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Gayatri Gayatri ( )     11 August 2010

quashing of case in high court

There is one case filed against me last year on august 22nd 2010 that i have sent obscene sms to a gentleman(who is a known person to me) from the website way2sms.com. i was arrested on 22nd evening and on 23rd morning at 10 i was released on bail. case is registered under the section U/s 292. recently police have filed charge sheet saying that they did not get information from my mobile operator airtel which suggests that i have sent any sms to any one(leaving apart obscenity). infact i did not sent any sms to any one in obscene manner. the person who raised complaint against me is a known person to me right from my childhood and he vows some money to me. I did not get that from him and in anger i shouted on him.
now that charge is filed saying that there is material or evidence available which suggests that i have sent any sms to any one. some one has given me suggestion to apply for quashing of case in high court as it is waste of time going and attending to court for every schedule.
can you suggest me if quashing of the case is the most appropriate thing for this. as this is almost 1 year old case, judge is not paying enough attention.every time my case arguments get postponed to next month.till now i took leave 6 times in my office to attend to court.

  1. Can we apply for quashing for this case ?
  2. Can we succeed by appyling to quash the case ?
  3. if so how much will it cost ?
  4. how many days/months/years will it take ?
  5. Do we have to attend to court during the time of quashing ?


Learning

 13 Replies

Pvt_RajKing (Private)     12 August 2010

I am sorry but what exactly is the Final Report from police is saying? Do they have any material evidence to suggest that you sent them that SMS or not? If there is no evidence then police would have filed FR accordingly and the case is closed... Please provide bit more details on the charge sheet and what evidences they have to support their case.

FYI. You can apply for quash once the case in a criminal court and if you have merit of the case on your side....IF you apply for quash at HC then u need not appear in person (your lawyer will do). The result will usually be known in months and not years...

But we need more specific details on what I have asked above...

1 Like

Pvt_RajKing (Private)     12 August 2010

Also, you may want to do this.... Get a copy of the docket (Court Proceding sheet) for your case to prove that it is being adjourned without any just cause. Assuming that the prosecution hasn't shown up during those hearings then you can apply for dismissing the case for want of prosecution... But you need to build the case for the same and make an application appropriately.

If the JM rejects it then you can appeal on that which may be another way to get it quashed....

1 Like

Gayatri Gayatri ( )     12 August 2010

Hi ,

Police filed charge sheet saying that they did not get any material evidence from the mobile operator that i have sent any sms to that person.

now my question is

  1. Can we apply for quashing for this case ?
  2. Can we succeed by appyling to quash the case ?
  3. if so how much will it cost ? i know it varies from lawyer to lawyer .but i want to know abt minimum expenses of that
  4. how many days/months/years will it take ?
  5. Do we have to attend to court during the time of quashing ? Do i need to attend to high court.Do i have to attend local court here even if i get exemption to attend high court ?
1 Like

Pvt_RajKing (Private)     12 August 2010

Ok but what is their conclusion? Are they saying that you committed the crime or not? Since the claim was made that you sent the same from a website, have they gotten any other proof against you? Final conclusion is important because in most cases if the police are dropping the charge then the JM will do the same and thus the question... I will answer your other questions as soon as i get these information....I am also online if you want to chat.. .give me ur yahoo or gtalk id

1 Like

Gayatri Gayatri ( )     12 August 2010

they did not get any evidence at all. But no where police mentioned that they are dropping the charge. what is this "JM"..they have taken written statement from mobile operator people saying that there is no evidence available with them at all that i have sent anything.....so no evidence at all available with them.

 

can you answer all my questions now ?

1 Like

Pvt_RajKing (Private)     12 August 2010

Mr PVN,

I am trying to help you but you need to provide detail if you are looking for help.... The fact they have no evidence against you in your opinion cannot be a ground for quash. JM stands for Judicial Magistrate... generally the process is as follows:

1. Police file a Final Report with the court along with their summary of their investigation in which they make their conclusion. A quick reading of this will tell you whether they are still planning to charge you or not.

2. The JM then takes cognizance of the offence

3. The JM then takes notice of the offender (usually this and the above is done together)

After the above step the JM send a summon to you directly or via police. Once you receive the summon then u need to appear in court. The appearance is generally for framing of charges... Once the charge is made then the trial starts... this is roughtly the process.

So, we need to know what stage is your case and what the conclusion of the investigation is (it is irrelevant if they have evidences or not).

PLEASE NOTE THIS IS NOT A LEGAL OPINION AS SUCH.....Now to your questionss...

Can we apply for quashing for this case ?

Ans> You can always apply for a quash but success depends on the merit of the case and thus I was asking you for more detail and your patience in aswering them as well...

Can we succeed by appyling to quash the case ?

Ans> See above

if so how much will it cost ? i know it varies from lawyer to lawyer .but i want to know abt minimum expenses of that

Ans> I am not sure I can share this information here. send me a private message on this...

how many days/months/years will it take ?

Ans> No one can give you precise number here... Generally if you approach the High Court it should close in few months.... I have answered this already..... plus since u do not have to appear in Court (High Court) it shouldn't matter...

Do we have to attend to court during the time of quashing ? Do i need to attend to high court.Do i have to attend local court here even if i get exemption to attend high court ?

Ans> No if it is a HIgh Court and I am sure this is the case if you make the case at the district court as well since it is not a trial proceedings. Your lawyer will take care of this...

So, have some patience and get the details and post it here....

1 Like

Pvt_RajKing (Private)     12 August 2010

also note that the complaint was that you sent SMS from way2sms.com. So, what does the police have from way2sms.com? Your operator's statement is not relevant for the complaint since the SMS was claimed to have been sent from way2sms.com (in my humble opinion)

1 Like

Gayatri Gayatri ( )     12 August 2010

police did not approach that website way2sms till now. the policy says that they cannot disclose the peoples details who are using that website.and its more than 1 year. daily 10lakh messages are sent via that website and more than 30 lakh users are using that.

in the enitre chargesheet i did not find any conclusion page or column. may be police people have not written it..case is in still early stages. Till now lawyers or judge did not question either me or the other party. now i want to get rid of this case with bare minimum expenses and less possible time. pls suggest me that.

1 Like

VIRAJ KADAM (Advocate Supreme Court of India)     17 August 2010

Yes. You have good case for quashing. Take some good Advocate who knows Criminal Laws. 

Pvt_RajKing (Private)     17 August 2010

See, my experience is that getting a quash at the High Court is a gamble unless u have a solid case for the same....It is mostly to do with the perception and style of the HC judges (per what I have seen and heard at the HC). Thus to enhance the chances of success at the High Court it is important that one gathers all relevant evidences and also make an honest attempt to resolve the same at the lower court. If the lower courts fails to do justice then you can knock the door of the HC and you are sure to succeed....just file a simple application at the magistrate court and ask him issue an order on merit...

Now, in this case, what is happening is sad and this is what happens in trial courts in majority of the cases.... The magistrates just issue challans mechanically and no ones questions them and they get into trial which is against the law... In this case I strongly feel that the magistrte should not have issued the challan as it is clearly a case in which he would not have issued one if he had applied his mind to the documents of the case.... So when u approach the High Court it is more than likely they will ask if you had approached the magistrate under 156(3) (at least supreme court has in recent times consistently suggested this). So, it is better to aprpaoch the magistrate with an application u/s 156(3) and 200 or 256 depending on the case, and ask him to dismiss the case for want of evidence in this case (assuming that the charges haven't been framed). If the magistrate rejects and his reasoning is not good then you have built an excellent case for quash.... if you succeed at the magistrate court then it is also cheaper than going to High Court.....


(Guest)

Dear PVN

Trail courts are overburdened. The Presiding officers are are taking cases as routine matter only.

so what to do? I faced the same problem? On one side the advovates are interested in draging the case and on the other side JM does not take the interest in the case? I do not think they go through the file and if so what kind of order or justice you can expect I need not to tell except cusing oneself only.

I suggest you apart from what has been written in the CrPC

1. File application (although not required) to Magistrate to argue your case and briefly mention the reason for self pleading.

2. Always talk in written form. Submit as far as possible in written form.

3. File application for speedy trail ? and ask for cost and penalties be imposed on the prosecution since he is delaying the case.

4.Talk directly to Magistrate and show your arrogance and grievance.

5. Just give me your e mail I can send you the letters which I submitted to magistrate and magistrate at last took to speedy trail and penalties were imposed on prosecution.

6. Going to HC is just wastage of time and money and moreover who is having special time for your case 

Your well wisher 

come in front and try to talk


(Guest)

Dear PVN

come in front , Do not depend on the advocate only and try to talk  before the Magistrate regarding your grievance.

Trail courts are overburdened. The Presiding officers are are taking cases as routine matter only.

so what to do? I faced the same problem? On one side the advovates are interested in draging the case and on the other side JM does not take the interest in the case? I do not think they go through the file and if so what kind of order or justice you can expect I need not to tell except cusing oneself only.

I suggest you apart from what has been written in the CrPC

1. File application (although not required) to Magistrate to argue your case and briefly mention the reason for self pleading.

2. Always talk in written form. Submit as far as possible in written form.

3. File application for speedy trail ? and ask for cost and penalties be imposed on the prosecution since he is delaying the case.

4.Talk directly to Magistrate and show your arrogance and grievance.

5. Just give me your e mail I can send you the letters which I submitted to magistrate and magistrate at last took to speedy trail and penalties were imposed on prosecution.

6. Going to HC is just wastage of time and money and moreover who is having special time for your case 

Your well wisher 

come in front and try to talk


(Guest)

Just give me your e mail I can send you the letters which I submitted to magistrate and magistrate at last took to speedy trail and penalties were imposed on prosecution.


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