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Discharge application u/s 245(2) of crpc

(Querist) 28 April 2015 This query is : Resolved 
Dear Sir,
I am accused in a false case u/s 332,353,323,504 imposed by a policeman. Magistrate has issued summons on witness of prosecution but they are not coming for the last one and half year. So I request you kindly confirm that Magistrate can discharge me under section 245(2) of CRPC without evidence of prosecution or he has to wait for witness of Prosecution.
If he can and you have any case law on this point kindly help me out in this situation please.

Thanks & regards,
Devajyoti Barman (Expert) 28 April 2015
This ground is not enough to discharge the accused. Ask for issuance of w/a against the witness.
SAINATH DEVALLA (Expert) 28 April 2015
Actually the sections relate to assault or causing obstruction to his duties by a person on a public servant. Now that the witnesses have not been comming since 1/2 yrs, U can file a memo in the respective court for discharge from the case.It is for the prosecution to prove UR charge.
Rajendra K Goyal (Expert) 28 April 2015
Agree with the experts.
AMIT KUMAR SHARMA (Querist) 29 April 2015
Should I submit discharge application with facts under section 245(2) on the evidence stage?

Is WS required prior to discharge application?
AMIT KUMAR SHARMA (Querist) 29 April 2015
can any one provide me case law on above point pls?
Raj Kumar Makkad (Expert) 30 April 2015
We do not provide case laws here rather you can do so by clicking indian kanoon.org
T. Kalaiselvan, Advocate (Expert) 03 May 2015
No case laws are provided here. You can consult your own lawyer on all such further issues.
AMIT KUMAR SHARMA (Querist) 09 June 2015
Barman Sir pls advise Before submit discharge application u/s 245(2) I should submit WS with facts or directly submit discharge application with following grounds:

1. No any medical report is submitted by complainant police man
2. Prosecution witness are not coming despite of BW issued by honorable court

If you can provide me any other ground as per your experience pls.
SAINATH DEVALLA (Expert) 09 June 2015
Mr.Sharma,

U have to submit a discharge application u/s 239 crpc and not 245,as it is a criminal case registered by the police.
AMIT KUMAR SHARMA (Querist) 09 June 2015
but Sec 239 is applicable before the charge frame and here charge has been framed and case in prosecution evidence so I am asking submit application u/s 245(2).

Can i submit discharge application u/s245 (2) since Prosecution witness are not coming for the last 1 and 1/2 years.

SAINATH DEVALLA (Expert) 09 June 2015
Section 239 of Cr.P.C..When accused shall be discharged.

Section 239 of Cr.P.C..When accused shall be discharged.-

If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.





“ If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out — as has been done in the instant case — the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.”





Author: T Thakur

Bench: B.S. Chauhan, T.S. Thakur

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO.4606 of 2011

Helios & Matheson Information

Technology Ltd. & Ors. … Petitioners

Versus

Rajeev Sawhney & Anr. …Respondents With

SPECIAL LEAVE PETITION (CRL.) No.4672 of 2011

T. Kalaiselvan, Advocate (Expert) 09 June 2015
Well advised by expert Mr. Sainath Devalla, you may follow it.
AMIT KUMAR SHARMA (Querist) 09 June 2015
But sir charge has been framed then how sec 239 to be applicable on this case.

If charge has been framed and magistrate issued summon to Prosecution's witness and witness are not comming for the last 1 and 1/2 years, can we submit discharge application u/s 239 or sec 245 (2) to be applicable?

This case based on FIR basis.
SAINATH DEVALLA (Expert) 09 June 2015
Nothing more to add than those mentioned earlier.


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