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Section 397: Challenging Improper framing of Charges or Irregular trial

Please find updated draft at:

https://www.litigationplatform.com/Judgment/Index/e1109fb6-ddaa-4da3-a1cb-cc142df6133d


Criminal Revision Application u/s 397, CrPC, 1973 (LFD2f)

 

Nature of Grievance

 

Where any person is aggrieved by the fact that Magistrate Court has passed an order for Registration of FIR, on a patently frivolous complaint, such person may prefer Revision Application challenging said Order.

 

Whoever is aggrieved by any order (order not interlocutory in nature) passed by a Magistrates Court, may challenge the said order by preferring a Revision Application before Sessions Court or the High Court. The High Court or any Sessions Judge in their Revisional powers, may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court.

 

 

In the following instances, Criminal Revision Application may be preferred:

 

1.      Where a person is aggrieved by the Summons issued by the Magistrates Court on a Complaint filed before him, he may prefer a Revision Application challenging the issuance of such Summons mainly on the premise that there were no sufficient grounds to launch criminal prosecution against him.

 

2.      Where an Application u/s 156(3) filed before Magistrates Court for Registration of FIR and investigation, is rejected, the aggrieved person may prefer a Revision u/s 397 of CrPC, 1973.

 

3.      Where any person is aggrieved by the fact that Magistrate Court has passed an order for Registration of FIR, on a patently frivolous complaint, such person may prefer Revision Application challenging said Order.

 

4.      Where Summons / Warrant have been issued against a person pursuant to a Criminal Complaint filed before the Magistrates Court, the said aggrieved / accused person may prefer an Application u/s 313(1)(a) of CrPC, 1973, before the same Magistrates Court, to show palpable infirmity in the purported evidences relied upon by the Complainant, on the basis of which, the Magistrates Court has issued summons / warrant u/s 204 of CrPC, 1973. And therefore where the Application preferred before the Trial Court is rejected, Revision may be preferred.

 

5.      Where the Complainant / Applicant do not comply to the express mandate of law set out in Section 297(2) of CrPC, 1973, which stipulates that whoever party is obliged to file an Affidavit in any of the proceedings before the Court, the said Party is obliged to specify in his said Affidavit, by reference to the numbered paragraphs of his affidavit, such facts as the deponent is able to prove from his own knowledge and such other facts he has reasonable ground to believe to be true; and in the latter case, the deponent is obliged to state the grounds of such belief.

 

In the absence of such compliance, a proceedings cannot be said to be duly instituted, and is vulnerable to challenge to be dismissed. Affidavit is required to be filed in Complaints filed u/s 200 of CrPC, 1973, and in other proceedings initiated before the Magistrates Court, Sessions Court or before the High Court.

 

And therefore where the Application preferred before the Trial Court is rejected, Revision u/s 397 of CrPC, 1973, may be preferred.

 

6.      In Summons triable cases, where the Magistrate has dismissed the complaint and acquitted the accused, due to absence of complainant on the date of hearing, the aggrieved Complainant may prefer Revision, saying that dismissal of Complaint is harsh / bad in law / against the interest of justice, and on other grounds.

 

7.      (a) Where in cases “Charge” was not formally framed in respect of an offence, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant, in respect of the said offence, and, in fact, serious prejudice has been caused to the accused thereby; or

 

(b) Where there was error, omission or irregularity in the framing of charges in respect of an offence, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant, in respect of the said offence, and, in fact, serious prejudice has been caused to the accused thereby; or

 

(c) Where there was misjoinder of charges, in respect of certain offences, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant, in respect of those offences, and, in fact, serious prejudice has been caused to the accused thereby; or

 

(d) Where it is alleged that there was error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, and failure of justice has in fact been occasioned thereby; or

 

(e) Where, having regards to the facts of the case and having regard to certain facts stands proved, no valid charge could be framed against the Applicant herein,

 

the aggrieved person may prefer a Revision Application u/s 397 / 401 of CrPC, 1973, before Sessions Court / High Court.

 

 

 

 

BEFORE THE HON’BLE SESSIONS COURT / IN THE HIGH COURT OF JUDICATURE AT __________

AT

CRIMINAL REVISION APPLICATION NO.            OF 20__

IN

…………. / / …………

 

(1)________________)

__________________)

__________________)

__________________)

__________________)                                                                  

 

 

(2)________________)

__________________)

__________________)

__________________)                                           .... Applicants

(Original Accused / Complainants)

 

Versus

 

(1)The State of _____)

__________________)

__________________)

__________________)

__________________)                                                                  

 

(2)________________)

__________________)

__________________)

__________________)                                           .... Respondents

(Respondent No.2 being the Original Accused / Complainants)

 

In the matter of Revision Application u/s 397 / 401 of CrPC in respect of impugned Order dated ____                  passed in _____ by Ld. Magistrate of                    Court at………….

 

THE HUMBLE REVISION

APPLICATION OF THE

APPLICANT ABOVENAMED

 

1.      The brief facts of the case which are germane to the present controversy, are –

(a)

 

(b)

 

(c)

 

(d)

 

 

1.      Being aggrieved by the aforesaid impugned Order / judgment dated _______ Applicant begs to prefer this Revision Application on the grounds set out hereinafter.

 

2.      Infirmities in the impugned Order: (The Applicant needs to deal with the observations made in the impugned order, and the findings recorded in pursuant thereto, and assailing those observations and findings, either on facts or on law or on both.

 

3.      Where in case it is argued that the allegations made in the Application 156(3) do not constitute any offence, then, with the aid of table of offence stated hereinafter, it may be demonstrated that the acts and omissions attributed towards the present Applicants do not constitute any offence.

 

4.      The Applicant spells out the ingredients of the offence and the facts of the present case in a tabular form which will demonstrate the Non commission / commission of the offence by the Respondents:

 

Please find hereinbelow the table of concerned offences. In the each of the table, the constitution of the concerned IPC offence is disintegrated, that is to say, each of the ingredient of an offence is spelled out, so as to facilitate comparative objective analysis of ingredient of the offence on one side, against the respective attribution of alleged acts and omission against the Accused person, on the other side. Whereas any criminal liability has an implicit degree of intimidation and suppression, this tabular analysis will facilitate the Courts to quickly arrive at a decision, (a) if the nature of allegations made in the Application whether constitute the offence alleged of; and / or (b) the nature and the degree of incriminating material / evidence exist against the Accused person.

 

The underlying purpose of setting out ingredient of the offence in tabular form, is to set out in clear terms in the Application that Accused has certainly committed the offence he is charged with; or the other way, (if the Order of criminal prosecution is challenged) the Accused would be in a position to assert that, no offence is made out against him, or that, there are bare allegations, wanting in any substantive factual assertion of acts and omissions constituting the offence, or that, there are no evidence / material being placed on record against the accused, so as to launch criminal prosecution against him.

 

Therefore, the Applicant may set out in the table, against each of the ingredient, the relevant portion of his pleading, which would satisfy the requirement of respective ingredient of the offence, or in the alternative, the Applicant may mention the Para number of his Application wherein the concerned ingredient of the offence is set out. This would facilitate the Courts to quickly appreciate the material and evidences which are being produced by the Applicant in support of his allegation of commission of a particular crime against the person.

 

Depending upon the nature of acts and omissions attributed and alleged against the persons accused, the applicable section may be invoked against them and the applicable table be appended to in the Application / Complaint.

 

Find hereinbelow (at the end of the Draft) the list of offences, that is, the offences against human body and mind; offences in relation to properties; offences by Public Servants; offences of making false Claims in the Court of law; and offences of making false Complaints, false evidence / statements, for which the Complaint can be preferred.

 

5.      GROUNDS FOR RELIEF (as may be applicable to the facts of the case)

 

a)     The allegations made in 156(3) Application, even, if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Applicant;

 

b)     The allegations  made in 156(3) Application and other materials, accompanying the said Application do not disclose a cognizable offence, justifying an investigation by police;

 

c)      The allegations made in 156(3) Application and the evidences furnished in support of the same, do not disclose the commission of any offence and do not make out a case against the Applicant;

 

d)     The allegations made in 156(3) Application do not constitute a cognizable offence but constitute only a non-cognizable offence, where no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

 

e)     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;

 

f)       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.

 

g)      The allegations made in 156(3) Application are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground to call for any investigation by the Police;

 

h)     There is an express legal bar engrafted in the CrPC, 1973, or under _______  (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

 

i)        The criminal proceeding is manifestly attended with mala fide and/or the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge.

 

j)        That the impugned Order / Judgment is contrary to law and contrary to material facts and evidences which are on record;

 

k)      That the Ld. Magistrate committed an error of law in appreciating the material evidences on record;

 

l)        That the Ld. Magistrate failed to appreciate the clinching material evidence on record… 

 

m)   Any other ground as deem necessary in the facts of the case, including the ground of jurisdiction of the Magistrates Court to pass impugned order.

 

a)      There could be many other grounds on which the impugned order may said to be bad in law. Please refer (Link of Illegal / perverse orders of the Court, grievance sr no.19).

 

6.      The main points to be emphasized upon:

 

7.      Jurisdiction of the Court: A Para narrating facts that this court has jurisdiction to entertain the present Application.

 

8.      The Applicant states that no other Revision Application, except the present one, has been filed against the impugned Order, before this Hon’ble Court.

 

9.      The Applicant craves leave to refer and rely upon certain exhibited documents, and would rely upon authorities, in support of Applicant’s case.

 

10. The Applicant craves leave to add, amend, delete any of the foregoing Paras / grounds, with the leave of this Hon’ble Court.

 

11. That the present Revision Application has been filed within the prescribed period of limitation.

 

12. Relief prayed for may not be refused unless the Hon’ble Court records unfavourable findings: The further respectful submission is – that Relief prayed for herein may not be refused unless the Hon’ble Court records unfavourable finding against the Applicant on such material facts /aspects which have arisen in this Application.

 

a.      The Plaintiff / Petitioner / Complainant / Appellant in this behalf rely on an Apex Court decision. The Apex Court in a case before it [(2006) 9 SCC 222], have held that before subjecting a party to the adverse decision, requisite adverse findings must be recorded against it.

 

b.     It was a case where the Defendant in a Suit gave undertaking to the trial Court that Defendants will not interfere with the possession of the Plaintiff’s land. The Suit was disposed of on the basis of above undertaking. Thereafter, the Plaintiff moved Execution Application under O.21 R.32 before the trial Court alleging that Defendants have constructed some structure on the Suit land. The trial Court dismissed said Execution Application. The Plaintiff challenged trial Court’s Order before High Court. The High Court directed the Defendants to clear the encroachment effected by them on the suit land. The Apex Court set aside the Order of the High Court on the grounds that, the High Court, before directing the Defendants to “clear the encroachment”, should have recorded the findings that “Defendants had entered upon the suit land and put up construction subsequent to the undertaking given to the trial court”.

 

c.      With highest respect to the Hon’ble Court, the respectful and humble submission is – if the Hon’ble Court are not inclined to grant reliefs prayed for / claimed, then the Hon’ble Court have to record a [prima facie / conclusive] finding that, having regard to the facts on record, (a) ____________; and / or (b) ___________________; or (c) __________________.

 

d.      In wealth of judgments, the Apex Court and High Courts have insisted upon recording of reasons whilst arriving at findings of facts and law. In a case (AIR 2011 SCW 5486) before it, the Apex Court have observed to say that Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning, on law and facts.

 

e.      Therefore, IF it is contempt of the Court, if reasoned findings are not recorded, then it is regressive and aggravated contempt, to not to record findings at all.

 

 

13. The Applicant therefore, most humbly prays –

a)     To call for the records and proceedings of this Case from the Ld. Magistrates Court;

b)     To quash and set aside the impugned Order dated _____;

c)      Pending the hearing and final disposal of the present Application, the operation of impugned Order be stayed;

d)     To pass such other and further Order and to grant such further reliefs as this Hon’ble Court deems fit in the facts and circumstances of the case.

 

 

____________

Applicant

___________

Advocate for the

Applicant

 

A quick look at the Procedure

 

1.      General check-list before filing / Institution of Application

2.      Urgent Hearing of Application;

3.      Grant of Interim / Ad-Interim Reliefs, if prayed for

4.      Issuance of Notice by Court to Respondents;

5.      Service of copy of Application upon Respondents;

6.      Reply of Respondents, if any;

7.      Oral Arguments before the Court / Submission of Written Arguments;

8.      Order.

 

1. General Check list before institution / filing of the Application

1.      Whether Exhibits are annexed as per the averments made;

2.      Whether legible / readable copies of Exhibits are annexed;

3.      Whether necessary averments are made in respect of –

a)     Authorization to file Application, if applicable;

b)     Resolution is passed to file the Application, if applicable;

c)      Jurisdiction of the Court;

d)     No other Application; if it is filed, the particulars thereof;

4.      Endorsement as true copy to the Exhibits; and name of the person /advocate declaring it to be true copy;

5.      Prefix Mr./ Mrs.? Not permitted

6.      Copy of Impugned Order annexed

 

 

 

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