MOHD YUSUF

17BALLB023
GK3467
CRIMINAL PROCEDURE CODE
1st GCT
15/10/2021

SUMMON TRIAL UNDER CrPC

INTRODUCTION

“Summon” is a document that commands a person to whom it is served to appear before the
court and to answer the complaint made against him. Summon is issued by the Magistrate to the
accused under section 204(1) (a) of Cr.P.C, 1973. “Summon case” means a case relating to an
offence, not being a warrant case. Summon cases can be referred from the definition of the
warrant case i.e., offences punishable with death, imprisonment for life and imprisonment for
the terms exceeding two years called as warrant cases. So summon cases are those in which
punishment will not exceed imprisonment for two years. It can be said that summon cases are
not of serious nature, so it needs to be decided speedily, without dispensing the requisites of the
fair trial. The procedure to deal with such matter provided in section 251 to 259 of Cr.P.C, 1973
which is not as serious/formal as other trials (Session trial, warrant case instituted on the police
report and warrant cases instituted otherwise than on police report).

The Criminal Procedure Code, 1973 as the name itself suggests, is a law that deals with the
criminal procedure. In this article, we will study about Summon and the procedure relating to
the trial of Summon cases before the Magistrate.

The term ‘Summon’ is defined under sec 2(w) of the Cr.P.C as a case relating to an offence and
not being a warrant case. While a Warrant case refers to a case punishable with death,
imprisonment for life or imprisonment exceeding the term of two years.

The above-mentioned definition lead us to conclude that the only difference between the
Summon and Warrant case is the degree of the crime. The difference helps the court in

Page | 1
determining the appropriate procedure for its trial. The trial of the summon case is prescribed
under chapter XX, Sec. 251 to 259 of Cr.P.C, 1973.

PROCEDURE OF TRIAL IN SUMMON-CASES

Explanation of the particulars of the offence

Section 251 provides that it is not mandatory to frame charges but the section does not dispense
with the explanation of the particulars of the offence when accused is brought or appear before
the Court. This is done to make the accused cognizant for the allegations made against him. If in
case unable to convey the particulars than this will not vitiate the trial and it will not lead to the
prejudice with the accused as this irregularity is remediable under section 465 of the code[3].
Under section 251 courts shall ask the accused whether the accused pleads guilty, and section
252 and 253 needs to comply for conviction on such plea of guilty.

Conviction on plea of guilty

Section 252 and 253 provides conviction on the plea of guilty. Section 252 provides plea of
guilty in general and section 253 provides plea of guilty in case of the petty cases. In case
accused plead guilty, the answer is affirmative than in accordance with law court will record the
plea in the exact words of the accused on the basis of which accused can be convicted on the
Court’s discretion. If not affirmative than the court needs to proceed further with Section 254.
If the accused plead guilty, and the charges against him do not constitute any offence than mere
plea will not amount to the conviction of the accused. As the magistrate has the discretion to
convict on the plea or not, if on plea the accused is convicted than the magistrate shall proceed
according to section 360 otherwise hear the accused on the question of sentence and sentence
him according to law. If the plea of guilty is not accepted than magistrate shall proceed
according to section 254.

Procedure if the accused not convicted on plea

Page | 2
Section 254 provides about both prosecution and defence case if the accused not convicted on
plea under section 252 and 253.

Prosecution case

The magistrate will hear the accused and take all the evidence. In the hearing, the prosecution
will be given chance to open its case by putting facts and circumstances which constitute the
case and by revealing the evidence which he relied upon to prove the case. The magistrate on
the application of the prosecution, serve summon to any witness to attend and to produce any
document or thing. The magistrate will prepare the memorandum of the evidence according to
section 274.  Same as other trials in summon cases also the magistrate will comply with section
279 i.e., interpretation of evidence to the accused and 280 i.e., recording of the demeanor of the
witnesses.

Hearing of the defence: – (Defence Case)

After the prosecution evidence under 254 and examination of defence under section 313, in the
continuance of this, the court will proceed with the defence hearing under section 254(1). In the
hearing of the defence means accused will be asked for accused say against the prosecution
evidence. Failure of hearing of the accused in any case will amount to the fundamental error in
the criminal trial and it can not be cured under section 465. Evidence produced by the accused
will be recorded in the same manner as in case of prosecution under section 274, 279, 280. After
the submission of the evidence of the defence, he will be allowed to submit his arguments under
section 314.

Acquittal or conviction

After recording the evidence under 254 the magistrate will acquit the accused if he finds the
accused not guilty. If the accused is guilty than Magistrate shall proceed according to Section
360 or 325 otherwise, sentence him according to the law.

Non-appearance or the death of the complainant

Page | 3
According to section 256 on the date fixed for the appearance of the accused nonexistence of
the complainant will empower the court to acquit the accused unless the court has the reason to
adjourn the case to some other day. Section 256(1) is also applicable in case of the death of the
complainant↓. In case the representative of the dead complainant does not appear for 15 days
where the defendant appeared, the defendant can be acquitted held by the Supreme Court.[4]

Discharge in case of Summon cases

I summon cases instituted otherwise than the complaint Section 258 authorize the first class
Magistrate, with the prior sanction of the Chief Judicial Magistrate, to stop the proceeding at
any stage. Therefore if he stops the proceeding ‘after record of the evidence’ than it is the
pronouncement of a judgment of acquittal, and in case stops ‘before the record of the evidence’
it is released which has the effect of discharge.

It is controversial that in summon case instituted on complaint Magistrate do not have any
power of dropping of the case even if he has no sufficient ground to proceed against the
accused. This is because if the Magistrate does so then he will recall his own order. Supreme
Court said that the issue of process is interim order of the Magistrate, not the judgment so it can
be recalled. No provision is required to empower the magistrate to drop the case in such
circumstances. In summon cases on complaint Magistrate cannot discharge, review and recall
the order of the issue of the process. There is no dropping of the case, the trial court has to
conclude the trial. In summon cases the Magistrate of the trial court has no power to drop the
proceeding in the absence of such provision in the law. A person can approach the High Court
under section 482 of Cr.P.C in such circumstances. There is no provision of discharge in
summon cases instituted on complaint accused will be either convicted or acquitted.

ANALYSIS

The trial of the summon cases is less formal than other trial procedure just for the speedy
remedy. Therefore the Section 258 which does not empower the Magistrate to drop the case,
even in the absence of sufficient ground is somehow prejudice to the accused. Court’s opinion

Page | 4
in the K.M. Matthew case was that the Magistrate has the implied power to drop the case if the
allegation against accused does not prove the commission of any crime. In various judicial
pronouncements, it has dissented. In Arvind Kejriwal  case Supreme Court held law does not
specifically empower Magistrate in regard to dropping of the case under 258 and passed the
case to the high court to deal with it under section 482. But the point needs to be considered that
the High court also again need to look into the case to find out whether there is any sufficient
ground to proceed against the accused, all this will impede the main objective of the summon
case i.e. speedy trial. Though this matter was addressed before the apex court in various cases, it
must be scrutinized again to keep the fair trial and the right of the accused out of jeopardy in
such circumstances.

when the accused is brought before the magistrate in this section it is mandatory to explain the
particulars of the offence of which the accused is convicted. And he was asked whether to plead
guilty or has any defence from his side and if the accused pleads himself guilty then in such
case conviction is provided under section 252 and 253.

K M Mathew vs State of Kerala

In this case accused was summoned for the offence under section 500 of IPC 1860
(Defamation) the accused was a chief editor of a daily newspaper. An application seeking
‘Dropping of proceeding’ stating that there was no specific ground made against him and no
specific offence was made against him, The Magistrate accepted the plea and acquit the chief
editor.

Conviction on the plea of guilty (section 252 and 253):

 in the case when the accused pleads himself guilty of the charges stated against him the
magistrate will record each and every word of his plea coma on the basis of which the accused
Shelby convicted. If the accused leads him guilty but the charges made against him do not
Institute any offence then in such a case near please will not amount to a conviction. In a case if
the plea of guilty is not accepted then it will proceed as per section 254

Procedure when accused not convicted (section 254):

When the accused does not plead himself guilty or he is not convicted by the magistrate under
Section 252 and 253. in such a case magistrate is bound to hear the complainant and his witness.
A summon may be issued to any witness inviting him to witness himself or the documents
Page | 5
before the magistrate. The magistrate cannot refuse the examination of the witness.

Acquittal or conviction (section 255):

After following the prescribed procedure if the magistrate finds the accused not guilty of the
offence, he can acquit him by recording the evidence of acquittal. Also, he has the right to
decide to release the accused under section 360 (Probation of Offender Act, 1958). if the
accused is found guilty then he shall we try under section 325 of 360 of the CRPC.

Non appearance or Death of complainant (Section 256):

In the case where the complainant does not appear before the court on the due date the court is
empowered to acquit the accused unless there is any chance to adjourn the case. This section is
also applicable in case when the complainant is dead or the legal representative of that person
does not appear before the court on due dates.

A.S. Ramakrishna vs S Rami Reddy

In this case, the complaint died during the trial and a large number of dates were fixed for the
hearing but the legal representative of the dead person for absent for about 15 dates
continuously but the accused was attending the hearing. The magistrate acquitted the accused as
per this section.

Arvind Kejriwal and others v. Amit Sibal & Anr 

In this case a complaint is filed by Amit Sibal against Arvind Kejriwal, Delhi Chief Minister
alleging defamation, the judge of Hon’ble high court Delhi ruled that ‘Magistrate has the power
to hear the accused at the time of explanation of the substance of the accusation, and if no
offence is made out, to drop proceedings against him at that stage itself, and the court need not,
in all cases, take the matter to a full-blown trial’.

Aggrieved by the judgment complainant filed case before Supreme Court stating that ‘
Magistrate has no power to drop proceedings in the absence of provisions in CRPC to that
effect’  later the Supreme Court has stayed the order of High Court and command for fresh
consideration under section 482 of Cr.P.C.

Withdrawal of complaint (section 257):

If it is satisfied that there is necessary ground to permit the withdrawal of complaint against the
Convict anytime before passing the final order the magistrate may permit the withdrawal of the
Page | 6
complaint and acquit the accused.

Power to stop proceedings in certain cases (section 258):

 If a case is instituted otherwise than on complain a magistrate of first-class with the previous
sanction of the chief judicial magistrate and any other Judicial Magistrate can stop the
proceeding at any stage without the pronouncement of judgment recording evidence of a
principal witness and can release the case.

Transfer of summon cases into warrant cases (section 259):

During the cause of trial of summoning case if an offence is punishable with imprisonment of a
term exceeding six months then the magistrate may proceed to re-hear the case in accordance
with the procedure provided for the trial of warrant cases and can recall any witness for re-
examination.

Page | 7