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LP11
TEMP1 482 APP QUASHING OF FIR SUMMONS
Criminal
Application u/s 482, CrPC, 1973 (LFD2e)
Section 482 Criminal
Application:
Whoever is aggrieved by any Order of any Criminal Court, which is
subordinate to the respective High Court, may challenge such Order by
preferring Section 482 Application before concerned High Court.
Section 482 of CrPC, 1973, preserves the inherent powers of the
High Courts to make such orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any Court or otherwise
to secure the ends of justice.
In the following instances,
Section 482 Application may be preferred:
1.
Whoever is aggrieved by false
and frivolous registration of FIR, or is aggrieved by the Summons issued by the
Magistrates Court on a false and frivolous Complaint filed before him, may seek
the quashing of said FIR or may challenge the said Summons by preferring a
Revision Application before Sessions Court or the High Court, or may prefer
Section 482 Application before the concerned High Court.
2.
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 or may prefer Section 482 Application before the
concerned High Court. Where an Application u/s 156(3) is filed before
Magistrates Court for Registration of FIR and investigation, is rejected, the
aggrieved person may prefer a Revision or may prefer Section 482 Application
before the concerned High Court.
3.
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 Hon’ble Court have pleased to issue
summons / warrant u/s 204 of CrPC, 1973; and where the Magistrates Court reject
the said Application, either Revision u/s 397 of CrPC, 1973 or Application u/s
482 of CrPC, 1973 may be preferred.
4.
In Summons triable cases, where
the Magistrates has dismissed the complaint and acquittal of 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 stated hereinafter.
5.
(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, and thereafter may prefer Section 482
Application before High Court.
Instructions for drafting
Parties to the Application:
The original Accused would be the Applicant; and the original
complainant and the concerned State would be the Respondents.
Jurisdiction of Courts:
The High Courts have exclusive jurisdiction
to entertain these Applications.
1. Section 482 of CrPC, 1973, recognizes the inherent powers of the High Courts to make
such orders as may be necessary to give effect to any order under this Code, or
to prevent abuse of the process of any Court or otherwise to secure the ends of
justice.
2.
Some of the landmark rulings of
Apex Court which illustrate the scope and powers of High Courts to grant relief
under this jurisdiction.
Para 18: In State of Haryana &
Ors. (appellant) v. Bhajan Lai & Ors. (respondents) [1990], this
Court after referring to various decisions of this Court, enumerated various
categories of cases by way of illustration wherein the inherent power under
Section 482 of the Code should be exercised by the High Court. They are:
(1) Where the allegations made in the first information report or
the complaint, 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 accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable offence; justifying
an investigation by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same; do not disclose
the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of a Magistrate
as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint 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 for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to spite him due
to private and personal grudge."
3.
In Som Mittal
v. Govt. of Karnataka [2008], the Supreme Court, among other things, said, when
it is brought to the notice of the Court that grave miscarriage of justice
would be committed if the trial is allowed to proceed where the accused would
be harassed unnecessarily if the trial is allowed to linger when prima facie it
appears to Court that the trial would likely to be ended in acquittal. In other
words, the inherent power of the Court u/s 482 of the Code of Criminal
Procedure can be invoked by the High Court either to prevent abuse of process
of any Court or otherwise to secure the ends of justice.
4.
In R.P. Kapur
v. State of Punjab [1960] this Court summarized some of the
categories of cases where inherent power should be exercised to quash a
criminal proceeding against the accused, stating:
(i) Where it manifestly appears that there is a
legal bar against the institution or continuance e.g. Want of sanction;
(ii) Where the allegations in the first
information report or complaint taken at its face value and accepted in their
entirety do not constitute the offence alleged;
(iii) Where the allegations constitute an offence,
but there is no legal evidence adduced or the evidence adduced clearly or
manifestly fails to prove the charge.
5.
The inherent
powers of the HC is a wide and wholesome power. If the court has to examine and
determine whether the continuation of criminal proceedings would be just or
would be improper, there is no reason why there should be any limitation on the
powers of the court to look into all the materials available on record. There
is nothing in law to place any such limitation on the powers of the HC.
Surendra Kumar Yadav versus State of Bihar – [1989 Patna HC].
In the case of State of Bihar vs. Muradali Khan
and others, the Apex Court held as under [1989] …..When an information is
lodged at the police station and an offence is registered, then the mala fides
of the informant would be of secondary importance. It is the material collected
during the investigation and evidence led in court which decides the fate of
the .accused person. The allegations of mala fides against the informant are of
no consequence and cannot by themselves be the basis for quashing the
proceeding. [See Dhanalakshmi v. R. Prasanna Kumar, State of Bihar v. P.P.
Sharma, RupanDeol Bajaj v. Kanwar Pal Singh Gill, State of Kerala v. O.C.
Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada,
SatvinderKaur v. State (Govt. of NCT of Delhi), Rajesh Bajaj v. State NCT of
Delhi and State of Karnataka v. M. Devendrappa.]" (emphasis supplied).
IN THE HIGH COURT
OF JUDICATURE AT _________
CRIMINAL APPELLATE
JURISDICTION
CRIMINAL
APPLICATION NO. _________OF 20__
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 / Impugned Order rejecting
or allowing Section 156(3) Application / Impugned Order of rejection of
Application made u/s 313 of the CrPC, 1973 / Impugned Order of dismissal of
Complaint u/s 256 CrPC, 1973 / Improper framing of charges / Any other
serious irregularity in the conduct of
the trial resulting in serious prejudice to the accused thereby
(Full
title)
_______________ …..Applicants
(Original Accused / Complainants)
Versus
(1) The
State of Maharashtra
(2)
________________ …..
Respondents
(Resp
No.2 being the Original Accused / Complainant)
THE HONOURABLE CHIEF JUSTICE
AND OTHER PUISNE JUDGES OF
THE HONOURABLE HIGH COURT
OF JUDICATURE AT _________
THE
HUMBLE APPLICATION OF THE APPLICANTS ABOVENAMED
MOST RESPECTFULLY SHEWETH.
1.
A very brief introduction of
the parties to the case.
2. The brief facts of the case which are germane to the present controversy, are –
(a) The
Applicants state that
(b)
(c)
(d)
Being aggrieved by the
aforesaid impugned Order dated ______ Applicant invokes the inherent jurisdiction
of this Hon’ble Court recognized u/s 482of CrPC, 1973, on the grounds set out
hereinafter.
3.
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.
Where in case it is argued that the allegations made in the F.I.R.
/ Application 156(3) / Complaint 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.
Similarly, with the aid of said table of offences, it may be
demonstrated that the acts and omissions attributed towards the present
Applicants have clearly made out a strong case; and the Impugned Order
rejecting Section 156(3) Application is patently unsustainable.
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.
Other
submissions, if any.
6. 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) __________________.
7. Grounds for Relief: (as may be applicable
to the facts of the case) –
8. The
Applicants submit that there has been no delay in preferring this Application.
9. Jurisdiction Clause: The
Applicants state that the impugned Order is passed by______ at ______Court at
_____;. 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.
10. 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.
11. The
Applicants, with the leave of the Hon'ble Court, be allowed to add / amend /
delete any clause in the present Application.
12. The Applicants therefore, most
respectfully pray as under –
(a) That
the impugned Order __________ be quashed and set aside;
(b) That
during the pendency of the present Application, execution of impugned Order
dated _______ and proceedings _________
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
A
quick look at the Procedure
1.
General
check-list before filing / Institution of Application
2.
Urgent
Hearing of Application, if any preferred by the Applicant, for obtaining
Interim / Ad-Interim Relief;
3.
Refusal or
grant of Interim / Ad-Interim Reliefs by the Court;
4.
Dismissal of
Application or 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
- Whether
Exhibits are annexed as per the averments made;
- Whether
legible / readable copies of Exhibits are annexed;
- 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;
- Endorsement
as true copy to the Exhibits; and name of the person /advocate declaring
it to be true copy;
- Prefix
Mr./ Mrs.? Not permitted
- Copy
of Impugned Order annexed, if any
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