Quashing is to be done only in exceptional circumstances
2) it is better you apply for discharge before trial court rather than file petition in HC for quashing the case
3) in alternative wait for disposal of the case
Trivial matter charged under cybercrime
Myself and my brother are settled here in the US. This is a very old matter dating back to 2012, This is related to one divorcee lady having extra martial relationship with my brother. My brother was paying her and her family huge sums of money in exchange for this relationship. I found about this and tried to break this relationship in doing so in 2012 and 2014 I had shared some of her and my brothers personal chats with this lady's friends and family with the intent of breaking up their relationship. Finally in 2015 my brother stopped paying her and ended this relationship.So in order to harass us and pay her more this lady files an FIR with Cyber Police. In Feb 2016 FIR is registered against me and my brother with cyber-crime police. My offence is sharing exposing her relationship with others. To spice up she added some fake allegations like I threatened her asked for relationship etc.. The FIR says section 419 and 509 is applied. Outraging modesty of a woman.The cyber-crime cops email me in March 2016 asking to appear before them which I ignore. In May 2019, I was visiting India and was stopped on LOC. The cops after 12 days of questioning finally arrest me and the court grants me bail and I travel back to the US. Now the cops have filed a charge-sheet. The matter is trival but to drag this the cops are not giving Summary B. According to them since the emails exists so its a crime, The emails are dated 2013 and 2014.When I was arrested the cops took my laptop hard drive and my old phone. I explained them that on laptop nothing will be there but they its the process and they have to follow it. About me I have US Citizenship and In India, I dont have any movable or immovable property. I dont want to give up the option of not going back to India, for this small case its not worth leaving India for good. I dont have immediate plans to travel back but again not going back is also not an option. With family back home need arises. I spoke to a advocate and they advised me to approach High Court and get this squashed. But with those emails and the charge-sheet it may be difficult. So thats bit risky. Also with me in the US this case is not affecting my day to day life. Other option is to wait for the matter to be taken up with court cooperate with the authorities and drag this for few years. Other than those two options is there any other better option.
Asked 4 years ago in Criminal Law
Religion: Hindu
24 Answers
If you are not going for quashing you can file for Discharge If the same are non bailable, offemce
Hi
The chances of getting the FIR quashed are remote. It is not done meticulously i.e., based on seriousness and gravity of the issue quash proceedings will be considered.
In your case, you can safely file petition to Discharge in the lower court.
If the same is refused, you may have chance to go for Quash.
Last option could be to wait for the proceedings to reach its end by efflux of time.
See even dragging the court matter won't be useful as you are in US if court in your absence records prosecution evidence and further decide the matter then it would be difficult as court can penalise you and sentence.
Sir talk to lady arrive on mutual agreement and based on same file consent quashing before the high.court.
If your brother shared you the chat and you shared it with other then it shall not attract any penal provision because the person to whom any message text is sent, is not under any obligation to keep it secret unless from the nature of the message it can be reasonable construed as confidential by necessary implication of law. This messages can go public.
You have been wrongly implicated in the case. Defend it on the above ground.
Thank you for all the super information. A) In the FIR they have named my brother and myself. I traveled to India and got arrested on LOC. My brother he is in the US. After 2016 he did not go to India, If he does not travel to India what happens to the case. I am a US citizen with no property in India nor any connection When the charge-sheet is filed do I need to go to India court or can an advocate handle all this in my absence. The police is not coming out clean, they say that other than the emails they do not have any evidence but cannot issue summary B. Regarding emails, their request to Gmail for data was denied by Google so there is no proper evidence. The FIR was registered in Feb 2016, police just sent 1 email in Feb 2016 nothing after that. In 2018 when i went to India there was no issue. In 2019 I went for my Dad's surgery but this time I posted my status in FB, then someone got the LOC was issued. This was issued just few days before my return trip. The complainant has some connection and the Police are hesitant to issue Summary B, they say that the complainant is very strong. B) The complainant character is 100% questionable. She got divorced in 2006 and in 2007 she came in contact with my brother. They where in relationship and my brother used to pay for her expenses. Slowly the expenses crossed all limits. Now in 2014 She found one more US based boyfriend. This boyfriend left his job and family and is now living with her. This complainant is filed a case against the other boyfriends wife to get his his property and divorce. Luckily we found this matter and got evidences from the other boyfriends family. In 2016 brother ended this relationship and the money flow stopped so she immediately filed a case. I have all the evidences case number details that the complainant and her new boyfriend's wife are fighting. I also have all the payments bank details made to her Indian bank. Will all this help when we go for discharge in lower court.
Asked 4 years ago
after charge sheet is filed you have to appear in court
2) you should file for discharge in trial court
1. It appears that you hd taken the matter very lightly and refused to appear before the Police duriung the investigation stage when things could have been managed with the police.
2. Now, the matter is out of your hand to be designed as per your wqish and has already proceeded as per law.
3. Charge sheet has already been submitted by the police.
4. Try to find out loopholes in the said charge sheet and file the petitiuon u/s482 of Cr.P.C. praying for quashing the FIR.
5. If you fail, then contest the case fittingly and drag it as far as possible by you.
1. See if brother fail to appear court will pass judgement then there is process of extradition only there is no other way.
2. See technically you have to be there for framing of charges so advocate can seek for exemption the court may or may not allow same.
3. After chargesheet is filed you can file discharge petition before the lower court.
4. Yes the history can be bright on record in the discharge petition.
You can do the aforesaid as directed it will be quashed on merits
Dear
First of all you should hire an advocate in High court and file a petition for exemption from personal appearance in court.
Then you should hire an advocate in trial court and forward the argument on charge and pray for discharge from case if still trial court frame charges.
You should file quashing petition in High court.
If you do not want to go for quash of the cse before high court then you should prepare yourself to face the case in the trial proceedings.
After obtaining bail, if you dont appear before court for trial then your bail may be cancelled and an arrest warrant may be issued.
Therefore you cannot take a risk in this regard.
Whatever evidences you have will be useful for you to fight the case in the trial proceedings and challenge her case properly.
But for now, if you and your brother both are accused in the case then without appearing before the police, no charge sheet be filed, your case will be dragging on endlessly.
You can decide about this either to finish this or keep it pending.
My brother is main accused we know that 90% FIR is false. My brother is in the US with me. I was arrested on LOC and the court granted bail. My brother never came to India and if he does not come for next 5 years. What will happen to this case. The FIR was registered in Feb 2016 and April 2019 I was detained on LOC.My brother is not yet arrested. What if he does not come till 2025 then what happens, The IO says that he has prepared the Chargesheet and will be filing the same. Without arresting the main accused can they do this. Q) Can the IO do this or is he just making this up. Q) In case they file the chargesheet does it mean that Police will issue summons or is it upto the Court. How long does the process take. This matter is in Mumbai so I am not sure how long the court takes. Assume that the Police files the chargeseet in Oct 2019 then what is the approx timeline. My understanding is that when the chargesheet is filed I will have to go to court. I am out on bail. Q) We can end the mattter by paying some money to the complainant. But I dont want to give her a penny. She has already extracted huge sums of money and we have all the transactions. This case is just to make money. For them its a full time project and for us we have to support our family here. I dont trust the IO anymore because In India as the Police suggested i worked with their advocate and after 12 days of drama, I tried to change the adv so the police arrested me and i got bail. The police adv took big sum from me it was a kind of bribe but that got me out and the LOC was cancelled. It was my mistake too that when I was arrested I was scared and 1st time in police station now when he says that the chargesheet is ready and he asks me to send my brother so that they can close this matter. I think they are just taking me for a ride. We being US residents the Google and FB have refused to share any data. So they dont have any evidence against me just few emails dating back to 2015.
Asked 4 years ago
The IO can file the charge sheet before the court even without the main accused not appearing before court.
The IO may report that the main accused is absconding.
When the police files charge sheet, then ther court will issue notice to all the accused.
If one of the accused is not appearing before the court, then the court may not conduct the trial till such te missing accused appears before court or till the other accused files a petition to split the case and he may be tried separately as the other accused is missing or absconding.
If no efforts is taken then the case may be kept pending even for decades.
1. Yes without arresting or questioning accused the chargesheet can be filed.
2. See the court will issue summons and after chargesheet is files depending upon number if witness and any application if filed it can take 1-2 years approx or less.
3. See you can engage an advocate in India to defend yourself before the court , cross examine prosecution witness.
The main accused will be shown as absconded accused ans trial will be conducted. You can go for quashing as advised above
Criminal cases in India take over 10 years to be disposed of
2) no need to pay any money to the complainant
3) it is better your brother comes down to India and applies for bail
4) if there is no evidence against the accused apply for discharge on filing of charge sheet
1. You shall have to understand that the charges leveled against you is under Cyber Law and it has got nothing to do with her taking money from your brother or running an affair with another man etc.
2. Practically, it will be difficult for the police to prove that you had sent the chat materials of herself and your brother for want of the computer or cell phone from where those were sent for considering the copies of the emails/chat matters as digital evidence.
3. Moreover, if those evidences are proved, then also you can argue that you have taken the same from your brother's computer and posted the facts only in the interest of your brother expecting that they will interfere in to the matter.
1. IO can file the charge sheet showing the accused as absconded. Negotiate with the IO and get a favourable Charge Sheet filed by him wherein he can dilute the offence and/or keep enough loopholes therein to ensure that you can get the FIR quashed by the High Court by filing an application u/s482 of Cr.P.C.
2. Summons have already been issued and you were once arrested in connection with the case. No further Summons will be issued to the accused. You shall have to appear before the Court on the days of the hearings unless you have taken leave from the Court praying for waiving your presence on the days of the hearings since you stay out of the Country for earning your livelihood. Your brother should surrender before the Court and avail bail and also get the waiver to be present on the next dates of the hearings.
3. You should negotiate with the IO to settle the matter to ensure that he leaves lots of lop holes in the charge sheet filed by him.
Initially when I was arrested the court let me out on a cash bail of INR 15k. Now after 4 months the police just filed the chargesheet in Sessions court, Mumbai. I am a US Citizen and am back in the US. I also hold an OCI card. After the chargesheet the court has to issue Summons. Question is How will they deliver me the summons. They just have my email id, my phone numbers and my Parents home address and my old US address. They dont have my current US address so sending certified mail will also not work. I spoke with some lawyers and according to them. Since I am a foreign citizen, the Police or Courts have to go through the Ministry of External Affairs and the MEA will inform the US government only after that they can send me the summons. If that does not happen then the case will not proceed. I spoke with the police and they say that they can send summons via email and whatsapp and whether I receive those or not their work is done, and If I dont come to court they will cancel my bail and declare me absconding. Is this true ? I want to know what route this will go. In my case is pretty made-up, The charges are trivial and some of it fake. The police does not have evidence except few email printouts and the complainant will surely come up with some fake witness and that will put me into trouble. The complainant has political clout and good experience of manipulating this matter in court. So if I choose to fight I will have to come there for few times.
Asked 4 years ago
They can deliver the summons to your Old address in US and/or to your parents address in India. The court can serve summons without involving MEA.
Yes you have to come down to India to contest and also to file discharge application as matter is trivial.
You can yourself provide your address to them through post. They will inform you about summons through MEA only. You can go for quashing in HC I'd the same is quashed you will be a free man
It is better you come down to India and file for discharge before trial court
2) meet sending summons by email and what’s app is not sufficient
3) emails are an additional mode of service and court would insist on serving summons to you through ministry of external affairs
1. Summons can be sent through email or even whatsapp which will be considered as valid service through digital mode.
2. If you fail orb refuse to appear before the Court on rceipt of the summons, your bail will be cancelled and you shall be declared as an absconder.
3. Since the police does not have much material to fix you, it will be prudent on your part not to allow the police to get your bail canceled on technical ground.
4. Appear before the Court and contest the case fittingly by engaging a local lawyer having expertise in this field.
Share the charge sheet and FIR copy with us, so that the option of filing a petition for quashing of the charge sheet can be seen
The court will send summons to the address furnished by you in the bail application, if you are not available in that address then the court may issue a NBW against you.
What police told you is correct, if you dont appear before court even after receiving summons through email or whatsapp, then the court may issue a non bailable warrant, may declare as a proclaimed offender and your bail will also be cancelled.
You may have to appear before court on the next date of hearing, engage the services of a skilled layer and file a petition before court under section 205 cr.p.c. to dispense with your personal appearance before court.
Your advocate will take care of any such fake cases during cross examination, the political clout will not influence court, need not be worried on that count.