This article deals with the concept of discharge in summon cases. The trial of summons case is dealt under Chapter XX of the Criminal Procedure Code, 1973 (hereinafter “CrPC”). There is no special section which exclusively provides for discharge of an accused in summons triable cases. Although in warrant cases discharge word is used but under Chapter XX no such word is used. Now the question which arises is that whether the concept of discharge is absent in summons triable cases? Is it mandatory for a court to proceed with the trail irrespective of any genuine defence the accused has to make while explaining to him the substance of accusation under Section 251 CrPC? Is it proper to provide an accused with the privilege of discharge in warrant triable cases and to deny the same in summons triable cases? This article examines the provision of discharge in summon triable cases. Is “discharge” included under Section 251 CrPC? To understand this, it is important to first consider the meaning of discharge.
Meaning of Discharge under Criminal Procedure Code
The word “discharge” has been used under various sections of CrPC. The word “discharge” is used under Sections 398, 227, 239, 245 and 249 CrPC. In simple terms it can be said that discharge means refusing to proceed further after issue of process. However, none of these sections deal with summons case. Here it is made clear that summons case means cases in which the punishment is of maximum two years. Summons case can be tried either by instituting a complainant case by any private person and secondly, by registration of a FIR by the police in which State becomes a party.
In complaint cases after the process under Sections 200 and 202 is completed then either the Magistrate issues process under Section 204 CrPC or dismisses the case under Section 203 CrPC. In police case too the court issues process when cognizance is completed. When a notice or summon is given to an accused then in such cases a time is fixed by the court for explanation of substance of accusation under Section 251 CrPC. To understand this section, Section 251 is produced verbatim:
- Substance of accusation to be stated.—When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.
So, once a notice or a summon is issued to an accused person he or she shall be asked as to whether he or she pleads guilty or not. In case if the accused does not plead guilty, then the Magistrate is required to jot down the defence which the accused makes. Now the question which arises is that whether noting down the defence and listening to the defences of an accused is a mere formality. If the court anyhow has to proceed to explain the substance of accusation then what is the purpose of giving an accused the chance to speak out his defence. If the mind of a Judge is already prejudiced and even after considering the defences of the accused, he or she goes on to explain the substance of accusation then I think there is no need to note down the defences made by an accused under Section 251 CrPC.
This can be better understood in the light of Malloch v. Aberdeen Corpn., wherein Lord Reid held that right to be heard is available to a dismissed teacher who was not registered as required by the education authority. In defence it was submitted before him that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. However the Court held that “If that could be clearly demonstrated it might be a good answer. But I need not decide that because there was here … a substantial possibility that a sufficient number of the commission might have been persuaded not to vote for the appellant’s dismissal.”
In this light one must understand that the law of nature is based on the “ultimate principle of fitness with regard to the nature of man as a rational and social being. The principle of audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of Judges of the highest authority. It means that no one can be condemned unheard. Right to hear is included under Article 19 of the Indian Constitution. Interpreting Section 251 CrPC as not to include discharge is not a good law. Sometimes certain words are not specifically written in the statute book but the court has time and again said that literal interpretation of the statute which is against the constitutional principles and which will lead to injustice has to be avoided. The intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.
Doctrine of Interpretation of Statute
To analyse and understand Section 251 CrPC in a better way what is required is to look into the rules of interpretation of the statute. “The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the Judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.”
In Sakiri Vasu v. State of U.P. the Supreme Court held on 7-12-2007 at para 18:
- It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
Considering the abovementioned case one can say that if a Magistrate has an implied power to explain the substance of accusation under Section 251 CrPC then it includes within it the implied power of discharge as without considering the option of discharge the very purpose of noting down the defence of accused becomes meaningless. In the same judgment it was further held at para 19 by referring to Crawford that the reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.
In Kesavananda Bharati Sripadagalvaru v. State of Kerala Ray, J. pointed out that a word gets its “colour” in the context in which it is used. So, the purpose in which the accused is allowed to make defences under Section 251 CrPC is to empower the Judges to consider such defences and discharge the accused if prima facie case is not made out after considering those defences.
At para 20 of Sakiri Vasu  the Supreme Court held that in ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein. So, merely non-mentioning of the word “discharge” under Section 251 CrPC will not mean that in a summons case the accused cannot make any discharge.
In the words of Justice Cardozo:
“It is true that codes and statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled…. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had nonetheless a real and ascertainable pre-existence in the legislator’s mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a Judge’s troubles in ascribing meaning to a statute….”
These words of Justice Cardozo finds its meaning in Arvind Kejriwal v. Amit Sibal. It was held that the provisions contained in CrPCare not exhaustive. In administering justice as prescribed by CrPC, there are necessarily two shortcomings: First, there are cases and circumstances, which are not covered by the “express provisions of the Code”, wherein justice has to be done. The reason is that the legislature can foresee only the most natural and ordinary events; and no rules can regulate for all time to come, so as to make express provision against all inconveniences, which are infinite in number, and so that their dispositions shall express all the cases that may possibly happen. Second, the prescribed rules of procedure may be abused, or so used as to give a mere formality, the significance of substantive effect and thus obstruct, instead of facilitating, the administration of justice as in the present case.
The very purpose of explanation of substance of accusation and listening to the defences made by an accused under Section 251 CrPC is to give an opportunity to the accused to say something in his defence. So, the power to discharge at the stage of Section 251 is inherent in the court who has issued summons to the accused either by considering police report or under Section 204 CrPC. In this regard in Badshah v. Urmila Badshah Godse the Supreme Court has laid down:
“13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble to the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.”
Further the Court stated:
“14. … It is, therefore, respectfully submitted that ‘social context judging’ is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication. “
At para 18 it was stated that:
“18. The court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonise results with justice through a method of free decision — libre recherche scientifique i.e. “free scientific research”.”
So, after considering the social context adjudication and doctrine of implied power both provides that an accused can be discharged at the stage of Section 251 CrPC. Let us consider few cases related to these doctrines.
Cases Related to Doctrine of Implied Power
The Supreme Court held that “An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO v. M.K. Mohammad Kunhi, this Court held that the Income Tax Appellate Tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.” Cases where doctrine of implied power was used to infer the implied power where the statutes does not mention about the same,– Union of India v. Paras Laminates (P) Ltd., RBI v. Peerless General Finance and Investment Co. Ltd., Gujarat Maritime Board v. Haji Daud Haji Harun Abu, J.K. Synthetics Ltd. v. CCE, , State of Karnataka v. Vishwabharathi House Building Coop Society, etc.
The General Clauses Act, 1897 provides for the construction of orders, rules, etc. made under enactments. Section 20 of the Act says:
- 20. Construction of notifications, etc. issued under enactments.—Where, by any Central Act or regulation, a power to issue any notification, order, scheme, rule form or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power.
Doctrines of implied power has been used to interpret Section 125 CrPC. In Savitri v. Govind Singh Rawat the Supreme Court held that the power conferred on the Magistrate under Section 125 CrPC to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period. The same principle has been used to interpret Section 156(3) CrPC. The Court in Sakiri Vasu held that:
“24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision.”
Cases Related to Discharge in Summons Triable Offences
In Municipal Council, Raipur v. State of M.P. the Supreme Court upheld the discharge of an accused in summons case. To understand the case better let us have a look to the facts of the case. A complaint was filed by the officer concerned before the Special Magistrate and Presiding Officer, Labour Court under Section 3(1) of the Motor Transport Workers Act, 1961, who issued summons to the accused, namely, the Municipal Council and the Chief Municipal Officer, Municipal Council, Raipur. The accused appeared by counsel and filed preliminary objections. Before the Magistrate two points were taken: (1) that the Municipal Council was not a “motor transport undertaking” within Section 2(g) of the Act; and (2) that the Council was exempted under Section 38 of the Act insofar as it uses the vehicles for transporting sick or injured persons and for maintenance of public order i.e. for transporting night soil and refuse of the town free of charges. The Magistrate accepted these contentions and dismissed the complaint and discharged the accused persons. This order of discharge was upheld by the Sessions Court and was again challenged in High Court where the High Court too upheld the discharge by the Magistrate in the summons case. Again before the Supreme Court out of the three objections taken, one was that whether a revision lies under Section 439 CrPC. The contention was that the accused had been acquitted and not discharged and, therefore, only an appeal under Section 417 CrPC lies. The Supreme Court held:
“4….we agree with the High Court that the order of the Magistrate was an order of discharge and not of acquittal. It is true that it is a summons case and no formal charge is necessary to be framed under Section 242 CrPC, but even so, here when the accused appeared, before anything was done the accused filed a preliminary objection and no particulars of the offence of which the accused was charged were even stated to him”..
In K.M. Mathew v. State of Keralar the Supreme Court set aside the order of High Court stating that it is too technical. However, in Adalat Prasad v. Rooplal Jindal the three-Judge Bench of the Supreme Court overruled the ruling of K.M. Mathew. Before coming to Adalat Prasad case it is important to look into the fact of the case of K.M. Mathew. The Magistrate issued summons to the accused under Section 500 read with Section 34 IPC. On the date of appearance the accused pleaded not guilty. The appellant requested the Magistrate to drop the proceedings against him, before the evidence was recorded, contending that there was no averment in the complaint that he had perused the material or edited before its publication or that it was published with his knowledge or consent. The Magistrate considering this defence by the accused dropped the proceedings against the accused.
But the High Court quashed the proceeding ruling that there is no provision in the Code for dropping the proceedings against any accused and so it was challenged by the accused in the Supreme Court. Allowing the appeal, the Supreme Court held in favour of the accused. It was made clear that the power to drop proceedings against the accused cannot be denied to the Magistrate. Explaining further the Court held that Section 204 CrPC indicates that the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused.
Further while discussing the right of the accused the Court held that:
“7. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. 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 required for the Magistrate to drop the 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.”
Although the word “discharge” was wholly absent in K.M. Mathew case and it was held that proceedings can be dropped by the Magistrate without any specific provisions. This ratio was overruled by Adalat Prasad stating that there was no basis for recalling the process issued by a court, which happens after due consideration even if it was an interim order, and the only basis for challenging this order was by moving the High Court under Section 482 CrPC however, it can be said that since the concept of discharge was not the basis of these cases so to conclude that under Section 251 CrPC an accused cannot be discharged is not a proper law. Adalat Prasad case is not an authority to discharge the accused under Section 251 CrPC.
In Raujeev Taneja v. NCT of Delhi, a summoning order under Section 138 of the Negotiable Instruments Act was challenged before the Court. Sunil Gaur, J. relying upon Bhushan Kumar v. State (NCT of Delhi) and Krishna Kumar Variar v. Share Shoppe directed the accused to urge the plea before the learned trial court at the stage of framing of notice whereupon the trial court shall deal with the pleas raised herein by passing a speaking order and if the trial court proceeds to drop the proceedings qua petitioners, then the Supreme Court’s decision in Adalat Prasad v. Rooplal Jindal would not stand in the way of the trial court to do so. The relevant portion of the said judgment in Krishna Kumar Variar is reproduced hereunder:
“4. In our opinion, in such cases where the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned 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.
- 5. For the reasons stated herein above, the impugned judgment and order is set aside and the appeal is allowed. The appellant, if so advised, may approach the trial court with a suitable application in this connection and, if such an application is filed, the trial court shall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question of jurisdiction before further proceeding with the trial.”
- The larger question whether Section 251would justify discontinuance of the proceedings in all summons cases whether instituted on a police report or otherwise need not be considered in this case. Suffice it to say that in a summons case instituted otherwise than upon a complaint, Section 251read with Section 258 CrPC does clothe the learned Magistrate with the requisite power to discontinue further proceedings and release the accused at the stage of Section 251 CrPC or later if the learned Magistrate feels that the allegations and the materials placed before him do not justify continuance of the proceedings against the indictede. Directing continuance of proceedings when allegations and materials collected do not justify such continuance will be the worst form of injustice.
In S.K. Bhalla v. State the Delhi High Court makes it clear that the facts of this case are distinct from the facts of Adalat Prasad case. Explaining further it said that in Adalat Prasad case the learned Metropolitan Magistrate had recalled the summoning order by allowing the application under Section 203 CrPC after the issue of process under Section 204 CrPC. However, in the instant case, Respondents 2 to 4 have been discharged by the learned trial court at the stage of serving of notice under Section 251 CrPC. At this subsequent stage, the learned Metropolitan Magistrate was of the view that the charge-sheet/complaint did not disclose necessary ingredients of the offence under Section 509 IPC, as such, he discharged Respondents 2 to 4 for the commission of abetment of offence under Section 509 IPC.
At para 15 of S.K. Bhalla case the Court further explained the implications of Section 251 CrPC. Section 251 CrPC deals with the stage subsequent to issue of process under Section 204 CrPC in a summons trial case. This section casts a duty upon the Magistrate to state to the accused person the particulars of the offence allegedly committed by him and ask him whether he pleads guilty. This can be done by the Magistrate only if the charge-sheet/complaint/preliminary evidence recorded during enquiry discloses commission of a punishable offence. If the charge-sheet/complaint does not make out a triable offence, how can a Magistrate state the particulars of non-existing offence for which the accused is to be tried. Therefore, it is inherent in Section 251 of the Code of Criminal Procedure that when an accused appears before the trial court pursuant to summons issued under Section 204 CrPC in a summons trial case, it is bounden duty of the trial court to carefully go through the allegations made in the charge-sheet/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.
Same justification was given in a case by the Patna High Court. The petitioners had prayed for quashing the order dated 12-12-2011 passed by the Judicial Magistrate, 1st Class, Danapur in Complaint Case No. 1235 C of 2008 by which and whereunder he had rejected the petition dated 12-8-2011 filed on behalf of the petitioners on the ground that in summon triable cases there is no provision for discharge of the accused from the proceeding. By an oral order, Hemant Kumar Srivastava, J. held that upon bare perusal of the impugned order dated 12-12-2011, it is obvious that the learned Judicial Magistrate did not consider the points raised on behalf of the petitioners at the time of explanation of accusation rather he dismissed the petition filed on behalf of the petitioners only on the ground of maintainability completely ignoring the observation given by the Court in Cr. Misc. No. 29286 of 2009. It is here clarified that in Misc. No. 29286 of 2009 the High Court had directed the JM-I to consider the defence of the accused during the time of explanation of substance of accusation and it had disposed of the petition under Section 482 CrPC filed before it. The High Court in many cases has asked the accused who have filed quashing of summoning order under Section 482 CrPC to argue their cases at the stage of framing notice.
Finally in Arvind Kejriwal v. Amit Sibal the Court dealt with Section251 CrPC. It was held:
“10. It cannot be said that, in the above circumstances, courts have no power to do justice or redress a wrong merely because no express provision of the Code can be found to meet the requirements of a case. All courts, whether civil or criminal, possess, in the absence of express provision in the Code for that purpose, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. This is based on the principle, embodied in the maxim quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest — when the law gives a person anything, it gives him that, without which, it cannot exist. The High Court has, in addition thereto, and in view of its general jurisdiction over all the criminal courts subordinate to it, inherent power to give effect to any order of any such court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice.”
This judgment was challenged before the Supreme Court. The Court has not gone into the merit of the case as both the parties had consented to revert the matter back to the High Court and the Supreme Court has refused to say anything on the merit of the case. It can therefore be concluded that the petition of discharge under Section 251 CrPC can well be considered by the courts in India.
* LLM (NET qualified), currently associated with Bihar Judiciary.
 Id., 1582-1583.
 See Pollock, The History of the Law of Nature, reprinted in Jurisprudence and Legal Essays, 124 (1961).
 N.S. Bindra, Interpretation of Statutes 4 (9th Edn. ,2002).
 See Gray, The Nature and Sources of Law, 176 (2nd Edn.).
 See Crawford observes in his Statutory Construction (3rd Edn.) at p. 267.
 Supra Note 12.
 Supra Note 12 at para 21.
 Supra Note 12.
 Supra Note 40.
 Supra Note 41.
 Supra Note 40.
 Supra Note 40.
 Ibid at para 7.
 Supra Note 40.
 Supra Note 41.
(2012) 5 SCC 424. The Supreme Court observed that it is the bounden duty of the trial court in S. 251 CrPC to satisfy whether the offence against the accused is made out or not and to discharge the accused if no case is made out against him.
 Supra Note 41.
 Supra Note 55.
 Supra Note 41.
 Supra Note 59, para 8.
 Supra Note 41.
 Supra Note 62, para 15.