Faulty & grossly defective process order by a judicial magistrate.
AMAR RANU
(Querist) 19 January 2014
This query is : Resolved
Dear Hon'ble Experts,
A criminal court has issued the following process order,which does not make any sense.
“Pursued complaint verification document. Complainant was promoter of society. He opened an account in private bank and without authority and misappropriated some of the amount. There is no aspect of cheating as such. Issue process against accused u/s 406 of IPC”.
As per the aforesaid process order,the Magistrate is blaming the COMPLAINANT and issueing the process against ACCUSED.
In view of the above,what is the remedy before Accused?
Whether it can be quashed by appelate court
and on what grounds.
If some authority is available involving abovesaid grossly defective and self-contradictory process and its quashing on the same grounds by any High Court and the same please be made public here in the interest of justice.
thanks n regards
A.M.Ranu
ajay sethi
(Expert) 19 January 2014
it appears that there is a typographical error . magistrate has come to a finding that no case of cheating is made out but case of criminal breach of trust is made out against accused . however in inadvertently it mentions that complainant was promoter of society instead of accused and that he has opened account without authroisation and misappropriated amount .
draw attention of court to said fact .
Advocate. Arunagiri
(Expert) 19 January 2014
The high court will not quash the lower court proceedings, untill and unless you establish that the complaint it self does not disclose the offense.
The high court will not peruse the evidences.
I suggest you to file a discharge petition in the same trail court. In case of adverse order approach the appellate court.
Adv. Chandrasekhar
(Expert) 19 January 2014
In my opinion the order does not make head and tail and is fit to be impugned before H.C. under its internal jurisdiction. The magistrate who issued process order cannot issue discharge order without taking 'after summon evidence' and if he does so, it amounts to review power and he does not have it.
AMAR RANU
(Querist) 19 January 2014
I want to clarify that the said Order was not typed but a hand-written Order by the Magistrate.
Why it cannot be quashed when the said order does not make head and tail,as rightly described by Learned Adv.Chandrasekar.
It shows total lack of judicial mind.
There must be some authority available,when such order is passed with total lack of judicial mind.
Amar
Arvind Singh Chauhan
(Expert) 19 January 2014
Without going through the order, not possible to give opinion.
Rajendra K Goyal
(Expert) 19 January 2014
For authority you have to search indiankanoon.com.
Devajyoti Barman
(Expert) 19 January 2014
yes, I think this order needs to be challenged to the high court.
Advocate. Arunagiri
(Expert) 19 January 2014
I am having the doubt, about the exact wordings of the Magistrate.
Normally the magistrate will take up the case and will pass orders for issuing the process to the accused for the so ansd so offenses. This does not mean the magistrate had come to a conclusion that the accused had committed the offense. The magistrate would have decided on the primafacie for the case.
Dr J C Vashista
(Expert) 20 January 2014
If you feel aggrieved by the order you can move in revision.
I feel it is better to file a protest application for non-inclusion of offence of cheating with criminal breach of trust, in the same court, let it be dismissed, which is challangable.
P. Venu
(Expert) 20 January 2014
Much ado about nothing! The process is issued against the accused and not the complainant. As Mr.Sethi rightly pointed it, it is an inadvertent error that 'complainant' was written in place of 'accused'. The mistake could be got corrected.
Rajendra K Goyal
(Expert) 20 January 2014
If it is felt that the orders has deficiency in law or the facts, appeal can be done in the higher court.
V R SHROFF
(Expert) 20 January 2014
Process is issued against accused; It's OK.
It is order to issue process & not a Judgement. So no need to go further..
Trial will decide ...
AMAR RANU
(Querist) 20 January 2014
No solution has emerged so far.
In reference to Mr.Shroff's observation,I have to state as to why a person sholud be compelled to face the ignominy of a trial when its process order is so defective that it does not make sense.
Under which provision of law a trial can be initiated on the basis of such a stupid process order?
That is why I am in search of some competent advise or clue to some authority akin to aforesaid similar situation,which will help in quashing the abovesaid defective process order.
Indian Kanoon website is proved to be of no help on solving the abovesaid riddle so far.
A criminal revision has been filed before an appellate court and some authority is required urgently during the time of final arguments.
T. Kalaiselvan, Advocate
(Expert) 21 January 2014
I think Adv. Mr Chandrasekar's advise seems to be making some sense. The magistrate, a fresher might not have had any proper experience during practice period as an advocate are likely to make such blunders who are need to be taught lessons through revisions or appeals on such issues how much ever small the issue may be, lest this will render greater miscarriages of justice in the future.
AMAR RANU
(Querist) 22 January 2014
With due respect for my Ld.experts,If the aforesaid revision was heard by appellate court without any authoritative superior court judgment for quashing such a defective process order,the appellate court is bound to revert the aforesaid matter back to trial court without quashing it for corrections.
In that case,the whole exercise would be a futile exercise.
That is why I am in search of some competent advise or clue to some authority akin to aforesaid similar situation,which will help in quashing the abovesaid defective process order.
So far no result is emerging......
AMAR RANU
(Querist) 22 January 2014
After four days,the aforesaid query is still UNRESOLVED.
Devajyoti Barman
(Expert) 22 January 2014
I can understand your zeal for citation but unfortunately we do not provide any citation here.
You have to make your personal effort.
AMAR RANU
(Querist) 23 January 2014
I am member of this Forum for the last several years and had provided several citations on record to help in solving various legal riddles.
I am also searching and there is no harm in exploring the arena of EXPERTS.
