India: Discharge Of Accused Or Dropping Of Cheque Dishonour Proceedings-Is The Quandary Resolved?

"Assuming there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court cannot add words to a statute or read words into it which are not there¹..."

The question of discharge or dropping of proceedings in summons case(s) instituted on a complaint has been a topic of relentless deliberation before various courts across the country. Significantly, though, there are specific provisions under the Code of Criminal Procedure, 1973 ("CrPC/ Code") which confer explicit powers on the Court of Session² and Court of Magistrate, in warrant cases instituted on a police report³ or otherwise⁴, to discharge an accused, however,  no such mandate exists with the magistrate while dealing with summons cases. At the same time, provisions under Section 258 of CrPC, which deal with the Magistrate's⁵ power to stop/ drop proceedings, restrict their applicability to summons-cases instituted otherwise than upon a complaint. However, despite the absence of an explicit statutory directive, there are numerous judicial precedents which favor the exercise of powers of discharge and/ or dropping of proceedings by Magistrate even in summons cases instituted on a complaint. In contrast, there is also a plethora of pronouncements which eschew such an exercise of power, terming it as excessive and in violation of the statutory provisions. Regrettably, these conflicting decisions have not only escalated confusion in the minds of magistrate while dealing with such case, rather, resulted in subsistence of ambiguity in law, especially in cheque dishonor proceedings in terms of the provisions of the Negotiable Instruments Act, 1881 ("NI Act").

Pertinently, the provisions for discharge are premised on an understanding⁶ that before proceeding with a trial against an accused, "the Court should be satisfied that the accusation made against the accused person is not frivolous and that there is some material for proceeding against him." Further, in this regard, the courts⁷ have consistently observed, "[i]f there is no legal evidence, then obviously framing of charge would be redundant and then only it can be said that compelling the accused to go to trial will amount to infringement of his right under Article 21 of the Constitution." However, this power is not unfettered, rather, circumscribed within certain judicially defined parameters. It is trite law⁸ that the application of discharge, within the statutorily permissible limits, may be entertained on the examination of the establishment of a prima facie⁹ case against the accused. Further, the courts have unswervingly declared that the test to determine existence or non-existence of a prima facie case depends upon the facts of each case and that there are no rules of universal application to the said effect. In fact, the Hon'ble Apex Court¹⁰ in this regard has cautioned that while exercising its jurisdiction of discharge, "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 appearing in the case and so on". At the same time it has been mandated, "this however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

One of the earlier cases wherein the Hon'ble Apex Court professed in favor of the exercise of power of discharge/ dropping of proceedings by magistrates in summons case, instituted on a complaint, was rendered in K.M. Mathew v. State of Kerala¹¹. As per the Hon'ble Court¹², "[i]t 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 is required for the Magistrate to drop the proceedings or rescind the process." In fact, in the instant case, the Hon'ble Court went to the extent of holding that an order issuing the process is an interim order and that the same can be varied or recalled. However, subsequently, while distinguishing¹³ the decision in K.M. Mathew case, the Hon'ble Court¹⁴ in John Thomas v. K. Jagadeesan (Dr)¹⁵, explicitly declared, "Section 258 of the Code has no application to cases instituted upon complaints." Significantly, since the decisions in, both, the said cases were rendered by Division benches of the Hon'ble Supreme Court, the uncertainty in law prevailed until a three Judges' bench¹⁶ of the Hon'ble Court in Adalat Prasad v. Rooplal Jindal¹⁷, firmly declared, "the view of this Court in Mathew case...that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law." In fact, the Hon'ble Court clarified, "if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code." Appositely, the decision in Adalat Prasad case was reaffirmed by another three Judges' bench of the Hon'ble Apex Court in Subramanium Sethuraman v. State of Maharashtra¹⁸, by reiterating, "the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case." In fact, the Hon'ble Court, in the instant case, specifically dispelled the argument favoring reconsideration of the decision in Adalat Prasad case by observing, "[i]t is true that the case of Adalat Prasad...pertained to a warrant case whereas Mathew case...pertained to a summons case. To this extent, there is some difference in the two cases, but that does not, in any manner, make the law laid down by this Court in Adalat Prasad case....a bad law."

Significantly, despite a clear mandate of law in Adalat Prasad and Subramanium Sethuraman cases, a division bench of the Hon'ble Apex Court, subsequently, in Bhushan Kumar v. State (NCT of Delhi)¹⁹ rendered a diverging view by holding, "[i]t is inherent in Section 251 of the Code that when an accused appears before the trial court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial court to carefully go through the allegations made in the charge-sheet or 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 as per Section 239 of the Code."  Significantly, though, the said decision was rendered in the context where the Hon'ble Apex Court did not consider the earlier decisions of its larger benches, however, the same view prevailed and was reiterated by several Courts²⁰, while permitting applications for discharge even in summons cases instituted on complaint. In fact, the Hon'ble High Court of Delhi in Urrshila Kerkar v. Make My Trip (India) Private Limited²¹, attempting to distinguish the decision of the Hon'ble Apex Court in Adalat Prasad case observed, "[i]t is no doubt true that Apex Court in Adalat Prasad v. Rooplal Jindal...has ruled that there cannot be recalling of summoning order, but seen in the backdrop of decisions of Apex Court in Bhushan Kumar and Krishan Kumar (supra), aforesaid decision cannot be misconstrued to mean that once summoning order has been issued, then trial must follow. If it was to be so, then what is the purpose of hearing accused at the stage of framing Notice under Section 251 of Cr.P.C......decision in Adalat Prasad (supra) cannot possibly be misread to mean that proceedings in a summons complaint case cannot be dropped against an accused at the stage of framing of Notice under Section 251 of Cr.P.C. even if a prima facie case is not made out." Subsequently, the Hon'ble High Court in Arvind Kejriwal v. Amit Sibal²² went a step ahead, mandating, "in the event of the learned Magistrate not finding a prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused......these directions are being issued in exercise of power under Section 482 read with Section 483 CrPC and Article 227 of the Constitution to secure the ends of justice; to avoid needless multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar case.." Pertinently, though, the said decision of the Hon'ble High Court of Delhi was set aside in an appeal²³, however, while passing its decision, the Hon'ble Apex Court did not deliberate and delve deep into the recourse adopted by the Hon'ble High Court. In fact, the Hon'ble Supreme Court merely recorded that the parties to the said case had acceded before it that the, "order permitting the respondents to raise such contentions at the stage of framing of notice and directing the Metropolitan Magistrate to consider the same and pass appropriate order is contrary to law." Accordingly, while accepting the said view and based on the suggested proposal, the Hon'ble Supreme Court referred the matter back to High Court for reconsideration.

Similar to the extension of principles of discharge in summons cases, the Hon'ble Apex Court in Meters and Instruments (P) Ltd. v. Kanchan Mehta²⁴ extended the provisions of Section 258 CrPC to a proceeding under Section 138 of the NI Act. In fact, in the instant case, the Hon'ble Court, while taking recourse to the provisions of Section 143²⁵ of the said enctament, inter alia, observed, "Section 258 CrPC which enables proceedings to be stopped in a summons case, even though strictly speaking is not applicable to complaint cases, since the provisions of CrPC are applicable "so far as may be", the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible i.e. with such deviation as may be necessary for speedy trial in the context." Significantly, reasoning behind the extension of the provisions of discharge and/ or dropping of proceedings to summons case, understandably, relates to expeditious resolution of disputes, to prevent protraction of proceedings, ensure interest of justice, etc., however, quite recently, a five judges' bench²⁶ of the Hon'ble Apex Court in In Re: Expeditious Trial of Cases Under Section 138 of the Negotiable Instruments Act, 2021²⁷ deprecated such an exercise of jurisdiction by magistrate. The Hon'ble Court in its said pronouncement, in fact, upheld the decisions rendered in Adalat Prasad and Subramanium Sethuraman cases as interpreting the law, correctly noting that there is, "no inherent power of Trial Courts to review or recall the issue of summons." At the same time, the Hon'ble Court while holding that the decision in Meters and Instruments case, in so far as it conferred power on the Trial Court to discharge an accused, does not lay down a good law, observed, "[s]upport taken from the words "as far as may be" in Section 143 of the Act is inappropriate. The words "as far as may be" in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Code and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is impermissible." Accordingly, it was resolutely affirmed by the Hon'ble Court that the provisions of Section 258 of the Code are not applicable to a summons case instituted on a complaint, including the proceedings initiated under Section 138 of the NI Act.

Clearly, the recent mandate by the Constitutional bench of the Apex Court in In Re: Expeditious Trial of Cases Under Section 138 of the Negotiable Instruments Act, 2021 case seems to premised on an age old adage, "Quando aliquid prohibetur ex directo, prohibetur et per obliquum²⁸" to the effect that a magistrate cannot exercise its power indirectly by discharging an accused or discontinuing summons proceedings, in the absence of conferment of explicit power of recalling or reviewing its order (of summons) under the Code. However, considering the ground realities regarding the huge pendency of cases, delay in adjudication, etc., even in summons cases²⁹, reasonableness of the approach adopted by the Hon'ble Apex Court appears to be futile and purposeless. In fact, awareness of these difficulties, is the likely reason why that, though, the Hon'ble Court refrained to diverge from the statutory provisions, however, dodged the responsibility on the legislature to consider amendment in the statutory provisions, empowering the Trial Court to reconsider/ recall its order of summons. Nevertheless, till the time any initiative is taken by the legislature in the said direction, law seems to be more or less settled that a magistrate is devoid of powers to discharge and/ or drop proceedings in summons case/ summons cases instituted on a complaint, including the proceedings in cheque dishonor cases.

Footnotes

1. P.K. Unni v. Nirmala Industries, (1990) 2 SCC 378

2. Refer to the provisions under Section 227 of the Code of Criminal Procedure, 1973/ CrPC.

3. Refer to the provisions under Section 239 CrPC.

4. Refer to the provisions under Section 245 CrPC.

5. As per Section 258 CrPC, being the Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate.

6. Refer to Richard Winn Harcos v. State of West Bengal, 1975 SCC OnLine Cal 170 : 1975 Cri LJ 1256

7. Refer to Kaushalya Devi v. State of M.P., 2003 SCC OnLine MP 672 : (2003) 8 AIC 755 and Somen Bal v. State of West Bengal, 2018 SCC OnLine Cal 14158 : (2018) 3 Cal LT 601

8. "If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations) he may frame charge in accordance with Section 240 Cr.P.C. But if he finds that the charge (the allegations or imputations) made against the accused do not make out a prima facie case and do not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the accused." [Refer to Arun Vyas and Ors. v. Anita Vyas, (1999) 4 SCC 690]

9. "If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case." Sajjan Kumar v. CBI, (2010) 9 SCC 368

10. Refer to Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4

11. (1992) 1 SCC 217

12. Division bench comprising of HMJ K. Jagannatha Shetty and HMJ Yogeshwar Dayal

13. "The learned Senior Counsel made a last attempt to save the appellant from prosecution on the strength of the decision of this Court in K.M. Mathew v. State of Kerala..... In that case prosecution against the Chief Editor was quashed for want of necessary averments in the complaint regarding his role in the publication. That part of the decision rests entirely on the facts of that case and it cannot be imported to this case...."

14. Bench comprising of HMJ K.T. Thomas and HMJ R.P. Sethi

15. (2001) 6 SCC 30

16. HMJ Santosh Hegde, HMJ S.B. Sinha and HMJ A.K. Mathur

17. (2004) 7 SCC 338

18. (2004) 13 SCC 324

19. (2012) 5 SCC 424

20. Refer to Raujeev Taneja v. NCT of Delhi & Ors, Crl MC 4733/2013 (dated 11.11.2013, DHC); S.K. Bhalla v. State, (2011) 180 DLT 219

21. 2013 SCC OnLine Del 4563

22. (2014) 1 HCC (Del) 719: 2014 SCC OnLine Del 212

23. Amit Sibal v. Arving Kejriwal & Ors., (2018) 12 SCC 165

24. (2018) 1 SCC 560

25. "(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:.."5

26. Comprising of HMJ S.A. Bobde, HMJ L. Nageswara Rao, HMJ B.R. Gavai, HMJ A.S. Bopanna and HMJ S. Ravindra Bhat

27. 2021 SCC OnLine SC 325

28. Latin maxim which means, "When anything is prohibited directly, it is prohibited indirectly."

29. Since the offences are of lesser gravity and triable by simple procedure it is usually expected that the same would be resolved expeditiously.

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