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Aravind Kumar Gunda (BOE)     23 September 2020

Criminal appeal at hc

Hello Advisors,

I am an appellant and filed Criminal Appeal at HC along with 116 days condone delay petition in order to restore the lower court criminal case which was dismissed for default for non appearance of the accused U/s 256 Cr.P.C, I was complainant and present and was ready to proceed with the case but the hon'ble magistrate gave an illegal order. 

My questions are:

1. Will the respondent be given a notice by HC in order to respond on my condone delay petition?

2. Why the respondent need to respond to HC on my condone delay petition?

3. There are how many stages in order to get final from HC to restore my lower court case?

Now, the stage of my criminal appeal is "For Admission"

Please provide your valuable answers to my questions. Thanking you!

 

 



 7 Replies

Dr J C Vashista (Lawyer)     23 September 2020

Q 1 Yes, respondent has been noticed for the application for condonation of delay before appeal is taken up / admitted.

Q 2 It is an opportunity for respondent to contest, which is requirement / demand of justice.

Q 3 Generally HC do not seek reply to appeal and decide it instantly on the basis of Trial court record..

Aravind Kumar Gunda (BOE)     23 September 2020

Thank you for your response JC Vashista sir,

I understand your answers.

According to my knowledge I know that the respondent would respond to HC opposing or objecting on main grounds of my Criminal Appeal, but I am not aware that the respondent is given opportunity to respond to HC for my Condone Delay before my Criminal Appeal is taken up or admitted.

As far as my condone delay is concerned, its my responsibility to explain to HC with sufficient cause on my condone delay.

What does the respondent need to do with my condone delay? this thing I would like to understand more.

P. Venu (Advocate)     23 September 2020

"order to restore the lower court criminal case which was dismissed for default for non appearance of the accused U/s 256 Cr.P.C,"
The facts posted are less than convincing. 
 

Aravind Kumar Gunda (BOE)     23 September 2020

Thank you for your response Venu sir!

Please go through the facts below for more than convincing, so I had to file Criminal Appeal before the hon'ble HC to get set aside the lower court order in order to restore the case.

I filed a private criminal case u/s 200 Cr.P.C 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% genuine opposed her quash petition not to allow.

The matter at HC was pending till 2018, she never single time appeared before the 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, Once her stay order was automatically vacated, the lower court started proceedings again in mid year of 2018, but she was not appearing before the lower court for many adjournments, eventually the lower court issued 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 the police didn't help me to execute the NBW. 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 station near by her house to get assistance of lady constable. With the help of ASI, the advocate commissioner 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 to recall NBW in two days. The advocate commissioner returned back to the lower court and submitted his report 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 my  complaint for default U/s 256 Cr.P.C for non appearance of the accused even though as a complainant I was present and ready to proceed with the case.

Please see the illegal order given by the 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. 

 

 

P. Venu (Advocate)     24 September 2020

What is the case number? Which court?

PRASHANT RAJPUT   24 September 2020

It is ridiculous order. It is the duty of the court to produce the accused and not the complainant or its counsel. This order will be set side in the high court.

Aravind Kumar Gunda (BOE)     24 September 2020

Yes, its ridiculous order, the accused has been walking free by stating that I can do nothing legally, she can't be caught because she is a woman and stating that she has got police support because she is financially strong person as well. 


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