Hello advisors,
I am so in need of your suggestions. Please help me out with your correct advices.
I filed a private criminal case against my ex-girl (Accused) at lower court in the year 2013. Offences are IPC 506, 425, 384, 499 and 500.
She was served with summons to appear before the lower court, instead she approached High Court filing a Quash petition stating that my complaint is false. The HC granted her with an order to stay the proceedings and stay for appearance of accused, I was served with a notice by HC to respond to her petition, then I filed a stay vacate petition stating that my complaint is 100% geniune so please not to allow the quash. The matter at HC was pending till 2018, she never appeared before lower court because she had a stay order till 2018. In the same year 2018 her stay order was automatically vacated because of Supreme Court's new ruling, any stay orders of criminal or civil matters should not be exceeded more than 6 months duration. But her Quash has not been allowed yet till present.
Once her stay order was automatically vacated, the lower court started proceedings again in mid year of 2018, but she hasn't been appearing before the lower court for many adjournments, eventually the lower court issused NBW against her. Since she with her whole family moved from one city to another city I had to take time to find out her address in order to execute the NBW but finally I found her current address. Initially the lower court directed NBW to the concerned police to execute but they didn't help me. My lawyer filed a memo for advocate commissioner to execute NBW, and the lower court ordered for it and we paid for the process as well. I took advocate commissioner to the accused place where currently she has been living, the advocate commissioner approached concerned police stations near by her house to get assistance of lady constable and ASI. With the help of them advocate commissoner went to the accused house but she was not available but he spoke to her family members about the consequences if the accused will not appear before the lower court. Her family members said to him that they are going recall NBW in two days. The advocate commissioner returned back to the lower court and submitted his report will all the info explaining about what all happened during his execution time, then the lower court gave us next adjournment date. In the next adjournment date the accused again didn't appear and the magistrate dismissed the complaint for default. Please see below what magistrate wrote on the docket.
| Business | : | The accused called present. The complainant called present. The counsel for the complainant failing to take appropriate steps to ensure the presence of the accused before and intention drag the matter with insufficient the matter pertaining to year 2013. The matter is coming only for the appear of accused since so many years, in view of the long pendency of the matter and inability of the complaint to ensure the presence of the accused before the court. The complainant is dismissed for default U/s.256 Cr.P.C. |
| Nature of Disposal | : | DISMISSED FOR DEFAULT |
As a complainant I was appearing before the lower court regularly on every date. I wanted to contest the case still I am and will be willing to contest the case.
The accused was not present on the last date but the magistrate wrote on the docket that the accused was present and complainant was present.
My questions are below for you all to give me suggestions to take further steps to set aside of the lower court's order regarding dismissed for default.
1. How can a criminal case be dismissed for default due to non appearance of accused and when the NBW is still pending?
2. How can the magistrate write on the docket that the accused called present when the accused didn't appear before of the court?
3. How do I reopen the case again?
4. Where I need to approach now for a revision or an appeal? District Court or High Court?
5. What is the time limit if I want to approach District Court or High Court?
6. May I take a legal action against the magistrate for illegal dismissal of my case? what is the procedure?
7. With this dismissed for default order can the accused go to the HC in order to get her quash allowed?
8. May I get order of setting aside the lower court's decision in order to the continue the case again?
I applied for certified whole case record on the same of dismissal, I am waiting to collect the certified case record in order to prepare for revision or appeal.
Please give me your valuable suggestions. Thanking you all.
