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TMI Blog2014 (1) TMI 1870X X X X Extracts X X X X X X X X Extracts X X X X ..... f the view that the petitioners should urge the pleas raised in this petition before the learned Trial Court at the stage of framing of notice under Section 251 Cr.P.C. in terms of the law laid down in the following judgments: (i) In Krishna Kumar Variar v. Share Shoppe, (2010) 12 SCC 485, the accused challenged the summoning order before this Court under Section 482 Cr.P.C. on the ground that the learned Metropolitan Magistrate lacked the territorial jurisdiction. The petition was rejected by the High Court against which the accused filed the special leave petition. The Supreme Court held that in such cases, instead of rushing to the High Court, the accused should file an application before the Trial Court. The observations made by the Supreme Court are reproduced hereunder:- "2. This appeal has been filed against the impugned judgment and order dated 14-5-2009 of the High Court of Delhi whereby the petition filed under Section 482 CrPC by the petitioner herein has been dismissed. 3. The appellant herein is an accused under Sections 415/420 IPC in which summons have been issued to him by a court at Delhi. He challenged the summoning order on the ground that it is only the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he is bound to discharge the accused as per Section 239 of the Code." (Emphasis supplied) (iii) In Raujeev Taneja v. NCT of Delhi, Crl.M.C. No.4733/2013 decided on 11th November, 2013, a summoning order under Section 138 of the Negotiable Instruments Act was challenged before this Court. Sunil Gaur, J. relying upon Bhushan Kumar (supra) and Krishna Kumar Variar (supra), directed the accused to urge the plea before the learned Trial Court at the stage of framing of notice whereupon the Trial Court shall deal with the pleas raised herein by passing a speaking order and if the Trial Court proceeds to drop the proceedings qua petitioners, then the Apex Court‟s decision in Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338, would not stand in the way of Trial Court to do so. The relevant portion of the said judgment is reproduced hereunder:- "In this petition, quashing of impugned order of 5th July, 2012 whereby petitioner has been summoned as accused in a complaint under Section 138 of The Negotiable Instruments Act, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, 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 appellant, if so advised, may approach the trial court with a suitable application in this connection and, if such an application is filed, the trial court shall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question of jurisdiction before further proceeding with the trial." In view of authoritative pronouncement of the Apex Court in Bhushan Kumar and Krishan Kumar (supra) as referred to hereinabove, this petition and application are disposed of while refraining to comment upon merits, lest it may prejudice either side at the hearing on framing of Notice under Section 251 of Cr.P.C., with liberty to petitioner to urge the pleas taken herein before the trial court at the stage of hearing on the point 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 petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew is taken as trial court is not expected to mechanically frame Notice under Section 251 of Cr.P.C. and has to apply its mind to find out as to whether a prima facie case is made out or not and in the event of finding that no case is made out for proceeding against a particular accused, trial court would be well within its right to drop the proceedings qua such an accused. 6. On this aspect, pertinent observations of Apex Court in Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr. MANU/SC/0297/2012 : AIR 2012 SC 1747 are as under:- "17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons 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 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 Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on the point of Notice under Section251 ofCr.P.C. shall be dealt with by the trial court by passing a reasoned order so that petitioner may avail of the remedies available in law, if need be. Since the plea pertaining to Section 305 of Cr.P.C. goes to the root of this matter, therefore, till the hearing on the point of Notice under Section 251 of Cr.P.C. is concluded by the trial court, personal appearance of petitioner before the trial court is dispensed with provided petitioner is duly represented by counsel, who does not seek adjournment." (Emphasis supplied) (v) In S.K.Bhalla v. State, 180 (2011) DLT 219, Ajit Bharihoke, J. of this Court gave similar interpretation to Section 251 Cr.P.C. The relevant portion of the said judgment is reproduced hereunder:- "15. Section 251 of the Code of Criminal Procedure deals with the stage subsequent to issue of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is ground for presuming that the accused has committed an offence, the charge is framed against the accused under Section 246 Cr.P.C. Section 239 Cr.P.C. is reproduced hereinbelow: "Section 239. When accused shall be discharged.-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 prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge the notice which would lead to multiplicity of litigation. It is for this reason, the Supreme Court in Bhushan Kumar (supra) and Krishan Kumar Variar (supra) has observed that the accused should approach the Trial Court instead of rushing to the higher Court. The Supreme Court has not restricted the directions in the aforesaid two cases to be applicable only to the warrant cases and therefore, the same are applicable to all summons cases including those arising out of complaints. In Bhushan Kumar (supra), the Supreme Court has specifically referred to Section 251 Cr.P.C. which deals only with summons cases. Relying on the aforesaid judgments, this Court, in Raujeev Taneja (supra) and Urrshila Kerkar (supra), has directed the accused to urge his objections before the Trial Court at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances, Courts have no power to do justice or redress a wrong merely because no express provision of the Code can be found to meet the requirements of a case. All Courts, whether civil or criminal, possess, in the absence of express provision in the Code for that purpose, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. This is based on the principle, embodied in the maxim "quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest' - when the law gives a person anything, it gives him that, without which, it cannot exist. The High Court has, in addition thereto, and in view of its general jurisdiction over all the criminal 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper disposal of cases. Article 227 of the Constitution also confers on this Court the power of superintendence over all subordinate courts in relation to which it exercises jurisdiction. The paramount consideration behind vesting such wide power of superintendence in this Court is to keep the path of justice clear of obstructions which would impede it. It is the salutary duty of this Court to prevent the abuse of the process, miscarriage of justice and to correct the irregularities in the judicial process. 13. 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. 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 disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntive 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 251Cr.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 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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