Release of a person in judicial custody
sridhar pasumarthy
(Querist) 26 January 2012
This query is : Resolved
Dear Experts,
In a cheque dishonour case, an advocate commissioner was appointed for execution of NBW against the accused. The advocate commissioner arrested the accused and produced before the judicial magistrate and the accused was remanded to judicial custody till 3-2-2012.
Soon after his remand, the relatives of the accused paid the cheque amount to the complainant and compromised the issue.
The next day, the counsel for complainant filed a petition u/s 257 cr.p.c. for permission to withdraw the complaint and to release the accused. But, the magistrate refused to do so.
Another fact is that no sureties are available for the accused to apply for bail. Magistrate was not pleased to release on self bond.
What is the remedy for the accused?
It's urgent pls.
Shonee Kapoor
(Expert) 26 January 2012
Compromise does not necessarily wipe out the crime.,
However you can move Session Court against this order and try for early release.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
sridhar pasumarthy
(Querist) 26 January 2012
@Shonee sir
Cheque dishonour case is compoundable and the accused is not a convict.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 26 January 2012
1) appointment of advocate commissioner is illegal.
2) withdrawal is right
3) If you are an advocate file writ directly to HC, if not send letter petition to HC by the accused.
Meawhile file revision both for withdrawal and bail.
V R SHROFF
(Expert) 26 January 2012
VERY HARSH ACTION U/S 138 , UNUSUAL
Sudhir Kumar, Advocate
(Expert) 26 January 2012
Whne the compklainant is willing to withdraw then in cokpundable offence there is no need for judge to proceed further. Righly advised file appeal/revision in session.
Devajyoti Barman
(Expert) 26 January 2012
Ask the Magistrate to recall its order. If it refuses then file revision.
Raj Kumar Makkad
(Expert) 26 January 2012
It seems trial magistrate has never dealt such cases and he is fresh on this post. Neither he could have appointed a commissioner advocate for arrest of accused nor would have sent to judicial custody as the offence is bailable.
A complainant has got right to withdraw his complaint at any moment he wishes by putting a simple application and statement thereto.
If complainant has moved an application for compounding, the trial magistrate has to accept it. he has no other option. If he has declined it then file its revision before Sessions Judge.
I am also of the opinion that there is some lack of training of the trial magistrate in the given facts so a detailed representation should be sent to Chief Justice of High Court requesting him to personally look into the matter and ensure justice and a lesson to such magistrate so that he may not repeat similar behaviour with others otherwise law shall become a mockery.
prabhakar singh
(Expert) 28 January 2012
The entire procedure adopted by the Magistrate is not only too strange but absolutely illegal.Act as Mr.JSDN has advised.
