Under which circumstances Magistrate can stop proceeding in summons case U/S 258 of CRPC(Old S 249 of CRPC)?

 That order was challenged in the High Court of Bombay at Nagpur and it was held that: -

"Where the Magistrate comes to the conclusion that no case, not even a prima facie case, under Section 447, I.P.C., was made out, he is perfectly justified in stopping the proceedings under Section 249, Criminal P.C. without first following the procedure under Sections 242 to 244, Criminal P.C. The words of Section 251-A (2), Criminal P.C., cannot be read into Section 249, Criminal P.C., and the Magistrate before releasing the accused under Section 249, need not hear the accused and the complainant".

It was also held that the use of the word "discharge" by the Magistrate in his order under Section 249, merely amounts to a release of the accused and stopping of the proceedings without a conviction or an acquittal. This appears to be quite a contrary view to the one taken by the Madhya Pradesh High Court in the case of 1962 (1) Cri LJ 817 (MP), referred to hereabove and relied upon by the learned Sessions Judge. To say that in every such case where the summons procedure is to be followed contemplated under Chapter XX, the case must necessarily proceed and must end in acquittal or conviction of the accused, can make Section 249 nugatory. It will be of no consequence if no such power existed in the Magistrate. There may arise cases in which on the face of it taking all the averments made in the accusation contained in the complaint may not constitute any offence at all or where any such complaint would become invalid for want of any particular formality to be gone into. There may arise cases where on account of certain technical defects in any such prosecution there would not arise any purpose for proceeding with the matter till the end. At the same time there may arise some cases in which after the evidence of the complainant is over, and which does not help his case, it may not require to call upon the accused to meet the accusation as was found in the Bombay Case and in those circumstances which can be characterised as Special or unusual which make it difficult or impossible to proceed in the normal way or that by reason of such circumstances the Court considers highly necessary to proceed further in the matter in which event it will be open to the Magistrate to exercise such powers and stop the proceedings without pronouncing any judgment either of acquittal or conviction and would be justified in releasing the accused. With respect, therefore, while I amendment unable to agree with the view taken by the High Court of Madhya Pradesh in the decision referred to hereabove, I agree with the view taken by the High Court of Bombay in the decision referred to above and at the same time observe that such powers have to be sparingly used and that too particularly in the exceptional or unusual circumstances attending the case. The order of releasing the accused, therefore, under Section 249 cannot be said to be in any way so illegal or wrong on a consideration of the effect of Section 249 of the Code.

Gujarat High Court

The State Of Gujarat vs Sanghar Ibrahim Ladha on 9 March, 1970

Equivalent citations: AIR 1971 Guj 148, 1971 CriLJ 949, (1971) 0 GLR 503

Bench: N Shelat

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Guidelines of Supreme Court for early disposal of cheque dishonour cases

 The upshot of the above discussion leads us to the

following conclusions:

1) The High Courts are requested to issue practice

directions to the Magistrates to record reasons before

converting trial of complaints under Section 138 of the

Act from summary trial to summons trial.

2) Inquiry shall be conducted on receipt of complaints

under Section 138 of the Act to arrive at sufficient

grounds to proceed against the accused, when such

accused resides beyond the territorial jurisdiction of

the court.

3) For the conduct of inquiry under Section 202 of the

Code, evidence of witnesses on behalf of the

complainant shall be permitted to be taken on

affidavit. In suitable cases, the Magistrate can restrict

the inquiry to examination of documents without

insisting for examination of witnesses.

4) We recommend that suitable amendments be made to

the Act for provision of one trial against a person for

multiple offences under Section 138 of the Act

committed within a period of 12 months,

notwithstanding the restriction in Section 219 of the

Code.

5) The High Courts are requested to issue practice

directions to the Trial Courts to treat service of

summons in one complaint under Section 138 forming

part of a transaction, as deemed service in respect of

all the complaints filed before the same court relating

to dishonour of cheques issued as part of the said

transaction.

6) Judgments of this Court in Adalat Prasad (supra) and

Subramanium Sethuraman (supra) have interpreted

the law correctly and we reiterate that there is no

inherent power of Trial Courts to review or recall the

issue of summons. This does not affect the power of

the Trial Court under Section 322 of the Code to revisit

the order of issue of process in case it is brought to the

court’s notice that it lacks jurisdiction to try the

complaint.

7) Section 258 of the Code is not applicable to complaints

under Section 138 of the Act and findings to the

contrary in Meters and Instruments (supra) do not

lay down correct law. To conclusively deal with this

aspect, amendment to the Act empowering the Trial

Courts to reconsider/recall summons in respect of

complaints under Section 138 shall be considered by

the Committee constituted by an order of this Court

dated 10.03.2021.

8) All other points, which have been raised by the Amici

Curiae in their preliminary report and written

submissions and not considered herein, shall be the

subject matter of deliberation by the aforementioned

Committee. Any other issue relating to expeditious

disposal of complaints under Section 138 of the Act

shall also be considered by the Committee. {Para 24}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

SUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020

In Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION

138 OF N.I. ACT 1881.

Dated: April 16, 2021

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Whether session court can exercise power under S 258 of CRPC?

So far the first question is concerned, it appears to me that the power in envisaged under Section 258 of the Code is exercisable in certain summons cases exclusively triable by a Magistrate.

Section 258 of the Code runs as under:

In any summons-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.

9. From reading of this section as a whole, it seems to me that this power is not to be exercised in general rather a restriction has been imposed for exercise of this power in certain cases exclusively triable by a Magistrate.

10. It is true that the proceeding under Section 12 AA is a summary proceeding, but the question is as to whether it will also come in the categories of certain cases as enumerated under Section 258 of the Code. The offence arising out of the act no doubt is triable as per the procedure laid down under Section 12 AA of the Act, but the Special Judge being not a Magistrate, in my opinion, is not authorized to exercise its power under Section 258 of the Code. Even though the Special Judge has the jurisdiction to exercise the power under Section 167 of the Code, which power is exercisable by a Magistrate but in view of Sub-section (1)(c) of Section 12 AA of the Act, a power is conferred upon the Special Judge to exercise the jurisdiction only under Section 167 of the Code. In this connection, it would also be pertinent to see the provisions laid down under Section 12 AC of the Act.

Section 12 A C reads as under:

Save as otherwise provided in this Act, the provisions of the Code (Including the Provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provision, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

11. Section 12 AC starts with words, "save as otherwise provided in this Act." It necessarily, therefore, means that the Special Judge has to exercise the powers under the Code as provided in this Act itself.

12. Nowhere under the Act the Special Judge has been empowered to exercise the power as conferred under Section 258 of the Code save and except the provisions as laid down under Section 260 and 262 of the Code where the procedures of summary trials have been provided.

13. By necessary implications of the provisions of Section 12AA(1)(C) and 12AC of the Act, it must be held that the Special Judge (E.C. Act) has no jurisdiction to exercise powers as envisaged under Section 258 of the Code as it was exercisable only in summons cases exclusively triable by a Magistrate.

Patna High Court

The State Of Bihar vs Purshotam Lal Kejriwal And Anr. on 11 April, 1997

Equivalent citations: 1998 (1) BLJR 450

Bench: N Roy

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Whether magistrate can drop prosecution at stage of recording of evidence and acquit accused?

Admittedly, the  learned Magistrate in
the midst of the trial had entertained application filed by the accused
for   dropping   the   proceedings.         It   is   not   clear   as   to   under   what
provisions of law, the learned Magistrate passed an order of dropping
the proceedings and acquitted the accused.   The learned Magistrate
passed the following order :­
“Application given by accused is granted.  
  The case is dismissed and accused are acquitted. ”
10. Section 258 of the Code of Criminal Procedure reads as

under ;­
“258. Power to stop proceedings in certain cases­­
     In any summons­case 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.”
11. Admittedly, the provisions of section 258 of the Code of
Criminal Procedure are not applicable to the summons case instituted
upon a complaint.   The learned Magistrate has passed the order at the
stage of recording of evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.448 OF 1999
Dhimant Mehta

V/s.
 M/s. Ramdil Resorts P. Ltd.

CORAM : MRS.SWAPNA JOSHI, J.

Dated :  7TH SEPTEMBER, 2016.
Citation:2016 ALLMR(CRI)4448

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Whether prosecution U/S 354 of IPC can be stopped U/S 258 of CRPC for want of sanction U/S 197 of CRPC?

The learned Sessions Judge has also considered factual aspect
on merit. The complainant has made allegations that while snatching a
muster roll from her hand the accused intentionally touched her breast
and her right hand. I do not want to go into the merits and I restrain
myself to assessing the deposition of the complainant and
contradictions therein, if any, as the matter is still pending before the
learned Magistrate. I only hold that act alleged cannot be considered as
the act done in the discharge of the official duty. The allegations made
are unconnected with the function or the job or the duty of the
respondent/accused. A view taken by the learned Sessions Judge is
therefore not correct, but the findings given by the learned Magistrate
while rejecting the application under Section 258 on the ground that
sanction under Section 197 is required are correct and therefore I am
inclined to set aside the order passed by he learned Sessions Judge
and uphold the order passed by the learned Magistrate. 
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.29 OF 2012

State through Public Prosecutor V/s Shri Ulhas Kadam,

 CORAM : MRS.MRIDULA BHATKAR, J.
 DATE: 25th FEBRUARY, 2014
Citation;2016 CRLJ(NOC)68 Bom

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Whether prosecution under prevention of food adulteration Act can be closed U/S 258 of CRPC?

Learned Additional Sessions Judge, Junagadh though, held that the powers under Section 245 of Cr.P.C. were not available but under Section 258 of the Cr.P.C. the Magistrate has ample powers to stop further trial and to acquit the accused in proper case.

Having heard learned advocates appearing for the parties, I am in agreement with the contention of the learned advocate for the petitioner that under Section 245 of the Cr.P.C., this being a summons triable case instituted on private complaint, powers to discharge the accused were not available.

It may also be noted that in the present case, the learned Magistrate could have exercised the powers under Section 258 of the Code of Criminal Procedure. However, in the facts of the case, I find that conclusion of the learned Magistrate is maintainable. Admittedly, the samples of alleged adulterated food which comprised of milk and curd were sent for Central Food Laboratory were sent after nearly six months. Laboratory report also specified that it was not possible to test the samples since they were decomposed, therefore, no useful purpose would be served in permitting full trial into such allegations. 

Gujarat High Court

S S Mehta  vs Bodu abdulbhai sargadia on 17 August, 2010

Coram; MR.JUSTICE AKIL KURESHI
  

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Bombay HC: Magistrate can close summary criminal case under S 258 of crpc

As far as this aspect of the case is concerned, the learned Magistrate was not wholly justified because it is open to the trial Magistrate to exercise powers u/S. 258 of the Code of Criminal Procedure. In summary proceedings where the accused claims to be tried, the procedure specified in the code under Chapter XX, for the trial of summons cases is required to be followed. It is true that Chapter XX does not make any provision for discharge of the accused but S. 258 very clearly specifies that at any stage of the trial, the Magistrate may stop the proceedings. It is implicit that if it is brought to the notice of the Magistrate at any stage of the proceedings, that there is no evidence or that the charge is groundless, he may forthwith stop the proceedings and acquit the accused. To this extent, therefore, the learned Magistrate was not justified in having rejected the application filed by the petitioners on the ground that no powers were vested in him.

Bombay High Court

Shaikh Ahmed Hussain And Another vs State Of Maharashtra on 6 November, 1990

Equivalent citations: 1991 (2) BomCR 392, 1991 CriLJ 2303, 1991 (1) MhLj 77

Bench: M Saldanha

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