TMI Blog2014 (1) TMI 1870X X X X Extracts X X X X X X X X Extracts X X X X ..... Court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice. The power under Section 482 Cr.P.C. is in its nature extraordinary and is to be exercised ex debito justitae‟ to do the real and substantial justice for the administration of which alone Courts exist. The Court, therefore, has to be careful to see that its decision is based on sound general principles of criminal jurisprudence and is not in conflict with the statutory provisions. This provision cannot be invoked to override an express provision of law or when there is another remedy available - 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued to him by a court at Delhi. He challenged the summoning order on the ground that it is only the court at Bombay which has jurisdiction to try and entertain the complaint. His petition under Section 482 CrPC challenging the summoning order has been rejected by the High Court by the impugned order. Hence, he is before us in this appeal. 4. In our opinion, in such cases where the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned should approach the trial court with a suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with the case. 5. For the reasons stated hereinabove, the impugned judgment and order is set aside and the appeal is allowed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1881 is sought on merits. At the hearing, learned counsel for petitioner had submitted that there is no specific averment against petitioner in the complaint in question about his being incharge of and responsible for conduct of business of the company and that petitioner should not be made vicariously liable. Learned counsel for petitioner further contended that the cheque in question was not signed by petitioner. During the course of the hearing, learned counsel for petitioner informed that Notice under Section 251of Cr.P.C. has not yet been framed in the complaint case in question. Since Notice under Section 251 Cr.P.C. has not yet been framed, it is deemed appropriate to relegate petitioners to urge the pleas taken herein before the trial court at the hearing on the point of framing of Notice under Section 251 of Cr.P.C., as the dictum of Apex Court in Bhushan Kumar and Anr. Vs. State (NCT of Delhi) and Anr. AIR 2012 SC 1747 persuades this Court not to exercise inherent jurisdiction under Section 482 Cr.P.C. to entertain this petition. Pertinent observations of Apex Court in Bhushan Kumar (Supra), are as under:- 17. It is inherent in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int of framing of Notice and if it is so done, then trial court shall deal with the pleas raised herein by passing a speaking order. Needless to say, if the trial court proceeds to drop the proceedings qua petitioners, then the Apex Court's decision in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 SCC 338 would not stand in the way of trial court to do so. Till the trial court decides to frame or not to frame Notice under Section 251 Cr.P.C. against petitioner, petitioner's personal appearance before the trial court be not insisted, provided petitioner is duly represented by counsel, who does not seek adjournment on his behalf. Needless to say that if the trial court chooses to frame Notice under Section 251 Cr.P.C., then petitioner would be at liberty to avail of the remedy as available in the law. (Emphasis supplied) (iv) In Urrshila Kerkar v. Make My Trip (India) Private Ltd., MANU/DE/4138/2013, the accused challenged the summoning order in a complaint of defamation. Sunil Gaur, J. relying upon in Bhushan Kumar (supra) and Krishna Kumar Variar (supra), directed the accused therein to raise all pleas before the learned Metropolita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to 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. 7. Further, on this aspect, the dictum of the Apex Court in Krishan Kumar Variar v. Share Shoppe (2010) 12 SCC is as under:- 4. In our opinion, in such cases where the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned should approach the trial court with a suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with the case. 5. For the reasons stated hereinabove, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process under Section 204 Cr.P.C. in a summons trial case. This section casts a duty upon the Magistrate to state to the accused person the particulars of offence allegedly committed by him and ask him whether he pleads guilty. This can be done by the Magistrate only if the charge sheet/complaint/preliminary evidence recorded during enquiry disclose commission of a punishable offence. If the charge sheet/complaint does not make out a triable offence, how can a Magistrate state the particulars of non-existing offence for which the accused is to be tried. Therefore, it is inherent in Section 251 of the Code of Criminal Procedure that when an accused appears before the Trial Court pursuant to summons issued under Section 204 Cr.P.C. in a summons trial case, it is bounden duty of the Trial Court to carefully go through the allegations made in the charge sheet/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. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raming 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: Section 251. Substance of accusation to be stated.- When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. (iii) In summons cases instituted otherwise than upon complaints which would include cases based on police reports, the Magistrate has power under Section 258 Cr.P.C. to stop further proceedings. The provisions of Section 251 read with Section 258 Cr.P.C. clothe the learned Magistrate in a case inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage of framing of notice under Section 251 Cr.P.C. 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 251Cr.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 362Cr.P.C. The two sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal Courts subordinate to it, inherent power to give effect to any order of any such Court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice. 11. The requirements of justice give an occasion for the development of new dimension of justice by evolving juristic principles for doing complete justice according to the current needs of the Society. The quest for justice in the process of administration of justice occasions the evolution of new dimensions of the justice. J.S. Verma, J., in his Article New Dimensions of Justice , (1997) 3 SCC J-3 observed that:- ...Justice is the ideal to be achieved by Law. Justice is the goal of law. Law is a set of general rules applied in the administration of justice. Justice is in a cause on application of law to a particular case. Jurisprudence is the philosophy of law. Jurisprudence and Law have ultimately to be tested on the anvil of administration of justice. Law as it is‟, may fall short of 'Law as it ought to be' for doing complete justice in a cause. The gap between the two may be described as the field covered by Morality. There is no doubt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, has to be careful to see that its decision is based on sound general principles of criminal jurisprudence and is not in conflict with the statutory provisions. This provision cannot be invoked to override an express provision of law or when there is another remedy available. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts. 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 239Cr.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. 16. If the Trial Court has to frame the notice under Section 251 Cr.P.C. where no prima facie case is made out against the petitioners, the hearing at the stage of notice under Section 251 Cr.P.C. would be a mere farce and would result in failure of justice. In warrant cases whether arising out of police report or complaint, the learned Magistrate is empowered to discharge the accused if no prima facie case is made out against him under Section 239 Cr.P.C. whereas in summons cases, such a power is given to the Magistrate only in cases other than complaint cases meaning thereby that the Magistrate has to frame the notice and proceed with the matter even if no prima facie case is made out against the accused. As such, the denial of the remedy of discharge to the accused in summons cases at the stage of notice under Section 251 Cr.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 21. Applying the aforesaid principles to this case, the petitioners are permitted to urge the pleas raised in this petition before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C. whereupon the learned Metropolitan Magistrate shall consider them and pass a speaking order. The learned Magistrate shall frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out against the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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