• False complaint by Scheduled Caste

Sir,
I am a govt servant.
Against a false complaint by a scheduled caste under SC ST Act, the MM under 156(3) ordered police for enquiry. 
Police submitted its report that complaint is false, malicious and fabricated and nothing could be substantiated.
But MM ordered registering FIR and for detailed inquiry by police. 
We moved session court for revision and stay of defective order of MM challenging the legality of order. 
FIR is yet not registered.
The session court in 1st hearing did not stay the MM order and has put date and notice to parties served.

My questions are:
1 Non stay of MM order- does it mean imminent arrest(when (a)  the complainant had not named any witness as per requirement of Act and (b) police report which cleared me )
2 In case of FIR, what action can I take? What are the chances of such a legal recourse?
3 In case of arrest, in what shortest time one can get bail? and the procedure please.
4 being a govt servant , arrest is biggest worry though we have no objection to any investigation as complaint is totally false. How to safeguard this ?

Thanks
Asked 5 months ago in Criminal Law from New Delhi, Delhi
Religion: Hindu
1.Though it does not mean imminent arrest but technically police can arrest.However seeing the conduct of the Police so far arrest is not likely.
2. If revision beofre sessions court takes time, do apply for bail.
3. Grant of bail differs with the gravity of time. 7 days time s standard time.
4. Challenge the revisional court's order in high order so the high court may grant stay on arrest during the pendency of revision in sessions court.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
1. You should apply for and obtain anticipatory bail as arrest is likely to take place in view of the fact that the order of MM has not been stayed.

2. After arrest you may not be able to obtain bail for months, so take preventive measures to avoid arrest.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1)you would not be arrested no FIR is registered yet 

2)you should move HC for quashing of complaint as police in its report has mentioned it is false complaint 

3) you can also apply for AB on grounds that police report itself mentions complaint is false 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
My questions are:
1 Non stay of MM order- does it mean imminent arrest(when (a)  the complainant had not named any witness as per requirement of Act and (b) police report which cleared me )

In the absence of registration of a FIR, there is no necessity to stay the proceedings at  MM  so soon or it is going to make any difference because there can be no arrest without FIR.
You can wait for the next date of hearing on this.




2 In case of FIR, what action can I take? What are the chances of such a legal recourse?

You can take anticipatory bail from high court and then face the case



3 In case of arrest, in what shortest time one can get bail? and the procedure please.

It depends on the court's discretion, you may get it in one day also.based on the gravity of the charges







4 being a govt servant , arrest is biggest worry though we have no objection to any investigation as complaint is totally false. How to safeguard this ?

Once a FIR is registered, you may go into hiding and emerge after anticipatory bail is granted



T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1 In SC ST Act , anticipatory bail provision doen't exist.
Even then, can AB be applied? under what rules please? and is it only before HC?

You can move high court for AB





2Can one move HC for quashing the complaint and for anticipatory bail together? or how ?

AB is a different subject to that of quashing, dont mix up both together
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
I did not advise you for AB. I asked to go for bail which can be obtained by way surrendering yourself beofre the court and as k for regular bail u/s 237 of crpc.
Since AB is not available only quashing can be availed of but not at this stage since one revisional application is already pending in sessions court. 
Only after dismissal of the same you can go for quashing.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
decisions of the Delhi High Court in Dr. R.K. Sangwan & Anr. vs. State, 2009 (112) DRJ 473 (DB) and in Crl. M.C. No. 3866/2008 and Crl. M.C. No. 1222/2009 titled M.A. Rashid vs. Gopal Chandra decided on 23.03.2012 and a decision of the Orissa High Court in Ramesh Prasad Bhanja & Ors. vs. State of Orissa, 1996 Cri. L.J. 2743,  in spite of the specific bar under Section 438 of the Code, the Courts have granted anticipatory bail to the accused who were charged under Section 3(1) of the SC/ST Act.

2) you should move HC for AB 

3)wait for filing of charge sheet  then based on legal advice move HC  for quashing 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Dear Concerned 

a. The FIR has not been registered hence no need to go for Anticipatory Bail or Quashing
b. Go for a protection writ (Mandamus writ) to the High Court for lower court to decide on the matter at the earliest. 

On other hand it is suggested that as the FIR has not been registered , the cops have given a positive report saying this is false complaint - MM failed to understand - Sessions have not yet decided. - In such case don;t be proactive wait and watch what happens on Next date - Keep your Anticipatory bail ready with the facts and move it immediately if there is any negative order. 

Best of Luck . Stay Blessed. 
Atulay Nehra
Advocate, Noida
424 Answers
15 Consultations
4.7 on 5.0
SC/ST Act is a special legislation, and therefore the provision of AB does not exist. However, its existence in the code permits you to apply for and obtain AB. You are also free to move the HC for quashing. 
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0

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