251 crpc discharge in summons case summary traible
Querist :
Anonymous
(Querist) 23 October 2011
This query is : Resolved
Dear Friends,
I have been involved in a false case of ipc 500 because of giving a complaint to a police of my sales dealer upon whom I had filed a 138 ni private complaint. It was in a counter blast that he had filed defamation case upon the police complaint to me. For more than 1 year I was only going to Court and lawyer only taking per date fees. I read a lot and then my friend told me ab the website. I search on it and find that no section of discharge is available if it is a summary triable summons case instituted on a private complaint, i consulted many lawyers and they told me no section, only 482 High Court Crpc to quash it. Now one (good) lawyer (i suppose) says that you should use 251 crpc for discharge, because the statement of the complainant was recorded and statement of his wtiness was recorded and court summon to you u/s 204 crpc. Next step in trial is to frame a "notice" or frame a "charge" against you. If you can show by the circumstances in the hand that no notice or charge can be framed against you then it will not be framed and the trial cannot start and you will have to be dischraged. This statement of his has given some mental balance to me but all the good lawyers with correct legal knowledge tell me whether this step is correct or not to show the evidances in hand that makes it show to the court that "prima-facie" itself no case is made out under the sections and thus no charges can be framed for that sections. Please please please advice me correctly for this.
Guest
(Expert) 23 October 2011
the police cannot file charge sheet in defamation case. only private compliant can be filed. it is not a summary case. It is a calender case. The discharge provisions will apply. better consult another lawyer
Arun Kumar Bhagat
(Expert) 23 October 2011
See the Supreme Court Judgement.
Adalat Prasad v Rooplal Jindal AIR 2004 SUPREME COURT 4674 in para 5- ... bench in Sethuraman Subramaniam v State of Maharastra AIR 2004 .
Only option is to move High Court u/s 482 Cr.P.Code.
Querist :
Anonymous
(Querist) 23 October 2011
sirji, my lawyer asked me to ask you this question i am copy pasting the email my new lawyer has replied to me-- "my submission before the court is not for recalling the summons order u/s 204 as per the adalat prasad judgement, adalat prasad judgement section--"for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law." so we are not at all pressing for recalling the summoning order, we will only argument and enter our defense that now when the accused has appeared before the court and now the court has to consider after taking the defense of the accused also before framing of notice/charge u/s 251crpc we can show to the court that there is more than ample sbstance that the following sections cannot be proceeded forwarded in the light of the material facts and evidances and if we can convince that all these facts and circumstances do not permit the law to proceed under those sections then the court cannot frame any notice/charge against you and in that case you will be discharged".
Please tell me whether it is right??
AMAR RANU
(Expert) 23 October 2011
I think Mr.Bhagat is absolutely right as there is no antidote available so far to Adalat Prasad fiasco,three judge-bench of SC has created and since has been playing havoc with the summary trials of summons cases all over the country.
If any learned friend has found some formula and same can be shared here so that victims of frivolous litigation have the benefits in trial courts itself as remedy u/s 482 is not only costlier but a risky one also.
Arun Kumar Bhagat
(Expert) 23 October 2011
We will only argument and enter our defense that now when the accused has appeared before the court and now the court has to consider after taking the defense of the accused also before framing of notice/charge u/s 251crpc we can show to the court that there is more than ample sbstance that the following sections cannot be proceeded forwarded in the light of the material facts and evidances and if we can convince that all these facts and circumstances do not permit the law to proceed under those sections then the court cannot frame any notice/charge against you and in that case you will be discharged".
ANS: DISCHARGED ? Under which section ? There is hell and heaven difference between Civil Trial and Criminal Trial. In Civil Trial everything has to be disclosed from Pleadings. In Criminal Trial pleadings has no role and shall hardly make any impact. All depends upon Evidence. In my long career in Criminal Practice I have observed that Advocates from civil side most of the time makes this mistake of foreclosure of their case. Keeping your Learned Advocate who advised you so, in high esteem, I most humbly submit that his approach is totally disastrous. We as a criminal side lawyer never disclose our defense beforehand. We disclose it by way of cross- examination and putting suggestions ( Not a fact that .......). If we disclose our defence beforehand then the Complainant's Advocate shall fill up the lacuna by producing witnesses one after another. In civil case, case starts from Pleadings and In criminal case, case starts with Trial i.e. Evidence stage. So do not do this mistake propelled by over enthusiasm. You are free to do as you like and I do not say to follow my advise blind foldedly.
