• 498A quash and passport collection

I am an Australian citizen now. 498A was filed against me
And my parents… for my parents 498A was quashed by high court: however, as I was in Australia in 2019 and then I could not come seems like LOC was issued by police against me. 2022 I because Australian citizen and in May I came to India. On airport I was held and police came and took me to my native. All went well and on papers they showed my arrest as my permanent address is Australia they said they can’t issue form 41 to me. I was presented in court and I got bail.
My questions:
1) I am moving my case to high court as well basis my bail as I am not sure how long police will take to file chargesheet. How good are the chances to get the case quashed
2) where should I file my request for passport return and permission to travel (lower court or higher court) and how good are the chances to get the approval
3) can police hold my foreign passport?
4) Need best advice on how to proceed as my leave ends on 23 June moreover I am on Tourist visa.
Asked 3 years ago in Family Law
Religion: Hindu

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8 Answers

  1. After filing of quash, notice will be issued to complainant/wife seeking her reply. Then matter will heard and orders passed. It will be not less then three months. You can try filing 205 petition in trial Court and seek exemption from appearance till judgment of case.
  2. You need to seek return of passport from the court which seized the passport. Prayer to return passport can be clubbed with petition under Section 205.
  3. Police has no power to seize foreign passport.

Ravi Shinde
Advocate, Hyderabad
5134 Answers
42 Consultations

Dear Client,

the Police may have the power to seize a passport under the Criminal Procedure Code, it does not have the power to retain or impound it. the Police seizes a passport, they must send it along with a letter to the Passport Authority. even a Court cannot impound a passport despite the enabling provision in Section 104 of the Code. the Passport Authority of India will not impound an NRI's passport on a mere complaint under section 498A. you can file a petition requesting the court to grant your passport to you stating the valid reasons. 498 A is for a non bailable offence and you need to give a solid evidence that the allegations are wrong. you would have applied for anticipatory bail and pre arrest notice from court before the arrest.

Anik Miu
Advocate, Bangalore
11020 Answers
125 Consultations

- if the accused is supporting the investigation / settlement /counseling, then there will be no restriction to travel the country resided by him.

- There is no limitation for a police official to call accused for investigation purposes before filing charge sheet , till his satisfaction. But if the accused is feeling harassment, he may approach the top official against him and also can file an application before the court against him for the said harassment or limitations.

-Under section 498A, if accused supporting the police official, then bail is not mandatory, means it becomes bailable as per latest Supreme Court judgment. 

1. Since, the FIR against your parents already quashed , then it seems that you have sufficient grounds for quashing the FIR against you as well. , specially when you are a foreign citizen now. 

- Further , even before filing the charge sheet , you can approach the High court , and it may take at lease 3 months to file the charge sheet. 

2. If your passport has impounded by the court , then you should approach the impounding court firstly , and if reject then approach the High Court 

- Since, you are an Australians citizen , then Court cannot hold your passport legally for such matrimonial cases , which not come under the heinous crimes. 

3. Never , 

4. Approach the session or High Court immediately after moving an urgent application with the application.  

Mohammed Shahzad
Advocate, Delhi
15821 Answers
242 Consultations

1) If your spouse take case back then it will be quashed. Try to get middleman involved in this who was/were present at the time of marriage.

 

2) You can file request in high court by giving job reason.

 

3) Kindly get involved in this case Ministry of External Affairs to go back Australia before 23rd June.

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

1.  Since the case against other accused had been quashed, you can add that grounds also besides the merits in your side in your application for quashing the FIR.

2. Before the trial court.

3. No.

4. You may have to file an application before trial court about this along with the copy of the visa and proceed accordingly. 

T Kalaiselvan
Advocate, Vellore
90036 Answers
2498 Consultations

Quashing is to be done only in exceptional circumstances 

 

2) HC is reluctant to quash fir pending completion of investigations 

 

3) file application in trial court for return of passport and permission to travel abroad 

Ajay Sethi
Advocate, Mumbai
99836 Answers
8148 Consultations

You had lawyer who quashed your parents and still you got arrested due to LOC.

 

Police can not keep your passport however you need court order to fly back.

Since you were not in India thatswhy chargesheet was not filed. 

You can give reason to fly because your visa is expiring so your further stay will be illegal.

Since you cn afford thatwhy directly approach HC but check your state timeline. 

Lower court will be faster in taking decision.

HC will be more liberal in decision. 

Ankur Goel
Advocate, Bangalore
454 Answers

Permission to travel and other all things before trial court 

Prashant Nayak
Advocate, Mumbai
34550 Answers
249 Consultations

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