498a quash/dismissal- foreign citizen - without appearing
Mahesh Agrahari
(Querist) 26 February 2016
This query is : Resolved
Hi,
My second wife filed typical false 498a , DV etc case in Noida UP , three years ago when our marriage did not work due to incompatibility. The case was filed only in my name as police cleared my parents from FIR. There has been only dates issued on this case since then because I never received any summons nor did I appear in court. I am foreign citizen and don't visit india often.
She seems to be fed up going to court every month to get new dates and nothing more happened. She now willing to settle the case without fighting. She has no demands and ready to put in any statement/application in court to finish this matter. Ex-parte divorce also got issued last week.
I am foreign citizen living abroad with my school going daughter and it is nearly impossible for me to visit India as I don't have anyone to leave my daughter with. I would be grateful for the help from the experts to guide me on-
1. What is the procedure to get the case discharged/dismissed in lower court given other party is ready to cooperate ? Is it possible?
2. If it is not possible in lower court, then application has to be made in Allahabad high court? If so what would be the procedure?
3. Can this case be dismissed/quashed without my personal appearance in Indian court using power of attorney or representative layer etc? I could get all papers signed in front of Indian high commissioner under diplomat and councillor act. Will that be sufficient for no personal appearance?
4. What could be the reasonable grounds for getting permission for my non appearances during being represented?
Would greatly appreciate prompt response so that I can act as soon as possbole and get relief from this mess and move on with life.
Thanks
Mahesh
Santosh Goswami,Advocate
(Expert) 26 February 2016
Dear Client
Only High Court has been vested with the power to quash a criminal proceeding whether upon compromise or otherwise. Thereon, the complainant and the accused need to jointly move an application for quash while attaching the compromise deed or MoU. We can have you affidavit and sign on the joint petition which may serve the purpose. It is the complainant's consent which is more vital. Firstly, make a compromise deed.Welcome for any assistance.
9555462995
Devajyoti Barman
(Expert) 26 February 2016
If the de facto complainant is ready for settlement then the best way to resolve the situation is to get the case quashed through high court on mutual consent.
For this the presence of wife is mandatory but your presence can be dispensed with.
If you for for this through lower court then your physical presence would be required on several dates in the court of law.
Mahesh Agrahari
(Querist) 27 February 2016
Thanks you for the responses. Please could you elaborate the IPC etc to be used and any case references to dispense my presence.
Advocate/CS Sanjeev Kataria
(Expert) 27 February 2016
your presence may be dispensed with, petition need to be filed under section 482 Cr PC, rest all you can leave upon your lawyer
DEFENSE ADVOCATE.-firmaction@g
(Expert) 27 February 2016
Since as you say summons are not served so even if you jointly appear at HIGH COURT for quash it will complicate matters. There are many stories in forum section of this website itself in such matters.
You can get the matter resolved at lower court it self without appearing.
Further steps after knowing case details.
Devajyoti Barman
(Expert) 27 February 2016
In quashing matters there is no way to file petition for dispensing with your presence.
It is the discretion of the court. if the court feels your presence is required at the time of hearing then it will fix another date when you remain present and get the matter quashed with the consent of your wife.
Advocate Kappil Cchandna
(Expert) 27 February 2016
Sir,
I feel if the court is satisfied then the personal appearance can be dispensed with. I mean you can give the POA to someone to appear on your behalf.
Warm Regards
Kapil Chandna Advocate
9899011450
Rajendra K Goyal
(Expert) 27 February 2016
Agree, with the expert Devajyoti Barman.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 27 February 2016
AS he says the SUMMONS are not served so no need of appearance or applying for personal exemption.
He further says that there is ex party divorce granted so it may just be a master tactic to get appearance.
After appearance the other side can easily back out from compromise posture.
The suggestion of Ad K P Chandra can be used to raise new legal issues to side track .
Appear in the court through POA and raise issue of jurisdiction since the spouse is not at matrimonial home and hence the acts of 498 A offense not happened there.
There may be many other mistakes in the complaint such as complete name address age exact locations of 498 A offense , time and dates.
Go is revision if rejected by trial court.It will give sufficient time and pressure to solve problems.
Mahesh Agrahari
(Querist) 29 February 2016
What are the reasons and sections to quote to dispense with my presence?
