Dr. Ashok Dhamija

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  • in reply to: Can NC (non-cognizable) be converted into FIR? #4053

    Police does not have the power to register FIR or conduct investigation in a non-cognizable (NC) offence. If you lodge a complaint about the commission of an NC offence with police, they will record this information in the NC Register and in the General Diary of the police station. But, no FIR will be registered and no investigation will be conduced. On the other hand, the police will advise you to approach the Magistrate court and file the case there, if you so wish.

    However, if the Magistrate gives a direction to the police to conduct investigation in such NC case under Section 155(2) of the Criminal Procedure Code, then in view of the provisions of Section 155(3), the police can conduct the investigation in even such NC case in the same manner as they do in a cognizable case, with the only exception that police cannot arrest the accused without warrant from the Magistrate.

    Moreover, sometimes after an NC complaint is filed with police, there may be a subsequent development which may turn that offence into a cognizable offence. For example, suppose an initial complaint is lodged as NC complaint under Section 323 of IPC, for a simply hurt. But, subsequently, if there is a medical report about the injury caused, say, opining that there was a fracture, then it amounts to a cognizable offence. In such a scenario, in the changed circumstances, police may now register FIR in such case and investigate it, wherein initially an NC offence was only registered.

         


    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.

  • Try to get it from police, which filed the closure report. Otherwise, you’ll have to ask some local advocate only and/or to make enquiries from 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. List of his Quora Answers.

  • in reply to: FIR Quashing & Media Pressure #4051

    It is a fact that high profile cases get priority in courts. Moreover, some senior lawyer would have mentioned the case before the Supreme Court for urgent listing due to which it might have been listed urgently. Both the cases mentioned by you had attracted headlines in national media. Even otherwise, in Supreme Court, usually a case gets normally listed within about 10 days after filing and defect-removal.

    In one of your previous questions, I had suggested that you may ask your lawyer to mention your case to high court for urgent listing, if you have some ground for urgent listing. Secondly, I don’t know how many days it usually takes for the normal listing of a fresh matter in Karnataka high court. You should ask about such procedural issues from your lawyer (to whom I hope you would be paying professional fee) since it is he who is supposed to reply to such questions.

         


    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: What are the remedies against a false FIR? #4047

    You may try the following if a false FIR is filed against you:

    (1) Provide your side of the story, along with relevant evidence, to convince the police that the FIR filed against you is false.

    (2) If the investigating officer does not appear to be impartial (as you claim the FIR to be false), you may approach the senior officers of police to direct the investigating officer to do a fair and impartial investigation, by including the evidence given by you to prove your innocence and to prove that the FIR is false.

    (3) If the FIR, on the face of it, does not make out any cognizable offence, you can file a petition before the high court under Section 482 of Criminal Procedure Code to get the FIR quashed.

    (4) If the police files a charge sheet in the case, you can file a discharge application in the trial court, showing how there is no prima facie case, if such a situation exists.

    (5) If above steps do not succeed, you may have to face trial in the court. During the trial, the burden is on the prosecution to prove the case against you. Using cross-examination of the prosecution witnesses and by introducing your own defence evidence, you can make efforts to prove that the case filed against you is false.

    (6) If, ultimately, you can prove that the FIR filed against you was false, if you so wish, you can initiate legal action against the complainant for filing false FIR against you.

         


    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: Writ petition in high court – time limit #4046

    Firstly, please note that there is no writ petition provision in high court under Article 27 of the Constitution of India. It is either Article 226 or Article 227, under which a writ petition is filed in the high court.

    Secondly, I have replied to a similar question in detail: Time limit to file writ petition in High Court under Article 226 of Constitution.

    That reply will also be valid for a writ petition filed before a high court under Article 227.

         


    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: can I sue coaching institute for not refunding my fees? #4041

    Yes, it is true that the consumer case may take time to get resolved, but there may be no other option.

    As regards police case, depending on the detailed facts of the case (which it is not possible for us to examine in detail on this public forum), a case under Section 420 IPC (cheating) may perhaps be made out if there was a dishonest intention on the part of the opposite party to cheat you. But, generally speaking, the police refuse to register such FIRs. It that happens, you may have to file a private complaint in the court. Remember that police case or court case also may take time. Moreover, you may or may not get compensation by this method and it may in fact be more delayed.

    You can claim the money that is due to you, plus interest, plus compensation, if any.     


    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: decree fraud #4039

    As regards the murder of your brother, of course, you’ll have to file a criminal case with the police by getting the FIR registered. I hope you would have already done that.

    On the issue of passing a decree obtained by fraud by filing a collusive suit, you may have to challenge the decree for getting it set aside. Consult some local lawyer and show him all the 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: service matter – suspension and departmental inquiry #4038

    You have not mentioned where do you serve. In Government service, in some Public Sector Undertaking, or in private service. Your remedies against suspension and departmental inquiry would depend on the relevant rules applicable to your service. Likewise, whether you can file the petition for challenge in CAT or High Court or some other court or tribunal will also depend on the service where you are working.

    You can check the facts of your case vis-à-vis the relevant rules applicable to you (such as for suspension) and challenge them accordingly. If needed, you can engage some local lawyer to help you and show him your detailed documents.

    Moreover, now that your departmental inquiry has been initiated and you have called for that purpose, you may consider fighting your case in that inquiry itself, instead of going to any court or tribunal at this stage.

         


    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: can I sue coaching institute for not refunding my fees? #4036

    For deficiency in service provided by the coaching institute, you can try filing a case in the consumer court. If the claim is up to Rs. 20 lakh (which should be the case in your matter), you’ll have to file the complaint in the District Consumer Forum of the place concerned.

    It is not necessary for you to engage an advocate for this purpose; you can do it in person also. Go to the District Consumer Forum, obtain the format and make basic enquiries about the procedure, and file the case on your own.

         


    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.

  • I think the issue mentioned by you is directly covered in Section 36(2) of the Arbitration and Conciliation Act, 1996. Section 36 is reproduced below:

    36. Enforcement.— (1) Where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.

    (2) Where an application to set aside the arbitral award has been filed in the Court under Section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.

    (3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:

    Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).”

    It should be clear from Section 36(2) that where an application to set aside the arbitral award has been filed in the Court under Section 34 of the said Act, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.

    Thus, if not such stay has been granted by the court on the enforcement of the award, steps may be initiated for enforcement of the award, subject to any conditions imposed by 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. List of his Quora Answers.

  • in reply to: 3 Separate Legal Notices clubbed in single 138 complaint #4033

    I have replied to a similar question earlier, which is available at: Single 138 section case for multiple cheques bounces against same party. 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. List of his Quora Answers.

  • in reply to: Constitutional interpretation ? #4031

    (1) The question whether Aadhar infringes the fundamental right to privacy would be mostly a question of law, though the relevant facts as to how and  in what manner Aadhar is implemented (which would violate privacy) may also be quite relevant to decide this issue.

    (2) In the case of Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 : AIR 1955 SC 661, a 7-judge bench of the Supreme Court, by a majority decision, held that there is nothing in our Constitution which prevents Supreme Court from departing from a previous decision if the Court is convinced of its error and its baneful effect on the general interest of the public. It held that Article 141 of the Constitution which lays down that the law declared by the Supreme Court shall be binding on all Courts within the territory of India quite obviously refers to Courts other than Supreme Court.

    Referring to the above decision, later in the case of Punjab Land Development and Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682, a Constitution bench of the Supreme Court held that “… the words of Article 141, “binding on all courts within the territory of India”, though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice.”

    However, the decision of a larger bench of the Supreme Court is definitely binding on a bench of lesser strength of the same 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.

  • in reply to: to start NGO '' fight for justice'' #4022

    It is a noble cause. You may register your NGO as a society or a trust, under the relevant applicable laws of your state. Though, even an unregistered NGO may be sufficient if your purpose is to help the people outside the courts, but it is advisable that you get it registered if you want to approach the courts in the form of public interest litigation. Another option is to file such public interest litigation (and/or helping the needy people) in your personal name, citing your credentials.

         


    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: Mobile number location with Time against False FIR #4021

    Usually the telecom operators will not provide you (as a private person) details of call records of other persons. However, the police can obtain these details.

    So, you may have to request the police officers concerned, if needed the senior officers, to get these details in order to have a fair and impartial investigation. Make a written request and get it acknowledged or send it by Registered Post (AD).

    You may also try to write to BSNL for these call details, though the chances of getting details directly by you are less.

    In the worst scenario, you may have to move the court concerned, or may be the High Court, pointing out as to how the police has failed to conduct a fair investigation, in spite of written request made to them, and seeking court direction to police for obtaining the call details.

    You can also try approaching the court under Section 91 of the Cr.P.C. for seeking this information, which is reproduced below for your information:

    91. Summons to produce document or other thing.— (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

    (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

    (3) Nothing in this section shall be deemed—

    (a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or

    (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”

     

         


    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: Sec-5 under limitation act of rule-9 under 13 cpc #4020

    If the husband has got a proper ex parte decree of divorce and has waited for the minimum 3 months’ period for filing of appeal before marrying again, as required under the Hindu Marriage Act, then his second marriage may be prima facie valid and it may not be an offence under IPC for second marriage while the first wife is living. So, the chances of punishment appear to be remote. I am writing this on the basis of knowledge of limited facts. You should better consult some local lawyer with all papers.

    Technically, Order 9 Rule 13 of CPC allows setting aside of the ex parte decree in the circumstances mentioned in that provision. But, in the present case, there is a complication of the second marriage performed by the husband in the meanwhile, which appears to be valid. The result will depend on the detailed facts of the case and how the court exercises its discretion. In a somewhat similar case, I had seen a Supreme Court judgment, paying compensation to the first wife. However, each case has its own detailed facts and its own peculiar circumstances. It is difficult to hazard a guess and that too without seeing the detailed papers of the case. It would be advisable for you to consult some local lawyer by showing him all detailed papers 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. List of his Quora Answers.

Viewing 15 posts - 1 through 15 (of 1,599 total)