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TMI Blog2019 (6) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... (5A) of the Companies Act, 1956 against the petitioner. 2. On an earlier occasion, a preliminary objection was raised on behalf of the Official Liquidator, submitting that the petition for discharge was not maintainable under Section 245(2) of the Cr.P.C. The petitioner then filed I.A. No. 970 of 2018 with a prayer to consider the discharge petition also under Section 251 of the Cr.P.C. Such prayer of the petitioner was allowed by order no. 38 dated 23.08.2018 with the observation that the original application be amended to the extent that it be treated as having been filed under Sections 245(2) and 251 of the Cr.P.C. 3. When the discharge petition was taken up for consideration on merits, a similar preliminary objection has been raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 255(1) of the Code of the Criminal Procedure. Section 251 read with S. 255(1), Cr.P.C. are contained in Chapter 20. This deals with trial of summon cases by the Magistrate. Under Section 251 of Criminal Procedure Code, when the accused appears before the Magistrate, the particulars of the offences for which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence is to make, but it shall not be necessary to frame a formal charge. Under Section 255(1) of the Code of the Criminal Procedure, if the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." 4. Learned counsel for the Official Liquidator has also relied on a decision of the Hon'ble Supreme Court in the case of John Thomas Vs. Dr. K. Jagadeesan, (2001) 6 SCC 30 for the proposition that Section 258 of the Cr.P.C. is an exception to the normal rule in summons cases, that once a trial in a summons cases has started, it must reach its normal culmination. Section 258 provides for stopping the proceeding at any stage without pronouncing judgment in summons cases instituted otherwise than upon complaint. There is thus no provision whatsoever in Chapter XX of the Cr.P.C. on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Make My Trip (India) Private Ltd. decided on 18.11.2013 in Crl.M.C. 2598 of 2012 & Crl.M.A. 13279 of 2012, and (IV) Arvind Kejriwal & Ors. Vs. Amit Sibal decided on 16.01.2014 in Crl.M.C. 5245 of 2013. 7. Learned counsel for the petitioner fairly states that as regards Crl.M.C. No. 5245 of 2013 (Arvind Kejriwal & Ors. Vs. Amit Sibal & Anr.), an appeal was preferred in Criminal Appeal No. 1101 of 2016 (Amit Sibal Vs. Arvind Kejriwal & Others) before the Hon'ble Supreme Court which came to be decided on 17.11.2016 reported in (2018) 12 SCC 165. The appeal was allowed, setting aside the order of the Delhi High Court and the case was remitted back for fresh decision. Pursuant to the remand order, the matter was taken up by the Delhi Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is the latest in point of time of all decisions relied upon by the petitioner. Therefore, the earlier decisions of the Hon'ble Delhi High Court must, on a parity of reasoning, be treated as impliedly set aside. 11. I have heard the parties at length and have given my careful consideration to the matter at hand. 12. As regards the decision in Bhushan Kumar's case (supra), it is clear that the same has been rendered in the context of Section 420 of the Indian Penal Code and is a warrant case. Hence, its basic fact matrix is distinguishable from that of the present case which is concerned with a complaint under Sections 454(5) and 454(5A) of the Companies Act, 1956 triable as a summons case. In this view of the matter, therefore, it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier decision of the Larger Bench in Subramanium Sethuraman' case (supra). In view of the categorical observation in paragraph-17 of the judgment by the Larger Bench as aforesaid, there can be no manner of doubt that a discharge petition under Section 251 of the Cr.P.C. cannot be maintained. 15. For the above reasons, I am also not persuaded to consider the view expressed in the other decisions of the Hon'ble Delhi High Court relied upon by the petitioner which have been rendered without noticing the binding decision in Subramanium Sethuraman's case (supra). 16. In line with the observations in Subramanium Sethuraman's case (supra), it must also be held that the petition for discharge is not maintainable also under Section 245(2) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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