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(ii) In summons cases, no formal charge is framed as in warrants cases. However, the substance of accusation is put to the accused under Section 251 Cr.P.C. which is technically akin to the framing of a charge in warrants case. The accused is entitled to the hearing at the stage of framing of notice under Section 251 Cr.P.C. The Section pre-supposes that the learned Magistrate must consider whether such allegations are raised which amount to an offence. If no offence is made out, then there are no particulars of offence which have to be read over to the accused and therefore proceeding cannot proceed beyond Section 251 Cr.P.C. which is implied from a reading of Section 251 Cr.P.C. Section 251 Cr.P.C. is reproduced below:

8. This Court is in complete agreement with the view taken by this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K.Bhalla (supra) that at the stage of framing of notice under Section 251 Cr.P.C., the learned Magistrate is not expected to mechanically frame notice under Section 251 Cr.P.C. and has to apply its mind to find out whether the prima facie case is made out or not. The learned Magistrate has to frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out. However, in the event of finding that no case is made out against the accused, the learned Magistrate would be well within his right to drop the proceedings against the accused. This Court also agrees with the view taken by Sunil Gaur, J. in Raujeev Taneja (supra) and Urrshila Kerkar (supra) that the judgment of the Supreme Court in Adalat Prasad (supra) would not stand in the way of the Trial Court to do so because the discharge of an accused at the stage of framing of notice under Section 251 Cr.P.C. does not amount to recall/review of the summoning order as defined in Section 362 Cr.P.C. The two stages in the criminal trial are different. The first is the stage of issuance of process under Section 204 Cr.P.C, when the Magistrate has to satisfy that there are sufficient grounds for proceeding in the matter. The second is the stage of framing of charge/notice when the Court has to be satisfied that a prima facie case is made out against the accused. However, since Section 258 Cr.P.C. does not empower the Magistrate to discharge the accused in summons cases instituted upon complaints, this Court considers it necessary to issue directions in this regard in exercise of inherent powers under Section 482 Cr.P.C. read with Section 483 Cr.P.C. and Article 227 of the Constitution.

14. The present case does not fall within the aforesaid limitations as there is neither any express provision nor any express bar in the Code of Criminal Procedure for discharge of the accused at the stage of framing of notice under Section 251 Cr.P.C. if no prima facie case is made out against him.

15. At the stage of issuance of process under Section 204 Cr.P.C., the Court is only to see whether there are grounds for proceeding in the matter. The accused does not have any right to take part in the proceedings at this stage, as held by the Supreme Court in Chander Deo Singh v. Prakash Chander Bose, AIR 1963 SC 1430 and Dr. S.S. Khanna v. Chief Secretary, Patna, AIR 1983 SC 595. However, at the stage of framing of notice under Section 251 Cr.P.C., the Court has to satisfy after considering the material on record and hearing the accused that the offence has been committed which can be legally tried. The prosecution may be barred by limitation or bad for sanction or otherwise not sustainable. No adverse order can be passed without giving the affected party, an opportunity of being heard. It would be incumbent upon the Magistrate to drop the proceedings, if he is satisfied that no offence is made out for which the accused could be lawfully tried. If there is no offence for which the accused could be tried, it is implied that the Magistrate has no jurisdiction to proceed with the trial. For framing of notice under Section 251 Cr.P.C., the principles of natural justice require an opportunity of being heard to be given to the affected parties. Even otherwise, the principle of audi alteram partem, mandates that no one shall be condemned unheard. It forms part of the rules of natural justice, as held by the Apex Court in the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597. The procedure has to be fair, just and proper. This right of hearing cannot be denied to an accused. It is inherent in any judicial process. No person can be deprived of his life or personal liberty except according to procedure established by law mentioned in Article 21 of the Constitution which has to be a fair procedure. Even if some provision does not provide for an opportunity of being heard, the principles of natural justice have to be read as implicit therein, more so if the order passed affects the life and liberty of the person. It is basic to the human right jurisprudence that any order affecting life or liberty has to be passed by following the principles of natural justice. In Maneka Gandhi (supra), the Supreme Court further held that the substantive and procedural laws and action taken under them have to pass the test under Article 14. The tests have to be pragmatic otherwise they would cease to be reasonable. The interests of the accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused. Order of framing of notice under Section 251 Cr.P.C. substantially affects the rights of an accused. The non-availability of the remedy of discharge to the accused at the stage of notice under Section 251 Cr.P.C. is therefore discriminatory and arbitrary, considering that the said remedy is available to the accused in warrant cases as well as summons cases based on police reports. For example, in a case of Section 138 Negotiable Instruments Act read with Section 420 IPC, the offence being warrant case, the accused can seek discharge under Section 239 Cr.P.C., whereas in a case of Section 138 Negotiable Instruments Act, being summons case, the accused cannot seek discharge at the stage of notice under Section 251 Cr.P.C.

19. On careful consideration of the legal position discussed above, this Court is satisfied that ends of justice are higher than the ends of mere law and therefore, this case warrants the issuance of appropriate directions in exercise of power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to enable the Magistrate to discharge the accused at the stage of notice under Section 251 Cr.P.C. if no prima facie offence is made out.

Conclusion

20. In view of the authoritative pronouncements of the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra) and of this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K.Bhalla (supra), the accused are entitled to hearing before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C in all summons cases arising out of complaints and the Magistrate has to frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out against the accused. However, in the event of the learned Magistrate not finding a prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused. Since there is no express provision or prohibition in this regard in the Code of Criminal Procedure, these directions are being issued in exercise of power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to secure the ends of justice; to avoid needless multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra).