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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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