Forum Replies Created
October 15, 2017 at 2:29 pm in reply to: Query – interim maintenance continued despite lack of jurisdiction #3179
You can file a petition under Section 482 of the Criminal Procedure Code before the High Court to challenge the interim order of maintenance. Whether a stay would be granted or not, would depend upon the facts of the case, in the discretion of the High Court.
Meanwhile, you can also request the lower court concerned to expedite the hearing of your application questioning the lack of jurisdiction.
This single fact, by itself, may not be sufficient to prove the case.
It is not impossible for a rich party to bribe police officers and manipulate investigation and get a closure report filed on completion of investigation. It is a known fact that it may be happening in some cases. But, it is not necessary that it would happen in every case. It also depends on facts of every case. Sometimes a case may be so strong that it may not be possible to file a closure report in the investigation even if the police is willing to help the accused. So, start with having trust in police and do not doubt everything, just for the sake of doubt.
But, if you come to know about any such malpractice in the investigation, you can inform the senior officers of police who can then intervene in the investigation. Provide all possible evidence from your side to the I.O. to support your case. Moreover, if a closure report is filed on completion of investigation, you as the complainant would get a right of being heard against such closure report; so, file your protest petition in Magistrate court against such closure report, if any, and object to such closure with the support of evidence in your favour. If you have sufficient evidence in your favour, the court will not accept the closure report filed by police.
October 13, 2017 at 10:59 pm in reply to: DELAY IN FILING OF WRITTEN STATEMENT – Order 8 Rule 1 of CPC #3168
Order 8 Rule 1 of the Code of Civil Procedure reads as under:
“1. Written statement.—The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.”
What this provision lays down is that the court has to record reasons in writing if it allows the written statement to be filed after the period of 30 days. The rule does not specifically say that any application has to be specifically filed by the defendant for condonation of delay, though generally that would be done. One may try to contrast it with other provisions in law relating to condonation of delay. For example, in Section 5 of the Limitation Act, 1963, delay can be condoned “if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period”. So, here the burden is specifically cast on the applicant etc. to show sufficient cause for delay and satisfy the court. But, in Order 8 Rule 1, there is no such language used, and instead of that what is required is that the court has to record reasons in writing for allowing filing of written statement beyond 30 days. Of course, it goes without saying that the reasons recorded by court would be based on the explanation given by defendant or time sought by defendant, which would generally be in writing (through a formal application for condonation of delay) or may perhaps be oral explanation; however, the rule is not clear in this regard.
In this regard, note that in the case of Kailash v. Nanhku, (2005) 4 SCC 480, the Supreme Court has held that even the 90 days’ period mentioned in Order 8 Rule 1 of CPC is directory and not mandatory since in a given case the defendants may face extreme hardship in not being able to defend the suit only because he had not filed written statement within a period of 90 days, though it was also held that the defendants may be permitted to file written statement after the expiry of period of 90 days only in exceptional situation.
It may be noted that in the case of Continental Transport Organization Pvt. Ltd. V. Icici Lombard General Insurance Co. Ltd. [Civil Appeal No. 9836 OF 2010, decided on 22.11.2010] [see here], the Supreme Court observed that:
“In the present case, the learned Single Judge did not even bother to advert to the law laid down in Kailash v. Nanhku and the Division Bench refused to interfere with the order only on the ground that application for condonation of delay was filed after a long time gap. In our opinion, this could not be made a ground for declining to entertain the written statement which was filed with a short delay of 6 days.”
So, in the above case, the Supreme Court felt that a delay in filing of application of condonation of delay cannot be a ground to decline to entertain written statement filed after delay. It is noteworthy that in this case, the condonation of delay application was filed only after the opposite party had filed an application for taking the written statement off the record due to delay, and there was at least a delay of 4 months in filing of condonation of delay application itself.
In your case, the written statement is filed within 85 days of receiving summons. So, it is within 90 days period mentioned in Order 8 Rule 1, during which the court can permit it by recording reasons. If you are for plaintiff, you may oppose it on the ground that there is no application for condonation of delay or that there is no sufficient explanation for delay.
As regards your second query about the consequence of not filing the written statement without time permitted by court, please see Order 8 Rule 10 of CPC, which is as under:
“10. Procedure when party fails to present written statement called for by Court.— Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.”
October 13, 2017 at 9:48 pm in reply to: Sales tax review after double bench decision in pakistan #3166
Unfortunately, I am not aware of the legal position and procedure in the Pakistan courts. It may be advisable for you to consult some local lawyer in Pakistan who may be well-versed in the laws and procedure applicable in Pakistan, including on the issue of filing a review petition in the high court. Or, please ask this question on some online law forum of Pakistan.
But, if a similar issue had arisen in India, then it would depend on the facts of the case. In India, if a petition can succeed only on a limited number of points then sometimes the courts do not go into the merits of the remaining points. However, from your viewpoint, if it is felt that the remaining point (that has been left unanswered) was so important that it could have changed the direction of the judgment which has been delivered on other two points only, and if it is felt that the remaining point has been mistakenly left answered by the high court, then it would be advisable to file a review petition in the high court; and in such situation, it may be pointed out that there is an error apparent on the face of the record since one important issue has not been covered in the judgment due to which the judgment has become erroneous. However, even in such a situation (and specially in the situation when the remaining issue has been deliberately left unanswered by high court and not mistakenly), one has the option to approach the Supreme Court since after all, the high court has decided the matter finally and all issues left unanswered are supposed to have been rejected, unless mentioned otherwise (such as if the high court specifically mentions that the remaining issue left unanswered is irrelevant for the fate of the case, etc.; it happens in India in certain types of cases, such as in habeas corpus petitions, preventive detention matters, etc., where if the petition succeeds even on one point then other points may not be discussed). The Supreme Court can, then, decide all the issues itself or may decide to remit the case back to the high court to decide the unanswered point on merits.
What I have mentioned above is generally what happens in India in a similar matter. I hope it helps. But, my sincere advice to you would be to consult some local lawyer in Pakistan who may better advise you as per the laws applicable in your country.
October 13, 2017 at 9:30 pm in reply to: private complaint can be rejected if no complaint lodge before police. #3165
Though the Magistrate has the power to take cognizance of a private complaint given to him directly without first approaching the police, what he has advised you is in your own interest. If you go to police and if they take up your case, it will save you a lot of time, money and energy, since in that case the police will do all investigation and collect evidence and will prosecute the accused in court. Police can even recover money involved in offence under Section 406 IPC, if any. Otherwise, you have to do all this on your own or through your private lawyer. So, better follow the good advice given by Magistrate. Of course, as the Magistrate advised you, if the police does not act on your complaint then you can again file your private complaint with the Magistrate.
You can complain to PayTM for getting the amount back and see if they can help you for returning the money that you paid. If the purchase was through the online portal of PayTM, then they may help. However, if the transaction was directly between the two of you and PayTM was used only for transfer of money, then PayTM may not of help; and in such situation, for recovering the amount, you may have to file a civil case in the court, which may not perhaps be worth the efforts since the amount involved is ₹ 2000 only.
Depending on detailed facts of your case, if the seller has acted dishonestly, then a cheating case under Section 420 IPC may also be made out. Otherwise, for abusive and threatening messages on WhatsApp, probably offences under Sections 504, 506 IPC may be applicable, depending on facts of your case. Previously, Section 66-A of the Information Technology Act, 2000, laid down punishment for sending offensive messages electronically, but now this section has been held to be unconstitutional by the Supreme Court and hence no offence can be registered under this section for that purpose.
If the police is not taking up your case or if your case is only a non-cognizable case (such as under Section 504, 506 IPC), then you can file the private complaint before the Magistrate court. You may contact some local lawyer for the procedure of filing private complaint. Otherwise, visit the local court, where you can get format of private complaint and you can directly file it in person without engaging an advocate.
Definition of “theft” is given in Section 378 of the Indian Penal Code (IPC). While the full section is reproduced at the end of this reply, the main definition says that: “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft”.
So, main ingredients that are required to prove a theft case are:
- Dishonest intention
- To take movable property (in this case mobile phone)
- Out of possession of other person
- Without consent of such person
- Moving of such property (out of possession of such person).
While it is not possible for me to comment on the facts of a case, without knowing the full facts, generally speaking someone will have to state that he has seen you removing the mobile phone from the pocket, and/or at least the phone should have been recovered from you or evidence shown that you have used the phone after being stolen. Merely because you were standing near him may not be sufficient if no person has actually seen (or, may be in CCTV of the shop) you removing the phone from the pocket and if the phone is not recovered from you or if there is no evidence to show that you have used the phone after it was stolen (may be, from the call records). Consult some local lawyer if a formal FIR is already registered against you, and discuss the full facts with him (including the allegations made in FIR).
Section 378 of IPC, in full, is reproduced below:
“378. Theft.—Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.—A moving effected by the same act which effects the severance may be a theft.
Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.—A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.—The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.
(a) A cuts down a tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.
(b) A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it. Here, if A’s intention be dishonestly to take the dog out of Z’s possession without Z’s consent, A has committed theft as soon as Z’s dog has begun to follow A.
(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure.
(d) A being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly runs away with the plate, without Z’s consent. A has committed theft.
(e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession. It could not therefore be taken out of Z’s possession, and A has not committed theft, though he may have committed criminal breach of trust.
(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.
(g) A finds a ring lying on the high road, not in the possession of any person. A, by taking it, commits no theft, though he may commit criminal misappropriation of property.
(h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.
(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, inasmuch as what he did was not done dishonestly.
(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z’s possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly.
(k) Again, if A, having pawned his watch to Z, takes it out of Z’s possession without Z’s consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property inasmuch as he takes it dishonestly.
(l) A takes an article belonging to Z out of Z’s possession without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefore committed theft.
(m) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft.
(n) A asks charity from Z’s wife. She gives A money, food and clothes, which A knows to belong to Z, her husband. Here it is probable that A may conceive that Z’s wife is authorized to give away alms. If this was A’s impression, A has not committed theft.
(o) A is the paramour of Z’s wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft.
(p) A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of B’s possession. Here, as A does not take dishonestly, he does not commit theft.”
Section 362 of the Criminal Procedure Code allows the court to modify its judgment or order for correcting the clerical or arithmetical errors. Try in the trial court under that section if it is important for your appeal:
“362. Court not to alter judgment.— Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”
October 12, 2017 at 10:32 pm in reply to: Consumer Court decree: Interest on amount to be refunded is simple or compound? #3156
In the situation described in your question, it should be simple interest.
Let me point out that Section 3 of the Interest Act, 1978, deals with the power of the courts and tribunals to allow interest to the person entitled to the debt or damages. Sub-section (3) of this Section lays down that “Nothing in this section … shall empower the court to award interest upon interest”. This means that compound interest is not permissible. [Note: It is noteworthy that Section 5 of this Act says that “Nothing in this Act shall affect the provisions of Section 34 of the Code of Civil Procedure, 1908 (5 of 1908)”. Remember, Section 34 of the CPC deals with interest.]
In this regard, let me point out that in the case of State of Haryana v. S.L. Arora & Co., (2010) 3 SCC 690 : AIR 2010 SC 1511, the Supreme Court held that:
“Section 3 of the Interest Act, 1978 enables the courts and Arbitral Tribunals to award interest from the date of cause of action to the date of institution of legal proceedings or initiation of arbitration proceedings. Sub-section (3)(c) of Section 3 of the Interest Act, 1978 makes it clear that nothing in the said section shall empower the court or arbitrator to award interest upon interest. It should be noted that Section 3 of the Interest Act does not deal with either pendente lite or future interest.”
In the case of Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, the Supreme Court held that award of interest on interest was not opposed to the public policy of India, but could be awarded only if authorised by the contract or statute. It was observed:
“… Merely because in Section 3(3)(c) of the Interest Act, 1978, the court is precluded from awarding interest on interest does not mean that it is not permissible to award such interest under a contract or usage or under the statute. It is common knowledge that provision is made for the payment of compound interest in contracts for loans advanced by banks and financial institutions and the said contracts are enforced by courts. Hence, it cannot be said that award of interest on interest i.e. compound interest, is against the public policy of India. We are, therefore, unable to accept the contention that award of interest on interest i.e. compound interest is contrary to public policy of India….”
Likewise, in the case of SBI v. Ganjam District Tractor Owners’ Assn., (1994) 5 SCC 238, Supreme Court observed that in the absence of a provision for compound interest or interest with periodical rests in the agreement between a bank and the borrower, the bank cannot claim such interest.
Firstly, please understand that all questions asked and the replies given on this website (Tilak Marg) are open to public, and questions are replied on the Forum / website and not by email.
Your question is very vague. Usually the provision of “deemed suspension” comes into effect if the custody is more than 48 hours. It is not clear for how many days you were in custody. Further, you have also not clarified as to whether you were formally placed under suspension after the arrest or whether the provision of deemed suspension became applicable to you.
It is also not clear from your question as to what do you mean by “given joining in the University on 9th October”. Does this mean that you have joined on 9th October, 2017, and/or does it mean that your suspension (if any) has been revoked? If yes, then you should not worry about the question of reinstatement since in such a situation you have already been taken back in service.
Please also note that even if your name was not in FIR or there was no complaint against you, your name could have been added subsequently during investigation as an accused person by CBI. The CBI will not arrest a person without naming him an accused in the case.
It may be advisable that you consult some local lawyer at your place with full facts of the case, since you have not only a departmental matter but also a CBI case.
Detailed facts need to be examined for answering your question accurately. But, the general legal position is as under.
Often a Departmental Promotion Committee (DPC) is convened annually for preparing panels for filling vacancies that are likely to arise in the course of the year. Regular meetings of DPC are normally to be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year; unless it is intimated in advance that there are no vacancies to be filled by promotion in a given year. [see: Union of India v. N.R. Banerjee, (1997) 9 SCC 287 : AIR 1997 SC 3761.]
At the same time, it has also been laid down in the instructions that the DPC should sit on regular basis to consider the cases of the eligible candidates within the zone of consideration. So, it is necessary that the officers in the zone of consideration should have been considered by the DPC. And, in this regard, it may be pointed out that the zone of consideration itself depends on the number of vacancies which are notified to the DPC. There are detailed guidelines as to how the zone of consideration is to be calculated depending on the actual number of vacancies [see: OM No. 22011/2/2002-Estt (D) dated January 6, 2006, Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training)]. Guidelines also lay down that for calculating the number of vacancies in the current year, all vacancies anticipated during the next 12 months from 1st January to 31st December shall be taken into account and should include only the existing vacancies (duly sanctioned and not merely budgeted) and anticipated retirements and promotions.
October 11, 2017 at 8:10 am in reply to: Promotion during EXOL (extraordinary leave) – validity of panel #3147
In such situation if the employee is under the Central Government, as far as I understand, it appears that the order of promotion of such officer may become invalid and the officer may be required to be considered afresh by the next DPC held in the normal course after he joins his duty on expiry of the extraordinary leave. I am writing this on the basis of the Office Memorandum No. 20034/5/2002-Estt(D) dated August 4th, 2004, of the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), the relevant extract from which is as under:
“It is clarified that if on the basis of empanelment for promotion against vacancies arising in a vacancy year, a promotion order contains name of a person who is on a sanctioned leave, a copy of the same is to be endorsed to the officer at his leave address by registered/speed post etc. along with necessary advice about the authority to whom he is to report for assuming charge of the higher post. If the Officer assumes charge of the higher promotional post by curtailing leave, if necessary, within the currency of the vacancy year for which the panel is prepared, or within six months from the date of the promotion order, or before the last person borne on the panel is offered promotion without being required to be reassessed by a fresh DPC, whichever is later, the officer will not be required to be considered afresh by the next DPC and he will retain his seniority as per the position in the panel on the basis of which he has been promoted. If, however, he does not join to assume charge of the higher post within the period as specified above and continues to remain on long leave or seeks further extension of leave, the order of promotion, insofar as the said officer is concerned, will become invalid and the officer will be required to be considered afresh by the next DPC held in the normal course after he joins his duty on expiry of the leave. His seniority on subsequent promotion will be as per the position in the fresh panel. This will equally apply to cases of promotion by mode of selection as well as non-selection. While referring the order of promotion to the officer on leave, it would be necessary to bring to his/her notice the above position.”
The above O.M. lays down provision in respect of an officer who is on a sanctioned leave. Obviously, an officer who is on an extraordinary leave cannot be in a better position than an officer on a sanctioned leave.
October 11, 2017 at 7:54 am in reply to: Suspension exceeding 1 year by United Bank of india #3145
Please read my reply to a similar question asked by a banker: Approaching court for revocation of suspension and reinstatement after long suspension.
You may also read other articles / replies on this website relating to suspension: http://tilakmarg.com/forum/search_gcse/?q=suspension.
Generally in cases where there is a criminal case registered followed by arrest / custody, suspension may be continued for longer durations. It is not uncommon to see suspension in such cases continuing till the trial in the criminal case is over. It also depends on the facts of the case and the role of the employee in such criminal case.
Normally, there are provisions for review of the suspension at periodic intervals such as 3 months or 6 months. You may check what are the rules in your bank relating to review of the suspension. Also check whether your suspension has been reviewed periodically as per the rules.
Depending upon facts of your case, and in consultation with your local lawyer, you may challenge the continuation of your suspension in the appropriate court / tribunal.
You do not have to tell the facts to me on this forum. You may have to tell the facts (such as the detailed facts mentioned in FIR or other allegations and other details) to your local lawyer. On this forum, we do not reply to facts of a case; we reply to the questions of law.