Quashing of charge sheet for the want of sanction for offence under Section 354B IPC

Quashing of charge sheet for the want of sanction for offence under Section 354B IPC. I am working as an executive officer in the nagar palika. There was some dispute regarding the payment of wages among the sweepers. They were called band and doing dharna pradarshan in the premises of nagar palika. After intervention of the district magistrate they called of their pradarshan and resumed their job. The hartal was lasting for thirty-four days. There was no order from the sashan for payment of wages during the hartal period. When those sweepers were demanding salary for the hartal period, I refused. Consequently, one lady sweeper went violent and threatened me in front of the office bearers. Later on she lodged an FIR against me under section 354B IPC.

Now charge sheet has been filed against me. This is an another story not necessary to disclose here. When the prosecution requested for granting sanction for prosecution, the competent authority has refused. Despite the refusal charge sheet has admitted and process has been issued against me. I want to quach this proceeding, therefore, contacted some advocates and they suggest to contest the case. Whereas i want to quash this case on the ground of want of sanction. Please help.

Asked from: Uttar Pradesh

Section 197 of the Code of Criminal Procedure offers protection to government servants from malicious prosecution for acts committed in the discharge of official duties. In such cases, no court can take cognizance of the offence without the prior sanction of the Central Government or the State Government, as applicable.

In the case of State of Orissa vs. Ganesh Chandra Jew (2004) 8 SCC 40, the court clarified the rationale behind the protection provided under Section 197. It emphasised that

This safeguard aims to shield responsible public servants from potentially frivolous criminal proceedings arising from actions performed while fulfilling their official duties. The legislative intent is to provide adequate protection to public servants, ensuring they are not prosecuted without reasonable cause for acts carried out in their official capacity. Moreover, if sanction is granted, it empowers the Government to exercise complete control over the prosecution.

However, this protection has limitations and applies only when the alleged act is reasonably connected to the discharge of official duty and not merely a guise for objectionable conduct. The phrase "discharge of duty" encompasses any action directly related to the official duty of the government servant. To invoke Section 197, it must be demonstrated that the accused official was charged with an offence allegedly committed while acting or purportedly acting in the discharge of official duties.

Read also: Trial court cannot convict the accused in absence of sanction for prosecution

The focus is on the act itself rather than the duty, as the same act can be performed both in the fulfilment and neglect of official duty. The act must fall within the scope and purview of the official duties of the public servant concerned. The protection under Section 197 is applicable if the act is within the ambit of the official duty.

Determining the reasonable connection between the act and official duty, a reliable criterion is to ascertain whether the public servant's failure to perform the act in question could render them liable for dereliction of duty. If the answer is yes, it suggests that the act was committed while discharging official duty. Therefore, establishing a clear connection between the act and the public servant's official duties.

Read also: Alteration of charge

Under Section 197 CrPC, a sanction for prosecution is not required when a government servant is accused of an offense alleged under Section 354B IPC. Disrobing a woman in a public place is not considered an official duty of a government servant. Therefore, sanction for prosecution is unnecessary in such cases.

While Section 197 CrPC explicitly prohibits the requirement of sanction for prosecution in certain instances, the high court cannot simply quash the charge sheet solely because the accused is a public servant. In this scenario, there was no need to obtain sanction for prosecution from the competent authority. The refusal of sanction in your case is beyond the authority granted by law, therefore, quashing is not feasible under Section 482 crpc. For more legal help please visit Kanoon India.

Also read: Trial in absence of sanction for prosecution is invalid even in Terrorist Act

Quashing of FIR against the travel agent

Quashing of FIR against the travel agent. In 2018, I arranged a tour booking for a family to the USA through an agent in the USA. However, due to a medical issue faced by one of the travellers, they requested to postpone the trip. Subsequently, the COVID-19 lockdown occurred, further delaying their travel plans. In 2020, when they expressed a desire to proceed with the tour, I was unable to contact the USA agent. I assured the travellers that I would organise the tour once I secured the necessary funds.

However, in 2022, a family member from their group filed a First Information Report (FIR) against me. I applied for bail in the sessions court, but it was rejected due to inadequate representation by my lawyer. Consequently, I approached the High Court and obtained interim relief. Unfortunately, I made an error by committing to repay the tour amount in instalments through an affidavit, which I was unable to fulfil. As a result, they vacated the interim bail in October 2023, and the case against me is ongoing.

I believe that the case is being unjustly treated as a criminal offence when it is, in fact, a civil matter. I suspect that the opposing party exerted pressure on the police to escalate it to a criminal offence. I am currently facing difficulties as a result of this situation, and I am seeking assistance to have the case quashed in the High Court.

Asked from: Uttar Pradesh

The possibility of quashing the FIR against the travel agent exists if the agent can prima facie demonstrate an absence of intent to deceive the customer. The absence of deception on the part of the travel agent constitutes strong grounds to establish that the ongoing criminal proceedings amount to an abuse of the court's process. Therefore, in the interest of justice, the high court may quash such an FIR.

An FIR is typically filed when a cognizable offence has been committed by the accused. In your case, it appears that an offence of cheating, punishable under Section 420 of the IPC, is alleged. As per Section 415 of the Indian Penal Code, cheating involves deceiving another person with the intent to induce them to deliver property or valuable security, or to do or omit to do anything valuable. The essential elements of cheating under Section 415 IPC include:

  • Deception by the accused
  • Fraudulent or dishonest intention to induce the deceived person
  • Delivery of property or valuable security as a result of the deception
  • Causing damage or harm to the deceived person

For an act to constitute the offence of cheating, all these elements must be satisfied.

In your case, there appears to be no intention to deceive the customer (complainant). The postponement of the tour due to a medical issue with one of the customers and the subsequent disruption caused by the COVID-19 pandemic led to challenges in arranging the tour. 

As there was no deception involved, no offence can be established against you. The failure to fulfil the contract can be considered a breach of contract, which is purely a civil wrong.

Criminal proceedings cannot be initiated solely for breach of contract. The Supreme Court, in the case of Usha Chakraborty & Anr. v. State of West Bengal & Anr 2023, has held that

criminal proceedings may be quashed under Section 482 of the Criminal Procedure Code, 1973 (CrPC) when the dispute is essentially of a civil nature and is used as a means of harassment.

It is important to exercise caution and discretion in exercising jurisdiction under Section 482 Cr.P.C. to ensure that it serves the ends of justice and prevents the abuse of the legal process.

Usha Chakraborty

In Bhajan Lal's case the Supreme Court has also held that an FIR may be quashed if the matter attracts civil dispute. Hence, you should file a petition before the high court under Section 482 crpc for the quashing of the FIR. In absence of criminal intention to deceive the complainant the high court may quash this FIR. For more legal help please visit Kanoon India.

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Husband has physically assaulted me on multiple occasions

Husband has physically assaulted me on multiple occasions. I got married in May 2023, and my concern is that he has caused me mental trauma throughout these months. Recently, he shared my entire WhatsApp conversation with a close friend and is now using it to accuse me of wrongdoing. Despite being my husband, he has been physically aggressive on multiple occasions. How should I proceed in this situation?

Asked from: Uttar Pradesh

Your husband has been committing an offence because he has physically assaulted you on multiple occasions. His repeated acts of physical assault constitute a serious offence under the Domestic Violence Act and the Indian Penal Code. Such an act has undoubtedly caused significant distress in your short marital relationship. 

Your first step should be to determine whether you wish to salvage the marriage. If so, involving elders from both families to mediate the ongoing conflict between you and your husband. It could help in not alleviating the situation and potentially address his aggressive behaviour.

Alternatively, you have the option to file a complaint against your husband under Section 12 of the Domestic Violence Act 2005 to seek protection and residence orders. The court has the authority to prohibit your husband from entering certain areas of your shared household (marital home) and from engaging in any further physical violence against you.

Also read: Divorce if wife does not want to live with husband

If you are not inclined to preserve the marriage, you can initiate divorce proceedings against your husband on the grounds of cruelty. While typically divorce cannot be filed within the first year of marriage, exceptions may be made in cases where the cruelty poses a threat to life and limb. It is advisable not to rush into filing for divorce, especially if there is potentially an opportunity for your husband to reform his behaviour. However, if your safety and well-being are at risk, do not hesitate to seek legal remedies available under the Domestic Violence Act. For more legal help please visit Kanoon India.

Also read: Husband filed false divorce case despite he is the real culprit

My brother’s wife has made false allegations of attempt to rape

My brother's wife has made false allegations of attempt to rape, dowry demands, and physical assault against me, my mother, and my brother. All allegations are false and she has no evidence to prove it. I need help.

Asked from: Maharashtra

Your brother’s wife has made allegations of attempt to rape, is not a superficial matter. It has gravity because statement of victim is sufficient for lodging FIR. No need to adduce detail evidence of attempt to rape at the initiate stage. Therefore, the contents of FIR prima facies seem true and empowers the police to investigate the alleged crime.

How can you assert that the allegations made in the First Information Report (FIR) are false and baseless? If you possess evidence refuting these allegations,, you should consider approaching the high court under Article 226 to seek the quashing of the FIR.

Quashing the FIR is not feasible unless you can provide evidence demonstrating that, prima facie, no offence is made out against the accused. During the quashing process, the high court does not appreciate the evidence in depth. 

Since the collection of evidence falls under the purview of the investigation. Therefore, the high court cannot halt the investigation unless you possess compelling evidence indicating that the allegations are false and investigation is unwarranted. If you have been absent at the place of occurrence, you can take a plea of alibi to establish that you were elsewhere at the alleged date and time. Your physical absence at the place of the incident prima facie suggests that the allegations are unfounded.

The offense of attempt to rape, as outlined in the Indian Penal Code (IPC), is regulated by Section 376 in conjunction with Section 511. Several key elements typically define an attempt to commit rape under the IPC.

Firstly, there must be a clear intention on the part of the accused to commit the offense of rape. This intention forms a foundational aspect of the offense. Subsequently, the accused must engage in a direct act that leads towards the commission of rape. These acts could manifest as physical actions or gestures indicating an imminent sexual assault.

Additionally, the act must be in close proximity to the completion of rape, signifying a step that brings the offense closer to fruition. The absence of the victim's consent is a critical element, and any attempt to engage in sexual activity without such consent can be construed as an attempt to rape.

Furthermore, the accused must exhibit a criminal intent to commit the offense, and mere preparation is deemed insufficient. A significant step towards the actual commission of rape must be evident for the offense of attempt to rape under the IPC. For more legal help please visit Kanoon India.

Share of beneficiary in the will

Share of beneficiary in the will. My dad made a registered WILL and in that WILL mentioned that any ancestral property in his name will be transferred to stepmother's name and my name. Can she get 50% share in that property?

Asked from: Uttar Pradesh

If the testator explicitly stipulated the beneficiary's share in the testamentary will, that designated share will be allocated to them. In the absence of a specified portion for the beneficiary in the will, the beneficiary is entitled to an equal share.

In accordance with the details of your case, where there are two beneficiaries and no specific share is mentioned for each, both beneficiaries will receive a fifty percent share in the property. For more legal help please visit Kanoon India.

Unregistered floors and denied shares in the family property

Unregistered floors and denied shares in the family property. The house that belonged to my father was constructed by my brother without obtaining signatures from any of us siblings. The floors were built in the name of my mother-in-law after my father's demise. However, she is no longer present, and both my brothers reside on the two floors. We are not receiving any rent, and when I request a share, they refuse. Additionally, neither of the floors is registered in anyone's name. Please guide me.

Asked from: Uttar Pradesh

Prima facie, you have a right to this property because it belongs to your father. There is no evidence that your brother has erected those floors as his individual property. When a co-sharer invests in joint property and does not claim it as his private property, it indicates an intention to create joint property.

In this situation, your brother cannot assert those floors as his own property. There is prima facie no evidence that it is not a joint property. You may file a civil suit for the declaration of your right in this property because they have refused to give you a share in the property.

In the same suit, you should also claim a permanent injunction to prevent the co-sharers from interfering in your share. In a declaration suit, the claim for injunction is mandatory. Without claiming injunction, the declaration suit is not sustainable. You should initiate legal proceedings for unregistered floors as soon as possible. For more legal help please visit Kanoon India.

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I called off marriage can my girlfriend initiate legal proceedings?

I called off marriage can my girlfriend initiate legal proceedings? I was in a romantic relationship with my girlfriend, and we had informed and convinced our parents about our decision to get married. However, when my girlfriend underwent a major abdominal surgery, my parents pressured me to call off the marriage, and I ultimately chose to comply with their wishes. She is very upset and now planning to file criminal case against me. I don't understand what to do. I feared that there was sexual relationship on the pretext of marriage.

Asked from: Uttar Pradesh

In this situation, your girlfriend may have the option to file a criminal case against you for deception, as you allegedly misled her under the pretext of marriage. If sexual intercourse occurred under the false promise of marriage, it could be argued that consent was obtained through deceit. Your engagement in sexual relations based on a false promise of marriage may be grounds for legal action. For more legal help please visit Kanoon India.

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