| Citation | (2015) CriLJ 215 |
| Date of Judgment | 16th January, 2014 |
| Court | Supreme Court Of India |
| Case Type | Criminal Appeal No. 5245/2013 |
| Appellant | 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 |
| Respondent | Mr. N.K. Kaul, Sr. Adv with Mr. Madhav Khurana and Mr. Ajiteshwar Singh, |
| Coram | HON’BLE MR. JUSTICE J.R. Midha |
| Referred | CrPC (2 of 1974) – Sec. 251, 482, 226 |
FACTS OF THE CASE –
In this case a complaint is filed by Amit Sibal against Arvind Kejriwal, Delhi Chief Minister alleging defamation, the judge of Hon’ble high Court Delhi ruled that ‘Magistrate has the power to hear the accused at the time of explanation of the substance of the accusation, and if no offence is made out, to drop proceedings against him at that stage itself, and the court need not, in all cases, take the matter to a full-blown trial.
Aggrieved by the judgment, the complainant filed a case before the Supreme Court stating that Magistrate has no power to drop proceedings in the absence of provisions in CRPC to that effect later the Supreme Court has stayed the order of High Court and ordered for fresh consideration under section 482 of Cr.PC.
ISSUES –
(i) Whether the magistrate, in a ‘summons case based on a complaint’ has the power to drop proceedings and discharge an accused, or not?
ARGUMENTS –
In this case, the Respondents (representing the accused) did not dispute this legal position (as to CrPC not stipulating a ‘discharge scenario’ in summons cases) and the Supreme Court apparently agreed with this proposition and matter was remanded to the High Court for fresh consideration from the viewpoint of Section 482 of the CrPC, effectively implying that Trial Court would have no such power.
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.
Even on a bare reading, it becomes apparent that there is no specific power of discharge or dropping of proceedings available with the Magistrate in a Summons Trial. However, the judicial opinion on this aspect is far from consistent and the position of law has meandered a great deal. A short chronology of decisions dealing with this aspect would be apposite.
The very fact that in a Summons Case there is no specific provision of a discharge, as opposed to a Warrants Case (S.227/239/245 of the CrPC) speaks volumes as to the legislative intent of not having an elaborate hearing at the time of framing of notice. What also deserves to be borne in mind is the fact that Summons Cases were not envisaged to be as long-drawn out as Warrants Case and the need for a specific discharge hearing was ousted.
➢ A decision which reads into Section 251 itself ‘the power of discharge’ may be required. One way in which the same can be done is by holding that the power to frame notice in a case, has implicit within itself the power not to frame a notice when no case is made
out against the accused. Such a judicial pronouncement is required to clear the air on this issue. Amendment of the law is, of course, the more appropriate way of bringing about a change, wherein the desirable results may be achieved without having to stretch the language of the section unnecessarily.
➢
➢ Till then, reliance on Subramanium Sethuraman (supra) (supported broadly by Amit Sibal v. Arvind Kejriwal – supra) and the bare provisions of CrPC constrain us to conclude that there is no such provision in CrPC that permits a ‘discharge’ or ‘dropping of proceedings’ in a Summons Case. Having said that, the remedy of filing a revision u/s 397 of the CrPC and/or a petition seeking quashing of proceedings u/s 482 of the CrPC before the Hon’ble High Court is always available with the accused, who can argue, in appropriate cases, that the continuance of proceedings against him amounts to abuse of process of law, and ends of justice demand that proceedings are quashed.
JUDGEMENT –
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:
a) 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.
b) 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.
c) 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.
REFERENCES –
This Article is written by Aabha Marothia of Rajasthan School of Law for Women, Jaipur, Intern at Legal Vidhiya.
