NEED HELP URGENTLY

[legalfalcon]

As a lawyer qualified in India and the U.S., and having over 8 years of experience in criminal and immigration laws, here is my opinion on your case. Since I am not privy to the documents and this is a discussion forum, whatever I say should not be construed as a legal advice. Here is the detailed analysis:

1. Section 498A, Indian Penal Code, 1860

IPC section 498A is as rightly pointed out above is a cognizable/non-cognizable (depends on who reports it) and non-bailable case. However, in cases pertaining to 498a the law states that when a case is filed, the police should try and ask the estranged couple to go for a counselling. If it fails, or if either of the spouses does not agree, only then will a police officer file a First Information Report (FIR). When an FIR is filed, there is a case lodged against the applicant, which is the scenario in this case.

Further, as per you, he was arrested. An arrest is not a big issue. What matters is a charge sheet (after investigating the police files its report before the concerned court detailing how the charges as listed in the FIR are made out with the evidence found by the investigating authority. This is what a charge sheet is. Simple what all charges are attracted. Prima facie what an FIR states and under which sections an FIR is registered may not be made out. In cases when the investigating authority is unable to find anything they still file their report and usually call it a closure report, requesting the judge to close the case.)

Once the charge sheet is filed it is up to the Judge to accept it or reject it. In most cases the Judges do accept it. Then the defense counsel will argue on what all charges are attracted and will try and show that the facts do not support charging the accused for the offenses mentioned in the charge-sheet. Once this is finalized then the usual process of a trial starts, which I need not list here.

Since, 498A is a non-compoundable (cannot be settled by mutual agreement) offense, the complainant (wife in this case) cannot withdraw the case without the permission of the court. If the wife states before the Judge that she would like to withdraw the case, and the Judge allows, the case will be dropped and an order to that effect will be passed by the concerned court.

2. Police Clearance Certificate

A police clearance certificate, unlike what people assume, is not a document stating that you have a clean record or not. On the contrary, it simply states if you have ever been in trouble with the law. In India, a PCC will state if there has been a complaint filed against you if you have been chrage-sheeted or arrested. It will not state the result since the cases go forever and the losing side has a right to appeal, which the police has no way to find out about.

A normal PCC will read as follows:

It is certified that [•], S/o [•], resident of [•], bearing passport number (can be any other proof too) has not been/ been found chargesheeted, wanted or convicted in any criminal case as per the record of PS [•].

So a PCC from the police will state that the applicant has a case registered against him and was charge sheeted. I am assuming here since he was arrested.

2.1 PCC and its relevance in immigration

A PCC is one of the most important documents in an immigration application. The immigration authorities are not only concerned about your criminal antecedents but also how an applicant forms a part of the community. A charge of driving under the influence, rash driving, hit and run, domestic abuse, physical violence are all grounds for inadmissibility. They are big red flags. However, when a person has committed a crime there is a likelihood that he can be reformed which can be demonstrated by a strong Letters of Explanation (LoE). Factors such as an isolated incident, the case being settled, prosecution being dropped are all factors that immigration authorities will consider.

In your case, you should consult a lawyer who would advise you on what all documents you should incorporate in your LoE. You should also consider seeking a lawyer to draft your LoE who can persuasively law down the law and demonstrate how this case is redundant.

I hope this helps and answers your questions.

 

[sanjsin9]

That is wrong and wilful misrepresentation. He has to declare. There are several ways people have been able to meet the POF requirements and how to meet it is the kind of question you should be asking, not being dishonest
[/quote]

Thank you Bro


will update him the same info you've provided , if possible i can help him with some POF

 

[sanjsin9]

That is wrong and wilful misrepresentation. He has to declare. There are several ways people have been able to meet the POF requirements and how to meet it is the kind of question you should be asking, not being dishonest

any special ways to meet POF requirements ??

 

[shashidhar_sm]

I think it is better he gets the PCC stuff sorted out first. Funds can be saved up in the meantime, and gifts from relatives (with proper documents) are allowed for proving sufficient funds too.

 

[sanjsin9]

That is wrong and wilful misrepresentation. He has to declare. There are several ways people have been able to meet the POF requirements and how to meet it is the kind of question you should be asking, not being dishonest

thank One_Topsy

 

[Venky19]

Today i visited police and the answer is clear "PCC will not be issued while there are pending cases in India". PCC can only be issued after the case is disposed off by the court. This tells to me that the applicant can not apply for PR for an average of 3-5 years while 498a (dowry harassment case) in India. Although I was advised by police that i can apply to court to allow me to work and live abroad. Usually courts in India consider career and livelihood of accused and issue a direction/ order to allow the accused go and work abroad with a surety bond to ensure that the accused will attend court for scheduled trials. Which sounds a relief to answer to IRCC while applying for work permit / TRV.

 

[Jatinder_singh]

hii,

If 498a (dowry harassment case) and 406 is disposed off by the court, can one apply for Canada PR, and does one need to upload any legal documents such as quashing of FIR documents while applying for express entry

 

[Venky19]

hii,

If 498a (dowry harassment case) and 406 is disposed off by the court, can one apply for Canada PR, and does one need to upload any legal documents such as quashing of FIR documents while applying for express entry

Not sure if you got this answered, but Yes, the charges shall be declared and court decree submitted to IRCC upfront.

 

[Makroh]

As a lawyer qualified in India and the U.S., and having over 8 years of experience in criminal and immigration laws, here is my opinion on your case. Since I am not privy to the documents and this is a discussion forum, whatever I say should not be construed as a legal advice. Here is the detailed analysis:

1. Section 498A, Indian Penal Code, 1860

IPC section 498A is as rightly pointed out above is a cognizable/non-cognizable (depends on who reports it) and non-bailable case. However, in cases pertaining to 498a the law states that when a case is filed, the police should try and ask the estranged couple to go for a counselling. If it fails, or if either of the spouses does not agree, only then will a police officer file a First Information Report (FIR). When an FIR is filed, there is a case lodged against the applicant, which is the scenario in this case.

Further, as per you, he was arrested. An arrest is not a big issue. What matters is a charge sheet (after investigating the police files its report before the concerned court detailing how the charges as listed in the FIR are made out with the evidence found by the investigating authority. This is what a charge sheet is. Simple what all charges are attracted. Prima facie what an FIR states and under which sections an FIR is registered may not be made out. In cases when the investigating authority is unable to find anything they still file their report and usually call it a closure report, requesting the judge to close the case.)

Once the charge sheet is filed it is up to the Judge to accept it or reject it. In most cases the Judges do accept it. Then the defense counsel will argue on what all charges are attracted and will try and show that the facts do not support charging the accused for the offenses mentioned in the charge-sheet. Once this is finalized then the usual process of a trial starts, which I need not list here.

Since, 498A is a non-compoundable (cannot be settled by mutual agreement) offense, the complainant (wife in this case) cannot withdraw the case without the permission of the court. If the wife states before the Judge that she would like to withdraw the case, and the Judge allows, the case will be dropped and an order to that effect will be passed by the concerned court.

2. Police Clearance Certificate

A police clearance certificate, unlike what people assume, is not a document stating that you have a clean record or not. On the contrary, it simply states if you have ever been in trouble with the law. In India, a PCC will state if there has been a complaint filed against you if you have been chrage-sheeted or arrested. It will not state the result since the cases go forever and the losing side has a right to appeal, which the police has no way to find out about.

A normal PCC will read as follows:

It is certified that [•], S/o [•], resident of [•], bearing passport number (can be any other proof too) has not been/ been found chargesheeted, wanted or convicted in any criminal case as per the record of PS [•].

So a PCC from the police will state that the applicant has a case registered against him and was charge sheeted. I am assuming here since he was arrested.

2.1 PCC and its relevance in immigration

A PCC is one of the most important documents in an immigration application. The immigration authorities are not only concerned about your criminal antecedents but also how an applicant forms a part of the community. A charge of driving under the influence, rash driving, hit and run, domestic abuse, physical violence are all grounds for inadmissibility. They are big red flags. However, when a person has committed a crime there is a likelihood that he can be reformed which can be demonstrated by a strong Letters of Explanation (LoE). Factors such as an isolated incident, the case being settled, prosecution being dropped are all factors that immigration authorities will consider.

In your case, you should consult a lawyer who would advise you on what all documents you should incorporate in your LoE. You should also consider seeking a lawyer to draft your LoE who can persuasively law down the law and demonstrate how this case is redundant.

I hope this helps and answers your questions.

I have a question : In case of false 498A case( no arrest, no framed charges and with stay order from high court) which is not proved in the court yet and in that case if a Canadian lawyer helps in drafting the LOE then do you really think the PCC can be waived by the ircc?

 

[legalfalcon]

I have a question : In case of false 498A case( no arrest, no framed charges and with stay order from high court) which is not proved in the court yet and in that case if a Canadian lawyer helps in drafting the LOE then do you really think the PCC can be waived by the ircc?

No. IRCC will not waive the PCCC requirement. instead when you have a criminal charge or a probability of it, the PCC is even more relevant.

Also, you claiming an allegation as false does not make it false. The court has to rule on it. A stay is in interim relief under s438 Cr.PC and not a final determination. A final determination is when the charges or the final report is quashed and you are discharged.

Further, IRCC does not only care about whether you were charged or not. ENF2 states:

As part of Canada's international commitment to combat transnational crime, the policy intent in applying the provisions is first and foremost to deny entry into Canada and thereby prevent Canadian territory being used as a safe haven by persons who are subject to a criminal proceeding in a foreign jurisdiction; or are fleeing from such proceedings. The “committing an act" provisions of the Act are not intended to bar the entry into Canada of persons who may have committed, but have not been convicted of, one or more summary offences. The practical application of the policy with respect to the “committing an act” provisions is to deny entry into Canada to persons against whom there is evidence of criminal activity that could result in a conviction if there were a prosecution in Canada. Good judgment is important to ensure that the objectives of the Act are supported in applying these provisions. Officers should also recognize that a decision by a local policing authority not to prosecute is often a result of considerations that are specific to the criminal justice context and not necessarily consistent with the objectives of managing access to Canada. In other words, a decision by a local policing authority not to lay or proceed with charges should not automatically be considered as prima facie evidence that an offence was not committed; nor should officers be overly capricious in the use of the Act’s inadmissibility provisions.

Also, you need to work with a lawyer that knows Indian law. 498A is specific to India.

All the best!


[My response does not constitute legal advice and neither does it give rise to any lawyer-client relationship.]

 

[Mashud]

Please put your valuable suggestion regarding the issue

After Receiving PPR alogwith accompanying spouse, the dependent dont want to submit passport with the 1st applicant now (Due to relationship crisis dependent will finalize separation in a month or two- so no papers to submit now).
Will it be okay if the 1st applicant submit the passport for visa stamping Singly? Will the visa should be stamped or Rejected ?

 

[Makroh]

No. IRCC will not waive the PCCC requirement. instead when you have a criminal charge or a probability of it, the PCC is even more relevant.

Also, you claiming an allegation as false does not make it false. The court has to rule on it. A stay is in interim relief under s438 Cr.PC and not a final determination. A final determination is when the charges or the final report is quashed and you are discharged.

Further, IRCC does not only care about whether you were charged or not. ENF2 states:



Also, you need to work with a lawyer that knows Indian law. 498A is specific to India.

All the best!


[My response does not constitute legal advice and neither does it give rise to any lawyer-client relationship.]

Thanks for your valuable feedback !

 

[normie]

Hi Legal Falcon,

In a case where a minor was falsely framed and charged in India, along with several other minors, and later acquitted by the court; should this be notified to IRCC when applying for PR, even if the PCC says No Adverse information?

Issue is, the individual never knew about these charges, never got a summon, never went to court, was living their life normally, studied abroad, travelled abroad for vacations, worked abroad too.

Everything was fine until they applied for a PCC from their home country. Before all this, the individual applied for passport, visa in multiple countries and lived there, but there was never an issue. This person also got a work permit in Canada, and during filing, they mentioned NO in their application when asked about any Criminal Charges, because they never knew about this case.

Now since they are in Canada, and gathering documents for PR, they found out about this case. Upon requesting a PCC, the police prompted that a case shows up on their system, but they dont know the status. Upon digging, it was found that almost two decades ago, when the minor was still in school, a false case was filed against them and a group of students, which was also acquitted, so there is no pending case.

But now there is another dilemma about what needs to be done, as they have mentioned NO in their Work Permit application form, when asked about being charged in the past. Should they now approach IRCC, and tell them of this new finding? And the other question is, since the PCC is clear, should they answer YES when asked if they were ever charged?

Could you please guide here?