DOES THE MAGISTRATE HAVE THE POWER TO DISCHARGE AN ACCUSED IN A SUMMONS CASE. ?

In a summons case, when the complainant institutes a case and the magistrate once satisfied, takes cognizance and issues a summons under section 204 CRPC for stating the substance of charge under 251 CRPC .

But what would be the legal recourse if the said person is wrongly charged or if the magistrate did not have the jurisdiction over him.?

Since, under section 239 of the CRPC, the magistrate can only discharge the accused in a warrant case and section 258 CRPC allows the magistrate to stop the proceedings of the accused at any stage if the case is instituted other than by way of complaint,  with no statutory remedy available in the CRPC for discharging the accuse in a summons case, the magistrate would be bound to frame the notice under 251 CRPC even if the accused had been wrongly charged.

For example, In 420 IPC cases, being a warrant case the accused can seek discharge under 239Crpc but in 138 NI Act cases, being a summons case, the accused cannot seek discharge at the stage of notice under 251 CRPC

What is the Remedy, If a person is falsely Summoned By a Magistrate in a summons case?

The issue on Whether the magistrate, in a ‘summons case based on a complaint’ has the power to drop proceedings and discharge an accused, or not, A three judge bench of Apex court in Adalat Prasad v. Rooplal Jindal & Ors in 2004 opined that “If the Magistrate issues process without any basis, the remedy lies in petition u/s 482 of the CrPC, there is no power with the Magistrate to review that order and recall the summons issued to the accused”

This precedent was followed time and again, which led to many petitions challenging the summoning order under sec 482 . In Krishna Kumar Variar vs. Share Shoppe (2010) 12 SCC 485, the Apex Court held that the accused instead of rushing to the higher court should move an appropriate application before the concerned magistrate, and the magistrate should after hearing both sides and recording of evidence, if necessary decide on the question of jurisdiction before proceeding  to frame the notice under 251 CRPC.

The above finding did not quite elucidate the inherent power of the magistrate while state the substance of charge under section 251 until the Apex Court in, Bhushan Kumar v. State (NCT of Delhi)AIR 2012 SC 1747 ruled that the magistrate has the inherent power under section 251 CRPC and has the bounden duty to satisfy whether the offence against the accused is made or not, if negative the magistrate can discharge the accused.

On the same footing the High Court in Raujeev Taneeja vs. NCT of Delhi of 2013 reiterating Bhusan Kumar (supra) observed that if the notice under 251 CRPC have not been framed, then the accused would have the liberty to raise the same contentions before the Ld. Trial court, where the the trial court after hearing both sides could pass a speaking order on whether the accused should be tried or discharged.

Similarly in S.K Bhalla vs State (2011) DLT 219, it was held that, the trial court after issuance of summons under 2014 CRPC, should carefully look into the charge sheet/ complaint and the evidences and may discharge the consider the before proceeding to frame the 251 notice.

The Delhi high court in Arvind Kejriwal & Ors vs Amit Sibal & Anr 2014 SCC Online Del 212 observed that in the backdrop of the observations held in Bhuan Kumar(supra) and Krishan Kumar (supra)  the issue on once the magistrate issues a summoning order, the trial has to proceed is wrongly settled as the aforementioned observations has rightly opined that, the magistrate has the power to discharge the accused in a summons case if no prime facia case is made out, even if there is no specific provision with respect thereto in the CRPC. It further observed  there may be innumerable inconveniences and circumstances which the legislature did not foresee and are not expressly covered by the Criminal Code, and to mend this issue, the court of law, for the highest administration of justice, has the power to redress the wrong even if there is no express provision relating to it.

Since, there is no express provision or any bar in the CRPC for discharge of the accused at the stage of framing of notice under 251 CRPC, the court has to interpret in a liberal manner and the magistrate has the inherent power to discharge an accused if found satisfied after hearing the pleas, evidences, complaints/ charge sheet of both the parties. If the trial court proceeds to frame the notice even if no prime facie case is made out then it would be a case of farce and would result in failure of justice.

CONCLUSION

In conclusion for the better administration of justice, and keeping in mind  the sound logic and the fundamental principle of justice that a person against whom no offence is disclosed cannot be put to face trial. With the evolving law and the precedents laid down over time, the magistrate has the inherent power to discharge an accused even in summons cases and the correct remedy if one is falsely summoned, is to make an appropriate application before the concerned magistrate and seek for discharge before moving to the higher court in the first instance.