A broad approach to drafting of any Application / Petition /
Complaint may be undertaken in three chronological “Heads” –
1.
Reliefs prayed for /
claimed;
2.
Grounds for Reliefs
prayed for / claimed; (both factual and legal);
3.
Narration of facts
substantiating the said grounds.
Further, there may be narration of
such facts in the beginning of the draft, which would lay
foundation for “material facts of the case”.
Grounds for Reliefs prayed for / claimed implies (a) the
essence / conclusion of material facts; and (b) other legal provisions which
supports the reliefs prayed for / claimed.
IN THE HIGH
COURT OF JUDICATURE AT BOMBAY
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPLICATION NO. _________OF 2015
Application u/s 482 of CrPC, 1973
_______________ …..Applicants
(Original Accused)
Versus
(1) The State of
Maharashtra
(2)
________________ …..
Respondents
(Resp
No.2 being the Original Complainant)
INDEX
Sr. No.
|
Particulars
|
Exhibit
|
Page No.
|
1
|
Synopsis,
Authorities, Points to be urged
|
||
2
|
Memo of
Application
|
||
4
|
Impugned Order
of the Ld. Magistrate dated
|
“A”
|
|
5
|
“B”
|
||
6
|
Complaint of
the Respondent No.2
|
“C”
|
|
7
|
“D”
|
||
8
|
Impugned Order
of the Ld. Sessions Judge
|
“E”
|
|
9
|
“F”
|
||
10
|
Vakalatnama
|
IN THE HIGH
COURT OF JUDICATURE AT BOMBAY
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPLICATION NO. _________OF 2015
Application u/s 482 of CrPC, 1973
_______________
…..Applicants
(Original Accused)
Versus
(1) The State of
Maharashtra
(2)
________________ …..
Respondents
(Resp
No.2 being the Original Complainant)
SYNOPSIS
Sr.No.
|
Date
|
Particulars
|
Exhibit
|
1
|
Complaint
filed by Respondent No.2
|
||
2
|
Impugned Order
passed by Ld. Magistrate
|
||
3
|
Summons issued
by the Magistrates Court
|
||
4
|
Summons
received by the Applicants
|
||
5
|
Revision
Application filed by the Applicants
|
||
6
|
Impugned Order
passed by Ld. Session Judge
|
THE ACTS TO BE RELIED UPON
The
Criminal Procedure Code, 1973
The
IPC / Negotiable Instruments Act, 1881
Any
other as may be applicable.
THE AUTHORITIES TO BE CITED
Judgment at the
time of hearing.
THE POINTS TO BE URGED
(a) “acts” and
“omission” attributed towards the accused person in the FIR / Complaint does
not constitute any offence; or
(b) No incidence
of offence as alleged in the FIR / Complaint has happened; or
(c) the FIR /
Complaint contains “bare allegation” without attributing “acts or omission” on
the part of the accused person, towards the commission of the offences, that is
to say, there is not an iota of any incriminating material against the accused
so as to warrant the issuance of summons ;
(d) There are
unimpeachable evidence to show that the offence could not have been committed
by the accused person as alleged, and otherwise, the accused would be
needlessly harassed of the inevitable agony of criminal trials.
(e) That Article
21 of the Constitution of India commands that “No person shall be deprived of
his life and liberty” except according to the procedure established by law. In
Criminal jurisprudence, the only safeguard available to an innocent person is
the “scrupulous and strict adherence” to the procedure prescribed in concluding
the “guilt of the accused person”. Thus, whenever, any of the “prescribed
procedure” is not “duly followed and complied with”, and where such non compliance,
expressly or by necessary implication, frustrate the personal liberty of the
accused person, the violence to fundamental right of the accused enshrined
under Article 21 of the Constitution is imminent. And therefore the impugned
Order of the Ld. Magistrate is in breach of fundamental right of the Applicant,
enshrined under Article 21 of the Constitution of India.
(f) That it is
elementary principle of criminal jurisprudence that criminal liability arises
on account of conduct, act or omission on the part of a person and not merely
on account of holding an office or position in a Company.
(g) That
institution of any judicial proceedings against a person carries an implicit
degree of coercion and no judicial proceedings should be triggered at the whims
and fancies of the litigants, which otherwise amounts to sheer harassment,
embarrassment, and substantial expenses to the person saddled with unwarranted
litigation and most importantly, causes the waste of the precious time of the
court in hearing the frivolous and meritless litigations.
IN THE HIGH
COURT OF JUDICATURE AT BOMBAY
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPLICATION NO. _________OF 2015
Application u/s 482 of CrPC, 1973
IN
THE MATTER OF
Sections 482 and ____ of Criminal Procedure Code, 1973;
AND
Sections ____ of the IPC / Negotiable Instruments Act, 1881;
AND
FIR registered / Impugned
Order passed by Ld. Magistrate in Criminal Complaint
(Full title)
_______________
…..Applicants
(Original Accused)
Versus
(1) The State of
Maharashtra
(2)
________________ …..
Respondents
(Resp
No.2 being the Original Complainant)
THE HONOURABLE CHIEF JUSTICE
AND OTHER PUISNE JUDGES OF
THE HONOURABLE HIGH COURT
OF JUDICATURE AT BOMBAY
THE HUMBLE
APPLICATION OF THE APPLICANTS ABOVENAMED
MOST RESPECTFULLY SHEWETH.
1.
The
Applicants state that Applicant (brief introduction )
2.
The
Applicants state that the Respondent No.2 (brief introduction)
3.
The
Applicants state that the dispute between the Applicants and Respondent No.2
pertains to ___________. Hereto annexed and marked as Exhibit “A” the copy of said _____
4.
The
Applicants however state that the Applicants in this Application are confining
their arguments on the point of the abuse of the process of the Court by
Respondent No.2.
5.
The
Applicants state that pursuant to FIR / Complaint No._____ dated ________ filed
by the Respondent No.2 hereinabove, the concerned SHO of the said Police
station registered an FIR / Ld. Magistrate passed an Order dated ____, inter
alia, for the issuance of Process against the Applicants, returnable on
_______. Hereto annexed and marked as Exhibit
“B” the copy of impugned Order dated _____ and Exhibit “C” the copy of FIR / Complaint filed by Respondent No.2
dated _____
Other submissions…
(15) The Applicants state that
after careful reading of FIR / Complaint as a whole, it can safely be argued
that –
(a)
“acts” and “omission” attributed towards the accused person in the FIR /
Complaint does not constitute any offence; or
(b)
No incidence of offence as alleged in the FIR / Complaint has happened; or
(c)
the FIR / Complaint contains “bare allegation” without attributing “acts or
omission” on the part of the accused person, towards the commission of the
offences, that is to say, there is not an iota of any incriminating material
against the accused so as to warrant the issuance of summons ;
(d)
There are unimpeachable evidence to show that the offence could not have been
committed by the accused person as alleged, and otherwise, the accused would be
needlessly harassed of the inevitable agony of criminal trials.
(16) The Applicants submit that
Article
21 of the Constitution of India commands that “No person shall be deprived of
his life and liberty” except according to the procedure established by law. In
Criminal jurisprudence, the only safeguard available to an innocent person is
the “scrupulous and strict adherence” to the procedure prescribed in concluding
the “guilt of the accused person”. Thus, whenever, any of the “prescribed
procedure” is not “duly followed and complied with”, and where such non
compliance, expressly or by necessary implication, frustrate the personal
liberty of the accused person, the violence to fundamental right of the accused
enshrined under Article 21 of the Constitution is imminent. And therefore the
impugned Order of the Ld. Magistrate is in breach of fundamental right of the
Applicant Nos.3, 5 and 6, enshrined under Article 21 of the Constitution of
India.
(22) The Applicants state that there is not an
iota of evidence produced by the Respondent No.2 so as to suggest that there
exist any ground whatsoever to proceed against Applicant Nos.3, 5 and 6.
(23) The Applicants state that it is elementary
principle of criminal jurisprudence that criminal liability arises on account
of conduct, act or omission on the part of a person and not merely on account
of holding an office or position in a Company.
(24) The Applicants state that to launch a
prosecution against the directors, there must be specific allegation in the
Complaint, as to the part played by them in the transaction.
(25) The Applicants submit that institution of
any judicial proceedings against a person carries an implicit degree of
coercion and no judicial proceedings should be triggered at the whims and
fancies of the litigants, which otherwise amounts to sheer harassment,
embarrassment, and substantial expenses to the person saddled with unwarranted
litigation and most importantly, causes the waste of the precious time of the
court in hearing the frivolous and meritless litigations.
(26) GROUNDS FOR RELIEF PRAYED
(a)
“acts” and “omission” attributed towards the accused person in the FIR /
Complaint does not constitute any offence; or
(b)
No incidence of offence as alleged in the FIR / Complaint has happened; or
(c)
the FIR / Complaint contains “bare allegation” without attributing “acts or
omission” on the part of the accused person, towards the commission of the
offences, that is to say, there is not an iota of any incriminating material
against the accused so as to warrant the issuance of summons ;
(d)
There are unimpeachable evidence to show that the offence could not have been
committed by the accused person as alleged, and otherwise, the accused would be
needlessly harassed of the inevitable agony of criminal trials.
(27) The Applicants submit that there has been
no delay in preferring this Application.
(28) The Applicants state that the impugned
Order is passed by Ld. Magistrate at ______Court at Esplanade Courts at Mumbai;
and the impugned Order was passed by the Ld. Session Judge at the ____ Court of
the City Civil and Session Court at Mumbai. The Applicants states that,
therefore, this Hon’ble Court can safely invoke their jurisdiction to entertain
the present Application and grant reliefs as prayed; and pass authoritative
Orders against the Respondents.
(29) The Applicants further submit that
Applicants have not filed any other proceedings in any Court of law or in the
Supreme Court, against the Respondents herein, in respect of the reliefs prayed
in this Application.
(30) The Applicants, with the leave of the
Hon'ble Court, be allowed to add / amend / delete any clause in the present
Application.
(31) The
Applicants therefore, most respectfully pray as under –
(a)
That the impugned FIR / Order of issuance of process by the Ld. Magistrate at
___ Court at Esplanade Courts, in the above Complaint No., dated ___ against
Applicant Nos._____, and that of the Ld. Session Judge dated _____ be quashed
and set aside;
(b)
That during the pendency of the present Application, execution of Order dated
_______ and proceedings in the above Complaint against Applicant Nos._______ be
stayed;
(c)
Any other relief as this Hon’ble Court deems fit having regard to facts and
circumstances of the case.
Advocate for the
Applicants
Applicant
Verification
I, _______, the
Applicant hereinabove, do hereby
solemnly declare that what
is stated in
Paras ____ are true to my own
knowledge, and what is stated
in Paras ______ are based on
information and legal advice which I
believe to be true and correct.
Solemnly declared
at Mumbai )
This Day
of _____, 2015 )
Applicant
Before me
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