• Quashing of FIR u/s 376 & 493

Palash (33) & Puja (30, MA, BED) had Friendship & love relation for last 6-7 years. But when puja & her family came to Palash & family for marriage proposal, palash denied marrying the girl due to some reason. After creating some political pressure on Palash’s family, Puja lodged a FIR on 29.10.2013 against Palash with the help of some political leader. In FIR Police charged the sections 376 & 493 and started investigation. The text of the FIR was as follows:

[I am Puja of -----------------------, I have love relation with Palash for last 7 years. But now he is not ready to marry me. He has physical relation with me on the basis of promise of marriage more than one occasion.  His friends (X,Y & Z etc.............) know everything. Kindly accept this letter as FIR]

In the mean time Puja declined herself for the medical test. 

On 18-12-2013, Palash got anticipatory bail from the division bench of Hn. High court by 1st attempt against PR Bond. After that he has gone through the medical test & surrendered himself in local PS & lower court.

In the mean time (April 2015/ before CS ) PALASH applied for quashing at HC but it was rejected by HC & advised if no CS till 3 years then apply to lower court for cancel the investigation.

After that PALASH got married with other girl in May 2015 & the girl PUJA got married with other boy in April 2016. 

CS (only 1 page) submitted by the police to the lower court in May 2016. In CS police has shown that they have ceased only one material which is one joint photograph of the PALASH & PUJA in a DURGA festival (Durga Puja/ public place). Also they have examined 7-8 witnesses. Out of them 5 were relatives of the girl puja & 2 local people of PALASH but the boy PALASH didn’t know them though they claimed in their statement (161) that they are the friend of PALASH & they used to see in several occasions that PUJA used to stay night at Palash’s house which is totally false. Puja didn’t mentioned this blame in any of her statement (FIR/164) & also she has accepted in 164 that she had CONSENT & that word is mentioned in 164 statement. But surprisingly police didn’t examine the TWO witnesses about whom the girl has mentioned in her written FIR application. 

Under the above circumstances in July 2016 again PALASH applied for quashing the CS at HC through a junior advocate & again this time it was rejected.

Now what next?

Is there any solid chance?

1.	Should Palash again apply to HC u/s 482?
2.	Should Palash challenge it to SC? What would be the rough expenses?
3.	How to apply to SC from Kolkata? We need to move to delhi for that ?
4.	Should Palash apply to lower court for discharge u/s 227 crpc?
5.	Now in trial how to prove u/s 376 & 493 ?
6.	What are the other options to avoid the trial at lower court because it takes huge time in that court (5-6 years average) & so it would be very painful?
7.	If Palash does not appear in court during trial then is there any chance of arrest?
Asked 5 months ago in Criminal Law from Asia/Pacific Region
Religion: Hindu
1.  Palash can apply for quash of the case agans before the high court.

2.  It wold be mere waste of time, money and energy to take up the case before SC, because the sC may not entertain the same.


3.  You can contact a supreme court practicing lawyer who will guide you properly 


4.  If the charge sheet and questioning is not over he may apply for discharge

5.  Section 376 cannot be maintainable under consensual sex


6.  The trial before court cannot be avoided f the high court refuses to quash


7.  The court may issue non bailable warrant and also may cancel the          bail.


T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
Hi
 if you are trying for a petition under 482 after charge sheet go with the affidavit of pooja as well stating that she is willing to settle the matter , this means dont go for it on the demerit of the facts in the charge sheet .
however need to see what  was the order at the two occasions by the high court.
looking at the narration , it seems police could not make up a good case, so you should take advantage o fit and go ahead with the trial.
engage a good criminal lawyer and fight the matter, police will not be able to prove this case as contradictions are in the statements.
you should base your defense on consensual sex and the promise of marriage has to be broken in trial.
376 will not stand as there was an understanding and a reason , but   for 493,  check in the statement how the promise of marriage cant is  made out.try to contradict it with evidence.
The complaint like yours is general one when a man call off a relationship, the Supreme court  has observed that a relationship which is consensual is not rape. 
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
The trial will be in the sessions court and there is no way the trial can be avoided unless you get the charge sheet quashed.
If the accused (man in this matter) does not appear in the court , there will be warrant issued against him and he can be arrested on a non-bailable warrant
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1) no Palash shoukd contest case on merits and not apply for quashing 

2) Palash shoukd not move SC 

3) Palash can apply for discharge before lower court 

4) burden of proof is on prosecution 

5) Palash shoukd undergo trial 

6) if Palash does not appear in court NBW would be issued against him 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1. It is not clear why he surrendered when he got the AB from the DB of HC. Be that as it may, any decision on moving the HC u/s 482 can be taken only after a threadbare perusal of the chargesheet.

2. The expense is the fee of lawyer, which cannot be predicted by me as the fee structure of lawyers is not uniform.

3. You need to engage a lawyer to move the SC. A trip to Delhi may be avoided if you are able to sign the papers while being in Kolkata.

4. The mere delay in the outcome of the trial is no ground to circumvent the trial court.

5. Discharge can always be applied. 
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
The trial court will issue a NBW if the accused does not appear before it.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
Court has rejected yiur applications for quashing contest case before trial court on merits 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1. The HC has dismissed the petition for quashing, so the accused will now have to face the trial to prove his innocence unless he decides to carry the matter through leave to the SC.

2. A fresh 482 cannot be filed now for the quashing of the chargesheet. The only remedy is to either face the trial or move the SC against HC order.

3. The dismissal of 482 does not preclude the accused from filing for discharge.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
1.  There is no adverse  impact on the trial proceedings in the lower court when this matter is taken up for trial


2.  There appears no respite from high court if you approach for quashing on the same ground.  Since you have exhausted the remedy before high court, it is better to challenge the case in the lower court itself.


3.  Section 227 may not be applicable, you may file a petition under section 239 cr.p.c. for discharge



4.  The high court orders may not impact the trial court proceedings.


5.  You can challenge her case and allegations properly in the trial court and the case may not withstand the pressure during prosecution. By conducting trial you have chances to get acquitted.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1. No. Unless new development takes place, he can not apply u/s482 before the same Court,

2. Yes, the next course of legal action is to approach the supreme court challenging the said high court order,

3. You shall have to engage a lawyer at Delhi or Kolkata who can arrange to file the case before supreme court and palash shall have to visit Delhi while filing the case,

4. He can so apply but it is likely to be rejected,

5.It is she who has to prove the allegations made under the said sections,

6. It is suggested to be tried by the lower court because in case of adverse order, one can go to the higher courts,

7.The matter will be heard and decided ex-parte against him and he also may be arrested for not being present during his trial in the criminal case.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. There will be no impact of the order passed in the quash petition on the case lying before the lower Court,

2. No. On what ground you shall pray the FIR to be quashed now? There shall have to be a fresh development to trigger your such filing the quash petition before the high court,

3. Yes, but you shall have to place strong grounds to claim such discharge u/s227 of Cr.P.C.,

4. You have now come to know that you should not depend on the said grounds which the High court has not considered,

5. Contest the trail before the lower court fittingly first.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0

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