Delhi High Court
Udo E Land & Anr. vs Mahesh Dewan on 26 August, 2015
Author: Sunil Gaur
I- R-200
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 26, 2015
+ CRL.M.C. 3979/2012 & Crl.M.A. No.19047/2012
UDO E LAND & ANR. ..... Petitioners
Through: Mr. Sushil Bajaj & Mr. Manish
Aggarwal, Advocates
versus
MAHESH DEWAN ..... Respondent
Through: Mr. Arun Srivastava, Advocate
with respondent in person
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Quashing of criminal complaint No.08/1/11, Sh. Mahesh Dewan
Vs. UDO-E-Land & ors. and impugned order of 7th August, 2012 is
sought on merits in this petition. Vide aforesaid order, petitioners have
been summoned to for offences under Sections 500/34 of IPC.
Learned counsel for petitioners submits that vide order of 23 rd
November, 2012, petitioners have been exempted from personally
appearing before the trial court, subject to their counsel appearing and
that Notice under Section 251 of Cr.P.C. has not yet been framed in the
complaint in question.
At the outset, it is made clear that learned counsel for petitioners
has not been heard on merits, as petitioners have an alternate and
Crl.M.C.No. 3979/2012 Page 1
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 out of the complaint in question. It is being so said in
view of dictum of the Apex Court 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
Crl.M.C.No. 3979/2012 Page 2
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."
In view of authoritative pronouncement of the Apex Court in
Bhushan Kumar & Krishan Kumar (supra) and applying it to the facts of
this case, inherent powers of this Court under Section 482 of the Cr.P.C.
are not exercised and petitioner is 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 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. Similar view has
Crl.M.C.No. 3979/2012 Page 3
been already taken by a coordinate Bench of this Court in S.K. Bhalla V.
State and Others 180 (2011) DLT 219.
Needless to say, if the trial court finds that no case is made out
against petitioners, then the decision of the Apex Court's in Adalat
Prasad Vs Rooplal Jindal and Ors. (2004) 7 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. It is so said because dropping of
proceedings at Notice stage cannot possibly be equated with recalling of
summoning order.
Purely as an interim measure, till the arguments on the point of
framing of Notice under Section 251 of Cr.P.C. are concluded, personal
appearance of petitioners be not insisted upon by the trial court upon
petitioners filing an application under Section 205 of Cr.P.C. alongwith
his affidavit with the following undertaking: -
a. that the proceedings of the case shall be regularly conducted by
counsel (whose name shall be disclosed in application), who
shall appear on behalf of petitioner(s) on every hearing and will
not seek adjournment;
b. that petitioner(s) shall not dispute their identity as accused in
the case;
c. that the petitioner(s) shall appear in person as and when
directed in future to do so; and
d. that petitioner(s) shall not raise the question of prejudice in
future.
Crl.M.C.No. 3979/2012 Page 4
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 by this Court.
This petition and the 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.
Dasti.
(SUNIL GAUR)
JUDGE
August 26, 2015
r
Crl.M.C.No. 3979/2012 Page 5
