Procedure of Summary Trial in India.docx

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INTRODUCTION

A summary trial implies speedy disposal. A summary case is one which can be tried and

disposed of at once. Needless to say, the summary procedure is not intended for a contentious

and complicated case which merits a full and lengthy inquiry.Thus, the object of summary trial is to have a record which is sufficient for the purpose of

justice, and yet, not so long as to impede a speedy disposal of the case. In other words, a

summary trial is “summary” only in respect of the record of its proceedings, and not in

respect of the proceedings themselves, which should be complete and carefully conducted, as

in any other criminal case.

Under the old Code, in a summary trial, the summons procedure was to be followed in the

summons-cases and the warrant procedure in warrant-cases. However, the present Code has

now done away with this distinction, and the procedure has been simplified by providing that,

in a summary trial, all cases should be tried by the summons procedure, whether the case is a

summons-case or warrant-case.

'Summary trials' are designed to do away with detailed examinations and oral evidences

which lead to delays and put justice beyond the reach of the common man, besides worsening

the problem of pendency.

Summons cases may mandatorily attract a summary trial. If the magistrates opt for a detailed

trial, then they may have to give "cogent" reasons for their decision.

It has been recognised that 'warrants case' ought to be treated differently from 'summons case'

as the former has a punishment ranging up to death while that for the latter does not go

beyond two years. "What is the use of detailed examinations of witnesses etc? It is criminal

waste of court time," an official felt.1 Thus Summary trials are somewhat similar to fast track

proceeding where a case is resolved in one sitting. Meant for petty offenses, to reduce the

burden of court.

1http://articles.timesofindia.indiatimes.com/2006-11-17/delhi/27808314_1_compoundable-summons-offences



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SUMMARY TRIAL UNDER CODE OF CRIMINAL PROCEDURE

MAGISTRATES COMPETENT TO TRY AND THE PROCEDURE TO BE ADOPTED

1. Summary trials can be held only by a District Magistrate or a Magistrate of the first class

empowered in that behalf, or a Bench of Magistrates empowered under either section 260 or section 261 of the Code. Only offences specified in these sections may be tried by this

procedure. The amendments made by Act 26 of 1955 in Section 260 of the Code to enlarge

its scope may be noted. In 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) offences not punishable with death; imprisonment for life or imprisonment for

a term exceeding six months can be so tried. In summary trials the procedure to be followed

at the hearing is that of summons-case in the trial of summons cases and of warrant-case in

the trial of warrant cases (Section 262) subject to the modifications made by sections 263 and

264 of the Code as to the record required.

SENTENCE AND JUDGEMENT

2. No sentence of imprisonment exceeding three months may be passed on a conviction under

the summary procedure prescribed in Chapter XXII of the Code [sub-section (2) of section

262]. Where the sentence passed is not appealable (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 and

shall before passing sentence also record judgment in the case (section 2 64). No other record

is required. Particulars required under section 263 include full information as to the nature of

the offence alleged and proved, the plea of the accused and his examination, if any; the

finding and in case of conviction; a brief statement of the reasons therefore and the sentence

or other final order.

EVIDENCE

3. In all summary trials in which the order of the Magistrate is final; no evidence need be

recorded; but the Magistrate should enter the particulars mentioned in section 263 of the

Code in register No. XVII given in Part B-IV of Volume VI-B. Columns 7 to 14 of this

register should be filled in by the Magistrate himself. If, however, a sentence is passed which

is appealable; the substance of the evidence, in addition to the particulars mentioned in

Section 263, should be recorded.



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ACQUI TTAL OF ACCUSED I N WARRANT CASES

4. The question has been raised whether an accused person; tried summarily for warrant

offence; under Chapter XXII of Code of Criminal Procedure, and not convicted, is to be

shown in the statement as 'discharged' or 'acquitted'. This question is disposed of by the

provisions of section 262 of the Code; which enacts that; in summary trials; the procedure for

warrant-cases, shall be followed in respect of warrant-cases; with certain exceptions which

concern only the manner of record.

ORAL CHARGE

5. Accordingly, the distinction between an acquittal and a discharge, shown in sections 253

and 258 of the Code, holds good in all warrant-cases tried summarily; the only difference

being that under the ordinary procedure the charge must be prepared in writing; while under

the summary procedure it is made verbally. A discharge in a summary trial no more bars the

revival of prosecution for the same offence than it does in a case conducted under the rules of

ordinary procedure.

F INAL ORDER SHOULD SHOW WHETER ACCUSED HAS BEEN DI SCHARGED OR

ACQUITTED

6. The final order or judgment in warrant-cases tried summarily, when the accused is not

convicted; should invariably show 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

should be shown in the periodical statements as discharged or acquitted, according to the

final order of the magistrate.

SUMMARY TRIAL OF CASES AGAINST GOVERNMENT SERVANTS

7. In the trial of cases against Government servants, summary procedure should not, as a rule,

be adopted.

SENTENCE AND JUDGEMENT

8. It has come to the notice of the Honorable Judges that summary cases entered in the

relevant registers only when the accused appears in Court, with the result that a large number

of such cases escape the notice of Courts. It is of the utmost importance that as soon as a

summary case is received in Court, it should be entered in the Register No. 1 (Part B-IV of

Volume VI-B, High Court Rules and Orders). When the accused appears the case should then be entered in Register of summary cases (Form No. XVII). Magistrates exercising summary



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powers should prepare a statement every month showing the actual number of summary cases

received in the Court and the progress made in the disposal of such cases. A Summary of this

statement should be given in the remarks column of Register No. 1 at the close of each month

so as to show at a glance the actual number of summary cases received, disposed of and

pending in the Court. [High Court Circular letter No. 3003-Genl./XVIII-D-20 (C)(1), dated

the 19th March, 1964.]2

2

highcourtchd.gov.in/left_menu/highcourtruleandorders/vol.../chap2.



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THE LAW OF PROCEDURE CONCERNING SUMMARY TRIALS

Chapter XXII (comprising sections 260 to 265 is Of Summary Trials in the Code of Criminal

Procedure, 1898. Section 260 states the power of the Magistrates to try in a summary way

any of the offences mentioned in that section. Section 260 of the Code of Criminal Procedure,

1898 reads as under:

260. (Power to try summar il y). (1) Notwithstanding anything contained in this Code,-

(a) ***

(b) any Magistrate of the First class specially empowered in this behalf by the Provincial

Government, and

(c) any Bench of Magistrates invested with the powers of a Magistrate of the first class and

especially empowered in this behalf by the Provincial Government, may if he thinks fit, try in

a summary way all or any of the following offences:

(a) offences not punishable with death, transportation or imprison ment for a term exceeding

six months;

(b) offences relating to weights and measures under sections 264, 265 and 266 of the PakistanPenal Code;

(c) hurt under clause (a0 of section 377A of the same Code;

(d) theft under section 379, 380 and 381 of the same Code, where the value of the property

stolen does not exceed ten thousand rupees;

(e) dishonest misappropriation of property under section 403 of the same Code, where the

value of the property misappropriated does not exceed ten thousand rupees;

(f) receiving or retaining stolen property under section 411 of the same Code, where the value

of such property does not exceed ten thousand rupees;

(g) assisting in the concealment or disposal of stolen property under section 414 of the same

Code, where the value of such property does not exceed ten thousand rupees;

(h) mischief, under section 427 of the same Code;



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(i) house trespass, under section 448 and offences under section 451, 453, 454, 456 and 457

of the same Code;

(j) insult with intent to provoke a breach of the peace under section 504, and criminal

intimidation, under section 506 of the same Code;

(jj) offence of personation at an election under section 171-F of the same Code;

(k) abetment of any of the foregoing offences;

(l) an attempt to commit any of the foregoing offences, when such attempt is an offence;

(m) offences under section 20 of the Cattle Trespass Act, 1871;

From what has been stated above, it is clear that it is in the discretion of a Magistrate to try

any of the above offences in a summary manner. Whether a particular case is to be tried

summarily should be determined by the offence complained of and the testimony of the

Complainant.

As pointed out by the Allahabad High Court, if the case is a complicated one, it should not be

tried summarily.3 The Bombay High Court has observed that if the accused is deaf and dumb,

it would be convenient to try him summarily.4

It is also provided that the High Court may confer on any Magistrate who is vested with the

powers of a Second Class Magistrate, the power to try summarily, any offence which is

punishable only with fine, or with imprisonment upto six months, with or without fine, and

any abetment of or attempt to commit any such offence.

(2) When in the course of a summary trial it appears to the Magistrate or Bench that the case

is one which is of a character which renders undesirable that if it should be tried summarily,

the Magistrate of Bench shall recall any witness who may have been examined and proceedto re-hear the case in a manner provided by this Code.

Section 261.(Summary tr ial by magistrate of 2 nd

and 3 rd ) empowers the Provincial

Government on the recommendation of the High Court to confer on any Bench of

Magistrates invested with the power of a Magistrate of the second or third class,

power to try summarily all or any of the following offences-

3 Dina Nath, — 1913 35 All. 173.

4Deaf & Dumb Man, — 1906 B.L.R. 849



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(a) offences against the PPC section 277, 278, 279, 285, 286, 289, 290, 292, 293, 294,

337A(i) , 337L(2), 337H (2), 341, 352, 426, 447 and 504;

(b) offences against municipal Acts, and the conservancy clauses of Police Acts which are

punishable only with fine or with imprisonment for a term not exceeding one month with or

without fine;

(c) abetment of any of the foregoing offences;

(d) an attempt to commit any of the foregoing offences when such attempt is an offence.

I n Ram Lochan vs State 5 - 1978 , it was held that although trying a govt. servant summarily is

legal, it should not be done so because upon conviction, govt. servant may lose his job, which

is a serious loss.

Section 262. (Procedure for summary trial ) gives the procedure prescribed in chapter

XX. It has two sub-sections.

Subsection (1) says: In trials under this chapter, the procedure prescribed in chapter XX shall

be followed except as hereinafter mentioned.

Sub-section (2) prescribes the limit of punishment and says that no sentence of imprisonment

for term exceeding three months shall be passed in the case of any conviction under this

Chapter.

As seen above, the Magistrate cannot impose a sentence of imprisonment of any term

exceeding three months for any conviction under this Chapter. Therefore, any sentence that

exceeds this period would be illegal. If the Magistrate is of the opinion that a longer period of

imprisonment is necessary in the interest of justice, the trial should be held as in a warrant-

case or a summons-case, according to the nature of the offence.

It should be observed that there is no limit as to the amount of fine which the Magistrate can

impose in a summary trial.

Moreover, the above maximum limit of imprisonment refers only to the substantive sentence,

and does not cover an alternate sentence of imprisonment in default of payment of fine. Thus,

a Magistrate can impose a sentence of imprisonment in default of payment of fine in addition

5CriLJ 544.



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to the maximum sentence of three months’ imprisonment which he has imposed for the

offence.6

Section 26.3(Record in summary tr ials) lays down the minimum requirement of law

as to record in cases where there is no appeal. It states: In cases where no appeal lies,

the Magistrate or Bench of Magistrates need not record the evidence of the witnesses

or frame a formal charge; but he or they shall enter in such form as the Provincial

Government may direct the following particulars:

(a) the serial number;

(b) the date of the commission of offence;

(c) the date of the report or complaint;

(d) the name of the complainant (if any);

(e) the name parentage and residence of the accused;

(f) the offence complained of and the offence if any proved, and in cases coming under clause

(d), clause (e), clause (f) or clause (g) of subsection (1) of section 260, the value of the

property in respect of which the offence has been committed;

(g) the plea of the accused and his examination (if any);

(h) the finding, and in the case of a conviction, a brief statement of the reasons therefore;

(i) the sentence or other final order; and

(j) the date on which the proceedings terminated.

Section 264. (Judgement in case tri ed summar i ly) speaks of the record in appealable

cases and states that,-(1) In every case tried summarily by a Magistrate or Bench in

which an appeal lies, such Magistrate or bench shall record the substance of the

evidence and also the particulars mentioned in section 263, and shall before passing

any sentence record a judgment in the case.

Section 265. (Language of the record and judgement) has four sub-sections.

6 Asghar AH, — 1883 6 All. 61



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Sub-section (1) states that records made under section 263 and judgments recorded under

section 264 shall be written by the Presiding Officer, either in English or in the language of

the Court, or if the Court to which such presiding officer is immediately subordinate so

direct, in such officer's mother-tongue.

Sub-Section (2) empowers the Provincial Government to authorize any Bench of magistrates

empowered to try offences summarily to prepare the aforesaid record or Judgment by means

of an officer appointed in this behalf by the Court to which such bench is immediately

subordinate, and the record or judgment so prepared shall be signed by each member of such

Bench present taking part in the proceedings.

Sub-section (3) states that if no such authorization be given the record prepared by a member

of the Bench and signed as aforesaid shall be the proper record.

Sub-section (4) states that if the Bench differs in opinion, any dissentient member may write

a separate judgment.

An interesting case decided by the Madras High Court, a Magistrate convicted an accused

summarily of a Municipal offence, without issuing any process or making any record of the

proceeding, and without even dismounting from a pony on which he was riding. The Court

held that the record must have been pre pared after the close of the “trial” from memory or

from rough notes, and that the entire procedure was illegal.7

Appeal and Revision in Summary Tri als

No appeal lies if only a sentence of fine not exceeding 200/- is awarded. A revision

application would lie to the High Court in such a case.8

7 Erugadu, — 1891 15 Mad. 53

8

http://hanumant.com/CrPC-DifferencesShortNotes.html



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CONCLUSION

The committee, constituted by the Union Government under the chairmanship of Justice

V.S.Malimath, former Chief Justice of the Karnataka and Kerala high courts, in its report, has

expressed concern over the long delay in decision-making, particularly in trial courts.If only the summary procedure prescribed under Sections 262 to 264 of the Criminal

Procedure Code (Cr. P.C.) are exercised properly, the pace of justice will be quickened

considerably, the committee has said.

Criminal cases are divided into two categories, warrant cases relating to offences punishable

with death, imprisonment for term exceeding two years, and summons cases where the upper

limit of imprisonment that can be awarded is two years and/or fine. All summons cases, and a

few enumerated warrant cases can be tried summarily by all magistrates, including

metropolitan magistrates, and not all, but specially empowered judicial magistrates first class

(JMFCs).

At present, a large number of cases, in which the punishment is two years or less, are tried

and, if only the summary procedure prescribed under Sections 262 to 264 of the Cr. P.C. is

exercised properly, it will quicken the pace of justice considerably, according to the

committee. However, the committee says that the number of cases, which are at present tried

summarily, is quite small and the maximum punishment that can be given after a summary

trial is three months.

It has lamented that Section 260 (power to try summarily) and Section 355 (metropolitan

magistrate's judgment) of the Cr. P.C. are either unutilised or underutilised. Only those

magistrates who are duly empowered namely, the chief judicial magistrates and metropolitan

magistrates, can try the cases summarily. But most of the magistrates are not empowered to

do so. "This is among the many reasons why summary procedures are not fully utilised," the

committee has said. As a judge of the same status can deal with the case summarily when he

is posted as a metropolitan judge without any empowerment, there is no reason why such

empowerment is needed for other magistrates to deal with cases summarily under Section

262 (procedure for summary trial) of the Cr.P.C.

To speed up the process, the committee has expressed the view that all cases in which the

punishment is three years and below should be tried summarily and punishment, which can

be given, is increased to three years.



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The panel has said that it is in favour of the recommendation made by the Law Commission

in its 154th report for enhancement of the limit of sentence prescribed under Section 262 to

three years.

Suitable amendments should be also be made to see that offences punishable with

imprisonment lower than three years shall become summons case, which shall be tried

through the summary procedure laid down.

The committee has said that a ceiling of Rs. 200 fixed for the value of property under Section

262 is too low and it should be enhanced to Rs. 5,000 considering the declining value of the

rupee. No prejudice will be caused to the accused by the enhancement, it says.

The committee is of the view that a large number of cases, which do not involve serious

offences, can be disposed of expeditiously, and it has stressed the need for arranging training

to magistrates for following the summary procedure. The training should include mock trials

and writing of judgments in summary trials, it has said. The committee has expressed the

view that the definition of "petty offence" given in Section 206 of the Cr. P.C. should be

suitably modified.

It is necessary to enlarge the limit prescribed for fine in petty offences from the present Rs.

1,000 to Rs. 5,000. The summary trial procedure and procedure for trying petty cases should

be adopted with great advantage in dealing with offences under Special Local Laws, the

committee has felt.

One of the causes for delay even in the commencement of trial of a criminal case is the

serving of summons on the accused. Despite the procedure laid down for the purpose in the

Cr. P.C., the committee has noted that rules unfortunately have not been framed by many

State governments to enable summons to be served other than through police officers. Section

62 of the Cr. P.C. should be amended to provide for serving summons on accused through

registered post with acknowledgement due, and courier service should be adopted wherever

the facility is available.

If there is a fax facility it should also be used and any endorsement made by the postman that

the summons has been "refused" should be deemed sufficient and warrant can be issued.9

9http://www.hindu.com/2003/07/03/stories/2003070302060500.htm



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REFERENCES

1. Offences and Defences in Criminal Trial, Justice ® Dr. Munir Ahmad Mughal, Muneeb

Book House, Lahore, 2012;

2. Code of Criminal Procedure, 1898, Shaukat Mahmud and Nadeem Shaoukat Advocates, Lahore, 2010.

3. Wharton's Law Lexicon, Universal Law Company, New Delhi.

4. AIR

5. PLD

6. Cr. Law Journal.

WEBSITES

http://www.hindu.com/2003/07/03/stories/2003070302060500.htm

http://www.preservearticles.com/2012032929248/short-essay-on-summary-trials.html

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followed-for-offences-us-138-ni-act-html

http://law.chdfirms.com/criminal_procedure_code/chapter_21.php

http://www.lawyersclubindia.com/forum/Summary-Trial-5630.asp#.UhrQEJwhPtg

http://articles.timesofindia.indiatimes.com/2006-11-

17/delhi/27808314_1_compoundable-summons-offences

http://www.helplinelaw.com/docs/CODE%20OF%20CRIMINAL%20PROCEDURE,

%201973/CHAPTER%20XXI%20SUMMARY%20TRIALS

http://bdknowledgeoflaw.blogspot.in/2011/11/code-of-criminal-procedure-1898-

of.html

http://hanumant.com/CrPC-Unit2-Summons.html

http://hanumant.com/CrPC-DifferencesShortNotes.html

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Procedure of Summary Trial in India.docx