The Original Complainant lodged an FIR in Police Station, Mumbai on 15.03.2016 Section 3,7, 8, 10 of Essential Commodities Act, r/w. Maharashtra Food Grain Rationing (Second Order), 1966, Section-3A, 5, r/w. Section 18 (AAA) (F)(J)18(5) of the Maharashtra Food Grain (Second) Regulation, 1966 r/w. 6,7,8 of The Bombay Rationing Area Scheduled Commodities (regulation of distribution) Order 1986 r/w The Public Distribution System (Control) Order 2001, against Accused no. 1 & 2.

The Accused persons are on bail and the chargesheet was filed on 07.10.2016. However, during the pendency of above said matter the Dy. Controller of Ration E Circle Wadala, Mumbai passed an order dated 23.03.2016 against Accused no. 2 and the aforesaid FIR was lodged solely based on allegations mentioned under the order dated 23.03.2016. Thereafter, said order was challenged before Minister (Food and Civil Supply and Consumer Protection Department) and the said Authority quashed and set aside the aforesaid order dated 23.03.2016 on 01/07/2017. Further, Rationing Officer conduct the House-Visit in respect of the alleged offence and filed a report on 07.09.2016 stating that no offence was made out in respect of the same. However, while filing the FIR, Accused no. 1 was wrongly implicated on suspicion and as the original order dated 23.03.2016, is found to be baseless and has no merit, to proceed against Accused no. 2 then the same cannot survive against Accused no. 1 hence the Accused no.1 submits that since there were no misappropriation and no offence made out against him hence he filed an application along with the signature of Original Complainant before Ld. MM 27^th Court Mulund, Mumbai for referral of said matter before Lok-Adalat and the same was done. However, as per the direction of the Hon’ble Session Court under Inspection Note 2018/GR under ECA Amendment for Special Courts, such matters were transferred and committed to this Hon’ble Court, as per S/209 of CrPC.

Hence Accused No.1 submits hereby that the offence cannot be made out against him as the sole and only order dated 23.03.2016 which based on the aforesaid FIR was quashed and set aside against the Accused no.2 and by same it is deemed to be set aside against Accused no. 1 also. Therefore, nothing survives against any Accused persons mentioned under the FIR. In light of the same, the matter can be disposed of by availing the Lok-Adalat procedure for speedy disposal of the case.

It is, therefore, prayed that the Hon’ble Court may pass an order to refer the present matter to Lok-Adalat for disposal in the interest of justice.

Please study the matter from the following angles:-

A. LOKADALAT APPLICATION:-

a. File an application with Lok Adalat (connected to session court, as suggested by you)based on the settlement/compromise affidavit on record and understand would the matter within session court will also end by award/order passed by Lokadalat.

b. If you believe it will not, or there is any doubt then under discharge application mention to the session court in the next hearing that

i.we are approaching the Lokadalat as the matter was already closed as the same compoundable and only lacked jurisdiction of Lokadalat approach then hence need the court permission to proceed with Lok Adalat proceedings as the matter is already settled between the parties under the law governing the complaint filed as per Essential commodity act(ECA).

ii. If the court, wants to understand how and in what manner the matter is compoundable and can be excluded from the criminal jurisdiction of the Session court? Then use of the circular/notification by which, if the demand of claim by rationing office was beyond Rs. 10000/-[GR dated 12Nov1991 relevant extract page 99 whereby 3 types of offence identified Simple, Medium and Severe; Severe category of offence was further divided into below 10000Rs and above 10000Rs and above 10000RS as per patrak, when FIR is required to be filed is clarified, hence compoundable by CRPC s/4(2) r/w 320(9) on page 95 and 96 of File 2], then the defacto complainant was compelled to file an FIR with the police station against the license holder and accordingly solely on basis of defacto complainant the police had to file the chargesheet against the License holder(KD) and after perusal of the order by Ministry/High-level committee (under an independent proceeding, the demand notice was quashed. Post enquiry as per the rationing officer on 7^th Sept 2016 a clean chit order was passed for the demand of 41475/- and accordingly the amount of demand was reduced to Rs. 8840/-(below 10000/-) which means that FIR lacks criminal jurisdiction as the defacto complainant has no authority to act as prosecution witness or file the complaint under ECA and prosecution police case is an abuse of process and not to be prosecuted as police case as per CRPC.

iii. In such circumstances, the defacto complainant lacks authority in continuing the police case and has no locus standi to the Police case is compounded against the licence holder (and other accuse named under the FIR) by settlement agreement and payment thereof which is compoundable under ECA. Considering the same, my client, who was wrongly implicated in this matter, cannot be prosecuted under the same complaint.

c. If you believe we can succeed through Lokadalat then file the application in Lok Adalat and proceed to end the matter, before session court by submitting the order of Lok Adalat.

APP Question

1. ECA Offences are non-compoundable [ study 320 of CRPC, other case laws for ECA been tried to be compoundable][RS1]

2. Applicability of Lok Adalat in non-compoundable cases [study]

3. Compounding with permission of the court [study]

4. No court can take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined u/s 21 of IPC [or any person aggrieved or any recognized consumer association, whether such person is member of that association or not]

5. FURTHER S/6 R/W 11 of ECA MEAN - [ORDER SUPERSEDES OTHER ENACTMENT HENCE FIR CANNOT BE FILED. ORDER STATED THAT IT GIVES THE RIGHT TO NOT FILE FIR IN SEVERE OFFENCE CATEGORY CASES LESS THAN 10K AND BY THE SAME ANY OFFENCE SEEMS TO BE CHARGED ON ASSUMPTIONS OF BLACKMARKETING BEYOND 10K IF TURNS OUT TO BE BASELESS AND REVERSED BY THE DEFACTO COMPLAINANT THEN THE SOLE BASIS OF FIR IS FUTILE AND STANDS AB INITIO NULL AND VOID.]

s/6 of ECA. Effect of orders inconsistent with other enactments.―Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by any enactment other than this Act.

S/11 of ECA. Cognizance of offences.―No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Code (45 of I860) 5 [or any person aggrieved or any recognised consumer association, whether such person is a member of that association or not]. 6 [Explanation.―For the purposes of this section and section 12AA, “recognised consumer association” means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force.]

S/7 of ECA – Penalties – contravention to S/3

- [s/7(1)(a)(i)] contravention of s/3(2)(h) or (i) – 1yr+fine

- [s/7(1)(a)(ii)] contravention of s/3(2) Others – 3m to 7yrs [sp reasons – less than 3m]

- [s/7(2)] contravention of s/3(4)(b) - -3m-7yrs+fine[sp reasons – less than 3m]

- Convicted again [u/s/7(1)(a)(ii) above]-6m to 7yrss+fine for every repeat offence

- Repeat offence s/7(1) then blacklist for 6 months for ECA business

s/9 of ECA – false statement – 5yrs or fine or both

s/10C of ECA. Presumption of culpable mental state– (2) - a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability

s/12 of ECA. Special provision regarding the fine.―Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate, or any Judicial Magistrate of the first class specially empowered by the State Government in this behalf, to pass a sentence of fine exceeding five thousand rupees on any person convicted of contravening any order made under section 3.

S/12A. Power to try summarily

CRPC – related to session court

185. Power to order cases to be tried in different session divisions. Notwithstanding anything contained in the preceding provisions of this Chapter, the State Government may direct that any cases or class of cases committed for trial in any district may be tried in any sessions division: Provided that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court under the Constitution, or under this Code or any other law for the time being in force.

193. Cognizance of offences by Courts of Session. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

194. Additional and Assistant Sessions Judges to try cases made over to them. An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.

195. Prosecution for contempt of the lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when the such offence is alleged to have been committed to, or about, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when the such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

281. Record of examination of accused. (1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record

Section 464 of CRPC "Effect of omission to frame, or absence of, or error in, charge"

(1)No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of Justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision, is of opinion that a failure of justice has in fact been occasioned, it may -

(a) in the case of an omission to frame a charge, order that a charge be framed, and that the trial be recommended from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction

B. DISCHARGE APPLICATION UNDER SESSION COURT

a. Grounds and reason for discharge in my view

i.Under ECA, only the original license-holder can be prosecuted (not any third person as it is a police case, based solely on the enquiry and investigation conducted by the enquiry officer within the rationing office

ii. The complaint is not been investigated by police (no records of any investigation done by police are placed on record)

iii. My client is falsely implicated and the matter can only be proceeded against the license holder on record, as the act is under the demand of money and no other offence can be made out of the complaint in which my client was every involved, for any wrongful gain.

iv. The order of the ministry/high-level committee is sufficient evidence that the demand made under the original complaint by defacto complainant was quashed and the amount demanded was exaggerated and false. Hence defacto complainant lacks the authority to file a complaint or stand as a prosecution witness any further. Solely based on the same, the rationing officer’s authority is no record superfluous. The Prosecution’s matter under FIR was solely based on his witness and evidence of demand notice which has been quashed by the appropriate authority hence any further action jeopardized the position of the prosecution witness and even question the jurisdiction to prosecute a crime, that has not happened, because of actual demand notice been quashed and can this hon’ble court proceed with a such case whose trail will soon meet a futile end with no justice to any of those implicated in the police case.

v.Prima Facie, the place of raid and the place of ration office are not the same.

vi.S/100 of CRPC- Process for Search and Seizure - [Under Section 100(4) Cr.P.C., it is laid down that before making a search, the officer conducting the search and seizure shall call upon two or more independent respectable inhabitants of the locality and in the instant case, though the premises were situated in the crowded area but no independent witness was joined by the raiding party]. The Panch involved in the matter are acting as panch in various matters for the rationing office and as per records at the time of the raid they were not present at the site and the panch were called from their respective location to include their name, as this people are of their confidence and not people who were locally present. In short, they are not impartial panch as required under CRPC and Evidence Act. These panch name and address, profession, and other details were not recorded in the panchnama by virtue of which the panchnama cannot be held as corroboratory evidence and hence no witness named in such panch can stand as a witness in this matter. To prove this the court can order to get the CDR report of their location and time as mentioned in the Panchnama, which is satisfactory evidence that the rationing officer have to use foul play to falsely implicate my client.

b. If required, as the court to allow the sole witness of the prosecution to make a statement before the session court so that the discharge application can be considered for discharge of my client.

c. If the court does not agree to discharge and insists for the following

i.CDR report of all the witnesses, rationing officers, and my client to understand the location, distance, and place where the raid happened.

ii. Ask for a list of witnesses and evidence on which the prosecution relies so that we can make our defence

d. legal provisions under crpc

CrPC - Chapter XVIII- S. 227 Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution on this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

TRIAL BEFORE A COURT OF SESSIONS, UNDER THE PROCEDURE OF WARRANT CASES ( Sec.2(x) Cr. P.C defines ''Warrant case'' which means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.)

Discharge of accused in Warrant Cases instituted based on Police Report :

A discharge application is the remedy provided to a person who has been charged maliciously or made on false allegations against him. He is entitled to a discharge, if the evidence provided to the Court is not sufficient to prove the offence.

The general process of law is that after the police on completing its investigation, file the final charge sheet against the accused under section 173 Cr.P.C. Thereafter the accused is put to trial for framing of charges against him, by the concerned Court. However, there lies a provision under section 227 of the Criminal Procedure Code the Accused person can be discharged before the charges are framed against him.

Contents of discharge:

While receiving a discharge application, the court has to consider the following facts:

1. The report and charge sheet submitted by police under section 173 of CrPC.

2. Adequate opportunity to be heard has been given to the prosecution and the accused.

3. The magistrate thinks through the charges as false and unsubstantiated.

Procedure:

While filing an application for discharge, the accused has to consider the following points:

1. That the report submitted by the Police does not contain effective facts and evidence.

2. That the material facts of the case cannot be determined.

3. That the accusations against him are unsubstantiated and vague.

4. That the prosecution has not provided any witnesses.

After examining these facts and evidence, if the magistrate thinks that these grounds are sufficient to discharge the accused, the application for discharge is accepted.

When the accused shall be discharged in Sessions trail

Section.227 of Cr. P.C provides that if upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Discharge can be ordered only after considering averment in charge-sheet and the relevant case-law.

Grounds on which Sessions Judge is bound to discharge the accused :

(i) Where the evidence produced is not sufficient

(ii) Where there is no legal ground for proceeding against the accused

(iii) Where no sanction has been obtained

(iv) Where the prosecution is clearly barred by limitation or

(v) Where he is precluded from proceeding because of a prior judgment of the High Court.

How to determine Sufficient ground:

In Century Spinning & Manufacturing Co. (1970) 72 Bom LR 585, Hon'ble Bombay High Court held that “there is no sufficient ground for proceeding” which means that no reasonable person could come to the conclusion that there is ground whatsoever to sustain the charge against the accused. In Union of India Vs. Prafulla Kumar Samal & Another AIR 1979 SC 366, the Apex court held that: “The words - not sufficient ground for proceeding against the accused” clearly shows that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section.227, the Judge has merely to sift the evidence. In order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” This judgment was again followed in Dilwar Balu Kurane vs. State of Maharashtra AIR 2002 SC 564.

A Three-Judge Bench of Hon'ble Apex Court in State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568, it was held that Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment of accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements.

Whether the material produced by the accused can be looked into by the session’s court?

In Satish Mehra v. Delhi Administration and Another(1996) 9 SCC 766 reported in, the Hon'ble Apex court observed that if the accused succeeds in producing any reliable material at the stage of taking cognizance or framing of charge which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material should be looked into by the court at that stage. It was held that the object of providing an opportunity for the accused of making submissions as envisaged in Section 227 of the Cr.P.C., is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need to be produced only after wasting a lot more time in the name of trial proceedings? It was further observed that there is nothing in the Code which shrinks the scope of such audience to oral arguments and, therefore, the trial court would be within its power to consider even material that the accused may produce at the stage contemplated in Section.227 of the Code.

Whether the material produced by the accused can be looked into by Magistrate?

In Satish Mehra's case stated supra, the Hon'ble Apex Court also observed that; Under Section.239 of the Code (which deals with the trial of warrant cases on the police report). The Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. The Code enjoins the Court to give an audience to the accused for deciding whether it is necessary to proceed to the next Stage. It is a matter of exercise of the judicial mind. There is nothing in the code which shrinks the scope of such an audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove the charge.

How to determine a prima-facie case?

The test to determine a prima-facie case depends upon the facts of each case. In this regard, it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if un-rebutted, make a conviction reasonably possible.

The word “ground‟ in the context is not a ground for conviction, but a ground for putting the accused on trial. The ground may be that the evidence produced is not sufficient for the judge to proceed against the accused or it may be that the Sessions Judge finds that the accused cannot be proceeded with as no sanction has been obtained or that the prosecution is barred by limitation or that he is precluded from holding the trial because of a prior judgment of the High Court.

Review of Order of Discharge:-

An order of discharge under this section does not amount to acquittal as no trial has taken place and as such fresh trial can be held and for a fresh trial, cognizance can be taken on the basis of fresh materials. Where the Magistrate had discharged some of the accused but after recording the evidence let in by the prosecution, fresh materials were found against the discharged accused, he can take cognizance of the offence as it is not a case of reviewing the order of discharge passed by the Magistrate earlier. It was held in Vishanu Murya vs State of Rajasthan 1990 CrLJ 1750 (Raj)

Discharge of accused in Warrant Cases instituted based on Complaint

Sec 245 Cr.P.C.: When accused shall be discharged : (1) If upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such magistrate, he considers the charge to be groundless.

There is a clear difference in Sections.245(1) and 245(2) of the Cr.P.C. Under Section.245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section.244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.

The situation under Section.245(2) Cr.P.C. is, however, different. Under Sub-section(2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is lead. However, for discharging an accused under Section.245(2) Cr.P.C., the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the Court or the evidence is led under Section.244 Cr.P.C. The words appearing in Section.245(2) Cr.P.C. "At any previous stage of the case", clearly bring out this position.

CrPC Chapter XIX - S. 239 When accused shall be discharged-If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

Chapter XIX- S. 245 When accused shall be discharged-

[1] If, upon taking all the evidence referred to in section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

[2] Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

CrPC - Chapter XXIV - S. 321 -Withdrawal from prosecution

Description

The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal;

a) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

b) if it is made after a charge has been framed, or when under this Code no charge is required he shall be acquitted in respect of such offence or offences;
Provided that where such offence—

i. was against any law relating to a matter to which the executive power of the Union extends, or

ii. was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or

iii. involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

iv. was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty,
and the prosecutor in charge of the case has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according to consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.

c) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption—

i. that he has no jurisdiction to try the case or commit it for trial, or

ii. that the case is one which should be tried or committed for trial by some other Magistrate in the district, or

iii. that the case should be tried by the Chief Judicial Magistrate, he shall stay the proceedings and submit the case, with a brief report explaining its nature to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction, as the Chief Judicial Magistrate directs.

d) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself or refer it to any Magistrate subordinate to him having jurisdiction or commit the accused for trial.

Read more at: https://devgan.in/crpc/section/321/

S. 246 Procedure where accused is not discharged-

[1] If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

[2] The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.

[3] If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.

[4] If the accused refuses to plead or does not plead or claims to be tried or if the accused is not convicted under Sub-Section (3) he shall be required to stale, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken.

[5] If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.

[6] The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged.

C. FACE THE FULL TRIAL BEFORE SESSION COURT

a. If for any reason Stages, A and B turn futile then the following must be kept in mind during the trial

i.All the points in the A and B stages

ii. Assess the list of all witnesses and evidence on record by the prosecution

iii. Prepare the cross-examination question for each witness, panch and rationing officer and related to CDR reports

iv. Build a list of evidence and ways to dispute/create doubt on the reliability or credibility of the evidence exhibited by the prosecution.

v.Legal provisions under crpc

Chapter 18 – Trial Before A Court Of Session

Section 225 – Trial to be conducted by Public Prosecutor

Section 226 – Opening case for prosecution

Section 227 – Discharge

Section 228 – Framing of charge

Section 229 – Conviction on plea of guilty

Section 230 – Date for prosecution evidence

Section 231 – Evidence for prosecution

Section 232 – Acquittal

Section 233 – Entering upon defence

Section 234 – Arguments

Section 235 – Judgment of acquittal or conviction

Section 236 – Previous conviction

Section 237 – Procedure in cases instituted under section 199(2)

D. DISCHARGE OF SURETIES AGAINST ACCUSED

CrPC Chapter XXXII - S. 444 Discharge of sureties-

[1] All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.

[2] On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.

[3] On the appearance of a such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail.

Read more at: https://devgan.in/crpc/section/444/

E. S227 DISCHARGE CANNOT BE DENIED ONCE MATTER IS COMMITTED TO SESSION BY MAGISTRATE COURT DUE TO SECTION 228(1)(a) OF CRPC?

Case Law

Case 1- https://indiankanoon.org/docfragment/69845361/?formInput=227%20%20citedby%3A%20495541

Patna High Court - Orders

Mayashanker Mishra & Ors. vs The State Of Bihar & Ors on 8 July, 2013

“10. The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution aforenoticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.”

Case 2- https://indiankanoon.org/doc/219428/

In Abani Chowdhury vs The State on 7 December, 1979, Equivalent citations: 1980 CriLJ 614

“15. As soon as a statutory commitment is made to Sessions under Section 323 or 306, all the provisions of Chap. XVIII come into the picture. Consequently, in such a case the Sessions Court can apply the provisions of Section 227 and (I) discharge the accused, (2) proceed according to Section 228(1)(a) and try the case after framing the charge, (3) or after framing the charge transfer it to a Magistrate, (4) That court can adopt the procedure envisaged by clause (b) of Sub-section (1) of Section 228 and frame the charge.

S228(1)(a) r/w 209 “Section 209 in The Code Of Criminal Procedure, 1973

209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a)¹ commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until a such commitment has been made;]

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

“

By a legal fiction such commitment will be deemed to be made, under Section 306(5)(a)(i) read with Section 209 of the Code. We hold that Section 306(5)(a)(i) is not a special provision and it cannot prevail over the provisions of Section 228(1)(a) of the Code.

19. We may state that Mr. Ghosh has pointed out that in Dilip Das's case a distinction was drawn between a case and an offence. Section 193 of the Cr. P. Code says that except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. Section 323 speaks of the commitment of the case. Similarly, Section 306(5) also says that where a person has accepted a tender of pardon under Sub-section (1) and has been examined under Sub-section (4) the Magistrate taking cognizance of the offence shall, without making any further enquiry into the case, commit it for trial to sessions.

[RS1]Section 320(9) in The Code Of Criminal Procedure, 1973

(9) No offence shall be compounded except as provided by this section

Section 4 in The Code Of Criminal Procedure, 1973

4. Trial of offences under the Indian Penal Code and other laws.

(1) All offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

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