Dear Ms Nirali,
The answer to your queries are as follows:-
1. Is arrest mandatory or inevitable:-
The facts of the present case suggests that it is a cognizable offence i.e. police may arrest without a warrant from Judicial magistrate. However, the police may first choose to give notice u/s 41A Cr PC to call the accused in police station to rebut the allegation. I am surprised that the police has not arrested the accused till now. If police after hearing the accused and after investigating the case finds no evidence then the police may close the case and file a closure report. But if the police finds some evidence to corroborate the allegations, the police will not file closure report and will submit charge sheet. So all depends upon police that how they want to proceed. Generally depends on Investigation officer.
2. Can bail be applied ?
If the person has not been arrested till today, apply for anticipatory bail from sessions court u/s 438 Cr PC. Please remember that some states have deleted section 438 Cr PC. In such case the person will have to approach the High Court under Writ Petition under Article 226 of the Constitution.
If the person gets arrested in the meantime, then apply for regular bail before the judicial magistrate. But if it gets rejected then wait for some time and do not file for bail again immediately. File bail to session court after some time.
3. Can FIR be quashed ?
The quashing is filed in High Court under section 482 Cr PC. The High court will not go into evidence at that stage. The quashing is maintainable only if even after taking the facts on record, the offence is not made out. Therefore before going for quashing take advise from a good lawyer whether the facts show offence or not. It could be very dangerous if quashing is rejected because trial courts sometimes take it in a bad way. Although theoretically the trial court should not be concerned about result of quashing but practically it does impact.
I hope I have covered every aspect of your query.
Regards
Shubham Bhardwaj (Advocate)
District & Session Court, Chandigarh
Punjab & Haryana High Court, at Chandigarh.
Disclaimer:- The opinion is only for guidance.
