Can An Accused Be Discharged In 138 NI Act Case ?

Recently the Delhi High Court in the case titled, "Court on its own Motion vs. State"[1], was referred with the reference petition qua the following questions among others under section 395 of the Code of Criminal Procedure, 1973 (the 'Code'). Q.1 Does the Court of a Magistrate have the power to discharge the accused upon his appearance in Court in a summons triable case based upon a complaint in general, and in a case under Section 138 NI Act in particular, once cognizance has been taken and process issued under Section 204 Cr.P.C.? Q.2 If the answer to Question 1 is in the affirmative, under which Section of Cr.P.C. does such a power lie? Q.3 Further, if the answer to Question 1 is in the affirmative, at what stage can such an application for discharge be entertained i.e. before the framing of notice of accusation under Section 251 Cr.P.C., or before/at the time of framing of notice of accusation under Section 251 Cr.P.C. or before/at the time/even after the framing of notice of accusation under Section 251 Cr.P.C.? It is apposite to mention that the case is still pending adjudication, thus the aforesaid questions are yet to be decided. This is not the first time when the issue of discharge of an accused in summons cases arose. In fact, the jurisprudence on this subject is quite rich. However, the lack of uniformity in dealing with the aforesaid question is something which might have asked the High Court of Delhi to reconsider the aforesaid issue. Fundamental provisions of law Under the Code, the cases are largely divided under two main heads i.e. 'warrant cases'[2] and 'summons cases'[3]. Warrant cases are those where the punishment is death, imprisonment for life or imprisonment for a term exceeding two years, whereas the cases which are not warrant cases are the summons cases. Negotiable Instruments Act, 1881, inter alia, deals with the issue of dishonored cheques vide Chapter XVII, containing sections 138 to 147. The punishment for these cases could be imprisonment for upto 2 (two) years or fine or both[4], therefore the said cases fall under the category of summons cases. Provision of discharge in the Code The Code has clearly given powers to the Sessions Court to discharge the accused in warrant cases vide section 227; and the Code also empowers the Magistrate vide section 239 to discharge the accused in warrant cases subject to the merits of the case. However, the Code is bereft of any provision/ section which can lead to discharge of an accused in summons cases. However, the proceedings under summons cases being initiated otherwise than upon the complaint can be stopped in certain cases[5]. Thus, the literal interpretation of the Code shows that the accused can't be discharged in summons cases. Related case laws The scope of discharge of an accused in summons cases have been dealt with and discussed by the various courts on more than one occasion. At times, the judiciary chose to follow the strict literal interpretation rule and held that the Code doesn't have any provision which can allow the Magistrate to discharge the accused person in summons cases, but on other occasions, the courts adopted the liberal way and enlarged the scope of the Code and tried to provide relief to the accused persons. Some of the important case laws are hereby highlighted presenting the different stands taken up the courts on a very precise issue of law. TheSupreme Court of India:- In K.M. Mathew vs. State of Kerala & Ors[6], the Supreme Court observed that the Magistrate has the judicial discretion to rescind the process issued against the accused and no specific provision qua the same is required. In other words, the Court clarified that the accused can be discharged in summons cases subject to the facts and merits of the case. However, in "Adalat Prasad vs. Roopal Jindal & Ors."[7], the Supreme Court overruled the KM Mathew case and held that "the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law." Thus, the Supreme Court clarified that the accused has limited rights under the summons cases and he can't seek discharge as the same is not provided under the Code. In "Subramanium Sethuraman vs. State of Maharashtra and Ors"[8], the Supreme Court while placing reliance over Adalat Prasad case held that the accused person doesn't have any right to get discharged once the process is issued against him under section 204 of the Code. The only remedy which the accused enjoys is to challenge the order of issuance of process by filing the petition under section 482 and not by way of an application seeking the discharge which is clearly not given under the Code. The bare perusal of the aforesaid cases demonstrates that the Supreme Court has...

Can An Accused Be Discharged In 138 NI Act Case ?

Lalit Ajmani

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