• Quashing of order

We had approached the police to file an FIR against a club and its committee members for cheating, criminal breach of trust and for using criminal force on a woman ie. myself. The FIR was never filed and so we approached the commissioner of police with the matter. After waiting for one month and getting no response, we approached the Judicial Magistrate to request him to initiate proceedings under Sec. 156(3) of Cr PC. After several months, the Magistrate passed the order and police was directed to investigate the matter and file their report. After many more months of regularly following up, the FIR was filed and after a further few months the report was submitted to the court. The police filed a "B" summary stating that the matter in concern was a civil dispute and the complainant had not understood the terms of the contract with the club. The Magistrate asked us for our say and after deliberating on the matter passed an order to register the matter as a regular criminal case. The complainant was asked to lead evidence and after this the Magistrate passed and order to issue process under sections 403, 406, 417, 420 r/w 34 of IPC against all accused and separately against 2 other accused committee members under sections 341, 352 and 354 of IPC and set a date for their appearance. Summons were issued, directing all the accused to appear before the Judicial Magistrate on the 18th of April but as expected all of them have evaded the summons and have approached the High Court for quashing the matter under section 482.
My question to you learned and experienced legal specialists is:
1. Can the accused approach the High Court for quashing the matter even before appearing in the Judicial Magistrate's court?
2. Will the High Court intervene in such a matter where I have conclusively proved every charge in my case to the Judicial Magistrate with all violations in law performed by the accused thereby making him pass such an order under the above mentioned sections?
3. The committee members are very affluent members of society and as they have threatened to take this matter to the highest level if required as money is not an issue at all to them. I have full faith in the judiciary of India, though a bit slow due to heavy work loads and lesser judges. Can this matter be bypassed from the Judicial Magistrates court?
Asked 7 years ago in Criminal Law
Religion: Other

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5 Answers

1)quashing is to be done only in exceptional circumstances

2) if allegations made in FIR denote commission of an offence HC would be reluctant to quash the complaint and direct the accused to face trial before the magistrate

3) chances of HC quashing complaint are bleak

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

1) Sec.64 & 65 of Cr pc deals with service of summons.

2) According to Sec.64 Cr.P.C., if the Accused is residing in a house and if at the time of service if the accused is not found in the house, the serving officer may serve the summons on adult male member of the family.

3) If there is no such adult male person, the serving officer shall affix one of the duplicate of the summons at the conspicuous part of the house.

4) If the summons are returned unserved or that accused is avoiding service of summons/notices intentionally, the complainant may ask the court to issue Non Bailable Warrants u/s 70 Cr.P.C

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

1. Yes the accused person can approach high court u/s 482 crpc.

2.It depends on the discretion of the high court. High court rarely allows quashing .

3.You get justice for sure. pursue your diligently.Engaged A good lawyer in high court.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1. There is no legal infirmity in the accused approaching high court seeking to quash the case pending against them before the trial court.

2. The high court will not decide the case without hearing the complainant/respondent. You can then establish your case and its merits before high court and strongly object to the petition and seek to dismiss it.

3. It is not as easy as what they say about this.

The court will analyse all the facts before taking any decision on this, especially your side merits and evidences you have relied upon in the trial court.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

How long can the accused evade summons? The Magistrate issued summons at both the official address of the Club to all the accused and also separately at all their residential addresses as per their statements recorded by the police. Even then, they haven't accepted the summons.

The summons can be sent once again if for the reasons the accused were not available to receive them, but if they have refused to accept the summons, then the court may issue non-bailable warrant to the accused.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

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