Trap without FIR or complaint, I want the quashing of trap proceeding. The Maharashtra anti corruption team has trapped me without lodging a complaint or first information report. In this situation can I challenge the trap case in the High Court because the trap was without FIR? After the trap they prepared a report and submitted it to the court. The court has granted seven days judicial custody. Please suggest what I should do?
The Anti Corruption Bureau (ACB) does not conduct a trap without lodging a complaint. When the ACB receives a complaint against a government servant, it conducts a pre-trap inquiry. The pre-trap inquiry is a fact finding inquiry to check the veracity of a complaint. If the ACB finds that the complaint is genuine then it plans a trap.
Hence, before conducting a trap the ACB has a formal complaint and incriminating material against the government servant. Therefore, your assumption that the trap was conducted without FIR is wrong. You cannot challenge the trap proceeding on this ground only.
The trap team prepares a detailed report about the entire trap proceeding. If the team has committed any error while conducting the trap then you can challenge it in the High Court.
Quashing of trap
The High Court can quash the trap proceeding if it finds the trap illegal or violative of settled principles of law. On the following grounds you can approach the High Court for quashing the trap and the FIR. After conducting a successful trap the ACB lodges an FIR.
Devoid of Complaint
The ACB cannot initiate trap proceedings without receiving a complaint from a person. That person in his complaint must state the demand of illegal gratification. He should also state therein the reason and purpose of such a demand. No ACB officer can lodge a complaint on his own behalf and conduct a trap.
Therefore, devoid of complaint before conducting a trap renders the entire trap proceeding illegal. A formal complaint provides information and evidence towards the demand of bribes. Thus absence of formal complaint will render the trap illegal. Hence, accused can approach the High Court for quashing of entire proceedings.
Demand of illegal gratification
The object behind the trap is to catch the accused red handed. The trap has been conducted against the government servant if he is demanding illegal gratification. Therefore, if the accused did not demand bribes during the trap, then the High Court can quash the trap along with FIR.
During the trap proceeding the accused must ask or demand money from the complainant. The accused must use some words which have a strong connotation of demand. Demand in an oblique manner will negate the trap proceeding.
Recovery of money
It is mandatory that ACB must recover money from the accused. The ACB marks some currency notes and enters those details in a pre-trap report. If that money is not recovered from the accused during the trap then the entire proceeding becomes a failure. The ACB cannot proceed further upon such a foul play. Hence, devoid of recovery constitutes a solid ground for quashing of trap and subsequent steps.
If your case meets any of the above said irregularities then you should file a writ petition in the High Court under Article 226 of the constitution. The High Court may quash the first information report and entire trap proceedings.
Taking custody of a child below the age of five years is a difficult question for the father. However, father and mother both are natural guardians under the Hindu Minority and Guardianship Act, 1956. But the mother gets priority over the father for the custody of a child below five years. Section 6(a) of the Hindu Minority and Guardianship Act specifically mentions that
The custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
Section 6(a) Hindu Minority and Guardianship Act, 1956
But the provision of section 6(a) denotes a flexible rule because it says that the custody shall ordinarily be with the mother. It does not make it a mandatory provision that in each and every case the mother shall get custody of the child if he is below five years. Therefore, the court, while deciding the issue of custody must consider the welfare of the child. Welfare of a child is the paramount consideration in the matters relating to custody of a child between two natural guardians.
Welfare of child
Guardianship of child is a difficult and complex question. The statute, however, indicates a preference for the mother, if the child is below the age of five years. Devoid of rigid rule of guardianship in statute, confers an obligation on the court- to deal with this sensitive matter in the touchstone of the welfare of the child. in Nil Ratan Kundu and another vs. Abhijit Kundu, (2008) 9 SCC 413the Supreme Court has held that
In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.
Nil Ratan Kundu Case, 2008
Granting custody of a child from one guardian to another is a humanitarian issue. Therefore, it should be decided with a human touch instead of strict principles of law. If the court satisfies that the welfare of the child be with his father, then father shall get his guardianship. Child’s tender age would not be an important matter in that case.
The Supreme Court has reiterated this view in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42. It has opined that “The welfare of the child has to be determined owing to the facts and circumstances of each case and the Court cannot take a pedantic approach.”
Thus the father can get custody of the child below five years if he satisfies the court about his welfare. The proviso of Section 6(a) will not pose a hurdle in taking guardianship of his child. Welfare includes:
Natural love and affection
Physical, moral and social comfort
Health, education and intellectual development
If the child has attained enough maturity to form an intelligent preference or judgment the court must consider his preference as well.
Who decides the issue of welfare
Ultimately the court has the right to decide the welfare or well being of the child. The court exercises its parens patriae jurisdiction while selecting a proper guardianship. Therefore, it is the responsibility of the court to decide this matter with utmost care or caution. It should also consider all the surrounding circumstances that lead to securing the good future of the minor.
The court, while deciding the dispute of guardianship, is not bound by statutes nor by strict rules of evidence or procedure nor by precedents. It acts like a parens patriae i.e. as the parent of the child. The court becomes the informal caretaker of the child who is, however, the subject matter of the dispute but not being in position to decide his preference.
Grounds when father can get custody
Matrimonial infidelity
When a wife has committed matrimonial infidelity she cannot retain custody of her child. Her unchestity and sexual attachment with paramour will not give a comfort ambience to her child. The child may lose the emotional attachment with her mother or the mother may ramarry with her paramour. In these conditions the child will suffer the most. Therefore, the welfare of a child lies in his father more than his mother.
Cruelty & Carelessness
When the mother has committed cruelty towards her child then she cannot claim custody. An infant depends upon mother for all his necessities. Therefore, a mother should be careful and attentive. A series of careless attitudes of a mother can constitute a ground to take away child’s custody from her.
Financial ground
When a mother has no income or means to keep proper care of her child, it may constitute a ground for conferring custody to the father. But this is a weak ground because destitution cannot replace the eternal love of mother. Mother can claim maintenance from the baby's father under section 125 of the code of criminal procedure.
Can I take legal action against my siblings because they are trying to capture my land? The land is our ancestral property. My sisters are married and settled in Maharashtra. My elder brother is a doctor and works in the Indian Railway. My younger brother is a teacher in primary school. I am living in the village and doing agricultural work. Apart from agricultural work I am also a social worker. However I have avoided all disputes between us but the time has come to take legal action against my brothers and sisters. Please suggest what action I can take against them.
You can take legal action against siblings. This is your ancestral property and your siblings have joint position over them. but they cannot take position forcefully and without partition of the land. so far as sisters are concerned, they are not entitled to take share in the ancestral agricultural land.
The agricultural land is not regulated by the Hindu Succession act. The provisions of land revenue code apply there on. According to the land revenue code the married sister cannot take share in agriculture land. Unless the father has made testamentary will and given share to his daughters they cannot claim partition.
Legal action against siblings
1. You should file a partition suit
In the current scenario you should immediately file a partition suit in the court of Tehsildar. You can also seek temporary injunction to prevent any kind of interference from your siblings. These legal actions will frustrate the illegal acts of your siblings. Without demarcation of shares of each sibling in the property they cannot take possession.
They cannot claim without partition that which portion of the property belongs to them. Therefore it becomes mandatory to first take partition and fix the share of each legal hair.
2. Make a complaint in the court of SDM
You should file a complaint in the court of the sub divisional magistrate [SDM]. The SDM can take legal action against your siblings for taking forceful possession over the property. The current disputes between your brothers and sisters may cause breach of public peace. Therefore you should move an application under section 145 of the code of criminal procedure for the prevention of any kind of breach of public tranquillity.
The sub divisional magistrate can take Bond from your siblings for maintaining peace. He can also appoint a receiver on the property to prevent any kind of interference from your siblings. When the tahsildar orders for temporary injunction then the SDM will remove the receiver from your property.
You should take the above said legal action against your siblings. It will be enough to prevent any kind of undue interference from your brothers and sisters.
My wife is living apart. She is living with her paramour and happy with him. I have two children, both are sons. Now the mother is taking custody of the children from the father. It is a very painful situation for me. Both sons are minor and very happy with me. They want to live with me and their grandmother. My wife has filed a case in the district court for transfer of custody of children. I have received a summon from the court. Can my wife take custody of children from me? Mother is a very careless lady and without any reason she has been living with another person. She is very cruel and does not love my sons. She is doing so with the intention to torture me. Please help. I don't want to lose custody of my child.
Your sons are very happy with you. Their mother is living with her paramour. More importantly, their mother has no love and affection for her child. These facts are in your favour therefore, you can retain custody.
Welfare of child
The welfare of child is the paramount consideration for custody. The court has to decide custody on the touchstone of well being and welfare of the child. Custody is a human problem; it cannot be decided on the strict rule of legal provision.
In your case, children are happy with their father and grandmother. The father and mother are both natural guardians under Section 6(a) of Hindu Minority and Guardianship Act.
In Githa Hariharan vs. RBI and another AIR 1999 SC 1149, the Supreme Court has held that the mother's right under Section 6(a) stands at par with the father if the father is absent. Father and mother both are natural guardians but welfare of the child is the central point in determination of custody rights.
The Court will examine the circumstances of your case. It shall also consider the carelessness and character of the mother while deciding the custody. Their mother has breached matrimonial loyalty and is living with her paramour. The ambience of such a family would be harmful for the children. Therefore, your wife cannot take custody of children.
Taking custody of children from the father
Being a mother, she is claiming custody. But she lacks the ground for taking custody of children from the father. The court cannot ignore the fact i.e. “welfare of the child” while deciding custody. The ultimate goal of the court, in custody matters, is to secure the future of minor children.
In Tejaswini Gaud vs. Shekhar Jagdish Prasad Tiwari and others AIR 2019 SC 2318; the Supreme Court reiterated that:
The welfare of the child has to be determined owing to the facts and circumstances of each case and the court cannot take a pedantic approach.
You are taking care of your children very well. Their education and moral training would be fairly well in your custody. They are psychologically and physically living in the secure atmosphere of a family. Living with mother’s paramour would be insecure for them. So I think you will retain their custody. Mother cannot take their custody from you.
My firm is doing business of gravel supply to the government. I want to know whether the appointment of an arbitrator under the agreement is possible? Our firm got a tender from the public works department of Uttar Pradesh. According to the tender agreement any dispute arises in respect of tender shall be decided by the Chief Engineer. But the government wants to decide our dispute through the retired judge of the High Court. Actually the government wants to rescind our agreement and appoint an arbitrator under the Arbitration and Conciliation Act 1996.
Whether the clause of 1996 will apply in our case? Chief engineer is competent to decide any dispute regarding the public works. Retired Judge of the High Court will act under pressure of the government and also have little knowledge about the technicality of tender. Therefore, please advise how to get appointment of an arbitrator through the court and according to the tender agreement?
It seems from your question that the tender agreement has a separate arbitration clause. The government wants to supersede or deny this clause and appoint an arbitrator under the Arbitration and Conciliation Act 1996.
Application of Arbitration and Conciliation Act 1996 is not mandatory
It is not mandatory that each dispute must be decided under the provisions of the Arbitration and Conciliation Act 1996. Parties to the contract can agree to refer their dispute to a particular person or authority. The appointment of an arbitrator may also be fixed under the agreement.
They can also set a procedure for the determination of dispute. However, they can accept the provisions of Arbitration and Conciliation Act 1996 but it is not mandatory. Parties to the contract are free to settle their dispute out of the court. They are free to devise their own procedure for the determination of dispute.
That procedure must be just, fair and reasonable. The Act of 1996 is a model code for the determination of dispute through the arbitration, conciliation or mediation. Strict rules of Evidence Act and Code of Civil Procedure do not apply to that Act. Therefore, out of court settlement becomes easier and swifter under the Act of 1996.
Appointment of arbitrator under the agreement
If you want appointment of an arbitrator under the agreement, the said agreement must have the arbitration clause. In existence of that clause you can seek appointment from the court if any dispute arises between the parties.
In your case, the government wants to overlook or rescind the provisions of agreement and appoint a distinct arbitrator under the Act of 1996. This step of the government is illegal, therefore, unsustainable. You can approach the High Court for the appointment of an arbitrator under the tender agreement.
In BHEL vs State of Uttar Pradesh 2014 (4) All LJ 52, the Allahabad High Court has held that there may be an arbitration clause in the agreement between the parties. Provisions of Section 15 to 23 of Arbitration and Conciliation Act 1996 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore, provisions of Arbitration and Conciliation Act 1996 are not mandatory. There could be a different mechanism for the redressal of dispute.
The tender agreement has an exclusive clause for the determination of dispute. Hence, you should avail that provision instead of Arbitration and Conciliation Act 1996. The High Court may quash the appointment of arbitrator by the government because it is illegal. Government cannot overlook the provisions of the tender agreement.
Unless the new tender agreement comes into force, the existing agreement will apply on every dispute regarding the tender. This is a special provision adopted by the parties for redressal of their dispute. This mechanism will supersede the provisions of Arbitration and Conciliation Act 1996. You should file a petition in the High Court as soon as possible for the appointment of arbitrator under the tender agreement.
The investigating officer has submitted a closure report in the Magistrate’s court. Can the court pass an order of further investigation after filing of the closure report? There is enough evidence against the accused. But accused are very powerful and have the capacity to influence the investigation. They have influenced the investigating officer and frustrated the investigation. The investigating is indeed unfair and against the law. Sixteen investigating officers have changed during the investigation. The last one has filed the closure report stating that the complainant did not produce any credible evidence against the accused. How do I get further investigation after filing of closure report?
The investigating officer has submitted the closure report in the pressure and influence of accused. This type of closure report is improper, unjust and erroneous. You should protest the closure report and request to the court to reject it in limine.
The prime objective of the investigation is to collect the evidence and unearth the truth. Generally the investigating officer (IO), after completion of investigation, submits chargesheet under Section 173(2) crpc. When he does not find any substance in the allegation or finds no evidence against the accused then he submits a closure report or final report under Section 169 of the code of criminal procedure.
In both situations the report (under section 173(2) or 169 crpc) must be supported by the evidence and materials collected by the IO during the investigation. Failing which the court has the power to reject the report.
The court is not bound to accept the closure report
The court is not bound to accept the closure report unless it is supported by sufficient evidence and materials. There must be some evidence which tend to prove the innocence of accused then the court may admit the closure report. Otherwise the court shall reject the closure report.
Thus investigating officer must satisfy the court that he found no incriminating materials against the accused therefore, he is forwarding a closure report. When the court finds that closure report is defective or perverse it, however, cannot direct the investigating officer to take back the report [R. Sarla vs T. S, Velu AIR 2000 SC 1731]. But the court has the power to direct the further investigation under Section 156(3) crpc.
In exceptional situation the constitutional court (Supreme Court & High Court) can direct the investigating officer to do a fresh investigation. When the investigation is tented or highly manipulated by accused. This may form a solid ground for directing de novo investigation.
Court can direct further investigation after filing of closure report
The magistrate can direct the further investigation under Section 156(3) crpc, after rejecting the closure report. If he has admitted the closure report, you should approach the High Court under Section 482 crpc for the direction of further investigation. The High Court can direct the investigating officer to conduct further investigation even after the Magistrate has admitted the closure report.
In your case the closure report seems improper and perverse. Because the investigating officer has stated therein that complainant failed to adduce evidence against the accused. The complainant is not bound to adduce evidence. It is the duty of investigating officer. The IO cannot shift his duty upon the complainant. Hence the High Court can quash this closure report on this ground even though the Magistrate has admitted it.
In Manohar Lal Sharma vs. Principal Secretary and others AIR 2014 SC 666 the Supreme Court has held that in very exceptional cases, where the court finds that the investigating officer has exercised his power in breach of statutory provision, the court may intervene to protect the personal and property rights of the citizens.
Free and fair investigation is the fundamental rights of citizens under Article 21 of the Constitution. It is part and parcel of the personal liberty of citizens. The court has a constitutional obligation to ensure that the investigation has to be conducted in accordance with law.
The police officer holds the responsibility to protect the life, liberty and property of citizens [Sakiri Vasu vs State of Uttar Pradesh (2008) 2 SCC 409]. Whenever the investigating officer is putting the rights of citizens in jeopardy through its illegal and improper use of the power or abusing its investigatory power the court interferes.
File a case in the High Court
You should immediately file a petition in the High Court under Section 482 crpc. The court may direct the further investigation because the investigation is manipulated and influenced by the accused. The High Court may admit your petition if investigating officer has deliberately filed a closure report or concealed the substance of crime.
The department has initiated an inquiry against me for being on leave without permission. I have submitted medical reports of my wife and all the relevant documents. But the disciplinary authority has found me guilty and terminated my service. Can the High Court re-appreciate all the evidence of departmental inquiry? Can the High Court quash the order of termination of my service? My wife was seriously ill so I went on leave to provide her good medical treatment. I was on leave for nine years without sanction of my leave application. Now my wife is fit and fine. I can join my service. During the leave the department has ceased my salary.
Can I join the service with all consequential benefits? My juniors have promoted to the post of senior section officer. So I think that the department should also promote me on that post. The departmental inquiry has not shown any mercy on the medical health of my wife. I did not take any salary for the period of leave. Due to the ill health of my wife I did not appear in the disciplinary authority but I sent all the medical records of my wife. The health of my wife was the first priority so I went on leave. I knew that the department would not sanction my leave hence I did not take permission.
I think there is a very bleak chance to get relief from the High Court. You went on leave for nine years without taking permission from the appropriate authority. More importantly, you did not appear before the disciplinary authority even after receiving information about the commencement of departmental inquiry.
Disciplinary authority did not consider your wife’s heath
Medical condition of your wife is the main reason for your absenteeism. That absenteeism lasted for nine years. Nine years is a very long time. Refraining from duty for such a long period proves that you are not sincere to discharge your liability as a public servant. Therefore, the order of termination seems proper.
Health of your wife is not a matter of concern in the departmental inquiry. Leave without permission is an act of misconduct. That misconduct is the reason for initiation of departmental inquiry. You cannot justify your leave without permission on the sole ground that your wife was ill. This could be a reason for leave but you should have taken proper permission from the competent authority.
Hence you should have adduced evidence before the departmental inquiry which could prove that it was impossible for you to take permission for leave. Which, I think, is impossible for you to prove. You have no evidence to prove that during nine years you had no time to apply for leave.
Can the High Court re-appreciate evidence adduced in departmental inquiry?
No, the High Court is not a court of appeal in respect of writ petitions filed against the departmental inquiry. Article 226 of the Constitution of India confers on the High Court to issue writ for the enforcement of fundamental rights. The High Court cannot act like a court of appeal in the mandamus or certiorari writ.
You want from the High Court to re-evaluate the evidence pertaining to your wife’s health. Re-evaluation or reappreciation of evidence is not possible in writ petition. The High Court can examine the sanctity of departmental inquiry, beach of any statutory rules or mala fide act of inquiry officer to protect the fundamental right i.e. free and fair procedure.
In State of Andhra Pradesh vs S. Sree Rama Rao AIR 1963 SC 1723 the Supreme Court has held that the High Court under Article 226 of Constitution, is not a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant.
In CMWSSB vs T. T. Murli AIR 2014 SC 1141 the Supreme Court has reiterated its view that the High Court can not re-appreciate the evidence adduced in the departmental inquiry. The disciplinary authority can examine the fact of misconduct of the public servant better than the High Court.
Grounds for challenging the order of disciplinary authority
You can approach the High Court if the disciplinary authority has wrongly admitted any fact or ignored any relevant fact. If the finding of departmental inquiry is baseless, it is also a good ground to challenge. These are the examples of possible grounds to challenge the order of departmental inquiry.
Incompetency in the disciplinary authority.
Violation of the principles of natural justice in conducting the departmental inquiry.
Inquiry was not held in accordance with the prescribed procedure.
Prima facie defect in conclusion of the departmental inquiry.
Authority is influenced by irrelevant or extraneous consideration.
Conclusion is wholly arbitrary, capricious that no reasonable person could ever have arrived at such a conclusion.
Erroneously admitted the relevant or admissible facts.
There is no grounds, facts or materials in support of finding of the departmental inquiry.
Above ground are, in general, form the basis of attack on the finding of the disciplinary authority. Re-apppriciation of evidence is not possible in writ court. This is beyond the jurisdiction of the High Court.
You think that the inquiry officer has not considered the medical documents of your wife. If it were considered then the result of the inquiry could be different. Therefore, you think that the High Court can reverse the order after re-appreciation the evidence. It is settled law that High Court can not re-appreciate the evidence adduced in departmental inquiry.
Sir, I want to know can High Court convict the accused and reverse the order of acquittal? I am working in Mumbai and my family is living in my village. There was a property dispute with my pattidars. They want to grab my land because it has been parti for ten years. I am not doing agriculture work on that land. One day my cousin came to my house and fired five gunshots on my wife and son. Both were injured and admitted in sadar hospital. I went to my village but lodged the FIR after two months of the incident. There were no eyewitnesses because the incident happened inside of my house. The police officer has recorded my FIR under Section 307/323/504/506 of the IPC. The trial court has acquitted the accused on the ground of delay in FIR and absence of eyewitnesses. Can I get justice?
Acquittal on the ground of delay in FIR and absence of eyewitness seems perverse. You should file an appeal before the High Courtunder Section 378 crpc. The High Courthas power to interfere in the order of the court of sessions and convict the accused.
The High Court has power to re-appreciate all the evidence and convict the accused if found guilty. Re-appreciation of all the evidence is a special power of the appellate court under Section 378 crpc. The appellate court is not bound by the order of the trial court. It can form a distinct opinion after perusal of evidence and set aside the order of the trial court.
In Chandrappa vs State of Karnataka AIR 2007 SC the Supreme Court has held that “the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded”.
Therefore, you have an opportunity to prove your case in the high court. If the court finds that there is sufficient evidence then it may convict the accused. The evidence must be relevant, admissible, cogent and leading to the guilt of the accused. If there is a doubt regarding the guilt the High Court will not interfere in the order of the trial court.
In the State of U.P. vs Banne (2009) 4 SCC 271, the Supreme Court has opined that if two reasonable conclusions are possible on the basis of evidence on record the appellate court should not disturb the finding of acquittal.
Delay in FIR
Acquittal on the ground of delay in FIR is unsustainable. Because criminal law does not expect that each FIR must be prompt and immediate. If there is delay in FIR the informant must explain the delay with satisfactory facts.
When the court finds that there are cogent reasons for delay in FIR then it shall ignore the fact of delay. If other facts of the case prove that the accused has committed the offence the court shall not weigh on the fact of delay in FIR.
In State of H.P v. Shree Kant Shekari AIR 2004 SC 4404 the Supreme Court has held that “Mere delay in lodging FIR does not render prosecution version brittle.”
Delay in FIR shall not constitute the sole basis of acquittal. The court should consider other evidence thereafter, form a definite conclusion. Medical report, circumstantial evidence, injuries, existence of property dispute and enmity between parties are vital evidence of your case. The court should consider all this evidence before writing the order of acquittal.
You are living in Mumbai, offence committed in your village, your wife and son were injured and no guardian was present there to take immediate action. Medical treatment to your wife and son was the first priority. This could be the reason for delay in lodging FIR. The circumstances of your case itself give satisfactory explanation towards delay in FIR.
Perverse order
The High Court Can convict the accused if the order of acquittal is perverse. An order is perverse when the trial court has:
Ignored or excluded the relevant evidence.
Taken into consideration irrelevant or inadmissible evidence.
Against the weight of evidence.
Wrongly placed the burden of proof.
The trial court has wrongly placed reliance on delay of FIR and absence of eye witness. It has overlooked the circumstantial evidence, enmity, property disputes and injuries of victims. Therefore, the order of acquittal is perverse. The High Court can reverse this perverse order and convict the accused.
Hence, you should file an appeal to the High Court under Section 378 crpc. Delay in FIR does not infer that it is false or frivolous. It is, however, not mandatory that an offence must be proved by the eye witnesses. Circumstantial evidence is equally important and it can prove the guilt of the accused. Hence, there is sufficient evidence to move an appeal against the order of acquittal. The High Court may reverse the order of acquittal, thus, you will get justice from the High Court.
I recently came to know that daughter of my maid has raped. She is twenty three years old and a married woman. Her husband has thrown her out from his home because she is pregnant. Now she has been living with her mother. The offence was committed five months ago. So this would be the five months delay FIR in rape case. Can she lodge an FIR after such a long delay? Husband of my maid is trying to lodge the FIR but still no FIR has been lodged. The accused is her relative and used to come to her home. Accused also knows her husband and they were friends.
Husband of the victim does not agree to lodge an FIR. Now I want to take action against the accused because he has ruined her life. She said that the accused came to her parental home and gave her some food to eat. After eating the food she became senseless and went into unconscious condition. In that situation he raped her. She did not disclose the incident to anybody until getting pregnant. Sir, please suggest how to lodge an FIR and what will be the consequence of that case?
Asked from: Karnataka
Prima facie the facts of your case infer that prosecutrix (victim) is a consenting party in rape. She might gave her consent for sexual intercourse. Accused is her relative, she is a major and married woman. She did not disclose this incident to anyone until she became pregnant.
Explanation about delay in lodging FIR
Five months delay is too much time. However, the victim does not lodge prompt FIR in rape case. But there should be some proximity between the offence and lodging of FIR. If you have a proper explanation then you can lodge the FIR even after a delay of five months [Mukesh v. State of Chhattisgarh 2014 AIR SCW 5618].
Satisfactory explanation of delay is mandatory for the prosecution case. Otherwise the accused will get the benefit of doubt. Satisfactory explanation in delay of lodging FIR will rule out the possibility of false implication of accused. This will eventually fortify the case of prosecution [State of H.P v. Shree Kant Shekari AIR 2004 SC 4404].
How to lodge FIR when SHO has refused?
The officer incharge of the police station (SHO) has refused to lodge an FIR. Hence, you should invoke Section 154(3) crpc. You should send the information to the Superintendent of Police (SP) by registered post. The SP has the power to direct his subordinate officer to lodge the FIR and do the investigation.
If the SP does not take any action on your information then you have to approach the Magistrate under Section 156(3) crpc. Section 156(3) crpc empowers the Magistrate to direct the concerned police officer to lodge the FIR and initiate the investigation. This is the procedure of lodging FIR when the SHO has refused to lodge it. However, the police officer cannot refuse to lodge an FIR if information disclosed a cognisable offence.
I cannot say anything about the probable consequences of the case. Evidence of the victim about her consent will form the basis of conviction. If she successfully proves that she has not given consent for sexual intercourse then acused may be convicted.
Victim was in unconscious state of mind at the time of sexual intercourse. It is hard to prove, after five months, that the accused had given intoxicated food to the victim. Incident occurred when no one was present in the house.
Accused is a relative of the victim, he had smooth access in the victim’s house. All these facts prima facie suggest that victim might have given consent of sexual intercourse. Five months delay in FIR of rape case is also goes against the victim. The accused may get benefit of doubt on the fact of inordinate delay in lodging FIR.
