Remember | Register | Forgot Password?
Bookmark This Page   RSS Feeds  Follow On Twitter

 

Search for Lawyers          
    



Please Wait ..


Discussion > Criminal Law > Procedure > Can CrPC 256 used to dismiss a case for want of prosecution?   Unanswered Threads Post New Topic

Pages : 1 2


There are 10 Replies to this message


Pvt_RajKing


Private
[ Scorecard : 430]
Posted On 17 August 2010 at 15:00 Report Abuse

Hello,

I saw many judgments in which cases have been dismissed for non appearance by the complainant but what happens when the public prosecutor doesn't appear consistently in a case? Can we file for dismissal u/s CrPC 256 ( or other sections if any) for dismissing the case for want of prosecution? (no charges have been framed in this case)....

Any help in this regard or reference to any judgment is much appreciated. I also know that there was another person who was in similar situation...



Online certification courses in IP, IT and Social Media laws


VIRAJ KADAM


Advocate, Supreme Court of India
[ Scorecard : 290]
Posted On 17 August 2010 at 15:42 Report Abuse

Yes. You can move for dismissal of case for want of prosecution.



Pvt_RajKing


Private
[ Scorecard : 430]
Posted On 17 August 2010 at 15:48 Report Abuse

Originally posted by :Viraj
"
Yes. You can move for dismissal of case for want of prosecution.
"

 Thanks, Under the same CrPC? Also, do youknow of any good judgements on this?



Sanjay Gupta


Advocate
[ Scorecard : 2184]
Posted On 17 August 2010 at 20:24 Report Abuse

256 Cr.P.C. can not be applied in all Cases conducted by the Public Prosecutor. It varies on the gravity of the cese.



Pvt_RajKing


Private
[ Scorecard : 430]
Posted On 17 August 2010 at 23:03 Report Abuse

Could u be more elaborate please? If the final report has been filed and a summon has been issued then what is stopping the PP and magistrate to frame charges? Why should the accused be penalized unless the charges have been framed against him.... Wouldn't it be an abuse of judicial process to ask the accused to show up to the court periodically only to adjourn it while the accused doesn't even know what the charges are or if there is one as such?


Sameer Sharma


Advocate
[ Scorecard : 584]
Posted On 18 August 2010 at 09:59 Report Abuse

Priyadarshini Cements Limited And Etc. vs State Of A.P. And Anr. Etc.

Equivalent citations: 2002 (2) ALD Cri 5, 2002 (2) ALT Cri 47, 2002 CriLJ 4465

Criminal Appeal No. 606 of 1997 is filed against the order of the learned V Metropolitan Magistrate, Hyderabad dated 21-8-1996 made in C.C. No. 721 of 1994 dismissing the complaint filed by the appellant-complainant under Section 256 of Cr.P.C. and acquitting the respondent-accused.

Head Notes: "Metropolitan Magistrate dismissed the complaint under Section 256, Cr.P.C. on the ground of non-appearance of the complainant and acquitted the accused. The complainants have given their explanation for their absence on the day on which the complainants were dismissed. But the learned Magistrates without taking into consideration the explanation given by the complainants for their absence and without considering the provisions of Section 256, Cr.P.C. have dismissed the complaints filed by the complainants. Two constraints are imposed on the Court for exercising the power under Section 256 of Cr.P.C. Firstly, if the Court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the accused. Secondly, when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. The Court also must notice that whether the presence of the complainant on that particular day is essential for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in Section 256 of Cr.P.C. Therefore, the discretion by the Court must be exercised judicially and fairly without impairing the cause of administration of criminal justice.

For the foregoing reasons, I hold that the Courts below have committed a irregularity and illegality in dismissing the complaints under Section 256 of Cr.P.C. Therefore, the orders under challenge are liable to be set aside."

Other cases are:

The Associated Cement Co. Ltd vs Keshvanand on 16 December, 1997

Maruti Udyog Ltd. vs Classic Motors Ltd. And Ors. on 30 August, 2007

 

 

 



N.K.Assumi


Advocate
[ Scorecard : 22151]
Posted On 19 August 2010 at 10:53 Report Abuse

Hello Sameer, thanks for the citation.



SantoshKumarSrivastava


Legal Advisor/Advocate
[ Scorecard : 40]
Posted On 20 August 2010 at 09:10 Report Abuse

1. Mr.Pvt._Professional,       Your Quarry is that. "You saw many judgments in which cases have been dismissed for non appearance by the complainant but what happens when the public prosecutor doesn't appear consistently in a case? Can we file for dismissal u/s CrPC 256 ( or other sections if any) for dismissing the case for want of prosecution? (no charges have been framed in this case)...."

2. Here in limited reply to your quarry I would like to attract your attention towards the provisions of section-256 Cr.PC,You should go through it. This section relates to chapter - XX of Cr.PC under Head -Trial of Summons- Cases by Magistrates. (This chapter contains section -251 to  259. Cr.PC ) Before  proceeding further you must know that what is a summons case ? to which sec. 256 Cr.PC applies. This term has been defined in sec.-2(w) Cr.PC     ' Summons Case "- means a case relating to an offence, and not being a warrant case; Now see, Sec.2(x) Cr.PC, "  Warrant Case "- means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years  ;

3.Now you see, that Sec. -251  Cr.PC says that framing of Formal charge is not at all necessary. Practically Magistrate reduces the particulars of offences and questions the Accused, whether ' He ' pleads Guilty Or not and what he has to say and whether he will produce his defence.This practice is known as statement of Accused. As has already discussed above no Formal Charge is framed .

 4. Now see ,Sec -256 Cr.PC-this section  defines, that what would happen if the complainant does not appears on any date fixed for hearing , Answer to this has been given in   Sub Sec, (1) of section-256 Cr.PC, i.e. acquittal of accused . But there is a proviso in sec.-256 (1) Cr.PC - "provided that, where the complainant is represented by a pleader or by the Officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may, dispense with his attendance and proceed with the case."

5. Here you must bear in mind, that you have not disclosed the nature of the Complaint case, it appears that, you are talking about  a State Complaint . There are various types of State Complaints. In some complaints Prosecution is done by officers of State , and in some  Complaints, where State is complainant , prosecution  is  represented by Public Prosecutor / Assistant Public Prosecutors attached to Court Concerned . So if the prosecution is done by some Officer of State, The Magistrate can dispense His personal attendance under  the provisions of sec.-256(1)Cr.PC. In such a case there is no role of Prosecutor attached to court. Magistrate can proceed in summons case if he  considers that personal attendance of complainant is not necessary.

6. But, in my opinion, where state complaint is represented by State Prosecutor, the provisions of section -256 Cr.PC do not apply. This section-256 Cr.Pc is silent on this topic. There is difference between Pleader, Officer conducting Prosecution and State Prosecutor. State is never deemed to be absent. His representative might be. Here I agree with Mr. Sanjay Gupta , Advocate. that section -256 Cr.P.C. can not be applied in all Cases conducted by the Public Prosecutor

                                                                                                                                  

7. I am of opinion that firstly you should clarify the nature of complaint case and then decide the course. However as Mr. Viraj, Advocate has suggested, in the alleged circumstances, one can request the Court to close the prosecution Evidence, if the prosecution has failed to produce the evidence, whatever may be the reason, despite several opportunities and to decide the case.

8. Thanks to Mr.Sameer Sharma, Mr. Sanjay & Mr. Viraj .

 

 



Pvt_RajKing


Private
[ Scorecard : 430]
Posted On 21 August 2010 at 09:39 Report Abuse

Dear Mr. Santhose and others,

Thanks for your reply.

I am familiar with most of what you have stated above and my question was precisely due to what you have said above in #6:

        "6. But, in my opinion, where state complaint is represented by State Prosecutor, the      provisions of section -256 Cr.PC do not apply. This section-256 Cr.Pc is silent on this topic. "

This is the crux of the issue that I would like to clarify thru judgments...

Background of the case:

It was a agricultural land dispute in which we were charged with offences like 323/506 etc. We are the legal owners of the property per revenue records for over 40 years but police took money from the other party and thus have sided with them. The police never done any investigation whatsoever but have submitted a final report with all fabricated documents/statements (no weapons).

No when I have learned about the final report, I procured a copy of the same and have challenged it with the magistrate u/s 156(3) arguing that the magistrate should not have taken cognizance of the offence itself since the offence itself hasn't made out properly as the police report and their witnesses is contradicting their own doctor report!! and there are more issues that make it obvious that the entire police report is fabricated. The magistrate is sitting on this application. So, the case was by state and is represented by the PP.

In parellel, he issued challan to all of us (for police to serve us). The police have pased the summon at one of my brother's house thinking that we all live there. Their own documents has captured that our current addresses are different and yet the police have never attempted to serve others at the correct address.

So, I asked my brother (on whose house it was served) to appear and tell the magistrate that the others summon also was pasted in his house and thus they have not been served. I also was there once at the court (for 156(3) application as party-in-person), during which the magistrate tried to serve me and I told him to follow the law and told I will appear when I am properly served per law and he and PP agreed. But thus far (@8 monhts now since the final report) they have made no attempt to serve me at all & I live in another state , as well as my other brothers have not been served as well even thought they are just few KM away from the police station...

In the meantime I also filed contempt of court and exemplary damages against the DSP and SI which is pending in High Court. I have copies of all documents related to the case and thus they really cannot mess with it anymore... So, I got them good....

Now most of the senior police officers involved in the case have moved on and others all know that this was done for money and thus neither the police and nor the PP is interested in the case....

What is happening after the summon to my brother?

My brother (just one) appeared after summon and told the magistrate of not serving others and the magistrate asked the PP to serve the rest of the accused. Thereafter the matter was listed 5 more times and in everytime it is simply being adjourned for serving of others by police. The PP never made an appearance after the first appearance but my brother keeps appearing.

As we know the PP is not police/investigator with respect to the court proceedings and he is an independant statutory entity empowered to prosecute on behalf of the state. It is for the PP to file the charge sheet based on the final report after which the magistrate should proceed (in this case). Magistrate cannot lead the case only the PP has to lead the case in prosecuting....

There has been no exchange between the magistrate and my brother who is appearing...

Given the above background, it is obvious that this is a pure abuse of judicial process and clear lack of interest on the part of PP in prosecuting the accused. Now, thought the s,256 is silent on this topic, the object of the section is to avoid the abuse of the judicial process and to protect the right of the accused citizen.... I am sure supreme could would not allow forcing of an accused to keep appear in court without formally charging that person and thus I was looking for judgments of supreme court in similar situation cases...

Hope this clarifies everything. Do let me know if you need any other information.



Pvt_RajKing


Private
[ Scorecard : 430]
Posted On 21 August 2010 at 09:50 Report Abuse


[sorry reposting it as it had man spelling mistakes]

Dear Mr. Santhose and others,

Thanks for your reply.

I am familiar with most of what you have stated above and my question was precisely due to what you have said above in #6:

        "6. But, in my opinion, where state complaint is represented by State Prosecutor, the      provisions of section -256 Cr.PC do not apply. This section-256 Cr.Pc is silent on this topic. "

This is the crux of this issue is what I would like to clarify thru judgments...

Background of the case:

It was a agricultural land dispute in which we were charged with offences like 323/506 etc. We are the legal owners of the property per revenue records for over 40 years but police took money from the other party and thus have sided with them. The police never done any investigation whatsoever but have submitted a final report with all fabricated documents/statements (no weapons).

Now when I have learned about the final report, I procured a copy of the same and have challenged it with the magistrate u/s 156(3) arguing that the magistrate should not have taken cognizance of the offence itself since the offence itself hasn't been made out properly as the police report and their witnesses is contradicting their own doctor report!! and there are more issues that make it obvious that the entire police report is fabricated prima facie on the face of their own records! The magistrate is sitting on this application. So, the case was by state and is represented by the PP.

In parellel, he issued challan to all of us (thru police to serve us). The police have pasted the summons at one of my brother's house assuming that we all live there or may be they felt it is sufficient to do so. Their own documents has captured that our current addresses are different and yet the police have never attempted to serve others at the correct address.

So, I asked my brother (on whose house it was served) to appear and tell the magistrate that the others summons also was pasted in his house and thus they have not been served. I also was there once at the court (for 156(3) application as party-in-person), during which the magistrate tried to serve me and I told him to follow the law and said I will appear when I am properly served per law and he and PP agreed. But thus far (@8 monhts now since the final report) they have made no attempt to serve me at all & I live in another state , as well as my other brothers have not been served as well even though they are just few KM away from the police station...

In the meantime I also filed contempt of court and exemplary damages against the DSP and SI which is pending in High Court. I have copies of all documents related to the case and thus they really cannot mess with it anymore... So, I got them good....

Now most of the senior police officers involved in the case have moved on and others all know that this was done for money and thus neither the police and nor the PP is interested in the case....

What is happening after the summon to my brother?

My brother (just one) appeared after summon and told the magistrate of not serving others and the magistrate asked the PP to serve the rest of the accused. Thereafter the matter was listed 5 more times and in everytime it is simply being adjourned for serving of others by police. The PP never made an appearance after the first appearance but my brother keeps appearing.

As we know the PP is not police/investigator with respect to the court proceedings and he is an independant statutory entity empowered to prosecute on behalf of the state. It is for the PP to file the charge sheet based on the final report after which the magistrate should proceed (in this case). Magistrate cannot lead the case, only the PP has to lead the case in prosecuting (per my understanding).

There has been no exchange between the magistrate and my brother who is appearing...

Given the above background, it is obvious that this is a pure abuse of judicial process and clear lack of interest on the part of PP in prosecuting the accused. Now, thought the s.256 is silent on this topic, the object of the section is to avoid the abuse of the judicial process and to protect the right of the accused citizen.... I am sure supreme court would not allow forcing of an accused to keep appearing in court without formally charging that person; and thus I was looking for judgments of supreme court in similar situation cases...

Hope this clarifies everything. Do let me know if you need any other information.




Related Files



Previous Thread
Previous
Next Thread
Next

Related Threads


Post your reply for Can CrPC 256 used to dismiss a case for want of prosecution?



Your are not logged in . Please login to post replies

Click here to login


Not a member yet ?? Click here to signup

Message







    

  • This is a public forum. Avoid posting content which you do not wish to disclose in public.
  • Use thank button to convey your appreciation.
  • Maintain professionalism while posting and replying to topics.
  • Try to add value with your each post.





Subscribe to the latest topics :


Forum Home | Forum Portal | Control Center | Who is Where | Popular Threads | Today's Topic | Recent Posts | Today's Posts | Post New Topic | Thread With Files | Top Threads - Month | Unreplied Topics | Forum Stats


web analytics