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Indian Citizen (Associate)     06 September 2011

Urgent legal advise

 

Case background:

Husband & wife cohabitat for 3 months (nuclear family).After 3 months of stay, wife leaves to her parents house and refuses to come back. 

Wife lodges a Complaint Case in 2008 ( u/s 498a, 504, 506, 323,3/4) in local court.Husband moves HC  for criminal revision of proceedings u/s 482.

The case will be listed in few days the chances of quashing is minimal, however the case may likely be referred back to trail court with a directive on Bail on Same day?


In case of any adverse order passed by HC, need advise on following:

1. If Allahabad High court passes an adverse order, then can the order be recalled?When and How?

2. Can petitioner apply for transfer application in the High Court, as he has danger to his life in trial court?When & How? 
3. In case an adverse order is passed, is enough time given to petitioners to move to SC? How SC can be of help?
4. In 498a matters, has SC transferred the case to city/state other than where wife resides???On what merits

Hoping your expert guidance on the same... 






Learning

 3 Replies

Sanjeev (Lawyer)     06 September 2011

1. AllahabadHigh court would just pass a order that it has no authority to Quash FIR - and give directions to the CJM concerned to grant Interim bail to the Petitioners on appearence and refer the case for local mediation and if the mediation succeeds the CJM will dispose the case or if it fails than your final bail application will be decided after obtaining a report from IO. These are blanket orders so format is same.

2.No it cant be transferred generally -

3. No adverse order will be passed you will get the orders as per point 1 above.

4. usually SC wont transfer but if you can prove that none of the incidents in the FIR took place in wifes city than may be it gets transferred.

 

In Allahabad initially mediation used to happen at Allahabad Mediation Centre that used to give too much time to petitioners as 'Arrest Stay' orders were issued but now days they are just ordering local mediation and disposing the cases.

Sanjeev (Lawyer)     06 September 2011

If it was filed in 2008 was it referred to Allahabad Mediation at that time and if Yes than what were the mediation results. Are you under stay of arrest orders if yes and if mediation failed at Allahabad then at max you will get orders as in point 1 above for Interim Bail and than final bail after PP obtains report from IO.

No local mediation in that case. You will get three weeks time to appear before CJM until that your arrest will be stayed.

BHUWAN SRIVASTAVA (LAW OFFICER)     06 September 2011

my dear friend, listen...

If chargesheet has already been filed against the husband then u will move to High Court under section 482 of the Cr.P.. If not then u should move to HC under Article 226 of the constitution of india. This is a general rule.

Now, if u r moving to High under revision, then first of all u will move to High Court for challenging any order of the Court's below. u have power to move HC under S.397/401 of the Cr.P.C.

Now, If earlier u didn't move for mediation proceedings, you may pray for that and High Court will issue notice to the opposite party whether she want to participate in mediation or not. if yes, then till the mediation proceeding you will able to get the stay from HC.

If u have already participated in mediation then u will not get the another chance for the same.

1. there is a very less possibility of the recall of the said order.

2. being husband Court would not be lineant towards you and will reject the transfer application.

3. for this, you at the same time obtain pray for permission from the Court to give liberty to move to SC. the same shall be granted to you by the Court.

4. I have gone throgh various judgments but unable to find any judgment in favour of husband. Generally Courts are linient toward wife.

 


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