If you are stuck in such a situation, here is what to do.

A complaint was lodged by Mrs. Anjali Sharma against her husband, Mr. Rohan Verma, his sister Mrs. Priya Singh, and other family members, alleging cruelty. The police, after their investigation, submitted a chargesheet to the local court in Amanpur. The Magistrate took cognizance of the offence, and summons were issued to all the accused family members.

On the first date of hearing, when all the accused were present to seek bail, they discovered that the presiding judge was on leave. The court clerk informed them that the matter was adjourned for a few months and bail would only be considered on the next date. This presented a significant problem for Mrs. Priya Singh, who had a scheduled major surgery around the new court date, making her physical presence impossible.

Furthermore, the family intended to challenge the entire case by filing a quashing petition before the High Court. To do so, they needed a certified copy of the chargesheet. However, the court staff refused to provide it, stating that copies could only be issued after the first appearance and bail proceedings were completed. This created a legal deadlock for the family, leaving them anxious and unsure of the path forward.

Advice in such cases

• File an application to prepone the hearing. Instead of waiting for the long-adjourned date, you can request the court to hear the bail matter earlier.
• File an application for exemption from personal appearance for the concerned accused, citing valid medical grounds. This should be supported by a medical certificate from a registered medical practitioner.
• File a formal application to obtain the certified copy of the chargesheet. The accused has a right to these documents. If the court staff refuses, a formal application before the magistrate should be moved.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

With the implementation of new criminal laws, the relevant sections are as follows:

• Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS): This section addresses the offence of cruelty by a husband or his relatives, replacing the old Section 498A of the IPC.
• Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This provision allows the Magistrate to dispense with the personal attendance of an accused and permit them to appear through their lawyer. An application citing valid reasons, like a medical emergency, can be filed under this section.
• Section 480 of the BNSS: This is the provision for anticipatory bail (pre-arrest bail). If there is an apprehension of arrest, this is the remedy. However, since the court has already taken cognizance and summoned the accused, the focus shifts to obtaining regular bail.
• Section 561A of the BNSS: This section grants the High Court inherent powers to prevent the abuse of the process of any court or to secure the ends of justice. A petition to quash the FIR or the entire proceedings can be filed under this section.

If you are the complainant

• Stay in touch with the public prosecutor who is representing the state in your case.
• Ensure you are present on every court date, or have your lawyer represent you, to show your diligence.
• If the accused files for an exemption from appearance, you have the right to oppose it if you believe the grounds are false or fabricated.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If you are an accused in such a matter and facing these procedural hurdles, you are a victim of the legal process. Here is what you should do:

• File for Exemption: Immediately file an application under Section 227 of the BNSS for the accused who cannot appear, attaching a detailed medical certificate.
• Request an Early Hearing: File a separate application for the preponement of the hearing date. Explain that the delay in the bail hearing is causing undue hardship.
• Insist on Certified Copies: An accused is entitled to copies of the police report and other documents. File a formal application in court for the certified copy of the chargesheet. If it is still denied, this denial can be challenged in a higher court.
• Approach the High Court: Once you have the certified copy of the chargesheet, you can file a petition under Section 561A of the BNSS in the High Court to quash the proceedings against those who have been falsely implicated.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

After filing the chargesheet, the role of the police is significantly reduced. Their primary function is to assist the prosecution during the trial by presenting evidence and ensuring the attendance of police witnesses. The court administration, including the clerk (Ahlmad), handles procedural matters. While a clerk’s statement about dates or procedures might reflect the court’s general practice, it is not a legal order. All requests must be made formally through applications filed by your lawyer before the judge.

FAQs people normally have

Can bail be granted without being physically present in court?
Generally, for the first appearance and bail, the court requires the physical presence of the accused. However, in exceptional circumstances and with a specific application for exemption, the court may allow it. Video conferencing facilities are now available in most courts and can be requested, especially for medical reasons.

Is an exemption from appearance for one hearing allowed?
Yes, courts regularly grant exemptions from personal appearance for a specific date if the reason provided is genuine, such as a documented medical condition, personal tragedy, or unavoidable prior commitment. An application under Section 227 BNSS is the correct procedure.

What if the court clerk refuses to give a certified copy of the chargesheet?
The clerk does not have the authority to refuse this. Your lawyer must file a formal application before the Magistrate. The right of an accused to receive copies of the case documents is a fundamental part of a fair trial. An order on this application must be passed by the judge.

What evidence is required?

• For Exemption Application: A detailed medical certificate from a government or reputed private hospital is crucial. It should clearly state the medical condition, the reason why travel or court appearance is not advised, and the expected duration of recovery.
• For Quashing Petition: The primary evidence is the FIR and the complete chargesheet itself. Additionally, any evidence you possess that proves your innocence or the falsity of the allegations (e.g., proof of residence at a different location, call records, witness affidavits, travel tickets) should be annexed to the petition.

How long will the investigation take?

In this scenario, the investigation phase is already complete because the police have filed the chargesheet. The case is now in the trial phase. The duration of a trial can vary greatly, from a couple of years to much longer, depending on the number of witnesses, the complexity of the case, and the workload of the court.

Advocate Sudhir Rao, Supreme Court of India