Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

siva (DoP)     02 March 2011

What is Quashing u/sec 482

A person was arrested based on a false complaint and FIR.

What is quashing of FIR, what happens to arrest record made based that FIR.

Will the arrest record be gone forever..? OR is it the case only. 

If the person could quash the FIR.

I am asking this question from Visa/immigration point of view, where a person has to say YES or NO to the question "Have you ever been arrested". What should be his answer..? Because lying to visa questionaire creates bigger problems.



Learning

 22 Replies

ADV Rajesh KASRIJA (ADVOCATE)     02 March 2011

when we arrsesting in false case we can file a quaishing us sec 482 of the crpc to discharge fromthe false cases

Samir Jha (Advocate)     02 March 2011

Dear Siva,

If the FIR against any person stands quashed that means that Court did not find prime facie offence made out  against the person and there is nothing on record to prove even his remote connection with the offence.

Secondly, the question normally asked by immigration or passport authority is have you ever been "convicted" of any offence OR is any criminal case pending against you.

By getting the FIR quashed, the answer to both the question will be in negative. The question of arrest itself does not the prove of guilt of the person. The arrest record can not be used against that person.


regards,

Samir

Soma (ta)     02 March 2011

Sir,

My brother was married to girl in Nov’ 2009.But she stayed with him and my family for only 15 days and left the in-laws house. Then she demanded for 15 lakh as compensation but at last come to a settlement of Rs 5 lakh. At the time settlement she and her family signed a deal has taken all her stridhan and the entire thing she had and will have no demand anymore also stated in that settlement that she was not having understanding with her husband hence she will leave if she is given Rs 5 lakh The deal which we made was in a stamp paper but in that stamp paper it is not mentioned “before the notary public..”. After that my family filled a case for divorce. Once we filled the divorce case, they immediately filled a false case of 498a against my brother, my parent and also me and my husband for torturing her. Now we have got the bail. At the time of bail she had stated that things have got settled between us and now she is staying with us and hence withdrawing the cases though it is not a true fact. But for getting this bail my father was forced by the girl’s family to give Rs 2.5 Lakh. After that they asked us to withdraw the divorce case that we had filled and the girl herself applied for a fresh mutual divorce case. Now the police have already given a charge sheet which we were not aware of. We came to know of this charge sheet from a source we had. We have been asked to be present before the court on 5th of May. But for what reason we don’t know. We are guessing that it could be for charge framing. We have got no summon/notice neither from court nor the police.

 

I need to know some points:

1.       Can me and my husband go for discharge petition/quashing in high court under section 482 as me and husband is staying  in a place which is under a different jurisdiction of my father’s place.

2.       The police without interrogating any of us issued the charge sheet. How is this possible?

3.       We had no idea that police had already issued a charge sheet but from a source we came to know that the charge sheet has been issued. So we had to pay money for getting the charge sheet copy that police had issued. Can we do something on this or this is procedure for getting the charge sheet from the police?

4.       Can we go for a quashing for my parents and by brother.

5.       Can we bring an extortion case on the girls’ family as they are forcing my father to give this ransom as my brother is not capable of giving so much of money?

6.       I and my husband have a plan for going abroad. Is it possible at this stage?

 

   Any advice is helpful

ADV Rajesh KASRIJA (ADVOCATE)     02 March 2011

y

Samir Jha (Advocate)     02 March 2011

Dear Soma,

As you have mentioned that you are already on bail  which I am presuming as anticipatory bail then the reason you are required to be present on 05.05.2011 , is for furnishing regular bail and to get the copy of charge sheet

As much as your first question goes, you can approach the High court for quashing on two different grounds. 

Firstly you can approach on the basis of merits of the case i.e. if there are no severe allegations against you in the charge sheet or in the FIR and as you say you are living seperately from your father and brother. These could be the grounds for approaching the High Court

Secondly, if the first motion is passed in the mutual divorce petition and if the mutual divorce petition states or any agreement annexed with it states that the girl (your brothers wife) will withdraw all the pending civil, criminal case against you and your family members, then also you can approach the High court.

For your second question: The Police officials are at liberty to file the charge sheet on the basis of statement of complainant and other persons. If the police officials feel that you interrogation is not required than they will not call you to record your statement. However, merely filing of chargesheet against you don't make you accused. There is a possibility that they found no evidence against you and   your husband and have filed a closure report. 

You third question is answered at the top. You will get the copy on next date of hearing.

It is very difficult to bring the action of the girl under the defintion of extortion as the previous payment has been made under a settlement. Your standing of your father is very difficult to ascertain at this time as I have not seen the allegations against him.

if you wish to go aborad, kindly ask your advocate to move an exemption on your behalf on the next date of hearing. However, at this juncture it appears difficult as the court first will require you to take regular bail. 

You may incur extra cost in going to high court for quashing. if there are no alegations against you and your husband there is a chance of you getting discharged at the charge level itself before the trial court.

Please note that all the above suggestion and advise is without consdering the nature of allegations against you and your husband hence the accuracy of advise may vary.

regards,

 

 

Soma (ta)     02 March 2011

Sir,

 I need to know 1 thing i.e after filling on 498a we have got the bail.Then is it regular bail or AB

Samir Jha (Advocate)     02 March 2011

Dear Soma,


if you have not been arrested and taken to custody, then it is AB.

Soma (ta)     02 March 2011

Sir

 thanks for your reply.

My sister-in -law filled a case of 498a after 10month she left my fathers house.Can this be ground for quashing.

Samir Jha (Advocate)     02 March 2011

This could work in your favor but not necessarily a ground for quashing.

Soma (ta)     02 March 2011

OK.....

As you told in 5.5.2011 it is date for regular bail.What is procedure of getting that.Is it that since we are on anticipatory bail....we will automaticaly ...get the regaular bail.

The deal that they made in a stamp paper which I mentioned earlier do not have any signature of my family member(neither my brother nor my father).But apart from this ther had another written document done in a white paer with no date mentioned that we have to give the girl 5 lakh.

siva (DoP)     02 March 2011

Thanks everybody for your suggestions.

Dear Soma, why are you posting your question on my topic. The thread is little cluttered and hamper my chances to seek proper information.

Samir Jha, The normal question (for example US Visa form DS156), asks "Have you every been Arrested OR Convicted". I understand that neither the arrest nor the conviction is ground for refusal of visa.

My question is what should the applicant answer to the above question?

Case 1: Assuming the person said YES, his application will be pending and upon submission of additional documentation and subsequent enquiry, Visa may be granted or denied.

Case 2: But if the person answers NO and consulates find a arrest record, the person will be debarred to apply for visa FOREVER, because of material misrepresentation.

Moreover, there is will be another question in any country visa "Have you ever been refused/denied/deported visa/entry to any country..?" and if the person falls into Case 2, then his options of getting into any country visa are slim.

Hope you understand the verbage here.

siva (DoP)     02 March 2011

Further to the above point, assuming that person went for a trial and wins the case.

Person can NO to Conviction/pending case. So there are no tensions here.

The question is simply "Have you been arrested YES/NO".

After quashing of FIR, can the person get relief, what should be his answer to the above question.

k.kumar raja (advocate)     02 March 2011

mr.rajesh correct.

k.kumar raja (advocate)     02 March 2011

mr.rajesh is correct.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Recent Topics


View More

Related Threads


Loading
Start a New Discussion Unreplied Threads



Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query