Quashing 498a
Advocate B. M.
(Querist) 10 April 2014
This query is : Resolved
Dear Experts,
A client of mine has procured divorce through judicial mediation wherein it was agreed that the wife will support for quashing 498A, 406, 504 and 506 filed by her against her husband and family on an application made by the husband u/s 482 CrPC. She has even agreed to personally write to the Police station that she does not wish to pursue the complaints and FIR on account of the settlement, and she has hand written the letters to the police station. Now that the application u/s 482 CrPC has been filed by the husband and his family, she is showing disinclination to come to the High Court and personally depose before the Court that she does not wish to pursue the same. The High Court is also asking for her personal attendance. Now she is also claiming that she wants a lawyer to represent her in the high court and that the husband has to foot the bills of her lawyer too. Is there a way out of this extortion measure, or should I advice my client to agree to her terms? Kindly guide, as my clients are personally known to me and I know that they are genuine people and have been falsely implicated. I look forward to an early response and guidance on this.
Thanks.
Devajyoti Barman
(Expert) 10 April 2014
Do not keep small matters in mind while targeting bigger objectives. If bearing the expenses of another advocate can get you absolved form criminal charges, you should consider yourself to be lucky.
If now she retracts from her initial commitment and does not come before court, you have to face the trial which may linger for decades.
Advocate B. M.
(Querist) 10 April 2014
My sensibilities tell me that this is the only recourse. However my conscience tells me it is so unfair to the husband and his family that they be exploited in this manner. Is there any other way, through some citations, that as she has agreed in the consent terms for the withdrawal on basis of which divorce was granted, as well as she has handwritten to the police station that she does not wish to pursue the FIR. Are there any citations which can help me out without insisting on her personal appearance that such prosecution is merely an abuse of the process of law?
thanks and regards,
Advocate B. M.
(Querist) 10 April 2014
My sensibilities tell me that this is the only recourse. However my conscience tells me it is so unfair to the husband and his family that they be exploited in this manner. Is there any other way, through some citations, that as she has agreed in the consent terms for the withdrawal on basis of which divorce was granted, as well as she has handwritten to the police station that she does not wish to pursue the FIR. Are there any citations which can help me out without insisting on her personal appearance that such prosecution is merely an abuse of the process of law?
thanks and regards,
Advocate B. M.
(Querist) 10 April 2014
My sensibilities tell me that this is the only recourse. However my conscience tells me it is so unfair to the husband and his family that they be exploited in this manner. Is there any other way, through some citations, that as she has agreed in the consent terms for the withdrawal on basis of which divorce was granted, as well as she has handwritten to the police station that she does not wish to pursue the FIR. Are there any citations which can help me out without insisting on her personal appearance that such prosecution is merely an abuse of the process of law?
thanks and regards,
ajay sethi
(Expert) 10 April 2014
agree to pay her lawyer bills . no need to engage a senior . engage a junior advocate to represent her
Advocate B. M.
(Querist) 10 April 2014
She wants a lawyer of her choice. And they will charge the sky. It appears to be a concerted movement amongst all of them, her local lawyer, she and the NGO. That's whats troubling me. All 3 of them are exploiting the situation.
Nadeem Qureshi
(Expert) 10 April 2014
then forget about quashing and fight the case on merit if she is adamant
ROHIT SHARMA
(Expert) 10 April 2014
1. If there are evidences of the relevant fact that the wife had admitted before the mediation cell as not to insist to prosecute her husband then such evidneces can be deemed as admissions and can be used against her during the trial of the criminal case. The accused can seek for discharged if the trial has not yet commenced.
2. Quashing of the F.I.R. does not need the attendance or consent of the complainant.
3. It would be enough for the accused to produce such admission of the complaint before the mediation cell before the H.C. The H.C. would not insist that complainant be present to contest such quashing petition.
Adv. Rohit Sharma.
(M) 09824047971.
E- Mail : lawgate1349@gmail.com
Advocate B. M.
(Querist) 10 April 2014
A clause in the consent terms clearly state that :- "8.It is agreed between the parties that in view of this agreement of settlement of the disputes between the parties, at the earliest the Party of the First Part (Husband) shall apply for quashing for the FIR by way of an appropriate application before the Hon’ble High Court and the Party of the Second Part (Wife) shall provide all the required applications, affidavits, personal appearances, etc. as required under the procedures for procuring an order/ direction for quashing the FIR and permanently terminating the proceedings on the ground of settlement by her at the aforesaid Police Station and to ensure that the prosecution does not proceed against the Party of the First Part and his family members."
Additionally, she has also handwritten to the police station that dispute is settled and she does not wish to pursue and that husband will be applying for quashing.
Are there any citations of SC that under such circumstances, personal attendance of the wife is not necessary? At the last hearing, the HC has asked for the wife to be personally present.
Devajyoti Barman
(Expert) 10 April 2014
In this situation without help of wife, quashing is difficult.
It would have been not so had divorce would have been granted on mutual petition where the wife would have taken similar commitment.
Rajendra K Goyal
(Expert) 10 April 2014
Sir,
Citation is not provided in this section. You may search indiankanoon.com.
Advocate B. M.
(Querist) 10 April 2014
I have come across Sundar Babu and Bhajan Lal. However, I dont really know whether they would be useful in my case.
Can she renege on her agreement under mutual consent given before a judicial mediator?
Could anyone guide me pl?
Advocate B. M.
(Querist) 10 April 2014
But it is on basis of this consent terms that divorce has been granted and she has been paid permanent alimony too. Further the husband did not pursue his divorce case filed by him for cruelty. After he has made all the compliances, and parties given divorce, how can she renege on her compliance required and what purpose will it achieve? I am sure there must be some way out, some judgment, something somewhere that will protect innocent husband and family from being harrassed.
thanks.
Devajyoti Barman
(Expert) 10 April 2014
You are divulging information that too most vital ones at the very end.
If divorce is granted mutually on her undertaking then in absence of the wife, the high court can quash the case. Simply produce the certified copy.
It is very much permissible and high courts are routinely doing this.
T. Kalaiselvan, Advocate
(Expert) 11 April 2014
I agree with the opinion of Mr. Barman that
If divorce is granted mutually on her undertaking then in absence of the wife, the high court can quash the case. Simply produce the certified copy.
It is very much permissible and high courts are routinely doing this.
Try to follow the same.
Advocate B. M.
(Querist) 12 April 2014
Thank you all so much. I have annexed the certified copy of the consent agreement during mediation, as well as the certified copy of the order of divorce to the Application u/s 482 CrPC. Yet the HC is insisting on her personal appearance. Therefore Iam in a dilemma.
Thanks.
ROHIT SHARMA
(Expert) 12 April 2014
Dear Mr Advocate B.M.
1. The quashing application has been filed by the accused.
2. The grounds for such application u/s 482 Cr.P.C. as it appears has have been based upon an extract of a purported agreement made during the course of mediation in the proceedings of divorce and eventually the divorce decree has been procured by the husband ( it looks like the award of the divorce decree was not expressly sought u/s 13-B of the H.M.Act, 1955,) and moreover logically and legally speaking such agreement to the effect of withdrawal of criminal complaints cannot be expressed or recorded during the mediation of civil nature, as this would imply that there has been some kind of extra jurisdictional collusion or undue influence between the two and of such doubts the H.C. therefore appears to be wary about before concluding to approve of quashing the criminal complaint which in fact in law is not compoundable.
3. The discretion of the H.C. u/s 482 is absolute and cannot be challenged either.
4. I presume that in course of employing such explicit discretion the H.C. would not resolve the issue before them until and unless the complainant herself deposes before the H.C. It has been amply made clear by the H.C.
6. Well, if she fails to appear then what can be presumed is that the application u/s 482 will not survive and in that case it would be prudent to withdraw such application u/s 482. Cr.P.C.
7. But why would she need an advocate to represent her when she has not filed such application herself ? The H.C. has called for her appearance in person and not through an advocate. Supposing she appears and expresses adversely to the point of contention of such agreement made during the divorce proceedings then what would be the H.C's stand cannot be predicted.
8. The only way i can see through this is that the application u/s 482 if it stands to be dismissed in wake of displeasure of the H.C. as by the non appearance of the complainant or if it is withdraw, then let the trial be commence and while during the cross examination of the complainant this agreement made during the course of mediation process and the hand written document given by her to the police, can be introduced as an evidence u/s 20 ( Admission) of the I.E. Act, 1872 and based upon such acceptance of a relevant fact amounting to admission by such complainant the defense can bring forth the defense of imposing the maxim of Estoppel as u/s. 115 of the I.E. Act 1872, and thereafter during the stage of oral and written arguments, it can be argued that such complainant is guilty of a charged of having committed an offense u/s 389 I.P.C. i.e. putting the husband/his family under fear of accusation of offense in order to commit extortion and the acquittal of the accused can be look forward to.
9. Any further inquiry if need be would not come free.
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) 0 9 8 2 4 0 4 7 9 7 1 .
E-Mail : lawgate1349@gmail.com
Devajyoti Barman
(Expert) 12 April 2014
The high court may insist but you have to satisfy that that wife is not cooperating.
It is a good ground for quashing if you can show that wife is not coming to cooperate breaching her agreement to do so in a MCD petition.
Advocate B. M.
(Querist) 12 April 2014
Thank you Experts. I deeply appreciate your guidance.
regards,
Devajyoti Barman
(Expert) 13 April 2014
you are welcome....
The Calcutta High Court does quash the 498A case in absence of wife when it is shown that the wife refuses to cooperate husband in quashing it.
