Full Judgment Text
I- R-201 to 205
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 26, 2015
(i) + CRL.M.C. 2521/2013 & Crl.M.A.No.9761/2013
NISHA SHARMA ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for respondent-
State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
(ii) + CRL.M.C. 2538/2013 & Crl.M.A.No.9802/2013
RAM DEV SHARMA ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Ashish Dutta, Additional
Public Prosecutor for respondent-
State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 1
(iii) + CRL.M.C. 2724/2013 & Crl.M.A.No. 10433/2013
INDER MUKHI ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. G.M Farooqui, Additional
Public Prosecutor for respondent-
State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
(iv) + CRL.M.C. 2715/2013 & Crl.M.A.No.10392/2013
BUBLY @ SHASHI ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Arun Kumar Sharma,
Additional Public Prosecutor for
respondent-State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 2
(v) + CRL.M.C. 3461/2013 & Crl.M.A.No.12672/2013
SUMIT ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Satya Narain Vashisht,
Additional Public Prosecutor for
respondent-State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In the above captioned five petitions, challenge is to the trial
th
court’s order of 11 April, 2012 vide which petitioner- Ram Dev Sharma
has been summoned for offences under Sections 420/452/468/506/323/34
of the IPC and petitioner- Nisha Sharma, Inder Mukhi, Babli @ Shashi
and Sumit have been summoned for offences under Sections 323/452/34
of IPC in Criminal Complaint No.19/03/09 Meera Vs. Shri Ram Dev
Verma & ors. .
Since the order impugned in these petitions is common and its
quashing is sought on identical grounds, therefore, with the consent of
counsel for the parties, these petitions have been heard together and are
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 3
being disposed of by this common judgment.
Petitioner- Ram Dev Sharma had challenged the trial court’s order
th
of 11 April, 2012 by way of a revision petition, which stands dismissed
th
vide impugned order of 17 December, 2012.
At the hearing, learned senior counsel for petitioners submits that
no case for summoning of petitioners in the aforesaid complaint in
question is made out. Learned senior counsel for petitioners discloses that
Notice under Section 251 of Cr.P.C. has not yet been framed and that
th
matter is now coming up on 15 October, 2015 before the trial court and
while entertaining these petitions, petitioners have been exempted from
personally appearing before the trial court, subject to their counsel
appearing.
At the hearing, it was put to learned senior counsel as to why the
pleas urged herein cannot be raised before the trial court at the time of
hearing on the point of framing of Notice under Section 251 of Cr.P.C.
Learned senior counsel for petitioners fairly concedes that such a
course can be adopted and petitioners be granted liberty to do so.
Learned senior counsel for petitioners also prays that petitioners be also
permitted to appear before the trial court through counsel, especially in
case of petitioner- Inder Mukhi , as she is 80 years old and ailing.
At the outset, it is made clear that learned counsel for petitioners
has not been heard on merits, as petitioners have an alternate and
efficacious remedy available to them to urge the pleas taken herein before
trial court at the time of framing of Notice under Section 251 of Cr.P.C.
Therefore, this Court finds that inherent powers of this Court under
Section 482 of the Cr.P.C. are not required to be invoked to quash the
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 4
proceedings arising out of the complaint in question. It is being so said in
view of dictum of the Apex Court in Bhushan Kumar & Anr. Vs. State
(NCT of Delhi) & Anr. AIR 2012 SC 1747 , which persuades this Court
not to exercise inherent jurisdiction under Section 482 Cr.P.C. to
entertain this petition. The pertinent observations of Apex Court in
Bhushan Kumar (Supra), are as under:-
"17. It is inherent in Section 251 of the Code that
when an accused appears before the trial Court pursuant to
summons issued under Section 204 of the Code in a
summons trial case, it is the bounden duty of the trial Court
to carefully go through the allegations made in the charge-
sheet or complaint and consider the evidence to come to a
conclusion whether or not, commission of any offence is
disclosed and if the answer is in the affirmative, the
Magistrate shall explain the substance of the accusation to
the accusation to the accused and ask him whether he pleads
guilty otherwise, he is bound to discharge the accused as per
Section 239 of the Code."
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
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 5
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 & Krishan Kumar (supra) and applying it to the facts of
this case, inherent powers of this Court under Section 482 of the Cr.P.C.
are not exercised and petitioners are relegated 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. and if it is so done, then trial court
shall deal with the pleas raised herein by passing a speaking and reasoned
order. At the stage of framing of Notice under Section 251 of Cr.P.C.,
trial court is not expected to function like a post office and to
mechanically frame Notice, but is rather bound by law to apply its mind
to find out whether prima facie case is made out against the accused or
not. Similar view has been already taken by a coordinate Bench of this
Court in S.K. Bhalla V. State and Others 180 (2011) DLT 219.
Needless to say, if the trial court finds that no case is made out
against petitioners, then the decision of the Apex Court’s in Adalat
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 6
Prasad Vs Rooplal Jindal and Ors. (2004) 7 SCC 338 will not stand in
the way of trial court to drop the proceedings against petitioners and if
trial court chooses to proceed against petitioners, then petitioners will
have the remedy as available in the law. It is so said because dropping of
proceedings at Notice stage cannot possibly be equated with recalling of
summoning order.
Purely as an interim measure, till the arguments on the point of
framing of Notice under Section 251 of Cr.P.C. are concluded, personal
appearance of petitioners be not insisted upon by the trial court upon
petitioners filing an application under Section 205 of Cr.P.C. alongwith
his affidavit with the following undertaking: -
a. that the proceedings of the case shall be regularly conducted by
counsel (whose name shall be disclosed in application), who
shall appear on behalf of petitioner(s) on every hearing and will
not seek adjournment;
b. that petitioner(s) shall not dispute their identity as accused in
the case;
c. that the petitioner(s) shall appear in person as and when
directed in future to do so; and
d. that petitioner(s) shall not raise the question of prejudice in
future.
It is made clear that if petitioners delay the proceedings before the
trial court, then petitioners will not have the benefit of exemption from
personal appearance extended by this Court.
This petition and the application are accordingly disposed of in
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 7
aforesaid terms while refraining to comment upon merits, lest it may
prejudice either side at the hearing on the framing of Notice under
Section 251 of Cr.P.C.
Dasti .
(SUNIL GAUR)
JUDGE
August 26, 2015
r
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 26, 2015
(i) + CRL.M.C. 2521/2013 & Crl.M.A.No.9761/2013
NISHA SHARMA ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for respondent-
State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
(ii) + CRL.M.C. 2538/2013 & Crl.M.A.No.9802/2013
RAM DEV SHARMA ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Ashish Dutta, Additional
Public Prosecutor for respondent-
State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 1
(iii) + CRL.M.C. 2724/2013 & Crl.M.A.No. 10433/2013
INDER MUKHI ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. G.M Farooqui, Additional
Public Prosecutor for respondent-
State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
(iv) + CRL.M.C. 2715/2013 & Crl.M.A.No.10392/2013
BUBLY @ SHASHI ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Arun Kumar Sharma,
Additional Public Prosecutor for
respondent-State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 2
(v) + CRL.M.C. 3461/2013 & Crl.M.A.No.12672/2013
SUMIT ..... Petitioner
Through: Mr. Amit Sibal, Senior Advocate,
with Mr. Santosh Mishra &
Mr.Rajiv Ranjan, Advocates
versus
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Satya Narain Vashisht,
Additional Public Prosecutor for
respondent-State
Mr. Anil Dwedi & Mr. Ajay
Chaudhary, Advocates for
respondent No.2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In the above captioned five petitions, challenge is to the trial
th
court’s order of 11 April, 2012 vide which petitioner- Ram Dev Sharma
has been summoned for offences under Sections 420/452/468/506/323/34
of the IPC and petitioner- Nisha Sharma, Inder Mukhi, Babli @ Shashi
and Sumit have been summoned for offences under Sections 323/452/34
of IPC in Criminal Complaint No.19/03/09 Meera Vs. Shri Ram Dev
Verma & ors. .
Since the order impugned in these petitions is common and its
quashing is sought on identical grounds, therefore, with the consent of
counsel for the parties, these petitions have been heard together and are
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 3
being disposed of by this common judgment.
Petitioner- Ram Dev Sharma had challenged the trial court’s order
th
of 11 April, 2012 by way of a revision petition, which stands dismissed
th
vide impugned order of 17 December, 2012.
At the hearing, learned senior counsel for petitioners submits that
no case for summoning of petitioners in the aforesaid complaint in
question is made out. Learned senior counsel for petitioners discloses that
Notice under Section 251 of Cr.P.C. has not yet been framed and that
th
matter is now coming up on 15 October, 2015 before the trial court and
while entertaining these petitions, petitioners have been exempted from
personally appearing before the trial court, subject to their counsel
appearing.
At the hearing, it was put to learned senior counsel as to why the
pleas urged herein cannot be raised before the trial court at the time of
hearing on the point of framing of Notice under Section 251 of Cr.P.C.
Learned senior counsel for petitioners fairly concedes that such a
course can be adopted and petitioners be granted liberty to do so.
Learned senior counsel for petitioners also prays that petitioners be also
permitted to appear before the trial court through counsel, especially in
case of petitioner- Inder Mukhi , as she is 80 years old and ailing.
At the outset, it is made clear that learned counsel for petitioners
has not been heard on merits, as petitioners have an alternate and
efficacious remedy available to them to urge the pleas taken herein before
trial court at the time of framing of Notice under Section 251 of Cr.P.C.
Therefore, this Court finds that inherent powers of this Court under
Section 482 of the Cr.P.C. are not required to be invoked to quash the
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 4
proceedings arising out of the complaint in question. It is being so said in
view of dictum of the Apex Court in Bhushan Kumar & Anr. Vs. State
(NCT of Delhi) & Anr. AIR 2012 SC 1747 , which persuades this Court
not to exercise inherent jurisdiction under Section 482 Cr.P.C. to
entertain this petition. The pertinent observations of Apex Court in
Bhushan Kumar (Supra), are as under:-
"17. It is inherent in Section 251 of the Code that
when an accused appears before the trial Court pursuant to
summons issued under Section 204 of the Code in a
summons trial case, it is the bounden duty of the trial Court
to carefully go through the allegations made in the charge-
sheet or complaint and consider the evidence to come to a
conclusion whether or not, commission of any offence is
disclosed and if the answer is in the affirmative, the
Magistrate shall explain the substance of the accusation to
the accusation to the accused and ask him whether he pleads
guilty otherwise, he is bound to discharge the accused as per
Section 239 of the Code."
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
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 5
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 & Krishan Kumar (supra) and applying it to the facts of
this case, inherent powers of this Court under Section 482 of the Cr.P.C.
are not exercised and petitioners are relegated 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. and if it is so done, then trial court
shall deal with the pleas raised herein by passing a speaking and reasoned
order. At the stage of framing of Notice under Section 251 of Cr.P.C.,
trial court is not expected to function like a post office and to
mechanically frame Notice, but is rather bound by law to apply its mind
to find out whether prima facie case is made out against the accused or
not. Similar view has been already taken by a coordinate Bench of this
Court in S.K. Bhalla V. State and Others 180 (2011) DLT 219.
Needless to say, if the trial court finds that no case is made out
against petitioners, then the decision of the Apex Court’s in Adalat
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 6
Prasad Vs Rooplal Jindal and Ors. (2004) 7 SCC 338 will not stand in
the way of trial court to drop the proceedings against petitioners and if
trial court chooses to proceed against petitioners, then petitioners will
have the remedy as available in the law. It is so said because dropping of
proceedings at Notice stage cannot possibly be equated with recalling of
summoning order.
Purely as an interim measure, till the arguments on the point of
framing of Notice under Section 251 of Cr.P.C. are concluded, personal
appearance of petitioners be not insisted upon by the trial court upon
petitioners filing an application under Section 205 of Cr.P.C. alongwith
his affidavit with the following undertaking: -
a. that the proceedings of the case shall be regularly conducted by
counsel (whose name shall be disclosed in application), who
shall appear on behalf of petitioner(s) on every hearing and will
not seek adjournment;
b. that petitioner(s) shall not dispute their identity as accused in
the case;
c. that the petitioner(s) shall appear in person as and when
directed in future to do so; and
d. that petitioner(s) shall not raise the question of prejudice in
future.
It is made clear that if petitioners delay the proceedings before the
trial court, then petitioners will not have the benefit of exemption from
personal appearance extended by this Court.
This petition and the application are accordingly disposed of in
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 7
aforesaid terms while refraining to comment upon merits, lest it may
prejudice either side at the hearing on the framing of Notice under
Section 251 of Cr.P.C.
Dasti .
(SUNIL GAUR)
JUDGE
August 26, 2015
r
Crl.M.C.Nos. 2521; 2538; 2724; 2715 & 3461 of 2013 Page 8