• Criminal review appeal filed against NC

My lawyer has filed criminal review appeal under section 397 against the order passed on 22/05/2017 in non-cognizable offence filed against me, for the incident on 15/05/2017 under section 324 and 504 of IPC by Taluka executive magistrate and also requested for stay order. 
 Taluka executive magistrate has issued notice to me on 22/05/2017 for enquiry under section 107 of crpc and obtain security bond u/s 116(3) of Crpc . I have given security bond to him on same day and he started the monthly attendance process for both me and opponent who is lawyer by profession and my real brother, as I have first filed NC against him for assault on me on 15/05/2017 and later on to counter it opponent has filed fake NC against me same day. Also because of injuries caused to me due to assault by the opponent police has sent me for medical.
 Now as NC filed against me is fake I have filed criminal review appeal under section 397 against the order passed by the Taluka executive magistrate in this NC. But now as I have already given security bond in this case and since more than 4 months has passed in the case, session court has not given stay to me. Opponent lawyer has given say that as I have already given security bond so there is no question of stay order. Opponent has not filed any appeal against the NC filed on him. Please let me know what action my lawyer should take to get stay order and run the case further and provide case laws supporting that.
Also I am thinking of filing case against opponent for assault on me and my wife with JMFC as actually FIR should have been filed against the opponent but due to pressure from police saying that opponent will also file fake FIR against me , they forced me to file NC and also they filed NC against me. Again if I file criminal case against the opponent who is also lawyer, I am sure that he will also file similar case against me to counter my case. Let me know what action I can take in this case, as opponent is making wrong use of his profession?
Provide answer to below questions,
1. Can I get stay order in the review appeal filed by me , if yes how and provide supporting details .
2. Can my opponent file criminal case against me if I get stay in the NC filed against me and I decides to file criminal case against him now , police and Taluka executive magistrate?
3. Within how many days I can file criminal case against the opponent?
4. Taluka executive magistrate has started monthly attendance for me , is it necessary to attend ? If I don’t attend what action he can take as my lawyer is saying there is no need to attend as I have already given security bond.

Thank you.
Asked 8 years ago in Criminal Law
Religion: Hindu

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11 Answers

1. Since you have already submitted to the jurisdiction of the Magistrate and complied its direction by furnishing personal Bind there Revision does not have any merit at all and it is now an empty formality.

2. Getting stay is discretion of the court and not right of the accused person. if any case is filed it is decided as per its merit and at this stage nothing could be said on the merit of the future case.

3. 90 days.

4. You can apply for relaxation of this condition in the revision court itself by filing a separate application.

Devajyoti Barman
Advocate, Kolkata
23655 Answers
537 Consultations

1. Since you have already submitted to the jurisdiction of the Magistrate and complied its direction by furnishing personal Bind there Revision does not have any merit at all and it is now an empty formality.

2. Getting stay is discretion of the court and not right of the accused person. if any case is filed it is decided as per its merit and at this stage nothing could be said on the merit of the future case.

3. 90 days.

4. You can apply for relaxation of this condition in the revision court itself by filing a separate application.

Devajyoti Barman
Advocate, Kolkata
23655 Answers
537 Consultations

1)police should have registered on basis of complaint lodged by you of assault

2) you can always file private complaint before magistrate under section 156(3) cr pc to direct police to investigate and submit report

3)you would not get stay order in review appeal filed by you as you have already complied with the order

4)your opponent is always at liberty to file counter case against you

5) file criminal case at the earliest

Ajay Sethi
Advocate, Mumbai
99790 Answers
8147 Consultations

The revision does not have any considerable merit now and is bound to fall considering the fact that you have already appeared before the magistrate.

I can not comment on the case which has not been filed yet, but yes getting stay is not your right but the discretion of the court, though your opponent can not file a case on the basis that you got a stay.

Regards

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

There is no time limit for filing a criminal case, you just have to show your bonafide and if there is a considerable delay then you just have to explain the reason. You complaint must not smell of some afterthought.

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

1. It is a Criminal Revision, not a review appeal filed by you. A stay order can be granted if you prima facie show that the order of the magistrate is wrong.

2. Getting a stay order from the court does not preclude your opponent from adopting his legal remedies against you.

3. If you have a cause of action against your opponent then you may immediately file the case against him.

4. Unless the order of taluka magistrate is stayed by the Sessions Judge you have to comply with it.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

It is advisable to attend

2) give your say in writing

3) magistrate has given oral directions to give your say in writing on next date

4) there is no harm in doing so

Ajay Sethi
Advocate, Mumbai
99790 Answers
8147 Consultations

You are required to attend, if the Taluka executive magistrate has started the monthly attendance, if you fail to attend either personally or through your advocate the Taluka executive magistrate is at liberty to cancel the security bonds.

If nothing has come up on the order sheet then there is nothing to worry even if you do not give your reply.

You may also take note of the following advise, if in case you want the case to linger on

However in my advise you must prepare your reply and take it in the court and if the court insists much to submit the reply then you should submit the reply otherwise keep it with your self and take time to submit it on the next date.

Regards

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

What is the stay you are trying to take from court and against which order or which proceedings?

Have you filed a petition under section 397 in the sessions court, if so what was the grounds and what is the disposal?

1. Can I get stay order in the review appeal filed by me , if yes how and provide supporting details .

You have stated that you have filed review petition but what is the grounds or reasons for stay and against what?

This review if it is against the fake NC, what is your problem with this ANC if it has not been taken on the file of any court yet? If there is no action yet on that NC where is the reason for stay of operation any order which has not been passed yet?

2. Can my opponent file criminal case against me if I get stay in the NC filed against me and I decides to file criminal case against him now , police and Taluka executive magistrate?

You cannot obtain stay for a case yet to be filed, You can obtain stay only if the criminal case is put before court for trial.

3. Within how many days I can file criminal case against the opponent?

What is the reason for filing a criminal case and why have you not yet filed any criminal complaint against the opposite party if there was any injustice or illegal activities carried out against you, any delay in filing a criminal complaint will weaken the complaint and may be considered it as an after thought action.

4. Taluka executive magistrate has started monthly attendance for me , is it necessary to attend ? If I don’t attend what action he can take as my lawyer is saying there is no need to attend as I have already given security bond.

What is the monthly attendance action and whether it wa a condition imposed while delivering any judgment, if so then you cannot violate the condition by not attending the same on your own, it will be an offence.

T Kalaiselvan
Advocate, Vellore
89992 Answers
2495 Consultations

Taluka executive magistrate has started monthly attendance for me , is it necessary to attend ? If I don’t attend what action he can take as my lawyer is saying there is no need to attend as I have already given security bond. Also on next date he has told to give my say in writing about this as he want to enquire further as he seems intimated because I have filed review appeal against his order in sessions court. Do I need to give my say in writing to him as he has not given anything in writing about this to me?

First of all be clear whether it was taluka executive magistrate court or judicial magistrate court.

It should be the judicial magistrate court, am I right?

Since the matter is before court and you have been imposed condition while granting bail, you have to comply by the orders to attend the court, dont get carried away by your advocate's words, your bail may be cancelled if you dont comply with the conditions imposed.

If your review petition is not considered or the stay has not been granted, then you may have to attend the trial before the court. If you dont, then the trial court may issue a non bailable warrant.

T Kalaiselvan
Advocate, Vellore
89992 Answers
2495 Consultations

1. As I said before, unless the order of magistrate is stayed by the Sessions Judge you have to comply with it,

2. If surety bond is an alternative for the attendance then you do not have to appear.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

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