The present article discusses the law regarding discharge (on merits) in summons cases based on complaints (predominantly affecting, inter alia, Defamation and NI Act), once accused has been summoned and how conflicting decisions have caused this issue to crop up repeatedly.
In summons trial, there is no specific power to discharge the accused post summons, except as provided in section 258, Cr.P.C., which however does not apply in complaint cases. In warrant and session trials, the power is expressly provided in the form of Section 227/239/245 Cr.P.C.
The issue first arose as back in K.M. Mathew v State of Kerala (AIR 1992 SC2 206), the Supreme Court answered in the affirmative and stated that no specific power is required for discharge and the magistrate has the power to drop the proceedings and discharge the accused.
This view was considered in Subramanium Sethuraman v. State of Maharashtra (2004) 13 SCC 324 and overruling K.M. Mathew, a three judge bench of the Hon'ble Supreme Court, held:
"The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion"
This position of law has been discussed and followed in a number of judgments by the Hon'ble High Court of Delhi, to name a few: R.K. Aggarwal & Ors. v. Madan Lal Nassa, 2016 VI AD (Delhi) 220, Asia Metal Corporation v. State 130 (2006) DLT 545, Joginder Kumar v. Shamsher Singh Malik, Crl. Rev. P. 437/2000 decided on 29.11.2006, R.P. Gupta v. The State NCT of Delhi, 2007(97)DRJ100, R.P.G. Transmission Ltd v. Sakura Seimitsu (I) Ltd 119 (2005) DLT 393.
The Creation of Uncertainty:
The confusion seems to have first arisen beginning in Krishna Kumar Variar v. Share Shoppe, (2010) 12 SCC 485, a two judge bench of the Hon'ble Supreme court of India, in a case u/s 415/420 IPC, when a summoning order was challenged in the Delhi High Court on ground of territorial jurisdiction, against which the Supreme Court was approached. It was held:
"Hence, instead of rushing to the higher Court against the summoning order, the concerned person should approach the Trial court with a suitable application for this purpose and the Trial court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with the case."
However, the Hon'ble court does not refer to the issue decided in Subramaniam Sethuraman or whether the magistrate has the power to discharge the accused or drop the proceedings against the accused. The judgment in Krishna Kumar Variar can certainly not be interpreted to clothe the Trial court with such powers.
In Bhushan Kumar v. State (NCT of Delhi), AIR 2012 SC 1747, a two judge bench of the Supreme court, in a police case (FIR u/s 420 IPC), has taken a view contrary to Subramanium Sethuraman (while not expressly noting the judgment of Subramanium Sethuraman), granting the power, and held:
"17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued Under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code."
This view appears to be contrary to the dictum laid down by the three judge benches of the Supreme court of India, particularly that in Subramanium Sethuraman which specifically noted that power under Section 239 CrPC is not available in summons case.
This view that the accused can be discharged, in contradistinction to the view that the accused cannot be discharged as highlighted above, finds mention in a number of judgments of the Delhi High Court, to name a few: Gajender Nagpal v. Mahesh Kumar, (CRL. M. C. 993/2015, dated 13.3.2015), S.K. Bhalla v. State, 180 (2011) DLT 219, Raujeev Taneja v. NCT of Delhi (Crl. M.C. 4733/2013, decide on 11.11.2013), Urrshila Kerkar v. Make My Trip (Crl. M.C. 2598/2012, decided on 18.11.2013), R. Narayanan v. State (Govt. of NCT of Delhi), 2019 (1) JCC 628.
While there are many conflicting decisions on the issue, the three-judge bench the judgment of the Supreme Court in Subramanium Sethuraman v. State of Maharashtra should be followed, as the dictum in Bhushan Kumar can certainly not prevail over the view taken in Subramanium Sethuraman, the latter being three judge bench of the Hon'ble Supreme Court and the former being a two judge bench. The Supreme Court in Central Board Of Dawoodi Bohra v. State Of Maharashtra (2005) 2 SCC 673, a Constitution Bench judgment may be cited: "The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength."
The remedy under section 482 CrP.C. with the High court would still be available as noted in Subramanium Sethuraman v. State of Maharashtra, only the power of trial court to discharge the accused and consequently a revision petition against the same would be barred.
The Author is a Lawyer practicing at the Delhi High Court. Views are personal.