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Hursha (Director)     30 October 2010

Crpc Sec 395 (2)

In a grevious offense of rape where there is death penalty/life imprisonment if convicted, the investigating officer is delaying the due process without submitting the original FIR after the chargesheet has been taken of record and a PRC No., given. The chargesheet itself was submitted after 5 years !! The investigating officer has submitted to the court in writing that he had sent the original FIR but it was lost in transit. Now, the magistrate refuses to committ the case to the Sessions Court and has been continuously adjourning the case for the last 1 year.

1.Can we submit a prayer to the magistrate to refer this to the High Court under Sec 395 (2) of Crpc. What is the remedy/relief ? 

2. Can we ask the magistrate to dismiss the case completely as it is frivolous anyway ?

3. How can we force a committal ?


 5 Replies

DEEPAK ASSOCIATES (08010117611)     31 October 2010

you have reamdy to approach to High court u/s 482 of CrPC. the court will take its own steps

Hursha (Director)     31 October 2010

Thanks Deepak.

Quash u/s  482 of CrPc seems unlikely as the Investigating officer has given a laundry list of 52 witnesses. Though their 161 statements doesnt say anything incriminating at all, the High Court may take a stand stating that the witnesses have to be examined and dismiss the petition of quash.

Given the scenario, my friend was looking for either a dismissal of the whole case on technical grounds OR force a committal and expedite the trial.

Is there any citation, or method under law to achieve this ? Can section 395 (2) of Crpc be used ? Is there any other court procedure at to obtain the committal or dismissal ?

DEEPAK ASSOCIATES (08010117611)     02 November 2010

The Section 395 (2) CrPC is meant for the question of law arising out of hearing whereas in your case the hearing is not started.

Either the magistrate take the action against the IO who lost the original FIR and  allow the secondary evidence u/s 63 of Indian Evidence Act upon the application of PP.

At the instance case you have reamdy to approach to High court

1 Like

Hursha (Director)     02 November 2010

Thank you so much Deepak. Your advice is really helpful. Appreciate it.

Govardhanan (Advocate)     04 November 2010

so also an accused has right to speedy trial. a petition under section 482 cr pc  to high court seeking direction to expidiate the trial may help you.

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