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True Colors of a Vile Wife

Tag: CrPC 468 – Bar to taking cognizance after lapse of the period of limitation

Kamatchi Vs Lakshmi Narayanan on 13 Apr 2022

Posted on April 14, 2022 by ShadesOfKnife

A Full Bench of Apex Court (Justice Ravindra Bhat’s name is missing in the judgment PDF), while overruling Dr.P.Pathmanathan here, held that, limitation under section 468 CrPC does not apply to DV cases.

From Paras 20 and 21,

20. It is thus clear that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence.

21. It is, however, true that as noted by the Protection Officer in his Domestic Inspection Report dated 2.08.2018, there appears to be a period of almost 10 years after 16.09.2008, when nothing was alleged by the appellant against the husband. But that is a matter which will certainly be considered by the Magistrate after response is received from the husband and the rival contentions are considered. That is an exercise which has to be undertaken by the Magistrate after considering all the factual aspects presented before him, including whether the allegations constitute a continuing wrong.

22. Lastly, we deal with the submission based on the decision in Adalat Prasad. The ratio in that case applies when a Magistrate takes cognizance of an offence and issues process, in which event instead of going back to the Magistrate, the remedy lies in filing petition under Section 482 of the Code. The scope of notice under Section 12 of the Act is to call for a response from the respondent in terms of the Statute so that after considering rival submissions, appropriate order can be issued. Thus, the matter stands on a different footing and the dictum in Adalat Prasad would not get attracted at a stage when a notice is issued under Section 12 of the Act.

Kamatchi Vs Lakshmi Narayanan on 13 Apr 2022

Citations :

Other Sources :

https://indiankanoon.org/doc/147915185/

https://www.lawyersclubindia.com/judiciary/court-entitled-to-take-cognizance-where-the-complaint-was-filed-within-the-limitation-period-sc-in-kamatchi-vs-lakshmi-narayanan-5857.asp

https://www.livelaw.in/top-stories/limitation-period-us-468-crpc-not-applicable-application-us-12-domestic-violence-supreme-court-kamatchi-vs-lakshmi-narayanan-2022-livelaw-sc-370-196595

https://www.barandbench.com/news/application-under-section-12-of-domestic-violence-act-need-not-be-filed-within-1-year-of-alleged-act-of-domestic-violence-supreme-court


Earlier decision of Madras High Court here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 468 - Bar to taking cognizance after lapse of the period of limitation Dr.P.Pathmanathan and Ors Vs V.Monica and Anr Kamatchi Vs Lakshmi Narayanan Landmark Case Overruled Dr.P.Pathmanathan Overruling Judgment PWDV Act - Time Limitation not applicable for Sec 12 Application but for Sec 31 Offence Reportable Judgement or Order | Leave a comment

Rabindra Nath Pal Vs Ratikanta Paul and Ors on 6 Mar 2020

Posted on March 10, 2022 by ShadesOfKnife

Relying on Apex Court’s Surinder Mohan Vikal decision, Calcutta High Court held as follows:

In the instant case, the cause of action arose from the date when First Information Report was registered and not from the date on which the complainant was acquitted from the charge.

Rabindra Nath Pal Vs Ratikanta Paul and Ors on 6 Mar 2020

Citations :

Other Sources :

https://indiankanoon.org/doc/50050401/

https://www.casemine.com/judgement/in/5faa5a1c4653d02a0b1309ab

Posted in High Court of Calcutta Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 468 - Bar to taking cognizance after lapse of the period of limitation IPC 499 - Defamation IPC 500 - Punishment For Defamation Non-Reportable Judgement or Order Rabindra Nath Pal Vs Ratikanta Paul and Ors Surinder Mohan Vikal Vs Ascharaj Lal Chopra | Leave a comment

Ms.Romy Khanna Vs State (Govt of NCT of Delhi) on 4 Jul 2011

Posted on March 10, 2022 by ShadesOfKnife

Relying on Apex Court’s Surinder Mohan Vikal decision, Delhi High Court held that if any offence is made out in a complaint under Section 500 IPC for defamation, Section 468(2) Cr.P.C. is attracted and cognizance of offence should be taken within a period of three years from the date of occurrence.

Ms.Romy Khanna Vs State (Govt of NCT of Delhi) on 4 Jul 2011

Citations : [2011 DLT 182 221], [2012 CRICC 1 85], [2011 RCR CRIMINAL 4 735], [2011 SCC ONLINE DEL 2664], [2011 RCR CRI 4 735]

Other Sources :

https://indiankanoon.org/doc/10503637/

https://www.casemine.com/judgement/in/56090e0ae4b014971117b1c7

Posted in High Court of Delhi Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 468 - Bar to taking cognizance after lapse of the period of limitation IPC 499 - Defamation IPC 500 - Punishment For Defamation Ms.Romy Khanna Vs State (Govt of NCT of Delhi) Reportable Judgement or Order Surinder Mohan Vikal Vs Ascharaj Lal Chopra | Leave a comment

Japani Sahoo Vs Chandra Sekhar Mohanty on 27 Jul 2007

Posted on October 16, 2021 by ShadesOfKnife

Supreme Court declared that, Limitation u/s 468 starts from the date of making the complaint and not on the date the cognizance was taken.

Reasoning

52. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of ‘litera legis’. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution.

Conclusion

53. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings.

Japani Sahoo Vs Chandra Sekhar Mohanty on 27 Jul 2007

Citations :

Other Sources :

https://indiankanoon.org/doc/1432851/

https://www.casemine.com/judgement/in/5609ae4ae4b0149711413706

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CrPC 468 - Bar to taking cognizance after lapse of the period of limitation Japani Sahoo Vs Chandra Sekhar Mohanty Landmark Case Legal Procedure Explained - Interpretation of Statutes | Leave a comment

Surinder Mohan Vikal Vs Ascharaj Lal Chopra on 28 Feb 1978

Posted on October 16, 2021 by ShadesOfKnife

A division bench of Supreme Court held that, the defamation has to be filed with in time limitation while also referring to 468, 469 and 470 CrPC.

It would thus appear that the appellant was entitled to the benefit of sub-section (1) of section 468 which prohibits every Court from taking cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar to the taking of cognizance has been prescribed under section 468 of the Code of Criminal Procedure and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case.

Surinder Mohan Vikal Vs Ascharaj Lal Chopra on 28 Feb 1978

Citations : [1978 SCC 2 403], [1978 SCR 3 434], [1978 CAR 113], [1978 CRLR SC 158], [1978 SCC CR 215], [1978 AIR SC 486], [1978 AIR SC 786], [1978 AIR SC 986], [1978 SCC CRI 215], [1978 CRLJ SC 764]

Other Sources :

https://indiankanoon.org/doc/885750/

https://www.casemine.com/judgement/in/5609abcae4b014971140d573

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CrPC 468 - Bar to taking cognizance after lapse of the period of limitation CrPC 469 - Commencement of the period of limitation CrPC 470 - Exclusion of time in certain cases IPC 499 - Defamation IPC 500 - Punishment For Defamation Landmark Case Surinder Mohan Vikal Vs Ascharaj Lal Chopra | Leave a comment

Udai Shankar Awasthi Vs State of U.P. and Anr on 09 Jan 2013

Posted on July 9, 2021 by ShadesOfKnife

A Division Bench of the Apex Court quash the complaint case filed against the appellants and while doing to enunciated and reiterated lot of legal principles supported by case laws.

From Para 6,

LIMITATION IN CRIMINAL CASES- Section 468 Cr.P.C.:
6. Section 468 Cr.P.C. places an embargo upon court from taking cognizance of an offence after the expiry of the limitation period provided therein. Section 469 prescribes when the period of limitation begins. Section 473 enables the court to condone delay, provided that the court is satisfied with the explanation furnished by the prosecution/complainant, and where, in the interests of justice, extension of the period of limitation is called for. The principle of condonation of delay is based on the general rule of the criminal justice system which states that a crime never dies, as has been
explained by way of the legal maxim, nullum tempus aut locus occurrit regi (lapse of time is no bar to the Crown for the purpose of it initiating proceeding against offenders). A criminal offence is considered as a wrong against the State and also the society as a whole, even though the same has been committed against an individual.

From Para 7, regd delay in registering a complaint

7. The question of delay in launching a criminal prosecution may be a circumstance to be taken into consideration while arriving at a final decision, however, the same may not itself be a ground for dismissing the complaint at the threshold. Moreover, the issue of limitation must be examined in light of the gravity of the charge in question.

From Para 8, regd while condoning delay has to record the reasons

8. The court, while condoning delay has to record the reasons for its satisfaction, and the same must be manifest in the order of the court itself. The court is further required to state in its conclusion, while condoning such delay, that such condonation is required in the interest of justice.

From Para 10,

CONTINUING OFFENCE:
10. Section 472 Cr.P.C. provides that in case of a continuing offence, a fresh period of limitation begins to run at every moment of the time period during which the offence continues. The expression, ‘continuing offence’ has not been defined in the Cr.P.C. because it is one of those expressions which does not have a fixed connotation, and therefore, the formula of universal application cannot be formulated in this respect.

From Para 16,

16. Thus, in view of the above, the law on the issue can be summarised to the effect that, in the case of a continuing offence, the ingredients of the offence continue, i.e., endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue.

From Para

SECOND COMPLAINT ON SAME FACTS-MAINTAINABILITY:
17. While considering the issue at hand in Shiv Shankar Singh v. State of Bihar & Anr., (2012) 1 SCC 130, this Court, after considering its earlier judgments in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar AIR 1962 SC 876; Jatinder Singh & Ors. v. Ranjit Kaur AIR 2001 SC 784; Mahesh Chand v. B. Janardhan Reddy & Anr., AIR 2003 SC 702; Poonam Chand Jain & Anr. v. Fazru AIR 2005 SC 38 held:
“It is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.”

From Para 28,

28. Approaching the court at a belated stage for a rightful cause, or even for the violation of the fundamental rights, has always been considered as a good ground for its rejection at the threshold. The ground taken by the learned counsel for respondent No. 2 that the cause of action arose on 20.10.2009 and 5.11.2009, as the appellants refused to return money and other materials, articles and record, does not have substance worth consideration. In case a representation is made by the person aggrieved and the same is rejected by the competent statutory authority, and such an order is communicated to the person aggrieved, making repeated representations will not enable the party to explain the delay.


Citations : [2013 SCALE 1 212], [2013 JT 1 539], [2013 JCC SC 1 711], [2013 SCC 2 435], [2013 SUPREME 1 590], [2013 AIOL 18], [2013 SLT 1 249], [2013 CRIMES SC 1 231], [2013 SCC CIV 1 1121], [2013 SCC CRI 2 708], [2013 SCC ONLINE SC 41], [2013 AIC 123 137], [2013 UC 1 449], [2013 ACR 1 689], [2013 BLJ 3 28], [2013 NCC 1 549], [2013 AD SC 1 537], [2013 JLJR 1 235], [2013 RCR CRIMINAL 2 503], [2013 SCR 3 935], [2013 MLJ CRI 1 462], [2013 JCC 1 711], [2013 MLJ CRL 1 462], [2013 JT SC 1 539]

Other Sources :

https://indiankanoon.org/doc/39425468/

https://www.casemine.com/judgement/in/5609af3fe4b0149711415eef

https://www.indianemployees.com/judgments/details/udai-shankar-awasthi-vs-state-of-u-p-anr


The High Court judgment is here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 468 - Bar to taking cognizance after lapse of the period of limitation CrPC 472 - Continuing offence Landmark Case Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order Udai Shankar Awasthi Vs State of U.P. and Anr | Leave a comment

State of Himachal Pradesh Vs Tara Dutt and Anr on 19 Nov 1999

Posted on July 9, 2021 by ShadesOfKnife

A 3-judge full bench of Apex Court held that the limitation available under section 468 CrPC deals only with taking of the initial cognizance of an offence by a Court.

Indiankanoon version:

State of Himachal Pradesh Vs Tara Dutt and Anr on 19 November, 1999

Casemine version:

State of H.P Vs Tara Dutt and Anr on 19 Nov 1999

Citations : [1999 ACR SC 3 2841], [2000 AIR SC 297], [2000 ALD CRI 2 278], [1999 JT SC 9 215], [2000 LW CRL 1 379], [2000 OLR 1 153], [2000 RCR CRIMINAL 1 41], [1999 SCALE 7 183], [2000 SCC 1 230], [1999 SUPP SCR 4 514], [2000 SCC CRI 125], [2000 AIR SC 207], [1999 SUPREME 9 421], [1999 AIR SC 4413], [2000 CRIMES SC 1 15], [1999 CCR 4 280], [1999 SLT 9 612], [2000 SRJ 1 79], [2000 JCC 1 121], [2000 UJ SC 1 498], [2000 CRLJ SC 485], [1999 AIR SCW 4413]

Other Sources :

https://indiankanoon.org/doc/1807975/

https://www.casemine.com/judgement/in/5609ad5ae4b0149711411286

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision CrPC 468 - Bar to taking cognizance after lapse of the period of limitation Landmark Case Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order State of Himachal Pradesh Vs Tara Dutt and Anr | Leave a comment

Surjit Singh Vs State of Punjab and Anr on 05 Sep 2011

Posted on June 7, 2021 by ShadesOfKnife

Relying on a previous single judge decision, Punjab High Court held as follows,

As per Section 468 Cr.P.C., the period of limitation shall be one year if the offence is punishable with punishment for a term not exceeding one year. The punishment for an offence under Section 182 IPC is an imprisonment which may extend to six months or with fine which may extend to 1,000/- rupees or with both. Thus, the calendra could have been presented within one year from the date when the investigating agency had concluded that the averments in the complaint were false. However, in the present case the s has been presented after the period of limitation as envisaged under Section 468 Cr.P.C.

Surjit Singh Vs State of Punjab and Anr on 05 Sep 2011

Citations:

Other Sources:

 

Posted in High Court of Punjab & Haryana Judgment or Order or Notification | Tagged CrPC 468 - Bar to taking cognizance after lapse of the period of limitation IPC 182 - False information with intent to cause public servant to use his lawful power to the injury of another person Surjit Singh Vs State of Punjab and Anr | Leave a comment

N.Prasad Vs Harithalakshmi on 20 Jul 2020

Posted on January 6, 2021 by ShadesOfKnife

Based on Inderjit Singh Grewal here, PWDV Act is subject to CrPC 468, so complaint filed after 1 year are time barred, hence the DVC is quashed by Madras High Court.

Note: On the request of respondent-wife, I have removed the name and address details of the litigants on page-1 of the judgment below. No other modifications were made to it.

N.Prasad-Vs-Harithalakshmi-on-20-Jul-2020(1)

Citations : [2020 SCC OnLine Mad 1767]

Other Sources :

https://indiankanoon.org/doc/108935797/

Madras HC | Limitation provided under CrPC is applicable to complaints under Domestic Violence Act: Court rejects complaint filed after lapse of 1 yr 10 months

Posted in High Court of Madras Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 468 - Bar to taking cognizance after lapse of the period of limitation Inderjit Singh Grewal Vs State Of Punjab and Anr N. Prasad Vs Harithalakshmi PWDV Act - 1 Year Limitation From Date Of Last Offence PWDV Act - DV Case Quashed | Leave a comment

All Reliefs from Judiciary

Posted on August 16, 2020 by ShadesOfKnife

Awareness of law involved in the case laid against you is crucial to handle and take charge of your case yourself. The following are some of the general reliefs one can invoke in Andhra Pradesh for sure. They may apply to other states also. List of High Courts is here.

Note: If you need some reliefs from Police High-handedness, go here.


Always remember Article 21 of Constitution of India

Article 21 is what powers Fair treatment of accused during criminal trials. It provides for fair investigation, Fair trial and Fair Judgment. Any violation of Article 21 gives you liberty to invoke Article 226 at High Court and Article 32 at Supreme Court to seek Writ Reliefs. Case laws are available in chronological order here.

It reads as follows:

21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.


Engagement of Advocates

As per Section 32 of Advocates Act 1961, you can appear in your own case.

If a victim wants to engage a private advocate to prosecute their case, yes you can, but only to assist the PP. The sections to back this aspect are to read

  1. Sec 225 CrPC
  2. Proviso to Sec 24(8) CrPC
  3. Sec 301 CrPC
  4. and finally Sec 302 CrPC. In that Order.

Hope this helps clarify the legal position to those of us who filed/intend to file Criminal cases against OP. This is explained in this case law here. The case law is available on my site here.


Engagement of a third-party other than Advocates

As per again Section 32 of Advocates Act 1961, you can appear in some one else’s case, subject to certain conditions.

  1. You must be a non-advocate
  2. You must have some relationship due to which the accused/defendant trusts you
  3. You may be permitted by a Court, an authority or any person
  4. You may be permitted to appear in any particular case; as a corollary, may not be permitted in all cases or for all clients
  5. Prior Court permission is necessary (via a Petition; sample here)

This is laid out by the Legendary Jurist Sri V.R. Krishna Iyer in this celebrated case law here.


Terminating the services of Advocates

You have complete freedom to terminate the services of your Advocate and engage another one. Just be cautiously about the local procedures which can differ from High Court to High Court. It means, in some High Courts, there is no need of any No-Objection-Certification (NOC) from your current Advocate before you engage another. Like in Karnataka. But not so in Andhra Pradesh, wherein it is unwritten rule to obtain NOC so as to avoid unpleasant situations/conversations/interactions between you and your advocates (or between the earlier and current Advocates). Nevertheless Supreme Court has laid down a landmark case law here. Use it judiciously. Also take a look at other similar case laws here.


First Appearance in Court

Once the case documents are sent to Court via a Charge sheet or Closure report as mandated u/s 173 CrPC, Court Filing Section staff gives is a case number and list it in the causelist (daily timetable of work) before a competent Magistrate/ Judge.

On your first appearance day in the Court, Court staff will ask questions to identify you and your purpose of attending the Court. Next question is if you have engaged an advocate or need time for this purpose. Finally, case will be adjourned to a future date and each accused person will be given a set of copy of the above case documents which were submitted into Court by Police as mandated u/s 207 CrPC.


Exemption from Personal Appearance in Court

If you do not want to appear even on first appearance for certain obvious and unavoidable reasons, take help from this case law here and here and You can seek exemption for self or other accused from appearing in the Court in a case u/s 205 CrPC of CrPC 205. Vital Case laws are available here. For single-day relief, see Absent Petition below.


Provision u/s 173 CrPC to demand documents from IO to be submitted to Court and to obtain a copy of prosecution documents

Section 173(7) reads as follows:

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).

How to use it:

If you are good terms with IO, then he/she may find it convenient to furnish to the accused copies of all or any of the documents. Be courteous to IO to make use of this.

Note: Otherwise, as mentioned above, Court will anyways, provide a copy of the entire bunch of prosecution documents to each accused on first appearance.

Section 173(6) reads as follows:

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

How to use it:

If you have submitted any documents/made a statement that IO records during inquiry (supposedly u/s 41A CrPC), and such documents are missing in the bunch of documents procured via above section or u/s 207 CrPC, then submit to the Court that such left-out/excluded documents be brought on record of Court. The case law is here.

Even if such seeking of documents is objected to for any legal reason, one can seek for inspection of such documents as held in here.


Protest Petition

After Police file a final report ( be it a Charge sheet or a Closure report), Court notifies the informant/complainant about the same and invites any objections to the same. The informant/complainant can file a protest petition into the Court and object to section/accused removal from Charge sheet or Closure report itself can be objected to. Couple of Landmark judgments are here.


Limited Authority of Registry or Filing Section/Office attached to a Court

A Registry attached to a High Court or a Filing Section attached to a District/Magistrate Court has a limited set of functions on the administration of Justice and authority and they certainly can not exercise judicial function as held by Supreme Court here. Use this judgment, as appropriate, to ensure Court staff perform only their duties and nothing beyond that.


Time-bound disposal provisions in Various Enactments

Check this page here for various provision available in the gender-biased laws which specify time limits for disposal of cases.


Use of Interrogatories in Civil and Criminal cases

Carefully designed Interrogatories are a tool to extract helpful information from OP. Read more info here.

Code of Civil Procedure (CPC) Order XI – Discovery and Inspection (read with Sec 30) has the necessary Rules to be following to file an application for delivery of interrogatories in a Civil case like DVC, HMA24 etc.

Code of Criminal Procedure (CrPC) Section 287 provides a similar provision in Criminal cases in which a commission is issued.

Case laws here.


Usage of Rule 37 of Criminal Rules of Practice and Circular Orders, 1990 (High Court of A.P.)

If you are going to fight your case on your own as Party-in-person, make good use of Rule 37 of the Criminal Rules of Practice and Circular Orders, 1990 (High Court of A.P.), which allows you to represent your co-accused, most probably, your parents or family members.

Same Rules apply to folks in Telangana State too. Some case laws here.


Absent Petition

You can seek exemption for self or other accused from appearing in the Court on a particular singular date in a case u/s 317 CrPC.

You can send your duly-filled, stamped and signed absent petitions to the Office of Superintendent of the Court where your case is going on, well in advance, with a cover letter to place your Absent petition on the Bench.


Non-bailable Warrants (NBWs) for arrest

It is highly possible that trial courts may issue NBWs at the drop of the hat. Despite having bail for the said accused already. So to overcome this issue, once has to file a Recall petition seeking recall of the NBW. Use these judgments here, to tide over this menace.

The general procedure is issue summons first, then bailable warrants and finally non-bailable warrants for arrest of accused.

In case NBWs are issued and petition for recall of the same (u/s 70(2) CrPC) are refused/dismissed, you can file Revision at the Appellate Court (u/s 397 CrPC). Use these judgments here


Speedy Trial

Our right to Fair and Speedy Trial arises from Article 21 (read with Article 227) . The case laws are here. A landmark judgment is here which also refers to section 483 CrPC. Article 227 also is a remedy.


Arrest unnecessary adjournments

Tareeq pe tareeq epidemic can easily be addressed taking help u/s 309(2) CrPC which is amended by Act 5 of 2009, s. 21 (w.e.f. 1-11-2010). Read the Landmark judgment which insisted on the importance, utility and urgent need of Trial/Session Courts to use the 4th Proviso to this sub-section here (2013). A 2017 reportable decision here. Also Read the other judgments here (included AP HC case law).

Also if prosecution fails to bring the witnesses to Court for examination, Courts can deny granting adjournments as held here.

Also if prosecution or defence try to delay Cross-examination of a witness, Courts can at max defer to 3 days as held here and can also levy heavy fines as held in this tagline here.

It is held by the Apex Court here that, Chief Examination & Cross-Examination Of Witness Must Be Recorded On The Same Day Or Following Day.


Time-barred Litigation

Time-barred litigation should be attacked using the provision u/s 468 of CrPC.


Register a complaint against Public Servant (No sanction from Government required!!!)

If any Public servant (read as Judge, Magistrate or Police) does something to violate their duty as prescribed u/s 197 CrPC, they are liable for criminal prosecution u/s 166A IPC. Read full details here. Karnataka High Court clearly explains this here.


Discharge Petition

If the prosecution documents do not have any basis to connect you to the allegation listed in Charge sheet by Police, this is one opportunity to find the grounds and file a Discharge Petition and come out the case. Check out the landmark case laws here. Especially, B S Neelakanta judgment.


Case Calendar

The common frustration defence has with Prosecution in a false case is, absconding of the prosecution witnesses from Cross-examination. For obvious reasons, false case filers generally, do not appear for Cross examination. To tackle such scenarios, you can use the Supreme Court judgment to force the Trial judge to come up with case calendar for the entire case, which is available here.


Only 6 months Stay on Proceedings

It is common knowledge that one party goes to higher courts seeking to stay proceedings in lower court. Supreme Court has restricting this behavior of endless stay on proceedings which is impacting the disposal of cases in timely manner in this judgment here.


During Cross examination of Lying witnesses

Make good use of this set of legal weapons from Indian Evidence Act 1872.

 

59. Proof of facts by oral evidence. –– All facts, except the contents of documents or electronic records, may be proved by oral evidence.

60. Oral evidence must be direct. –– Oral evidence must, in all cases whatever, be direct; that is to say ––
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

61. Proof of contents of documents. –– The contents of documents may be proved either by primary or by secondary evidence.

101. Burden of proof. –– Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

106. Burden of proving fact especially within knowledge. –– When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

 

132. Witness not excused from answering on ground that answer will criminate. –– A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
Proviso. –– Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

138. Order of examinations. –– Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. A landmark judgment is available here.

146. Questions lawful in cross-examination. –– When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend––
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:
Provided that in a prosecution for an offence under section 376, 3[section 376A, section 376AB section 376B, section 376C, section 376D, section 376DA, section 376DB] or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

155. Impeaching credit of witness. –– The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him: ––
(1) By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
Explanation. –– A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

159. Refreshing memory. –– A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh memory. –– Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
Provided the Court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatises.

160. Testimony to facts stated in document mentioned in section 159. ––A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.


Perjury is nearby

Let the OP lie in Court. Just ensure you have the truth (hint: evidences) with you. Perjury will be awaiting just in case an illegal order gets to be passed. Here are the Case laws.


Contempt Jurisdiction to the rescue

If no order gets passed due to Perjury, let the Contempt jurisdiction take care of falsifications, material concealments, forgeries etc. Again do let the OP lie and cheat, which comes to them naturally. You can get punishment and fine levied upon the OP under the following provisions. Few case here.

  1. Article 129 of the Constitution of India (At Supreme Court)
  2. Article 142 of the Constitution of India (At Supreme Court)
  3. Article 215 of the Constitution of India (At High Courts)
  4. Contempt of Courts Act 1971 (here is the Act)

Compensation

 


Delay in Pronouncing Judgments

Sometimes, Courts take enormous amount of time in pronouncing the Judgments after reserving the same. Supreme Court gave directions that can be used by us. One such landmark judgment is here.


Obtaining copy of the Judgment/Order for free

Order passed under

  • Section 204(3) CrPC: Summon (in a summons-case) or Warrant (in a warrants-case) issued u/s 204(1) shall be accompanied by a copy of such complaint. (Also obtain the list of prosecution witnesses !!)
  • Section 248(1) CrPC: Acquittal Order after Trail
  • Section 249 CrPC: Discharge from a non-cognizable or a compoundable case, if the complainant is absent
  • Section 252 CrPC: Conviction Order in case of guilty plea.
  • Section 256 CrPC: Acquittal Order in case of non-appearance or death of complainant
  • Section 257 CrPC: Acquittal Order in case of withdrawal of complaint
  • Section 258 CrPC: Acquittal or Discharge of an accused due to stoppage of proceedings by Magistrate

Reasoned Orders/Judgments

The hallmark of a judicial pronouncement is the quality of reasons given against each issue/charge framed at the beginning of the decision. This decision here is just one which emphasizes the same.


Remedies against Malicious Prosecution in India

Check out this page here.

 


MASTER SITEMAP here.

Posted in LLB Study Material | Tagged All Reliefs from Judiciary Article 21 - Protection of life and personal liberty Article 227 - Power of superintendence over all courts by the High Court Costs For Contempt Of Court CPC Order 11 - Discovery and Inspection Criminal Rules of Practice Rule 37 - One Accused May Be Permitted To Represent Other CrPC 164 - Recording of Confessions and Statements CrPC 173 - Report of Police Officer on Completion of Investigation CrPC 173(5) - Prosecution Can Produce Additional Documents CrPC 197 - Prosecution of Judges and public servants CrPC 205 – Magistrate may dispense with personal attendance of accused CrPC 207 - Supply to the accused of copy of police report and other documents CrPC 239 - When accused shall be discharged CrPC 287 - Parties may examine witnesses CrPC 309 - Power to Postpone or Adjourn Proceedings CrPC 317 - Provision for inquiries and trial being held in the absence of accused in certain cases CrPC 397/399 - Revision CrPC 468 - Bar to taking cognizance after lapse of the period of limitation CrPC 483 - Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates CrPC 73 - Warrant may be directed to any person Fine For Contempt Of Court Imprisonment For Contempt Of Court Interrogatories IPC 166A - Public servant disobeying direction under law Perjury Under 340 CrPC Remedies against Malicious Prosecution in India Work-In-Progress Article | Leave a comment

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