Chargesheet filed- should we go for discharge / quashing
EASWARI VIS
(Querist) 13 August 2017
This query is : Resolved
Respected Sirs,
Please accept my sincere apologies for the long mail since we wish to give you the correct situation:
My husband who is a Senior Citizen (61 years) and are living in Delhi for 25 years. He was falsely implicated under sections 354 (c), 354 (d), 506, 509 and the FIR was filed in July 2015.
The FIR was filed by our neighbor who is a retired ACP and now in Property business since we filed a Civil Suit against him over his illegal construction in the DDA flats. The Civil suit was disposed off as "Lok Adalat settlement" and he has agreed to demolish the illegal construction. He did not demolish the same fully and we have filed the Execution Petition and is pending for disposal. Also, he the made re-construction and the MCD (Municipal Corporation of Delhi) made a police complaint against him which is part of the court records. So, we have filed a Contempt of Court petition also requesting the Hon'ble Civil Judge to refer the same to the High Court.
It is still pending for reference to the High Court.
Infuriated on this action, by using his clout with the local police he has advised the police to go ahead and file the Charge Sheet and the same was filed in the local court in April 2017 - i.e after 20 months of filing the FIR, the charge sheet was filed.
My husband has been granted bail and while perusing the charge sheet, we noticed that only section 164 statement of the complainant was there. Other than this, the statements of his family members under section 161 was there. Further, he has influenced two other neighbors who have made such illegal constructions and advised them to give the statement under section 161 to the police. Their statement was also there without any signature of them. The IO has signed all the 161 statements. In fact, the content of the statements of both the neighbors are same.
Out of the two, who have given the statements under section 161, we have a civil suit which is still going on in the Civil Court for their illegal construction. The other neighbor and the complainant are upper and ground floor owners of the of the same DDA flats. In fact, during the Lok Adalat settlement, the written statement given by the MCD speaks about the structural safety of the flats and stated that both needs to be demolished. Affected by this, the other neighbor also gave a statement under section 161. Their statements talks about voyeurism, not wearing the shirt etc when my husband was sitting or standing in our own balcony etc etc.
All the three flat owners were pressurizing us to withdraw the Civil suits, Execution petition and the Contempt of Court petition.
The section 161 statements were signed by the IO and not by the other neighbors. And none of the neighbors in their statement reported the incident quoted by the complainant made in the FIR.
The colony has 12 cameras and no footage was collected - and the retired ACP himself is incharge of Security and CCTV Cameras till date. If such incident referred in the FIR is true, he could have given the footage to the local police already.
Further, it is strange that the retired ACP from Delhi Police did not call the Help line number 100 when such incident was supposed to have happened. He did not call the local police also because no such incident reported in the FIR really has happened.
Further, my husband was not present in the house the whole day and we have sufficient proof (some are circumstantial) that he was not present.
Now, let us also admit that we made a mistake - we had filed a Quashing petition in the High Court in Feb'16 - that is after 8 months of filing of the FIR. We hold all the lawyers in high respects. Honestly, our lawyer did not argue the matter well before the Hon'ble High Court in Feb'16 and the Hon'ble Judge advised us to withdraw the quashing petition and advised us to state the details during the trail.
When we went to the High Court or quashing, we did not had much of the information i.e the statements given under Section 164, Section 161 etc etc. Now we have the copies of the entire charge sheet.
The bail has been granted but the Hon'ble Judge made the next hearing to February 2018 i.e after seven months !!!
Already, there was a delay in filing the charge sheet of 20 months and if we add the time delay of another seven months, god only knows when the trail will begin. Basically, we have been harassed despite being Senior Citizens.
Since my husband is on bail, the retired ACP & his family members emboldened further and are sitting in the illegally constructed courtyard (which is yet to be demolished) and throwing cigarettes etc after smoking in our balcony (which is in adjacent to the illegally constructed courtyard). We have put bamboo curtain (padutha) to cover our balcony but it may catch fire at any time due to the cigarettes butts. And we have collected the cigarettes butts which were thrown by them. They further howl at us every day and asked us to go back to our native state from Delhi.
Kindly advise:
1. Whether we can file the quashing petition once again in the Hon'ble Court by narrating all the above since we have now full information? Recovery of no camera footage, inordinate delay in filing of the Charge sheets (20 months) , the next date of hearing is also fixed after a long period of time (7 months),,my husband is a Senior Citizen, police complaint by MCD on the reconstruction made by the retired ACP etc etc. .
And will the Hon'ble Court consider the quashing petition this time seriously?
2. Or it is better to file the Discharge petition in the local court only and wait for the outcome and trail ?
3. Some say that our rights are violated under article 21 and hence the High Court will consider the same?
4. As a pre requisite of filing the quashing / Discharge petition, should we have to file a police complaint against them first before we cite violation of article 21?
5. As per High Court orders, FIR should be filed for each and every illegal constructions - since the retired ACP is from Delhi Police, no FIR was filed against him over the illegal constructions and also towards the re-construction despite the complaint by MCD to Delhi Police.
Can we cite this as a reason for considering the quashing petition?
Basically, we are only two (husband and wife) living alone and harassed by the retired ACP every day.
We are ready to face any punishment in case we have really done any mistake. whereas we have not done anything.
Respected sirs, kindly advise us on this. Onceagain, our apologies for the inconvenience caused.
Easwari
P. Venu
(Expert) 14 August 2017
Once the court has taken cognizance of the matter, issue needs to met on merits.
M V Gupta
(Expert) 14 August 2017
As regards illegal construction made by ur neighbor, u should file the complaint with the NDMC with their building department. It is the proper authority to take action against illegal constructions. Under the NDMC Act the MC has powers to demolish illegal constructions after issue of prescribed notice to the guilty persons.
As regards ur proposal to file a second petition for quashing of the compliant filed against u with newly found details a decision may be taken in consultation with ur Advocate. It is a chance u can consider it. As regards discharge application before the Magistrate court, u can consider it if the Complainant fails to prosecute the case by not attending the court either in person or through his advocate.
