Advise please

Why worry on trifels, appear in lower court get bail and than go on with other matters in SC and HC

Power of defense is immense. Facts are only door to truth so its appreciation  differs from person to person.    Truth is never absolute.

Power of defense is power of negative. Darkness is perpetual , light has to be sustained.

Pls advise hw Sec-482 can be used by High Court before trial when illusive wrong submissions are filed on affidavit in case of NIAct-138,141,,,,,

as cheque is an admitted liability,?

will some expert will be in as position to give accurate proper advise please? 

thanks

1. Can the stay provided by HC (30 day surrender period) be extended?If yes on what grounds?- This can be extended by HC but the real issue is that once your period of 30 days is lapsed then the other side may try to get you arrested so the period in between when the extension of time is applied and it is granted by HC would be a caution period within which you need to be caucious. The extension is allowed normally any genuine grounds may be cited your HC lawyer would be able to suggest the valid grounds. This is a simple application that need to be made for extension of time. The same case your writ in All HC that would be having a disposed status would be listed and judge would grant further extension but that would be last and would not grant any further extension after that. So even if you miss on the first 30 day timeline to surrender then too you would get a second extension.

2. Should husband first file SLP in SC or TP in HC in 498a matter? Anything that he wants to as these are just time gain tactics or you can do both simultaneously as SLP would be for challenging the HC order for not quashing the FIR due to mediation failure but the main thing you would be looking for would be to get the stay of arrest extended from SC and also getting the lower court proceedings stayed.

I think file transfer petition later when your SLP gets decided the benefit being that SC may take 2-3 years during which your stay will be valid and lower court proceedings stayed and once you loose here you can file a TP claiming jurisdiction issues in HC - which as a practice would refer to mediation and stay of arrest would be again granted. This would agin give you 1-1.5 years delay and thereby relief from court proceedings.

Even if your case being a complaint case still chargesheet will be filed by police sometime after investigation so once filed you can again file a case in HC for quashing of chargesheet u/s 482- this will again get you stay of arrest.

If you manage to get this case stayed like this for 3-4 years you will be relieved from travelling to lower court and seeking bail plus also the other side would be pressurised that may result in settlement.

Dear JSDN, Hope you must have read the judgement by Ld Judge SC in 2008 wherein the proceedings conducted by trial court are vexatious and arbitrary.....hence superior courts have been granted the power to quash the proceedings u/s 482.

Yesterdar it came in TOI that the case of murder of railway minister is pending since 3 decades.

The intent of seeking advise on this forum is not to follow foot steps of Gandhi G, but a smart way of tackling the misuse of 498 to protect innocent victims.

But thanks for your response.....

It happens in many criminal cases but I suggest instead of wasting time in higher courts fight at trial court you will win.

Power of defense is power of negative which  is immense. Darkness is negative but it is perpetual , light is positive but you have to make efforts to sustain it

Many suffer due to guilt complex imposed on them, throw it out and fight you will win, that is what Lord Krishana says to Arjuna in Shri Bgagwatgita.

Dear Sanjeev, Thanks for inputs & guidance.Few people like you sustain the credibilty of this forum by offering practical solutions.

1.As you said that SLP, if admitted will be disposed in 2-3 years..Is it true? In case the Opp party is quite vigilant then can the period be squeezed to few months. I mean are there any protocols in SC which tend to delay the proceedings so that usually it takes 2-3 years in its disposal....

2. The grounds for filing an SLP. Can you suggest/share few SC decisions wherein 482 was dismissed by HC but was successfully allowed by SC (in 498 cases)

3. Does the lower court consider the nature of offense before disposing off bail application? There can be a complaint case citing few incidents of minor offense but falling within purview of cruelty...& on other side there is an FIR corporating dowry death....Will the disposition be same in both cases .....are the offenses cognizable coz they fall under 498a or it is at the discretion of magistrate to decide...Any SC judgements which can be referred..

As per your suggestion one should not waste time in higher courts and should fight for justice in lower courts. Agreed but what when you foresee an unfair trial at lower courts???

Still opinion remains same...

The wife will always want to contest in her distt coz she can influence the judiciary..but its very difficult for a husband to go and contest in an alien city.Also the matter is to surrender u/s 498...where once surrendered you may be sent to JC for interrogation...now in that case you will wait n watch....or first explore relief by superior courts..is a matter of discussion

1. The time that I mentioned for 2-3 years is dependendent on the fact that the SLP gets admitted as I said the advocate would need to prepare strong grounds so that the SLP dont get dismissed on the first hearing. If it gets admitted than there is a strong chance that it would drag for 2-3 years due to pendency of cases. The real issue lies with admission as the lawyers do not say initially that this is not a strong case as the order you are challenging is just that the HC did not quash the Complaint case due to mediation failure. I have a similar case that I will attach below. But as you dont have any other options at this moment as taking regular bail would be your last resort so no wrong trying this option. The points that your lawyer need to make challenging the HC order would be basis the complaint that was filed in local court that may challenge the jurisdiction stating that the marriage did not take place at that place nor you both lived there...depends on the facts. The reason of not being a strong case is due to the fact this is a normal practice done by All HC they did not go into the facts of the case to Quash.

2. HC would easily give extension of time but now not more than 10 days this is what I have seen from the recent orders. The grounds for extension could be that the courts closed on account of winter break from 24th Dec so certified copy could not be obtained and then Trial court was also closed till 2nd January so could not present to secure regular bail. This is just by way of normal affidavit in HC and the extension would be granted but it takes time for the dates so it may take 1 month from the date the application is made and when the application is heard by HC so in between period you would not have any protection but that you would have to manage.

3. why dont you include Transfer petition also in SLP challenging jurisdiction of the UP Court where FIR is registered this could be another groung.

4.I know it is very difficult for you to fight in UP as you being not in UP. The main issue being that when the case starts how to be present on each date. Try these ways if this could drag the trial.

3.

files for reference

SLP in similar case

Dear Sanjeev,

Thanks for inputs.

Of late we have recived an order from Trial court that there was contempt of HC decision. After we moved pray in HC u/s 482 for quashing, the lower courts issued NBWs despite the order but the warrants were not signed by the Judicial Magistrate. In fact Judicial magistrate had himself written that there has been gross negligence on account of clerks & other officers. 3 times NBWS got issued even after stay was granted by HC.

Can this be of any relevance....if you can give me your mail iD i will scan the order copy and share it to u.

Also please explain...moving TP parallely to SLP...

Yes, Harassed Husband,

This can be termed as connivance, because NBW can not be issued w/o the signature of the magistrate.