Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XXIV

Ans. The procedure for summary trial is the same procedure to be resorted to for Summons trial with the following changes :-

a) Magistrate can resort to summary procedures for Trial in respect of the 9 categories of offences enumerated under Section 260 (1) Cr.P.C.

b) A Special Summons in Form 30 of the Second Schedule to Cr.P.C. giving the option to the accused to plead guilty in absentia and to transmit his plea and fine through post or through messenger only in the case of “petty offences” as defined under Section 206 (2) Cr.P.C. (i.e. punishable with only fine and that too, not exceeding Rs. 1000/-)

c) The procedure for trial of “petty offences” under Section 206 (1) Cr.P.C. can be resorted to by a Magistrate (if specifically empowered by notification issued under Section 206 (3) Cr.P.C. by the State Government) in respect of the following offences:-

I. Offences which are compoundable under Section 320 Cr.P.C, or

II. Offences punishable with imprisonment not exceeding 3 months with or without fine where the Magistrate is of opinion that imposition of fine only would meet the ends of justice.

In the State of Kerala no Magistrate has been specifically empowered under Section 206 (3) Cr.P.C. in relation to the offences specified therein.

d) The offence of rash and negligent driving under Section 279 IPC (punishable with imprisonment upto 6 months or fine or both) cannot be tried as a petty offence. (vide Ramesan v. State of Kerala – 2010 (3) KLT 348 – V. Ramkumar - J)

e) The unwholesome practice of the Police issuing summons to the accused for his appearance before the Magistrate, was directed to be discontinued forthwith. (vide Ramesan v. State of Kerala – 2010 (3) KLT 348 – V. Ramkumar - J)

Q.117 Summons trial procedure is to be resorted to in what type of cases ?

Ans. Summons trial procedure is insisted by the Cr.P.C. for trial of offences punishable with imprisonment for 2 years or below.

Q.118 What is the procedure to be followed in a summons trial case ?

Ans. Depending on the nature of the case –

i) Substance of accusation/Particulars of the offence, to be read over and explained to the accused and his plea to be taken, if it is a summons trial or a summary trial. Since no charge is framed, there cannot be any discharge.

OR

ii) If it is a Warrant trial or Sessions trial, charge is to be framed against the accused and his plea is to be taken or the accused is to be discharged.

The leading case on the framing of charge and the irregularities attending the same is Willie (William) Slaney v. State of M.P. AIR 1956 SC 116 = 1956 Cri.L.J. 291 – 5 Judges - S. R. Das – Ag. C J, Vivian Bose, B. Jagannadhadhas, N. Chandrasekhara Aiyar, Syed Jafar Imam – JJ.

Q.119 When does trial start in “summary” and “summons” cases ?

Ans. In summary trial, the procedure is same as that of summons trial in view of Section 262 read with Section 251 Cr.P.C. Section 251 Cr.P.C shows how the trial starts in a summons case.

Courts have taken the view that the trial in a summons case starts when the accused, in response to the process issued against him, either appears or is produced before the Magistrate and the substance of accusation is stated to him by the Magistrate under Section 251 Cr.P.C. and the plea of the accused is recorded under Section 252 Cr.P.C. Thereafter, the procedure contemplated by Chapter XX of Cr.P.C. has to be followed and the trial is to be taken to its logical conclusion. (Vide Santhamma Radhamani Amma v. Kunju Pillai 1980 KLT 393 = 1981 Cri.L.J. 247 (Kerala) – S. K. Kader - J; Para 16 of Subramanium Sethuraman v. State of Maharashtra (2004) 13 SCC 324 = AIR 2004 SC 4711 – 3 Judges – N. Santhosh Hegde, S. B. Sinha, Tarun Chatterjee - JJ ; Para 9 of S.V. Enterprises v. Rajashekaran Nair 2006 (3) KLT 930 - M. Sasidharan Nambiar - J).

NOTE BY VRK: Here, I would hasten to add that the trial in the real sense of the term, cannot start merely on the stating of the substance of accusation to the accused under Section 251 Cr.P.C. This is because, the accused may even voluntarily plead guilty under Section 252 Cr.P.C., in which case there will be no trial. The trial will start only when the accused is not convicted under Section 252 Cr.P.C. either on his pleading guilty or on his not pleading guilty and the Magistrate proceeds to take all such evidence as may be produced by the prosecution under Section 254 Cr.P.C.

Q.120 Immediately after his appearance in a summons trial case, the accused filed an application requesting the Magistrate to drop the proceedings since ingredients of the alleged offence were absent in the substance of accusation proposed to be stated to him. Even though the Magistrate was convinced that the ingredients of the offence were absent, he dismissed the application filed by the accused by relying on the dictum in Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4674. Will the accused be able to successfully challenge the order passed by the Magistrate ?

Ans. Yes. What was laid down in Adalat Prasad (Supra – AIR 2004 SC 4674 – 3 Judges – N. Santhosh Hegde, S. B. Sinha, A. K. Mathur – JJ), is that once process is issued to the accused under Section 204 Cr.P.C., the Magistrate cannot recall the process after the appearance of accused, since there is no enabling provision for that in the Cr.P.C. Overruling K.M.Mathew v. State of Kerala AIR 1992 SC 2206 – Jagannatha Shetty, Yogeshwar Dayal - JJ, Adalat Prasad also held that the Magistrate has no power of review or inherent power to go back to the pre-process stage. But, the principle that is applicable in the case on hand is a different principle. In paragraph 16 of another 3 Judge Bench of the Supreme Court in Subramanium Sethuraman v. State of Maharashtra (2004) 13 SCC 324 = AIR 2004 SC 4711 – 3 Judges – N. Santhosh Hegde, S. B. Sinha, Tarun Chatterjee - JJ, approving the decision of the Bombay High Court, the Supreme Court has held that once the plea of the accused is recorded under Section 252 Cr.P.C. then the procedure contemplated under Chapter XX Cr.P.C. has to be followed and the trial has to be taken to its logical conclusion. Here in the present case since the substance of accusation had not been read over to the accused, he is within his right to request the Court to drop the proceedings. The prohibition in Adalat Prasad and Subbramanium Sethuraman will be attracted only if the trial has started. (Vide Anandavel v. Food Inspector 2010 (3) KLT 49 = ILR 2010 (3) Ker. 145 – V. Ramkumar – J and Dr. Kamala Rajaram v. Dy.S.P., Office of S.P. (Rural) Neyyattinkara 2005 (3) KLT 617 = 2006 Cri.L.J. 1447) – R. Basant - J.

Part 23: Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XXIII