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AGot a few procedural questions regarding a 138 NI Act matter and would appreciate some insights:
1. If the court has closed the accused’s right to lead defense evidence through a written order, what’s the correct approach to get it reopened? Should the application be moved before the same judge, or is a revision before the sessions court the better route?
2. If NBWs were issued against the accused, and upon moving an application for cancellation, the court only stayed them instead of outright canceling, listing the matter for consideration along with final arguments—what’s likely to happen? Should the accused expect relief on the next date, or is there a risk of the NBWs being reactivated?
3. Does the accused have to be physically present to lead defense evidence, or can they seek exemption from personal appearance? Given that in 138 matters, complainants typically file evidence through affidavits, is there any practical way for the accused to avoid appearing in person and still present their defense?
4. What else should one anticipate in a situation like this? Any practical insights from those who’ve dealt with similar cases would be appreciated.
Looking forward to thoughts from those who’ve navigated these procedural hurdles.
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H1. If your right to lead evidence has been closed due to non-appearance, you must file an application seeking the recall of the order and permission to lead evidence. This application should be filed before the same judge who passed the original order.
2. There is no provision under the CrPC for the stay of warrants. Once a warrant has been issued, it must be executed unless it is cancelled. However, if the warrant is issued solely to compel appearance, the accused can appear before the court, furnish a bail bond, and remain at liberty.
3. In cases under Section 138 of the NI Act, both the complainant and the accused can lead evidence by way of an affidavit. In criminal trials, it is not mandatory for the accused to present evidence in his defence. The accused’s defence can also be established through witnesses other than the accused (if available). However, any witness named by the accused must be present at the time of filing the affidavit of evidence and during cross-examination. But if no appropriate witness is available, then the accused would have to personally lead evidence in his defence.
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A1. can the magistrate recall his own order for closure of evidence? should we file a revision application before a superior court?
2. The Court did stay execution of NBW in last hearing till the next day of hearing when the application for cancellation of NBW will be decided. The accused was physically present on last date. However, no proceeding or order for execution/filing of bail bond has happened yet. Does that happen after the NBW will be cancelled upon deciding the application? Or that happens only in cases of BW?-
H1. A magistrate has the power to recall their own order if it is interlocutory or procedural in nature. If the magistrate refuses to recall the order, you must file a revision before the appellate court.
2. If your application for cancellation of an NBW is kept pending, you must remain present on the next date of hearing. Ideally, the court should have cancelled the NBW and set the bail bond on the same day the application is filed. However, this is not a major concern. The magistrate must have felt that you are deliberately delaying the matter so he must have kept the NBW pending.
3. If the court has the necessary infrastructure for video conferencing, then your advocate can submit the affidavit of evidence on your behalf while you attend the proceedings online. However, keep in mind that prior permission from the court is essential to attend the hearing via video conferencing.
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