Advocate Yuganshu Sharma

Questions Answered by Advocate Yuganshu Sharma (700+ answers)

Q: Acceptable signature in criminal complaint

15 year old case, and was under IPC, if it matters...In agencies like CAW cell, commission for women, & police station, when complainant makes written statements (including original complaint and supplemental letters), do the departments only accept original signature in pen (wet ink)? Or do they accept written statements even with printed signature? Relates to concern that representative agent submitted docs on his own, by unauthorized use of principal's printed digital signature.

Advocate Yuganshu Sharma answered
There is no universal rule that every written complaint or statement submitted to a police station, CAW Cell or Women’s Commission must necessarily bear an original wet-ink signature. The receiving authority may accept a typed/printed statement bearing a signature, scanned signature, or electronically submitted document depending upon its prescribed procedure. However, where the authenticity or execution of the statement is subsequently disputed, the person relying upon the document may have to establish that it was actually authorised and submitted by the complainant.In your case, the more important issue is not simply whether the signature was in wet ink, but whether the complainant actually authorised the contents and the manner in which the document was submitted. If a representative/agent independently prepared and submitted documents using the principal's printed or digital signature without authority, that is materially different from a document which the complainant herself prepared, approved and authorised to be submitted.If the representative merely pasted an image of the complainant's signature onto a document without her knowledge or authority, you should preserve the original documents, metadata/email/WhatsApp communications, covering letters, acknowledgement receipts and any other material showing who prepared and submitted them. Depending upon the evidence and the precise manner in which the signature was reproduced, such conduct can potentially raise issues of unauthorised use, making a false document/electronic record, forgery or use of a forged document, but criminal liability will depend upon proof of dishonest/fraudulent intention and the exact circumstances.Since the matter is approximately 15 years old and arose under the IPC regime, the law applicable to the alleged act and the date of the alleged fabrication/submission will have to be considered rather than automatically applying the present criminal provisions. The fact that a document contains a printed signature, by itself, does not establish forgery. You would need to establish that the signature/authority was used without consent and that the document was falsely represented as having been made or authorised by the complainant.Accordingly, if your defence is that the representative submitted the documents on his own by unauthorisedly using the principal's printed/digital signature, focus on proving the absence of authorisation rather than merely arguing that the signature was not wet ink. A forensic/document examination and the original electronic files may also become relevant if the authenticity of the signature is specifically disputed.

Q: How to open defence evidence in pocso rape cade

Can I open the defence evidence stage as I didn't get the chance for defence evidence before the session court. Earlier it was rejected by session court. Can I request in high court do reopen the defence evidence. Case is pocso 6 rape.

Advocate Yuganshu Sharma answered
Yes. If the defence evidence was closed without giving the accused a genuine and reasonable opportunity to lead material defence evidence, you can seek reopening before the High Court. The fact that the Sessions Court has already rejected the application does not by itself bar the High Court from exercising its revisional/inherent jurisdiction.In a POCSO case involving an allegation of rape, the High Court will, however, balance the accused's right to a fair opportunity of defence against the requirement of expeditious trial and the interests of the victim. You should demonstrate specifically what defence evidence was not permitted, why it was necessary, why it could not be produced earlier, and how refusal has caused prejudice to the accused's defence. A vague request merely stating that another opportunity is required is less likely to succeed.The appropriate application before the High Court should seek setting aside of the Sessions Court's order rejecting reopening and restoration/reopening of the defence evidence stage for the limited purpose of examining the specified defence witness/documents. The application should also explain that the request is not intended to delay the trial, but to ensure a fair opportunity to present the defence. If the trial is already at an advanced stage or judgment is imminent, the urgency should be specifically brought to the High Court's attention.Therefore, yes, you can approach the High Court for reopening of defence evidence, particularly where you can establish denial of a meaningful opportunity and consequent prejudice. The success of the application will depend substantially upon the reasons for the earlier closure, the reasons recorded by the Sessions Court while rejecting your application, and the precise defence evidence you now seek to introduce.

Q: Judgement question POCSO 6 and 376

1.Can the accused be immediately arrested at the time of judgement? or will he get some time to surrender in court ?2. Can accused get conviction order at the same time?3. Can accused apply bail in High court from Jail also?4. How he can get urgent bail from high court from the wrong conviction? 5. how much time highcourt will take to grant the bail?

Advocate Yuganshu Sharma answered
In cases involving conviction under Section 6 of the POCSO Act read with Section 376 IPC, the position is comparatively serious because Section 6 POCSO prescribes a severe minimum sentence, generally not less than 20 years, subject to the applicable facts and statutory provisions. Therefore, if the accused is convicted by the Special Court/Trial Court, there is a substantial possibility that he may be taken into custody immediately upon pronouncement of sentence.However, conviction and sentencing are distinct stages. The Court may first pronounce the judgment of conviction and thereafter hear the accused on the question of sentence before passing the sentencing order. In some cases, both may happen on the same day, while in others the matter may be adjourned for hearing on sentence.Once the accused is convicted and sentenced, the appropriate remedy is to file a criminal appeal before the High Court, along with an application for suspension of sentence and grant of bail pending appeal. The appeal can be filed even if the accused has already been taken into custody. An urgent mentioning can also be made before the High Court seeking early listing because of the accused's incarceration.However, in offences under Section 6 POCSO and Section 376 IPC, suspension of sentence is not automatic. The High Court will examine the judgment, evidence, age-related findings, medical and forensic evidence, testimony of the prosecutrix/victim, contradictions, legal infirmities and the overall merits of the appeal. The seriousness of the offence and length of sentence are also important considerations.There is no fixed time within which the High Court must grant bail or suspend the sentence. In an appropriate urgent case, the matter can be listed promptly, but the time depends upon the urgency shown, the roster of the High Court and the merits of the case. The immediate step should be to obtain the judgment and order on sentence, prepare the criminal appeal without delay and simultaneously move an application seeking suspension of sentence and interim relief/bail.Each case depends heavily upon the evidence and findings recorded by the Trial Court, so the judgment should be examined in detail before advising on the prospects of suspension of sentence.

Q: Does judge have authority to order alternate electronic service

Old Cr PC not have provision to serve summon via electronic means. Covid time electronic service exception now over. If judge issue order to serve summon first time by WhatsApp can defendant prevail if he make recall application in sessions court by arguing Cr PC not support electronic service.

Advocate Yuganshu Sharma answered
The absence of an express provision in the old CrPC specifically mentioning WhatsApp does not automatically make service through electronic means invalid. Courts have, in appropriate cases, permitted service through electronic modes, particularly where the identity and delivery of the communication can be established. However, the validity of service depends on the applicable statutory provisions, High Court rules, judicial directions and whether the accused actually received adequate notice.If the Sessions Court has directed service of summons through WhatsApp, the defendant may file an application seeking recall or challenge of the service order, but merely arguing that the CrPC does not expressly provide for WhatsApp service may not by itself succeed. The stronger grounds would be lack of proper service, absence of proof of delivery, wrong number, denial of receipt, prejudice caused, or violation of principles of natural justice. The court will ultimately examine whether effective notice was actually served and whether the accused had a fair opportunity to appear and defend the proceedings.

Q: Complaint for wrong judgement and one sided decision

Can I file complaint against session judge if he/she doing wrong conviction and doing one sided judgement? and what will be the action will taken by high court.

Advocate Yuganshu Sharma answered
A Sessions Judge is protected for judicial acts performed in the course of duty. Therefore, merely alleging that the conviction is wrong, biased, or one-sided is generally not a ground to file a criminal complaint against the Judge. The proper legal remedy is to challenge the judgment before the appropriate appellate court or the High Court through an appeal or revision, depending upon the nature of the order and applicable law. The higher court can examine whether there was any error of law, improper appreciation of evidence, procedural irregularity, or miscarriage of justice, and may set aside, modify, suspend, or remand the matter. A complaint against a judicial officer is maintainable only in exceptional circumstances involving allegations beyond a mere erroneous judicial decision, subject to the statutory protections and prescribed procedure.