• Abuse of Section 410 of CrPC

Sirji,

Wife was allowed ex-party-interim Order u/s.12, 18 and 19 of DV Act against two Respondents in Oct. 2016

These Respondents breached the ex-party Order

On 22-10 
Both Respondents approached High Court u/s.182 of CRPC BUT stay was Not granted since last 3 months and the application is pending N. Date is [deleted] 

On 24-10
Both Respondents had already approached Session Court u/s. 29 of DV Act

On 9-11- Wife filed Contempt petition u/s. 31 of D.V. Act against both Respondents. 

On 25-11 Stay application was Rejected by Session Court but Appela is pending and Next date [deleted]

Wife filed an application that Session Court should not be silent spectator while order of lower court is being violated with impurity and made prayers therein to direct the both Respondents to comply with lower court’s order

Session court though rejected the above Application but observed that it has already rejected the stay application and hence Wife is free to execute the ex-party order as specified in DV Act before the Magistrate 

Then, after rigorous labour the Respondents were caught and they were released by Magistrate on Bond with direction to comply with ex-party Order on or before [deleted] and accordingly Next Date is [deleted] 

Now,
One Respondent (Not both) approached CJM u/s. 410 of CR. P.C. who called R & P from Magistrate Court and next date therein is [deleted] 

Summary
?	In contempt Petiiton u/s. 31 of DV Act next date is [deleted] 
?	In T.P. u/s. 410 of CRPC filed by only Respondent is [deleted] (R & P is lying with CJM) 

Then in above situation :-
How the ex-party-Order can be executed on [deleted] 
Kindly Guide
Regards
Asked 7 years ago in Criminal Law
Religion: Hindu

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7 Answers

Under section 410 of crpc Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.

2) during hearing of contempt petition draw attention of HC to wilful refusal of Respondent s to comply with trial court order

3) mention that Respondent has adopted dilatory tactics to circumvent orders of trial court

4) although stay application has been dismissed by sessions court yet Respondent has not complied with court orders

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

1) wife can request CJM to take the matter on board on 21st februrary 2017 and mention that she has no objection for case being tried by another magistrate

2) however it is doubtful that CJM would pass orders on said date only

3) wife can press for continuing the contempt proceedings against husband

4) dont press for arrest . objectiove should be to obtain compliance of trial court order

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

1. Try to adjudicate the transfer case asap.

2. however beofre any order is passed in such case there is in restraint for the Magistrate to proceed with the execution case for implementation of the interim order. The court even issue W/A for non payment of interim order even though the transfer case is pending.

3.The CJM has nothing to do with the execution case or arrest warrant.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1) CJM being overburdened with cases may not pass orders on 21st instant

2) other respondent can be called upon to comply with exparte order

3) you can approach sessions court to ditect CJM to pass orders

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

The provisions of section of 410 Cr.p.c. is given below:

410. Withdrawal of cases by Judicial Magistrates.

(1) Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.

(2) Any Judicial Magistrate may recall any case made over by him under sub- section (2) of section 192 to any other Magistrate and may inquire into or try such case himself.

Therefore under the above provisions, one of the respondents has filed a petition and the same is coming up for hearing on a different date.

However since there is no stay on the execution of the orders passed by the trial court there is no reason to ask this question "How the ex-party-Order can be executed on [deleted] "

The wife/complainant can proceed, let the respondent appear before court and express his submissions before court in this regard, the complainant side should argue that there is no stay and also the respondent is trying to drag on the issue with one or the other application hence the matter may be decided in her favor, let the trial court may decide the matter accordingly.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

The matter before the CJM court is posted on a different date whereas the contempt petition and date of execution is posted on a different date.

The wife can contest the petition under section 410 cr.p.c. before CJM court accordingly on the basis of merits in her side.

Do not mix up this with the other pending case.

(IF NOT ABLE TO UNDERSTAND MY ENGLISH, KINDLY INTIMATE, I WILL RE-WRITE)

You are repeating the same question in a different form at few places,

The simple answer to all your question is that she can go ahead with the contempt petition as well as execution petition without any problem since the respondent has not been granted any stay in those cases, if he has approached CJM court with another application under section 410, that can be dealt with separately by the wife as a respondent to that and record her strong objection to it and contest the same on merits.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Can the CJM delay proceedings of such executable Order ?

CJM court has not passed any order on this orders passed by the sessions court. In fact CJM has not passed any order in the case before it also, so what is your question.

Further please note that I had mentioned in my Original Question that only one Respondent (out of two) has preferred the Application u/s. 410 of CRPC, then why the other Respondent be allowed to not to comply with the said ex-party-order either before the same Magistrate or any new Magistrate but on same day on [deleted]

You can raise this point also before the trial court and add strength to your case on this basis.

Further and lastly If the CJM does not agree to proceed the matter on [deleted] then where should I approach for direction to CJM either Session Judge or H.C. u/s. 482 of CRPC

The matter before CJM court is oposted on 24.2. 2017, whereas the matter before the trial court is posted to 21.2, hence why do you bother about CJM court matter on 21.2. itself.

The matter before sessions court and the CJM court will take its own course, you may follow up the same with the same courts till they are disposed.

Filing petition under section 482 cr.p.c. before high court would become a waste of time, energy and money, especially at this stage, however you may consult and discuss with your advocate at length on all such further issues.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

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