If police is managed by the accused and criminal case is converted into civil what should be done?
Mr. Hitendra Shah
(Querist) 11 October 2011
This query is : Resolved
In the similar Case my wife is Complainant. In my case Charge Sheet was filed and in my wife's case Police Report is filed. I have applied for the certified copy of the said Report from the court. I may get it within 2/3 days. I have come to know that Police has stated in the Report that the case is of civil nature. This is because the police was managed by the accused. U/s 156(3) order was given by the court on prim fascia evidences. The police took my wife's statement but did not give her FIR copy and the copy of her statement but after two months the Police called my wife to change her statement but my wife denied to do so and the said matter, my wife informed to the Magistrate saheb in writing, sending this letter through courier and got acknowledgement slip. Now what should I do? The next date is on 6/1/2012. Transfer took place of Magistrate saheb.
In my mother's case against the builder where the builder gave my mother lesser amount of area in the flat in redevelopment work and in her case I argued in the court and Hon Magistrate called Police and asked that whether my mother really got lesser amount of area in flat, the police said yes and after two dates the Hon magistrate saheb gave hint me that my mother will get favorable response from the court on 31/10/2011.
Now in my wife case whether should I appear before the Magistrate saheb on behalf of her? As I know whole case and I know all the criminal points having all the evidences or whether should I hire an advocate?
what will happen now? Even all the evidences are there, if the Magistrate saheb says that the case is of civil nature then what is the remedy left to my wife?
The accused are spreading money everywhere. They want to make my wife's case of civil nature at any cost because 1) the similar case of mine is there in the same court and it is a criminal case and now if the accused get success in making my wife's case of civil nature then on the basis of that they can say the said court has considered my wife's case of civil nature the Hon magistrate should consider my case also of civil nature and 2) the matter in my and my wife cases might have become time barred even though the Bank has given replies of my and my wife's letters in 2010 and July 2011 but the transactions took place between 2005 and 2006.
I want to know from the Experts the best advice, precautions to be taken and best remedy to be followed.
Thanks.
ajay sethi
(Expert) 11 October 2011
engage an advocate to fight your case . if after investigation under section 156(3) police have given report that case is of civil nature it is upto the magistrate to accept the police report .
ajay sethi
(Expert) 11 October 2011
M/s. Thermax Ltd. & others Appellant(s) versus K.M. Johny & others Respondent(s)
Date of Decision(mm/dd/yy): 9/27/2011.
Judge(s): Hon'ble Mr. Justice P. Sathasivam and Hon'ble Dr. Justice B.S. Chauhan.
Subject Index: Criminal Procedure Code, 1973 — section 156(3) — calling for a report under — sections 405, 406, 420 r/w section 34 IPC — whether ingredients involved — the consider — a contract entered between the parties — dispute arose — the respondent No.1 filed criminal complaint — the Judicial Magistrate issued a direction under Section 156(3) of the Code and referred the same to Crime Branch, Pune, Respondent No. 2 for investigation — writ petition filed — the High Court dismissed the writ petition as misconceived on the ground that the Magistrate has adhered to the directions and has given reasons for coming to his conclusion — whether the ingredients of Sections 405, 420 read with Section 34 have been made out from the complaint — whether the Magistrate is justified in calling for a report under Section 156(3) of the Code from the Crime Branch, Pune — whether the High Court is justified in confirming the action of the Magistrate and failed to exercise its power and jurisdiction under Section 482 of the Code — no — the dispute arose out of a contract and a constituted remedy is only before a Civil Court — documents on record showed that appellant-Company had acted in terms of the agreement and in a bona fide manner, it cannot be said that the act of the appellant-Company amounts to a breach of contract — the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC and the respondent No.1 roped all the appellants in a criminal case without their specific role or participation in the alleged offence — the Supreme Court viewed that the Magistrate committed a grave error in calling for a report under Section 156(3) of the Code from the Crime Branch, Pune — complaint filed by Respondent No.1 quashed — appeal allowed.
ajay sethi
(Expert) 11 October 2011
in Rajesh Bajaj Vs. State NCT of
Delhi, (1999) 3 SCC 259, wherein the Hon'ble Apex Court held that merely because an act has a civil profile, is not sufficient to denude it of its criminal outfit. The Court further observed as under:-
"It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions."
In Trisuns Chemicals Industry Vs. Rajesh Agarwal & ors., 1999 Cr.L.R.(SC) 677, the Hon'ble Supreme Court held that merely because dispute is of civil nature and
Magistrate had no jurisdiction to take cognizance, the same cannot be a sufficient ground for quashing the FIR, particularly when act Prima facie constitutes an offence.
Jainodin shaikh
(Expert) 11 October 2011
The magistrate will issue a notice to your wife before dispossing off the matter, He/she may take cognizance upon the police report and issue process against the accused persons (u/s. 190 of Cr.P.C.) or may ask your wife/complainant to lead evidence.
just engage a lawyer!
if you feels that police has not performed their duty properly, then you can file a complaint u/s 166 of I.P.C. against the police.
Mr. Hitendra Shah
(Querist) 12 October 2011
Where my wife can file complaint agaist the Investgation Officer and Senior Police Inspector U/s 166 of IPC?
in my wife's case, the police did not informed us that he sent the report to the court. When we inquired in the office of the court, the clerk told us that the police gave report on 26/6/2011 and the next date is 11/10/2011, which my appeared in the court. If we would not have inquired the case would have been disposed of without our knowledge that police has already filed the report in the court.
Thanks.
prabhakar singh
(Expert) 12 October 2011
When police file the report before magistrate
Then it is the magistrate who has to inform the complainant.
Guest
(Expert) 20 November 2011
Agree with Shri Prabhakar Singh.
