To
Hon'ble Chief justice of India, Hon'ble Chief
Justice of High court of judicature at Allahabad & Hon'ble ACJM(First) through District
Judge Mirzapur ,Uttar Pradesh
Matter is concerned with the court of Additional Chief Judicial Magistrate {A.C.J.M. (First)} Court District-Mirzapur .
Criminal Complaint NO. -2315/07
Complainant- Santish Dhar Dubey
S/O -Mr. Shiva Nath Dubey
Vill+P.O.-Nibee Gaharwar
Police station-Vindhyachal
Dist-Mirzapur ,Uttar Pradesh
Defendant - Yogi M. P. Singh
S/O -Shree Rajendra Pratap Singh
Moh-Surekapuram ,Jabalpur Road
Police station-Katra Kotwali
Dist-Mirzapur ,Uttar Pradesh
Prayer-Hon'ble A.C.J.M. (First) Mirzapur may be directed to correct the error and instead of processing the case under section 244 of Cr.P.C. May be processed under chapter xx of Cr.P.C. i.e. Section 251 to 259 of the Criminal Procedure Code. Complainant's counsel (pleader) may not be allowed to joke me that your applicant keeps at bay Cr.P.C. During the argument. My hobby is to read law books.
With due respect your applicant wants to draw the kind attention of the Hon'ble Sir to the following submissions as follows.
1-It is submitted before the Hon'ble Sir that
CrPC Chapter 20
Code of Criminal Procedure 1973
Chapter 20 – Trial Of Summons-Cases By Magistrates
Section 251 – Substance of accusation to be stated
When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.
2-It is submitted before the Hon'ble Sir that
Section 252 – Conviction on plea of guilty
If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him thereon.
3-It is submitted before the Hon'ble Sir that
Section 253 – Conviction on plea of guilty in absence of accused in petty cases
1. Where a summons has been issued under section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons.
2. The Magistrate may, in his discretion, convict in his accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid/
4-It is submitted before the Hon'ble Sir that
Section 254 – Procedure when not convicted
1. If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
2. The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
3. A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.
5-It is submitted before the Hon'ble Sir that
Section 255 – Acquittal or conviction
1. If the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilt, he shall record an order of acquittal.
2. Where the Magistrate does not proceed in accordance with the provisions of section 325 or section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
3. A Magistrate may, under section 252 or section 255, convict the accused of any offence triable under this Chapter which form the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby.
6-It is submitted before the Hon'ble Sir that
Section 256 – Non-appearance or death of complainant
1. If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
2. The provisions of Sub-Section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
7-It is submitted before the Hon'ble Sir that
Section 257 – Withdrawal of complaint
If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.
8-It is submitted before the Hon'ble Sir that
Section 258 – Power to stop proceedings in certain cases
In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release, the accused, and such release shall have the effect of discharge.
9-It is submitted before the Hon'ble Sir that
Section 259 – Power of Court to convert summons-cases into warrant cases
When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant-cases and may recall any witness who may have been examined.
10-It is submitted before the Hon'ble Sir that in the case Smt Premalata Subhas Nabaria vs Shri Paras Shantilal Kankaria on 21-Feb-2011 ,Bombay High court ,Bench S.S. Shinde detail as annexure and summary as follows-Concerned case which you Hon'ble Sir is examining is comes under code earlier punishable with imprisonment 6 months but amended now punishable with maximum two years imprisonment so falls under same ambit. Consequently take a glance of following explanation based on judgement learned judge in lucid style.
Code is punishable with imprisonment of either descripttion for a term which may extent to two years, or with fine, or with both. As stated earlier, it is admitted position that the case in hand is a summons case. If the case is a summons case and in which maximum sentence can be given is of two years, in that case the Criminal Procedure Code provides scheme of trial under the provisions of Section 251 to 259 of the Criminal Procedure Code.Since the case in hand is a summons case, it was not open for the Trial Court to take recourse to Section 244 or Section245 of the Criminal Procedure Code. The Section 244 and 245 of the Criminal Procedure Code reads as follows : 244. Evidence for prosecution.--(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce
such Magistrate, he considers the charge to be groundless. 6. Perusal of Section 244unequivocally indicates that, what is contemplated under the said section is warrant case instituted otherwise than on a police report. The procedure is stated U/Sec. 245 when the accused shall be discharged. The order can be passed U/Sec. 245 if upon taking all the evidence referred to in Section 244, if the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out, which if unrebutted, would warrant his conviction, the Magistrate shall discharge him. At the cost of repetition, it is to be stated that, in the instant case only relevant Section is 403 of the I. P. Code, where the maximum sentence provided is for two years. Therefore, the Magistrate has rightly tried the case as summons case. It was not open for the Magistrate to take recourse to the Section 244 or Section 245 of the Criminal ProcedureCode. ::: Downloaded on - 09/06/2013 17:00:31 ::: 8 cri appeal 44.11 7. The Hon'ble Supreme Court has occasion to deal with some of the similar situation as arose in this case, in case
Pasted from <https://indiankanoon.org/docfragment/890750/?formInput=section%20244%20of%20criminal%20procedure%20code>
11-It is submitted before the Hon'ble Sir that no court proceeding can be trust worthy if based on forged public documents so order passed by Hon'ble A.C.J.M. (First) court on 12/06/2008 must be complied by D.M. /D.P.R.O. Mirzapur. According to apex court order ,plea of defendant must be ascertained before processing onward like examining witnesses etc. Hon'ble may be pleased to take a glance of following attachment in PDF form showing how the date nomination of enquiry officer Mr. Vijay Shankar was manipulated from 31/05/2006 to 31/05/2007 in the letter of D.M. Mirzapur through which Vijay Shankar was nominated and enquiry report of Mr. Vijay Shankar.
Whether in the name of section 244 of Cr.P.C. wrongdoings can be overlooked..pdf
12-It is submitted before the Hon'ble Sir that Hon'ble Sir may be pleased to take a glance following link-
Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion.
Pasted from <https://yogimpsingh.blogspot.in/2015/03/magistrate-records-plea-of-accused-and.html>
The case in hand raises important question of law that, whether the 6th Judicial Magistrate First Class, Ahmednagar could have discharged the respondent/accused taking recourse to Section 245(1) of the Criminal Procedure Code, since the case which is tried by the Magistrate was summons case. It is admitted position that, the only Section 403 of I. P. Code was invoked against the respondent i. e. original accused and for which maximum sentence provided is two years.
Pasted from <https://yogimpsingh.blogspot.in/2015/03/warrant-case-offence-punishable-with.html>
If not reaching on aforesaid website ,then load these PDF version of judgements as follows-
Magistrate records the plea of the accused and the accused pleads not guilty.pdf
Smt.pdf
This is humble request of your applicant to you Hon'ble Sir that It can never be justified to overlook the rights of citizenry by delivering services in arbitrary manner by floating all set up norms. This is sheer mismanagement which is encouraging wrongdoers to reap benefit of loopholes in system and depriving poor citizens from right to justice. Therefore it is need of hour to take concrete steps in order to curb grown anarchy in the system. For this your applicant shall ever pray you Hon'ble Sir.
'Yours sincerely
Yogi M. P. Singh
Mohalla-Surekapuram, Jabalpur Road District-Mirzapur , Uttar Pradesh ,India .
Fri, Mar 6, 2015 at 2:58 AM
