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Harsh (Manager)     04 January 2013

Dilemma - attempt to quash

Often asked question about trying  to get 498a quashed - which seems highly unlikely. yet ...

Based on my limited reading and understanding - I'd like to try on grounds of vague allegations (or No Specific Allegations), Malafide Intentions (retaliation,  extortion etc.) 

Are these good enough to attempt for quash?Difficult to prove would of course be malfide intentions.

1) Prima Facie case made out - YES

2) Specifc Allegations - NO

3) Malafide/retaliation/oblique motives - YES, can provide proof of events, facts, contradictions which will establish this fact. But as I read on the forum, NO  evidences are considered during quash proceedings, then how  to prove this?

Pls suggest,esp. on the 'mala fide intentions' ground. 

thanks



 5 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     05 January 2013

Mala-fide is difficult to prove in quash. It should be glaring.

 

 

 

Regards,

 

Shonee Kapoor

2 Like

Tajobsindia (Senior Partner )     05 January 2013

1. I differ to above expressed opinion vis-à-vis S. 498a IPC quash 'grounds'.

 

Reasoning:

 

Code of Criminal Procedure, 1973 - s.482 - Quashing of proceedings - Complaint against husband, his parents, sister and maternal grandmother under s.498A IPC and s.4 of the Dowry Prohibition Act - Husband had purportedly left for USA six months after marriage - Complaint was filed long thereafter - No explanation for delayed lodging of complaint - Petition under s.482 CrPC - Dismissed - On appeal, held: Scope for interference under s.482 is limited - However, interference can be made in cases as spelt out in Bhajan Lal's case - On facts, cursory perusal of complaint shows that the case at hand falls within category (7) of the illustrative parameters highlighted in Bhajan Lal's case - High Court erred in dismissing petition under s.482 CrPC - Penal Code, 1860 - s.498A - Dowry Prohibition Act, 1961 - s.4.

 

The wife of appellant no.1 filed a complaint against him and his parents, sister and maternal grandmother alleging commission of offences punishable under s.498A IPC and s.4 of the Dowry Prohibition Act, 1961. Appellant no.1 had purportedly left for USA six months after marriage. The complaint was filed long thereafter. No explanation for the delayed lodging of the complaint was given.

 

Appellants filed petition under s.482 CrPC contending that the complaint petition was nothing but an attempt to falsely implicate them and that continuance of proceedings against them would be an abuse of the process of law. The High Court dismissed the petition. Hence the present appeal.

 

HELD:


1.1.
Though the scope for interference while exercising jurisdiction under Sec.482 CrPC is limited, but it can be made in cases as spelt out in the case of Bhajan Lal. The illustrative examples laid down therein are as follows:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec.156(1) of the Code except under an order of a Magistrate within the purview of Sec.155(2) of the Code;
(3) Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the Code;
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. [
Para 6] [332-B-H; 333-A-C]

 

1.2. Section 482 CrPC does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely,
(i) to give effect to an order under the Code,
(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). [Para 9] [333-E-H; 334-A-B]

 

1.3. While exercising powers under section 482, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation / continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. [Para 9] [334-B-E]

 

1.4. The powers possessed by the High Court under Sec.482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [Para 10] [334-E-H; 335-A]

 

1.5. In the present case, even a cursory perusal of the complaint shows that the case at hand falls within the category (7) of the illustrative parameters highlighted in Bhajan Lal's case. The proceedings in Criminal Petition pending before the Judicial Magistrate are consequently quashed. [Paras 7 and 10] [333-D]

 

Case Law Reference:


State of Haryana vs. Bhajan Lal
[1992 AIR 604] relied on Para 5

Janata Dal vs. H.S. Chowdhary [(1992) 4 SCC 305] relied on Para 9

Raghubir Saran (Dr.) vs. State of Bihar [AIR [(1964) SC1] relied on Para 9

Minu Kumari v. State of Bihar [(2006 (4) SCC 359] relied on Para 9

 

 

Annexure in PDF format contains full text of Hon'ble SC decision on asked question to make use of.


[BTW, there are quash judgment on S. 406 IPC too on malafide intentions which were quashed by Hon’ble SC as central theme of your query.]


Attached File : 1023171787 sundar babu & ors. vs. state of tamil nadu.pdf downloaded: 110 times

Harsh (Manager)     05 January 2013

"Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;"

I believe this means all material submitted as part of chargesheet - complaint, FIR, Statements, Evidences will be considered during Quash. In most 498a chargesheets, there is hardly any solid evidence to prove the allegations. However no Additional evidences will be considered during Quash.

Allegations prima facie will make out a case. Evidences submitted are a joke. Given this fact, does the statement in quotes hold water to Quash? Ideally I should wait for chargesheet, review it and decide whether to go for Quash or not.

In many cases the evidences could be fake (which I believe needs to be established in trial court)

Unfortunately, not many advocates encourage to go for quash they prefer trial. But it could be worth trying if it saves years of hassle.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     08 January 2013

Thanks Tajobs for writing and explaining glaring.

 

However, what point did you differ on???????????

 

 

 

Regards,

 

Shonee Kapoor

 

Nitish Banka (lawyer)     21 February 2018

Posted by: nitish788  Categories: Uncategorized 
 

 

Quash 498a -Vague allegations in Fir The case of 498a can be quashed when there are vague the allegations in the FIR. A FIR is a first document on which whole investigation and chargesheet is based.

Image result for 498a quash

 

A FIR is bible for getting evidence and eventually to secure conviction of an accused based on the evidence, therefore a FIR must contain all the material facts related to an offence. It also must contain all the specific ingredient needed for satisfying an offence and material through which investigation may proceed. if a FIR misses material facts then it is a vague FIR which can be quashed by invoking the jurisdiction of 482 CrPC. Image result for 498a quash Some believe that if a FIR satisfies the ingredients of an offence it is not the case for being fit for quashing but this preposition is untrue under the light of the judgement In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings. (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. so lack of evidence is another ground for quashing proceedings. A FIR containing quite vague, general and sweeping, specifying no instances of criminal conduct can be quashed even if the FIR constitutes and satisfy the ingredients of an offence. It is held in Vishalbhai Niranjanbhai Adatiya … vs State Of Gujarat & on 9 December 2015 It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

Regards,

Advocate Nitish Banka

(Practicing in Supreme Court of India)

nitish@lexspeak.in


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