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Tag: CrPC 245 – When accused shall be discharged

MS Pepsi Foods Ltd and Anr Vs Spl JM and Ors on 4 November, 1997

Posted on September 5, 2019 by ShadesOfKnife

Landmark judgment from Hon’ble Supreme Court which held that, where appropriate High Courts should exercise its power available under Article 227 of Constitution of India to quash baseless proceedings.

The Supreme Court had held that,

“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. Magistrate had to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

MS Pepsi Foods Ltd and Anr Vs Spl JM and Ors on 4 November, 1997

Indiankanoon.org link: https://indiankanoon.org/doc/574884/

Citation: 1998 (5) SCC 749, AIR 1998 SC 128


Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in

Posted in Supreme Court of India Judgment or Order or Notification | Tagged Absurd Or After Thought Or Baseless Or False Or General Or Inherently Improbable Or Improved Or UnSpecific Or Omnibus Or Vague Allegations Article 227 - Power of superintendence over all courts by the High Court CrPC 190 - Cognizance of Offences by Magistrates CrPC 245 - When accused shall be discharged CrPC 482 – Criminal Proceeding Quashed Landmark Case MS Pepsi Foods Ltd and Anr Vs Spl JM and Ors Order Quashed Reportable Judgement or Order

Ajoy Kumar Ghose Vs State Of Jharkhand & Anr on 18 March, 2009

Posted on May 12, 2018 by ShadesOfKnife

In this judgment from Apex Court, Hon’ble Bench has, in detail, explained the procedure before framing charges and the discharge procedure thereof.

 

Ajoy Kumar Ghose vs State Of Jharkhand & Anr on 18 March, 2009

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged Ajoy Kumar Ghose Vs State Of Jharkhand and Anr Catena of Landmark Judgments Referred/Cited to CrPC 239 - When accused shall be discharged CrPC 245 - When accused shall be discharged CrPC 340 read with CrPC 195 Legal Procedure Explained - Interpretation of Statutes | Leave a comment

Banti And Others vs State Of U.P. And Another on 31 August, 2012

Posted on May 5, 2018 by ShadesOfKnife

This is a interesting judgment from Allahabad High court where the Hon’ble Judge has, in detail, elaborated the procedure of application of discharge and various allied aspects such as CrPC 239, CrPC 244, CrPC 245 and CrPC 246.

 

Banti And Others vs State Of U.P. And Another on 31 August, 2012

 

Posted in High Court of Allahabad Judgment or Order or Notification | Tagged Absurd Or After Thought Or Baseless Or False Or General Or Inherently Improbable Or Improved Or UnSpecific Or Omnibus Or Vague Allegations CrPC 239 - When accused shall be discharged CrPC 244 - Evidence for Prosecution CrPC 245 - When accused shall be discharged CrPC 246 - Procedure where accused is not discharged CrPC 482 – FIR Quashed IPC 498a - Not Made Out Legal Procedure Explained - Interpretation of Statutes | Leave a comment

Strategy and Tools to win False IPC498A Case

Posted on April 12, 2018 by ShadesOfKnife

The high-level work flow to win the false IPC498A Case is as follows:

  1. This being a criminal case, get anticipatory bail for the Prime Accused, A1 at the earliest, even though Hon’ble Supreme court has ruled no automatic arrests should be done in matrimonial cases. Read the Landmark judgment here.
    • Read the bail related information here and judgments here.
  2. Once on bail, based on your objectives, you can proceed with any of the below approaches
    • File a Discharge Petition based on Legal grounds in your case and get discharged from case at Magistrate court itself.
      • Read about Discharge Petition here and various discharge judgments here.
    • File a Quash Petition based on Legal grounds in your case and get discharged from case at High court.
      • Read about Quash Petition here and various quash judgments here.
    • Fight the case on merits till the end of trial and emerge victorious as not Guilty. This can drag on for many years. Be aware of this fact.
      • Go here to read various stages of the case trial and how you can safeguard yourself and your family.
    • Yes, there is another way out. Go for Settlement.
      • Read the various aspects of settlement and few high-profile settlement cases and their judgments here.
Posted in Legal Procedure | Tagged CrPC 227 - Discharge CrPC 239 - When accused shall be discharged CrPC 245 - When accused shall be discharged CrPC 482 - Saving of inherent powers of High Court IPC 498A - Husband or relative of husband of a woman subjecting her to cruelty Summary Post Work-In-Progress Article | Leave a comment

File a Discharge or Quash Petition

Posted on April 6, 2018 by ShadesOfKnife

When you are fighting the false cases you are impleaded with, we all know it is going to be a lengthy battle. Our effort should be to cut this to the minimum as much as possible.

Identifying applicability of Legal grounds as established by a catena of Judicial Precedents, from the complaint, FIR or Charge-sheet along with other Prosecution documents such as witness statements made u/s 161 CrPC, is the first task one has to do. Then search and procure the judgments applicable for the identified grounds. Later on draft your Discharge or Quash petition citing the identified legal grounds on how the facts of your case match that of the Precedents and support them by giving a reference to the Judgments.

Discharge Petition

One of the ways is to apply for discharge of all respondents at Judicial Magistrate court citing the legal grounds under which the complaint/FIR/Charge sheet is not maintainable in the eyes of law and needs to dealt with accordingly. This can only be done any stage before the charges are ‘framed’ on the respondents/accused by the Magistrate. So strategy should be to wait for the charge-sheet to be taken cognizance by the magistrate and given a number for the case. Here, you will also try and highlight contradictory statements of these documents, to your advantage.

Of course, you can file discharge petition citing the legal grounds from just the complaint and the FIR. No need of waiting for charge sheet. We will then restrict ourselves to Complaint and FIR.

 

The discharge petition can be filed under Section 239 (for Warrant Case/originating from Police Station) in The Code Of Criminal Procedure, 1973 or Section 227 (Summons Case/originating from complaints to Magistrate) in The Code Of Criminal Procedure, 1973

239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

Judgments list available here.

227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

Judgments list available here.


Quash Petition

On similar note, Higher courts have powers under various sections and articles of constitution, to quash the FIR, Charge sheet, and any proceedings that are ongoing related to case like bails, mediation etc.

The quash petition can be filed under Section 482 in The Code Of Criminal Procedure, 1973

482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice

 

See this page here to read and understand the legal grounds that you can cite in your discharge or quash petition.

Visit this page here to read the grounds to quash FIRs u/s 482 CrPC


VERY IMP NOTE: Since this is just discharge from a criminal case, there is every threat of again becoming accused u/s 319 CrPC. Recent SC decision is here.

Posted in File a Petition | Tagged CrPC 227 - Discharge CrPC 239 - When accused shall be discharged CrPC 245 - When accused shall be discharged CrPC 482 - Saving of inherent powers of High Court Summary Post Work-In-Progress Article | Leave a comment

State of Haryana Vs Ch Bhajan Lal on 21 Nov 1990

Posted on April 4, 2018 by ShadesOfKnife

Here is the Landmark Supreme Court Judgement that can be cited and relied on in Discharge or Quash petitions under Article 226 of Constitution of India or Sections 154, 155, 156, 157, 159 of Cr.P.C or Section 482 – Exercise of Inherent powers of courts.

Indicative categories:

  1. No Prima Facie Case: Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
  2. Absence of Cognizable Offence: Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
  3. Commission of Crime not disclosed: Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
  4. Investigation begun without the order of Magistrate in Non-cognizable offence: Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
  5. Lack of Evidence: Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
  6. Legally Barred: Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
  7. Vexatious Proceeding: Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge.
State Of Haryana Vs Ch Bhajan Lal on 21 November, 1990

Other Sources : https://indiankanoon.org/doc/1033637/ or https://www.casemine.com/judgement/in/5609ac4ee4b014971140e92a

Citations: [1990 SCALE 2 1066], [1992 AIR SC 604], [1992 SCC CRI 1 426], [1990 SCR SUPP 3 259], [1992 CRLJ SC 527], [1992 SUPP SCC 1 335],  [1990 JT SC 4 650]

Posted in Supreme Court of India Judgment or Order or Notification | Tagged CrPC 227 - Discharge CrPC 239 - When accused shall be discharged CrPC 245 - When accused shall be discharged CrPC 482 - Saving of inherent powers of High Court CrPC 482 – FIR Quashed Landmark Case Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order State Of Haryana Vs Ch Bhajan Lal | Leave a comment

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