Discharge 239 charge frame 200 & 202 crpc
Vijay Tiwari
(Querist) 01 March 2012
This query is : Resolved
Respected Sirs,
I am from Allahabad and my wife is from Delhi. Due to differences she left back to her parents home in Delhi. After that she filed 2 cases on me.
1. FIR in police station under 498a in 2009 only against me
2. Private complaint under 200 crpc for ipc 406 against all my family members (11) and me.
I was arrested from Allahabad and taken to Delhi first in the FIR case, i got bail after 5 days. and then all my family members got issued non bailable warrant in the 406 ipc 200 crpc case and we all had to run to Delhi and after much tension we all got bail.
My lawyers have difference in opinion and I want to know the correct thing.
1. In the FIR case they both filed for discharge for me in 239 crpc stating allegation of cruelty groundless as no medical is there and no witness from allahabad is there. But the Court rejected my discharge that allegations in the FIR prima facie disclose commision of offense and FIR is not an encyclopedia of all events.
2. Now the case is put up for framing of charge. My one lawyer says we will argue on charge that 498a is not at all attracted and get you discharged as 498a is not all made but the other lawyers says that you have already "exhausted the oppurtunity of argument" by arguing under 239 crpc and the court will not give you oppurtunity when framing charge in 240 crpc.
I dont know what is right please advice to me in this context.
3. My same lawyers in the 200 crpc ipc 406 case are fighting amongst themselves that "prima facie case is constituted by the documents, email sent by my father in law to me asking me to return back my wifes educational certificates and her sarees(no mention of jwellery)" while the other lawyer is arguing that there is some Supreme Court judgement that 202 crpc says that no issue to process can be done till the enquiry is not done as it is mandatory for people from outside states. Now I cant understand which of them is correct.
If some one can give the correct legal position, please I am highly obliged, there will be many people who might be trapped by wrong suggestions by their counsels.
Arvind Singh Chauhan
(Expert) 01 March 2012
As your discharge plea has been rejected by court already now only remedy is to file revision against it or to approach HC under 482 for quashing the proceeding, your lawyers may argue on above mentioned points at revisional court or HC.
It is right that no issue of process can be done without an inquiry under Sec 202. I am unable to understand how it is possible that court has done such. If it is so you may approach to revisonal court or Hc against the summoning order.
Remember that, For revision time limit is 90 days from the order which is to be challenged.
Vijay Tiwari
(Querist) 01 March 2012
Sir,
The allegation of cruelty as levelled like always coming home late from work, listening to parents advice to not go for late night movies etc i have seen some judgements wherein such issues have already been decided by the High Court that these things do not constitute cruelty for 498a, i want to show these judgements to the Court before hand so that no charges are framed against me and no trial is started against me.
Please tell me can i still now argue on framing of charge, next date of mine is 22 march. I want to gather all judgements against such allegations against me as in the fir to show the court that such allegations have already been dismissed by other courts. Please tell me clearly that after dischrage reject can i still with so many judgements against 498a still argue on charge or not?
Secondly, in 200 crpc ipc 406 case the Cour t has passed the order "Persued the statement of the complaninat and the witnesses on the oath and the accompnied documents email to son-in law, email reply, fax to shop of husband and examination of all the documents it is evident that there is a prima facie offense constituted by the accuseds. Hence I summon all the accused to be tried by me for the offense for criminal breach of trust under the section 406 of the Indian Penal Code. Serve notice returnable by...."
So, the other lawyer argues that since it was documentary evidance hence no investigation is needed when there is documentary evidance and by it, it is evidentary clear that the offense is constituted and he told that there is a judgement of Mr. Shiv Narayan Dhingra in which he has said if documentary evidance proves offense then no investiation is necessary.
Now Sir, what is your correct opinion on both the issues. I am having pain in head reading the judgements.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 01 March 2012
1) If you want to contest the case properly go in revision against 239 decision.
2) The advocate who says about 202 is right and you can use it for revision , there are no of decisions in this matter.
3) for criminal breach of trust mere documents have no relevance if proper pleadings are not framed.
Arvind Singh Chauhan
(Expert) 01 March 2012
Dear Tiwari Ji court can't rely blindly on any document. Except public document every Document required to be proved.
Raj Kumar Makkad
(Expert) 01 March 2012
1. Argument on charge should be led vigorously with entire relevant citations if no offence is constituted on the basis of meterial put by prosecution in charge-sheet.
2. Revision should be filed against the summoning order as it seems perverse to summon such large no, of accused persons. May be one or two mentioned in the alleged documents but how 11 persons can retain the istridhana?
SANJAY GUPTA
(Expert) 02 March 2012
Agree with Mr. Makkad and Arvind
Adv.R.P.Chugh
(Expert) 03 March 2012
Dear Querist,
Too many cooks spoil the broth - you seem to be having a battery of lawyers. Not advisable certainly.
Allright moving on to the merits of the issue - you seem to have exhausted your chance to argue on discharge - the next remedy as aforesaid - lies in a revision u/s 397 CrpC before the Court of Sessions or 482 Quashing petition before the High Court.
High Courts are more inclined to hear such matters. A good argument may see you out of this, without the rigmarole of an extended trial.
As regards the complaint case - 202 mandates the court to necessarily postpone the issue of process and conduct a preliminary enquiry or investigation when accused is outside the limits of jurisdiction.
Shonee Kapoor
(Expert) 04 March 2012
I agree with Chugh, that it is multiplicity of things which has led you here.
You should vigorously argue at the time of framing of charges. And also, this is only delaying your case. If your lawyers think even framing of charges is not possible why are they afraid of trial. By now even the trial would have completed.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Shonee Kapoor
(Expert) 04 March 2012
Regarding 406, I am in agreement with Ld. Mr. Makkad.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
