Dr. Ashok Dhamija

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  • in reply to: Regarding bailable and non-bailable offenses #2992

    Firstly, you have not clarified in which state or place the offence took place. This is so because unlike other offences under IPC, offence under Section 506 IPC is treated differently in different states. In most states, it is non-cognizable and bailable, while in some states (and/or cities), it is cognizable and non-bailable. For more details, read:

    In any case, if the FIR registered is only under Section 506 IPC, as you have mentioned, then it should be at a place where Section 506 IPC is cognizable and non-bailable, since it is not possible to register FIR in a non-cognizable offence alone.

    Secondly, irrespective of whether an offence is bailable or non-bailable, it is not binding on the police to arrest the accused. While the police may have power to arrest the accused in certain cases, it is not mandatory that even in every such case the accused must always be arrested. Power to arrest is one thing and exercising such power to actually arrest accused is quite a different thing. In fact, there are judgments of Supreme Court requiring that arrest should be made by police only if it is necessary and that unnecessary arrests should be avoided.

    So, it is not necessary that the police should arrest accused in every case. Police has the power to charge sheet an accused without arresting him.

  • It is not clear from your question whether your lawyer was also absent when you were not present in court at the time when the opportunity to cross-examine the complainant was closed by the court of the Metropolitan Magistrate. In fact, it is not clear whether you are appearing in person or are represented by an advocate.

    In any case, please note that an order rejecting application under Section 311 Cr.P.C. for recall of a witness is an interlocutory order. In view of this, no revision would be possible before the Sessions Court or High Court under Section 397 of the Criminal Procedure Code against such interlocutory order. There is no appeal also against such order.

    Therefore, your only remedy would be to file an application under Section 482 of the Cr.P.C. before the high court to challenge the order passed by the Magistrate court rejecting your application under Section 311 of Cr.P.C. for recall of complainant for cross-examination.

  • You have done a good job by giving information to the police control room at 100 phone number about the fight taking place on the road. Nowadays, many people avoid getting involved in such matters and avoid giving information to police about such incidents. So, you must be appreciated for the good job done by you.

    But, having done a good job of informing the police, now you should not be scared of giving a statement to police about whatever you saw. You should not be scared of going to police station, since you would be going there to give your statement as a witness and not as an accused person. At the same time, if you request the police, they may visit your place for recording your statement. During your statement, you may state whatever has been observed by you when the fight was going on. If you can identify the accused persons, you may do so.

    In this regard, please note that under Section 160 of the Criminal Procedure Code, police officer investigating a cognizable offence has the power to require the attendance of a witness before him for the purpose of his examination:

    160. Police officer’s power to require attendance of witnesses.— (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

    Provided that no male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person shall be required to attend at any place other than the place in which such male person or woman resides.

    (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.”

     

  • You can approach the Anti-Corruption Bureau (ACB) or Vigilance Police [or CBI, if you are an accused in a case filed by CBI] of your state and lodge a complaint against the Public Prosecutor who is demanding bribe from you to favour you. On the basis of your complaint, the ACB will lay a trap to catch the culprit red-handed while demanding and accepting bribe. Taking bribe is an offence under the Prevention of Corruption Act, 1988.

    You can easily get information about the contract numbers of the ACB officers in your state from their website by searching on Google.

  • in reply to: Chargesheet in forgery cases #2975

    There is no hard and fast rule as to how much time would be taken by the expert to examine the signature / handwriting. It depends on the level of pendency with that particular forensic science laboratory where it has been sent for examination, and the number of experts available in that laboratory. A period of 6 months is not unusual for the experts to give their opinion on handwriting or signatures, since generally they have a lot of pendency.

    Once the handwriting expert has given his opinion of verifying the genuineness of the signature during the investigation stage, during trial it will be subjected to scrutiny and evidence will be recorded in this regard during trial. Likewise, in the civil case also, there may be a separate evidence recording with regard to the signature forgery. Civil and criminal cases are different and are supposed to be conducted independently and separately.

  • in reply to: Bail During Trial #2974

    Yes. One can get bail during trial, but it depends on nature and seriousness of the case and also other facts and circumstances of each case which are considered for this purpose. There are millions of cases in which bail is granted during trial.

    Prima facie may imply “based on the first impression; accepted as correct until proved otherwise”. With regard to a criminal case, prima facie may imply what appears on the basis of the prosecution evidence if it is accepted as true, without considering the defence at that stage.

  • You should not worry about summoning the complainant for questioning during the trial. It is the prosecution which has first to prove its case. Complainant is usually one of the first few witnesses (if not the first one) to be called to prove its case. So, as soon as the charges are framed and prosecution evidence starts, complainant will be called to the witness box sooner or later, and will be examined, and it is at that time that you’ll get ample time to cross-examine him.

  • As per the provisions of Section 36 of the Criminal Procedure Code, Police Officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. Therefore, the Superintendent of Police of a district has the same legal powers with regard to investigation of an offence as the officer in charge of a police station (SHO) has.

    The power of the SP to give directions to the investigating officer is generally contained in the relevant rules, regulations, police manual, etc., of the State concerned, framed under legal provisions. If lawful directions in writing are given by the SP to the investigating officer, and if the latter does not obey them, he may be subjected to disciplinary action for violation of such directions. It is very rare that a subordinate officer would disobey lawful directions given in writing by a senior officer, and even such rare violation may be subject to disciplinary action.

    The court will go by the charge sheet which is filed by the investigating officer before it. It is the duty of the investigating officer to comply with the directions of the senior officers. The court takes cognizance on the basis of the charge sheet submitted by the I.O.

    Of course, if the SP feels that the I.O. is doing mischief and not filing charge sheet correctly, he may change the I.O. and the other I.O. may then do the needful.

    For quashing the FIR, you can approach the high court under Section 482 of the Cr.P.C. at any time after registration of FIR and before filing of the charge sheet. If the charge sheet is already filed, there is no point in going for quashing of FIR before high court; instead file a discharge petition before the trial court.

    About the RTI query, you have yourself partly replied the question. Ask whatever relevant information you want to get. It is not possible for us to reply on detailed questions of facts.

    We can try to answer your general legal questions. It is not possible to answer what defences can be taken, since it involves detailed study of all relevant papers which is not within the scope of this website. Please consult some lawyer at your place.

  • in reply to: Threat to Govt. employee when arrested under CRPC 107/151 #2967

    Firstly, please understand that arrest under Section 151 Cr.P.C. is not for having committed any offence, but for preventing the commission of a cognizable offence in the near future. So, it is only a preventive arrest.

    Secondly, under Section 107 Cr.P.C., there is no power to arrest. It is for executing a bond for keeping peace in near future when the person concerned is likely to cause a breach of peace or disturb public tranquillity. So, this is also not for an specific offence already committed, but a sort of preventive action.

    Generally speaking, action under Section 107 / 151 Cr.P.C. should not come in the way of getting a Government job, though it is ultimately for the authority concerned to take a decision based on facts of the case.

    You have been arrested (under Section 151 Cr.P.C.), so put “yes”.

    Since this is not a conviction for an offence, put “no” (presuming that there is no other offence against you).

    You have to ask the police / court whether the complaint filed by your father is still alive or has been disposed of. I have no access to police records to tell this type of information to you.

    Maintain good and cordial relations with your relatives. Otherwise, how can you stop any person from filing a complaint, and that too a false one?

    If the police have not taken any concrete action on your complaint and if you have sufficient evidence, you can file a private complaint against your relatives for the offences committed by them. It is your call whether you should stand against them or compromise with them. You are the best judge of your facts. Of course, if you file complaints against them, they may also pay back in kind. So, try to find an amicable solution, if possible. But, ultimately it is your call.

  • If the name of an accused has been added through Section 319 of Criminal Procedure Code, then that would imply that charge sheet has been filed and/or cognizance of the offence has been taken by the court and the trial or inquiry is in process in court.

    The question, whether under S. 438 of Cr.P.C. 1973, the High Court or the Sessions Court has power to grant anticipatory bail to a person after filing of the charge sheet, or after the competent criminal Court has taken cognizance of the case and/or has issued process, viz. warrant for arrest of that person, has attracted the attention of the Courts from time to time and diverse views have been expressed on this issue. However, the judicial opinion is more in favour of the view that anticipatory bail can be granted even at a stage when the charge sheet has already been filed or cognizance of the case has already been taken by the Court.

    In Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : AIR 2003 SC 4662, it was held by the Supreme Court that there is no restriction in Section 438 of Cr.P.C. in regard to exercise of the power of granting anticipatory bail in a suitable case either by the Court of Session, High Court or the Supreme Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. The courts, i.e., the Court of Session, High Court or the Supreme Court, have the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of Cr.P.C. even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.

    In the above case, the Supreme Court explained / clarified certain contrary observations in the case of Salauddin Abdulsamad Shaikh, Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR 1996 SC 1042 : (1996) 1 SCC 667.

    However, in some other cases, it was held by the Supreme Court that if the protective umbrella of Section 438 Cr.P.C. is extended beyond what was laid down in the above case of Salauddin Abdulsamad Shaikh, the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies up to higher courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. [See: (1) Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558; (2) Sunita Devi v. State of Bihar, (2005) 1 SCC 608 : AIR 2005 SC 498.]

    [Note: Some of the above contents have been taken from my book: Law of Bail, Bonds, Arrest and Custody (2009 Edition), by Dr. Ashok Dhamija, appx. 1625 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-440-0).]

  • I think I have already replied to this. But, in any case, if at all you are determined to file a writ petition, better file it in the high court under Article 226 of the Constitution.

  • in reply to: Confirmation on transfer of service #2959

    Your facts are incomplete and vague. How can one give you accurate and correct opinion without actually seeing the relevant documents, on the basis of incomplete information?

    While on the one hand, you say that it was a transfer from one department to another, on the other hand, you have also mentioned that “No mode of appointment was mentioned in the advertisement for the post”. Thus, it appears that the employee has joined in a new post on the basis of an advertisement, which also mentioned about a fresh 2 years’ probation period. Probation itself implies “subject to satisfactory completion of probation period”, which may imply that it may not be a confirmed job. But, then one has to see the full details to do justice to your case.

    So, in view of these complicated issues involved, it would be advisable for you to show your detailed documents to some expert (along with relevant rules/orders) and obtain his opinion, instead of asking opinion of someone who has not seen the papers.

  • I am not aware of any specific rules or law being applicable to what you have described as “Lal Dora” area. You may have to consult some local lawyer of your city / state where Lal Dora area lies and who has knowledge of the law related to Lal Dora, if there is any specific law relating to that.

    Under the general law, if a Hindu male dies intestate leaving behind his self-acquired property, his property will devolve equally on wife, three sons and a daughter (as mentioned in your question). Wife of such person does not acquire an extra right of ownership in such a case. So, under general law, a transfer deed by the wife of the nature described by you would be invalid.

    You can challenge it during the period of limitation.

    Transfer of property cannot be made by oral statement. It is required to be in writing and also to be registered.

  • Please note that even though privacy has been declared to be a fundamental right, we still do not have a Privacy Act which makes violation of privacy an offence.

    Also note that most of the fundamental rights are available only against the State (i.e., the Government, legislature, etc.) and they are generally not available against private individuals. Therefore, a writ petition for enforcing fundamental rights against a private individual may not be entertained. Yes, if the State is violating privacy, then of course a writ petition may be possible.

    For taking care of violation of privacy by an individual, you may need a Privacy Act, which does not exist in India till date. Let me hasten to add that the Supreme Court is right now hearing a petition against Facebook / WhatsApp for violation of privacy of people at large, but then this case involves privacy rights of tens of millions of people; and, its fate is also yet to be known.

    The only offence which can perhaps be considered in the fact situation of your case is “public nuisance” under Section 268 of IPC which is punishable under Section 290 IPC. Another option is making an application to the executive magistrate under Section 133 of the Cr.P.C. for getting order of removal of nuisance. But, both these provisions talk of nuisance of “public” character, and it will have to be seen from the facts of your case whether they apply to a private building.

    So, please keep these aspects in mind if you want to file a writ petition in a court for enforcement of your fundamental right to privacy in such situation where the petition would be against an individual.

  • in reply to: Section 164 CRPC misused for a false rape case? #2956

    There is no legal prohibition on filing a private complaint against her after charge sheet is filed in her complaint / FIR. Of course, it will be doubted as to why did you not file it earlier. But, other than this doubt, if you have solid proof against her in your complaint which cannot be refuted, then your complaint will be decided on its own merits. In any given case, there are always two sides. Similarly, in your complaint also, the above-mentioned doubt will be there and in addition the opposite may have some other evidence also. But, ultimately, if you have solid evidence in your favour, your complaint can be decided on its own merits despite the above doubt.

Viewing 15 posts - 16 through 30 (of 1,203 total)