Information about 482 Crpc and ways to challenge challan in session/high court

[Aastha Kaushik]

Respected sir,
I would like to know about Section 482 cprc.

On ground reality, is it really worth to file Section 482 Crpc? Actually, the problem is police have removed all the accused apart from husband from the challan it has represented in the court. My lawyer suggested me to file 482 in the Punjab and Chandigarh High Court for challenging the challan .

Sir, do reinvestigation really occur in an unbiased way , if the court decides ?

Sir, further I would like to ask whether I can put Section 482 Crpc after the challan is presented in the Session Court OR do I have to file it earlier than that ?

Sir, do complainant’s consent also taken while acceptance of challan?

Sir, are there other way’s also in which challan could be challenged ?

[Dr. Ashok Dhamija]

It the names of some of the accused persons have been dropped from the charge sheet, the complainant has the right to file a protest petition before the trial where the charge sheet is filed. If the court is satisfied, it may order further investigation under Section 173(8) Cr.P.C. In the alternative, if the court finds that there is sufficient evidence available to prosecute the accused persons whose names have been dropped, the court can directly take cognizance of the offence even against these dropped accused persons. Even during the trial stage, the court has the power to add a new accused person under Section 319 Cr.P.C.

You may try filing petition under Section 482 Cr.P.C. to high court after first filing a protest petition and if you do not succeed in your protest petition.

For more information on a similar issue, read: Can an appeal be filed against the Challan for further reinvestigation?     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Aastha Kaushik]

That means we can put section 482 crpc even after filing if challan ? Sir, my lawyer is saying that discharge petition is filed if all the accused are removed from challan by police, is it so sir ? Please clarify both the queries sir. Thanks a lot

[Dr. Ashok Dhamija]

My above answer was given on the basis that you are the complainant or that you are asking on behalf of the complainant. This is what appeared from your first question.

However, after your second question there appears to be doubt. Please clarify whether you are asking question on behalf of the complainant or on behalf of accused persons.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Aastha Kaushik]

Sorry for misunderstanding sir. I myself is complainant and yes, only husband is chargesheeted, rest all are evicted.

Sir, date of presentation of challan is 13/9/2016 , but we already know that all accused are evicted except husband. ( as per the rti reply , in rti we asked for the action taken by police )

Sir, at this situation, shall i file 482 crpc (with rti reply documents , which themselves are challan) , before challan presentation date or i could file 482 even after challan presentation date ?

Sir, is protest petition filed in case all the accused are removed from chargesheet only ?( as in my case husband is chargesheeted, rest all are removed)

I am not able to decide whether to carry on with current lawyer or change him as he is saying that protest petition is filed, only if all accused are removed from challan , i dont know what is right sir, please guide.

Sorry for taking a lot f your time sir 🙁 but you help me a lot in clearing my doubts.

[Dr. Ashok Dhamija]

The doubt arose as to whether you are for the complainant or the accused persons because in your second question, you have wrongly mentioned: “…discharge petition is filed if all the accused are removed from challan by police…”. If you are for the complainant, then you should have written “protest petition” instead of “discharge petition“.

Anyway, now that you have clarified that you are the complainant yourself, what I wrote in my first reply remains valid. You are entitled to file a protest petition even if some of the accused are not charge sheeted. It is not correct to say that protest petition can be filed only when all the accused persons are not charge sheeted. As a matter of fact, protest petition can be filed by the original complainant even if some of the accused persons are not charge sheeted by police.

This is clear from the case of Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537, in which the Supreme Court has held as under:

“We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.”

As mentioned in my first reply, thus, you may first consider filing a protest petition and thereafter you may consider filing S. 482 petition before high court if your protest petition is not successful.

This is what I genuinely consider to be the correct procedure to be followed. However, it is up to you or your advocate if you want to directly approach the high court under Section 482 instead of first filing a protest petition with the Magistrate court.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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