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Arun Agrawal (Business Consultant)     26 June 2013

Closure of complainaint's evidence in certain cases

My query is as follows:


Whether there is any provision under CrPC whereby evidence/recording of statement by the complainaint in a criminal case can be closed if the complainaint is not showing up to record his statement despite issue of BWs on 15 occasions in 2 years and High Court orders for expeditious disposal of the trial/case ?

 

Thank you .



Learning

 11 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     26 June 2013

this is the descretionery power of the court.

1 Like

Adv k . mahesh (advocate)     26 June 2013

the court giving 15 occasions itself shows how much time the court had given 

Aditya (Managing Partner)     26 June 2013

256. Non- appearance or death of complainant.

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: 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.

(2) The provisions of sub- section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death.

258. Power to stop proceedings in certain cases. In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.

1 Like

R Trivedi (advocate.dma@gmail.com)     26 June 2013

File an application under S.256 CrPC for discharge first thing on the next date. (what is the offense ??)

1 Like

Arun Agrawal (Business Consultant)     27 June 2013

u/s 506 IPC in a District Court in the State of U.P.

Arun Agrawal (Business Consultant)     10 July 2013

In response to opinions expressed by Mr Aditya and Mr R Trivedi : 

 

I consulted a lawyer practising at GB Nagar District Courts . He opined that Sections 244 onwards in CrPC apply only in private complaint cases , not in "State" cases where a FIR has been registered , Therefore, Sections 256/258 as quoted will not apply in my case. He suggested that I file an application at the next hearing requesting the Court to give one final opportunity to the complainaint to appear at the subsequent hearing by issuing a NBW , and if he does not appear at the subsequent hearing as well, then the Court be requested to finally close his evidence and to proceed thereafter .

 


R Trivedi (advocate.dma@gmail.com)     10 July 2013

Your query was taken by me as private complainant case, but once the state is one of the party then S.256 is not applicable. Who are the other witnesses against you ?

 

As advised by Ld lawyer, please file the application that since complainant has not appeared for 15 dates even despite BW, and hence his evidence may pleased be closed. (Do not offer the idea of NBW, it is in your favor if complainant evidence is closed at the earliest)

1 Like

Arun Agrawal (Business Consultant)     10 July 2013

Ok, I will file an application at the neat hearing due on  12 July, without mentioning any request for issue of NBW . In this particular case, there are 3 witnesses in all, including 2 friends of the complainaint . One of them has shown up a year ago and turned hostile . The complainaint has himself filed a sworn affidavit in the court 2 years ago that he does not wish to proceed further in the case, clearly showing that the complaint is concocted and frivolous . These facts will also be included in the application . 

Arun Agrawal (Business Consultant)     12 July 2013

Further to earlier posts . As suggested, I filed an application before the Addl. Chief Judicial Magistrate Court this morning for closing the complainaint's evidence, but the Ld.Magistrate refused to entertain my application telling me that there is no such provision in law to afford one last opportunity and/or close the complainaint's evidence for not appearing before the Court in response to BWs issued 15 times ( or even more) . Stating that, she again directed the issue of BW Rs 10,000 against the complainaint and adjourned the proceedings to the next month . I know that the situation at the next hearing will be no different .

Under these circumstances - and keeping in  view also High Court directions passed 15 months ago for expeditious disposal of the case - shall I approach the High Court again for its fresh directions - to close the complainaint's evidence and to dispsoe off the case in max.3 months time ?

R Trivedi (advocate.dma@gmail.com)     13 July 2013

Thats the only recourse available under the circumstances. Discuss with your counsel and move an application under S.482 CrPC to hon HC citing following..

 

1. Affidavit of complainant stating not further interested.

2. Earlier order of Hon HC.

3. Non apperance of complainant for evidence for last 15 days despite BW.

 

Pray to the Hon High court  that further to complainant affidavit and his absence for last 15 dates, you are getting unduly harassed and your liberty under the criminal trial is fully jeopardised, and hence the Hon court is prayed to dismissed the case for want of prosecution or take suitable action as deemed fit under the law. 

 

Make the petition brief and small, do not overburden the petition with unnecessary explanations.

1 Like

Arun Agrawal (Business Consultant)     13 July 2013

The Court has fixed 16 August as the next date of hearing , and instructed the local Police to "apprehend" the complainaint and ensure his appearance at the next date . I am not aware if any NBW has been issued or not . So I think that  I should take the recommended course of action before the Hon.Allahabad HC thereafter depending on the situation on that date , just about 30 days ahead .


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