How to resolve the case under section 353 and 504
Anonymous User
(Querist) 27 October 2017
This query is : Resolved
Hii...my father had a heated agreement with Development authority's JE and he filed an FIR case against my father..he had also written false statements in it stating that he had also beaten him..
We have taken top lawyers advice in Saharanpur but nothing turned us to be fruitful..some days you have to go to Allahabad high court for "same day bail "or "Arresting Stay" while other lawyers suggest that Saharanpur district judge can give you a bail from Saharanpur itself as anticipated bail is not in Up..
Please suggest what to do..
Prompt advice over it will be really appreciable
Yudhish Padman S
(Expert) 27 October 2017
Dear Garima Nagar,
Applicable Judicial Principles:
1) The police cannot arrest a person unless a FIR has been registered against him or unless there is an arrest warrant pending against him.
2) The police cannot register a FIR unless a cognizable offence has been reported.
3) Sec.353 of IPC – assault/use of criminal force to deter a public servant from discharge of his duty, is a cognizable and non bailable offence.
4) Sec.504 of IPC – insult intended to provoke breach of peace, is a non-cognizable and bailable offence.
5) When a person is alleged to have committed two or more offences and if one of such offence is a cognizable offence, then the police shall register a FIR against such person and proceed with arrest if necessary.
Now, the answer to your query:
Your father having a heated argument with the JE is not an offence. If your father had insulted the JE, then the alleged offence falls u/s.504 of IPC which is a non-cognizable offence and obviously, the police cannot register a FIR and hence, the police cannot investigate the matter or arrest your father. Therefore, the JE would have made a false statement that your father assaulted the JE. This way, the police could register a FIR since an offence u/s.353 of IPC has been alleged.
Upon a summary perusal of the ingredients in the FIR, it can be ascertained whether the facts narrated therein are true. If not, then there is no prima facie case under which circumstance, you have the option to approach the Hon’ble High Court and invoke its inherent powers u/s.482 of Cr.P.C by filing a petition whereby, you should seek to quash the FIR. IF THIS PETITION IS ALLOWED, THEN CONGRATULATIONS, THAT’S IT. Simultaneously, you may also file a miscellaneous petition seeking a direction to instruct the police not to arrest or harass you. An order in this interim application will serve as a bail. The time limit to do this is before the police complete their investigation and files final report (colloquially known as ‘charge-sheet’).
If that is not possible, then you need to obtain an Anticipatory Bail before the Hon’ble High Court or District Court, if required, to prevent arrest. A Bail is necessary only after a person has been arrested. Thereafter, once the investigation is complete and the ‘Final Report’ has been filed, you will be summoned by the Court which will either take cognizance of the case or dismiss it. Usually, Courts take cognizance and frame charges against you. In your case, two charges will be framed based on the aforementioned two sections. At this juncture, you may file a discharge application by narrating the actual facts. IF BOTH THE CHARGES ARE DISCHARGED, THEN YOU WILL END UP BEING ACQUITTED. If no charge is discharged or if only one charge is discharged, then the case will proceed and you need to prove your innocence during trial. Given the facts of the case, I believe it won’t be a difficult task to prove your father’s innocence.
Regards,
S.Yudhish Padman, Advocate, Chennai.
yudhishpadman@gmail.com
Anonymous User
(Querist) 28 October 2017
Thanks for the suggestions..
FIR has been registered with police as it is being provided by JE to the SSP.. and moreover they are also saying that section 332 has also increased along with the other two..
I want a wise advise as what to do now..
Whether we should go to high court for this or we should find a solution in the our city?
As no lawyer is giving us a good advice
One lawyer says I will get it done from district megistrate but I cannot assure you bail for the same day , it might happen that my father can be arrested..
Another lawyer says go to high court and ask for arresting stay..
What to do in this?
Please advise
Guest
(Expert) 28 October 2017
Expert Mr.Yudhish Padman had advised you Excellently.
Guest
(Expert) 28 October 2017
Seek Anticipatory Bail for all the accused as advised by Mr.Yudhish Padman with the help of a Senior Advocate in the concerned High Court as advised.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C) to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C) to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
You can either file a criminal writ of Mandamus or Certiorari to quash the false FIR under section 353 and 504 of IPC against you by the police or file section 482 Cr.P.C petition(inherent powers of the criminal court under Cr.P.C) to quash the false FIR booked by the police against you.
Ms.Usha Kapoor
(Expert) 28 October 2017
If you appreciate my answer please give me likes.
Vijay Raj Mahajan
(Expert) 28 October 2017
It is correct there is no anticipatory bail provision u/s 438 of the Cr. P.C for the State of UP as that was omitted by the Uttar Pradesh Act 16 of 1976 since 28.11.1975.
The arrest of the accused person usually not done without giving notice to him, however the Session or Magistrate Court (in this case) allows the regular bail for not so serious or minor offences where maximum punishment is up to 3 years or so like those you mentioned 353, 504 and even 332 without much trouble, the trouble for bail is for major offences where there is punishment up to life imprisonment etc. Going to High Court will not serve much purpose as no anticipatory bail allowed u/s 438 Cr. P.C, unless you have strong case to get the FIR quashed on sufficient grounds.
Rajendra K Goyal
(Expert) 28 October 2017
Quashing of FIR may not be allowed by the High Court.
May move to High Court for stay on arrest.
Engage some senior lawyer.
Advocate/CS Sanjeev Kataria
(Expert) 28 October 2017
quashing of FIR is not possible, because case is at early, go to High Court for stay on arrest as there is no provisions of anticipatory bail in UP. and join the investigation, this is the best option for you.
Guest
(Expert) 28 October 2017
Agree with Experts .........................................
Guest
(Expert) 28 October 2017
Inspite of recommendations and proposals by Honorable Supreme Court the provisions of Anticipatory Bail is Yet to be initiated in UP and Uttaranchal.
