498a - bail in u.p. - direction by hc
Sharad
(Querist) 08 July 2013
This query is : Resolved
Hello Sir / Madam,
I approached Allahabad HC to get a stay on a false 498A case against me and my family. Though the HC refrained from quashing the FIR, they have directed the session court to handle the case according to the case of Lal Kamlendra Pratap Singh Versus State of U.P. reported in 2009(4) S.C.C. 437.
I have couple of queries for the same:
1. I live in UK, Is it necessary to be personally present in the court for the bail in this case? Can I get an exception and can the lawyer not file it on behalf of me and my whole family?
2. Can you please suggest a good (or the best) criminal lawyer in Kanpur?
I would be really grateful for your expert opinion and advice.
Thanks in advance.
Sharad
Devajyoti Barman
(Expert) 08 July 2013
1. Without personal presence no bail would be granted. So you better be there.
2. May be Singhji would of help to you.
Sharad
(Querist) 08 July 2013
Hello Devajyoti Sir,
Some of my family members who have been accused are in India and the rest are out of India.
How will they be able to leave their work and reach India within 15 days to appear before the court?
At this point in time only FIR has been lodged.The investigation is not complete and the charges have not yet been framed against any of them.
There is no arrest warrant.
Is it still required for them to appear in Person for this kind of bail?
Also, Please help me in finding a good criminal lawyer in Kanpur (Kindly request to provide the full name and contact no., if possible).
Many Thanks!
Devajyoti Barman
(Expert) 08 July 2013
I repeat there is no escape from applying bail by personal appearance.
Yopu better search an advocate.
Sanjeev
(Expert) 08 July 2013
The bail even if granted may put a condition for not leaving India and your passports may be impounded. In case you can avoid coming to India then stay away as after bail you wont be able to leave India at any cost as the opposite side will contest and court would require your passports to be deposited. So make a decision either to avoid India or else remember no way you can leave India post bail. No lawyer can help on this
Sanjeev
(Expert) 08 July 2013
In Allahabad HC the direction of your bail hearing would have a order to refer the case for mediation in case you can settle with your wife in mediation than your problems will end but knowing your problem for bail she would not settle for less and easily
R.K Nanda
(Expert) 08 July 2013
nothing to add.
Sharad
(Querist) 09 July 2013
Hello Sanjeev Sir,
What you suggested (impounding of passport) may happen in case the charges are grave and there is proof (atleast one) to substantiate it (or maybe, this used to happen 5-6 years back).
In my case, the 498A is completely false and absurd and there is no proof at all.
I have full faith in the judiciary and hope
that they will not blindly ask for impounding of passport and deprive me of my sole livelihood.
But anyways, thanks for the response.
-Sharad
Rajendra K Goyal
(Expert) 09 July 2013
The decision stage of the case may come after 4-5 years, your turn to present your defense may come after 2-3 years till than you have to attend all proceedings of the court personally. It is true that the court decide the matter on merit, still a good Advocate is always useful. Take the help of your Indian relatives and engage a good lawyer and have his opinion on the basis of the case file.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 July 2013
In UP Kamlendra Pratap Singh Versus State of U.P. reported in 2009(4) S.C.C. 437.
is the standard case for which you can go directly to sessions court.
BUT IS SEEMS YOU KNOW MORE THAN A NORMAL ADVOCATE AND HENCE SUCH PROBLEM COMES.
Normally every body goes of QUASH and it is rarely accepted.
However if you can show technical flaws in FIR and can contest the matter on the basis of JURISDICTION , may get relief at SC.
following ARE SOME OF CRITICAL VIEWS OF APEX COURT WHICH IF YOU CAN FACTUALLY FIT IN YOUR CASE THAN EXPECT SOME RESULTS.
that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating acts were done within the jurisdiction of ......... Police Station and the court at ............ and, therefore, the learned magistrate lacked territorial jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2) Cr.P.C. Apart from the subsequent two contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken.
18. In so far as the plea of territorial jurisdiction is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction could be decided by the trial court itself.
