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Inder Dev Kumar Singh (Assistant Meteorologist-retired)     16 August 2015

False implication u/s 354/323 ipc

Sir, A lady namely Sita Devi has been successful in implicating people in false criminal cases u/s 354/376 IPC for the last 16 years. She made many people suffer in jail on her false complaints to Dabri PS, all those people were held innocent while this lady was held to have given false and ambiguous witness. But none of those people were able to file case od defamation.

This time she has been successful in lodgine FIR u/s 323/354 etc. against me 65yrs and my wife 60yrs. Her complaint was that my wife had thrown a stone on her son of 15 yrs. on 30-04-2015, the date on which a demolition action was being taken on illegal construction in her house, where I entered her house on 28/05/2015 and hurt her while attackinhg her modesty. Police had to lodge FIR No. 1044 for an inciident which never took place.Why shall a man of 65 yrs put his life in danger of being killed by entering a house full of many people.

Kindly help me and advise as to how can I and my wife would be able to avoid fighting any criminal case. 



Learning

 5 Replies

SAINATH DEVALLA (LEGAL CONSULTANT)     17 August 2015

GO THROUGH THIS ARTICLE

 

In India, What you can do if a False FIR or a False Complaint is filed against you.

 


This post is about what you can possibly do, if a False FIR or Complaint is actually filed against you.

Google is the best source from where you can get all information about this issue.. Law books are also there. There are many experienced and good lawyers who can give you right advice on this issue.

So far this Article is considered, it is based on my own observations and experiences at Bar since last 30 years.


WHY YOU SHOULD NOT GO BY WHATEVER IS STATED HERE.

1) Whenever I have tried to fight a false case, civil or criminal, I have failed.
The person who filed false complaint or false suit against my client has succeeded in extorting money from my client.

So, in fact I advise my clients to pay Devil its Due and be done away it with it instead of wrangling in the present system were a handful of judges are asked to decide Three Crore pending cases.

Be that as it may be,
Let us first examine,

WHY ANYONE WILL FILE A FALSE FIR or COMPLAINT AGAINST YOU?

Here are some answers:

1)

You may have strained relations with wife. Wife may have left you. She has filed false complaints of torture, dowry demands, cruelty. Not only against you, but also against your family and also against your relative living abroad!

She may have three purpose for filing false case against you ,

(1) To teach a lesson to you and to your family
(2) To ask for some money (30% of which may be payable for lawyers fees)
(3) To bow down your male ego to her feet and to make you agree to her terms, including term to remove your mother from your house.

2)

Or, you may have given some blank cheques, not to obtain loan on basis of checks, but as a security for loan proposed to be given.

After some time you are unable to pay some dues. The creditor fills up blank check with Double amount of what was actually due.

Check is dishonored. The files criminal case under NI Act.

This is a false because:

(1) As per my view, NI Act is not applicable to cheques given before a loan is given.

On the date you issued cheque, there were no dues. The loan was given five days later. You became debtor only after five days. On the date of issuing cheque, there were no dues against you.Therefore this a false case under NI Act.(According to my understanding. The issue is not yet properly debated in courts)

(2)Second, The creditor has filled up double the due amount. Therefore, it is a false case.

3) Or take third example, Your blank check or check book is stolen.
Or you have so many bank accounts and so many idle check books, that some one has stolen a signed check, but you never knew.

He sells away this blank signed check in underground market. The person who purchases blank check, fills up amount of Rs.1 Crore in check. Check is dishonoured. He files a criminal case under N.I. Case. This is false case. You never knew this person who has filed complain against you.

4) You are in a village. Some group enters with arms in your field. You kill one of them in self defense.
Before you go to police station to report this incident, other side goes first and an FIR is lodged against you, your father, your brother studying in town and your uncle living in other village. The FIR says that all of you went to the house of the deceased and all of you killed him. This is false case.

There can be many examples of false cases. But these examples are enough for present discussion.


FIRST THING: TAKE CARE OF YOUR IMMEDIATE REACTIONS

As soon as you will hear that some one has filed a false case against you, your emotions will heat up.

If its is false case under 498A filed against all your family members, your whole family will start burning with a desire to take revenge.

If it is a criminal case, and if you find that your 80 Year old father who had done nothing, is also roped in FIR as an accused, it is natural that you will be fired up.

Your emotions will be running havoc in your mind.

In my view, all decisions taken when mind is upset, are bound to be wrong.You need to give rest to your brain first.

So the first advice is, just cool down for a couple of days. Sky is not going to fall on you or your family members. Because God is holding up sky with very tight ropes. If sky is not going to fall on you, then what is there to be worried about?

And one choice is always with you. Fight with panic and anger or Fight coolly. Try to choose later option if you can.


THEN TAKE PROFESSIONAL ADVICE

I said early in this article that I have always lost battles while fighting against false cases. There are many good advocates who have specialized in criminal law. They are the right persons to give you an advice.

THE PROBLEMS WITH WHICH YOU MAY HAVE TO FACE

Whatever good advice you may have taken, you will face problems in two areas:

A) How to establish that The Case is False

B) What procedures are to be adopted for dealing with a False case.


LAW IS AN ART, NOT A SCIENCE

Your case may be same. But advice can differ from one advocate to other advocate. Each advocate gives advice which may have worked for him in past in such cases.

He has also to judge practical aspects and logistic aspects involved.
He has to decide 1/ What is best for you and 2/ What is possible.


POINT A: DIFFICULTY IN ESTABLISHING THAT A CASE IS FALSE CASE.

Let us take an example.

1. I have lodged an FIR against you, making certain allegations against you. Allegations mentioned in FIR are such that Police is authorized to arrest you any time.

The first thing you will tell your lawyer is like this, "I do not know this Haresh Raichura. I once or twice read his blog and once or twice mentioned on twitter to him."

The moment you say this, you have walked in a trap. Because the FIR says that 'You used to read and appreciate my blog and used to mention on tweet to me. After thus winning my trust, you on Date_____
asked a loan for Rs.1,00,000/- from me......... and the story will go on on...

The point I wish to make is this:

Every False Case and Every false FIR will contain few true facts and few false facts. 
When read together, they will make out a case triable against you.


Triable Case means a case in which without a trial, judge cannot say whether it is a false case or a true case.

If it is Triable False Case, you have to go through trial. Only at the end of trial, may be after 5 Years, the judge will be able to say that it was a false case.



POINT B: WHICH AUTHORITIES ARE GIVEN POWERS TO SET ASIDE SUCH
FALSE CASE AND FALSE FIRs?

High Courts and Supreme Courts are given special powers to set aside false cases.In certain cases trial courts can also recall their earlier orders and can free you.

WHEN THEY WILL SET ASIDE A CASE AS A FALSE CASE?

Let me give you a real example.

While I was in middle of writing this Article, a client came from Ahmedabad.. I stopped writing and attended him.

His story was like this. He influenced his friend in such a way that his friend broke up engagement with sister of a Press Reporter. The Press Reporter got very very angry with my client.

Press Reporter lodged an FIR against my client alleging that my client and him had entered into an agreement of sale of certain land for Rs.47 Crores against which he has already paid !5 Lakh to my client. Now he has learned that my client had no authority sell this land and he has committed cheating.

My client went to High Court crying that this is a false FIR.

Initially High Court stayed FIR.

Then press reporter told High Court in his reply, that my client is habitually cheater.
There are 21 Cases of Car theft already registered against him. He gave list of such cases.

High Court found that FIR against my clients needs to be investigated by police.
High Court dismissed case of my client.

Now he has come to Supreme Court to see if Supreme Court grants him any relief.

WHEN A SUPERIOR COURT WILL SET ASIDE A FALSE FIR OR CASE.

As I said earlier, every false FIR or False Case is made up of few true things and few false things.

Then there are always One or Two Key Facts.


Key Facts are such facts, that if they are proved, case goes in favour of one party. If these Key Facts are not proved, case goes in favour of other party.


If you can satisfy Court that there are one or two Key Facts, which convinces the court that, the case / FIR is undoubtedly false, they will set aside such case and you will not have to contest the trial.

In case which examined, I found Following Key Facts.

1) In January, 2010, he gave same complaint to same PSI. The PSI inquired and found the complaint was baseless. There were no documents in support of complaint. PSI just filed his complaint without even registering any FIR.

2) In September, 2010, Press Reporter met DCP and DCP asked PSI to register a FIR against my client.

PSI called the Press Reported, obtained another copy of same complaint from Press Reporter and registered it in Septmber 2010.

3) A comparison of Complaint of Jan. 2010 and Sept.10, showed that they were verbatim same.
And there were no verifiable reference or copy of any documents mentioned in FIR.

4) This is enough to show to Supreme Court that there is abuse of process of law and FIR need to be quashed.

Other allegations of thefts of car don't matter. Because Supreme Court does not have to decide which party is right or wrong.

It has only to see whether PSI has abused his powers in registering FIR.

So far as Criminal Powers of registering FIR are concerned, they are not to be used for deciding other disputes of parties. Here the abuse appears to be clear on face of record.


CONCLUSION
I think you have become tired reading this, I have also become tired. So let us stop here.

HARESH RAICHURA

ADVOCATE

SUPREMECOURT OF INDIA
 

 

 

SAINATH DEVALLA (LEGAL CONSULTANT)     18 August 2015

U have not replied to my reply by giving U a judgement.

BS Rangi (President)     22 August 2015

In case a false complaint is filed againsr u under CrPC 156(3)in lower SDJM court ,which is the authority to declarethat  the case is false and not to beproceeded ahead.Can accused go to high court for getting such false complaint  quashed?   If so on what grounds can accused approach high court hoping for relief from false complaint /case. 

R Trivedi (advocate.dma@gmail.com)     23 August 2015

Why did you enter her house on that day, when demolition was taking place ? How will you be killed in a house which is full of many people ? Coming to your point of view, why a lady will file a false complaint against a 65 years old man, claiming that he tried to immodestify her after entering her house full of many people on the day when demolition was being carried out on the illegal construction of her house ? There is more to it then meets the eye. It is quite likely that at 65 when possibly you had not much work to do, so you complaint to police / MC about illegal construction in her house, and she faced the demolition of her part house. So she is making you face the demolition of your character. Isn't it ? I am not suggesting that you are wrong when you complained to police/MC about illegal construction, but why give a color to this ? Your query should be simple...this is what I did as a law abiding awaken citizen and this is what I got in return, please help me.

Nitish Banka (lawyer)     30 June 2018

Posted by: Nitish Banka  Categories: Uncategorized 
 

 

Misuse of Section 354 ipc: Alarming for Indian men

The term “outraging the modesty of women” is not defined in 354 ipc.

“Even if you keep your hand on the shoulder of a woman, it is for the lady to comment on the nature of the touch, whether it was friendly, brotherly or fatherly,” said Bombay High Court Justice Naresh Patil, ruling against Machindra Chate’s appeal urging the court to squash an FIR filed under Section 354 IPC of the Indian Penal Code.

This seemingly pro-women pronouncement ought to hearten those of us concerned about s*xual harassment, except it does not.

The problem here is that even the bare facts of the alleged crime committed by Chate do not appear to rise to the level of a Section 354 offense. The owner of a chain of coaching classes is accused by the victim of abusing and pushing her away in “such a way that made her feel ashamed”. This inappropriate physical contact, however, occurred in the context of a heated altercation between Chate, students and their parents over syllabus-related issues — and in the presence of two other girls and a boy.

 

The question  is not of Chate’s innocence, as such. He may be guilty of straightforward assault and/or of violating Section 504 (intentional insult with intent to provoke breach of peace) — which is the other charge filed against him. The issue here is whether such an act, however criminal, meets the standard of Section 354 ipc which states: “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either descripttion for a term which may extend to two years, or with fine, or with both.”

The term “outrage the modesty” is, of course, wide open to interpretation, but the Supreme Court did offer some clarity in a 2007 judgement. The Times of India reported at the time:

For over a century courts have tried thousands for the offence of “outraging the modesty” of a woman without a precise definition of what constitutes a woman’s ‘modesty’. And now, the Supreme Court has finally defined modesty. Its definition: “The essence of a woman’s modesty is her s*x.”

The result of the labour of the Bench comprising justices Arijit Pasayat and SH Kapadia will help fill a glaring void in the Indian Penal Code, 1860, but the scope of the definition of ‘modesty’ as mentioned in Section 354 appears to go far beyond what framers of the code possibly had in mind.

“The act of pulling a woman, removing her saree, coupled with a request for s*xual intercourse…would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence,” the Bench said in a judgement that has drawn from several verdicts by different courts.

 

By this  standard, Chate’s alleged crime does not meet the criteria of Section 354 primarily because there is no evidence that the inappropriate contact had anything to do with the s*x of the victim. As Chate’s lawyer argued in court, “It was a scuffle, where was the intent to molest her?”

In response, the judges referred to the infamous KPS Gill who was convicted under Section 354 for slapping the posterior of Rupan Deol at a party, using his conviction to conclude, “To say there was no intention [to outrage modesty] is not possible.” It takes great judicial latitude to compare slapping a woman’s behind in a state of inebriation to shoving her in the course of an argument. And even more so to further conclude that even keeping a hand on a woman’s shoulder can be constituted as outraging her modesty — if she chooses to interpret is as such.

 

This kind of “enlightenment”—which violates the intent of the original law—does women no favours. It is precisely this kind of misuse of Section 354—both by the police who booked Chate under 354 when they had many other options and the court that has foolishly upheld the decision — that aids and abets the many misogynists who resist strengthening s*xual violence laws in this country. Much as the gross abuses of the anti-dowry act have long enabled so-called men’s rights activists to attack a much-needed law — and ignore the many victims of domestic violence.

False anti-dowry cases allow such men to play victim, and portray *all* women as conniving harridans ready to use their gender as a weapon. Cases like Chate will allow much the same to happen to Section 354, especially its revised subsections which allow a broader interpretation of s*xual offenses. But as this case shows, the blame lies not with women per se—many of whom are real victims of s*xual and domestic violence, and whom the law often fails to protect—but with the authorities who deploy the Indian Penal Code at their personal whim.

Writing on the issue of free speech (and the poor protection it receives in our courts), Suhrith Parthasarathy writes, “But, collectively, the Supreme Court’s jurisprudence in allowing speech to thrive is so poor as to make the prospect of restraining prior governmental action or more principled decisions from the lower judiciary an abandoned dream. The court seems to lack the philosophical bent of mind to consider certain rights as inviolable, as superior to the impulses of the majority.”

This inability to carefully consider the intent of the law, and assess the weight of an individual complaint afflicts our courts across the board. This is why we get a bewildering variety of verdicts which rely not on true jurisprudence but the arbitrary interpretation of the individual judge. Where one can decry s*x before marriage as immoral, the other can deem a hand on the shoulder as potentially s*xual. One set of High Court judges can overthrow Section 377 while another pair at the Supreme Court can reinstitute it with equal ease. The result is a judicial system that fails to protect the spirit and intent of the laws it is entrusted to uphold. Justice becomes just another game of russian roulette, luck of the judicial draw.

 

 

 

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