[Dr. Ashok Dhamija]

The main ingredient of the offence under Section 354 of IPC is that the assault or use of criminal force to any woman must have been with the intention “…to outrage or knowing it to be likely that he will thereby outrage her modesty…”. Therefore, there should be a specific intention of outraging the modesty of the woman to amount to an offence under Section 354 IPC.

In your case, from the limited facts narrated by you, this intention to outrage the modesty of the woman, appears to be missing. You already knew the girl well, and there was some small fight as you have mentioned. While Section 323 IPC offence may have been committed in the facts mentioned by you, offence under Section 354 IPC appears to be not committed. Unless, of course, if some more facts are mentioned by the girl in her complaint to the police which show the above intention, which are not in your knowledge.

     

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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]

After conviction in a cheque bounce case under Section 138 of the Negotiable Instruments Act, if the penalty of fine is also imposed, there is no need to deposit the full or a part amount of the fine before filing appeal against such conviction. There is no such provision in law that you have to first deposit the fine imposed on you on such conviction, either in full or in part, before filing the appeal against conviction in cheque bounce case.

While some taxation laws may have such provisions for depositing a part of the fine imposed or the tax due before you file the appeal, there is no similar provision in respect of filing an appeal against conviction in a cheque dishonour case.

As regards the suspension of the sentence of imprisonment, or the issue of grant of bail after conviction, since the imprisonment in your case is only one month, the trial court itself would have granted you bail after suspending your sentence under Section 389 of the Criminal Procedure Code.

     

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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 only provision in the Criminal Procedure Code under which anticipatory bail can be granted is Section 438 and this section specifically lays down that: “Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail…”.

Thus, it is quite clear from it that anticipatory bail can be granted only in respect of non-bailable offences. There is no provision for grant of anticipatory bail in bailable offences.

In fact, there is no need for seeking anticipatory bail in a bailable offence for the simple reason is that bail is a matter of right in a bailable offence and you’ll in any case get bail in a bailable offence on being arrested. So, why should there be a provision for anticipatory bail in a bailable offence? Not needed.

     

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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. The high court has the power to direct the CBI to conduct investigation in a case even if that offence has occurred within the territorial jurisdiction of a State. Likewise, the high court has power to transfer a pending case under investigation with State Police within the territorial jurisdiction of a State to the Central Bureau of Investigation (CBI). This power is covered within Article 226 of the Constitution. And, for the high court to exercise this power, consent of the State Government is not required under Section 6 of the Delhi Special Police Establishment Act, 1946.

In the case of State of W.B.  v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : AIR 2010 SC 1476, a Constitution bench of the Supreme Court has affirmed this legal position. It was held that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law.

     

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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]

It was held in the case of Golak Nath v. State of Punjab, AIR 1967 SC 1643, that fundamental rights could not be amended even by way of amendment to the Constitution under Article 368 of the Constitution.

However, on this aspect, Golak Nath case was overruled by a larger bench of the Supreme Court in the case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, in which it was held that an amendment under Article 368 could even abridge or take away a fundamental right. However, in this case, a new concept of implied limitations on the amending power was added by the majority decisions. It was now held that there are certain basic features of the Constitution, which cannot be destroyed or damaged while amending the Constitution. Thus, it meant that while any provision of the Constitution could be amended by following the procedure prescribed under Article 368, such a power to amend was not absolute in as much as the basic features of the Constitution could not be destroyed or emasculated during such an amendment.

The fundamental rights could now be said to be amendable, except, of course, those fundamental rights which could be considered by the court to be part of the basic features of the Constitution.

Thus, the present legal position with regard to the fundamental rights after the Kesavananda Bharati case is that while fundamental rights, in general, could be amended by an amendment to the Constitution under Article 368 of the Constitution, if any particular fundamental right is considered as a basic feature of the Constitution then that particular fundamental right cannot be abridged or taken away. For example, the fundamental right guaranteed under Articles 14, 21 and 32 have been considered to be basic features of the Constitution, so these fundamental rights cannot be abridged or taken away (however, it may be still be possible to further enrich these fundamental rights by further strengthening them).

     

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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]

There is no bar in successive bail applications being moved for consideration by the Courts. There is no time limit set for moving the court for bail, after the first bail application is rejected. However, it should be only when some new facts and circumstances have developed after rejection of the previous bail application, then only the second bail application should be considered on merit.

For example, filing of charge sheet, examination of a substantial number of witnesses by court, etc., can be fresh grounds. While the mere fact of a few months having elapsed after rejection of bail application may not necessarily be a fresh ground for second bail application, there are cases in which this ground has been considered by the courts for granting bail when second bail application was filed after a few months of the first bail application. But, the fact remains that there is no specific time limit mentioned in law or judgments. It is a discretionary power which depends on the facts and circumstances of each individual case.

In any case, successive bail applications by an accused are not barred as there is nothing like a principle of res judicata operating in the field but there must be a substantial change in the fact situation for the court to entertain a subsequent bail application. Where there is no substantial change in fact situation thereafter necessitating release of accused on bail, order granting bail would be illegal.

In the case of Parvinder Singh v. State of Punjab, (2003) 12 SCC 615, the Supreme Court held that the fact that earlier bail applications had been rejected would not make the fresh bail application legally not maintainable. The Court can always consider fresh circumstances and subsequent events.

Likewise, in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : AIR 2004 SC 1866 : 2004 Cri LJ 1796, the Supreme Court held that though an accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.

And, in the case of State of M.P. v. Kajad, AIR 2001 SC 3317 : (2001) 7 SCC 673, it was held that it is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second bail application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law.

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

     

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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]

No confession recorded by police is admissible as evidence in the court.

Section 25 of the Evidence Act specifically states that no confession made to a police officer, shall be proved as against a person accused of any offence.

Likewise, Section 26 of this Act lays down that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

The only exception to this general rule is that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved [Section 27 of the Evidence Act].

Therefore, in the facts of your question, the video confession of the accused cannot be adduced in evidence since it is completely inadmissible.

     

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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]

No. If a contempt petition filed by petitioner is rejected by the court, the petitioner has no right to appeal against rejection of this contempt petition. However, he may file a Special Leave Petition (SLP) before the Supreme Court if such order of rejection was filed by the high court.

It is noteworthy that Section 19 of the Contempt of Courts Act, 1971, provides a right to appeal against an order or decision of High Court in the exercise of its jurisdiction to punish for contempt. However, the Supreme Court has held that this legal provision does not extend to giving a right to appeal where the high court rejects the prayer to initiate contempt proceedings on the basis of a contempt petition filed by a person. The Supreme Court held that this section gives right to appeal only when some person has been convicted of contempt.

It was held that so far as criminal contempt is concerned, it is a matter entirely between the Court and the alleged contemnor. No one has a statutory or common law right to say that he is entitled as a matter of course to an order for committal because the alleged contemnor is guilty of contempt. All that he can do is to move the Court and draw its attention to the contempt alleged to have been committed and it will then be for the court, if it so thinks fit, to take action to vindicate its authority and commit the alleged contemnor for contempt. It is for the Court in the exercise of its discretion to decide whether or not to initiate a proceeding for contempt. There is no right in anyone to compel the Court to initiate a proceeding for contempt even where a prime facie case appears to have been made out. The same position obtains even after a proceeding for contempt is initiated by the Court on a motion made to it for the purpose.

An outside party comes in only by way of drawing the attention of the Court to the contempt which has been committed; he does not become a part to the proceeding for contempt which may be initiated by the Court.

The Supreme Court held that where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not, therefore, fall within the opening words of S. 19, sub-section (1) of the Contempt of Courts Act, and no appeal would lie against it as of right under that provision.

But, the Supreme Court held that in such a case there is yet a remedy in the exercise of the extraordinary jurisdiction of the Supreme Court under Article 136 of the Constitution.

     

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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, if charge sheet has already been filed it is advisable to file discharge application before the trial court instead of filing an application before the high court to quash the criminal proceedings.

However, in your case, your are seeking quashing of the case not on merits but on the basis of the compromise arrived at with the complainant / victim of the case (i.e., your wife), therefore, it stands on a different footing and it may not be possible to get a discharge from the trial court. And in any case, a discharge has to be decided on the basis of the merits of the case and not on the basis of a compromise between the parties.

Moreover, offence under Section 498-A of the Indian Penal Code (IPC) is not compoundable. Therefore, the only option left with you would be to file an application under Section 482 of the Criminal Procedure Code before the high court for quashing of the criminal proceedings. In view of the fact that both parties to the case have compromised and also because the case is of a private nature (being a matrimonial case), there is a reasonably good chance that the high court will allow your application and quash and set aside the criminal proceedings arising out of the said offence.

     

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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]

It is not permissible to file two FIRs or complaints in the same cause of action or on the same allegations. Once an FIR in respect of a particular allegation has been quashed, it is not possible to file another FIR or complaint in the same matter.

So, carefully examine the contents and if the allegations are exactly the same, then you can file a petition before the high court for quashing of the complaint that has been filed on the same allegations on which the first FIR was quashed.

     

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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 power under Section 340 of the Criminal Procedure Code has been given to “any Court” in which any false evidence has been adduced during judicial proceedings. And, it includes even a civil court. The scheme of the law is that wherever any false evidence is adduced in a court (whether civil or criminal or otherwise), it has to make an inquiry under Section 340 Cr.P.C. with regard to that, record a finding to that effect (i.e., that false evidence has been adduced in the proceedings of that court) and then make a complaint thereof in writing and send the same to the Magistrate having jurisdiction to try such offence. In fact, Section 195(1)(b) of the Cr.P.C. specifically lays down cognizance of such offence of submitting false evidence cannot be taken unless a complaint is given by the court concerned, etc.

Therefore, it should be clear that the power under Section 340 of Cr.P.C. is available to all courts, including a civil court, wherein any false evidence has been adduced, even though the above provision is contained in Criminal Procedure Code.

Your lawyer may try to explain these provisions to the civil court where your case is pending. If that court refuses to pass an order or passes an order rejecting your request, you may challenge that before the appellate court where appeal / revision lies from the orders of that civil court (i.e., District 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, there are detailed instructions in this regard, as per which all possible care should be taken to ensure that husband and wife working in Government service are posted to the same station.

In fact, recently fresh instructions were issued by the Government of India, specifically referring to the utmost importance attached to the enhancement of women’s status in all walks of life and to enable them to lead a normal family life as also to ensure the education and welfare of the children, to ensure which guidelines were issued earlier by DOP&T in O.M No. 28034/7/86-Estt.(A) dated 3.4.86 and No.28034/2/97-Estt.(A) dated 12.6.97 for posting of husband and wife who are in Government service, at the same station.

In the new instructions issued vide Office Memorandum F. NO. 28034/9/2009-Estt.(A) dated the 30th September, 2009 by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), it has been highlighted that in the context of the need to make concerted efforts to increase representation of women in Central Government jobs, these guidelines have been reviewed to see whether the instructions could be made mandatory. It has been decided that when both spouses are in same Central Service or working in same Deptt. and if posts are available, they may mandatorily be posted at the same station.

The relevant part of the said guidelines which are applicable in your case are reproduced as under:

“(iii) Where the spouses belong to the same Central Service:

The Cadre controlling authority may post the spouses to the same station.

(iv) Where the spouse belongs to one Central Service and the other spouse belongs to another Central Service:-

The spouse with the longer service at a station may apply to his/her appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station to the nearest station where the post exists. In case that authority, after consideration of the request, is not in a position to accede to the request, on the basis of non-availability of vacant post, the spouse with lesser service may apply to the appropriate cadre authority accordingly, and that authority will consider such requests for posting the said officer to the station or if there is no post in that station to the nearest station where the post exists.”

Therefore, you or your wife can make request to the appropriate authority in accordance with these guidelines for being posted at the same station. If this request is not accepted, you may try to approach the next higher authority. If you do not get justice even after approaching the higher authority, you may approach the Central Administrative Tribunal (CAT) seeking a direction in this regard to the Government.

     

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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]

Look, you have mentioned that you have already fought against the department for last 3 years and have won the case in the first court and then in the appellate court also. So, it is not that you are fighting with the department for the first time. Have you seen any victimisation or harassment merely because you went to the court / tribunal against the department?

When the department is not complying with the order of the courts which was in your favour, what is your remedy if you do not file contempt of court against the officer responsible for not implementing the order? Generally, contempt petition is utilized for forcing implementation of the orders of the court, under the threat of the contempt. So, there is nothing unusual if you file the contempt petition against your boss. In fact, he should know that if he neglects to implement the court order, contempt would be one of the consequences. At the same time, if you feel that he is not aware of the orders of the court or that the juniors in the department are deliberately hiding the court orders from him, you may seek an appointment with him to apprise him about the court orders, or send him request letters, or send him formal notice of your intent to file a contempt petition in the appropriate court if the order is not implemented within a reasonable period of time, which you may specify in your notice. And, of course, you should wait for a reasonable period of time before you ultimately file a contempt petition in the court.

I may also point out that it is very rare that some officer of the Government is actually punished for contempt. In most of the cases, under the threat of the impending contempt of court, the order of the court is implemented due to which the contempt proceedings are thereafter dropped and nothing happens to the contemnor.

So, there is nothing unusual if you file a contempt petition to force your department to implement the court orders in your favour.

     

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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 relevant provision relating to the board meeting of a company is contained in Section 173(3) of the Companies Act, 2013, which is reproduced below:

“(3) A meeting of the Board shall be called by giving not less than seven days’ notice in writing to every director at his address registered with the company and such notice shall be sent by hand delivery or by post or by electronic means:

Provided that a meeting of the Board may be called at shorter notice to transact urgent business subject to the condition that at least one independent director, if any, shall be present at the meeting:

Provided further that in case of absence of independent directors from such a meeting of the Board, decisions taken at such a meeting shall be circulated to all the directors and shall be final only on ratification thereof by at least one independent director, if any.”

Thus, it is clear that normally a board meeting can be called by giving at least 7 days’ notice to all directors. However, there is a specific provision that in order to transact some urgent business, a board meeting can be called by giving a shorter notice. For such urgent meeting, no shorter notice period is specified, which means in appropriate situations, it may be one day or even on the same day also. It is pertinent to mention that the notice to the directors about the board meeting can be given also by electronic means, which may include email or SMS or WhatsApp message.

Accordingly, in urgent matters, a board meeting may be called at a short notice of one day, or in fact, may be on the same day 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]

The problem of delays in judicial proceedings is not unique to you. It is a universal problem in India. More than 3 crore cases are pending and there are less than 20,000 judges in all courts. Even though speedy trial has been declared to be a fundamental right, being a part of Article 21 of the Constitution, judicial delays are ubiquitous.

In this environment, it would be difficult to get a case expedited if other cases in the same court are facing similar delays. You may try to check the status of other cases in the same court where your case is pending. Chances are that other cases in that court may also be delayed in a similar manner.

At the same time, if you have some peculiar difficulties being faced by you, or if your case is extraordinarily delayed compared to other cases in the same court, then you may make request to the court to expedite your case citing your difficulties and hardships. Also ensure that there is no delay or adjournments sought at least from your side. If needed, you may approach the high court citing your right to speedy trial and requesting for an early disposal of the case. If you are lucky you may get some relief in the form of a direction for a time-bound completion of the trial, though sometimes such time limits are also not helpful in faster disposal of the case due to inherent problems in the judicial system.

     

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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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