498A event sequence
Understanding 498A:
It reads as (you can read
here):
“
498A. Husband or relative of husband of a woman subjecting her
to cruelty.—Whoever, being the husband or the relative of the husband of
a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine.
Explanation
For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view
to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of failure
by her or any person related to her to meet such demand.”
In legal terms, 498A is an offence, which is:
- Cognizable: Offences are divided into cognizable
and non-cognizable. By law, the police are duty bound to register and
investigate a cognizable offence. Cognizable does not mean that the
police can arrest you upon the filing of the FIR. They are required to
investigate as a first step. 498A is a cognizable offence.
- Non-Bailable: There are two kinds of offences,
bailable and non-bailable. 498A is non bailable. This means that the
magistrate has the power to refuse bail and remand you to judicial or
police custody.
- Non-Compoundable: A non-compoundable case, e.g. Rape, 498A etc, cannot be withdrawn by the petitioner.
Honorable Supreme Court has explained 498A (in M. Srinivasulu vs. State of A.P. (Read
here) as below:
“
11. Section 498A reads as follows:
“498A: Husband or relative of husband of a woman subjecting her
to cruelty- Whoever, being the husband or the relative of the husband of
a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine. Explanation For the purpose of this section ‘cruelty’
means
(a) any willful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or
(b) Harassment of the woman where such harassment is with a view
to coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by
her or any person related to her to meet such demand.”
12. Consequences of
cruelty which are likely to drive a woman to commit suicide or to cause
grave injury or danger to life, limb or health, whether mental or
physical of the woman is required to be established in order to bring
home the application of Section 498A IPC. Cruelty has been defined in
the Explanation for the purpose of Section 498A.”
You can read more about it here.
Following are the sequence of events that you can expect to occur in case of 498A case is registered against you.
- F.I.R.
- Police Investigation (if at all takes place) &
arrest without any necessity of warrant.In some States, D.C.P.’s
permission is required for arrest. You can seek Anticipatory Bail / Stay on Arrest before arrest also.
- Bail. Police asks for ‘Police Custody’ (called
‘PC’) for interrogation and recovery of articles (S.406 IPC). Accused
submits custodial interrogation is not necessary etc. Then magistrate
pass order for ‘Judicial Custody’ (called ‘JC’). Then accused apply for
‘bail’, say from ‘police prosecutor’ (called ‘pp’) and Investigation
Officer (called I/O) is asked by court who always strongly objects
religiously and then on argument from accused counsel it is granted (or
not granted, then go to Session Court to High Court to Supreme Court, at
some place it is given). Important fact is that ‘bail’ is always
granted from ‘JC’ AND NOT FROM ‘PC’. The process in legal fraternity is
called breaking ‘PC’ to ‘JC’.
- Charge Sheet. After completion of investigation
police will submit chargesheet, and you shall be intimated about the
same. You shall always be maintain a tab on chargesheet as many times
police/court don’t send information (which they have to) to accused at
the time of filing chargesheet, but it does not harm accused except that
precious time is killed.
- At the time of receiving charge-sheet which is given free of cost to ‘each’ accused
by ‘pp’ in court, sometime court asks accused whether they are guilty,
normally accused say – not guilty. Check the charge sheet – it is also
called ‘Final Report’ – there should be a table showing list of
witnesses and documents – many times it is not given, tell court for any
discrepancy in it.
- Then dates, accused must attend them or take exemption u/s205 of Cr.P.C. (permanent till trial starts).
- Firstly, charges are framed u/s240 Cr.P.C. (if discharge application not made u/s239 Cr.P.C.) when accused can oppose.
- Then First witness – wife – PW1 – PP asks question to her based on her complaint to take FIR on court record. Then accused’s counsel cross examine her.
- Then her father (Pw-2), Mother (PW-3), Sister (PW-4) etc. whomsoever I/O has taken as witnesses and taken statements (which are given with charge-sheet to accused).
- Then I/O’s examination-in-chief by PP and cross by accused’s advocate (counsel).
- With this, prosecution evidence closed. If accused has any witness, they can be called as defense witnesses
(normally not called as they may by mistake say something against
accused in cross examination). First accused’s advocate will take
examination-in-chief and then PP will take cross-examine (prosecution and defense role changes).
- Accused are examined by magistrate u/s313 Cr.P.C.
- Then argument is given by PP followed by the accused’s advocate.
- The order – Acquittal/Sentencing.
So there are roughly
6 major stages to a 498A once the case is registered. Please find the relevant information those are useful to you in each stage.
- Registration of case.
- Arrest
- Bail / Anticipatory Bail
- Charge sheet
- Witness / Cross Examination [Prosecution Witness-->Defense
Cross-->Defense Witness (optional)-->Prosecution Cross
(optional)].
- Judgement / Order.
1. Registering 498A:
498A case can be registered / initiated in 2 ways.
I. By directly lodging a FIR (First Information Report) (read more about FIR
here) in a Police Station. FIR is recorded under CrPC 154.
II. By lodging a General Diary in a Police Station and then getting a court order under
CrPC 156 (3) , in this case the court will direct the Police start investigation in the case.
2. Arrest:
The most common reason to lodge a false 498A (apart from extorting
money). They will try show you their power by getting all your family
members arrested. The police force will also happily join their hands
with them happily into this as they can also extort some hefty amount
from you.
In case you get to know about a 498A case against you, immediately
try to secure AB / Stay on Arrest. That’s utmost important. Once you
have this, rest things will fall in place slowly as according to me, you
have own 50% of the battle. Details on how to secure bail is discussed
in next section.
However, till the time
you secure bail / anticipatory bail / stay on arrest it is not easy and
mandatory for the police to arrest you. Read below to understand:
2.1 CrPC 41 Amendment, 2010:
As per CrPC 41 Amendment, 2010 (read about it
here)
police needs to issue a notice to you, and if you fail to comply to its
terms and comply with it, you should not be arrested. Excerpts below:
41 A. Notice of appearance before police officer. — “
(1) The police officer may, in all cases where the arrest of a person
is not required under the provisions of sub-section (1) of section 41,
issue a notice directing the person against whom a reasonable complaint
has been made, or credible information has been received, or a
reasonable suspicion exists that he has committed a cognizable offence,
to appear before him or at such other place as may be specified in the
notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the
notice, he shall not be arrested in respect of the offence referred to
in the notice unless, for reasons to be recorded, the police officer is
of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of
the notice, it shall be lawful for the police officer to arrest him for
the offence mentioned in the notice, subject to such orders as may have
been passed in this behalf by a competent Court.
Already Delhi, Kerala and Hyderabad Police have issued circulars in this regard. Read here:
Delhi:read
here
Hyderabad: read
here
Kerala: read
here &
here
2.2 The Apex Court said: (In Joginder Kumar vs State Of U.P on 25 April, 1994 Judgement
here) excerpts below:
“20. In India, Third Report of the National Police Commission at p.
32 also suggested: “An arrest during the investigation of a cognizable
case may be considered justified in one or other of the following
circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery,
rape etc., and it is necessary to arrest the accused and bring his
movements under restraint to infuse confidence among the terror-stricken
victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behavior and is likely to
commit further offences unless his movements are brought under
restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.”
It would be desirable to insist through departmental instructions
that a police officer making an arrest should also record in the case
diary the reasons for making the arrest, thereby clarifying his
conformity to the specified guidelines……”
The above guidelines are merely the incidents of personal liberty
guaranteed under the Constitution of India. No arrest can be made
because it is lawful for the police officer to do so. The existence of
the power to arrest is one thing. The justification for the exercise of
it is quite another. The police officer must be able to justify the
arrest apart from his power to do so. Arrest and detention in police
lock-up of a person can cause incalculable harm to the reputation and
self-esteem of a person. No arrest can be made in a routine manner on a
mere allegation of commission of an offence made against a person. It
would be prudent for a police officer in the interest of protection of
the constitutional rights of a citizen and perhaps in his own interest
that no arrest should be made without a reasonable satisfaction reached
after some investigation as to the genuineness and bona fides of a
complaint and a reasonable belief both as to the person’s complicity and
even so as to the need to effect arrest. Denying a person of his
liberty is a serious matter. The recommendations of the Police
Commission merely reflect the constitutional concomitants of the
fundamental right to personal liberty and freedom. A person is not
liable to arrest merely on the suspicion of complicity in an offence.
There must be some reasonable justification in the opinion of the
officer effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be avoided if a
police officer issues notice to person to attend the Station House and
not to leave the Station without permission would do. “
2.3 RIGHTS OF ARRESTED PERSON (refer complete guideline here)
The following are the rights of an arrested person guaranteed under the Indian
Constitution as well as under the Criminal Procedure Code, 1973,
(1) RIGHT TO BE INFORMED OF THE GROUNDS FOR ARREST:-
In every case of arrest with or without a warrant the person
arresting shall communicate to the arrested person, without delay, the
grounds for his arrest (Art, 22 (1) of the Constitution of India, Secs.
50 (1), 55, 75 of Cr.P.C.).
(2) RIGHT TO BE INFORMED OF RIGHT TO BAIL:-
The arrested person must be informed of his right to be released on
bail when he is arrested without warrant in a bailable offence (Sec. 50
(2) & (436)).
(3) RIGHT OF NOT BEING DETAINED FOR MORE THEN 24 HOURS WITHOUT JUDICIAL SCRUTINY:-
In case of every arrest the person making the arrest is required to
produce the arrested person before the Magistrate within 24 hours from
the time of arrest. The time required for journey from the place of
arrest to the court of magistrate will be excluded in computation of the
duration of 24 hours (Art. 22 (2) of the Constitution and section 57),
(4) RIGHT TO CONSULT A LEGAL PRACTITIONER:-
Both the Constitution and the provisions of Cr.P.C. recognize the
right of every arrested person to consult a legal practitioner of his
choice (Art. 22 (1) and Sec. 303)
2.4 According to National Human Rights Commission Guidelines (read the guideline here):
PRE-ARREST
- The power to arrest without a warrant should be exercised only after
a reasonable satisfaction is reached, after some investigation, as to
the genuineness and bonafides of a complaint and a reasonable belief as
to both the person’s complicity as well as the need to effect arrest.
[Joginder Kumar’s case- (1994) 4 SCC 260).
- Arrest cannot be justified merely on the existence of power, as a
matter of law, to arrest without a warrant in a cognizable case.
- After Joginder Kumar’s pronouncement of the Supreme Court the
question whether the power of arrest has been exercised reasonably or
not is clearly a justiciable one.
- Arrest in cognizable cases may be considered justified in one or other of the following circumstances:
- The case involves a grave offence like murder, dacoity, robbery,
rape etc. and it is necessary to arrest the suspect to prevent him from
escaping or evading the process of law.
- The suspect is given to violent behavior and is likely to commit further offences.
- The suspect requires to be prevented from destroying evidence or
interfering with witnesses or warning other suspects who have not yet
been arrested.
- The suspect is a habitual offender who, unless arrested, is likely
to commit similar or further offences. [3rd Report of National Police
Commission]
- Except in heinous offences, as mentioned above, an arrest must be
avoided if a police officer issues notice to the person to attend the
police station and not leave the station without permission. (see
Joginder Kumar’s case (1994) SCC 260).
- The power to arrest must be avoided where the offences are bailable
unless there is a strong apprehension of the suspect absconding.
- Police officers carrying out an arrest or interrogation should bear
clear identification and name tags with designations. The particulars of
police personnel carrying out the arrest or interrogation should be
recorded contemporaneously, in a register kept at the police station.
2.5 CBI Guidelines (read the guideline here):
“12.3 However, as arrest takes away liberty of an
individual, the power to arrest vested under Section 41 Cr.P.C. must be
exercised with due care and caution. The power being discretionary must
be used with due care to ensure that the human rights of any individual
are not violated under any circumstances. The arrest may be made only
when it is reasonably felt that the individual so arrested is involved
in the commission of a heinous crime and will be prosecuted in the Court
of Law for the offences committed by him and if it is feared that he is
likely to tamper with or destroy evidence or is likely to evade the
process of law. The Police Officers of DSPE must observe guidelines
issued in this regard from time to time. The Superintendents of Police
must satisfy himself, before Officers working under his control effect
an arrest, by evaluating the evidence available against an individual,
and need to affect the arrest. If the case has been registered with the
approval of regional office or the Head Office, necessary permission may
be obtained from the Competent Authority by sending an arrest proposal
to the said authority through the DIG concerned. In respect of public
servants, the instructions given in the paragraph below may be observed.
Undue publicity for arrests made must be avoided.”
2.6 The Hon’ble Supreme Court in D.K. Basu v. The State of West Bengal (Judgement here)
“On December 18, 1996 in D.K. Basu Versus State of West Bengal (1997
(1) SCC 416), this court laid down certain basic “requirements” to be
followed in all cases of arrest or detention till legal provisions are
made in that behalf as a measure to prevent custodial violence. The
requirements read as follows.
“
1. The police personnel carrying out the arrest and
handling the interrogation of the arrestee should bear accurate,
visible and clear identification and name clear identification and name
tags with their designations. The particulars of all such police
personnel who handle interrogation of the arrestee must be recorded in a
register.
2. That the police officer carrying out the arrest
of the arrestee shall prepare a memo of arrest at the time of arrest and
such memo shall be attested by at least one witness, who may either be a
member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be countersigned
by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is
being held in custody in a police station or interrogation centre or
other lock- up, shall be entitled to have one friend or relative or
other person know to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is being
detained at the particular place, unless the attesting witness of the
memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of
an arrestee must be notified by the police where the next friend or
relative of the arrestee lives outside the district or town through the
Legal Aid Organisation in the District and the police station of the
area concerned telegraphically within a period of 8 to 12 hours after
the arrest.
5. The person arrested must be made aware of this
right to have someone informed of his arrest or detention as soon as he
is put under arrest or is detained.
6. An entry must be made in the diary at the place
of detention regarding the arrest of the person which shall also
disclose the name of the next fried of the person who has been informed
of the arrest and the names and particulars of the police officials in
whose custody the arrestee is.
7. The arrestee should, where he so requests, be
also examined at the time of his arrest and major and minor injuries, if
any present on his/her body, must be recorded at that time. The
“Inspection Memo” must be signed both by the arrestee and the police
officer effecting the arrest and its copy provided to the arrestee and
the police officer effecting the arrest and its copy provided to the
arrestee.
…..
This court also opined that
failure
to comply with the above requirements, apart from rendering the
official concerned liable for departmental action, would also render him
liable to be punished for contempt of court and the proceedings for
contempt of court could be instituted in any High Court of country, having territorial jurisdiction over the matter.”
2.7 When arrest is mandatory:
2.7.1 In case there is an order / warrant from court under CrPC 70 (read
here).
2.7.2 In case the person to be arrested falls under one of the below category:
2.7.2.1 The
case involves a grave offence like murder, dacoity, robbery, rape etc.
and it is necessary to arrest the suspect to prevent him from escaping
or evading the process of law.
2.7.2.2 The suspect is given to violent behavior and is likely to commit further offences.
2.7.2.3 The
suspect requires to be prevented from destroying evidence or interfering
with witnesses or warning other suspects who have not yet been
arrested.
2.7.2.4 The
suspect is a habitual offender who, unless arrested, is likely to
commit similar or further offences. [3rd Report of National Police
Commission].
2.7.3 The person to be arrested fails to comply with the terms and conditions of the notice being served as per CrPC 41A (read
here).
2.8 Further reading: click here
2.9
So you must need to know that if a police official approaches to arrest
you, you can ask and get all these information from him before the
arrest.
2.9.1 What investigation is done?
2.9.2 Is there a prima facie evidence of the crime?
2.9.3 Why the arrest is necessary
as you are not a habitual offender (in case you are not) and it is not a
grave offence (in case you are not), you are not going to abscond (in
case you are not) and not going to cause any harm to the complainant (in
case you are not).
2.9.4 Why the police officers is
not issuing a notice to you under CrPC 41A, and see if you fail to
comply with any terms and conditions of the notice.
- Anticipatory Bail / Bail:
- Anticipatory Bail / Bail, is a provision / direction through which a
person, who is apprehending arrest or arrested, may not be arrested or
be released from custody. If a non-bailable offence (such as 498A, rape
etc.) is registered against you, it is lawful for the investigating
agency to arrest you, after ad-hearing to the guidelines (CrPC 41 to be
specific) as mentioned under section 2 of this document (Arrest) above.
- To avoid arrest in such cases, you need to seek Anticipatory Bail (A.B.) / Bail.
- The difference between anticipatory bail and bail is that, in
anticipatory bail, you apprehend arrest and secure a pre-arrest bail
(under CrPC 438) subject to certain conditions and enjoy not being
arrested. In case of bail, you were taken into custody and from there
you apply for bail (under CrPC 437 / 439) and if granted, released from
custody.
3.1 Grounds for cancellation of Bail:
- The honorable Supreme Court in “Aslam Babalal Desai vs State Of Maharashtra” stated that (read here)
“……bail granted under Sections 437(1) or (2) or 439(1) can be
cancelled where (i) the accused misuses his liberty by indulging in
similar criminal activity, (ii) interferes with the course of
investigation, (iii) attempts to tamper with evidence or witnesses, (iv)
threatens witnesses or indulges in similar activities which would
hamper smooth investigation, (v) there is likelihood of his fleeing to
another country, (vi) attempts to make himself scarce by going
underground or becoming unavailable to the investigating agency, (vii)
attempts to place himself beyond the reach of his surety, etc. These
grounds are illustrative and not exhaustive.”
- In case the bail was obtained with suppression of facts: Rajasthan
HC in “Smt. Sharda vs State Of Rajasthan And Anr. on 22 January, 2001”
(read here)
3.2 Usually when a person is expected to be granted an anticipatory bail?
A person, accused in a non-bailable offence is expected to be released on bail if the court can be made to believe:
- The accused is not likely to evade / escape and avoid the investigation process.
- The accused is not likely to evade / escape the trial process.
- The accused is not likely to tamper / threat the evidences / witnesses.
- The accused undertakes to abide by the terms and conditions of the bail.
- The accused is ready to furnish the bail bonds for the sound amount to the satisfaction of the honorable court.
3.3 Where to apply for bail?
One can apply for bail in below courts:
- District Court
- Sessions Court
- High Court
- Supreme Court
- Usually it is advised to apply for bail in district / sessions
court, and in case it is cancelled, and then move to sessions (in case
first applied in district court)/ high court (in case first applied in
Sessions Court) for bail.
- It is observed that usually at max at the high court level only the bail is granted.
It is also advised to seek anticipatory bail for all the accused
expect husband in matrimonial dispute cases, and once the bail is
secured, then move for bail of husband, but this process is not
mandatory. One has the liberty to seek bail for all the accused on one
go.
3.4 Explanation of Anticipatory bail by Supreme Court:
The honorable Supreme Court of India in “GURBAKSH SINGH SIBBIA ETC. Vs. STATE OF PUNJAB” (read here) has explained Anticipatory Bail as follows:
“(1) the power under Section 438,
Criminal Procedure Code, is of an extra-ordinary character and must be
exercised sparingly in exceptional cases only.
(2) Neither Section 438 nor any other
provision of the Code authorizes the grant of blanket anticipatory bail
for offences not yet committed or with regard to accusations not so far
leveled.
(3) The said power is not unguided or
uncanalised but all the limitations imposed in the preceding Section
437, are implicit therein and must be read into Section 438.
(4) In addition to the limitations
mentioned in Section 437, the petitioner must make out a special case
for the exercise of the power to grant anticipatory bail.
(5) Where a legitimate case for the
remand of the offender to the police custody under Section 167(2) can be
made out by the investigating agency or a reasonable claim to secure
incriminating material from information likely to be received from the
offender under Section 27 of the Evidence Act can be made out, the power
under Section 438 should not be exercised.
(6) The discretion under Section 438
cannot be exercised with regard to offences punishable with death or
imprisonment for life unless the Court at that very stage is satisfied
that such a charge appears to be false or groundless.
(7) The larger interest of the public
and State demand that in serious cases like economic offences involving
blatant corruption at the higher rungs of the executive and political
power, the discretion under Section 438 of the Code should not be
exercised; and
(8) Mere general allegations of mala
fides in the petition are inadequate. The court must be satisfied on
materials before it that the allegations of mala fides are substantial
and the accusation appears to be false and groundless.”
And also….
“Section 438(1) of the Code lays down a condition which has to be
satisfied before anticipatory bail can be granted. The applicant must
show that he has “reason to believe” that he may be arrested for a
non-bailable offence. The use of the expression “reason to believe”
shows that the belief that the applicant may be so arrested must be
founded on reasonable grounds. Mere ‘fear’ is not ‘belief’, for which
reason it is not enough for the applicant to show that he has some sort
of a vague apprehension that some one is going to make an accusation
against him, in pursuance of which he may be arrested. The grounds on
which the belief of the
applicant is based that he may be arrested for a non- bailable
offence, must be capable of being examined by the court objectively,
because it is then alone that the court can determine whether the
applicant has reason to believe that he may be so arrested. Section
438(1), therefore, cannot be invoked on the basis of vague and general
allegations, as if to arm oneself in perpetuity against a possible
arrest. Otherwise, the number of applications for anticipatory bail will
be as large, as, at any rate, the adult populace. Anticipatory bail is a
device to secure the individual’s liberty; it is neither a passport to
the commission of crimes nor a shield against any and all kinds of
accusation, likely or unlikely. [417 E-H, 418 A] Secondly, if an
application for anticipatory bail is made to the High Court or the Court
of Session it must apply its own mind to the question and decide
whether a case has been made out for granting such relief. It cannot
leave the question for the decision of the Magistrate concerned under
Section 437 of the Code, as and when an occasion arises. Such a course
will defeat the very object of Section 438. Thirdly, the filing of a
First Information Report is not a condition precedent to the exercise of
the power under Section 438. The imminence of a likely arrest founded
on a reasonable belief can be shown to exist even if an F.I.R. is not
yet filed. [418 B-C] Fourthly, anticipatory bail can be granted even
after an F.I.R. is filed, so long as the applicant has not been
arrested. [418 C] Fifthly, the provisions of Section 438 cannot be
invoked after the arrest of the accused. The grant of “anticipatory
bail” to an accused who is under arrest involves a contradiction in
terms, in so far as the offence or offences for which he is arrested,
are concerned. After arrest, the accused must seek his remedy under
Section 437 or Section 439 of the Code, if he wants to be released on
bail in respect of the offence or offences for which he is arrested.
[418 C-E]”
3.5 When a person can apply for bail?
When any person apprehends that there is a move to get him arrested
on false or trump up charges, or due to enmity with someone, or he fears
that a false case is likely to be built up against him, he has the
right to move the Court of Session or the High Court under section 438
of the code of Criminal Procedure for grant of bail in the event of his
arrest, and the court may, if it thinks fit, direct that in the event of
such arrest, he shall be released on bail.
3.6 Conditions that may be imposed by court while granting Anticipatory Bail:
Normally, below are the conditions that are imposed on an accused while granting a bail:
“(i) the petitioners shall make themselves available for interrogation by the Investigating Officer as and when required;
(ii) no direct or indirect threat or any inducement
would be made to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the court or to any Police
Officer.
(iii) The petitioners shall not leave India without the previous permission of this Court.”
Judgments to refer:
3.7 Some good judgments to be referred:
- Charge-sheet:Charge-sheet is filed under CrPC 238.
Usually a charge-sheet is to be filed within 90 days since the
registration of the case. Upon filing the charge-sheet, as per CrPC 207, all the accused persons will receive following:“(i) The police report;(ii) The first information report recorded under section 154(iii)
The statements recorded under sub-section (3) of section 161 of all
persons whom the prosecution proposes to examine as its witnesses,
excluding there from any part in regard to which a request for such
exclusion has been made by the police officer under sub- section (6) of section 173.(iv)The confessions and statements, if any, recorded under section 164;(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173.”4.1 Steps that can be followed after a charge-sheet is filed:Once charge-sheet is filed, the accused have opportunities as below:4.1.1 File discharge application under section 239of CrPC at the same court where your 498A is running.4.1.2 If that option is lost, then file revision under section 397 of CrPC in Sessions court.
4.1.3 If revision is lost, you can file for Quash under section 482 of CrPC in the High Court.
4.1.4 If Quash is lost, you can go to Supreme Court under Article 32 of Constitution of India.
4.2 Discharge Application:
Discharge application has a very limited area to play. You have to prepare your discharge application on the basis of:
4.2.1 Only all the documents accused received with charge-sheet (which will be given to the accused as per CrPC 207)
4.2.2 Any document which police have in
their possession [may be submitted by accused at the time of bail
application at court or made some application to police attaching some
documents] but not submitted with charge-sheet to make case of accused
weak and case of complainant/prosecution strong.
- Accused simply cannot rely upon any other document or evidence for
‘Discharge Application’. The other evidences will help the accused
during ‘trial’
4.3 Steps to be followed for filing discharge application:
4.3.1 Make application as advised above.
You have to state ‘Grounds’ for discharge and show that no ‘prima facie’
case is made out.
4.3.2 Discharge application can be submitted on
any day. Some courts have their own methods for handling it. In some
court, a ‘MISC’ (miscellaneous) case number is given and heard
separately with separate set of hearing dates. In some court, it is
heard under the same number of charge-sheet case (Criminal Case : C.C.
No.). But under any method, the main 498A case is stopped till
‘Discharge Application’ is not disposed off.
4.3.3 One copy of ‘Discharge Application’
is given to PP in court at the time of filing original application for
discharge in court. Court writes order on discharge application – ‘PP to
say’.
4.3.4 Now PP has to submit his say and he
can play delay tactics. Here accused can submit ‘Pursis’ to court on
each and every date about ‘PP’ not submitting his/her say. Accused can
make application to court that ‘PP’ has nothing to say and therefore not
submitting his/her say and therefore, proceeding may please be
continued without his/her say. Accused should not care for outcome of
these exercise, but continuous pressure should be built on PP to give
his/her say. Please note, without his/her say, matter will not move at
all and therefore it is very essential to build a continuous pressure
which normally advocates don’t do.
4.3.5 After PP’s say, accused has to make
arguments. Accused can submit ‘written argument’ (with a copy to PP) and
also make oral submission, both.
4.3.6 Then PP has to make his/her argument.
Again he may ask for adjournments for his/her argument and accused have
to repeat pressure building tactics. Unless PP makes argument, matter
will not proceed further. But 498A will remain in abeyance (on hold).
4.3.7 Then proceeding is completed &
Magistrate gives order on discharge application – either acquittal OR
dismissal of application.
4.3.8 Hereafter accused may choose to go to
‘Revision’. If revision is not moved, then charges are framed u/s.240
CrPC. which accused shall contest fighting that how charges are not
applicable. But no advocate fights for this. So in this manner accused
get 2 opportunities. But due to this, trial is delayed.
4.3.9 In my opinion, trial is the BEST way
if accused have no good evidence in charge-sheet or with police which is
held back by them.
4.3.10 If ‘Informant’ has no proof for any
allegation, then mere denial by accused to accusations, gives acquittal
due to ‘benefit of doubt’.
- Witness / Cross-examination:
- Once the charge-sheet is filed and no discharge application is moved
/ discharge application is rejected, the case will move to trial phase
after charges are framed and accused plead “Not Guilty”.
- Trial phase mostly consists of two activity, Witness and cross examination.
- Witness / cross examination of the prosecution is must, whereas the
same for defense / accused is optional. If the accused wants to offer
someone from their side as witness, then the witness will be cross
examined as well.
- First witness of the prosecution will proceed and they will try to prove their complaint.
- Once that is complete, those witnesses will be cross examined by the accused’s lawyer. Aim being to show the court that there is not enough credibility to the complaint.
- Next, if accused has any witness to give, they can do so. first
their witnesses will be recorded and then they will the cross examined
by the opposite party lawyer.
- Order / Judgement:
After Witness / cross examination stage is complete, finally there
will be a final round of arguments between the lawyers for both the
parties. Once that is complete, then it’s time for the Judge to announce
the final judgement / order.
