by Shivendra Pratap Singh | May 22, 2025 | Criminal Matter
Magistrate cannot issue summons and direct further investigation at the same time. Magistrate has issued summons against three accused and directed the police officer to do further investigation in the said FIR. I have received a summons, in this situation police can do a fresh investigation or frame more accused in the case. The investigating officer submitted a final report that no such offence has been committed. Investigation was fair but the court by its order pressurised the officer to do fresh investigation.
Asked from: West Bengal
The order passed by the learned Magistrate appears to be erroneous and legally unsustainable, as he cannot simultaneously take cognizance of the offence under section 204 crpc and direct further investigation under Section 173(8) of the Code of Criminal Procedure, 1973. Once a final report (charge sheet) is submitted by the Investigating Officer under Section 173 CrPC, the Magistrate has three options:
- Accept the final report and close the case,
- Reject the report and take cognizance of the offence, followed by issuance of process under Section 204 CrPC, or
- Direct further investigation under Section 173(8) CrPC.
However, the Magistrate cannot adopt both options simultaneously—that is, he cannot take cognizance and at the same time direct further investigation. Such a dual course of action is impermissible under law and has been disapproved by higher courts in several decisions. In light of this procedural irregularity, you are advised to file a petition under Section 482 CrPC before the Hon’ble High Court, seeking quashing of the summoning order. Section 482 preserves the inherent powers of the High Court to prevent abuse of the process of court or to secure the ends of justice. Your petition should clearly highlight the contradiction in the Magistrate's order and demonstrate how it violates the procedural framework laid down in the CrPC. According the provisions of crpc the magistrate cannot issue summons and direct further investigation at the same time. Related:
by Shivendra Pratap Singh | May 22, 2025 | Criminal Matter
Magistrate has refused my complaint on the basis of a cross case lodged by the accused against the complainant. There was a dispute regarding the land. The opponent wanted to grab my land by force. Therefore, they have assembled a lot of people on the land to stop agricultural work on my land. Then I informed the police officer through dial 112. When the police came they scattered. They went to the police station and lodged a first information report against me and two more persons. When I came to know about the said FIR immediately approached the police station for lodging fir but the SHO refused to record our FIR. Then I moved 156(3) applications through my advocate. On final hearing the magistrate dismissed our complaint on the ground that a cross case has been filed by the accused against us.
Asked from: Uttar Pradesh
Prima facie, the order of the learned Magistrate dismissing the complaint appears to be erroneous and unsustainable in law. A complaint cannot be dismissed under Section 203 of the Code of Criminal Procedure, 1973, merely on the ground that the accused has lodged a cross-case.
Each case must be adjudicated independently, based on its own facts, evidence, and circumstances. If the complainant has adduced sufficient prima facie evidence disclosing the commission of a cognizable offence, the Magistrate is legally bound to take cognizance and issue process under Section 204 CrPC.
The mere existence of an FIR filed by the proposed accused against the complainant does not negate the right of the complainant to initiate criminal proceedings. In fact, the existence of a counter-case may support the existence of a dispute between the parties and further strengthen the complainant's case by establishing the genesis of the conflict.
As far as the admission of a complaint is concerned, if the contents of the complaint and the evidence adduced in support thereof prima facie constitute an offence, the Magistrate is under a legal obligation to take cognizance and issue process. Dismissal of such a complaint solely on the basis of an existing FIR lodged by the accused is impermissible under law.
In view of the above, you are advised to file a criminal revision under Section 397 CrPC before the appropriate Sessions Court or High Court, challenging the Magistrate’s order of dismissal. Such revision would enable the higher court to scrutinize the legality, correctness, and propriety of the impugned order. Magistrate wrongly refused complaint on the basis of cross case lodged by the proposed accused against the complainant.
Related:
by Shivendra Pratap Singh | May 21, 2025 | Civil Matter
Power of attorney holder has filed appeal against eviction decree after ten months. I am owner of a land. That was given as lease to a person. He was doing agriculture works and later on opened a dairy. The lease was for five years. After completion of tenure the lessee did not hand over the transfer of land. Then I filed a civil suit for eviction and compensation. The lessee appeared and contested the suit. But ultimately the court has decreed the suit in my favour. The court finds that the tenure of lease was for only five years.
Lessee did not file appeal against the eviction decree. After ten months his power of attorney holder filed an appeal. That power of attorney was executed after passing of eviction decree. Now the court has admitted the appeal and issued notice to me. They are trying to linger on the transfer of land because they are earning from dairy. I have been suffering from the delayed practice of handing over land. I am unable to enjoy the land and incurring huge legal expense. Thanks in advance.
Asked from: Haryana
This appeal is not maintainable. The power of attorney holder has no right to challenge the decree and lacks locus standi in this case. It is an undisputed fact that the appellant entered the land only after the eviction decree was passed. The judgement debtor (lessee) lost all rights with respect to the suit property after passing of decree/judgement.
Subsequently, the lessee executed a power of attorney and delegated his rights to the appellant. This delegation is illegal per se. Furthermore, the act of allowing another person to enter the property is also unlawful. Under the current circumstances, the appellant is a trespasser and has no legal right to interfere with the said land. Therefore, he has no right to file an appeal against a decree that has already attained finality.
The defendant i.e. lessee did not file an appeal within the prescribed period, and thus the decree has become final. A power of attorney holder, being a stranger to the suit, cannot prefer an appeal. He has no locus standi to do so, and hence, the appeal will stand dismiss at the initial stage.
You should file an objection challenging the appellant’s locus standi in the appeal. The court is likely to dismiss the appeal on the ground that power of attorney holder has no locus to file appeal.
by Shivendra Pratap Singh | May 19, 2025 | Property Dispute
Gift of immoveable property by grandfather according in Mohammedan Law is challenged by the other legal heirs in civil suit. My grandfather gifted a house to me and declared it in 2021. That declaration was made in presence of two tenants and one family friend. They are ready to state in the court that the oral gift was properly made by the owner. My grandfather was absolute owner of that house. He has three legal heirs. But only I lived with him. Others are living abroad. I am a lecturer in government college. My father died in last month and mother is living with me. When my grandfather died one of the legal heirs filed a civil suit and challenged the gift. My name is updated in the record of Nagar Nigam and also, I am paying house tax. The tenants are paying rent in my bank account. This civil suit is false and frivolous.
Asked from: Jharkhand
Based on the facts you've presented, it appears your claim regarding the validity of the gift under Mohammadan Law is strong. The law regarding the gift of immovable property in Muslim Law is settled by the Privy Council in Mohd. Abdul Ghani vs Fakhr Jahan Begum AIR 1922 PC 281. The Privy Council has held that there are three legal requirements for a valid gift in Mohammadan law.
- There must be a declaration of gift by the donor.
- That gift must be accepted, either directly or impliedly, by the donee or any other person on his behalf.
- The donor must transfer the possession of that property to the donee. If the donee is living in that gifted property he must take constructive possession of that property.
Written and registered gift deed is not required under the Mohammandan Law. Hence, an oral gift of immovable property is also valid. In your case the donor declared the gift in presence of three witnesses. The donor allowed you to receive rents from tenants and also permitted to substitute his name in assessment record of Nagar Nigam.
Those acts of donor proved that he has transferred constructive possession to the donee i.e. you. Your conduct itself proves that you have accepted that gift. The civil suit will definitely be decreed in your favour. All essential requirements of gift of immoveable property in Mohammedan Law have been complied in your case. Other legal heirs have no right in this house.
Related: Adverse Possession
by Shivendra Pratap Singh | May 19, 2025 | Family Dispute
Wife challenged mutual consent divorce decree in domestic violence case by filing a complaint. The Magistrate has taken cognisance of the case and issued notice to me. In the divorce case she admitted that she will not file any criminal or civil case against me and my family members. In the said complaint she has stated that the decree of mutual consent has been granted by complaint her to sign the deed. She told that I have taken her consent for divorce forcefully. In this respect she also did not adduce any evidence. However, in the mediation she has admitted that she is giving consent with her free will. All these things are with the motive to harass me. Her father is very greedy. He is behind the scenes. My father-in-law wants more money from me. I paid thirty lakh rupees as compensation. She had been demanding sixty lakh rupees. I am a software engineer and also a married person. I cannot afford such a huge amount. Please help.
Asked from: Rajasthan
The Family Court granted a divorce decree. Subsequently, the wife challenged this very decree before the Magistrate under Section 12 of the DV Act. This practice is highly impermissible. Given that the complainant freely consented to the mutual consent divorce and amicably settled all disputes, she cannot later challenge that decree before the Magistrate. Consequently, the cognizance taken by the Magistrate is bad in law, having been taken without application of judicial mind.
In these circumstances, the current proceeding is void ab initio and constitutes an abuse of the process of the court. Therefore, you should file a petition before the High Court under Section 482 of the Code of Criminal Procedure (which corresponds to the repealed Section 528 of the Bhartiya Nagrik Suraksha Sanhita) to quash the entire proceeding, as the Magistrate lacks the jurisdiction to decide the issue involved. Wife cannot challenged mutual consent divorce decree in domestic violence case.
