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File Discharge application if you have been falsely trapped 
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Joined: Sat Nov 01, 2008 9:25 am
Posts: 80
Dear Friend,

If you are sure that you have been trapped in a false 498a case and circumstantial evidences are in your favour, file discharge application before the Trial Court, once the chargesheet is filed by the police.Since Discharge application is to be given priority by the Trial Court and delay the framing of charge against you and simultaneously quashing petition in the concerned high court.


Tue Dec 29, 2009 7:48 am
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Joined: Tue Nov 03, 2009 3:29 am
Posts: 151
Can you please explain the above in detail..

It would be helpful if the format of the discharge application before the Trial Court is placed here.

Thanks & Regards,


Wed Dec 30, 2009 4:58 am
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Joined: Sat Nov 01, 2008 9:25 am
Posts: 80
Dear Friend,

In the discharge application, one has to elaborate all the issues which goes in his favour with documentary and circumstantial evidences. Because all the responsibility lies upon you to prove the allegations leveled against you in the charge-sheet by the prosecution.

I will definitely try to place the format of discharge application on net very soon.


Wed Dec 30, 2009 5:09 am
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Joined: Tue Nov 03, 2009 3:29 am
Posts: 151
Thanks neeraj kaushik,

Why I asked in details is, in my case the charge sheet is not yet filed as my in-laws have given 164 statement to the police WPS that the 498a put by my wife is false and inturn she is living in adultery and run away with the valuables.

Therefore can I file the discharge application to the court mentioning (where 498a private complaint filed by my wife) that the case is false and my-inlaws statment can be recorded. If this is not possible can I ask my in-laws to file discharge application to the court?

Thanks & Regards,


Wed Dec 30, 2009 5:24 am
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Joined: Sat Nov 01, 2008 9:25 am
Posts: 80
Secure copies of statements of your father in law and consult your counsel as to when u can get the benefit of their statements. If police has got the statements, it can also refer to prosecution department for closure of the case being false.


Wed Dec 30, 2009 6:27 am
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Joined: Tue Nov 03, 2009 3:29 am
Posts: 151
I have the copy of the statement given by FIL and MIL and BIL.


Please let me know what do you mean by prosecution department and what can I do in this regard.


Wed Dec 30, 2009 8:10 am
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Joined: Sat Mar 01, 2008 2:50 pm
Posts: 21
In case of my brother we are filing discharge in Feb 09.

I think discharge is good enough & quash may not be required if discharged.

Then prosecution have to go to High Court & prove that case is made out & how.

I will share my success too.


Tue Jan 05, 2010 11:18 am
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Joined: Mon Jun 08, 2009 10:10 am
Posts: 62
what is the difference b/n discharge and quash in 498A?


Tue Jan 05, 2010 1:57 pm
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Joined: Thu Oct 15, 2009 5:26 pm
Posts: 419
Dear
Prosecution refers to the advocate representing the government eg police or court or the applicant.
Discharge is filed in lower court ie magistrate level. I am not sure of the section for discharge.
Quash you file in the high court. section 482
However there are mixed views regards if discharge to be filed first followed by quash, may or may not simultaneously file both applications.


Tue Jan 05, 2010 2:06 pm
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Joined: Mon Jun 08, 2009 10:10 am
Posts: 62
Dear brn,

Did you go for discharge in your case ? or directly quash at HC


Wed Jan 06, 2010 10:50 am
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Joined: Fri Jun 05, 2009 7:47 pm
Posts: 540
Copied from this wonderful blog written mr M.R.Gupta . Hope it will be useful ..

http://498afaq.blogspot.com/2009/07/wha ... mment-form


What after chargesheet (final report) by police ?

Chargesheet is filed u/s.238 Cr.P.C.


Immediately accused have an opportunity to challenge the chargesheet in from of submitting 'Discharge Application' u/s.239 Cr.P.C.


This opportunity if lost, has no side effect whatsoever.
However 'Revision' lies at Session Court u/s.397 Cr.P.C.
Even if 'Revision' is lost, remedy lies as 'Apeal' at High Court for 'quesh' u/s. 482 Cr.P.C.
Even if apeal is lost, remedy lies with Supreme Court under Article 32 of Constitution. Even if all these opportunities are lost, there is absolutely no side effect whatsoever of these remedies.


But it MUST BE REMEMBERED AND KEPT IN MIND that 'Discharge Application' has very limited area to play. You have to prepare your 'Discharge Application' on the basis of :-


1] Only all the documents accused received with chargesheet ; and
2] Any document which police have in their possession [may be submitted by accused at the time of bail application at court or made some application to police attaching some documents] but not submitted with chargesheet to make case of accused weak and case of complainant/prosecution strong.


Accused simply cannot rely upon any other document or evidence for 'Discharge Application'. Then when other evidence will help ? Answer is in 'trial'.


As soon as Chargesheet is filed and accused decide to file 'Discharge Application' then he has to follow the following steps :


1] Make application as advised above. You have to state 'Grounds' for discharge and show that no 'prima facie' case is made out.


2] This application need not be submitted on the date given for 498A case. It can be submitted on any day. Some courts have their own methods for handling it. In some court, a 'MISC' (miscellaneous) case number is given and heard separately with separate set of hearing dates. In some court, it is heard under the same number of chargesheet case (Criminal Case : C.C. No.). But under any method, the main 498A case is stopped till 'Discharge Application' is not disposed off.


3] One copy of 'Discharge Application' is given to PP in court at the time of filing original application for discharge in court. Court writes order on discharge application - 'PP to say'.


4] Now PP has to submit his say and he makes all drama of not submitting. Here accused can submit 'Pursis' to court on each and every date about 'PP' not submitting his/her say. Accused can make application to court that 'PP' has nothing to say and therefore not submitting his/her say and therefore, proceeding may please be continued without his/her say. Accused should not care for outcome of these exercise, but continuous pressure should be built on PP to give his/her say. Please note, without his/her say, matter will not move at all and therefore it is very essential to build a continuous pressure which normally advocates don't do.


5] After PP's say, accused has to make arguments. Accused can submit 'written argument' (with a copy to PP) and also make oral submission, both.


6] Then PP has to make his/her argument. Again he may ask for adjournments for his/her argument and accused has to repeat pressure building tactics. Unless PP makes argument, matter will not proceed further. But 498A will remain in abeyance (on hold).


7] Then proceeding is completed. Magistrate gives order on discharge application - either acquittal OR dismissal of application.


8] Hereafter accused may choose either to go to 'Revision' or forget going ahead. Then charges are framed u/s.240 Cr.P.C. which accused shall contest fighting that how charges are not applicable. But no advocate fight for this. So in this manner accused get 2 opportunities. But due to this, trial is delayed.


9] In my opinion, trial is the BEST way if accused have no good evidence in chargesheet or with police which is hald back by them.
If 'Informant' has no proof for any allegation, then mere denial by accused to accusations, gives acquital due to 'benefit of doubt'.


M.R. GUPTA
MUMBAI HELPLINE


Wed Jan 06, 2010 3:29 pm
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