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Stephen (Pgm Management Professional (Retired))     23 August 2020

Painful impending criminal proceeding

Dear Respected Sirs,

I had filed criminal case in 2016 for cheating a property deal for 47 lakhs by a person booked
under 420B. The person is on bail and over the last 2 years I am
following by regularly attending the case without much help from public prosecutor.

As in the last 2 years case been just been postponed by every 3-5 months stating NBW
and police is just reporting the defendant is untraceable. Now my seeking ardent advice with below
question.

a) Next hearing is coming in 10 days, as currently lock down / partial court working
will the case be heard and will the police bring the defendant
Note: Police has the phone number of the defendant... why can't they trace him 
either directly or through their advocate who would have got him bail
a.1) if Yes, will i be allowed to attend
b.2) If the case will be heard without defendant be produced
how should i ensure police and public prosecutor do their duty.

Looking forward to your sound advice and help with steps what I should do.

Thanks & Regards
Stephen



Learning

 5 Replies

P. Venu (Advocate)     24 August 2020

A criminal case would not be taken up for trial in the absence of accused. You can take up the matter with superior officers if police officials are not diligent in serving the summons. Any how, no immediate solution is possible in the present state of affairs.

Dr J C Vashista (Advocate)     24 August 2020

You should engage and empower private counsel with Public Prosecutor for processing your complaint/ FIR case in proper manner.

However, it can not proceed in the absence of accused, who is stated to be on bail. Did you ever approached/ requested the Court to proceed u/s 82 and 83 CrPC if NBWs are not responded.

Stephen (Pgm Management Professional (Retired))     25 August 2020

Dear Respected Sir,

Many thanks for pointing how criminal proceedings occur. As I had filed complaint against the defendant, subsequently police created FIR took my and defendants recordings and finally created charge-sheet under 420B and police requested me to file criminal case.  While I am aware the defendant/accused is on bail, that being said since 4 years no progress hence do i have right to seek from judge to make case progress and if so how to I do was my ardent help I was seeking from this forum. 

However your exert view suggests that next steps could be 82/83, can I bring this point before the judge when I attend next hearing come in 10 days (if the defendant not produced before court) and subsequently how to handle this case, though I shall seek advocate to support procecutor.

Appreciate any detail points given to above.

Regards

Stephen

P. Venu (Advocate)     25 August 2020

In spite of the inconsistency/incoherence, the facts posted by the author suggest that the case has been instituted under police report. As such, in the normal course, the case would be conducted by the Public Prosecutor. However, the provisions of Section 301 and 302 enables the de-facto complainant to engage an advocate in prosecuting the case. 

301. Appearance by Public Prosecutors.-(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. (2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.”

302. Permission to conduct prosecution- (1)Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader.

 

The scope of the two provisions are different and distinct. Section 301 applies to all trial courts,  Sessions as well as Magistrate Courts. Thereunder, the private counsel has only a limited role as observed by the Supreme Court in Shiv Kumar v. Hukam Chand and another.

"12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to magistrate courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words any court in Section 301. In view of the provision made in the succeeding section as for magistrate courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception. The first sub-section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second sub-section, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution under the directions of the Public Prosecutor. The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so.”

The provisions of Section 302 are relevant only to trials before Magistrate. The provisions virtually enable the private counsel virtually take over the prosecution. But the private counsel could only be engaged only if due permission granted by the Magistrate on a written application by the de-facto complainant . In this context the Supreme Court had held in J.K. International v. State (Govt. of NCT of Delhi) and others:

"The private person who is permitted to conduct prosecution in the magistrates court can engage a counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the courts would generally grant such permission. Of course, this wider amplitude is limited to Magistrates courts, as the right of such private individual to participate in the conduct of prosecution in the sessions court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them.

The positions,  as above, had been summarised by the Supreme Court Dhariwal Industries Ltd. v. Kishore Wadhwani

"18. We have already explained the distinction between Sections 301 and 302 CrPC. The role of the informant or the private party is limited during the prosecution of a case in a Page 13 13 Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 CrPC is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently."

In view of the legal provision, as above, the author has the option to request for permission from the Magistrate to engage a private counsel and conduct the proceedings independently, as rightly suggested by learned expert Dr. Vasishta.

Stephen (Pgm Management Professional (Retired))     25 August 2020

Dear Sirs,

I am confusion with length legal paragraphs to understand how I should address my situation. Nevertheless to Sri OM Prakash query. below I clarify as best.

a) When I filed complaint with police station, after lot of follow-up police created FIR. As part of the FIR police took all details over 3 meetings along with proofs he wanted (I bought him all certified copies from all sub-registrars office). This took about 2 months

b) Further when I followed up again, police head constable assigned to this case/complaint said they are recording defendant side of story as well. This took about 1 month

c) After this I further followed-up with police to known what is the conclusion. In front of the circle inspector the head constable told me the defendant cheated and he need to be booked under 420B. Post that he took 1 month to create chargesheet.

d) After this I further followed-up, the head constable told he chargesheet has been sent to Mayo Hall court, they should create the criminal case. He also mentioned the defendant is on bail. When I followed up with court after long time 6 moths they created criminal case. Since then its been 4 years not much progress happened. Therefore over the last 2 years when I followed by attending the hearings its been just postponed 3-4 months stating NBW... every time police are stating defendant is untraceable. 

With these background and no help from public procecutor, I am approaching with this forum how I can make the case progress and importantly the process, how long would it take and how do I get my money for my query.

If I could get detail help would be highlight appreciated.

Regards

Stephen

 

 


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