• 498a

Namaste ALL,
1. My wife filed 498a against me and my family few weeks ago(August 10th). And the Document "Notice undersection" which the police brought to our home under the pretext of investigation says "Everyone will be arrested if not reported to Police station before a certain date" which was 3 days from today and police gave us some time to settle the case outside the court.  There was no real investigation done and the document says there is enough proof to arrest all of them. can we question that proof? Do you think they were under high influence? I dont think there was any investigation done, they were just sucking in everything what my wife said.

 2.My sister and my brother live abroad, do police have right to arrest someone outside India without any solid proof? without us questioning the proof?
My wife is changing the context of what they said to her once upon a time and using false claim to file a case on my brother and sister. How do i protect my brother and sister?. I dont want them to be troubled coming to India just for this. Me and my parents are willing to go to police station and get bail and goto curt and fight the case but i dont want my sister and brother to be involved at all. What can i do to protect them?

3. What should be my next step to negotiate with their family?
Asked 3 months ago in Family Law from United States
Religion: Hindu
1) police has to issue notice under section 41 A of Cr pc to record your statement . on receipt of notice go to police station and have your statement recorded 

2) police cannot arrest your family members arbitrarily 

3) apply for and obtain AB from sessions court 

4) it does appear that your wife has greased some palms in local police station 

4) your brother and sister can come down to india and apply for AB 

5) they can also move HC for quashing of the complaint filed against them
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
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1. It appears that police sent you notice u/s 41 crpc and that is done only if FIR is registered.
2, If that is so then you can meet the Investigating officer to cooperate in the investigation.
3. However beofre doing so, do obtain anticipatory bail.
4. Once your brother comes to India apply for bail for them as well.
5. Nowadays the court liberally grants bail to all accused in 498A case.
6. First take bail and then negotiate with them at leisure.
Devajyoti Barman
Advocate, Kolkata
5226 Answers
54 Consultations
4.9 on 5.0
1. The police may be brought notice under Section 41 CR PC. After receipt of a guilty complaint, the police how to serve notice on the husband find and his family members. According recent judgement of Honorable Supreme Court the police cannot arrest without problem investigation. Earlier, there were immediate arrest arrests in the obligations but after judgement in arnesh kumar v. state of Bihar, the hon double Supreme Court clearly fond that the cases under section 498 a registering against the husband and his villagers who are bed ridden are settled in a broad decades ago. after receipt complaint generally the police will react on the strength of complaint given to them. You have 2 to verify whether there was any FIR registered, if register you can obtain a copy of the fire FIR and other burglar relied upon documents from concerned Magistrate Court may applying certified copies and you have 2 apply for anticipatory bail. 2.the case will not be proved against your sister and your brother who are at abroad.   Police can resisted the case, the duty is to grant the person before the hon'ble court And it is the Court to decide. You can seek quashing of the proceedings against you and brother and sister by filing it quash petition before the Concern hon'ble High Court .3. The negotiations will be either to stay with her with mutual understanding of for getting divorce.
Lakshmi Kanth
Advocate, Hyderabad
224 Answers
2 Consultations
4.8 on 5.0
1. Adopt a practical approach. The notice that you have received is a mandatory notice which is now to be issued by the police all over India in the light of the Supreme Court's judgment. This notice gives you respite from a surprise arrest. So immediately apply for and obtain anticipatory bail so that you do not suffer arrest and detention after the expiry of the notice. Influence or not is not to be seen at this stage, you can take care of that at the trial.

2. Indians residing abroad can also be arrested through a warrant of arrest and brought to India, but the sword of arrest imminently hangs on the heads of those accused who are in India. After obtaining bail your sister and brother can move the High Court for the quashing of the FIR.

3. The next step should be to apply for AB.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
1. The investigation has started for which the said notice has been sent to you calling up on you to visit the police station within the stipulated period. As per Supreme court directive, police can not make any arrest with out conducting investigation i to the complaint lodged by the wife for which the police has initiated the investigation procedure. You are required to co-operate with the police in conducting their investigation. If you do not co-operate or visit them as asked by hem, the investigation may be one sided resulting in to your being arrested.

2. Police will not arrest any body without conducting an investigation in to the matter as stated in my earlier post. During his investigation, if the IO finds some irrefutable document or evidence in support of the complaint and feels that the same act may be repeated by the accused, then he can arrest such accused. Police will not go abroad to arrest anybody. They will pray for issuing a non bailable warrant/look out notice and/or pray for impounding passport and if such order is passed, police will have no problem in making the said arrest once your brother and sister arrives from abroad to India.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
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There was no real investigation done and the document says there is enough proof to arrest all of them. can we question that proof? Do you think they were under high influence? I dont think there was any investigation done, they were just sucking in everything what my wife said.

A complaint in writing and your non-cooperation with the police shall be enough for the police to conclude about the prima facie evidence to the offence and can register a FIR and remand all the accused. 
Hence it is advisable that your parents first try to obtain Anticipatory bail from court and then attend the inquiry session before police. Until then let them be in hiding to avoid police excess who may acting at the behest of your wife's considerations passed to them. 
All other details what you have discussed shall be taken up during trial only and not before the police who will conduct preliminary inquiry into the alleged incidents. 






My sister and my brother live abroad, do police have right to arrest someone outside India without any solid proof? without us questioning the proof?

Right to arrest is different from how to arrest the people who are residing in a foreign country. 
If police are satisfied about the complaint and its genuineness, they can initiate legal action against the accused, you can challenge all those false allegations only in the trial proceedings and not before police.  
The police will be determined to not to listen to your grievances nor they will be bothered to know about the actual facts. 
This is police arrogance. 
Your sister and brother need not visit India for this purpose.  Let the police keep searching them.  Finally the police will split the case and may conduct trial for you people separately and for them separately.
Afterwards you can apply for quash of case against them.







3. What should be my next step to negotiate with their family?

If they are ready to settle the matter by talks, you may offer them your rates as well. 
 
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0
1)you have to contact a local lawyer . he will file petition under section 482 of Cr pc for quashing 

2) legal fees vary . it may take around 6 months or so 

3)  if one of the accused was not in India and wife has accused him of acts of cruelty during said period  court may quash FIR 

4)498A can be invoked for continuous acts of cruelty. case under DP act can be filed if   demands for dowry were made before or at time or after marriage . if wife alleges she was harassed as she did not bring enough dowry like car , cash etc case can be filed against accused family members of the husband 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
1. The procedure is lengthy and technical, you an contact an advocate who practices in high court for doing this on your behalf.

2.  The lawyer's fee cannot be predicted.

3.  You Can Narrate the incidences and handover the evidences in your possession to the advocate who you are proposing to engage, he will take care of other issues. 

4. Your advocate will brief you about it too.


5.  You should rely upon the substance by which you are planning to defend yourself before trial court as well as seeking quash of the case on the basis of her false allegations.
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0
1. As of now FIR also has not been registered and it is still in complaint stage against which investigation is being conducted by the police.

2 After conducting the investigation, if prima facie evidence in support of her complaint is found by the polie investigation officer, the he will register a FIR against the accused.

3. As soon as FIR is registered, all the accused shall have to avail anticipatory bail to avoid arrest.

4. After that the police will file charge sheet before the Court trying the matter.

5. Only after the said charge sheet is filed, one can file a petition before the High Court praying for quashing the FIR finding loopholes in the said charge sheet.

6. At this state the question of filing quash petition does not arise at all.

7. Yo are to submit the evidence for negating the charge sheet.

8. The Judge will decide what action of yours will be treated as torture on her since the definition of torture may differ from person to person.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. The procedure is simple-engage a lawyer and sign the vakalatnama in his favour on remittance of his fee.

2. Instead of taking station bail and undergoing the ignominy of arrest obtain stay of arrest and then you may move the HC for the quashing of FIR.

3. No arrest warrant is required to arrest anyone in 498A. Police can arrest without warrant.

4. Police will not file the chargesheet without attempting to arrest you. 

5. Once you get the stay you can move for quashing of FIR.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
1) since 498A case has been filed apply for and obtain AB from sessions court 

2) in said application draw attention of court ti FIR  filed by you against FIL  for assaulting you 

3) you can apply for  quashing of FIR ion HC if allegations made in FIR do not  disclose any offence committed by you 

4) please note that quashing is to be done only in exceptional cases 

5)as per latest SC judgment police cannot arrest you arbitrarily. Police have to conduct investigations and submit report to magistrate 

6 ) charge sheet has to be filed after investigations are completed
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
 So our lawyer was saying because they hit you and u r not safe, we can ask for "STAY" until the investigation is complete from the highcourt and also file petition for quash. Can i get anyother advices here?

You may not get stay at this stage by the high court.
You may try to get AB first and then when the charge sheet is filed then you can apply for quash and stay, that will the right time.
The police cannot grant station bail in 498a.  Section 498A of the IPC deals with a non-bailable offence, which applies to a husband, or relative(s) of a husband, of a woman, who is/are subjecting her to cruelty.







Can the police file chargesheet without they arresting us or doing any investigation as we are under hiding and expecting stay from highcourt?

Yes, the police can go ahead with filing charge sheet stating that the  accused are absconding.  
But filing of charge sheet will take time.







Once we get stay for few months , what happens?

As I opined earlier, getting stay is not as easy as what you think.
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0
You  have good chances of obtaining stay 


2) it is doubtful you will get stay in 3 days may take around 15 days or so 

3) you have to file transfer application in HC for transfer of case to Hyderabad on account of threats to your life 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
This is basically a criminal case filed by them against you people.and the criminal law procedures shall be appropriately adopted.
If your advocate is confident enough to get stay in three days, you can go ahead, but practically it is not possible.
It will be an unsafe situation if you dont apply for AB.
This has not been filed before the court as a  case yet hence there are no chances of moving it to Hyderabad at this stage.
The life threat what you say cannot be established before court for all the reliefs you seek now.
The court will not be convinced about it and it will brush it aside considering it as a routine affair. 
Thus you may decide further course of legal action accordingly.
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0
1.  Did you pray for a stay in the entire proceeding of the 498A case? I am not very optimistic about your getting the said stay.

2. If you are apprehensive of any threat on your life, you can seek protection for your life but it is very unlikely that the Court would stay the 498A proceeding? Till which date you have prayed that the said 498A proceedings should be stayed? 

3. You have a fair chance of getting the AB in this matter and a very strong police protection while attending the 498A case.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. Police can not grant bail against FIR filed u/s498A of IPC. The bail shall be granted by the Court. police also can not make any arrest without conducting investigation about the complaint. It will be prudent on your part to take AB in the matter and then contest the case fittingly seeking police protection. Quash petition can be filed before the High Court after charge sheet is filed by the IO of police. Charge Sheet can be filed with out making any arrest of the accused.

2. Is it that the police had called you for conducting investigation for which you did not co-operate and the police got the chance of recording that you did not co-operate in their investigation which prima facie made you guilty of the offences reported against you by your wife? You should have visited the police on being asked since there was no chance of arrest because of the Supreme court direction up on the police directing them not to make any arrest based on wife's complaint u/s 498A of IPC with out conducting an investigation in to the said complaint.
 
 
Can the police file chargesheet without they arresting us or doing any investigation as we are under hiding and expecting stay from highcourt?

Once we get stay for few months , what happens?

what other advices and possibilities can you give me from here?
Asked 15 hours ago
1.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. The chances depend on the specific allegations in the FIR, albeit the subsequent filing of the case against you can work to your favour.

2. A criminal case can be transferred only on the ground that the accused is not getting a free and fair trial. 
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
1) we do not advise you to pay any bribe to police officers 

2)quashing is to be done only in exceptional circumstances . if allegations made in FIR do not  disclose commission of any offence HC would quash the complaint filed by sister in law 

3) your sister in law can file Domestic Violence  case against your mother  as it satisfies twin requirements of domestic relationship and shared household 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
1. If you are sure that the IO will show to prove that you, your sister an mother were not at all involved in connection with the complaint of your SIL, then it will be prudent on your part to pay him off, since it will relieve you from the harassment and tension of attending the hearings. Moreover, the cost of filing the quash petition also may be more than the amount you are going to pay to the IO.

2. As regard the present complaint of your SIL is concerned, you, your sister and mother will be completely protected from any proceeding. However, nothing can restrain your sister in law from further filing any case in future against any or all three of you.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. I want my mom's name , me and my sister's name to be taken out of the chargesheet(me and my sister  live in USA and evidence is not there at all) . I called up the SI police and asked him to take out our 3 names and he hinted for 10k/head to remove the names from chargesheet.
option A)Do you think its better to pay these policemen and make sure that 3 names are not present in chargesheet now itself 

You are asking for an opinion for an illegal act, no opinion can be rendered on this and it depends on how you manage 

OR



option B) let the chargesheet be filed against three of them, do you suggest that we take care of it through quash petition? If chances of quash are low, i would rather rub the hands of SI with cash as 30k is not that big an amount to get rid of the hassle 

You insist advise on the propose illegal act namely bribing the police,  it is against law and as a lawyer such things cannot be entertained. 





2. If i make sure that our names are not present in the chargesheet , is there any guarantee that we are completely protected from any proceedings of the court or the the other party can file some other complaint and drag all 3 of us again? how complicated is that procedure for them and what are their chances?

No comments.




I want to reiterate that there is literally no evidence on me, my mom and my sister.

If you are confident that there is no evidence or case maintainable against you, what prevents you from contesting it instead of approaching the back door entry with an illegal act. 








T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0
Pay your lawyer to adopt your legal remedies, and not SI. Even if the SI takes out the name it will be added again for sure if the complainant files a protest petition which will be a two way traffic between the complainant and accused wherefrom police will be excluded, resultantly your money paid as bribe to SI will go waste and you will be back to square one. So go for quashing of the charges either before the HC or apply for discharge.

Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0

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