• Quashing the FIR/CS U/S 376 & 493 and CS u/s 493 & consequence

Palash (30) & Puja (28, MA, BED) had Friendship & love relation for last 6-7 years. But when puja & her family came to Palash & family for marriage proposal, palash denied marrying the girl due to some reason. After creating some political pressure on Palash’s family, Puja lodged a FIR on 29.10.2013 against Palash with the help of some political leader. Police charged the sections 376 & 493 and started investigation. The text of the FIR was as follows:

[I am Puja of -----------------------, I have love relation with Palash for last 7 years. But now he is not ready to marry me. He has physical relation with me on the basis of promise of marriage more than one occasion.  His friends (X,Y & Z etc.............) know everything. Kindly accept this letter as FIR]

In the mean time Puja declined herself for the medical test. 

On 18-12-2013, Palash got anticipatory bail from the division bench of Hn. High court by 1st attempt against PR Bond. After that he has gone through the medical test & surrendered himself in local PS & lower court.

There was no pregnancy /abortion & such cases in the history of that relation. Only one occasion they both passed 2-3 hours in a hotel (3-4 years back) due to some issue. Police has copy of that hotel register. Also there are some group & couple photographs. Few of friends & some local people knew about their love relation because they used to see them but there is no such witness of the physical relation which she is blaming.

Almost one year passed but still charge sheet not yet submitted by the police. 2-3 times IO changed for this case.

Now the case is going on at lower court & Palash’s lawyer is taking the date on behalf of Palash month by month.

Under the above circumstances kindly advice:
•	Is it good chance & good time to file the quashing petition?
•	If police submit the CS u/s 493, then what is the ingredient to prove the same? What is the maximum consequence for this case? 
•	Is there any other way out to get released from this case? Both are not ready for mutual.
•	Is there any problem if Palash now wants to marry a girl other than Puja?

Kindly advice.


D Das (on behalf on Palash)
Asked 2 years ago in Criminal Law from Kolkata, West Bengal
He can file a petition to quash the same in e high court since if it is there puja has not yet willing for medical test and she has to prove the physical relation through it.based on the evidence you can get him discharged
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
Non- filing charge sheet within 90 days is itself a ground for quashing FIR.He can file for the same.
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
1. Filing for quashing of FIR is a remedy which can be pursued in any criminal case. It may work in some cases and it may not work in other. Without perusing the FIR it is not possible to advise on filing for quashing. What goes in Palash''s favour is the refusal of Puja to undergo the medical test. Her refusal to submit herself to medical test clouds her story with suspicion. Quashing of FIR may be sought on this ground. In rape cases denial of bail is the rule and grant an exception. Unless the HC on scanning through the case found the allegations to be lame it would not have granted bail. 

2. Police will have to prove the occurrence of rape. Mere submission of charge sheet will not help its cause. The ingredient required to prove will emanate out of charge sheet itself. The maximum imprisonment is life imprisonment.

3. There is no way to close the case. Palash will have to prove his innocence. 

4. He is free to marry any one.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
The Calcutta High Court is loath to delve into quashing as long as charge sheet is not submitted.
The modus of proof would depend on the merit of the case without knowing which fully it is difficult to advise.
Before conclusion of trial, getting rid of the case is difficult.
Knowing another girl is of no consequence in this case.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
The FIR shall not be quashed because CS has been filed beyond 90 days . In case of offences carrying sentence of more than 3 years there is no time limit provided in crpc.I have some reservations as to quashing FIR at this stage. The evidence of the complainant on 'consnt' will be important to see. The SC in the case of Uday v State of Karnataka  2003 has discussed it. I dont remember the ruling at this time but when a girl is well educated it can not be held that the consent to sex was involuntary.
H. S. Thukral
Advocate, New Delhi
514 Answers
125 Consultations
5.0 on 5.0
Hello,
Merely because the charge sheet has not been filed your friend can not file for quashing of the FIR.Let him face the trial as she has not agreed  for medical test.As the burden to prove the rape charges is on the complainant.Gather sufficient evidence to prove that the sexual encounters were consensual.This will help clear him of charges under sec.376
Also wait till the charge sheet is submitted as it will help one to determine the defence.
At this stage I won't advise moving a petition for quashing the FIR.
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0
1. What has been complained in the said FIR is required to be seen for advising properly,

2. The fact that Palash got the AB from the Div. Bench of High Court on the 1st appempt  is a possitive sign since normally it is difficult to get AB in rape cases, that too on the first attempt,

3. Based on the fact that police has not filed the CS even after one year and also as the lady has refused to stand medical test to peove her allegation against Palash, an application before the HC for quashing the FIR can be filed,

4. While filing the CS u/s 493, the police has to prove physical relationship first between the two which is not possible now for the kady's refusal to stand medical test,

5. Since, the FIR has already been filed and the lady is not willing for any mutual, no way other than Court battle is envisaged,

6. Palash can certainly marry anybody else since there has been no bar on him in this regard.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Dear Querist
my opinion on your queries are as under:

Is it good chance & good time to file the quashing petition?
Opinion: No, this is not a fit case for quashing, it will be better to fight the case on merit, the boy will got acquittal.
•	If police submit the CS u/s 493, then what is the ingredient to prove the same? What is the maximum consequence for this case? 
opinion: the breach of promise or trust as per mention u/s 493 of IPC is very difficult to proved, so due to benefit of doubt the case will be dismissed and the boy will get acquittal. fight the case with the help of lawyer who should be expert in FAMILY MATTER  with criminal cases.

•	Is there any other way out to get released from this case? Both are not ready for mutual.
Opinion: fighting is only option to get released from this case.

•	Is there any problem if Palash now wants to marry a girl other than Puja?

Opinion: No, there is jo problem, He is free to marry with anyone nobody can restrain him to do that.
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0
you can go for quashing of FIR By high court if you donot get success then fight on merrit. palash can marry another girl. 493 can not be proved without medical test of girl
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
1. Medical examination at such a belated stage will not reveal anything. It cannot even be conducted now.

2. The occurrence will have to be proved with the aid of proof.

3. These are valid proofs and may work against Palash in court if taken in totality. 

4. Palash may be given a jail term for up to 10 years.

5. If HC does not allow quashing then the judgment of HC can be challenged in the Supreme Court. In many cases where the HC disallowed quashing, the SC allowed it, but this is subject to the peculiar facts of every case. Disallowing of quashing will not have any effect on the merits of the case.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
When charge sheet is filed, your lawyer should argue on charge u/s 493 of IPC In my opinion this charge can not sustain. Whether inducing the girl to have sex on promise of marriage would amount to rape or not has been discussed in the case I already mentioned in my first reply. Delhi HC has elaborated further in the  case of Surjit Ranjan v State . Please go through the same.
H. S. Thukral
Advocate, New Delhi
514 Answers
125 Consultations
5.0 on 5.0
now medical examination can not be conducted. secondly 493 is to proved with evidence. you should approach high court for quashing. if not done then you may approach SC. no effect on merits during trial
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
Let her prove with medical examination since she is not coming for 2 years just try to negotiate and settle the same.if she proves with hotel bills etc you will boojed
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1. Nothing can be proved medically after 2 years of the alleged incidence,

2. It is extremely difficult for them to prove her vallegation u/s493,

3. This is circumstancial evidence only untill Palash can show reason for staying there for that long a time,

4. Maximum punishment is jail term for 10 years,

5. No. It will be treated as the application has ben rejected. Nothingelse.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0

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