Saturday, July 21, 2012

The accused is absconding for one year; how do I ensure his presence?

The accused is absconding for one year; how do I ensure his presence?

Q: I am a senior citizen and filed a case against one of my creditors who issued me a cheque that bounced due to insufficient funds. The case was filed in 2011, and summons and warrants were issued by the honourable court. After the service of the warrants, the accused came to the court once and cancelled the warrant. Thereafter, he has never remained present. On the last date, even his advocate withdrew his vakalatnana stating that he is not getting any instructions from the accused and the warrant issued by the court is pending execution as the accused is not to be traced. My case has been pending for the past one year without any results. Is there any other way by which I can ensure that the accused remains present in court?

A: The Code of Criminal Procedure, 1973 (CrPC), which governs the procedure to be followed in a criminal trial does provide for such situations under section 82- 86.
As per the provisions of section 82 of the CrPC, if any Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, the court may publish a written proclamation requiring him to appear at a specific place at a specified time not less than 30 days from the date of publishing such proclamation. Such a proclamation shall be published by publicly reading it at some conspicuous place of the town or village in which such person ordinarily resides or by affixing a copy thereof to some conspicuous part of the house in which such person ordinarily resides/or to some conspicuous place of such village or town or by affixing a copy thereof to some conspicuous part of the courthouse, or by publishing the proclamation in a daily newspaper circulating in the place in which such person ordinarily resides.
Further section 83 of the CrPC provides that the court issuing the proclamation may, at any time after the issue of proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person. The attached property shall then be, subject to the provisions of section 84 and 85 of CrPC, at the disposal of the state government and can be sold.
Thus, it will be seen that in addition to the provisions of summons and warrants, CrPC provides for ‘proclamation and attachment’ to compel the attendance of an accused person before the court.
In your case, you may instruct your advocate to move such an application under sections 82 and 83 of the CrPC to compel the attendance of the accused.

Q: My wife and I had filed a petition for mutual divorce under 13B at the Bandra family court. However, after contemplation I feel there is still hope to save our marriage and I am not in favour of the divorce. I would like to withdraw my consent. Can I withdraw my consent after filing the petition? I signed the petition and confirmed that I wanted the mutual divorce. Will my backing off create any legal problems for me?

A: From the analysis of the section 13B of the Hindu Marriage Act, 1955, it will be apparent that by just filing a petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from six to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relatives and friends. In this transitional period, one of the parties may have a second thought and change their mind of not proceeding with the petition. There is nothing in the section which prevents such course. Under section 13B, the court cannot pass a divorce decree at the instance of one of the parties and against the consent of the other.

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