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TOPIC – 7
CRIMINAL MISCELLANEOUS PETITIONS
S.No. Name & Designation of the Officer Page Number
Sri N.Ramesh Babu,
1. VIII Addl. District Judge, 1-9
Vijayawada
Sri B.Papi Reddy,
2 XVI Addl. District Judge, 10-17
Nandigama.
Sri P. Govardhan,
3 II Additional Senior Civil Judge 18-19
Vijayawada
Smt. U.Indira Priya Darshini,
4 IV Addl. Chief Metropolitan Magistrate, 20-33
Vijayawada
Sri Kumar Vivek,
5 Senior Civil Judge, 34-47
Nandigama.
Smt. N.Anitha Reddy,
6 IV Addl. Junior Civil Judge, 48-50
Vijayawada
Smt. B.M.R. Prasanna Latha,
7 Addl. Junior Civil Judge, 51-56
Tiruvuru
1
(2) Any person required under this section merely to produce a document
or other thing shall be deemed to have complied with the requisition if he
causes such document or thing to be produced instead of attending personally
to produce the same.
8. Sometimes the counsel for the defence may file Petition u/sec.91 Cr.P.C
to summon the documents at the time of framing charges. But at that stage, it
is to be kept in mind that the Court has to examine the material which is
produced by the prosecution and it cannot summon any document at the
instance of the accused. This preposition of law is laid down by Hon‟ble
Supreme Court of India in a case reported in AIR 2005 SC 359 between State of
Orissa Vs. Debendra Nath Padhi.
3
benefit of the accused, and it will not be an improper exercise of the powers of
the court to summon a witness under the section merely because the evidence
supports the case for the prosecution and not that of the accused. The section
is a general section which applies to all proceedings, enquiries and trials under
the Code and empowers Magistrate to issue summons to any witness at any
stage of such proceedings, trial or enquiry. In Section 311 the
significantexpression that occurs is „at any stage of inquiry or trial or other
proceeding under this Code‟. It is, however, to be borne in mind that whereas
the section confers a very wide power on the court on summoning witnesses,
the discretion conferred is to be exercised judiciously, as the wider the power
the greater is the necessity for application of judicial mind.
18. Generally we come across with petitions under section 311 Cr.P.C.,
praying the court to recall the witnesses who were already examined. The court
has to see whether recall of witness is necessary to come to just conclusion,
the same was held in a case between Rama Paswan and others Vs. State of
Jharkand reported in 2007 (2) ALD SC 494.
represented by his defence Counsel and the latter is appearing before the Court
on behalf of the accused.
the accused. The section demands more circumspection by the Trial Court
while exercising its powers since it confers an extraordinary power and should
be used by the court very sparingly thereby ensuring that principles of rule of
law and basic tenets of criminal law jurisprudence are not vitiated.
23. When the prosecution filed a petition u/sec.319 Cr.P.C. praying the
court to proceed against other persons other than the accused who are facing
trial, the court can allow the said petition basing on examination in chief itself.
There is no need of giving opportunity to proposed accused for cross
examination, the same was held in a case between Gangadara Nandagiri
Swamiji Vs. State of A.P reported in 2002(1) ALD 680.
24. Section 321Cr.P.C –Withdrawal from Prosecution
The section requires that where the offence falls within any of the
categories mentioned in sub-clauses (i) to (iv) of the provison, the permission of
the Central / State Government has to be obtained for moving an application
for withdrawal from the prosecution by the Public Prosecutor. However, where
the prosecution is being proceeded by a complainant on a private complaint,
the Public Prosecutor is not entitled to apply for withdrawal from prosecution
in such a case. It must be pointed out that Section 321 provides for
„withdrawal from prosecution‟ and not the „withdrawal of the prosecution. The
accused shall be discharged if the withdrawal is before the framing of a charge
and he shall be acquitted where no charge has been framed and such acquittal
shall be a bar to a re-trial under Section 300 of the Code.
25. The section 321 Cr.P.C applies to every kind of inquiry and trial as also
all cases which are capable of terminating either in a discharge or an acquittal
according to the stage at which application for withdrawal is made.
In one of the decisions, our Hon‟ble High Court in Bairam Muralidhar
Vs. State of Andhra Pradesh [Criminal Appeal No. 1587 of 2014 arising out of
S.L.P. (CRL.) 1487 of 2012] Held :
“The discretion under Section 321, Code of Criminal Procedure is to be
carefully exercised by the court having due regard to all the relevant facts and
shall not be exercised to stifle the prosecution which is being done at the
instance of the aggrieved parties or the State for redressing their grievance.
Every crime is an offence against the society and if the accused committed an
offence, society demands that he should be punished. Punishing the person
who perpetrated the crime is an essential requirement for the maintenance of
law and order and peace in the society. Therefore, the withdrawal of the
prosecution shall be permitted only when valid reasons are made out for the
same”.
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28. Conclusion
It is necessary to file a petition for seeking a relief in Criminal Courts
under any provision of law. The criminal court shall endeavour to dispose of
the miscellaneous petition as early as possible because, it effects entire
criminal justice system. As and when a petition is filed, the primary duty of
the court is to scrutinise whether such petition is maintainable as per law and
after come to conclusion that such petitions are maintainable, court shall
assign a number to the petition and after that notice shall be ordered to the
opposite party. After hearing both parties, the court shall pass an order and
such order shall be a speaking order and strictly according to law.
10
Paper Presented by
Sri B.Papi Reddy,
XVI Addl. District Judge,
Nandigama.
All the criminal proceedings are governed by the procedural law that is
Code of Criminal Procedure, 1973. (for short Cr.P.C.).
The word miscellaneous petitions is not defined either in Code of
Criminal procedure or in Criminal Rules of practice but as per Oxford
Dictionary miscellaneous means ‘consisting of many different kinds’ generally
miscellaneous petitions can be filed either for interim relief or it may some
times for final relief of discharge of the accused from the criminal case.
Criminal miscellaneous petitions are filed during the pendency of main
case. Even prior to registration of the criminal case also anticipatory bail
application can be filed, Some petitions are meant for a relief which is
temporary and urgent in nature. Few examples of miscellaneous petitions are :
1. Petitions under section 70 (2) Cr.P.C. for recall of warrants.
2. Petition under section 317 Cr.P.C. for dispensing the presence of the
accused
3. Petition under section 256 Cr.P.C. for condoning the presence of complainant
in the Court.
4. Petition under section 436 Cr.P.C. for bail in bailable offence,
5. Petition under section 437 Cr.P.C. for bail in non-bailable cases
6. Petition under section 438 Cr.P.C. for grant of anticipatory bail.
7. Petition under section 439 Cr.P.C. for grant of bail before Sessions Court.
8. Petition under section 451 Cr.P.C. for custody and disposal of property pending
trial in certain cases.
9. Petition under section 457 Cr.P.C. for interim custody of the case
properties.
10. Petition under section 482 Cr.P.C. for a relief which is not provided in any
specific provision of the Court.
11. Discharge petition either under section 227 or 239 Cr.P.C as the case
may be
12. Section 91 Cr.P.C
As per section 273 Cr.P.C the evidence shall be recorded in the presence
of the accused or his personal presence is dispensed in presence of his pleader.
It is mandatory under criminal law that the accused of an offence shall appear
in the Court for all the dates of hearing during trial of the matter so as to hear
the evidence and know his case, it is for the reason to provide fair trial, this is
because no accused shall be punished unheard. For the reasons to be
explained to the satisfaction of the Court, such presence can be condoned by
petition filed under 317 Cr.P.C.
11
as well as security for return of the said vehicles, if required at any point of
time. This can be done pending hearing of applications for return of such
vehicles.
[18] In case where the vehicle is not claimed by the accused, owner, or the
insurance company or by third person, then such vehicle may be ordered to be
auctioned by the Court. If the said vehicle is insured with the insurance
company then insurance company be informed by the Court to take possession
of the vehicle which is not claimed by the owner or a third person. If Insurance
company fails to take possession the vehicles may be sold as per the direction
of the Court. The Court would pass such order within a period of six months
from the date of production of the said vehicle before the Court. In any case,
before handing over possession of such vehicles, appropriate photographs of
the said vehicle should be taken and detailed panchnama should be prepared.
[21] However these powers are to be exercised by the concerned
Magistrate. We hope and trust that the concerned Magistrate would take
immediate action for seeing that powers under Section 451 Cr.P.C. are properly
and promptly exercised and articles are not kept for a long time at the police
station, in any case, for not more than fifteen days to one month. This object
can also be achieved if there is proper supervision by the Registry of the
concerned High Court in seeing that the rules framed by the H igh Court with
regard to such articles are implemented properly”.
The Hon’ble Supreme Court further directed that the powers under
Section 451 Cr.P.C. should be exercised expeditiously and judiciously so as to
serve various purposes, like owner of the article would not suffer because of its
remaining unused or by its misappropriation, the Court or the police would not
be required to keep the article in safe custody for longer period.
In a case between A.SATHISHA V/S STATE OF A P reported in 2015 (2)
Crimes 121 while dealing with the case properties involved in the Forest
offences it is held as under:
“in K.A.Kunchidammed , second forester v. Mansoor Ali Khan, 2004 1
SCC 293 which followed the earlier expression in State of Karnataka V.
K.Krishnan held that when a vehicle is involved in the forest offence, the same
is not to be released to the offender or to the claimant as a matter of routine till
the culmination of the proceedings which may include confiscation of such
vehicle. It was therefrom the facts held that the confiscation order passed by
the forest officials and sitting against by the learned District Judge against
which while sitting by the High Court in its invoking jurisdiction under Section
482 Cr.P.C for interim release of vehicle held is nothing but exceeding
jurisdiction.
[14] Having regard to the above, the law is fairly settled in saying that
because of the specific provision empowering the forest officials the criminal
13
Courts cannot assume the general jurisdiction conferred under Cr.P.C for
ordering interim custody or release of vehicle”.
Provision as to bails and bonds dealt from section 436 to 450 Cr.P.C
under which the accused can move Miscellaneous applications for bail or the
sureties can file application for discharge them as sureties, the accused can
also file miscellaneous application for mandatory bail under section 167(2)
Cr.P.C if the charge sheet is not filed within the contemplated period of his
detention.
Under section 311 Cr.P.C. miscellaneous petitions are filed to receive
documents or examine a person, recall or re-examine any witnesses etc. under
the provisions of the Code, the Hon’ble high court while dealing with a revision
preferred against the dismissal of the application under section 311 Cr.P.C in a
case between YARRAMADHA ASHOK V/S GADE RAM REDDY AND ORS
reported in 2017
(1) ALT(Cri) 38 while refering a decison of Hon’ble Apex Court it is held as
under:
“ In Natasha Singh v. CBI, 2013 5 SCC 741 the Apex Court held as under:-
"Fair trial is the main object of criminal procedure, and it is the duty of the
court to ensure that such fairness is not hampered or threatened in any
manner. Fair trial entails the interests of the accused, the victim and of the
society, and therefore, fair trial includes the grant of fair and proper
opportunities to the person concerned, and the same must be ensured as this
is a constitutional, as well as a human right. Thus, under no circumstances
can a person's right to fair trial be jeopardized. Adducing evidence in support of
the defence is a valuable right. Denial of such right would amount to the denial
of a fair trial. Thus, it is essential that the rules of procedure that have been
designed to ensure justice are scrupulously followed."
That in a different situation our Hon’ble High Court in a case between K
VITTALA RAO & 2 OTHERS V/S STATE OF ANDHRA PRADESH reported in
2017 (2) Crimes(HC) 194 while affirming the order of dismissal of application
under section 311 Cr.P.C, at the stage when the evidence concluded on the
ground that earlier counsel failed to elicit some facts held as under
“[12] For the reasons that;
i) the examination of prosecution witnesses has been completed and the
Sessions Case is coming up for the examination of applicants under Section
313 of the Code;
ii) that the ground agitated that the earlier advocate did not cross examine
PWs.1 to 3 and 5 on the aspect of harassment that was found out by the new
advocate of the petitioners/applicants themselves without assigning convincing
reasons to satisfy the conscience of the Court to accede to their request; and
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Paper Presented by
Sri P. Govardhan,
II Additional Senior Civil Judge
Vijayawada
3. In Iddar & Ors. vs. Aabida & Anr AIR 2007 SC 3029, the object underlying
under Section 311 Cr.P.C., has been stated that there may not be failure of
justice on account of mistake of either party in bringing the valuable evidence
on record or leaving ambiguity in the statements of the witnesses examined
from either side. The determinative factor is whether it is essential to the just
decision of the case. The section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the powers of the court to
summon a witness under the section merely because the evidence supports the
case for the prosecution and not that of the accused. The section is a general
section which applies to all proceedings, enquiries and trials under the Code
and empowers Magistrate to issue summons to any witness at any stage of
such proceedings, trial or enquiry. In Section 311 CRPC, the significant
expression that occurs is “at any stage of inquiry or trial or other proceeding
under this Code‟. It is, however, to be borne in mind that whereas the section
confers a very wide power on the court on summoning witnesses, the discretion
conferred is to be exercised judiciously, as the wider the power the greater is
the necessity for application of judicial mind.
4. In a decision Sanjay Chandra v. Central Bureau Of Investigation (2G
Spectrum Scam Case) (2012) 1 SCC 40 explained the factors to be considered
while granting or refusing bail.
20
Paper Presented by
Smt. U.Indira Priya Darshini,
IV Addl. Chief Metropolitan Magistrate,
Vijayawada.
Memo as held in between Syed Yousuf Ali Vs. Mohd. Yousuf and Others
2016 (3) ALD 235.
4. But it is difficult to determine which is the interlocutory order. There is
no hard and fast rule in determination of the same as decided in Smt.
Raminder Kaur Bedi Vs Jatinder singh Bedi (1989) 1 crimes 352 (Delhi).
For instance, Order granting interim maintenance is interlocutory order but a
contra view taken in a decision in Sunil Kumar Vs Ms. Neelam Sabharwal
(1991) 1 crimes 568 (D.B) In nutshell it can be called as a Petition other than
a main case.
5. When a Miscellaneous Petition is filed in Criminal cases, it is registered
as Criminal Miscellaneous Petition.
As soon as a Petition is filed, primary duty of the Court is to see whether
the relief sought is provided under Criminal Procedure Code or not.
If it is provided, the Petition shall be called in Public Court by assigning a
particular Miscellaneous number and notice shall be ordered to the opposite
party.
Having heard both the parties, a speaking order has to be pronounced.
In Criminal Courts, we come across several Miscellaneous Petitions
seeking different reliefs.
The petitions are being filed U/sec.90 and 91 Cr.P.C., Sec.125(3) Cr.P.C,
Sec.167 Cr.P.C, Sec.227 Cr.P.C, Sec.239 Cr.P.C, Sec.311 Cr.P.C, Sec. 317
Cr.P.C, Sec.319 Cr.P.C,Sec.321 Cr.P.C, Sec.437 Cr.P.C to Sec.439 Cr.P.C,
Sec.451 Cr.P.C and Sec.457 Cr.P.C for necessary reliefs.
Section 91 Cr.P.C- Summons to produce document or other thing. Section
91 with the head note Process to Compel Production of Things of the Code of
Criminal Procedure, 1973 states that:
(1) Whenever any Court or any officer in charge of a police station
consider that the production of any document or other thing is necessary or
desirable for the purpose of any investigation, inquiry, trial or other proceeding
under this code by or before such court or officer, such court may issue a
summons, or such officer a written order, to the person in whose possession or
power such document or thing is believed to be, requiring him to attend and
produce it, or to produce it, at the time and place stated in the summons or
order.
(2) Any person required under this section merely to produce a document or
other thing shall be deemed to have complied with the requisition if he causes
such document or thing to be produced instead of attending personally to
produce the same.
Sometimes the counsel for the defence may file Petition u/sec.91 Cr.P.C
to summons the documents at the time of framing charges. But at that stage, it
is to be kept in mind that the Court has to examine the material which is
22
(a) When a Petition is filed before Judicial Magistrate of First Class Court
seeking discharge of the accused in a case exclusively triable by the Court of
Sessions, the Court cannot discharge the accused in view of the decision held
in between Sanjay Gandhi Vs. Union of India AIR 1978 (SC) 514.
(b) A Criminal Miscellaneous petition for discharge of accused in summons
case is not at all maintainable as held by the Hon‟ble Apex Court in a case
between Adalat Prasad Vs. Rooplal Jindal AIR 2004 SC 4674 . Because
there is no question of discharge in summons case. Discharge in summons
case amounts to recall of summons, which is not permissible under law.
(c) When a petition is filed seeking for discharge of the accused, the court
cannot look into the documents produced by the accused vide decision
reported in Hem Chand Vs State of Jharkhand AIR 2008 SC 19.
Sec. 310 Cr.P.C- Local Inspection : Sometimes, the counsel for the
defence file Petition under section 310 Cr.P.C praying the Court to make local
inspection. But it is not at all desirable for the court to do so as held in a
decision between Maleedu Venkanna Vs. State of AndhraPradesh 2003(1)
ALD (Crl.) 117 where in our Hon‟ble High Court held that Local Inspection by
Presiding Officer is not at all a step in Criminal proceedings in normal
parlance.
Section 311 Cr.P.C- Power to summon material witness, or examine
person present. Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person as a witness, or examine any
person in attendance, though not summoned as a witness, or. recall and re-
examine any person already examined; and the Court shall summon and
examine or recall and re- examine any such person if his evidence appears to it
to be essential to the just decision of the case.
In Iddar & Ors. vs. Aabida & Anr. AIR 2007 SC 3029, the object
underlying under Section 311 Cr.P.C., has been stated that there may not be
failure of justice on account of mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the statements of the witnesses
examined from either side. The determinative factor is whether it is essential to
the just decision of the case. The section is not limited only for the benefit of
the accused, and it will not be an improper exercise of the powers of the court
to summon a witness under the section merely because the evidence supports
the case for the prosecution and not that of the accused. The section is a
general section which applies to all proceedings, enquiries and trials under the
Code and empowers Magistrate to issue summons to any witness at any stage
of such proceedings, trial or enquiry. In Section 311 the significant expression
that occurs is „at any stage of inquiry or trial or other proceeding under this
Code‟. It is, however, to be borne in mind that whereas the section confers a
very wide power on the court on summoning witnesses, the discretion
25
accused. The power Under this section could be exercised by the court suo
motu or on an application by any one including the accused standing trial
before the court. Therefore, even the accused can apply Under Section 319 (1)
Cr.P.C. to take cognizance against the other persons not charge sheeted by the
police, though they were equally involved in the offence. While the court is
exercising the jurisdiction Under Section 319 Cr.P.C the findings of exoneration
recorded by the investigating agency cannot be given precedents over the
finding recorded by a judicial court on the basis of contents of complaint, first
information report and also substantive testimony of the complainant during
trial who with stood the cross examination.
In one of the decision decided by the Hon'ble Supreme court in
Brijendra Singh and others Vs. State of Rajasthan Crl. Appeal No.763 of
2017 the Hon'ble Supreme court held that that the degree of satisfaction to
exercise power under Section 319 Cr.P.C. to summon persons not arraigned as
accused is more than the degree warranted at the time of framing of the
charges against others in respect of whom charge sheet filed. Further observed
that “Only where strong and cogent evidence occurs against a person from the
evidence led before the Court that such power should be exercised. It is not to
be exercised in a casual or a cavalier manner.
The scope of Section 319 Cr.P.C is clearly explained in Jabardin Khan
v. Stateof U.P. Criminal Misc. Writ Petition No. – 8865 of 2014, that just
on the basis of evidence adduced before it, if it appears to the Court that a
person against whom no charge has been framed but his complicity makes it
clear that he should be tried along with the other accused then as per S.319 of
Cr.P.C., the Court can invoke it‟s power to try such person. Further, it was
held that as per S. 319(4)(b) Cr.P.C., the accused, subsequently impleaded, is
to be treated as if he had been an accused when the Court initially took
cognizance of the offence and that the degree of satisfaction that will be
required for summoning a person under Section 319 Cr.P.C. would be the
same as for framing a charge. The Court also held that under the said
provision Trial Court is not required to wait for cross-examination as it can
take action on the basis of statement made by the concerned examination-in-
chief. Jabardin Khan v. State of U.P. Criminal Misc. Writ Petition No. –
8865 of 2014.
Section 321Cr.P.C – Withdrawal from Prosecution: The section further
requires that where the offence falls within any of the categories mentioned in
sub-clauses (i) to (iv) of the proviso, the permission of the Central / State
Government has to be obtained for moving an application for withdrawal from
the prosecution by the Public Prosecutor. However, where the prosecution is
being proceeded by a complainant on a private complaint, the Public
Prosecutor is not entitled to apply for withdrawal from prosecution in such a
27
case. It must be pointed out that Section 321 provides for „withdrawal from
prosecution‟ and not the „withdrawal of the prosecution, the accused shall be
discharged if the withdrawal is before the framing of a charge and he shall be
acquitted where no charge has been framed and such acquittal shall be a bar
to a re-trial under Section 300 of the Code.
It would also be pertinent to note the distinction between composition of
an offence under Section 320 and „withdrawal” under Section 321 of the Code.
The main distinction between the two is as follows —
1) Composition of an offence requires consent of both parties whereas
withdrawal is an act of one party only, namely, the Public Prosecutor.
2) Withdrawal is always with the consent of the Court but in case of
composition of an offence Court‟s permission is not always necessary
3) Composition necessarily ends in the acquittal of the accused, but in case
of withdrawal accused is discharged if withdrawal is made before a charge is
framed.
Section 321 applies to every kind of inquiry and trial as also all cases which are
capable of terminating either in a discharge or an acquittal according to the
stage at which application for withdrawal is made.
although another view is that its derivation is from the Latin term baiulare,
meaning `to bear a burden‟. Bail is a conditional liberty.
Bail may thus be regarded as a mechanism whereby the State devolutes
upon the community the function of securing the presence of the prisoners,
and at the same time involves participation of the community in administration
of justice.
In a decision Sanjay Chandra v. Central Bureau Of Investigation (2G
Spectrum Scam Case) (2012) 1 SCC 40 explained the factors to be considered
while granting or refusing bail.
Purpose of Bail
Seriousness of the charge not the only relevant factor while considering
bail application Both the seriousness of the charge and the severity of the
punishment should be taken into consideration while granting bail.
Right to bail is not to be denied merely because of the sentiments of the
community against the accused.
Article 21 violated when under-trial prisoners are detained in jail custody
to an indefinite period Person whose application for enlargement on bail is once
rejected is not precluded from filing a subsequent application for grant of bail if
there is a change in the fact situation.
Findings of a higher court or a coordinate bench must receive serious
consideration at the hands of the court entertaining a bail application at a later
stage when the same had been rejected earlier.
Order for bail bereft of any cogent reason cannot be sustained.
Basic criterion for cancellation of bail - interference or even an attempt to
interfere with the due course of administration of justice‟
Duty incumbent on the High Court to explicitly state the reasons as to
why the sudden departure in the order of grant as against the rejection
Prolonged delay in disposal of the trials and thereafter appeals in criminal
cases, for no fault of the accused, confers a right upon him to apply for bail.
In bail applications, generally, it has been laid down from the earliest
times that the object of bail is to secure the appearance of the accused person
at his trial by reasonable amount of bail. The object of bail is neither punitive
nor preventative. Deprivation of liberty must be considered as a punishment,
unless it can be required to ensure that an accused person will stand his trial
when called upon. The courts owe more than verbal respect to the principle
that punishment begins after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that detention in custody
pending completion of trial could be a cause of great hardship. From time to
time, necessity demands that some un-convicted persons should be held in
custody pending trial to secure their attendance at the trial but in such cases,
29
place it may be returned during any inquiry or trial. This may particularly be
necessary where the property concerned is subject to speedy or natural decay.
There may be other compelling reasons also which may justify the disposal of
the property to the owner or otherwise in the interest of justice. The High Court
and the Sessions Judge proceeded on the footing that one of the essential
requirements of the Code is that the articles concerned must be produced
before the Court or should be in its custody. The object of the code seems to be
that any property which is in the control of the Court either directly or
indirectly should be disposed of by the Court and a just and proper order
should be passed by the Court regarding its disposal. In a criminal case, the
police always acts under the direct control of the Court and has to take orders
from it at every stage of an inquiry or trial. In this broad sense, therefore, the
Court exercises an overall control on the actions of the police officers in every
case where it has taken cognizance." The Court further observed that where the
property is stolen, lost or destroyed and there is no prima facie defence made
out that the State or its officers had taken due care and caution to protect the
property, the Magistrate may, in an appropriate case, where the ends of justice
so require, order payment of the value of the property.
To avoid such a situation, in our view, powers under Section 451Cr.P.C.
should be exercised promptly and at the earliest. Valuable Articles and
Currency Notes With regard to valuable articles, such as golden or sliver
ornaments or articles studded with precious stones, it is submitted that it is of
no use to keep such articles in police custody for years till the trial is over. In
our view, this submission requires to be accepted. In such cases, Magistrate
should pass appropriate orders as contemplated under Section 451Cr.P.C. at
the earliest. For this purposes, if material on record indicates that such articles
belong to the complainant at whose house theft, robbery or dacoity has taken
place, then seized articles be handed over to the complainant after:-
(1) preparing detailed proper panchanama of such articles:
(2) taking photographs of such articles and a bond that such articles would
be produced if required at the time of trial; and (3) after taking proper security.
For this purpose, the Court may follow the procedure of recording such
evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The
bond and security should be taken so as to prevent the evidence being lost,
altered or destroyed. The Court should see that photographs or such articles
are attested or countersigned by the complainant, accused as well as by the
person to whom the custody is handed over. Still however, it would be the
function of the Court under Section 451 Cr.P.C. to impose any other
appropriate condition.
In case, where such articles are not handed over either to the
complainant or to the person from whom such articles are seized or to its
32
claimant, then the Court may direct that such articles be kept in bank lockers.
Similarly, if articles are required to kept in police custody, it would be open to
the SIIO after preparing proper panchanama to keep such articles in a bank
locker. In any case, such articles should be produced before the Magistrate
within a week of their seizure. If required, the Court may direct that such
articles be handed over back to the Investigating Officer for further
investigation and identification, However, in no set of circumstances, the
Investigating Officer should keep such articles in custody fora longer period for
the purpose of investigation and identification. For currency notes, similar
procedure can be followed. Number of vehicles are kept unattended and
vehicles become junk day by day. It is his contention that appropriate
directions should be given to the Magistrates who are dealing with such
questions to hand over such vehicles to its owner or to the person from whom
the said vehicles are seized by taking appropriate bond and the guarantee for
the return of the said vehicles if required by the Court at any point of time.
In case where the vehicle is not claimed by the accused, owner, or the
insurance company or by third person, then such vehicle may be ordered to be
auctioned by the Court. If the said vehicle is insured with the insurance
company then insurance company be informed by the Court to take possession
of the vehicle which is not claimed by the owner or a third person. If Insurance
company fails to take possession, the vehicles may be sold as per the direction
of the Court. The Court would pass such order within a period of six months
from the date of production of the said vehicle before the Court. In any case,
before handing over possession of such vehicles, appropriate photographs of
the said vehicle should be taken and detailed panchanama should be prepared.
For articles such as seized liquor also, prompt action should be taken in
disposing it of after preparing necessary panchanama. If sample is required to
be taken, sample may kept properly after sending it to the chemical analyser, if
required. But in no case, large quantity of liquor should be stored at the police
station. No purpose is served by such storing.
Similarly for the Narcotic drugs also, for its identification, procedure
under Section 451 Cr.P.C. should be followed of recording evidence and
disposal. Its identity could be on the basis of evidence recorded by the
Magistrate. Samples also should be sent immediately to the Chemical Analyser
so that subsequently, a contention may not be raised that the article which
was seized was not the same.
Conclusion:
The criminal court shall endeavor to dispose of the miscellaneous
petition, as early as possible, because, it effects entire criminal justice system.
The dubious miscellaneous petitions, which would be filed to drag on the case
without any being of decision of the court, those petition shall be decided
33
without any delay and, filing such petition shall be disposed off with cost, and
it is incumbent upon the court to deprecate such petition. As and when a
petition is filed, the primary duty of the court is that, whether such petition is
maintainable as per law and having come to conclusion that such petitions are
maintainable, and court shall assign a number to the petition and after that
notice shall be ordered to the opposite part. Having heard both the parties, the
court shall pass an order and such order shall be a speaking order.
34
Paper Presented by
Sri Kumar Vivek,
Senior Civil Judge,
Nandigama.
1
2000 (1) LS 78 M/s. Ramakrishna Agencies, Guntur vs. State of Andhra Pradesh, rep. by the Public
Prosecutor
2
AIR 1988 SC 414 Sanjay Suri vs Delhi Administration, Delhi
35
3
AIR 2008 SC 251 INDER MOHAN GOSWAMI vs. STATE OF UTTARANCHAL
4
AIR 1970 SC 962 ASSISTANT COLLECTOR OF CUSTOMS, BOMBAY vs. L R MELWANI
5
AIR 2005 SC 359 State vs. Debendra
6
AIR 1965 SC 1251 STATE OF GUJARAT vs SHYAMLAL MOHANLAL CHOKSI, MANUBHAI MOTILAL PATEL
7
1997 (10) SCC 342 ANJALI ANIL RANGARI vs ANIL KRIPASAGAR RANGARI
8
AIR 2017 SC 1174 Shailaja and Anr. vs. Khobbana
36
9
C.Subramanyam vs. C.Sumathi. 2003 (2) ALD (Cri) 905 AP
10
Mad L.J.1986 (1) 514
11
1990 (1) ALT 450 Golla Seetharamulu vs. Golla Rathanamma
12
AIR 2008 SC 3006 Shail Kumari Devi vs. Krishan Bhagwan Pathak @ Kishun B Pathak
13
2014 (1) SCC 188 Badshah vs. Sou Urmila Badshah Godse & Anr
14
2015 (1) ALD (Crl.) 484 (SC) Sunita Kachwaha & Ors vs. Anil Kachwaha
15
1991 Mad LJ (Crl.) 99
16
AIR 2015 SC 1758 Mrs.Priyanka Srivastava & Another vs. State of U.P. and others
37
17
1996 (1) Crimes 70 Public Prosecutor High Court of Andhra Pradesh vs. J.C.Narayana Reddy
18
1996 (1) ALD Crl. 506 Public Prosecutor High Court of Andhra Pradesh vs. J.C.Narayana Reddy and others
19
AIR 1992 SC 1768 Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J
Kulkarni
20
2009 (1) ALD (Crl.) 818 (AP) Venkatarayanakote Krishnappa Raghavendra and another vs. State of
Andhra Pradesh
21
2003 (1) LS 363 Dr.Syed Shamshuddin Babar vs. Ikram Ali Kaleem and Anr
22
AIR 1954 SC 266 Harihar Chakravarty vs State of West Bengal
38
charge has been read over and explained to the accused23. An informant can
file a petition under section 216 of the Code of Criminal Procedure for
alteration of charge and there is scope for alteration of charge during trial on
the basis of material brought on the record24.
Petition filed for discharge of the accused under section 227 of the
Code of the Criminal Procedure.
At the stage of deciding petition for discharge of the accused the Judge is
not to see as to whether trial will end in conviction or acquittal and section 227
postulates exercise of judicial mind on the part of the Judge to the facts of the
case in order to determine whether a case for trial has been made out by the
prosecution25. Where an offence is exclusively trial by the Court of Sessions,
the Committing Magistrate has no power to discharge the accused26. If made
up facts supported by any material or reported by the police and sessions of
offence is made to appear, it would be open to the Sessions Judge to discharge
the accused under section 227 of the Code of the Criminal Procedure. Truth,
veracity and effect of evidence not to be judged at the time of deciding petition
under section 227 of the Code of the Criminal Procedure27.For the purpose of
determining whether there is sufficient ground for proceeding against an
accused, the Court possesses comparatively wider description in exercise of
which it can determine the question whether the material on record, if un-
rebutted, is such on the basis of which a conviction can be said reasonable to
be possible28.
Petition filed for discharge of the accused under section 239 of the
Code of the Criminal Procedure.
No evidence need be recorded before discharging the accused under
section 239 of the Code of the Criminal Procedure29. Documents filed by the
accused at the time of filing of petition under section 239 of the Code of the
Criminal Procedure cannot be considered and the documents filed by the
prosecution alone has to be considered at that stage30. Section 239/245 of the
Code of the Criminal Procedure makes it obligatory on the part of the
Magistrate to record reasons while discharging the accused, but no such
23
AIR 1995 SC 1219 Ranbiryadav vs State of Bihar
24
AIR 2016 SC 1197 Anant Prakash Sinha @ Anant Sinha vs. State of Haryana & Anr
25
2008 (6) Scale 469 Yogesh @ Sachin Jagdish Joshi vs State of Maharastra
26
AIR 1978 SC 514 Sanjay Gandhi vs Union of India
27
AIR 1980 SC 1780 Kewal Krishan vs Suraj Bhan
28
AIR 1977 SC 1489 L.Karnataka vs L.Munishwamy
29
AIR 1964 SC 949 Ramnarayan Mor vs State of Maharastra
30
AIR 2005 SC 359 State of Orissa vs. Debendranath Padhi
39
31
AIR 2000 SC 522 Kanti Bhadra Shah vs State of West Bengal
32
AIR 1999 SC 2071 Arun Vyas vs Anita Vyas
33
2003 (2) ALT (Crl.) 251 Dharasbhai Gorakhbhai Nayak vs State of Gujarat
34
2005 (2) ALD (Crl.) 944 N.Raja Mallareddy vs. State of Andhra Pradesh and another
35
2001 Crl.L.J 3217 State of Madhya Pradesh vs. Pittu@ Pratap Singh
40
section 311 of the Code of the Criminal Procedure the Court is empowered to
examine a person though he was not cited as a witness by the prosecution in
the charge sheet or by the complainant in the private complaint, but the
accused must be afforded an opportunity to rebut that evidence37. Where the
lacuna in the prosecution case is left at the stage of filing of charge sheet, that
cannot be overcome by the prosecution during the course of trial or by taking
recourse to the provisions of section 311 of the Code of the Criminal Procedure,
and the second part of the section 311 of the Code of the Criminal Procedure is
mandatory 38 . Under section 311 of the Code of the Criminal Procedure the
Court is empowered to recall/re-examine a witness, whose evidence was
eschewed, especially when his evidence is found to be essential for just
decision in the case39. A witness may be recalled for further cross-examination
for limited purpose of asking only a specific questions, and in the name of
further cross-examination a witness should not be allowed to be cross-
examined as done at the first instance when witness was tendered for cross-
examination40. Unless there are compelling or substantial reasons furnished by
the accused for recalling witness, ordinarily witnesses cannot be recalled when
the Counsel appearing for the accused has cross-examined the prosecution
witnesses at length and there is no need to cross-examine them further 41 .
When a prosecution witness is recalled at the stage of arguments on the
ground that relevant evidence was not brought on record due to inadvertence,
it does not amount to trying to fill up a lacuna in the prosecution evidence42.
The accused cannot be examined under section 311 of the Code of the Criminal
Procedure on his own application along with other defence witnesses as no
oath can be administered to an accused and permission to examine the
accused himself can be granted only if separate application under section 315
of the Code of the Criminal Procedure is filed 43 . When the defence of the
accused is not sudden and unexpected, the accused had at the initial stage
suggested his defence on his examination under section 313 of the Code of
Criminal Procedure to the defacto-complainant recalling of the defacto-
36
1998 (2) LS 296 Beagari Pentaiah and others vs. State of Andhra Pradesh
37
2005 Cri.LJ 716 Cheemo Steel Limited, Secunderabad and another vs. State of Andhra Pradesh and others
38
2003 ALD (Crl.) 44 (NOC)(Bom) Fatehsinh Mohansinh Chauhan and another vs. Union Territory of Dadra
and Naga Haveli, Silvassa and another
39
2007 (3) APLJ 262 Jeslina Ghei vs. State of Andhra Pradesh and others
40
2010 (1) LS 89 Ch.Ramakoteswara Rao and others vs. State of Andhra Pradesh
41
2010 (2) ALD Crl. 847 State of Andhra Pradesh vs. Ramancha Lakshmareddy
42
AIR 1999 SC 2292 Rajendra Prasad vs.Narcotic Cell through its Officer-in-charge, Delhi
43
2000 (9) SCC 754 Salvi J.Jayalalitha vs State rep. by Deputy Superintendent of Police, Chennai
41
44
1987 (1) Bom C R 533 Shridhar Waman Surushe vs. State of Maharashtra
45
1975 Cri L.J. 1715 T. Bhasyam vs. State
46
AIR 2006 SC 1892 Lok Ram vs. Nihal Singh
47
AIR 2004 SC 4298 Krishna vs. State
48
Crl.A.No.1750 of 2008Hardeep Singh vs. State of Punjab
49
AIR 2008 SC 3074 Manish Jalan vs.State of Karnataka
50
2008 (3) Scale 443 R.Rajeswari vs H.N.Jagadish
42
51
AIR 2006 SC 413 S.K Shukla vs State of Utter Pradesh
52
2004 Crl.LJ.1318 = 1991 (4) Orissa Cri R 263
53
AIR 1979 SC 877
54
AIR 1987 SC 877 Sheonandan Paswan vs State of Bihar
55
AIR 1972 SC 495 Nabi Bux vs state of Madhya Pradesh
56
1998 (1) APLJ (Crl.) 317 K.K.Viswanatha Raju vs.State of Andhra Pradesh
57
AIR 1972 SC 2267 Jai Shankar vs State of Himachal Pradesh
58
2000 (2) ALD Crl.562 Illa Srirama Murthy vs. Sanivarapu Satyanarayana and others
43
does not apply to the documents which are forged prior to filing of them before
the Court59. The provisions of section 195 of the Code of Criminal Procedure
are mandatory and the Court has no jurisdiction to take cognizance of any of
the offences mentioned therein unless there is a complaint in writing as
required by that section60. Making of a contradictory statement in a judicial
proceeding is not sufficient to justify prosecution under section 199 and 200 of
the Indian Penal Code but it must be shown that the defendant has
intentionally given a false statement or fabricated false evidence for the
purpose of using the same at any stage of judicial proceedings. Holding of
preliminary inquiry under section 340 (1) of the Code of Criminal Procedure is
not mandatory if the formation of the opinion is otherwise possible and the
procedure prescribed for trial of warrant cases have to be followed in respect of
the offences under section 195 (1) (b) (1) of the Code of Criminal Procedure61.
Petition filed under section 362 of the Code of the Criminal
Procedure for alteration of Judgment.
Where the Sessions Judge allowed the appeal of the accused against
conviction by the trial Court under section 498-A of the Indian Penal Code and
sections 4 and 6 of the Dowry Prohibition Act, 1961 but due to oversight failed
to mention section 4 of the Dowry Prohibition Act, 1961 in the operative part of
the Judgment then the Sessions Judge allowed the petition filed under section
362 of the Code of the Criminal Procedure, that was held to be rightly allowed
for correction of clerical mistake, and it cannot be termed as review of the
Judgment62.
Petition filed under section 389 (1) of the Code of the Criminal
Procedure for suspension of the sentence pending the appeal.
Dismissal from service due to conviction of a Government servant due to
non-suspension of the conviction is not a ground to suspend the sentence as
the Court has to see as to whether irreparable injury is going to be caused to
the convict in case his conviction is not suspended and dismissal from service
on the ground of conviction is not an irreparable injury as it becomes
repairable the moment appeal is allowed63.
Petition filed under section 436 of the Code of the Criminal
Procedure for bail in bailable offence.
59
1999 (2) ALD 953 Shaik Mahaboob Shareef vs.State and another
60
AIR 1971 SC 1708 Govind Mehta vs. State of Bihar
61
AIR 2016 SC 5384 Amarsang Nathaji vs.Hardhik Harshadbhai Patel
62
2004 (2) ALD (Crl.) 524 Dr.G.Venkateswara Rao vs. Center for DNA Finger Printing and Diagonstics,
Nacharam, Hyderabad and another
63
2012 (1) ALD (Crl.)426 L. Satish Kumar vs. State of Andhra Pradesh
44
64
AIR 1967 SC 1639 Ratilal Bhanjl Mithani vs Assistant Collector of Customs, Bombay
65
AIR 2012 SC 830 Sanjay Chandra vs. Central Bureau of Investigation
66
2009 (2) ALD (Cri.) 948 Talluri Srinivas vs. State
67
AIR 2005 SC 716 Jayendra Saraswathi Swamigal vs.State of Tamilnadu
68
AIR 2004 SC 4258 State of Maharashtra vs Sitaram Popat Vetal
69
Crl.A.No.509, 511 of 2017 Hussain and Anr. vs.Union of India, and Aasu vs. State of Rajasthan
70
AIR 1978 SC 1594 Motiram vs State of Madhya Pradesh
71
2007 (7) Scale 377 Rizwan Akbar Hussain Syyed vs. Mehmood Hussain
72
AIR 2005 SC 921 Kalyanchandrasarkar vs Rajesh Ranjan @ Pappu Yadav
73
AIR 2002 SC 1405 Anil Ratan Sarkar vs Hirak Ghosh
45
second purpose is to see that the accused shall not threaten the prosecution
witnesses and interfere with the process of criminal justice system and
conditions have to be imposed keeping in view the rights of the accused and
the rights of the victims and witnesses74. Whenever the accused is enlarged on
bail he need not be required to appear before the Court until charge sheet is
filed and process is issued by the Court75. The grounds for cancellation of bail
under section 437 (5) and 439 (2) of the Code of the Criminal Procedure are
identical, illustrative and not exhaustive and since the cancellation of bail is a
harsh order as it takes away the liberty of the individual granted, hence should
not be likely issued 76 . Where one of the conditions imposed at the time of
granting bail on the accused was to pay cash deposit of Rs.10,000/- within one
month of release apart from executing personal bond of Rs.50,000/- with two
sureties, such insistence on cash deposit of Rs.10,000/- is illegal 77 .
Cancellation of bail of the accused for breach of promise on their part to
produce in Court the other accused also who are not attending the Court is
illegal78.
Petition filed under section 438 of the Code of the Criminal
Procedure for grant of anticipatory bail.
The gravity of the offence and the need for custodial interrogation of the
accused are important factors to be taken into consideration at the time of
adjudicating petition under section 438 of the Code of the Criminal
Procedure79. The order granting anticipatory bail should fix the date for the
continuation of bail to enable the accused to approach the regular Court for
bail and such order should not be a blanket order of protection from arrest80.
The order of anticipatory bail becomes operative only on arrest, and there is no
question of releasing the accused on bail unless he is arrested. Where the
Court of Sessions instead of granting anticipatory bail, directed the petitioners
to surrender before the Magistrate within 5 days, upon which the petitioners
would be released on executing a personal bond for Rs.7,500/- with two
sureties for the likesum and the petitioners failed to surrender as directed and
instead filed another petition seeking anticipatory bail but the said petition was
rejected granting extension of time for surrender for 5 days, the said order of
74
AIR 1982 SC 1463 Free Legal Aid Committee, Jamshedpur vs State of Bihar
75
2013 (3) ALT (Crl.) 453 Koneru Rajendra Prasad vs. State
76
AIR 1993 SC 1 Aslam Babalal Desai vs State of Maharashtra
77
2003 ALD (Crl.) 13 (NOC) Karn Kaleem vs. State
78
1999 (5) ALD (Crl.) 51 Harijan Muddavaram Pedda Madduleti and others vs. State of Andhra Pradesh
79
2003 (8) Scale 340 Bharat Chowdhary and another vs. State of Bihar and another
80
2008 (2) ALD (Crl.) 945 Union of India vs. Padam Narayan Agarwal
46
81
2012 (2) ALD (Crl.) 305 Pedda Mareppa and others vs.State of Andhra Pradesh
82
1996 (2) ALT (Crl.) 629 (AP)Additional Director General of Anti-evasion, Madras vs. Nathmal Bajaj
47
to take possession the vehicles may be sold as per the direction of the Court.
The Court would pass such order within a period of six months from the date
of production of the said vehicle before the Court. In any case, before handing
over possession of such vehicles, appropriate photographs of the said vehicle
should be taken and detailed panchnama should be prepared. For articles
such as seized liquor also, prompt action should be taken in disposing it of
after preparing necessary panchnama. If sample is required to be taken,
sample may kept properly after sending it to the chemical analyzer, if required.
But in no case, large quantity of liquor should be stored at the police station.
Similarly for the Narcotic drugs also, for its identification, procedure under
Section 451 Cr.P.C. should be followed of recording evidence and disposal. It
identity could be no the basis of evidence recorded by the Magistrate. Samples
also should be sent immediately to the Chemical Analyzer so that
subsequently, a contention may not be raised that the article which was seized
was not the same 83 . The Excise Court cannot grant interim custody of the
vehicle seized under the section 7-A read with section 8 (e) of the
A.P.Prohibition Act that was deposited before the Deputy Commissioner of
Prohibition and Excise for confiscation84. Keeping the vehicle which is subject
matter of the offence in the Court is not advisable and it is better to entrust the
same to its registered owner imposing some conditions85.
83
AIR 2003 SC 638 Sunderbhai Ambalal Desai vs. State of Gujarat
84
2015 (1) ALD (Crl) 272 K.Sasikumar vs. State of Andhra Pradesh
85
2001 (1) ALD (Crl.) 204 (SC)Ashok Kumar vs. State of Bihar and others
48
Paper Presented by
Smt. N.Anitha Reddy,
IV Addl. Junior Civil Judge,
Vijayawada.
convicting the accused has been made out of it. (State of Tamilnadu by
Inspector of Police, Anti corruption Vs.Suraj Rajan and others reported in
2014(3) SCC (Crl.)529)
6) When a petition is filed before Judicial Magistrate of I Class court seeking
discharge of the accused in a case exclusively triable by the court of Sessions,
the court cannot discharge the accused in view of the decision report in AIR
1978 (SC) 514 held in between Sanjay Gandhi Vs.Union of India. Some times,
the counsel for the defence comes with petition under section 310Cr.P.C
praying the court to make local inspection, but it is not at all a desirable for the
court to do so. In a decision held in between Maleedu Venkanna Vs.State of
Andhra Pradesh reported in 2003 (1) Ald (Crl.) 117, our Hon’ble High Court
held that Local inspection by presiding officer is not at all a step in Criminal
proceedings in normal parlance.
7) When a petition is filed seeking for discharge of the accused, the court
cannot look into the documents produced by the accused vide decision
reported in AIR 2008 SC 1903 held in between Hem Chand Vs.State of
Jharkhad.
8) Generally we come across with petitions filed under section 311 Cr.P.C.
praying the court to recall witness who were already examined. The Court has
to see whether recall of witness is necessary to come to just conclusion vide
Rama Paswan and others Vs.State of Jharkhand reported in 2007(2) ALD
(SC)494.
9) In Judicial Magistrate of I Class courts and Family courts, criminal
miscellaneous petitions are filed U/s.125(3) of Cr.P.C for recovery of future
maintenance. The future salary of husband can be attached vide a decision
held in between Mani Vs.Jaya Kumar reported in 1998 Crl.L.J.3708.
10) A criminal Miscellaneous petition for discharge of accused in summons
case is not at all maintenable. It is held by Apex court in a case reported in
AIR 2004 SC 4674 held in between Adalat Prasad Vs.Rooplal Jindal.
11) When the prosecution filed a petition U.sec.319 Cr.P.C praying the court
to proceed against to her persons other than the accused who are facing trial,
the court can allow the said petition basing on examination in chief itself.
There is no need of giving opportunity to proposed accused for cross
examination vide Gangadara Nandagiri Swamiju Vs.State of A.P. reported in
2002 (1) ALD 680.
12) sometimes the counsel for the defence files petition U/s.91 Cr.P.C to
summons the documents. At the time of framing charges, it is be keep in
mind, the court has to examine the material which is produced by the
prosecution and it cannot summon any document at the instance of the
accused. This preposition of law is laid down by Hon’ble Supreme court of
50
India in acase reported in AIR 2005 SC 359 held in between State of Orissa
Vs.Dobendra Nath Padhl.
13) In cases relating to the petitions for return of case property for interim
custody, the court shall not retain the property unnecessarily and it is required
to order for interim custody after ascertaining the ownership of the property
with a direction to produce the same as and when required by the court. The
guidelines regarding the return of property by the court discussed in a decision
reported in 2003 (1) ALD (Crl.) 8 held in between Sunderbhal Ambalal Desai
Vs.State of Gujarat.
14) The other Miscellaneous petitions which are filed before the Criminal
Courts regularly are the petitions under Section 256 and 317 of Cr.P.C. In
addition to the above Miscellaneous petitions, another important Miscellaneous
petitions used to be filed by the accused in criminal cases are the bail petitions
U/s.436 Cr.P.C and Sec.437 Cr.P.C before the Judicial Magistrate of I Class
courts and Sec.438 Cr.P.C and 439 Cr.P.C before the Sessions court for
seeking the bail. However, there is a separate topic in this workshop for
discussion about the bails. Therefore, I am not intending to refer anything
more in respect of the bail petitions.
15) The Criminal Court shall endeavor to dispose of the Miscellaneous
petition as early as possible because,it effects entire criminal justice system.
The dublous Miscellaneous petitions which would be filed to drag on the case
without any being of decision of the court, those petitions shall be decided
without any delay and filing such petitions shall be disposed off with cost and
it is incumbent upon the court to deprecate such petitions.
16) As and when petition is filed, the primary duty of the court is that
whether such petitions are maintainable as per law and having come to
conclusion that such petitions are maintainable, court shall assign a number
to the petitions and after that, notice shall be ordered to the opposite parties.
Having heard both the parties, the court shall pass an order and such order
shall be a speaking order.
51
Paper Presented by
Smt. B.M.R. Prasanna Latha,
Addl. Junior Civil Judge,
Tiruvuru.
CRIMINAL MATTERS
The cause title of every memorandum of appeal or petition shall contain--
(I) the name, description and address with police station of each appellant
or petitioner;
(ii) the name, description and address with police station of each person,
who is proposed to be made the opposite party;
(iii) the status (whether prosecution, complainant, applicant, accused or
non-applicant, etc.) of the parties in the court below, wherever required.
GENERAL
1. No miscellaneous application for intervention, impleadment or
direction by a third party shall be entertained, unless otherwise directed by the
Court.
2. In the absence of a provision in any Statute or Rule for filing a main
case, application for leave to file such case shall accompany the main case.
3. No case or document shall be accepted, unless prescribed court fee is
paid.
4. No application or miscellaneous application shall be entertained
where review of a judgment or order is sought and where provisions of Order
XLVII of the Rules are attracted. In such a case, application for review shall be
filed.
5. No miscellaneous application for restoration or recall shall be
entertained in a main case dismissed peremptorily on account of failure to take
steps within the specified period, unless the defects, so notified, have been
cured.
6. A petition for special leave to appeal may be preferred against an
interlocutory order made in a case under Section 21 of Consumer Protection
Act, 1986.
55
18. The affidavit enclosed with the petition shall be of the same or
subsequent date of the drafting of the petition and shall contain the date,
number of paragraphs and pages of the petition.
19. Vakalatnama shall be of the same or the date prior to the drafting
date of the petition.
20. The date of attestation on the vakalatnama by the Jail
Superintendent shall be the same or subsequent to the date on which it was
executed by the accused person.
21. In case of re-filing, the advocate on-record shall give a certificate
that the defects communicated have been removed and no addition or
alteration in the case, as originally filed, has been made. In case of material
changes, such as, facts, paragraphs or page numbers, fresh affidavit shall be
filed.
22. Upon re-filing of the case, the advocate on-record or advocate or
party in-person, as the case may be, shall get an endorsement from the counter
Assistant on the converse of the token that the case has been re-filed. He shall
take back the paper book of the defective case retained by the Registry on the
same day. No request for return of such paper book shall be accepted after two
days.
23. The case file/paper book shall have one common index, as given
below, having running pagination as per Column (iii), corresponding to the
documents and/or applications to be kept in 76 Part I of the case file. The
applications to be listed before the Court and Judge in Chamber/Court of
Registrar shall be placed in Part I and Part II respectively. No applications
included in Part II shall form part of the paper book.