Trial court convicted the accused with lesser sentence. We were going to Mirzapur from Lucknow by road. On the way to our destination we stopped near XX for dinner. On a very petty issue some dispute arose between us and the accused persons. They hurled abuses and threatened to kill. When the dispute became heated some other person intervened and separated us. They stopped abusing but one of them came with a club and attacked us. Then all the accused persons started beating us. Somehow I managed to escape from the spot but my friend (deceased) was caught by the accused persons.
They took the deceased in their car. After a few hours, the dead body of my friend was found in a nala. Deceased sustained several injuries on his head, neck, chest, face, lower abdomen, back and legs. Post mortem was done and cause of death was antemortem injuries and homicide. FIR was lodged and charge sheet was filed in 302, 307, 201, 34 IPC. The trial court convicted the accused under Section 304 IPC and sentenced him for three years. It is miscarriage of justice. Please suggest what to do?
Asked from: Uttar Pradesh
It appears from the facts of the case that the sentence for culpable homicide under Section 304 IPC is improper and erroneous. Sentence is lesser than the offence committed by the accused. It was a cold blood murder. No doubt that the accused had the intention to kill the deceased.
You should immediately file an appeal to the high court under section 372 of the code of criminal procedure (crpc). Section 372 crpc empowers the victim to prefer against the conviction if he is aggrieved from the amount of sentence.
No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.
Section 372 of the code of criminal procedure
The analogy drawn by the trial court that the accused had no intention to kill has not been supported by the evidence. As per the facts of your case, the dispute was started on a very petty issue. You all were unknown to each other. There was no previous enmity. After intervention of some other people the accused were stopped hurling abuses but they caught the deceased and put him in car and after few hours his dead body was found.
The deceased was lastly seen with the accused, deceased sustained several injuries were cumulatively sufficient to cause death. The burden of proof was sifted on the accused to explain how the deceased sustained those injuries? I think that the accused failed to discharge that burden of proof.
Accused were beaten mercilessly by the deceased mercilessly and because of those fatal injuries your friend died. The nature and number of injuries itself proves that it was a cold blood murder and the accused were intended to kill the deceased.
There was no sudden provocation from the deceased. Deceased was not killen in a spur of the moment. The accused carried the deceased in their car and brutally beat him until his death. It proves that they had the intention to kill.
The sentence is insufficient and not in the appropriation of the offence committed by the accused. This is indeed a miscarriage of justice. You should file an appeal and the appellate court definitely convert the sentence into Section 302 IPC instead of Section 304 IPC. Trial court convicted the accused with lesser sentence in misappreciation of evidence could be a good ground for appeal. For more legal help please visit Kanoon India.
How do I know if there is a case pending on a land I want to buy? I am residing in Madhya Pradesh and my property situates in Uttar Pradesh. My father’s siblings are residing in UP but they are not interested in finding solution. Please help!
Asked from: Madhya Pradesh
Determining the existence of pending legal cases concerning a property you intend to purchase involves a systematic approach encompassing several key steps. Firstly, a meticulous examination of relevant records must be conducted. This entails a visit to the local revenue or land records office, where comprehensive documentation pertaining to the land in question is available for scrutiny. Here, details regarding ownership, encumbrances, and ongoing litigation are typically cataloged, furnishing valuable insights into the property’s legal standing.
Moreover, leveraging the digital infrastructure prevalent in many Indian states, including Uttar Pradesh, proves advantageous. Accessible online platforms such as the official website of the Uttar Pradesh Revenue Department or the Bhulekh portal facilitate remote exploration of land records. This digital accessibility streamlines the process, enabling individuals to ascertain pertinent information regarding the property’s status electronically.
Furthermore, engaging legal professionals proficient in property matters is instrumental. Entrusting qualified lawyers or reputable title search agencies to conduct a comprehensive title search ensures a thorough investigation into the property’s ownership history and potential legal encumbrances. This expert intervention significantly mitigates risks associated with unforeseen legal entanglements.
In instances where doubt persists, a direct inquiry with the adjudicating court serves as a prudent course of action. By visiting the relevant court handling land disputes, individuals can glean firsthand insights into any ongoing legal proceedings involving the specific land parcel under consideration. This proactive approach facilitates direct engagement with the legal system, fostering clarity and transparency in the evaluation process.
Finally, seeking legal counsel from specialized practitioners in property law remains paramount. Consulting with experienced lawyers versed in property matters empowers prospective buyers with informed perspectives on the intricacies of pending cases or disputes linked to the property. This legal guidance affords invaluable clarity, enabling prudent decision-making aligned with one’s vested interests.
In conclusion, navigating the landscape of property transactions mandates a methodical approach rooted in comprehensive due diligence. By adhering to these structured steps and leveraging professional expertise, individuals can effectively mitigate the risks associated with potential legal encumbrances, ensuring informed decision-making in property acquisition endeavors. Buyer must know about the case pending on land is mandatory before purchasing
Delay in trial despite order of the high court. I have been facing a criminal trial since 2012. A criminal case was lodged against me in February 2012 under sections 408, 420, 463, 477, 120B read with 34 of the IPC, which is pending in the trial court. The trial court framed charges against me based on the charge sheet in 2017. However, the prosecution has yet to secure case witnesses before the court. There has been no progress in the trial, and a deferred date has been fixed in my case.
In 2021, I petitioned the Hon’ble High Court to quash the FIR and criminal proceedings due to the delay in the trial. The Hon’ble High Court, alternatively, directed the trial court to dispose of the trial within one year, i.e., by November 2022. However, it has been one year and three months, and there have been no proceedings in the trial court. Please advise me on this matter with suitable citations from the Hon’ble Supreme Court and High Court.
Asked from: Delhi
Delay in trial despite order of the high court amounts to contempt of court. If there is no legal impediment to carry on the case. If the trial court is granting unnecessary adjournments to the prosecution, you may file a contempt petition in the High Court against the trial judge.
It is imperative for the trial judge to expeditiously dispose of the case without granting unnecessary adjournments and lengthy dates. Generally, criminal cases cannot be quashed solely on the grounds of delay in trial completion.
If you are cooperating in the trial but the prosecution shows disinterest, the trial court must issue bailable or non-bailable warrants against the witnesses. The trial court is empowered to take appropriate actions to expedite the trial’s disposal and cannot remain idle waiting for witnesses to appear.
Once the warrant has been issued, the witnesses are obligated to appear in court for the trial. In the aforementioned situation, you should file a contempt petition in the High Court if its order has not been complied with. Obtain a certified copy of the order sheet to demonstrate the status and progress of the case. For more legal help please visit Kanoon India.
Also read: Undertrials cannot be held indefinitely in jail
Lapses in the investigation under SC/ST Act. In a case under the SC/ST Act, a sub-inspector conducted the investigation, while the Assistant Commissioner of Police (ACP) merely signed the chargesheet without visiting the scene of the crime, conducting physical investigations, or gathering statements and evidence. Proxy investigation was carried out by the sub-inspector, and the ACP’s signatures on documents lacked memo numbers and seals. The victim did not receive protection under Section 164 of the CrPC, while witnesses for the accused did. The police also removed the SC/ST sections from all accused individuals and omitted the prime accused’s name from the chargesheet.
Subsequently, the lower district court disposed of the case, removing the SC/ST sections, and transferred it to another court. Meanwhile, the accused and their associates filed numerous counter cases against the SC/ST victim. This situation calls for urgent attention and intervention.
Asked from: Uttar Pradesh
The trial court is not bound to accept the charge sheet submitted by the investigating officer. If there are a lot of lapses in the investigation, the trial court, instead of taking cognisance of the offence, should pass an order for reinvestigation. However, lapses in the investigation does not give any advantage to the accused but the trial court has the duty to check the veracity of investigation.
In your case, reinvestigation is mandatory for the ends of justice. You should file a protest petition before the same trial court where the case has been transferred. It is not clear from your question whether the case has been transferred after the framing of charges or not. Lapses in the investigation under SC/ST Act is a matter of concern, therefore, you should immediately take measures to ensure just and fair investigation.
If the case has been transferred after the framing of charges, you should move a petition in the High Court under Section 482 of the Code of Criminal Procedure for a stay of the proceedings and for reinvestigation. For more legal help please visit Kanoon India.
Obstruction in construction despite obtaining necessary permissions. I have obtained the required permissions from the local Municipal Corporation for constructing my residential building. However, despite providing proper curtain cover to prevent dust and disturbances, my neighbours have been causing unnecessary disturbances and hindrances to our labourers and to the public road during the construction process. I kindly request advice on what strict legal actions or warnings can be issued to my neighbour to prevent interference in my construction activities.
Asked from: Uttar Pradesh
You should submit an application to the Sub Divisional Magistrate under Section 133 of the Criminal Procedure Code (CrPC) to address the obstructions created by your neighbour. Their actions are illegal, as if their rights are being infringed upon, they should file a complaint with the appropriate authority instead of causing disturbances or hindrances on public roads.
Under Section 133 of the Criminal Procedure Code (CrPC), Magistrates possess authority to address public nuisances or wrongful acts impacting the public. This provision enables them to issue orders to eliminate or mitigate nuisances and prevent their recurrence.
Key provisions include the issuance of conditional orders for the removal of nuisances within specified timeframes, immediate orders in urgent situations endangering public health or safety, and penalties for non-compliance with Magistrates’ orders.
Additionally, affected individuals retain the right to appeal Magistrates’ decisions to higher judicial authorities. Essentially, Section 133 empowers Magistrates to swiftly tackle public nuisances, safeguarding public welfare, safety and removing nuisance causing by neighbour. Obstruction in construction despite obtaining necessary permissions is amount to nuisance. Aggrieved person should invoke section 133 crpc.
Section 133 crpc
Section 133 of the Code of Criminal Procedure (CrPC) empowers a magistrate to issue a conditional order for the removal of a nuisance. Here’s a breakdown of the key points:
- Authority: District Magistrate, Sub-divisional Magistrate, or any other Executive Magistrate authorized by the State Government [1].
- Circumstances for Order: The magistrate can issue a conditional order if they are satisfied, based on a police report, other information, or some evidence, that:
- There’s an unlawful obstruction or nuisance in a public place, public way, river, or channel.
- A trade/occupation, keeping of goods, or construction activity is causing harm to public health or comfort.
- There’s a risk of fire or explosion due to a building or substance.
- A dangerous animal needs to be controlled or removed. [1]
- Content of Order: The order directs the person responsible for the obstruction/nuisance to remove it within a specified timeframe [1].
Essentially, Section 133 provides a mechanism for swift action against public nuisances that can potentially endanger public health, safety, or comfort. For more legal help please visit Kanoon India.
FIR lodged under prevention of corruption act against other than public servant. I am working under a service provider agency which is hired by the rural department for providing different experts for inspection of work conducted under the public works department rural areas. A work order given to a firm in December 2022 for completion of check dams in the rural area prone to flood. After completion of construction that firm has to obtain a completion certificate cum quality certificate from me. I have inspected the work done by the said firm and found so many anomalies in respect of quality and measurement of the work, then stopped the further proceeding. He contacted the anti-corruption bureau and caught me in a false trap. Now an FIR has been lodged and I am arrested. Can I challenge the FIR because I am not a public servant?
Asked from: Uttar Pradesh
You cannot challenge the legality of the First Information Report solely on the basis that you are not a public servant. You are an outsourced employee working in the department on a contractual basis, with remuneration paid by the government. It is immaterial that the salary has been disbursed by the service provider after receiving funds from the government.
More importantly, you qualify as a public servant due to your involvement in discharging a public duty. Conducting work inspections and issuing completion certificates in accordance with tender specifications falls under the purview of public duty.
Section 2(b) of the Prevention of Corruption Act 1988 (PC Act) defines “public duty” as a responsibility discharged in the interest of the State, the public, or the community at large.
(b) “public duty” means a duty in the discharge of which the State, the public or the community at large has an interest;
Section 2(b) of the Prevention of Corruption Act 1988
Section 2(c) of the Prevention of Corruption Act 1988 defines public servants. As per sub clause (viii) of clause (c) of Section 2 of the PC Act, any person who holds an office by virtue of which he is authorised or required to perform any public duty is said to be a public servant.
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty
Section 2(c)(viii) of the Prevention of Corruption Act 1988
Therefore, you are indeed a public servant, as defined by Sections 2(c) and 2(b) of the PC Act. The construction work for public purposes must adhere to tender terms and conditions in the larger public interest. Your responsibility includes inspecting the work and issuing completion certificates, demonstrating that you are discharging a public duty.
Rather than challenging your status as a public servant, you may seek to quash the FIR by demonstrating that the trap proceedings were false and orchestrated by the Anti-Corruption Bureau (ACB) team in violation of established procedures. If you have prima facie evidence indicating that you never demanded gratification, not given favour to the contractor for issuing completion certificates and that all proceedings are false and fabricated, the High Court may quash the FIR. For more legal help please visit Kanoon India.
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Allegations of kidnapping and death threats: my father-in-law’s filed fir. My father in law filed an FIR for the offence of kidnapping and threatening us if we return to our city. I solemnised marriage with my girlfriend when her father came to know about it and he has filed a criminal case against me. Our marriage is against the will of my father in law. He is an influential person and has good contacts in the administration. We are very afraid about the consequences when we go to our city. My parents are trying to settle this matter by engaging him to talk about the matter in the presence of respectable members of our society but failed to achieve anything.
Asked from: Uttar Pradesh
In this situation you need protection against the threatening and harassment from the police authorities. If you both are an major and of sound mind you have the right to solemnise marriage without consent of parents. FIR is not maintainable because no offence of abduction is made out in your case.
No need to file a counter case against the father in law. You should file a writ petition in the high court under Article 226 of the constitution of India for seeking protection order. No need to file habeas corpus writ because in these circumstances it is not maintainable as per the dictum of Kanu Sanyal vs DM Darjeeling, AIR 1979 SC 814.
You should file a writ petition because allegations of kidnapping is false. In the judgment and dictum of Lata Singh versus State of Uttar Pradesh (2006) 5 SCC 475 you are entitled to seek protection against such a threatening and false FIR, the High Court may direct the Superintendent of Police of your district to provide protection while you stay in your city. Additionally, the court may instruct the SP not to arrest the petitioner i.e. you in pursuance of the FIR. For more legal help please visit Kanoon India.
Related: Boyfriend threatening and causing violence: How to protect my girl?
There is compromise with my wife in a criminal case. My wife is living with me after compromise but the court refused to quash criminal case initiated by my wife under 498 A IPC. There was some dispute between me and my wife therefore, my wife had left my house and was living with her parents. In the influence of her parents she lodged an FIR for the offence of cruelty and demand of dowry. After a lapse of six years we had decided to live together hence, compromised all matters and settled our dispute out of the court. Then I moved an application to the court for dropping the criminal case. But the court has refused. My wife is not ready to appear in court, the court muharrir said that a warrant shall be issued against my wife if fails to appear in court. I am facing great problem how to settle this criminal case.
Asked from: Uttar Pradesh
The trial court’s refusal of your application is based on the fact that the offences of cruelty and dowry demand are non-compoundable, as per Section 320 of the Code of Criminal Procedure. This section categorises certain offences as compoundable, meaning they can be settled between the parties involved upon the will of the victim. However, Section 498A IPC and Sections 3 & 4 of the Dowry Prohibition Act are not designated as compoundable offences under Section 320 CRPC. Therefore, the trial court’s decision to deny your application appears appropriate.
In this situation, your next course of action would be to file a joint petition in the High Court under Section 482 of the Code of Criminal Procedure (CrPC) for the quashing of the entire criminal proceedings. The High Court possesses exceptional power under Section 482 CRPC and can consider special circumstances to determine whether it is expedient and in the interest of justice to allow the prosecution to continue.
Additionally, in Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors. [(1998) 5 SCC 749], the Supreme Court held that the sole purpose of Section 482 crpc is to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits.
Your wife is living with you and she is not willing to carry on this criminal proceeding. Therefore, chances of conviction are very bleak. If this proceeding will carry on and your wife becomes hostile the court cannot hold you guilty. So this proceeding became a futile exercise for both complainant and the court. Hence, such a proceeding should be quashed in the interest of justice.
In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [(1988) 1 SCC 692], the Supreme Court established that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features present in a particular case to determine whether it is expedient and in the interest of justice to allow a prosecution to continue. If the court deems that the chances of an ultimate conviction are slim and no useful purpose is likely to be served by continuing with the criminal prosecution, it may quash the proceedings.
In B.S. Joshi & Ors vs State Of Haryana & Anr AIR 2003 SC 1386 the Supreme Court has held that:
In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.
If the offence is non-compoundable the high court has power under Section 482 crpc to quash that proceeding for the ends of justice. Provisions of Section 320 crpc does not limit the inherent power of the high court vested by Section 482 crpc. The high court may quash the criminal proceeding despite the fact that offences are non-compoundable. For more legal help please visit Kanoon India.
Penile penetration is mandatory for rape under section 376 IPC before amendment act 2013. My brother has been convicted in the fake criminal case lodged under section 376 and 354 IPC. He was contesting election for gram pradhan in 2009 and won that election. Our village is dominated by muslim community but my brother, being a hindu had good support from the muslim. Therefore, he successfully won the election. After the election that FIR was lodged by the rival group. The allegation is that my brother went to the house of the victim and compel her to hold his penis. There was no evidence of sexual intercourse. The father of the victim was hostiled during the trial but the court overlooked all that evidence and convicted him for seven years. In this situation, what is the possibility of saving my brother? He is in jail from 3rd March 2024.
Asked from: Uttar Pradesh
Prima facie, it seems that the conviction is bad in law because in the absence of penile penetration, the offense of rape is not established. You mentioned nothing about the medical report of the victim, which is crucial evidence to establish the fact of penile penetration. Without a medical examination report, the court cannot form an opinion about whether there was penetration of the penis into the victim’s vagina.
In this situation, you should file an appeal against the order of conviction. This is the only remedy available in this scenario. Before the enforcement of the criminal law amendment act 2013, penile penetration was mandatory for a rape conviction. If the accused did not penetrate his penis into the victim’s vagina, he could not be punished for the offense of rape.
Holding the penis in hand may amount to the offence of outrage of modesty if it was against the will of the victim. However, you did not mention the age of the victim. If the victim’s age is below 12 years, her consent is immaterial. The offence under Section 354 is made out if the victim’s age is below 12 years. Therefore, the punishment under Section 354 IPC is appropriate.
When the victim’s age is between 12 to 18 and she is confronted in her statement under section 164 of the CrPC, then the court shall presume that she did not give her consent. In this situation, the conviction seems proper.
However, when the victim’s age is above 18 years and there is no evidence of use of force, deceitful act, or compulsion from the accused, the offence under Section 354 IPC is not established. Because an adult woman is competent to give her consent. For more legal help please visit Kanoon India.
Also read: Physical injury is not mandatory to prove the charge of rape
Whether revision lies against order in domestic violence. My wife has filed a case under the domestic violence act for the maintenance, protection order and residential relief. Now the magistrate granted an interim order as five thousand rupees per month. My advocate filed a revision in the sessions court and sought cancellation or alteration in the order of interim maintenance. When my advocate appeared the opposite party objected that it is not maintainable. My advocate is not willing to withdraw that application. Please help.
Asked from: Bihar
Your advocate has filed an incorrect application in the sessions court. A revision application is not maintainable because you have right to appeal under Section 29 DV Act. Section 29 of the Domestic Violence Act states that an appeal shall lie against any order passed by the judicial magistrate under this act.
When special statutes such as the Domestic Violence Act provide a specific procedure, they shall prevail over the procedures laid down in general law. Hence, the provisions of the Code of Criminal Procedure shall not apply in your case.
You need to file an appeal to the sessions court under Section 29 of the DV Act. Every order passed by the judicial magistrate under Domestic Violence Case is made appealable under DV Act. At this stage, you should withdraw that revision application and file an appeal.
Sessions court shall admit your appeal and if there is any apparent error it may remand the case to trial court. If you again feel aggrieved from the order of the appellate court, you can file a revision in the High Court under Article 227 of the Constitution. For more legal help please visit Kanoon India.
