• Is it necessary that complaint appear in FIR quashing case?

Hello,

I am a complainant in an FIR with section 40, 42 from Gujarat Money Lenders Act, I have firm evidence of call recording in which accused confesses of doing business of money lending(which is illegal without license) which I have provided to the police, however, accused has filed a quashing petition in Gujarat High Court and the court decided to hear it and directed Investigating Officer to file a report and not to file a charge-sheet without permission of the court, court has fixed next date for the hearing.

I think that their petition will not stand in the court as accused filed the quashing petition without having knowledge of I am possessing a call recording of them accepting doing illegal money lending business.

My question is, I have received the notice, is it necessary that I appear before the court or through my advocate? or the Public Prosecutor will take care of the case? 

Is there a possibility of police filing wrong report in high court having shaken hands with accused despite strong evidences provided by me? 

If in case I do not appear and the Public Prosecutor and police having shaken hands get successful in quashing the FIR, can I as an original complainant appeal against it in Supreme Court?

I am short on funds and it would be difficult for me to pay hefty fees to the high court lawyers just for the shake of this petition as I am confident that I have strong evidence and their petition will not stand.

Please advice.

Thank you!
Asked 4 months ago in Criminal Law
Religion: Hindu

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43 Answers

Hello, 

 

It is advisable that you go ahead and mark your presence through an advocate to bring on record true and correct facts regarding the case. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
17847 Answers
312 Consultations

5.0 on 5.0

It is necessary for you to appear in court and object the quash petition 

Rahul Jatain
Advocate, Rohtak
5364 Answers
4 Consultations

4.8 on 5.0

If you been personally called then you should appear. Otherwise if a notice has been sent to you then your lawyer may appear. If you cannot afford one appear in person. I don't think he can bribe all the prosecutors and policemen and the judge. The judge will know if you have the proof and annex with the petition.

You may file a reply before the next date of hearing.

Rahul Mishra
Advocate, Lucknow
11562 Answers
20 Consultations

5.0 on 5.0

1) you can engage  a advocate and file detailed reply opposing quashing of complaint 

 

2) public prosecutor would appear on behalf of state and oppose quashing 

 

3) police would not file wrong report in HC 

 

4) if you don’t want to engage lawyer you can appear in person and file reply opposing quashing petition 

Ajay Sethi
Advocate, Mumbai
79341 Answers
4745 Consultations

5.0 on 5.0

Hello,

  1. If you are super confident that the quash petition would not stand, you may remain absent and let the prosecution do its work. However, you must assume that the accused must have pulled strings to get his case through.
  2. You can not appeal against the order of the court as the state is the defendant in this petition.
  3. Alternately, what you can do is to remain present in  the court in person and beg to plead by yourself and assist the prosecution. You can avoid the hefty fee and still be in court and send some caution to the prosecutor and the police.

S J Mathew
Advocate, Mumbai
3036 Answers
110 Consultations

5.0 on 5.0

Dear Querist

My opinion on your queries are as under:-

 

 I have received the notice, is it necessary that I appear before the court or through my advocate? or the Public Prosecutor will take care of the case?
opinion:- as you received the notice then you should appear before the court either personally or through your personal advocate, don't trust with the Govt. Counsel.

Is there a possibility of police filing wrong report in high court having shaken hands with accused despite strong evidenc
es provided by me?

Opinion:- yes, it is possible, so your counsel or you yourself should be appear before the court during the hearing of the Quashing petition.

If in case I do not appear and the Public Prosecutor and police having shaken hands get successful in quashing the FIR, can I as an original complainant appeal against it in Supreme Court?

Opinion:- You may file an appeal or SLP but due to your non appearance, you may not be able to fight the case before SUPREME COURT, so it will be better to appear before the High Court


I am short on funds and it would be difficult for me to pay hefty fees to the high court lawyers just for the shake of this petition as I am confident that I have strong evidence and their petition will not stand.

Opinion:- As you are short on funds and it is very difficult for you to engage the advocate in HC then think that how can you engage an advocate in SC who will be more costly for you.

 

 

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5780 Answers
271 Consultations

4.9 on 5.0

Dear Sir,

You are suggested to appear before the court either in person or through advocate and submit the facts in your possession. Don't leave the case fully on the PP. It is also quite possible that police may file incorrect after connivance with the accused. So, better to appear and do the things instead of leaving and getting things out of control. 

Ganesh Singh
Advocate, New Delhi
6512 Answers
13 Consultations

4.5 on 5.0

Yes, it is necessary for you to appear before the court if you have received a notice of appearance from the court. You can appear personally before the court and submit whatever you wish to. In the circumstances that you have stated, there is no need to hire the services of an Advocate (but they can be quite useful).

Ideally, it is the duty of the Public Prosecutor to put forth the details of the material collected during the investigation, but since you are apprehending a foul play, it is suggested that you mark your presence and make your submissions. If you are absent, the opposite party might also point out your conduct before the court in order to further strengthen his case.  

As far the question of appeal before the Hon'ble SC is concerned, you can definitely file a Special Leave Petition, but please be informed that the SC interferes only when there are glaring illegalities in the order. Also, the legal costs incurred would be on the higher side as compared to the Hon'ble HC.  

Agam Sharma
Advocate, New Delhi
563 Answers
4 Consultations

5.0 on 5.0

Hi
your Q:

"My question is, I have received the notice, is it necessary that I appear before the 
court or through my advocate? or the Public Prosecutor will take care of the case? "

--It is better that you make appearance/representation in the court to defend the
quash petition and to observe that your interests are taken care by the Prosecution side.

your Q:

"Is there a possibility of police filing wrong report in high court having shaken hands 
with accused despite strong evidences provided by me? "

----Yes. Most of the cases they do their duty.The Public Prosecutor is legally responsible to represent the police and take care of the
case on your behalf.

Your Q:

"If in case I do not appear and the Public Prosecutor and police having shaken
hands get successful in quashing the FIR, can I as an original complainant
appeal against it in Supreme Court?"

---Yes.

If you are short of funds in hiring a lawyer, you in person can be present if the situation 

allows in this covid-19 restrictions.

Thresiamma G. Mathew
Advocate, Mumbai
1606 Answers
156 Consultations

5.0 on 5.0

The public prosecutor will represent the police.

If you have received notice from court then you may have to appear in person or through an advocate and record your objection to the quash petition with the reasons you may rely upon.

You may not be able to prefer an appeal when you ignored the opportunity given to you to object and get the petition dismissed.

Your personal reasons will not entitle a relief to you without taking any efforts in this regard or simply remaining absent.

T Kalaiselvan
Advocate, Vellore
69350 Answers
929 Consultations

5.0 on 5.0

Please appear directly and meet Public Prosecutor who is representing the State in your case and meet Investigation Officer to draw the strategy to file your reply in quashing petition filed by the accused. 

It is better to appear before the Court if you have received the notice. 

If matter is quashed by High Court, You do not have right to move before Supreme Court to challenge the order because it is the prerogative of the State Government to challenge it before Supreme Court through their Standing Counsel before the Apex Court at New Delhi.

Therefore Pl do not avoid to appear before High Court to file your reply in response to quashing proceedings moved by the accused u/s 482 Cr.P.C 1973 with Article 226 and 227 of Indian Constitution

 

Ramesh Pandey
Advocate, Mumbai
2538 Answers
8 Consultations

5.0 on 5.0

You have voice recording of the conversation relating to the crime, you should appear before the Hon'ble High Court alongwith your advocate and produced the voice recording with the permission of the Hon'ble Court.

If Hon'ble High Court allow the petitioner and quash the FIR, you may file the SLP before the Hon'ble Supreme Court under Article 136 of the Constitution of India.

 

Ashish Pandey
Advocate, New Delhi
21 Answers

Not rated

1. Since, you have received notice from the court , hence you should appear before the court .

- However as you are complainant , hence your presence is not mandatory physically , i.e. you may appear through your advocate or even in the absence of your lawyer , PP will take care of the case, and to challenge the quashing filed by the accused. 

2. There is possibility , but court will not decide the quashing petition mere on the police report , if other evidences are there in support of compliant . 

3.Yes, however you should engage a lawyer for appearing on your behalf. 

4. Better appear before the court yourself , if you are unable to pay the fee to lawyer. 

Mohammed Shahzad
Advocate, Delhi
5538 Answers
51 Consultations

5.0 on 5.0

You don't be to appear but if you appear it will be good and helpful to public prosecutor

Prashant Nayak
Advocate, Mumbai
22447 Answers
49 Consultations

4.4 on 5.0

1. If you have received the Notice for attending the hearing of the Court then you should appear before the Court either in person or through your Advocate.

 

2. Appearing through Advocate is advised.

 

3. Being dissatisfied with the judgment passed by the high Court, you can always approach the Apex Court.

 

4. If you are running short of funds to pay fees to the Advocate then you should appear in person.

Krishna Kishore Ganguly
Advocate, Kolkata
24715 Answers
701 Consultations

5.0 on 5.0

1. You can intervene (in-Person) in the court proceedings for "Quashing Petition"  via a "Intervene Application", stating that you have material evidence and that matter may be referred to the Trial Court for proper adjudication.  IF judge listens to you, the quashing application will be rejected and matter will compulsorily have to be proceeded only in the Trial Magistrate Court, wherein as complainant you may produce all the relevant evidences you possess.

Hemant Agarwal
Advocate, Mumbai
5441 Answers
25 Consultations

5.0 on 5.0

1. There is an interim order in favour of the petitioner as the HC has restrained the IO from filing a charge sheet without the prior permission of the court.

2. Since you have received the notice from  the HC you should engage a lawyer to contest the petition. Don't presume that the petition will not stand.

3. Public Prosecutor has to defend the state. In a quashing petition the complainant also has the right to contest the petition as a necessary party.

4. Police can do anything. You better contest the petition.

5. You can always go to Supreme Court.

Ashish Davessar
Advocate, Jaipur
29956 Answers
864 Consultations

5.0 on 5.0

If you are complainant you can take the copy from public prosecutor. He will assist you. If you are served with the same as a party then you will be given a copy. Secondly you can file your reply with all the documents you wish to annex

Prashant Nayak
Advocate, Mumbai
22447 Answers
49 Consultations

4.4 on 5.0

1) you can ask accused lawyer for copy of the petition 

 

2) you should file detailed reply before next date 

Ajay Sethi
Advocate, Mumbai
79341 Answers
4745 Consultations

5.0 on 5.0

1. The copy of petition must be annexed with the notice you received from the HC? Notice alone is never sent.

2. Affidavit may have to be filed having regard to the grounds raised in the petition. Nothing can be said without perusal of the petition.

Ashish Davessar
Advocate, Jaipur
29956 Answers
864 Consultations

5.0 on 5.0

No you don't have to ask the HC registry. Usually Petition copy is sent before / along with the  notice. If you have not received it, you can take the same from the counsel of the accused or the public prosecutor on the date of hearing.  You can appear before the court and seek time to file the reply by saying that you had not received the copy. 

Alternatively contact either of the above, take the copy of the petiton and file a detailed para-wise reply along with additional points if any before the date of hearing. Also add the documents (if any) as Annexures. 

You may seek the assistance of any advocate for drafting the reply for nominal charges. 

Agam Sharma
Advocate, New Delhi
563 Answers
4 Consultations

5.0 on 5.0

You can demand the copy of the petition filed by him before the court itself directly instead of asking a copy from the registry. 

Yes you will be required to file an affidavit with the registry for appearing as party in person.  

However if you would like to file the documents in your support then you may have to first serve the copies to the petitioner and then file the documents before court directly. 

T Kalaiselvan
Advocate, Vellore
69350 Answers
929 Consultations

5.0 on 5.0

- Yes, being the party/complainant in the quashing petition , you are having your right to get one copy of the petition , hence legally ask for the same in the court. 

- Submit all the documents including your affidavit before the registry after getting the copy of the petition from the court. 

- If you have not got the petition copy , then just appear before the court , and inform that you are respondent in the case , and need a copy of petition . 

Mohammed Shahzad
Advocate, Delhi
5538 Answers
51 Consultations

5.0 on 5.0

Dear Querist

if you are willing to appear in person before the High Court and you have not received the documents along with the Notice then you may file an application before the Registry of the High Court for the supplying the documents or may appear in person on the date fixed and approached the court for supplying the documents of the quashing petition, the court shall allow even your oral application. then on or before the next date of the hearing you may file your written reply before the Registry 

Nadeem Qureshi
Advocate, New Delhi
5780 Answers
271 Consultations

4.9 on 5.0

the only way to get a copy of the petition is to request the Registry of the High Court . you have to appear before them . 

Mohammed Mujeeb
Advocate, Hyderabad
18942 Answers
11 Consultations

4.5 on 5.0

Dear Sir,

You are suggested to submit the memo of your appearance at least 2 days before the court hearing so that it will come on the record and on the day of the hearing, you submit to the Court that the petitioner should supply the copy of the petition and ask the time of at least 15 days for submission of your reply on the petition. Also, request the court that any outcome of the case is likely to affect you and you must be heard by the Hon'ble Court.  

Ganesh Singh
Advocate, New Delhi
6512 Answers
13 Consultations

4.5 on 5.0

You should have received the documents submitted by them for quashing along with the notice. If you didn't receive than you can ask for the copies on the date and ask for a new date for preparations 

Rahul Jatain
Advocate, Rohtak
5364 Answers
4 Consultations

4.8 on 5.0

A- Yes , you have every right to get a free cost of copy of petition with all annexures ,list of documents from the petitioner the accused or his counsel in open court before the the bench of judges not from the registry. If you want certified true copy from the department then you have apply to registry for a copy of petition with cost of each page and after payment of cost then department would supply of copy of petition. Your wish you may have copy of petition on payment from registry and department of  copy section of High Court and free from Petitioner the accused. 

B- After receiving the copy from from the Petitioner you have to file an affidavit in reply answering parawise of the petition as per your wish and the answer which suits to you mostly you have to object the prayers of the Petitioner and seek the dismissal of the petition moved by the Petitioner the accused.

You will have to give one copy to Public Prosecutor, one copy to Police Original with High Court and one copy for self record.

 

Ramesh Pandey
Advocate, Mumbai
2538 Answers
8 Consultations

5.0 on 5.0

1. Th case is a criminal case being FIR No. .... of 2020 (probably) to be fought between the State and the Accused.

 

2. You are the proforma complainant herein for which you have been asked to attend the hearing.

 

3. Contact the PP immediately since he will be fighting for the State taking your side.

 

4. The Judge might ask you some questions in connection with the case/complaint lodged by you.

 

5. You shall not argue the case at all for which the public prosecutor (P.P.) will be there.

 

6. Read your complaint thoroughly and the evidence you have submitted before the police to depose on those issues very gently, if asked by the Court. 

Krishna Kishore Ganguly
Advocate, Kolkata
24715 Answers
701 Consultations

5.0 on 5.0

Yes. You should appear before the court as you received the notice from court. If you have strong evidence for your case you can point that evidence before the court with the help of your lawyer.

 

Hire a lawyer for the process because you are nor aware with the procedure of the court.  

Hiren Jitubhai Brahmbhatt
Advocate, Ahmedabad
8 Answers

Not rated

1. You can appear with your advocate who will assist the public prosecutor.

2. Yes but only after High court give decision which has adverse effects on you. 

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

You should appear on the date fixed and inform the court that you are one of the respondents. The court will ask the petitioners lawyer to provide you with a copy of the petition. Then it will give you some time to file your reply.

Rahul Mishra
Advocate, Lucknow
11562 Answers
20 Consultations

5.0 on 5.0

1) with court permission OP can with draw quashing petition 

 

2) you can object to quashing petition been with drawn but court would permit withdrawal 

 

3). You can use petition as evidence in trial court 

Ajay Sethi
Advocate, Mumbai
79341 Answers
4745 Consultations

5.0 on 5.0

Dear sir,

Whatever the case may be, all the statements made in the proceedings before the High court can be used as an evidence before the Trial Court. 

Rectification of petition is the discretion of the court, you can oppose it if you want to but the court can allow it if it is not substantially changing the entire matter. 

Whether it is withdrawn or dismissed, the effect will not change. So there is no need for you to make a request to that effect. 

Agam Sharma
Advocate, New Delhi
563 Answers
4 Consultations

5.0 on 5.0

- Yes, but if the quashing petition is before the High court, then the trial can be stopped , if other party request the same .

- If quashing will allowed , then the FIR & your complaint will come to end, and trial will also closed. 

- Further, the accused can withdraw its petition from the High court on the sufficient grounds , and court may imposed fine on him ,if you will have objection. 

Mohammed Shahzad
Advocate, Delhi
5538 Answers
51 Consultations

5.0 on 5.0

The answer is no summarily. 

Quashing proceedings before High Court is altogether different from the trial process before trial Court. 

Proceedings before High Court is not a trial.

Its preliminary enquiry and hearing upon the facts and investigations of police to scrutinize the documents prima facie whether trial Court has any chance to proceed with the Petitioner the accused?

After hearing both the side High Court disposes the petition on merits. 

Copy of petition of quashing proceedings before High Court is not an evidence, its record and proceedings. Hence not admissible before trial Court. 

Ramesh Pandey
Advocate, Mumbai
2538 Answers
8 Consultations

5.0 on 5.0

Sometimes this can be used in trial court as evidence. 

depend on judge, court would permit withdrawal of petition. 

 

 

Mohammed Mujeeb
Advocate, Hyderabad
18942 Answers
11 Consultations

4.5 on 5.0

You can oppose it but it's judges discretion to do the needful

Prashant Nayak
Advocate, Mumbai
22447 Answers
49 Consultations

4.4 on 5.0

1. Yes, you can use the statement made by the accused in High Court affirming under affidavit as an evidence before the trial court  in support of your allegation.

 

2.  they have already submitted their petition making statements under affidavit. Withdrawal of the petition does not cancel the affirmation under affidavit.

 

3.Yes, you can pray for the same before the high Court Judge.

 

4. Engage a lawyer having experience in this field since it uis a specialised matter.

Krishna Kishore Ganguly
Advocate, Kolkata
24715 Answers
701 Consultations

5.0 on 5.0

Technically,  statements made in one case cannot be used in another 

Rahul Jatain
Advocate, Rohtak
5364 Answers
4 Consultations

4.8 on 5.0

1. Unless the petition is read nothing can be said.

2. If the petition is allowed to be withdrawn then it is of no use to you.

Ashish Davessar
Advocate, Jaipur
29956 Answers
864 Consultations

5.0 on 5.0

Dear Sir,

In any case of dismissal/withdrawal of the said petition in High Court, you will be able to use the content of his petition in trial stage.  

Ganesh Singh
Advocate, New Delhi
6512 Answers
13 Consultations

4.5 on 5.0

Your lawyer can do that but it will not be entertained.

Swarupananda Neogi
Advocate, Kolkata
2904 Answers
6 Consultations

4.7 on 5.0

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