Is slp maintainable?
Ranganath
(Querist) 24 August 2014
This query is : Resolved
Ld Counsels,
Accused filed 311 petition to recall PW1 both trial court and HC dismissed the petition.
Trial concluded the trail and convicted the accused within one month from the date of dismissal of above 311 petition by HC.
Can accused move SC in a SLP against the dismissal order of HC. 311 petition is vital for the case of accused. Will the SLP be maintainable after the conviction even though the period limitation is till there and the HC's order has not attained finality.
Please clarify
Thanks
Devajyoti Barman
(Expert) 24 August 2014
If conviction order is passed , there is no point chasing the validity of 311 order.
Prefer appeal against the decision of conviction now.
Ranganath
(Querist) 24 August 2014
Yes, appeal will be filed against conviction order, but dismissal of 311 petition cant become final as there are valid ground in appeal to get the 311 order restored.
Please clarify on the maintainability of SLP.
thanks
Devajyoti Barman
(Expert) 24 August 2014
In the appeal itself the rejection of 311 order can be agitated.
With the passing of conviction the order passed in relation to 311 crpc becomes infructuous and you can no more challenge that order until and unless the conviction is set aside.
R.K Nanda
(Expert) 24 August 2014
file criminal SLP against the decision of conviction order now and it is maintainable.
Ranganath
(Querist) 24 August 2014
Dear Barman sir, thanks for the detailed reply, but again sir since the 311 petition was dismissed by HC itself wont it be impermissible for the appellate court to review that order.
The below case deals with these facts.
http://www.indiankanoon.org/doc/49880373/
The appellate court cant go into the merits of 311 petition, this petition is a crucial without concluding whether reccall is needed for just decision of case 311 petition was dismissed. Can this be looked into by appellate court from the above judgment it is not permissble.
Pls clarify.
Devajyoti Barman
(Expert) 24 August 2014
In appeal itself the the veracity of the HC order in relation to section 311 would be considered by SC.
You can not challenge the said order passed by HC.
Ranganath
(Querist) 24 August 2014
So the conclusion is I can directly file appeal against conviction to SC,
can SC directly make the matter final in the absence of regular appeal against conviction?
Please clarify
Ranganath
(Querist) 24 August 2014
Please clarify,
Ranganath
(Querist) 24 August 2014
Please clarify what are the options before SC now?
1. Finalize the conviction even without regular appeal,
2. Direct the trial court to reconsider the matter afresh
3. Direct the accused to file regular appeal dismissing the ground reg 311 petition
Thanks
R.K Nanda
(Expert) 24 August 2014
how much clarification u need ? ur query is already replied.
Biswanath Roy
(Expert) 26 August 2014
In Zahira Habibullah Sheikh vs.State of Gujrat (Reported in AIR 2006 SC page 1367)the views of Hon'ble Supreme Court is as follows-
"The object underlines sec.311 is that there may not be any failure of justice on account of mistake by either party in bringing the valuable evidence on record or leaving ambiguity in the statement of the witness examined by either party. The object of this section is to bring on record of evidence not only from the point of view of the accused and prosecution but also from the point of view of orderly society. The determinative factor is whether it is essential for the just decision of the case."
Now, if you can prove that examination of the witness is essential for just decision of the case then you may proceed further.
T. Kalaiselvan, Advocate
(Expert) 30 August 2014
I agree with the views of expert Mr. Barman that in the appeal preferred against the conviction, the said lacuna may be pleaded as a ground of appeal.
