You have to apply to court for cancellation of NBW
2) change your lawyer
3) it is suprising that case for quashing has not appeared on board for 2 years
4) burden of proof is upon prosecution to prove allegations beyond reasonable doubt
498A & 66A filed by ex wife
I got divorced from my ex wife in November 2017 with mutual agreement (13B). During that time an agreement was created to withdraw the 498A filed in court and they have given an affidavit to withdraw the case. After divorce I have given vakalat to my advocate to quash 498A in HC and my advocate told me he filed application to court. Now 2 years over, still my advocate says that case is not listed. Meanwhile I am appearing in regular for the hearings in magistrate court where 498a is filed, all witness also appeared before the court except ex wife and her parents. Please let me know what the next I have to do. Apart from this they had filed a cyber crime (66A) against me , which I was not aware about till I get call from police saying that I tried to harass them by sending offensive photographs to their mobile. I got the anticipatory bail on this case on background that we were husband and wife legally during that time and the photos were taken with mutual concern. My advocate agreed me that he will talk to opposite party and their advocate on this and he will take care of this case also. Since I didnt get any summons or call from police after this didnt give much attention to that. This month I called to police station to check the status of FIR and if any summons on that cyber case for me, they informed it became NBW now. My advocate is not responding to my call. I am working in another state now and not sure what to do next. Please help me to find a solution
Asked 6 years ago in Criminal Law
Religion: Hindu
18 Answers
You should first know that any agreement in restraint of legal proceeding is void. It can not be enforced by law.
Defend your case.
Engage good lawyer. Be careful before signing any mutual agreement.
If you had been casual and callous in dealing with criminal cases then you will be facing more and more problems instead of looking for solutions.
The affidavit given by her for withdrawing the criminal complaint is not maintainable because even she wanted to withdraw she cannot do it as the case is noncompoundable.
You have to follow up the quash case through your advocate, if he's not responding properly then you may change the lawyer.
1. Compromise quashing of 498A does not take so long to be listed and decided in the HC.
2. You may consult another advocate of that HC and find out if there is anything fishy.
See you need to either get bail in same or alternatively apply for cancellation of the warrant .
Further talk to your ex wife ask them to give consent file quashing before high court on ground of the settlement and the high court may allow your consent quashing of both FIR's.
1. Your FIRST priority is to engage a new advocate and appear in court in person to cancel the NBW, by providing undertaking /bond to the court. There is no other simpler option on this.
2. Once NBW is cancelled (simple process) THEN you can appear thru advocate (by filing exemption application) or file for quashing proceedings, based on the documentary evidences you possess (Agreement /Affidavit of Wife, Mutual Consent Decree etc.... ). This can be done.
Change your lawyer. Due to his incompetency, you are under full threat to suffer and blackmail;.
The non bailable warrant (NBW) against you can be cancelled. You should immediately take steps to get the NBW cancelled from the court and change your lawyer immediately and engage Expert high court advocate.
- Firstly your query is not clear. Whether the divorce has already been granted or till date no mutual divorce has taken place , due to pending of the cases ?
- You should file petition for quash before the court, if your ex-wife is not appearing before the court being a complainant of the said case .
- Further , FIR under section 498a cannot be withdrawn , even by the complainant , except quashing from the court.
- Without issuing the summons for appearance , court never issue NBW against an accused , and further the police has no power to issue NBW.
- You should engage a new lawyer to check the status of case , if any under section 66 against you.
My divorce granted on mutual consent and there is not any kind of contact with opposite parties after that. The incident on which section 66 is charged happened when were husband and wife only. Now my concerns are 1) what will be the future of case under section 66 (both positive and negative) and how I can defend it. 2) The 498a case will be quashed in magistrate court itself since the complainant not presented yet, and is there a possibility to revoke the case in future once it is quashed ?
Asked 6 years ago
1. See you and she were married and she did Not object at time of sending same so you can.file a quashing petition before the high court.
2. Quashing can be filed before high court lower court shall not quash as it does not have power.
1. The case has been filed by her hence it would be easy to tackle the case in trial proceedings, You can drill her with the questions in the cross examination during trial proceedings and nullify the allegations.
2. The magistrate has no power to quash the 498a case, hence dont be under any such misguidance.
Quashing is to be done only by HC
2) magistrate cannot quash the 498 A case
3) you can be acquitted in 498 A case filed by wife
4) similarly in section 66 case filed under IT act prosecution has to prove allegations made in complaint
1. Were you not aware of the pendency of FIR under Section 66B IT Act at the time of mutual consent divorce?
2. You may now file a petition for quashing of FIR.
3. Once quashed, the case cannot be revived.
Divorce dose not exonerate criminal liability committed at the time of marriage but under MCD all issues were settled, on that count present FIR may also quash.
As the same is filed in vengeance.
1. Magistrate court is only a "trial court" and CANNOT conduct "quashing proceedings" (which is possible only in state High Court).
2. Offence u/s 66 is an independent charge /case and needs to be defended on its own without any reference to 498A. However the outcome will definitely depend on the agreement /affidavit which you possess. This you can use it to your advantage proving that complaint u/s 66 was biased & prejudiced & malicious.
you can defend the trial of the following case and also file a petition to quash the FIR. File a petition u/s 482 crpc before the High Court.
66A is repealed now and has no application in the law.
Magistrate court can't quash it needs to be quashed by High court
You should change your advocate in high court so that quashing petition can be listed and you can get relief by quashing of FIR. High court will quash the FIR on ground of mutual settlement between both parties.
Also file quashing petition for new FIR under IT act.
