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LP11 TEMP2 482
APP RESTORATION RW 256
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
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, if any
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