Can i file application before hon'ble court to dismiss the complaint case as per provisions of 46
Sadanand B. Panchal
(Querist) 20 April 2014
This query is : Resolved
Respected Experts,
One lady filed false compliant to the Police against me for which Police registered FIR bearing xx/27-2-2008 under section 509, 506,504 read with section 34 of IPC where date of offence alleged is 20-1-2008. Police arrested me and produced before the Hon'ble Magistrate Court on 12-3-2008 when I was released on bail of Rs.5000/-.
Thereafter Police registered a C.C. no. yy of 2009 in the year 2009 and notice to attend Court was given to me for first instance on 6/12/2010 (It was first adjournment of the matter C.C. no.yy/2009). At that time for the first time Police submitted Charge Sheet and copy of the same was tendered to me before the Court.
FIR reflects offence u/s. 506 of IPC whereas Charge sheet reflects section 506 part II of IPC. In Mumbai this Section is cognizable and non-bailable as per MG Gazette.
Thus Charge sheet was filed after two years from the date of offence alleged.
I released on bail in the year 2008 thereafter charge sheet was filed after two years after registration of FIR which reflects section 506 part II of IPC.
For offence u/s.504 or 506 part I of IPC punishment of imprisonment is Two years. For offence u/s. 509 of IPC, Punishment of imprisonment is one year. For offence u/s. 506 part II of IPC punishment of imprisonment is seven years.
Every time Prosecution used to take adjournment more than 6 months and last time the matter was called out on 10-10-2014 and the court want to start the hearing and asked me for Advocate. I told that I could not appointed private Advocate for financial reasons, therefore the Court pleased to appoint a Government Advocate. The Government Advocate on 22-01-2014 has unexpectedly withdrawn his Vakalatnama without mentioning any reasons. At this stage I have no Advocate. Hence I am making following query, kindly help me:
1)As I have already released on bail as per offence u/s. 509,504,Sec.506 (I) IPC mentioned in the original FIR, can section 506 part II of IPC (non-bailable offence) applicable to my case? If not then can maximum term of punishment is two years be maintained for Application u/s.468 of Crpc.? IF yes then can Court pass order to arrest me u/s.506 (II) of IPC even after I was released under bail?
2)Is charge sheet filed by the Prosecution after two years of the registration of FIR is barred by Limitation? For what?
3)Can I file Application before Hon'ble Court to dismiss the Complaint case as per provisions of 468 of CrPC.?
Thanks,
Sadanand Panchal
Devajyoti Barman
(Expert) 20 April 2014
1. In charge sheet the Police cna add/alter charge from what has been originally mentioned in FIR.
2. nO
3. Yes but it hardly has any merit.
ROHIT SHARMA
(Expert) 20 April 2014
Dear Mr. Sadanand B. Panchal,
1. I think this lady is hell bent upon to have you persecuted if not then at least put to great mental tension.
2. I have understood your reasoning about the discrepancies in the mentioning of the F.I.R. and the Charge sheet especially in context with s. 506 (ii) of I.P.C.
3. You see the charges mentioned in the charge sheet are to be deemed as legally investigated.
4. S. 468 I.P.C. can be read into your instance if the court has yet not framed the charges which implies that the court still has not taken cognizance of the charges mentioned in the charge sheet.
5. You need to be mention as to whether you have singed any document before the P.O. that you say that you are not guilty ?
6. If this formality has not been done then it becomes evident that the Charges are not as yet farmed by the P.O. of the court.
7. Moreover, since the Charge u/s 506 (ii) I.P.C. provides punishment for over three years then such case needs to be committed before the sessions court. Has such case been committed by the J.M.F.C. u/s 209 Cr.P.C. 1973?
8. You have a legal remedy to seek discharge u/s 239 Cr.P.C. if the court has not as yet framed the charges or you can file a special leave criminal petition u/s 482 of Cr.P.C. 1973, before the H.C. to have such F.I.R. quashed and for such purpose the relevant facts involved in your case have enough of merits for the H.C. to agree to quash the F.I.R.
9. If need be talk to this lawyer.
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) 09824047971.
E-Mail : lawgate1349@gmail.com.
Sadanand B. Panchal
(Querist) 21 April 2014
Respected Experts,
Thanks to all for your valuable help. As per the advice of respected Advocate Shri Rohit Sharma as per point no.5, It is not informed the following fact:
When I was arrested for first instance, on 12-03-2008 and was in the Police Custody, before Police taking me for medical test at Bhabha Hospital, the Police Officer had taken my signature on one form without giving me a chance to read it. As I was frightened for Police Custody in life and my family members not allowed to remain present at the Police Custody, the Police forcibly taken my signature on form. After I released on bail, I tried to make inquiry of the form but Police not showing.
Apart from this neither Court nor P.O. at the time of matter called out after filing of charge sheet or at any adjournment asked me a question whether I was guilty of alleged offence. I never signed any document of P.O. before the Hon'ble Court stating I am guilty of alleged offence till date and no charges were framed by the Hon'ble Court till date.
Is this fact makes any benefit to my case?
Thanks,
Sadanand Panchal
Devajyoti Barman
(Expert) 21 April 2014
Admission of guilt in police station has not force in the eye of law.
Offence u/s 506 IPC can tried before Chief Judicial Magistrate, not necessarily before Sessions court and hence no committal is required.
ROHIT SHARMA
(Expert) 21 April 2014
Dear Mr. Sadanand Panchal,
1. As per the provision contained u/s 240 of Cr.P.C., 1973, the P.O. of the court usually makes informal examination and hearing of any (i.e. the P.P. or the accused) and if the P.O. of the court in his opinion presumes that the accused has committed the offence he shall frame in writing such charges against the accused and then such charges are read and explained to the accused by the P.O. of the court and the accused is asked if he pleads guilty and requires the accused to sign on a form as to indicate as whether he does so or does not do so.
2. If such legal formalities have not been done while you presented your self on 6/12/2010 in the court when you had received the summons as when the police had filed the charge sheet, or even after on subsequent dates of hearing then it indicates the court has not as yet framed the charges and you can rescue your self by filing an application before the court u/s 239 of Cr.P.C. seeking discharge of the accused (i.e your self).
3. You would be needing a advocate who can draft such application or you can do it your self stating therein the relevant facts as to deny the circumstances under which the complaint has had filed the complaint.
4. As an alternative you can file an application u/s 482 of Cr.P.C. before the H.C. seeking quashing of such F.I.R.
5. At the last date of hearing when the matter was called out on 10-10-2014 and the court want to start the hearing and asked me for Advocate you told that you could not appoint private Advocate for financial reasons, therefore the Court pleased to appoint a Government Advocate. but the Government Advocate on 22-01-2014 has unexpectedly withdrawn his Vakalatnama without mentioning any reasons.
6. This is a strategy that the complainant is playing and who is she has to revealed to me so that i can guess as why all such dummy charges have been slapped against you.
7. You may consider to talk to this lawyer but that would be a paid consultation.
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) 09824047971.
E-Mail : lawgate1349@gmail.com.
Sadanand B. Panchal
(Querist) 21 April 2014
Respected Experts,
Thanks for your valuable information and advise. I will contact Advocate Rohit Sharma as soon as possible.
Regards,
Sadanand B. Panchal
T. Kalaiselvan, Advocate
(Expert) 27 April 2014
Rightly advised by experts, nothing more to add. Hope Mr. Rohit Sharma will be able to solve your queries.
