wait till the listing of the case before High Court or file an urgent application before registrar for listing the matter on urgent basis.
Cr PC 245 (2) and its stage
Magistrate and session judge has denied the discharge petition requested u/s 245(2) refusing to consider merits of the case before 244. The court as well as opposition are using delaying tactics since 2011 to cause harassment by the false complaint case filed against me u/s 379 while I was on duty in Leh on the day of said crime. Certificate from depart as well as inquiry report of pilice conducted by the order of SP on request of my department (Military Engineer Services) has already been put before the court. We have approached Hon'ble Patna High Court but it is pending for admission since Jul 2014. We are suffering the malicious prosecution causing mental, physical and financial torture
Asked 9 years ago in Criminal Law
Religion: Hindu
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6 Answers
May some lawyer file written undertaking on behalf of the petitioner whose name is not mentioned in vakalatnama when the petitioner is absent and magistrate takes cognizance on that affidavit. Is not it violation of bar conduct rules.
Asked 9 years ago
Stage of Cr Pc 245(2) is not detailed in reply, the same may please be briefed in light of the above facts as lower court has not agreed for such stage
Asked 9 years ago
Dear Querist
the section 245(2) of Cr.P.C. completely discretionary power of the Magistrate court and if the court think fit and proper only when the court may pass an discharge order, you may file a revision petition against the rejection order passed by the magistrate before session court/High Court, if there is sufficient evidence and material on record for discharging the accused.
The discharge petition before a magistrate will be disposed at his discretion after considering the merits in it. If your application was dismissed by the magistrate, you cannot question its validity but you can prefer a revision on it before the sessions/high court.
A lawyer can represent another lawyer and sign the petition on behalf of the other lawyer he represents.
1. You have moved the High Court already. Your lawyer can make an urgent mention to the Chief Justice of Patna High Court to expedite your case so that it is brought on the board.
2. Even in the absence of vakalatnama a lawyer who is engaged by the petitioner can file a written statement on behalf of the petitioner. It does not amount to violation of the rules of Bar Council of India.
3. It is not the stage of 245(2) which is relevant here. The stage at which an appropriate proceeding can be initiated is not required to be mentioned in the reply. What is relevant is the merit of the case.
May documents in support like certificate issued by department regarding on duty in Leh (J&K) about 2500 km away from the alleged crime spot, inquiry report of PS on order of SP submitted to SDM u/s 107 against the complainant disclosing the fact that it is a false case, previous enemity as the complainant had made similar complaint earlier in 2006 which was dismissed after admission, witnesses against us being his son and nephew only, ignorance of previous enmity before summon order by magistrate and undertaking filed by an unempowered layer on that basis summon was issued, interference with the record by magistrate as quoted judgments filed by our advocate is read as filed by advocate of complainant in the order of rejection of discharge, be treated as evidence or only the statements made on oath will be counted as evidence. There has been many lapses .. Please help me.
Asked 9 years ago
The irregularities observed by you may not relate to this case alone which was dismissed, however if you insist on such irregularities being not given consideration hence you have a strong case, why dont you challenge the same during trial or if you are aggrieved over the decision you always can prefer a revision or even an appeal before the higher court, did you consult your advocate about it?
You may discuss the issue with your lawyer or if you find him to incapable then change the lawyer and consult a better lawyer and proceed as per his further advise.
The statement on oath alone is not an evidence. Documents can also be used in a court of law to prove guilt or innocence. Documentary evidence, as opposed to a statement made on oath, carries a presumption of truth.