[Dr. Ashok Dhamija]

To challenge the rejection by the Sessions Court of the discharge application filed by you, a petition under Section 482 of the Criminal Procedure Code may have to be filed in the high 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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The court will generally fix the maintenance to be paid by you to your wife by taking into consideration various aspects, such as your salary, your other income and property, your essential expenses, her income, a minimum living standard, her expected minimum expenses, your social status, etc. But, there is no hard and fast formula. It depends on facts and circumstances of each case.

If you show inflated expenses from your salary income, the court may ignore them from consideration. Keeping in view your salary income of Rs. 8000 per month, you may expect the maintenance of somewhere around Rs. 2000 to Rs. 3000 per month being fixed by the court, to be paid to your wife. This is only a general estimation and ultimately it is for the court to decide by taking into account various aspects, 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. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

There is no such legal requirement. It is up to your own comfort level and convenience. Getting a contract drafted or vetted by a lawyer, who has expertise in the specific domain, may ensure that it is legally perfect and it may save you from future legal troubles, if any. At the same time, if you are confident of doing it yourself, go ahead and do it, by all means.

     

---

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

[Dr. Ashok Dhamija]

As per the guidelines laid down by the Supreme Court, it is possible to simultaneously conduct department proceedings and the criminal proceedings on the same charges.

In this regard, the legal position has been explained by the Supreme Court in the case of State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 : AIR 1997 SC 13, wherein it was held that the approach and the objective in the criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.

It was further held by the Supreme Court that the indisputable proposition is that there is no legal bar for the criminal prosecution and the departmental proceedings to go on simultaneously but in certain situations, it may not be ‘desirable’, ‘advisable’ or ‘appropriate’ to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings is a matter to be determined having regard to the facts and circumstances of a given case and no hard and fast rules can be enunciated in that behalf. The only ground constituting a valid ground for staying the disciplinary proceedings is that “the defence of the employee in the criminal case may not be prejudiced”. This ground is, however, hedged in by further proviso that this may be done in cases of grave nature involving questions of fact and law. It means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, ‘advisability’, ‘desirability’ or ‘propriety’, as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. One of the contending considerations is that the disciplinary enquiry cannot be – and should not be – delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from the Supreme Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It only serves the interest of the guilty and dishonest. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down by the Supreme Court in various decisions.

Recently, in the case of SBI v. Neelam Nag, (2016) 9 SCC 491 : AIR 2016 SC 4351, the Supreme Court reiterated these observations by holding that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straitjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case-to-case basis. In the peculiar facts of the case, the pendency of the criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period.

It was held that the ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But, such defence ought not to be permitted to unnecessarily delay the departmental proceedings. A balance has to be drawn between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by the Supreme Court to be in the interest of the employees. 

[Note: Some contents for this reply have been taken (in modified form) from my book: Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6).]

     

---

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]

In such a situation, you can make a complaint to the Sub-divisional Magistrate under Section 133(1)(b) of the Cr.P.C. which is reproduced below (the relevant extracts of these sections are highlighted):

“133. Conditional order for removal of nuisance.— (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers—

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,

such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order—

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.

Explanation.—A “public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.”

On such complaint being made by you, the Sub-divisional Magistrate has the power to make order to the opposite party to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed.

     

---

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

[Dr. Ashok Dhamija]

If a witness has died before his examination in the court during the trial, then that means his evidence is not available for the purposes of the trial. So, generally speaking, it is a case of no evidence as far as that particular witness is concerned. However, in certain special circumstances, as laid down in the Evidence Act, his statement before his death may be admissible in the court, for example, under Section 32 of the Evidence Act, the statement of a relevant fact by a person who is dead may be relevant (for example, dying declaration of that person in the circumstances mentioned in Section 32 of the Evidence Act may be admissible as evidence).

Barring these very special circumstances, as mentioned in the Evidence Act, the previous statements of a person who has died are not admissible in the court as evidence. Therefore, generally speaking, if a person has died before he could be examined in the court as a witness in the trial, his evidence does not exist in the eyes of law and naturally, the prosecution case will suffer to that extent if he was a crucial witness in the trial on behalf of the prosecution.

At this juncture, let me point out that the statement of a witness recorded by the police during the investigation under Sections 161/162 of the Cr.P.C. cannot be used for any purpose other than for the purpose of contradicting him during his examination in the court. Therefore, statement of a witness recorded by the police during investigation is of no use during the trial in the court if that person has already died before being examined 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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Your question appears to be wrongly worded. Usually the word “terminated” or the word “termination” is used in respect of the temporary service or in respect of the probationary period. As far as a government servant who has been confirmed in service, his termination by way of penalty is by way of either “dismissal”, or “removal”, or “compulsory retirement”.

Now, in the case of dismissal or removal from government service, no pension is paid to the government servant. In the case of compulsory retirement, the government servant is paid pension as admissible.

Of course, it should be possible for you to challenge in the appropriate court or tribunal your termination from service.

     

---

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 note that section 151 of the Cr.P.C. does not define any offence. Therefore, the action taken under Section 151 Cr.P.C. is not in respect of an offence. This section gives the power to the police to arrest a person as a preventive measure (and not in respect of an offence), without warrants from the magistrate, in order to prevent the commission of a cognizable offence if the commission of such offence cannot be prevented otherwise.

Since Section 151 Cr.P.C. does not define any offence at all, there is no question of it being cognizable or non-cognizable. As mentioned above, this section itself gives power to the police to arrest the person without warrant in the circumstances mentioned therein. Such power to arrest without warrant is not because of this section defining any cognizable offence, but by virtue of the specific provisions laid down in this section itself.

If a person is arrested under Section 151 of the Cr.P.C., the police is required to release him within a period of 24 hours unless his further custody could be authorised under some other provisions of the law. [Note: In Maharashtra, this section has been amended and the custody of a person arrested under this section can be extended upto a maximum period of 30 days under the orders of 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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Please note that the offences under Sections 323 and 504 of the IPC are non-cognizable. As regards the offence under Section 506 of IPC, please see my article: Section 506 IPC – whether bailable or non-bailable?, wherein I have explained that this offence is non-cognizable almost throughout India excepting certain states where amendments have been made to this section (such as in Andhra Pradesh, Uttar Pradesh, Uttarakhand, Maharashtra). In addition, please note that in Jammu and Kashmir, IPC does not apply since it has its own Ranbir Penal Code.

Therefore in most of the states in India, offences under Sections 323, 504, 506 of IPC are non-cognizable, excepting the above mentioned states. You have not mentioned in which state you approached the police for registration of the above offence; if it was within the states where these offences are non-cognizable, then the police is well within its rights to refuse registration of the FIR and direct you to file a private complaint in the court directly.

     

---

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]

Section 258 of the Criminal Procedure Code relates to the trial of the summons cases. Since the offence under Section 304A of the Indian Penal Code is punishable with imprisonment up to 2 years only, it is a summons case. Accordingly, Section 258 of the Cr.P.C. will be applicable to an offence under Section 304A of the IPC.

Section 258 of the Cr.P.C. is reproduced as under:

“258. Power to stop proceedings in certain cases.— In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.”

Thus, it is seen that under Section 258 of the Cr.P.C., the magistrate has the power to stop the proceedings of a summons case for reasons to be recorded by him. The section is silent as to on what grounds the proceedings can be stopped in such cases. However, it can be only for some genuine and reasonable cause, and the magistrate has also to record the reasons, which can then be subsequently challenged before the higher courts, if needed.

In your case, you have mentioned that the trial of the offence under Section 304A of IPC is pending for several years and the accused is not traceable. In these circumstances, it may perhaps be reasonable to close the proceedings, and it is up to the magistrate to exercise his discretion under Section 258 of the Cr.P.C. If you are the complainant in the case and you are aggrieved by such order of the magistrate of closing the proceedings, you may challenge the same before the Sessions Court by filing a revision petition.

     

---

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]

For filing a Special Leave Petition (SLP) before the Supreme Court, you would need a certified copy of the judgment of the high court that you want to challenge. You would need vakalatnama (for engaging the advocate on record) and an affidavit to support the petition for the SLP. Moreover, whatever other documents you want to rely upon for your case (which were part of the high court case) and pleadings before the high court have also to be enclosed and the same may be accepted in the form of true typed copies attested by the advocate on record, with an averment in the affidavit that these are true copies of their respective original. These are generally the basic documents needed and there may be some other documents depending on your 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. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Previously, Section 166(3) in the Motor Vehicles Act, 1988, laid down the following time limitation on filing of application before Motor Accidents Claims Tribunal for compensation arising out of an accident:

“(3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident:

Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.”

However, it is pertinent to mention that the period of limitation provided under Section 166(3) aforementioned was completely done away with, with effect from 14-11-1994, as Section 166(3) came to be deleted, from the Motor Vehicles Act, 1988, by way of an amendment.

Therefore, at present there is no limitation period for filing a claim for compensation arising out of an accident.

In the case of Purohit & Co. v. Khatoonbee, (2017) 4 SCC 783, the Supreme Court while dealing with this issue held that a claim raised before the Motor Accidents Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. It was held that it is not as if, it can be open to all and sundry, to approach a Motor Accidents Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. It was held that the individual concerned, must approach the Tribunal within a reasonable time, but the question of reasonability would naturally depend on the facts and circumstances of each case. In the above case before the Supreme Court the delay in filing claim was of 28 years and the Supreme Court held that such claim was stale and dead.

In your case, the delay is about 2 years from the date of the accident. In my considered opinion, you should be in a position to file an accident claim and this delay should not come in your way.

     

---

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, if a review promotion committee meeting is held, the missing ACRs can be considered for the purposes of your promotion if these ACRs belonged to the required relevant 5 years’ period which was to be considered for promotion. It is the duty of the concerned authorities to write the ACRs on time and make them available to the promotion committee. You are not responsible if any delay is caused in this regard by the authorities. Moreover, once these ACRs are available at the time of the review committee, such committee should consider these ACRs which were missing earlier, if they belong to the 5 years period which is required to be considered for the purposes of the promotion.

Recently, in the case of P. Sivanandi v. Rajeev Kumar, (2017) 4 SCC 579, the Supreme Court has held that the officer cannot be prejudiced merely because superior officers concerned delayed writing the ACRs by observing:

“…the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities.”

     

---

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]

You will have to challenge your removal from service in the appropriate court or tribunal (such as in the Central Administrative Tribunal, if you are a central government employee).

On the face of it, the punishment of removal for an absence for a month appears to be harsh and disproportionate even if it be presumed that your misconduct was proved.

I may point out that in somewhat similar circumstances (though not exactly the same circumstances), in the case of Ashok Kumar v. Union of India, (2009) 17 SCC 481, the Supreme Court has held that:

“…the punishment imposed is grossly disproportionate to the charge which was to the effect that the appellant had absented himself from duty for three days without leave. For the same, the punishment of termination of service was certainly not at all warranted. … Taking into consideration all the aspects which are available before us we set aside the impugned order of termination of service and in its place a punishment of censure to be entered in the service record be substituted.”

 

     

---

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]

Under the provisions of the Contempt of Courts Act, for contempt of court, the High Court may take action (1) on its own motion or (2) on a motion made by the Advocate-General, or (3) on a motion made by any other person, with the consent in writing of the Advocate General.

Therefore, if you want to move the High Court for contempt, without the consent of the advocate general, you may file a contempt petition requesting the High Court to take action on its own motion. If the contempt of a subordinate court has been committed, you can final application before that subordinate court to make a reference to the High Court for initiating the contempt 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. List of his YouTube Videos.

[Author]

Posts