Possiblity of Quash of FIR / Chargesheet/ Cognizance in 498a

[Nicemind Nicemind]

Respected Experts,
Please advice me in my case u/s 498a and DP act 3/4

Brief Details of Case:
FIR was registered by my 498a wife in month of April 2015 against three persons,
a. My Self
b. My Father, (Now 76+ Years Old)
c. My Mother, (Now aged 72+ years Old)

My Parents got Anticipatory Bail (from Session Court/ District Judge Ranchi, in 2015) and now on regular bail .

Charge Sheet (dated 31-July-2015) was submitted in Court on 18-August-2015
Police investigated with biased mind, Based on oral statement of witnesses from my in-laws house and their neighbors, Submitted report that allegation against us u/s 498a, and DP act ¾ seems to be true.
No MLR, No injury, no recovery, no documentary evidence, no bills of Gifts, jewelry (Valued 1 lakh) as alleged to be given at time of marriage, No statement of my neighbors.
From very beginning police assumed us guilty, pressurized for compromise and take my wife back. And in mechanical manner closed the investigation.

My Anticipatory Bail Application was Rejected by Session Court, and Jharkhand High Court (Reason behind was I did not agreed to Compromise with my wife).

In Supreme Court the Judge refused to entertain my SLP, reason cited is Submission of Charge Sheet, and dismissed with Comment that I may go for regular.

Charge Framing not yet done.

Till date I avoided to surrender in judicial magistrate court, the reason is here in Jharkhand Husbands do not get bail unless they agree to compromise with 498a wife. And once in custody pendency in court is such that it may take 60 to 90 days or more in high court to get bail application disposed.

Meanwhile on 30th June 2017 the Lower Court had passed order to issue Non Bailable Warrant against Me directly. No summon or Bailable warrant had ever been issued for me.

I filed revision application in Judicial Magistrate court, the order to issue non Bailable warrant was set aside, but a direction was given to me to Surrender within 15 days , failing which Judicial Magistrate will be at liberty to issue Non Bailable Warrant again

I am filing 2nd Anticipatory Bail Petition.

The Allegation against me in FIR lacks basic ingredients of 498A, and DP act 3 /4 (Views of expert who reviewed the FIR) and FIR Contains cryptic & general omnibus allegations with no date reference, only date mentioned is date of marriage, (in 2010), and Date 10th March 2015 when her parents dropped her at my home.

In view of above I feel that one or more of following option can also be exercised:
a. FIR Quash
b. Charge sheet Quash
c. Cognizance Quash
d. Discharge

Seeking view / suggestion of experts in this regards, and feasibility of above options, or more appropriate steps as suggested in this matter.

Best regards,

Arvind Kumar

[Dr. Ashok Dhamija]

Firstly, you have mentioned that you are filing the second anticipatory bail application. Once the case has already been charge-sheeted, there is no point in seeking anticipatory bail since it would not be granted. This is what in fact has been told to you by the Supreme Court also, when it rejected your anticipatory bail application on the ground that charge sheet has been filed and it asked you to seek regular bail.

Regular bail will be granted only if you are arrested or if you surrender on your own before the court.

Secondly, once the charge sheet has been filed, there is no point in going for FIR quashing, charge sheet quashing, etc. These will be possible only from the high court, which is likely to direct you to go to trial court in view of charge sheet filed. You should try for discharge from the trial court (the 4^th option mentioned by you), which is the best option if you feel that there is no evidence to make out offences, as alleged, against you.

Otherwise, you may have to face trial and show that you are innocent.

     

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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.

[Nicemind Nicemind]

Respected Sir,
Thanks for detailed replay and clarifications.

In this regard I have one more query.

If I File Surrender cum Bail application in Judicial Magistrate’s Court (Where My Case is listed)
And at same time I file Discharge Application. (Can I file it on the day I file the Surrender Cum Bail Application? )

If yes then Which Application will Considered 1st by Judicial Magistrate Court?
Surrender Cum Bail Application or Discharge Application?

best regards.

[Dr. Ashok Dhamija]

Though there is no hard and fast rule as to which application will be heard first, generally speaking the surrender / bail application will be heard first, if it is filed at the same time along with the discharge application. This is so because the court may have to pass an immediate order when you surrender, i.e., whether to send you to jail or to grant you bail. When you surrender, this decision will have to be taken on the same day.

On the other hand, the discharge application may also require response / reply from the prosecution side and need not necessarily be decided on the same day. In fact, the discharge application may perhaps need detailed consideration if it raises serious issues.     

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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.

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