Research › Search › Judgment

Delhi High Court · body

2014 DIGILAW 618 (DEL)

Akhilesh Kumar v. State & Anr.

2014-02-21

SUNIL GAUR

body2014
Sunil Gaur, J.:-- 1. Quashing of criminal complaint No. 224/1/13, under Section 138 of The Negotiable Instruments Act, 1881 and summoning order 27th June, 2012 and order of 7th November, 2013 declaring petitioner as Proclaimed Offender is sought in this petition. 2. Learned counsel for petitioner submits that petitioner has been wrongly arrayed as accused in the complaint in question and impugned order of 7th November, 2014 directing issuance of process under Section 82 of Cr.P.C. against petitioner is unwarranted. 3. Upon hearing and on perusal of complaint in question and impugned order, I find that the quashing of this complaint is sought on merits. Since petitioner has been declared Proclaimed Offender by trial court, therefore, this petition for quashing of complaint in question on merits is not being entertained with liberty to petitioner to seek recalling of impugned order of 7th November, 2013 before the trial Court. 4. Learned counsel for petitioner submits that matter is now fixed on 5th March, 2014 before trial court for framing of Notice under Section 251 Cr.P.C. and recalling of impugned order of 7th November, 2013 would be sought within a week. 5. Till aforesaid application is decided, no coercive steps be taken against petitioner in this case. In case Proclaimed Offender proceedings against petitioner are set aside, then it would be open to petitioner to urge the pleas taken herein before trial court at the stage of framing of Notice under Section 251 of Cr.P.C. It is being so said in view of dictum of the Apex Court in Bhushan Kumar and Anr. v. State (NCT of Delhi) and 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. v. State (NCT of Delhi) and 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.” 6. 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, 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.” 7. 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.” 7. In view of authoritative pronouncement of the Apex Court in Bhushan Kumar and Krishan Kumar (supra) as referred to hereinabove and in view of the ground reality that this Court is being clogged by filing of such petitions, it is the need of the hour to direct petitioner to approach the trial court, so that such petitioners instead of straightway rushing to this Court, ought to seek dropping of the proceedings by the trial court to ensure that summary trial in such like matters does not get unnecessarily delayed. 8. Petitioner is accordingly relegated to trial court to urge the pleas taken herein before trial court at the hearing on 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 being so said in view of observations of a Coordinate Bench of this Court in S.K. Bhalla v. State and ors. (2011) 180 DLT 219 , which reads as under:- “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 CrPC 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.” 9. Needless to say, if trial court finds that no case is made out against petitioner, then Apex Court’s decision in Adalat Prasad v. Rooplal Jindal and Ors. (2004) 7 SCC 338 will not stand in the way of trial court to drop proceedings against petitioner. It is so said because dropping of proceedings at Notice stage cannot possibly be equated with recalling of summoning order. 10. In the event of withdrawal of Proclaimed Offender proceedings against petitioner, till trial court decides to frame or not to frame Notice under Section 251 of Cr.P.C. against petitioner, personal appearance of petitioner be not insisted upon by trial court provided petitioner files an application under Section 205 of Cr.P.C. before the trial court alongwith his affidavit undertaking as under:- f. 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 on every hearing and does not seek adjournment; g. that petitioner will not dispute his identity as accused in the case; h. that the petitioner will appear in person in case he is directed to do so in future; and i. that petitioner will not raise the question of prejudice in future. 11. Needless to say if trial court chooses to proceed against petitioner, then petitioner will have the remedy as available in the law. 12. This petition and applications 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. 13. Dasti. ____________