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Rampal Singh (bussiness)     29 October 2012

Crpc 397

I was issued summons by lower court when a private complaint was filed by my wife for IPC 406. I moved to sessions court with revision application u/s 397. My application was accepted by sessions judge and a case number was given to me(when I say accepted, I mean it was not dismissed, and a date was given for next hearing in sessions court). I must also add, that sessions judge did not issue any orders on my application. 

Meanwhile the date on which I was summoned to appear in lower court approached. My lawyer advised that since the case in under consideration of sessions court, I need not appear in trial court. He also said, that in next date of sessions court, the case file shall move to sessions court, so my presence in lower court shall not be required. Now, the opposite party lawyer has put forward the application to issue NBW against me.

My question is:

1. Was I correct in assuming that since application u/s 397 is being considered and heard by sessions judge, so the proceedings in lower court will not happen.

2. How should I respond to opposite party lawyer's application to issue NBW?

 

Thanks,



Learning

 8 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     29 October 2012

In absence of a specific order as to stay of proceedings in the lower court, the mere admission of the revision wont result in a stay. You have to continue appearing before the court or move exemptions from appearance.


Bharat Chugh

Advocate Supreme Court of India

1 Like

Rampal Singh (bussiness)     29 October 2012

Thanks for prompt reply sir.  This means NBW might be issued against me? What should be my course of action to avoid NBW now? 


(Guest)

A mere filing of the revision does not operate as a stay on the proceedings in the trial court. Unless specifically stayed by an order of the superior court, the proceedings in the trial court shall move at their normal pace. Your lawyer was wrong in telling you not to appear in the trial court when no stay was granted by the revisional court. NBW may now be issued against you.


Ashish Davessar

Advocate

Punjab and Haryana High Court

Supreme Court of India

1 Like

surjit singh (Assistant)     30 October 2012

It appears the case before the District Judge has not been admitted till date and I think the next date is fixed for hearing in this situation the records of the lower court will not be transmitted because the records has not been call for. In this situation in absence of any order the case at the lower court will also proceed. You lawyer might have suggested you in the anticipation that in the next date some order in favour may likely be passed by the district judge. In one way your lawyer's suggestion is not bad, you can avoid the lower court   for one of two date but in this way you cannot avoid the lower court for long. If in the meantime some favourable order comes from the district judge then that is different. In the present position you canot avoid the lower court for more than one mostly two dates.

venkatesh Rao (Retired Government Servant)     31 October 2012

Maybe, the lower court records are called for by the court of revision and hence the proceedings in the trial court is hindered to proced further. Hence your advocate might have told you not to appear before the trial court.

ADV S PATHAK (lawyer)     01 November 2012

my dear the revision filed by you u/s 397 crpc will fail as the summoning order is interlocatory order. so you should present your self at trial court.

this is a complaint case and jmic, after enquiry, summoned you.

venkatesh Rao (Retired Government Servant)     02 November 2012

Pathak sir,

Summoning of acused is not an interlocutory order and hence evision always lies. 

ADV S PATHAK (lawyer)     03 November 2012

mr rao 

what is the test for interlocatory order ?

if the order passed by judge finally ends all the proceedings then it is not an interlocatory order. in this case judge has taken cognizance on complaint and just calling the respondent to hear the other party. not closing the case. so it is not a final order.

summoning order can be recalled by the same but can not be reviewed.

it may be queshed u/s 482 by HC

kindly see sec 397(2) reproduced below

 

397. Calling for records to exercise powers of revision.

 

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself' or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of' any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

 

Explanation. All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398.

 

(2) The powers of revision conferred by sub-section (I) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

 

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the of the of them.


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