The Quashing of complaint or FIR relies on many principles which are consolidated by few Judgements of Hon’ble supreme Court only.
In a recent Judgement of Hon’ble Supreme court in Musstt Rehana Begum vs. state of Assam and anr. The Hon’ble supreme court has quashed the complaint filed by the Husband on the ground that the family court has decided the issue in wife favour. That she was not married prior to the marraige and husband has failed to prove the marraige.
The Hon’ble Supreme court relying on their own Judgement
n State of Andhra Pradesh v. Golconda Linga Swamy, a two-judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:
“5…..Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge.
So there are cases where there may be evidence but that may be inconsistent if that is the case the Hon’ble High Court will not interfere. But if there is no evidence then Hon’ble High Court may quash the proceedings.
Which happened in the above mentioned case as there was no evidence the case was quashed.
How your Organization can deal with Sexual Harassment at Workplace?
These days we hear a lot of harassment to women employees at a work place. It is the duty of the employer to ensure a safe working environment for women employees.
That is the reason why Sexual Harassment of women at work place Act(Prevention, Prohibition and Redressal) Act 2013 was passed by the parliament.
What Steps needs to be taken?
If your company has more than 10 employee then it is mandatory to constitute Internal Complaints Committee to prevent sexual harassment at Workplace.
How to constitute the committee?
Every employer of a workplace shall, by a!1 order in writing, constitute a Committee
to be known as the ” lnternal Complaints Committee”:
at all offices
(2) The lntcrnal Committee shall consist of the following members to be nominated by
the employer. namely: ·-·
(a) a Presiding officer who shall he & woman employed at a senior level at
workplace from amongst the employees:
Provided that in case a senior level woman employee is not available, the
Presiding Officer shall be nominated from other offices or administrative units of the
workplace
Provided further that in case the other offices or administrative units of the
workplace do not have a senior level woman employee, the Presiding Officer shall be
nominated by other workplace of the same employer or other department or
organisation;
(b) not less than two Members from amongst employees preferably committed
to the cause of women or who have had experience in social work or have legal
knowledge;
(c) one member from amongst non-governmental organisations or associations
committed to the cause of women or a person familiar with the issues relating to sexual
harassment:
Provided that at least one-half of the total Members so nominated shall be women.
(3) The Presiding Officer and every Member of the Internal Committee shall hold office
tor such period. not exceeding three years, from the date of their nomination as may he
specified by the employer.
What type of complaint committee can handle?
(i) implied or explicit promise of preferential treatment in her employment: or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status: or
(iv) interference with her work or creating an intimidating or offensive or hostile
work environment for her; or
(v) humiliating treatment likely to affect her health or safety.
What action the committee may take?
1. Warning
2. Written apology
3. Bond of good behaviour
4. Adverse remarks in the performance assessment
5. Debarring from teaching duties or duties as a guide or examiner or as a resource
person
6. Denial of membership of statutory bodies
7. Denial of re-employment or renewal of contract.
8. Stopping of increments/promotion
9. Reverting, demotion
10. Suspension
11. Dismissal
12. Any other relevant mechanism
Non compliance of the Act.
If your company is not implementing the provisions of the Act it can be fined upto Rs. 50000/-
Getting bail in 420 IPC is difficult task there is provision of pre arrest bail i.e anticipatory bail in 420 and post arrest bail in 420 i.e the regular bail.
Anticipatory Bail in 420
The main consideration judge takes while granting anticipatory bail in 420 is the existence of Prima-Facie case. That means if on the face of it there seems to be fraud or cheating without going to analysis of evidence if there is fraud then court can decline bail to accused. Bail in 420 then granted on stringent condition of pre deposit of money.
Its advisable to engage a competent criminal lawyer once a criminal complaint or FIR has been lodged. Once engaged, a suitable course of action including application for pre-arrest notice, notice bail or anticipatory bail can be decided upon.
Once decided, the Lawyer would draft an anticipatory bail mentioning the reasons for bail application and your version of the facts surrounding the matter. Application for bail is then made at an appropriate Sessions Court.
When the matter comes up for hearing, the Lawyer must appear and present the case. If the judge sees the case as fit, anticipatory bail is provided to the accused. In case anticipatory bail application is rejected in the Sessions Court, application can be made in the High Court. If the High Court also rejects the bail, application can be made in the Supreme Court.
Anticipatory Bail in 420 Conditions
While granting anticipatory bail, the Court can impose one or more of the following conditions based on the facts of the particular case:
Be available for interrogation by the police officer, as and when required;
Person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
Person shall not leave India without the previous permission of the court.
Kathua rape and murder case accused transferred to Gurdaspur Jail, Punjab: SC
Today the Hon’ble supreme court allowed the petition of the victim to transfer the case of an 8 year old girl who was Gang raped and Murdered at Kathua to Punjab.
Now the trial of the accused will be held in Pathankot court and the accused will be shifted to Gurudaspur Jail in Punjab.
The Hon’ble court has ordered for adequate security arrangements for a fair trial to be held in Punjab.
Later this year A 8 year old girl of Muslim nomadic community was brutally murdered and Gang raped in Kathua district of Jammu and Kashmir which caused lot of tension in the Muslim and Hindu Communities in the region.
Citing law and order situation in the area wherein the lawyer for the victim Ms. Deepika Rajawat was also not allowed to enter the court room allegedly by Kathua Bar association. The Hon’ble Supreme court today has passed a verdict to transfer the case to the other state i.e in Punjab.
The verdict of Supreme Court will now ease off the tension in the communities and will restore harmony. The safety and security of witnesses are of paramount importance when deciding such petitions.
The current law and order situation in the Kathua region is not conductive to conduct a fair trial and to uphold the principles of justice.
The political parties in Jammu region have made a communal issue of the incidence and many agitation and law and order problems have been caused in the region.
Indira Jaising Senior Advocate at Supreme Court is representing the victim family. It is astonishing to see that a community in Kathua region is shielding rapist. The act of accused person is highly commendable and shielding on such crime is a bigger crime.
Many a times in property related transactions property dealer makes you sign on certain blank papers to do deal with prospective buyers of the property they do sweet talks and get your signatures on blank documents to be used at later stages of transaction.
If your property dealer is honest then those documents will be used to honor the deal else will lead to litigation and eventually will land you up in jail also.
Modus operandi-How the documents can be misused
If you are putting signatures on multiple documents then these documents can be used as cash receipt and can be used as agreement to sell of a property which you are intending to sell. Now if one agreement to sell and receipts are there with one person then a civil case of specific performance that is to sell the property at very low rate to intended purchaser or a suit of recovery is maintainable based on receipts in civil court.
Now if two agreement to sell and two receipts are there with two different persons with respect to same property the a criminal case of fraud is made out in such cases.
How to avoid signatures on blank documents
Insist full printed document with no blank spaces.
Take one of your witness for attestation of document.
Do not leave any space between your signatures and printed document.
Have a photocopy of whatever you have signed.
What to do if you issue blank documents to someone
Issue immediately a legal notice to other party who has taken your signatures on blank papers so you have proof.
Issue a public notice in leading newspaper so that any third party may not be able to misuse it.
File a case mandatory injunction for delivery of documents.
Stay safe and be very careful when putting signatures
You receive a call from the police station and on the other line there is an Investigating officer is on the other side of the line.For one moment panic strikes you and you come to know that your wife has lodged a false 498a case against you and your family.
The Io asks you to visit police station so called CAW cell.
When you go and visit CAW cell harassment starts poring in the IO and other mediators starts pressurizing you to settle the matter. You gain strength and refuse to settle the matter and comes back to your home.
Then again you receive the call from the CAW cell to come and join then again then again….
Reasons for harrasment
These calls from CAW cell are against the law and just meant to harass you. Even if you join the mediation process and attend N number of dates present defence evidence to the IO. Still the CAW complaint gets converted into FIR and these calls fails to stop…
The reason for such calls is done with clear motive of harassment and put pressure to settle the issue with estranged wife and if you fail to settle then FIR is converted.
How to deal with police harassment.
As per the Delhi High Court Judgement they have prescribed certain guidelines which is envisaged under Section 41A of CrPC that a written notice with prescribed format has to be sent to the accused while summoning him to appear before IO. So if IO calls the accused i.e husband and relatives of the husband by making a mobile call that is impermissible as per law.
Anticipatory bail in 498a
Anticipatory bail in 498a is advisable and recommended
A family comes under pressure when they come to know that a FIR under section 498a has been lodged in police station.
The first cause of stress is call be Investigating Officer to join investigation to old parents, husband, husband sister or brother.
The trauma is whether they can be arrested or not.
It is not advisable to visit investigating officer without protection from the court this protection is termed as Anticipatory Bail.
The process of getting Anticipatory Bail in 498a
The chances of getting bail under 498a is quite high as I have already discussed in detail in one of my articles
The conditions of anticipatory bail are not very stringent but if they are stringent it can always be challenged. I have discussed in detail the conditions Conditional Anticipatory Bail 498a/406
(i) Police officers should be mandatorily required to issue notices under Section 41A Cr.P.C (in the prescribed format) formally to be served in the manner and in accordance with the terms of the provisions contained in Chapter VI of the Code. Model…
The conditions of anticipatory bail are not very stringent but if they are stringent it can always be challenged. I have discussed in detail the conditions Conditional Anticipatory Bail 498a/406
Therefore still the permission of getting kin and husband arrested is less. But family will never know whether the permission of arrest is granted or not so there is an apprehension of arrest in 498a and therefore it is advisable to get 498a.
Grounds to argue 498a bail application
Old parents this ground works if parents are old.
Prior divorce petition pending.
Strong roots in society
Ready and willing to join investigation.
Vague allegations
Delay in filing FIR
Return of streedhan articles.
Grounds for rejection of Anticipatory Bail in 498a
Generally the anticipatory bail in 498a is rejected when there is non- cooperation on part of accused in investigation and secondly on gravity of offence.
Otherwise court is lenient in granting anticipatory bail to old parents and other relatives.
what to do after getting anticipatory bail in 498a
Generally the IO will call the accused to court to furnish Bail bond and surety. Which is to ensure that the accused will keep attending the court.
is anticipatory bail amount refundable
There is no money actually deposited in anticipatory bail generally court will keep documents of the surety like the RC or FDR but no actual amount is deposited
cancellation of bail in 498a
The cancellation of bail can be filed in High court only when the cancellation is eminent due to breach of bail order. So strong grounds of breach needs to be pleaded
Courts View
Courts will ask for status from the IO. Gen really IO will tell the court that whether permission of arrest is granted or not and if it is not granted then the court will most probably grant interim protection of arrest for certain period of time i.e 7 days so that the IO. will send notice of arrest and on this notice the party will again apply for anticipatory bail in such circumstances.
This is right strategy to abate any arrest circumstances.
A Cheque Bounce case is a criminal case envisaged under section 138 of Negotiable Instruments Act. A cheque is said to have bounced because of below mentioned reasons.
Stop payment
Insufficient balance
account closed
signature mismatch
exceeds arrangement
Conditions necessary for cheque bounce
The cheque is bounced due to insufficiency of funds or all the above reasons.
A Legal notice is given within 30 days.
A payment of due amount is not made within 15 days time.
the payment was to be made for discharge of legally enforceable debt.
Strategies to fight cheque bounce
Dispute Legally enforceable debt.
Since onus is on the accused to prove that there is no legally enforceable debt here are the examples to show that there was no legally enforceable debt
Cheque bounced was given as Security
If the cheques were taken only as security for prompt repayment and those cheque were not indischarge of any debt or liability. The date on which cheques were taken there was no debt or liability Accused cannot be prosecuted under NI 138.
In the case of Joseph Vilangadan (Supra) the facts were that the Directors had given certain cheques as refundable security deposits to ensure due performance of their work. In the given facts and circumstances it was held that there did not exist any debt or liability and the cheques were given solely for the purpose of security and hence no action under section 138 of the Act was maintainable.
If there was no debt or liability at that point of time while issuing the cheque
The very scheme of procedure adopted shows that the cheques are not issued in respect of any current existing ascertained liability. The words “for discharge of any debt or other liability” inSection 138 of N.I. Act should be interpreted to mean current existing or past ascertained liabilities. The cheque issued in respect of future liabilities not in existence as on the date of cheque would not attract prosecution Under Section 138 of N.I. Act.
So even if security cheque is bounced the prosecution can be initiated and only defence is that there was no legally enforceable debt.
The Supreme Court on Wednesday directed that the stay in trials, in both civil and criminal cases, must not exceed beyond six months unless extended in exceptional circumstances. “We … direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order, such stay is extended”, said the bench of Justice Adarsh Kumar Goel and Justice Navin Sinha,
“The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized,” the bench added. The apex court also ruled that the lower courts could proceed after a six month period. This, the court observed, will prevent the accused from dragging the trial further.
The court further added that all the pending cases in connection with the Prevention of Corruption Act or all other civil or criminal cases, “stay will automatically lapse after six months from today unless extended by a speaking order on above parameters.” The court believed that a stay in the trials or prolonged trials often results in frustrated victims.
“It is well accepted that delay in a criminal trial, particularly in the PC Act cases, has a deleterious effect on the administration of justice in which the society has a vital interest. Delay in trial affects the faith in rule of law and efficacy of the legal system. It affects social welfare and development,” it said.
“Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint. Mere prima facie case is not enough. The party seeking the stay must be put to terms and the stay should not be incentive to delay. The order granting a stay must show application of mind. The power to grant a stay is coupled with accountability,” the bench added.
The court asked the high courts to issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly period at the trial stage.
Once the Fir U/s. 498a/406 is registered it is better option to take anticipatory bail in the offences as read in the FIR. I have already discussed the chances of anticipatory bail U/s. 498a and 406 in my previous article of chances of getting anticipatory bail in 498a But when you move for anticipatory bail in the court the court may impose certain conditions like depositing a demand draft of certain amount in the name of wife and the complainant as a part of maintenance. Now these conditions such are ultravires to the provisions of section 125 CrPC and these type of orders can be challenged in higher courts. When a specific provision is there for maintenance of wife and child such conditional anticipatory bail in 498a is against the law.
Supportive Judgments
In Narinder Kaur V/s State(NCT of Delhi) 2007(141)DLT 761
Complainant father in law released on anticipatory bail and petitioner, mother in law granted bail on condition of depositing Rs. 50000 by way of demand draft in the name of complainant complainant husband already paid Rs. in addition to deposit of Rs.1.25 lakh and she is disinterested in receiving Rs, 50000/- Both parties earning well and in dispute in ither fora condition of petitioner to pay complainant Rs. 50000/- set aside.
2. Munish Bhasin Vs. State 2009(2) RCR (Crl) 247
Provisions of 438 discussed
From the perusal of the provisions of sub-section (2) of section 438, it is evident that when the High Court or the Court of Session makes a direction under sub- section (1) to release an accused alleged to have committed non-bailable offence, the Court may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including (i) a condition that a person shall make himself available for interrogation by police officer as and when required, (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer, (iii) a condition that the person shall not leave India without the previous permission of the Court and (iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. Sub-section (3) of Section 437, inter alia, provides that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the following conditions-
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
The Court may also impose, in the interests of justice, such other conditions as it considers necessary.
Conditions which can be imposed
It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub- section (3) of Section 437 of the Code. Normally, conditions can be imposed
(i) to secure the presence of the accused before the investigating officer or before the Court,
(ii) to prevent him from fleeing the course of justice,
(iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or
(iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code.
While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code.
When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438of the Code.
The condition imposed by the High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and child is onerous, unwarranted and is liable to be set aside.
The Hon’ble supreme court in recent judgement set aside condition of deposit of Rs. 500000/- compensation to wife as part of condition to bail in case of by supreme court.
ot exceeding three years, from the date of their nomination as may he
In the case of 