Witnesses not turned up - discharge petition??
Advocate Vasundhara
(Querist) 07 July 2011
This query is : Resolved
I am advocate practicing for last 3 months. My senior died unexpectedly, so some of his cases have come to me. Sir, I now handling a case: Details are as:
1.case booked u/s 338 in 1999.
2.Case status - Evidence
3.Total 12 Witnesses. Witness 1 is the complainant, w2 is also complainant, w3-w7 are persons who saw the accident, w8 is doctor, w9 is some expert witness, w10 is constable, w11 is IO who conducted investigation, w12 is IO who filed chargesheet.
4. Out of 12 witnesses, only w12, w10 and w8 came for court to give evidence. All other witnesses including complainants did not come to court inspite of repeated summons.
5. Case is now posted for cross-examination of w12, w10 and w8 in next month.
Sir, My question is, whether discharge petition can be filed stating that prime witnesses never came to court.
PALNITKAR V.V.
(Expert) 07 July 2011
Once hearing of the case has begins, question of discharge does not arise. The case has to be tried on merits. Examine and cross examine the witnesses produced by the prosecution. If the witnesses do not attend despite all the efforts, you may apply for closure of evidence for the prosecution.
Ravikant Soni
(Expert) 07 July 2011
This is not a ground for discharge. It is a better argument in favour of you but to use in final hearing.
Palnitkar Sir answered well to you query.
Ajay Bansal
(Expert) 08 July 2011
No,not at all at this stage.
dev kapoor
(Expert) 09 July 2011
Vasundhara,
As a young inquisitive lawyer you hv asked a good qn.S.338 is to be tried as summons case,so Discharge is not possible.It is only the domain of cases tried as Warrant cases'.Options open are (1)The punishment for 338 is 2 years or fine up to one thousand rupees..file an application for dropping of proceedings;(2) File an application praying the Court's indulgence to call witnesses itself as Court cannot sit like a mute spectator to the unwarranted delay.Speedy decision is a very valuable right;(3) Go for PLEA BARGAINING.It is the best & safest possible mode.Rest assured you have to convince your client that recording of 12 witnesses statement is going to take very long time.
dev kapoor
(Expert) 09 July 2011
"Plea Bargain" is introduced through Ss.265-A to 265L Cr.P.C. It is meant for speedy & inexpensive remedy favourable to accused.
