This article has been written by Karan Sharma pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).
The topic of discussion in this article comprises aspects of procedural laws, that is, the Code of Criminal Procedure, 1973, The Negotiable Instruments Act, 1881 and various types of trials.
There are a few things that we need to thoroughly understand before moving ahead in the article so that understanding it becomes easier. Those concepts are the following:
- Summary Trials;
- Summon Trials;
- The Negotiable Instruments Act, 1881.
Section 260 of the Code of Criminal Procedure states that any Chief Judicial Magistrate, any Metropolitan Magistrate any Magistrate of the first class specially empowered in this behalf by the High Court, may, if he thinks fit, try in a summary way, inter alia, offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years. But in the terms of The Negotiable Instruments Act, 1881, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees in a summary trial. In both cases, the Magistrates have the discretion to start the process of re-hearing if the magistrate has the desire to not try the case summarily.
Summon cases can be understood from the definition of a warrant case, which is defined as offences punishable by death, life imprisonment, or a sentence of more than two years in jail. So summons cases are those in which the maximum penalty is two years in prison.
It may well be claimed that summons matters are not severe in nature, thus they must be resolved quickly without having to sacrifice the rights to a fair trial. The procedure for dealing with such matters as set out in Sections 251 to 259 of the Criminal Procedure Code of 1973, and it is not as serious or formal as other trials.
The Negotiable Instruments Act, 1881
This act was introduced in the year 1881 to regulate the laws for the use of negotiable instruments like bills of exchange, hundi, cheques etc. It governs the legality of the negotiable instruments that are used to make payments by the people in exchange for the promised goods or services.
What led to the discussion of the topic : should magistrates record reasons before converting summary trial to summons trial?
The Supreme Court of India constituted a Division Bench which consisted of the former Chief Justice of India, respected S.A. Bobde and learned judge L. Nageswara Rao. The present topic of the discussion arose from the Special Leave Petition (Criminal) No. 5464 of 2016 pertains to dishonor of two cheques on 27.01.2005 for an amount of Rs.1,70,000/-. The mentioned case in the Special Leave Petition was pending for 16 years in the court. This led to the rising curiosity of the bench to find out the reason why there is an excessive burden and pending nature of the cases filed under Section 138 of the Negotiable Instruments Act, 1881.
The curiosity which has been mentioned above led the Supreme Court, asking the Registry to register a Suo Moto Writ Petition naming it “Expeditious Trial of Cases under Section 138 of Negotiable Instruments Act 1881”. The Court also appointed Mr. Sidharth Luthra, learned Senior Counsel and Mr. K. Parameshwar, learned Counsel, as Amici Curiae.
What were the findings of the ld. amicus curiae?
The Amici Curiae came up with their research and presented their findings before the Hon’ble Supreme Court of India and enlightened the bench with their knowledge of law.
The Amici Curiae firstly told the bench that there are two crore criminal cases pending in Indian courts out of which thirty–five lakh cases are cheque bouncing cases. This huge amount of pending cheque bouncing cases, that is, thirty – five lakh cases has not only made the process of justice slow but has also affected the disposal of other criminal cases. The Amici Curiae also stated that the rate at which the suits are being disposed off does not meet up or even remotely match up with the rate of speed at which the institution of cases takes place. It was also told that it is a very standard practice of the courts to delay the process of the cheque bouncing proceedings even after the addition of Section 143 in the Negotiable Instruments Act, 1881. The sole purpose of the mentioned provision is to give powers to the magistrate to try the cheque bouncing cases that have been filed under section 138 of the Negotiable Instruments Act, 1881, as a summary trial and end the proceedings in six months.
What issues did the findings of the ld. amici curiae reveal?
The findings of the Amici Curiae revealed different reasons and problems regarding the increased burden and pendency of the suits instituted under section 138 of the Negotiable Instruments Act, 1881, few of the reasons, among other, stated as the following:
- Issuing of the Summons: The Amici Curiae or may I say, friends of the court found out that the issuing of the summons plays a vital role in delaying the proceeding of the matter and increasing the pendency of the matters instituted under section 138 of the Negotiable Instruments Act, 1881. The issuing of summons leads to the stage of issuing bailable warrants against the accused if the accused is not present in the court. Even though it is a standard procedure of the court, but this step takes a long period of time, thus resulting in delaying the process of trial and in increasing the pendency of the suits instituted under section 138 of the Negotiable Instruments Act, 1881
- Section 202 of the Code of Criminal Procedure, 1973, Inquiry against the accused: The Amici Curiae also stated that the Magistrates postpone the process of issuance against the accused under the above-mentioned provision of the Code of Criminal Procedure, 1973 for the purpose of inquiry.
- Multiple Proceedings not allowed: The amici curiae also stated that section 219 of the provision allows trying for only three offences jointly if committed in twelve months by the accused. If the limitation of three offences is removed from the provision, then the cases can be disposed of more speedily.
- Mechanical conversion of summary trial to summons trial: Amici Curiae presented another reason for delay in the procedure of disposal of the cases and that is Mechanical conversion of summary trial to summons trial. They stated that the provision 262 to 265 of the Code of Criminal Procedure, 1973 andSection 143 Negotiable Instruments Act, 1881 gives the magistrates the power to convert the summary trial to summon trial if the Magistrates desires so but the only problem that persists is that the mechanical conversion of summary trial to summons trial is being done without giving any solid reasons.
Conclusion upon discussion by the Supreme Court on above mentioned issues
- When a complaint is received under Section 138 of the Negotiable Instruments Act, 1881, an investigation is performed to determine if there are adequate reasons to proceed against the accused, even if the accused resides beyond the geographical jurisdiction of the court.
- Evidence of witnesses on behalf of the complaint shall be authorized to be taken on affidavit in the conduct of an investigation under Section 202 of the Code. The Magistrate might limit the investigation to document inspection without insisting on witness examination in appropriate instances.
- The Supreme Court further said that the provisions shall be amended to allow for a single trial against a person for repeated offences under Section 138 of the Negotiable Instruments Act, 1881 committed during a 12-month period, despite the restriction in Section 219 of the Code of Criminal Procedure, 1973.
- The High Courts have been asked to give instructions to Magistrates to record reasons before transferring complaints under Section 138 of the Negotiable Instruments Act, 1881 from summary to summons trial.
- The Supreme Court did not talk about all the issues mentioned by the Amici Curiae as not all issues were of the legal capacity to be changed or dealt with.
Magistrates should record reasons before converting summary trial to summons trial: discussion
As talked above, the direction of the Supreme Court, which directs the magistrates to record reasons before converting a summary trial to summons trial does not only end up in fastening the process of justice and trial but also keeps the magistrates in check. According to me, the delay in the process of the disposal of the suit due to the Mechanical conversion of summary trial to summons trial is divided into 3 parts, including the solution by the Supreme Court.
- The Problem: The main problem that persisted was that of the Magistrates routinely converting the summary suits into summoning trial reasons without the reason not being stated by the Magistrates thus extending the procedure of the trial and providing slow justice.
- The Root of the problem: The root of the problem does not only consist of a mechanical conversion summary trial to summons trial, it also consists of a never-ending cycle of overburdened courts, long duration of time between two dates, the accused not being present and etc. The process gets monotonous and tiring for the judicial system as well.
- Solution: The direction of the Supreme Court to the High Courts was to give Magistrate instructions to record reasons before transferring complaints under Section 138 of the Negotiable Instruments Act, 1881 from summary to summons trial. This not only keeps the magistrates in check but also informs the higher courts in the hierarchy of the behaviour of the parties in regard to the instituted suit so that, if an appeal is filed, the higher courts shall not skip any detail or fail to appreciate any other factor while deciding the appeal.
After looking at the Suo Motu Writ Petition of the Supreme Court and the solution provided by it, with the help of the Amici Curiae, Mr. Sidharth Luthra, learned Senior Counsel and Mr. K. Parameshwar, learned Counsel, we can say that the Indian judiciary is actively taking steps to evolve itself to help the citizens of the country by saving their time and monotonous appearances on dates by making the judicial system collectively more aware, active and promoting the welfare for the general public. This step does not only help the general public but also helps the judicial system in getting rid of pending cases.
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