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PART 1 - THINGS TO KNOW BEFORE FILING DEFAMATION COMPLAINT

Being aggrieved of the ruthless comments made upon Birbal by Akbar (His Majesty) in front of the entire Darbar, Birbal has decided to file a Defamation Complaint before the Court of Law. (If you feel clueless, read the first paragraph of - PREVIEW OF DEFAMATION COMPLAINTS PROCEDURE ) Also, Birbal is clueless about the legal process, so he approached Me ( Note: this anecdote is fictional, if you have not realized till now). I had to tell him the following information to make him aware about “Defamation Case Procedures in Indian Courts” in exchange of some legal-fee of course: SECTION 499: Defamation is a Criminal offence under Section 499 of Indian Penal Code . This legal provision contains the legal definition of ‘Defamation’, which has to be followed by Courts and the judicial fraternity in order to convict or acquit an Accused person.   Short-Gyan: Did you know that making defamatory comments against a dead individual is also a criminal defamation offence!   PUNISHMENT: Upon
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CHARGESHEET FILED BY POLICE WHILE YOU ARE IN POLICE/JUDICIAL CUSTODY: THINGS YOU SHOULD BE AWARE ABOUT

In the last shorticle, I informed you about the sole solution which you need to know in a situation when an accused has been held in custody (police/judicial) by way of an order of the Magistrate. The only solution being – "BAIL"

Let us consider an ILLUSTRATION for our better understanding and perspective:

Akbar has used his hi-fi contacts to build a false case against Birbal, to charge him under the offence of ‘Attempt to Murder’ under section 307 of IPC.

 

Akbar in his FIR to Police has mentioned these facts:-

 

“On 01st Jan 2020, Akbar went to buy vegetables in the market, Birbal stopped him and hit him hard on his head with the handle-side of a Khukri, and also threatened to kill him, if Akbar denies to handover Rs. 5,000/- to Birbal then and there. However, Akbar pushed Birbal and tried to run from the situation, and in that process, Birbal’s knife pierced the right thigh of Akbar. Then, Birbal ran away.”

[NOTE: THIS IS ONLY AKBAR’S SIDE OF STORY]

 

 

 

 

The facts above are engaging and also seem probable, isn’t it? Let us consider the following hypothetical facts too:

 

·         Police arrests Birbal                                           - 01st Jan, 2020

 

·         Police produces Birbal before Magistrate          - 02nd Jan, 2020

 

·         Magistrate observes Akbar’s Injury Report        - 02nd Jan, 2020

and passes Order for Birbal’s Police Custody

for further 14 days.

 

·         Birbal again produced before Magistrate           - 16th Jan, 2020

 

·         Magistrate changes Birbal’s police custody to

Judicial Custody as Khukri is not recovered       - 16th Jan, 2020

 

·         Birbal’s Lawyer applies for Bail, but

Magistrate rejects such application                     - 16th Jan, 2020

 

·         Birbal’s Lawyer again applies for Bail after

40 days, but gets rejected by the Magistrate        - 25th Feb, 2020

 


Birbal’s lawyer has told Birbal not to worry, as he will get entitled to DEFAULT BAIL u/s. 167 of CrPC after total 60 days of custody (PC+JC), i.e. on 02nd March 2020.

Today is 01st March 2020 and Birbal is now excited to get out of Jail. However, he is just now informed by the Jail Superintendent that the respective Police Officer has filed the Final Report (i.e. Charge-sheet) before the Magistrate, which renders his Default Bail invalid in law.

 

Now, Birbal will have to wait in the Jail as an under-trial prisoner, till either of the below situations arise:

 

·        Bail Order from Magistrate/Sessions Judge; OR

·        Acquittal Order from Sessions Judge.

 

SITUATION AFTER CHARGESHEET IS FILED:


A Charge-sheet is always filed before a Magistrate by the Police. In practical sense, as soon as the Chargesheet is filed by Police, the Trial procedure begins against Birbal. The following things happen after a Chargesheet is filed:

 

·       The Case gets numbered: For eg. 1234/PW/2020

 

·      End of Police Investigation: Birbal’s Lawyer may now find loopholes in the investigation and try to get Bail from Judge.

 

·    Change in Circumstances: Filing of Charge-sheet is one such instance of “change in circumstances”, citing which the Accused may get Bail from the Judge, if the Judge feels that custodial interrogation of Accused will serve no fruitful purpose.

 

·     Filing of Charge-sheet does not mean Conviction: After filing the Charge-sheet, the Police starts behaving as if the Accused is a convict, but it must always be remembered that everyone is innocent, until proven guilty by the Court of Law. Therefore, on this ground, Bail may be obtained, if there are some evidences/loopholes in your favour.

 

·     Probability of getting Bail increases when Trial starts: The possibility of getting a Bail increases as soon as the trial commences. The reason for that is simple that once the Trial starts, the Accused has only two alternatives viz. Jail & Bail, and mind you the Judge shall always take the route favourable to the Accused, till the Trial goes on.

 

But wait, your Bail is still not granted by the Judge. Let me address the elephant in the room in the next blog...

 

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TO READ NEXT BLOG CLICK HERE:

WHAT GOES INTO DRAFTING A BAIL APPLICATION?

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ABOUT THE AUTHOR:

Advocate Shreyas Jain, being a legal practitioner based in Mumbai, specializes in Criminal Law and primarily deal with criminal matters placed before Metropolitan Magistrates and Session Courts at Mumbai & Thane. Mr. Jain is a first generation lawyer and believes in working and excelling at the ground level before going big. You may reach him through his e-mail jainshreyas1995@gmail.com 

 

NOTE: VIEWS MENTIONED IN THE ARTICLE ABOVE ARE PERSONAL AND HAS NOTHING TO DO WITH ANY PERSON, PLACE, ORGANISATION OR ANY OTHER FALLING UNDER THE DEFINITION OF ‘PERSON’ UNDER INDIAN PENAL CODE, 1860.

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Location: Mumbai, Maharashtra, India

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