Dear Sir,

With much pains I regret to say that there is no such provision to accept the affidavits. But you may confront the witnesses with the portions of 161 statements and get them treat a hostile by prosecution. Signatrures are not necessary for 161 statements. Not the the option left to you appraoch the HC and seek time bound disposal of your case. Plese visit the following link for conducting cross examination. You may call me for more guidance.

http://mja.gov.in/Site/Upload/GR/summary%20of%20second%20work%20shop%20criminal%20dated%[deleted].pdf

Section 161 in The Code Of Criminal Procedure, 1973

161. Examination of witnesses by police.

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

Section 164 in The Code Of Criminal Procedure, 1973

164. Recording of confessions and statements.

(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-" I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A. B. Magistrate".

(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

1. Section 164 of Cr.P.C. is primarily for recording confessional statements before the Magistrate .

2. However, the said 3 witnesses may file an application before the Magistrate prying for leave to record their statement confessing that because of the pressure of the IO, they had kept quite when the fact is that the accused has not done anything what have been alleged against him as per their knowledge.

3. How are you so sure that you won't be convicted when the IO has also recorded incorrect statements given by your 3 witnesses?

4. Attend to the trial before the Magistrate Court patiently and very carefully.

Why you wanna use 164 crpc. It's used for confession of crime. Secondly once chargesheet is filed you can file application for discharge. Your lawyer is right you cannot use those affidavit which the three persons have executed. Better option is to face trial and case is instituted by complainant if she doesn't come to trial you will get acquitted easily.

If there is no evidence against you on record your discharge application would be allowed

2) if discharge application is rejected face trial

3) burden of proof is upon prosecution to prove case beyond reasonable doubt

4) you cannot present statement of 3 witnesses before trial

1. During hearing of discharge petition the court will look into the materials in the chargesheet alone and nothing beyond it.

2. So during hearing of s.239 petition the affidavit of witnesses even if filed in court wouldn't be considered by court.

3. Since evidences are predominantly in your favour i would suggest to get speedy trial order from high court so acquittal of your happens in no time on completion of trial.

4. Thereafter you can file case for malicious prosecution.

Good luck.

You first need to have faith upon the judicial system and above all upon your conducting advocate. The declaration of the witnesses mentioned by you has no credibility at this moment and like this manner. The witness will be called upon and only then their version would be accepted. You need to believe your learned conducting Advocate,if you can't juat take no objection from him and consult with some other lawyer. For further assistance contact me.

The witnesses cannot be examined before beginning of trial.

If the witness do not appear after receiving summons then the court issue a bailable warrant to witness.

Your advocate has rightly advised you for not presenting the affidavits of 3 witnesses. they are the state witness now and it always required that accused should not contact the witness. filing of the affidavit would show that you have contacted them and got the affidavits signed. However there is another way, if the witnesses are in your favor and you know that they will depose from your case you can put them to the trial and get them declared hostile or engage a lawyer for them, get the affidavits sworn before the court and through that lawyer present the same before the court stating that statement recorded by the IO is not their statement. 164 CR P C cannot be pressed into service under such circumstances. You would have to face the trial but as you say witnesses are from your side you will get acquitted and then you can file a case for the false prosecution against your wife.

1. Discharge application will not be entertained since the petition for quashing the charge sheet has been dismisses.

However, just file discharge petition for your parents and you might succeed.

Otherwise facing trial will be your last option.

Statement can not be called for at the time of hearing the discharge application.

Regards

True statement has to be recorded and taken on record by the court. Does any 164 statement recorded still nothing to worry we will get opportunity to cross examine and we can establish our case before court.