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Showing contexts for: section 251 code of criminal procedure in Vikram Bakshi vs State & Anr, on 22 August, 2012Matching Fragments
4. Petitioner filed an application under Section 258 Cr.P.C., for dropping of the proceedings, which was dismissed vide order dated 29th May, 2003. On 12th June, 2003, the Court served the notice under Section 251 Cr.P.C. on the petitioner to which he pleaded not guilty. He now impugns the orders before this Court on the ground that milk shake was sold in a glass through dispenser and provisions of Section 9(2) and 38 of the Act are not applicable in such type of sale, he is exempted from the provisions of the Act.
17. Finding that sale of milk shake in a glass without specifying the quantity on the glass or on the notice board, the court ordered for service of notice on the accused for violation of Section 9 (2) and 38 of the Act.
18. The petitioner is facing trial in a summons trial case and after dismissal of the application for dropping of the proceedings, notice under section 251 Cr.P.C. has been served upon him. Section 258 Cr.P.C. is the only provision under which in a summon trial case the Magistrate can drop the proceedings and if such order is passed after the evidence of the principal witnesses, order will have the effect of acquittal and in any other case after passing of the order of dropping the proceedings, either to release the accused or have the effect of discharge. Section 258 Cr.P.C. does not specify the circumstances under which it can be used. Power to be exercised by the learned Magistrate being discretionary in nature has to be exercised after taking into consideration all the relevant circumstances. Only in exceptional circumstances that the accusations made against the accused do not constitute any offence, that powers vested in learned M.M., under Section 258 Cr.P.C., can be exercised.
21. The second contention of the petitioner that on the basis of allegations, no notice under Section 251 Cr.P.C. could be served on the accused, is again liable to be rejected for the reason that Section 251 Cr.P.C. does not empower the Magistrate to discharge the accused facing trial in a summons trial case.
22. In Subramaniam Setu vs State of Maharashtra and Anr. (2004) 13 SCC 324, the Hon‟ble Supreme Court while dealing with identical situation observed as under:-
"16 The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. 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. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion."
24. Taking into consideration the fact that the plea taken by the petitioner can be proved only during trial, this Court in exercise of revisional jurisdiction cannot undertake the exercise to examine the material on record and assume the role of the Trial Court. By dismissing the application under Section 258 Cr.P.C. and serving notice under Section 251 Cr.P.C. on the petitioner explaining the accusations against him, the learned Trial Court has not committed any illegality or infirmity which has resulted in any miscarriage of justice that needs to be corrected by this Court.