CRITICALLY EXAMINE THE TRIAL OF SUMMONS CASES WITH ANY AMENDMENTS IF ANY.

CRITICALLY EXAMINE THE TRIAL OF SUMMONS CASES WITH ANY AMENDMENTS IF ANY

SUMMONS CASES

RESEARCH METHODOLOGY

           A.   AIMS AND OBJECTIVES

The objective of this project is to study about the warrant cases and their significance and to bring out the difference between trial of warrant cases and such other trials and to analyze the procedures followed in trial of warrant cases and their validity. And the aims of this project is to understand the process that how to compel the appearance in criminal court.

          B.   STATEMENT OF  PROBLEM

“It bears emphasizing that the process server’s duty is vital in the administration of justice because it is through him that defendants learn of the action brought against them by the complaint More important, it is also through the service of summons by the process sever that the trial court acquires jurisdiction over the defendant. It is therefore crucial that summons, writs and other court processes be served expeditiously, consonant with the mandate of speedy dispensation of justice stressed research work as sometime the summons does not contains full details and competent person in charge also does not have the sound knowledge about the defendant and sometimes the main problem which takes place is by handing a copy of the summons to the defendant in person, or, if the defendant refuses to receive and sign for it, by tendering it to him.

QUESTION & ANSWER

         C.   RESEARCH QUESTION

Based on the statement of problem and research hypothesis aforementioned, the following research questions have been formulated:

1. What are Summon case & its modes?
2.      What is Warrant case?
3.     What are the difference between trial of Summons and Warrant case

D.    RESEARCH HYPOTHESIS

The research work is an attempt to distill lessons and by critically examine the trial of summons cases. It is an attempt to know the various process of summons.

E. METHODS OF RESEARCH

Methodology” implies more than simply the methods the researcher used to collect data. It is often necessary to include a consideration of the concepts and theories which underlie the methods. The methodology opted for the study on the topic may be Doctrinal.

 Doctrinal research in law field indicates arranging, ordering and analysis of the legal structure, legal frame work and case laws by extensive surveying of legal literature but without any field work.

      F. MODES OF CITATION

      A uniform Blue Book Mode of citation is adopted throughout the project.

CHAPTER ONE

(1) INTRODUCTORY

One of the fruitful things that are given by Britain to India, during her reign was the laws of the British legal system especially the concept of criminal justice system and its related legislation. Our Indian Penal Code, Evidence Act and Civil Procedure Code are the products of the British legislators, which underwent only minor changes even after the independence till now. The scope of the project is limited to the study on summon cases and its trial proceedings.

               Now we must know what is summons and that I have came to know during my project work and from my comparative class studies i.e. summon is a legal document that is issued by a Court on a person involved in a legal proceeding. When a legal action is taken against a person or when any person is required to appear in the court as a witness in a proceeding, to call upon such person and ensure his presence on the given date of the proceeding, summons are served and it is served when a suit has been initiated by the plaintiff against the defendant, the court directs to issue summons to the defendant as this ensures a fair trial. If the summons is not duly served then no action can be taken against the defendant.

If on serving of the summon and the person against whom it had been issued does not appear in the court then this will be taken as a Contempt of Court and shall be punished accordingly. The summons is the descendant of the writ of the common law. Code of Criminal Procedure, from section 61 to 69 deals with the topic of summons.

It is a document issued by the court at the time a lawsuit is filed, stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff’s attorney, and instructions as to the need to file a response to the complaint within a certain time (such as 30 days after service ), usually with a form on the back on which information of service of summons and complaint is to be filed out and signed by the process server. A copy of the summons must be served on each defendant at the same time as the complaint to start the time running for the defendant to answer. Certain writs and orders to show cause are served instead of a summons since they contain the same information along with special orders of the court. After service to the defendants, the original summons, along with the “return of service” proving the summons and complaint were served, is filed with the court to show that each defendant was served. A summons differs from a subpoena (A writ issued by court authority to compel the attendance of a witness at a judicial proceeding; disobedience may be punishable as a contempt of court), which is an order to witness to appear

CHAPTER TWO

CRITICALLY EXAMINE THE TRIAL OF SUMMONS CASES WITH ANY AMENDMENTS IF ANY.

(2.1) WHAT IS SUMMONED CASE & its MODES?

A summon is served when a suit has been initiated by the plaintiff against the defendant, the court directs to issue summons to the defendant as this ensures a fair trial. If the summons is not duly served then no action can be taken against the defendant. Every summons issued by a court under this Code shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the court sec 61. A summon is a legal document that is issued by a Court on a person involved in a legal proceeding. When a legal action is taken against a person or when any person is required to appear in the court as a witness in a proceeding, to call upon such person and ensure his presence on the given date of the proceeding, summons are served.

There are modes of service of summons under section 62 and they are as follows:-

(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.

(2.2) WHAT IS WARRANT CASE?

'Warrant case' means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.  Sec 70.Form of warrant of arrest and duration – (1) every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. (2) Every such warrant shall remain in force until is cancelled by the Court which issued it, or until it is executed.

Warrant of arrest shall be in such form as is prescribed in Form No.2 of the Second Schedule of this Code of this Code. The following are the requisites of a valid warrant:

1. It shall be in writing.

2. It shall be signed by the presiding officer of the court.

3. It shall bear the seal of the court.

4. It shall bear the name designation of the person who is to execute it.

5. It must indicate clear name and address of the accused.

6. It must also state the offence with which the accused is charged.

7. It should indicate the date of issue.

(2.3) WHAT ARE THE DIFFERENCE BETWEEN TRIALS OF WARRANT & SUMMON CASE?

The few important differences are as follows:-

(1). the trial of a warrant case as a summons case is a serious irregularity which would vitiate the trial if the accused has been prejudiced. But the trial of a summons case as a warrant-case is only an irregularity which is curable under Section 465 of the Code.

(2). Where a warrant case has been tried as a summons case and it has resulted into acquittal of the accused, such acquittal shall operate only as a discharge under Section 245 of the Code. On the other hand where a summons case has been tried as a warrant case and the accused is discharged under Section 245, the discharge will amount to an acquittal under Section 255 of the Code.

(3). When the accused appears or is brought before a Magistrate in a warrant case, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. But in a summon case, the particulars of offence are stated to the accused and he shall be asked whether he pleads guilty or wishes to defend himself.

(4). In a warrant case, the accused gets more than one opportunity to cross- examine the prosecution witnesses whereas in a summons case he gets only one opportunity to cross-examine the prosecution witnesses.

(5). In a warrant case a complaint cannot be withdrawn by the complainant but in a summons case the complainant may withdraw the complaint with the permission of the Magistrate.

(6). In a warrant case, after convicting the accused, the Magistrate may take evidence regarding the alleged previous conviction, which is not admitted by the accused, and shall record his finding thereon. But no such power is conferred on the Magistrate while trying the accused in a summons case.

(7). in a summons case, after the issue of summons, the accused may plead guilty by post without appearing before the Magistrate. But no such provision exists in trial of a warrant case.

CHAPTER THREE

PROCESS TO COMPEL APPEARANCE

 THROUGH SUMMONS & THE STAGES TO BE FOLLOWED IN RESPECT OF PROCEDURE RELATING TO THE TRIAL OF SUMMON CASE

(3)THE FOLLOWING ARE THE STAGES TO BE FOLLOWED IN RESPECT OF PROCEDURE RELATING TO THE TRIAL OF SUMMON CASE

The term “summons cases” has been defined, in a negative sense, under Section 2(w) of the Cr.P.C as “a case relating to an offence, not being a warrant case”. On the other hand, a “warrant case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years .

1. Substance of accusation to be stated to the accused Section 251

When in a summons cases 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 defense to make, but it shall not be necessary to frame a formal charge. It is necessary that the accused should have a clear statement made to him as to the particulars of the offence of which he is charged. An accused may not be convicted even on his admission of guilt if the prosecution report does not make out an offence under a statute. 

2. Conviction on plea of guilty Section 252

If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and May; in his discretion convict him thereon Section 252. If the accused admits some or all of the charges alleged by the prosecution but pleads “not guilty”, the court is bound to proceed according to law by examining the witnesses of prosecution and defense. In the case Emperor v. Somabhai Nathabhai 1992 Cri.L.J 1417 (Ori)

3. Conviction on plea of guilty in absence of accused in petty cases Section 253

Section 253 of Cr.P.C provides an even simpler procedure for disposing of petty cases without the presence of accused in the court. Where the accused wants to plead guilty without appearing in the court, the accused is supposed to send Rs.1000/- by post or through a messenger (pleader) to the Magistrate. The Magistrate can on his discretion convict the accused.

4. Procedure when not convicted by the Magistrate Section 254

[Hearing the Prosecution and Defense case]

If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defense.

The Magistrate may, on the application of the prosecution, issue summons to any witness directing him to attend or produce evidence. The Magistrate is bound to examine all the witnesses and he is not empowered to limit the number of witnesses.

The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of trial be deposited in court. In the case Mir Zulfiqar Ali A.I.R 1954 Hyd 544.

5. Acquittal or conviction Section 255

If the Magistrate after considering evidence finds the accused not guilty, he shall record an order of acquittal. He may also decide to release the offender after admonition, or on probation of good conduct after under Section 360, or under Probation of Offender Act,1958 after considering the nature of offence, character of offender and circumstances of the case. A Magistrate may convict the accused of any offence (amenable to the trial in a summons case) which from the facts admitted or proved the accused appears to have committed. This can only be done if the Magistrate is satisfied that it would not prejudice the accused.

If the Magistrate, while discharging or acquitting the accused, thinks that there was no reasonable ground for making accusation against the accused person, he may call upon the person making such accusation to show cause as to why he should not pay compensation to the accused person after which the Magistrate may, for reasons to be recorded, make an order fixing the compensation to be paid by such person to the accused.

6. Non – appearance or death of complainant Section 256

If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent, thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may, dispense with his attendance and proceed with the case.

The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. The Magistrate must exercise his powers under this section reasonably. The accused should be acquitted when the complainant fails to appear without any just cause, it was held in the case Naresh Prasad v. Mahavir Singh A.I.R 1960 ALL 507. The accused may be acquitted, if the complainant is absent unless the Magistrate decides to adjourn the hearing of the case. The Magistrate is not bound to wait until the Court is about to close for the day Kuttiyali v. Pari Makri  (1884) 7 Mad 356.

6. Power  to  stop proceedings in certain cases Section 258

In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principle witness has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge. In the case of Lohana Dhirajlal  1973 Cr. L.J. 82.

7. The court can convert a summons case into a warrant case Section 259

Section 259 of the Cr.P.C provides that if in the course of the trial of a summons case relating to an offence punishable with imprisonment exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for trial of warrant cases, he may proceed to re-hear the case in the manner provided by the Code for the trial of warrant cases and may even recall any witness who may have been examined.

CHAPTER FOUR

CHAPTER – IV

CASE STUDY

(4.1) EMPEROR  v.  SOMABHAI, NATHABHAI , (1907) 9 BOM LR 1346

Fact of the case –It was held that If the accused admits some or all of the facts alleged by the prosecution but pleads ‘not guilty’ the court will proceed according to law by examining the witness for the prosecution and defense.

Judgment - The learned Magistrate, First Class, has erred in law in deciding the case without taking evidence. He says "there is no reason to take evidence because the facts are admitted" that make the accused out to have been members of an unlawful assembly. An accused person may admit some or even all of the facts alleged by the prosecution, but if he pleads not guilty, the Court trying him is bound to proceed according to law by examining the witnesses and giving an opportunity to the accused to cross-examine the witnesses for the prosecution and adduce his own evidence. In the present case the accused not only denied the charge in the complaint but appears to have admitted only some of the allegations of the prosecution.

(4.2) MIR ZULFIQAR ALI A.I.R 1954  HYD  544

Fact of the case – In this case we can understand that if the accused does not admit his guilt, the Magistrate is bound to hear the complaint and his witnesses. He cannot acquit the accused without examining the complainant and his witnesses. It is the duty of the prosecution to call all the witnesses who are able to give some important information about the incident. If such witnesses are not called without sufficient reasons being shown an inference adverse to the prosecution may be drawn by the Court. The only ground that can relieve the prosecutor from calling all such witnesses is the reasonable belief that, if called, they would not speak the truth. The Magistrate is also bound to examine all witnesses produced by the accused. He has no discretion to refuse the examination of a witness tendered by the accused. He has no power to limit the number of witnesses. If a Magistrate refuses to examine a witness formally tendered on behalf of the accused, his conviction would be illegal.

Therefor it was held that under sub-section (2) a Magistrate is not bound to issue process to compel the attendance of any witness either on the application of the complainant or of the accused. He has a discretion n this matter.

CHAPTER FIVE

CHAPTER – V

Conclusion

(5) Conclusion

Importance of fair trial: One of the primary goals of criminal law is to protect society by punishing the offenders. However, justice and fair play require that no one be punished without a fair trial. A person might be under a thick cloud of suspicion of guilt, he might have been caught red-handed, and yet he is not to be punished unless and until he is tired and adjudged to be guilty by a competent court. In the administration of justice it is of prime importance that justice should not only be done but must also appear to have been done. Further, it is one of the most important principle of criminal law that everyone is presumed to be innocent unless his guilt is proved beyond reasonable doubt in a trial before an impartial and competent court. Therefore it becomes absolutely necessary that every person accused of crime is brought before the court for trial and that all the evidence appearing against him is made available to the court for deciding as to his guilt or innocence.

A decision which reads into Section 251 itself ‘the power of discharge’ may be required. One way in which the same can be done is by holding that the power to frame notice in a case, has implicit within itself the power not to frame a notice when no case is made out against the accused. Such a judicial pronouncement is required to clear the air on this issue. Amendment of the law is, of course, the more appropriate way of bringing about a change, wherein the desirable results may be achieved without having to stretch the language of the section unnecessarily.

BIBLIOGRAPHY

     A.   PRIMARY SOURCES

BOOKS

(1).Misra.S.N, The Code of Criminal Procedure 1973, 20th Edition, Central Law Publications.

(2).Prof.Dr.Rao Surya Rega, Lectures on Criminal Procedure Code, 2^nd Edition, Asia Law House.

(3). Prasad B M & Mohan Manish, Ratanlal & Dhirajlal, The Code of Criminal Procedure,21^st Edition,Lexis Nexis.

(4). The Code of Criminal Procedure,1973, Bare Act.

B. WEB

(1). https://www.lawctopus.com/academike/criminal-procedure-india/

(2). https://www.legalbites.in/crpc-notes-trial-in-summons-cases/#_ftn7

C. DICTIONARY

CONCISE LAW DICTIONARY (LEXIS NEXIS) FIFTH EDITION.

CRITICALLY EXAMINE THE TRIAL OF SUMMONS CASES WITH ANY AMENDMENTS IF ANY.

 Thanks & Regards