Law and You >Procedural Laws > BNSS > Summary Trials under BNSS (Ss. 283 to 288 of BNSS)
The word “trial” is used both in civil and in Criminal matters. The process of trial as enumerated in our Indian Constitution Art. 21 and also in certain enactments is that “trial is a right of a person”, which should be conducted fairly. The concept of fair trial includes fair and proper opportunities to adduce evidence on they behalf before the court of law to prove their case. In this article we shall discuss summary trials under BNSS.
The word ‘Trial’ is not defined in the code. In civil, it is used to determine the fact in issue before the court of law. In criminal matters, trial is a process of determining innocence or guilt of an accused. Determining the fact in issue and determining the innocence or guilt of an accused is by way of examination of witness adduced by both sides. The most important principle while conducting trial is that prosecution must establish guilt of the accused beyond all reasonable doubt, hence the burden of proof always lies on the prosecution. Therefore, accused has right to remain silent.
Before trial could commence, there are certain guidelines and principles to be followed to conduct a fair trial. These principles are:
- Accused shall be informed the details of the accusation made against him, such information must be communicated in his own language.
- Accused shall have free assistance of an interpreter, if he cannot understand the language used in court.
- Accused shall be given adequate time to engage him counsel. If he reports that no means to engage counsel on his behalf, the court should provide free legal aid counsel to the accused.
- Accused shall have adequate time and facilities for preparation of his defence.
The commencement of trial is enumerated in BNSS, which deal with four types of trials.
- Trial Before a Court of Session
- Trial of Warrant-Cases by Magistrates
- Trial of Summons-Cases by Magistrates
- Summary Trials
The basis for conducting trial based on the quantum of sentence that can be inflected for each offence. The quantum of sentence is to be imposed specified in Indian Penal Code and the manner in which the procedure of trial with regard to examination of witness to be followed according to Indian Evidence Act. Apart from the above stated enactments, there are other special enactments which specify punishment and nature of trial to be held for such offence. The proper course would be to call upon the prosecution to prove its case by adducing evidence.
Before commencement of trial, judge has to ensure that the original FIR, the charge sheet, original statements of witnesses and relevant documents are before the court for examination of accused and for framing charge. The stage of a trial begins after the ‘framing of charges.’ The nature of a trial is determined on the basis of gravity and seriousness of the offence, jurisdiction and the substantive law applicable to it. The purpose of having different procedures of trial is speedy disposal of cases and thereby reducing the pendency of cases. Trials are further divided into 3 categories, namely
- Summon
- Warrant
- Summary trial
The first two are applied in those cases which imbibes more serious offenses and the third one is applied in those cases degree of seriousness is rather meagre
Summary Trials:
Summary Trials are the trials which are speedily disposed and with the simplified procedure of recording the trials. The principle of the summary trial is based on the legal maxim ‘justice delayed is justice denied’. It is important to note that the summary is only in recording the proceedings and not in conducting the proceedings. The proceedings in every case have to be done cautiously and prudently. A summary trial implies that the case is tried and disposed at once. Such a trial is not available to cases which are complicated and require a lengthy process of inquiry. The access to summary trial even in small cases prevent a miscarriage of justice which would have otherwise taken several years to complete the proceedings. Chapter XXII containing Sections 283 to 288 of the Bharatiya Nagarik Suraksh a Sanhita, 2023, BNSS deals with the provisions related to summary trials.
Power to Try Summarily (S. 283 BNSS):
According to Section 283(1) of BNSS notwithstanding anything contained in this Code—
(a) any Chief Judicial Magistrate;
(b) any Magistrate of First Class;
shall try in a summary way all or any of the following offences:—
(i) theft, under sub-section (2) of section 303, section 305 or section 306 of the Bharatiya Nyaya Sanhita, 2023 where the value of the property stolen does not exceed twenty thousand rupees;
(ii) receiving or retaining stolen property, under sub-section (2) of section 317 of the Bharatiya Nyaya Sanhita, 2023, where the value of the property does not exceed twenty thousand rupees;
(iii) assisting in the concealment or disposal of stolen property under sub-section (5) of section 317 of the Bharatiya Nyaya Sanhita, 2023, where the value of such property does not exceed twenty thousand rupees;
(iv) offences under sub-sections (2) and (3) of section 331 of the Bharatiya Nyaya Sanhita, 2023;
(v) insult with intent to provoke a breach of the peace, under section 352, and criminal intimidation, under sub-sections (2) and (3) of section 351 of the Bharatiya Nyaya Sanhita, 2023;
(vi) abetment of any of the foregoing offences;
(vii) an attempt to commit any of the foregoing offences, when such attempt is an offence;
(viii) any offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871).
According to Section 283(2) of BNSS, the Magistrate may, after giving the accused a reasonable opportunity of being heard, for reasons to be recorded in writing, try in a summary way all or any of the offences not punishable with death or imprisonment for life or imprisonment for a term exceeding three years:
Provided that no appeal shall lie against the decision of a Magistrate to try a case in a summary way under this sub-section.
According to Section 283(3) of BNSS when, in the course of a summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by this Sanhita.
Summary Trial by Magistrate of the Second Class (S. 284 BNSS):
The High Court may confer on any Magistrate invested with the powers of a Magistrate of the second-class power to try summarily any offence which is punishable only with fine or with imprisonment for a term not exceeding six months with or without fine, and any abetment of or attempt to commit any such offence.
Magistrates Who Can Try Summarily:
Section 283 of the Sanhita confers any Chief Judicial Magistrate (Section 283(1)(a)) and Magistrate of the First Class (Section 283(1)(b)) the power to try trial summarily. As per section 284, any High Court may empower any Magistrate of the second class to try summarily any offence punishable only with fine or with imprisonment for a term not exceeding 6 months with or without fine and any attempt or abetment of such offences.
It is the discretionary power of the Magistrate to try specified offence in a summary way. Section 283 of the Sanhita only does not empower the Magistrate to try such cases which he is not competent to try. It empowers him to try the cases that he is already competent to try by a particular procedure.
Offences Which Can be Tried Summarily:
Offences to be tried summarily need not be punishable under the Penal Code, offences under special or local Acts can be tried summarily if they fulfil the condition of punishment laid down. A Magistrate who is empowered to trial summarily, if thinks fit may try all or any of the following offences summarily:
- theft, under sub-section (2) of section 303, section 305 or section 306 of the Bharatiya Nyaya Sanhita, 2023 where the value of the property stolen does not exceed twenty thousand rupees;
- receiving or retaining stolen property, under sub-section (2) of section 317 of the Bharatiya Nyaya Sanhita, 2023, where the value of the property does not exceed twenty thousand rupees;
- assisting in the concealment or disposal of stolen property under sub-section (5) of section 317 of the Bharatiya Nyaya Sanhita, 2023, where the value of such property does not exceed twenty thousand rupees;
- offences under sub-sections (2) and (3) of section 331 of the Bharatiya Nyaya Sanhita, 2023;
- insult with intent to provoke a breach of the peace, under section 352, and criminal intimidation, under sub-sections (2) and (3) of section 351 of the Bharatiya Nyaya Sanhita, 2023;
- abetment of any of the foregoing offences;
- an attempt to commit any of the foregoing offences, when such attempt is an offence;
- offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871).
According to Section 283(2) of BNSS, the Magistrate may, after giving the accused a reasonable opportunity of being heard, for reasons to be recorded in writing, try in a summary way all or any of the offences not punishable with death or imprisonment for life or imprisonment for a term exceeding three years. It is to be noted that no appeal shall lie against the decision of a Magistrate to try a case in a summary way under this sub-section.
The subsection (3) of Section 283 provides that any witness can be recalled for examining and to rehear when it appears necessary to the Magistrate that the case should not be tried summarily. If the mode of the trial is sought to be altered in the midstream on the ground that the offence is such which cannot be tried in a summary way, the trial must from its inception be conducted in a regular manner.
Procedure for Summary Trials (Section 285 BNSS):
According to Section 285(1) of BNSS, in trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned.
According to Section 285(2) of BNSS, No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
Procedure Followed in Summary Trials:
In summary trials the procedure to be followed at the hearing is that of summons-case in the trial of summons cases subject to the modifications made by sections 286 and 287 of the Sanhita as to the record required. Adherence to this provision has to be done irrespective of the nature of the case, that is, whether it is a warrant-case or summons-case. Thus, the procedure followed for summon cases has to be followed for summary cases as well. The exception in summary trials is, that a sentence exceeding the duration of three months cannot be passed in case of conviction under this Chapter. The procedure for summary trials (summons case) is as follows:
- For a criminal procedure to begin, the first step is to file an FIR or a complaint. This is investigated upon by the police and evidence is collected. At the end of the investigation, a charge sheet is filed by the police. This is also called the pre-trial stage.
- The accused person is then taken before the Magistrate who orally reads the particulars of the offences to the accused. In summons and summary trials, a formal charge is not written down.
- The examination of the accused has to be conducted under section 274 of the Sanhita.
- Under section 74 BNSS, when the accused appears or is brought before the Magistrate, particulars of the offence with which he is accused or the accusation levelled against the accused shall be stated to him.
- The Magistrate after stating the particulars of the offence committed asks the accused if he pleads guilty or not. Either in summary trial cases or in summons procedure cases, it is not at all necessary to frame a charge against the accused person.
- If the accused person pleads guilty, the Magistrate makes a record of the statement of the accused and then proceeds for conviction.
- If the accused pleads not guilty and claims to be tried after his examination under section 274 BNSS in a summary trial case, court has to conduct trial by following the procedure for summary trials and pronounce judgment under section 287 BNSS. The prosecution and the defence are given an equal opportunity to put their case forward. The Judge may then decide the acquittal or the conviction of the accused.
- The difference between summary trials and summons cases lies at this juncture. If the Judge delivers a judgment of conviction of the accused – the maximum sentence that can be passed in summary trials for imprisonment is three months.
Records in Summary Trials (S. 286 BNSS):
According to Section 286 of BNSS, in every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely:—
(a) the serial number of the case;
(b) the date of the commission of the 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 (i), clause (ii) or clause (iii) of sub-section (1) of section 283, 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;
(i) the sentence or other final order;
(j) the date on which proceedings terminated
In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely:—
(a) the serial number of the case;
(b) the date of the commission of the 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 (ii), clause (iii) or clause (iv) of sub-section (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;
(i) the sentence or other final order;
(j) the date on which proceedings terminated.
All these particulars have to be recorded in the form as may be prescribed by the State Government. It is the duty of the Magistrate to record the particulars himself. He cannot depute that duty to his clerk, nor is he authorized to affix his signature to the record or judgment by a stamp.
Sentence that can be Passed in Summary Trials:
The Section 285(2) BNSS prohibits the Magistrate to pass any sentence of imprisonment for a term exceeding 3 months for any conviction in respect of summary trials. A sentence exceeding the period fixed by this section is illegal. This sub-section only imposes a limit as to imprisonment and not as to the amount of fine to be imposed.
Under Section 284 of the Code, the High Court is vested with the power to confer upon the Magistrate of Second Class, the power to try an offence summarily. The offence should be punishable either solely with a fine or with imprisonment for not more than six months with/without fine. The scope extends to any abatement or attempts to commit any such abovementioned offence.
In Asghar Ali, (1883) 6 All 61 case, the Court held that the limit of imprisonment refers only to the substantive sentence, not to an alternative sentence of imprisonment in default of payment of a fine. A magistrate can impose a sentence of imprisonment in default of payment of fine in addition to the maximum sentence of three months’ imprisonment which he has imposed for the offence.
Judgment in Cases Tried Summarily (S. 287 BNSS):
In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.
Evidences under Summarily Trial:
When the accused has not entered a guilty plea, Section 287 requires the Magistrate to briefly record the content of the evidence, the decision, and its justifications. The content of the evidence must be noted as soon as it is presented to the court. Also, all documents and decisions must be written in the court’s language. It is not sufficient to only enter the magistrate’s initials; the magistrate must write his complete name.
In Karan Singh, (1878) 1 All 680 case, the Allahabad High Court held that if the evidence is not so set forth, the Magistrate may be required to do so even after examining the witness, or a re-trial may be ordered. Moreover, all the records and judgment have to be written in the language of the Court. The Magistrate must write his full name and the mere putting in of the initials is not sufficient.
Language of Record and Judgment (S. 288 BNSS):
According to Section 288(1) of BNSS, every such record and judgment shall be written in the language of the Court.
According to Section 288(2) of BNSS, the High Court may authorise any Magistrate empowered to try offences summarily to prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by such Magistrate.
The judgment or the record must be signed by the presiding magistrate. The magistrate must write his full name, merely putting his initials will not be sufficient.
Difference between Summary and Regular Trials:
A summary trial is very much dissimilar to any regular trials as follows:
- A summary trial can be conducted only for specified offences which are minor in nature whereas more complicated and serious nature of offences is tried in regular trials.
- In summary trials, only the substance of evidence and the disposition is briefly recorded but in regular trials, the evidence is recorded carefully and in full.
- No formal charge is required to be framed by Magistrate in summary trials but in regular trials, a formal charge sheet is required to be drawn up.
Conclusion:
Any criminal justice system’s main goal is to guarantee that people have the chance to participate in a free and fair trial. The Indian judiciary is loaded by heavy burden of cases are pending before it, due to which the functioning of judiciary to some extent is hampering. So, such method of summarily trial is an efficient tool to ease off the burden since Indian population is rising rapidly and also citizens are becoming legally aware so in future the intensity of cases would be higher. Summary trials provide people a chance to obtain justice for even the slightest grievances in short span of time. This system of Summary trial shall be made more wide so that more number of cases may fall over them and more cases shall be disposed off in a reasonable period of time.