Dr. Ashok Dhamija

Forum Replies Created

Viewing 15 posts - 1,471 through 1,485 (of 1,904 total)
  • Author
    Posts
  • in reply to: Can a case be filed directly in the Supreme Court? #1328

    An individual person can DIRECTLY file a case in the Supreme Court only for enforcemnt of his fundamental rights and such case can be filed in the form of a writ petition under Article 32 of the Constitution of India. In other situations (i.e., where there is no violation of the fundamental rights), it is not possible to file a direct case in Supreme Court and a person has to first approach the concerned court which has the jurisdiction for such matter.

    It may be noted that Article 32 of the Constitution, which gives a remedy to directly approach the Supreme Court to enforce the fundamental rights, is itself a fundamental right. This is important since a fundamental right cannot be abridged or repealed even by way of a constitutional amendment, if it is considered to be a basic feature of the Constitution. And, it is pertinent to mention that the right under Article 32 has been declared by the Supreme Court as a basic feature of the Constitution.

    However, this is only “theory” nowadays. In practice, for last about 30 years or so, the Supreme Court very rarely entertains a direction petition under Article 32 of the Constitution, even though this right itself is a fundamental right. Nowadays, the Supreme Court generally insists that the person concerned should first approach the high court, even if his fundamental right has been violated. So, nowadays, it is in very rare cases (such as in some PILs, for example, in issues of great public importance) that the Supreme Court will directly entertain a writ petition under Article 32.

    You have mentioned that your matter relates to issues of employment with the Government. It is not clear whether these issues also involve violation of the fundamental rights (such as, for example, right to equality under Article 14). But, even if a violation of fundamental right is involved in your personal matter, the SC may not entertain your writ petition under Article 32 directly. You may instead try to first approach the appropriate tribunal (such as Central Administrative Tribunal if you are Central Govt servant) or the other appropriate court having jurisdiction. Yes, it may involve delays, but there is little other option.

         


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

  • in reply to: Can a will be modified later? #1327

    Yes. A will can be modified later at any time by the maker of that will during his life time. It is the last will of the person concerned which is supreme and legally binding. So, a testator can make a new will at any time during life time.

    In this regard, Section 62 of the Indian Succession Act, 1925 is relevant, which states as under:

    62. Will may be revoked or altered.—A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.”

         


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

  • in reply to: False affidavit in election – what penalty? #1324

    Furnishing false information in an election affidavit is punishable under Section 125-A of the Representation of the People Act, 1951, and this section is reproduced below:

    125-A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected in an election,—

    (i) fails to furnish information relating to sub-section (1) of Section 33-A; or

    (ii) gives false information which he knows or has reason to believe to be false; or

    (iii) conceals any information,

    in his nomination paper delivered under sub-section (1) of Section 33 or in his affidavit which is required to be delivered under sub-section (2) of Section 33-A, as the case may be, shall notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.”

         


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

  • in reply to: Property own by parents can sell by a single son #1319

    Cannot comment on the facts of your case in the absence of having seen the detailed facts.

    But, generally speaking, it is not possible for a person to sell the property which is in the name of his mother, unless there is a power of attorney given to him by his mother.     


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

  • in reply to: When will cognizance be taken after charge sheet? #1318

    Cognizance of an offence is taken by the Magistrate after filing of charge sheet by police. It is done under Section 190 of the Criminal Procedure Code. The cognizance is generally taken immediately after the charge sheet is filed. Sometimes, it may take one or two dates after filing of charge sheet.

    After the court takes cognizance, it will issue summons to the accused persons. So, if you are the accused, and if you have not been summoned so far to the court, the court will send you summons after taking cognizance. You may wait for that.

    It appears that you have not been arrested so far in this case. If so, you need not do much at this stage now that the charge sheet has been filed and at this stage, it may not be useful to file even an anticipatory bail application. Better wait for the summons from the court. Therefore, either face the trial or file a discharge application.     


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

  • If any property (such as your car) which was stolen, has been seized by the police and if the case is still pending investigation, in that case an application can be made to the court of Judicial Magistrate (or Metropolitan Magistrate, as the case may be) under Section 457 of the Criminal Procedure Code for handing over possession of such property to the person entitled to the possession thereof.

    You may therefore apply to such court (which has jurisdiction over the police station concerned) along with proof of ownership of the car, such as the RC, etc.

    The Magistrate may give possession of your car to you on supurdgi or superdnama. The court may impose certain conditions, like not selling the case during the period of trial.     


    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.

  • Section 19 of the Prevention of Corruption Act, 1988, says that “No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction…”.

    Thus, there is a bar for taking cognizance by the court against a public servant for a corruption case punishable under above-mentioned sections of PC Act.

    The above provision applies to all public servants. There is no exception for a probationer, i.e., a public servant who is still under probation. He is also a public servant (though under probation). Therefore, a sanction would be required by CBI for his prosecution for a corruption case of taking bribe, which is generally registered under Sections 7 and 13(2) of the PC Act.     


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

  • in reply to: Some one falsely accused of criminal case #1309

    It is not possible to express any opinion on the evidence part, without actually seeing the evidence in detail. Please consult some lawyer by showing him all the evidence.     


    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.

  • As far as I understand, a character certificate is not given under any specific legal provisions. It is basically at the discretion of the person giving such certificate who gives us certificate on the basis of his personal knowledge. In view of this, you can approach the concerned officer and it is up to him to take a call in this regard.

    Moreover, it may also be pointed out that a person is supposed to be innocent until proven guilty. Pendency of a criminal trial does not mean that the person facing that trial is already guilty. However, depending upon the nature of the pending case, and also on the type of evidence available, others may draw their own subjective opinions.     


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

  • in reply to: Some one falsely accused of criminal case #1306

    If a Government servant is arrested and remains in custody for more than 48 hours (i.e. 2 days), then he or she is deemed to have been suspended automatically. Further, if a Government servant is convicted of an offence, then on the basis of the conduct that led to conviction, departmental action may be taken against him or her.

    Other than these, generally speaking, pendency of a criminal case of a private nature (i.e., between private parties, which does not involve corruption or misappropriation, etc.) should not come in the way of the Government servant’s 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.

  • in reply to: Untracted report #1302

    If the case is already closed, where is the need for getting the FIR quashed? Case closed means that the FIR and the subsequent investigation are now no more valid.

    Further, restrictions on foreign visits are placed as bail conditions after arrest. If the case is closed, that means the bail bond might have been dischraged. Please confirm that, and if it is so, then there are no restrictions on foreign travel. Even if the bail bond is still valid, you’ll have to see if there is any restriction on foreign travel imposed as per conditions for granting bail. If there is no such restriction, then you would be free to travel abroad.     


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

  • in reply to: Some one falsely accused of criminal case #1301

    Please see the answer to this question, which I think covers your question also:

    http://tilakmarg.com/forum/topic/pending-criminal-case-and-selection-in-civil-services-exam/     


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

  • in reply to: Untracted report #1298

    You have mentioned that the court had already accepted the report of closing the case. And, this happened 5 years back. The court has only given liberty only in case of further evidence being found. Now that 5 years’ period has lapsed after that, in a case of this nature (these are all minor offences, when compared with the type of offences that are investigated by police), nothing is likely to happen now. So, you can relax now. As the case is already closed (as you have mentioned), there may not be any need to approach the court again.     


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

  • in reply to: Cheque Dishonoured #1297

    Receiving calls on which issue? On payment of the cheque amount? If yes, simply tell them that you have already paid.

    If you have now paid the amount of the cheque which had bounced, then no case could be filed on the basis of that cheque; and, if such case is still filed, you can always furnish details to the court of your payment already made and get the case quashed.     


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

  • in reply to: About child custody #1293

    The answer to your question will need detailed examination of the facts, papers, and orders of the court. Please engage some lawyer if you have not done so already.

    Yes, you can challenge the order of the court before the higher court. Legally, there is no restriction on a second case under Section 498-A IPC if there is a fresh cause of action. Of course, you can obtain bail in the second case also, including anticipatory bail, if necessary.     


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

Viewing 15 posts - 1,471 through 1,485 (of 1,904 total)