Hierarchy of
Criminal Courts (Section 6, 7, 8 Cr.P.C)
Unlimited
Powers
{7
years} {7 years}
3 years Metropolitan magistrate Special Metropolitan
Magistrate
Special
Judicial magistrate of Second Class {1
years} Judicial
Magistrate of Second Class {1years} Special
Judicial Magistrate of First Class {3 years} Judicial
Magistrate of First Class {3 years}
Section 2 (x)
“warrant-case” means a case relating to an offence
1. Punishable
with death,
2. Imprisonment
for life or
3. Imprisonment
for a term exceeding two years.
Section 2 (w)
“summons-case” means a case relating to an offence, and not being a
warrant-case; (less than 2 years)
|
Warrant
case |
Summon
Case |
|
1.
Procedure for trial is contained in Chapter XIX of Cr.Pc. |
Procedure
for trial is contained in Chapter XX of Cr.Pc. |
|
2.
Charge is framed against the Accused. (S.240 r/w 251) |
No
Charge need to be framed only Petitioners of the offence needs to be conveyed
(Notice is framed in NI cases) (S. 251) |
|
3.
Charge is framed accused may plead guilty and magistrate on his own
discretion convict him (Section
241) |
Magistrate
must record the plea of Accused and may in his own discretion convict him. (Section
252) |
|
4.
Magistrate can discharge the accused- 1.
If the Complainant is absent. 2.
No Charge is framed. 3.
If the offence is compoundable and Non-Cognizable.
(S. 249) |
Magistrate
can acquit the accused- 1.
If the complainant does not appear 2.
On the death of Complainant. (S.256) |
|
5.
The complainant may with the consent of court withdraw the remaining charges
against the accused if charged with several offences on one or more of them.
(S.224) |
Complainant
with the permission of the magistrate withdraws his complaint against the
accused. (S.256) |
|
6.
Warrant case cannot be converted into summons case. |
Summons
case can be converted into warrant case during trial. |
|
When
charge reveal both summon and warrant case. Warrant case is preferred. |
|
|
Offences
are divided into cognizable and non-cognizable but when the code deals with
the procedure relating to trials it speaks of summons case and warrants
case. The division is based on nature
and measure punishment attached to the offence. |
|
Section 204.
Issue of process.—(1) If in the opinion of a Magistrate taking cognizance of an
offence there is sufficient ground for proceeding, and the case appears to be— ……………………
Scope
·
Prima facie case
If magistrate
upon taking cognizance of a case, upon consideration of the materials before
him (Complaint, examination of complaint and his witnesses, or report of
inquiry) if it thinks that there is prima facie case for proceeding in respect
of an offence he shall issue process against the accused. It is the discretion of the magistrate to
issue warrant in a warrant case and or he can also issue summons in a warrant
case if it suits the purpose.
·
Jurisdiction
Whether a court
has jurisdiction to try/entertain a case, at least in part depends upon the
facts and circumstances of the case.
Instead of approaching the high court the concerned person should
approach the trial court with an application for this purpose and the trial
court should after hearing both sides and recording evidences, if necessary
decide the question of jurisdiction before proceeding further. (2010) 12 SCC 485
·
Refusal of
Process
A wide
discretion has been given as to grant of refusal of process and it must be
judicially exercised. A person ought not
to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the
magistrate ought to issue process and it cannot be refused merely because it
thinks that it is unlikely to result in conviction. (18 CrLJ (C) 628)
·
Revision/
Challenge to summons
Issue of process
is an interlocutory order and is not subject to revision under Section 397
Cr.Pc. Hence the order passed in
revision setting aside the order of issue of process would not be sustainable.
Order summoning
the accused was liable to be set aside when it neither made any reference to
the allegations made against the accused, nor about complaint supporting
allegations, and the statements of witnesses recorded under section 202 were also
not mentioned : 2006 (2) CrC 323
Order issuing
process can be challenged before Court under Section 204. The accused cannot be relegated to an
application to the magistrate for recalling that order and dismissing the
complaint. 2000 CrLJ 2738 ALL
No revision is
maintainable against order of summoning.
The only course open to the applicant was to approach the High Court in
an application under Section 482 of the CrPc. 2010 CrLJ 3783 (3786.
·
Sufficient
Ground for proceeding
While issuing
process the court should be very careful with civil and criminal liability and
no party should be allowed to have recourse to criminal process to put pressure
on hus opponent for satisfaction of his claim for which a civil suit is the
proper remedy, to issue process.
At the time of
issuing process the magistrate has to take into consideration inherent
improbalities appearing on the face of the complaint or in the evidence led by
the complainant in support of the allegations.
In other words magistrate has to use his judicial mind to see wheather
any case under IPC has been spelt out prima facie or not. 2008 CrLJ 2426 (2432) (Bom)
Discharge
Section 227
Cr.P.C (In court of session)
·
Use of judicial mind
The words
"not sufficient ground for proceeding against the accused" clearly show
that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to
exercise his judicial mind to the facts of the case in order to determine
whether a case for trial has been made out by
the prosecution. In assessing this fact, it is not necessary for the
court to enter into the pros and cons of the matter or into a weighing and
balancing of evidence and probabilities which is really his function after the
trial starts. At the stage of Section 227, the Judge has merely to sift the
evidence in order to find out whether or not there is sufficient ground for
proceeding against the accused. The sufficiency of ground would take within its
fold the nature of the evidence recorded by the police or the documents
produced before the court which ex facie disclose that there are suspicious circumstances
against the Accused so as to frame a charge against him. Union of India Vs. Prafulla
Kumar Samal and Ors. 1979(3) SCC 4
(i) The Judge
while considering the question of framing the charges Under Section 227 Code of
Criminal Procedure has the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a prima facie case against
the Accused has been made out. The test to determine prima facie case would depend
upon the facts of each case.
(ii) Where the
materials placed before the court disclose grave suspicion against the Accused
which has not been properly explained, the court will be fully justified in
framing a charge and
proceeding with
the trial.
(iii) The court
cannot act merely as a post office or a mouthpiece of the prosecution but has
to consider the broad probabilities of the case, the total effect of the
evidence and the documents produced before the court, any basic infirmities,
etc. However, at this stage, there cannot be a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the
basis of the material on record, the court could form an opinion that the
Accused might have committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved beyond reasonable doubt that
the Accused has committed the
offence.
(v) At the time
of framing of the charges, the probative value of the material on record cannot
be gone into but before framing a charge the court must apply its judicial mind
on the material placed on record and must be satisfied that the commission of
offence by the Accused was possible.
(vi) At the
stage of Sections 227 and 228, the court is required to evaluate the material
and documents on record with a view to find out if the facts emerging therefrom
taken at their face value disclose the existence of all the ingredients
constituting the alleged offence. For this limited purpose, sift the evidence
as it cannot be expected even at that initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to common sense or the
broad
probabilities of
the case.
(vii) If two
views are possible and one of them gives rise to suspicion only, as
distinguished from grave suspicion, the trial Judge will be empowered to
discharge the Accused and at this stage, he is not to see whether the trial
will end in conviction or acquittal. Sajjan
Kumar Vs. Central Bureau of Investigation, 2010(9) SCC 368
·
Sufficient ground for proceeding
The meaning of
the work “there are no sufficient grounds” is that the judge should come to a conclusion
that there is no legal and acceptable evidence or that the allegations do not
make out any offence at all. It means
that the judge should come to the conclusion that even the entire case of the
prosecution is accepted as correct or the statements made by the witness are
considered as true, the accused cannot be convicted on such material and no
case is made against the accused.
D. Vijay Kumar v. State of A.P, 2010 CrLJ 968
The meaning of
the word there are no sufficient grounds is that the judge should come to the
conclusion that there is no legal and acceptable evidence or that the allegations
do not make out any offence at all. It
means that the judge should come to a conclusion that even the entire case of
the prosecution is accepted as correct or the statements made by the itnesses
are considered as true, the accused cannot be convicted on such material and no
case is made against the accused. (D.
Vijay Kumar v. State of A.P supra)
·
Grave Suspicion
It is settled that, the Judge while considering the question of framing
charge under Section 227 of Cr.PC in sessions cases(which is akin to Section
239 of CrPC pertaining to warrant cases) has the undoubted power to sift and
weigh the evidence for the limited purpose of finding out whether or not a
prima facie case against the Accused has been made out; where the material
placed before the Court discloses grave suspicion against the Accused which has
not been properly explained, the Court will be fully justified in framing the
charge; by and
large if two views are possible and one of them giving rise to suspicion
only, as distinguished from grave suspicion against the accused, the
trial
Judge will be justified in discharging him. Asim Shariff v. NIA (2019) 7 SCC 148
Section 239 Cr.P.C (only applicable to warrant cases)
·
Opportunity of being heard
Does not mean
examination of any witnesses, it merely gives a right of audience which means
the prosecution and the accused are entitled to argue their case in favour of
framing charge or a discharge. AIR 1959
J&K 77.
A question arose
as to whether an accused in a warrant case was rntiled to place on record
certain documents for being considered before framing of charges. The high court held that at that stage the
documents sought to be introducted by the accused are required to be included
in a list and the prosecutor can be called upon to admit or deny the documents
in question. 1987 Cri LJ 1335 (P&H)
Section 245 Cr.P.C (applicable in complaint cases)
·
Difference
Section 227 and 239 provide for discharge provide for discharge of
accused based on police report and the documents sent along with it and
examination of the accused after giving ajn opportunity to the parties to be
heard. However the stage of discharge
under 245, on the other hand is reached only after the evidence referred in 244
has been taken. 2014 (1) SCALE 219.
·
Discharge at any stage.
The accused can
move the application for discharge even before it reached the stage of 244
C.r.Pc. the magistrate can discharge
accused for reasons to be recorded if he considers the charge as groundless. 2010 Cr.LJ (NOC) 343 (All).
Magistrate can
discharge the accused even without examining all or any of the complainant’s
witnesses. AIR 1930 C 515.
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