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SN Ray (engineer)     04 October 2014

Quashing of 307,498a cases in high court

Hi,

My wife filed a complaint that I attempted to kill her. The complaint was filed in a Police station related to my residential area. Section 307 was invoked and I was taken to judicial custody. While I was in Judicial Custody, she filed one more case (498A) against me and my family members in a women's Police station.

Some of the lawyers are of the view that filing 498A case in a second police station was illegal since she had already filed a 307  case. I was also told that both the cases can be quashed together in high court.

Please note that both were fabricated cases and the police have not bothered to request the medical report though the complaint was lodged more than 2 months back.

1. Please advice if both 307 and 498A cases can be quashed together in High Court in this scenario (Charge sheet is not filed till now for both the cases)

2. Can you please  also let me know if the cases can be quashed in High Court if a mutual consent divorce petition is filed. in a family court

Thanks,

SNR



Learning

 21 Replies

Dr J C Vashista (Advocate)     04 October 2014

Both the questions have affirmative reply.

1 Like

Ashok, Advocate (Lawyer at Delhi)     04 October 2014

You have not given details as to whether the two cases, i.e., one Section 307 IPC and the second under Section 498-A IPC have the same cause of action (i.e., arise out of the same incident) or have different causes of action. From whatever limited facts have been mentioned by you, it appears that they have different causes of action. If that be so, then it is possible to register two different cases.

 

Secondly, you can file petitions to file quashing of the FIR in the High Court (you may need to file two separate petitions, if the causes of action are different). However, please note that normally such petitions are not successful.

 

 

Thirdly, merely because a mutual consent divorce petition is filed in the family court does not mean that the High Court will quash the FIRs ipso facto. Your wife will have to withdraw the complaints and should give her willingness to compromise / compound the offences. Then also, it is a discretion with the High Court since these offences are non-compoundable, though normally the High Court may agree in view of the private nature of the offences which have been compromised.

1 Like

Q Slinger (NA)     04 October 2014

Agree with Ashok Advocate. 

1 Like

Umapathy S (Retd.officer)     04 October 2014

Quash petition may not succeed as stated

you may  file a discharge petition

then go in for mutual divorce

umapathy

1 Like

SN Ray (engineer)     04 October 2014

Dear All,

Thank you for your valuable advice. Some more facts as sought by Mr. Ashok are as below.

1. The two complaints are entirely different. The first complaint was that I attempted to kill my wife when my wife had come to my house to pick her belongings. My wife was staying separately from me for about 2 months and she lodged a complaint after picking her belongings from my home. Section 307,341, 323, 504 was invoked and the police sent me to a judicial custody without even checking the Medical report.

I had given the complaint first on that day as I was assaulted by my wife's brother in my house and the police invoked sections 341,448,504,323 against my wife and her brother. They were not even arrested as they are related to a senior police officer. But section 307 was invoked against me due to the interference of this senior police officer..Police took my complaint as a counter complaint.

2. The second complaint was lodged in a women's police station and it was an accusation that I have taken dowry, harrased my wife to give me money, my family members provoked me to manhandle my wife etc. This complaint was filed 3 days after I was sent to judicial custody in the first complaint (307)and while I was still in Judicial Custody. Sections 498A, 506,504, r/w sections 34 and Sections 3 and 4 of DP Act were invoked.

With the details provided above, can you please let me know if your advice would be different for my queries below.

1. Please advice if both 307 and 498A cases can be quashed together in High Court in this scenario (Charge sheet is not filed till now for both the cases. The FIRs filed are about 65 days old now)

2. Can you please  also let me know if the cases can be quashed in High Court if a mutual consent divorce petition is filed in a family court

Also, Can you please explain the difference between "Quashing FIR Petition" and "Dischcarge Petition"..

Thank you and appreciate your time.

Regards,

SNR

Ashok, Advocate (Lawyer at Delhi)     04 October 2014

The facts now narrated show that the two cases have different causes of action. This implies that two separate FIRs can be registered from a legal point of view.

 

Since the cases are different, it may be advisable to file two separate petitions for quashing of the respective FIRs. As I mentioned earlier, however, the chances of success in getting the FIR quashed are generally very low. For example, what you may have to show is that the FIR, read as a whole, does not make out a cognizable offence. This is generally a difficult task.

 

As far as the question of quashing of the cases by High Court on the basis of a mutual consent divorce petition is concerned, my answer in my previous reply continues to apply. So, please refer to that.

 

 

Quashing FIR application is filed BEFORE filing of charge sheet and it has to be filed in the High Court. On the other hand, the discharge application is required to be filed AFTER the charge sheet and it is required to be filed in the trial court.

1 Like

N.K.Assumi (Advocate)     05 October 2014

To attract 482 CrPc invoking the power of the High Court the following must be present:

complaint prima facie does not make out a case on its face value.

Complaint are absurd and inherently improbable.

Evidence of the complainant does not disclose the commission of any offence

Complaint is manifestly attended with malafide and maliciously instituted.

Complaint can be quashed when there is express legal bar. Do you think your case is covered under any of those grounds? If yes you may knock the High Court;s Door for relief.

1 Like

SN Ray (engineer)     05 October 2014

Thank you Mr Mahesh and Assumi for your valuable time and advice. At least in the bail order passed for 307, doubts have been raised about the complaint. Hopefully, this should help in the quashing of FIR for IPC 307 related complaint.

SN Ray (engineer)     05 October 2014

Sorry, I meant to thank Mr. Ashok (not Mahesh as stated in my post above).

Regards,

SNR

T. Kalaiselvan, Advocate (Advocate)     08 October 2014

Both the complaints by her are of different cause of action though her intention to lodge the complaints was only one that is to harass you and see to that you suffer the maximum.  She is able to carry on the initial tortures with the help of her relative police officer, but this cannot stand for long because during trial, her allegations will not sustain in the absence of concrete evidence.  Now about quashing the firs., ld. Adv Ashok has given a clear picture that generally high courts do not favor the petitioner in quashing the firs, but try if you have been assured with success by your advocate, I think it will be a futile exercise and waste of time, energy and money, instead wait for the case to come to the court after charge sheet, you can try for discharge at that time in the trial court itself.  The bail order containing doubts about the complaint may help you in discharge petition.  Think wise since you already are  suffering, let you not invite more trouble.

2 Like

sankar P (supervisor)     09 October 2014

Dear Sir,

For Discharge of charge sheet ,

Is it sufficient that we will prove that (major contradictory statements in the petition copy of prosecution/evidence submitted by us that they will tell lie)

difference in both petition copy and our previous incidents which we are submitted as an evidence,

is it make an important role in discharge of Charge sheet?

Kindly advice me sir,

Many thanks,

T. Kalaiselvan, Advocate (Advocate)     10 October 2014

@P Sankar: you were already told to use a separate thread for posting your own queries.  Well in your case, it seems you are trying for discharge of charge  sheet(?),  I am afraid that what you have stated may not be sufficient attracting merits for discharge.

SN Ray (engineer)     15 October 2014

Thank you Mr.Selvan for your advice. Appreciate your support.

Regards,

SNR

T. Kalaiselvan, Advocate (Advocate)     16 October 2014

Thank you Mr. Ray for your appreciations and you are always welcome.

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