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Discharge and acquittal u/s 245(2) & 258

(Querist) 09 February 2015 This query is : Resolved 
Dear Expert,

A false & frivolous criminal case has been filed in the Magistrates court. The accused are senior citizens and the complainant is their son. The complaint is u/s 420, 406 & r/w34 of IPC.

The judge has issued asked the local police station to investigate u/s 202. As usual the police have filed their report without going into any detail and hazily confirming the complaint.

The judge has taken cognizance of the complaint and issued summons to the accused. The evidences submitted along with the original complaint are totally bogus and in no way connect to the complaint.

At present the court is recording evidences before framing charges. The complainant has stood before the judge & given his evidence. He is the primary witness and has given his evidence. The story narrated by the complainant is absolutely farcical and has no material evidences to support. In short it is merely an unfounded allegation.

I would like to know if we can we file application u/s 245 and or u/s 258 for discharge and acquittal before court? How does the court treat such kind of application? Any important suggestion how senior citizens can get relief from undue harassment?

I would like to know if the complainant has filed case u/s 420, 406 and r/w34 and for which summons have been issued; is it a summons case or warrants case? Can we file discharge u/s 245(2) & u/s 258?

Your valuable suggestion will be highly appreciated.

venkatesh Rao (Expert) 09 February 2015
Now the stage is evidence before charge and you are entitled to cross examine him. You may then argue on discharge. You need not file application because the stage is set ready for you.
Victor Khanna (Querist) 09 February 2015
Dear Mr. Venkatesh Rao,

Thanks for your reply.

The judge advised us not to cross examine him at this stage, instead he told us to cross examine after charges are framed. He said that in this way court will save time by avoiding duplication.

Can we still insist and prevail upon the judge to allow us to cross examine?

Also I would like to know if the complainant has filed case u/s 420, 406 and r/w34 and for which summons have been issued; is it a summons case or warrants case? Can we file discharge u/s 245(2) & u/s 258?

Thanks for your valuable reply.

Devajyoti Barman (Expert) 10 February 2015
The court is right. Cross examine him after framing of charge so you may know on which allegations you have to cross examine him.

In warrant case also summons of notice is issued.
During framing of charge stage you can file discharge petition.
Rajendra K Goyal (Expert) 10 February 2015
Wait till the stage of framing charges is reached. File discharge application at that stage.
AMAR RANU (Expert) 10 February 2015
Presently,examination-in-chief is on.
Since your case is warrant triable case,discharge application has to be moved u/s 245 of Cr.p.c.
Let it to be over first,Court is duty bound to ask you to begin Cross and once cross is also over and evidence stage is formally closed.
At the stage of closure of evidence,you have to move your discharge application immediately before framing of charge.
Please remember that once charges are framed by court,discharge application is not maintainable.
If the judge has advised you not to cross examine complainant at this stage, instead he told you to cross examine after charges are framed-it is not the correct legal position and judge may be novice and need to be educated in criminal law and hence, you will loose your valuable legal right as accused.
If judge frames charges without following due process of law,as explained above,you can go in for its quashing before appellate court.
T. Kalaiselvan, Advocate (Expert) 12 February 2015
Agreed with the opinion of expert Mr. Amar Ranu. You have right to cross examine the complainant at pre-charge framing stage too. You may proceed as advised by him.

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