Sir, I have been working as a Dy. Commercial Tax Officer trapped to ACB on dt: [deleted] I have been accused of taking money for releasing lorries detain for the offense of incorrect value of the goods for which notices have been issued two days before for collecting tax penalty and other dues. In this context, I submit that my suspension is solely based on the report of ACB, alleging that I was trapped on 11-8-2016, when demanded and accepted Rs.1,00,000/- as bribe for doing official favour.the amount was kept in my car behind back seat without My knowledge. It is a fact that on 9-8-2016, I have checked and found four lorries transporting Granite illegally and without proper documents, therefore I have detained the lorries and issued demand notice to pay an amount of Rs. 1,80,000 towards tax and penalty for transporting the Granite illegally. It may not be an out of place to mention here, that on earlier occasion in January 2016, the defacto complainant was transporting Polished Granite slabs on the strength of bogus dealer, a non-existing firm. He admittedly confessed that duplicate waybills were prepared by morphing, therefore he was, made to pay an amount of Rs. 1,16,000/- towards Tax, Penalty and C.Fee. As the defacto complainant has confessed as having used 80 forged waybills in the name of bogus dealer, a case was registered in Police Station under Section 420, 477(A) and 406 of Indian Penal Code. The defacto complainant is a economic offender who is in the habit of transporting Granite under forged waybills, depriving the Government its legitimate revenues. The statement given by the defacto complainant on earlier ocassions dt: 18-1-2016 are available with me confessing that the present complainant has used bogus waybills in transporting granites and he will not resort to such acts in future along with tax, penalty and c fee paid details are available as proof. The complaint is made with a vengeance. So far charge sheet has not been filed in the court. I would like to be adviced whether i can prefer a Quash petition before Hon`ble court before charge sheet ..what are the merits of my case for in going for Quash proceedings before charge sheet.
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
wait for investigations to be completed
2) after charge sheet is filed then only apply for quashing in HC
3) HC is reluctant to quash FIR pending completion of investigations
4) please note that quashing is to be done only in exceptional circumstances
1. Quashing is very sparingly allowed and it is done in such cases where on bare perusal of the complaint the case appears improbable or highly implausible.
2. However in 50-50 cases quashing is a good option to try luck.
3. Do note though that in cases where charge sheet is still not submitted the high court considers such stage as premature and hence in such stage going for quashing would be a futle exercise.
4. In your case there is apparent merit .Hence wait till submission of charge sheet.
Generally the quash petition after filing charge sheet would be more meritorious than at the FIR stage.
the grounds what you state seem to be very genuine and found to have merits in your side, but how will you come to know what is there in the charge sheet.
Therefore in my opinion, you may wait for the charge sheet to be filed after which you may plan to file quash petition.
Discuss at length with your own advocate and take proper decision as per the prevailing circumstance
What is the effect of 164 statement in a ACB trap case. Whether it can be changed by the complainant changing his version in favour of accused. What is the procedure if I as a complainant want to change the 164 statement before a magistrate. Can this changed 164 statement be used in Quash proceedings In a High court against the FIR filed by ACB.
What is the effect of 164 statement in a ACB trap case.
Whether it can be changed by the complainant changing his version in favour of accused.
Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:
The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
Thus under the above circumstances, the confession statement made by the person under section 164 is purely an act of the decision of his/her own. There is no compulsion on the person to give a statement in favor or agaisnt the accused.
The impact of this statement can be seen during the trial proceedings only.
would like to be adviced whether i can prefer a Quash petition before Hon`ble court before charge sheet ..what are the merits of my case for in going for Quash proceedings before charge sheet.
In my opinion, it would be advisable to file the quash petition after the charge sheet is filed so that you can prepare defence accordingly to plead the same before high court in the quash petition.
Under section 164 the confession of the accused is recorded, so also the statements
of the witnesses. As per section 164(1) of Code Judicial Magistrate
or Metropolitan Magistrate whether or not having jurisdiction in the
case can record any statement or confession made to him in the
course of investigation. Section 164(5) of code empower the Judicial
Magistrate to record statement (other than the confession) which is
in the opinion of the Magistrate a best fitted to the circumstances of
the case. The Magistrate is also empowered to administer the oath to
the person making such statement. The statement of the witnesses
recorded in the course of investigation under section 164 of the Code
shall be forwarded to the Judge by whom the case is enquired into or
tried.
2) Section 164 of the code does not provide for recording of
any statement of an accused person other than a confession. This
section specifically provides record of two clauses of a thing i.e. (1)
the statement of the witnesses and (2) confession of a person accused
of an offence.
3) The statement made under this section cannot be used as a
substantive piece of evidence. But it can be used for the purpose of
corroboration. It can be used to cross-examine the persons who
made it to show that the evidence of the witness is false but that does
not establish that what he stated out of court under this section is
true. A statement made by a witness under section 164 of the Code
can be used for the purpose of cross-examining him and discrediting
his evidence in the session’s court.
3)reason of recording statement of witnesses under section 164 of the code is
to minimize the chances of changing the versions by the witnesses at the trial under the fear of being
involved in perjury.
4)Ramchander v/s State A.I.R. 1981 SC 1036 : 1981 Cr.L.J.
609:- When a witness whose statement under section 164 of the
Code was recorded was not sticking to his statement so recorded, the
Court should not rebuke him nor threaten him that he should be
prosecuted of perjury