Harry (SERVICE) 16 August 2015

498a cruel law

I have a query and need some suggestion on this. Me and my family [my elder brother, father and mother] convicted for false 498A and 406. We have challenged that order to the District court and it is still pending. In the mean time both the parties we have decided for mutual settlement.

hey have signed an agreement stating that they have received all sthreedhan in good condition and they do not want to pursue this case any more. Primary complainant signed an affidavit and compromise petition filed by both the parties in District Court.

Another petition for 391 submitted in the court which is allowed by the Dist and addl session judge for recalling witness. On oath both the witness primary complainant and her father admitted they do not want to pursue this case any more. PP on behalf of State also gives us no objection on this compromise. Still dist judge did not pass any order to settle the case or give any direction to lower court to dismiss this case.

In order sheet it mentioned as on oath complainant says she does not want to continue this case. It is being mutually settled. We filed a pettition on HIGH court for quashing and high court neither rejected not accepted the quashing pettition. According to the judgement honourable high court says

"This application has been filed for quashing the
entire criminal proceedings in connection with Complaint Case
no. xxxx of 2008 pending in the court of C.J.M. xxxxxx.
Petitioners further pray for quashing the entire criminal
proceeding in connection with Cr. Appeal No. xxxx of 2013
pending in the court of Addl. Sessions Judge-II, XXXXX.
It is submitted by learned counsel for the
petitioners that petitioners have filed a compromise petition
before the Appellate Court, but on the said compromise
petition still no order has been passed by the learned court
below.
Under the said circumstances, petitioners are
directed to pursue the aforesaid application.
With the aforesaid observation and direction, this
application is disposed of."

So what should be the next course of action left in front of us.

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ROHIT SHARMA (Legal Advisor ) 16 August 2015

(1) The application made u/s391 of Cr.P.C. has been allowed by the Appeal late Court and recalling of the witnesses was permitted so as to take additional evidences. (2) Now, the deposition made by such primary complainant and the other witness (father) before the Appellate Court on oath both have admitted they do not want to pursue this case any more. PP on behalf of State also gives us no objection on this compromise.(3) Technically speaking such deposition by such witnesses before the Appellate Court cannot be deemed as new evidence and based upon such deposition the conviction cannot be set aside. The reasons being that s. 498-A I.P.C. is not compoundable except s. 406 I.P.C. (4) The subsequent petition filed before the H.C. for quashing the entire criminal proceedings in connection with Complaint Case after conviction and at the stage when the matter is being heard by the Appellate Court is rather strange in law and that is why the H.C. has neither dismissed the petition nor has it quashed such complaint case and have in their order have stated that under the said circumstances, petitioners are directed to pursue the aforesaid application with the aforesaid observation and direction. (5) Moreover, this was a complaint case then such deposition as to with draw the complaint after conviction cannot be deemed as justification to with draw the complaint which otherwise would have been admissible u/s 257 of Cr.P.C. (6) In fact such recalled witnesses should have asserted on oath that the charge u/s 406 ( punishment for criminal breach of trust) I.P.C. being compoundable and while the trial was under progress the complainant has had in fact received the property (streedhan)before such trial concluded and such deposition on oath before the Appellate Court then could have been admitted as new evidence and could have served as to rationalizes that conviction u/s 498-A I.P.C. should be set aside. (7) Discuss with your advocate and if permitted by the Appellate Court need be file another deposition on oath as on the line as suggested in supra para. 4.