ashok kumar (Social Worker) 07 January 2015

Trial u/s 138 nia & section 251 crpc

Trial u/s 138 NIA & Section 251 CrPC

After service of Bailable Warrants, the accused appears, and is granted bail but is not told the substance of the charge by the Court. The accused (with the aid of experienced lawyers) starts o playing game with the process and even after 30 hearings the Court could not make him to hear the substance of the charge (despite the fact that he always appears in the Court). This is done by filing repetitive applications in piece meal. Examples:

1.First the cognizance order is challenged (Which naturally gets dismissed with costs).

2.Now the accused presents an application to the Court for quashing the complaint (This according to the accused is not the same thing as quashing the cognizance). In his application he seeks a reply from the complainant. The complainant refuses to give any reply (to this absurd application) and asks the Court to decide it on its own.

3.Now the accused presents another application praying to the court to direct the complainant to file a written reply.

The Court dismisses the application at Srl No 3 & 2 both with heavy costs with heavy costs

4. The accused files another application with the Court urging the Court to review its decisions. The Court dismisses the application at Srl No 3 & 2 both with heavy costs with heavy costs

5. Now the accused files another application requesting the court to discharge the accused u/s 251 CrPC

With all these applications the accused manages to scuttle the process of Court and avoid the stage of the substance of the charge to be recited to him

QUERIES

1.The accused is not paying the costs awarded which have totalle dto Rs 8000/- and the Court seems helpless. What is the remedy available to the complainant in these circumstances?

2. Can in summons trial the Court hear application for discharge by the accused in NIA cases?

3. Chapter XX of the Code does not provide for any procedure like discharge in summons Trial. So how can a Court entertain such an application??

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3 Replies

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com) 09 January 2015

1) Cognizance order can be contested only in revision.

2) However quashing application is legal since its objective is entirely separate . It seems that the accused advocate is not mature to contest it properly..However such applications should not be named QUASH but dropping of the complaint case. Rejection may be due to naming the application as QUASH.

3) There is no specific provision in the CRPC about what should be done if costs are not paid , its effect can be incorporated in final order..

4) Apex court has time and again stated in various judgments that the cheque law is a legal fiction and hence it has to be followed strictly. Any lapse goes in favor of accused..

5) There are more opportunities for accused to win but in hurry to come out many defense advocates give admissions in various applications and hence make the task of complainants easy.

R Trivedi (advocate.dma@gmail.com) 10 January 2015

Mr. Maru

2. Under which provision complaint can be dropped under S.138 once the accused makes his presence? Pl inform.

3. The party has to honor the order of cost, otherwise it can even be taken under contempt of court even suo moto by the Hon Court.

4. Can you please elaborate what is legal fiction?

Mr. Ashoj Kumar

Court has the power to dismiss the application in limine.....framing of charge and the bail part is done on the same day......Your Q 5 is confusing, if he has not been formally charged, where is the question of discharge ?? In fact cases under S.138 are summary in nature and a formal charging may not be necessary...and there is no provision under S.138 to hear the accused beyond Guilty/No Guilty plea/Compromise application at the starting.