March 27, 2018 at 3:05 am #4276
Respected Sir/ Madam,
My query is that my son’s wife had filed false 498a private complaint case, DV and 125 Crpc against my son and family members. After 8 years of litigation now both parties have arrived for an amicable settlement and filed a MOU in which every condition is mentioned for withdrawl of cases and the compensation payout. 1st motion is done and as per MOU before the second motion the opposite party will withdraw all the cases and attach the orders for withdrwal and application.
My query is that can 498a private complaint, no fir/chargesheet filed,trial also not started,its a summon warrant case, can it be withdrawn along with the DV under section 257 crpc.125 Crpc was also filed and coz of negligence of my lawyers it was disposed of as uncontested as they never let me do the cross examination. In their cross the opposite party had accepted whatever we had filed in the reply.WHat are the repercurssions of this. Please note a MOU is duly signed by both the parties based on terms and conditions agreed.
I would appreciate your professional advise on the same. What precautions should be taken before giving them the final payout .
Thanks in advance.
March 27, 2018 at 6:34 pm #4280
Dr. Ashok DhamijaAdvocate
Section 257 Cr.P.C. is applicable to summons cases. A summons case means a case where the maximum punishment prescribed under law is up to 2 years. However, for an offence under Section 498-A IPC, the maximum punishment is 3 years, and therefore, it is not a summons case. It is a warrant case, for which the provisions of Section 257 Cr.P.C. are not applicable.
Since it is a private complaint case under Section 498-A IPC and trial is yet to begin, as mentioned by you, the complainant can try filing an application before the Magistrate for withdrawal of the complaint. If the Magistrate has not taken the cognizance, it may perhaps be allowed to be withdrawn. But, even otherwise, in my opinion, on the basis of such withdrawal application, it should be possible for the Magistrate to discharge the accused under the provisions of Section 245(2) Cr.P.C., which is reproduced below for your information:
“(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.”
If this method does not work, then you have to file a petition before the High Court under Section 482 Cr.P.C. for quashing of the proceedings on the basis of the compromise between the parties.
As regards the complaint under the provisions of the Protection of Women from Domestic Violence Act is concerned, and also application under Section 125 Cr.P.C. for maintenance, I think it should be possible to withdraw the same by filing an application for withdrawal of the same.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
March 28, 2018 at 3:14 am #4283
Thanks so much for your valuable legal advise, appreciate it. I just missed on one thing, we did file the 482 Crpc in the high court for quashing the complaint when we were summoned initially and highcourt had directed the lower court
However, in view of the fact, if the applicant appears before the courts below
within thirty days and applies for bail, it is expected that the same will be
considered and disposed off expeditiously, if possible on the same day, in
view of the principles laid down by Full Bench of this Court in case of
Amarawati and another Vs. State of U.P., reported in 2004(57) ALR-390 and
by the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. reported in
2009 (4) SCC 437.
With these observations, the present application under Section 482 Cr.P.C. is
hereby finally disposed off.
Son had applied for bail and he was granted the same based on the facts observered by the Hon’b;e court. Later on the discharge applications were rejected , due to lawyers unprofessional behaviour and negligence towards his clients and justice despite everything was provided”
Court had given us a date for the 2nd motion and all the cases were listed on the same day. Can you please put your valueable suggestions as if 2nd motion is set on xyz date, as per MOU the agreement statement is after the 1st motion the opposite party will withdraw all the cases (filed against, the respondents, before the 2nd motion and will attach the applications and orders to the petition when 2nd motion will be executed). What if the opposite party did not attached the application for withrwal and the orders? We have made it clear unless we have the withdrawl orders, along with the decree, then the final pay out compensation will be paid.
Additionally we had filed 340 crpc , where in the in cross of 125 CRPC, they had admitted that there was no harrasment caused ,no dowry demand, still by the unprofessionalism of the lawyer the 125 crpc case was set aside and disposed of as uncontested (Despite of many requests my lawyer, did not shared the order, but when i saw it, i was in shock, as the court had disposed as uncontested as court was not told that , the opposite party denied for cross when he came there for cross that too twice). They did not let it happen. What should be the proactive measures that one should take as in the MOU and Joint petition filed by mutual consent divorce ,has a clause that the opposite party will not initiate any litigation for the said case and will withdarw all the cases before the 2nd motion on will.Till now no case has been withdarwn and if i check online case status the rest of the cases filled by the the opposite party are showing next date of hearing as different as , when he was there all cases were set on the same date.Can you please advise what is the actual procedure of withdarwl of criminal cases like 125crpc, 498a(Private complaint, no fir) and DV if parties agree for settlement out of the court by mutual consent. On top of that he had filed Divorce case under cruelity that was transffered to the city where his wife is residing deserting him for 8 years.
Appreciate your time and valueable advise on the same.
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