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Advocate Vasundhara (Advocate)     07 July 2011

Discharge Petition - witnesses not turned up


I am advocate practicing for last 3 months. My senior died unexpectedly, so some of his cases have come to me. Sir, I now handling a case: Details are as:
1.case booked u/s 338 in 1999.
2.Case status - Evidence
3.Total 12 Witnesses. Witness 1 is the complainant, w2 is also complainant, w3-w7 are persons who saw the accident, w8 is doctor, w9 is some expert witness, w10 is constable, w11 is IO who conducted investigation, w12 is IO who filed chargesheet.
4. Out of 12 witnesses, only w12, w10 and w8 came for court to give evidence. All other witnesses including complainants did not come to court inspite of repeated summons.
5. Case is now posted for cross-examination of w12, w10 and w8 in next month.

Sir, My question is, whether discharge petition can be filed stating that prime witnesses never came to court.


 9 Replies

pratik (self working)     07 July 2011


i also want to known. 


Also a query [[[[who can be w11 is IO who conducted investigation, w12 is IO who filed chargesheet]]]    who can both be the same. AS per me both the investigation & the person who filed the chargesheet both are same.

Where it has written that IO canno't submitted the chargesheet & the person who is submitting the chargesheet canno't invetigate ?



Advocate Vasundhara (Advocate)     07 July 2011

w11 is the IO who investigated the entire case. But he got transfered in the middle. So the w12, the new IO filed chargesheet.

Advocate Vasundhara (Advocate)     08 July 2011

Now the case is at cross examination stage. At this stage, is it possible for the prime witnesses or the punch witnesses to come to court and give their primary evidence?Sir/Madam,
I just finished Law in 2010 and practising for last 3 months. In a case of mine, the prime witnesses (the complainants) and punch witnesses never came to court

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     21 January 2012

Take help of an experienced advocate.

R Trivedi (advocate.dma@gmail.com)     21 January 2012

S.338 is compoundable offense. W1/W2 were the person who possibly were harmed by accused. The law is very clear that in case offenses are compoundable and bailable, then in absence of complainant the accused must be discharged. Apply for Discharge under S.256 of CRPC.  

pujols20 (Techie)     24 January 2012


Couple of questions...


1. Once discharge is done under S256 CRPC , later complainant decides to reopen the case again by showing some stupid reasons/grounds- what would happen to the case ? Will it start from reinvestigation or from the Trial stage when discharge was done ?
Filing false cases is quite easy in this country. If complainant wants to torture the accused in false cases, they can very well choose this option of not attending the court during trials and making accused to discharge. Later on come to the court and reopen the case again and have the accused undergo the torture from beginning of the case- that is by getting bails etc. Is this feasible ? If so , how to avoid this kind of trauma ?

2.What about non-compoundable cases ? Can warrants be issued against witnesses/complainant for not coming to court during the cross examination ?



shrikant (LAW OFFICER)     24 January 2012

warrants be issued against witnesses/complainant for not coming to court during the examination in chief

R Trivedi (advocate.dma@gmail.com)     24 January 2012

Complainant cannot decide to repopen the case. He can approach higher courts and appeal. There are cases where State Vs accused, in such cases absence of private complainant may not matter much. Yes court can summon any witness by force. 


In case of private complaints like that under S.138, please immediately file application under S.138 if on that complainant presenc is necessary. Court may not dismiss but will send the notice to the complainant, and on satsifactory response only case will proceed.

R Trivedi (advocate.dma@gmail.com)     24 January 2012

application under S.256 for dicharge, mistyped as S.138 above.

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