Is presence required in high court for quashing
Mehrunisha
(Querist) 28 October 2012
This query is : Resolved
hi....
My sister in law has filed 498a, maintenance and 2 more cases against all my the family members in delhi, now the matter has been compromised in Mediation centre in delhi, she had received the part payment and will be receiving the rest payment after the quashing of rest cases i.e 498a and forgery, my brother is in abroad and all the FIRs were filed in his absence, he has been made main accused in it, since starting the matters were handled by my father who is the special power of attorney for my brother.
My question is for quashing in high court is his presence required he has given special power of attorney to my father for quashing, he has been declared PO. can you provide me any citation in which the quashing has been done without the presence of the main accused (PO)
Kiran Kumar
(Expert) 28 October 2012
well it is a peculiar situation.
if the judge is a bit lenient then he may allow the petition otherwise the main accused is PO in the matter.
procedure wise he must first join the process of law and thereafter seek other remedies.
one point in your favour is that the compromise leads to quashing of subsequent proceedings also so it shall cover the PO proceedings too.
since its a criminal matter, the HC may raise an objection over the Power of Attorney too.
discuss the matter with your counsel, who shall find out some step after exploring the Delhi HC rules and the relevant judgments.
Guest
(Expert) 29 October 2012
Although the presence of the accused is not mandatory in quashing and there have been many instances where the proceedings have been quashed by the HC in the absence of the petitioner but him being a PO might go against him. The HC may mandate him to first join the process of law.
Also, the Delhi HC may raise a preliminary objection over quashing through a SPOA. In a judgment the Punjab and Haryana High Court has held a petition u/s 482 Cr.P.C is not maintainable when filed through a special power of attorney. Delhi HC may follow suit.
Ashish Davessar
Advocate
Supreme Court of India
Punjab and Haryana High Court
Mehrunisha
(Querist) 29 October 2012
Thanks for your reply sir,
but we were referred by the same court which declared my brother PO and in which 498a is pending to mediation center and the mediator herself said that my brother's presence is not required it can be done by SPOA, through this SPOA part payment was done and one case of sec 323 was withdrawn.
Pls sir suggest some good way of quashing without the presence of my brother who is PO, we are facing all this since 8 years, all this is happening just for the sake of money, she wants to abstact more money from us, the problem is that my brother has recently joined new job and he is having 2 kids also, his family plus my parents are also dependent on him, if he will come to india and get stuck over here his career will be spoiled, marriage has been dissolved as per muslim personal law.
Guest
(Expert) 30 October 2012
The judge is not bound by the opinion of mediator.
Have faith in your lawyer and let him find a way out for proceeding further.
Mehrunisha
(Querist) 01 November 2012
My advocate said he will try to quash without his presence, now let's see, well i will update you on this
thanks
Mehrunisha
(Querist) 29 November 2012
We have submitted the application for quashing of proceedings in High court, I want to know is there any time limit to clear the objection means how much time High Court gives to clear the objection
Mehrunisha
(Querist) 12 April 2014
Hi,
Thanks for all your support, The FIR got quashed in high court in absence of my brother. Now please help me with this, I want to know what precaution should we take if my brother is planning to come in india because we had received many show cause notice from india passport office and dubai embassy for impounding of passport, will he get stuck on air port.
Mehrunisha
(Querist) 12 April 2014
Hi,
Thanks for all your support, The FIR got quashed in high court in absence of my brother. Now please help me with this, I want to know what precaution should we take if my brother is planning to come in india because we had received many show cause notice from india passport office and dubai embassy for impounding of passport, will he get stuck on air port.
Sudhir Kumar, Advocate
(Expert) 14 April 2014
repeated
http://www.lawyersclubindia.com/experts/come-back-in-india-again-466041.asp#.U0tJp6I1g48
