• Discharge from the criminal charges

Dear Sirs,
My neighbor who is an ex-police official (ex Asst.Commissioner of Police - Crime Against Women) has made illegal constructions in his flat. We filed a Civil Suit & it ended as a Lok Adalat Decree. He has agreed to demolish the illegal constructions. 
One month before the Judgement, he has filed an FIR against my husband under Sections 354 (c), 354 (d) and 506, 509. We came to know about the FIR, only when the authorities came for the demolition. 
We filed an application for quashing of the FIR and explained the whole situation in the High Court. But, the Judge advised us withdraw the petition and state the same thing in the lower court during the trail and ask for discharge from the case. So, our petition was dismissed as withdrawn. Since the demolition did not take place, we filed an Execution and the Contempt Petition which is still pending for trail.
The charge sheet was filed after 21 months and our lawyer advised us to move the High Court onceagain. But the Judge at the High Court initially agreed to send the notice to the complainant but later when the PP pointed out the earlier order from High Court, he advised us to take it up during the trial and dismissed our application.

The the important points:
1. Though in the FIR, allegations were made on my husband, the ex-ACP did not made a PCR call to the 100 Number for immediate action.
2. The ex-police official himself is incharge for the Security Cameras in the colony and all the cameras were working at the date mentioned in the FIR.
3. No video footage from the colony was not presented alongwith the charge sheet by the IO..
4. The complainant has given statement under Section 164. Other than this, no other evidence is presented in the charge sheet.
5. Two more families who have been affected due to their illegal constructions (the Court has ordered the demolition of their structures as well due to structural safety reasons) have given the statement under Section 161 to the police but these statements does not talk about the incident reported in the FIR. Their statements were more of creating nuisance, standing in the balcony without wearing the shirt etc. 
Being an ex-ACP CAW, he knew the procedures to be followed when any one makes a compliant but none were followed - the apparent reason was that there was no such incident happened.
On the date of the complaint, my husband was in a mandir (we have the pooja receipts etc) but not exactly at the time reported.
Questions:
1. 21 months delay in filing the charge sheet 
2. No video footage was presented by the police.
3. The families who gave 161 statement were affected parties due to demolition.
4. The Exe.petition and contempt is still under trail.
5. The ex ACP was suspended 3 times during his service period. 
6. We are living in the colony 20 yrs and no complaint till date.

Is it a fit case for discharge?
Any citation can be quoted for the discharge?
How to avoid the prolonged trail?
Asked 4 years ago in Criminal Law
Religion: Hindu

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12 Answers

hello

a discharge application can be moved or an application for quashing of the charge sheet should be promptly filed in the HC so as to avoid the prolonged trial which could go on. you have the required alibi. the procedures were not followed, the person is in the police, delay in filing of the CS. also, an alternate prayer must be taken that this is a case for a free and fair re-investigation/fresh investigation as everything points to the complicity of the civil and police authorities.

also, the contempt application must be expedited.

regards

Rahul Mishra
Advocate, Lucknow
13754 Answers
65 Consultations

5.0 on 5.0

1. There is no fix time for the charge sheet in case it is delayed the accused get benefit of default bail of he is not on bail.

2. You can put forward that before trail trail court an application can be give to bring cctv footage on the record.

3. Same can be raised in your defence further your lawyer can cross examine them during the evidence.

4. The application can be pressed before the court for the speedy disposal of same,.

5. That has as such no bearing on case can be brought to the notice of the court.

6. That can be contented before the court in the trial.

Yes a discharge application should be filed when there are no prima facia evidence as such.

Discharge should be argued and facts and allegation mentioned in the FIR, chargesheet and statements contenting that there is no allegation as such and further there is no primary proof it is false and from same the accused shall be discharged.

Get directions from the high court.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

File police in action against police by way of writ or move supreme court

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

You should apply for discharge before trial court

2)your husband should take the plea that there is no evidence against him

3) that although CCTV cameras have been installed in colony no such footage produced

4) take the FIR had been filed to take revenge against him on account of court orders fir demolition of illegal construction

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

1) Here you can go for trail court as per high court ordered. You can go in the same court where you have got order your side to demolish illegal construction for ex ACP.

2) The same judge will understand your case properly and give a positive response to you this case whichbis against your husband.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

It is a fit case for discharge in criminal cases citations may not be of much help only variation in the case of prosecution and also that you have filed previous suit and thereafter he filed a complaint against your husband can be a ground for discharge. Secondly you people need to produce certified copies of documents of previously instituted suit and the order of lok adalath while claiming for discharge also present the puja receipts to take plea of alibi.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. The scope of a petition for quashing of FIR is very narrow in as much as the High Court cannot convert itself into a trial court to determine the guilt or innocence of the accused. Guilt or innocence has to be proved at the trial before the trial court, not before the High Court in a quashing petition. The HC can quash the FIR under 482 Cr.P.C. only if the FIR taken at face value does not make out even a prima facie case against the accused/petitioner. Inherent falsity patent on the face of record is the ground on which the HC can quash the FIR, as opposed to falsity alone.

2. If video footage was not made part of investigation then the benefit will go to you at trial.

3. If your husband was in temple at the time of alleged incident then he can take the defence of alibi.

4. Although nothing can be said without perusal of FIR and chargesheet, yet from what you have stated the matter is fit to frame charges and begin the trial. It is seemingly not a fit case to discharge as it is trite law that charge can be framed on the basis of suspicion. Discharge is to be ordered only where the material collected in support of chargesheet is so absurd that the court is convinced that on the basis of it even a prima facie case is not made out.

5. To avoid a prolonged trial you may seek directions from the High Court to finish the trial in a time bound manner.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

The defect in the investigation or improbability on the allegations is no ground for discharge. In the petition for discharge the court will only look into the prima facie establishment of the case from the charge sheet alone.

2. There is blanket applicability of discharge. To know the principle of discharge you can refer to hundreds of decisions which are available in online.

To sped up the trial you can apply before the high court for speedy tril of the case which is constitutional right of every accused person.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Hi,

You have a fit case for discharge and your are suggested to approach accordingly.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Even being fit case the lower court takes a less interesting approach for discharge. But you can approach the sessions court If your application gets rejected.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

Move a discharge first and depending upon the outcome, re-appproach the High Court. Incase your discharge application is rejected and you re-appproach the High Court in 482, and if the High Court declines to interfere, at least seek a direction from the High Court for expedited trial.

This on the face of it appears to be a criminal complaint having initiated due to vengeance. Moreover, there's no incriminating evidence against your husband.

Try your luck with the discharge.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Even without the said information it is a fit cs for discharge because it can be very evidently seen that the complainant has not approached the law with clean hands, it is an act out of vendetta due to the ongoing civil action for demolition of his illegal structures.

He is trying to put pressure in order to withdraw the civil complaint for demolition of his illegal structures.

He has abused his position of ex police officer and under that influence he has managed to lodge this false case/complaint.

You can apply for discharge provided the questioning session is not completed.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

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