JUDGMENT
1. The petitioner, Ram Narain Gupta has filed the present petition under Section 482 of the Code of Civil Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’) against the impugned order dated 29.8.2011 passed by learned Metropolitan Magistrate (East District), Karkardooma Courts, Delhi whereby the petitioner has been summoned in a challan under Sections 417/430 of the Delhi Municipal Corporation Act, 1957.
2. Briefly stating, the facts of the present case are that on 25.7.2011 the respondent/MCD issued challan under Sections 417/430 of the Delhi Municipal Corporation Act, 1957 against the petitioner on the ground that petitioner was running trade/storage of copper and brass without license.
3. Vide order dated 29.8.2011, learned trial court issued summons under Sections 417 of the DMC Act against the petitioners.
4. Feeling aggrieved by the said order, the petitioner has preferred the present petition.
5. I have given my thoughtful consideration to the submissions made by learned counsel for both the parties.
6. Learned counsel for the petitioner contended that running trade of storage of copper/brass does not fall in the Eleventh Schedule of the DMC Act and is not punishable under Section 417 of the Act.
7. On the other hand, learned counsel for the respondent urged that Part-I of the Eleventh Schedule of the DMC Act provides the purpose for which premises may not be used without a license. Entry at serial No. 20 provides for Metal (ferrous or non-ferrous or antimony but excluding previous metal) cutting or treating metal by hammering, drilling, pressing, filing, polishing, heating or by any other process whatever or assembling part of metal.
8. During the course of hearing, learned counsel for the petitioner informed that notice under Section 251 Cr.P.C has not yet been framed.
9. Section 251 Cr.P.C deals with the stage subsequent to issue of process under Section 204 Cr.P.C in a summary 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 asking him whether he pleads guilty. This can be done by the magistrate only if the complaint/preliminary evidence/chargesheet recorded during enquiry disclose commission of a punishable offence. If the chargesheet/complaint does not make out a triable offence, a magistrate cannot state the particulars of non-existing offence for the accused is to be tried. Therefore, it is inherent in Section 251 Cr.P.C that when an accused appears before the trial court pursuant to summons issued against under Section 204 Cr.P.C, the magistrate is required to go through the chargesheet/complaint and arrive at 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.
10. In my view, the petitioner has an alternate efficacious remedy available to him to urge all the pleas before the trial court at the time of notice under Section 251 Cr.P.C This Court is of the opinion that inherent power of this Court under Section 482 Cr.P.C are not required to be invoked to quash the proceedings, in view of the dictum of the Apex Court in Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, the relevant para of the judgment reads as under:
“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 accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.”
11. Further, the Apex Court in Krishna Kumar Variar v. Share Shoppe, (2010) 12 SCC 485 observed:-
“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.”
12. In view of the authoritative pronouncements of the Apex Court in the aforesaid judgments of Bhushan Kumar's case (supra) and Krishna Kumar Variar (supra), this petition is not maintainable. Since notice under Section 251 Cr.P.C has not been framed, so it is deemed appropriate to relegate the petitioner to urge the pleas taken herein before the trial court at the time of hearing on the point of framing of notice under Section 251 Cr.P.C and if it is so done, then trial court shall deal with the pleas raised herein in accordance with law.
13. The petition is disposed of accordingly.