lutano 20 July 2017

Quashing or not

I have filed for a divorce case against my wife under on the grounds of cruelty and the reaon she is having psychatric issues even pre-marriage which got disclosed only after maariage was solemnised. After 9 months of me filing divorce case, she lodge a false FIR under sections 498, 406 and 313 (foreceful abortion) againnst me ,my parents , sister and mternal uncle. We joined police investigations and their investigatiion report says clearly that for my Parents, sister and unclle, Charges under section 313, 498, 406 are not maintainable and only investigatiion needs to be conducted on me for sections 498/406. There was another investigation conducted by another IPS officer and he gave the similar report. Based on these reports, we managed to seek anticipatory bail from High court for all the family members, which was made permament later on.

Now Police has presented a Challan against me under sections 498/406 and 313 despite investigation reports clearing me for 313 charges. Later we learnt that 313 was added by the suggestion of PP of local court due to influence of other party.

Till yet, disussion on charges has not happpened in lower court and is scheduled for next month. I need to seek opinion that

1. shall I go for quashing of FIR in High court at this stage or,

2. shalll I wait for charges to be framed in lower court and then if 313 chnarges are framed against me then go for revision in High court at later stage.

My session court lawyer has sugggested not to go to HC yet, since othereise I may loose a chance that local court may not set charges for 313 against me, since there are no evidence of such abortion and police has given waived those charges against me in their investigation report twice. And If HC did not quash the FIR then they there is a fair chance HC will give a free hand to local court to decide the case on merits and this may go against me leading to conviction.

However HC lawyer suggest that we must move the HC at this stage, else Lower court will for sure frame 313 charges against me by ignoring the Police invetsgation reports and based on the PP comments.

Kindly suggest what is the right path ? And what are the pro and cons of each decision?

regards

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2 Replies

Rohit Krishan Naagpal (Advocate) 21 July 2017

You trial court lawyer is right it is advisable that you argue on framing on charge and then take your chances before the superior courts .

Following obervation in In 2011 CRI L.J.89 (State of Maharashtra & Ors. V.Arun Gulab Gawali & Ors. will be useful in u decide

The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can ‘soft-pedal the course of justice' at a crucial stage of investigation/ proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as ‘Cr.P.C.’) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. (Vide State of West Bengal & Ors. Vs. Swapan Kumar Guha & Ors. AIR 1982 SC 949; M/s. Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. AIR 1998 SC 128; G. Sagar Suri & Anr. Vs. State of U.P. & Ors. AIR 2000 SC 754; and Ajay Mitra Vs. State of M.P. & Ors. AIR 2003 SC 1069).

Also In (2009) 3 SCC (Crl) 620 (Harmanpreet Singh Ahluwalia and othersvs State of Punjab and Others), in which, the Apex Court has held as follows:

"29. The said principle has been reiterated in All Cargo Movers (India) (P) Ltd vs Dhanesh Badarmal Jain stating "16. ... For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for thepurpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when/it is found to be mala fide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice".