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Jeevan (Finance)     23 October 2014

Speedy trial with quash petition

I am filing Speedy Trial in high court for 498a case which is going on from last 7 years and wife is not appearing at all. Please guide me on procedure and samples.

Can I also combine quash with it? So that high can either quash or order for speedy trial. 

Thanks



 18 Replies

Satyadarshi Kunal (advocate)     24 October 2014

go for quashing first and if the court denies then pray for speedy trial before court.

 

Regards

Jeevan (Finance)     24 October 2014

Thanks, I was told that can't go for quashing after charge framed so could you clarify. Also, what would the basis for quashing. 

 

 

 

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     24 October 2014

Apply quashing with speedy trial (i.e. 1st prayer is quashing, it not granted the 2nd prayer is Speedy Trial i.e. pray for 6 months time frame).

 

With CrPC 401 read with 482 CrPC and 483 CrPC in-person (Without Advocate).

Adv. Chandrasekhar (Advocate)     24 October 2014

Similar question was raised some gentleman in family forum and I gave a lengthy reply.  I copy paste it for your purpose.  See, if it is any useful for you:

You have to move an application under Section 256 of Cr.P.C. seeking the acquittal of the accused on the ground that the complainant has not appeared for the prosecution despite several summons served upon her. It is difficult at H.C. level to find out Section 256 relief only in S.498-A cases. But the S.C. guidelines about how the magistrate has to exercise his discretionary power while exercising powers u/s. 256 are helpful - Associated Cement Co. Ltd. Vs. Keshjvanand (1998 Cr.L.R. 856). The accused has got a right for speedy trial. So, it is the magistrate's responsibility to strike a balance between the conflicting rights of accused's right of speedy trial and the complainant's right of full and proper adjudication. But, if the complainant absents herself without having any reason, certainly the balance tilts towards the accused. So, in your application, you have to give date wise proceedings that on which dates she was summoned, how she did not appear without assigning any reason and the mechanical adjournment of the case glaring over the travails the accused faces to appear criminal trials. While drafting this application, keep in mind that if your application is rejected, you would be going to H.C. under Section 482 read with Art. 20 of Constitution of India and also U/Art. 226 and 227 challenging the magistrate's order of continuing the criminal prosecution. So, craft the draft meticulously. For your benefit, I am quoting the relevant part of the above said judgment.

“4. The Supreme Court in the case in Associated Cement Co. Ltd. v. Keshjvanand,1998 Crl.L.R. 856, has held as follows—

‘Two constraints are imposed on the Court for exercising the power under Section 256. First is, if the Court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the Complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the Complainant is absent on a particular day, the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the Complaint and acquit the accused. But if the presence of the Complainant on that date was quite unnecessary, then resorting to the step of axing down the Complaint may not be proper exercise of power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of Criminal justice‘. ”

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But the thing in Section 498-A is that the complainant is the only and only material witness. Her absence and lack of her evidence before the court is a sure thing that the accused will be acquitted. Other witnesses, except MIL and FIL are formal witnesses and prove nothing without the deposition of the complainant. So, if the magistrate adopts dilatory tactics of prolonging the case by calling formal witnesses without first presenting the material witness is the exercise in frutaility. On these lines you prepare the application to get favourable orders either before the magistrate or if necessary before the High Court.



Jeevan (Finance)     27 October 2014

Is crpc 256 applicable in 498a case?

Jeevan (Finance)     28 October 2014

guys please help

Adv. Chandrasekhar (Advocate)     28 October 2014

Yes. Very, very interesting question you asked.  As a matter of fact, Section 256 cr.p.c. falls in Chapter XX of the Code and it pertains to  the trails by magistrates in summons cases.  S.498-A IPC falls under Warrant cases and Chapter XIX of Code is applicable.  But, we do not find para-materia provision in warrant cases where "non-appearance of complainant" would vest the power with the magistrate to discharge the accused.  So, while there is a fundamental right available to the accused for the speedy justice under Article 20 of the COI and in the absence of S.256 like provision in Chapter XIX of the code, the courts cannot behave helpless and follow the dictates of the complainant and wait for the complainant in eternity trampeling the fundamental rights of the accused asking him to show his face on every two months to take down the next date of hearing.  I also went across a S.C. judgment, where time was fixed to conclude the trial from the date of charge sheet.  Whether the time period was six months or 1 year, I could not recollect.  Even though this particular judgment is being violated due to the reason of less number of courts, your advocate may fish out such important judgment to get you out of hook.  Regards.

Sudhir Kumar (Dy Director)     28 October 2014

concept of speedy trail is there considering cases like you only.  If the witness was appearing then in case you are innosent then you could have been acquitted long back and even if guilty you could have come out on conviction.

 

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     28 October 2014

My opinion is,

 

File speedy trial first and create headache on that judge to dispose of the matter as early as possible.

 

During speedy trial,

 

if the complainant don't come even by sending multiple summons also then go-ahead and file discharge petition U/S 256 CrPC read with 239 CrPC.

Jeevan (Finance)     28 October 2014

Do I have to file discharge petition? Isn't the speedy trial means that if case is not completed within timeline prescribed by the HC, the case is automatically dropped and I am discharged?

 

 

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     28 October 2014

Mr. Jeevan,

 

In few cases I have seen that even if speedy trial order is there but still the the LD. Judge could not comply the order. If this situation occur then you have to file Wirt Petition(Article 226 with CrPC 482) for quash it with cost.

Jeevan (Finance)     28 October 2014

I am not getting it. It's an HC order so lower court judge must comply. What's the reason or situation for not complying? 

Also, can you give some examples of such cases?

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     28 October 2014

Mr. Jeevan,

 

I have seen a few cases in this forum itself that the JM is not complying the order of HC and not disposing of the matter withing the directed time line.

 

For such cases you have to take action against the STATE by filing WP for quash or make again time frame so the JM comply this time with cost for the harassment.

Jeevan (Finance)     28 October 2014

then what's the point of speed trial and high court order? Can you point me to such cases please. 

Also, if such thing happens, where to file WP? Lower court or HC?


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