WITHOUT COMING BACK TO INDIA NRIs CAN GET QUASHING OF FIR and ORDER DECLARING PROCLAIMED OFFENDER (PO) WHICH WAS PASSED IN THEIR ABSENCE
The term “quash” has been defined in Black’s Law Dictionary as “to overthrow, to abate, to vacate or to annul”. In simple words, quashing of FIR means to cancel the FIR and quashing of criminal proceedings would mean ceasing the legal machinery which had been set into motion on the complaint of someone.
Quashing petition is filed under section 482 CrPC which provides as follows:
“Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”.
In the Landmark judgment of State of Haryana v. Bhajan Lal 1992 AIR 604, the Hon’ble Supreme Court has laid down following seven categories in which the Court can quash criminal proceedings:
Where the allegations made in the FIR, even if taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out case against the accused.
Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155 (2) of the Code.
Where the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer, unless a Magistrate has issued an order for the same, as contemplated under section 155(2) of the Code.
Where the allegations made in the FIR are absurd to the extent that no prudent man can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act, under which a criminal proceeding is instituted, with regard to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
Where a criminal proceeding is manifestly attended with mala fide intention and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and / or personal grudge.
CASE LAW BY SINGH LAWYERS
1. Pardeep Kaur versus State of Punjab and another, CrM-M No. 33746 of 2018
Mr. Navkiran Singh for the petitioner.
Facts of the case:
Complainant got an FIR registered against petitioner / Pardeep Kaur with the allegations that the complainant had a son namely Satnam Singh, who was married to the present petitioner – Pardeep Kaur. Satnam Singh died on 19.01.2001 and thereafter, the relation between the complainant and the petitioner became strained, on account of inheritance of his property. It is also stated in the FIR that the petitioner forged and fabricated the Will dated 21.02.1998 regarding some property of the deceased – Satnam Singh. The FIR has been registered on the ground that the petitioner along with co-accused have committed the offence of cheating and forgery as the Will is stated to be a forged and fabricated one as it ousted the right of the complainant.
Mr. Navkiran Singh, Counsel for the Petitioner argued that the petitioner has been residing abroad much before the registration of the FIR and even the complainant has been and is still residing abroad as it is evident from the FIR itself that she is prosecuting this case through her attorney Parkash Kaur. Counsel for the petitioner has, thus, submitted that summons issued in the present matter were served on petitioner’s Indian address rather than her UK address and in the absence of a proper valid and legal service on the petitioner on her given address, the declaration of the petitioner as a proclaimed offender is not in accordance with the provisions of Sections 82/83 read with Section 105-A of Cr.P.C., as no substitute service was effected on the petitioner, who is admittedly residing abroad.
Counsel for the petitioner further submitted that the complainant has lead the best possible evidence available with her, on the basis of which the other co-accused have already been acquitted by the trial Court especially in view of the fact that the Will has never been produced before the trial Court and even before the Civil Court, the original Will was never produced and, therefore, no purpose will be served if the petitioner is directed to face afresh trial as no new evidence can be brought on record and the prosecution of the petitioner, if any, would amount of abuse and misuse of process of law.
Counsel for the petitioner relied upon the Division Bench judgment of this Court “Sudo Mandal @ Diwarak Mandal vs State of Punjab”, 2011(2) RCR (Criminal) 453, wherein it has been held that even in case of proclaimed offender if the prosecution of the other accused has resulted into acquittal, no purpose will be served in directing the person, who is declared as proclaimed offender to face the trial if the chances of conviction are bleak.
Hon’ble High Court Of Punjab & Haryana held that
After hearing the counsel for the parties, I find merit in the present petition considering the findings recorded by both the Courts below that in the absence of the original Will on record, no offence is made out, in my opinion even if the petitioner is directed to face the trial afresh, no purpose will be served in directing her to face the prosecution in view of the Sudo Mandal’s case (supra). Accordingly, this petition is allowed, the order dated 24.05.2004, vide which the petitioner has been declared as proclaimed offender is set-aside and the impugned FIR No.55 dated 26.03.2003 (Annexure P-1) registered under Sections 420, 465, 467, 468, 471 IPC at Police Station Division No.4, District Jalandhar and challan dated 23.10.2006 (Annexure P-2) all other subsequent proceedings arising therefrom are ordered to be quashed.