Dr. Ashok Dhamija

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  • You have not specified about the category of the employee in respect of which you are asking this question.

    As far as employees of the Central Government and the Central Public Sector Undertakings (PSUs) are concerned, there is a specific provision in the CVC Manual that an officer who made the preliminary investigation or inquiry into the case should not be appointed as Presenting Officer. The relevant rule in the CVC Manual (of the Central Vigilance Commission) is reproduced below for your information:

    “7.21.8 Appointment of a Presenting Officer: The Disciplinary Authority which initiated the proceedings will also appoint simultaneously a Government servant or a legal practitioner as the Presenting Officer to present on its behalf the case in support of the articles of charge before the Inquiring Authority. Ordinarily a Government servant belonging to the Departmental set up who is conversant with the case will be appointed as the Presenting Officer except in cases involving complicated points of law where it may be considered desirable to appoint a legal practitioner to present the case on behalf of the Disciplinary Authority. An officer who made the preliminary investigation or inquiry into the case should not be appointed as Presenting Officer.”

         


    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.

  • Yes, it is possible for the High Court to grant a stay against the order of the Magistrate passed under Section 156(3) of the Criminal Procedure Code.

    As I mentioned in one of my previous answers (156(3) Cr.P.C. – whether revision possible before Sessions or other court), a revision petition can be filed against an order passed by the Magistrate under Section 156(3) of the Criminal Procedure Code before the Sessions Court or High Court. If such higher court is convinced about the merits of such revision petition, it may grant stay against the order of the Magistrate at the initial stage during the pendency of such revision petition. Of course, after the revision petition is finally heard, either the order of the Magistrate may be approved, or set aside or modified depending on the facts of the 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.

  • Firstly, it is not clear from your question as to under which Government or PSU, etc., your friend is working. The rules on suspension and the subsistence allowances may be different for different Governments / organizations. So, you may have to check the relevant rules which are applicable in the case of your friend.

    But, generally speaking, many states and PSUs have rules which are similar to the Central Government rules.

    As far as Central Government rules are concerned, I have explained the legal position with regard to the subsistence allowance in my previous answer, which can be seen at Subsistence allowance during suspension not increased after six months also.

    As per this, there are instructions in the Fundamental Rules – FR 53, that the subsistence allowance is required to be reviewed by the competent authority after 3 months of the suspension, and it may be increased by up to 50% of the allowance during the first 3 months (which means that now it can become 75%) or reduced by up to 50 % of the allowance during the first 3 months (which means now it can become 25%).

    Thus, what is required under the above rule is that a review must be conducted by the competent authority on completion of 3 months under suspension. However, it is not necessary that the subsistence allowance will always be increased after such review. It may be increased as above or may be kept intact at 50% or may even be reduced, depending upon facts and circumstances of the case (such as, for example, whether the suspended government servant is cooperating with the inquiry). Whatever may be the result of the review, it is mandatory to conduct the review even if the subsistence allowance is not changed after such review, but a formal review has to take place 3 months after the suspension and an order passed accordingly.

    So, if similar rules are applicable in the case of your friend and if no such review has been conducted to change the subsistence allowance even after 2 years, as you have mentioned, then your friend should request the competent authority to do this exercise immediately. If he does not get justice from the competent authority, he may approach the appropriate court or tribunal which has jurisdiction in the service matters of your friend (i.e., depending upon where your friend is posted).

         


    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.

  • You will have to file a Special Leave Petition (SLP) against the order of the High Court in a bail matter.

    The period of limitation for filing such SLP is 3 months from the date of order of the High Court. But, in appropriate cases, the Supreme Court has the power to condone the delay, for which you can file an application for condonation of delay along with the SLP, explaining the reasons for delay.

         


    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.

  • Your question is not quite clear as it is not understood what do you mean to ask. Anyway, let me try to answer it the way I understood your question.

    The general diary of a police station is usually in the form of a book that contains 100 blank pages. The general diary is continued in that book till all pages in it are exhausted. Once all 100 pages are full, a new general diary book is started.

    But, the general diary is otherwise maintained on day to day basis. This implies that usually the general diary will start with entry No. 1 at 12 am midnight for the new date. The subsequent entries in the general diary will be given sequential numbers, such as 2, 3, 4, etc., till the next date, till 12 am midnight when the new numbering from Entry No. 1 will start again for the new date.

    However, as I mentioned, the entries for the next date are also made in the same 100-page book till there are pages left in that book. Once a general diary book of 100 pages get completed, a new book is started. This process goes on.

         


    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.

  • As far as I understand, the General Diary or GD (also called, Station Diary, in some states) is a confidential document maintained in the police station. Generally speaking, you may not be allowed to get access to it or to read it.

    You may file an RTI application under the Right to Information Act for getting a copy of the General Diary of the police station concerned for a full date or for a specific GD entry. If you want to see a specific entry in the General Diary (and not the whole General Diary for a particular date), there are better chances of you getting it under RTI. Depending on the relevance of such information sought, police may refuse to give the information provided to you under clauses (g) and/or (h) of Section 8(1) of the Right to Information Act, 2005, which are as under:

    “(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

    (h) information which would impede the process of investigation or apprehension or prosecution of offenders;”

    However, if such information sought by you is not coming within the above restrictions, then the police may perhaps provide you the information relating to GD entry.

    If you ask for copy of the full day’s GD entries, the chances are that it may be refused under RTI. However, if you ask for a specific GD entry (more so, if it relates to you and not to third parties), there are better chances of getting copy of such specific GD entry.

    This is what is my understanding of the issues involved in your question. However, you may try seeking the information about GD entries, as desired.

         


    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.

  • The power of the Judicial Magistrate of First Class (JMFC) to grant maintenance allowance (to wife or other eligible persons such as child or parents who are unable to maintain themselves) is laid down in Section 125 of the Criminal Procedure Code (Cr.P.C.).

    The relevant extract of Section 125(1) of Cr.P.C. is as under:

    125. Order for maintenance of wives, children and parents.— (1) If any person having sufficient means neglects or refuses to maintain—

    (a) his wife, unable to maintain herself, or

    (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

    (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

    (d) his father or mother, unable to maintain himself or herself,

    a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: …”.

    This provision says that the Magistrate can pass order for monthly allowance for maintenance “at such monthly rate, as such Magistrate thinks fit”.

    It is pertinent to point out that prior to the year 2001, the words “not exceeding five hundred rupees in the whole” existed after the words “at such monthly rate”. Therefore, prior to the year 2001, there was a maximum limit of ₹ 500 for the maintenance allowance that could be allowed by the JMFC.

    However, by an amendment made to Section 125 in the year 2001, the aforesaid words “not exceeding five hundred rupees in the whole” were deleted.

    Therefore, now, there is no maximum limit on the amount of monthly maintenance allowance that can be ordered by the Magistrate (JMFC) under Section 125 Cr.P.C. It will depend on the facts and circumstances of each case and on the income and financial standards of the parties.

    You can also read in this regard: How is the amount of alimony or maintenance computed on divorce?

         


    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.

  • Firstly, please read: Execution of the decree of a consumer court – how to be done?

    As far as I understand if the surety is for the purpose of ensuring the presence of the accused who is on bail, then his property cannot be attached if the accused absconds. However, the bond of the surety may be forfeited and the surety bound by such bond may be called upon to pay the penalty thereof, and in case of a failure to do so, the surety may be ordered to imprisonment in civil jail for a term which may extend to six months; this is in accordance with Section 446 of the Cr.P.C. which is reproduced below.

    However, property of the accused himself, who is absconding, may be attached and sold in accordance with legal provisions.

    Section 446 of the Cr.P.C. is as under:

    446. Procedure when bond has been forfeited.— (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited,

    or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited,

    the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.

    Explanation.—A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.

    (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:

    Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.

    (3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part only.

    (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

    (5) Where any person who has furnished security under Section 106 or Section 117 or Section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under Section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.”

         


    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.

  • Let me explain the points raised by you with regard to the computation of assets, expenditure and income in a case of disproportionate assets under Section 13(1)(e) of the Prevention of Corruption Act, 1988.

    (1) Where a car has been taken on loan, the correct principle is to show the value of the car in the assets, the amount of loan taken in income, and the loan repaid so far (including interest, if any) in expenditure.

    (2) If the father of the public servant is himself in service, and if his assets are added to the assets of the son, then the income of the father is also required to be added to the income of the son. The same thing may apply to expenditure too. The reason in such a situation is that a combined comparative chart of income, expenditure and assets is prepared. This may become necessary in a case where the son is indulging in corruption and is suspected to have purchased assets in the name of his father who may himself be a public servant. If the father’s assets are disproportionate and it is suspected that the father himself was also indulging in corruption as a public servant, then sometimes, a separate case of disproportionate assets may be advisable against him, instead of clubbing together his details with those of the son.

    (3) If any benefit has been made available to the public servant under LIC policy, it should be taken as an income.

    (4) Generally, the non-verifiable expenses are calculated at one-third of the gross salary, but taxes paid such as Income Tax are usually deducted while doing this calculation. This principle evolved on the basis of the judgment of the Supreme Court in the case of State of Punjab v. Sajjan Singh, AIR 1964 SC 464, but the language used in this judgment is vague, as can be evident from the following extracts from this judgment:

    27. … The total amount received by the appellant throughout the period of his service has been shown to be slightly less than Rs 80,000. The appellant claimed to have received considerable amounts as travelling allowance as Overseer and SDO and also as horse and conveyance allowance.  …”.

    “29. The total receipts by the appellants from his known sources of income thus appear to be about Rs 1,03,000. If nothing out of this had to be spent for maintaining himself and his family during all these years from 1922 to 1952 there might have been ground for saying that the assets in the appellant’s possession, through himself or through his son (Rs 1,20,000) were not disproportionate to his known sources of income. One cannot however live on nothing; and however frugally the appellant may have lived it appears to us clear that at least Rs 100 per month must have been his average expenses throughout these years taking the years of high prices and low prices together. These expenses therefore cut out a big slice of over Rs 36,000 from what he received. The assets of Rs 1,20,000 have therefore to be compared with a net income of Rs 67,000. They are clearly disproportionate indeed highly disproportionate.”

    30. Mr Lall stressed the fact that the legislature had not chosen to indicate what proportion would be considered disproportionate and he argued on that basis that the Court should take a liberal view of the excess of the assets over the receipts from the known sources of income. There is some force in this argument. But taking the most liberal views we do not think it is possible for any reasonable man to say that assets to the extent of Rs 1,20,000 is anything but disproportionate to a net income of Rs 1,03,000 out of which at least Rs 36,000 must have been spent in living expenses.”

    Therefore, from the judgment, it appears that if his salary is considered as ₹ 80,000, then expenses of ₹ 36,000 is much more than one-third. Further, at one place the Supreme Court says that “total receipts by the appellants from his known sources of income thus appear to be about Rs 1,03,000”, and at another place the Court says “a net income of Rs 1,03,000”. But, here also, it is mentioned as “net income” or “total receipts”, which may include other incomes also (i.e., other than salary).

    So, keep all these issues in mind when you claim that one-third of net salary is required to be taken.

    [NOTE: Dr. Ashok Dhamija is the author of a comprehensive book on corruption, namely, Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa, 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.

  • As far as I understand, generally, no employer or authority would allow an employee coming late every day and going back early every day. If the employee has a genuine problem, he can speak to the authority concerned for permission to do so. But, if such permission (to come late and leave early, everyday) is not granted, then the employee cannot do so everyday. Action can definitely be taken against such employee in accordance with rules applicable.

    Generally, transfer of an employee may be inevitable sometimes if it is a large organisation, especially in Government. If you are working in Government sector, you can even file a petition challenging your unreasonable transfer in the appropriate tribunal or court. However, it may not be possible for the authority concerned to always keep you posted at one place itself. Of course, it may depend on the nature of the employer, and there are some organisations where the employee would never be transferred.

    But, suppose the employee has been transferred and he has no legal remedy left against such transfer, then he has to abide by the office rules. Any violation of the discipline rules may attract penalty or action, unless such violation is permitted by the authority concerned.

         


    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.

  • It is true that the Negotiable Instruments Act, 1881, is a Central Act which is applicable throughout India for a cheque dishonour case.

    However, States have their own separate Court Fee Acts which govern as to how much court fee is to be paid for a particular type of court proceeding or case.

    For example, Maharashtra has the Bombay Court-Fees Act, 1959, which lays down court fee rates for various types of proceedings in courts in Maharashtra.

    Likewise, in Tamil Nadu, there is a separate law, namely, the Tamil Nadu Court-fees and Suits Valuation Act, 1955, which governs the court fee rates in Tamil Nadu.

    Similarly, other states have their own court fee Acts.

    It is due to this reason that different states have different court fee for a cheque bounce case under Section 138 of the Negotiable Instruments 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. List of his YouTube Videos.

  • Under Section 7 of the Right to Information Act, 2005, the Central Public Information Officer or State Public Information Officer, as the case may be, is required to provide the information within thirty days of the receipt of the request. If the Central Public Information Officer or State Public Information Officer fails to give decision on the request for information within the said period of 30 days, he shall be deemed to have refused the request.

    Therefore, if the RTI information is not provided within 30 days, it shall be deemed that he has refused to provide the information requested.

    In such a situation, under Section 19 of the said Act, the applicant seeking information may, within 30 days days, file an appeal to the designated senior officer (who is senior in rank to the Central Public Information Officer or State Public Information Officer), i.e., the appellate authority, in such department from which the information was sought. However, such appeal may be admitted even after the expiry of the period of thirty days if the appellate authority is satisfied that the appellant / applicant was prevented by sufficient cause from filing the appeal in time.

    Further, there is also a provision for filing of a second appeal against the decision of the appellate authority. Such second appeal can be filed with the Central Information Commission or the State Information Commission, as the case may be. Such second appeal can be filed within 90 days from the date on which the decision should have been made or was actually received from the appellate authority. In appropriate cases, delay in filing the second appeal beyond the period of 90 can be condoned by the Central Information Commission or the State Information Commission, as the case may be, if it is satisfied that the appellant / applicant was prevented by sufficient cause from filing the appeal in time.

         


    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.

  • The limitation period for filing an appeal before the High Court against an order of acquittal passed by the Sessions Court is 90 days, generally. This applies for appeal filed by the State or by the victim.

    However, if the case was instituted on the basis of a complaint (i.e., a private complaint case), then the limitation period for filing such appeal is 60 days if such appeal is filed by the complainant (who may also sometimes be the victim).

         


    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.

  • in reply to: Where can appeal be filed in a compoundable summons trial case? #4922

    This is what is laid down in Section 2 of the Criminal Procedure Code:

    “(w) “summons case” means a case relating to an offence, and not being a warrant case;”

    “(x) “warrant case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;”

    A combined reading of the above two definitions shows that a summons case means a case relating to an offence where the imprisonment is less than or up to two years. These are comparatively minor offences.

    Trial of summons cases is conducted under Chapter 20 of the Cr.P.C. (Sections 251 to 259). This trial is conducted by Magistrates.

    Now, as per the provisions of Section 374 of the Cr.P.C., an appeal against the decision of the Magistrate in a trial can be filed in the Sessions Court.

    Therefore, appeal in a summons trial case can be filed before the Sessions Court, irrespective of whether or not such offence is a compoundable offence.

         


    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.

  • Where the application for grant of bail in an offence has been rejected by the High Court, you can immediately file a Special Leave Petition (SLP) in the Supreme Court challenging such order of the High Court.

    In fact, such SLP is required to be filed within a limitation period of 90 days from the date of order of the High Court (time actually taken for supply of certified copy of the High Court is excluded from this time period of 90 days). If you delay filing the SLP beyond this period of 90 days, then you may have to also file an application for condonation of delay along with the SLP. Then, it is up to the Supreme Court whether or not to condone the delay, depending on facts of the case.

    Thus, you have a right to file the SLP in Supreme Court immediately after rejection of bail application by the High Court.

    However, whether the Supreme Court would immediately grant bail in such SLP would depend on the facts and circumstances of each case. Every case is not similar. In most cases, the SLP may be dismissed on the first date itself without issuing notice to the respondents. Where a notice is issued by the Supreme Court in the SLP, even there generally it may take a few months to get the final order (notice is issued to respondents to file their reply and then hearing is conducted on merits); sometimes, it may take even years. It all depends on the facts of each case.

    Dacoity (under Section 395 IPC) is considered a serious offence. Therefore, chances of getting bail at an early date would generally be correspondingly less. However, as I mentioned above, it ultimately depends on facts of each 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.

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