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FightForCause (Businessman)     23 May 2016

498a/406 directly in court - procedure?

Hi Experts,

My cousin is slapped with DV and 498a cases which are shown at Ecourt website.

I understand DV can be put but is 498a not necessary to be given to police and then they file or can it also be filed as private case.

Also now as 498a case is in Chief Magistrate court , will it be necessary to take anticipatory bail/ arrest stay ( as UttarPradesh ) from Allahabad high court or from the chief judicial Magistrate. Will police have any role now as case i believe is put as Private case where other party coming as Wife's Father and opposite party as my brother and his mother.

 

Please guide, He is tense as his mother is quite ill and will not be able to sustain and jail thing.

 

 



 15 Replies

saravanan s (legal advisor)     23 May 2016

Now the court would instruct the sho of the concerned police station within whose jurisdiction the offence had been committed to investigate and give it's report.police can't arrest you or family members just like that. They need to follow the guidelines laid down by supreme Court while making arrests in cognizable offences punishable by less than seven years imprisonment.

A walk alone (-)     23 May 2016

First apply for bail for your brother and family members in 498a because police may arrest according to SC guidelines sec 41a. Better consult sho or offer him come money if he agree for cancellation of other family members name from charge sheet.

Q Slinger (NA)     23 May 2016

Originally posted by : A walk alone
First apply for bail for your brother and family members in 498a because police may arrest according to SC guidelines sec 41a. Better consult sho or offer him come money if he agree for cancellation of other family members name from charge sheet.

Wrong advice....

Follow what saravanan has said. Also join your local Save Indian Family Chapter (Http://www.saveindianfamily.in) for further guidence. 


(Guest)
No arrests are likely. Arrest of aged mother has probability of zero. Police has power to arrest but they need very strong grounds for exercising such power. In family matters such grounds rarely exist, and there is plenty of legal precedence of judges initiating inquiry and and proceedings against police if they misuse their power in such cases. Contact local group of SIF or MRA for advice. 498A/406 is very standard in all husband-wife quarrel nowadays. There is nothing to worry about, legal process is very smooth for such cases because of large numbers. Only be careful of people (including lawyers) who try to instill fear and try to make money by exploiting scared families.

pankaj kapoor   23 May 2016

Is bail required in this case or not? And can this case be withdrawn by wife from that court where it is filled?

laxmi kant joshi (instructor)     23 May 2016

The court will send the matter to the sho of the jurisdiction where the offence is committed for investigation and asked him to report, police will not arrest anyone during their investigation they have to follow guidelines of SC .

pankaj kapoor   23 May 2016

Sir, pl.reply to my two queries asked in above message..

FightForCause (Businessman)     24 May 2016

I am also interested to know whether bail is required or not in above case?

I spoke to local lawyers and they are telling to secure bail, but i doubt as matter is with court...My cousin has got no court summons...so it can be assumed he is unaware of case. If he tries to secure bail , it itself implies he is aware of cases and then will have to attend all dates ...which he is avoiding now , as he is trying to take transfer to nearby place as currently cases place is 500km+ from his place.


(Guest)
First wait to get notice from police to join investigation. Attend first date with police, deny allegations, get copy of complaint. After this discuss options with a lawyer. Any talk of bail before this is premature and recipie to waste money.

FightForCause (Businessman)     25 May 2016

Thanks Autohide,

But thats what is making me confuse.

I spoke to 2-3 lawyers in UP and they say that my cousin need to take bail . I questioned them , as per court we dont know that he has any 498a case against him..then how will he ask for bail.

Anticipatory bail is not there in UP.

 

Can someone from UP or knowledge of 498a private complaint guide me correctly.

I am thankful to above all who have replied till now.

FightForCause (Businessman)     25 May 2016

Thanks Autohide,

But thats what is making me confuse.

I spoke to 2-3 lawyers in UP and they say that my cousin need to take bail . I questioned them , as per court we dont know that he has any 498a case against him..then how will he ask for bail.

Anticipatory bail is not there in UP.

 

Can someone from UP or knowledge of 498a private complaint guide me correctly.

I am thankful to above all who have replied till now.

pankaj kapoor   25 May 2016

Hi fightforcause, pl. Share your contact no.

(Guest)
  1. Lawyers need clients to apply for bail so they can get fees. 
  2. I do not have full knowledge of unique procedure in UP, but basic process of law is common all over India. Only minor differences are seen in different states.
  3. My best effort guess is that the case is in early stages where magistrate has not taken cognizance. Accused have no role at this point. Case is all about complainant trying to convince the judge to start the case. After few court dates as process moves forward judge may order police investigation report under CrPC 202. 
  4. At this point police will send you a notice to come and give your statement. If you cooperate with notice and give statement confidently, police will not create any issues. The other side may bribe police to threaten you about arrest. Stay strong and display confidence in awareness of your rights. Once they see your confident demeanour police will back down. No need to bribe from your side, if police get sniff that you are ready to bribe, they will keep asking you for more. Police has very limited role in this case - no need to appease them or give them evidences of your innocence. 
  5. Bail application may be needed at some point along this process. If you apply prematurely you won't get bail and just waste money with a bad lawyer. So wait for the right time.
  6. Try to find an experienced preferably senior lawyer in the jurisdiction of case. Try to approach lawyer using personal connection who is his prior client. Try to find someone with whom you have good personal rapport. It is not easy to find a decent lawyer in India who meets these requirements. Majority of lawyers are useless and dishonest. Good ones take some effort to find.
  7. Establish a positive working relationship with lawyer and take his advise on all cases related to this matrimonial dispute. It is important that your position remains consistent across all matters. 
  8. Use forum only to double check your understanding of process or get perspective of other people in similar shoes. Forum is not good place to design legal strategy because all facts cannot be communicated without in-person meetings and full documentation.  
  9. 498a/DV/125/HMA24 is 'ghar-ghar-ki-kahani' these days. No bullets get fired and nobody goes to jail. Matter automatically loses steam after 3-4 years. Only problems happen when people get too worried, lose sleep, spoil mental/physical health or fall in trap of dishonest lawyers. Avoid these typical mistakes as best as you can.
  10. Best of luck

FightForCause (Businessman)     26 May 2016

@ Pankaj.. sent u PM , kindly check and respond.


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