 Good evening friends. As we had told on the earlier occasions, this has been a passion towards sharing knowledge can be seen on the social media like anything. And we are all eagerly waiting for the book which he's writing and we are quite set to send that that book will be not only hit, it will be a mega hit. Or we can say it will be a blockbuster for the legal knowledge as such and even the common persons can understand that. That's the way he illustrates things. You will ask at the end of the session what type of things can people look upon in that book. Today's session is also quite fascinating for the purposes of the lawyers and common man. That when does the trial start in a summons case? For today's topic, we will not discuss the warrants case. Some brief difference between the summons case and warrant case will ask sir to explain. So it's not one of the parts of the slave bus if we ask typically because four questions have been given to me, which have to be read out. So we will take one indulgence, the extra fifth question difference between a summons case and a warrant case. And as we all know, Justice Biram Kumar is not only an erudite speaker, but also person with immense knowledge and the way he unblocks the blocks, that is the most fascinating part. And Justice Biram Kumar is a former judge of Kerala High Court and his passion to take legal knowledge started when he was in the director judicial academy. That was to the next level. And thereafter, because of the COVID, we all got connected. I do not know that what positives others have learned, but at least we have been able to do persons and resources like this is Biram Kumar. His knowledge has gone viral in the social media. And we can also understand that Justice Ramkumar's today health is slightly down, but they say that he can be down, but he cannot be out. He will continue to share his knowledge and reminded of Mr. Anil Kumbley when he was injured, he came back and played an innings, which is remembered for all times to come. What do you say? Thank you. Thank you, Mr. Vikas. Good evening friends. You can read the first question. What do you mean by a summons case, sir? Summons case, very often we come across the expression summons case, warrant case, etc. What exactly is meant by a summons case? Now, going by section 2 clause WCRPC, a summons case means a case relating to an offense not being a warrant case. You are not taken anywhere. Summons case is not a warrant case. That is what the CRPC says section 2W. So, you necessarily, you have to go and find out what exactly is a warrant case. One has to find out what exactly is a warrant case from section 2 clause X of section 2 CRPC, which means a warrant case is a case relating to an offense punishable with death, imprisonment for life or imprisonment for a term exceeding 2 years. So, if the offense is punishable with death, imprisonment for life or imprisonment for a term, a case. So, summons case is a case which is not a warrant case. So, summons case can ordinarily be a case where imprisonment is the extent of imprisonment can be up to 2 years and below. In imprisonment can be awarded up to 2 years and below. Above 2 years means warrant case. This is the conjoined effect of reading section 2W index of section of CRPC. Yes. Yes. Sir, the next question which normally will come in the mind of anyone is, when does the trial start in a summons case? This is a very, very interesting question. Courts have generally taken the view that trial in a summons case starts as soon as the accused in response to the process issued against him either appears or is produced before the magistrate and the substance of accusation is stated to him by the magistrate. Under section 251 CRPC, the substance of accusation as soon as the accused appears or is brought before the magistrate, magistrate complies with section 207 or 208 as the case may be. The prosecution records will have to be given to him, copies of the prosecution records. So, as soon as the prosecution records copies are given to him, the magistrate will read the substance of accusation. That is the particulars of the offense will have to be read over to the accused and explained to him in the vernacular language or in the language known to the accused. This is what is called that the courts have taken to view that as soon as the accused appears and the substance of accusation is stated to him by the magistrate, trial has started. This is the general view taken. In fact, way back in 1980s Kerala, this is the Kerala decision. Shantamma Rathamani Amma versus Kunjupillai, 1980 KLT 393, a decision rendered by Justice SK Kathar, who was a very well-versed judge in criminal law. The corresponding citation is 1981 criminal law journal 247, 1981 criminal law journal 247. It was taken, it was held that as soon as the accused appears and the substance of accusation is read over to him, trial has started. The reading of substance of accusation or particulars of offense is done by the magistrate in exercise of the power under section 251 CRPC. Again in Para 16 of Subramaniam Sethuraman versus Tito Maharashtra. Here 2004 Supreme Court 4711, three judges. Sandosh Agade, the author of the judgment, same view was taken. Again in SV Enterprises versus Rajasekar and Nair. 2006, three KLT 930, a judgment rendered by Justice M. Shashidar and Nambia. Same view has been taken in that ruling also. But I would hasten to add that the trial in the real sense of the term cannot start merely on the stating of the substance of accusation to the accused under section 251 CRPC. This is because the accused may voluntarily plead guilty, in which case there is no trial. He may voluntarily plead guilty under section 252 CRPC. So no trial in that case. So even when the accused pleads guilty, voluntarily pleads guilty, section 252 CRPC does not mandate that the accused should be convicted on his plea of guilt. The magistrate can still in his discretion call upon the, instead of convicting the accused, call upon the prosecution to prove its case. Therefore, according to me, trial in a summons case can really start when the accused either pleads not guilty or when even after he pleaded guilty, the magistrate in his discretion has not convicted the accused. Thereupon the magistrate can proceed and take all evidence as may be produced by the prosecution under section 254 CRPC. So I would respectfully add, of course, nothing wrong in saying that trial starts when the particulars of the offence are read over to the accused. Or trial starts when the substance of accusation is read over to the accused. But then, supposing he pleads guilty, voluntarily pleads guilty, there is no trial. So the trial can really start when after reading this particulars of the offence, he pleads not guilty. Or even after he pleads guilty, the magistrate in his discretion does not convict him but calls upon the prosecution to prove his case. In both these situations, then only the trial can start in a summons case. Yes, you may read question number 3. Yes, sir. Can the magistrate after the commencement of the trial, instead of completing the trial by either convicting the accused or acquitting him, brought the proceedings against him midway? Yes. This was a controversial area. In fact, the decision rendered by the Kerala High Court was overruled by a two-judge Benjavati Supreme Court in KM Matthew. Of course, I will refer to that. Now, that decision said that in the absence of any prohibition in the CRPC, nothing wrong if the magistrate after the commencement of trial drops the proceedings against the accused. Now, this KM Matthew citation, I will give you the KM Matthew versus the State of Kerala, a year 1992 Supreme Court double 206, a year 1992 Supreme Court double 206. The judges were Jagannatha Shetty, who was the author of the Shetty Commission, whereby judicial officers in the whole country were given a lot of benefits, a lot of purchases. Just as Jagannatha Shetty and Yogeshwara Dayal, Jagannatha Shetty being the author of the judgment. Now, here, in fact, it was after reversing the judgment of the single judge of the Kerala High Court, Justice S. Patmanabhan, that the Supreme Court held that, in the absence of any prohibition in the CRPC, nothing wrong in the magistrate dropping the proceedings after the appearance of the accused. That was the view taken. In fact, after this view, what happened was the magistrates all over the country, throughout the length and breadth of the country, used to drop the proceedings or discharge the accused for one reason or the other, following KM Matthew. And it took nearly 12 years for the Supreme Court to realize its mistake. KM Matthew was overruled by a three-judge bench in Adal Prasad versus Luplal Jindal. Citation is A.R. 2004 Supreme Court, 4674. A.R. 2007 Supreme Court, 4674, three judges, the author of the judgment being Justice Sandosh Hegde. The other judges are Justice S.B. Sinha and A.K. Mathur. In fact, this was reiterated by another three-judge bench, Subramaniam Sethiraman versus Taito Maharastra. A.R. 2004 Supreme Court, 4711. A.R. 2004 Supreme Court, 4711. Again, judgment rendered by the same judge, Justice Sandosh Hegde. Their lawsuit said that, you know, KM Matthew cannot be upheld because the, once the substance of accusation have been read over to the accused, once the process has been issued to the accused, and the accused has appeared, and the substance of accusation have been read over to the accused, there's no provision in the CRPC to recall the process issued, and to allow the accused to come to the pre-process stage and plead for a termination of the proceeding, premature termination of the proceeding. No, it will amount to review. If such a, if such a view is taken, it will amount to review of the earlier, of the order issuing process, of the order of the order reading the substance of accusation, etc. And no, there's no power of review in the CRPC for a criminal court, unlike in the case of a civil court. Civil court, there is a power of review, whereas CRPC, there is no power of review in the, for the magistrate. There is a view taken in Azalat Prasad case. So after 12 years of K. Matthew, it was overruled by the 3D bench, virtually resurrecting the view of justice as Patminavan of the Kerala Icon. May I read question number four? Immediately after his appearance in a summons trial case, the accused filed an application requesting the magistrate to drop the proceeding since the ingredients of the alleged offence were absent in the substance of the accusation proposed to be stated. Even though the magistrate was convinced that the ingredients of the offence were absent, he dismissed the application filed by the accused by relying on the dictum, and Azalat Prasad v. Rupal Jental, AIA 2004, Supreme Court 4674. Will the accused be able to successfully challenge the order of the magistrate? See, summons trial case, warrant was issued to the accused. The accused entered appearance. Then the copies of prosecution records were furnished to him. He is appearing through a council. There is a council appearing for him. The council raised a condention that please terminate the proceedings against my client because the materials produced furnished to me do not make out any offence at all. The ingredients of the offence are absent, totally absent. In such a case, why should the accused suffer the trauma of a trial? Why should he suffer the ordeal of a trial? So please drop the proceedings. The magistrate said nothing doing. I am sorry, Azalat Prasad v. Rupal Jental prohibits me from dropping the proceedings. That is the view of the magistrate. The question is whether the magistrate was right or wrong. In fact, the magistrate was wrong because what was laid down in Azalat Prasad and what was laid down in Azalat Prasad was that after the commencement of trial, when does the trial come in? With the rating of the substance of accusation. Now after the commencement of trial, the case should go on and the trial should go on and it can end only in a conviction or an acquittal. Now the question here is whether trial has started. After the appearance of the accused, the council appearing for the accused was sharp enough to notice that the materials sought to be read over to him do not contain the ingredients of the offence. No offence is made out. That is why he made a submission to the magistrate. Please don't read the substance of accusation to the accused. Please drop the proceedings so that the accused need not undergo the ordeal of trial. This was not exceeded by the magistrate who thought that he was bound by Azalat Prasad. Now this is a via media, in fact a very tightrope walking done by the Kerala High Court in two decisions of the Kerala High Court. One by the Sambal Self. In fact you may, there is one decision of the Supreme Court that is Sebi versus Gaurav Vashnev. Gaurav Vashnev 2016, Volume 14, SEC 430 where Justice Kehar has, speaking for the bench, has observed that material facts constituting the offence for which an accused is being charged must mandatorily be put to the accused. Material facts constituting the offence would mandatorily be put to the accused. And a lack of material facts which are vital to establish the ingredients of the offence cannot be viewed as a procedural omission. The above requirement is not a procedural omission but it is a substantive requirement. Therefore if the material facts are not there in the substance of accusation to be read over to the accused that is not a proper compliance of Section 251, CRPC. So it was noticing that the council raised that please drop the proceedings. The ministry was unwilling. But this is a case where the trial is yet to start. This is a case where the substantive accusation is yet to be read over to the accused. Therefore the bar under Adalat Prasad and Subramaniam Sethuraman may not apply here because the trial has not started. The bar will apply only if the trial has started by the magistrate reading out these particulars of the offence to the accused. Before reading out the particulars of the offence, the council very vigilantly raised a point. See the materials do not make out an offence. So please don't start the trial. The magistrate found that he was of the view that he was bound by Adalat Prasad. The magistrate was wrong. In fact, the Kerala High Court in there are two decisions. One is by Anand Tawail versus Fuddin Specter. 2010 Vol. 3 KLT 449. 2010 Vol. 3 KLT 49. That's a decision rendered by the humble selves where the high court held that. Then the trial is yet to commence. The accused will be within his right to plead for a discharge or a rally. Technically it is not a discharge in a summons game. The accused can say that the proceedings against him may be dropped because there is nothing to be read over to him. The ingredients of the offence are not made out. So nothing to be read over to him. So the only thing is after the appearance of the accused and before the commencement of trial, this has to be done. So the council has to be very vigilant. The other day I referred to the Latin maxim. Vigilante bus at Normandy bus, Juras of Veen. The law helps only those who are vigilant and does not help those who report their rights. Here is a case where the council was very vigilant. And therefore before the commencement of trial, he raised this point. And the magistrate, if the magistrate had cared to prove the records he would have been convinced that the, in fact, my state is convinced there. My state was really convinced that there is no, nothing made out against the accused. But he's wrongly found himself bound by Adhaal Prasad and rejected the application. So the accused have to go to the high court or the session judge to meddle in his grievances. In a, in a, in another case, police charge sheeted case, police charge sheeted someone's case. Also yet another Leonard judge justice Basant of the Kerala High Court in Dr. Kamala Rajaram versus D.Y.S.B. 2006 criminal law journal 1447 corresponding to 2005-03 KLT 617. It was held that the magistrate can either drop the proceedings in exercise of his power under section 251. But since it is a police charge in someone's case, he can also terminate the proceedings under section 258. If the principal witness has been examined, it will amount to a acquittal. If the principal witness has not been examined, it will be a discharge, technically a discharge. Therefore, 258 can be pressed into service by the magistrate. These are the two rulings according to me, to my knowledge, which have taken a wire media. Before the commencement of trial, if the accused is able to make out a case that there's no offense made out in the, in the particular offense, the case can be terminated without the commencement of trial. The accused need not undergo the or, for my conclusion is that in all cases where there is want of sufficient allegation or incriminating material, making out the offense in a someone's case, instituter either on a private complaint or on a police report, if the counsel appearing for the accused is vigilant enough or sharp enough to notice the lack of material, he can plead for a, for dropping the proceedings so that the accused need not undergo the trauma of a trial. With that, we conclude today's webinar. Thank you. You are not audible. You are not audible. I'm not transmuting myself. So I am also controlled by the computer only. Yes. What is the fundamental difference between a someone's and a summary trial in terms of taking evidence? Summary trial, it is a substance of evidence, the substance of evidence need to be recorded. It is a very simple procedure in summary trial. In a particular case, the accused can even plead guilty through post. He need not even engage a counsel. So we are, procedure is someone's procedure only. 250 instead of 250, this is 260. The procedure is same, but the long drawn out procedure of trial, etc, he need not be complied with in his summary. Proceeding the summary in nature. We will ask, this is Ramakrishnan to share his insights. Is it not necessary for a magistrate before reading out the particulars of funds to make out his mind as to whether any ingredients are sufficient for the purpose of reading out itself? How many magistrates do that? It is done as an empty formality. Not because it is an issue. Once it is read over automatically, the accused has no option to say whether the charges are not. He can only plead or not plead guilty. Yes. Is it not better for the magistrate to find out as to... Apply his mind. Yes. It is always, it should be. The magistrate should always apply, but the docket before them, the docket explosion, its pendency of cases before them is so prohibitive that they will find time to apply their mind even. No, that was the case. I think it was one of the decisions of the Kerala High Court where the Kerala High Court itself, even if you plead guilty, appeal can be filed against it because normally when the case is there, it is not there. He cannot file an appeal. He cannot challenge the conviction. He can only challenge the sentence. Under section... I think it is section 375. 375 also. 375. Let me check. Is it not section 375? No, no appeal can be filed except number 272. 272 is the appeal provision. I think there comes... 375. Interpreting that section, 376. No appeal in petty cases. 375, no appeal instead of... 375. No appeal if the accused pleases guilty except on the question of sentence. Their Justice Subramanian Poti of the Kerala High Court had taken the view that even if in a case where he has pleaded guilty, if there was nothing to plead guilty, he can even question the conviction. Because there... it was a ritualistic formality done, undergone by the magistrate as well as by the accused. Without knowing what exactly is the material, he simply pleaded guilty. But actually there was no incriminating material against him. So the Kerala High Court interpreting section 375 CRPC held that. Notwithstanding his plea of guilt, he can challenge the conviction also because there was nothing to be convicted. There was no material to plead guilty. Because the ingredients of the offense have not been made out of it. Even he is admitting the facts. The commission of offense. It may not amount to commission of offense. I think it is 1978 KLT by Justice Subramanian Poti. Very, very shrewd and intelligent judge. No, really it's an area where always there will be doubt. Whether the charge will out of the frame, etc., etc. It's nice to hear Justice Ramakumar always. Thank you. I thought that let us have a flurry of knowledge from SKP. Now this was a very inodate class. I cannot add anything. No. But just for the purpose of learning myself, as of course Justice Ramakumar has put in, the world has not been defined in the CRPC. Maybe rather purposefully. But half late in the ruling by Justice Sungresh, Satyendra Punga Anthony was a CBI. He was a businessman, which is supporting AIR 2022 at page double three eight six. Justice Sungresh goes on to hold that the world trial, even though it's not explained or defined under the CRPC by way of a judicial interpretation and extended meaning has to be given to the world trial even for the purpose of enlarging that accused on bail at the stage of investigation. Now I don't know whether now whatever is said by the Supreme Court, of course it's in orderly. And of course as Justice Ramakumar has put in, the trial of someone's case it is dealt with in chapter 20 starting from sections 251 and ending at 259. And as we all know that under the summons case, it is not necessary to claim a charge in writing. Because taping the substance of the offense to the accused is enough under 251. Now this is a grey area which has created confusion. Now Justice Ramakumar has both cited K.M. Matthew the two judgments which was overruled in Adarat Prasad, the three judgments in 2004. And within a month thereafter another three judgments now the first three judgments was Justice Santoshakya, Justice Esmi Sinha and Justice A.K. Mathur. Whereas in the next three judgments the solitary substitution is that of Justice A.K. Madhuri, Tarun Chakram, Justice Tarun Now Justice Santoshakya and Justice Esmi Sinha who are there in the last three judgments they were the parties to this three judgments. That is, I am talking about Subramanian Sivaram. Now Ramakumar sir, I just have one doubt because K.M. Matthew was a case, if we read closely K.M. Matthew was a case after issuance of summons on a company after entering the appearance accused he pleaded not guilty. Now before evidence was recorded he request the ministry to draw the proceedings the ministry the ministry brought the proceedings the revision went on to the Kerala High Court that was allowed against with the accused practitioners of Supreme Court and the Supreme Court held that if the ministry is satisfied then of course the ministry can draw the proceedings this was K.M. Matthew Now 12 years thereafter comes Adalat Prasad Now if we closely read Adalat Prasad the complaint was filed against accused optimizing taken someone's issue accused then moved the Delhi High Court in the case against all of issuance of process which was allowed then in the revision it was remanded for fresh consideration Now of course one way to the magistrate we called the summons which again was telling to go to the High Court on the ground that the magistrate had absolutely yet no jurisdiction to recall the summons Supreme Court of course K.M. Matthew is not a good guy and K.V.C. what the Supreme Court says Supreme Court says that the remanding in such a case lies only in 482 CRP Now K.V.C. the Supreme Court proceeded on the basis that Adalat Prasad was a summons case but maybe Adalat Prasad was not a summons case it was a viral case which was covered under Chapter 90 and please see the Supreme Court in the judgment has made it clear that it was not necessary to go into the post whether a summoning order amounts to an interim order or not then of course comes the third judgment Supreme Court said that the summons in the complaint that was challenged by the accused company the company was an accused company challenges the Supreme Court that the Supreme Court had taken cognisance of the summons because of it defective statutory notice which was issued and since it was in discharge application was rejected second application for discharge was filed and please see that was allowed for all K.M.A taken in revision before the session 2 allowed K.V.C. for the Supreme Court after 10 days first application filed by the executive director of the accused company on the very same grounds that was taken in the first application which was allowed by the magistrate to read in the statutory notice which was issued prior to filing of the complaint that was not in accordance with law again why even K.M.A things were done that was K.M.A penetrating its earlier view and the Supreme Court was approached and the Supreme Court penetrates adalaprasad empathically holding that the sole remedy is to invoke section 480 to CRS now the Supreme Court said so for the reasoning that it was a challenge to an order in an interoperatory stage kindly see the Supreme Court goes into a pointy that he shows a challenge made in an interoperatory stage in my limited knowledge I would see that this was a wrong proposition now even prior to analaprasad it should be known in Supreme Court the Supreme Court in a brief time of precedence considered the maintenance of revision besides just one case or one way I will just say K.K. Patel v. Sita Gujarat which is A.R. 2000 Supreme Court W346 which held that in deciding whether an order which is challenged is interoperatory or not when it was created in 97 the sole test it is not whether the order was passed would be Indian states the three semesters for the Supreme Court came was whether according to the objections which would have been linked to a party and after little time of time whether that would result in culmination now the principle was made for analap in 1977 not even in my 1978 how this principle is so powerful we see Shukla we see Shukla exactly, 80 Supreme Court that's it then how great we can see that is the 2009 decision 2009 to SEC 370 which held that issuance of summons is not an interoperatory order within the meaning of this so revision is perfectly mediable not really forwarding to ascending the Adalya Prasad as I already said the supreme court in Adalya Prasad goes on to say it is not necessary for this court to go into the question whether the order which issuance that announced an interoperatory order Adalya Prasad did not even decide that issue I am sorry another decision comes in during 2002 which is Nishankumar a year 2020 supreme court 1747 2 judgements decision by Justice Sarasivam and the second judge of the reclamation which went as an absolutely divergent view as it is both these 3 judges which are saying that it is inherent in section 251 CRP so inherent to what extent that when an accused tried to see the difference closer to his summons then the violent duty of the what the violent duty as Justice Jankumar has put in in Anubhav Vail as well as in the Kamna Rajan 2005 magistrate he has to carefully go through the allegations they rival in the police support on the company and then consider to report him to come to a conclusion whether or not commission of offense is disclosed and if only the answer is in affirmation he should explain the substance of the accusation whether you are pleading guilty or otherwise anyways he is bound to permeate the proceeding but kindly see Bhushan Kumar use of the word this exception for Bhushan Kumar since it is absolutely correct because if there is nothing against the accused but Bhushan Kumar says if it is an affirmation then I will say state the substance of the accusation otherwise Bhushan Kumar gives you the option to discharge the accused in section 2, 29, 0 pieces there is both of them and the power of their side and that can be understood on the police work may be the principle is what may be one of the learned judges we don't know and so one more thing I would say not what capable said was and what Adarya Prasad and Subramanian said was disagreeing was may be this would amount to a review under 362 Bhushan Kumar we see that the power to incur because suppose a court has done here it is the accusations actually the accusations were wrong or inherently improper but nothing could be spread out it was a right hander the court then applying the maxim act as theory then normally wouldn't the court have a power to recall the judgment because I had made by hands upon a decision of the Supreme Court in 1995 1999 Indian man was a Supreme Court where on the Supreme Court after recording exhaustive news to the Indian judgment like large numbers of states so people were about to say whether it's a civil court or a criminal court most courts do have the inherent power to recall the judgment that was a case of fraud still sir applying this particular principle act as theory in Eminem drama it was done here wrong it was not that particular court got the particular power it was to the extent of doing the undoing the fraud there was no sufficient inherent power should be given as in the case of the as in the case of the civil court section 151 CPC why reserve it to the I court alone why can't the why can't the magistrate rectify take rectify a wrong step taken rectify a mistake committed by him like as in the case of the civil court inherent power should not be confined to the I court alone and many of the 482 petitions can be avoided because justice can be done at the level of the magistrate himself but unfortunately that is not the and the observation that 482 is the only remedy is also not correct 397 is also not correct 397 nice 397 would lie right with 401 will lie but see unfortunately three of us think of Supreme Court once but twice diversion this is what is happening and we have I think a number one in our constitution after confusions that was an absolute thank you thank you we are very dedicated to justice for sharing the knowledge thank you everyone stay safe and also be tuned with us on our social media for the further updates of webinars like speakers of immense knowledge like this is Ramakrishna thank you once again