sanjay kumar patibandla (advocate) 23 October 2008

Act of a Magistrate

I filed one complaint against one person u/s 138 of N I Act. The complaint's evidence was closed. After that the accused examined as DW1. Latter he filed one petition to summon some persons. Court was pleased to dismiss the petition. After dismissal The judge was transfered to another place. Another lady judge came and joined as in our court. That the accused filed the same petition with out changing single word. The magistrate allowed that petition. Is it proper?

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7 Replies

kumar sachin (lawyer) 24 October 2008

no it is absolutely not proper.

u may prefer revision against tht order in superior court.

K.C.Suresh (Advocate) 24 October 2008

Judge has committed an illegal act. Revision is the solution

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108) 24 October 2008

Just want to know, in the matter instant.

1. What is the "illegality" in the 2nd MM's allowing the petition.

2. Does not the MM have discretionary power to do so, to allow the accused to examine another witness, in order to serve or uphold justice.

3. Did the Complaintant file any objection to the new petition.

4. Does not the Accused have right to defence or put up new evidence / witness till just before the final order.

Keep Smiling ... HemantAgarwal

Akhilesh Maurya (Private legal practice) 24 October 2008

By allowing the order on same application filed by the defence without changing any words is wrong. The Hon'ble Magistrate has not applied her judicial mind in passing the order on same type of application. You have remedy to file revision in higher Courts.

prabodh kumar patel (advocate) 24 October 2008

Absolutely illegal

anonymus (confidential) 24 October 2008

sirs, dont be too hypertechnical, as Agarwalji has rightly pointed out, after all the accused has a right to let in further evidence. What is illegal in allowing the petition to reopen the case to let in further defence evidence. There is no restriction on the number of petitions u/s 311 but only thing is suitable reasons to be stated for either allowing or dismissing it. ( hope the question whould not have arose if Mr. Sanjay had appeared for the accused)