Remedy for not considering the discharge application by ld jmic
yogesh
(Querist) 28 March 2014
This query is : Resolved
Ld respected members
I am advocate and framed by SIL on the account of demanding dowry ( car and flat as per her FIR)..I filed the quashing petition before the H.C which was initally stayed but was dismissed by the H.C..SLP was also filed which uphled the same order of H.C and then review was filed which is pending there in SCI
Meanwhile state has filed the chragesheet, I again filed the quashing petition which was admitted ( without stay) and is ready for final disposal
The trail court is proceeding for framing of charges and has fixed the date for arguments..I moved an application for discharge(239 CrPC)but magaisrate has verbally instructed me as well as to my trial court advocate that he will dismissed in just 2 lines as quashing petition is pending there before the H.C
i MEAN TO SAY WHEN LD JMIC can proceed for framing of charges why cannot he entertain the application of discharge and dispose off on its merits??
If the Ld JMIC admantly proceed for framing of charges..In such case whether I can approach to H.C for directions?? or I should wait for framing of charges and file the revsion petition before the session court against framing of charges...Please give expert opinion sir
venkatesh Rao
(Expert) 28 March 2014
Since there is no stay, the magistrate can proceed further. But,the magistrate is bound to hear you and pass considered orders on your discharge application.
You can very well maintain a revision against the orders of the magistrate; but since you have to mention about the pendency of petition proceedings before the high court, the sessions court may be slow in granting stay.
Rajendra K Goyal
(Expert) 28 March 2014
In absence of stay the magistrate can proceed with the case.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 28 March 2014
You have made very fast moves at premature stage for discharge.
Being an advocate is not enough, you must study the various citations in depth to prepare proper defense.
If there are proper pleadings in the complaint than no quash possible.
Every accused says that allegations are false but it is matter of evidence. Quash is possible only when there are basic contradictions in the complaint not otherwise.
So now you have option of going through the trial and contradict the evidence by expert cross.
yogesh
(Querist) 28 March 2014
Thank you..I made elaborate citations there in quashing petition but court are reluctant to pare rovide any relief..in fact even the apex court hardly allowed the quashing petition which was dismissed by H.C nad is not bound to even go through their own judgment.My cse was purely fit for quashing as there was only casual allegation against me or just say the casual reference of name which was inserted at the very end
I agree that only through trial I can come out but again drawback is that I should have to face that trail in differnt city and in remote area and spend precious years just for nothing
T. Kalaiselvan, Advocate
(Expert) 29 March 2014
It is law and all are equal before law, however if you are really interested in relief, you may have to contest the case on merits because all the higher courts have rejected your applications for quashing at the preliminary stage of the case, you are still left with more legal solutions.
Dr J C Vashista
(Expert) 29 March 2014
I am also having similar views as opined by expert Sh. T. Kalaiselvan, Advocate.
Just relax, have faith in the administation of justice, let the trail court may take its course, contest your case tooth and nail with fullest of your ability, agility, experience and expertise.
To an extend advocates are to seek favour of the Court/Judge.
