DISTINCTION BETWEEN

SUMMARY AND REGULAR TRIAL

Under Code of Criminal Procedure, 1898

Justice ® Dr. Munir Ahmad Mughal

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Introduction:

The words “try” and “trial” have no

fixed or universal meaning, but they are
words which must be construed with
regard to the particular context in which
they are used and with regard to the
scheme and purpose of the measure
concerned.1

1
Jibon v. Emperor 34 Cr. L.J. 684; 144 IC 90; 37 CWN 906; AIR 1933 Cal 551; 1933 Cr. C. 911.

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The word “trial” is not defined in the
Code of Criminal Procedure, 1898.
When a term is not defined in the law,
and there is also no definition in the
General Clauses Act, 1897, the only
course left is to go back to the ordinary
dictionary meaning. The word trial is of
English language and the context is law
hence the best course is to see law
dictionaries to know the exact meaning
which the master of the language have
given to it.
According to Wharton’s Law Lexicon, a
trial is the examination of a case, civil or
criminal, before a judge who has
jurisdiction over it, according to the law
of the land.2
According to the Oxford Dictionary a
trial is the examination and
determination of a cause by a judicial
2
In Re; RamSawami, 27 Madras 510.

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tribunal; determination of the guilt or
innocence of an accused by a Court.
When some competent authority directs
that an accused person shall be tried, the
trial that is to take place can end only in
one or other of the recognized forms in
which the trial can terminate under the
Code of Criminal Procedure, 1898 such
forms are,--
 conviction,
 acquittal,
 discharge,
that is, finding him guilty or not guilty
or finding that there is no case against
him or that the charge is groundless. 3

Trial means the proceeding which

commences when the case is called on
with the Magistrate on the Bench and the
accused on the dock, and the
3
Harihar Sinha v. Emperor AIR 1936 Cal. 356 (363); 40 CWN 876; 163 IC 9; 1936 Criminal Cases 583;
37 Criminal Law Journal 758; 63 CLJ 307.

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representative for the prosecution and the
accused are present in Court for the
hearing of the case.4

Trial means adjudication of a matter by a

Court after hearing both sides and giving
them full opportunity to examine and
cross examine the witnesses produced by
them in accordance with law in force.
The soul of the trial is its fairness
throughout the process. A fair trial is
impartial and just by all prudent
standards. There is no abuse, misuse or
non use of the lawful power. A court
where a trial is conduct is called a trial
court. A court where complaints of trial
court’s errors of law and facts are made
and adjudged is an appellate court. A
court where legality, propriety and
4
Gamer Sidra 23 Cal. 863 (865); 2 CWN 465.

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correctness of orders passed by the trial
court are examined, whether suo moto5
or on an application is called a
Revisional Court6.
Where a court is empowered to correct
its own clerical mistakes which do not
change the nature of the relief sought is
called a power of Review to be exercised
by such court itself.
Trials are civil as well as criminal. Those
are summary as well as regular.
In this paper distinctive features of
summary and regular trial of criminal
cases will be discussed. Similarities and
dissimilarities between the two will be
highlighted.

Trial is neither an investigation nor an

inquiry. Investigation is the power vested
in the police and inquiry is the power
5
Suo moto means “on its own motion”.
6
Or Court of Revision.

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vested in a Magistrate. It is a stage prior
to trial. Trial begins when the charge is
framed, read out and explained to the
accused and his plea is recorded under
section 242 of the Code of Criminal
Procedure, 1898.7 It ends when the
judgment is pronounced whether in
acquittal or in conviction.
Investigation begins when an FIR is
lodged with the Police of the commission
of a cognizable offence. A Police officer
conducts the Investigation and is called
the Investigating Officer. His function is
to collect all pieces of evidence that
connect the accused with the allegations
levelled against him in the FIR. Thus

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Section 42 of the Code of Criminal Procedure, 1898 provides that when the accused appears or is brought
before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he
shall be asked whether he admits that he has committed the offence with which he is charged. This section
applies to cases tried summarily under Ch. XXII of the Code of Criminal Procedure, 1898 by reason of S.
262 of the said Code. The authority is available on the subject in the case cited as AIR 1952 Allahabad 212.
The Magistrate, while conducting summary trial should not act hastily so as to disregard the salutary
provisions of law which are meant to safeguard the interests of the accused, such as those contained in
section 242. The judicial precedent is available on this view in the case cited as AIR 1960 AJ&K 108.

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 The visiting of the Investigating
Officer (called the I.O.) of the place
of occurrence;
 Preparing Inquest Report;
 Getting post mortem examination
report from the Medical Officer.
 Sending the injured to the hospital
for treatment and Medico Legal
Examination and getting its report.
 Sending the firearm and the used
cartridges found from the spot to the
Ballistic and Fire Arm Expert for
examination and Report.
 Getting Chemical Examiner’s Report
in cases of Poisoning etc.
 Getting Serologists Report as to
bloodstained earth and clothes.
 Getting Finger Print Bureau’s Report
in cases of forgery etc.

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 Recoding statement of the witnesses
under section 161 of the Code of
Criminal Procedure, 1898.
 Arresting the accused and also
recording his statement under section
161 and if he wants to make a
confession during such investigation
then getting it recorded by the
Competent Magistrate under section
164 and 364 of the Code of Criminal
Procedure, 1898.
 Making recoveries of the weapon of
offence at the pointing of the accused
and preparing of the Memorandum of
its such recovery to be attested by the
two marginal witnesses.
 Preparing and sending the report
under section 173 of the Code of
Criminal Procedure, 1898 to the trial
Court which is called challaning the

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 accused to the Court to face his trial
their.

Where a case is non-cognizable and the

matter is reported by the police officer of
its being so to the Magistrate, the
Magistrate may take cognizance of the
case and either conduct a preliminary
inquiry himself or direct some other
Magistrate who is subordinate to him to
do so and report and on report if he is
satisfied that a non cognizable offence
has been committed, he may issue the
process to summon the accused and
proceed further to conduct the trial.

Where a Complainant makes a direct

complaint of an offence the same process
is conducted before entering on the trial.
If the complaint is proved false the
accused is acquitted. If the complaint is

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proved true on fair trial in accordance
with law the accused is convicted and
sentenced to a certain punishment
prescribed by law.
The inquiry is always by a Magistrate.
Investigation is always by a Police
Officer.
Trial is always by a Competent Court
(Magistrate or a Judge). Generally, all
trials are held at the Magistrate level. But
where the law in force so prescribes the
trials are held by the Sessions Judge. In
such a situation the Magistrate is to
record such circumstance and send the
case to the Sessions Court for trial. In the
Province all courts are subordinate to the
High Court of the Province concerned. In
the Sessions Division all criminal court
are under the Sessions Judge of the
concerned District. Within the District
the Sessions Judge and with the Province

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the High Court of the Province has the
power to withdraw or transfer a case
from one court of competent jurisdiction
to another court of competent
jurisdiction.

WHAT IS THE NATURE OF A

TRIAL?
A trial is a judicial proceeding.

TRIAL WHEN BEGINS?

A trial begins in a case triable
exclusively by a Court of Session, only
after the charge is framed. So also in a
warrant case, the trial commences when
the accused is called upon to plead to a
charge, and until a charge has been
framed, there is no trial but only an
inquiry.8
8
Manna 9 NLR 42; 14 Criminal Law Journal 230 (231); Sreeramullu v. Veerasalingam 38 Madras 585; 15
Criminal Law journal 673; Narayansawami 32 Madras 220 (224, 234) (FB); haridas v. Sritulla 15 Calcutta
608 (FB); Painda v. Gulab Kahtun 40 Criminal Law journal 515; 181 IC 49; ILR 1938 Lahore 619; 41 PLR
221; AIR 1939 Lahore 122.

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In a summons case, however, as it is not
necessary t o frame a formal charge, the
trial may be said to commence when the
accused is brought or appears before the
Magistrate.

HOW TO DETERMINE WHETHER

AN OFFENCE IS TO BE TRIED
SUMMARILY OR NOT?

Such determination is to be made by the

facts stated in the complaint as well as
the sworn testimony of the
Complainant.9

WHAT SHOULD BE DONE BY A

MAGISTRATE WHERE SECTION
OF PAKISTAN PENAL CODE, 1860
IS MENTIONED RELATING TO
9
Fanindra, 36 Calcutta 67, 12 Cawnpure Weekly Notes 1041, 8 Cr. L. J. 227, ` 1 I.C. 519.

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OFFENCE NOT TRIABLE
SUMMARILY WHILE FACTS
STATED DISCLOSE THE
OFFENCE TRIABLE
SUMMARILY?

The magistrate is competent to dispose

of a case summarily where the facts
which are alleged to have taken place
disclose an offence triable summarily,
and the mere fact that the complainant
enumerates sections of Pakistan penal
Code 1860 relating to offences not
triable summarily, does not affect the
jurisdiction of the magistrate, unless the
facts of which he really complains
disclose such offences.10
Similarly when the Magistrate ascertains
from the evidence that the facts alleged
to have taken place disclose an offence
10
Golap Pandey v. Buddam, 16 Calcutta 715.

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triable summarily, and the aggravating
circumstances which render the offence
not so triable are mere exaggerations, he
can dispose of the case summarily.11

WHAT IS THE LAW OF

PROCEDURE CONCERNING
SUMMARY TRIALS AND WHERE
IT IS TO BE FOUND?

Chapter XXII (comprising sections 260

to 265 is Of Summary Trials in the Code
of Criminal Procedure, 1898.
Section 260 states the power of the
Magistrates to try in a summary way any
of the offences mentioned in that section.
Section 260 of the Code of Criminal
Procedure, 1898 reads as under:

11
Vallabh, 1 Bombay L.R. 683.

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260. Power to try summarily. (1)
Notwithstanding anything contained in
this Code,-
(a) ***
(b) any Magistrate of the First class
specially empowered in this behalf by
the Provincial Government, and
(c) any Bench of Magistrates invested
with the powers of a Magistrate of the
first class and especially empowered in
this behalf by the Provincial Government
,
may if he thinks fit, try in a summary
way all or any of the following offences:
(a) offences not punishable with
death, transportation or imprison
ment for a term exceeding six
months;
(b) offences relating to weights and
measures under sections 264, 265 and
266 of the Pakistan Penal Code;

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(c) hurt under clause (a0 of section
377A of the same Code;
(d) theft under section 379, 380 and
381 of the same Code, where the
value of the property stolen does not
exceed ten thousand rupees;
(e) dishonest misappropriation of
property under section 403 of the
same Code, where the value of the
property misappropriated does not
exceed ten thousand rupees;
(f) receiving or retaining stolen
property under section 411 of the
same Code, where the value of such
property does not exceed ten
thousand rupees;
(g) assisting in the concealment or
disposal of stolen property under
section 414 of the same Code, where
the value of such property does not
exceed ten thousand rupees;

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(h) mischief, under section 427 of the
same Code;
(i) house trespass, under section 448
and offences under section 451, 453,
454, 456 and 457 of the same Code;
(j) insult with intent to provoke a
breach of the peace under section
504, and criminal intimidation, under
section 506 of the same Code;
(jj) offence of personation at an
election under section 171-F of the
same Code;
(k) abetment of any of the foregoing
offences;
(l) an attempt to commit any of the
foregoing offences, when such
attempt is an offence;
(m) offences under section 20 of the
Cattle Trespass Act, 1871;
***

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(2) When in the course of a summary
trial it appears to the Magistrate or
Bench that the case is one which is of a
character which renders undesirable
that if it should be tried summarily, the
Magistrate of Bench shall recall any
witness who may have been examined
and proceed to re-hear the case in a
manner provided by this Code.

Section 261 of the Code of Criminal

Procedure, 1898 empowers the
Provincial Government on the
recommendation of the High Court to
confer on any Bench of Magistrates
invested with the power of a Magistrate
of the second or third class , power to
try summarily all or any of the
following offences,-
(a) offences against the PPC section
277, 278, 279, 285, 286, 289, 290,

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 292, 293, 294, 337A(i) , 337L(2),
337H (2), 341, 352, 426, 447 and
504;
(b) offences against municipal Acts,
and the conservancy clauses of
Police Acts which are punishable
only with fine or with imprisonment
for a term not exceeding one month
with or without fine;
(c) abetment of any of the foregoing
offences;
(d) an attempt to commit any of the
foregoing offences when such
attempt is an offence.

Section 262 gives the procedure

prescribed in chapter XX. It has two
sub-sections. Subsection (1) says: In
trials under this chapter, the procedure
prescribed in chapter XX shall be

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followed except as hereinafter
mentioned.
Sub-section (2) prescribes the limit of
punishment and says that no sentence
of imprisonment for term exceeding
three months shall be passed in the case
of an y conviction under this Chapter.

Section 263 lays down the minimum

requirement of law as to record in cases
where there is no appeal. It states:
In cases where no appeal lies, the
Magistrate or Bench of Magistrates
need not record the evidence of the
witnesses or frame a formal charge; but
he or they shall enter in such form as
the Provincial Government may direct
the following particulars:
(a) the serial number;
(b) the date of the commission of
offence;

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(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 (d), clause (e),
clause (f) or clause (g) of subsection
(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, and in the case of a
conviction, a brief statement of the
reasons therefore;
(i) the sentence or other final order;
and

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 (j) the date on which the proceedings
terminated.

Section 264 speaks of the record in

appealable cases and states that,-
(1) In every case tried summarily by a
Magistrate or Bench in which an
appeal lies, such Magistrate or bench
shall record the substance of the
evidence and also the particulars
mentioned in section 263, and shall
before passing before passing any
sentence record a judgment in the
case.

Section 265 has four sub-sections. Sub-

section (1) states that records made under
section 263 and judgments recorded
under section 264 shall be written by the
Presiding Officer, either in English or in
the language of the Court, or if the Court

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to which such presiding officer is
immediately subordinate so direct, in
such officer’s mother-tongue.
Sub-Section (2) empowers the Provincial
Government to authorize any Bench of
magistrates empowered to try offences
summarily to prepare the aforesaid
record or Judgment by means of an
officer appointed in this behalf by the
Court to which such bench is
immediately subordinate, and the record
or judgment so prepared shall b e signed
b y each member of such Bench present
taking part in the proceedings.
Sub-section (3) states that if no such
authorization be given the record
prepared by a member of the Bench and
signed as aforesaid shall be the proper
record.

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Sub-section (4) states that if the Bench
differs in opinion, any dissentient
member may write a separate judgment.

For Regular trial the procedure is given

in Chapter XXI of the Code of Criminal
Procedure, 1898.

SIMILARITIES BETWEEN
SUMMARY AND REGULAR TRIALS:

 In both the charge is framed.

 In both the accused is examined.
 In both the evidence is taken.
 In both the record is maintained.
 In both the order is announced.
 In both the Competent Magistrate
conducts the proceedings.
 In both kinds of trial the reasons for
the findings are to be given.

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  Provisions of sections 191, 243, 342
and 250 apply to summary trials
equally with ordinary trials.
 In both trials illegality vitiates the
whole trial but irregularity does not.

DISSIMILARITIES BETWEEN
SUMMARY AND REGULAR TRIALS:
 Summary trial is simple while
Regular trial is complex.
 In summary trial procedure is short
while in regular trial it is full-fledged.
 In summary trial under section 263 of
the Code of Criminal Procedure,
1898 in cases where no appeal lies,
the Magistrate or Bench of
Magistrate need not record the
evidence of the witnesses or frame a
formal charge; while in regular trial
recording of evidence of the

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 witnesses and framing of formal
charge is must.
 In summary cases recording evidence
is not necessary only gist suffices
while in Regular trial it is compulsory
to record the evidence at full.
 In summary trial where appeal lies
the Magistrate must preserve the
original notes of evidence so that the
Appellate or Revisional Court may
see the error while in Regular trial the
whole evidence is to be recorded with
full opportunity to cross examines
and thereafter even the arguments on
both sides are to be heard by the
Magistrate.

 In summary trial only substance of

the witnesses evidence is to be stated
generally and not a separate record of
each witness is to be kept but in the

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 regular trial each witnesses
deposition’s separate record is to be
made. The expression substance of
the evidence implies a judicious
selction of précis of that part of the
evidence which is really material.
The question whether the substance
of the evidence has been sufficiently
recorded in a particular case depends
upon a consideration of the nature
and relevance of the various pieces of
evidence given in the case having
regard tot the issues raised or
involved in the case.12

 In summary trial reasons for the

sentence are not to be given while in
regular trial reasons both for finding
and sentencing are to be given by the
Magistrate.
12
AIR 1948 Sind 59.

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WHETHER JURISDICTION OF
HIGH COURT TO PUNISH
SUMMARILY CONTEMPTS OF ITS
AUTHORITY IS AFFECTED BY
THE PROVISIONS OF THE CODE
OF CRIMINAL PROCEDURE, 1898
?

The answer is in the negative. The

authority is available in AIR 1926
Lahore 1 (F.B).; AIR 1927 Lahore 610
(SB) which says that “the High Court as
a superior Court of Record has a special
jurisdiction to punish summarily
contempt of its authority, and this
jurisdiction is independent of, and
unaffected by, the provisions of the
Code.”.
***********
Bibliography:

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1. Offences and Defences in
Criminal Trial, Justice ® Dr.
Munir Ahmad Mughal, Muneeb
Book House, Lahore, 2012;
2. Code of Criminal Procedure,
1898, Shaukat Mahmud and
Nadeem Shaoukat Advocates,
Lahore, 2010.
3. Wharton’s Law Lexicon,
Universal Law Company, New
Delhi.
4. AIR
5. PLD
6. Cr. Law Journal.

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