Dr. Ashok Dhamija

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  • You have not clarified whether this case status is from the Supreme Court website or some high court website.

    Anyway. This would imply that your case would be heard and decided finally at the stage of admission itself.

    In Supreme Court, initially “leave” is granted in SLP which then gets converted into a regular appeal, and then the case is heard in detail as a regular appeal, which takes much longer time for disposal. But, sometimes, the case is decided at the SLP stage itself. So, the case status mentioned above, if it relates to Supreme Court, may imply that the case may be decided at the SLP stage itself, thereby making the case disposal faster.

    In high courts, usually matters (such as writ petitions) are first admitted, and then heard in a queue (as per case seniority, i.e., depending on when the case was filed). This may take a long duration of time. But, sometimes, the case may be decided at the admission stage itself, thereby saving time. This is generally done when the issues involved in the case are short or are of urgent nature.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Regarding Section – 7 of Anti Corruption. #4585

    Please see our Forum guidelines. It is not possible for us to comment or advise on the facts of a case since we do not see the detailed documents of an individual case.

    As a general guidance, however, I may state that secondary evidence may be given if the primary evidence is lost or destroyed. This is laid down in Section 65 of the Evidence Act. Perhaps this may be happening in your case. You have to ascertain it.

    However, since the secondary evidence in your case appears to be relating to electronic evidence (such as recording in CD), the conditions mentioned in Section 65-B of the Evidence Act must be satisfied, otherwise such secondary evidence may not be admissible in court. So, you can ask your advocate to confirm these aspects.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • It will depend on your service conditions (such as conditions at the time of appointment) and the relevant transfer policy of the department. Unfortunately, I am not aware of both of the above in this particular case.

    You may try filing an application on sympathetic grounds (of having hearing handicap, as mentioned by you) if the rules do not permit it in a routine way. I have seen some similar transfers in some other departments, even though normally such transfer was not permissible. If both the commissionerates agree, such transfer should be possible. You may also try filing an application before their common higher authority (such as the Central Board of Indirect Taxes & Customs). If nothing helps, you can consider filing a petition before the Central Administrative Tribunal challenging the order of refusal of the authorities. Sometimes, the Tribunal may be of help.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • Read this news report as per which family members of a missing government employee or pensioner can get all benefits including pension, gratuity and leave encashment among others after filing FIR with police station and following the necessary procedure, including signing of an indemnity bond.

    Of course, your case is a little complicated since your father was removed from service due to his absence as you have yourself mentioned that your relatives were negligent in informing the Government about your father being missing.

    Please note that in the case of removal from service, pension or family pension may not be admissible.

    Further, you have not clarified as to whether your father is missing continuously since 1995 or he was traced thereafter (i.e., after his removal from service). This fact may also affect your case.

    As per Section 108 of the Evidence Act, if nothing is heard about a person by the persons (such as relatives) who are naturally expected to hear about him, for a period of seven years, then such person may be presumed to be dead.

    So, you may have to consult some local lawyer and show him all relevant documents / details and take his guidance about your case, in view of the complicated questions of facts being involved. As mentioned in our guidelines, we do not look into detailed facts of a case. However, I have provided broad guidance in your case on the basis of the general principles.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: REVOKE OF SUSPENSION ORDER #4581

    Every organisation has its own discipline and appeal rules, which generally include the power to suspend. You’ll have to check the detailed rules of your organisation with regard to suspension.

    But, generally speaking, there is no legal restriction on suspending an officer / employee on the date of registration of the FIR itself.

    Most of the Government rules provide also for “deemed suspension”, which applies if an employee is in custody for a period more than 48 hours. Such deemed suspension comes into existence automatically from the date of detention / custody.

    For example, Rule 10(2) of the Central Civil Services (CCA) Rules, provides as under:

    “(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority –

    (a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

    (b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

    EXPLANATION – The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.”

    You’ll have to check the relevant rules applicable in your University. Generally speaking, the rules may be similar.

    Likewise, suspension rules also generally contain provisions for periodic review of the suspension order (after 3 months or 6 months) if the suspension continues for longer durations. Please check your rules in this regard.

    Depending on the relevant rules applicable in your case, you can challenge your suspension before the appropriate tribunal or court which has jurisdiction for service law matters of your University. You may consult some local lawyer of your area for better guidance.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • Firstly, you’ll have to check the provisions of the relevant State Land Revenue Act as to whether there is a provision for review of the decision of the Financial Commissioner. Generally, there is such a provision for review on the ground of error on the face of the record. Confirm it. If it is there, then you can apply for review.

    Order 47 Rule 1 of the CPC is also basically for review of the order of the court which passed a decree, on certain conditions being satisfied as mentioned in that provision. You’ll have to check the relevant provisions of the State Land Revenue Act as to whether order of the Financial Commissioner is declared as a decree and whether the provisions of the CPC are made applicable to such decisions. Presuming that Order 47 Rule 1 is applicable, you’ll have to compare as to under which legal provision the review powers are wider and also the limitation angle. Moreover, sometimes, an application / appeal etc. is filed under two provisions simultaneously if both provisions are applicable. Examine that possibility too.

    Before you think of filing a petition under Article 226 of the Constitution before the high court, ascertain whether there is any alternative remedy (such as appeal, revision, etc.) available against the order being challenged. If yes, then first exhaust such alternative remedy. If not, you can consider filing writ petition under Article 226.

    I cannot comment on the detailed facts of your case in the absence of knowing full details. What I have mentioned above are broad guidelines. Consult some local lawyer by showing him all your relevant documents.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Regarding paying maintenance – till how long in life? #4579

    It depends on the terms of the maintenance order. Does it mention any specific cut-off date up to which the maintenance has to be paid? If not, then the maintenance may have to be paid by you till the maintenance order is modified or cancelled by the appropriate court or the appellate court.

    Secondly, if you believe that due to your own financial hardships, you are not in a position to pay maintenance, you can file an application before the court for alteration / modification / cancellation of the maintenance order along with evidence of your reduced income. For example, if the maintenance order was passed under Section 125 of the Criminal Procedure Code, you can file such application for alternation / cancellation of the maintenance order under Section 127 of the Cr.P.C.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • It will depend on the investigation of the case. If it is found during the investigation that your son has forged signatures of other members of the family and that there is no role of any family members, then the family members may not be made accused persons. However, on the other hand, if there is no concrete evidence to prove that it is your son who forged signatures of the family members, then there may be a chance that family members may be made accused as their accounts have been involved in the fraud, as you have mentioned. It all depends on the result of the investigation. What I have indicated above is only a guess work on the basis of very limited facts made known to me.

    Likewise, the filing of civil suit by the bank against family members would depend on the facts of the case. Both options could be there before the bank.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: amendment of complaint under sec.138 n.i.act #4564

    There is no specific provision in the Criminal Procedure Code (or in the Negotiable Instruments Act) for amendment of the complaint.

    However, in the case of Amol Shripal Sheth v. Hari Om Trading Co.
    (2014) 6 Mah LJ 222 (Bom) : (2013) 3 AIR Bom R 820 : 2013 Cri LJ (NOC 451) 163
    , Bombay High Court held that the Magistrate has incidental and ancillary power to the main power of taking cognizance of offence to allow amendment, and also that this power can be exercised before and after taking cognizance of the offence in a case like present one. The relevant observations are reproduced below for your benefit:

    “The aforesaid provisions of Criminal Procedure Code show that if the Magistrate takes cognizance of the offence, he needs to ascertain as to who has committed the offence. In the case like present one, the complainant may not be in a position to get the correct name of the accused. A tight schedule of time limit created by the provisions of N.I. Act also needs to be kept in mind in such a case. Due to such tight schedule of time limit, which is mandatory in nature, in many cases the complainant may not be able to get the complete and correct name of the responsible persons for dishonour of cheque at the time of filing of the complaint. So in view of these circumstances and the aforesaid provisions of Criminal Procedure Code, the Magistrate can take cognizance of the offence and he may issue process even against the persons whose name is not correctly described by the complainant. If after appearance of accused, the defence taken like in the present case is there, the Magistrate needs to ascertain as to whether there is doubt about the identity of the person described by the complainant in the complaint and as to whether the person who appeared as accused is the same or not. That can be done even during trial. If the accused points out the defects in the name given in the complaint, but he is not in a position to show that he is a different person, he cannot take benefit of such defects. There is no provision in Criminal Procedure Code providing for dismissal of the complaint due to such defect. Complaint can be returned only under section 201 of Criminal Procedure Code, if the Magistrate finds that he is not competent to take cognizance of such a case. So, if there is no doubt about the identity of the accused described in the title and in the body of the complaint, such person cannot get acquittal by taking such defence. For such defence, the complaint also cannot be dismissed under section 203 of Criminal Procedure Code. The burden to establish the identity of accused and involvement of the accused in the crime is always on the prosecution and the opportunity to establish both the things cannot be taken away from the prosecution, if there is such defect. Thus, in one way, it can be said that the accused does not get any benefit due to such defect. Then, the question arises as to what needs to be done or what can be done in such cases to correct such mistake.”

    “It is not disputed that there is no specific provision dealing with the amendment of the complaint. There is also no provision preventing the Court from allowing the amendment in complaint in such a case. From the aforesaid provisions and particularly, the fact that the Magistrate takes cognizance of the offence, this Court holds that the Magistrate has incidental and ancillary power to the main power of taking cognizance of offence to allow such amendment. In view of the discussion made above, this Court further holds that the power can be exercised before and after taking cognizance of the offence in a case like present one.”

    So, you can try using the above judgment.

    In addition to the above, the provisions of Section 319(1) of the Cr.P.C. lays down that: “Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.” Therefore, the name of a new accused person can be added under the provisions of Section 319 of the Cr.P.C., in appropriate cases.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • Your question is vague and does not have the necessary details.

    In any case, on the basis of the limited details made available, it can be said that once the property has already been transferred to the son, by way of the registered will, so it can be presumed that there is no dispute about the will. In such situation, once the property is transferred to the son without any encumbrances, no other person can have a right therein. During his lifetime, the son can have full rights over this property.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Builder sold Mortgaged Flat #4561

    Your question involves complicated questions of facts and law. It is not possible for us to give an accurate answer to your answer in the absence of having seen the full details / documents of the case.

    But, generally speaking, such an act may amount to the offence of cheating if the builder has sold the flat to you my misrepresenting the facts in a dishonest manner. It is also not understood how a bank (HDFC Bank) gave you loan (that too 95% loan) against such property, since the banks would generally examine the title in detail. In particular, the HDFC Bank is generally very strict in these matters. Thirdly, there would be indemnity bond executed along with the sale deed, you can try to enforce it, provided such agreement had been signed. Fourthly, you yourself appeared to have been negligent in as much as you took possession without getting the deed registered on time, otherwise you would have come to know of the fraud in the initial stage itself. Fifthly, unless there is a stay from the competent court, it would be difficult for you to stop the DHFC. And, as far as my understanding goes, the stay may have to be obtained not from the criminal court of CJM but from the DRT or other competent court where DHFC has filed proceedings against the builder, or you have filed the civil matter, if any, against the builder. You should consult some local lawyer by showing him all relevant documents.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: punishment for removal of survey stones #4560

    Depending on detailed facts of your case, it may be an offence under Section 434 of the Indian Penal Code (IPC):

    434. Mischief by destroying or moving, etc., a landmark fixed by public authority.—Whoever commits mischief by destroying or moving any landmark fixed by the authority of a public servant, or by any act which renders such landmark less useful as such, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

    You may also check the provisions of the Revenue laws of your State (such as the Andhra Pradesh Land Revenue Code or other related laws) to find out whether there is some specific offence defined for such type of act.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • You appear to have quoted the wrong legal provisions. Looking at the facts mentioned in your question, the correct legal provisions for the offences committed would be Section 30-C (offence by Government officer) and Section 30-A or 30-B (for a person doing illegal construction), as the case may be, of the Ancient Monuments And Archaeological Sites And Remains Act, 1958.

    Since these offences appear to be cognizable, you may file a complaint with police with proof. If police does not take action, you can try filing a private criminal complaint in the competent court.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • If the decision was taken by a Single Judge of the High Court, as it appears from your question, you may have the option of challenging the same before the division bench of the high court, provided the rules of your High Court allow it. So, check the relevant rules of your high court in this regard.

    You have already tried the review petition also. Both times, as per facts in your question, it was not heard on facts. While I am aware of detailed facts of your case, it appears that the high court has left the decision to the concerned authority, without deciding on merits, as you have mentioned. It is up to the court concerned to take a call, in the given situation. If you are not satisfied with its decision, you can challenge such decision in accordance with law. If the high court has asked the departmental authority to take decision in your case, then you may approach the departmental authority for the same.

    Your last two questions are already covered in the first para of my reply. If your high court rules permit, you can approach the division bench. Otherwise, you can challenge before the Supreme Court.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • The word “removable” under Section 197 of the Cr.P.C. refers to the authority which has the power to remove the public servant concerned from his service.

    As you have mentioned, the removing authority for an Inspector of Police is generally the Director General of Police (DGP) or the Inspector General of Police (IGP) and NOT the State Government. Therefore, in so far as the main provision of Section 197 Cr.P.C. is concerned, i.e., under sub-section (1) thereof, there is no requirement for taking sanction of the Government for prosecuting the Inspector.

    However, for police personnel, sub-section (3) of Section 197 may also be relevant, which is as under:

    “(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.”

    Therefore, if a Notification has been issued by the concerned State Government under sub-section (3) for applying the provision of sanction to other classes of police personnel, then sanction may be necessary even for such lower level police personnel. For example, if I remember correctly, in Maharashtra, such a Notification has been issued by the State Government, necessitating sanction under Section 197 Cr.P.C. even for a police constable if other conditions in sub-section (1) thereof for that offence are satisfied.

    So, you should check the relevant Notification, if any, of the concerned State Government.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

Viewing 15 posts - 1 through 15 (of 1,803 total)