DISCHARGE APPLICATION REJECTED CASES

Allahabad High Court

Jeet Narain Mishra vs State Of U.P. on 25 September, 2014
Bench: Ranjana Pandya

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. - 14

Case :- CRIMINAL REVISION No. - 744 of 2010

Revisionist :- Jeet Narain Mishra

Opposite Party :- State Of U.P.

Counsel for Revisionist :- L.K. Dwivedi,G.S. Chaturvedi,Samit Gopal

Counsel for Opposite Party :- Govt. Advocate,Dilip Kumar,S.P.Singh Parmar

With

Case :- CRIMINAL REVISION No. - 813 of 2010

Revisionist :- Vijay Kumar Mishra

Opposite Party :- State Of U.P.

Counsel for Revisionist :- L.K. Dwivedi

Counsel for Opposite Party :- Govt. Advocate,Dileep Kumar,S.P.Singh Parmar

Hon'ble Mrs. Ranjana Pandya,J.

I have heard Sri G.S. Chaturvedi, Senior Advocate, assisted by Sri L.K. Dwivedi,
counsel for the revisionist, learned A.G.A. for the State and Sri Dileep Kumar and
S.P.S. Parmar, counsel for the complainant.

2. The Criminal Revision No. 744 of 2010 has been preferred against the
Judgment and order dated 22.12.2009 passed by the Special Judge, E.C. Act,
District Mirzapur in S.T. No. 35 of 1995, State Vs. Vijay Kumar Mishra and
another under Section 302 I.P.C. rejecting the discharge application of the
revisionist. This revision has been connected with Criminal Revision No. 813 of
2010, Vijay Kumar Mishra Vs. State of U.P., which has been preferred against the
Judgment and order dated 17.2.2010 passed by the Special Judge, E.C. Act,
Mirzapur in S.T. No. 35 of 1995, State Vs. Vijay Kumar Mishra and another
under Section 302 I.P.C. rejecting the discharge application of the revisionist.
Thus, both the revisions are arising out of same sessions trial, hence, they are
connected although these revisions have been preferred against different orders.

3. The revisionist Jeet Narain Mishra in Criminal Revision No. 744 of 2010,
moved a discharge application before the trial court stating that the occurrence is
being alleged to have taken place on 25.5.1980 at 8.30 p.m. on which date and
time the accused was in district jail Chaukaghat for offence under Sections
113, 132 of Railway Act, Police Station G.R.P. Mugalsarai by the order of the
Railway Magistrate, Varanasi from here he was released on bail on 29.5.1980.
Since he was in jail at the alleged time and date of the occurrence, he claimed
parity with the accused Ram Chandra @ Lal Sahab and Hyder, who were
discharged by this Court on the same ground.The accused submitted certain
papers, vide list 108 'Kha', being information supplied by the Jail Superintendent,
Varanasi and copy of the hawalat register alleging his presence in the jail at the
time of occurrence. After hearing the discharge application the trial court rejected
the discharge application, vide order dated 22.12.2009.

4. The accused revisionist Vijay Narain Mishra in Criminal Revision No. 813 of
2010 moved a discharge application stating that the eye witnesses have died and in
fact there is no evidence on record by virtue of which charges can be proved
against the accused, hence, the accused may be discharged. This application also
was dismissed on 17.2.2010 and date was fixed for framing charges.

5. Brief facts, according to the F.I.R., is that the complainant Mahaveer Prasad
Tripathi lodged an F.I.R. stating that his son Dharnidhar Tripathi was running a
private clinic at Mohalla Lal Diggi, District Mirzapur. When Dr. Tripathi was
sitting in his clinic and was examining the patients on 25.5.1980 at about 8.30
p.m., suddenly three unknown persons entered into his room and shot Dr.
Dharnidhar Tripathi due to which he died on the spot. At that time, one man was
threatening people outside the room, two men were standing near the jeep and the
driver was sitting in the jeep, which was in starting position. After murdering Dr.
Dharnidhar Tripathi, all the miscreants sat in the jeep and fled towards the west.
On the basis of this report, investigation started.
6. During investigation, the names of Ram Chandra Mishra @ Lal Sahab, Haidar
Ali, Vijay Kumar Mishra, Jeet Narain Kumar and others came into light. Accused
Ram Chandra Mishra @ Lal Sahab and Haidar Ali were discharged, earlier
accused Vijay Kumar Mishra and Jeet Narain Mishra were facing trial, who
moved discharge application, which was rejected.

7. The complainant approached the Hon'ble Apex Court filing S.L.P. (Criminal)
Nos. 4596 and 4597 of 2014 in which the Hon'ble Apex Court directed this Court
to decide Revision No. 744 of 2010 and 813 of 2010 as expeditiously as possible
preferable within two months from the date the order was passed.

8. Learned counsel for the complainant has argued that the scope of the revisional
court is limited inasmuch as the revisional court can only look into the illegality,
impropriety and irregularity of the impugned order.

9. In reply, the learned counsel for the revisionist has argued that the scope of this
Court is not confined but in fact this Court has wide powers in asmuchas even
while exercising the powers of a revisional court, this Court does not cease to
exercise the inherent power vested in the court under Section 482 Cr.P.C. In this
respect, counsel for the defence has placed reliance upon 1978 CRI.L.J. 107,
Edeyillon Kunhambu Nair and another Vs. State of Kerala and others, in which it
has been held that the inherent powers should be exercised to prevent the abuse of
the process of any court. Process is a general word, meaning in effect anything
done by the court. The framers of the Code could not have provided which all
cases should be considered as abuse of the process of the court.

10. In the same context, counsel for the revisionist has placed reliance upon (2006)
7 SCC 296, Popular Muthiah Vs. State represented by Inspector of Police, in
which it has been held that the revisional powers of the High Court and the
sessions court are pointed out in the Code separately; from a perusal whereof, it
would appear that the High Court exercises larger power. It has further been held
that the powers can be invoked by the High Court to decide as to whether the
continuance of the proceedings against the revisionist would be an abuse of the
process of the court or not. In AIR 1956 SC 463, Raman and Raman Ltd. Vs. State
of Madras and another, the word 'propriety' has also been interpreted by the Apex
Court to mean "fitness; appropriateness; aptitude suitability; appropriateness to the
circumstances or conditions; conformity with requirement, rule or principle;
rightness, correctness, justness, accuracy".

11. The counsel for the revisionist has also argued that the statutory powers of the
revisional court stand enlarged when the High Court exercises the power of
revision. Counsel for the revisionist has also placed reliance upon (1977) 2 SCC
699, State of Karnataka Vs. L. Muniswamy and others, in which it has been held
that it would be a sheer waste of public time and money to permit the proceedings
to continue against the respondent, when there is no material on the record on
which any tribunal could reasonably convict them for any offence connected with
the assault on the complainant. This is one of these cases in which a charge of
conspiracy is hit upon for the mere reason that evidence of direct involvement of
the accused is lacking.

12. The saving of the High Court's inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public purpose which is that a court
proceeding ought not to be permitted to degenerate into weapon of harassment or
persecution. In a criminal case, the veiled object behind a lame prosecution, the
very nature of the material on which the structure of the prosecution rests and the
like would justify the High Court in quashing the proceeding in the interest of
justice.

13. Counsel for the complainant has vehemently argued that there was sufficient
evidence for framing charges against the accused and the learned lower court has
rightly rejected the application for discharge moved by the revisionists.

14. In reply counsel for the revisionists has argued that the prosecution has to
disclose the commission of the offence and the connection of the accused with the
crime.

15. In (2010) 2 SCC 398, P. Vijayan Vs. State of Kerala and another, the Hon'ble
Apex Court has laid down that if the trial Judge comes to the conclusion that there
is sufficient ground to proceed, he will frame charge, and evidence and probability
need not be weighed that is to be done after the trial begins. At the stage of
considering of discharge application, the court is not to see whether trial would
end in conviction or acquittal. In the same context, the Hon'ble Apex Court in
2014 (84) ACC 656, State of Tamil Nadu Vs. N. Suresh Rajan and others, has laid
down that at the stage of consideration of discharge application, the court has to
proceed with the assumption that materials brought on record by the prosecution
are true. As such, the court has only to find out whether the facts brought on
record by the prosecution are true or not. In paragraph 20 of the said Judgment, the
Hon'ble Apex Court has held as follows:-

"We have bestowed our consideration to the rival submissions and the submissions
made by Mr. Ranjit Kumar commend us. True it is that at the time of
consideration of the applications for discharge, the court cannot act as a
mouthpiece of the prosecution or act as a post-office and may sift evidence in
order to find out whether or not the allegations made are groundless so as to pass
an order of discharge. It is trite that at the stage of consideration of an application
for discharge, the court has to proceed with an assumption that the materials
brought on record by the prosecution are true and evaluate the said materials and
documents with a view to find out whether the facts emerging there from taken at
their face value disclose the existence of all the ingredients constituting the alleged
offence. At this stage, probative value of the materials has to be gone into and the
court is not expected to go deep into the matter and hold that the materials would
not warrant a conviction. In our opinion, what needs to be considered is whether
there is a ground for presuming that the offence has been committed and not
whether a ground for convicting the accused has been made out. To put it
differently, if the court thinks that the accused might have committed the offence
on the basis of the materials on record on its probative value, it can frame the
charge; though for conviction, the court has to come to the conclusion that the
accused has committed the offence. The law does not permit a mini trial at this
stage. Reference in this connection can be made to a recent decision of this Court
in the case of Sheoraj Singh Ahlawat & Ors. vs. State of Uttar Pradesh & Anr.,
AIR 2013 SC 52, in which, after analyzing various decisions on the point, this
Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of
Delhi), (2008) 2 SCC 561:

"11. It is trite that at the stage of framing of charge the court is required to evaluate
the material and documents on record with a view to finding out if the facts
emerging there from, taken at their face value, disclosed the existence of all the
ingredients constituting the alleged offence. At that stage, the court is not expected
to go deep into the probative value of the material on record. What needs to be
considered is whether there is a ground for presuming that the offence has been
committed and not a ground for convicting the accused has been made out. At that
stage, even strong suspicion founded on material which leads the court to form a
presumptive opinion as to the existence of the factual ingredients constituting the
offence alleged would justify the framing of charge against the accused in respect
of the commission of that offence."

16. At the stage of framing of the charge the court has to see only the prima facie
evidence and charge can be framed even on the basis of strong suspicion founded
upon materials before the Court as has been laid down in 2013 (80) ACC 372, Ajai
Gupta and others State of U.P. and another. At the time of framing of the charge,
after considering the record of the case, document submitted therewith and hearing
the parties, if the court considers that there are grounds for presuming that the
accused has committed offence, the charges have to be framed as has been laid
down in (2012) 9 SCC 460, Amit Kapoor Vs. Ramesh Chander and another.

17. As far as the case of Jeet Narain Mishra is concerned, he has taken the plea
that he was detained in jail by the order of the Railway Magistrate, Mughalsarai in
Case No. 2096 of 1980, thus, he was not at the place of occurrence at the relevant
time and date as is alleged by the prosecution

18. It is well settled law that the defence of the accused cannot be looked into at
the time of framing of the charge. Thus, this plea taken by the accused Jeet Narain
Mishra that he was in jail at the time of occurrence neither can be looked into nor
can be relied by the court as far as the discharge of the accused Jeet Singh is
concerned. But as far as the evidence in the case is concerned, which relates to
accused Vijay Kumar Mishra and Jeet Singh, it is common. Thus, the matter
relating to the discharge of Jeet Narain Mishra and Vijay Kumar Mishra cannot be
segregated.

19. One limb of the argument of the complainant was that the file of the case was
got misplaced by the accused persons due to which trial was delayed and it was
the accused persons, who could be benefited by the misplacement of the record
and who managed to get the record misplaced. Thus, the accused persons cannot
take the benefit of their own wrong.

20. In Criminal Revision No. 744 of 2010, a counter affidavit has been filed by the
Dr. Pankaj Tripathi stating that one of the accused, namely, Vijay Kumar Mishra
being sitting M.L.A. from Gyanpur Constituency, S.R.N. Bhadohi managed to
hide the records of the case till 14 years during which the trial of the case was
withheld. Thus, he cannot be permitted to take benefit of his own wrong.
Inasmuch as the occurrence took place on 25.5.1980. Since then more than 34
years have passed and as time passes by, most of the evidence in the case will not
be available for which wrong the accused cannot be benefited.

21. Counsel for the revisionist has argued that the complainant, namely, Mahaveer
Prasad Tripathi, has died and the eye witnesses Rakesh Rai, Kamlesh Tiwari and
Shiv Veer Tripathi, who have named both the revisionists have also died. But, the
counsel for the complainant has argued that a long period of more than 34 years
has passed since the occurrence, still there is overwhelming evidence that there are
witnesses who have seen the revisionists and can recognize them when they come
in front of witnesses. Counsel for the complainant has argued that the matter
cannot be nipped in the bud and the evidence can only be produced when
opportunity is given to the prosecution to produce the witnesses, who will
definitely be in a position to recognize the revisionists when they stand before the
court. In this regard, he has placed reliance upon (1999) 8 SCC 428, Rajesh
Govind Jagesha Vs. State of Maharashtra, in which it has been held that though
identification for the first time in court is held to be a weak evidence but delay in
holding identification can be satisfactorily explained.

22. Counsel for the complainant has argued that the revisionists were absconders
and due to this reason the Investigating Officer could not hold Test Identification
Parade and the revisionists are taking benefit of their own wrong. In support of his
arguments, he has placed reliance upon 2000 (1) SCC 358, Ramanbhai Naranbhai
Patel and others Vs. State of Gujarat, in which consequences of delay in
investigation have been discussed. In the same context, the counsel for the
complainant has placed reliance upon (2000) 2 SCC 254, S.N. Dube etc. Vs. N.B.
Bhoir & others, in which it has been held that if no attempt has been made to hold
Test Identification Parade and identification has been done only in court and if the
identification is corroborated by other eye witnesses, is also supported by
confession, it would be acceptable.

23. Counsel for the complainant has also contended that the statement of witnesses
including identification in court is substantive evidence as has been held by the
High Court in 2013 (81) ACC 62, Bhanoo and others Vs. State of U.P. It is settled
law that the defence of the accused or any material on record by the accused
cannot be looked into as I have discussed earlier. The identification, for the first
time, in court is of weak character as has been laid down in 2000 (1) JIC 500 (SC),
State of Himachal Pradesh Vs. Lekhraj and another, but if this identification is
held for the first time in the court and is corroborated by other evidence, it may be
looked into by the courts.
24. Counsel for the complainant has argued that there are other witnesses, who
have stated that they can recognize the miscreants. On being confronted with this
position counsel for the revisionists has argued that the witnesses not shown in the
charge sheet upon whon the prosecution relies, cannot be produced in court.

25. I think the powers of court under Section 311 Cr.P.C. are not restricted and
they do not come in the way. An affidavit has been filed by Dr. Pankaj Tripathi
stating that witnesses Rakesh Tripathi, Indradhar Tripathi, Chandradhar Tripathi,
Kailash Nath Dwivedi, Parmeshwar Chaube were named in the charge sheet as
eye witnesses interrogated under Section 161 Cr.P.C. But witnesses not nominated
in the charge sheet are Ehsan Ali, Vishnu Charan Yadav and Noor Ilahi, who have
been interrogated by the Investigating Officer and have disclosed eye witness
account of the occurrence. Their evidence is available on the case diary. Ehsan Ali
has stated that he does not know the names of the murderers but if they come
before him, he can recognize them. Witness Vishnu Charan Yadav has also stated
that he cannot disclose the name of any of the murderers but if they come before
him, he can recognize them by face. Witness Noor Elahi has also stated that he
does not know the names of the murderers but he can recognize them by face and
can identify them on seeing them. The witness Kailash Nath Dwivedi has stated
that he had recognized the witnesses in the light and can recognize them on seeing
them. Thus, all these four witnesses have not named the accused persons.

26. Counsel for the complainant has argued that death of witnesses, if any, is a
subsequent event which cannot be looked into by this Court.

27. On the other hand counsel for the revisionists has argued that subsequent
events have to be looked into and since all the eye witnesses who have named the
revisionists have died, it would be futile exercise to conduct the trial because
practically there is no evidence which could prove the incident. The counsel for
the revisionists has also argued that presently there is no evidence, whatsoever
available to the prosecution, on the basis of which the charge can be framed
against the revisionists because as per Section 226 of the Cr.P.C. the public
prosecutor opens his case by describing the charge and the evidence with the aid
of which he proposes to prove the guilt against the accused. It has been argued that
in the present case the public prosecutor can fulfil the first part of the section, i.e.,
he can describe the charge but he will not be in a position to apprise the court
about the evidence to connect the revisionists with the crime and he will not be in
a position to state the evidence which he proposes to adduce to prove the guilt of
the accused. It has further been argued on behalf of the revisionists that the present
case is one in which there is no sufficient ground to proceed against the accused as
has been laid down by the Apex Court in (1977) 4 SCC 39, State of Bihar Vs.
Ramesh Singh, while dealing with Section 227 and 228 Cr.P.C. The Apex Court
has held as under:-

"Reading the two provisions together in juxtaposition, as they have got to be, it
would be clear that at the beginning and the initial stage of the trial the truth,
veracity and effect of the evidence which the Prosecutor proposes to adduce are
not to be meticulously judged. Nor is any weight to be attached to the probable
defence of the accused. It is not obligatory for the Judge at that stage of the trail to
consider in any detail and weigh in a sensitive balance whether the facts, if proved,
would be incompatible with the innocence of the accused or not. The standard of
test and judgment which is to be finally applied before recording a finding
regarding the guilt or otherwise of the accused is not exactly to be applied at the
stage of deciding the matter under Section 227 or Section 228 of the Code. At that
stage the Court is not to see whether there is sufficient ground for conviction of
the accused or whether the trial is sure to end in his conviction. Strong suspicion
against the accused, if the matter remains in the region of suspicion, cannot take
the place of proof of his guilt at the conclusion of the trial. But at the initial stage
if there is a strong suspicion which leads the Court to think that there is ground for
presuming that the accused has committed an offence then it is not open to the
Court to say that there is no sufficient ground for proceeding against the accused.
The presumption of the guilt of the accused which is to be drawn at the initial
stage is not in the sense of the law governing the trial of criminal cases in France
where the accused is presumed to be guilty unless the contrary is proved. But it is
only for the purpose of deciding prima facie whether the Court should proceed
with the trial or not. If the evidence which the Prosecutor proposes to adduce to
prove the guilt of the accused even if fully accepted before it is challenged in
cross-examination or rebutted by the defence evidence, if any, cannot show that
the accused committed the offence, then there will be no sufficient ground for
proceeding with the trial. An exhaustive list of the circumstances to indicate as to
what will lead to one conclusion or the other is neither possible nor advisable. We
may just illustrate the difference of the law by one more example. If the scales of
pan as to the guilt or innocence of the accused are something like even at the
conclusion of the trial then on the theory of benefit of doubt the case is to end in
his acquittal. But if, on the other hand, it is so at the initial stage of making an
order under Section 227 or Section 228, then in such a situation ordinarily and
generally, the order which will have to be made will be one under Section 228 and
not under Section 227."

28. Counsel for the revisionists has placed reliance upon (2003) 7 SCC 219,
Rajesh D. Darbar and others Vs. Narasingrao Krishnaji Kulkarni & others, in
which it has been held that the impact of subsequent happenings may now be spelt
out. First, its bearing on the right of action, second, on the nature of the relief and
third, on its importance to create or destroy substantive rights. Where the nature of
the relief, as originally sought, has become obsolete or unserviceable or a new
form of relief will be more efficacious on account of developments subsequent to
the suit or even during the appellate stage, it is but fair that the relief is moulded,
varied or reshaped in the light of updated facts.

29. The counsel for the revisionists has also argued that the role of the State is not
justifiable in this case because, vide order dated 13.5.2010 the High Court directed
the learned A.G.A. to verify about the death of three witnesses, namely, Shiv Veer
Tripathi, Rakesh Rai and Kamlesh Tiwari but the learned A.G.A. deliberately and
wilfully flouted this order and did not obtain any information regarding the death
of three witnesses.
30. In the counter affidavit filed in Criminal Revision No. 744 of 2010, Dr. Pankaj
Tripathi has stated that while deciding to frame charges, the trial court cannot
weigh the evidence and see whether the trial will end in conviction or acquittal. It
is also being argued that the quality of evidence has to be looked into and
inasmuch as the conviction can also be based on the sole testimony of one witness.
It is true that sole testimony would be sufficient to convict an accused but the sole
testimony has to be qualitative, reliable and not quantitative.

31. A perusal of the lower court record shows that the present revisionists, namely,
Jeet Narain Mishra and Vijay Kumar Mishra, have been requesting the trial court
to discharge them now and again. Inasmuch as on 12.11.2009, the accused Jeet
Narain Mishra took plea of alibi and his prayer for discharge was rejected. Again
the accused Jeet Narain Mishra moved similar application for his discharge on
same ground, which was rejected on 22.12.2009. Again an application on behalf of
both the accused, namely, Vijay Kumar Mishra and Jeet Narain Mishra was
moved before the trial court to discharge them, which prayer was again refused on
17.2.2010. Thus, accused Jeet Narain Mishra prayed for discharge three times and
the accused Vijay Kumar Mishra prayed for discharge one time. This last order
was passed on 17.2.2010. I think there should be a limit for moving discharge
applications by the accused inasmuch as more than 34 years have passed since
occurrence and the evidence is yet to begin and charges are yet to be framed. The
ground taken by the accused Vijay Kumar Mishra, which is common to Jeet
Narain Mishra also, is that since all the eye witnesses, who have named the
accused persons, have died, hence, there is no evidence to frame charges against
the accused. These, being subsequent events have to be taken into consideration.

32. In Criminal Revision No. 744 of 2010, an order was passed on 18.2.2010 by
this Court allowing the learned A.G.A. to file counter affidavit as against the
allegations of the revisionist Jeet Narain Mishra that witness Shiv Veer Tripathi,
Rakesh Rai and Kamlesh Tiwari have died. A counter affidavit was filed by the
State sworn by Vinod Yadav in which death of the eye witnesses was not
confirmed and the same was based on his personal knowledge.

33. In para 36 of the counter affidavit filed by Dr. Pankaj Tripathi filed in
Criminal Revision No. 744 of 2010, it has been specifically stated that a fact based
on personal knowledge cannot be relied upon. Thus, as far as death of the
complainant and witnesses is concerned, unless the police report is submitted to
this effect during the course of trial, the same cannot be relied on. In para 16 of the
affidavit filed in Criminal Revision No. 744 of 2010, again the revisionist Jeet
Narain Mishra has stated that eye witnesses have expired. In reply of that para, it
has been stated in the counter affidavit sworn by Dr. Pankaj Tripathi that the
contents of para no. 16 of the affidavit are not admitted. A rejoinder affidavit was
filed by the revisionist in which the contents of the affidavit were reiterated. Thus,
the factum remains that the complainant has not admitted that the eye witnesses
have died. If they have died, is a matter which can only be looked into by the trial
court and not by the revisional court.
34. I do not think that it would be appropriate for the this court to inquire into and
give a finding about the death of certain witnesses. The trial court has rightly held
in its order dated 17.2.2010 that the factum of death of the witnesses can only be
decided at the time trial when the death is confirmed by the prosecution. Thus, the
ground taken by the revisionists that eye witnesses and the complainant have died,
therefore, they are entitled to be discharged, has no legs to stand before this Court.

35. On what has been said above, the order of the trial court dated 22.12.2009 and
17.2.2010 passed in S.T. No. 35 of 1995 do not suffer from any irregularity,
illegality or impropriety due to which Criminal Revision Nos. 744 of 2010 & 813
of 2010 are liable to be dismissed.

36. Accordingly, Criminal Revisions No. 744 of 2010 & 813 of 2010 are
dismissed.

Date:-25.9.2014 Ram Murti

Orissa High Court

Sri Shiv Dutt Sharma vs State Of Orissa on 14 January, 2015
HIGH COURT OF ORISSA : CUTTACK

CRLMC No. 2920 of 2010

In the matter of an application under Section 482 of the Code of

Criminal Procedure.
------------
Sri Shiv Dutt Sharma ... Petitioner

-Versus-

State of Orissa ... Opp. Party No.1

M/s. Monnet Ispat & Energy Ltd. ... Opp. Party no.2

For Petitioner : Mr. S.K. Padhi, Sr. Advocate

with M/s. B.K.Sharma,
K.Mohapatra, B.Patnaik,
Advocates.

For Opposite Parties : Addl. Standing counsel

(for O.P.No.1)
 Ms. Suruchi Agarwal,
Advocate, with
M/s. Satyajit Mohanty,
R.R. Swain & P.K.Mudali,
Advocates (for O.P.No.2)

PRESENT :

THE HONOURABLE SHRI JUSTICE S.C. PARIJA

-------------------------------------------------------------------------------------------------

Date of Judgment :14.01.2015

-------------------------------------------------------------------------------------------------
S.C. Parija, J. This application has been filed under Section 482 Cr.P.C.,
challenging the order dated 23.8.2010, passed by the learned J.M.F.C., Barbil, in
G.R. Case No.27 of 2007, rejecting the application of the accused-petitioner
under Section 239 Cr.P.C. for discharge and framing charge against him
under Section 420 I.P.C.

2. The brief facts of the case is that on 01.11.1979, the Government of Orissa
executed a mining lease in favour of M/s Utkal Minerals for mining of Iron Ore
and Manganese Ore over an area measuring 26.243 hectares at village Raika, in
Keonjhar district, in the State of Orissa. On 25.06.1985 a Deed of Transfer of
mining lease was executed by the State of Orissa in favour of the petitioner to
carry on mining activities to extract Iron Ore and Manganese Ore in the aforesaid
26.243 hectares i.e. 64.85 acres of land. Subsequently, a Deed of Rectification of
mining lease was executed whereby the schedule of land was modified but the
total area of the lease remained same i.e. 64.85 acres. Thereafter, out of the total
area of 64.85 acres of land, the petitioner was accorded surface right by the
Collector, Keonjhar, for an area of 36.13 acres and accordingly possession was
given to the petitioner on 12.9.1986. The petitioner was carrying on mining
activities and extracting Iron Ore and Manganese Ore from the said land
measuring 36.13 acres.

While the matter stood thus, M/s. Orissa Mining Corporation Ltd., (hereinafter
referred to as "OMC") made a complaint to the Collector, Keonjhar, alleging that
the petitioner is conducting mining operation violating the boundary line between
the leasehold area of OMC and that of the petitioner. On the basis of such
allegations, the Collector, Keonjhar, directed for a joint verification to determine
the exact boundary line between leasehold mining area of the OMC and that of the
petitioner. Accordingly, a joint verification was conducted on 29.6.1991 by the
Mining Officer, Joda, Mining Officer, Keonjhar and Sub-Collector, Champua, in
the presence of the representatives of the petitioner and OMC. During the joint
verification, field measurement was conducted and in the joint verification report
it was observed as follows:-
 "Since there is dispute on the common boundary from station
No.100 to 103 of OMC which forms common with 'BA' line of Sri
Sharma's lease, the operation of the quarries should be forthwith
stopped within 300' on either side of the existing boundary of OMC
from station No.100 to 103 until re-survey is conducted and final
decision is arrived at. Any violation of this will be treated as
contravention of the lease covenants".

Accordingly, both the petitioner and OMC were directed to stop mining activities
within 300 ft. on either side of mining lease boundary from station no.100 to 103,
until re-survey is done and final decision is taken in the matter. The petitioner
applied for renewals of the mining lease on 28.10.1998, since the mining lease was
going to expire on 30.10.1999. However, as per Rule 24A(6) of the Mineral
Concession Rules, 1960, the mining lease of the petitioner was deemed to have
been extended by a further period, till the Government passes an order on such
renewal application. Thereafter, on 22.03.2003, the Collector, Keonjhar, granted
surface right to the petitioner only over the non-forest land measuring about 3.33
acres instead of 36.13 acres, since in view of the Forest Act, the petitioner cannot
extract minerals in forest areas. On 26.3.2003, the Deputy Director of Mines,
Joda, handed over possession of the said area of land to the petitioner for
undertaking mining operation.

Subsequently, on 7.3.2006, the petitioner entered into an agreement with the

opposite party no.2 Company for sale of Iron Ore and Manganese Ore extracted
from his leasehold mining area measuring 64.85 acres or 26.243 hectares. In the
recital of the said agreement, it was stated that the buyer (opposite party no.2) has
agreed to pay an advance of Rs.4.50 crores and has paid an amount of Rs.4 crores
by bank draft dated 4.3.2006, with the condition to pay the rest amount of
Rs.50,00,000/- within December, 2006. In the agreement, it was further provided
that all the advance amount was to be adjusted @ Rs.50/- on purchase of every
metric ton of Iron Ore and Manganese Ore from the petitioner. Relevant clauses of
the agreement are extracted below:-

"WHEREAS SDS has represented that they are the lessee of the
leasehold area and are enjoying the peaceful and exclusive
possession and control over the leasehold area, having right, title
and interest which is free from any encumbrances i.e. mortgages,
attachments, court injunctions, gifts, wills, exchanges etc. Further
SDS declares that the mining lease of leasehold area is legally valid
and subsisting and SDS has duly complied with all rules and
regulations as prescribed.
AND WHEREAS SDS has approached the buyer with the proposal
to exclusively sell the entire iron and manganese ore excavated by
its raising contractor on his behalf from the leasehold area as
delineated and marked in the plan annexed hereto.
AND WHEREAS relying upon the said promises, representations
and assurances of SDS and believing the same to be correct, buyer
has agreed to purchase exclusively the entire excavated Iron and
 Manganese Ore from the leasehold area of SDS, on the terms and
conditions mutually agreed and contained herein."
xxx xxx xxx "1. SDS having absolute authority and every right over
the leasehold area and being fully possessed of the Iron and
Manganese ore produced from the "leasehold area" shall sell the
entire quantity of the Iron and Manganese ore produced from the
"leasehold area".
2. SDS shall deliver the Iron and Manganese ore to the Buyer at the
mine stack and/or at the Mine head plant. In consideration thereof,
the Buyer shall pay to SDS a sum of Rs.500/- PER TON only, for
Iron ore and manganese ore. These rates are exclusive of all
royalties, taxes and duties.
3. The Buyer agrees to buy the excavated quantities of iron and
manganese ore from the date of execution of this Agreement.
4. The Buyer has agreed to pay an advance of Rs.450 Lakhs.
The buyer has paid Rupees 400 lakhs (Rs.Four hundred lacs only)
vide bank Draft no.171551 dt.04.03.2006 drawn on ICICI Bank
Limited payable at Kolkatta favoring SDS which will be adjusted
against the supply of Iron ore and Manganese at the rate of Rupees
50/per ton of Iron ore and manganese till the same is fully repaid. In
case buyer is not able to purchase iron ore and manganese as per his
requirements then the balance amount of advance is liable to be
forfeited by SDS.
The buyer has agreed to pay balance Rs.50 lakhs within Dec.2006."

The agreement had an arbitration clause, which reads as under:-

"13. If at any time any dispute or question arises between the parties
touching the meaning, construction or effect of this agreement or of
any clause or thing herein contained or regarding the respective
liabilities and rights under this agreement then every such dispute or
question except where specifically provided shall be referred to
arbitration, as per the provisions of the Arbitration and
Conciliation Act, 1996, as amended from time to time, to, two
arbitrators, one each to be appointed by each party hereto, within
one month from the date of notice invoking this arbitration clause is
issued to the opposite party and the arbitrators, shall enter upon
reference within one month from the date of their respective
appointment and the arbitrators/umpire shall give a speaking award.
The place of arbitration or sitting shall be at Bhubaneswar. For any
dispute, the Courts in Bhubaneswar will have sole jurisdiction."

On 18.8.2006, OMC again lodged a complaint against the illegal mining activities
of the petitioner in the disputed area, pursuant to which, the Deputy Director of
Mines, Joda, Keonjhar, vide his letter dated 26.8.2006, intimated the petitioner to
discontinue mining operation in the disputed area till completion of detail
checking of lease boundary of both the mining leases. Accordingly, the petitioner
vide his letter dated 02.9.2006, intimated the raising contractor, M/s.B.K.
Coalfields (P) Ltd. to stop all mining activity in the disputed area.

On coming to know about the stoppage of mining activity in the concerned

leasehold area due to pre-existing boundary dispute with OMC, opposite party
no.2 Company addressed a letter to the petitioner dated 20.12.2006, pointing out to
him that on misrepresentation and suppression of material facts, they have been
induced to advance a sum of Rs.4 crores for purchase of Iron Ore and Manganese
Ore extracted from the leasehold mining area of the petitioner, over which he had
claimed complete ownership and control.

On 21.1.2007, the opposite party no.2 Company lodged a written report before the
I.I.C., Barbil Police Station, which was registered as Barbil P.S. Case No.11 of
2007, under Sections 420/467/468 I.P.C., alleging therein that inspite of the
existing boundary dispute with OMC, the petitioner falsely represented to have
right, title and interest and peaceful possession and control over the leasehold
mining area measuring 64.85 acres or 26.243 hectares and by such representation,
the petitioner had dishonestly and fraudulently induced the informant Company to
pay an amount of Rs.4 crores as advance to the petitioner, for purchase of Iron Ore
and Manganese Ore from the said leasehold mining area.

3. On completion of investigation, the police submitted charge-sheet against the

accused-petitioner under Section 420 I.P.C., cognizance of which was taken by the
learned Magistrate.

4. Being aggrieved by the order of cognizance, the accused- petitioner filed an

application under Section 482 Cr.P.C., vide CRLMC No.2773 of 2007, which was
disposed of by this Court, vide order dated 05.02.2010, with the following
findings:-

"Applying the above principle to the case in hand this Court comes
to the conclusion that the fact of joint verification held on
29.06.1991 was not brought to the notice of the complainant. The
fact that in that joint verification the petitioner was debarred from
raising Iron Ore and manganese Ore from 300 feet either side of
station no.100 to 103 of that lease hold area was also not brought to
the notice of the complainant. Thus, the representation that the
petitioner was in possession of the whole of 26.243 hectors of land
was not correct. In fact a portion of the leasehold area was taken out
of his zone of operation. If the complainant were made aware of
such a situation, the complainant might not have agreed for advance
of Rs.4,00,00,000/- (Rupees four crores). Therefore, this Court
comes to the conclusion that while taking cognizance of the offence,
the learned Magistrate has not committed any illegally or
irregularity. The fact presented before him reveals a prima facie
case under Section 420 I.P.C. for taking cognizance and issuance of
process. Hence, this Court is not inclined to interfere with the
 cognizance taken by the learned Magistrate on 22.07.2007 in G.R.
case No.27 of 2007."

5. However, this Court observed that the observation made in the said order dated
05.02.2010, refusing to interfere with the order of cognizance shall not stand in the
way of the trial Court for considering the materials, either at the time of the
framing of charge or at the time of final disposal of the case.

6. The accused-petitioner filed an application before the learned trial Court

under Section 239 Cr.P.C. for discharge, which was rejected vide order dated
23.08.2010, holding that there are sufficient materials available on record to
presume that the petitioner has committed the offence under Section 420 I.P.C.
Accordingly, learned trial Court proceeded to frame charge against the accused-
petitioner under Section 420 I.P.C., which is the subject matter of challenge in the
present application.

7. Learned counsel for the accused-petitioner submitted that as there was no

dishonest intention to deceive the informant Company either at the time of signing
of the agreement with them on 07.03.2006 or at any point of time subsequent
thereto and all necessary documents pertaining to the mining lease having been
enclosed to the agreement, no offence under Section 420 I.P.C. is made out. It was
submitted that prior to the execution of the agreement, the representatives of the
informant Company visited the leasehold area and physically inspected the mines
and having understood the working and requirement of the said mines, intimated
the petitioner that the Company is willing to take the mines on "as is where is
basis". It was further submitted that as the boundary dispute with the OMC was
only in respect of a small area of 300 ft. from either side of the boundary line, out
of the total area of 36.13 acres, for which surface right was granted in the year
1986, there was no misrepresentation or suppression of material facts by the
petitioner. It is further submitted that the petitioner was granted surface right over
3.33 acres of land in the non-forest area, in the year 2003, on which mining
activity was being carried on without any hindrance. It was submitted that though
Iron Ore and Manganese Ore were being extracted from the said area, the
informant Company did not take delivery of the same and have lodged the
impugned F.I.R, only to avoid their liability under the agreement.

8. It was further submitted that the dispute raised by the informant Company
relates to breach of contract, which is essentially civil in nature and in view of the
arbitration clause in the agreement, the matter has been referred to arbitration,
which is pending before the learned Arbitrator for adjudication. Therefore, the
present criminal proceeding for the self-same dispute and/or cause of action is not
maintainable.

9. It was accordingly submitted that as the materials on record do not constitute

the offence of "cheating", as defined in Section 415 I.P.C., the impugned order of
the learned trial Court in rejecting the application of the petitioner under Section
239 Cr.P.C. for discharge and the subsequent order framing charge under Section
420 I.P.C. cannot be sustained in law.
10. Learned counsel appearing for the informant Company (opposite party no.2)
submitted that on the date of execution of the agreement between the accused-
petitioner and the informant Company on 07.03.2006, the petitioner had the
knowledge of there being boundary dispute between him and OMC over the
leasehold mining area in question. However, the accused-petitioner intentionally
did not disclose the same to the informant at the time of entering into agreement.
On the representation of the accused-petitioner that the leasehold mining area
having Iron Ore and Manganese Ore deposits was absolutely and fully in his
possession and free from any encumbrances, dispute or litigation, the informant
Company made an advance of Rs.4 crores to the accused-petitioner for purchase
of the said minerals from the leasehold mining area. It was submitted that on the
basis of such false and fraudulent representation, the informant Company has been
induced to pay a huge amount of Rs.4 crores as advance, by concealing the fact
that there was boundary dispute between the accused-petitioner and the OMC
since 1991 and the accused had been directed by the mining authorities to stop all
mining activities in the disputed area. It was accordingly submitted that there
being sufficient materials on record to prima facie establish the offence of
cheating, learned Magistrate was fully justified in rejecting the application of the
accused-petitioner under Section 239 Cr.P.C. for discharge and framing charge
against him under Section 420 I.P.C.

11. Learned counsel for the State with reference to the counter affidavit filed by
the Deputy Director of Mines, Joda, submitted that the petitioner had a boundary
dispute with OMC since 1990 and on their complaint, a joint verification of the
common lease boundary was conducted on 29.06.1991 by the Mining Officer,
Joda, Mining Officer, Keonjhar and Sub-Collector, Champua, along with
representative of OMC and the petitioner. Both the lessees were directed not to
carry out mining activities within 300 ft. on either side of the mining lease
boundary from station no.100 to 103, until final decision. It was further submitted
that the Deputy Director Mines, Joda, vide letter dated 17.03.1998, instructed the
petitioner to stop all mining activities within the disputed area. It was further
submitted that on 09.04.1998, the Deputy Director of Mines intimated the OMC
and the petitioner for survey and demarcation of the disputed common boundary
line of the lease. The survey and demarcation work was finally conducted on
17.06.1998, in which, the petitioner did not co-operate and therefore the
demarcation dispute could not be settled.

12. Learned counsel for the State further submitted with reference to the said
counter affidavit that the Deputy Director of Mines, Joda, vide letter dated
26.8.2006 again directed the petitioner not to continue with the mining operation
in the disputed leasehold area till final demarcation and determination of the
mining lease boundary line. It was further submitted the Deputy Director of Mines
intimated the petitioner and the OMC vide letter dated 15.01.2009 to attend the
survey and demarcation of the disputed area, which is to be carried out from
22.01.2009. The petitioner vide letter dated 21.01.2009 requested to defer the
survey and demarcation of the disputed area and accordingly the survey for
demarcation of the dispute area was rescheduled to 06.02.2009, but the petitioner
failed to attend the survey and demarcation work on the scheduled date. It was
further submitted that the mining operation of the accused-petitioner in respect of
the leasehold mining area over 26.243 hectares has been suspended since
06.11.2009 due to want of statutory clearances.

13. On a perusal of the impugned order, it is seen that the learned Magistrate, on
considering the materials available on record, including the statements of
witnesses recorded under Section 161 Cr.P.C., has come to find that there is
sufficient grounds for presuming that the accused-petitioner has committed the
offence under Section 420 I.P.C. Relevant findings of the learned Magistrate is
extracted below:-

"Perused the F.I.R., statement of witnesses U/S.161 Cr.P.C. and

other connected papers submitted by the I.O. U/S.173 of Cr.P.C.,
available with case record. It appears from the joint verification
report dtd. 29.6.1991 and letter of Deputy Director of Mines to
General Manager, O.M.C. and copy of the same forwarded to the
accused vide Memo No.3075 dated 21.2.1992 that there was
boundary dispute between the accused and O.M.C. with regard to
mining lease area of accused at village Raika in the district of
Keonjhar for which the accused was directed to stop the mining
operation within 300 feet of either side of existing boundary of
M/s.Orissa Mining Corporation Limited from Pillat No.100 to 103
on the date of agreement with informant on dtd.7.3.2006 such
dispute was not settled. From the agreement dtd.7.3.06 it appears
that the accused represented that he was enjoying peacefully and in
exclusively possession and control over the leasehold area having
right, title and interest which was free from any encumbrances. On
the basis of such representation, the complainant-Company has
parted with huge amount of Rs.4,00,00,000/- (Rupees Four crores)
to the accused as an advance for purchase of the minerals excavated
from the leasehold area of accused. From the letter dtd.18.8.2006
and 31.10.2006 issued by Manager Mining Serenda, Bhadrasahi
Mines, to I.I.C., Barbil Police Station that the boundary dispute with
Orissa Mining Corporation was well existing even after the
execution of the agreement. If the complainant company was made
aware of the fact of boundary dispute with Orissa Mining
Corporation at the time of entering in to agreement, it might not
have, agreed to advance Rs.4,00,00,000/- (Rupees Four crores) to
accused. Furthermore, in a catena of decisions, Hon'ble Apex Court
have observed that charge can be framed against the accused on the
ground of strong presumption."

14. At the stage of framing charge, the Magistrate is required to consider whether
there are sufficient grounds to proceed against the accused. Section 239 of the
Code provides for the eventuality when the accused shall be discharged. If not
discharged, the charge against the accused is required to be framed under Section
240. These two sections read as under:-
 "239. When accused shall be discharged.-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.
240. Framing of charge.-(1) If, upon such consideration,
examination, if any, and hearing, the Magistrate is of opinion that
there is ground for presuming that the accused has committed an
offence triable under this Chapter, which such Magistrate is
competent to try and which, in his opinion, could be adequately
punished by him, he shall frame in writing a charge against the
accused.
(2) The charge shall then be read and explained to the accused, and
he shall be asked whether he pleads guilty of the offence charged or
claims to be tried."

15. In State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, the apex Court while
considering the scope of Sections 227 and 228 of the Code, which are pari materia
to Sections 239 and 240 of the Code, it was held that at the stage of framing of
charge it is not obligatory for the judge to consider in any detail and weigh in a
sensitive balance whether the facts, if proved, would be incompatible with the
innocence of the accused or not. At that stage, the Court is not to see whether there
is sufficient ground for conviction of the accused or whether the trial is sure to end
in his conviction. Strong suspicion, at the initial stage of framing of charge, is
sufficient to frame the charge and in that event it is not open to say that there is no
sufficient ground for proceeding against the accused.

16. In State of Maharashtra v. Priya Sharan Maharaj, (1997) 4 SCC 393, it was
held by the apex Court that at Sections 227 and 228 stage, the Court is required to
evaluate the material and documents on record with a view to finding out if the
facts emerging therefrom taken at their face value disclose the existence of all the
ingredients constituting the alleged offence. The Court may, for this limited
purpose, sift the evidence as it cannot be expected even at that initial stage to
accept all that the prosecution states as gospel truth even if it is opposed to
common sense or the broad probabilities of the case.

17. In Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja,
(1979) 4 SCC 274, a three-Judge Bench of the apex Court held that the Magistrate
at the stage of framing charges had to see whether the facts alleged and sought to
be proved by the prosecution prima facie disclose the commission of offence on
general consideration of the materials placed before him by the investigating
police officer. Though in that case the specific question whether an accused at the
stage of framing of charge has a right to produce any material was not considered
as such, but that seems implicit when it was held that the Magistrate had to
consider material placed before it by the investigating police officer.
18. In State of Delhi v. Gyan Devi, (2000) 8 SCC 239, the apex Court reiterated
that at the stage of framing of charge the trial Court is not to examine and assess in
detail the materials placed on record by the prosecution nor is it for the Court to
consider the sufficiency of the materials to establish the offence alleged against the
accused persons.

19. In State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338, the apex Court held as
under:-

"7.The crystallised judicial view is that at the stage of framing

charge, the Court has to prima facie consider whether there is
sufficient ground for proceeding against the accused. The Court is
not required to appreciate evidence to conclude whether the
materials produced are sufficient or not for convicting the accused."

20. In State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, a similar
question came up for determination before a three- Judge Bench of the apex Court,
as to whether the trial Court can, at the time of framing charge, consider materials
filed by the accused. The Hon'ble Court, while taking note of its earlier decisions,
has come to hold as under:-

"16. All the decisions, when they hold that there can only be limited
evaluation of materials and documents on record and sifting of
evidence to prima facie find out whether sufficient ground exists or
not for the purpose of proceeding further with the trial, have so held
with reference to materials and documents produced by the
prosecution and not the accused. The decisions proceed on the basis
of settled legal position that the material as produced by the
prosecution alone is to be considered and not the one produced by
the accused. The latter aspect relating to the accused though has not
been specifically stated, yet it is implicit in the decisions. It seems to
have not been specifically so stated as it was taken to be a well-
settled proposition. This aspect, however, has been adverted to in
State Anti-Corruption Bureau v. P. Suryaprakasam, 1999 SCC (Cri)
373, where considering the scope of Sections 239 and 240 of the
Code it was held that at the time of framing of charge, what the trial
Court is required to, and can consider are only the police report
referred to under Section 173 of the Code and the documents sent
with it. The only right the accused has at that stage is of being heard
and nothing beyond that.xxx xxx xxx xxx
18.xxx Further, at the stage of framing of charge roving and fishing
inquiry is impermissible. If the contention of the accused is
accepted, there would be a mini-trial at the stage of framing of
charge. That would defeat the object of the Code. It is well settled
that at the stage of framing of charge the defence of the accused
cannot be put forth. The acceptance of the contention of the learned
counsel for the accused would mean permitting the accused to
adduce his defence at the stage of framing of charge and for
 examination thereof at that stage which is against the criminal
jurisprudence. By way of illustration, it may be noted that the plea
of alibi taken by the accused may have to be examined at the stage
of framing of charge if the contention of the accused is accepted
despite the well-settled proposition that it is for the accused to lead
evidence at the trial to sustain such a plea. The accused would be
entitled to produce materials and documents in proof of such a plea
at the stage of framing of the charge, in case we accept the
contention put forth on behalf of the accused. That has never been
the intention of the law well settled for over one hundred years now.
It is in this light that the provision about hearing the submissions of
the accused as postulated by Section 227 is to be understood. It only
means hearing the submissions of the accused on the record of the
case as filed by the prosecution and documents submitted therewith
and nothing more. The expression "hearing the submissions of the
accused" cannot mean opportunity to file material to be granted to
the accused and thereby changing the settled law. At the stage of
framing of charge hearing the submissions of the accused has to be
confined to the material produced by the police.

21. In Hem Chand v. State of Jharkhand, (2008) 5 SCC 113, a similar question
again came up before the apex Court for consideration as to whether any
documents, whereupon the appellant may rely in support of his defence can be
looked into at the stage of framing of charge. Hon'ble Court, while affirming the
view expressed by the three-Judge Bench in Debendra Nath Padhi (supra), held
that at the time of framing of charge, the Court will not weigh the evidence. The
stage for appreciating the evidence for the purpose of arriving at a conclusion as to
whether the prosecution was able to bring home the charge against the accused or
not would arise only after all the evidence is brought on record at the trial. The
Court at the stage of framing charge exercises its limited jurisdiction. It would
only have to see as to whether a prima facie case has been made out. At that stage,
the Court would not delve deep into the matter for the purpose of appreciation of
evidence. It would ordinarily not consider as to whether the accused is able to
establish his defence, if any.

22. In Bharat Parikh v. Central Bureau of Investigation and another, (2008) 10

SCC 109, the apex Court reiterated the views expressed in Debendra Nath Padhi
(supra) that at the stage of framing charge roving and fishing inquiry is
impermissible and a mini trial cannot be conducted at such stage. At the stage of
framing of charge the submissions on behalf of the accused have to be confined to
the material produced by the investigating agency. The accused will get an
opportunity to prove the documents subsequently produced by the prosecution on
the order of the Court, but the same cannot be relied upon to reopen the
proceedings once charge has been framed or for invocation of the High Court's
powers under Section 482 Cr.P.C.

23. In Sanghi Brothers (Indore) Private Limited v. Sanjay Choudhary and Others,
(2008) 10 SCC 681, the apex Court has reiterated the legal principle that at the
stage of framing charge, the Court has to apply its mind to the question whether or
not there is any ground for presuming the commission of offence by the accused.
The Court has to see, while considering the question of framing charge, as to
whether the materials brought on record reasonably connect the accused with the
alleged offence. Nothing more is required to be looked into at that stage. A strong
suspicion about the commission of the offence and the involvement of the accused
is sufficient for the Court to frame charge.

24. In view of the above, the legal position which crystallizes is that at the time of
framing charge, the Court is not to meticulously judge the evidence proposed to be
adduced by the prosecution and not to see whether there is sufficient ground for
conviction, nor is any weight to be attached to the probable defence. At that stage,
even a very strong suspicion founded upon materials leading the Magistrate to
form a presumptive opinion as to the existence of the factual ingredients
constituting the offence alleged, may justify the framing of charges. The trial
Court has to be satisfied whether there is "sufficient ground for proceeding" and
not "whether there is sufficient ground for conviction". At the stage of Section
227 or 239 Cr.P.C., the Court is required to evaluate the material and documents
on record with a view to finding out if the facts emerging therefrom, taken at their
face value, disclose the existence of all the ingredients of the offence. At that
stage, the accused has no right to produce any material or summon any document
or materials in addition to those collected by the investigating agency, or invite the
Court to pass an order of discharge on the basis of such additional material. The
Court may, for the limited purpose of framing charge, sift the evidence and if on
the basis of materials on record, the Court comes to the conclusion that the
commission of offence is probable consequence, a case of framing of charge exists
and the order rejecting application for discharge is legal and valid.

25. Coming to the question regarding maintainability of the offence of cheating

and dishonestly inducing delivery of property, Section 415 IPC deals with
"cheating", which reads as follows:-

"415. Cheating.-Whoever, by deceiving any person, fraudulently or

dishonestly induces the person so deceived to deliver any property
to any person, or to consent that any person shall retain any
property, or intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or
property, is said to 'cheat'.
Explanation.-A dishonest concealment of facts is a deception within
the meaning of this Section."

26. It is plain from a bare reading of the Section that to hold a person guilty of
cheating, as defined in Section 415 I.P.C, it is necessary to show that at the time of
making the promise he had fraudulent or dishonest intention to retain the property
or to induce the person so deceived to do something which he would not otherwise
do.
27. The ingredients required to constitute an offence of cheating have been
succinctly laid down by the apex Court in Ram Jas v. State of U.P., (1970) 2 SCC
740, as follows:-

"(i) there should be fraudulent or dishonest inducement of a person by deceiving

him;

(ii) (a) the person so deceived should be induced to deliver any property to any
person, or to consent that any person shall retain any property; or

(b) the person so deceived should be intentionally induced to do or omit to do

anything which he would not do or omit if he were not so deceived; and

(iii) in cases covered by (ii)(b), the act or omission should be one which causes or
is likely to cause damage or harm to the person induced in body, mind, reputation
or property."

28. As mentioned above, Section 415 I.P.C. has two parts. While in the first part,
the person must 'dishonestly' and 'fraudulently' induce the complainant to deliver
any property, in the second part, the person should intentionally induce the
complainant to do or omit to do a thing. That is to say, in the first part, inducement
must be dishonest or fraudulent. In the second part, the inducement should be
intentional. A guilty intention is an essential ingredient of the offence cheating.
The intention to deceive should be in existence at the time when the inducement
was offered. (See-G.V.Rao v. L.H.V. Prasad and Ors., (2000) 3 SCC 693
and V.P.Shrivastava v. Indian Explosives Limited and others, (2010)10 SCC 361.)

29. The crux of the postulate is the intention of the person who induces the victim
by his representation and not the nature of the transaction which would become
decisive in the discerning whether there was commission of offence or not. In the
present case, from the recital of the agreements entered into between the petitioner
and informant Company as detailed above, it is abundantly clear that the accused-
petitioner had represented that the leasehold mining area measuring 64.85 acres or
26.243 hectares containing Iron and Manganese Ore were in exclusive possession
and control of the petitioner, having right, title and interest over the same, which is
free from any encumbrances. Relying upon such promise, representation and
assurance of the petitioner and believing the same to be correct, the informant
Company agreed to purchase the entire quantity of all grades of Iron and
Manganese Ore excavated from the leasehold mining area of the petitioner
exclusively, as per the terms and conditions enumerated in the agreement. On the
basis of such representation, the informant Company made an advance of Rs.4
crores to the petitioner as detailed in clause 4 of the agreement.

30. From the counter affidavit filed by the Deputy Director of Mines, Joda, it is
seen that there was an existing boundary dispute between the petitioner and OMC
since 1990 and as per the joint verification report dated 29.6.1991, both the
petitioner and the OMC were directed not to carry out mining activities within 300
ft. on the either side of the leasehold boundary line until final decision. Further
vide letter dated 17.3.1998, Deputy Director of Mines, Joda, instructed the
petitioner to stop all the mining activities within the disputed area. From the said
counter affidavit, it further reveals that the Deputy Director of Mines, Joda, vide
his letter dated 26.8.2006 again directed the petitioner not to continue with the
mining operation in the disputed leasehold area till final demarcation and
determination of the mining lease boundary line. Further, though the petitioner
was asked to attend the survey and demarcation of the disputed area, he did not
attend the same. The counter affidavit further reveals that the mining operation of
the accused-petitioner in respect of leasehold mining area over 26.243 hectares has
been suspended since 06.11.2009 due to want of statutory clearance.

31. From the above, it is abundantly clear that the petitioner had intentionally
misrepresented and suppressed the material fact with regard to the existing
boundary dispute with OMC, while entering into agreement with the informant
Company. Being induced by such fraudulent representation and/or assurance of
the petitioner, the informant Company paid an advance of Rs.4 crores. All these
facts prima facie establish the offence of cheating under Section 420 IPC.

32. As regard the plea of the accused-petitioner that the dispute between the
parties being essentially civil in nature, which is pending before the learned
Arbitrator for adjudication, as per the arbitration clause contained in the
agreement, no criminal proceeding is maintainable, the same appears to be
erroneous and misconceived. It is true that if the complaint does not make out an
offence, it can be quashed. However, it is also settled law that facts may give rise
to a civil claim and also amount to an offence. Accordingly, merely because a civil
claim is maintainable, that in itself does not mean that the criminal complaint
cannot be maintained. (See-Lalmuni Devi (Smt) v. State of Bihar and others,
(2001) 2 SCC 17)

33. In Trisuns Chemical Industry v. Rajesh Agarwal and others, (1999) 8 SCC
686, the apex Court had held that merely because an act has a civil profile, the
same is not sufficient to denude it of its criminal outfit. The provision incorporated
in the agreement for referring the dispute to arbitration is not an effective
substitute for a criminal prosecution when the disputed act is an offence.
Arbitration is a remedy for affording reliefs to the party affected by breach of the
agreement but the Arbitrator cannot conduct a trial of any act which amounted to
an offence albeit the same act may be connected with the discharge of any
function under the agreement.

34. In S.W. Palanitkar v. State of Bihar, (2002)1 SCC 241, the apex Court held
that merely because there is an arbitration clause in the agreement between the
parties, that cannot prevent criminal prosecution against the accused, if an act
constituting a criminal offence is made out even prima facie.

35. In State of Orissa and others v. Ujjal Kumar Burdhan, (2012)4 SCC 547, the
apex Court has reiterated the well-settled principle of law that the existence of an
arbitration agreement cannot take the criminal acts out of the jurisdiction of the
Courts of law.
36. For the reasons as aforestated, I do not find any infirmity in the order dated
23.8.2010, passed by the learned J.M.F.C., Barbil, in G.R. Case No.27 of 2007,
rejecting the application of the accused- petitioner under Section 239 Cr.P.C. for
discharge and framing charge against him under Section 420 I.P.C., so as to
warrant any interference.

CRLMC being devoid of merits, the same is accordingly dismissed.

(S.C. PARIJA, J.) Orissa High Court, Cuttack, Dated the 14th January,
2015/MPanda

Supreme Court of India

Adalat Prasad vs Rooplal Jindal & Ors on 25 August, 2004
Author: S Hegde
Bench: N. Santosh Hegde, S.B. Sinha, A.K. Mathur
CASE NO.:
Appeal (crl.) 91 of 2002

PETITIONER:
Adalat Prasad

RESPONDENT:
Rooplal Jindal & Ors.

DATE OF JUDGMENT: 25/08/2004

BENCH:
N. Santosh Hegde, S.B. Sinha & A.K. Mathur

JUDGMENT:

J U D G M E N T SANTOSH HEGDE, J.

This is an appeal by leave against the judgment of the High Court of Delhi at New
Delhi in Criminal Revision No.127 of 1995 whereby the High Court allowed the
said revision petition, setting aside the order of the trial court dated 28.1.1995 and
remanded the matter to the Court of Magistrate for disposal in accordance with
law. Brief facts necessary for the disposal of this case are as follows :

The 1st respondent herein filed a complaint under sections

120A, 120B, 405, 406, 415, 420, 463, 465 and 468 of the IPC against the appellant
and other respondents herein alleging that the respondents have cheated and
defrauded him. Taking cognizance of the said complaint on 26.5.1992 the learned
Metropolitan Magistrate summoned the appellants herein and other accused by
issuing process under section 204 of the Code of Criminal Procedure (the Code)
for offences confined to section 420 read with 120B IPC.
Being aggrieved by the said order of issuance of process the appellant and some of
the accused moved the High Court and the High Court in the said petition directed
the petitioners therein to move the trial court against the order of summoning.
Pursuant to the said order of the High Court the appellant herein filed an
application purported to be under section 203 Cr.P.C. on 10.3.1993 and the
learned trial Judge by his order dated 28.1.1995 after hearing the parties recalled
the said summons.

The said order of the learned Magistrate recalling the summons originally issued
by him was challenged before the High Court on the ground that the Magistrate
had no jurisdiction to recall a summons issued under section 204 of the Code. The
High Court by the impugned order has allowed the revision petition holding that
while the trial court was justified in taking cognizance of the offences punishable
under section 420 read with 120B IPC it erred in recalling the consequential
summons issued because the said court did not have the power to review its own
order.

It is against the said order of the High Court as stated above, the appellant is
before us in this appeal.

When this appeal came up for preliminary hearing on 13.11.2002 learned counsel
appearing for the appellant relied on a judgment of this Court in the case of K.M.
Mathew v. State of Kerala & Anr. (1992 1 SCC

217) wherein it was held that it was open to the court issuing summons to recall
the same on being satisfied that the issuance of summons was not in accordance
with law. The court which heard this matter at the preliminary stage doubted the
correctness of the judgment in Mathew's case (supra) hence referred that case
of Nilamani Routray v. Bennett Coleman & Co. Ltd. (1998 8 SCC 594) to a larger
Bench. However said case of Nilamani (supra) got settled out of court hence the
issue involved in Mathew's case (supra) was not decided by the larger Bench.
Therefore on 3.12.2002 this Court directed that the present appeal be placed before
a 3-Judge Bench with a view to consider the correctness of the law laid down by
this Court in Mathew's case (supra). It is in this background this appeal has now
come up for our consideration.

As noticed above it is the correctness of the view expressed by this Court in

Mathew's case which is now to be considered by us.

It was held in Mathew's case (supra) that section 204 of the Code indicates that the
proceedings before the Magistrate commences upon taking cognizance and issue
of summons to the accused. When the accused enters appearance in response to
the summons the Magistrate has to take proceedings under Chapter XX of the
Code. It was further held that the need to try the accused arises only when there is
an allegation in the complaint that the accused has committed the crime. Hence, if
there is no allegation in the complaint involving the accused in the commission of
the crime it is implied that the Magistrate has no jurisdiction to proceed against the
accused. In that background this Court held that it is open to the accused served
with summons to plead before the Magistrate that the process against him ought
not to have been issued and if the Magistrate is satisfied with such an argument, he
may drop the proceedings on reconsideration of the complaint on the ground that
there was no offence for which accused could be tried. This Court further observed
in Mathew's case, such power is Magistrate's judicial discretion and no specific
provision is required for the Magistrate to drop proceedings or rescind the process.
It also held that the order of issuing process being an interim order and not a
judgment, it can be varied or recalled. The Court also held that the fact that the
process has been already issued is no bar to drop the proceedings, if the complaint
on the very face of it does not disclose any offence against the accused.

It is thus seen that in Mathew's case (supra) this Court held that after issuance of
summons under section 204 of the Code, it was open to the Magistrate on being
satisfied at the instance of the summoned accused to reconsider its decision of
issuing summons under section 204. This Court in that case also held that the
Magistrate issuing the summons can do so only on there being material to issue
summons hence summons erroneously issued can be recalled by the Magistrate for
which no specific provision is required.

Having heard the learned counsel for the parties and having considered the
judgment of this Court in the case of Mathew (supra) we are unable to agree with
the law laid down by this Court in the said case.

If we analyse the reasons given by this Court in the said case of Mathew then we
notice that the said view is based on the following facts :

(a) The jurisdiction of the Magistrate to issue process arises only if the complaint
contains the allegations involving the commission of a crime;

(b) If the process is issued without there being an allegation in the complaint
involving the accused in the commission of a crime it is open to the summoned
accused to approach the court issuing summons and convince the court that there
is no such allegation in the complaint which requires his summoning;

(c) For so recalling the order of summons no specific provision of law is required;

(d) The order of issuing process is an interim order and not a judgment hence it
can be varied or recalled.

We will examine the above findings of this Court in the background of the
scheme of the Code which provides for consideration of complaints by
Magistrates and commencement of proceedings before the Magistrate which is
found in Chapters XV and XVI of the Code;

Section 200 contemplates a Magistrate taking cognizance of an offence on

complaint to examine the complaint and examine upon oath the complainant and
the witnesses present if any. If on such examination of the complaint and the
witnesses, if any, the Magistrate if he does not want to postpone the issuance of
process has to dismiss the complaint under section 203 if he comes to the
conclusion that the complaint, the statement of the complainant and the witnesses
has not made out sufficient ground for proceeding. Per contra if he is satisfied that
there is no need for further inquiry and the complaint, the evidence adduced at that
stage has materials to proceed, he can proceed to issue process under Section 204
of the Code Section 202 contemplates: postponement of issue of process : It
provides that if the Magistrate on receipt of a complaint if he thinks fit, to
postpone the issuance of process against the accused and desires further inquiry
into the case either by himself or directs an investigation to be made by a Police
Officer or by such other person as he thinks fit for the purpose of deciding whether
or not there is sufficient ground for proceeding, he may do so. In that process if he
thinks it fit he may even take evidence of witnesses on oath, and after such
investigation, inquiry and the report of the Police if sought for by the Magistrate
and if he finds no sufficient ground for proceeding he can dismiss the complaint
by recording briefly the reasons for doing so as contemplated under section 203 of
the Code.

But after taking cognizance of the complaint and examining the complainant and
the witnesses if he is satisfied that there is sufficient ground to proceed with the
complaint he can issue process by way of summons under section 204 of the Code.
Therefore what is necessary or a condition precedent for issuing process
under section 204 is the satisfaction of the Magistrate either by examination of the
complainant and the witnesses or by the inquiry contemplated under section
202 that there is sufficient ground for proceeding with the complaint hence issue
the process under section 204 of the Code. In none of these stages the Code has
provided for hearing the summoned accused, for obvious reasons because this is
only a preliminary stage and the stage of hearing of the accused would only arise
at a subsequent stage provided for in the latter provision in the Code. It is true as
held by this Court in Mathew's case before issuance of summons the Magistrate
should be satisfied that there is sufficient ground for proceeding with the
complaint but that satisfaction is to be arrived at by the inquiry conducted by him
as contemplated under sections 200 and 202, and the only stage of dismissal of the
complaint arises under section 203 of the Code at which stage the accused has no
role to play therefore the question of the accused on receipt of summons
approaching the court and making an application for dismissal of the complaint
under section 203 of the Code for a reconsideration of the material available on
record is impermissible because by then Section 203 is already over and the
Magistrate has proceeded further to Section 204 stage.

It is true that if a Magistrate takes cognizance of an offence, issues process without

there being any allegation against the accused or any material implicating the
accused or in contravention of provision of Sections 200 & 202, the order of the
Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at
that stage is not by invoking section 203 of the Code because the Criminal
Procedure Code does not contemplate a review of an order. Hence in the absence
of any review power or inherent power with the subordinate criminal courts, the
remedy lies in invoking Section 482 of Code.
Therefore, in our opinion the observation of this Court in the case of Mathew
(supra) that for recalling an order of issuance of process erroneously, no specific
provision of law is required would run counter to the Scheme of the Code which
has not provided for review and prohibits interference at inter-locutory stages.
Therefore, we are of the opinion, that the view of this Court in Mathew's case
(supra) that no specific provision is required for recalling an erroneous order,
amounting to one without jurisdiction, does not lay down the correct law.

In view of our above conclusion, it is not necessary for us to go into the question
whether order issuing a process amounts to an interim order or not.

For the reasons stated above we are in agreement with the judgment of the High
Court impugned herein. This appeal fails and the same is dismissed.

Karnataka High Court

Smt. Rashida Anwar vs Umar Abdul Sattar Vahedna on 6 December, 2013
Author: H N Das
1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 6TH DAY OF DECEMBER, 2013

BEFORE

THE HON'BLE MR.JUSTICE H.N.NAGAMOHAN DAS

CRIMINAL PETITION NO.1309/2013

C/W
CRIMINAL PETITION NO.1310/2013
CRIMINAL PETITION NO.1311/2013
CRIMINAL PETITION NO.1312/2013

IN CRL.P.No.1309/2013

BETWEEN:

SMT. RASHIDA ANWAR,

WIFE OF MOHAMMED ANWAR
ABDUL SATTAR VAHEDNA,
AGED ABOUT 56 YEARS,
RESIDING AT: HAMAD-BIN-SAUGHAT
BUILDING, APARTMENT NO.304,
3RD FLOOR, NAIF ROAD,
DEIRA, DUBAI, U.A.E,
C/O RAFIA MUNEER FAZAL,
NO.7/4, CLARKE ROAD,
RICHARDS TOWN,
BANGALORE-560005.
... PETITIONER

(BY SRI JANARDHANA.G, ADV.)

AND:

1. UMAR ABDUL SATTAR VAHEDNA,

SON OF ABDUL SATTAR,
AGED ABOUT 74 YEARS,
2

APARTMENT NO.301,
SKY LINE ELYSEE, NO.24,
VIVIANI ROAD, FRASER TOWN,
BANGALORE-560 005

2. MANSOOR AHMED,
SON OF ABDUL JABBAR,
AGED ABOUT 33 YEARS,
RESIDING AT COCONUT GARDEN,
1ST CROSS, GIDDAPPA BLOCK,
TANNERY ROAD,
BANGALORE-560 045.

3. SMT. GULSHAN BEGUM,

WIFE OF ABDUL JABBAR,
AGED ABOUT 53 YEARS,
RESIDING AT COCONUT GARDEN,
1ST CROSS, GIDDAPPA BLOCK,
TANNERY ROAD,
BANGALORE-560 045.

4. SMT. HUSNA,
WIFE OF MANSOOR AHMED,
RESIDING AT COCONUT GARDEN,
1ST CROSS, GIDDAPPA BLOCK,
TANNERY RAOD,
BANGALORE-560 045.
 ... RESPONDENTS

(BY SRI L.P.E.REGO, ADV. FOR R1 TO R4) THIS CRL.P IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ORDER DATED:24.1.13 PASSED BY
THE P.O., FTC-XIII, BANGALORE IN DISMISSING THE CRL.RP.NO.328/11,
FILED BY THE PETR., CHALLENGING THE DISCHARGE ORDER PASSED
BY THE VIII ADDL.C.M.M., BANGALORE IN C.C.NO.3810/2009 AND
CONSEQUENTLY TO MODIFY THE SAID ORDER AND ALSO TO DIRECT
THE MAGISTRATE TO PROCEED AGAINST THE RESPONDENTS U/S 448
OF IPC FOR CRIMINAL TRESPASS, AND CONSEQUENTLY REJECT THE
DISCHARGE APPLICATION U/S 239 OF CODE OF CRIMINAL
PROCEDURE.

IN CRL.P.No.1310/2013 BETWEEN:

SMT. RASHIDA ANWAR, WIFE OF MOHAMMED ANWAR ABDUL

SATTAR VAHEDNA, AGED ABOUT 56 YEARS, RESIDING AT: HAMAD-
BIN-SAUGHAT BUILDING, APARTMENT NO.304, 3RD FLOOR, NAIF
ROAD, DEIRA, DUBAI, U.A.E, C/O RAFIA MUNEER FAZAL, NO.7/4,
CLARKE ROAD, RICHARDS TOWN, BANGALORE-560005.

... PETITIONER (BY SRI JANARDHANA.G, ADV.) AND:

1. UMAR ABDUL SATTAR VAHEDNA, SON OF ABDUL SATTAR, AGED

ABOUT 74 YEARS, APARTMENT NO.301, SKY LINE ELYSEE, NO.24,
VIVIANI ROAD, FRASER TOWN, BANGALORE-560 005.

2. MOHAMMED BASHEER, SON OF ABDUL AZIZ, AGED ABOUT 49

YEARS, RESIDING AT NO.40, 5TH CROSS, PENSION MOHALLA,
MYSORE ROAD, BANGALORE-560053.

3. ASIYA KHATOON, WIFE OF ABDUL AZIZ, AGED ABOAUT 76 YEARS,

RESIDING AT NO.23, M NO.4 STREET, SLAUGHTER HOUSE ROAD,
SHIVAJINAGAR, BANGALORE-560001.

4. SMT.NAZNEENUNNISA, WIFE OF MOHAMMED BASHEER, AGED

ABOAUT 39 YEARS, RESIDING AT NO.40, 5TH CROSS, PATEL STREET,
PENSION MOHALLA, MYSORE ROAD, BANGALORE-560053

5. SMT.AYESHA SIDDIQUE, WIFE OG MOHAMMED ALEEM, RESIDING

AT NO.40, ITTIGE ANJINAPPA LANE, MYSORE ROAD, BANGALORE-560
051.

... RESPONDENTS (BY SRI L.P.E.REGO FOR R1 TO R5) THIS CRL.P IS

FILED U/S.482 CR.P.C PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO QUASH THE ORDER DATED:24.1.13 PASSED BY THE P.O.,
FTC-XIII, BANGALORE IN DISMISSING THE CRL.RP.NO.329/11, FILED
BY THE PETR., CHALLENGING THE DISCHARGE ORDER PASSED BY
THE VIII ADDL.C.M.M., BANGALORE IN C.C.NO.20038/2008 AND
CONSEQUENTLY TO MODIFY THE SAID ORDER AND ALSO TO DIRECT
THE MAGISTRATE TO PROCEED AGAINST THE RESPONDENTS U/S 448
OF IPC FOR CRIMINAL TRESPASS, AND CONSEQUENTLY REJECT THE
DISCHARGE APPLICATION U/S 239 OF CODE OF CRIMINAL
PROCEDURE.

IN CRL.P.No.1311/2013 BETWEEN:

SMT. RASHIDA ANWAR, WIFE OF MOHAMMED ANWAR ABDUL

SATTAR VAHEDNA, AGED ABOUT 56 YEARS, RESIDING AT: HAMAD-
BIN-SAUGHAT BUILDING, APARTMENT NO.304, 3RD FLOOR, NAIF
ROAD, DEIRA, DUBAI, U.A.E, C/O RAFIA MUNEER FAZAL, NO.7/4,
CLARKE ROAD, RICHARDS TOWN, BANGALORE-560005.

... PETITIONER (BY SRI JANARDHANA.G, ADV.) AND

1. UMAR ABDUL SATTAR VAHEDNA, SON OF ABDUL SATTAR, AGED

ABOUT 74 YEARS, APARTMENT NO.301, SKY LINE ELYSEE, NO.24,
VIVIANI ROAD, FRASER TOWN, BANGALORE-560 005.

2. MOHAMAMED BASHEER, SON OF ABUL AZIZ, AGED ABOUT 49

YEARS, RESIDING AT NO.40, 5TH CROSS, PENSION MOHALLA,
MYSORE ROAD, BANGALORE-560053.

3. ATA ASHRAF, SON OF UMAR A VAHEDNA, AGED ABOUT 33 YEARS,

RESIDING AT FLAT NO.301, SKY LINE ELYSEE, NO.24, VIVIANI ROAD,
FRAZER TOWN, BANGALORE-560005.

4. ABDUL SAMAD VAHEDNA, SON OF ABDUL SATTAR VAHEDNA,

AGED ABOUT 69 YEARS, RESIDING AT NO.12, STEPHENS ROAD, LA
ROYALE VICTORIANM, 26, FRASER TOWN, BANGALORE-560 005.

5. OWAIS UMAR VAHEDNA, SON OF UMAR VAHEDNA, AGED ABOUT

40 YEARS, R/AT FLAT NO.301, SKY LINE ELYSEE, NO.24, VIVIANI
ROAD, FRASER TOWN, BANGALORE-560 005.

... RESPONDENTS (BY SRI L.P.E.REGO FOR R1 TO R5) THIS CRL.P IS

FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED:24.1.13
PASSED BY THE P.O., FTC-XIII, BANGALORE IN CRL.RP.NO.330/11,
CHALLENGING THE DISCHARGE ORDER PASSED BY THE VIII
ADDL.C.M.M., BANGALORE IN C.C.NO.4240/2009 AND CONSEQUENTLY
TO MODIFY THE SAID ORDER AND ALSO TO DIRECT THE
MAGISTRATE TO PROCEED AGAINST THE RESPONDENTS U/S 448
OF IPC FOR CRIMINAL TRESPASS, AND CONSEQUENTLY REJECT THE
DISCHARGE APPLICATION U/S 239 OF CODE OF CRIMINAL
PROCEDURE.
IN CRL.P.No.1312/2013 BETWEEN:

ABDUL SATTAR VAHEDNA, SON OF LATE MUNIR.A.VAHEDNA, AGED

ABOUT 24 YEARS, RESIDING AT: FLAT NO.52, SAMRUDDHI
APARTMENTS, 2411, EAST STREET CAMP, PUNE-411001, C/O RAFIA
MUNEER FAZAL, NO.7/4, CLARKE ROAD, RICHARDS TOWN,
BANGALORE-560005.

... PETITIONER (BY SRI JANARDHANA.G, ADV.) AND:

1. UMAR ABDUL SATTAR VAHEDNA, SON OF ABDUL SATTAR, AGED

ABOUT 74 YEAS, RESIDING AT APARTMENT NO.301, SKY LINE
ELYSEE, NO.24, VIVIANI ROAD, FRASER TOWN, BANGALORE-560005.

2. REHMATH UMAR VAHEDNA, WIFE OF UMAR ABDUL SATTAR

VAHEDNA, AGED ABOUT 62 YEARS, RESIDING AT APARTMENT
NO.301, SKY INE ELYSEE, NO.24, VIVIANI ROAD, FRASER TOWN,
BANGALORE-560053.

3. SMT FIRDOUS ASIM, WIFE OF ASIM UMAR, AGED ABOUT 35 YEARS,

RESIDING AT NO.224, 1ST MAIN ROAD, DEFENCE COLONY,
INDIRANGAR, BANGALORE-560038.

4. OWAIS UMAR VAHEDNA, SON OF UMAR VHEDNA, AGED ABOUT 40

YEARS, RESIDING AT FLAT NO.301, SKY LINE ELYSEE, NO.24, VIVIANI
ROAD, FRASER TOWN, BANGALORE-560005.

5. ATA ASHRAF, SON OF UMAR.A.VAHEDNA, AGED ABOUT 33 YEARS,

RESIDING AT FLAT NO.301, SKY LINE ELYSEE,NO.24, VIVIANI ROAD,
FRASER TOWN, BANGALORE-560005.

... RESPONDENTS (BY SRI L.P.E.REGO FOR R1 TO R5) THIS CRL.P IS

FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED:24.1.13
PASSED BY THE P.O., FTC-XIII, BANGALORE IN DISMISSING THE
CRL.RP.NO.331/11, FILED BY THE PETR., CHALLENGING THE
DISCHARGE ORDER PASSED BY THE VIII ADDL.C.M.M., BANGALORE
IN C.C.NO.7481/2009 AND CONSEQUENTLY TO MODIFY THE SAID
ORDER AND ALSO TO DIRECT THE MAGISTRATE TO PROCEED
AGAINST THE RESPONDENTS U/S 448 OF IPC FOR CRIMINAL
TRESPASS, AND CONSEQUENTLY REJECT THE DISCHARGE
APPLICATION U/S 239 OF CODE OF CRIMINAL PROCEDURE.

THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER In these petitions, the petitioners are different and the respondents are
common. The petitioners lodged four separate complaints against the respondents
and the same came to be registered in Cr.Nos.230/2008, 173/2008, 64/2008 and
31/2009 for the offences punishable under Sections 448, 504, 506 r/w Section
149 of IPC. Investigation in completed and charge sheet is filed. The respondents
have filed discharge applications under Section 239 of Cr.P.C before the Trial
Court. After hearing both the parties, the Trial Court under the impugned orders
dated 27.07.2011 allowed the applications-in-part and discharged the respondents
for the offence under Section 448 of IPC. Aggrieved by these orders of the Trial
Court, the petitioners filed four separate Criminal Revision Petitions in
Crl.RP.Nos.328/2011, 329/2011, 330/2011 and 331/2011. By separate orders, the
Revisional Court confirmed the orders passed by the Trial Court and dismissed the
Revision Petitions. Hence, the petitioners/complainants are before this Court.

2. Heard arguments on both side and perused the entire petition papers.

3. Both the Courts below noticed that the respondents filed O.S.No.17588/2006
against the petitioners for decree of permanent injunction. However, the Court
granted temporary injunction in favour of the respondents in respect of portion of
a building. This Court in MFA Nos.14480-81/2007 confirmed the order of the
Trial Court.

By taking into consideration that in the civil proceedings, the possession of the
respondents was protected by an order of temporary injunction. The Court below
held that the question of criminal trespass will not arise.

4. Learned counsel for the petitioners relying on a Judgment of the Supreme Court
in "Southern Roadway Ltd., Madurai v. S.M.Krishnan" reported in "AIR 1990 SC
673" contends that petitioners gave power of attorney in favour of the first
respondent to purchase a property and put up construction on their behalf.
Accordingly, the first respondent purchased the property and had put up the
construction and he was in possession of the same as an agent of the petitioners.
Subsequently, the petitioners terminated the power of attorney in favour of the
first respondent as such the first respondent has no right to continue in the
possession and the same amount to trespass.

5. I decline to accept this contention. When an agent is in possession of the

property and on termination of the agency, his possession become unlawful and it
cannot be said that the same is illegal. Even if the entire case of petitioners is
accepted as true, the same will not result in an offence under Section 448 of IPC.
There are serious disputed question of facts with regard to the power of attorney,
its termination, possession etc., the same cannot be examined by this Court
under Section 482 of Cr.P.C. Keeping open all the contentions urged by both the
parties, I am of the considered opinion that impugned orders discharging the
respondents for the offences under Section 448 of IPC do not call for interference.

Accordingly, the petitions are hereby dismissed.

Sd/-

JUDGE VM
Delhi High Court
Arvind Kejriwal & Ors vs Amit Sibal & Anr on 16 January, 2014
Author: J.R. Midha
$~1
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. 5245/2013 and Crl.M.A.Nos.18920-21/2013

% Date of Decision : 16th

January, 2014

ARVIND KEJRIWAL & ORS ..... Petitioners

Through : Mr. Shanti Bhushan, Sr.
Adv. with Mr. Rahul Mehra,
Mr. Rohit Singh, Mr. Kartik
Seth,Mr. Rishikesh Verma
and Ms. Neha Rastogi,
Advs.
versus

AMIT SIBAL & ANR .....

Respondents
Through : Mr. N.K. Kaul, Sr.
Adv.
with Mr. Madhav
Khurana
and Mr. Ajiteshwar
Singh,
Advs. for R-1.

CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA

JUDGMENT (ORAL)

1. Respondent no.1 instituted a complaint of defamation against the petitioners

under Sections 500 and 501 read with Sections 34 and 120B of IPC in which, vide
summoning order dated 24th July, 2013, the learned Metropolitan Magistrate
issued summons to the petitioners.

2. The petitioners have challenged the summoning order dated 24th July, 2013 on
the ground that respondent no.1 is not the aggrieved person within the meaning
of Section 199(1) Cr.P.C. The petitioners are also seeking the quashing of criminal
complaint filed by respondent no.1.
3. The notice under Section 251 Cr.P.C. has not yet been framed and the case is
listed before the learned Trial Court on 24 th January, 2014.

4. This Court is of the view that the petitioners should urge the pleas raised in this
petition before the learned Trial Court at the stage of framing of notice
under Section 251 Cr.P.C. in terms of the law laid down in the following
judgments:

(i) In Krishna Kumar Variar v. Share Shoppe, (2010) 12 SCC 485, the accused
challenged the summoning order before this Court under Section 482 Cr.P.C. on
the ground that the learned Metropolitan Magistrate lacked the territorial
jurisdiction. The petition was rejected by the High Court against which the
accused filed the special leave petition. The Supreme Court held that in such
cases, instead of rushing to the High Court, the accused should file an application
before the Trial Court. The observations made by the Supreme Court are
reproduced hereunder:-

"2. This appeal has been filed against the impugned judgment and
order dated 14-5-2009 of the High Court of Delhi whereby the
petition filed under Section 482 CrPC by the petitioner herein has
been dismissed.
3. The appellant herein is an accused under Sections 415/420 IPC in
which summons have been issued to him by a court at Delhi. He
challenged the summoning order on the ground that it is only the
court at Bombay which has jurisdiction to try and entertain the
complaint. His petition under Section 482 CrPC challenging the
summoning order has been rejected by the High Court by the
impugned order. Hence, he is before us in this appeal.
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.

(Emphasis supplied)
(ii) In Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, the Supreme
Court observed that it is the bounden duty of the Trial Court in Section
251 Cr.P.C. to satisfy whether the offence against the accused is made out or not
and to discharge the accused if no case is made out against him. The relevant
findings of the Supreme Court are reproduced hereunder:-

"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 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."
(Emphasis supplied)
(iii) In Raujeev Taneja v. NCT of Delhi, Crl.M.C. No.4733/2013
decided on 11th November, 2013, a summoning order under Section
138 of the Negotiable Instruments Act was challenged before this
Court. Sunil Gaur, J. relying upon Bhushan Kumar (supra) and
Krishna Kumar Variar (supra), directed the accused to urge the plea
before the learned Trial Court at the stage of framing of notice
whereupon the Trial Court shall deal with the pleas raised herein by
passing a speaking order and if the Trial Court proceeds to drop the
proceedings qua petitioners, then the Apex Court‟s decision
in Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338, would not
stand in the way of Trial Court to do so. The relevant portion of the
said judgment is reproduced hereunder:-
"In this petition, quashing of impugned order of 5th July, 2012
whereby petitioner has been summoned as accused in a complaint
under Section 138 of The Negotiable Instruments Act, 1881 is
sought on merits. At the hearing, learned counsel for petitioner had
submitted that there is no specific averment against petitioner in the
complaint in question about his being incharge of and responsible
for conduct of business of the company and that petitioner should
not be made vicariously liable.
Learned counsel for petitioner further contended that the cheque in
question was not signed by petitioner.

During the course of the hearing, learned counsel for petitioner informed that
Notice under Section 251 of Cr.P.C. has not yet been framed in the complaint case
in question.

Since Notice under Section 251 Cr.P.C. has not yet been framed, it is deemed
appropriate to relegate petitioners 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., as the dictum of Apex Court in Bhushan Kumar and Anr. Vs. State (NCT
of Delhi) and Anr. AIR 2012 SC 1747 persuades this Court not to exercise
inherent jurisdiction under Section 482 Cr.P.C. to entertain this petition. 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 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 and

Krishan Kumar (supra) as referred to hereinabove, this petition and application are
disposed of while refraining to comment upon merits, lest it may prejudice either
side at the hearing on framing of Notice under Section 251 of Cr.P.C., with liberty
to petitioner to urge the pleas taken herein before the trial court at the stage of
hearing on the point of framing of Notice and if it is so done, then trial court shall
deal with the pleas raised herein by passing a speaking order.
Needless to say, if the trial court proceeds to drop the proceedings qua petitioners,
then the Apex Court's decision in Adalat Prasad Vs. Rooplal Jindal and Ors.
(2004) 7 SCC 338 would not stand in the way of trial court to do so.

Till the trial court decides to frame or not to frame Notice under Section
251 Cr.P.C. against petitioner, petitioner's personal appearance before the trial
court be not insisted, provided petitioner is duly represented by counsel, who does
not seek adjournment on his behalf. Needless to say that if the trial court chooses
to frame Notice under Section 251 Cr.P.C., then petitioner would be at liberty to
avail of the remedy as available in the law."

(Emphasis supplied)

(iv) In Urrshila Kerkar v. Make My Trip (India) Private Ltd.,

MANU/DE/4138/2013, the accused challenged the summoning order in a
complaint of defamation. Sunil Gaur, J. relying upon in Bhushan Kumar (supra)
and Krishna Kumar Variar (supra), directed the accused therein to raise all pleas
before the learned Metropolitan Magistrate at the stage of notice under Section
251 Cr.P.C. This Court observed that the learned Metropolitan Magistrate has to
apply its mind at the stage of framing of notice under Section 251 Cr.P.C. to find
out whether the prima facie case is made out or not and in the event of finding that
no case is made out against the accused, the Magistrate would be well within its
right to drop the proceedings against the accused. This Court observed that the
Apex Court's decision in Adalat Prasad (supra) cannot possibly be misread to
mean that proceedings in a summons complaint case cannot be dropped against an
accused at the stage of framing of Notice under Section 251 of Cr.P.C. even if a
prima facie case is not made out. The relevant portion of the said judgment is
reproduced hereunder:-

"1. In criminal complaint No. 1015/2010 titled Make My Trip (India) Private Ltd.
v. Ezeego One Travel & Tours Ltd. (Annexure P-1 Colly.), petitioner has been
summoned vide impugned order of 5th May, 2011 (Annexure P-2) for the offence
of defamation in the capacity of her being the Director of both the respondent-
accused companies. Quashing of aforesaid complaint (Annexure P-1 colly.)
and impugned order (Annexure P-2) is sought on merits in this petition.

xxx xxx xxx

5. ...In any case, the appropriate stage at which these aspects are required to be
considered is the stage of framing of Notice under Section 251 of Cr.P.C. Such a
view is taken as trial court is not expected to mechanically frame Notice
under Section 251 of Cr.P.C. and has to apply its mind to find out as to whether a
prima facie case is made out or not and in the event of finding that no case is made
out for proceeding against a particular accused, trial court would be well within its
right to drop the proceedings qua such an accused.
6. On this aspect, pertinent observations of Apex Court in Bhushan Kumar & Anr.
Vs. State (NCT of Delhi) & Anr. MANU/SC/0297/2012 : AIR 2012 SC 1747 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."

7. Further, on this aspect, the dictum of the Apex Court in Krishan Kumar Variar
v. Share Shoppe MANU/ SC/0330/2010 : (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."

8. It is no doubt true that Apex Court in Adalat Prasad Vs. Rooplal Jindal and
Ors. : (2004) 7 SCC 338 has ruled that there cannot be recalling of summoning
order, but seen in the backdrop of decisions of Apex Court in Bhushan Kumar and
Krishan Kumar (supra), aforesaid decision cannot be misconstrued to mean that
once summoning order has been issued, then trial must follow. If it was to be so,
then what is the purpose of hearing accused at the stage of framing Notice
under Section 251 of Cr.P.C. In the considered opinion of this Court, Apex Court's
decision in Adalat Prasad (supra) cannot possibly be misread to mean that
proceedings in a summons complaint case cannot be dropped against an accused at
the stage of framing of Notice under Section 251 of Cr.P.C. even if a prima facie
case is not made out. In the aforesaid view, this petition and the application are
disposed of without commenting upon the merits of this case and with liberty to
petitioner to urge the pleas taken herein before the trial court. Needless to say, the
pleas raised by petitioner at the hearing on the point of Notice under Section251
of Cr.P.C. shall be dealt with by the trial court by passing a reasoned order so that
petitioner may avail of the remedies available in law, if need be. Since the plea
pertaining to Section 305 of Cr.P.C. goes to the root of this matter, therefore, till
the hearing on the point of Notice under Section 251 of Cr.P.C. is concluded by
the trial court, personal appearance of petitioner before the trial court is dispensed
with provided petitioner is duly represented by counsel, who does not seek
adjournment."

(Emphasis supplied)

(v) In S.K.Bhalla v. State, 180 (2011) DLT 219, Ajit Bharihoke, J. of this Court
gave similar interpretation to Section 251 Cr.P.C. The relevant portion of the said
judgment is reproduced hereunder:-

"15. Section 251 of the Code of Criminal Procedure deals with the

stage subsequent to issue of process under Section 204 Cr.P.C. 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 Cr.P.C. 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."

5. The learned Senior Counsel for respondent no.1 submits that the learned
Metropolitan Magistrate has no power to discharge the accused at the stage of
framing of notice under Section 251 Cr.P.C. It is further submitted that the power
to stop the proceedings under Section 258 Cr.P.C. does not apply to summons
cases instituted upon complaints. It is further submitted that power to discharge
the accused under Section 239 Cr.P.C. applies only to warrant cases. It is lastly
submitted that the Supreme Court was dealing with the warrant cases in Bhushan
Kumar (supra) and Krishna Kumar Variar (supra).

6. The summons cases are generally of two categories namely cases instituted
upon complaints and those instituted otherwise than upon complaints which would
include cases based on police reports. The warrants cases are also of the aforesaid
two categories. The proceedings before the Magistrate commence with the
issuance of process under Section 204 Cr.P.C. in respect of all the aforesaid
categories. At the stage of issuance of process under Section 204 Cr.P.C., the
Magistrate has to be satisfied that "there is sufficient ground for proceeding in the
matter". There is a difference in the trial of warrants cases and summons cases by
the Magistrate which is noted below:

(i) In warrants cases, whether instituted upon complaint or otherwise, the accused
is entitled to seek discharge from the Magistrate under Section 239 Cr.P.C. if no
prima facie case is made out against him. On the other hand, if the Magistrate
is satisfied that there is ground for presuming that the accused has committed an
offence, the charge is framed against the accused under Section 246 Cr.P.C.
Section 239 Cr.P.C. is reproduced hereinbelow:

"Section 239. When accused shall be discharged.-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."

(ii) In summons cases, no formal charge is framed as in warrants cases. However,

the substance of accusation is put to the accused under Section 251 Cr.P.C. which
is technically akin to the framing of a charge in warrants case. The accused is
entitled to the hearing at the stage of framing of notice under Section 251 Cr.P.C.
The Section pre-supposes that the learned Magistrate must consider whether such
allegations are raised which amount to an offence. If no offence is made out, then
there are no particulars of offence which have to be read over to the accused and
therefore proceeding cannot proceed beyond Section 251 Cr.P.C. which is implied
from a reading of Section 251 Cr.P.C. Section 251 Cr.P.C. is reproduced below:

"Section 251. Substance of accusation to be stated.- When in a

summons-case the accused appears or is brought before the
Magistrate, the particulars of the offence of which he is accused
shall be stated to him, and he shall be asked whether he pleads
guilty or has any defence to make, but it shall not be necessary to
frame a formal charge.

(iii) In summons cases instituted otherwise than upon complaints which would
include cases based on police reports, the Magistrate has power under Section
258 Cr.P.C. to stop further proceedings. The provisions of Section 251 read
with Section 258 Cr.P.C. clothe the learned Magistrate in a case instituted on the
basis of a police report with the power to discontinue proceedings at the stage
of Section 251 Cr.P.C., if there be no sufficient allegations or materials to justify
continuance of proceedings for an offence. Section 258 Cr.P.C. is reproduced
hereunder:
 "Section 258. Power to stop proceedings in certain cases. - In any
summons- case instituted otherwise than upon complaint, a
Magistrate of the first class or, with the previous sanction of the
Chief Judicial Magistrate, any other Judicial Magistrate, may, for
reasons to be recorded by him, stop the proceedings at any stage
without pronouncing any judgment and where such stoppage of
proceedings is made after the evidence of the principal witnesses
has been recorded, pronounce a judgment of acquittal, and in any
other case, release the accused, and such release shall have the
effect of discharge."

(iv) In summons cases instituted upon complaints, there is no provision in the

Code of Criminal Procedure to discharge the accused at the stage of framing of
notice under Section 251 Cr.P.C. even if no prima facie case is made out against
him. The consequence of this is that even if the accused is able to satisfy the
Magistrate that no prima facie case is made out against him, the Magistrate has to
continue the trial against him.

7. If the Magistrate cannot discharge the accused at the stage of framing of notice,
the whole proceedings at the stage of framing of notice under Section 251 Cr.P.C.
shall be reduced to mere formality and the accused would be compelled to
approach the High Court to challenge the notice which would lead to multiplicity
of litigation. It is for this reason, the Supreme Court in Bhushan Kumar (supra)
and Krishan Kumar Variar (supra) has observed that the accused should approach
the Trial Court instead of rushing to the higher Court. The Supreme Court has not
restricted the directions in the aforesaid two cases to be applicable only to the
warrant cases and therefore, the same are applicable to all summons cases
including those arising out of complaints. In Bhushan Kumar (supra), the Supreme
Court has specifically referred to Section 251 Cr.P.C. which deals only with
summons cases. Relying on the aforesaid judgments, this Court, in Raujeev Taneja
(supra) and Urrshila Kerkar (supra), has directed the accused to urge his objections
before the Trial Court at the stage of framing of notice under Section 251 Cr.P.C.

8. This Court is in complete agreement with the view taken by this Court in
Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K.Bhalla (supra) that at the
stage of framing of notice under Section 251 Cr.P.C., the learned Magistrate is not
expected to mechanically frame notice under Section 251 Cr.P.C. and has to apply
its mind to find out whether the prima facie case is made out or not. The learned
Magistrate has to frame the notice under Section 251 Cr.P.C. only upon
satisfaction that a prima facie case is made out. However, in the event of finding
that no case is made out against the accused, the learned Magistrate would be well
within his right to drop the proceedings against the accused. This Court also agrees
with the view taken by Sunil Gaur, J. in Raujeev Taneja (supra) and Urrshila
Kerkar (supra) that the judgment of the Supreme Court in Adalat Prasad (supra)
would not stand in the way of the Trial Court to do so because the discharge of an
accused at the stage of framing of notice under Section 251 Cr.P.C. does not
amount to recall/review of the summoning order as defined in Section 362 Cr.P.C.
The two stages in the criminal trial are different. The first is the stage of issuance
of process under Section 204 Cr.P.C, when the Magistrate has to satisfy that there
are sufficient grounds for proceeding in the matter. The second is the stage of
framing of charge/notice when the Court has to be satisfied that a prima facie case
is made out against the accused. However, since Section 258 Cr.P.C. does not
empower the Magistrate to discharge the accused in summons cases instituted
upon complaints, this Court considers it necessary to issue directions in this regard
in exercise of inherent powers under Section 482 Cr.P.C. read with Section
483 Cr.P.C. and Article 227 of the Constitution.

9. The provisions contained in the Code of Criminal Procedure are not exhaustive.
In administering justice as prescribed by Code of Criminal Procedure, there are
necessarily two shortcomings: First; there are cases and circumstances, which are
not covered by the „express provisions of the Code‟, wherein justice has to
be done. The reason is that the Legislature can foresee only the most natural and
ordinary events; and no rules can regulate for all time to come, so as to make
express provision against all inconveniences, which are infinite in number, and so
that their dispositions shall express all the cases that may possibly happen.
Second; the prescribed rules of procedure may be abused, or so used as to give a
mere formality, the significance of substantive effect and thus obstruct, instead of
facilitating, the administration of justice as in the present case.

10. It cannot be said that, in the above circumstances, Courts have no power to do
justice or redress a wrong merely because no express provision of the Code can
be found to meet the requirements of a case. All Courts, whether civil or criminal,
possess, in the absence of express provision in the Code for that purpose, as
inherent in its very constitution, all such powers as are necessary to do the right
and to undo a wrong in the course of the administration of justice. This is based on
the principle, embodied in the maxim „quando lex aliquid alicui concedit,
concedere videtur id sine quo res ipsa esse non potest' - when the law gives a
person anything, it gives him that, without which, it cannot exist. The High Court
has, in addition thereto, and in view of its general jurisdiction over all the criminal
Courts subordinate to it, inherent power to give effect to any order of any such
Court under the Code, and to prevent the abuse of process of any such Court, or
otherwise to secure the ends of justice.

11. The requirements of justice give an occasion for the development of new

dimension of justice by evolving juristic principles for doing complete justice
according to the current needs of the Society. The quest for justice in the process
of administration of justice occasions the evolution of new dimensions of the
justice. J.S. Verma, J., in his Article "New Dimensions of Justice", (1997) 3 SCC
J-3 observed that:-

"...Justice is the ideal to be achieved by Law. Justice is the goal of

law. Law is a set of general rules applied in the administration of
justice. Justice is in a cause on application of law to a particular
case. Jurisprudence is the philosophy of law. Jurisprudence and Law
have ultimately to be tested on the anvil of administration of justice.
„Law as it is‟, may fall short of 'Law as it ought to be' for doing
 complete justice in a cause. The gap between the two may be
described as the field covered by Morality. There is no doubt that
the development of the law is influenced by morals. The infusion of
morality for reshaping the law is influenced by the principles of
Equity and Natural Justice, as effective agencies of growth. The
ideal State is when the rules of law satisfy the requirements of
justice and the gap between the two is bridged. It is this attempt to
bridge the gap which occasions the development of New
Jurisprudence.
The existence of some gap between law and justice is recognized by
the existing law itself. This is the reason for the recognition of
inherent powers of the court by express provision made in the
Code of Civil Procedure and the Code of Criminal Procedure. The
Constitution of India by Article 142 expressly confers on the
Supreme Court plenary powers for doing complete justice in any
cause or matter before it. Such power in the court of last resort is
recognition of the principle that in the justice delivery system, at the
end point attempt must be made to do complete justice in every
cause, if that result cannot be achieved by provisions of the enacted
law. These powers are in addition to the discretionary powers of
courts in certain areas where rigidity is considered inappropriate,
e.g., equitable reliefs and Article 226 of the Constitution. ..."

12. Section 482 of the Code of Criminal Procedure empowers this Court to make
such orders as may be necessary to secure the ends of justice in exercise of the
inherent powers. Section 483 of the Code of Criminal Procedure, 1973 casts a duty
upon every High Court to exercise its continuous superintendence over the Trial
Courts to ensure that there is an expeditious and proper disposal of cases. Article
227 of the Constitution also confers on this Court the power of superintendence
over all subordinate courts in relation to which it exercises jurisdiction. The
paramount consideration behind vesting such wide power of superintendence in
this Court is to keep the path of justice clear of obstructions which would impede
it. It is the salutary duty of this Court to prevent the abuse of the process,
miscarriage of justice and to correct the irregularities in the judicial process.

13. The power under Section 482 Cr.P.C. is in its nature extraordinary and is to be

exercised „ex debito justitae‟ to do the real and substantial justice for the
administration of which alone Courts exist. The Court, therefore, has to be careful
to see that its decision is based on sound general principles of criminal
jurisprudence and is not in conflict with the statutory provisions. This provision
cannot be invoked to override an express provision of law or when there is another
remedy available.

14. The present case does not fall within the aforesaid limitations as there is
neither any express provision nor any express bar in the Code of Criminal
Procedure for discharge of the accused at the stage of framing of notice
under Section 251 Cr.P.C. if no prima facie case is made out against him.
15. At the stage of issuance of process under Section 204 Cr.P.C., the Court is
only to see whether there are grounds for proceeding in the matter. The accused
does not have any right to take part in the proceedings at this stage, as held by the
Supreme Court in Chander Deo Singh v. Prakash Chander Bose, AIR 1963 SC
1430 and Dr. S.S. Khanna v. Chief Secretary, Patna, AIR 1983 SC 595. However,
at the stage of framing of notice under Section 251 Cr.P.C., the Court has to
satisfy after considering the material on record and hearing the accused that the
offence has been committed which can be legally tried. The prosecution may be
barred by limitation or bad for sanction or otherwise not sustainable. No adverse
order can be passed without giving the affected party, an opportunity of being
heard. It would be incumbent upon the Magistrate to drop the proceedings, if he is
satisfied that no offence is made out for which the accused could be lawfully tried.
If there is no offence for which the accused could be tried, it is implied that the
Magistrate has no jurisdiction to proceed with the trial. For framing of notice
under Section 251 Cr.P.C., the principles of natural justice require an opportunity
of being heard to be given to the affected parties. Even otherwise, the principle of
audi alteram partem, mandates that no one shall be condemned unheard. It forms
part of the rules of natural justice, as held by the Apex Court in the case
of Maneka Gandhi v. Union of India, AIR 1978 SC 597. The procedure has to be
fair, just and proper. This right of hearing cannot be denied to an accused. It is
inherent in any judicial process. No person can be deprived of his life or personal
liberty except according to procedure established by law mentioned in Article
21 of the Constitution which has to be a fair procedure. Even if some provision
does not provide for an opportunity of being heard, the principles of natural justice
have to be read as implicit therein, more so if the order passed affects the life and
liberty of the person. It is basic to the human right jurisprudence that any order
affecting life or liberty has to be passed by following the principles of natural
justice. In Maneka Gandhi (supra), the Supreme Court further held that the
substantive and procedural laws and action taken under them have to pass the test
under Article 14. The tests have to be pragmatic otherwise they would cease to be
reasonable. The interests of the accused are just as important as those of the
prosecution. No procedure or action can be in the interest of justice if it is
prejudicial to an accused. Order of framing of notice under Section 251 Cr.P.C.
substantially affects the rights of an accused. The non-availability of the remedy of
discharge to the accused at the stage of notice under Section 251 Cr.P.C. is
therefore discriminatory and arbitrary, considering that the said remedy is
available to the accused in warrant cases as well as summons cases based on
police reports. For example, in a case of Section 138 Negotiable Instruments Act
read with Section 420 IPC, the offence being warrant case, the accused can seek
discharge under Section 239 Cr.P.C., whereas in a case of Section 138 Negotiable
Instruments Act, being summons case, the accused cannot seek discharge at the
stage of notice under Section 251 Cr.P.C.

16. If the Trial Court has to frame the notice under Section 251 Cr.P.C. where no
prima facie case is made out against the petitioners, the hearing at the stage of
notice under Section 251 Cr.P.C. would be a mere farce and would result in failure
of justice. In warrant cases whether arising out of police report or complaint, the
learned Magistrate is empowered to discharge the accused if no prima facie case is
made out against him under Section 239 Cr.P.C. whereas in summons cases, such
a power is given to the Magistrate only in cases other than complaint cases
meaning thereby that the Magistrate has to frame the notice and proceed with the
matter even if no prima facie case is made out against the accused. As such, the
denial of the remedy of discharge to the accused in summons cases at the stage of
notice under Section 251 Cr.P.C. is clearly discriminatory and therefore, this case
is squarely covered by the principles laid down by the Supreme Court in Maneka
Gandhi (supra).

17. This Court has also taken note of huge pendency and fresh filing of petitions
under Section 482 Cr.P.C. against the summoning orders in summons cases which
not only compels the accused to rush to this Court but also results in multiplicity
of litigation and delay of trials. As such, non-availability of the remedy of
discharge to the accused before the Trial Court is harsh to the system as well as to
the litigants.

18. The power of the Trial Court to discharge the accused at the stage of notice
under Section 251 Cr.P.C. is based not only on sound logic but also on a
fundamental principle of justice as a person against whom no offence is disclosed
cannot be put to face the trial. Added advantage is that the High Court will have
the benefit of the considered opinion of the Magistrate, and it can always exercise
its inherent power if it feels that the Magistrate had gravely erred but to ask this
Court to interfere at the very threshold of the prosecution does not appear
appropriate because it practically amounts to shifting of the prosecution case from
the competent court of the Magistrate to this Court.

19. On careful consideration of the legal position discussed above, this Court is
satisfied that ends of justice are higher than the ends of mere law and therefore,
this case warrants the issuance of appropriate directions in exercise of power
under Section 482 read with Section 483 Cr.P.C. and Article 227 of the
Constitution to enable the Magistrate to discharge the accused at the stage of
notice under Section 251 Cr.P.C. if no prima facie offence is made out.

Conclusion

20. In view of the authoritative pronouncements of the Supreme Court in Bhushan

Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra) and of
this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K.Bhalla
(supra), the accused are entitled to hearing before the learned Metropolitan
Magistrate at the stage of framing of notice under Section 251 Cr.P.C in all
summons cases arising out of complaints and the Magistrate has to frame the
notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is
made out against the accused. However, in the event of the learned Magistrate not
finding a prima facie case against the accused, the Magistrate shall discharge/drop
the proceedings against the accused. Since there is no express provision or
prohibition in this regard in the Code of Criminal Procedure, these directions are
being issued in exercise of power under Section 482 read with Section 483 Cr.P.C.
and Article 227 of the Constitution to secure the ends of justice; to avoid needless
multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to
keep the path of justice clear of obstructions and to give effect to the principles
laid down by the Supreme Court in Bhushan Kumar (supra), Krishna Kumar
Variar (supra) and Maneka Gandhi (supra).

21. Applying the aforesaid principles to this case, the petitioners are permitted to
urge the pleas raised in this petition before the learned Metropolitan Magistrate at
the stage of framing of notice under Section 251 Cr.P.C. whereupon the learned
Metropolitan Magistrate shall consider them and pass a speaking order. The
learned Magistrate shall frame the notice under Section 251 Cr.P.C. only upon
satisfaction that a prima facie case is made out against the petitioners. The learned
Magistrate shall be empowered to discharge/drop the proceedings against the
petitioners if no case is made out against them. Needless to say, if the learned
Magistrate chooses to frame notice under Section 251 Cr.P.C., the petitioners
would be at liberty to avail the remedies as available in law.

22. This petition and the applications are disposed of on the above terms. It is
clarified that this Court has not examined the contentions of the parties on merits
which shall be considered by the learned Metropolitan Magistrate.

23. The petitioners seek exemption from personal appearance before the learned
Trial Court till the passing of the order on notice under Section 251 Cr.P.C. The
learned Senior Counsel for respondent no.1 submits that the petitioners should
approach the learned Metropolitan Magistrate for exemption from personal
appearance under Section 205 Cr.P.C. in view of the judgments of the Supreme
Court in TGN Kumar v. State of Kerala, (2011) 2 SCC 772 and Narinderjit Singh
Sahni v. Union of India, (2002) 2 SCC 210. In view of the objections raised, the
petitioners are directed to file the appropriate application under Section
205 Cr.P.C. for exemption before the Metropolitan Magistrate and upon such an
application, disclosing sufficient grounds, being filed, the learned Metropolitan
Magistrate shall not insist the personal appearance till the passing of the order
under Section 251 Cr.P.C. subject to the petitioners being represented by a duly
authorised counsel who shall not seek any adjournment.

24. Copy of this judgment be given dasti to counsel for the parties under signature
of Court Master.

25. Copy of this judgment be sent to all District and Sessions Judges.

J.R. MIDHA, J JANUARY 16, 2014 aj

Supreme Court of India

Subramanium Sethuraman vs State Of Maharashtra & Anr on 17
September, 2004
Author: S Hegde
Bench: N. Santosh Hegde, S.B.Sinha, Tarun Chatterjee
 CASE NO.:
Appeal (crl.) 1253 of 2002

PETITIONER:
Subramanium Sethuraman

RESPONDENT:
State of Maharashtra & Anr.

DATE OF JUDGMENT: 17/09/2004

BENCH:
N. Santosh Hegde, S.B.Sinha & Tarun Chatterjee

JUDGMENT:

J U D G M E N T SANTOSH HEGDE,J.

This appeal is preferred by accused No.4 in Criminal Complaint Case

No.2209/S/1997 pending before the Metropolitan Magistrate, 33rd Court at
Ballard Pier, Bombay challenging an order made by the High Court of Judicature
at Bombay in a revision petition filed by the 2nd respondent herein whereby the
High Court allowed the revision petition and set aside the order of discharge made
by the trial court.

The facts necessary for the disposal of this appeal are as follows:

The 2nd respondent herein lodged a complaint before the Additional Chief
Metropolitan Magistrate for offence punishable under Section 138 of the
Negotiable Instruments Act against the appellant herein and four others which
included a Company and its Directors. It is not disputed that the appellant herein
was one of the Directors of the Company. The complaint in question was filed in
December, 1996 and after following the procedure laid down in Chapter XV and
XVI of the Code of Criminal Procedure, 1973, the trial court issued summons to
the named accused in the complaint. On receipt of the complaint, the 1st accused
Company challenged the same before the very same Magistrate on the ground that
the Magistrate could not have taken cognizance of the offence because of the
defective statutory notice. Therefore, the Company sought for its discharge. The
said application came to be rejected. Thereafter, the second application for
discharge was filed by the Company on the very same ground which was allowed
by the Magistrate following the judgment of this Court in the case of K.M.Mathew
vs. State of Kerala & Anr. (1992 (1) SCC 217) which judgment had held that it
was open to the Magistrate taking cognizance and issuing process to recall the said
process in the event of the summoned accused showing to the court that the
issuance of process was legally impermissible. In this process, the Magistrate
came to the conclusion that the statutory notice issued by the complainant was not
in conformity with the requirement of law.
Aggrieved by the said order of discharge made by the learned Magistrate, the
complainant challenged the same by way of a revision petition before the learned
Sessions Court on the ground that the learned Magistrate had no power to review
his earlier order because of the Bar under Section 362 of the Cr.P.C. The Sessions
Court accepted the contention of the appellant and allowed the revision petition
without going into the merits of the legality of the statutory notice.

The Company thereafter challenged the said order of the learned Sessions Judge
by way of a criminal writ petition filed under Article 227 of the Constitution of
India before the High Court of Judicature at Bombay. The High Court by its order
dated 20th December, 2000 rejected the said petition on the ground that once the
Magistrate records the plea of the accused and the accused pleads not guilty then
the Magistrate is bound to take all such evidence as may be produced in support of
the prosecution and there is no provision under the Cr.P.C. enabling the Magistrate
to recall the process and discharge the accused after recording the plea of the
accused. It is to be noted that there is no dispute in regard to the fact that the plea
of all the accused was recorded by the Magistrate on 1.11.1999.

The above said order of the High Court dismissing the criminal writ petition was
challenged in a special leave petition bearing No. SLP(Crl.) No.429/2001 by the
Company before this Court. This Court rejected the SLP summarily on 5.2.2001
by the following order:

"Mr.Gopal Subramanian addressed arguments for some time. After noticing the
observations made by this Court, he requested for permission to withdraw this
SLP without prejudice (to) his contentions (to) be raised at the appropriate stage.
We therefore, dismiss this SLP as withdrawn."

After withdrawing the SLP, one would have accepted the accused in the case to
co-operate with the trial court in concluding the trial at the earliest but that was not
to be. The second round of litigation challenging the issuance of process was then
initiated by the present appellant herein who is none other than the Executive
Director of the accused-Company which had earlier fought the litigation right up
to this Court. In the fresh application filed before the learned Magistrate, the
appellant in his turn contended that the statutory notice issued was contrary to law,
hence, no cognizance could have been taken by the learned Magistrate nor the
process could have been issued. This application was filed within 10 days after the
rejection of the above said SLP by this Court. A perusal of the averments made in
the application for discharge by the appellant in the second round of litigation
shows that the said application was also on the same grounds as was taken by the
Company when it filed the application for discharge. Surprisingly, this application
of the appellant came to be allowed by the Magistrate holding the statutory notice
issued prior to filing of the complaint was not in accordance with law and in view
of the judgment of this Court in the case of K.M.Mathew vs. State of Kerala &
Anr. (1992 (1) SCC 217) it was open to him to recall the order of issuance of
process. In that process, he allowed the application of the appellant for discharge.
Being aggrieved by the said order of the learned Magistrate, the complainant filed
a criminal revision petition before the High Court of Judicature at Bombay which
by the impugned order reiterated its earlier view that it was not open to the
Magistrate to order the discharge of an accused once his plea has been recorded
and on that basis it allowed the revision petition of the complainant keeping open
the question of validity of the statutory notice to be raised at the trial.

It is against the said order of the High Court, the appellant is before us in this
appeal.

It is to be noted that when this matter came up for preliminary hearing by an order
dated 6th September, 2002, this Court observed that the decision rendered in
K.M.Mathew's case (supra) may require reconsideration, therefore, this appeal was
referred to a Bench of 3-Judges. At this stage itself, it may be relevant to mention
that the correctness of the judgment in K.M.Mathew's case (supra) came up for
consideration before a 3- Judge Bench of this Court in another case of Adalat
Prasad vs. Rooplal Jindal & Ors. (2004 (7) Scale 137). In the said case of Adalat
Prasad (supra), a 3-Judge Bench did not agree with the law laid down by this
Court in K.M.Mathew's case.

Shri Ranjit Kumar, learned senior counsel appearing for the appellant firstly
contended that principles laid down by this Court in Adalat Prasad's case (supra)
may require reconsideration because in Adalat Prasad's case this Court proceeded
on the basis that the same was a summons case but in reality it was a warrant case
covered by Chapter XIX of the Code. He nextly contended that the High Court in
this case erred in coming to the conclusion that once the plea of the accused is
recorded the Trial Court did have the jurisdiction to entertain an application for
discharge in a summons case. He submitted since very foundation of the complaint
being based on an illegal statutory notice, the Trial Court could not have taken
cognizance of the offence and issued summons and having erroneously done so it
had the power to recall the summons and or entertain an application for discharge
of an accused person. He also contended the fact that Company's petition for
discharge has been rejected right up to this Court did take away appellant's right to
separately agitate his grievance. Shri Chinmay Khaladhar, learned counsel
appearing for the respondent contended that though the case considered by this
Court in Adalat Prasad's case involved an offence which was triable as a warrant
case, this Court actually considered the power of the criminal courts to recall its
earlier orders bearing in mind the prohibition contained in Section 362 of the
Code. He also submitted the fact that in Adalat Prasad's case involved a warrant
case and in K.M.Mathew's case involved a summons case did not make any
difference, so far as the correctness of law considered by this Court in Adalat
Prasad's case. He also submitted that the appeal in hand being one triable as a
summons case, the Code has not contemplated a stage of discharge and once the
plea of not guilty is recorded the appellant has to face a trial as contemplated in
Chapter XX of the Code. He pointed out the appellant being one of the Directors
of the accused company and a co-accused, is using dilatory tactics to delay the
trial in spite of the fact the core issue involved in this case has already been
decided by this Court in the earlier S.L.P. filed by the company.
Having considered the argument of the learned counsel for the parties, we are of
the opinion that the argument of the learned counsel for the appellant that the
decision of this Court in Adalat Prasad's case requires reconsideration cannot be
accepted. It is true that the case of Adalat Prasad pertained to a warrant case
whereas in Mathew's case the same pertained to a summons case. To this extent,
there is some difference in the two cases, but that does not, in any manner, make
the law laid down by this Court in Adalat Prasad's case a bad law. .

In Mathew's case this Court held that consequent to a process issued under Section
204 by the concerned Magistrate it is open to the accused to enter appearance and
satisfy the court that there is no allegation in the complaint involving the accused
in the commission of the crime. In such situation, this Court held that it is open to
the Magistrate to recall the process issued against the accused. This Court also
noticed the fact that the Code did not provide for any such procedure for recalling
the process. But supported its reasoning by holding for such an act of judicial
discretion no specific provision is required. In Adalat Prasad's case, this court
considered the said view of the court in K.M.Mathew's case and held that the
issuance of process under Section 204 is a preliminary step in the stage of trial
contemplated in Chapter XX of the Code. Such an order made at a preliminary
stage being an interlocutory order, same cannot be reviewed or reconsidered by
the Magistrate, there being no provision under the code for review of an order by
the same Court. Hence, it is impermissible for the Magistrate to reconsider his
decision to issue process in the absence of any specific provision to recall such
order. In that line of reasoning this Court in Adalat Prasad's case held :

"Therefore, we are of the opinion that the view of this Court in Mathew's case
(supra) that no specific provision is required for recalling and issuance order
amounting to one without jurisdiction, does not laid down the correct law".

From the above, it is clear that the larger Bench of this Court in Adalat Prasad's
case did not accept the correctness of the law laid down by this Court in
K.M.Mathew's case. Therefore, reliance on K.M.Mathew's case by the learned
counsel appearing for the appellant cannot be accepted nor can the argument that
Adalat Prasad's case requires reconsideration be accepted. 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 contemplates 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. As observed by us in Adalat Prasad's 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.
The learned counsel for the appellant then sought leave of this Court to approach
the High Court by way of 482 petition questioning the issuance of process by the
Magistrate. The same was very strongly opposed by the learned counsel for the
respondents who contended that the complaint in this case was filed as far back as
24th of December, 1996 and though there was a direction earlier for an early
disposal of the trial, appellant and the other accused have successfully managed to
keep the trial in abeyance by initiating one proceeding after the another even up to
this Court. He submitted both this Court as well as the High Court in the earlier
proceedings has left the question of validity of statutory notice to be considered at
the trial but the accused persons including the appellant herein are time and again
raising the same issue with a view to delay the trial, hence no such permission as
sought for by the appellant should be granted. We see that this Court while
dismissing earlier S.L.P. as withdrawn had left the question of legality of the
notice open to be decided at the trial. Therefore, legitimately the appellant should
raise this issue to be decided at the trial. Be that as it may, we cannot prevent an
accused person from taking recourse to a remedy which is available in law. In
Adalat Prasad's case we have held that for an aggrieved person the only course
available to challenge the issuance of process under Section 204 of the Code is by
way of a petition under Section 482 of the Code. Hence, while we do not grant any
permission to the appellant to file a petition under Section 482, we cannot also
deny him the statutory right available to him in law. However, taking into
consideration the history of this case, we have no doubt the concerned court
entertaining the application will also take into consideration the objections i.e.
raised by the respondent in this case as to delay i.e. being caused by the
entertainment of applications and petitions filed by the accused. With the above
observations this appeal fails and the same is dismissed.

Delhi High Court

R K Aggarwal vs Brig Madan Lal Nassa & Anr on 13 June, 2016

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. 1507/2015 & Crl.M.A. Nos.5548-5549/2015, 8630/2015

Date of Decision: June 13th, 2016

R K AGGARWAL ..... Petitioner

Through Mr.K.K. Manan, Sr. Adv. with

Ms.Anjali Rajput, Adv., Mr.Nipun
Bhardwaj, Adv. & Mr.Ankush
Narang, Adv.
versus
BRIG MADAN LAL NASSA & ANR ..... Respondents

Through Mr.Meet Malhotra, Sr. Adv. with

Mr.Prateek Dahiya, Adv. for R-1.
Mr.Kamal Kumar Ghai, APP for the
State.
SI Kuldeep Yadav, PS Connaught
Place

AND

+ CRL.M.C. 1527/2015 & Crl.M.A. Nos.5589/2015, 8633/2015

PRABHAT RANJAN DEEN ..... Petitioner

Through Mr.K.K. Manan, Sr. Adv. with

Ms.Anjali Rajput, Adv., Mr.Nipun
Bhardwaj, Adv. & Mr.Ankush
Narang, Adv.
versus

BRIG MADAN LAL NASSA & ANR ..... Respondents

Through Mr.Meet Malhotra, Sr. Adv. with

Mr.Prateek Dahiya, Adv. for R-1.

Crl.M.C.Nos.1507/15 & 1527/15 Page 1 of 7

Ms.Manjeet Arya, APP for the State.
SI Kuldeep Yadav, PS Connaught
Place.

CORAM:
HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1. The present petitions have been filed under Sections 482 Cr.P.C. seeking to

invoke the inherent powers of this Court to set aside/quash the order dated
31.01.2015 passed by Sh.Satvir Singh Lamba, MM, Patiala House Courts, New
Delhi and to further direct the Trial Court not to read the evidence adopted by the
complainant against the present petitioners and quash the Trial Court proceedings
qua the petitioners in Complaint Case Nos.:469/1/06 under Section
500/501/502 IPC pending before the Trial Court.

2. The facts of the case in nutshell are that the complaint in question dated
06.05.2002 was filed by the complainant alleging that Janta Express, a Hindi Daily
newspaper published a story on 15.03.2002 with date line Lucknow 14 March,
2002 authored by the petitioner/Prabhat Ranjan Deen concerning tragic deaths of
some youths at Army Recruitment Centre, Lucknow in septic tank accident. It was
alleged in the complaint that to sensationalize the said story, knowingly false
malicious and baseless allegations against the complainant were leveled in the
story in order to defame him and his family, smearing his good name by not only
connecting him with the so call corruption in MES but also dubbing him as anti-
national by falsely and maliciously asserting that the complainant was caught
red handed for the charge of supplying Arms to the Kashmiri Militants. It was
further stated in the said story that the complainant while serving as Chief
Engineer MES was arrested at Jammu Airport with Rs.28 lakhs cash on the charge
of supplying arms to Kashmiri militants and was still undergoing imprisonment.
The caption of the story read: 'AATANKIYON KO HATIYAR SUPPLY
KARNEY WALAY BRIG. KAY BETAY PER THA RKAHRAKHAO KA
ZIMMA', which was alleged to be defamatory.

3. It was further alleged that the publication of the said story was false and
baseless and malicious assertions made in the said story has defamed the
complainant causing him tremendous loss of reputation and tarnished his image
and lowered him in the estimation of others causing mental agony to him and his
family members.

4. It was further alleged that the said story was authored by the petitioner/ Prabhat
Ranjan Deen and printed by the petitioner/R.K.Aggarwal without verifying the
truth of the allegations contained in the publication which were false, malicious
and defamatory.

5. Based on the presummoning evidence, the Trial Court vide order dated
08.01.2007 opined that there is prima facie material on record to summon all the
accused under Section 500 IPC as the alleged publication Ex.CW1/A was prima
facie defamatory.

6. Vide order dated 27.11.2012, at the stage of recording of statement of accused,

it was observed that notice under Section 251 Cr.P.C. was inadvertently not served
upon the accused before the commencement of complainant's evidence as the
matter was advertently being listed for recording of pre-charge evidence despite
the fact that the matter pertains to commission of an offence for which the
procedure of summons trial is to be followed and no pre charge evidence is to be
recorded. Thus, the matter was fixed for consideration of notice under Section
251 Cr.P.C. on 17.12.2012. Thereafter arguments were heard in the matter on
procedural irregularity on service of notice of accusation under Section
251 Cr.P.C. on the accused persons before recording of evidence. The said issue
was decided by the Trial Court vide order dated 01.04.2014 where it was opined
that non service of notice of accusation upon the accused under Section
251 Cr.P.C.would not vitiate the trial as the accused persons were duly represented
by their counsels who had not only cross examined the complainant at length on
seven dates of hearing but had also preferred a quashing petition under Section
482 Cr.P.C. for getting the present proceedings quashed. Thereafter the matter was
fixed for recording the statement of accused. At that stage, the learned counsel for
the petitioners argued that there was no incriminating evidence against the accused
persons in the present case. Hence, there was no need to record the statement of
accused persons under Section 313 Cr.P.C. It was submitted on behalf of accused
persons that after the summoning of accused in the present case, neither any new
evidence had been led on behalf of the complainant nor the documents were
exhibited in the presence of accused persons. Hence, no new incriminating
evidence had been brought on record at the stage of post summoning evidence
during the trial. Thus, it was prayed that the petitioners be discharged/acquitted.

7. The Trial Court observed that the petitioners were summoned for the offence
under Section 500 IPC vide order dated 08.01.2007 and vide order dated
02.05.2011, the complainant was permitted to adopt his pre-summoning evidence
as evidence for the further prosecution of the present case. Thereafter the
complainant and his witnesses were duly cross-examined and thus the
petitioners/accused cannot seek discharge/acquittal upon the conclusion of post
summoning evidence on behalf of the complainant. The Trial Court further
observed that the case involved the summons case which is covered by Chapter
XX of Cr.P.C. which does not contemplate a stage of discharge like Section
239 which provides for the discharge in a warrants case. Thus, the objections of
the petitioners/accused were rejected and the matter was put up for recording the
statement of accused under Section 313 Cr.P.C. to explain the circumstances
appearing in the evidence against them.

8. I have heard the learned counsel for the parties and gone through the entire
record.

9. So far the contention of the petitioner regarding non-framing of notice

under Section 251 Cr.P.C. is concerned, it is apparent from the record that against
the non-framing of notice, the petitioner had preferred a revision petition bearing
CR No.64/2014 which was disposed of by the learned ASJ vide order dated
13.08.2014. Learned ASJ directed the Trial Court to frame a formal notice
under Section 251 Cr.P.C. against the accused persons including the petitioner-
herein. It was also observed that the evidence of the complainant already recorded
at the stage of pre-charge evidence shall be considered and read as evidence
recorded during post notice under Section 251 Cr.P.C. Thereafter, a formal notice
under Section 251 Cr.P.C. was framed by the Trial Court against the petitioners on
06.09.2014 and an opportunity to cross-examine the complainant witnesses was
given to the accused persons. The said opportunity was duly availed by the
accused persons and the witnesses of the complainant were cross-examined.

10. The other limb of argument of the petitioners is that since the evidence of the
complainant was not recorded in their presence, therefore, no incriminating
evidence came on record against them and they were liable to be discharged.
There is no basis in the contention of the petitioners for discharge for the reasons
that firstly, there is no stage of discharge in a summons case. Under Chapter XX
of Cr.P.C., after filing a private complaint, in a summons case, the accused is
either convicted or acquitted. There is no stage of discharge of an accused at any
stage under Chapter XX of Cr.P.C. The other aspect of the matter is that during the
pendency of the revision petition preferred by the petitioners-herein, it was duly
conceded by the learned counsel for the petitioners to consider the evidence of the
complainant already recorded during pre-charge stage as evidence recorded after
the stage of framing notice under Section 251 Cr.P.C. When it was fairly conceded
by the petitioners themselves that the evidence recorded during pre-charge stage
be considered as evidence recorded post notice stage, now it does not lie in the
mouth of the petitioners to challenge the same while contending that no evidence
was recorded in their presence which results into discharge in the absence of
any incriminating evidence. The proceedings to which the petitioners themselves
were party cannot be questioned by them subsequently.

11. In view of the above facts and circumstances, this Court is of the considered
opinion that neither any abuse to the process of law has been established nor any
interference is warranted in the impugned order dated 31.01.2015.

12. Before parting with, any observation made above shall not have any bearing
on the merits of the case.

13. The revision petitions are accordingly dismissed.

(P.S.TEJI) JUDGE JUNE 13, 2016 dm