Delhi High Court
Sh.Ram Narain Gupta vs Govt Of Nct Of Delhi & Anr on 21 February, 2014
Author: V.P.Vaish
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. No. 201/2012
Reserved on: 21st January, 2014
% Date of Decision: 21st February, 2014
SH. RAM NARAIN GUPTA ..... Petitioner
Through: Mr.Sunil Kumar, Adv.
Versus
GOVT OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Parveen Bhati, APP for the State
Ms. Shobha Gupta , Adv. for MCD
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
JUDGMENT
1. The petitioner, Ram Narain Gupta has filed the present petition
under Section 482 of the Code of Civil Procedure, 1973 (hereinafter
referred to as `Cr.P.C.') against the impugned order dated 29.8.2011
passed by learned Metropolitan Magistrate (East District),
Karkardooma Courts, Delhi whereby the petitioner has been
summoned in a challan under Sections 417/430 of the Delhi Municipal
Corporation Act, 1957.
2. Briefly stating, the facts of the present case are that on 25.7.2011
the respondent/MCD issued challan under Sections 417/430 of the
Delhi Municipal Corporation Act, 1957 against the petitioner on the
ground that petitioner was running trade/storage of copper and brass
without license.
3. Vide order dated 29.8.2011, learned trial court issued summons
under Sections 417 of the DMC Act against the petitioners.
4. Feeling aggrieved by the said order, the petitioner has preferred
the present petition.
5. I have given my thoughtful consideration to the submissions
made by learned counsel for both the parties.
6. Learned counsel for the petitioner contended that running trade
of storage of copper/brass does not fall in the Eleventh Schedule of the
DMC Act and is not punishable under Section 417 of the Act.
7. On the other hand, learned counsel for the respondent urged that
Part-I of the Eleventh Schedule of the DMC Act provides the purpose
for which premises may not be used without a license. Entry at serial
No.20 provides for Metal (ferrous or non-ferrous or antimony but
excluding previous metal) cutting or treating metal by hammering,
drilling, pressing, filing, polishing, heating or by any other process
whatever or assembling part of metal.
8. During the course of hearing, learned counsel for the petitioner
informed that notice under Section 251 Cr.P.C. has not yet been
framed.
9. Section 251 Cr.P.C. deals with the stage subsequent to issue of
process under Section 204 Cr.P.C. in a summary 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 asking him
whether he pleads guilty. This can be done by the magistrate only if
the complaint/preliminary evidence/chargesheet recorded during
enquiry disclose commission of a punishable offence. If the
chargesheet/complaint does not make out a triable offence, a
magistrate cannot state the particulars of non-existing offence for the
accused is to be tried. Therefore, it is inherent in Section 251 Cr.P.C.
that when an accused appears before the trial court pursuant to
summons issued against under Section 204 Cr.P.C. , the magistrate is
required to go through the chargesheet/complaint and arrive at 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.
10. In my view, the petitioner has an alternate efficacious remedy
available to him to urge all the pleas before the trial court at the time of
notice under Section 251 Cr.P.C. This Court is of the opinion that
inherent power of this Court under Section 482 Cr.P.C. are not
required to be invoked to quash the proceedings, in view of the dictum
of the Apex Court in Bhushan Kumar and Another vs. State (NCT
of Delhi) & Anr., (2012) 5 SCC 424, the relevant para of the
judgment reads as under:
"20. 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 accused and ask him whether he
pleads guilty otherwise, he is bound to discharge
the accused as per Section 239 of the Code."
11. Further, the Apex Court in another case Krishna Kumar
Variar vs. Share Shoppe, (2010) 2 SCC 485 observed:-
"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 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."
12. In view of the authoritative pronouncements of the Apex Court
in the aforesaid judgments of Bhushan Kumar's case (supra) and
Krishna Kumar Variar (supra) , this petition is not maintainable.
Since notice under Section 251 Cr.P.C. has not been framed, so it is
deemed appropriate to relegate the petitioner to urge the pleas taken
herein before the trial court at the time of hearing on the point of
framing of notice under Section 251 Cr.P.C. and if it is so done, then
trial court shall deal with the pleas raised herein in accordance with
law.
13. The petition is disposed of accordingly.
(VED PRAKASH VAISH)
JUDGE
FEBRUARY 21st , 2014
aj
