1) it would not relive accused 1 from trial
2) since HC has stayed proceedings in magistrate court discharge application hearing would not be proceeded with
Criminal Procedural questions
In an FIR filed for killing an animal there are 2 accused. Chargesheet is filed. - Accused no. 1 has filed a discharge in magistrate court. - Accused no. 2 has filed quashing petition in HC. Question:- 1) If the quashing petition of A2 in HC succeeds will it also relive the Accused no. 1 from the FIR & trial ? 2) HC in interim order has stayed proceedings in magistrate court, so can the magistrate court continue to hear the discharge application of Accused no.1, which is pending before it ?
Asked 8 years ago in Criminal Law
Religion: Hindu
16 Answers
Dear Sir..
If your quash petition not succeeded ..then move to supreme court....both accussed have different nature ..in the matter......so i have to go through the papers..
Regards
Mob-No-[deleted]
1. Th quashing petition will deal with the merit of the case agaisnt accused person no.2 only and hence the case would be quashed in his favour only . In other words A1 will not get any relief from it unless courts mentions that the CS is not applicable against any of them.
2. The order of stay is to be silent. if the court is silent then the stay order applies to both A1 and A2. In most cases the court specifically mentions that the stay s granted in respect of trial of quash petitioner making the trial to proceed agaisnt other accused persons. So without seeing the order it is difficult to advise.
One thing I must say that quashing is rarely allowed.
In this what should Accused no.1 do next ? Shall Accused no 1 do the following:- - File an intervention in the HC in Accused no.2 quashing petition & submit an affidavit giving his say ? - Since magistrate court cannot hear discharge application of Accused no.1, shall that discharge application be withdrawn ?
Asked 8 years ago
Wait for disposal of quashing petition of accused no 2
2) then let your discharge application be decided
A1 does not have any right to file intervention petition in quashing petition as he is not the complainant.
Since charge is framed agaisnt A2 he can not file fresh quashing petition either withdrawing the discharge petition.
Discharge petition should not be withdrawn as once quashing petition is disposed of , he can proceed with discharge application.
A1 can file Misc petition in high court seeking vacating the stay order agaisnt his trial. This is the only option so he can come to high court if his discharge petition is dismissed by the trial court.
CONTENTS OF THE Interim order of HC in quashing petition filed by A2:- 1] The applicant is a resident of a cooperative housing society situated at Bandra (West), Mumbai. The complaint in question was filed against the applicant for offences punishable under section 428 and 429 of the Indian Penal Code and section 9 and 51 of Wild Life Protection Act, 1972. The complaint was registered with the police alleging that certain branches of a tree were cut and as a result, certain birds were injured. It is submitted that the petitioner has nothing to do with the said act of cutting branches and he is not even the Secretary of the housing society as alleged by the complainant. 1] The applicant is a resident of a cooperative housing society situated at Bandra (West), Mumbai. The complaint in question was filed against the applicant for offences punishable under section 428 and 429 of the Indian Penal Code and section 9 and 51 of Wild Life Protection Act, 1972. The complaint was registered with the police alleging that certain branches of a tree were cut and as a result, certain birds were injured. It is submitted that the petitioner has nothing to do with the said act of cutting branches and he is not even the Secretary of the housing society as alleged by the complainant.
Asked 8 years ago
Dear,
Discharge application dismiss by court..when application dismissed then move to High Court..
no need to put up...affaidavit..
Regards
file the quashing of charge sheet in the high court
File for quashing in HC after withdrawal of discharge application
1. The quash order if passed by the High court against the application filed by A2 is against the FIR filed against A2 and not against A1 for which the case against A1 will continue.
2. Magistrate Court will very well continue to hear the case in connection with the FIR filed against A1 even if there has been an order passed by the HC staying the proceeding against the co-accused being A2. It is to be noted that magistrate Court can not discharge the accused from the case arisen out of the said FIR without hearing the matter.
1. You should file an intervening application before the HC praying for adding you also a party in the said quash petition as the petitioner.
2. You should withdraw the petition before the Magistrate praying for discharging the case without further fearing.
1) If the quashing petition of A2 in HC succeeds will it also relive the Accused no. 1 from the FIR & trial ?
If the high court quashes the charge sheet then there is no case pending.
Thus all the accused can subsequently file a petition to discharge them from the case based on the judgment passing quash order.
2) HC in interim order has stayed proceedings in magistrate court, so can the magistrate court continue to hear the discharge application of Accused no.1, which is pending before it ?
Once the high court has stayed the proceedings, the magistrate court cannot continue with the hearing in the case for any reason.
It can conduct trial only after the vacation of stay on the proceedings.
In this what should Accused no.1 do next ?
Shall Accused no 1 do the following:-
- File an intervention in the HC in Accused no.2 quashing petition & submit an affidavit giving his say ?
It would not be necessary for that.
Moreover once the case is disposed there is chance for the A1 to file any petition including the propose intervene petition.
If the petition is seeking quash of FIR or charge sheet, then upon the order in favor, there would be no case pending.
- Since magistrate court cannot hear discharge application of Accused no.1, shall that discharge application be withdrawn ?
During the operation of stay against the proceedings, any petition filed in the case shall be kept pending and it cannot be disposed, hence even the withdrawal petition may not be entertained by court.
You have given just one paragraph of the petition order which is just giving an introduction of the case.
There is no order in the contents you have posted now.
You may revert with the interim order passed by court for forming an opinion on that.
1. Accused no.2 alone has moved the HC for quashing, so even if the HC quashes the case against him it will have no bearing on the criminal proceedings against the other accused.
2. The trial court can continue to hear the discharge application of accused no.1.
To come on the same footing as accused no.2 the accused no.1 should file a separate petition for quashing in the HC and reproduce the order passed by the HC in the quashing petition filed by accused no.2.
The order of the HC reproduced by you makes no mention of a stay being ordered on the proceedings before the trial judge.