Patna High Court - Orders
Official Liquidator Of Helios Finance ... vs Sanjay Kumar Singh And Ors. on 26 February, 2019
Author: Vikash Jain
Bench: Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
Or. Criminal Miscellaneous No.2 of 2014
In
COMPANY PETITION No.17 of 1999
Arising Out of PS. Case No.- Year- Thana- District-
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Official Liquidator Of Helios Finance And Investment Limited
... ... Petitioner
Versus
Sanjay Kumar Singh and Ors.
... ... Opposite Parties
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Appearance :
For the Petitioner : Mr. Sanjay Singh, Advocate.
For the Official Liquidator : Mr. Alok Kumar Agrawal, Advocate.
CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL ORDER
46 26-02-2019I.A. No. 1558 of 2017 The present I.A. has been filed on behalf of the petitioner for discharge under Section 245(2) Cr.P.C. in Original Criminal Miscellaneous No. 2 of 2014 initiated in C.P. No. 17 of 1999 wherein cognizance has been taken for offence alleged under Sections 454(5) and 454(5A) of the Companies Act, 1956 against the petitioner.
2. On an earlier occasion, a preliminary objection was raised on behalf of the Official Liquidator, submitting that the petition for discharge was not maintainable under Section 245(2) of the Cr.P.C. The petitioner then filed I.A. No. 970 of 2018 with a prayer to consider the discharge petition also under Section 251 of the Cr.P.C. Such prayer of the petitioner was allowed by order no. 38 dated 23.08.2018 with the observation that the original application be amended to the extent that it be treated as having Patna High Court OR. CR. MISC No.2 of 2014(46) dt.26-02-2019 2/10 been filed under Sections 245(2) and 251 of the Cr.P.C.
3. When the discharge petition was taken up for consideration on merits, a similar preliminary objection has been raised by learned counsel for the Official Liquidator with regard to its non-maintainability under Section 251 of the Cr.P.C. It is submitted that Section 251 occurs in Chapter XX of the Cr.P.C. which deals with summons cases. A bare perusal of Section 251 shows that there is no provision for framing of charge thereunder and as such there can be no occasion for consideration of the discharge petition. Reliance is placed on a decision of the Madras High Court in the case of Kumar Vs. Perumal and Others, 1997 Cri.L.J. 907, wherein the validity of the order discharging the accused for the offence under Sections 147, 447, 427 and 506(1) of the Indian Penal Code by invoking the provisions of Section 251 of the Cr.P.C. had been challenged. Taking note of the various provisions such as Sections 251, 254 and 255(1) of the Cr.P.C., the Court expressed the view that the discharge petition under Section 251 of the Cr.P.C. was not maintainable. The following observations from the judgment have been referred -
"10. I have heard both the parties, perused the documents as well as the lower Court records. At the very outset I must say that the order suffers from grave illegality on two important points of law referred below. The offence for which the cognizance taken by the Magistrate are under Patna High Court OR. CR. MISC No.2 of 2014(46) dt.26-02-2019 3/10 Sections 147, 447, 427 and 506(1), I.P.C. as per the schedule of criminal procedure code these offences are to be tried as summons cases. The application for discharge was filed under Section 251 read with S. 255(1) of the Code of the Criminal Procedure. Section 251 read with S. 255(1), Cr.P.C. are contained in Chapter 20. This deals with trial of summon cases by the Magistrate. Under Section 251 of Criminal Procedure Code, when the accused appears before the Magistrate, the particulars of the offences for which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence is to make, but it shall not be necessary to frame a formal charge. Under Section 255(1) of the Code of the Criminal Procedure, if the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal. Therefore, these two sections do not refer the discharge. On the contrary, under Section 255(1), the Magistrate can acquit, only after taking evidence under Section 254 of the Code of the Criminal Procedure, Section 254 of Cr.P.C. contemplates the necessity of the Magistrate to proceed to hear the prosecution case and as such the Magistrate while invoking Section 255(1) of Cr.P.C. has to necessarily take of the witnesses of either side. Without resorting to this procedure Section 255(1) of the Code of the Criminal Patna High Court OR. CR. MISC No.2 of 2014(46) dt.26-02-2019 4/10 Procedure cannot be invoked. In this case, the respondents 1 to 13 herein, have filed a petition for discharge under Sections 251 and 255(1) of the Code of the Criminal Procedure before taking evidence as contemplated under Section 254 of the Code of Criminal Procedure. As such, the petition itself was not maintainable. The worst part of it is that the order of discharge passed by the Magistrate was under Section 251 of the Code of Criminal Procedure, which has no relevance to discharge.
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12. Consequently, there are some other sections provided for discharge, discharging the accused in a (police) warrant case and (Police) sessions case. Under Section 239 of the Code of the Criminal Procedure 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."
4. Learned counsel for the Official Liquidator has also relied on a decision of the Hon'ble Supreme Court in the case of John Thomas Vs. Dr. K. Jagadeesan, (2001) 6 SCC 30 for the proposition that Section 258 of the Cr.P.C. is an exception to the Patna High Court OR. CR. MISC No.2 of 2014(46) dt.26-02-2019 5/10 normal rule in summons cases, that once a trial in a summons cases has started, it must reach its normal culmination. Section 258 provides for stopping the proceeding at any stage without pronouncing judgment in summons cases instituted otherwise than upon complaint. There is thus no provision whatsoever in Chapter XX of the Cr.P.C. on the basis of which a discharge petition can be maintained.
5. Learned counsel for the petitioner, on the other hand, places strong reliance on the decision of the Hon'ble Supreme Court in the case of Bhushan Kumar and Another Vs. State (NCT of Delhi) and Another, (2012) 5 SCC 424. He submits that it has categorically been held that the trial court is duty bound to consider evidence to come to a conclusion whether or not the commission of any offence is disclosed for the purposes of discharge under Section 251 of the Cr.P.C., in the following terms -
"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 Patna High Court OR. CR. MISC No.2 of 2014(46) dt.26-02-2019 6/10 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. Learned counsel for the petitioner has also relied on the following decisions of the Delhi High Court -
(I) S.K. Bhalla Vs. State and Ors. decided on 13.05.2011 in Crl.M.C. 2727 of 2009, (II) Raujeev Taneja Vs. NCT of Delhi and Ors.
decided on 11.11.2013 in Crl.M.C. 4733 of 2013, (III) Urrshila Kerkar Vs. Make My Trip (India) Private Ltd. decided on 18.11.2013 in Crl.M.C. 2598 of 2012 & Crl.M.A. 13279 of 2012, and (IV) Arvind Kejriwal & Ors. Vs. Amit Sibal decided on 16.01.2014 in Crl.M.C. 5245 of 2013.
7. Learned counsel for the petitioner fairly states that as regards Crl.M.C. No. 5245 of 2013 (Arvind Kejriwal & Ors. Vs. Amit Sibal & Anr.), an appeal was preferred in Criminal Appeal No. 1101 of 2016 (Amit Sibal Vs. Arvind Kejriwal & Others) before the Hon'ble Supreme Court which came to be decided on 17.11.2016 reported in (2018) 12 SCC 165. The appeal was allowed, setting aside the order of the Delhi High Court and the case was remitted back for fresh decision. Pursuant to the remand order, the matter was taken up by the Delhi High Court, but the petition was disposed of on 11.07.2018 as withdrawn at the instance of the petitioners. It is submitted that the other Patna High Court OR. CR. MISC No.2 of 2014(46) dt.26-02-2019 7/10 judgments of the Delhi High Court as above, however, continue to operative nevertheless.
8. In reply, learned counsel for the Official Liquidator has sought to distinguish the judgment in Bhushan Kumar's case (supra), a warrant case wherein the Court was concerned with the provisions of Section 420 of the Indian Penal Code, unlike the present one which is a summons case related to Section 454 of the Companies Act. The questions for consideration were framed in paragraph-9 of the said decision, as follows -
"9. The questions which arise for consideration in these appeals are :
(a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear?
(b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same?"
9. It is submitted that it is in this backdrop that the observations of the Hon'ble Supreme Court in paragraph-20 of the said judgment were made, and can at best be understood to be in the nature of obiter dicta rather than the ratio decidendi of the case inasmuch as the Hon'ble Supreme Court was not seized of the question whether or not a discharge petition could be maintained u/s 251 of the Cr.P.C.
10. It is further submitted that the Hon'ble Supreme Patna High Court OR. CR. MISC No.2 of 2014(46) dt.26-02-2019 8/10 Court has admittedly set aside the judgment in Arvind Kejriwal's case (supra) which is the latest in point of time of all decisions relied upon by the petitioner. Therefore, the earlier decisions of the Hon'ble Delhi High Court must, on a parity of reasoning, be treated as impliedly set aside.
11. I have heard the parties at length and have given my careful consideration to the matter at hand.
12. As regards the decision in Bhushan Kumar's case (supra), it is clear that the same has been rendered in the context of Section 420 of the Indian Penal Code and is a warrant case.
Hence, its basic fact matrix is distinguishable from that of the present case which is concerned with a complaint under Sections 454(5) and 454(5A) of the Companies Act, 1956 triable as a summons case. In this view of the matter, therefore, it may be concluded that the Hon'ble Supreme Court was not directly considering the scope of Section 251 of the Cr.P.C. in the context of a summons case, and this conclusion would explain the observation in paragraph-20 of the judgment that in an appropriate case, the Court would discharge the accused as per Section 239 of the Code.
13. In my view, the question of law at hand stands decided much earlier by a Bench of three Hon'ble Judges of the Supreme Court in the case of Subramanium Sethuraman Vs. State of Maharashtra and Another, (2004) 13 SCC 324, which was Patna High Court OR. CR. MISC No.2 of 2014(46) dt.26-02-2019 9/10 considering a matter relating to an offence punishable under Section 138 of the Negotiable Instruments Act. The provisions of Chapter XX of the Cr.P.C. were adverted to and specifically held in paragraphs 16 and 17 of the judgment as follows -
"16. ... The case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. ...
17. As observed by us in Adalat Prasad case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case."
14. The decision by a Bench of two Hon'ble Judges of the Supreme Court in Bhushan Kumar's case (supra) relied upon by the petitioner has not noticed the earlier decision of the Larger Bench in Subramanium Sethuraman' case (supra). In view of the categorical observation in paragraph-17 of the judgment by the Larger Bench as aforesaid, there can be no manner of doubt that a discharge petition under Section 251 of the Cr.P.C. cannot be maintained.
15. For the above reasons, I am also not persuaded to consider the view expressed in the other decisions of the Hon'ble Delhi High Court relied upon by the petitioner which have been Patna High Court OR. CR. MISC No.2 of 2014(46) dt.26-02-2019 10/10 rendered without noticing the binding decision in Subramanium Sethuraman's case (supra).
16. In line with the observations in Subramanium Sethuraman's case (supra), it must also be held that the petition for discharge is not maintainable also under Section 245(2) of the Cr.P.C., which falls under Chapter XIX thereof and deals with trial of warrant cases.
17. In the result, the discharge petition by way of the present interlocutory application stands dismissed.
(Vikash Jain, J) Ibrar//-
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