Crl. M.C.5245/2013 Page 1 of 25

$~1

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CRL.M.C. 5245/2013 and Crl.M.A.Nos.18920-21/2013

%

Date of Decision : 16^th January, 2014

ARVIND KEJRIWAL & ORS

..... Petitioners

Through :

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

..... Respondents

Through :

Mr. N.K. Kaul, Sr. Adv.

with Mr. Madhav Khurana

and Mr. Ajiteshwar Singh,

Advs. for R-1.

CORAM :-

HON'BLE MR. JUSTICE J.R. MIDHA

JUDGMENT (ORAL)

1. 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 24^th July, 2013, the learned Metropolitan Magistrate issued

summons to the petitioners.

2. The petitioners have challenged the summoning order dated

24^th July, 2013 on the ground that respondent no.1 is not the

Crl. M.C.5245/2013 Page 2 of 25

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:

(i)

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. The observations

made by the Supreme Court are reproduced hereunder:-

“2. This appeal has been filed against the impugned

judgment and order dated 14-5-2009 of the High Court of

Delhi whereby the petition filed under Section 482 CrPC by

the petitioner herein has been dismissed.

3. The appellant herein is an accused under Sections

415/420 IPC in which summons have been issued to him by

a court at Delhi. He challenged the summoning order on the

ground that it is only the court at Bombay which has

jurisdiction to try and entertain the complaint. His petition

under Section 482 CrPC challenging the summoning order

Crl. M.C.5245/2013 Page 3 of 25

has been rejected by the High Court by the impugned order.

Hence, he is before us in this appeal.

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