What is the remedy if application 156[3] rejected by metropolitan magistrate
navneet
(Querist) 08 November 2013
This query is : Resolved
Respected sir, i filed an application u/s 156[3] for cheating fraud done by some person,police submit his report that no cognizable offence is made and the matter is a civil dispute, police is saying the same words from starting day, after a grievance we filed application in metropolitan magistrate court, now after read the police action taken report court rejects the application filed , we don't want to persue this case in section 200, is there any remedy to challenge or file appeal the rejection order of 156[3] application in high court, because police didn't do the investigation properly under influence of accused.
V R SHROFF
(Expert) 08 November 2013
need facts to understand why police acted this way? was it civil dispute???
navneet
(Querist) 08 November 2013
sir, it's not a civil dispute, accused did a well planned strategies for making this cheating and fraud, since the accused are powerful in all respect so police is giving favour to them, first we approaches to file fir to all top level of police after no result, we file application in 156[3] and section 200 both at a time in court, police gave the same report ki case is a civil dispute type and no cognizable offence made out, no proper investigation done according to our points, and court accepted the police report hence reject the application, if we persue this according to section 200 it will take a long time , so we don't want to persue it in section 200, my question is there any remedy to protest or file appeal against the metropolitan court order in high court
navneet
(Querist) 08 November 2013
sir, it's not a civil dispute, accused did a well planned strategies for making this cheating and fraud, since the accused are powerful in all respect so police is giving favour to them, first we approaches to file fir to all top level of police after no result, we file application in 156[3] and section 200 both at a time in court, police gave the same report ki case is a civil dispute type and no cognizable offence made out, no proper investigation done according to our points, and court accepted the police report hence reject the application, if we persue this according to section 200 it will take a long time , so we don't want to persue it in section 200, my question is there any remedy to protest or file appeal against the metropolitan court order in high court
ABDUL RAZIQUE
(Expert) 08 November 2013
The Hon’ble Supreme Court held:
“…whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non-bailable, cognizable or noncognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court. But there is, as stated by us hereinabove, an important inbuilt and categorical restriction on the State’s power. It cannot direct the Public Prosecutor to present an appeal from an order of acquittal passed by a Magistrate in respect of a cognizable and non-cognizable offence. In such a case the District Magistrate may under Section 378(1)(a) direct the Public Prosecutor to file an appeal to the Session Court. This appears to be the right approach and correct interpretation of Section 378 of the Code”.
“Act No.25 of 2005 brought about a major amendment in the Code. It introduced Section 378(1)(a) which permitted the District Magistrate, in any case, to direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. For the first time a provision was introduced whereunder an appeal against an order of acquittal could be filed in the Sessions Court. Such appeals were restricted to orders passed by a Magistrate in cognizable and non-bailable offences. Section 378(1)(b) specifically and in clear words placed a restriction on the State’s right to file such appeals. It states that the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Sessions Court in revision. Thus, the State Government cannot present an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence”
“..we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court.” [Para 21]
Nadeem Qureshi
(Expert) 09 November 2013
file a revision before session court or high court as you think fit.
