Dr. Ashok Dhamija

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  • in reply to: plaint returned #807

    Return of the plaint is governed by Order 7 Rule 10 and 10A of the Civil Procedure Code (CPC). Rejection of a plaint is governed by Order 7 Rule 11 of the CPC.

    Where at any stage of the suit, the Court finds that it has no jurisdiction to try that suit, either with regard to territorial or pecuniary reasons or with regard to the subject matter of the suit, it will return the plaint for being presented to the proper Court in which the suit ought to have been filed. This is covered mainly in Order 7 Rule 10 of CPC as return of the plaint.

    On the other hand, if any one of the six conditions mentioned in Order 7 Rule 11 is satisfied, the court may reject the suit.

    The relevant Rules 10, 10-A, 11, 12 and 13 of Order 7 of CPC are reproduced below:

    10. Return of plaint.— (1) Subject to the provisions of Rule 10-A, the plaint shall] at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

    Explanation.—For the removal of doubts, it is hereby declared that a court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.

    (2) Procedure on returning plaint.—On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.”

    10-A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.—(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff.

    (2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the Court—

    (a) specifying the Court in which he proposes to present the plaint after its return,

    (b) praying that the Court may fix a date for the appearance of the parties in the said Court, and

    (c) requesting that the notice of the date so fixed may be given to him and to the defendant.

    (3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,—

    (a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and

    (b) give to the plaintiff and to the defendant notice of such date for appearance.

    (4) Where the notice of the date for appearance is given under sub-rule (3),—

    (a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise directs, and

    (b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

    (5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.”

    11. Rejection of plaint.— The plaint shall be rejected in the following cases:—

    (a) where it does not disclose a cause of action;

    (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

    (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

    (d) where the suit appears from the statement in the plaint to be barred by any law;

    (e) where it is not filed in duplicate;

    (f) where the plaintiff fails to comply with the provisions of Rule 9;

    Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

    12. Procedure on rejecting plaint.— Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.”

    13. Where rejection of plaint does not preclude presentation of fresh plaint.— The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause 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.

  • in reply to: SALE WAS MADE INFAVOUR OF UNINCORPORATED COMPANY #805

    Legal status of “pre-incorporation contracts” is slightly complicated. It is true that the promotors of the company may have to enter into certain contracts with third parties before the company is actually incorporated. However, a contract requires two existing parties who enter into an agreement. If the company (on whose behalf the contract is being entered into, before its incorporation) is non-existing, and is yet to be incorporated, then a contract on its behalf would mean that there are not two competent / existing parties to the contract and the contract may be invalid. There does not appear to be any provisions in the Companies Act for validating such pre-incorporation contracts. However, there are provisions in the Specific Relief Act, 1963, under which such pre-incorporation contracts on behalf of a non-existing company may be valid and may be enforced in favour of or against the company, if the conditions mentioned those provisions are satisfied.

    Section 15(h) of the Specific Relief Act provides as under:

    15. Who may obtain specific performance.—Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by—

    *** *** ***

    (h) when the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company:

    Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.”

    Therefore, a company may obtain specific performance of a pre-incorporation contract if the following conditions are satisfied:

    • the promoters of the company have, before its incorporation, entered into a contract for the purposes of the company;
    • such contract is warranted by the terms of the incorporation; and,
    • the company has accepted the contract and has communicated such acceptance to the other party to the contract.

    Likewise, Section 19(e) of the Specific Relief Act provides as under:

    19. Relief against parties and persons claiming under them by subsequent title.—Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against—

    *** *** ***

    (e) when the promoters of a company have, before its incorporation entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:

    Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.”

    Therefore, specific performance of a pre-incorporation contract may be obtained against a company if the following conditions are satisfied:

    • the promoters of the company have, before its incorporation, entered into a contract for the purposes of the company;
    • such contract is warranted by the terms of the incorporation; and,
    • the company has accepted the contract and has communicated such acceptance to the other party to the contract.

    Therefore, in the situations mentioned above, a pre-incorporation contract be enforced by or against the company if the above conditions are satisfied. Otherwise, generally speaking, a pre-incorporation contract may not bind the company and the promotors themselves may be liable for the consequences.

          


    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.

  • It is not possible. Now, under the provisions of sub-section (2) of Section 142 of the Negotiable Instruments Act, 1881, the case of cheque dishonour under Section 138 thereof can be filed in a court only as per the following provisions (this is applicable since 15 June 2015):

    “(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—

    (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

    (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

    Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”

    Therefore, it is not possible to file a cheque bounce case at any other place than is permissible under Section 142(2) of the N.I. Act as mentioned above.

         


    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.

  • On completion of investigation in a cognizable offence, after registration of FIR, the police is required to file a report under Section 173 of the Criminal Procedure Code before the Magistrate, which may is also called final report or police report. This report contains the result of the investigation. In particular, this report is required to be contain the following details: (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170; (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376-A, 376-B, 376-C, 376-D or Section 376-E of the Indian Penal Code.

    It is clear from the (d) above that the said report also contains the information “whether any offence appears to have been committed and, if so, by whom”. This implies that the said final report is required to be submitted to the Magistrate irrespective of whether the investigation discloses commission of the offence or it discloses that no offence has been committed. In fact, generally, following four situations may arise after completion the investigation by police:

    (1) It is found that offence has been committed and there is sufficient evidence to prosecute the accused person(s) who has/have committed the offence.

    (2) It is found that offence has been committed, but sufficient evidence is not available to prosecute the accused persons.

    (3) It is found that the FIR was falsely lodged by the complainant.

    (4) It is found that no offence was committed as alleged in the FIR.

    In all these situations, a final report is filed by police before the Magistrate.

    And, in particular, if the investigation has resulted in the first situation, as mentioned in (1) above, i.e., that the offence has been committed and there is sufficient evidence to prosecute the accused person(s) who has/have committed the offence, then the final report submitted is also called “charge sheet”. In the remaining three situations, the final report may also be called closure report.

    Thus, charge sheet is a specific type of final report which is submitted on completion of the investigation when it is found that the offence has been committed and there is sufficient evidence to prosecute the accused person(s) who has/have committed the offence. The words “charge sheet” are not mentioned in the Cr.P.C.; the law uses the words “report” or “police report”.

         


    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.

  • It is not advisable to go to media before review petition, etc.

    Secondly, it is not possible to comment on facts of the case unless one goes through detailed papers.

    Thirdly, when you already have senior counsel (such as a retired Judge of High Court on your side) appearing in the case, why don’t take their advice, since only a person who has seen the papers would be in a position to comment in detail on facts. Closing this 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.

  • in reply to: GPA HOLDER PROSECUTION #788

    This question has been already answered recently by a 3-judge bench of the Supreme Court in the case of A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790, as under:

    33.1. Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent.

    33.2. The power-of-attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the power-of-attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

    33.3. It is required by the complainant to make specific assertion as to the knowledge of the power-of-attorney holder in the said transaction explicitly in the complaint and the power-of-attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

    33.4. In the light of Section 145 of the NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act.

    33.5. The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.”

    Therefore, it is possible for the power of attorney holder to file a complaint for cheque dishonour under Section 138 of the Negotiable Instruments Act, without permission of the Magistrate, subject to the conditions mentioned above by the Supreme Court in the above case.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles.

  • in reply to: Concept of Defamation #785

    In simple language, where a person, by spoken or written words, or by signs (such as gestures) or by visible representations, makes or publishes any imputation concerning any person to harm the reputation of such person, he is said to defame that person. Thus, defamation is an act of making or publishing of defamatory content to harm the reputation of some person (who may be an individual or any other entity such as a company).

    In India, defamation can be of two types, civil defamation and criminal defamation. Civil defamation is covered under law of torts, in which the damages or compensation may be awarded against the person who defamed. On the other hand, criminal defamation is defined in Section 499 of Indian Penal Code (IPC) and is punishable under Section 500 thereof. Criminal defamation is punishable with simple imprisonment for a term which may extend to two years, or with fine, or with both. The offence of criminal defamation is non-cognizable (which means you have file the private complaint with court and the police will not register FIR), bailable (accused has a right to get bail), and compoundable (i.e., it can be compromised by the two parties, even without the permission of the court).

    In a defamation, if the offending material is published in some fleeting form, such as by spoken words or sounds, sign language, gestures and the like, then this is called slander. On the other hand, if the defamation is by written or printed words, pictures, or in any form other than by spoken words or gestures, then it is generally called libel.

    It is possible to file cases for civil defamation and criminal defamation simultaneously, since both serve different purposes even though both may be arising out of the same defamatory act.

    Section 499 of IPC:

    499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

    Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

    Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

    Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.

    Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

    Illustrations

    (aA says—“Z is an honest man; he never stole B‘s watch”: intending to cause it to be believed that Z did steal B‘s watch. This is defamation, unless it falls within one of the exceptions.

    (bA is asked who stole B‘s watch. A points to Z, intending to cause it to be believed that Zstole B‘s watch. This is defamation, unless it falls within one of the exceptions.

    (cA draws a picture of Z running away with B‘s watch intending it to be believed that Zstole B‘s watch. This is defamation, unless it falls within one of the exceptions.

    First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

    Second Exception.—Public conduct of public servants.—It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

    Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

    Illustration

    It is not defamation in A to express in good faith any opinion whatever respecting Z‘s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.

    Fourth Exception.Publication of reports of proceedings of courts.—It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

    Explanation.—A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

    Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

    Illustrations

    (aA says—“I think Z‘s evidence on that trial is so contradictory that he must be stupid or dishonest.” A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z‘s character as it appears in Z‘s conduct as a witness, and no further.

    (b) But if A says—“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, inasmuch as the opinion which he expresses of Z‘s character, is an opinion not founded on Z‘s conduct as a witness.

    Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

    Explanation.—A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

    Illustrations

    (aA person who publishes a book, submits that book to the judgment of the public.

    (bA person who makes a speech in public, submits that speech to the judgment of the public.

    (c) An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.

    (dA says of a book published by Z—“Z‘s book is foolish; Z must be a weak man. Z‘s book is indecent; Z must be a man of impure mind.” A is within the exception, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z‘s character only so far as it appears in Z‘s book, and no further.

    (e) But if A says—“I am not surprised that Z‘s book is foolish and indecent, for he is a weak man and a libertine.” A is not within this exception, inasmuch as the opinion which he expresses of Z‘s character is an opinion not founded on Z‘s book.

    Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

    Illustration

    A judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier—are within this exception.

    Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

    Illustration

    If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z‘s master; if A in good faith complains of the conduct of Z, a child, to Z‘s father—A is within this exception.

    Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.

    Illustrations

    (aA, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty.” A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.

    (bA, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.

    Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.”

         


    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.

  • You can try the review petition if you are aggrieved by the order in the SLP if you feel that there is an error apparent on record. If a review petition is dismissed, then only curative petition can be considered. However, be aware that chances of success in review petition and curative petition are generally much less.     


    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.

  • Arrest is not mandatory. If the police has not arrested you so far during the investigation, then at the time of filing charge sheet, generally speaking the police will ask you to be present in court directly at the time of filing / consideration of charge sheet, at which time the court may generally grant you bail. However, this is what is general practice, and there may be some variance from this practice in an individual case.

    If you want to get bail before arrest, then you can try anticipatory bail which can be granted by the Sessions Court or the High Court under Section 438 Cr.P.C.     


    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.

  • in reply to: Outstanding interest and maintenance in housing society #777

    You may perhaps have to refer to the byelaws of your own society. The Maharashtra Co-operative Societies Act appears to be silent on this issue.     


    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.

  • in reply to: Regarding 498a incomplete Chargesheet & charge-framing #775

    For (1) & (2), you may request / apply to the court to provide copies of those documents / statements that have not been given to you.

    For (3), transfer of the case to another judge may be possible if you can show proof of the strong bias of the judge which may show that there would be miscarriage of justice. Offence under Section 498A IPC is triable by a Magistrate court. The court of Chief Judicial Magistrate has the power to transfer a case from one Magistrate court to another. You can make an application if you so wish.

    For (4), you may request the court for adjourning the date for framing the charge if you have a justifiable reason. It is up to the court to agree or not.

         


    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.

  • in reply to: National Emergency #773

    The expressions “war” and “external aggression” used in Article 352 of the Constitution have not been defined in the Constitution. The expression “external aggression” is also used in Article 355. In the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 : AIR 2005 SC 2920, a 3-judge bench of the Supreme Court has distinguished between these expressions and has explained what is external aggression. Some of the relevant observations of the Supreme Court in this case are as under:

    “The word “aggression” is a word of very wide import. Various meanings to the word have been given in the dictionaries, like, “an assault, an inroad, the practice of setting upon anyone; an offensive action or procedure; the practice of making attacks or encroachments; the action of a nation in violating the rights especially the territorial rights of another nation; overt destruction; covert hostile attitudes”.

    “The word “aggression” is not to be confused only with “war”. Though war would be included within the ambit and scope of the word “aggression” but it comprises many other acts which cannot be termed as war. In Kawasaki v. Bantham S.S. Co. [(1938) 3 All ER 80 (KBD)] the following definition of “war” as given in Hall on International Law has been quoted (All ER p. 82 D) with approval:

    “When differences between States reach a point at which both parties resort to force, or one of them does acts of violence, which the other chooses to look upon as a breach of the peace, the relation of war is set up, in which the combatants may use regulated violence against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant.”

    “In Introduction to International Law by J.G. Starke (Chapter 18) it is said that war in its most generally understood sense is a contest between two or more States primarily through their armed forces, the ultimate purpose of each contestant or each contestant group being to vanquish the other or others and impose its own conditions of peace. With the passage of time, the nature of war itself has become more distinctly clarified as a formal status of armed hostility, in which the intention of the parties, the so-called animus belligerendi may be a decisive factor. The modern war may involve not merely the armed forces of belligerent States but their entire population. In Essays on Modern Law of War by L.C. Green, the author has said that in accordance with traditional international law, “war is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases”. The framers of the Constitution have consciously used the word “aggression” and not “war” in Article 355.”

    “There was a large-scale influx of persons from the then East Pakistan into India before the commencement of December 1971 Indo-Pak War. On 3-11-1971, one month before the actual commencement of the war, Dr. Nagendra Singh, India’s representative in the Sixth Committee of the General Assembly on the Definition of Aggression, made a statement, wherein he said:

    “… The first consideration, in the view of the Indian Delegation, is that aggression must be comprehensively defined. Though precision may be the first virtue of a good definition, we would not like to sacrifice the requirement of a comprehensive definition of aggression at any cost. There are many reasons for holding this view. Aggression can be of several kinds such as direct or indirect, armed in nature or even without the use of any arms whatsoever. There can be even direct aggression without arms. …

    We would accordingly support the categorical view expressed by the distinguished delegate of Burma, the UK and others that a definition of aggression excluding indirect methods would be incomplete and therefore dangerous.

    ***

    For example, there could be a unique type of bloodless aggression from a vast and incessant flow of millions of human beings forced to flee into another State. If this invasion of unarmed men in totally unmanageable proportion were to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence, I am afraid, Mr Chairman, it would have to be categorised as aggression. In such a case, there may not be use of armed force across the frontier since the use of force may be totally confined within one’s territorial boundary, but if this results in inundating the neighbouring State by millions of fleeing citizens of the offending State, there could be an aggression of a worst order. …

    What I wish to convey, Mr Chairman, is the complexity of the problem which does not permit of a four-line definition of aggression much less an ad interim declaration on it.”

    [See Vol. 11 (1971) Indian Journal of International Law, p. 724.]”

    This shows that the stand of our country before the UNO was that influx of large number of persons from across the border into India would be an act of aggression.”

    “…one of the most respected and learned Judges of the recent times has termed the influx of persons from erstwhile colonies of Britain into Britain as “invasion”. The word “aggression” is, therefore, an all-comprehensive word having very wide meaning. Its meaning cannot be explained by a straitjacket formula but will depend on the fact situation of every case.”

    “The definition of “aggression” as adopted by UN General Assembly Resolution No. 3314 (XXIX) was, however, for a limited purpose, namely, where the Security Council or the United Nations Organisation could interfere and adopt measures in the event of an aggression by one nation against another and the acts enumerated therein which may amount to aggression cannot restrict or curtail the meaning or the sense in which the word “aggression” has been used in Article 355 of the Constitution.”

    “This being the situation there can be no manner of doubt that the State of Assam is facing “external aggression and internal disturbance” on account of large-scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.”

    It may also be pointed out that in the recent case of Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1 : AIR 2015 SC 783, a 2-judge bench of the Supreme Court has referred, inter alia, the following question to be decided by a Constitution bench (of 5 judges) of the Supreme Court:

    “Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”?”

    Generally, it may be said that the meaning of the expression “external aggression” is much wider than the meaning of the word “war”. While every “war” may also generally be called an “external aggression”, the reverse may not always be true.

         


    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.

  • in reply to: suspension #772

    The service rules applicable to you in respect of suspension may also be relevant (specially, how much period is prescribed in the rules for serving of charge sheet after the suspension).

    In any case, you should have (examined and) challenged the suspension at the time when the period of 3 months had been completed and the charge sheet was yet to be served. Challenging the validity of suspension when the charge sheet has now already been served may or may not be successful.     


    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.

  • in reply to: How and to whom file a complaint of a Judge of Lower Court #771

    I think administrative complaints against a judge of the level of ADJ may be filed to the High Court, through the Registrar (Vigilance) of the High Court. You may check from the high court registry.     


    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.

  • in reply to: Regarding suspension and my service #769

    The relevant rule in the Central Civil Services (Classification, Control and Appeal) Rules, 1965, is not clear whether the recommendation of the review committee is binding on the disciplinary authority for continuing or revoking the suspension. But, in any case, at least, the disciplinary authority is required to give reasons if such authority does not act in accordance with the recommendation of the review committee and takes a contrary decision.

    Further, there are Government instructions that if the officer has been under suspension for one year without any charges being filed in a court of law, he shall ordinarily be reinstated in service without prejudice to the case against him.  But, it is also in the instructions that, however, in case the officer is in police/judicial custody or is accused of a serious crime or a matter  involving national security, the Review Committee may recommend the continuation of the suspension of the official concerned.

    But, in your case, the review committee has recommended revocation of the suspension to which the disciplinary authority has not agreed.

    In these circumstances, you may consider approaching the Central Administrative Tribunal (CAT) against the order of continuation of suspension, and try your luck.

    At the same time, you may have to fight the regular criminal case against you since one of the sections applied against you relates to rape which is a serious offence. If you feel that the criminal case against you is weak, you may challenge the framing of charges or otherwise try to get the trial concluded expeditiously.

         


    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.

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