Summary Trial in High Court

By Dhruva Vig

Introduction

It has been widely believed, and upheld by countless courts across various jurisdictions, that “Justice delayed is justice denied.”

For the purposes of tackling the problem of a lethargic and worn-out legal system, the concept of “Summary Trials” has evolved over time.

Under Black’s Law Dictionary, a ‘summary proceeding’, also termed summary trial, is a non jury proceeding that settles a controversy or disposes of a case in a relatively prompt and simple manner.^[1]

The term ‘Summary trial’ refers to the process where cases are disposed of in a speedy manner with a simplified procedure, and where the recording of such trials are done summarily. In such instances, only petty/minor offences are entertained and tried before the Court, and the cases of a complicated nature are reserved for summons or warrant trials.

A standout feature of summary trials is the expeditious disposal of cases. Since the pendency of cases has been on a steady rise, and the caseload on the judicial machinery is immense and continues to grow, there is an urgent demand for quick and speedy disposal of cases.

Another purpose of ‘summary trials’ is to enable the people to procure justice even for petty offences that may have otherwise taken years to complete the said legal proceedings.

The legal provisions relating to procedure and intricacies of Summary trials have been provided for under Sections 260 to 265 of the CrPC.

Difference between Summary Trials and Regular trials

• Summary trials deals with instances where the offence is of minor and simple nature. Whereas in case of summons or warrant trials, the offence is more completed and serious in nature.
• In summary trials, statement of the witnesses are briefly and generally compiled and only the substance of their depositions are recorded. In regular trials, the depositions of each of the witnesses are carefully recorded in its entirety.
• In the instance of a summary trial, the Magistrate does not have to frame formal charges against the accused. In the case of regular trials, a formal charge sheet shall be drawn up as per the procedure established under the Code.
• In case of summary trials, the entirety of the evidence need not be recorded and only a brief outline can be considered necessary. In case of other trials, it shall be necessary to record all of the evidence completely and in its entirety.

Legal Provisions

The Code of Criminal Procedure, 1973, Chapter XXI – Summary Trials

Section 260 of the CrPC talks about the ‘Power to try summarily’, where notwithstanding anything contained in this Code, any Chief Judicial Magistrate of any Metropolitan Magistrate or any Magistrate of the first class, who has been specially empowered in this behalf by the relevant High Court of respective jurisdiction, may, if he/she thinks fit, try in a summary way of such cases, for all or any of the following offences as mentioned below.

Thus, the types of offences that can be tried in a Summary Trail are as follows:—

• Offences which are not punishable with death, imprisonment for life or imprisonment for a term which may be exceeding of two years.
• Offence of theft, under section 379, section 380 or section 381 of the Indian Penal Code, 1860, where the value of the property that has been stolen does not exceed two thousand rupees.
• Offences relating to receiving or retaining stolen property, under section 411 of the Indian Penal Code, 1860, where the value of the property does not exceed two thousand rupees.
• Offences relating to assisting in the concealment or disposal of a stolen property, under section 414 of the Indian Penal Code, 1860, where the value of such property does not exceed two thousand rupees.
• Offences that are provided under sections 454 and 456 of the Indian Penal Code, 1860.
• Offences where there has been an insult with the intent to provoke a breach of the peace, under section 504, and criminal intimidation punishable with imprisonment for a term which may extend up to two years, or with fine, or with both, as the case may be under section 506 of the Indian Penal Code, 1860.
• Offences relating to abetment of any of the foregoing offences.
• Offences where an attempt to commit any of the foregoing offences when such attempt is an offence is committed.
• Any offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871.

Furthermore, during the course of a summary trial if it shall appear to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, then the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by this Code.

Thus, under sub-section (1) of Section 260 a Magistrate has a discretion to try offences specified therein either summarily or in a regular way.

Section 261 talks about summary trials which are to be entertained by a Magistrate of the second class, and where the High Court may confer upon any Magistrate who is invested with the powers of a Magistrate of the second-class power, to try summarily any offence which is punishable only with fine or with imprisonment for a term which may not exceed six months with or without fine, and any abetment of or attempt to commit any such offence as well.

Section 262 lays down the ‘Procedure for summary trials’, where in trials under Chapter XXI of CrPC, the procedure which is specified in this Code for the trial of summons-case, shall be followed except as hereinafter mentioned.

Also, no sentence of imprisonment for a term which may exceed three months shall be issued by the court in the case of any conviction under Chapter XXI of CrPC.

Section 263 deals with the ‘Record in summary trials’, where in every case that is tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely:

• The serial number of the case;
• The date of the commission of the offence;
• The date of the report or complaint;
• The name of the complainant (if any)
• The name, parentage and residence of the accused;
• The offence complained of and the value of the property in respect of which the offence has been committed;
• The plea of the accused and his examination (if any);
• The finding;
• The sentence or other final order;
• The date on which proceedings terminated.

Section 264 provides for the ‘Judgment in cases which are tried summarily’, where in every case which is tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.

Section 265 talks about the ‘Language of record and judgment’, where every such record and judgment shall be written in the language of the Court as the case may be, and the High Court may authorise any Magistrate so empowered to try such offences summarily, to prepare the aforesaid record or judgment or both, by means of an officer which shall be appointed in this behalf by the Chief Judicial Magistrate of the relevant Court, and the record or judgment so prepared, which shall be signed by such Magistrate.

High Court Rules, Volume III Chapter 2: Summary Trials

Magistrates competent to try and the procedure to be adopted

Under the Delhi High Court Rules, the Magistrates shall be competent to try summary cases, and the procedure to be adopted in case of Summary Trials shall be followed.

The Summary trials can be held only by a District Magistrate or a Magistrate of the first class, which has been so empowered in that behalf, or a Bench of Magistrates which has been so empowered under either Section 260 or Section 261 of the Code, as the case may be.

Only the offences which have been specified in these sections may be tried by this procedure of the Code.

It must be noted that according to amendments that were made by Act 26 of 1955 in Section 260 of the Code to enlarge its scope, and taking the view of the amended definition of ‘warrant case’, it would not now be true to say that all summons cases can be tried summarily.

According to clause (a) of Section 260(1) of the Code, the offences which are not punishable with death, imprisonment for life or imprisonment for a term which shall the period of six months can be so tried.

Furthermore, in summary trials, the procedure to be followed at the time of hearing is that of summons case in the trial of summons cases, and of warrant-cases in the trial of warrant cases (Section 262), which shall be subject to the modifications made by Sections 263 and 264 of the Code as to the record required.

Sentence and judgment

Under the Delhi High Court Rules, no sentence of imprisonment exceeding three months may be passed on a conviction under the summary procedure prescribed in Chapter XXII of the Code. Where the sentence passed is not appealable (i.e., Section 413), the particulars required under Section 263 of the Code may be recorded.

In appealable cases, however, the Court shall record the substance of the evidence and also the particulars mentioned in Section 263 of the Code and shall, before passing sentence, also record judgment in the case (i.e., Section 264).

No other record shall be required in such instances. Particulars required under Section 263 of the Code shall include full information as to the nature of the offence that has been alleged and proved, the plea of the accused and his examination, if any, the finding and in case of a conviction, a brief statement of the reasons thereof and the sentence or other final order, as the case may be.

Evidence
In instances of summary trials in which the order of the Magistrate is final, no evidence need be recorded. But the Magistrate should enter the particulars that are mentioned in Section 263 of the Code.

If, however, a sentence has been passed which is appealable, the substance of the evidence, in addition to the particulars mentioned in Section 263, should be recorded as well.

Acquittal of accused in warrants cases

In dealing with the question which has been raised that whether an accused person, who has been tried summarily for a warrant offence, under Chapter XXII of the Code of Criminal Procedure, and one who has not been convicted, is to be shown in the statement as either ‘discharged’ or ‘acquitted’.

This question has been disposed of by the provisions laid down under Section 262 of the Code, which enacts that in instances of summary trials the procedure for warrant-cases shall be followed in respect of warrant-cases, with certain exceptions which shall concern only the manner of record.

Oral charge

Accordingly, the distinction between acquittal and a discharge, as shown in Sections 245 and 248 of the Code, holds good in all warrant-cases tried summarily, the only difference being that under the ordinary procedure of the Code, the charge must be prepared in writing.

Whereas, under the summary procedure, the said charge is to be made verbally. Also, a discharge of person in a summary trial shall no more bar the revival of prosecution for the same offence than it does in a case conducted under the rules of ordinary procedure.

Final order should show whether accused has been discharged or acquitted

The final order or judgment in warrant-cases tried summarily, when the accused has not convicted, should invariably show that whether the accused person has been discharged or acquitted, the test being whether, after hearing the evidence for the prosecution, the Court has called upon the prisoner to plead to a definite charge or not, and the accused in such cases has to be shown in the periodical statements of the court as either discharged or acquitted, according to the final order of the Magistrate in that particular case.

Summary trial of cases against Government Servants

In the trials of cases against Government servants, summary procedure should not as a rule, be adopted in such instances.

Registers for summary cases

Generally, summary trial cases are entered in the relevant registers only when the accused appears in Court, with the result being that a large number of such cases tend to escape the notice of Courts.

The duty of the court shall be that as soon as a summary case has been received in the relevant Court. When the said accused appears before the court, the case should then be entered in Register of summary cases (i.e., Form No. XVII), as advised by the High Court of Delhi.

Further, the Magistrates exercising summary powers should prepare a statement every month showing the actual number of summary cases received in the Court and the progress that has been made in the disposal of such cases.

A Summary of this statement should be given in the remarks at the close of each month so as to show at a glance the actual number of summary cases which were received, got disposed of, and are pending in the Court.^[2]

Case Laws

Rajesh Agarwal v. State & Anr.^[3]

In this case, the petitions arising out of the proceedings pending before the trial Courts under section 138 of Negotiable Instrument Act, were challenging the taking of cognizance of offence & issue of the said process. The Court held that “Summary trial Procedure must be followed for offences u/s 138”, and explained the procedure in detail.

The summary trial procedure to be followed for offences u/s 138 N.I. Act would thus be as under:

• Step I: On the day complaint is presented, if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint & documents and if commission of offence is made out, take cognizance & direct issuance of summons of accused, against whom case is made out.
• Step II: If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice u/s 251 Cr. P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under section 145(2) of N.I. Act for recalling a witness for cross examination on plea of defence.
• Step III: If there is an application u/s 145(2) of N.I. Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant.
• Step IV: To hear arguments of both sides.
• Step V: To pass order/judgment.

A similar view has been affirmed in the case of Indian Bank Assn. v. Union of India.^[4]

J.V. Baharuni v. State of Gujarat^[5]

Held:

The Court took the view that “in a case that can be tried summarily, court records evidence elaborately and in verbatim and gives defence full scope to cross-examine witnesses, such procedure adopted is indicative that it is not summary procedure. Before arriving at any conclusion with regard to nature of trial, there should be proper application of judicial mind and evidence on record must be thoroughly perused. Thus, when case in substance is not tried in summary way, though triable summarily, and is tried as regular summons case, successor Magistrate need not hear the case de novo and can act on evidence recorded by his predecessor to decide the case.”

In present matter, the complaints under Section 138 of Negotiable Instruments Act, 1881, prima facie, were tried as regular cases. Here, the Successor Magistrate acted upon evidence recorded by his predecessor and ordered acquittal of appellant-accused High Court without any enquiry as to whether case concerned was tried summarily or regularly, remanded case for de novo trial Matters remitted to High Court to make independent enquiry into manner of trial of each case to determine applicability of bar under S. 326(3).

It was held, that de novo trial is only for exceptional cases when the finding of acquittal is on a total misreading and perverse appreciation of evidence.

“Thus, we are of the considered opinion that the courts while dealing with the matters under the NI Act should keep in mind that the difference between summary and summons trial for the purpose of the NI Act is very subtle but has grave repercussions in case of mistaken identification of trial which is de novo trial in the light of Section 326(3) of the Code.

Thus, in summation, we are of the considered opinion that the exercise of remitting the matter to the trial court for de novo trial should be done only when the appellate court is satisfied after thorough scrutiny of records and then recording reason for the same that the trial is not summons trial but summary trial. The non-exhaustive list which may indicate the difference between both modes of trial is framing of charges, recording of statement under Section 313 of the Code, whether trial has been done in the manner prescribed under Sections 262-265 CrPC, how elaborately evidence has been adduced and taken on record, the length of trial, etc. In summary trial, the accused is summoned, his plea is recorded under Section 263(g) CrPC and finding thereof is given by the Magistrate under Section 263(h) CrPC of his examination.”

Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal^[6]

Held:

It was held that only a substance of evidence instead of entire evidence, is generally recorded in a summary trial, which a successor Magistrate is not in a position to appreciate properly. Hence, a successor Magistrate has to record afresh all the substance of evidence. In this particular case, the Summary trial was conducted for dishonour of cheque under S. 138, Negotiable Instruments Act, 1881.

The evidence that was recorded by predecessor Magistrate and conviction ordered by successor Magistrate, was held to be bad in law and therefore set aside. It was held that the Successor Magistrate ought to have recorded fresh evidence and thus, the matter was remanded for retrial in accordance with law.

It was further held that the exception to the general principle that a criminal case must be decided by Judge who recorded evidence, and that Ss. 326(1) and (2) embody such an exception. Under these provisions, a successor Judge can act on evidence which has been recorded by his predecessor.

This has been done to obviate necessity of trying ‘de novo’ part-heard cases, when a Judge is transferred or otherwise relinquishes his office, and a new Judge takes over.

It was also held that the consequences of failure to adhere to principle where exception carved in S. 326(1) are not to be attracted, and that the proceedings become void under S. 461, and they cannot be validated under S. 465.

Conclusion

In conclusion, the primary motive behind summary trial is to prevent unnecessary obstruction by a defendant who has no defence and where the said proceeding concludes in a timely manner. The nature of Summary hearings is such that it can be conducted in either Supreme Court, Civil City Courts or Small Business Courts, and it can also be argued in certain other courts as well, depending upon the nature of the offence and its jurisdiction.

However, it must be that the Supreme Court may, by notice in the Official Gazette, allow only a particular category of complaints to be heard. On the other hand, the High Court has prescribed the procedure under its own High Court Rules, as well as according to the procedure established under CrPC, which shall be following by the preceding lower courts accordingly.

References

• Summary Trials – Law Times Journal
• What is a summary trial? – Law Times Journal
• Summary Trial under the Code of Criminal Procedure, 1973 – iPleaders
• Summary Trials under CrPC | Chap XXI CrPC | Criminal Law Review (crlreview.in)
• CourtRuleFile Summary Trials.PDF (delhihighcourt.nic.in)
• Summary Trial Archives | SCC Blog (scconline.com)

1. Black’s Law Dictionary 9^th ed., p.1324 ↑
2. High Court Circular Letter No. 3003-Genl/XVIII-D- 20 (C) (1), dated March 9, 1954 ↑
3. Rajesh Agarwal v. State & Anr 2010 SCC OnLine Del 2511 : ILR (2010) 6 Del 610 : (2010) 171 DLT 51 : (2010) 3 MWN (Cri) DCC 13 (Del) : (2010) 94 AIC 431 : (2010) 3 CCR 433 : (2011) 2 CCC (SN) 504 ↑
4. Indian Bank Assn. v. Union of India, (2014) 5 SCC 590 ↑
5. J.V. Baharuni v. State of Gujarat (2014) 10 SCC 494 : (2015) 1 SCC (Cri) 1 : 2014 SCC OnLine SC 1029, Criminal Appeals No. 2221 of 2014 with Nos. 2222-23 of 2014, decided on October 16, 2014 ↑
6. Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal (2011) 9 SCC 638 : (2011) 4 SCC (Civ) 805 : (2011) 3 SCC (Cri) 788 : 2011 SCC OnLine SC 1184, CRA No. 1703 of 20117, decided on September 1, 2011 ↑