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ravi shankar (consultant)     08 April 2012

Opinion needed

falsely alleged in a crime in 2008,final report/chargesheet not yet filed 4 years now - can one file a petition for quashing the complaint itself - under sec.482 of cr.p.c. or seek discharge u/s.239.

 

need opinions with citations please.

 

thanks and regards

ravi



 6 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     08 April 2012

Dear Mr.Shanker,

No Discharge until the police actually files a report. The Court has not even taken cognizance so no question of discharge. 482 seems to be your remedy. However quashing is not done as a matter of course - only under exceptional cases the court would quash it - because the courts feel the truth or falsity of the matter would come out only after evidence and during trial, and they don't interfere unless the FIR is perverse and palbably misconcieved/ill designed on the very face of it. 

Feel free to talk !


(Guest)

The decision on discharge has to be based on the report of the investigating officer. Therefore, no application for discharge lies before the filing of the chargesheet. Go for 482.

 

Regards,

Ashish Davessar

Delhi, Chandigarh

08427414792

ravi shankar (consultant)     09 April 2012

advocate pranan sarcar-rep.by ld.senior adv.biplab biswas obtained a discharge u/s.239 in north bidhannagar courts in calcutta in p.s.128/09 reprted in law reporter-if i could obtain a copy of the order it would be useful.can you help please.

N.K.Assumi (Advocate)     09 April 2012

ravi shankar, that section 239 CrPc is attracted when the charge sheet is filed under 173 of the Code and after hearing the prosecution and the accused if the Magistrate is satisfied that the chare against the accused is groundless, the Magistrate will discharge  the accused. Section 239 of the code operateswhen no primafacie case is made out against the accused or specefic alegations is not made out against the accused ion the complaint. Your question is discharge under 239 of the code when no chargwe sheet/final report has been filed, and experts has rightly answered your query.

ravi shankar (consultant)     09 April 2012

the case which i have quoted-u/s.173 report was not filed-the courts called for the cd and discharged

N.K.Assumi (Advocate)     10 April 2012

May be the Magistrate acted upon some super  Provisions of law, but certainly not under 239 of the code which is attracted for framing of charge against the accused after the chrage sheet is filed and trial commence.


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