Quashing petition of complaint without summoning order in criminal complaint case: maintainability
Anurag Mittal
(Querist) 19 March 2014
This query is : Resolved
A Criminal Complaint is pending at MM court at Pre summoning evidence stage . Complainant has summoned witness to lead his pre summoning evidence. No Summoning of the accused has yet happened; but the Accused just to Obstruct and Intervene conducts file inspection, takes Certified Copies of the entire complaint case docket and orders from trial court record and approaches the High Court praying for Quashing of the Complaint.
Is this Quashing Petition Maintainable or needs to be dismissed; rather the Filing section at High Court itself should flag objections that there is No Summoning as Yet as such this is not to be listed.
Further the act of obtaining certified copies of the complete complaint and interim orders from trial court by the accused when still no summoning has happened; is this not Fraud on the part of the accused / his lawyer?
venkatesh Rao
(Expert) 19 March 2014
He has been named as accused in your complaint and he has got every right to get certified copies of complaint. It is not fraud on his part and neither of his advocate's.
Before being summoned, the accused has no right of audiance before the trial court. And it follows ipso facto that the high court will not admit such petitions as it is premature.
Rajendra K Goyal
(Expert) 20 March 2014
He has been named as accused in the case, nothing irregular in obtaining copies of the documents from trial court. The named accused has also right to approach High Court for quashing. Court decides matter on the basis of merit of the case.
Anurag Mittal
(Querist) 20 March 2014
Thanks Experts for the Inputs. Let me clarify I have no Issues in Accused Obtaining Certified Copies - what is mentioned by Mr.Goyal and Mr. Roa...My issue and query is that Since as of now No Summoning has happened and the matter is at pre-summoning evidence stage only...then how come accused / and his advocate conduct File Inspections and Take Certified Copies??? Let me know your Inputs based on this Update in the Query ....Thanks.
Nadeem Qureshi
(Expert) 20 March 2014
Quashing petition is not maintainable if listed then liable to be dismissed as there is no cause of action for filing quashing is raised.
without filing vakalatnama accused has no right to get certified copy of the same and till summoning he has no right to appear before court or file vakalatnama, no right to even inspect the file.
feel free to call
Anurag Mittal
(Querist) 20 March 2014
Thanks Mr.Nadeem for your legally logical reply...rationalse. This in fact will be fraud on the part of the accused/his advocate.
Further can yu clarify if the accused states that he did file inspection and obtained certified copy as that was approved by the Ld.MM , but the aforesaid seems illogical..as the accused/advocate misled the MM and got the applications allowed/approved knowing well that it is not possible for a MM to keep track of all cases - what stage they are at???....Rgds..
Nadeem Qureshi
(Expert) 21 March 2014
practicaly on certified copies applications the MM signed without asking about party but it is the duty of coping dept. to check that in pending cases third party could not obtain the copies. if you want to take some action then file an application before coping incharge or District judge against the clerk. it is against the fundamental right as right to privacy.
you can file a writ petition or PIL before HC or SC.
