Magistrate Cannot Discharge Accused In Summons Trial At Stage Of Section 251 CrPC After Issuance Of Summons: Delhi High Court
The High Court held that Chapter XX of the Code of Criminal Procedure, 1973 does not contemplate discharge of an accused in a summons trial, and that a Magistrate lacks jurisdiction to discharge an accused at the stage of Section 251 CrPC after cognisance has been taken and summons have been issued.
Justice Amit Mahajan, Delhi High Court
The Delhi High Court held that once cognisance of an offence has been taken and summons have been issued in a summons trial, a Magistrate is not empowered to discharge the accused at the stage of Section 251 of the Code of Criminal Procedure, 1973, as such an exercise would amount to impermissible recall of summons.
The Court was hearing a criminal revision petition filed under Sections 397 and 482 of the Code of Criminal Procedure, 1973, challenging an order passed by the Magistrate whereby the accused were discharged at the stage of service of notice of accusation under Section 251 of the Code.
A Single Judge Bench of Justice Amit Mahajan observed: “Chapter XX of the CrPC does not either explicitly or by implication provide for discharge of an accused in a summons trial”, thus holding that, “the Magistrate is not empowered to discharge an accused in a summons trial at the stage of Section 251 of the CrPC after having taken cognizance of an offence and issued summons to the accused”.
The petitioner was represented by Senior Advocates Tanveer Ahmed Mir and Pooja Mehra Saigal, while the respondents were represented by Advocate Vikram Singh Panwar and other counsel.
Background
The petitioner company filed a criminal complaint against its former directors alleging unlawful retention and misappropriation of valuable medical equipment and other assets belonging to the company, and invocation of Section 452 of the Companies Act, 2013. Upon consideration of the complaint, the Magistrate took cognisance of the offence and issued summons to the accused.
Subsequently, at the stage of consideration of service of notice of accusation under Section 251 of the Code of Criminal Procedure, 1973, the Magistrate discharged the accused, holding that no prima facie case was made out. The Magistrate relied upon certain judicial precedents to hold that it was permissible to discharge an accused at that stage.
Aggrieved by the discharge order, the complainant company approached the Delhi High Court by way of the present criminal revision petition.
Court’s Observation
The High Court examined the scheme of the Code of Criminal Procedure, 1973, particularly the distinction between warrant cases governed by Chapter XIX and summons cases governed by Chapter XX. It noted that while Section 239 CrPC expressly provides for discharge in warrant cases, no corresponding provision exists in Chapter XX for summons trials.
The Court relied upon authoritative decisions of the Supreme Court, including Subramanium Sethuraman v. State of Maharashtra and Adalat Prasad v. Rooplal Jindal, to reiterate that once a process is issued under Section 204 CrPC, the Magistrate has no power to recall or review the order of issuance of summons in a summons case.
The Bench further clarified that “the same would amount to recalling of summons by the Magistrate which, as noted in a catena of judgments, is impermissible in law”.
The Bench further noted the reliance placed on Bhushan Kumar v. State NCT of Delhi (2012), holding that the observations made therein regarding discharge at the stage of Section 251 CrPC were not part of the ratio decidendi of that judgment, and could not override binding decisions of larger Benches of the Supreme Court which had categorically held that discharge is impermissible in summons trials.
Applying the “inversion test” laid down by the Supreme Court to identify ratio decidendi, the Court held that reliance placed on Bhushan Kumar by the Magistrate was misplaced. It was observed that permitting discharge at the stage of Section 251 CrPC would amount to conducting a mini-trial and recalling summons, both of which are impermissible under the statutory scheme.
The Court also reiterated that Section 251 CrPC merely requires the Magistrate to state the particulars of the offence to the accused and to record the plea, and does not confer any power to drop proceedings or evaluate the defence at that stage.
Conclusion
The Delhi High Court held that the Magistrate had committed a jurisdictional error in discharging the accused at the stage of Section 251 of the Code of Criminal Procedure, 1973, after having taken cognisance and issued summons.
Accordingly, the Court allowed the revision petition, set aside the impugned order of discharge, and directed the Magistrate to proceed with the matter in accordance with law.
The Court clarified that it had not examined the merits of the allegations and that the order was confined to the limited question of the Magistrate’s power at the stage of Section 251 CrPC.
Cause Title: Tulip Multispeciality Hospital Private Limited v. Akhil Saxena and Another (neutral Citation: 2025:DHC:27)
Appearances
Petitioner: Tanveer Ahmed Mir, Senior Advocate; Pooja Mehra Saigal, Senior Advocate, with Tanmay Mehta, Simrat Singh Pasay, Ankit Mittal, Ariana Ahluwalia and Yashodhara Singh, Advocates
Respondents: Vikram Singh Panwar, Abhimanyu Singh, Haresh Nair, Yash Kadyan and Yash Luthra, Advocates