• Queries of NRI victim of 498A

An FIR was registered on me and my parents in sections 498A/406/506. My wife moved to India living with her parents while I live and work abroad now. Status is under investigation, chargesheet not filed.

My parents have received the notice from police to attend investigation. I didn't receive as my address in abroad is not known to my wife.

I have few queries based on how the case might proceed.

1) The woman SI who calls my parents to harass said that an LOC has been issued on my name. Can LOC be issued before chargesheet filed? Can LOC be issued before police notice delivered to me? Can LOC be issued without pending arrest warrant issued by court?

2) Can FIR be quashed before chargesheet is filed?

3) What stage is Non Bailable Warrant issued? Before or after chargesheet filed?

4) What stage is Proclaimed Offender status issued? One of my legal friend told me 498A is not in sec 82 list of crimes for which PO can be declared. Could you confirm?

5) Heard from legal friends that Red Corner Notice is not posted by Interpol in 498a cases anymore as its a marital dispute, maybe only in exceptional cases where the case is strong from complainant side. Could you confirm?

6) Also could you confirm that passport cancel or impounding for an NRI in 498a case is not easy except in exceptional circumstances based on few judgments from high courts and supreme court.

7) NRI if issued LOC/NBW/PO can travel to other countries without any issue exept India aslong as RCN not issued or passport not cancelled. Could you confirm?

Please advise above based on practical considerations instead of theoretical fears an NRI should live in, especially for some false cases primarily registered to extort money.
Asked 7 years ago in Family Law
Religion: Hindu

2 answers received in 1 hour.

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11 Answers

The answer to your queries is as under:-

1. Look out circular (LOC) can be issued by police though after registering FIR, normally it is issued after investigation is complete.

2.Quashing of FIR can be approached once chargesheet is filed in this case, however, I suggest,your parents should immediately approach District court for AB in this case.

3.Warrant can be issued before chargesheet is filed.

4.PO can not be issued in 498a case

5.Impoundig of passport will depend & ordered by the court after the trial and upon severity of offence, and hence you should not fear about that.

6.In case LOC is issued against your Indian passport , you will definitely be asked questions by visa officer once you

return to US after visiting any other country and need stamping on your passport . If no stamping is required and and there is a soft hit given by consular then there should not be a problem.

Sushil Jha
Advocate, Patna
283 Answers
5 Consultations

5.0 on 5.0

Hello,

I understand the situation you are going through from the long list of queries you have posted, let me answer them point wise :

Ans 1) LOC is document issued by the authorities to trace the absconding person who is wanted by law enforcement authorities. Once issued, flag is raised at all immigration entry and exit borders of India including airports and sea ports. Issuing LOC is become like ordering Pizza for Police Officials.

Why LOC is issued

Not to allow criminals to leave the country

Not to allow criminals to enter the country with being aware

To Trace the absconding criminals

To Harass NRI’s by Police officials (non – technically)

Yes LOC can be issued if you are not in the country and FIR has been lodged against you.

Ans 2: Yes FIR can be quashed before filing of the charge sheet, rather FIR can only be quashed before filing of the charge sheet, after filing of the charge sheet charge sheet quashing is filed.

Ans 3: After filing of the charge sheet you will be served with summon and if you still abscond you will be served with non balaiable warrant and post that a bailaible warrant will be served upon you.

Ans 4: Yes PO can be declared of you dont appear even after the Non-bailaiable is issued.

Ans 5: Red corner notice are not usually issued now.

Ans 6: you are right when you say this.

Ans 7: if the same is conveyed to the embassy, then there might be an issue.

See I suggest you to go for FIR quashing and till then ask your parents to cooperate in the investigation; being an NRI I suggest you to not to come to India till filing of the chargesheet and prefer a FIR quashing till then.

Regards

Anilesh Tewari
Advocate, New Delhi
18079 Answers
377 Consultations

5.0 on 5.0

1) LOC would not be issued unless notice has been issued against you to appear before the IO

2) FIR can be quashed only in exceptional circumstances. Wait for investigations to be completed and charge sheet filed then apply for quashing

3) NBW is issued if inspite of receipt of summons you don't attend court

4) proclamation is issued if inspite of NBW being issued you don't attend court

5) impounding of passport can be done by RPO if non bailable warrant has been issued against you on 498A case

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

1. When you came to know that the FIR has been filed you should have immediately applied for AB, which could have been done without you coming to India.

2. Your failure to apply for and obtain AB gave police sufficient time to seek a LOC which has now been issued. You will now be arrested and detained when you land at the airport. Application for cancellation of LOC should be filed to the trial court at the earliest.

3. The FIR can surely be quashed even before chargesheet is filed, but in your case under no circumstances it will be quashed as there is LOC standing against you.

4. Blue Corner Notice is now posted instead of Red Corner Notice in 498A cases.

5. The passport will surely be impounded in due course of time if you continue to evade the courts. Apply for cancellation of LOC at the earliest.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. Loc is issued after long time of FIR. Within short time of FIR it is not issued. So apply n court to revoke it.

2. Unlikely

3. In this case only non-bailable warrant would be issued

4.Your friend is wrong.

5.Yes, t is right

6. Yes, it is equally right

7.Yes

Anyway do not waste much time and take anticipatory bail to avoid future complications which may not be easily solved.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1. The woman SI has exaggerated while stating that LOC has been issued. First of all warrant shall have to be issued and after not being able to arrest you LOC will be issued. however, you do not know whether warrant has already been issued or not.

2. No. Most of the High Courts do not entertain quash petition before charge sheet is filed by the police.

3. NBW can be issued before filing of charge sheet. Non-bailable warrant is issued to bring the person to court when summons and bailable warrant would be unlikely issued. If it is found by the Court that Police authorities are unable to find the person to serve him with summons or it is considered that the person could harm some one if not placed in to the custody immediately, NBW is issued.

4) Sec. 498A does not come in the list for declaring the offender as PO. However, the Court may publish proclamation requiring the accused to appear before the Court.

5. Yes, RCN is issued in extreme cases of offences and not against ordinary 498A complaints.

6. Passport is ordered to be impounded in extreme cases though it will be difficult when the complainant will be able to establish her allegation as extreme matter in collusion with police for which it is always adviasble to appear before the court to face trial.

7. An offender against whom RCN has been issued is likely to be arrested at the airport of any country he lands which is not the case for offenders with LOC/NBW/PO.

8. Practically speaking, it will be prudent on your part to arrange to appear before the Court at the 1st available opportunity to face trial after availing Bail.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. If the police are enable to trace your address, thy may recommend to the authorities to issue LOC through court or the Collector, but this should be after failure of all efforts to trace the accused and not merely based on the criminal complaint

2. A petition for quashing FIR may be filed before high court before the charge sheet is filed

3. Non-bailable warrant shall be issued by court only after the case is taken on its file.

4. The accused cannot be declared PO for this offence

5. RCN is generally not issued for matrimonial dispute cases

6. At any cost your passport can neither be impounded nor be cancelled even by court except for the circumstances under section 10 of passport act, that too by the authorities only.

7. Yes, he can travel

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

1) there are number opf lawyers on this website from tamil nadu . contact any of them

2) there is no harm in going in for medaition reason being 498A cases take 10 years to be disposed of

3) you cnnaot travel freely between differnt countries when LOC is issued

4) your brother need not worry as his name is not mentioned in FIR

5)the mistake your parents made was refusing to attend mediation . if they had attended mediation and it failed then court would have released your parents on AB

6) your parents have to coperate with investigations . if parents attended police station and cooperated in investiagtions thenthey can apply for AB

7) dont apply now . cooperate with police . agree for mediation then apply for AB

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

1. No

2. Yes

4. Use your private source to engage a lawyer or you may take my help.

5.No

6. it is unlikely.if you share the order of dismissal then further advice can be given.

7.It depends.if the first bail petition was dismissed on merit then second one is unlikely to be allowed.The lawyer does not seem to be expert in this field.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1. Normally, if a person fails to appear before the court even after being served a summons, the court issues a warrant of arrest. However, if the person absconds to avoid the arrest, the drastic step of Proclamation for Persons Absconding needs to be taken, which is described in Section 82..

Proclamation for person absconding (Section 82(1)) -

If the court has reason to believe that a person has absconded to avoid the execution of his arrest warrant, the court may publish a written proclamation requiring such person to appear before it at the specified place and time. The date and time of appearance must not be less than thirty days from the date of proclamation.

“The procedure laid down under Section 83 has to be followed strictly.

Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. The words “at any time after the issue of proclamation” are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Sections 82 & 83 Cr.P.C. are to be read in harmony.

2. The look out circular shall be valid only within Indian territories.

The request for opening of LOC is required to be made to all immigration Check posts in the country in the Official Format prescribed by the MHA.

The request for opening of LOC must invariably be issued with the approval of an officer not below the rank of Deputy Secretary to the Government of India/Joint secretary in the State Government/Superintendent of Police concerned at the district level.

An LOC is valid for a period of one year. However, in case the originating agency wants to extend the validity beyond one year it can ask for the extension before the expiry of the one year period. If no request is made for the extension of the LOC within the stipulated period of one year, the Immigration Officer concerned is authorized to suspend the LOC.

However there is no restriction to travel to other countries from another country other than India during the effective period of LOC

3. You have rights to disengage the current lawyer and engage another lawyer found to be genuine.

4. To find a good and genuine lawyer you have to rely upon your own sources who may help you to find one of your choice/desire.

5. Until it is confirmed, let him not be worried about this situation, confirm if his name is still in the charge sheet.

6. You may obtain a copy of the bail dismissal order and find out the facts as contained in the order.

7. There is no restriction to file AB second time even if it was dismissed at first instance.

However you may have to confirm the details and cross verify the same with that of your lawyer, through your own source.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

1. Ordinarily NBW is issued after the charge sheet is issued.. No PO is declared in 498A cases.

2. You can travel between different countries skipping India in the given circumstances.

3. This is the virus which has entered in to the legal profession which was once considered a noble profession. You win 80% of the case if you can select a sincere and honest lawyer.

4.You shall have to look for such lawyer carefully.

5. Your brother is out of the case now since his name is not in the FIR as accused.

6. Why AB petition was filed before the high Court directly at the first instance? It should have filed before the lower court first and after being rejected, you should have approached the high court. What reason was shown by the High Court judge while rejecting the AB petition?

7.Unless there is some developments, the High Court will not pass order for AB when it has already rejected the said AB application.

8. Getting AB against 498A FIR is not at all difficult now a days, that too for old people like your parents. It appears that things have not been properly handled.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

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