Dr. Ashok Dhamija

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  • in reply to: How can I withdraw a criminal case in India? #3993

    You have not made clear what type of criminal case it is and what offences are involved.

    Please note that certain offences are compoundable by the parties under the provisions of Section 320(1) of the Criminal Procedure Code.

    Certain other offences are compoundable by parties with the permission of the court under the provisions of Section 320(2) of the Cr.P.C.

    This section (i.e., Section 320) mentions who can compound the case. Generally, it is the victim of the offence.

    Then under Section 321 of the Cr.P.C., power has been given to the Public Prosecutor or the Assistant Public Prosecutor in charge of a case to withdraw a criminal case from prosecution, with the permission of the court. Generally, the PP or the APP would move under this Section only with the permission or under order of the State Government.

    For certain offences, which are not covered under Section 320 of Cr.P.C. (as above), a petition can be filed before the High Court under Section 482 of the Cr.P.C. for quashing the criminal proceedings on the basis of a compromise between the parties.

    All these provisions may lead to directly or indirectly withdrawal of a criminal case. It all depends on the nature of the offence, which you have not mentioned in your question.

         


    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: Related New Land Acquisition Act #3992

    Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, lays down as under:

    “(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

    Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”

    From the limited facts mentioned in the question, it appears that Section 24(2) of the new Land Acquisition Act would be applicable in your case, since award was made more than 5 years prior to the coming into force of the new Act and the compensation has not been paid to you. However, you should consult some local lawyer with your detailed 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.

  • Firstly, please note that the offences under Section 420, 467 IPC (cheating, fraud, forgery, etc.) have not been effaced from the IPC, and even today these sections are applied in offences related to companies, wherever they are applicable. The offences under the Companies Act may be in addition to IPC, but they cannot replace IPC offences wherever IPC offences are made out in a specific factual matrix.

    Secondly, unlike the civil law, in criminal law the jurisdiction is decided on the basis of cause of action (i.e., where the offence took place) and not on the basis of where the company (or accused or complainant) is located or residing. If the police station where the FIR is registered has come to the conclusion that the offence is made out in some other jurisdiction, on the above criterion of cause of action, they can transfer the FIR for further investigation to the concerned police station.

    Thirdly, while the forensic examination may take time, if there is a prima facie evidence available otherwise at least for one or more of the offences, the police would generally file charge sheet without waiting for the result of the forensic examination, and the result of the forensic examination is submitted to the court later whenever it is received.

    Fourthly, forensic examination is definitely a good evidence to prove forgery. But, there are other ways also to prove forgery of signature or handwriting, such as, for example, examination of relevant witnesses. So, meanwhile, while waiting for forensic examination, police can try to collect other evidence about forgery, if any such other evidence is available.

    Fifthly, for recovery of the loan given by you, you may have to file civil suit in the competent court. In that civil suit, you may seek interim injunction against sale of assets by the opposite party.

    Sixthly, if the loan amount is more than Rs. 1 lakh, you should be in a position to initiate a “corporate insolvency resolution process” in NCLT (National Company Law Tribunal) under the provisions of the Insolvency and Bankruptcy Code, 2016. Consult some local lawyer with your 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: Criminal complaint is maintainable? #3990

    I have already replied to your question earlier, which is available at the following link: please help: eligible for criminal prosecution?

    As you have asked for consultation on professional basis on the detailed facts of your case, I can consider that subject to availability of time since that may require studying your detailed documents. You may please contact on the email to explore that possibility.

         


    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: Bank Flouting Rules #3987

    You should obtain interim order / interim injunction from the concerned court against the action of the bank. Merely filing a case may not restrain a bank from proceeding further for recovery of loan. You may need interim order / stay from the court to restrain the bank from forcibly recovering the loan amount. If you can convince the court that loan was not obtained by you but by someone else by forging your signature, there is a reasonable likelihood of the court issuing an interim order in your favour, more so since you have made the bank a party.

         


    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: clarification request on claim for regular post #3985

    Though it is difficult to give a definitive opinion on facts of a case without seeing the full facts and relevant documents, from your question it appears that the authority concerned is not terminating your services prior to expiry of the current contract which is / was up to 31 December (but, you are asking this question in February, so it is not clear how your contract of 6 months is expiring on 31 December). What is the authority appears to be doing is to intimate you that your contract would expire on 31 December. It does not appear to be termination prior to the contractual period during which a one-month notice or payment in lieu of that would have been required.

    For a more definitive opinion, please show your documents to some local lawyer / expert.

         


    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.

  • It is not possible for us to help you on detailed facts of your case without having seen the detailed documents of your case (please see policy guidelines of this Forum). Only a lawyer who has actually seen full detailed facts of your case can guide you on facts of the case. So, please engage some lawyer, preferably a local lawyer, to handle your case for discharge petition and/or for trial.

    Also, looking at the sections with which you have been charged (420, 424, 467, 468, 471, 201 & 120B IPC), some of such sections have maximum punishment of life imprisonment (such as Section 467 IPC). Therefore, police has the power to arrest without warrant in such cases.

    Further, please also note that Section 48 of the Criminal Procedure permits a police officer having the power / authorisation to arrest, to make arrest even outside his jurisdiction anywhere in India. This section is reproduced below for your information:

    48. Pursuit of offenders into other jurisdictions.— A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.”

    Likewise, a police officer conducting investigation into a cognizable offence (like the one against you) can conduct investigation at any place in India.

         


    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: Need help in Divorce related case. #3982

    Firstly, if your lawyer wants to withdraw from your case, you may have to engage another lawyer, if you do not want to fight the case in person.

    Secondly, it is not possible for me to know as to what one report is required in your case. You’ll have to check it from the court itself. So, find it out from the court staff yourself or by engaging another advocate and enquiring through him in 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: Removal from service #3980

    It is not quite clear from your question as to whether your resignation was accepted or you were removed from service as a penalty after departmental enquiry for default of long absence from duty. You should try to check it from your department.

    If it was resignation, then there is no chance since you submitted the resignation in 2008. Generally, you cannot withdraw the resignation after 3 months. But, in your case, already 10 years have lapsed.

    If it is a removal from service as a penalty after departmental enquiry, you may have to check from the department about the date of the order of removal from service. If the order was issued in 2008, then it would be too late now to challenge it; though you can still try to challenge it along with an application for condonation of delay, but the chances of success after such long delay are very less. But, if the order of removal was issued recently, say in last one year, then you should be in a position to challenge it.

         


    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: family law – validity of marriage under Special Marriage Act #3979

    While it is not possible for me to comment on the detailed facts of a case on this forum (please see forum guidelines), let me point out the relevant legal provisions that may help you.

    Firstly, Section 13(2) of the Special Marriage Act, 1954, lays down that a certificate entered in the Marriage Certificate Book by the Marriage Officer, shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with. Thus, if a marriage certificate has been issued to you and entered in the marriage certificate book, it may be considered as conclusive evidence of the marriage. This section is reproduced below:

    13. Certificate of marriage.—(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

    (2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.”

    Secondly, if your marriage has been celebrated in other forms (as mentioned in Section 15 of the said Act, which is reproduced below) and then registered under the Special Marriage Act, then also Section 18 of the Act affords certain protection to such marriage:

    18. Effect of registration of marriage under this Chapter.—Subject to the provisions contained in sub-section (2) of Section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents:

    Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.”

    Section 15 of the Act, referred to above, is reproduced below:

    15. Registration of marriages celebrated in other forms.—Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872) or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely—

    (a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;

    (b) neither party has at the time of registration more than one spouse living;

    (c) neither party is an idiot or a lunatic at the time of registration;

    (d) the parties have completed the age of twenty-one years at the time of registration;

    (e) the parties are not within the degrees of prohibited relationship:

    Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and

    (f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.”

    Thirdly, Section 26 of the Act provides that even if a marriage under the Special Marriage Act is void or voidable, a child born out of such wedlock would be considered legitimate subject to provisions of this section:

    26. Legitimacy of children of void and voidable marriages.—(1) Notwithstanding that a marriage is null and void under Section 24, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

    (2) Where a decree of nullity is granted in respect of a voidable marriage under Section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

    (3) Nothing contained in sub-section (1) and sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”

    Fourthly, you have mentioned about Section 12 of the Registration Act, whereas a Marriage Officer is appointed under the provisions of Section 3 of the Special Marriage Act. I don’t know whether in your state, Sub-Registrars are appointed as Marriage Officers. In any case, above legal provisions may help you. You may also consult some local lawyer by showing him the full details of your matter, including the marriage certificate issued to 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.

  • There is no Section 537 in Cr.P.C. Perhaps, you have referred to Section 537 of the old Cr.P.C. of 1898, which corresponds to Section 465 of the current Cr.P.C. of 1973.

    What you have mentioned is basically a typographical error and not a substantial error of law or fact. As you have mentioned, the accused is already on bail from the same court and has now jumped bail, so he is well aware of the court in which the case is pending and by which court the proclamation is being issued. Usually, such error should not be considered to be a fatal error.

    Section 465 Cr.P.C. lays down that an error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, or any error, or irregularity in any sanction for the prosecution, shall not be fatal unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

    In view of these reasons, I am of the opinion that such a typographical error in the description of the court should not vitiate the proceedings, when the accused very well understands in which court the proceedings have been initiated and when there is hardly any scope for failure of justice having been occasioned. If the accused had been completely misled genuinely by a defective order due to which he could not take relevant steps for his defence, then, perhaps, it would have been a different matter altogether.

    In any case, if possible, you may still issue a corrigendum in the publication or issue a fresh publication of the proclamation so as not to leave any doubt.

         


    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: Quashing of FIR in false rape allegation #3967

    You have asked questions on the same issue earlier, and this question is repetitive.

    If a rape FIR is filed, it would be non-bailable offence. Rape is supposed to be a serious offence.

    Success rate of petition filed in high court under Section 482 Cr.P.C. for quashing of FIR is very less, generally speaking. To succeed in such petition, you’ll have to show that no offence is made out even if the whole FIR is read on its face value by presuming the contents to be prima facie true; and this is not easy to show, generally speaking.

    Remaining part of your question is repetitive, hence not replied. Please do not repeat the same question again and again.

         


    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.

  • Police officers are notorious for not registering FIR even where a cognizable offence is made out. Many of the complaints under provisions like Section 406 IPC are not registered as FIR. The very fact that police has not bothered to take any action on the complaint given by you, shows that no FIR has been registered by them in your case. So, you can continue to proceed with your case in the JMFC court. There is nothing unusual in this. Many other citizens are also forced to pursue this course of action.

         


    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: Civil litigation #3956

    As far as I understand, there is no all-India Vexatious Litigation (Prevention) Act. I understand that a Private member’s Bill was tabled in Rajya Sabha in 2016 (see link), but it has not been passed so far. Such an Act exists in 2-3 states, but not in all states. I do not know which state you are from and whether there is any such Act in existence in your state.

    I have seen the provisions of such Acts in two states (Maharashtra and Rajasthan) and it appears that your case may not be covered thereunder or under similar provisions, as you yourself appear to be the plaintiff.

    In your counter reply, you may take the stand that on a previous occasion also, due to non-appearance of the defendant, the matter was allowed in your favour ex parte and subsequently this ex parte order was set aside, and that this is the second time that the matter was allowed in your favour for the non-appearance of the defendant again, and that defendant does not deserve any favourable order this time since he is interested in delaying the matter, etc. Generally speaking, it would be rare to see an ex parte order being passed twice and then getting set aside, though of course it depends on facts of each case. But, such careless party to a case would lose sympathy of the case if it happens again and again.

         


    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.

  • If it is not possible to issue a corrigendum, then leave it to the court. If necessary and if permitted by court, you may try to get a fresh proclamation order.

    But, as I mentioned in my previous reply, such a typographical error, and that too in the circumstances mentioned in your question when accused is aware about the court where proceedings are going on, may not be fatal.

    Rest you can leave it to the court and act as per orders of the court, if any.

    I had tried to find any judgment on this specific issue, but there appeared to be none. The relevant section I have already quoted.   

         


    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 - 16 through 30 (of 1,594 total)