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Rahul Choudhary   08 October 2017

498a quashing

Hello Experts
 
I and my family are NRIs and living overseas. My wife and I are going for the Mutual Consent Divorce and she has named my father,mother brothers and sister in the FIR. My sister is not willing to give any affidavit or power attorney to us to quashing the case citing that she has not been summoned and all that. Our lawyer is saying that we need affidavit and ID proofs of all the persons named in the FIR and without that we cannnot apply for quashing even though my wife agrees to withdraw all the allegations. I am hoping you can provide us some orders where 498a quashed without the consent of all the accussed.
 
Or any alternative you could suggest please? Our lawyer is also trying to find some orders as well but if you can help us that would be great.
 
Thanks
Rahul



Learning

 8 Replies

Master Warrior (AOR)     08 October 2017

If she's withdrawing the allegations your consent shouldn't be required.

Also as far as your sister's ID, if the lawyer hasn't put in a response for your sister he can simply state that she hasn't been properly served with the documents yet and as such doesn't need to reply. 

Your soon to be ex should be the one filing the application to withdraw/quash the case. You can even cite jurisdiction as your sister does not (I assume) live in India.

Vijay Raj Mahajan (Advocate)     08 October 2017

In quashing petition of 498A etc. IPC FIR both the State as well the complainant wife are made Respondents in High Court and both parties are supposed to file appearance to agree or defend the said petition. Its the duty of your lawyer to make your wife as second Respondent and the High Court will summon her and when she makes her appearance the High Court will record her statement on the issue of compromise and her consent for quashing the FIR. No advance affidavit from wife required as the statement will be recorded after summoning her by the High Court. Quashing petition need to be jointly filed by all named accused in the FIR with their ID proof to get quashing order against all accused and for closure of all proceedings against all of them. The sister who refuse to give individual power of attorney can just sign the Vakaltnamma of the advocate along with other accused that will serve the purpose.

Master Warrior (AOR)     08 October 2017

I would suggest that if 3 of 4 defendants file for a quashing, and the 4th defendant hasn't been served yet, the FIR should still be quashed in its entirety as it is "against" all 4, and the defendants are not looking to quash it against certain people, but its entirety.

If one defendant hasn't yet been served with the documents/suit/claim/FIR yet, then technically she was never part of the proceeding to begin with, and it should be possible to proceed without her ID if she does not want to provide the ID.

Rahul Choudhary   08 October 2017

Thanks Experts. Even I was not served here only my mother and father who are in India went to the police station and gave thier statement. We 6 people are the main accussed in the FIR. Bear in Mind I should have mentioned earlier:

LOC was opened for my self my brothers and sister since we never appeared to the Police. Please guide me in simple words:

Can my wife file for Quashing and court doesn't need affidavit or ID from all of us or just Myself, My Parents and brothers ID will be enough? And the case will be quashed for all of us.

Police only contacted our parents in India and never contacted me via email but not with my brothers or sister. But they issued Warrant and LOC for all 4 of us which is still open.

 

manoj   08 October 2017

As per your query, whether your sister should come up with you for quash petition. No dout the investigation officer not served the summons to your sister. When she is not coming forward with you for quash in High Court,  it is better to show your sister as party in the quash petition as respondent. If you show your sister as respondent in the quash petition nothing prejudice will happen to you in quash petition. When she receive documents from High Court she will not attend to court as she may become exparty.  

1 Like

Siddharth Srivastava (Advocate)     08 October 2017

If few accused approach high court for quashing in cases relating to matrimonial discord like 498 A cases the high court quash the FIR where parties have mutually settled their dispute so go ahead even if sister to is not giving affidavit. Make all accused persons as petitioner and state and wife as respondent as it would make easier to get FIR quashed. Sidharth 9811776422
1 Like

Rahul Choudhary   08 October 2017

Thanks Sir

Nitish Banka (lawyer)     20 June 2018

 

https://www.youtube.com/watch?v=kdQ1GsKBmtQ&t=71s

Posted by: Nitish Banka  Categories: Uncategorized 
 

 

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

 

 


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