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by V. Balasubramanian*

Cite as : (2006) 2 SCC (Cri) J-1

Section 2 CrPC defines summons case and warrant case. Warrant case means a case punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Summons case has been defined in a negative manner i.e. not being a warrant case. This would mean that wherever the extent of punishment is less than two years, the same would be treated as summons case. Trial of warrant cases by the Magistrate Courts are governed by Chapter XIX CrPC while the trial of summons cases are governed by Chapter XX CrPC.

At times, it may be necessary to discontinue the groundless prosecution midway and discharge the accused to avoid the unwarranted trial process, which will ultimately, in any case, result only in acquittal. It is known as "discharge proceedings" covered by Section 239 CrPC and S. 245(2) applicable to warrant cases. Similar situation may arise in summons cases as well, but unfortunately there is no provision similar to Section 239 to cover this. However, the summons issued used to be recalled by the same court on a petition made by the accused and the power for such recall of summons was traced to the case in K.M. Mathew v. State of Kerala1 The above practice was holding the field for more than a decade and this was very useful in terminating the groundless prosecution without approaching the higher judiciary viz. the High Court. This practice of recalling the summons is no more available to the accused due to the recent decisions of the Supreme Court, which are dealt with hereunder.

In the case of Adalat Prasad v. Rooplal Jindal2 the Hon'ble Supreme Court considered the permissibility of recalling the summons under Section 203 CrPC and held that the same cannot be done inasmuch as the summons are issued only after satisfying the existence of sufficient ground and hence the Magistrate has crossed the stage under Section 203. In view of this, the accused cannot seek review of the order of issuing process and recalling the same under Section 204 CrPC since the subordinate criminal courts are neither vested with the power to review the orders already passed nor have any inherent powers. The Supreme Court has further held that the accused can move the jurisdiction of the High Court for invoking the powers available under Section 482 of the Code. The earlier view rendered in the case of K.M. Mathew1 was overruled and the question whether the order issuing the process amounts to interim order or not has been left open.

The ratio laid down by the Supreme Court in Adalat Prasad case2 appears to be too technical, ignoring the ground realities. Let us take a summons case under Section 138 of the Negotiable Instruments Act, where there is only one accused who has never received mandatory notice or who never had an account in the said bank. Or suppose he has not signed the alleged cheque and there was no transaction between the parties. In such a situation, the court from which the order of process was issued misstating the facts, cannot afford any remedy to the accused who may have two options:

(a) endure the harassment till the completion of the trial;


(b) file a quash petition under Section 482 of the Code.

On the other hand, prior to Adalat Prasad case2, the affected person, who has been wrongly arraigned as an accused, could have approached the very same court and remedied the situation. This was an easier option for both the parties and the trial court had all the relevant records to adjudicate such a petition, if presented at the earliest opportunity without burdening the higher judiciary and further wasting the time of the trial court in conducting the trial.

The order of the Supreme Court in Adalat Prasad2 needs review in view of the fact that the nature of the trial procedure involved in the offences complained therein was a warrant procedure and not summons procedure contemplated under Chapter XX. Under Section 239 CrPC, "discharge petition" can be filed after receipt of summons by the accused and hence the Supreme Court has overlooked this fact while deciding the issue, by applying the procedure applicable for summons trial. But the case on hand was a warrant case.

There is another aspect to this question. Section 362 CrPC prohibits only two types of cases from the scope of review or alteration by the trial court viz.

(a) where the judgment was signed; and

(b) where the final order was passed disposing the case.

The issue of process to the accused cannot be equated with the judgment or final order disposing of the case. It is more in the nature of a show-cause notice of the accused when the case is in its initial stage. Hence it appears that there is nothing wrong in recalling the summons, which does not offend Section 362 of the Code. However, this vital aspect has been left open in para 17 of Adalat Prasad case2.

The Supreme Court had another occasion to consider the ratio laid down in Adalat Prasad2 in Subramanium Sethuraman v. State of Maharashtra3 In this judgment, the attention of the Court was drawn to the fact that its decision in Adalat Prasad case2 was on warrant procedure. The Court had also considered the prohibition contained in Section 362 of the Code in Adalat Prasad case2. As already pointed out, in para 17 of Adalat Prasad case2 the Supreme Court has left the issue open and did not dwell upon it as to whether the order issuing process would be a judgment or a final order, terminating the case on hand. However, it is encouraging that it held in Subramanium Sethuraman case3 that the recall of the summons is permissible before recording the plea of the accused under Section 252 of the Code. This would mean that before the accused records his plea on the initial questioning under Section 251 of the Code, the power to recall summons can be exercised.

In order to remove the difficulties and stop the harassment of innocent persons who have been arraigned as accused in groundless prosecutions, the Court has to conduct the proceedings as a mute spectator, even though the accused bring to the notice of the Court that the complaints are liable for dismissal at threshold. Alternatively, the accused should approach the jurisdiction of the High Court under Section 482 of the Code, which is not an easy option when compared to the erstwhile practice of recalling the summons at the trial court.

Therefore, it is just and necessary that the legislature should bring in a suitable provision in Chapter XX of the Code (trial of summons cases), parallel to Section 239 and S. 245(2) applicable to warrant cases, to avoid the hardship and harassment of innocent persons, who are arraigned as accused.


* Advocate, Chennai Return to Text

  1. (1992) 1 SCC 217 : 1992 SCC (Cri) 88 Return to Text
  2. (2004) 7 SCC 338 : 2004 SCC (Cri) 1927 Return to Text
  3. 2005 SCC (Cri) 242, see also discussions on this decision by the Supreme Court in Poonam Chand Jain v. Fazru, 2005 SCC (Cri) 190. Return to Text
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