Hi all experts,
Am a 498A IPC victim! Already had it twice in last 4 years!
First FIR culminated in Final Report being filed by police, which was made to be accepted in the competent court by complainant (my father-in-law) himself!
In second FIR, lodged just after 26 days, when the complainant himself got the Final Report of the first FIR accepted; police filed charge sheet against me only and has dropped the names of all others; police in its charge sheet has also mentioned that the FIR was lodged earlier also; which culminated in Final Report, which was accepted in court on written consent of the complainant, after which this second FIR is filed!
Just when the cognizance was taken in court and summoning was ordered (which all I challenged in High Court, but in vain), complainant of the FIR procured a direction from the High Court to dispose of the case expeditiously, preferably in six months, this direction was procured on '06/05/2009'!
After being enlarged on bail, I have always appeared in the court on all dates, but no proper proceeding underwent till March 2011, only dates were being given!
I had filed following 2 applications in court in November 2009 only:
1- U/s 239 CrPC for discharge
2- An application praying to the court that the prosecution be directed to file transcripttt or to arrange for hearing of the Audio CD, filed by the police as evidence, as part of case diary, before proceeding to decide application u/s 239 CrPC! Because perusal of police report and document sent with it are to be perused while deciding application u/s 239 CrPC!
The aforesaid Audio CD was given by me only which has recording of the conversation I had with complainant just before 15 days of second FIR where he had threatened me of dire consequences if I did not withdraw my divorce case! In the conversation he also mentioned that he will again file an FIR and ruin my life; which all I recorded, and gave to police when the FIR was lodged! Since my in-laws are pretty influential, police was under pressure to file charge sheet; but they still dropped other names, am thankful for that!
Anyways coming back to the point, for both the applications I had filed, complainant filed his objections only on 27/01/2011, after more than a year (they were the ones who procured expeditious direction)!
Now on 23/04/2011 (Saturday) magistrate dismissed my application regarding Audio CD’s perusal and fixed 25/04/2011 (Monday) by 1200 Hrs, for arguments on application u/s 239 CrPC! Most pertinent to mention here are following two points:
1- 25/04/2011 was the date of U.P. Bar Council’s Election polling in Kanpur (where I am) and the District Judge had issued accommodation orders to all magistrates, that no adverse orders be passed today
2- Aggrieved by the dismissal order dated 23/04/2011, I had filed an application in the morning itself that since I have an efficacious remedy available against the order dated 23/04/2011, in the form of application u/s 482 CrPC or writ under article 226 of Constitution of India, in High Court, specifically praying:
“That the established principle of law is that actus curiae neminem gravabit which means that the Court’s act shall oppress no one. At one hand prosecution procuring direction to dispose off the case expeditiously and then filing objections to applications after years and on that delay in getting certified copy, heavy backlog in Hon’ble Allahabad High Court, hence the time taken by the Court in getting to hear a case, the time taken in considering and delivering a judgment, these are all steps in the normal legal process in any adversary system and therefore these are all acts of the Courts. Therefore Courts are not expected that it will oppress or refuse relief to the applicant because of these problems, which are not his creation and which will remain, do what one might in regard to the law’s dynamics.
That although the Hon’ble Allahabad High Court has directed this Hon’ble Court to dispose of the case expeditiously preferably in six months, but just by virtue of Hon’ble High Court’s direction, fundamental rights of the applicant cannot be curtailed and applicant cannot be kept deprived of justice.
That it is in the interest of natural justice that this Hon’ble Court be pleased to grant 30 days time to the applicant so that the applicant can go to Hon’ble High Court for just relief”
THE COURT ON 25/04/2011, OVERLOOKING MY APPLICATION SEEKING TIME, DISMISSED MY APPLICATION U/S 239 CRPC, STATING THAT THE ACCUSED’S COUNSEL HAS BEED HEARD AND FIXED 26/04/2011, FOR FRAMING CHARGE AND TO DISPOSE OF THE APPLICATION SEEKING TIME TO AVAIL EFFICACIOUS REMEDY AGAINST ORDER IMPUGNED DATED 23/04/2011.
ON 26/04/2011 MAGISTRATE DISMISSED MY APPLICATION DATED 25/04/2011 ALSO STATING THAT ACCUSED IS FREE TO AVAIL EFFICACIOUS REMEDY AND SINCE THERE IS NO STAY FROM ANY SUPERIOR COURT, ON THE CONTRARY HIGH COURT’S DIRECTIONS ARE THERE FOR QUICK DISPOSAL, APPLICATION IS DISMISSED! AND AGAIN FIXED 27/04/2011.
My counsels did not let the magistrate frame charges that day protesting that 207 CrPC has still not been complied with and the accused has not been given copy of the case diary as per the law.
To save myself and as immediate relief I filed revision in Sessions Court, which was filed as defective since I could not be issued any certified copies because file was daily in court; hearing the plight, ADJ summoned the records from the magistrate court, which gave me a bit of relief; defect is still not cured, since certified copy of one impugned order is still to be issued! After removing the defect I’ll have to argue on admission of the revision! In magistrate court, he is still giving alternate day’s dates in skeleton file!
Now my problems are as under:
1- Is order dated 23/04/2011, dismissing Audio CD perusal, a non-interlocutory or interlocutory order?
2- Is order dated 25/04/2011, dismissing application u/s 239 CrPC (without hearing the accused which can be proved from the records of the court) a non-interlocutory or interlocutory order?
3- Is order dated 26/04/2011, declining time to avail efficacious remedy, a non-interlocutory or interlocutory order?
4- If sessions judge considers them as interlocutory, then what course or action should I take (keeping in mind daily dates in magistrate court)?
5- Does the conduct of the complainant of first procuring direction of expeditious disposal and then himself filing objection to my applications after more than a year, amount to contempt?
I do not want that the case should go on for long, but also I cannot afford to surrender my legal, constitutional and fundamental rights, just because High Court directed for quick disposal!
Please help and guide me, to save myself from this ‘expeditious disposal’!
Thanking all in anticipation
