Dr. Ashok Dhamija

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  • in reply to: If Appeal u/s 29 of DV Act is dismissed by Session Court? #3612

    Limitation period to file a revision application before the high court against an order of the Sessions Court is 90 days.     


    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.

  • Discharge application will be under Section 239 of the Criminal Procedure Code.

    Search the format of the discharge application on Internet. The format may vary slightly in different states. It may need verification and/or affidavit, depending upon requirements of a particular state. If you’re not familiar with court proceedings (as it appears), it would be advisable to engage some local lawyer.     


    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.

  • in reply to: Countering Absurd Allegations #3609

    Please note that in a criminal case, the burden lies on the prosecution (complainant) to first prove the charge. Therefore, the burden is first on your Bhabhi to prove her charges. Also, medical evidence is one piece of evidence, which may have to be corroborated by other evidence. You may engage a local lawyer who can properly advise you on the detailed facts of the case, since it is not possible to advise on facts without knowing the full facts of the case.     


    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.

  • in reply to: If Appeal u/s 29 of DV Act is dismissed by Session Court? #3608

    You may have to file a revision application under Section 397/401 of the Criminal Procedure Code before the high court against the order of the Sessions Court under Section 29 of the Protection of Women from Domestic Violence Act [see, Full Bench decision of the Allahabad high court in Criminal Revision No. 582 of 2016 (Dinesh Kumar Yadav v. State of U.P.) decided on 27 October 2016]. Under the Cr.P.C., the Sessions Court does not have the power to review its own order except to correct a clerical or arithmetical error.

         


    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.

  • in reply to: HOLDING TWO INDIAN PASSPORTS #3604

    As I have noted in Can a person get passport during pendency of criminal case?, it is not permissible to have two passports at the same time and it is an offence. However, also see, Travelling to two opposing countries – requirement for 2 passports.

    Please note that under the provisions of the Passport Act, 1967, one of the situations in which the passport authority may impound or revoke a passport or travel document is if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf. It is also provided that if the holder of such passport obtains another passport the passport authority shall also impound or cause to be impounded or revoke such other passport.

    While you have not mentioned the full facts, it appears that the passport authority might have taken possession of your passport(s) on the suspicion that you had obtained two passports by the suppression of material information or on the basis of wrong information provided. You’ll have to ascertain the correct factual position from the concerned passport authority. If the authority has already passed or is about to pass an order to impound or revoke your passport(s), you may have to challenge such decision before the appropriate court by justifying why and how you came to have two passports.

         


    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.

  • in reply to: Genuineness of certificate while in service #3603

    Recently, I had replied to a similar question, which is available at: PwD service matters. I think it fully covers your question also. Please read that reply.

         


    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.

  • Recently, I have replied to a similar question which is available at: Can Lok Adalat’s decision be challenged in HC through writ petition? Please read that.

    So, as I have mentioned in the above reply, it should be clear that the award of a Lok Adalat can be challenged in the high court under Article 226/227 of the Constitution on limited grounds. Now, whether the person challenging such award had an evil intention or he did so without any valid document are issues that relate to facts of the case and can generally be decided after hearing of the matter by the court. If the court finds that there is no valid ground to file the petition to challenge the award, it will definitely dismiss such petition. Sometimes, it can be ascertained at the beginning of the writ petition itself (that there is no valid ground) while on other occasions the writ petition may have to be heard in detail to come to such conclusion. It all depends on facts of each case.

    There is no specific time limit within which the execution proceedings can be completed and the award can be executed. It all depends on various things, and differs from case to case. But, if it is a family settlement and no party opposes it, the execution can be much faster than in other 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.

  • At the stage of charge-framing or discharge application, the court would generally form its opinion as to whether a prima facie case exists on the basis of the evidence submitted by the prosecution, which is generally what is submitted along with the charge sheet. What you have to show is that no case is made out even when the whole of the prosecution evidence is seen at its face value. This would imply that the prosecution does not have a prima facie case. Defence evidence is not allowed at this stage, since otherwise it would become like a regular trial. But, sometimes, in exceptional situations, some crucial defence documents have been considered at discharge stage itself, though this generally happened only in exceptional situations.

    In the facts of your question, you may perhaps have to show that a main prosecution document (i.e., the original complaint) is not genuine and that can be proved only by showing the other copy of the same document. But, please also remember that the prosecution case would depend on the totality of evidence and not merely the complaint. You have to take a call in the facts of your case as to whether a forged complaint would demolish the complete case or whether there is some other solid evidence with the prosecution on which the prosecution could be said to have a prima facie case at this stage. If you are convinced of the case being in your favour and if the trial court does not agree to take your document on record at this stage, you can file a challenge before the higher courts, though the chances of success are limited at this stage (since the defence documents would normally not be allowed at such stage). Second option, of course, is to fight the case during trial wherein you can show your full evidence, including the forged complaint, as you have stated.

         


    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.

  • in reply to: WHAT ABOUT OTHER DEGREES AWARDED BY DEEMED UNIVERSITIES #3599

    You have not given details of the Supreme Court decision (such as case No. or party names), but it appears that you are referring to the decision of the Supreme Court at this link, which I have covered in a similar reply earlier that can be seen at: Regarding decision of Supreme court on deemed University.

    If the Supreme Court has suspended / cancelled only the Engineering degrees awarded by certain deemed universities, then of course, other degrees awarded by these universities would not be affected at this stage.

    Time period for filing review petition in Supreme Court is 30 days. However, you can file an application for condonation of delay, if you can explain the delay due to some genuine reasons.

    Whether petitions can be filed in lower courts in a certain matter would depend upon the facts of the case, the type of issues involved, the remedy sought, etc. In general, writ petitions can be filed against such degrees in the high courts (under Article 226 of the Constitution) or in the Supreme Court (under Article 32 of the Constitution).

         


    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.

  • in reply to: Quashing of Revenge Cases #3598

    The fact that your wife has filed a case against you much after you had filed a forgery case against her, will definitely go in your favour to give an indication that she might have filed the case in a revengeful manner. While this will be an added factor in your favour, ultimately the case filed by her will be decided on its own facts and merits. You may have to show as to how the case filed by her is false and non-existing. I remember that in another question you had mentioned that for last about 2 years or so, you are not in India and are living in some other country. So, that may also help you to prove that she has filed a case against you on the basis of non-existing facts. However, you should go in for quashing of the case filed by her against you mainly on the basis of the facts / merits of her case, while of course you can make use of above points in your favour.

         


    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.

  • in reply to: seniority in service #3594

    Please ask your question in plain language, instead of reproducing pleadings of a court. It is not possible for us to get sufficient time to go through your detailed pleadings.     


    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.

  • in reply to: Civil partition case put as paper book #3589

    Please ascertain this from your local lawyer since he would be fully aware of detailed facts and he would also have seen the last orders of the 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.

  • Section 24-A of the Advocates Act, 1961, deals with the question asked by you:

    24-A. Disqualification for enrolment.—(1) No person shall be admitted as an advocate on a State roll—

    (a)if he is convicted of an offence involving moral turpitude;

    (b)if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (22 of 1955);

    (c) if he is dismissed or removed from employment or office under the State on any charge involving moral turpitude.

    Explanation.—In this clause, the expression “State” shall have the meaning assigned to it under Article 12 of the Constitution:

    Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his release or dismissal or, as the case may be, removal.

    (2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958).”

    Therefore, conviction in an offence involving moral turpitude, etc., may make you ineligible for enrolment as an advocate. Find out – What is meant by moral turpitude?

    On the face of it, the offence mentioned by you does not appear to be an offence involving moral turpitude, however, it would depend on the detailed facts.

    In the application form for enrolment as an advocate, questions would be asked relating to conviction in a criminal case and pendency of a criminal case. You should truthfully answer those questions. Chances are that pendency of a criminal case may not come in the way of getting enrolled as an advocate. But, after conviction, it may create problems.

    More or less similar situation would prevail for getting a Government job during pendency of a criminal case.

         


    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.

  • You can show to the court the contradiction in the FIR and the original complaint given to police. Such contradiction may not necessarily imply that the whole complaint is false, but the contradiction may definitely help you as an accused if it is on a substantive issue. Depending on the facts of a case, occasionally such a contradiction may even be fatal to the prosecution case, though not always.

    Also keep in mind that FIR is not the end of everything in a criminal case. Ultimately, the offence has to be proved on the basis of the totality of the evidence adduced during the case and the FIR is one piece of the evidence.

         


    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.

  • in reply to: arrest after 41 a crpc notice #3583

    Firstly, let it be made clear that the maximum punishment for offence under Section 308 IPC is 7 years, where the same for an offence under Section 307 IPC is life imprisonment or 10 years (depending upon which part of the section is attracted).

    Therefore, for the purposes of arrest under Section 41 of the Criminal Procedure Code, clause (b) of Sub-section (1) is attracted for Section 308 IPC, and clause (ba) of Sub-section (1) is attracted for Section 307 IPC.

    Since the provisions of Section 41-A of Criminal Procedure Code are applicable to those offences which are covered under clause (b) of Sub-section (1) of Section 41, the same would not be applicable to an offence under Section 307 IPC since for this offence clause (ba) of Sub-section (1) of Section 41 is applicable. In view of this, arrest for an offence under Section 307 IPC can be made irrespective of the notice issued under the provisions of Section 41-A of the Cr.P.C.

    In any case, even for an offence which is covered under the provisions of Section 41-A of the Cr.P.C., sub-sections (3) and (4) thereof provide the situations in which a person may be arrested after a notice under this section has been issued to him:

    “(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

    (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

         


    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.

Viewing 15 posts - 1 through 15 (of 1,441 total)