Query on section 362
Akash
(Querist) 30 December 2012
This query is : Resolved
Dear Sirs,
An application U/s 482 in the Allahabad High Court was dismissed for want of prosecution as the counsel for the petitioners was repeatedly missing the hearing.
I was the respondent in the case.
Approximately 2 months later they filed for Restoration and a Counter was filed by me challenging the restoration on the grounds taken for restoration by the petitioners.
After some time the petitioners changed their counsel who in turn submitted applications for restorations again on the grounds that the earlier counsel was not taking correct actions in the case.
The restoration was passed.
Post restoration, a second application was put in for restoration of the interim order ( a stay on proceedings in the trial court). This was objected to in the HC with the plea that there was no interim order when the case was dismissed for want of prosecution.
The HC simply granted them the stay on proceedings again without mentioning anything.
I have two specific queries on the above:
a) Was the restoration legal as per Section 362 ( I believe the dismissal order for want of prosecution was a final order in the case)?
b) How was the Interim order restored as the earlier order had expired prior to the case being marked DiD ?
I eagerly await your replies to the above queries.
Best Regards
Akash
Akash
(Querist) 30 December 2012
Thank you for the reply.
Section 362 states as follows :
"Save as otherwise provided by this Code or by any other law for the time being in force, no court when it has signed its judgment or final order disposing of a case, shall after or review the same except to correct a clerical or arithmetical error."
The case was disposed because of an order for want of prosecution, that too the petitioners counsel being absent. As such there has been a mediation ordered by the same court which was failed.
The want of prosecution order was passed post the failure of mediation.
May I ask why is it perfectly legal ?
Best regards and many New Year 2013 in advance.
Akash
Akash
(Querist) 30 December 2012
Apologies for marking the query as resolved.
Please see my previous post.
Ajay Bansal
(Expert) 01 January 2013
Please see meaning of word 'case' first. Section 362 Cr.P.C. is applicable only on 'Case', not on remaining items like ' Bail-Application etc.'. So first of all tell what was that petition u/s 482 Cr.P.C.
Akash
(Querist) 01 January 2013
Dear Mr. Bansal,
My best wishes to you and your family for a Happy New Year 2013.
The application u/s 482 was for quashing of a charge sheet. Initially a mediation was ordered and the same failed as the respondents were not willing as the high court had also ordered a stay of proceedings in the trial court.
The petitioners counsel then started putting illness slips whenever the application was due for hearing in the high court. After a total of 6 instances out of which 3 on record instances, the HC dismissed the application u/s 482 with an order for want of prosecution.
Hope this helps.
Ashimta Lekhi Malhotra
(Expert) 03 January 2013
My opinion does not change. You did not had to extract section 362 for me. Isn't the very fact that I have opined on it is sufficient to infer that I am conversant with this section?
Akash
(Querist) 04 January 2013
Dear Mrs. Malhotra,
I came to this portal to seek a clarification on a subject that all the learned members are well versed with. The quoting of the section was to put my point across with the limited, alebit logical, understanding that I had.
Your remark distinctly gives me the feeling
that this dialogue seems to be going in a different direction and is no longer resulting in my clarification.
I thank you for your input and again reiterate that I'm not here to challenge your understanding of the subject but to get enlightened on the same and reach a possible conclusion on my way forward.
Regards
Akash
Raj Kumar Makkad
(Expert) 04 January 2013
High court is supreme and we experts have no right to postmortem the verdict of Hon'ble High court like you so if you are dissatisfied go to supreme court of india.
Akash
(Querist) 04 January 2013
Dear Mr. Makkad,
It is because of a dissatisfaction that I'm here and contemplating further action which has to have logical substance and I believe a post mortem does result in an logical outcome.
I wish you and your family a Very Happy New Year 2013 and thank you for your input.
Regards
Akash
Ajay Bansal
(Expert) 05 January 2013
Proceedings of quashing of charge does not mean end of case after concluding of case-trail.Section 362 Cr.P.C. is available only on a result, comes after concluding of case-trail.So said decision of High Court is correct.
Raj Kumar Makkad
(Expert) 05 January 2013
Happy New Year for you and your family also on the part of all of us.
Akash
(Querist) 06 January 2013
Dear Mr. Bansal,
Many thanks for your input.
Please correct my understanding...
Every writ in the HC is a case in itself and is treated as such. Section 482 being so large and powerful, the individual items are categorized for an easier functioning. As such, staying a proceeding is never in the interest of justice.
Best wishes you and your family a Very Happy New Year 2013.
Regards
Akash
Raj Kumar Makkad
(Expert) 06 January 2013
Akash! It is not understood why the staying the proceeding is never in the interest of justice?
Please clarify your sentence.
Akash
(Querist) 06 January 2013
Dear Mr. Makkad,
A proceeding can be with substance or without. If the proceeding is baseless, then it should be quashed there and then. If it has substance and then a stay on proceeding is granted, it has the same equivalence as being of substance but we will not hear you.
The stay on proceeding is no doubt a more beneficial step for the accused as such where no proceeding and no subsequent hassles / related issues like bail.
I firmly believe that the accused has a right to defend and this can only happen when there is a proceeding in progress.
In the current scenario, NBW were issued post the dismissal for want of prosecution and then a stay on proceedings.
Anyway I still am with no answer an hope that I will get one in the near future.
All the best and many thanks for your input.
Regards
Akash
Raj Kumar Makkad
(Expert) 06 January 2013
After such detailed replies, which of your questions is still not replied?
Akash
(Querist) 07 January 2013
Dear Sirs,
Given the situation, what are the possible recourses available to me ?
Many thanks in advance for your time.
Regards
Akash
Raj Kumar Makkad
(Expert) 07 January 2013
Either to get restored the petition under section 482 Criminal procedure Code or to face the trial before the court.
Akash
(Querist) 07 January 2013
Dear Mr. Makkad,
Your statement was not understood. I am the complainant / informant in the FIR. It is the accused in the FIR who have approached the HC and taken a stay on proceedings in the trial court in the FIR.
I have to get the stay vacated so that the trial can start.
Many thanks for the input.
Regards
Akash
Raj Kumar Makkad
(Expert) 07 January 2013
If the petition seeking quashing has been dismissed on default then automatically the trial before the lower court shall start and there is no need to get a specific order seeking vacation of stay order. all interim orders merge in the final order.
ajay sethi
(Expert) 07 January 2013
agree with makkad
Akash
(Querist) 07 January 2013
Dear Mr. Makkad,
This is exactly what happened and led to the issue of NBW. The accused filed for a restoration and then they got an interim order for stay on proceedings.
This is the reason why I was discussing Section 362 and am being told that the restoration is correct.
Regards
Akash
Raj Kumar Makkad
(Expert) 07 January 2013
If restoration has been made then the proceeding shall be fixed at the stage when the case had been dismissed on default. In the present matter, the proceeding of the lower court had been stayed in the earlier proceeding so after its restoration, the same order shall come into force. Now you should try to get the quashing petition dismissed as earliest as possible.
Akash
(Querist) 07 January 2013
Dear Mr. Makkad,
Thank you for your input.
This seems to be the only option left after the discussion here. I did not know that the court could go back on a decision once given.
The only challenge is make sure that the petitioner comes to court now that they have the stay on proceedings. They used to run from the proceeding earlier and do not know if they will use the same tactic again.
May I have some suggestions as to how to ensure that they ie the petitioners make themselves available on the due date.
Regards
Akash
Raj Kumar Makkad
(Expert) 07 January 2013
Your lawyer may insist their presence and court generally do take cognizance of such absence and may issue even NBW to secure the presence of the accused persons.
Akash
(Querist) 07 January 2013
Dear Mr. Makkad,
Thank you for your valuable time and advice.
Will update soon on what happens on the next date.
Regards
Akash
Akash
(Querist) 08 January 2013
All I can say is Thank You to all the members who took pains to answer my queries patiently.
My best wishes to you in your future endeavours.
Regards
Akash
Raj Kumar Makkad
(Expert) 08 January 2013
Most welcome Akash for your appreciation to all experts.
