whether procedure adopted by Magistrate is against the law?
Sangramsinghrana
(Querist) 12 October 2010
This query is : Resolved
Dear expert,
in a trial of case u/s 384/506 IPC, accused after closed of his defence evidence and before argument has moved seven application u/s 340 Cr.P.C. for intititing proceeding against witnesses etc. for perjury etc. The magistrate beside to place the said applications in the same case file has registered the said application as a seperate case vide seperate number and fixed for perliminary evidence like private complaint and fixed on a date after 2 months of main case and not decided the said applications with the main case, in the main case accused/applicant was convicted against all the legal norms to save the witnesses from the offences disclosed in the applications u/s 340 Cr.P.C. and after 4 months of passing conviction order dismissed the application by helding that applications became infructous even offence mentioned in applications is clearly proved and established. whether magistrate knowingly adopted procedure against the law.
Kumar Krishan Agarwal Advocate
(Expert) 13 October 2010
Move an application from your side for Sec 195 A for threatening the witnesses for making wrong complaint to them which causes prejudice to you in the above case. So dismissed all the applications and pronounce the judgment of the main case.
SURESHKUMAR.S
(Expert) 13 October 2010
Dear friend, in my opinion, however the procedure adopted by the accused side itself is incorrect. Immediately after filing the applications u/s 340 crpc, he ought to have moved for stay the further proceedings of main case, till the disposal of the 340 crpc applications, to save the accused.
But at the same time, we may have an allegation against the trial judge/magistrate in whose before both issues are pending , who ought to have disposed legally ,after giving a fair oppurtunity to the parties.
But at the same time, 340 Crpc procedure is something different, it is just an intimation to the court and the court is the competent authority to initiate action and any party to the proceedings cannot claim that its their right. It is the discretion of the court to initiate,but should be decided judiciously.
We may have an appeal against this and even may get an order (before HC ) for remand and fresh disposal of the cases.
Advocate. Arunagiri
(Expert) 14 October 2010
Please understand your main case is for a different offense. But, during the proceedings the witnesses (if) had given false evidence. The other side can file a petition u/s 340 cr.p.c. before the same X court. On preliminary inquiry (not enquiry) if the X court feels that prima facie for false evidence is there, he can allow the petition u/s 340 cr.p.c. and order for prosecution u/s 193 i.p.c.
But, X court can not conduct trial for the false evidence also, X court should file a complaint to the jurisdictional Y court. That Y court alone can conduct the trial. The presiding officer of the X court is the complainant, Y court is the trial court.
The aggrieved party against the 340 cr.pc. petition can go for an appeal u/s 341 cr.p.c. before the superior court.
Normally the high court will not quash the trial case initiated by X court before the Y court.
