Dear Sir,
It will be tried by ACMM Court and not by Sessions Court. Secondly since charge sheet is filed as such you must file a discharge application and if rejected by the Trial Court then approach the High Court till then High Court will issue stay order. The discharge law is follows:
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Discharge under Section 239 Criminal Procedure Code, 1973
-+ The general process of law is that after the police on completing its investigation, files the final charge sheet against the accused.
Thereafter the accused is put to trial for framing of charges against him, by the concerned Court. However there lies a provision under Code of Criminal Procedure that the Accused person can be discharged before the charges are framed against him.
This provision can be resorted to by the Accused provided some certain criteria are satisfied.
The Applicable Law
Section 239, Crpc when accused shall be discharged. - (1) 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.
Ingredients for Discharge
The Court will have to consider the Police Report and the Charge sheet (F.I.R and Final Case Report) as submitted to it by the Police under Section 173.
The Magistrate may examine the Accused if he deems fit.Thereafter both the Prosecution and the Accused Parties versions would be heardCharge against the accused to be groundless- There should not be in existence an iota of evidence against the accused. The Court also has to satisfy itself that there is no prima facie (on the face of it) case against the accused.Then the Accused shall be discharged.
Applicability of Discharge
Discharge as under Section 239 Crpc is applicable to Warrant Cases (Cases of a serious nature):
Practically it is observed, most often than not, the Charge sheet/Final Report as filed by the Police can be assailed in the Courts.The foremost principal to be observed that when the Police files the Final Charge sheet , often the material particulars pertaining to the offences alleged are missing.
To simplify:
The accusation leveled in the Charge sheet is simply for instance: Accused charged under Section 120 B/420/467 of the Indian Penal Code. The Courts have unanimously held that in such circumstances as the Police have failed to state details as to how the offence was committed i.e. material particulars of the offence; the Accused is liable to be discharged.
Explaining further, the example as above, it is common knowledge that Section 120 B of the IPC deals with Criminal Conspiracy, Section 420 deals with Cheating and Section 467 deals with Forgery.
Thus if the vital elements of the crime such as common intent in Criminal Conspiracy; Dishonest intention in Cheating; Wrongful Economic gain in Forgery are not made out in the Charge sheet , then the Court is liable to discharge the Accused as no prima facie case is made out.
Thus it is on the above premises, the Accused can be discharged.
Documents perused by the Court
It is further pertinent to mention that at the stage of framing of charges, the prosecution evidence does not commence, therefore the Magistrate has to generally consider the materials as placed before it by the Investigating Police Officer.
To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution have to be accepted as true at that stage." The crystallized judicial view is that the Court cannot conduct a deep roving enquiry into the evidence at this stage.
Thus the Complainants allegations + Witnesses Statements + Charge sheet as prepared during investigation are the materials to be considered by the Court