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  • Shubhangi Jain

To discharge or to not discharge, under Summary Trials, particularly under Section 138 NI Act

Question of law:


Can a discharge application be filed in a summons trial case instituted upon a complaint in general, particularly, under Section 138 of the NI Act, and if so, where does the power flow from in the statute?



The Statute


As per Section 143(1) of the NI Act, a complaint under Section 138 of the NI Act is treated as either a summary triable case or as a summons case. 


Unlike a warrants case where the power of the Magistrate to discharge an accused flows from Section 239, in the case of a summons trial, there is no such provision. Although, under Section 258 the Magistrate does have the power to stop proceedings in certain cases instituted otherwise than on complaint. Through literal interpretation, one can conclude that a right to discharge in case of a summons case instituted on complaint does not exist. 



The Jurisprudence


The Indian Courts in the face of this conundrum have dealt with this issue in multiple cases but conflicting approaches of the Court have created confusion. While some courts have taken the route of Literal Interpretation[2], others have taken a more liberal approach[3] and allowed some relief to the accused. 



The Hon’ble Supreme Court, taking a literal approach in the case of Subramanium Sethuraman v. State of Maharashtra and Ors[4], held that the accused person doesn't have any right to get discharged once the process is issued against him under section 204 of the Code. The only remedy which the accused enjoys is to challenge the order of issuance of process by filing the petition under section 482 and not by way of an application seeking the discharge which is not given under the Code.



The Ld. High Court of Delhi, which had taken a liberal approach earlier[5], has now in the case of Court on its Own Motion v. State, answered the aforementioned legal questions with the assistance of the Ld. Amicus Curiae, and stated that:


"The Court of a Magistrate does not have the power to discharge the accused upon his appearance in Court in a summons trial case based upon a complaint in general, and particularly in a case under Section 138 of the N.I. Act, once cognizance has already been taken and process issued under Section 204 Cr.P.C."



Will the same principle apply under THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023?


The legislature has not provided any relief to an accused under Summons trial as Section 258 of Cr. P.C. which is now Section 281 of the BNSS, 2023 reads the same. The Legislature has missed a golden opportunity to ensure that the principle of Audi alteram partem is followed at the stage of framing notice. 



[1] CRL.REF. 4/2019


[2] Adalat Prasad vs. Roopal Jindal & Ors, (2004) 7 SCC 338


[3] K.M. Mathew v. State of Kerala and Ors, AIR 1992 SC 2206


[4] (2004) 13 SCC 324


[5] Arvind Kejriwal and Ors. Vs. Amit Sibal and Ors., (212) 2014 DLT 489

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