• Is it purely between the complainant and the court

Errors in cognizance order.. rectification:
1. I am the sole complainant in a CC. cognizance order passed..
2. it is not thro FIR route.no police enquiry,. sworn stmnts and arguments , were done, before cognizance.
3. in the cognizance order, the JMFC omitted to list certain punishment provisions.
4. the commission of those offences , were well brought out in the complaint, but in the prayer clause, my advocate , did not mention , those punishment provisions, like 364 A for kidnapping, even though, the offence of kidnapping was brought out in the complaint. that faily advocate, was from civil law background., nor adept in criminal matters
5. a memo was put to jmfc to add those provisions. he rejected.
6. now the matter is in HC. 
7. some friends say, that, we have to raise, the valid point that, cognizance and rectification, therein, are a matter, purely between the complainant and the court and hence, even though, accused have counsels, in HC, they have no right to interfere. the accused have no right of being heard, at this stage..
just like, no right till cognizance stage, hence, no right in cognizance rectification stage ..
8. is that position of law correct ?
9./ where it is laid out ?
10 any citation on the point ?
one shyamsundar sinha v. state of bihar , is on the point, 
but it does not lay down that, the accused have no right of being heard here..
11. pl advise, how to sail across in the HC
Asked 12 days ago in Criminal Law from Bangalore, Karnataka
Religion: Hindu

1. Well, the supreme court has made it clear that whenever any order of Magistrate is challenged before the sessions court or the high court, the service of notice upon the accused person is mandatory.

2. This position is applicable even when congizance was even refused to be taken by court.

3. in your case the congnizance is taken and hence under no circumstances you can avoid making the accused persons party to the revision filed in the high court.

Devajyoti Barman
Advocate, Kolkata
17824 Answers
253 Consultations

5.0 on 5.0

1. See this ground can be taken though high court may on its discretion provide them opportunity to be heard. See you can contest based on allegations and the sections were not added high court may on same shall pass order though it might provide opportunity to accused to hear them out still can reject there arguments at this stage.

 

Shubham Jhajharia
Advocate, Ahmedabad
19398 Answers
76 Consultations

5.0 on 5.0

Dear Sir,

The advise given to you is correct. It is common sense that no cause of action arise for the accused unless the court issues summons to accused for their appearance. Till then the issue is  between court and the complainant. More advise on seeing the papers.

Kishan Dutt Kalaskar
Advocate, Bangalore
4440 Answers
112 Consultations

5.0 on 5.0

No it's illegal. Accused has full right to be heard and he is innocent till proven guilty. 

Prashant Nayak
Advocate, Mumbai
12963 Answers
23 Consultations

4.6 on 5.0

At post cognizance stage and accused not summoned, accused has no right to be heard or objected. And at the preliminary stage, amendment of complaint will not prejudice the trail.

 

Yogendra Singh Rajawat
Advocate, Jaipur
13251 Answers
18 Consultations

4.6 on 5.0

Yes the accused have no right to present their case before serving of notices after cognizance by court. 

But accused have right to present them in the petition for amendment of charge after cognizance.

Mohit Kapoor
Advocate, Rohtak
3599 Answers
1 Consultation

5.0 on 5.0

The accused has not yet entered into the cse i.e., no summons sent to him by the trial court after passing orders in the private complaint filed before it.

hence  the accused may not be notified by the high court also in this regard in yor revision petition before high court.

 

T Kalaiselvan
Advocate, Vellore
56755 Answers
706 Consultations

5.0 on 5.0

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