Genuine advise requested

Hi,

1) Why don't you file for quashing of the complaint or file for dismissal of the case in HC ?

2) Now, file for an AB (even though there is no provision in UP) in the same court where you were issued the previous order. Of course AB application will be rejected. Now with that rejected AB order, file for a revision appeal under crpc 397 which will give you interim relife. This is tricky but interesting and workable.

Regards,

Ravi Trivedi

This is the maximum relief that you can get if Mediation fails

Court No. - 42

Case :- CRIMINAL MISC. WRIT PETITION No. - 2XXXX of 2010

Petitioner :- XXXX And Othes

Respondent :- State Of U.P. And Others

Petitioner Counsel :- Dharmendra Singhal,Dinesh Kumar Yadav

Respondent Counsel :- Govt. Advocate,R.P. Dwivedi

Hon'ble Vineet Saran,J.

Hon'ble Surendra Singh,J.

Heard learned counsel for the parties and perused the material placed on

record.

By means of present petition, the petitioners have challenged the FIR dated

24.10.2010 registered as case crime no. 5XX of 2010, under Sections 498-A,

323,504 IPC & 3/4 Dowry Prohibition Act, P.S. Jagdishpura, District Agra.

By order dated 20.11.2010 passed by this Court, the matter was referred to

Allahabad High Court Mediation & Conciliation Centre. The report of

mediator dated 3.4.2011 indicates that parties are not willing for mediation, as

such mediation has failed. Therefore, we proceed to hear the matter on merits.

The writ court is not competent to go into questions of facts and on the

allegations, it cannot be said that no prima facie case is disclosed.

Hence no ground exists for quashing the F.I.R.

However, in the facts and circumstances of the case, it is provided that if the

petitioners move an application for surrender before the court concerned

within three weeks from today, the Magistrate concerned shall fix a date about

two weeks thereafter for appearance of the petitioners and in the meantime

release the petitioners on interim bail on such terms and conditions as the

court concerned considers fit and proper, till the date fixed for the disposal of

the regular bail. The court concerned shall also direct the Public Prosecutor to

seek instructions from the investigating officer by the date fixed and as far as

possible, also give an opportunity of hearing to the informant and thereafter

decide the regular bail application of the petitioners in accordance with the

observations of the Full Bench of this Court in Amrawati Vs. State of U.P.

2005 Cri.L.J.755, affirmed by the Supreme Court in Lal Kamlendra Pratap

Singh vs. State of U.P. (2009) 4 SCC and reiterated by the Division Bench of

this Court in Sheoraj Singh alias Chuttan vs. State of U.P. 2009 (65) ACC

781. If further instructions are needed or if adjournment of the case on the

date fixed for hearing becomes unavoidable, the Court may fix another date,

and may also extend the earlier order granting interim bail, if it deems fit,

provided that the adjournment of hearing of the regular bail on one or more

dates should not exceed a total period of one month.

It will also be in the discretion of the Sessions/Special Judge concerned to

consider granting interim bail pending consideration of the regular bail on

similar terms as mentioned herein above when and if the petitioners apply for

bail before him.

For a period of three weeks from today or till the petitioners appear/surrender

before the court below and apply for bail (whichever is earlier), the petitioners

shall not be arrested in the aforementioned case crime.

In case the petitioners fail to appear before the court concerned on the dates

fixed or they fail to cooperate with the investing officer during interrogation,

it will be open to the Public Prosecutor to move an application for cancelling

the order of interim/final bail and the Court concerned may pass an

appropriate order on merits.

With the aforesaid observations, this petition is disposed of.

Order Date :- 4.5.2011

Mt/

(Surendra Singh, J.) (Vineet Saran, J.)

The matter is in high court, the subject has filed CrPC  397 at session possible?

Advise

Sanjeev,

Thank you for sharing the order & also the procedure post mediation failure in High Court.

Since i am a layman , I am unable to understand the flow, please clarify:

1. HC refers back to the matter to Local Courts, as HC do not hear the merit of the case...

2. Petitioners surrender within 3 weeks, & the judge may /may not grant  interim Bail to the petitioner on same day,or even if he grants bail on same day, the applicants do not get guarantors, then also they land in jail.

3. Petitioner then files for regular bail...

Please advise

The matter goes as follows:

1. Once stay of arrest is granted by allahabad HC - the notice for appearing will be sent by HC Mediation centre to the opposite party on a date fixed and you and the girl side will appear on the fixed date.

2. On the date fixed mediation will begin - they will make efforts to reconcile with only three alternatives to offer , first- the husband and wife reunite and wife take back the case, second- they agree for mutual consent divorce and whatever alimony is fixed to be paid to wife, third- if the parties dont reach any agreement the case is sent back to HC ( then the order I shared above can be appealed for). In the first two cases the HC quashes the FIR/Chargesheet basis the mediation agreement.

3. if the mediation fails then the mediation centre prepares a report for failure and sends it to HC. HC cant quash the case so it can give a order for interim bail and final bail as shared above.

4. Such HC orders are beneficial as otherwise in UP the husband cant save himself from Jail (at least for 2-3 days) as Magistrate are hesitant to grant bail in 498A and bail is granted by sessions court only so arrest is unavoidable.

5. So the Interim bail order above is very much required and should be sought.

6. The mediation dates should not be missed by petitioner else case is sent back to HC by Mediation Centre. Keep calling and checking about the dates personally advocates often dont take seriously and dates are missed.

7. There are further tactics to delay 498A proceedings from Allahabad - the more time you take the more you gain as the other side also breaks down with time so take time in mediation and also dont let it fail first time take time for next date atleast a month.

8. the actions after the mediation fails can be discussed later think positive it dont everytime fails and best is to resolve it then and there.

Surety is two persons per accused and its not required that the surety need to be from UP itself, the guarantor/surety should have valid ID documents and value documents like car RC, Bank FD etc. You need to carry the surety on the date you go for bail. Interim will be granted the same day it cant be rejected as its specified in the HC order no magistrate can disobey. For Final bail application day bribe the Public Prosecutor plus the Investigating officer normally it would be granted though other side will object it through his lawyers.

The only criticality lies with the husband being the main accused the other accused get bail same day. You should have a good lawyer.

let me know the city in UP and also the status of mediation if you need to confirm your mediation dates call at 0532-2423865 this is the number for allahabad mediation centre. it is most important that you confirm your mediation dates as if you miss it the stay will be vacated and you would be thinking that you did not get the mediation date yet. Sometimes lawyers dont deposit the 8k amount that need to be deposited at the mediation centre and is mentioned in your order.

I have got done many sureties in UP that dont belong to UP but from Delhi so dont worry about local sureties requirements there is a case law with regards to jurisdiction of sureties that I can share later.