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Namitabh Kothari (9930992660) (Advocate, 9930992660)     29 October 2010

can the magistrate frame & charge u/s 138 & of NI Act?


Can the Magistrate frame " Charge" u/s 138 of NI Act against the Accused when the Accused has filed Revision against the Dismissal Order in an Application for "Discharge of Accused / Recall of Process/ Dismissal of Complaint"?

The Sessions Court has not granted any stay of proceedings, the Revision has simly adjourned the matter.



 6 Replies

ashish lal (Advocacy)     29 October 2010


Sarvesh Kumar Sharma Advocate (Advocacy)     29 October 2010

if u have a clearcut order for stay the procidings in yr revision then magistrate can't frame d charge.

otherwise yes. 

bhupender sharma (head)     29 October 2010

 The exact word is not the caharge rather under summon trial the magistrate used to frme the notice inder section 251 Cr.P.C in which the accusation made against him is stated and he eihter plead guilty or not to the same. More so the the application alleged in the query is 245 of the Code, more so the magistrate has no power to recall the sumoning order as the Hon'ble supreme court in Adala Prasad Judgemnt cleary held that the magistrate as not power to recall the summoning order.

The Hon'ble session court has simply ajourned  the matter and it appears that no stay is granted other wise thecopy of stay order would have been sent to the magitrate. 

DEEPAK ASSOCIATES (08010117611)     31 October 2010

When the Stay has not been granted by Seesion court  and the file is remained with the lower court then the court can proceed further.

Arshad Khan.A.R (Lawyer)     01 November 2010

Magistrate cannot frame charge in a case U/s 138 NI Act because it is a summons case(pls read 251CrPC). There is no question of discharge as it is a summons case instituted by lodging private complaint. The magistrate can either dismiss the complaint U/s 203 of CrPC or acquit the accuse U/s 256(1) CrPC at the earlier stage of the proceeedings.

Dineshwar Singh Kaushik (Advocate)     12 November 2010

In your case the magistrate should frame the charge against the accused person because there is no stay order from the sessions court.

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