1- A private person with no locus standi under the Waqf Act 1995 as well as its Amendment of 2013 has filed a civil suit for declaring a private property as a Waqf property by using a gazette notification pertaining to a different waqf property in the vicinity as if it pertains to our property and has obtained an injunction against the ongoing construction in 2013, in the I.A. which has been made absolute in 2015.
2- The same person had simultaneously filed a criminal complaint against us for the same cause of action and an FIR was issued in 2013 based on a reference by the criminal court to the police for investigation and report.
3- We defended the matter by filing necessary documents to prove that the plaintiff has no locus standi, that the Waqf tribunal has no jurisdiction, that the gazette notification pertaining to some other waqf property is being misapplied to our property, that the impugned gazette notification was issued without following due procedure as per the Waqf Act. thinking that once our property is proved not to be a waqf property, the criminal complaint would also be infructuous.
4- However it appears that while reassuring us all along that the police will report that the alleged offences have not been committed they have colluded with the complainant and have filed a charge sheet in 2015 (after a delay of more than 2 years) and have shown as if the accused were arrested and released on bail (On Muchalka) in the P.S. itself. They have even managed to show 6 hearings for Summons in the court, but we have not been served any Summons so far and the next hearing is on 18-12-2017.
My question is the course of action we should take to avoid standing trial in the criminal court, where the charges are under sections 34, 120A, section 295, section 295 A, and section 297 of India Penal Code. An urgent reply is solicited.
Asked 12 months ago in Criminal Law from Hyderabad, Telangana
Yes you have a case to prefer a petition under section 482 of Cr.P.C. to file a case for quashing of the charge sheet.
It may be noted that chargesheets usually are not quashed by the HC, but since in your case there has been a delay of 2 years and that no summons were ever served upon you, you can take a chance and file the same.
Moreover, SC has held that criminal favor can not be given to a civil dispute, show in your petition that the investigating agency acted hand in gloves with the complainant.
Contact a local lawyer
Advocate, New Delhi
1. First file a petition under order 7 rule 11 od cpc for rejection of plaint. The civil court has no right of adjudication in waqf matters. Only the waqf board has jurisdiction.
3. On the same ground file a petition for quashing in the high court.
4. If stay is not granted by high court you must apply for anticipatory bail as after submission of charge sheet court may issue warrant of arrest if your presence is not noted.
1) quashing is to be done only in exceptional circumstances
2) if allegations made in FIR do not disclose commission of offence FIR can be quashed
3)it is better you apply for discharge before trial court rather than filing for quashing in HC
Hi, what is your role in the current FIR .. Are you the accused or the complainant ..
1. Since charge sheet has been filed, the only option you have to take to avoid appearing before the Criminal court for trial is to file a quash petition u/s482 of Cr.P.C. before the High Court praying for quashing the FIR on the ground that the property in question is not the property you are holding and there has been a serious mistake continuoposly being made by the authorities in this regard.
2. The High Court will; hear you and also the police and other authority to submit their verson and on hearing both the parties, shall dispose the case accordingly.
1) Whether you have filed any Civil miscellaneous appeal against the order in IA and what is the status of the suit as on date.
2) When the complaint is filed and referred through the Hon'ble court and FIR, then they may arrest you and produce you before court. If you have not attended the court nor received any summons from court then, you have to put forth the same before court and also file writ petition before Hon'ble High Court to quash the FIR as without giving any summons and notice charge sheet is filed
Dear Mr. Vijay Jogle, Advocate Hyderabad.
Thanks for your reply.Can you call me tomorrow on 9160539423 or write to me on my gmail account; firstname.lastname@example.org?
1-W e have not filed any Civil Miscellaneous appeal against the order on IA.
2- The main suit O.S. 114 of 2013 on the file of Hon'ble A.P. State Waqf Tribunal is nder Trial, and the counsel for applicant is being marked as absent for the last 5-6 hearings, next hearing is in Feb. 2018.
3- The private criminal complaint was filed on 30-08-2013 by the same person who has filed the O.S. 114 of 2013 in the Hon'ble A.P. State Waqf Tribunal. It was referred to P.S. Malakpet on 01-10-2013. The FIR was registered soon after. A notice U/s 41 (A) Cr. P.C. DTD. 12-02-2015 was served on all the accused, requiring us to appear before the investigation officer N. Ranjith Kumar and clarify the allegations against us. We appeared in the P.S. before the said I.O. within the time specified in the notice and clarified the allegations not only verbally but in writing with a number of documents and photographs that the allegations were absolutely false, frivolous and un sustainable. Thereafter we were allowed to go home without any arrest or restraint. And the I.O.reassured us that he is aware that it is a false case and he will report to the court accordingly. Until the end of 2016, we kept checking with the court of the 7th. Addl. Chief Metropolitan Magistrate whether any report was filed by the P.S. Malakpet and there was no report. However in Nov. 2017, I inquired at the P.S. to expedite the report in order to close the case then I was told by the S.H.O. that they had already filed a charge sheet against us. The through online checking in the office of a lawyer I found that there have already been 6 hearings for summons and the next hearing is on 18-12-2017. None of us has attended the court so far nor received any summons from court.
Do we have to put forth these facts before the Hon'ble High Court while filing a Writ of Mandamus Petition before the Hon'ble High Court to quash the FIR or the Charge Sheet?
Do you mean to say that the Hon'ble High Court will quash the FIR since the Charge Sheet is filed by the Police without any court summons? Although a notice U/s 41 (A) Cr. P.C. DTD. 12-02-2015 was served on us.
Asked 12 months ago
Quashing of FIR and chargesheet is done by filing application under section 482 of cr pc
2) as mentioned earlier quashing is to be done only in exceptional circumstances
3) HC may direct you to face trial to prove your innocence before trial court
4) better option is to apply for discharge before trial court
Chargesheet will not be quashed on the ground that summon was not served, if 41 A Notice was served then police has performed their duty.
It will be quashed on the ground as mentioned earlier?
And writ of mandamus will not be issued in this case, you have been wrongly advised. An application under sec 482 of cr p c will be filed.
Advocate, New Delhi
1. The purpose of your filing the Writ Petition before the High Court is to get the FIR filed against you quashed which can be done by pointing out the loopholes detected in the charge sheet filed by the police.
2. Writ Petition is not filed for pointing out the procedural mistake of the trail court which shall have to be raised at the trial court only while attending the hearing on the next day.
3. Once you could get the FIR quashed u/s482 of Cr.P.C., it also will have adverse impact on the suit filed by the applicant being the said private person.
Since the police have submitted the charge sheet before court, you can do nothing about it at this stage,
You have to challenge the case in trial proceedings in court
You have merits in your side, you may even file a discharge petition on the basis of the documentary evidences in the same court or a quash petition before the high court