• Charge sheet filled summon served accused not appearing even for

1.In my 498 a case ( i am the complainant)against my in laws charge sheet has been filled in jmfc court of karnataka and summon served to the accused already and a state case now. 2.they (accused) have appointed a lawyer in jmfc court applied for anticipatory bail in district court that has been granted with a condition to appear before 30 days in jmfc court for filling up bail bond but accused not appeared a single time till date within stipulated time for bail bond and also giving application through their lawyer under section 205 crpc (residing in Delhi )  every time and now saying that theu can't appear before January 2017 and lower court magistrate also allowing every time not issuing NBW against them,Asst Public Prosecutor not opposing same, as in meantime accused went to high court for quashing under 482 crpc.So based on above facts my question is : 1.As anticipatory bail order passed on 14 September with one month condition to secure bail bond in lower court but they did not turn up till date.what action can be done from my side ? 2.Magistrate always allowing their 205 application and not asking for NBW even after no bail bond filled by them as per provision of AB granted by district court so what action can be taken against the Magistrate as lawyers in the same court saying this magistrate is of no use and always favours accused.? 3.Along side they directly approached high under 482 crpc for quashing and online status is pending for admission,my question is do they get stay order on lower court processding without my presence also in present status I.e pending for admission.?. 4.Generally in high court after how many days stay is granted and in how many days quash petition is decided and even  without my presence that can be decided also ? 5.want to hire a private lawyer of my choice in my 498 a case state case instead of assistant public prosecutar,as he does not seems trustworthy ; if possible what is the procedure ?.6.opposite party are highly influential political class people telling that in court cases run for 15 to 20 years go and fight case first for years.is it true as I am felling very discouraged by their such remarks ?.Please help me as I am fighting hard for justice since begining but now seeing this kind of approach felling should have not filled.
Asked 1 month ago in Criminal Law from Davanagere, Karnataka
Religion: Hindu
Hi
 your presence is needed and you can make objection in the quash petition by appointing a lawyer on your behalf.
quash Petition most likely will not be allowed as you are not agreeable to settle and without your consenting affidavit to withdraw your allegations , it is very difficult to get a favorable order in quash petition.
The magistrate may be taking it for granted  as the accuse d counsel may have informed the court about the quash petition.
 It is normal that after the bail , the exemptions of appearance is allowed on personal or medical reasons. 
The Presence of the accused is compulsory on all date unless there is an exemption allowed by the court.
why don't you appoint a lawyer from your side who can watch over the proceeding  and if needed make objections on such permissions where accused has advantage.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
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1. If the conditions of bail have been violated by the accused then you may apply to the court to cancel his bail. An accused who violates the conditions of bail, betrays the trust of the court, hence his bail is liable to be cancelled 

2. Magistrate has no authority of law to cancel his bail. He will keep on giving dates if you do not apply for cancellation of bail. No action lies against the magistrate for anything done bona fide by him in his official capacity.

3. You are free to, and should engage, your private lawyer to ensure that the accused does not get an escape route. Public Prosecutors are ordinarily clumsy in their work in such cases.

4. You are also free to contest his quashing petition in the HC by engaging your own lawyer. The HC can order the stay on the very first hearing.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) 498A cases take around 10 years ti be disposed of 

2) public prosecutor will be appearing on behalf of the state . You can appoint lawyer ti assist the prosecution 

3) quashing may take over a year to be disposed of 

4) apply for cancellation of AB as accused has failed to comply with conditions laid down by district court 

Ajay Sethi
Advocate, Mumbai
23296 Answers
1220 Consultations
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Dear Querist
My opinion on your queries are as under:

1.As anticipatory bail order passed on 14 September with one month condition to secure bail bond in lower court but they did not turn up till date.what action can be done from my side ?
Opinion: You may file a bail cancellation application before the session court against the accused person for non compliance of the Bail Order Under Section 439(2) of Cr.P.C.

 2.Magistrate always allowing their 205 application and not asking for NBW even after no bail bond filled by them as per provision of AB granted by district court so what action can be taken against the Magistrate as lawyers in the same court saying this magistrate is of no use and always favours accused.?
Opinion: if there is any clause in AB order passed by the Session Court then the court can otherwise not because the Lower court is bound by the Order of Superior Court.
 

 3.Along side they directly approached high under 482 crpc for quashing and online status is pending for admission,my question is do they get stay order on lower court processding without my presence also in present status I.e pending for admission.?.
Opinion: Yes, It may be possible, if High Court Think fit and proper.

 4.Generally in high court after how many days stay is granted and in how many days quash petition is decided and even  without my presence that can be decided also ? 
Opinion: there is no time limit, its depend on the work load of the High Court and it is also depend on the court to issue any notice to you or not.

5.want to hire a private lawyer of my choice in my 498 a case state case instead of assistant public prosecutar,as he does not seems trustworthy ; if possible what is the procedure ?
Opinion: You may appoint/engage a lawyer of your choice but your personal lawyer will assist the APP or with the permission of the court may fight your case.

.6.opposite party are highly influential political class people telling that in court cases run for 15 to 20 years go and fight case first for years.is it true as I am felling very discouraged by their such remarks ?

Opinion: there is no time limit for fighting the cases in Courts, it may more then that.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3535 Answers
130 Consultations
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Scope of Section 24(8) of the Code of Criminal Procedure:
18.Section 24 is a specific provision under Chapter 2 of the Code of Criminal Procedure. Section 24 of the Code of Criminal Procedure speaks about the appointment and functions of Prosecutors. Proviso to Section 24(8) has been inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) with effect from 31.12.2009 which is extracted hereunder: "24(8).The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor: [Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.]" Section 2(q) defines "pleader" as thus:
"2(q) "pleader", when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding"

2) A reading of the said proviso under section 24(8) of the Code of Criminal Procedure would clearly show that the Court concerned can permit the victim to engage an advocate of his choice to assist the prosecution.

3) make application to court in this regard 
Ajay Sethi
Advocate, Mumbai
23296 Answers
1220 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:

1.All of you have suggested to hire a private lawyer in JMFC court but lawyers here say that it is a state case now after filling of charge sheet how it is possible to engage a private lawyer now.? under which section of law or supreme court citation we can file an application for same on it kindly provide me in detail the procedure.?
Opinion: As per section 301/302 of Cr.P.C. there is a procedure for private lawyers, the related judgment is as below:
IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:     20-10-2010

CORAM:

THE HONOURABLE MR.JUSTICE G.M. AKBAR ALI

Crl.O.P.No.21632 of 2010
and M.P.No.1 of 2010

F. Anitha Fathima								   .. Petitioners.

				Versus

State by
The Sub Inspector of Police
All women Police Station
Krishnagiri, Krishnagiri District					   ..  Respondent
 
Prayer:  Petition filed under Section 482 Cr.P.C seeking for the reliefs as stated therein.
	For Petitioner        :   Mr.S.M. Edwin Stanley for 
				        Mr. S.. Ananthanarayanan
	For respondent	   :   Mr.Hassan Mohamed Jinnah
				        APP 

			O R D E R	
This petition is filed, seeking for a direction to set aside the order dated 26.8.2010 in CMP No.3482 of 2010 by the learned Judicial Magistrate No.I, Krishnagiri and permit the petitioner/defacto complainant/victim to engage a counsel of her choice to conduct the prosecution in the above CC No.115/2010 on the file of the learned Judicial Magistrate No.I, Krishnagiri.

2. The petitioner is the defacto-complainant, who gave a complaint for the alleged offence punishable under Secs.498(A), 323, 294(b) r/w 109 IPC. The husband and the relatives of the petitioner are the accused. The matter was investigated by the respondent and on filing of the charge sheet, the learned Judicial Magistrate took the case on file in CC No.115/2010.

3. Pending trial, the petitioner had filed an application under Sec.302 of Criminal Procedure Code to permit the petitioner/defecto-complainant to engage a counsel of her choice to conduct the prosecution of the case in C.C.No.115/2010.

4. The learned Magistrate passed order on 26.8.2010 in CMP No.3482 of 2010 stating that the "Petitioner/defacto-complainant is allowed to engage counsel at her choice and such counsel shall act under the direction from the Public Prosecutor. Accordingly the petition disposed of". Aggrieved by the restricted permission, the petitioner is before this Court under Sec.482 Cr.P.C.

5. Mr.S. Ananthanarayanan, learned counsel appearing for the petitioner would submit that under Sec.302 Cr.P.C, the petitioner/defacto-complainant is entitled to conduct the prosecution by engaging a counsel. The learned counsel relied on a decision reported in 2000 MLJ (Crl) 145 (Shiv Kumar vs Hakum Chand and another), wherein the Apex Court has dealt in detail about the powers of the Court and rights of the defacto-complainant in conducting the prosecution, The Apex Court has held as follows:

" 10. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution, must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused, even if the defence counsel overlooked it. Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor".

6. The learned counsel also relied on a decision reported in 2001 3 SCC 462 (J.K. International vs State (Govt of NCT OF DELHI) and Others, wherein the Apex Court has again held thus:

"12. The private person who is permitted to conduct prosecution in the Magistrate's Court can engage a counsel to do the needful in the court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested he can approach the magistrate and seek permission to conduct the prosecution by himself. It is open to the court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Of course, this wider amplitude is limited to Magistrates' Courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them".

7. The learned counsel for the petitioner also relied on a decision reported in 2005 MLJ (Crl) 404 (Rajesh Kumar Bagmar and Others vs State, wherein the learned single Judge of this Court has held as follows:

"11. In this case also, there was apprehension in the mind of the second respondent that the investigation was not conducted properly and that the Additional Public Prosecutor can only act according to the records and materials gathered during the course of such investigation and therefore, there may be failure of justice. Strengthening the view, one circumstance was pointed out that despite recording the statement from the mother and maternal uncle of second respondent/wife in the course of investigation, they were not included in the list of witnesses on the side of prosecution. Whether the grievance of the second respondent is true or not, the appreciation was shown to be reasonable. It is in that event, the Court thinks that the cause of justice would be served better by granting such permission, the Court would generally grant such permission as was mentioned in J.K. International vs State (Government of N.C.T of Delhi) and others, 2001 S.C.C (Crl) 547. When Sec.302 Crl.P.C permits the conduct of prosecution by the complainant personally or by a pleader and when permission could be granted for that purpose by the Magistrate and when the reasonings are also found convincing, then there is no ground to set aside the said impugned order".

8. The learned Additional Public Prosecutor submits that under Sec.302 Cr.P.C, the defacto-complainant may be permitted to engage own counsel to conduct the trial and they need not assist the prosecution like in Sessions Court.

9. Heard both sides and perused the materials available on record. The Apex Court has rightly pointed out the difference between granting permission to the person interested to conduct the prosecution either by himself or by engaging a private counsel before the Magistrate's Court and engaging a private counsel to assist the Public Prosecutor before the Sessions Court.

Sec.302 of Criminal Procedure Code reads as follows:

"302(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person,other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission.

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader".

10. In 2001 3 SCC 462 (J.K. International vs State (Govt of NCT OF DELHI) and Others, the Apex Court has clearly held that the defacto-complainant can approach the learned Magistrate seeking permission to conduct the prosecution by himself or by appointing a counsel.

11. Therefore, under Sec.302 Cr.P.C, the defacto-complainant may be permitted to prosecute through a counsel of his choice. Once the magistrate thinks that the cause of justice would be served better by granting such permission, the magistrate would generally grant such permission without any restriction. However this should not mean that the role of the Assistant Public Prosecutor is replaced by the person permitted to conduct the prosecution. The role of the such person shall be only to lead evidence when he satisfies the court that the prosecution has omitted examine the material evidence and on such circumstances the court may invoke the power under section 311 or any other relevant provision of the Code.

12. On perusal of the order of the Magistrate, it is evident that the Magistrate has passed such an order keeping in mind, that the role of the e Assistant Public Prosecutor can not be replaced and has said 'shall act under the direction from the Public Prosecutor' thereby, the learned Magistrate has not given any liberty for the counsel to prosecute on behalf of the defacto-complainant. Therefore the role of the person permitted to prosecute either by himself or through a counsel shall be only to lead evidence when he satisfies the court that the prosecution has omitted to examine the material evidence and on such circumstances the court may invoke the power under section 311 or any other relevant provision of the Code.

13. Under such circumstances, the restriction imposed by the learned Judicial Magistrate No.I, Krishnagiri that the Petitioner/defacto-complainant is allowed to engage counsel at her choice and such counsel shall act under the direction from the Public Prosecutor is not correct. The role of such counsel shall be as above said.

14. In the result, the criminal original petition is allowed and subject to the above observation, the restriction imposed by the learned Judicial Magistrate No.I, Krishnagiri in CMP No.3482 of 2010 dated 26.8.2010 is set aside. Consequently, connected MP is closed.


2.Is it possible that without securing bail bond and surities in lower court accused persons are allowed to exempt from apperence under section 205 crpc becuase till date after filling of charge sheet in the court and serving of summons,they had not turned up a single time (District court also mentioned in AB order they must apper on each and every hearing in JMFC but they did not then how can a lower court magistrate may allow such exemption and not isssuing NBW against them then how can we oppose same?
Opinion: without submitting Bail Bond before the lower court as per the direction of Session court, the magistrate can not exempt them from personal appearance. you may file a revision against the magistrate order before the session court or file bail cancellation before the session court U/s 439(2) of Cr.P.C.

3.You all have suggested for cancellation of there Anticipatory bail in district court but my question is what benefit do i get by doing this? as chargesheet is filled and submited in court and police are saying without magistrate order now we cannot go and  arrest the accused now and here magistrate is not issuing any warrant,can police themselves go and arrest now the accused ? or what is the outcome for it please suggest.

Opinion: if the court cancelled their bail then they can be arrest or send to jail due to non granting the bail or they have to file bail application before the lower court.


4.Next hearing is on 05/12/2016 can we appoint a private lawyer in between also so that he can fight our case on 05/12/2016 or the next hearing date only it is possible to hire?
Opinion: its depend on you, at any time before the judgment you can engage a lawyer of your choice who will assist the Prosecution/Public Prosecutor.

5.What is the meaning of pending for admision in High Court ? do they get stay in this stage also or after only admission.

Opinion: It means the quashing petition is not admitted yet by the High Court.

Feel Free to Call 
Nadeem Qureshi
Advocate, New Delhi
3535 Answers
130 Consultations
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.In DELHI DOMESTIC WORKING WOMEN'S FORUM v. UNION OF INDIA AND OTHERS[(1995) 1 SCC 14], the Hon'ble Apex Court was dealing with the legal assistance to be provided to a victim of rape. The Hon'ble Supreme Court in the said case has held that the victim of a sexual assault case will have to be informed by the police about her right to be represented by a lawyer. It is further observed in the said judgment that the complainant is entitled to be provided with the legal assistance of a lawyer who is well acquainted with the criminal justice system. Such a lawyer appointed for the complainant would have to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her both in the police station and in the Court. He also has to provide assistance so as to enable her to get help such as mind counselling or medical assistance. It was also observed that a duty is cast also on the Court upon an application by the police to appoint a lawyer. 
Ajay Sethi
Advocate, Mumbai
23296 Answers
1220 Consultations
5.0 on 5.0
1.As anticipatory bail order passed on 14 September with one month condition to secure bail bond in lower court but they did not turn up till date.what action can be done from my side ? 

Once anticipatory bail has been obtained then they need attend the court until the trial proceedings have began. The discretion to allow a petition  under section 205 cr.p.c. is that of magistrate, you cannot interfere in it. 
There is no condition  imposed in granting bail hence he need appear before court except to get enlarged on regular bail as per the terms of AB.



 2.Magistrate always allowing their 205 application and not asking for NBW even after no bail bond filled by them as per provision of AB granted by district court so what action can be taken against the Magistrate as lawyers in the same court saying this magistrate is of no use and always favours accused.? 

This is your misunderstanding.  
The accused cannot file a petition u/s 205 on each and every hearing, it may a petition under section 317 cr.p.c. 
The bail bond need not be filed before the court, it is actually the court will issue him a bail bond. 
The lawyers who have commented that way may not be aware of the factual or legal position hence this comment may be brushed aside. 



3.Along side they directly approached high under 482 crpc for quashing and online status is pending for admission,my question is do they get stay order on lower court processding without my presence also in present status I.e pending for admission.?.

You will be getting a notice from high court to record your objection in the petition filed under section 482 cr.p.c. by the accused,  that time you can refuse or strongly oppose the petition and can get it dismissed.






 4.Generally in high court after how many days stay is granted and in how many days quash petition is decided and even  without my presence that can be decided also ? 

It depends, if the matter is listed immediately, it can be decided in a single day also.





5.want to hire a private lawyer of my choice in my 498 a case state case instead of assistant public prosecutar,as he does not seems trustworthy ; if possible what is the procedure ?

This is a state prosecuted case hence you cannot engage a private lawyer to prosecute the accused, you can engage the services of a private lawyer for assisting prosecution only.







.6.opposite party are highly influential political class people telling that in court cases run for 15 to 20 years go and fight case first for years.is it true as I am felling very discouraged by their such remarks ?.

All equal before law, nobody is more equal, hence you put a strong fight.
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
5.0 on 5.0
1.All of you have suggested to hire a private lawyer in JMFC court but lawyers here say that it is a state case now after filling of charge sheet how it is possible to engage a private lawyer now.? under which section of law or supreme court citation we can file an application for same on it kindly provide me in detail the procedure.?.

You cannot engage a private lawyer to prosecute your complaint case with the police. 
There is no provision in law for that.
You can engage the services of private lawyer in a private complaint alone. 







2.Is it possible that without securing bail bond and surities in lower court accused persons are allowed to exempt from apperence under section 205 crpc becuase till date after filling of charge sheet in the court and serving of summons,they had not turned up a single time (District court also mentioned in AB order they must apper on each and every hearing in JMFC but they did not then how can a lower court magistrate may allow such exemption and not isssuing NBW against them then how can we oppose same? 

It is not possible for accused to get exemption under section 205 cr.p.c. without surrendering himself and get enlarged on regular bail. 
However if the police is not taking any steps to arrest him even ater registering FIR, then there is n reason that why a petition under section 205 cr.p.c. should not be allowed. 
There is no reason for NBW if he has been properly represented. 






3.You all have suggested for cancellation of there Anticipatory bail in district court but my question is what benefit do i get by doing this? as chargesheet is filled and submited in court and police are saying without magistrate order now we cannot go and  arrest the accused now and here magistrate is not issuing any warrant,can police themselves go and arrest now the accused ? or what is the outcome for it please suggest.

Since the police have filed the charge sheet they may not feel it proper ti arrest the person after the charge sheet has been filed.






4.Next hearing is on 05/12/2016 can we appoint a private lawyer in between also so that he can fight our case on 05/12/2016 or the next hearing date only it is possible to hire?

No, there is no provision in law for this.






.5.What is the meaning of pending for admision in High Court ? do they get stay in this stage also or after only admission.

Admission before high court is that the petition fiied before them is yet to be admitted. 
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
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