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Soma (ta)     27 February 2012

Quashing of 498a in high court

Hi,

 My sister-in law had filled a 498a case against my brother my parent myself and my husband and we have appealed to high court for quashing.On 15th Nov 2011 we had appeared before the lower court and our high court lawyer had issued a letter to the lower court saying that since the case is pending before the high court the lower court was given a stay order and the lower court gave us next date of 6th march 2012.

   In the meantime we got a paper from our high court where it was written

   "An applicaion under section 482 of code of Criminal Procedure read with article 227 of the constitution of india "Let the matter appear as a contested application four week hence".

In the mean time the petitioner are directed to serve a copy of this applicatio upon opposite parties and file affidavit of service on the next date of hearing".

   This case is still going on in high court.As of now we havent received any document from the court neither our lawyer giving us any information on this.So we are really confused.Please help me. 

 

I have some question e.g. :

1. What does this lines written in bold means?

2. Should we appear before the lower court on 6 th March.

3.What should we do next.



Learning

 13 Replies

Sanjeev (Lawyer)     27 February 2012

the letter in bold means that you would need to serve a copy of this quash petition to the opposite party as they are the complainant and need to oppose your petition a case cannot be quashed unless the complainant is given a opportunity of being heard. once you serve the notice you will file a affidavit in court confirming the facts that the notice has been served. This would mean that on next date when after four weeks the case is heard the complainant would be present or will be reresented by a lawyer and will oppose your quash petition.

 

You can appear in trial court but it would just grant a further date no proceedings would take place as the cae is stayed by high court alternatively your lawyercan take further date on your behalf.

Sanjeev (Lawyer)     27 February 2012

ideally your high court lawyer will serve the notice to the opposite party and prepare a affidavit to this effect and submit in court on nextlisting date.

Soma (ta)     27 February 2012

Sir,

 Thanks for your reply.As per our lawyer we came to know that after four week the complainant have already given a confirmation that they will not be proceeding further on this and thay will not fight this case any more.

But still we are not getting clearing picture as to what will happen next.So please kindly let me know what should be our next move.

Sanjeev (Lawyer)     27 February 2012

if the complainant dont want to proceed further ask them to appear on next listing and file a affidavit to this effect and the case would be quashed.

Soma (ta)     27 February 2012

Sir, Just for my knowledge like to know since HC has given them a specified time of 4 weeks and already the stipulated time is over for more than 3 months should we again need the complainant to appear or HC will automatically quash our case based on the unavailability of the complainant.

My confusion is in this case that if the complainant don't agree to appear for the next listing in that case what should we do to quash the case.

 

Sanjeev (Lawyer)     27 February 2012

case wont b quashed like this as there need to be some grounds for quashing either there exists a strong case where you could prove that thee existssome valid reasons and allegations in the case are false but that is primae facie hard to prove and high court wont quash unless trial:completes.

the other way is basis a compromise with complainant here it seems the case as you say that complainantbis not interested in pressing the complaint but hc wont presume the same by their non appearance they need to submit a affidavit to this regard through their lawyer or the public prosecutor even if they dont appear personally.

 

this you would agree to:as a layman that a complaint cannot be quashed unless the complainant is in agreement as this is bad in law to:act in such a way.

Soma (ta)     27 February 2012

Thanks sir for your valuable comments. One last thing as per my understanding in case they dont provide any affidavit or apear before HC for the trail the quash case will continue for indefinite period of time. Is my understanding correct. Pls. let me know. Thanks in advance for your co-operation.

Sanjeev (Lawyer)     28 February 2012

if they dont support quash and if you dont have any extraordinary grounds to get the case quashed the case would be dismissed and sent to trial court ultimately  ashigh court dates are not that easy to get so it might remain stayed for 1-2years  but ultimately it wont be quashed like this your lawyer would know that.

kajol (therapist)     07 July 2014

hi,

  my sister had filed an fir 498a in 2009 agains her husband and mother in law of their cruelty, the case came on court in 2013, by that time there were d.v case and maintanence case was on since 2010 on husband and they were proved guilty, when the case of 498a was called on the lower court, the opposite party filed an appeal in high court for quashing, but since then the case has not been heard, all the time we were present but they were absent, in the mean time we have opted out for mutual consent and as per the case withdrawal the money will be paid that is how the clause is, the family court and d.v has been withdrawn.and a divorce petition is filed in family court with mutual consent,which will be granted in november.. my question is...will their appeal for quashing at high court by them will be considered without my sister's consent? the lawyer appointed mutually for this case  is sayiing that there has to be a  fresh petition filed that we are withdrawing the case... but we feel he is delaying it too much...also can they play a game in this matter for not paying the money. if they have any malafied intention, can we go and withdraw the divorce petition that is filed in family court? kindly help cause my sister has been a victim of them since 10 years now.

Nitish Banka (lawyer)     02 November 2017

How to quash 498a??

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.

 

Here are some of the valid grounds.

Vague allegation-498a quashed

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.

 

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.

False allegations against relatives

Mukesh Rani V. State of Haryana, 2002 MLR 175=2002 (2) Cr.CC 123= 2002 (1) RCR (Cr) 163= 2002 (1) CC Cases (HC) 48 (Pb. & Har.)      

In the instant case respondent No.2 is the husband of respondent No.3 and respondent No.3 is the sister of husband of the complainant. In the FIR, it has not been specifically mentioned what dowry articles were entrusted to respondents 2 and 3 at the time of the marriage. If no article has been entrusted to respondents 2 and 3, then no case under section 406 is made out. It is also not the case of the complainant that respondents2 and 3 are residing with the husband of the complainant. The respondents have placed on record the documents showing that they are employed as teachers and are living separately in village Bamble from the complainant and her husband Satyadev. Even on the date when the alleged occurrence took place respondents were present in their school i.e. on 07.01.1994.

If on the face of the compliant it shows that complaint is false, charge should not be framed. In the instant case, there is evidence that respondent No.3 who is the sister of the husband of the complainant was living separate with her husband-respondent No.2 in a different village and were employed as teacher, the learned trial court has rightly discharged respondents 2 and 3.

For the reasons mentioned above, there is no ground to interfere in the well reasoned orders passed by the learned courts below. Hence this petition is dismissed.

Quashing of false FIR against relatives is much easier

Delay in chargesheet/condonation

Delay in filing chargesheet by police is also a good ground followed by wife conduct in condoning the cruelty thru conduct.

By.

Adv Nitish Banka

Advocate Supreme Court

lexspeak.in

nitish@lexspeak.in

Deepak Dahiya   03 April 2018

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

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

Deepak Dahiya   03 April 2018

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

Deepak Dahiya   03 April 2018

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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