Criminal appeal or revision grounds
Your Honour,
The FIR was registered by police on IPC 498a, 506(i) r/w DP act 4 on my spouse complaint. Further The charge sheet was levied on 406, 498a IPC and Calendar case was taken by Judicial magistrate II and issued the process of summon. I presented the Defense witness u/s. 315 Cr.P.C in the case proceedings. I said in my defense that the chain and ring was given by spouse brother at the time of bridal procession, but i do not know whether it is gold! or how much it weighs! Further stated the same chain and ring was returned to Spouse on oilbath occasion and it was not in my dominance. The Judgement was pronounced, acquitting 498a IPC but the sentence of fine Rs.2000/- on 406 IPC. I was given option (high sentence, low sentence or fine) by the court under 248(2) crpc to plead on sentence, I paid the fine. The sentence on 406 IPC was relied only upon the PW1 - Spouse, PW2-Spouse Father and PW3-Spouse Mother Deposition. There is no document evidence for their claimed jewels given to me, has been produced to court by prosecution. Even though court consider that the prosecution proved on 406 IPC beyond the reasonable doubt and convicting me on 406 IPC with fine only. I feel aggrieved by Judgement since this is my first criminal record will be blackmark and social stigma for my entire life and it will affect my career and Ph.d perusal. my spouse intention is malafide to achieve ulterior motive.
Question:
1. Whether it is possible to file Criminal appeal memo in session court allowable, since i paid the fine?
If answer for question(1) is yes, on what grounds i can Plead for reexamination of judgement. If answer for Question(1) is No, what is the thing i have to do?
2.Whether it is possible to file Criminal revision memo in High court allowable, since i paid the fine?
If answer for question(2) is yes, on what grounds i can Plead for review of judgement. If answer for Question(2) is No, what is the thing i have to do?
Kindly give your suggestions and to make an effective solution for the above issue. Thanks and Regards.
Asked 7 years ago in Criminal Law
Religion: Hindu
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12 Answers
1. You should not have paid the fine if you wanted to challenge the conviction. It seems that you acted without or despite a lawyer. Although the fine amount can be refunded if the conviction is set aside by the higher court, but it will be an uphill task to have the appeal adjudicated on merits now. Revision may be filed only if the court has passed the order without considering the evidence on record.
2. Your lawyer alone can decide the remedy to be adopted after a threadbare perusal of the order.
Advocate, Jaipur
30763 Answers
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From your answer, it is not possible to have appeal admission on merit, is it sir?
Only any evidence consideration left by judge, only lead to revision, is it sir?
If both appeal and revision is not possible, what will be the consequence on 406 IPC sentence on fine lead to any catraspohic criminal record which haunt my life in future how sir? Any remedy available.
I have regards for advocate profession. I always admire them for fighting for justice, when I read my history and civics subject in school, I thought that justice will be given for a common man too. But reality is upside down. Due to delay, boycott and courtesy among advocates, cases are adjourned for long time but accused concern is justice and relief.
Asked 7 years ago
From your answer, it is not possible to have appeal admission on merit, is it sir?
Only any evidence consideration left by judge, only lead to revision, is it sir?
If both appeal and revision is not possible, what will be the consequence on 406 IPC sentence on fine lead to any catraspohic criminal record which haunt my life in future how sir? Any remedy available.
I have regards for advocate profession. I always admire them for fighting for justice, when I read my history and civics subject in school, I thought that justice will be given for a common man too. But reality is upside down. Due to delay, boycott and courtesy among advocates, cases are adjourned for long time but accused concern is justice and relief.
Asked 7 years ago
1. It is difficult to have the appeal admitted but you can go for the revision, subject to the reasoning or lack of it in the court order.
2. Your approach seems to be theoretical and a far cry from the practical reality. Look justice is an expression that has a subjective meaning. What is justice for one is injustice for the opposite party in a legal proceeding. The court below has held you guilty of one offence, and acquitted you of other. Isn't there injustice for your spouse as the court has acquitted you of 498A? There may be delays in the courts and there may be strikes by lawyer but when there are no strikes the lawyers give put their heart out in the legal representation of their clients.
Advocate, Jaipur
30763 Answers
972 Consultations
Appeal against conviction -- under Section 374 of Code
2) Section 374(1) relates to a right of appeal of a convicted person, on a trial held by a High Court in extra- ordinary original criminal jurisdiction, to the Supreme Court. Section 374(2) vests, a right to appeal to High Court, in a person convicted, on a trial held either by a Sessions Judge or Additional Sessions Judge or by any other Court in which the imprisonment for more than seven years has been passed either against him or against any person convicted in the same trial, whereas Sub-Section (3) of Section 374 provides that any person, convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of 1st Class or Second Class or sentence under Section 325 Cr.P.C. or in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to Court of Sessions.
Advocate, Mumbai
94695 Answers
7527 Consultations
Section 376 bars filing of appeal in petty cases. For instance, where a Court of Sessions or a Metropolitan Magistrate passes a sentence of imprisonment for a term not exceeding three months or of fine not exceeding 200 rupees or of both, imprisonment or fine, no appeal is provided under the Code. In such cases, the informant or the complainant can take recourse to only the revisional power under Section 397 and 401 of the Code. This is only by way of an illustration. The other instances, wherein no appeal is provided in petty cases, are mentioned in Section 376 itself, which we quote hereinbelow:
"376. No appeal in petty cases.- Notwithstanding anything contained in section 374, there shall be no appeal by a convicted person in any of the following cases, namely:-
(a) where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees, or of both such imprisonment and fine;
(b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine;
(c) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred rupees; or
(d) where, in a case tried summarily, a Magistrate empowered to act under section 260 passes only a sentence of fine not exceeding two hundred rupees; Provided that an appeal may be brought against any such sentence if any other punishment is combined with it, but such sentence shall not be appelable merely on the ground-
(i) that the person convicted is ordered to furnish security to keep the peace; or
(ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or
(iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount hereinbefore specified in respect of the case".
Advocate, Mumbai
94695 Answers
7527 Consultations
1. Whether it is possible to file Criminal appeal memo in session court allowable, since i paid the fine?
If answer for question(1) is yes, on what grounds i can Plead for reexamination of judgement. If answer for Question(1) is No, what is the thing i have to do?
You can prefer an appeal before the sessions court seeking justice on the basis of the aggrieved judgment by the trial court.
2.Whether it is possible to file Criminal revision memo in High court allowable, since i paid the fine?
If answer for question(2) is yes, on what grounds i can Plead for review of judgement. If answer for Question(2) is No, what is the thing i have to do?
You are entitled to file an appeal hence there is no necessity for criminal revision before high court. You can get remedy in the district sessions court itself.
Advocate, Vellore
84896 Answers
2190 Consultations
Your honour, I applied for revision at high court get a direction of appeal to be followed. Engaged a learned counsel for appeal, it was allowed and conviction set aside and fine refunded order passed. marriage past 3 years, losing job, money and relation, running from pillar to post to have justice. Still not able to get out from the trauma and not able to secure handsome professional job since age criterion as 34 years Old. Looking for all avenues to secure job trying abroad, exams...still unemployed.
In trial court, 498a acquittal based on not proven by prosecution and 406 conviction based on proved beyond reasonable doubt by prosecution. In appeal court, 406 was acquitted based on pw1 spouse accepted in her chief examination itself that during the period of 12 days of marriage, pw1 lived with her husband accepted that streedhan was with her and also corroborated evidence of pw2 aunt stated the same and hence it is not right to convict the husband on 406 ipc. I believe in a concept that no spouse will try to tear apart or to see his/her spouse get punished, if she/he try to live together. In my case after giving 3 year time gone to ponder on the understanding of relationship by me. I know my spouse is not going to return to have a peaceful life. My query,
1. Whether the not guilty verdict on 498a and 406 by appellate court implies whether the case comes under which category of acquittal such as false case or not proven or insufficient evidence?
2. If I am not applying for divorce for my entire life span, whether any legal proceeding can be initiated by spouse in future? This question is mainly due to moral thought as one man one woman and unaware of my future course of life.
3) At this stage of criminal case end, what are the legal precaution or any suggestion from your side to have a peaceful life in future.
Asked 6 years ago
It is necessary to peruse the order passed by HC in revision
2) not guilty would imply false case is filed against you
3) wife can seek maintenance from you
4) file for divorce by mutual consent
Advocate, Mumbai
94695 Answers
7527 Consultations
1. The court acquitted the accused.
2. If the marriage has not been dissolved by a decree of divorce then you both will be treated as legally wedded couple till then.
3. If you don't allow her to return or rejoin you then you can avoid further harm or destruction.
Advocate, Vellore
84896 Answers
2190 Consultations
Your honor, I approached an advocate and send a legal notice to my spouse residence address stating the facts of her cruelty met out by me due to her legal harassment by prosecuting on 498a, 406 ipc and its acquittal. Further my advocate stated in legal notice saying that mutual divorce concern was asked to dissolve the marriage between us further if no reply received from her side then the relief for divorce will be filed before competent Principal sub court. The legal notice was received by her and RPAD was received but no reply for mutual divorce from her side. Hence My advocate filed the case for divorce on Under Sec 13(1)(ia) HM act in competent Principal sub court and it has been numbered as HMOP petition. Meanwhile my father was expired. The HMOP petiton came for first hearing after filing of three months. Daily order as "Respondant notice NR from xxxx. At request issue fresh notice to respondant through court and post by 20.12.2018. Batta in a week. Private Notice is also permitted.". I talked with my advocate he told that he will take care. On the date of 20.12.2018 2nd hearing, Daily order states as "Fresh notice batta not paid. At request issue fresh notice to respondent through court and post by 19.3.19. Batta in a week. Private notice is also permitted." I came to know from above daily order the case entrusted to clerk by advocate was not paid Batta and Private notice was not sent. This time i taken personal care through advocate and filed batta and private notice served. Yesterday we received back private notice envelope stating as "Absent Intimation delivered. Party left without instruction returned to sender" My Query 1) I have to get a reissue of passport on this month, while applying, the martial status option was 1) married 2) separated shown. which one i have to choose? since i do not wish my spouse name in my passport 2) I think my spouse evading the process of service, what can be done through advocate to issue her notice in time? Regards
Asked 5 years ago
1) select option separated
2) if summons cannot be served upon wife applied for substituted service ie paper publication in 2 local newspapers
Advocate, Mumbai
94695 Answers
7527 Consultations
Since your marriage is not dissolved yet, you cannot show single status, you may have to mention as married only.
If you do not want your spouse name to be mentioned in the passport you may postpone the renewal of passport for now and wait until your divorce case is disposed.
If she is evading the service of summons, you may ask your advocate to reque3st the court to permit you to servethe summons by substituted service of summons by publishing the same in local newspaper, after which you can get exparte divoce if she is not turning up.
Advocate, Vellore
84896 Answers
2190 Consultations
Your honor, when i visited the girl (dec 2014) for marriage at tirunelveli district, her native is tiruvannamalai district, marriage happened (jan 2015) in villupuram district, she lodged criminal case (2015) on 498a 406 ipc from chennai address. when i went to high court madras on writ to dispose the criminal case for speedy trial it was allowed then trial and appeal and further acquittal (years 2015 to 2017). while serving the summon on writ(year 2016), i faced the same situation as facing now on issuing service of summon to her on HMOP. Her election id is in tiruvannamalai district and her driving license id is in tirunelveli, her complaint address is in chennai after searching i came to know chennai address is a address of real estate business company and its owner is her father boss. on writ, her native address "rpad served" and it was taken by her father with "for" signed. remaining tirunelvi address envelope returned as "LEFT RTS" and her chennai address "reached" knowing only tracking post but "no acknowledgement card received". Thus in writ, her native address was served. when chennai complaint transfer to chengam and then to tiruvannamalai for prosecuting. Now in HMOP(2018), i given her native election id address since where she and her parents resides. Please note our marriage exist of 12 days and with no consummation accepted by in her deposition. my query, 1) whether her election id address is sufficent/valid to serve the summon on HMOP? 2) if she evades from the election id address, is it necessary to issue summon to other 3 address through court or private notice(finding whereabout)? 3) whether there is a chance for dismissal of HMOP(2018) under order 9, rule 5 of CPC? 4) whether my advocate is leading me in right direction since he is saying he will take care but not paying batta and not replying to my above queries? 6) As previously suggested, on next hearing, whether i can ask my advocate to request court for paper publication? Thanks and regards
Asked 5 years ago
1. You can send summons to known address, if it is returned undelivered then you can send summons to fresh address and so on.
2. Yes, you can do so.
3. No, why are you apprehending this situation.
4. Your advocate has to follow it up properly.
5. If you suspect your advocate's integrity you may change the lawyer.
6. Yes you can provided you have exhausted all remedies.
Advocate, Vellore
84896 Answers
2190 Consultations
1) you can send summons at her address mentioned in election I’d
2) if summons are not served serve at her other address
3) lawyer should reply to your queries
4) if summons cannot be served apply for substituted service ie paper publication
Advocate, Mumbai
94695 Answers
7527 Consultations
Your honor, Finally i came to know that on june 2019, my wife married before 2015 and cheated a man and then remarried me without my knowledge but i donot have a proof which asked by law. 0)whether my marriage will be annulled? But now my wife married illegally another man (thus cheated and spoiled my life) in another district on nov 2017 after my acquittal from appeal order dated oct 2017 for this i have a proof. I changed my divorce lawyer since for serving private notice he taken 1 year and still not doing his duty, I engaged a new counsel for my divorce proceeding, immediately wife party filed vakalat and not filed counter written statement till date and absent both wife and her lawyer. I had a proof of child birth and police complaint on wife and the undertaking given by her that she accepted illegal marriage and begot child with other man and ready to give divorce and sign divorce paper to me. Hence my undertaking before police not to precipitate the matter since she agreed of illegal marriage and child and for divorce. The Hon'ble judge directed my new counsel to file memo on the same. But on the day of filing memo, judge directed my counsel to proceed for ex-parte on next hearing since memo notice was not served to wife lawyer. The next hearing is on 24/7/19. My Query, 1. What is the duration will be taken for getting exparte decree? 2. Any hindrance is there on getting ex-parte decree in future since wife is not appearing before court? 3) whether notice to ex-parte to be given by my lawyer to wife lawyer within next hearing 24/7/19 is necessary or not, since the Hon'ble judge said for memo notice to be given whether same as to be applied for exparte proceeding? 4) what is my martial status after my divorce whether single or divorced to specify in my passport application or any govt or private application? 6) my petition for divorce on ground of cruelty was filed, now exparte will be given to me on which ground cruelty or desertion or adultery or bigamy?rgds
Asked 5 years ago
1) it should not take more than 2 months
2) since wife is not appearing in court you should not face problems in getting ex parte decree
3) issue notice to wife
4) you are divorced
5) you would get divorce on grounds of mental cruelty
Advocate, Mumbai
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7527 Consultations