ANALYST

LAW ASSOCIATES

Vijay Kr. Aggarwal E- 39 Naraina Vihar New Delhi 110028

(Advocate) Chamber No. 251, Patiala House, New Delhi-1

79 LIST OF JUDGMENTS ON FRAMING OF NOTICE IN SUMMONS

CASES
S. TITLE CITATION PAGE
no. NO.
1. SHREE KRISHNA AGRO INDUSTRIES V/S 122(2005) DLT 568 1-2
NORTH DELHI POWER LTD.
2. O.P. AGARWAL V/S STATE OF 1984 CRI. L.J. NOC 71 3
RAJASTHAN (RAJ)
3. SANT KUMAR SINGH V/S STATE 2005 (3) JCC 1396 4–6
568 THE DELID LAW TIMES 2005
1
said post. Thus, the appellant could not have functioned in INMAS. A post of
f.Aajor General has been giv.en to PRJ:?E, Gwalior and it was considered in
public interest to post the appellant on the said post. The contention raised by
the appellant that the transfer order has been passed on account of mala fide
reasons has, therefore, absolutely no substance and is wholly devoid of merit.
14. The learned Counsel for the appellant has also urged that the appellant
moved an application for leave on 16.8.2005 before the Director, DRDE,
"
t
Gwalior and in the said application he had described himself as 'Associate f
Director'. However, while sanctioning the leave, the Director scored out the I

words 'Associate Director'. The contention of the appellant is that in the

additional affidavit, which was filed on behalf of the respondents before the
Delhi High Court, it was stated that the appellant would be ~esignated as l
Associate Director. The learned Counsel produced a photocopy of the leave l
application in order to substantiate his submission. Since this document has
been produced during the course of the hearing of the appeal, the learned
Counsel for the respondent was not in a position to give any reply. We do not
consider it necessary to make any observation regarding the status of the
appellant in DRDE, Gwalior. The appellant has already been promoted to the
rank of Major General and we have no reason to doubt that he would be given
the status to which he is entitled by virtue of the rank currently being held by
him.
15. The appeal lacks merit and is dismissed with costs.
Appeal dismissed with costs.

122 (2005) DELHI LAW TIMES 568

DELHI HIGH COURT
S. Ravindra Bhat, f.
SHREE KRISHNA AGRO INDUSTRIES -Petiti0ncr
versus
NORTH DELHI POWER LTD. -Respondent
Writ Petition (Civil) No. 7987 of 2005-Decided on 6.5.2005
Constitution of India, 1950 - Article 226 - Opportunity of cross-
examination and copies of documents and materials relied upon, to be furnished
to petitioner, to enable him to make effective defence: 1t is made dear that such
material shall be supplied in advance so that reasonable time given to petitioner
-It is open to respondents to send copies of required documents to petitioner
as well as copy to Counsel for petitioner.
Result : Petition disposed of.
Counsel for the Parties :
For the Petitioner :Mr. A.K. Gupta, Advocate.
 -l .. ,.......
2005
INMAS. A post of
vas considered· ·in , · ·- · - · .J.
ntention raised by
:count of mala fide
lydevoid of merit.
i that the appellant
! Director, DRDE,
nself as 'Associate
:tor scored out the
!ant is that in the
ondents before the
i be ~esignated as
:ocopy of the leave
this document ha:s
tppeal, the learned
lY reply. We do not
g the status of the
-en promoted to the
the would be given
~ently being held by
;ts.
lismissed with costs.
8 DELHI STOCK EXCHANGE ASSN. LTD. -Petitioner
'etitioner
1dent
16.5.2005
pportunity of cross-
,upon, to be furnished
s made clear that such
me given to petitioner
•cuments to petitioner
-: ~·
,::.:··
f.··. Vol. CXXII DELHI STOCK E.A. LTD. v. URVASHI ENTERPRISES 569
I For the Respondent : Mr. Sudhir Nandrajog, Advocate.
. ,;. ORDER
! WP (C) 7987/2005
The petitioner's grievance here is directed against an inspection report as
well as show-cause notice issued by the respondents. The specific claims are
that the respondents ought to provide opportunity of cross examination to the
petitioner and also that copies of the documents and materials which are being
relied upon ought to be furnished to the petitioner. Mr. Nandrajog, appearing
on behalf of the respondents, on advance notice, states that copies of the
materials or documents which are proposed to be relied upon would be
furnished to the petitioner in order to enable him to take an effective defence.
It is made clear that such materials shall be supplied in advance so that
reasonable time is given to the petitioner. All contentions are left open to the
petitioner. !tis open to the respondents to send copies of the required documents
to the petitioner as well as a copy to the Counsel for the petitioner.
With these directions, the petition is disposed of.
Dasti.
Petition disposed of
122 (2005) DELID LAW TIMES 569
DELHI HIGH COURT
A.K. Sikri, !-
versus
URV ASHJ ENTERPRISES LTD. -Respondent
CP No. 387 of 2000-Decided on 13.12.2004
Companies Act, 1956- Section 433- Winding up: Citations published
in newspaper : Extension of time granted : No body appeared on behalf of
respondent on subsequent dates : Official Liquidator appointed : Respondent
filed application for recc.lling of order of appointment : During pendency of
appliqation, compromise I settlement started between parties: That respondent
p~pared to pay dues of petitioner and expenses of Official Liquidator to take
back possession of property: Thereafter respondent stopped appearing: No
• payment made either to petitioner or to Official Liquidator : Ex-director of
Company not traceable : Clear case where finding can be recorded that
respondent Company is unable to pay debts: Company ordered to be wound
up. {Paras 3, 4]
Result : Company Petition disposed of.
27
 24 Not~s of Cases 68-71 'Q
·~
ceeded his right even if h~ had dealt more Sathish Ohandra Surya and Ajay Ch ·
tbsm one blow - Burden on ac~used to for Petitioners; Mrs. Indu, A. P. P., fo;n~,
prove exception is not of same rigour as spondent. e-
burden of prosecution to prove charge be- BB,'BB/ t\597/84/RMP
vond reasonable doubt. (Evidence Act
~!XiZ),S. 185)•.1974 Cri LJ 103~ ®,,,J9?1. ,1984 CRI. L. J .. NOC 70 (R:\J.)
Cri U 1296 (SC) antl1980 Cri LJ 4'~ (S~). >
: 1983 WLN 352
FoU.
P. K Dhal, B. P. Misra and D. Nayak, S. S. BYAS, J.
for Appellant; P. K. Mohanty, Addl. Govt. Shanker. Pclitioner v. State of Rajasthan,
Advocate with G. Bohidar, S. K. Mund and Respondent.
G. N. Mohapatra, for Respondent. Criminal Jail Revn. No. 93 of ~983, Dj-·
20-7-1983.
DA/EA/B457/83iHRjLGC Criminal P. C. (2 of 1974), Ss. 240 and
241 - Procedure laid down under _ Is
mandatory.
1984 CRI. L. J. NOC 68 (PAT.)
The provisions of Ss. 240 aud 241 are ex-
ANAND PRASAD SINHA, J. press, e)(plicit and mandatory in command
Panchanand Goswami, Petitianer v. State They admit no exception. The framing of
of Bihar and others. Opposite Parties. the charges. l 1heir being read over and ex. S. S. SAN
Criminal Revn. No. 301 of 1980, D/- !6-7- plained to the .~tccused and recording of his I.
1983. ple:1 cannot be obviated simply because the B:~ldev Sing!
(A) Criminal P. C. (2 of 1974), S. 324 - a..:cused admitted the prosecution case at a Responder
Witbdtawal of prosecution - Prayer for prior stage. Before an accused is convicted Criminal Rc·
withdrawal - Prayer found made without in a warrant caSe on his plea of guilty, the 7-1983.
application of m,ind by Public Prosec.utor - procedure laid down in Ss. 240 and 241 must
Held, ·JII'llyer was not valid. 1980 Cri U 324 be faithfully adthered to. The trial is vitiat-
ed in the absence of such adhex;ence. 1959
(SC), Foil.
Cri L1 1214 (Raj) and 1971 Cri lJ 734 (Man-
(B) Criminal P. C. (2 of 1974), S. 321 --: pur), Rei. on.
Constnt for withdrawal of prosecution - P. L. Choudhary, Amicus Curiae (Legal
Case for criminal br~b of trust and cheat- Aid), for Petitit\ller; L. S. Udawat, Public
ing - Held, though it was on private com- Prosecutor, for Respondent.
Plaint, State was dlective party - Magis-
A B/BB/A322/S4jWNG ·ous 9 an<
trate misdirected himself in observing that .,_..,..,~,~""tion h~
since two individual!~ were involved, it was
that the accw;
not of public ~portance - Consent for 1984 CRI. L. J. NOC 71 (RAJ.)
had the phy<.i
withdrawal was not proper. : 1983 Raj LW 298 directly COJJ(:.;c
R. C. Sinha, for Petitioner; Hare Krishna OAIPUR BENCH) to establish t
Kumar and Naresh Kumar Sinha, for Opp<)· BHARGAVA, J. knowing posse
site Parties. or was expres
0. P. Agarwal, Applic:~nt v. Stale of
LA/BB/F548/83/AKJ Rajasthan. Respondent. tn:lc prosecuti(
Criminal Misc. Appln. No. 16 of 1983, Dj- tb~.: onus snif
1984 CRJ. 1,. J. NOC 69 (PAT.) 9-3-1983. · mu~t j)rovl! I
M. P. VARMA, J. Criminal P. C., 1973 (2 of 1974), S. 294- lity th;!t iudc•
Section, which dispenses with proof of clocu- · nature of the
Nathuni Ahir and others, Petitioner.'> v.
ments admitted by a~cused, does not require not in consc
The State, Respondent. other constnll
that accused should either admit or deny
Criminal Revn. No. 916 of 1979, D/- 12·4- , the provi.sionf
the genuinenesS of documeuts produced by
1983. otiose <tlld par
proSKution - Held, Magistrate's order di·
Criminal P. C. (2 of 1974), S. 384 - Ap- recting accused to either admit or deny the tbat !he- pros•
peal diSIQissed without considering impuped docmnents prodll'Ced by prosecution was · possession of
judgment and memo of appeal ~ Dismissal violative of Art. 20 (3) of Constitution. the prcsum pti
'l is improper. (Constitution of India, Art. 20 (3) ). : 1973 Cri LJ
'i Where the appellate Court had dismissed Harh;,ns ~
Mrs. Gyanwati Dh<tkar and M. M. Ran-
the appeal for default and had not applied ·Sandhu, Adtl
jan, for Applicant; D K. Sora!, for Respon-
its mind to the facts of the; case •n perusal spondcnt.
dent.
of the petition of appeal and th~ impugned
IAjJAjD853J8
judgment, the order of dil!missal w;ts liable GAjHA/(990/83/HR
to be set aside. Case remanded.
1984 Cri.
 1396 Sant Kumar Singh v. State jDelhiJ
where the prosecutrix was studying. was
,_.,,cnargcd,,with h-aving comrr:itled mpc ·~n
her and the prosecutrix made a statement
that the accused had succeeded in
penetrating his male organ into her vagina
more than once but the medical report
. belied her this part of statement, the
Supreme Court observed that the state-
ment so made by the prosecutrix could
have been on account of her inexperience
who was being subjected to sexual harass-
ment for the first time and that the same
could not be read in isolation bereft of
what she had deposed just prior to the
aforesaid statement. In spite of statement
or the prosecutrix being found in con-
tradiction to the medical evidence, the
prosecutrix was held to be a truthful wit-
ness. Pointing out the difference between
preparation and an attempt to commit an
offence, the Supreme Court said : -
"The ;.:;~Terence between prepara-
tion and an attempt to commit an
offence consists chidly in the greater
degree of determination and what is
necessary to prove for an offence of an
allempt to commit rape has hcen com-
milted is that the accused has gone
beyond the stage or preparation. If an
accused strips a girl naked and then
making her tlat on the ground undres-
ses himself and then forcibly ruhs his
erected penis on the private part of the
girl but fails to penetrate the same into
vagina and on such rubbing ejaculates
himself then it is difficult for us to hold
that it was a case of merely assault
under s~-:tion 354 IPC and not an
attempt to commit rape under Section
176 read with 511 IPC."
12. On facts. the present case is
mure or less similar lo the above referred
case and keeping in view the statement of
prosecutrix. corroborated by the state-
ments of her parents and other evidence.
no fault can he found with the impugned
judgment in holding the appellant guilty of
,, -
2005 [3J
~
I I
allempling to commit rape punishable
under Section 37G read with Section 511 II
IPC: Thcr6being no reasaorft.ti'tllffl't·wttfi" . i-
I
the finding recorded by the learned trial l
i
court. no interference therewith is called !
for.
13. ln the result, the appeal is dis-
missed.
14. The trial court record be sent
back with a copy of instant order for nece$-
sary action, if any.
2005 [3] JCC 1396
In The High Court of Delhi
Hon'ble Mr. Justice H.R. Malhotra
Dated : 27th May, 2005
SANT KUMAR SINGH -Petitioner
Vs.
STATE -Respondent
Crl. Revision Petition No. 230 of 2005
For the Petitioner : Mr. Ashutosh, Advo-
cate.
Fllf the State : Mr. V.K. Malik, Advo-
cate.
Criminal Procedure Code, 1973--Se,:.
251-Trial of summons cases-The
Metropolitan Magistrate while giving
notice to the petitioner under Sec. 251
Cr.I~C., for comnlission of ofi'ence under
Sees. 279/304-A volleyed as many as
seven questions to him to find out if he
was driving the offending vehicle on 7th
June, 2004 at 9.3ti I~M. and if so, whether
he was driving the vehicle in rash and
nt-gJigent manner and whether be was
responsible for causing the death of one S
because of driving in rash and negligent
mnnner-By invoking provision of Sec.
251 the M.M. found that the petitioner
accused was under legal obligations to
disclose his defence once he pleaded not
guilty to the notice-The petitioner being
 JCC Sant Kumar Singh v. State {Delhi]
aggrieved by the impugned order has filed
the instant revision petition-Held : the
accused wben;.<;h~~es not to plead gt•~lty_
cannot be asked to open up bis · 'dis'e'·;.·
first-It is the prosecution who is to open
up the case--Sec. 251 indicates that in
case the accused does not plead guilty the
Magistrate has simply to ask the accused
if he has any defence to make and noth-
ing beyond that-The Magistrate cannot
at this initial stage compel the accused to
disclose his defence in details particularly
when the accused has right to remain
\ stated to him, and he shall be asked
silence as guaranteed to him under the
I Constitution of India-The impugned
order is liable to be set aside.
(f'an1s 1, 2, 5 & 6)
I JUDGMENT
I II.I~.MALHOTRA, J.
1. This Criminal Revision Petition
is to assail the impugned order dated 28th
Ma_rch, 2005 passed by the Metropolitan
Magistrate whereby the Metropolitan
Magistrate while giving notice to the
petitioner under Section 251 of Code of
Criminal Procedure, for commission of of-
fence under Section 279/304-A volleyed as
many as seven questions to him to lind
out if he was driving the offending vehicle
on 7th June, 2004 at 9.30 P.M. and if so,
whether he was driving the vehicle in rash
and negligent manner and whether he was
responsible for causing the death of one
Sanjeev Kumar Sehgal because of driving
in rash and negligent manner.
2. The Metropolitan Magistrate by
invoking the Provisions of Section 251
Cr.P.C. found that the petitioner accused
was under legal obligations to disclose his
defence once he pleaded not guilty to the
notice.
3. The petitioner being aggrieved by
the impugned order has filed the instant
revision petition.
1397
4. Chapter XX deals with the trial
of summons cases by the Magistrate.
First Section of this Chapter is 251. The
t1'tle ofthis Section is "Substance of Ac-
cusation to be stated" which reads as
under:
"SUBSTANCE OF ACCUSATION
TO BE STATED :
When in a summons case the ac-
cused appears or is brought before the
Magistrate, the particulars of the of-
fence of which he is accused shall be
whether he pleads guilty or has any
defence to make but it shall not be
necessary to frame a formal charge.
5. Cardinal principles of criminal
law is that the accused is presumed to be
innocent unless proved guilty. In this legal
back ground, the accused when chooses
not to plead guilty cannot be asked to open
up his case first. It is the prosecution who
is to open up the case. This is so stated in
Section 251. In the case in hand, the
Metropolitan Magistrate seems to have
burdened the petitioner accused with the
onus to prove his innocence by putting
so many questions to him by taking the aid
or Sec! ion 251.
6. The plain reading of Section 251
indicates that in case the accused does not
plead guilty the Magistrate has simply to
ask the accused if he has any defence to
make and nothing beyond that. The
Magistrate cannot at this initial stage
compel the accused to disclose his defence
in details particularly when the accused
has right to remain silence as guaranteed
to him under the Constitution of India. If
the accused is asked to disclose his
defence before the prosecution open up
its case il shall be contrary to the basic
tiber of the criminal law which presumes
innocence or the accused unless proved
ut hcrwise.
7. In view of what has been dis-
 B98 Ateef Nasir Mulla v. State of Maharashtra [SCJ
dosed in the following paragraph the
order passed by the Metropolitan
. M~!g_~~!n~!e ~!!pi]pt J?c; su~tained ir. t~e eyes
of law as it would' not t>hly cause·
prejudice to the petitioner accused by
compelling him to disclose his defence
when he was not required to do so but also
will be contrary to the basic principles of
criminal justice. Therefore, the impugned
order is liable w be set aside. The same is
set aside resulting in acceptance of the
Criminal Revision Petition. The case is
remanded back to the Metropolitan
Magistrate with the directions to frame
the notice afresh asking the petitioner if
he was to plead guilty and if he answers in
negative then ask the petitioner if he had
any defence to make and would not com-
pd the petitioner to cla~orate his ~cfen~c
further but only take h1s answer e1ther m
affirmative or in negative as the petitioner
chooses to give.
8. The petitioner is directed to ap-
pear before the trial court on 12th Sep-
tember. 2005.
2005 [3] .JCC 1398
In The Supreme Court of India
Hon'ble Mr. Justice B.P. Singh
Hon'ble Mr. Justice S.B. Sinha
Dated : 24th August. 2005
ATEEF NASIR MULLA -Appellant
Vs.
STATE OF MAHARASHTRA
-Respondent
Criminal Appeal No. 1069 of 2005
(Arising out of SLP (Crl.) No. 5258 of
2003)
For tfie Appcllant : Su~hil Kumar, Sr. Adv.,
Adolf-rvfathew,-· Vinay
Arora and Sanjay Jain,
Advs. with him.
For the Respondent : U.U. Lalit, Sr. Adv., S.S.
2005 [3J
Shinde and Ravindra
Keshavrao Adsure, Ad-
vocates with him .
Ca.'>es referred: . '· .~...:,·,····.,
1. Sanjay Dull V.f. State through C.B.l., Bom-
bay (JI) (1994) s sec 410.
2. Hitendra Vishnu Thakur and Others Vs.
Stale of Maharashtra and.Otlzers, (1994) 4
sec 602.
l'revention of Terrorism Act, 2002-Sec.
49(2){b)-Cr.P.C. 1973-Sec. 167(2)-
Muhmd Blast case-Bail application-
Extension of the period to complete the
investigation-A blast took place in a
local train approaching platform No.3 of
the Muhmd Railway Station, Mumbai,
resulting in the death of 11 persons and
injuring 82 others-Investigation dis-
closed that the incident was the result of a
conspirc1cy hatched by several persons to
strike terror in the minds of people by
explosion of bombs and preparations to
wage war against the State-The appel-
lant having been arrested on 15th April, 1
2003, the period of 90 days for completing i
the investigation was to expire on .July 13, ~ ·:,
2003-0n 11.7.2003 he was remanded to
judicial custody at about 11.30 hours by
the Special Court-Later, an application
was moved lor extension of time to com-
plete the investigation under Section
49(2)(b) of the Act-The Spechll judge
granted extension of time to complete the
investigation in exercise of power under
Sec. 49(2)(b) of the Act-ChaJJenged
before the High Court-The High Court
upheld the order of Special .Judge-Before
the I Iigh Court three main grounds were
urged in support of the appeal-Firstly, it
was contended that there was no good
ground for grant of extension of the period
to complete the investigation under Sec.
49(2)(b) of the Act-Secondly, the
prosecution -nas guilty of buving_not given
notice of the application to the appel- i
lant-Thirdly, it was contended that the I
prosecution acted in such manner only t o _ j