decision of Bhushan Kumar case was followed in catena of decisions and in
the case of Urrshila Kerkar v. Make My Trip (India) Private Ltd,9 and court held that, “It is no
doubt true that Apex Court in Adalat Prasad v. Rooplal Jindal and Ors. (2004) 7 SCC 338 has
ruled that there cannot be recalling of summoning order, but seen in the backdrop of decisions of
Apex Court in Bhushan Kumar and Krishan Kumar, aforesaid decision cannot be misconstrued
to mean that once summoning order has been issued, then trial must follow. If it was to be so,
then what is the purpose of hearing accused at the stage of framing Notice under Section 251 of
Cr.P.C. In the considered opinion of this Court, Apex Court's decision in Adalat Prasad (supra)
cannot possibly be misread to mean that proceedings in a summons complaint case cannot be
dropped against an accused at the stage of framing of Notice under Section 251 of Cr.P.C. even
if a prima facie case is not made out."

6
(2004) 7 SCC 338.
7
(2004) 13 SCC 324
8
(2012) 5 SCC 424
9
(2013) SCC OnLine Del 4563, Raujeev Taneja v. NCT of Delhi (Crl.M.C. No.4733/2013 decided on 11th
November, 2013)
 13

AMIT SIBAL CASE: RECTIFICATION OF DIVERGENCE REGARDING SUMMONS

CASE

Recently in the case of Arvind Kejriwal and others v. Amit Sibal & Anr,10 the Delhi High Court
held that, “Magistrate has the power to hear the accused at the time of explanation of substance
of the accusation, and if no offence is made out, to drop proceedings against him at that stage
itself, and the court need not, in all cases, take the matter to a full blown trial'.
On appeal to the Supreme Court the Court held that, “The Magistrate, in a Summons Case, has
no power to drop proceedings, in absence of a specific provision in the CrPC to that effect”
and matter was remanded to the High Court for fresh consideration from the viewpoint of
Section 482 of the CrPC, effectively implying that Trial Court would have no such power.
Also in the year 2016, the Delhi High Court in the Case of R.K. Aggarwal v. Brig Madan Lal
Nassa & Anr,11 the Court held that, “There is no basis in the contention of the petitioners for
discharge for the reasons that firstly, there is no stage of discharge in a summons case. Under
Chapter XX of Cr.P.C, after filing a private complaint, in a summons case, the accused is either
convicted or acquitted. There is no stage of discharge of an accused at any stage under Chapter
XX of Cr.P.C"

10
(2014) 1 High Court Cases (Del) 719
11
2016 SCC Online Del 3720
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CHAPTER 4: DIFFERENCE BETWEEN SUMMON AND WARRANT TRIAL

It would be pertinent to bring out the differences between a summons case and a warrant case
from the point of procedure to be adopted for trial of these cases. The differences between the
two are as follows:

(1)The Code of Criminal Procedure prescribes two procedures for the trial of a warrant case by
Magistrates, namely, one to be adopted by the Magistrate in case instituted on a Police Report
while the other in case instituted otherwise than on a Police Report. But there is only one
procedure prescribed for trial of a summons case whether it is instituted on a Police Report or a
complaint.

(2)A summons-case means a case relating to an offence and not being a warrant-case: a
warrantcase means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years. [Section 2 (IV)]

(3)A case assumes the character of a summons-case or warrant-case according to the nature and
measure of punishment which the law attaches to the offence. Those cases which are punishable
with imprisonment for two years or under are summons-case, while those which are punishable
with imprisonment exceeding two years are warrant-cases.

(4)Serious offences are thus tried under the procedure laid down for warrant-cases and light or
minor offences under the procedure prescribed for summons-cases.

(5)In a summons-case a summons is ordinarily issued on a complainant, but in a warrant-case a

warrant is not ordinarily issued on a complaint.

(6)In a summons-case when the accused appears before the Magistrate, 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
be convicted. If he admits the guilt or fails to show any sufficient cause, he may be convicted
straight away. (Section 251). But No such power of summary conviction exists in warrant-cases.
In such cases the Magistrate begins to hear the case of the prosecution by 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.
(Section 246)

(7)In a summons-case the Magistrate first inquires from the accused whether he pleads guilty to
the charge and if he does not admit, his guilt prosecution evidence is recorded. (SS. 251 and
252). In a warrant-case evidence for the prosecution is taken first and then a charge is framed and
the accused is asked whether he pleads guilty or not. (Ss. 238 and 246).
 15

(8)In a summons-case the accused has to cross-examine each of the prosecution witnesses
immediately after their examination-in-chief. (Section 254). In a warrant case the accused has a
right to reserve his cross-examination until the charge is framed. (Sections 243 and 246)

(9)In a summons-case the complainant may withdraw his complaint with the permission of the
court and on such withdrawal the accused is acquitted. (Section 257). But In warrant case no
such withdrawal is permitted, except when the offence is a compoundable one.

(10)In a summons case if the complainant is absent on the date of hearing the accused shall be
acquitted. Unless for some reason he thinks it proper to adjourn the hearing of the case to some
other day. (Section 256). But on non-appearance of the complainant in a warrant case, the
Magistrate, in his discretion at any time before the charge has been framed, discharge the
accused if the offence is compoundable or non-cognizable. But if it is otherwise he shall proceed
with the trial and dispose of the case on merits (Section 249).

(11)In a summons case the accused may be convicted from the facts admitted or proved
whatever may be the nature of the complaint or summons. (Section 225). But in a warrant case
the procedure is otherwise. A charge must be framed, read and explained to the accused and he
shall then be asked to enter upon his defense and produce his evidence. (Sections 246 and 247)
(12)The trial of a warrant case as a summons case is a serious irregularity which would vitiate
the trial if the accused has been prejudiced. But the trial of a summons case as a warrant-case is
only an irregularity which is curable under Section 465 of the Code.

(13) Where a warrant case has been tried as a summons case and it has resulted into acquittal of
the accused, such acquittal shall operate only as a discharge under Section 245 of the Code. On
the other hand where a summons case has been tried as a warrant case and the accused is
discharged under Section 245, the discharge will amount to an acquittal under Section 255 of the
Code.

(14) When the accused appears or is brought before a Magistrate in a warrant case, the
Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced
in support of the prosecution. But in a summon case, the particulars of offence are stated to the
accused and he shall be asked whether he pleads guilty or wishes to defend himself

(15) Framing of a formal charge is necessary in a warrant case but it is not necessary in a
summons case.

(16) When the charges reveal both, a warrant case and a summons case, the former is to be
preferred.

(17) A charge under warrant case cannot be split up into its constituents for trial as under a
summons case.
 16

(18) In a warrant case, the accused gets more than one opportunity to cross- examine the
prosecution witnesses whereas in a summons case he gets only one opportunity to cross-examine
the prosecution witnesses.

(19) A warrant case may result into discharge of the accused under Section 249 in the absence of
the complainant but in a summons case, the result would be acquittal of the accused under
Section 256 of the Code.

(20) In a warrant case a complaint cannot be withdrawn by the complainant but in a summons
case the complainant may withdraw the complaint with the permission of the Magistrate.

(21) The Magistrate is empowered to convert a summons case into a warrant case under Chapter
XX of the Code but a warrant case cannot be converted into a summons case.

(22) In a warrant case, after convicting the accused, the Magistrate may take evidence regarding
the alleged previous conviction, which is not admitted by the accused, and shall record his
finding thereon. But no such power is conferred on the Magistrate while trying the accused in a
summons case.

(23) In a summons case, after the issue of summons, the accused may plead guilty by post
without appearing before the Magistrate. But no such provision exists in trial of a warrant case.
 17

Conclusion

The recent Amit Sibal’s Case was in conformity with the statuary scheme but that was in from of
order of the Supreme Court, hence there is a requirement of a authoritative judicial decision to
clear the air. The fact that sessions case and warrant cases are of more serious nature then the
warrant cases, in the former the remedy of discharge is available whereas in later no such remedy
is available and the sole reliance cannot be on the reason that they be disposed in more speedy
manner than the former one, one cannot ignore the intensity and gravity of the offence.

A decision which reads into Section 251 itself 'the power of discharge' may be required. One way
in which the same can be done is by holding that the power to frame notice in a case, has implicit
within itself the power not to frame a notice when no case is made out against the accused.

Amendment of the law is, of course, the more appropriate way of bringing about a change,
wherein the desirable results may be achieved without having to stretch the language of the
section unnecessarily.
 18

References

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/2010/apr10/chapter2.pdf
www.jstor.org
www.epw.in

www.ncm.nic.in/constitutional_provisions.html
http://www.ncpedp.org/eductn/ed-resrch.htmm.
http://socialjustice.nic.in

http://www.publichealthlaw.net

Books
The Constitutional Law of India: - By- Dr. J.N Pandey.
Criminal Procedure - Kelkar
Indian Constitutional Law: - By- Prof.MP Jain.