[Dr. Ashok Dhamija]

The only language officially permitted in the Supreme Court, for the purposes of pleadings as well as for arguments, is English.

However, in practice, the judges of the Supreme Court are liberal in this regard. In appropriate cases, the judges permit a petitioner appearing in person (or, sometimes, even an advocate) to argue in Hindi language, if he is finding it difficult to explain his points in English. In fact, I have seen once the court permitting a petitioner in person to argue even in Telugu language even though only one judge understood Telugu and the other judge did not understand Telugu (the judge who knew Telugu explained it to the other judge who did not know that language).

So, in exceptional cases, the Supreme Court may permit a person to argue in Hindi, even though it is not officially permitted. You may make a request to court to permit you to argue in Hindi, and the court may permit you, generally speaking.

At the same time, let me point out that if you are not able to communicate in English, instead of arguing the case in Hindi yourself, it may perhaps be advisable to engage an advocate who can represent you and argue the case properly before the court in the language (English) that is the only permitted language. Going against the stream may not always be taken kindly by some judges, more so, when you are also arguing in person, because though the court permits it, it may not encourage it and sometimes may not view it favourably. Anyway, the choice is yours. What I have stated is the legal position and what is seen in actual practice in the Supreme Court, whether you like it or not, there is no escape from it.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

There is no provision for recall of an order of the Supreme Court.

But, if you feel that an order of the Supreme Court in your case is wrong, then you may file a review petition on the grounds on which such petition is permissible. If the review petition is not successful, then you may also file a curative petition under certain conditions.

However, please note that the success rate in a review petition and a curative petition is very limited. See: Success Rate of Review Petition and Curative Petition in Supreme Court.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

As per the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the deemed suspension shall continue to remain in force until it is modified or revoked by the authority competent to do so. So, a deemed suspension does not automatically come to an end merely because the custody of the Government servant has ended. A specific order is required to be passed by the competent authority to revoke or modify the deemed suspension.

The above legal position with regard to deemed suspension is under the Central Government rules, but most other governments have similar rules.

For the sake of a ready reference, Rule 10(2) and Rule 10(5) relating to a government servant being deemed to have been placed under suspension, and relating to continuation of such deemed suspension until revoked or modified, respectively, are being reproduced below:

“(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.”

“(5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.”

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Once a complaint disclosing commission of a cognizable offence is given to the police, it is required to register the FIR immediately on receipt of the complaint. This is the requirement of law under Section 154 of the Criminal Procedure Code.

It is a different thing that sometimes the police will deliberately delay the registration of the FIR or may sometimes even refuse to register the FIR. However, I may point out that recently a 5-judge Constitution bench of the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 : AIR 2014 SC 187 : 2014 Cri LJ 470, has held that it is mandatory for the police to register FIR on the basis of an information or complaint which discloses commission of a cognizable offence.

In any case, three days’ period is more than sufficient to register the FIR. In fact, it should be registered on the same day when the complaint is given, as I pointed out above. If the police is up to some mischief or deliberately tries to avoid registration of the FIR, then it is a different thing because then you may have to approach the court, etc. But, the intention of the law is very clear to register the FIR immediately on receipt of complaint disclosing commission of cognizable offence.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The high court ordering “no coercive action shall be taken till the next date” in your anticipatory bail application implies that the high court has given you an interim protection from arrest till the next date of hearing, since the anticipatory bail application is still to be heard by it. This basically implies that you will not be arrested till the next date by the police.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

There is a specific provision in Section 23 of the Consumer Protection Act, 1986, which allows filing of an appeal to the Supreme Court against the order of the National Consumer Disputes Redressal Commission (NCDRC), if the NCDRC had passed such order in its original jurisdiction, i.e., where the complaint was filed directly in the NCDRC on the ground that the value of the goods or services and compensation, if any, claimed exceeds Rs. one crore.

However, if the NCDRC has passed an order, not in its original jurisdiction, but in an appeal under Section 21(a)(ii) of the said Act [or a revision under Section 21(b)] against an order of a State Commission, then there is no specific provision for directly filing appeal in the Supreme Court.

So, where there is a specific provision for appeal in the said Act itself, which is thus a regular appeal to the court as a matter of right, there is no need for filing a Special Leave Petition (SLP) to the Supreme Court under Article 136 of the Constitution [which is a discretionary relief] against an order of the NCDRC passed in its original jurisdiction, as mentioned above. In such a situation, a direct appeal can be filed to the Supreme Court under Section 23 of the said Act.

However, where the NCDRC order was passed in an appeal (or revision) against order of a State Commission, SLP can be filed in the Supreme Court.

Further, where there is a provision for appeal to the Supreme Court against order of NCDRC in its original jurisdiction, it would not be possible to appeal to the high court even under its writ jurisdiction under Article 226 of the Constitution in view of the fact once there is an alternative remedy available (in this case, in the form of appeal to the Supreme Court, which is a superior court to high courts) such discretionary relief of writ petition under Article 226 will not be allowed.

On the other hand, where the NCDRC order was passed in an appeal (or revision) against an order of a State Commission, ordinarily, it should have been possible to file a writ petition before the High Court against such NCDRC order. However, there is a vague order from the Supreme Court in the case of Cicily Kallarackal v. Vehicle Factory, (2012) 8 SCC 524, which appears to be barring such writ petition in a high court, though this Supreme Court order should have confined the prohibition only in respect of an NCDRC order which was passed in its original jurisdiction. But, the language of this Supreme Court order appears to be vague and general, barring writ petition before High Court. In view of this, I think it is advisable to file SLP against an NCDRC order instead of approaching the High Court even where the NCDRC order was in an appeal (or revision) against an order of a State Commission. However, since the above Supreme Court order is vague, a different view may also be taken and an effort may be made to get the Supreme Court clarified.

In view of these reasons, if the NCDRC order was passed in its original jurisdiction, then you will have to file a regular appeal to the Supreme Court against the order of the NCDRC. In fact, Order XXIV [Appeals under Section 23 of the Consumer Protection Act, 1986 (68 Of 1986)] of the Supreme Court Rules, 2013, specifically relates to such appeals.

On the other hand, if the NCDRC order was passed in an appeal (or revision) against an order of a State Commission, then you’ll have to file SLP before the Supreme Court under Article 136 of the Constitution.

Section 23 of the Consumer Protection Act is reproduced below:

“23. Appeal.—Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of Section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent of that amount or rupees fifty thousand, whichever is less.”

 

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Epilepsy is a neurological disorder marked by sudden recurrent episodes of sensory disturbance, loss of consciousness, or convulsions, associated with abnormal electrical activity in the brain.

Nowadays, epilepsy is considered to be a completely curable disease. Therefore, it may not be possible to obtain divorce on the basis of epilepsy of the spouse.

It is pertinent to mention that previously under Section 5(ii)(c) of the Hindu Marriage Act, 1955, one of the mandatory conditions of a valid Hindu marriage was that neither party to the marriage has been subject to recurrent attacks of epilepsy. However, this mandatory condition was deleted by an amendment made to the said Act by the Amendment Act No. 39 of 1999. This clearly shows the intention of the Parliament to the effect that epilepsy is now not considered to be an incurable disease.

I may also point out that epilepsy is not mentioned in Section 13 of the Hindu Marriage Act which lays down grounds on which a marriage can be dissolved by decree of divorce.

Therefore, it may not be possible now to obtain divorce on the basis of the ground that the husband is suffering from epilepsy.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

If a public servant accepts bribe, it is an offence under Section 7 of the Prevention of Corruption Act, 1988 [note: at the same time, it may also be an offence under Section 13(1)(d) of the Act, which is made punishable under Section 13(2) of the Act]. Now, if a person offers bribe to a public servant then it is considered as an abetment of the offence under Section 7 of the Act. This abetment has been made punishable under Section 12 of the Act, irrespective of whether or not that offence under Section 7 is committed in consequence of that abetment. Therefore, the bribe giver is punished under Section 12 of the P.C. Act irrespective of whether or not that public servant accepts the bribe, and the maximum punishment for this offence is 7 years’ imprisonment and also fine. Section 12 of the Act is as under:

“12. Punishment for abetment of offences defined in Section 7 or 11.—Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine.”

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

An order passed under Section 311 of the Criminal Procedure Code rejecting the application for calling a new witness is supposed to be an interlocutory order against which there is no provision for filing a revision application [see, Supreme Court decision: Sethuraman v. Rajamanickam, (2009) 5 SCC 153 : 2009 Cri LJ 2247].

Therefore, you cannot file revision against such rejection under Section 311 of Cr.P.C.

However, you can file an application under Section 482 of the Cr.P.C. to the high court against such rejection. The high court can pass an appropriate order in the matter in exercise of its inherent powers to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

It is possible to get interim protection for the goods (in your case) from the court as well as from the arbitrator (arbitral tribunal), as described below.

Section 9 of the Arbitration and Conciliation Act, 1996, empowers the Court to grant interim protection, inter alia, of the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement. This power can be exercised by the Court (i) before or (ii) during arbitral proceedings or (iii) at any time after the making of the arbitral award but before it is enforced in accordance with Section 36 of the Act. However, once the arbitral tribunal has been constituted, the court shall not entertain an application for such interim protection except in some specific circumstances, as laid down in Section 9(3) [see below].

Similarly, Section 17 of the Arbitration and Conciliation Act empowers the arbitral tribunal to grant interim protection, inter alia, of the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement. This power can be exercised by the arbitral tribunal (i) during the arbitral proceedings or (ii) at any time after the making of the arbitral award but before it is enforced in accordance with Section 36 of the Act.

A careful reading of the two provisions shows that before the appointment of the arbitrator, you may have to approach the Court for interim protection in respect of the goods, while after his appointment you may have to approach the arbitrator for such interim protection.

Section 9 and Section 17 of the said Act are as under:

“9. Interim measures, etc. by Court.— (1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court:—

(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:—

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the Court to be just and convenient,

and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

(2) Where, before the commencement of the arbitral proceedings, a court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the court may determine.

(3) Once the arbitral tribunal has been constituted, the court shall not entertain an application under sub-section (1), unless the court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious.”

“17. Interim measures ordered by arbitral tribunal.— (1) A party may, during the arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to the arbitral tribunal—

(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely—

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient,

and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it.

(2) Subject to any orders passed in an appeal under Section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the Court.”

 

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Yes, both these offences, namely Section 448 IPC (house trespass) and Section 506 (Part 1 and 2) IPC (criminal intimidation), are compoundable.

Section 448 IPC offence can be compounded by the person in possession of the property trespassed upon. And, offence under Section 506 IPC can be compounded by the person intimidated.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

After 1996, all offences under the Essential Commodities Act, 1955, are bailable. Bailable means you have a right to get bail if arrested.

Thus, you would get bail if you are arrested in connection with an offence under this Act.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Firstly, I may point out that a Railway Protection Force (RPF) officer has the power to conduct personal search of a person and of his belongings, without warrant, under the provisions of Section 13 of the Railway Protection Force Act, 1957, where such person is involved in an offence referred to in Section 12 of the said Act. However, this provision relates to search of the person and his belongings and it does NOT relate to the search of some premises.

Secondly, under the provisions of the Railway Property (Unlawful Possession) Act, 1966, the RPF officers have been given certain powers of inquiry with regard to certain offences of theft, dishonest misappropriation or unlawful possession of railway property. Under the provisions of this Act, an RPF officer may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, when investigating a cognizable case. Now, since the officer in charge of a police station, while investigating a cognizable case has the power to conduct search in any premises even without warrant from the court in the circumstances mentioned in Sections 165 and 166 of the Criminal Procedure, it would thus appear that an RPF officer may also have the power to conduct search, without warrant, in certain premises which are subject matter of his inquiry under the provisions of Railway Property (Unlawful Possession) Act, 1966, as mentioned above, subject to the conditions mentioned in Section 165/166 of the Cr.P.C. In addition, this Act also lays down provisions for the RPF officer to obtain search warrant from the Magistrate to conduct searches for the purposes of the said Act.

Thus, under the above limited circumstances, an RPF officer may have power to conduct search of certain premises even without warrant for the purposes of inquiry into offences relating to theft, dishonest misappropriation or unlawful possession of railway property, as provided under the Railway Property (Unlawful Possession) Act, 1966.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Trial of an offence under Section 138 of the Negotiable Instruments Act is also conducted under the provisions of the Criminal Procedure Code (Cr.P.C.) subject to any special provision made in the N.I. Act itself.

Now, Section 219 of the Cr.P.C. provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.

This means that a maximum of up to 3 offences can be tried together in one trial subject to above conditions.

In your case, you have mentioned that there are 7 cheque bounce cases occurring within a period of 10 days against the same person. Therefore, in my opinion, you can club together these cheque bounce cases in groups of 3 cases in one trial. So, I think you can file a total of 3 cases (covering 3 + 3 + 1 cheque bouncing cases, respectively) by clubbing together cases in the above manner.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Firstly, let me point out that under Sections 165 and 166 of the Criminal Procedure Code, an investigating officer is empowered to conduct search without warrant from a Magistrate in the situations described in these sections.

Secondly, the search conducted without warrant under these two sections is also subject to the provisions of Section 100 which relates to search conducted with a search warrant.

Thirdly, Section 100 of the Cr.P.C. requires that before making a search, the police officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

So, it should be clear from the above provision contained in Section 100 that while it is generally expected that the police officer will call two or more independent and respectable witnesses from the locality in which the place to be searched is situate for witnessing the search, yet it is not mandatory that the witnesses should always be from the same locality. The section provides that if no such inhabitant of the said locality is available or is willing to be a witness to the search, then two or more persons from any other locality may also be asked to witness the search.

Therefore, there is no legal bar to take search witnesses from other localities, though, of course, local witnesses are preferable.

I may point out from my personal experience as a former IPS officer that many a time local persons (who can be said to independent and respectable) may not always be available or may not always be willing to witness the search. Sometimes, they are too well known to the accused persons (which means they may not be independent) while on some other occasions they are reluctant to be witness against a person of their locality in order to avoid hostility or for some other reasons such as, generally, people avoid police and court cases. Generally, people avoid to be called in future in courts as witnesses for their examination and then cross-examination.

Therefore, the Parliament has rightly allowed even outside persons to act as witnesses to search.

Thus, to reiterate, there is no legal bar for taking outsiders as search witnesses, though it is advisable to take the local witnesses wherever possible.

Now, in the facts of your case, if you feel that the police has used people of suspicious character as witnesses in the search in the house of your client, then that means your client may have some information or idea about these witnesses. So, perhaps, at the time of the examination in court, you may confront these witnesses in cross-examination to shake their credibility of being independent and respectable witnesses, to the extent permissible under cross-examination under the provisions of the Evidence Act.

     

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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. List of his YouTube Videos.

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