• 498a

Im A1 victim in 498a case filled in 2015.in july 2019 trail started.im not attended court for last two dates as im suffering brain disease .

My speech is like drunken and have medical reports. Only I can communicate through emails.
My advocate said he will take care and even judge told not to come.so I did not attend the court.
On 24 oct hearing date . advocate not present on the day.all a2 to a4 present.because of no representation for me ,judge issued BW/NBW.
Then I called my advocate and he is black maiing that if you don’t give 40000 for bail .then I have to go jail.
My wife demanding 25 lak (which she has no proof of 25 lac as dowry given to me) return the dowry. but I had not taken dowry .but I'm looking to stay with her for few days and baring my medical expenses.

So I need a suggestion on :
1.	I will attend on next hearing date.but what happens to BW/NBW warrant.

2.	Can I file an exemption to not attend court trial. in HC or suggestion (what to do next).

3.	Can I change advocate (can I request the judge to change advocate )
Asked 12 days ago in Family Law from HYDERABAD, Telangana
Religion: Hindu

You can apply to court for cancellation of NBW

 

2)you can also after cancellation of NBW make application for exemption from personal appearance 

 

3) enclose your medical certificates about your illness 

 

4) you are at liberty to change your lawyer 

Ajay Sethi
Advocate, Mumbai
69042 Answers
4153 Consultations

5.0 on 5.0

Change your lawyer, its a BW. There is new 498a judgement, no arrest will happen

Aveek Bose
Advocate, Kolkata
994 Answers
5 Consultations

4.7 on 5.0

1. If an accused person does not attend then the court in usual course issues warrant of arrest and there is nothing illegality in it.

2. Now for getting bail of its kind of warrant fees of 40K is very exorbitant and hence the lawyer does not agree then change him and in stead apply for bail through another advocate.

3. On the next date on appearance you can seek bail which would be easily granted though it is advisable to avoid police harassment to surrender before the next date and apply for bail.

4. Since W/A is issued without taking bail first you can not seek exemption.

Cange this advcate and take steps through another advocate. The fees should be around 5k for this kind of job.

Devajyoti Barman
Advocate, Kolkata
18124 Answers
260 Consultations

5.0 on 5.0

It is better you engage an advocate for filing application for cancellation of NBW 

 

you can apply for exemption from personal appearance in trial court only 

Ajay Sethi
Advocate, Mumbai
69042 Answers
4153 Consultations

5.0 on 5.0

Reach out to your lawyer and seek for no objection vakalatnama in all your cases.

 

Read :

 

Arnesh Kumar v. State of Bihar

Facts

The wife alleged that dowry was demanded from her and that she was driven out of the matrimonial home on non-fulfilment of such demands. The husband applied for anticipatory bail which failed. Therefore, by special leave petition, the husband approached the Supreme Court.

Decision

In this case, the Court observed that the fact that Section 498A, IPC is a cognizable and non-bailable offence, it is more often than not is used as a weapon rather than shield by disgruntled wives. It results in harassing the husband and his relatives by getting them arrested under this Section and it is more disturbing to see bedridden grandfathers and grandmothers being arrested without a prima facie case. Thus, the Court laid down certain guidelines which the police officer must follow while arresting under Section 498A, IPC or Section 4 of the Dowry Prohibition Act, 1961 and that such arrest must be based on a reasonable satisfaction with respect to genuineness of the allegation. Moreover, even the Magistrates must be careful enough not to authorise detention casually and mechanically.

Manju Ram Kalita v. State of Assam (2009) 13 SCC 330

Facts

The wife alleged physical and mental cruelty at the hands of the husband and accused him under Section 498A, IPC. The husband, however, denied all the charges.

Cases referred

The Court referred to the case of S. Hanumantha Rao v. S. Ramani [2] for the meaning of mental cruelty. The Court also referred to other cases for gauging the scope of cruelty such as Mohd. Hoshan v. State of A.P[3], Raj Rani v. State[4], Sushil Kumar Sharma v. Union of India[5], etc.

Decision

The Court held that “Cruelty” for the purpose of Section 498-A IPC is to be established in the context of Section 498-A IPC as it may be different from other statutory provisions. It should be determined by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously or at least in close proximity of time of lodging the complaint. The Court further held that petty quarrels cannot be termed as “cruelty” to attract the provisions of Section 498-A IPC.

Bibi Parwana Khatoon v. State of Bihar (2017) 6 SCC 792

Facts

Similar to previous cases, the facts of this case are that the wife was killed by setting her up on fire by her husband and her relatives. The sister-in-law and brother-in-law of the deceased wife challenged the conviction in the Supreme Court.

Decision

The Court brought under notice the facts that the appellants in the case did not even reside at the place of mishap. There was no evidence to prove their charge beyond reasonable doubt. Therefore, the Court acquitted them and held that the Court must guard against false implication of the relatives.

Rajesh Kumar & Ors v. Sate of U.P. (2017 SCC OnLine SC 821)

Facts

In the present case, the husband, along with other relatives, was accused for causing cruelty to the wife in lieu of demand for dowry. However, the other relatives demanded that there should be certain guidelines to prevent over-implication. Thus, in most of the cases the relatives of the husband are also being dragged into Courts in cases of Section 498A. However, it is not necessary that they have been party to the offence. Thus, a question with respect to the need for directions to prevent misuse of Section 498A, IPC was raised in the appeal.

Cases and Reports referred

The cases such a Sushil Kumar Sharma v. Union of India[6], Preeti Gupta v. State of Jharkhand[7], Ramgopal v. State of Madhya Pradesh[8] and Savitri Devi v. Ramesh Chand[9] were referred wherein the misuse of Section 498A and the need to adopt measures for prevention of such misuse has been acknowledged. The division bench also referred 243rd Law Commission Report and 140th report of the Rajya Sabha Committee.

Decision

The Supreme Court laid down comprehensive directions to prevent the misuse of the provision of Section 498A, IPC.

Family Welfare Committee

  • The constitution of one or more Family Welfare Committees in every district which shall preferably consist of three members. Such a constitution is to be made by the District Legal Services Authorities.
  • The members may be volunteers/social workers/retired persons/wives of working officers/other citizens or anyone who may be found suitable and willing.
  • Frequent review of constitution and working of such committees in addition to the yearly review which is a minimum requirement. Such review shall be done by the District and Session Judge of the district who is also ex-officio chairman of the District Legal Services Authority.
  • The Committee members will not be called as witnesses.
  • Every complaint has to be referred to the Committee and the committee has to submit the report to the authority who referred to such complaint. The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
  • The work of the committee includes looking into every complaint under Section 498A received by the police or the Magistrate.
  • No arrest should normally be effected till report of the committee is received.

Investigating Officer

  • Investigating Officers to be designated within a month from the delivery of judgment to investigate the complaints under Section 498A and other connected offences.
  • Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from the date of delivery of the judgment.

Settlement

  • In cases where a settlement is reached, the District and the Sessions Judge to dispose of the proceedings. Such disposal also includes the closing of the criminal case if the dispute primarily relates to matrimonial discord. The District and Sessions Judge may also nominate any other senior Judicial Officer to do the same.

Bail Matters

  • Cases where a bail application is filed with at least one clear day’s notice to the Public Prosecutor or the complainant, the same may be decided on the same day.
  • Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife or minor children can otherwise be protected.
  • Further, in dealing with bail matters, certain things such as individual roles, the prima facie truth of the allegations, the requirement of further arrest or custody and interest of justice must be carefully weighed.

Issuance of Red Corner Notice

  • In respect of persons ordinarily residing out of India, impounding of passports or issuance of Red Corner Notice should not be a routine.

Clubbing of cases

  • It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted.

Personal appearance

  • Personal appearance of all family members and particularly outstation members may not be required.
  • Further, the trial court ought to grant exemption from the personal appearance or permit appearance by video conferencing without adversely affecting the progress of the trial.

However, the Court further said that these directions will not apply to the offences involving tangible physical injuries or death. The Court also said that the National Legal Services Authority may submit a report after a trial of 6 months of such arrangement and latest by March 31, 2018, for any change in the directions issued or for any further directions.

Social Action Forum for Manav Adhikar v. Union of India

Facts

The petition was filed under Article 32 of the Constitution. The petitioners contended that it is not untrue that there are a number of women suffering from violence at the hands of husband and his relatives and that the accusation that Section 498A is being misused is not supported from any concrete date on such misuse. It was further argued that the social purpose behind Section 498-A IPC is being lost as the rigour of the said provision has been diluted and the offence has practically been made bailable by reason of various qualifications and restrictions prescribed by various decisions of this Court including Rajesh Sharma v. State of U.P.

Cases referred

The Court referred to the principles stated in Joginder Kumar v. State of U.P.[10]D.K. Basu v. State of W.B.[11], Lalita Kumari v. Government of Uttar Pradesh[12] and Arnesh Kumar v. State of Bihar[13] and directed that the investigating officers be careful and be guided by the same.

Decision

After referring to the directions, the Court concluded that the direction with respect to Family Welfare Committees and their duties are not in accordance with any provision of Code of Criminal Procedure, 1973. The offence of cruelty is non-bailable and cognizable offence but due to the direction making it impossible to arrest before the report of such committee has made this ineffective. Thus the directions given in Rajesh Sharma case has been modified by Court as further explained.

  • The direction with respect to constitution and duties of Family Welfare Committee has been declared impermissible.  
  • Further, direction pertaining to the settlement has been modified to include that it if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure. The High Court, keeping in view the law laid down in Gian Singh v. State of Punjab[14], shall dispose of the same.

 

[1] Section 498A, IPC

[2] 1999) 3 SCC 620

[3] (2002) 7 SCC 414

[4] (2000) 10 SCC 662

[5] (2005) 6 SCC 281

[6] (2005) 6 SCC 281

[7] (2010) 7 SCC 667

[8] (2010) 13 SCC 540

[9] ILR (2003) I Delhi 484

[10] (1994) 4 SCC 260

[11] (1997) 1 SCC 416

[12] (2014) 2 SCC 1

[13] (2014) 8 SCC 273

[14] (2012) 10 SCC 303

 

If you need further assistance seek this forums permission to connect further

Aveek Bose
Advocate, Kolkata
994 Answers
5 Consultations

4.7 on 5.0

1. If the warrant against is not recalled then there are chances to get you arrested hence better change the lawyer and file a petition to recall the BW/NBW pending against your name,  under the provisions of section 70(2)Cr.P.C to be on the safer side. 

2. You first get the warrant recalled and then file a petition before the same court under the provisions of section 205 Cr.P.C to dispense with your personal appearance before court. 

3. You can very well change the advocate. 

 

T Kalaiselvan
Advocate, Vellore
58875 Answers
746 Consultations

5.0 on 5.0

You need to file a petition to recall the warrant,  if you know the procedures you can do it yourself or you may engage another advocate for this. 

You can file a petition seeking dispensing your personal appearance before the same court itself. 

T Kalaiselvan
Advocate, Vellore
58875 Answers
746 Consultations

5.0 on 5.0

Change the advocate. Engage new one. New advocate will do everything . 

You may be required to give bail bond in order to avoid arrest.

Do not give any money to your wife without court order .

Apply to court to dispense you from personal attendance.

Kallol Majumdar
Advocate, Kolkata
1864 Answers
2 Consultations

5.0 on 5.0

1. You have to file an application before court to cancel the warrant against you. The issuing court may cancel the Warrant.

2. You can file an application for permanent exemption before lower court only.

3.You need to get No objection from the present lawyer and file new vakalatnama of your new lawyer.

Shubham Jhajharia
Advocate, Ahmedabad
20900 Answers
81 Consultations

5.0 on 5.0

Your advocate can file an application for cancellation. You can apply application of exemption before the same court.

 

Shubham Jhajharia
Advocate, Ahmedabad
20900 Answers
81 Consultations

5.0 on 5.0

You need to get the warrant cancelled and then attend the court. 

You can seek permanent exemption on medical ground if judge permits but your lawyer should attend regularly. 

Prashant Nayak
Advocate, Mumbai
14521 Answers
24 Consultations

4.6 on 5.0

No jail, it is just bail jump, appear on next with surety. Bail will grant.

Change the advocate. Same court will grant exemption. On every date exemption application will file, so better replace with genuine advocate.

Document will prepare for revival of bail so advocate is must.

Yogendra Singh Rajawat
Advocate, Jaipur
14612 Answers
19 Consultations

4.6 on 5.0

- Firstly, your lawyer should not black mailing for the same , but you are advised to pay his fees as agreed by you. 

1. You should not wait for the next date of hearing for cancelling the warrant issued by the court.

- Without waiting further , move an application for cancelling the NBW before the court , with the help of any person , if you dont want to take services of that lawyer, and further appeared before the court on the fixed date of hearing with some medical papers. 

- Dont worry , as you are already undertreatment , then court will cancel the issued warrant.

2. If , the said judge already has allowed you permanent exemption , then no need to move an application again, only you should remind the judge for the same .

3. Yes, you can change your lawyer any time , better to move the cancellation application with the help of a new lawyer. 

- If you need permanent exemption from hearing , then you will have to engage a lawyer, otherwise, again you will face the same problem in future. 

Mohammed Shahzad
Advocate, Delhi
1071 Answers
19 Consultations

5.0 on 5.0

file application for recall of NBW under section 70(2) of crpc explaining the reasons for not attending the court andd the court will recall the warrant but you have to enclose medical reports. 

Mohammed Mujeeb
Advocate, Hyderabad
11747 Answers
4 Consultations

4.5 on 5.0

File An application for exemption before the trial court.

Mohammed Mujeeb
Advocate, Hyderabad
11747 Answers
4 Consultations

4.5 on 5.0

You should appear before the court before next hearing date surrender and give fresh bail bonds with new surety.

Your advocate should have filed extemption in trail court in last date if he was aware about your medical condition.

Yes you can change the advocate any time without permission of court. 

 

Mohit Kapoor
Advocate, Rohtak
4800 Answers
1 Consultation

5.0 on 5.0

Dear Sir,

My reply to your queries is as below:

1.	I will attend on next hearing date.but what happens to BW/NBW warrant.
A: It will be recalled on production of your medical certificate with a warning

2. Can I file an exemption to not attend court trial. in HC or suggestion (what to do next).
A: You can approach High court in the meanwhile and get permanent injunction relief. First you have to file
an application U/s 205 CRPC in the trail court seeking permanent exemption except on the important dates
if it is rejected then only you can approach High Court.

3. Can I change advocate (can I request the judge to change advocate )
A: You can get NOC and can engage another advocate without the permission of judge , if your advocate
blackmails you then you issue one notice terminating his services and enclose your copy of such letter along with
vakalat of new advocate.

4. do i need my advocate for cancellation or can i request directly judge? 
A: Your advocate has to file application under following provision of law
-------------

70crpc :  Form of warrant of arrest and duration.

(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

 4. after cancellation of NBW make application for exemption from personal appearance do i need to apply in High court..

A: Thereafter you can file application U/s 205 seeking permanent exemption under medical grounds if rejected you may go to HC

__________________________

205. Magistrate may dispense with personal attendance of accused.

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.

 

Kishan Dutt Kalaskar
Advocate, Bangalore
4690 Answers
134 Consultations

5.0 on 5.0

Dear Sir,

It is better to attend the court and also change the advocate and file a exemption petition on the medical ground.

Netravathi Kalaskar
Advocate, Bengaluru
3811 Answers
18 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer