Protest petition in trail court ?
mohanlal
(Querist) 17 December 2012
This query is : Resolved
I am original Informant /Complainant of a case registered under section 323, 324, 427 r/w 34 of IPC. It was a Medico-Legal Case (MLC).
Police have filed charge sheet against the Accused persons. Charge sheet contains statements of some witness recorded under section 161 of Cr. P. C., panchanama report, medical injury certificate of mine.
On the second date i.e. 19 months after submission of charge sheet I have applied for the certified copy of the medical injury report. After perusal of the same I found that the medico-legal case (MLC) paper was not enclosed with the charge sheet by police. I also found that one of the major injury sustained by me, which was mentioned in the MLC papers, has been suppressed in the medical injury certificate submitted with the charge sheet.
After knowledge of this, I have made an application under section 173(8) of Cr.P.C before the Magistrate for further investigation of the matter because I also came across some material evidence which shows indulgence of the other persons in this case. I have also raised this issue of tampering with MLC. I also point out that police have not leveled proper charges against the Accused.
On my application, the Learned Magistrate asked the say of Assistant Public Prosecutor (APP).
In his say APP has approved that there is discrepancy in the medical certificate. The APP also approved that police have not leveled one particular charge against the Accused.
The Learned Magistrate pleased to reject the application and gave his findings as :-
(a) That the Original informant can submit the MLC papers to the court through Learned APP.
(b) That for inclusion of one charge against the accused further investigation is not required.
(c) The Learned Magistrate has erred and ignored the materials submitted against other person and denied any further investigation of the matter.
As per Indian Penal Code (IPC), the misconducts of doctor amounts to an offence under section 197 and misconduct of police amounts to an offence under section 198 of IPC.
As it is already established from the above facts that police and doctor, who prepared the MLC as well as medical injury certificate of mine, who all are duty bound to act in fair and proper manner are in collusion with the accused persons of this case.
The Learned Magistrate has fixed the next date for the framing of charges against the accused with this tampered medical certificate.
In the meanwhile I have moved a petition in High Court to quash and set aside the Order of Learned Magistrate and sought further investigation by invoking Article 226 of the constitution of India. But date of hearing of the case in high court is after the date of framing of charges in trial court.
Near about seven to eight dates have passed in trail court so far.
My Queries:-
(1) Whether at this stage can I file a protest petition in trial court?
(2) What are the advantages of filing protest petition against the charge sheet in the trail court?
(3) Should I apply for adjournment in the trial court by mentioning that the petition challenging the Order of Magistrate and seeking further investigation of the matter is still pending in High Court?
(4) If the magistrate frames the charges against the accused person with the tampered medical injury certificate then what will be the consequence?
(5) Any other remedy available to me to get the correct charges framed against the Accused persons and to mitigate any undue advantage to them?
(6) Any valuable suggestions? Please!
Regards!
Devajyoti Barman
(Expert) 17 December 2012
The order of the court is perfectly in order.
You at the time of your evidence place the MC for exhibitting the same. You can ask for evidence of the doctor as well.
You should apply for addition of charge than for re investigation.
However of you are dissatisfied with the order you can go for revision before the sessions court or to the high court but you can not file protest petition for this.
Apply fresh petition for addition of charge.
R.K Nanda
(Expert) 17 December 2012
contact local lawyer.
Raj Kumar Makkad
(Expert) 17 December 2012
There is no wrong in the order of the court and let the proceeding run as per schedule.
mohanlal
(Querist) 18 December 2012
Kindly forgive me if I commit error in law because I am not a lawyer and my knowledge about law is big zero.
I beg to differ with the learned Mr. Barman because –
As per as medical injury certificate is concerned, it is a corroborative evidence of the injury sustained by the victim during the offence and it can be corroborated only by the doctor who prepared it and no body else. So firstly the finding of Ld. Magistrate that the Original Informant can produce the same through Ld. APP is bad in law. Secondly, even for the argument purpose if the Ld. Magistrate allows the MLC papers through Ld. APP then in that situation one prosecution witness i.e. the Original informant confront the other prosecution witness i.e. the doctor on the issue of actual injury sustained by the victim because doctor would corroborate only the tampered medical certificate which he issued and which police have submitted with the charge sheet. In that situation benefit of doubt would go with the Accused and Accused would get undue advantage of this biased investigation. Thirdly, the Accused can also claim that since the MLC papers has not furnished to them hence prosecution can’t rely on the evidentiary value of this evidence otherwise it will be prejudice to the Accused. Therefore the victim will be hit by miscarriage of justice due to this biased investigation.
Therefore the correct stand of the Ld. Magistrate should have bee that they ought to take notice of that and pass necessary order to furnish the copy of the MLC papers to the Accused forthwith and then only continue the proceedings.
As per the IPC section 197 says :-
“Whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence.”
As per the IPC section 197 says :-
“Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence.”
Therefore for the said misconducts, both the said section is squarely applicable against the doctor and the I.O. respectively.
Any more suggestion/Advice!
Please!!!
Raj Kumar Makkad
(Expert) 18 December 2012
After going through your detailed clarification, I think the application ought to have been accepted. Anyway, file a revision against the impugned order.
