Rita Pal & Others vs Balbir Kohli
2015 Latest Caselaw 6006 Del

I-7
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of Decision: August 17, 2015

+     CRL.M.C. 5189/2013 & Crl.M.A.No. 18688/2013
      RITA PAL & OTHERS                                    ..... Petitioners
                    Through:             Mr. Ashish Lal & Mr.Raghav
                                         Parwartiyar, Advocates

                           versus

      BALBIR KOHLI                                         ..... Respondent
                           Through:      Mr. G.S. Sandhu, Advocate

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                          JUDGMENT

% (ORAL)

Quashing of criminal complaint No. 6172/1/11, under Section 500 of the IPC and impugned summoning order of 25 th September, 2013 is sought in this petition on merits.

At the hearing, it was disclosed by learned counsel for petitioner that Notice under Section 251 of Cr.P.C. has not yet been framed and the matter is now coming up before the trial court in December, 2015.

Since petitioners have an alternate and efficacious remedy available to them to urge the pleas taken herein before trial court at the time of framing of Notice under Section 251 of Cr.P.C., therefore, this Court finds that inherent powers of this Court under Section 482 of the Cr.P.C. are not required to be invoked to quash the proceedings arising

Crl.M.C.No. 5189/2013 Page 1 out of the complaint in question. It is being so said in view of Apex Court's dictum in Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr. AIR 2012 SC 1747, which persuades this Court not to exercise inherent jurisdiction under Section 482 Cr.P.C. to entertain this petition. The pertinent observations of Apex Court in Bhushan Kumar (Supra), 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 Code."

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

Crl.M.C.No. 5189/2013 Page 2 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."

In view of authoritative pronouncement of the Apex Court in Bhushan Kumar & Krishan Kumar (supra,) as referred to hereinabove, inherent powers of this Court under Section 482 of the Cr.P.C. is not exercised and petitioners are relegated 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. and if it is so done, then trial court shall deal with the pleas raised herein by passing a speaking and reasoned order. At the stage of framing of Notice under Section 251 of the Cr.P.C., trial court is not expected to function like a post office and to mechanically frame Notice, but is rather bound by law to apply its mind to find out whether prima facie case is made out against the accused or not. It is so said because dropping of proceedings at Notice stage cannot possibly be equated with recalling of summoning order. Needless to say, if the trial court finds that no case is made out against petitioners, then the Apex Court's decision in Adalat Prasad Vs Rooplal Jindal and Ors. (2004) 7

Crl.M.C.No. 5189/2013 Page 3 SCC 338 will not stand in the way of trial court to drop the proceedings against petitioners and if trial court chooses to proceed against petitioners, then petitioners will have the remedy as available in the law.

Till the time arguments on the point of framing of charge are heard, personal appearance of petitioners be not insisted upon by the trial court, provided petitioner is duly represented through counsel, who does not seek adjournment. However, it is made clear that if petitioners delay the proceedings before the trial court, then petitioners will not have the benefit of exemption from personal appearance extended to them by this Court.

This petition and application are accordingly disposed of in aforesaid terms while refraining to comment upon merits, lest it may prejudice either side at the hearing on the framing of Notice under Section 251 of Cr.P.C.

                                                         (SUNIL GAUR)
                                                           JUDGE

August 17, 2015
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Crl.M.C.No. 5189/2013                                                 Page 4