Pre charge evidence: complaint case: criminal:
Anurag Mittal
(Querist) 15 January 2014
This query is : Resolved
X HAS FILED A CRIMINAL COMPLAINT CASE AGAINST Y AT METROPOLITAN MAGISTRATE COURT.
AFTER PRE SUMMONING EVIDENCE, ORAL AND WRITTEN ARGUMENTS SUPPORTED BY MATERIAL DOCUMENTS THAT INCLUDES VOLUNTARY LIE DETECTION TEST, SUMMONING ORDERS WAS ISSUED BY THE LD COURT AGAINST ACCUSED.
HOWEVER ON THE FIRST DATE OF HEARING - LISTING AFTER SUMMONING ORDER BEEN ISSUED, INSTEAD OF DIRECTING THE ACCUSED FOR BAIL/ NO BAIL , THE MATTER WAS ADJOURNED BY THE COURT FOR PRE - CHARGE EVIDENCE.
MY QUERIES:
Q1.WHEN THE ACCUSED WAS SUMMONED BY THE COURT IN A NON BAILABLE MATTER, THEN WHY DID THE COURT DID NOT FIRST DECIDED ABOUT BAIL - NO BAIL FOR THE ACCUSED AND ADJOURNED THE MATTER FOR PRE- CHARGE EVIDENCE?
Q2. WHEN ALREADY PRE SUMMONING EVIDENCE HAS BEEN COMPLETED AND SUMMONING ORDERS ISSUED, WHY THE MATTER WAS PUT UP FOR PRE- CHARGE EVIDENCE ?
( The Charges should have been framed and then there should have been complainant evidence, it is not a FIR but a Complaint case then why Pre Charge Evidence is required, there is no provision for Pre Charge Evidence in Complaint Cases ).
KINDLY CLARIFY THE ABOVE QUERIES ASAP....Rgds....
Devajyoti Barman
(Expert) 15 January 2014
It appears the court has made an illegality. When the accused person papers in the case the court will have to pass an order on his bail application.
Bring this to the notice of the court on the next date. The court would correct this mistake.
There is no need to go to higher court challenging this order.
Anurag Mittal
(Querist) 15 January 2014
Thanks ....Can yu also clarify in regard to Query No.2 - Is there anything called Pre Charge Evidence in Complaint Cases where in already Pre Summoning evidence of Complainant is recorded and summons issued. Procedurally instead of Pre Charge Evidence again, should not the matter be put up for Framing of Charges straight away based on Pre summoning evidence, bail application considered and only then afterwards put up for Complainant Evidence?....Rgds...
Devajyoti Barman
(Expert) 15 January 2014
Yes after issuance of process the court fixes for evidence before charge. After this the charge would be framed. The accused person can cross-examine the complainant either before or after framing of charge.
Anurag Mittal
(Querist) 15 January 2014
Thanks. If a complainant evidence and cross examination takes place prior at Pre Charge Stage then what will the Trial stage entail? In a similar facts and circumstances viz complaint case, another trial court straight away framed the charges after considering bail post summoning of accused. After framing of charges, complainant evidence was done and cross examination by accused. Wonder how Criminal Procedure Code changes from court to court? Thanks...
Raj Kumar Makkad
(Expert) 16 January 2014
Hon'ble Supreme Court has clearly held that there is no requirement of fresh evidence post charge in complaint cases but if the accused wants to examine upon any witness examined at pre-charge stage then he shall move an application on that behalf and court shall allow accordingly otherwise the case shall be decided upon the evidence brought on file at charge stage.
Anurag Mittal
(Querist) 16 January 2014
Thanks Sh.Makkad. From your reply can it be inferred that there will be only 1 more Complainant evidence after Pre Summoning Evidence has been recorded. From your message it infers that Pre Charge - Complainant Evidence can be listed by the Ld. Court, and that Once Pre Charge Evidence is concluded, then Post Charge there will be No More Complainant Evidence. In this Particular Case After Summoning Accused Ld. Court has neither decided About Bail of the Accused and has straight away listed for Pre Charge Evidence!! Is then Accused Supposed to move an Application for having Pre Charge Evidence Witness cross examined , to simply Can yu Pls Provide the Citation Details - Supreme Court of India where in there is discussion in regard to Pre Charge Evidence as mentioned in your Reply. ( Quite Strangely in the CR.p.c. in complaint cases there is no mention about Pre Charge Evidence ).....Rgds...
Anurag Mittal
(Querist) 16 January 2014
Thanks Sh.Makkad. From your reply can it be inferred that there will be only 1 more Complainant evidence after Pre Summoning Evidence has been recorded. From your message it infers that Pre Charge - Complainant Evidence can be listed by the Ld. Court, and that Once Pre Charge Evidence is concluded, then Post Charge there will be No More Complainant Evidence. In this Particular Case After Summoning Accused Ld. Court has neither decided About Bail of the Accused and has straight away listed for Pre Charge Evidence!! Is then Accused Supposed to move an Application for having Pre Charge Evidence Witness cross examined , to simply Can yu Pls Provide the Citation Details - Supreme Court of India where in there is discussion in regard to Pre Charge Evidence as mentioned in your Reply. ( Quite Strangely in the CR.p.c. in complaint cases there is no mention about Pre Charge Evidence ).....Rgds...
Surrender K Singal
(Expert) 18 January 2014
DB and RKM have examined well for your guidance; Highlight iregularity at next date of hearing
Anurag Mittal
(Querist) 04 March 2014
Quite strangely in this matter the Court has even on Multiple Dates after the Summoning Order not taken up Bail/No Bail for the accused.
I brought to the notice of the Ld. Court provision of Section 437 Cr.p.c that on the first date post summoning the accused is to be considered for bail/ no bail.
I moved even an application that till date the Ld. Court has not taken up the bail issue per Section 437 Cr.p.c provision.
Ld. Court mentioned that its the accused who is to move the application for bail and the complainant will then have the opportunity to oppose the bail application.
But the Issue is that why will the accused move the bail application at all if the Ld. Court is not passing orders for his arrest since till date no bail application is moved by the accused.
If the accused is not moving the bail application then the Ld. Court should arrest him.
Pls provide your inputs in regard to the above facts.
Devajyoti Barman
(Expert) 07 March 2014
If the accused person after appearing in the case has not moved bail application then it is incumbent upon court to issue W/A.
Uday Kumar
(Expert) 04 May 2014
Hello Sir
It is a procedural ir regulatory by court, Advocate is not only a Lawyer for Client but also an officer of the Court.
Sometime due to over work load court skip some steps/procedure and since Accused is appearing and case is proceeding so there is no stage to think for the court to see if B/Bond has been furnished by the accused at relevant time or not, in fact opposite counsel/Complainant Counsel should always highlight such point and Court will review and correct the steps.
In one of the my case Accused furnished BB and accused was released on bail but I took objection that Surety is not sufficient, Court immediately reviewed and altered the order and asked the accused to furnish sufficient Surety by next date and present BB/surety is accepted till next date.
Hence I Think Lawyer has to point out such procedural ir regulatory during court hearing and mistake will be cured.
Regards
advudaykumar@gmail.com
