Thursday, January 5, 2012
THE BASIC PROCEDURE-PROCESS OF the Trial COURTS
Basic understanding of procedure /process of courts in both criminal and civil cases in nut-shell [for dummies] ,not a exhaustive commentary or reference material:
Many Young students/Advocates take time to understand procedural laws.Only careful and meticulous study ,one can learn procedural law with ease.
To become successful lawyers,one must muster procedural laws,we often ignore it,when we study at university.The mustering procedural laws should be given utmost importance along with substantive law.
The procedure involved in civil cases.
Plaint:Preparing PLAINT (in duplicate) along with [a]Verifying affidavit
[d]List of documents
[g]Copies for the court & other side i.e defendants
Filing-Filing of plaint before Chief Ministerial Officer[Sherestedar)–paying appropriate court fee &process fees.
Numbering :Initially S.R No. will allotted, after office scrutiny[it may returned for lack of clarity in documentation or discrepancies or vagueness in drafting ], if registry/office is satisfied ,number [OS .no e.g 01/2012] will be allotted, the file will come before the bench /court.It is first hurdle in civil cases.
Hearing on IA No.1 (if any IA is filed for immediate relief e.g Interim Application[out of order] like restrain order or injunction order)
Interim Order :If IA is allowed, comply with the order. [compliance means sending IA copy to the other side by Registered Post with Acknowledgment due and filing affidavit to that effect in the court]- On every interim application ,there will be stages to be followed by either of the party–objection by the other side – Hearing– Order on said IA.
-Or the court will issues Notice/Summons to other side.
-Return of notice
-If other side appears, they will file vakalat or they will be placed ex-parte.
-If notice is not served to the other side[due to wrong address ]
-Steps to re-issue the summons to be taken by filing process or take steps to give public notification in news paper advertisement, if address of defendants is not known.
-Written statement-If the other side appears, matter will be posted for Written statement of defendants
-Issues–after filling of Written Statement ,the court will frame issues involved in the case[suit]
-Evidence–after framing the issues ,evidence of plaintiff ((PW) by way of filing affidavit and exhibiting the documents
-Cross examination–Cross examination of plaintiff.
-Cross examination–Cross examination of the defendant.
-Argument–Court will hear arguments of the plaintiff counsel.
-Argument–Court will hear arguments of the defendant counsel.
-FIR[First Information Report]–complaint to police registers FIR-Sec-154 Cr. P .C.,-FIR sets criminal law into motion.[Private Complaint can be filed in magistrate court ,which will beagain referred to police for investigation],FIR is not compendium ,all details are not necessary.
-Cr.No will be allotted e.g Cr. No. 12/2012-Malakpet P.S .. &CD will be maintained as per procedure.
-INVESTIGATION:on investigation accused will be arrested.Police will visit the scene of crime,collect evidence-when,how,where,whom,why&other incriminating material,conduct panchanama /inquest[P.M will be conducted at civil hospital to a-certain the cause of death ],police will start pining down the suspects with available clues at scene of the crime/offence.
-PRODUCTION–accused will be produced before the Magistrate,accused will be send to judicial custody[after examination by the doctor to ascertain the fitness of accuse]
-BAIL–application for bail is to be filed (if Bailable -u/s 436, Non-Bail able -u/s 437 before Magistrate ,in bailable cases ,bail is matter of right unlike non–bail able cases) an anticipatory bail can be sought for apprehension of arrest.
-OBJECTIONS–APP will file objections after receiving instructions from concerned Police Station.
-HEARING–Court will hear the matter.
-ORDER–Order on bail
-FINALE REPORT /CHARGE SHEET–the police will file Final Report i.e.Charge sheet,detail report mentioning offences committed by the accused,witness[PW],Exhibits-weapons recovered-Post Morten &expert reports.Complainant can object charge sheet ,magistrate can ask police to file charge sheet again.[if the offences are trial able by sessions court, the court will commit the matter to the sessions court]
-HEAR BEFORE CHARGE–It is mandatory for court to hear the matter before charge
-CHARGE–Charges framed by the court will be read over to the accused and ask them,whether they are guilty ?. If the accused denies the guilt, plead innocence, and then it will be posted for trial,if accused plead guilty,no question of trial.
-TRAIL–court will issue summons to the Witnesses for trial.
-EXAMINATION- IN- CHIEF-chief examination of witnesses by APP.
-CROSS EXAMINATION–Cross examination by counsel/Adv. for accused.
-MANDATORY 313 CR.PC STATEMENT–read over by judge to the accused.
-ARGUMENTS–arguments by Public Prosecutor &Defence counsel.
-If in FIR offences alleged are exclusively triable by Sessions Court then a separate Criminal Misc is to be filed before the Sessions court for bail.
-CRIMINAL MISC– Criminal Misc petition for bail is to be filed before Sessions court along with certified copy of First Information Report & complaint.
-NOTICE TO PUBLIC PROSECUTOR–Court will issue notice to Public Prosecutor
-OBJECTIONS–Public Prosecutor [after getting instructions from concerned police station] will file objections or oppose bail
-HEARING OF ARGUMENTS–Court will hear the arguments.
-ORDER–Order on bail, if bail is rejected, accused can file bail application again, there is no bar on filing no. Of bail applications,
accused can approach High court /Supreme court,if bail is rejection by the trial court.
- After filing of the charge sheet, the lower[magistrate] court will commit the matter to Sessions court and session court will after framing the charges, fix the dates for trial and above mentioned procedure of evidence/mode of trial will be followed.
Quantum of Sentence -Court will decide quantum of sentence after accused is found guilty of offences as alleged in the charge sheet.
-JUDGMENT-pronouncement of Sentence.
References &Read more :
1.Criminal Procedure code ,1973.
2.Civil Procedure code,1908.
3.Indian Evidence Act 1872
Note :The basic procedure ,which is followed by the trial courts,pl report,if any discrepancies,omissions or error exists in above note or construction ,suggestions will also be appreciated.This is not reference material but reconstruction from reference material .This is for dummies