• 498-A, 304-B process for chargesheet

Dear Sir/Madam - I am an NRI and have 498-A/304-B filed against me in India. Unfortunately, this all happened after my wife committed a suicide. All the allegations of harassment/dowry against me put in the FIR are all false and am willing to fight the case. I am clueless of what needs to be done as the police is not filing charge sheet and my lawyer says, nothing can be done until the charge sheet is filed. Could you please guide me on this matter?
Asked 1 year ago in Family Law from United Kingdom
Religion: Hindu

Sir your lawyer is right before chargesheet much cannot be done as police shall present the investigation of case in the chargesheet ans based on that you have to take next step.

Though you can prefer the quashing petition before high court and. Can try getting FIR quashed based on the statements recorded by police further high court can direct police to file chargesheet and can expedite the matter.

Shubham Jhajharia
Advocate, Ahmedabad
19206 Answers
75 Consultations

5.0 on 5.0

yes you can file a petition in HIGH COURT FOR Speedy Trial , writ of Mandamus Under Article 226 of Indian Constitution against the Fundamental Rights

Raghu Raman
Advocate, Chennai
7 Answers

Not rated

1. Well, since there is no specific time perceived to submit charge sheet the Police under circumstances often takes full advantage of it.

2. It is not cleat how long the submission of charge sheet is pendning.

3. If it is almost six months since when the FIR was registered then you can file writ petition praying for direction on Police o complete investigation and submit the Police REPORT.

4 Now do note that mere falsity of allegations is not enough to quash the case after submission of charge sheet and hence it is advisable that you speed up the trial and try to end trial to comet out acquitted in no time.

Devajyoti Barman
Advocate, Kolkata
17780 Answers
251 Consultations

5.0 on 5.0

Hello,

Once you come to india you will be arrested , so better not come to India .

You can hire a lawyer and flile an AB . However police will file a charge sheet once the investigation is over.

Thanks and regards

Swarupananda Neogi
Advocate, Kolkata
1056 Answers
2 Consultations

4.8 on 5.0

I have come across many cases like this. It is unfortunate that you and your wife could not lead a happy married life and your wife is no more. There are some incidents that happen in your life and those incidents are so strong that they change your DNA.

Irrespective of the fact the charge sheet is filed or not you can file a quashing petition in the high court.

Its better to have a detailed discussion for concrete opinion.

SHRI GOPAL VERMA

ADVOCATE ON RECORD

SUPREME COURT OF INDIA

Shri Gopal Verma
Advocate, Delhi
204 Answers
1 Consultation

4.0 on 5.0

hello,

a petition for FIR quashing can be filed in the high court. you could have filed it when the FIR was lodged. there is still time. before the charge sheet is filed. a petition for charge sheet quashing can also be filed after the charge sheet is filed.

regards

Rahul Mishra
Advocate, Lucknow
4310 Answers
11 Consultations

5.0 on 5.0

Did you apply for anticipatory bail if not get the same first. Then you have to face the trail under the charges which will be framed once the charge sheet is filed by the concerned court.

Coming on to the other pretext you can paralely file a quashing petition in the concerned high court if you have primary evidence which can easily denote the death as sucide.

It’s really tuff to appear

Ruchit Dugar
Advocate, New Delhi
190 Answers

4.9 on 5.0

Hello,

A petition for quashing of the FIR can be filed in the HC.

Kindly share the copy of the FIR and let me know as to in which district the FIR has been filed and at which police station.

Regards

Anilesh Tewari
Advocate, New Delhi
16907 Answers
259 Consultations

5.0 on 5.0

Hope you are on the bail the court cannot interfere in the investigation process and police has to complete the investigation and file chargesheet in case you are feeling any harrassment from the police then you can file a mandamus writ petition in the High Court to get direction for police

Vimlesh Prasad Mishra
Advocate, Lucknow
5485 Answers
17 Consultations

4.9 on 5.0

You can complain to commissioner of police if police have failed to complete investigations and file charge sheet or closure report for considerable period

2) also file petition in HC to direct Police to complete investigations within stipulated period

Ajay Sethi
Advocate, Mumbai
66757 Answers
4037 Consultations

5.0 on 5.0

Firslty, what you lawyer is saying is with regard to the trial to be started.

Secondly, as you are in another country so for now you are not arrested otherwise things would have changed.

Thirdly, and there is a presumption in law if wife commits suicide within the seven years of the marriage then first doubt comes on the groom. And if it is supported by any prior civil or criminal complain by the wife then things get more worst.

Fourthly, then everthing is for the husband to prove his innocency.

Fifthly, but, yes if all the complains have been filed after she has committed suicide then you may have an edge in your case.

Sanjay Baniwal
Advocate, South Delhi
4894 Answers
11 Consultations

5.0 on 5.0

Wait for the chargesheet. If you feel the case is hopeless you can go for quashing of fir in hc

Prashant Nayak
Advocate, Mumbai
12732 Answers
22 Consultations

4.6 on 5.0

Have u granted anticipatory bail ?

Precise and further course of action can be advise on perusal of FIR and facts under which suicide committed and mode of suicide.

Yogendra Singh Rajawat
Advocate, Jaipur
13088 Answers
15 Consultations

4.6 on 5.0

1. Your lawyer is right as at this stage you have to wait for the filing of the final report by police.

2. If the delay in the filing of the chargesheet is inordinate then you can file a petition in the High Court to seek directions to police to conduct a fair and speedy investigation.

Ashish Davessar
Advocate, Jaipur
26131 Answers
781 Consultations

5.0 on 5.0

Dear,

Your lawyer is right here,follow his suggestion and pursue him to take some action urgently

in this matter.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

Q. My wife or her family is threatening to file 498a and they are very abusive. What should I do?

A. Safeguard yourself, your parents and your relatives.

1) Be very polite in all circumstances. Record all conversations (voice, chat, email, letters, etc.) with those threatening and keep the originals in a safe place. Never produce the originals before anyone, not even before your lawyer. You can buy Olympus W-10 voice recorder, which costs about Rs.4500. You can also buy a telephone recorder.

2) Write a complaint to your nearest police station, detailing about blackmailing, her false allegations and her unscrupulous behavior. And request in your complaint to make her stop the threats and abuses immediately.

3) File RCR (Restitution of Conjugal Rights). Remember to include conditions that she should agree on before she starts living with you again.

4) Collect evidence to prove that you have neither demanded dowry or have taken it anytime.

5) Collect evidence to prove that she moved out of the bond of marriage for no apparent reason.

6) If she does not already know, make sure that she does not come to know that any of your family members is an NRI.

7) Don't remain home during weekends and holidays. Have proofs of where you were. For instance, if you were in a mall, have a credit card transaction in that mall and keep the copy of that transaction.

Q. We went to the police, but they didn't write down what I stated verbally. What is the solution?

A. Simple. Write a complain letter yourself and submit the same in police station and get "received stamp" on xerox copy. If the police refuse to give a stamped copy, address your complaint letter to the "police officer in-charge, local area" and mention at the end of the letter that it is CC'ed to the SP. Then submit it to police. They are bound to take that and act on it. If they still do not give you a stamped copy, send it to the police by registered post and retain the acknowledgement.

Q. I fear that if the police take any action on my complaint, my wife will lodge 498a immediately? Should I still submit the complaint?

A. Yes. Simply tell the police not to act on it. Even if they say they will act on it, they will not (99.99%).

Q. When station in-charge of police station does not register the case, what can I do?

A. You have the below options.

1) Try to get the reason for not registering the complaint in written.

2) Approach SP of district.

3) Approach media.

4) Approach local heavyweights, NGOs, human rights activists, etc.

5) If any of the above does not work or you do not want to take these approaches, then the last and final solution will be to approach the court. Please read the judgment below which clearly states what you can do if police does not register your FIR.

THE HON'BLE MR.MARKANDEY KATJU, THE CHIEF JUSTICE

AND

THE HON'BLE MR. JUSTICE F.M.IBRAHIM KALIFULLA

W.A. No. 401 of 2005

6 . In our opinion, if it is alleged that a crime has been committed and some one goes to file an F.I.R ., and either the F.I.R. is not lodged at the police station, or, having been lodged, it is alleged that proper investigation is not being done by the police, then the remedy of the complainant is to make an application under section 156(3) Cr.P.C. before the Magistrate mentioning all these facts, and it is open to the Magistrate to direct the police to lodge the FIR and/or to do a proper investigation of the alleged crime.

Q. Is there anyway 498a can be averted at police station?

A. Yes. By effective bribing, 498a can be averted in police station permanently. But, if she has contacts, then it may not be possible.

Ganesh Kadam
Advocate, Pune
7453 Answers
65 Consultations

4.9 on 5.0

1. You are required to apply for and avail anticipatory bail first.

2. In case of suicide, AB petition might be rejected initially for which you shall have to approach higher courts for the same.

3. Since the charge sheet has not yet been filed by the IO, you have the opportunity to negotiate with him for submission of an early charge sheet leaving lots of legal loopholes which shall help you in contesting the allegations brought against you and get the FIR dismissed.

4. After the charge sheet is filed by the said IO with the desired loopholes, you can file a petition before the High Court u/s 482 of Cr.P.C. praying for quashing the FIT based on the said loopholes in the charge sheet filed by the IO.

Krishna Kishore Ganguly
Advocate, Kolkata
22506 Answers
594 Consultations

5.0 on 5.0

Your counsel is advising you in a right manner. On the other hand you counsel can file application to know status of the FIR's investigation. After the filing of the chargesheet, you will have to appear before the hon'ble court.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

Dear Sir,

It is very simple, if the police not filing the charge sheet, then you may seek quashing of FIR under section 482 of CrPC read with section 468 of CRPC (abnormal delay). The law is as follows.

========================================================================================

Sri Kunal Ratidhar Nagare vs State By Banaswadi Police Station on 23 February, 2018

Karnataka High Court

Sri Kunal Ratidhar Nagare vs State By Banaswadi Police Station on 23 February, 2018

Author: K.N.Phaneendra

1

IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 23RD DAY OF FEBRUARY, 2018

BEFORE

THE HON'BLE MR.JUSTICE K. N. PHANEENDRA

CRL.P. NO. 6464/2017

BETWEEN

1.

SRI. KUNAL RATIDHAR NAGARE,

S/O RATIDHAR B. NAGARE,

AGED ABOUT 33 YEARS,

R/AT NO.C1, DASHARATHA KRUPA

APARTMENT, 7TH CROSS,

KAGADASAPURA,

BENGALURU - 560 018.

2.

SRI. RATIDHAR B NAGARE,

S/O LATE BHIKAJI NAGARE,

AGED ABOUT 67 YEARS,

3.

SMT. REKHA RATIDHAR NAGARE,

W/O RATIDHAR B. NAGARE,

AGED ABOUT 60 YEARS,

BOTH ARE R/AT NO.23,

SAIBABA NAGAR, BALLARPUR,

CHANDRAPURA DISTRICT

MAHARASHTRA-442 701 ... PETITIONERS

(BY SRI. NARENDRA D. V. GOWDA, ADV.)

AND

1.

STATE BY BANASWADI POLICE STATION,

BENGALURU, REP:BY STATE PUBLIC

PROSECUTOR, HIGH COURT OF KARNATAKA

BUILIDNG, BENGALURU - 01.

2

2. SMT. SHEETAL KAWADE KUNAL NAGARE,

Indian Kanoon - http://indiankanoon.org/doc/85692287/

Sri Kunal Ratidhar Nagare vs State By Banaswadi Police Station on 23 February, 2018

W/O SRI. KUNAL RATIDHAR NAGARE,

AGED 33 YEARS, R/AT NO.4B,14TH B CROSS,

21ST "A"MAIN, SECTOR-1, HSR LAYOUT,

BENGALURU -560 008

... RESPONDENTS

(BY SRI. VEERABHADRA SWAMY H.P., ADV. FOR R2.)

THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO

QUASH THE CHARGE SHEET FILED AS AGAINST THE

PETITIONERS BY THE 1ST RESPONDENT IN

C.C.NO.55054/2016 FOR THE OFFENCE P/U/S 498-A

R/W SECTION 34 OF IPC AND 3 AND 4 OF DOWRY

PROHIBITION ACT PENDING ON THE FILE OF HON'BLE

XI ADDITIONAL C.M.M AT BENGALURU.

THIS CRL.P COMING ON FOR ADMISSION THIS

DAY, THE COURT MADE THE FOLLOWING:

ORDER

Sri. Veerabhadraswamy, H.P., Advocate, files vakalath for Respondent No.2.

2. Petitioner and 2nd respondent along with their respective counsels are present. Petitioner Nos. 2

& 3 are absent.

3. The parties have compromised the matter between themselves and they have produced a

Memorandum of Settlement entered into between themselves before the 6th Additional Principal

Judge, Family Court at Bengaluru, in M.C. No.3725/2010, wherein both the parties have agreed to

the terms and conditions mentioned therein and also the 2nd respondent has agreed to co-operate

with Petitioner No.1 for closing/quashing C.C. No.55054/2016. The parties have accepted the said

Memorandum of Settlement before the Family Court and in turn, the Family Court has accepted the

same and granted the Decree of Divorce as prayed by the parties to the said proceedings.

4. There is no dispute that Petitioner No.1 and the 2nd respondent were husband and wife and due

to some family differences, the 2nd respondent had lodged a complaint, which later culminated in

C.C. No.55054/2016 for the offence under Section 498-A r/w. Section 34 of IPC and also under

Sections 3 & 4 of the D.P. Act.

5. At this stage, it is worth to note here a decision of Hon'ble Apex Court rendered in Gian Singh Vs.

State of Punjab and Another [ (2012) 10 SCC 303], wherein the Hon'ble Apex Court has given

certain guidelines with regard to quashing of the proceedings whenever the parties have entered

into compromise. The relevant portion of the said decision reads thus:- .

"Held -Power of High Court in quashing a criminal proceeding or FIR or complaint in

exercise of its inherent jurisdiction is distinct and different from power of a criminal

court of compounding offences under S. 320 - Cases where power to quash criminal

Indian Kanoon - http://indiankanoon.org/doc/85692287/

Sri Kunal Ratidhar Nagare vs State By Banaswadi Police Station on 23 February, 2018

proceedings may be exercised where the parties have settled their dispute, held,

depends on facts and circumstances of each case - Before exercise of inherent

quashment power under S.482, High Court must have due regard to nature and

gravity of the crime and its societal impact. .............

Thus, held, heinous and serious offences of mental depravity, murder, rape, dacoity,

etc., or under special statutes like Prevention of Corruption Act or offences

committed by public servants, cannot be quashed even though victim or victim's

family and offender have settled the dispute - Such offences are not private in nature

and have a serious impact on society.

xxx xxx xxx xxx xxx xxx

"But criminal cases having

overwhelmingly and predominatingly civil

flavour stand on a different footing - Offences arising from commercial financial,

mercantile, civil, partnership or like transactions or offences arising out of

matrimony relating to dowry, etc. or family disputes where the wrong is basically

private or personal in nature and parties have resolved their entire dispute, High

Court may quash criminal proceedings - High Court, in such cases, must consider

whether it would be unfair or contrary to interest of justice to continue with the

criminal proceeding or continuation of criminal proceeding would tantamount to

abuse of process of law despite settlement and compromise between parties and

whether to secure ends of justice, it is appropriate the criminal case it put to an end.

If such question(s) are answered in the affirmative, High Court shall be well within its

jurisdiction to quash the criminal proceedings..."

6. On careful perusal of the factual aspects of this case, in my opinion, that this case also falls under

the categories of the cases as per the guidelines of the Hon'ble Apex Court. Therefore, there is no

legal impediment to quash the proceedings in order to facilitate the parties to live happily in future.

Hence, the following order:ORDER

Petition is allowed. The Memorandum of Settlement filed by both the parties

is hereby accepted. Consequently, the case in C.C. No.55054/2016 (Arising out of

Crime No.680/2015 of Banasawadi P.S.) registered against the petitioners for the

offence punishable under Section 498-A r/w. 34 of IPC and also Sections 3 & 4 of the

D.P. Act, on the file of the XI-ACMM, Bengaluru and all further proceedings therein,

are hereby quashed sofar as the petitioners are concerned.

Sd/

JUDGE KGR*

=========================================================================================

NO LIMITATION FOR OFFENCES MORE THAN 3 YEARS PUNISHMENT

Section 468 in The Code Of Criminal Procedure, 1973

468. Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only

1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974 ), s. 2 end Sch.

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

(3) 1 For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]

Kishan Dutt Kalaskar
Advocate, Bengaluru
4405 Answers
112 Consultations

5.0 on 5.0

You have to first obtain AB.

The police will file charge sheet after completion of enquiry and investigation.

If you have not been summoned for investigation then you may have to wait because after that only the police will file the report and the charge sheet before court.

If you have decided to challenge the case in court then you may have to wait for the police to file charge sheet.

Before that you must remember that once you get AB you will not be permitted to travel back to UK till the disposal of the case.

T Kalaiselvan
Advocate, Vellore
56549 Answers
695 Consultations

5.0 on 5.0

Anticipatory bail is precautionary measure that you are not arrested by police

2) personal presence is necessary to apply for AB

3) you have to apply to trial court for cancellation of LOC

4) after charge sheet is filed apply for bail

5) you can with court permission travel abroad for work purposes

6) your lawyer will cross examine the witnesses to prove no dowry was taken by you

Ajay Sethi
Advocate, Mumbai
66757 Answers
4037 Consultations

5.0 on 5.0

a. Is getting an AB a mandate?

It is not the question of mandate, but it is the question of taking preventive steps to not get arrested hence you can think about it accordingly.

b. If I need to get AB, should I travel India? Would there be chances of me getting blocked there?

You may have to travel to India to get enlarged on bail but if the court imposes condition to deposit your passport, then you will be in deep trouble because you will not be able to travel back till the disposal of the case which may take years together.

3. The IO few months back mentioned that he has applied for LOC against me almost 10 months back. Will this LOC be lifted once the chargesheet is filed? Or How long will that be valid?

The LOC is valid for one year but it can be extended every year at the discretion of the competent authorities.

The LOC will not be lifted upon filing the charge sheet.

4. If the IO files the chargesheet, what should be my next course of action? Should I apply for a bail and be prepared to go back India until the case is resolved? Or is there an option for me to fight from the UK?

Do I need bail only if I am planning to travel India or is it needed even if I do not have any travel plans?

Once the charge sheet is filed you may better file a petition under section 482 cr.p.c seeking to quash the charge sheet on the basis of the documentary evidences you may rely upon.

5. The FIR had mentioned about 2 witnesses who are my in-laws relatives. I never met them in the past, but they mentioned about me and my family demanding for additional dowry, which was handed over to us couple of times in their presence. I am really unsure of how to prove what they are saying is false. Will the court validate any truthfulness of their statements or will just consider whatever the witness claims?

Can they bring in any such people from their family or friends and lie?

This is a matter of trial,

You can nullify their statement during cross examination by extracting the contradictions, however now that is not the stage, you may have to concentrate on the quash petition which is the only thing you can do it from remote that is from a foreign country.

T Kalaiselvan
Advocate, Vellore
56549 Answers
695 Consultations

5.0 on 5.0

1. It was not clear from your first query that you wife had committed suicide in UK.

2. Has she left any suicide note blaming you or anybody?

3. How was the FIR registered against you u/s498A & 304 B ? Who had lodged the said complaint and what evidence the IO has collected so far to put the said section 404 B of IPC?

4. Coming to the present situation, how does your lawyer proposes to advance in the criminal case filed against you with out your presence? The accused shall have to be present before the Court to face trial in criminal case. You shall have to either surrender and thereafter apply for and avail bail or shall have to apply for and avail AB.

5. You can get the AB petition along with the Vakalatnama sent by your lawyer to you at UK for your getting your signature put thereupon notarised by the appropriate officer of the Indian Consulate of your place for returning to your Indian lawyer to enable him to file it and move it for your availing the AB.

6. It is of course mandatory to appear before the Court physically to face trial as otherwise, the Court will issue arrest warrant which finally might lead to impounding your passport which will force you to return to India.

7. It shall be prudent on your part to avail AB and then face the rial and contest the case fittingly.

8. As per Supreme Court Judgement suicide even leaving s suicide note accusing the husband does not conclusively prove his involvement in causing the suicide.

Krishna Kishore Ganguly
Advocate, Kolkata
22506 Answers
594 Consultations

5.0 on 5.0

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