TMI Blog2019 (6) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... t maintainable also under Section 245(2) of the Cr.P.C., which falls under Chapter XIX thereof and deals with trial of warrant cases - petition dismissed. - Original Criminal Miscellaneous No. 2 of 2014 and Company Petition No. 17 of 1999. - - - Dated:- 26-2-2019 - VIKASH JAIN J. Sanjay Singh , for the petitioner. Alok Kumar Agrawal , for the official liquidator. ORDER I.A. No. 1558 of 2017 The present I.A. has been filed on behalf of the petitioner for discharge under Section 245(2) Cr.P.C. in Original Criminal Miscellaneous No. 2 of 2014 initiated in C.P. No. 17 of 1999 wherein cognizance has been taken for offence alleged under Sections 454(5) and 454(5A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note of the various provisions such as Sections 251, 254 and 255(1) of the Cr.P.C., the Court expressed the view that the discharge petition under Section 251 of the Cr.P.C. was not maintainable. The following observations from the judgment have been referred - 10 . I have heard both the parties, perused the documents as well as the lower Court records. At the very outset I must say that the order suffers from grave illegality on two important points of law referred below. The offence for which the cognizance taken by the Magistrate are under Sections 147, 447, 427 and 506(1), I.P.C. as per the schedule of criminal procedure code these offences are to be tried as summons cases. The application for discharge was filed under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king evidence as contemplated under Section 254 of the Code of Criminal Procedure. As such, the petition itself was not maintainable. The worst part of it is that the order of discharge passed by the Magistrate was under Section 251 of the Code of Criminal Procedure, which has no relevance to discharge. xxx xxx xxx 12 . Consequently, there are some other sections provided for discharge, discharging the accused in a (police) warrant case and (Police) sessions case. Under Section 239 of the Code of the Criminal Procedure if upon considering the police report and the documents sent with it under Section 173 and making such examination if any, of the accused as the Magistrate thinks necessary and after giving the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial court to carefully go through the allegations made in the charge-sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code. 6. Learned counsel for the petitioner has also relied on the following decisions of the Delhi High Court - (I) S.K. Bhalla Vs. State and Ors. decided on 13.05.2011 in Crl.M.C. 2727 of 2009, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion were framed in paragraph-9 of the said decision, as follows - 9 . The questions which arise for consideration in these appeals are : (a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear? (b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same? 9. It is submitted that it is in this backdrop that the observations of the Hon ble Supreme Court in paragraph-20 of the said judgment were made, and can at best be understood to be in the nature of obiter dicta rather than the ratio decidendi of the case inasmuch as the Hon'ble Supreme Court was not seized of the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sethuraman Vs. State of Maharashtra and Another, (2004) 13 SCC 324, which was considering a matter relating to an offence punishable under Section 138 of the Negotiable Instruments Act. The provisions of Chapter XX of the Cr.P.C. were adverted to and specifically held in paragraphs 16 and 17 of the judgment as follows 16 . The case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. 17 . As observed by us in Adalat Prasad case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
