Defending a false 498A, 406 case.

So you’ve got a 498a FIR against you ? Don’t fret. FIR is just an accusation, you are not pronounced guilty, you’ll get ample opportunity to defend and earn your acquittal on merit.

The sooner you come to your senses and start working on your defence the better it is.

Since 498a is a non bailable/cognizable offence – police can arrest you without a warrant and you’d get bail only from the court which means detention by the Police, who are obliged to produce you before area magistrate within 24 hrs, who would then take a call on whether police custody (in police station or colloqually hawalat) or judicial custody is required (jail) or the person may be released on bail, if you’ve been arrested this is the time when regular bail application has to be moved.

However a better alternative would be to get an anticipatory bail (bail in anticipation of arrest) from sessions court. This if granted would be a direction to the police to release you on bail on your arrest forthwith.

Once that is done the next thing that you do is to participate in the investigation. An Investigating officer usually the rank of ASI would be entrusted to investigate and collect evidences so that offence against you can be proved. Though an IO is mandated to collect evidences that may support either side – the accused or the complainant, but rarely do they stand above partisanship and seldom lead an independent role, can say from personal experience they take money from either side and then support the girl’s side. IO normally during investigation would examine witnesses, documentary proofs, expert opinion etc. As per Criminal Procedure Code an IO is present the result of his investigation to the area magistrate, known as police report. If the IO finds no evidence worthy of accused being sent for trial – he files a closure report/final report/b report etc. If he finds evidence against the accused on which it seems accused has committed the offence he files a chargesheet/challan.
There is no specific time fixed presentation of challan. Once the IO files challan – you get a right to argue for discharge before the magistrate, if the FIR on the very face of it is frivolous and an abuse you may go to quashing of FIR to the High Court (section 482 CrPC) (note quashing is an extraordinary remedy consult your lawyer before rushing into the same),if there is no discharge or quash – the judge frames CHARGES. Once charges are framed – evidences are led now in the court, each witness would come to the court enter the witness box and speak – each witness is first examined by Public Prosecutor (who conducts prosecution on behalf of the state/complainant) and then cross examined (cross questioned to discredit and demolish) by your counsel (defence counsel) after the same process is done with all witnesses, the judge would examine you (the accused) and put all incriminating circumstances and seek explanation – this is a very good opportunity though rarely exploited by accused to ward off the inference of guilt by giving solid explanations to prosecution witness’s testimony.

After this the accused may lead his own witnesses into the witness box to prove his innocense.

The judge then closes evidence and then listens to arguments and gives decision of either conviction or acquittal. Either way it does not end there as an appeal can be filed by accused if convicted or the state or even complainant (wife) in case of acquittal.

In my next article I shall deal with more tips and tricks on defending a criminal trial.

*The Author Bharat Chugh is a Supreme Court Advocate and can be reached at (bharat.law06@gmail.com)

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