Delhi High Court - Orders
Genesis Infratech Pvt Ltd & Ors vs Sanjana Verma on 7 December, 2021
Author: Anu Malhotra
Bench: Anu Malhotra
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3175/2021 & CRL.M.A. 19606-19607/2021
GENESIS INFRATECH PVT LTD & ORS. ..... Petitioner
Through: Mr.Rajnish Ranjan, Advocate along
with Mr.Samarjeet Deo Advocate.
versus
SANJANA VERMA ..... Respondent
Through
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 07.12.2021 CRL.M.A.19607/2021 (Ex.) Exemption allowed subject to all just exceptions. The application stands disposed of.
CRL.M.C. 3175/2021 & CRL.M.A. 19606/2021 The petitioners, vide the present petition assail the impugned order dated 12.11.2021 of the learned Trial Court in Complaint No.3688/2021 and seeks the quashing of the said order as well as of the complaint case no.3688/2021 placing reliance on the verdict of this Court in "S.K.Bhalla Vs. State & Ors." with specific reference to observations in paragraphs 14 to 16 thereof, which read to the effect:-
"14. The facts of this case are distinct from the facts of Adalat Prasad Case (supra). In Adalat Prasad case (supra), learned Metropolitan Magistrate had recalled the summoning order by allowing the application under Section 203 CrPC after the issue of process under Section 204 CrPC. However, in the instant Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:08.12.2021 14:44:10 This file is digitally signed by PS to HMJ ANU MALHOTRA.
case, respondents No. 2 to 4 have been discharged by the learned Trial Court at the stage of serving of notice under Section 251 CrPC. At this subsequent stage, learned Metropolitan Magistrate was of the view that the charge sheet/complaint did not disclose necessary ingredient of the offence under Section 509 IPC, as such, he discharged the respondents No. 2 to 4 for the commission of abetment of offence under Section 509 IPC.
15. Section 251 of the Code of Criminal Procedure deals with the stage subsequent to issue of process under Section 204 CrPC in a summons 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 ask him whether he pleads guilty. This can be done by the Magistrate only if the charge sheet/complaint/preliminary evidence recorded during enquiry disclose commission of a punishable offence. If the charge sheet/complaint does not make out a triable offence, how can a Magistrate state the particulars of non-existing offence for which the accused is to be tried. 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 Code of Criminal Procedure, 1973 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.
16. The petitioner further submitted that the order of the Magistrate discharging the respondents No. 2 to 4 is violative of Section 258 of the Code of Criminal Procedure. The argument, in my view is misconceived. Perusal of the order of learned M.M. and the impugned order of the revisional court clearly show that learned M.M. has discharged respondents No. 2 to 4 because the charge sheet/complaint did not disclose the commission of the offence under Section 509 IPC. The Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:08.12.2021 14:44:10 This file is digitally signed by PS to HMJ ANU MALHOTRA.
discharge order was passed at the stage of Section 251 CrPC and the concerned Magistrate has not resorted to Section 258 CrPC. Thus, the submission of the petitioner in this regard is devoid of merit."
It is inter alia submitted on behalf of the petitioners that though the verdict in S.K.Bhalla (supra) has been referred to in the impugned order, there is no analysis in relation thereto and all that the learned Trial Court has observed is in relation to the proceedings in "Re-Expeditious trial of cases under Section 138 of the NI Act, 1881, Suo Moto Writ Petition (Crl.)No.2/2020" with observations in para 6 of the verdict of the Hon'ble Supreme Court which read to the effect:-
"6. Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons.", and has thus, held to the effect that the Court did not have the power to discharge the accused in a complaint filed under Section 138 of the NI Act, 1881.
Fairly, on behalf of the petitioners, learned counsel for the petitioners has pointed out that in Crl.Ref.4/2019 in case titled as "Court on its own Motion Vs. State", the issues predicate in the matter specificallly issue no.1 is pending consideration before the Hon'ble Division Bench of this Court, which issues read to the effect:-
"Q.1 Does the Court of a Magistrate have the power to discharge the accused upon his appearance in Court in a summons triable case based upon a complaint in general, and in a case under Section 138 NI Act in particular. once cognizance has been taken and process issued under Section 204 Cr.P.C.?
Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:08.12.2021 14:44:10 This file is digitally signed by PS to HMJ ANU MALHOTRA.
Q.2 If the answer to Question 1 is in the affirmative, under which Section of Cr.P.C. does such a power lie? Q.3 Fwther, if the answer to Question 1 is in the affirmative, at what stage can such an application for discharge be entertained i.e. before the framing of notice of accusation under Section 251 Cr.P.C., or before/at the time of framing of notice of accusation under Section 251 Cr.P.C. or before/at the time/even after the framing of notice of accusation under Section 251 Cr.P.C.? Q.4 Finally, if the answer to Question 1 is in the affirmative, what shall be the scope of such a power of discharge and what will be the scale of standard of proof on which the accused will be required to make his contention acceptable similar/stricter/lesser vis-a-vis what is so contemplated under Sections 227/239/245 Cr.P.C.? Moreover, can documents produced by the accused be allowed to be taken into consideration at that stage for deciding such an application? Q.5 On the other hand, if the answer to Question 1 is in the negative, will it be correct to say that the accused shall not have any remedy vis-a-vis the magisterial court which will only conduct a proper trial once process has been issued and accused has been summoned?
It is further submitted in reply to a specific Court query that the proceedings in the said Crl.Ref. are fixed for 31.01.2022.
In the circumstances, the matter is directed to be re-notified for 07.02.2022 for which date, notice of the petition and of the accompanying application CRL.M.A. 19606/2021 be issued to the respondent on taking of steps by the petitioner.
ANU MALHOTRA, J DECEMBER 7, 2021 'Neha Chopra' Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:08.12.2021 14:44:10 This file is digitally signed by PS to HMJ ANU MALHOTRA.