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Gajender Singh (ca)     06 January 2011

help in 498a and 304b

Can somebody answer this querry of a victim (actually he is victim of false case)

1. I am from Uttar Pradesh but currently staying in Delhi. In 2004, I left my ancestral home and started living in a rented accommodation in the same city. Soon my mother who is a widow and my elder brother also started staying with me in the said apartment.
2. In 2004, my elder brother got married and his wife started living with us.
3. In 2005, I got married and all five of us started staying together (myself+my wife, my brother+his wife and my mother). Soon, my sister-in-law started behaving insanely and kept threatening us of falsely implicating the entire family in dowry related cases. She even wrote a couple of suicide notes to intimidate us.
4. In April 2006, to save us from this torture my brother started staying with his wife in a different locality of the same city. Simultaneously, I & my mother got legally separated from my elder brother & his wife through a ‘Parivarik Vibhajan’ and also got it published in the newspaper.
5. Predictably, my sister-in-law kept threatening my brother of 498a and of committing suicide.
6. In August 2007, one day when my brother was in office, she packed all her stuff, stole all the jewelry and ran off. She also tore off my brother’s educational certificates and employment records. When my brother contacted his in-laws they said she had gone to Delhi to pursue her career and they are themselves not aware of her whereabouts.
7. In September 2007, my brother filled Section9 of the Hindu Marriage Act and even on being sent several summons by the court she did not agree to stay with my brother.
8. In 2008, in-laws of my brother barged inside his house and demanded money by threatening him of false cases. Next day, my brother filled a complaint case u/s 156 against his in-laws on grounds of extortion and threat. Latter in 2010, a bailable warrant was issued to my sister-in-law in this case.
9. Meanwhile, I shifted to Delhi along with my wife and my mother who is a govt servant also got transferred to a different city.
10.In November 2009, my brother withdrew his section 9 and filled for a divorce u/s 13 of the Hindu Marriage Act.
11.In April 2010, suddenly my sister-in-law after a gap of some many years came to my brother’s house along with her family and insisted on staying with my brother. Smelling of a trap, my brother ran away from his house leaving everything behind and checked in a hotel. He immediately sent a letter to all senior police officers that his wife has come to his house with some ulterior motive after almost 3 years and if she does anything in his house he should not be held responsible as he is putting up in a hotel.
12.As expected, the very next day, claiming that she had been staying with her husband in his house she filled a false 498a against me, my brother (her husband), my wife and my mother.
13.In May 2010, we challenged it in the court. My brother, got 15 days arrest stay and same day bail orders from the High Court. Other family members were also granted arrest stay by the court.
14.In October 2010, not being able to send us to jail and tired of her own family member’s criticism, my sister-in-law committed suicide at her parental house. She left behind a suicide note blaming my brother and his family (Tum aur tumhara parivar meri maut ka zimedar hai) of the irreparable complications in her life. She did not mention a single word of dowry in her suicide note. In-laws of my brother got an FIR lodged u/s 498a, 304B and ¾ DP Act naming me, my wife, my brother and mother.
15.My brother surrendered immediately and has been languishing in jail since then.
16.Even though we were not staying in the same city and had not even heard of her voice since April 2006, the High Court rejected our arrest stay (AB) application. My lawyer also argued on the fact that we had got legally separated from them (brother & sister-in-law) and even got it published in the newspaper but the court did not consider it fit enough for granting arrest stay (AB).
17.We are absconding since October 2010 and are planning to appeal against the High Court’s order in the Supreme Court.
18.On the other hand, NBWs have been issued in our names (myself, my wife and mother) and now 82 has also been filled today.
19.We have collected statements from 10 independent witnesses in the form of affidavits stating that the girl was not even staying with her husband leave aside other family members who stay miles away. These affidavits have been submitted with the I.O. but he is not ready to incorporate them in the investigation.
20.I have lost my job and am in debt over my head. Please suggest what should I do?
My Queries
- Police is going to file 83 soon. None of us have a property in our names and I have also vacated the rented flat where I was putting up in Delhi. Can the police target my ancestral home where my uncles are residing? Also, I am expecting my PF claim to be credited in my salary account shortly, will my accounts also get seized after police files 82/83?
- I am trying to get my brother bailed out but my lawyers are waiting for a good bench as most of the judges are very rigid when it comes to 304B. What do you reckon are his chances of getting a bail from the High Court? His bail from session court has already got rejected.
- People tell me that considering the background of this case, the FIR should have been lodged u/s 306 instead of 304B. Even the High Court while rejecting our arrest stay has said that “as to whether this case falls under the parameters of 304B is a matter of investigation.” Police has also realized this and might file a charge-sheet in 306. Is it better or worse than 304B? I am told the burden of proof in 306 is with the investigating authority which is very dangerous. Please suggest should we pursue police to convert this case into 306? If yes what would be the process for police to do so?
- Finally, incase the Supreme Court rejects our appeal for Anticipatory Bail, will it have an impact on the trial/bail?

A_man Fighting for Justice
304B - Deadlier menace than 498a.


 13 Replies

Anmol Sharma (advocate)     06 January 2011

dear drrrrrrrr..

 

I feel very sad for your story.... please engage services of a very good lawyer as it is a very tough case...

If ancestral property is in your name then it can be attached...

Bhawani Mahapatra (Law Officer)     06 January 2011

Dear drrrrrrrr

Felt sorry, for what had happened with you.

Police can file for attachment of property, but its not easy to get a favourable order in its favour. So you

needn't be worry of being attachement of your ancestral property. So far as your PF is concern, police can't demand seizing it. Next for the bail of your brother, always get in touch with your lawyer and wait for a suitable bench as advised by him. It is seen that, generally the judges do not have liberal view for the offence u/s 304(B). Both the sections 304(B) & 306 are very difficult to prove. You should not focus to get your brother bailed.

Good luck.

Lastly, you needn't be worry whether police frame the charge u/s-304(B) or 306. You have nothing to do. Its now the prosecution to prove the case he filed. Mere submission of charge sheet doesn't punish anybody. As per your narration, the witness are with you, so keep patience, till the trial begins.

Sanket Sharma (AM)     06 January 2011

Verry Sad,  dark face of our Legal system

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     06 January 2011

Dear Author,

In which court of Delhi ur case is pending and whose names are exactly mentioned in FIR?

A_man Fighting for Justice (Unemployed)     08 January 2011

Thanks drrrrr for posting my query here, wasn’t aware of this forum.

Thanks Anmol, Bhawani, Sanket and Rakhi for your suggestions.

 

Allow me to deviate a little. Below is a more holistic glimpse of the story:-

 

But Destiny had other Plans

 

I was living a normal life until hit by a deadly wave called ‘498A’ in April'10.

Every penny of my investment which I was saving to buy a house got consumed in fighting this case.

With Sai Baba’s grace, my entire family got anticipatory bail and despite being on the run for about 2 months I didn’t loose my job.

Under the cloud of heavy debt I resurrected and picked up where I left off.

Went back to my flat which was locked for two months.

Blew the dust off the main door’s handle and noticed some envelopes beneath the door as I pushed it to open.

Carpet of thick dust on the floor welcomed me.

It was dark, didn’t even bother to switch the lights on as I knew the electricity was disconnected due to nonpayment.

Slept somewhere in the living room.

Woke up with the third door bell that rang since morning. Opened the door.

The cook, the sweeper and the car washer waiting at the door, they must have heard from the security guard that we were back.

Guess I missed the newspaper wala & milkman in the first two door bells which went unattended.

In a role reversal, I had to instinctively make up a story to quench their inquisitiveness on where & why did we go without any notice.

Went to the kitchen, predictably it was in a mess.

The refrigerator was stinking and so was the sink.

The Chicken Supreme Piza that we ordered on that fatal night when we got a call from a panicked well-wisher informing of the false 498a case and my sister-in-law’s belligerence to get us all arrested was still lying on the kitchen slab.

Like old days, sat on my couch and read the newspaper patiently. Wrapped the newspaper and as I bent to keep it on the table, noticed the envelopes I found last night.

Opened them. They were notices and notices and notices.

Notices from the banks reminding me of bounced Car Loan, Personal Loan and Credit Card EMIs.

Notices from telecom companies for non payment of bills.

Notices from the Landlord asking to vacate the flat as PDCs of last two months towards rent have returned due to insufficient balance in my account.

I was in a thick soup.

Switched on my original mobile numbers/phones which I had switched off as it was a regular affair for police to put mobiles of absconders on surveillance.

This reminded me that there would be a lot of people who had tried to contact us all this while.

I started asking myself…

How would I face my colleagues?

What am I going to tell them?

Can’t everything be normal without my having to explain what happened?

Will people believe in me and understand that I am not guilty?

If the time when we were absconding was bad, post arrest stay was worse.

Problems that we kept ignoring as they seemed relatively less intense than us getting arrested had accumulated and turned into a frightening nightmare.

Somehow managed to recollect myself and gathered courage to face the world with self-belief and poise.

Chalked out a plan to get rid of all my loans and dues by December 2010.

Promised myself that if 2010 was the year to survive, 2011 will be the year to revive.

But destiny had other plans.

Never thought, the tidal wave of 498A will advance into a tsunami called 304B and devastate my entire family.

Imagine lightning striking the relief camp of injured and homeless earthquake victims.

 

A_man fighting for justice

Avnish Kaur (Consultant)     08 January 2011

if the facts of case are real , this is gross injustice. this kind of injustice gives rise to terrorism and naxalites in india. probably they are RIGHT.

harpreet singh (private practice)     08 January 2011

I thnk besides trying for bail u shud also move an application to some seniormost police official for enquiry and cancellation of the FIIR,,,it may help as true facts may come out in inquiry,,if separation of the deceased wid ur family for few years is proved the FIR may be cancelled

Avnish Kaur (Consultant)     08 January 2011

this shows the corrupt , blind , inhuman nature of judiciary. really there seems to be something rotten in allahabad HC , concur with SC views.

Sanket Sharma (AM)     08 January 2011

Corruption in Judicial system !! we can see former CJ of Supreme court and current CRTI Chief Balakrishnanan Venkatachala, I also red an involvement of Justice Subhash Adi in one of the 498A Case.

CJ: Corrupted Judge or Chief Justice ?

Avnish Kaur (Consultant)     08 January 2011

go to sc and question the applicabilty of 304b in this case, these judges need grease in system . its not a question of rigidity.

innocent people langushing in jail for highly suspect cases only shows corruption not rigidity.

if u dont pay u dont get the bail easily is the rule. really rotten, concur with SC.

Avnish Kaur (Consultant)     08 January 2011

1 Like

A_man Fighting for Justice (Unemployed)     08 January 2011

 

Now I understand!
Why people are compelled to take up arms against this professed democracy.
Now I understand!
How suicide bombers are induced to blow themselves.
Now I understand!
Why Maoist insurgency is on the rise.
Now I understand!
How Phoolan Devi turned into Bandit Queen.
Now I understand!
What drove Martin Luther King, Mahatma Gandhi and Nelson Mandela.
Now I understand!
The plight of those who are not heard.
Now I understand!
Significance of the expression - Defiance.

I declare my defiance!
Against the in-laws of my brother who killed their daughter and stood on her body to claim they are taller.
I declare my defiance!
Against the Legal Robots celebrated as ‘Judges’ who are programmed to function on predetermined codes.
I declare my defiance!
Against the Lawyer who wants his cut in an out of court settlement.
I declare my defiance!
Against the news channels who are abusing this medium by selling fictitious and concocted stories.
I declare my defiance!
Against the Investigating Officer who is more concerned with his Balance Sheet than our Charge Sheet.

A_man Fighting for Justice

A_man Fighting for Justice (Unemployed)     11 February 2011

A Quick Update:-

1. My brother (husband of the deceased) granted bail from the high court on the first date of argument i.e. within 3 months of us applying for his bail from the High Court post rejection of his bail from the Session Court. The argument lasted for about 50 mins hence its an elaborate order - majorly in our favour.

2. Other family members including myself, my wife and mother are still absconding. Police have initiated proceeding u/s 83 against us but fortunately we do not have any property in our names.

3. Meanwhile, after our arrest stay/anticipatory bail petition (family members’ otherthan husband) was dismissed by the High Court we challenged it in the Supreme Court which has given the following order: - “The SLP is dismissed. However, it is clarified that if the petitioner files application for regular bail, the same shall be heard by the Court concerned as early as possible, without any avoidable delay and if possible on the same day.”

4. We were hoping to get a direction on ‘Interim Bail’ from the Supreme Court but since it doesn’t specifically mention about ‘Interim Bail’, I presume this order won’t be of much help considering that our main objective is to not let women members of the family go in judicial custody.

Though, given the merits of the case and the fact that the main accused (husband) has already got bail from the High Court we are positive about getting bail from the Sessions Court. But, need your expert advice in comprehending and making the most of this opportunity. As said earlier, our main objective is to avoid going to the jail. Below is the expected sequence of event:-

If ‘X’ who happens to be the sister-in-law of the deceased surrenders before the Lower Court, the Lower Court will reject the bail petition as 304B is a major section and the CJM doesn’t have enough weight to grant bail in this section. What I understand from the above order is that the session court shall be compelled to take X’s bail petition up the same day but ‘X’ can still be sent to jail if the lawyer from the opposite side intentionally tries to delay the bail process by seeking time for submitting the counter and also if the amount of the bail bond is high and requires verification which can take upto 4-5 days?

Query-1: It seems the only possible cure to these concerns is an ‘Interim Bail’ but given that there is no direction from the higher courts and the judge will have to handle a stiff opposition - what are the chances of getting an ‘Interim Bail’?
Query-2: Am told that Interim Bail can never be granted in major bails viz. rape, murder, etc. If untrue, please provide relevant citations preferebly in 304B.
Query-3: If a relative of mine has already placed his FDs towards my brother’s bail bond in the same case, can he not use some of his other assets viz. Cars, Home, Property papers to bail other family members out?
Query-4: Can my mother who is not keeping well surrender in a hospital instead of the Lower Court? If yes what is the process?
Query-5: My brother's outlaws are trying their best to lodge false FIRs on concocted facs like us threatning to take the case back, etc. against us so that my brother's bail can be cancelled and other family members do not get bailed out. What can we do to safegaurd ourselves?

A_man Fighting for Justice
304B - A Deadlier menace than 498A

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