Dr. B.R.

Ambedkar National Law University,

Rai, Haryana

Criminal Law-II Assignment

Comparative Analysis between Summon and
Warrant

Submitted to:

Prof. Sandeep Sharma

Asst Prof. Law, DBRANLU

Submitted by:

Sachin Yadav
Section B
Enrollment no. 1901082

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INTRODUCTION
The Code of Criminal Procedure 1973 (in short Cr.P.C.) is a procedural law providing the
mechanism in which manner the criminal trial is to be conducted on the basis of substantive
criminal law i.e. I.P.C. and other criminal statute. The primary object of the criminal justice
system is to ensure that the trial must be fair. The Presiding Officer is supposed to treat the
accused innocent till charge is proved against him but at the same time the guilty person should
not be escaped from the punishment.

The word “trial” is not defined anywhere in the Criminal Procedure Code, however, it means an
commonly understood the stage of trial began after framing the charge and end with the
conviction or acquittal. The criminal procedure for judicial adjudications is divided in 37 chapter
and classified in two schedules (i) the offences classified under I.P.C. and (ii) the offences
classified other than I.P.C. The nature of trial are divided on the basis of seriousness of offences,
its gravity and jurisdiction and on the basis of the gravity, seriousness of the offences the
substantive law i.e. I.P.C. is divided into 37 parts by granting separate nomenclature particularly
the nature of offences like the offence against State, human body, property, public tranquility,
documents, marriage etc.

TRIAL PROCEDURE UNDER

THE PRESENT INDIAN SYSTEM

Under the Indian criminal procedure it is obligatory that evidence for the prosecution and
defence should be taken in the presence of the accused. A Trial is vitiated by failure to examine
the witnesses in the presence of the accused. 1If a fair trial is the main object of the criminal
procedure, any threat to the continuance of a fair trial must be immediately arrested. If an
accused person by his own conduct puts the fair trial into jeopardy it would be the primary and
paramount duty of criminal courts to ensure that the risk to the fair trial is removed and criminal
courts are allowed to proceed with the trial smoothly and without any interruption or
obstruction?2 The idea of a fair criminal trial has been accepted as a universal human

1 8.Singh V. State of Orissa, 1990 Cr LJ 397 (ori).

2 Hassain (I) V. State AIR 1958 S.C. 376; State V Anantha Singh 1972 Cr. I LJ.

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rights.3Thus, in the common law model of Indian Criminal trial, fair trial is not only adopted but
also worshipped.

THE ACCUSATORIAL TRIAL PROCEDURE

It is a cornerstone of adversary system that an accused is presumed innocent unless and until
proved guilty beyond reasonable doubt. The State must establish guilt by evidence independently
and freely secured and may not by coercion prove its charge against an accused out of his own
mouth. A common law trial is and always should be an adversary proceeding. Thus, the
presumption of the innocence of the accused is transformed into court room procedure in the
common law adversary system.

THE PRESUMPTION OF INNOCENCE

One of the cardinal principles which should always be kept in our system of administration of
justice in criminal cases is that a person arraigned as an accused is presumed to be innocent
unless and until proved otherwise. Another golden thread which runs through the web of
administration of justice in criminal cases is that if two views are possible on the evidence
adduced in the case- one pointing to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused is to be accepted.(Vide Kaliram v. The State of H.P.-
AIR 1973 SC 2773, Sheo Nandan Paswan v.State of Bihar- AIR 1983 SC 194- Nishar Ali v.
State of U.P.- AIR 1957 SC 366).Even in an appeal against acquittal, the presumption of
innocence in favour of the accused is not weakened and in considering an appeal against
acquittal, the High Court has to keep this presumption in mind. (S.A.A. Biyabani v. State of
Madras- AIR 1954SC645, Ram Jog v. State of U.P.-AIR 1974 SC 606; Rajendra Rai v. State of
Bihar –AIR 1974 SC
2145, Autar Singh v. State of Punjab- AIR 1979 SC 1188, State of A.P.v. Anjaneulau – AIR
1982 SC 1598, Babu v. State of U.P.- AIR 1983 SC 308, Ramji Surjiya v. State of Maharashtra-
AIR 1983 SC 810 and Chandra Kanta Deb v. Stateof Tripura- AIR 1986 SC 606). In paragraph
40 of the Constitution Bench decision of the Apex Court in B.R.Kapur v. State of T.N. – 2001
(7) SCC 231 it has been observed that when a lower court convicts an accused and sentences
him, the presumption that he is innocent comes to an end.
3 See Articles 10 and 11 of the Universal Declaration of Human Rights adopted and proclaimed by the General
Assembly of the U.N. On December 10, 1948.

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BENEFIT OF DOUBT
The criminal jurisprudence, no doubt, requires a high standard of proof for 4 imposing
punishment to an accused. But it is equally important that on hypothetical grounds and surmises
prosecution evidence of a sterling nature should not be brushedaside and disbelieved to give
undue benefit of doubt to the accused. (Vide State of U.P. v. Ram Sevak and others-2003 (1)
Crimes 461 (SC).The law should not be stretch edmorbidly to embrace every hunch hesitancy
and degree of doubt. Our jurisprudential enthusiasm for presumed innocence must be moderated
by the pragmatic need to make criminal justice potent and realistic – (Vide Shivaji v. State of
Maharashtra – AIR1973 SC 2622). Doubts must be actual and substantial as to the guilt of the
accused person arising from the evidence or from the lack of it, as opposed to mere vague
apprehensions. A reasonable doubt in not an imaginary trivial or a merely possible doubt; but a
fair doubt based upon reasons and common sense. Uninformed legitimization of trivialities
would make a mockery of administration of criminal justice. AIR 1988 SC2154 – State of U.P.
v. Krishna Gopal.

The criminal law has a purpose to serve. Its object is to suppress criminal enterprise and punish
the guilty. In this process it must however be ensured that reasonable doubts alone are given to
the accused. (Vide State of Kerala v. Narayanan Bhaskaran – 1991 Crl.L.J.238 = 1991 (2) KLT
217).

THE JUDGES ROLE

An important feature of the accusatorial type of procedure is that the judge is expected to be
independentant, impartial, and competent in conducting the trial.
The criminal procedure code has also made the provisions for separation of judiciary from the
executive. lt also provide for keeping the courts open, 4 judge or magistrate not to be personally
interested in the case, transfer of cases to secure impartial trial if felt necessary. In order to
achieve the object of fair trial, measures have been made to have competent judges of integrity
and character through hierarchy of criminal courts. Thus the adversary model of criminal trial is
aimed at the foremost notion of fair trial.

4 Kehar Singh V. State (Delhi) 1988 3 SCC 609.

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ROLE OF COMPETENT LAWYERS
For the purpose of finding out the real perpetrator of the criminal act and to punish the guilt the
State has taken much care by appointing public prosecutor and Assistant Public Prosecutors. The
Prosecutors play a pivotal role in assisting the trial judge to find out the real culprit.

The accused must also be represented by a lawyer of his choice.

Article 22[1] OF THE CONSTITUTION provides that no person arrested shall be denied right to
consult and to be defended by a legal practitioner of his choice. Section 303 of Cr.P.C. provides
that any person accused of an offence before a criminal court, or against whom proceedings are
instituted, may of right to be defended by a pleader of his choice.

It has been held that the right to consult a lawyer for the purpose of defence begins from the time
of arrest of the accused person and even before actual beginning of the trial. The right to counsel
is recognised because of the obvious reason that ordinarily an accused person does not have the
knowledge of law and professional skill to defend himself before a court of law wherein the
prosecution is conducted by a competent and experienced prosecutor.
The criminal procedure code has made provisions to provide a lawyer to the indigent accused
person in a trial before a court of session ; the code also enables a State Government to extent
this right to any class of trials before other courts in the State.[SECTlON 304 of Cr.P.C.]. 5ln
Hussainara Khatoon v. State of Bihar 6 the Supreme Court, after referring to the constitutional
directive contained in Article 39-A regarding equal justice and free legal aid, and also
approvingly referring to the creative interpretation of Article 21 of the Constitution of India as
propounded in its earlier decision in MENEKA GANDHI VS UNION OF INDIA 7, has explicitly
observed as follows;

"The right to free legal services is, therefore , clearly an essential ingredient of reasonable, fair
and just procedure for a person accused of an offence and it must be held implicit in the
guarantee of Article 21. This is a constitutional right of every accused person who is unable to
engage a lawyer and secure legal sen/ices on account of reasons such as poverty, indigence or in
communicado situation and the State is under a mandate to provide a lawyer to an accused
person if the circumstances of the case and the needs of justice so required, provided of course
the accused person does not object to the provisions of such lawyer."8
5 Section 304 of Cr.P.C.

6 (1980) 1 SCC 91.

7 (1978) 1 scc 248.

8 Husssainare Khatoon v. State of Bihar (1980) 1 SCC 98, 105.

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It is now made as an obligation on the trial courts, to inform the accused that if he is unable to
engage a lawyer on account of poverty, he is entitled to obtain free legal services at the cost of
the States’9
The venue of trial is considered to be one which must be one convenient to the accused. The
criminal procedure code provides for the same. Under the accommodative system of criminal
trial the accused is presumed innocent till the prosecution proves its case beyond all the
reasonable doubts. The burden is on the shoulder of the prosecution to the case against the
accused. Mere suspicion about any information or evidence will be given benefit to the accused
who gets the benefit of doubt and escapes from the clutches of law under the reason that the
prosecution had failed to prove its case beyond all the reasonable doubts.

TRIAL AND THE RIGHTS OF THE ACCUSED.

So as to have the trial in a fair manner the criminal procedure code recognised some rights to the
accused person. They are,
[1] Right to know about the accusation
[2] Right to be tried in his presence
[3]Right to have evidence to be taken in his presence
[4] Right to have a competent legal practitioner of his choice
[5] Right to cross examination prosecution witnesses [6]
Right to adduce evidence in defence etc.

DIFFERENT TYPES OF CRIMINAL TRIALS

The criminal procedure code of 1973, provides different types of criminal trials for various kinds
of criminal cases. There are more elaborate, simple and less elaborate trial procedures for various
kinds of offences according to their seriousness and less seriousness.
Classification of criminal cases has been made for making a primary decision as to the type of
trial procedure to be adopted in respect of any criminal case. The code of criminal procedure
provides for four types of trial procedure. They are
9 Suk Das v. Union Territory of Arunachala Pradesh (1986) 2 SCC 401.

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[1] Trial before a court of session,
[2] Trial in Warrant Cases

[3] Trial in Summon Cases , and [4]

Summary trials.

TRIAL BEFORE A COURT OF SESSION

After taking cognizance of a case by a Magistrate having competency the offences exclusively
triable by a court of sessions are committed to the sessions court' 10 later a court of sessions is not
to take cognizance of any offence. But it can take cognizance of an offence in respect of
deformation of a high dignitary or a public offcial. 11 There is a special procedure which has to be
adopted for trial of such matters in which direct cognizance was taken by the sessions c0urt.' 12

TRIAL IN WARRANT CASES

Warrant cases are those cases in which an offence attracts a penalty of imprisonment for more
than seven years and it includes offences punishable with death and life imprisonment. In such
cases, the trial starts either by filing of FIR or by filing a complaint before a magistrate. And if
the magistrate finds that the case relates to an offence carrying a punishment for more than two
years, the case is sent to the sessions court for trial.
Section 193 of the Criminal Procedure Code clearly states that the session court cannot take
cognizance of any offence unless the case has been sent to it by a magistrate. The process of
sending it to session’s court is generally called committing it to session’s court.

TRIAL IN SUMMON CASES

A summon case is a case which is not a warrant case. So in simple words, those cases in which
an offence is punishable with an imprisonment of less than two years is a summon case. In this
case, one must understand that if a magistrate, after looking into the case, thinks that a case is not

10 Section 290 of Cr. P.C. 1973.

11 Section 199 of Cr. P.C. 1973.

12 Section 237 of Cr.P.C.1973.

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a summon case; he may convert it into a warrant case. In respect of summons cases, there is no
need to frame a charge. The court gives substance of the accusation, which is called “notice”, to
the accused when the person appears in pursuance to the summons.

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SUMMARY TRIAL

Summary trial means short trials avoiding the regular lengthy procedure . Summary trial aims at
speedy or quick disposal of minor offences . The procedure followed in the summary trial is to
some extent the procedure of trial of summons cases having some differences to the effect that in
summary trial not the formal and elaborate recording of evidence and judgment but only a
memorandum of the substance of evidence or a brief statement are recorded . In summary trial
no sentence of imprisonment for a term more than three months can be imposed by the
Magistrate.

Case of offenses punishable with an imprisonment of not more than six months can be tried in a
summary way. It is also to be noted that if the case has been tried in a summary way, a person
cannot be awarded a punishment of imprisonment for more than three months.

Both the trial before the court of sessions and warrant cases by magistrates are tried under the
procedure of warrant cases and the remaining two are tried in a summons cases trial.
Section 272 of Cr.P.C. empowers the State Government to determine what shall be the language,
for the purpose of each court within the State other than the High court. However the depositions
and evidence adduced by the witness in their mother tongue will be translated to the language of
the court. The dossiers of case records are translated to the language known or understandable by
the accused so as to have a fair trial.
Section 311 of Cr.P.C enables the criminal courts, at any stage of any trial or inquiry to summon
any person as a witness, or examine any person in attendance, though not summoned as a witness
or recallor re-examine any person who has been already examined. 13The code of criminal
procedure also enables the courts to order payment of expenses of complainants and witnesses.14

PROCEDURE IN WARRANT TRIAL

There are two types of cases provided in Cr.P.C. i.e.

Summons cases and Warrant case.

13 See Baiwant Singh v. State of Rajasthan 1986 Cri LJ 1374 (Raj HO).

14 Section 312 of Cr.P.C.

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Warrant case means a case relating to an offence punishable with death, or imprisonment for life,
or imprisonment for a term exceeding two years, while Summons cases means an case relating to
an offence, and not being a warrant case.
Thus, the trials are normally divided into warrant trial and a summons trial. For trial of warrants
cases by Magistrate two procedures are prescribed. One is adopted by Magistrate in cases
instituted on police reports (Sections 238 to 243 Cr.P.C. and 248 to 250 of Cr.P.C.) and other is
for cases instituted otherwise than police reports. (Sections 244 to 247 of Cr.P.C. and 248 to 250,
275 Cr.P.C.)

CASES INSTITUTED ON POLICE REPORTS

Under Section 238 Cr.P.C. when in a warrant case, instituted on a police report, the accused
appear or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been
supplied the all necessary documents submitted with chargesheet.

Section 239 CrPC provides that if the Magistrate after considering the chargesheet filed u/s. 173
CrPC and hearing, considers the charge to be groundless, he would discharge the accused and
record his reason for so doing. If, on examination of aforementioned documents, he comes to the
prima facie conclusion that there is a ground for proceeding with the trail, he proceeds to frame
the charge.

After framing a charge under Section 240 CrPC,

(1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion
thatthere is ground for presuming that the accused has committed an offence triable under this
Chapter, which such Magistrate is competent to try and which, in opinion could be adequately
punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether
hepleads guilty of the offence charged or claims to be tried.

If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion,
convict him thereon under Section 241 CrPC i.e Conviction on plea of guilty.And if the accused
refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict him
then the magistrate will follow Section 242 CrPC i.e Evidence for prosecution, as follows,

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(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate
doesnot convict the accused under section 241 Magistrate shall fix a date for the examination of
witnesses.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of
itswitnesses directing him to attend or to produce any document or other thing.

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may
beproduced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness to be deferred
until any other witness or witnesses have been examined or recall any witness for further
crossexamination.

Then the Magistrate has to proceed under Section 242 CrPC and under subsection (3) of that
Section the Magistrate is bound to proceed to take all such evidence as may be produced in
support of the prosecution.

This provision and the provisions in subsection (1) and (2) of the Section 243, CrPC are
mandatory. Section 243 CrPC. Evidence for defence.
(1) The accused shall then be called upon to enter upon his defence and produce his
evidence;and if the accused puts in any written statement, the Magistrate shall file it with the
record.

(2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue
anyprocess for compelling the attendance of any witness for the purpose of examination or
crossexamination, or the production of any document or other thing, the Magistrate shall issue
such process unless he considers that such application should be refused on the ground that it is
made for the purpose of vexation or delay or for defeating the ends of justice and such ground
shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of cross-examining
any witness before entering on his defence, the attendance of such witness shall not be compelled
under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.

(3) The Magistrate may, before summoning any witness on an application under sub-section
(2),require that the reasonable expenses incurred by the witness in attending for the purposes of
the trial be deposited in court.

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 The provisions of s. 243 apply equally to cases instituted on police report or on private
complaint. After the examination and crossexamination of all prosecution witnesses, i.e. after the
completion of the prosecution case the accused shall be called upon to enter upon his defence
and any written statement put in shall be filed with the record.

CASES INSTITUTED OTHERWISE THAN ON POLICE REPORT

Evidence for prosecution - Preliminary hearing Sections 244 to 247 of Cr. P.C. deal with warrant
cases instituted otherwise than on a police report. When the accused is brought before a
magistrate, he should proceed to hear the prosecution and take all such evidence as may be such
evidence as may be produced. The Magistrate should also summon such persons whom the
prosecution wishes to give evidence to support its case. 15 Such evidence must be taken in the
manner said down in S.138 of the India Evidence Act and if the accused so desires he cannot be
refused on opportunity to cross-examine the witness produced in support of the prosecution. The
opportunity allowed by the legislature to the accused in S.246(4) of cross examining witness for
the prosecution after the charge has been framed can not be substituted for the opportunity to
which he is entitled when the witnesses are examined and before the charge is framed. 16The fact
that the prosecution does not keep all its witness present when the accused appears before the
magistrate does not necessarily mean that the prosecution does not want to examine all of them.
The magistrate should before closing evidence and framing the charge, ask the prosecution
whether it wants more of its witnesses to be examined in support of the complaint. Failure to do
so results in non-compliance with sub S(1).145 Unlike under section 252(2) of the old code of
1898, under the new section 244(2) the magistrate is not under an obligation to summon any
witness on his own. It is now the responsibility of the prosecution to more the magistrate by an
application to issue a summons to any of its witnesses directing Zion to attend or produce any
document or other things.146 Court can permit examination of witness not mentioned in the list
of witnesses. lt is not necessary that all witnesses named in the list should have been examined
before granting such permission Under section 244 of Cr. P. C when in any warrant case
instituted otherwise than on a police report, the accused appears or is brought before the
Magistrate, the Magistrate shall proceed to hear the prosecution and shall take all such evidence
as may be produced in support of the prosecution.

After taking all evidence under section 244(1) of Cr. P.C the Magistrate reached at the
conclusion that no case against accused has been made out, the Magistrate shall discharge

15 Jethalal V. Khimji, (1973) 76 Bom LR 270.

16 Syed Mohammad Husain Afqar v. Mirza Fakhrulla Beg (1932) 8 Luds 135; K.L., Bhasin V. Sundar Singh,
1972 Cr. LJ 367.

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accused for the reasons recorded. If there is a strong suspicion about the commission of the
offence and the involvement of accused the court shall proceed to frame charge instead of
discharging the accused.

When Accused shall be Discharged

ln a warrant case instituted otherwise than on a police report, discharge and acquittal are two
different concepts. The word "discharge" is used in sections 239 and 245. Normally, a person
cannot be discharged unless the prosecution evidence has been taken and the Magistrate
considers for reasons to be recorded that no case is made out gainst the accused. Sub-section (2)
of s.245 is an exception to this rule in so far as it empowers the Magistrate to discharge the
accused at any previous stage if he considers that the charge is ground less Subsection (1)
enables the Magistrate to discharge an accused after taking all the evidence produced by the
prosecution. Since his order is subject to revision, he is required to record his reasons in writing.
The Magistrate cannot pass an order of discharge until he has examined all the witnesses of the
prosecution and such an order passed only after examining the complainant, and not all the
witnesses, will be illegal.17 The order of discharge passed exclusively on the basis of material in
cross-examination and without considering other vital pieces of evidence and documentary
evidence on record held sufficient to make out a prima facie case. The order wasset aside 18While
considering scope of s.245, trial court shall not go intometiculous consideration of material
produced. It has to see whether a prima facie case has been made out or grounds exist to connect
the accused to the alleged offence.19154 In a food adulteration case, the Magistrate had
discharged the accused before framing of charge, as in his view no case was prima facie made
out. The reason given was the cash-memo of the alleged adulterated article itself mentioned that
‘goods sold were not meant for human consumption‘. The High Court reversed the order holding
that the factum of purchase was not disputed and printing ‘not meant for human consumption‘
was only a clever device to get over the provisions of the Food Adulteration Act and to make the
Act a dead letter.20 ln a dowry-death case, the Delhi High Court refused to order for discharge of
the accused simply because C.F.S.L. negatived the test for common poison, observing that the
deceased died in mysterious circumstances, which will be gone into.

If the accused is not discharged under section 245 of Cr.P.C

17 Yesgidavau v, Vgasjarm (1972) 74 Bom Lr 717: 1973 Cr LJ 1007.

18 Mani Kant Sohal v. P.K.Banthr'a, 1991, Cr LJ 1247 (Bom).

19 S.Bangarappa v. G.N.Hegade, 1992 Cr LJ 3788 (Knt).

20 State of Orissa v. Ramwatar Agarwall, 1995 Cr LJ 2053 (Or).

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(1) If, upon taking all evidence referred to in section 244 the Magistrate considers, for
reasons tobe recorded that the case against the accused has been made out which, if unrebutted,
would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing, in this section shall be deemed to prevent a Magistrate from discharging he
accusedat any previous stage of the case if, for reasons to be recorded Magistrate, he considers
the charge to be groundless.

Then the Magistrate shall proceed to frame charge under section 246 of Cr. P. C. against the
accused. Section 246. Procedure where accused is not discharged
(1) If, when such evidence has been taken, or at any previous stage of the case, the
Magistrate isof opinion that there is ground r presuming that the accused has committed an
offence triabie under this Chapter,wilich such Magistrate is competent to try and which, in his
opinion, could be adeqtiateiv punished by him, he shall frame in writing a charge against the
accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether
hepleads guiltty or has any defence to make.

(3) lf the accused guilty, the Magistrate shall record the plea, and may, in his discretion
convicthim thereon.

(4) lf the accused refuses to plead, or does not plead or claims to be tried or if the accused is
notconvicted under sub-section (3) he shall be required to state, at the commencement of the next
hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit,
forthnwitth whether he wishes to cross-examine any, and if so. which of the witnesses for the
prosecution whose evidence has been taken.

(5) lf he says he does so wish, the witnesses named by him shall be recalled and, after
crossexamination and re-examination (if any), they shall be discharged.

(6) The evidence of any remaining witnesses for the prosecution shall next be taken and
afiercross-examination and re-examinalion (if any), they shall also be discharged.

Charge shall then be read and explained to the accused and then he has to be asked whether he
pleads guilty or has any defence to make. If the accused refuses to plead or does not plead or
claims to be tried he shall be required to state whether he wanted to cross examine any witnesses
for the prosecution whose evidence has been taken. If the accused is ready to cross examine the
witnesses, they shall be recalled for cross examination and re examination if any. The witnesses
shall be discharged after cross-examination or reexamination.

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Under section 247 of Cr. P. C. the accused shall be called upon to enter upon his defence and to
produce his defence if any.

CONCLUSION OF WARRANT TRIAL ( COMMON TO POLICE CASE

AND OTHERWISE POLICE CASE) :

Section 248 : Acquittal or Conviction.

(1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds
theaccused not guilty, he shall record an order of acquittal.

(2) Where, in any case under this Chapter, the Magistrate find the accused guilty, but does
notproceed in accordance with the provisions of section 325 or section 360, he shall, after
hearing the accused on the question of sentence, pass sentence upon him according to law.

(3) Where in any case under this Chapter, a previous conviction is charged under the
provisionsof sub-section (7) of section 211 and the accused does not admit that he has been
previously convicted as alleged in the charge, lhe Magistrate may, after he has convicted the said
aceused, take evidence in respect of the alleged previous conviction. said shall record a finding
thereon:

Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked
to plead thereto nor shall the previous conviction be referred to by the prosecution or in any
evidence adduced by it, unless and until the accused has bee convicted under sub-section (2).

The section means that in a warrant case both instituted on police report and private complaint
the only order that can be passed after charges is either a)acquittal or b)conviction.

Compensation for accusation without reasonable cause

As per section 250 of Cr. P. C. if in any case the accused is discharged or acquitted and the
person upon whose complaint or information the accusation was made is present, the Magistrate
may call upon him to show cause why he should not pay compensation to such accused or to
each or any of such accused when there are more than one. If the complainant is absent then the

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summons may be issued to him to appear. Under section 250 [1] the accusation must be proved
to have been made without reasonable cause. The provisions of section 250 of Cr. P. C. apply to
summons cases as well as warrant cases.

Record in Warrant cases :As per section 275 of Cr.P.C. in all warrant cases tried before a
Magistrate, the evidence of each witness shall be taken down in writing by either by Magistrate
himself or by dictation in open court. Such evidence shall ordinarily be taken down in the form
of a narrating by the Magistrate. The Magistrate may in his discretion taken down or cause to be
taken any part of such evidence in the form of question and answer.

SUMMON TRIAL:

A summons case means a case relating to an offence not being a warrant case, implying all cases
relating to offences punishable with imprisonment not exceeding two years. In respect of
summons cases, there is no need to frame a charge. The court gives substance of the accusation,
which is called “notice”, to the accused when the person appears in pursuance to the summons.

In view of Section 251 of Cr.P.C. the Magistrate is required to explain the particulars of the
offence of which the accused is prosecuted. As per section 252 if the accused pleads guilty, the
Magistrate shall record his plea as nearly as possible in the words used by the accused and may
in his discretion, convict him thereon.

Section 253. Conviction on plea of guilty in absence of accused in petty cases.

(1) Where a summons has been issued under section 206 and the accused desires to plead
guiltyto the charge without appearing before the Magistrate, he shall transmit to the Magistrate,
by post or by messenger, a letter containing his plea and also the amount of fine specified in the
summons.

(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of
guiltyand sentence him to pay the fine specified in the summons, and the amount transmitted by
the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in
this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly
as possible in the words used by the pleader and may, in his discretion, convict the accused on
such plea and sentence him as aforesaid.

Section 253 of Cr.P.C. is an exception to general rule which provides a simple procedure for
disposing of petty cases without the presence of accused in court by post and messenger also. By

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this provision discretion is given to the Magistrate to convict the accused. It also enables the
pleader authorised by the accused to plead guilty on behalf of his client when offence is
punishable only with fine.
However, as per Section 254 of Cr.P.C. if the accused is not convicted under Section 252 or 253
the court shall hear prosecution and take evidence lead by the prosecution and also hear the
accused and take all such evidence as he produces in his defence.

Section 254. Procedure when not convicted.

(1) If the Magistrate does not convict the accused under section 252 or section 253,
theMagistrate shall proceed to hear the prosecution and take all such evidence as may be
produced in support of the prosecution, and also to hear the accused and take all such evidence
as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the
accused,issue a summons to any witness directing him to attend or to produce any document or
other thing.

(3) A Magistrate may, before summoning any witness on such application, require that
thereasonable expenses of the witness incurred in attending for the purposes of the trial be
deposited in court.

Section 255 of Cr.P.C. deals with the acquittal or conviction.

(1) If the Magistrate, upon taking the evidence referred to in section 254 and such
furtherevidence, if any, as he may, of his own motion, cause to be produced, finds the accused
not guilt, he shall record an order of acquittal.

(2) Where the Magistrate does not proceed in accordance with the provisions of section 325
orsection 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.

(3) A Magistrate may, under section 252 or section 255, convict the accused of any
offencetriable under this Chapter which form the facts admitted or proved he appears to have
committed, whatever may be the nature of the complaint or summons if the Magistrate is
satisfied that the accused would not be prejudiced thereby.

Section 256 of Cr.P.C. deals with the circumstances of non appearance or death of the
complainant.

(1) If the summons has been issued on complaint and on the day appointed for the
appearance ofthe accused, or any day subsequent thereto to which the hearing may be adjourned,
the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore

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contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of
the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the
prosecution or where the Magistrate is of opinion that the personal attendance of the complainant
is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the
nonappearance of the complainant is due to his death.

Section 257 of Cr.P.C. deals with the withdrawal of complaint subject to the satisfaction of the
Magistrate. Apparently this section applies to summons cases.
If a complainant, at any time before a final order is passed in any case under this Chapter,
satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his
complaint against the accused, or if there be more than one accused, against all or any of them,
the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused
against whom the complaint is so withdrawn.
Section 258 of Cr.P.C. deals with the powers to stop proceeding in certain cases.
In any, summons that case instituted otherwise than upon complaint, a Magistrate of the first
class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial
Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without
pronouncing any judgment and where such stoppage of proceedings is made after the evidence of
the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other
case release, the accused, and such release shall have the effect of discharge.
Section 259 of Cr.P.C. empowers the Magistrate to convert a summons case into warrant case
(1) if the offence is punishable with imprisonment for more than six months, & (2) if he is of the
opinion that it would be in the interest of justice try such case in accordance with the procedure
for the trial of warrant cases.

Section 274 of Cr.P.C. deals with the record in summons cases and inquires. The Magistrate
shall, as the examination of each witness proceeds, make a memorandum of the substance of his
evidence in the language of the Court. However, if the magistrate is unable to make such
memorandum himself, he shall, after recording the reason of his inability, cause such
memorandum to be made in writing or from his dictation in open Court.

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DIFFERENCE BETWEEN SUMMON AND WARRANT TRIAL

It would be pertinent to bring out the differences between a summons case and a warrant case
from the point of procedure to be adopted for trial of these cases. The differences between the
two are as follows:

(1)The Code of Criminal Procedure prescribes two procedures for the trial of a warrant case by
Magistrates, namely, one to be adopted by the Magistrate in case instituted on a Police Report
while the other in case instituted otherwise than on a Police Report. But there is only one
procedure prescribed for trial of a summons case whether it is instituted on a Police Report or a
complaint.

(2) A summons-case means a case relating to an offence and not being a warrant-case: a
warrantcase means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years. [Section 2 (IV)]

(3) A case assumes the character of a summons-case or warrant-case according to the nature
and measure of punishment which the law attaches to the offence. Those cases which are
punishable with imprisonment for two years or under are summons-case, while those which are
punishable with imprisonment exceeding two years are warrant-cases.

(4)Serious offences are thus tried under the procedure laid down for warrant-cases and light or
minor offences under the procedure prescribed for summons-cases.

(5)In a summons-case a summons is ordinarily issued on a complainant, but in a warrant-case a

warrant is not ordinarily issued on a complaint.

(6)In a summons-case when the accused appears before the Magistrate, the particulars of the
offence of which he is accused are stated to him and he is asked to show cause why he should not
be convicted. If he admits the guilt or fails to show any sufficient cause, he may be convicted
straight away. (Section 251). But No such power of summary conviction exists in warrant-cases.
In such cases the Magistrate begins to hear the case of the prosecution by examining the
complainant and other prosecution witnesses, and when a prima facie case is made out against
the accused he frames a charge and then asks the accused whether he pleads guilty or not.
(Section 246)

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(7)In a summons-case the Magistrate first inquires from the accused whether he pleads guilty to
the charge and if he does not admit, his guilt prosecution evidence is recorded. (SS. 251 and
252). In a warrant-case evidence for the prosecution is taken first and then a charge is framed and
the accused is asked whether he pleads guilty or not. (Ss. 238 and 246).

(8)In a summons-case the accused has to cross-examine each of the prosecution witnesses
immediately after their examination-in-chief. (Section 254). In a warrant case the accused has a
right to reserve his cross-examination until the charge is framed. (Sections 243 and 246)

(9)In a summons-case the complainant may withdraw his complaint with the permission of the
court and on such withdrawal the accused is acquitted. (Section 257). But In warrant case no
such withdrawal is permitted, except when the offence is a compoundable one.

(10)In a summons case if the complainant is absent on the date of hearing the accused shall be
acquitted. Unless for some reason he thinks it proper to adjourn the hearing of the case to some
other day. (Section 256). But on non-appearance of the complainant in a warrant case, the
Magistrate, in his discretion at any time before the charge has been framed, discharge the
accused if the offence is compoundable or non-cognizable. But if it is otherwise he shall proceed
with the trial and dispose of the case on merits (Section 249).

(11)In a summons case the accused may be convicted from the facts admitted or proved whatever
may be the nature of the complaint or summons. (Section 225). But in a warrant case the
procedure is otherwise. A charge must be framed, read and explained to the accused and he shall
then be asked to enter upon his defense and produce his evidence. (Sections 246 and 247)

(12)The trial of a warrant case as a summons case is a serious irregularity which would vitiate
the trial if the accused has been prejudiced. But the trial of a summons case as a warrant-case is
only an irregularity which is curable under Section 465 of the Code.

(13) Where a warrant case has been tried as a summons case and it has resulted into acquittal
of the accused, such acquittal shall operate only as a discharge under Section 245 of the Code.
On the other hand where a summons case has been tried as a warrant case and the accused is
discharged under Section 245, the discharge will amount to an acquittal under Section 255 of the
Code.

(14) When the accused appears or is brought before a Magistrate in a warrant case, the
Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced
in support of the prosecution. But in a summon case, the particulars of offence are stated to the
accused and he shall be asked whether he pleads guilty or wishes to defend himself.

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(15) Framing of a formal charge is necessary in a warrant case but it is not necessary in a
summons case.

(16) When the charges reveal both, a warrant case and a summons case, the former is to be
preferred.

(17) A charge under warrant case cannot be split up into its constituents for trial as under a
summons case.

(18) In a warrant case, the accused gets more than one opportunity to cross- examine the
prosecution witnesses whereas in a summons case he gets only one opportunity to cross-examine
the prosecution witnesses.

(19) A warrant case may result into discharge of the accused under Section 249 in the absence
of the complainant but in a summons case, the result would be acquittal of the accused under
Section 256 of the Code.

(20) In a warrant case a complaint cannot be withdrawn by the complainant but in a summons
case the complainant may withdraw the complaint with the permission of the Magistrate.

(21) The Magistrate is empowered to convert a summons case into a warrant case under
Chapter XX of the Code but a warrant case cannot be converted into a summons case.

(22) In a warrant case, after convicting the accused, the Magistrate may take evidence
regarding the alleged previous conviction, which is not admitted by the accused, and shall record
his finding thereon. But no such power is conferred on the Magistrate while trying the accused in
a summons case.

(23) In a summons case, after the issue of summons, the accused may plead guilty by post
without appearing before the Magistrate. But no such provision exists in trial of a warrant case.

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BIBLIOGRAPHY
Books

• The Constitutional Law of India: - By- Dr. J.N Pandey.

• Criminal Procedure - Kelkar
• Indian Constitutional Law: - By- Prof.MP Jain.

Online Resources
 http://ncmei.gov.in/
 www.maef.nic.in/
 www.ncm.nic.in/constitutional_provisions.html
 http://ncmei.gov.in/writereaddata/filelinks/c296efcb_Guidelines.pdf
 www.sabrang.com/cc/archive/2010/apr10/chapter2.pdf
 www.jstor.org
 www.epw.in
 www.ncm.nic.in/constitutional_provisions.html  http://www.ncpedp.org/eductn/ed-
resrch.htmm.
 http://socialjustice.nic.in
 http://www.publichealthlaw.net

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