Civil Procedure Code (CPC)

498a case filed against me and charge sheet filed as well.


Hi All,

A lady filed a charget sheet against me under Section 498A. Later i came to know that the lady's husband is relative to my uncle who stays near by my house.

I dont know what is their problems between the lady and her husband . unnessarily she put my name in the FIR and charge sheet. Later i got all the documents from her husband and could see that my name is there as A12. But in charge sheet they mentoned as A1 to A6 ,and A6 is with my name. But Actual A6 is some person which i dont know him.

I'm not sure why they put my name intentionally , I got notice from court at later point of time and i rejected it.

Please advise how can i defund and delete my name from the charge sheet ? And i'm not sure why they kept me as A6 ( after deleting the people from A7 TO A12)

Thanks in advance.

Kris

 
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Advocate

If you're not directly related to the wife or her husband, but a stranger, than file quashing petition u/s 482 Cr. P. C in the High Court for quashing the FIR against you.
 
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Thank you Vijay. I know their face but never talked with her. when i got notice i got shocked. what evidances i can show at court while i go with quashing petition u/s 482 Cr. P. C in the High Court ? After my marrige i left their place and moved to chennai as i works at chennai location. Can i show the marrige card and working avoidance are sufficient ?

also police will arrest me for unknown reason?

Please advise. 

 

 
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lawyer

 

 
 

Dear Rajesh,

You may read two articles

498a Quashing-How to Quash?

These days its quite an easy tasks for women to register a FIR by attributing allegations of cruelty and a case is registered and thereby the husband and his family members has to go harassment and torture. Now one remedy is available for them which can relieve them from all the harassment and torture and that is quashing of FIR under 482 CrPC. But this remedy is generally very sparingly and rarely exercised by the courts. Generally allegations of cruelty are mentioned in the FIR and based on this FIR is lodged but sometimes police forgets that in the cases of 498a general allegations of cruelty does not stand, the allegation must qualify either of the two parts as envisaged in section 498a.

Image result for 498a quash

First part is that the harassment which can be physical or mental is of such a nature that it could cause women to put her under grievous hurt or she may even commit suicide based on such harassment, therefore only gravest form of harassment are covered, but less graver form of harassment can be used in civil suit for divorce. if the FIR does not satisfy this ingredient the Fir can be quashed as held

In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations made in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of Magistrate for issuing process against the accused could be quashed under the following circumstances: (SCC p. 741, para 5)    “(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having  been  based  either  on  no  evidence  or  on  materials  which  are  wholly  irrelevant  or
inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.”

Shakson Belthissor vs State Of Kerala & Anr on 6 July, 2009

In order to understand the meaning of the expression `cruelty’ as envisaged under Section 498A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is of such a nature as to cause the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman.

Therefore if prima facie the charge sheet or FIR does not disclose an offence under section 498a the court can quash

the proceedings.

Warm Regards,

Adv.Nitish Banka

Advocate Supreme Court of India

nitish@lexspeak.in

 

 

chances of getting anticipatory bail in 498a

 

 

Anticipatory bail in 498a /406 offences.

The Supreme court quoted that the sections under 498a and 406 under the Indian penal code are widely misused and for no reason the husband and family members are prosecuted and jailed thereby tarnishing the reputation of the family the sections are exactly termed as “legal terrorism”.

Image result for 498a

 

The supreme court in recent judgement of Arnesh Kumar Vs. State of Bihar has made mandatory compliance of guidelines

All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

But once FIR under 498a/406 is registered the apprehension of arrests looms even with the guidelines and safeguards as to be mandatory implemented by police. The police can follow the guidelines and can arrest the person . still the offences are non-bailable and possibility of an arrest looms on the person.

But generally the trend in court is that the anticipatory bail is granted in the cases of matrimonial offences under the penal code but very strict conditions are imposed these are-:

 

  1. Return of dowry articles

As held in Vijender sharma v. state Anticpatory Bail was granted subject to the conditions that the petitioner will return all the gold/silver jewelry articles still in his possession to the complainant before the concerned SHO.  petitioner will deposit a sum of Rs.1 lakh additionally with the Registrar General of this Court in the name of the complainant, which amount shall be disbursed subject to the outcome of the trial of this case. The petitioner will join investigation as and when required and would not intimidate the witnesses.

2. By giving maintenance amount and returning jewelry

As held in Dr. Sunil Kumar V. State

With consent of parties, afore-noted applications are disposed of with the following directions:

(a) Rajesh would replace all the cheques which he has issued in the name of Shalini Arya pursuant to orders passed by learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by issuing cheques in the name of ‘Shalini’. This would be done within a week from today.

(b) Photocopies of the medical treatment of Baby Bhavishika would be handed over to Rajesh. Rajesh would be entitled to consult a reputed cardiologist and future medical treatment of Baby Bhavishika would be borne by Rajesh.

(c) Future medical of Shalini pertaining to treatment for tuberculosis by her would be reimbursed by Rajesh on the bills being furnished by Shalini to Rajesh.

(d) Rajesh would continue to pay to Shalini Rs. 10,000/- per month or such other amount as may be directed to be paid by the learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by means of a cheque payable in the name of ‘Shalini’.

(e) Rajesh would facilitate visit by the I.O. in company of Shalini to his house for opening the almirah in which cloths and jewellery of Shalini are stated to be kept. Shalini would be permitted to take possession of the same after an inventory is prepared.

(f) All the petitioners would cooperate with the I.O. in the conduct of investigation.

On compliance of afore-noted consent directions, in the event of arrest, petitioners would be released on bail by the I.O. on their furnishing a personal bond in the sum of Rs. 10,000/- each with one surety each in the like amount to the satisfaction of I.O.

18. It is made clear to Rajesh Arya that any violation of the terms of the consent directions would render liable to be withdrawn the benefit of the present order.

3. Bail without any condition of return of dowry items

In Vishal Arora V. state 

In my opinion, the petitioner cannot be denied bail on the ground that dowry and jewellery of the complainant has not been returned so far. The learned counsel appearing on behalf of the petitioner has taken a stand that the entire dowry and jewellery has already been returned to her. There seems to be a dispute between the parties on this aspect. If her dowry and jewellery is not returned, then she may take proper proceedings before the competent Court for return of dowry and jewellery as per law.

In the facts and circumstances of the case stated above, it is ordered that the petitioner may be released on bail in the event of his arrest on his furnishing bail bonds in the sum of Rs.20,000/- with one surety in the like amount to the satisfaction of the arresting officer. Thepetitioner is directed that he shall participate in the investigation as and when called by the Investigating Officer. In the event the petitioner fails to participate in the investigation, then the State will be at liberty to apply for cancellation of his bail.

4. Bail as contents of FIR are vague

In the present case of Pavitra Uraon And Ors. vs State Of Chhattisgarh, if we consider the contents of the FIR, lodged by the complainant on 24-1-2007, it shows that she was being treated with cruelty by the applicant on account of demand of dowry. However, the specifications regarding dowry are vague and general pertaining to the items etc.

5. Complainant residing in matrimonial home

 Proceedings under Section 498A/406/34 IPC are not to be converted into recovery proceedings. However, it is the desire of a Court to try and ensure that matrimonial disputes are resolved. Attempts were made in the present case in this direction, but unfortunately have failed.

Considering the fact that the complainant is still residing in the matrimonial house, but in a separate portion thereof and the fact that she and her children are otherwise being provided with maintenance by the petitioner No. 1, I am inclined to admit the petitioners to anticipatory bail as prayed for. It has to be additionally noted that the petitioners have cooperated with the investigating officer during enquiry. Since 6.2.2004 petitioners are under interim protection.

Petition stands disposed of with the direction that in the event of arrest, on petitioners furnishing a personal bond in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of the Arresting Officer, petitioner would be released on bail

Conclusion

Generally the bail in matrimonial proceedings are easy but may come with stringent conditions. the Anticipatory bail in cases of 498a/406 are granted easily these days and conditions depends on facts of each case.

Adv. Nitish Banka

nitish@lexspeak.in

 
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Hello Sir,

Thanks for your assistance . how soon we can get result from quashing petition u/s 482 Cr. P. C in the High Court ? Please advise

 
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Instructor @ Calcutta (rockysmith4calcutta@gmail.com)

Please don't apply for quashing as getting quashing u/s 482 CrPC is rarest of rare situation. If prima-facie is chargeable (without any proof) HC will not quash the case and send you to face the trial. And trial will be long long time.

As burden of prove lies on that lady and they have no proofs; please go to HC's criminal revision jurisdiction and apply for "Speedy Trial" u/s 483 CrPC read with Article 227 of Indian Constitution. And cite Section 21-B of Hindu Marriage Act and pray to dispose of the matter within 6 months. HC will order the trial judge to dispose of within 6 months.

You also can file perjury and defamation agains her in parallel. 

More tips on my FB page below.

https://www.facebook.com/RockySmith4Calcutta/

 
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Hi Smith,

Thanks for the update.I'm bit confused . I thought to apply for Quashing but what you were saying is something new for me.

I don't have any blood relation with the Petitioner . so what will be the best option to remove my name with the charge sheet ? and how can avoid to go for court hearings as I'm out of station.

Appericiate your help and advise.

 
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Instructor @ Calcutta (rockysmith4calcutta@gmail.com)

Originally posted by : rajeshtiru
Hi Smith,

Thanks for the update.I'm bit confused . I thought to apply for Quashing but what you were saying is something new for me.

I don't have any blood relation with the Petitioner . so what will be the best option to remove my name with the charge sheet ? and how can avoid to go for court hearings as I'm out of station.

Appericiate your help and advise.

 

Don't have blood relation is a very good ground of quashing however that conclusion must be obtain by just looking at the complaint (based on prima-facie). Otherwise, they will send you to face the trial and prove that you don't have any blood relation with accused party as this is your assertion. My opinion is, apply for only speedy trial, that will help you and other accused also. 

 

If you still can wish to file for quashing than file with “quashing with speedy trial” that is first prayer is quashing; if not granted by the HC then your second prayer must be speedy trial and to make 6 months’ timeframe with the aforesaid ground. Please check my FB page to know more on speedy trial. It is better to file party-in-person

 

https://www.facebook.com/RockySmith4Calcutta/

 
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Thanks Rocky for your kind response. I'm understood now. Can you please clarify below query as well?

1.As per the Superident of police notice and descripttion of the charge sheet( from the police investiagation), I could see that my name has been deleted.but not sure why did they added my name as A6 with the charge sheet. So can i check the same with district level court ? can i file petition with the court? 

Please advise

 
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