Zahoor Ahmed Tramboo v. Prayag Financial & Investment Consultants

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 ofthe 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 ofthe Code. 11 Further, on this aspect, the dictum of the Apex Court in Krishan Kumar Varicir v. Share Shoppe (2010) 12 SCC is as under:- Crl.MCs. 2815 & 3543 of2011 Page[2] "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 shouldfile an application before the trial court making this averment and giving the relevantfacts. 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 ofjurisdiction 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, ifsuch 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 ofjurisdiction before further proceeding with the trial. " In ·view of authoritative pronouncement of the Apex Court in Bhushan Kumar & Krishan Kumar (supra) as referred to hereinabove, the above captioned two petitions are disposed of with liberty to petitioners 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 and reasoned order. Needless to say, if the trial court proceeds to drop the proceedings Crl.MCs. 2815 & 3543 of2011 Page[3] \\ qua petitioners, then the Apex Court's decision in Ada/at 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 petitioners, personal appearance of petitioners before the trial court be not insisted upon, provided petitioners are duly represented by their counsel, who do not seek adjournment. However, it is made clear that in case petitioners delay the proceedings before the trial court, then petitioners will not have the benefit of the exemption granted by this Court. Needless to say that ifthe 4 ' trial court chooses to frame Notice under Section 251 Cr.P.C., then trial court shall obtain personal appearance of petitioners' if their counsel do not appear and petitioners also would be at liberty to avail of the remedy as available in the law. Let parties appear through their counsel before the trial court on 7th December, 2013. The above-captioned two petitions and the applications are accordingly disposed of while refraining to comment upon merits, lest it may prejudice either side at the hearing on framing of Notice under Section 251 ofCr.P.C. NOVEMBER 28, 2013 s Crl.MCs. 2815 & 3543 of2011 ~

(SUNIL GAUR) JUDGE Page[4]