[Dr. Ashok Dhamija]

Though the Form for enrolment (see here) as an advocate in the Uttar Pradesh Bar Council requires you to give an affirmation that you have not been arrested in a criminal case, etc., I am of the opinion that a person who has been arrested but not yet convicted of an offence cannot be debarred from enrolling as an advocate.

Recently, I saw a person getting enrolled as an advocate in Maharashtra & Goa State Bar Council even though he was convicted in a case of corruption and was dismissed from Government service, but he had obtained a stay on conviction order from the High Court during the pendency of his appeal against his conviction. His appeal against conviction was pending in High Court at the time of his enrolment as advocate. Right now, he is still practicing while his appeal is pending. So, if a convicted person (after obtaining stay during pendency of his appeal against conviction) can be enrolled, there is no question that a person who has merely been arrested would not be enrolled as an advocate.

The relevant legal provision disqualifying a convicted person from being enrolled as an advocate is contained in Section 24-A of the Advocates Act, 1961, which is reproduced below. It is clear from this provision that even this disqualification ceases to have effect after a period of two years has elapsed since his release after conviction. So, there should not be any problem for a person who has been arrested but is yet to be convicted. However, such person should transparently mention the information about his arrest in the Enrolment Form and should not conceal such information.

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

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

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

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

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

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

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

     

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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 rules of succession to the property of a Hindu female if she dies intestate, i.e., without a will, are laid down in Sections 15 and 16 of the Hindu Succession Act, 1956. These sections are reproduced below. However, the brief simple explanation that will apply in most cases is as under:

• If the female had sons and/or daughters and/or the husband living at the time of her death, then the property will be divided equally among them, each of them getting one equal share. If any particular son or daughter had died prior to the female, and if such pre-deceased son / daughter had any children, then such children will take the share of such pre-deceased son/daughter.
• If she did not have sons and/or daughters and/or the husband living at the time of her death, then her property will devolve upon the heirs of her husband.
• If that is also not possible, i.e., if she did not have sons and/or daughters and/or the husband living and if there are no heirs of her husband, then the property will devolve on her mother and father.

And, so on, as laid down in Section 15 and 16 of the Hindu Succession Act which are reproduced below:

“15. General rules of succession in the case of female Hindus.—(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,—

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1),—

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.”

“16. Order of succession and manner of distribution among heirs of a female Hindu.—The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate’s property among those heirs shall take place, according to the following rules, namely :

Rule 1.—Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.

Rule 2.—If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death.

Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.”

     

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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]

Usually the review petition goes before the same bench. If the judges are now sitting at different places, the Chief Justice may allot the case to the bench headed by the senior judge who heard the matter earlier. However, please check the relevant rules of your High Court, since different high courts may have different rules in this regard. Consult some local lawyer.     

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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]

I have given my reply already. It is not possible to add to the above reply in the absence of having seen full case documents. Please consult some local lawyer by showing him all the documents.     

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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]

Please see our Forum guidelines. It is not possible for us to reply on the detailed facts of your case. Please consult some local lawyer by showing him all your documents. However, I may state generally that a service matter of a Central Government servant has first to be challenged before the CAT and thereafter CAT order can be challenged in High Court. A service matter cannot be challenged directly in High 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     

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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]

While it is not possible to accurately answer your question on the facts of your case without examining the relevant documents, generally speaking, the provisions of Section 68 of the Evidence Act may be relevant since “will” is a document which is required by law to be attested [see Section 63 of the Succession Act, 1925]:

“68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

     

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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 the complainant herself is considered as a competent witness in her case, then there is no question that her relatives will not be considered as witnesses. The relatives are competent witnesses in such cases, and in fact, in other cases also. However, it is up to the court to decide as to how much weightage is to be attached to their evidence since they may be interested witnesses. So, appreciation of their evidence will be for the court to decide even though the evidence of relatives is admissible.

     

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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 I have pointed out in Drawers signature differs – whether cheque bounce case made out, in a case where the cheque is returned unpaid by the bank on the ground that the signature of the drawer on the cheque differs from his specimen signature on record of the bank, a case of dishonour of cheque punishable under Section 138 may be made out if other ingredients of the offence are satisfied. Please read my about answer for more details.

     

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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]

While I do not know the full facts of your case and I have not seen the FIR or the investigation papers, generally speaking in cases under Section 498-A and 406 IPC, several continuing incidents of cruelty are mentioned. If multiple incidents are shown (as you have referred to an incident of 01.09.2017 at Lucknow), then the jurisdiction lies at any of the places where part of the transaction or part-incident has taken place. In your case, in that scenario, the jurisdiction can be at both places.

However, for getting a more accurate opinion on the basis of the actual detailed facts of your case, as mentioned in the FIR itself or as revealed in the subsequent investigation, please show your documents to some local lawyer.

     

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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]

All the three offences mentioned by you, i.e., Section 279, 337 and 427 IPC are bailable offences. Therefore, getting bail is your right. The police itself would grant you the bail if you are arrested. You may have to sign a bail bond, may be you may also require a surety to execute a bail bond on your behalf. No cash would be needed for the bail. It may only be the bail bond.

You may contest the case in court and show that it was not your fault. It is not binding on you to plead guilty to the charges. However, the choice is yours. But, generally, people do not plead guilty and fight the case in 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]

If the charge framed against you also includes offence under Section 376 IPC, it may be difficult for the department to offer you job. This is a serious charge and is a case of moral turpitude. However, it all depends on the concerned departmental authorities; since it is still not decided in trial, the department may consider it to offer you the post on the condition that your appointment may be terminated on conviction. However, the chances of your getting appointment, with rape charge having been framed against you, would be limited. This is what is my understanding. You may confirm it from the concerned department.

     

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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]

Delay is a problem in all judicial and quasi-judicial bodies. You may have to live with it. You may request the NCDRC to expedite the matter, but then there are many other competing cases which have also to be accommodated.

If the opposite party is not present, then usually one or two chances are given to them to remain present. If a party does not remain present, without any exemption granted, even on the next date, then, in its discretion, the NCDRC can proceed with the matter ex parte. And, you can request the NCDRC to hear it ex parte if the opposite does not remain present on the next date also.

     

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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]

I hope you have not lost the postal receipt of the notice sent by you and also the acknowledgement / delivery report of the notice received by the opposite party. That is what is mainly required to prove the notice.

Secondly, I think the printed copy of the notice sent should be sufficient to demonstrate what you sent as a notice. You may mention in your complaint that it is a printed copy of the notice sent.

In the worst situation, please note that as per the provisions of Section 65 of the Evidence Act, even oral accounts of a document may be given as secondary evidence if it proved that the original has been lost or destroyed. Here, in your case, the original of the notice is with the opposite party and what you are proving is only about the office copy of such original document, i.e., the copy  of the notice. So, I think the printed copy of the notice may be considered as sufficient; and in the worst situation, by first proving that the office copy is lost you may even give oral accounts of the notice as to its contents.

     

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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]

FIR is not an encyclopaedia which can contain all the facts in it. FIR is just the beginning of the investigation. All facts and circumstances relating to the offence (for which FIR is registered) are ascertained during the investigation, including in the form of Section 161 Cr.P.C. statements. That is the very purpose of the investigation, i.e., to ascertain the truth of facts mentioned in FIR, to collect evidence, etc.

Therefore, it is possible to fill in details on facts which were not mentioned in the FIR in the statements recorded under Section 161 Cr.P.C. Of course, subsequently, during trial, the accused can make use of discrepancies, if any, in the FIR and the Section 161 statements. If there are major contradictions between the two, it may benefit the accused. If vital details are missing from FIR, it may help the accused.

When the Magistrate frames charges, he does so on the basis of all evidence available in the case, including the Section 161 statements, and not merely the FIR. So, there is nothing unusual or wrong if the Magistrate uses information available in Section 161 statements for framing charges.

Ultimately, it will be for the witnesses to give their evidence in court, which will finally prove the case. Even Section 161 statements have limited value / use during trial; what the witness states in the court during trial is more important.

     

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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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