Straight legal opinion needed:false498,bail rejec highcrt

1. What the the simple,straight and effective options vailable to us  to get this FIR closed or atleast transferred from KOL.

'Closing the FIR' requires the FIR to be quashed by the HC in the exercise of its inherent jurisdiction. The HC can quash the FIR and the consequential proceedings u/s 482 Cr.P.C if the allegations, prima facie, point to a mala fide intent on the part of the complainant. Having said this, I hasten to add that the FIR quashing takes place in a very exceptional case even though thousands of petitions for quashing are filed in the HC every day. The approach of every HC judge to ascertain 'abuse of process of law' which is the fountainhead of the quashing jurisidiction, is different. As such, nothing can be said about the feasibility of applying for quashing without reading the FIR in detail.

Transferring the case to Mumbai will not be possible even if the offence has been committed at Mumbai. If the girl is residing at Kolkatta she can file the case at Kolkatta.

2. Right time and way to file our grievences (counter cases) for which we a evidences.

Only after all of you have been acquitted by the court.

The only two remedies I can contemplate for you are to either go for jurisdictional based quashing in the HC (which is mightly difficult to succeed in), or approach the SC for anticipatory bail if the accused have not been arrested. In 498A bail is the rule and jail is an exception. In all the 498A trials that I have handled and seen other lawyers handle, AB has been granted in virtually all the cases. As such, it surprises me when the AB is rejected for 498A.

The misery you are facing is not alien to many innocent families in the country who have been tormented by false dowry cases. In legal battles the moment you have lost hope, the battle is lost as well. There have been cases where persons committing murder were sentenced to death by the Sessions Court and the High Court but they were acquitted by the Supreme Court on an appeal. With good legal representation you can overcome this.

Ashish Davessar

Advocate

Supreme Court of India

Punjab and Haryana High Court

Hi Ashish,

Thanks for your reply.

1.Now what needs to be done either to Go to High Court (KOL) for quash which is highly improbable or to approach supreme court for AB ? what r d chances ? SIL has alleged dowry, and forced abortion as grounds to make her case strong.

2. I recd 1 opinion to file an application to M.Magistrate (KOL) , citing supreme court decision over jurisdiction  . Would that be effective ?

3.Meanwhile since supreme court is going on vacation in the meanwhile what else can be done to prevent arrests etc.

Thanks for d advice, we always had a good case , but these events of our absence and deliberate bail application made our case miser. we've not yet disclosed my mom abt the bail rejection, she may not be able to bear the shock.

Pl.advice.

Regards,

Payal.

Going to the HC for quashing at this stage would not be advisable. You may file the application to the magistrate but in the light of the factual scenario of the case it shall not yield the desired result. The sword of an imminent arrest is hanging over the head of all 3 of you. Thus, your immediate priority should be to obtain AB to pre-empt the possibility of the arrest.

The vacation bench of the SC continues to function even during the vacations to deal with urgent matters such as this.

Hi Payal,

Try to understand the system how does it works and below some points may stop the police to arrest any body.

1. Being the case is under investigation, you have every right to file counter case against the person who made flase case against your family, I support you to file as early as possible but no flase case from your side.
2. Show the evidences to the police to counter the your opposite people case but make sure that after your opposite party disclose all te details of their case you will disclose yours, else they my plan to get new allegation to implicate you in the case.
3. If you have very strong evidence to prove that your opposite side made allegations are false,please make case agaisnt them at your place involking section 179 of CrPC (jurisdiction provision for affected person).

Do not sit idle hoping tha tthe police will reveal the facts without your support and your information to them. If you really affected by the false case filed by your opponents you can always file case against your opponents, law never says counter complaint is not possible.

As you mentioned in the above post, file application in Magistrate court stating that that Magistrate COurt has no jurisdiction hence the FIR must be transfered to concern police station by the police.

Or

File petition in High Court seeking Orders to police to transfer of FIR to concern police station through police. In this petition in High Court again you can seek Stay of all proceedings including arrest of accused till disposal of Quash petition.

Just verify weather your High Court advocate is cheating you, beign you said your opposie party has influence... etc.

Also explore to file anticipatory bail again in High Court on relevant grounds. It is possible to file AB multiple ties on change of circumstances.

Ask the police to verify the documents that are submitted by your opposite to the police alaong with the compliant and you file application under Right To Information Act to get all the copies of documents those were submitted by your opposite and aslo ask the police about the information that is required from you (accused) to co-operate with the investigation.

This makes the police to think twice before they arrest you being there is no reaosn to arrest till complete invesitgation being you are supporting investigation.

This attitude makes the High Court to grant you AB being you are co-operating with investigation without any issues.

If you file counter case that could be change of ground for you to get Anticipatory Bail from High Court being you will be fighting the case and there will be remote chance that you will escape from law.

You may consult good advocates to get multiple options.

Simple rule that if you are innocent definitely you will go to police or court to get help or justice. Hence make your compliant/representation and get help/justice, then only anyone can believe you at leat at that time of your representation/complaint.

If you file counter case that could be change of ground for you to get Anticipatory Bail from High Court being you will be fighting the case and there will be remote chance that you will escape from law.

@ Munirathnam- May I ask you how would filing of a counter case by the author of the post furnish her and her family members a fresh ground to file for Anticipatory Bail in the Sessions or High Court? If anything, it will be a ground for the sister-in-law of the author to obtain AB. It is admirable to see someone endeavouring to help the innocent on the basis of the knowledge he gained as a result of  a personal tryst with the system, but your advice is a far cry from logic and practice. It is easy to become a theoretical lawyer by reading the legal stuff, but becoming a practical lawyer requires years and years of great synergy between theory and practice of law, just as it is not possible for me to be a scientist by reading something about NASA.

@ Author- Don't file any counter case at this juncture. The allegations against you are very serious. You are accused for harassing her for dowry and an even bigger felony of forcing her to abort. Your first priority should, therefore, be to obtain AB for yourself lest you and your other family members arryayed as accused persons, land up in jail. Don't expect the police to not arrest you. No consequences follow for a police officer if he arrests you once he has been vested with the power to arrest you.

The question is not if you can file a counter case at this point of time, but whether it will yield anything productive. The answer is NO. Don't let temptation overcome your sensibility. You will only compound your misery by filing futile counter cases. You are in the middle of turbulent high seas. Your immediate priority should be to reach the shore and not dream of landing on the moon.

Make an informed decision!

Ashish,

Do not say that the law in books is different from the law that is implemented.... this happens with your in efficient system and inefficient lawyers (Govt.) who never fought for clarity in law in favor of Citizens of India.

I filed counter complaint ahd made arrest of the 498A case witnesses and complainant. But every lawyers said that counter case is not possible.

Just by filing the counter case I got lot many evideces to suport my case as well as the case filed by my opposite. Otherwise all those evidecnes would have destroyed by now.... if I would have waited for trail till today.

Mr. Ashish, do not imagine that only lawyers can think and find the truth.... remember that the way scientist ding the things so deep to find the truth can never be done by lawyers..... if you have any challenge send your number through PM we will take some issue and prove it.

Surprisingly you did not state the problem in the approach I suggested. Means you did not understand the matter BUT STILL YOU MADE STATEMENTS.

Your approach never give justice and even if it gives it will be after 30 years from now....think about it.

@Payal,

Every lawyer says do not file counter complaint and at the same time they never say no soulution for the offense committed against you and your innocent family.... its strange that the real victim is not advised to file case against the actual criminal and the lawyers admit the inefficiency of their skill and the system in protecting the innocents. If accused has done anything then certainly accused should not file counter case else he/she must file compliant and get justice.

During the investigation of the 498A case the police never give oppertunity to the accused to hear the truth and to collect evidecne in support of accused hence they will get sotry by connecting the pieces of information from wife side and then report will be filed in court.

If this happens the accused is the party who drive the police to make false report against them..... because accused did not open the mounth to defend the flase allegations with the help of evidences that support accused.....

Ashish,

if you do not become scientist by reading NASA then its your inefficieny and it's your inability. And also you are thinking that by reading name of NASA you can become scientist. This is the depth of lawyer in this aspect but the scientist never think in this way....

Do you know that scientis never believe anything just by reading a book, they need multiple sources and results to belived any theory or result.... they verify the contects of book with experiments eventhough those were actual results from earlier experiments ....

But what most of the lawyers are doing.... just they cite Supreme Court judgement and argues in court .... opposite lawyer also comes with different set of Supreme Court judgements and orgues....

How come different laws exists ... what is the reference to say anything.

It is clear that people of India and also lawyers are not aware of actual law but still claims obeying the law.  Strange system and you are making comments on scientists.... great man.

You chose to write all this rubbish to me but did not answer the simple question I asked i.e ''How would filing of a counter case by the author of the post provide her a fresh ground to file for anticipatory bail?''  Perhaps, this speaks volumes about your 'inability',  'inefficiency' and moreover your conceitedness. 

As for Supreme Court judgments, let me tell you Mr.Scientist that I am not amongst the lawyers who are in the habit of citing never ending judicial precedents, for I have always believed that judges are no better expounders of law than lawyers. A lawyer who knows how to cross-examine (and you certainly don't rank amongst one as you sought suggestions on how to cross-examine in a post made just a few days back) would not even need to carry with him a long list of SC decisions. I have no interest in becoming a scientist. If my lack of interest coupled with your conceitedness is my perceived inability to become a scientist, then let it be.

A scientist would now teach me about the law? You go around asking lawyers what questions you should put to your wife in cross-examination and yet you label them as 'inefficient'. What should I call this, being impudent or simply ungrateful?

I have no challenge to throw at you. I accept challenges in the court and not on online forums. So, please don't bother sending me a PM or calling me up.

Dear Ashish,

By filing the counter case (genuine case) the person could get the evidence through the police and same could be used to get anticipatory bail being the opposite party (police/state) can not deny the incidents those will be shown to the court at the time of applying for anticipatory bail.

I do not know how you could miss this simple logic .... amy be you are thinking that I was suggesting to file false case, but it is not.

No, I was not thinking of you suggesting to file a false case. May I know a counter case can she file at this juncture which would have legs to stand in the court? 

After reading your reply I have only word to desribe it 'RUBBISH'. It is appalling to see someone like you not knowing the basics of law and yet going on giving legal opinions. Please don't do this as it can seriously compound the agony of an individual who may act upon it due to his sheer ignorance about the practice and procedure.

You check the status of T.P (Crl) NO: 5/2010 on the file of Suprme Court. Its my case.

Brief facts:

Wife filed 498A at her place and police investigated at her place and filed charge sheet at her place. After charge sheet is filed in court husabnd filed case against the wife and LWs at his place U/s 120B of IPC, 500 IPC, 384 IPC etc.

Police initially refused to investigate and later through Court i made FIR registered. During investigation I got many documents that are required to defend the false 498A against me.

Ref:

Judgment of Hon’ble Supreme Court of India in case of Babubhai Vs. State of Gujarat & Ors. [2010] INSC 663, in this case Hon’ble Supreme Court of India held that:

“Recording of more than one FIR in respect of same acts committed on the ground that the police is required to register the FIR on the basis of the information provided and that "where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible".