[Dr. Ashok Dhamija]

A decision of the Supreme Court or of a High Court can be reviewed in a Review Petition. Such review petition is filed before the same court, generally on very limited grounds, such as an error apparent on the face of the record. Courts generally do not unsettle a decision in a review petition, unless there is a strong case.

Article 137 of the Constitution provides that subject to provisions of any law and rule made under Article 145, the Supreme Court has the power to review any judgement pronounced or order made by it. Under Supreme Court Rules, 2013, such a petition needs to be filed within 30 days from the date of judgement or order. Under these rules, such a review petition can be submitted only on some limited grounds permissible under these rules, since a review petition is not like an appeal.

The review petition goes to the same bench of judges that delivered the judgement or order sought to be reviewed.

You can file a review petition subject to the above limitations. However, the chances of success in a review petition are very limited. Please also see: Success Rate of Review Petition and Curative Petition in Supreme 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]

Under the provisions of Section 138 of the Negotiable Instruments Act, one of the essential requirements for a cheque bounce case is that the cheque should have been issued for payment of money for the discharge, in whole or in part, of any debt or other liability. Moreover, the Explanation to Section 138 clarifies that “debt or other liability” means a legally enforceable debt or other liability.

In your situation, from the limited facts that you have mentioned, it appears that the cheque was given as an advance for the services to be rendered by your advocate. The services were yet to be rendered by the advocate. Therefore, in such situation, I think this cheque bounce may not be an offence under Section 138 of the Act. However, please remember that nobody can prevent the opposite party from filing the case in the court and taking a chance; and, moreover, there is a legal presumption under Section 139 of the Negotiable Instruments Act that it shall be presumed that the cheque was given for the discharge, in whole or in part, of any debt or other liability, unless the contrary is proved. Therefore, if such case is filed against you, then you’ll have to prove that it was given only as an advance and not for any actual services rendered and that therefore it was not for the discharge, in whole or in part, of any debt or other liability.

     

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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]

As per Section 138 of the Negotiable Instruments Act, the demand for the payment of the cheque amount has to be made “…within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid…”.

In the facts stated by you, you have received the information from the bank about dishonour of the cheque on 18.01.2017. Therefore, the period will be counted from 19.01.2017 (since the date of actual receipt will be excluded from this calculation). So, the period of 30 days gets completed on 17.02.2017. Since you have sent the notice for demand of payment on 15.02.2017, it is within the period of 30 days.

Therefore, your demand notice is within the period of 30 as prescribed under the 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]

Section 317 of the Criminal Procedure Code gives power to the court to exempt the personal appearance of the accused where the court is satisfied that the personal attendance of the accused before the Court is not necessary in the interests of justice, etc. Section 205 Cr.P.C. may also be relevant in this regard.

In the facts stated by you, it would perhaps have been in the interests of justice to dispense with your personal attendance in the court for the time being at least. In consultation with your lawyer, you may consider challenging the order of the Magistrate before the high court under Section 482 of the Cr.P.C., since no regular appeal / revision appears to be lying against such order, it being an interlocutory order.

Section 317 of the Cr.P.C. is reproduced as under:

“317. Provision for inquiries and trial being held in the absence of accused in certain cases.—(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.”

     

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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]

Since the charge sheet has already filed in the case, it is preferable and advisable to file a discharge application before the trial court. If this application is allowed by the trial court, the case against you would come to an end.

You can go to the high court for quashing of the criminal proceedings under Section 482 of the Cr.P.C., but the chances of success are comparatively much less, since the charge sheet has already been filed and the high court may ask you to approach the trial court first with a discharge application if you so wish. Since the charge sheet has been filed, which indicates the existence of a prima facie case, the high court is not expected to analyse and weigh the evidence at such early stage which is the work of the trial court and not of the high court at such early stage.

     

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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]

You have mentioned that you have already filed a petition for custody of your child. For getting visitation rights to meet your child during the pendency of your aforesaid petition, you will have to file an application under Section 12 of the Guardians and Wards Act, under which the court has the power to make orders with regard to temporary custody of the minor child and also relating to visitation rights to meet such minor child, and this section is as under:

“12. Power to make interlocutory order for production of minor and interim protection of person and property.— (1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

(2) If the minor is the female who ought not be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.

(3) Nothing in this section shall authorise—

(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or

(b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.”

So, in order to get visitation rights, you may have to file an application to court under Section 12 of the said Guardians and Wards Act, 1890. In most states, such application is filed before the Family Court. It may be possible for you to get visitation rights to meet your minor child once a week, though it depends on the court.

Please also the following similar reply: My wife denying me to meet my minor child, what to do?

     

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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]

Offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are non-compoundable. So, no compromise is possible directly or through the intervention of the trial court.

At the same time, as pointed out by me in respect of a similar question (The Protection of Civil Rights Act, 1955), if the other party is willing to compromise the case as it appears, you may file a petition / application before the concerned high court under Section 482 of the Cr.P.C. for quashing of the proceedings / FIR on the basis of such compromise. There is a reasonable chance that the high court may allow it to be quashed if the other party is willing to compromise, as such a case may be covered in the decision of the Supreme Court in the case of Gian Singh  v.  State of Punjab, (2012) 10 SCC 303 : AIR 2012 SC Supp 838 : 2012 Cri LJ 4934.

If a petition before the high court also does not help, then the only option left would be for the complainant and other witnesses to not support the prosecution case and inform during trial that they have compromised the case.

     

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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 the duty of the father to maintain his minor child. A specific legal obligation has been cast on him under Section 125 of the Criminal Procedure Code in this regard. Therefore, there is nothing wrong if an application is filed under Section 125 of the Cr.P.C. seeking maintenance for the minor child.

The facts mentioned by you in the question are the mitigating circumstances. You may mention all these facts in the reply to be submitted by you as a response to the application for maintenance.

While it may be true that your wife being an earning person cannot claim any maintenance from you for herself, since she can maintain herself. But, your minor child is not working anywhere and the child is not earning. So, the child can still ask for maintenance from you even if the child is living with your wife who is earning person. Of course, you can take a stand that you are willing to take care of the full expenses of the minor child if the child lives with you and also that you are more than willing to keep the child with you. However, whether the child should live with you or with your wife, is an entirely different issue, which has to be decided on various independent grounds (such as emotional needs of the child, for example), which are unconnected with the maintenance issue. But at the same time, suppose the child continues to live with your wife, you may still be asked by the court to contribute towards the maintenance of the child. Ultimately, it will depend on the discretion to be exercised by the Magistrate and a maintenance may still be ordered against you in favour of the child. However, while ordering the maintenance to be paid by you, the Magistrate will definitely take into consideration various mitigating circumstances mentioned by you, including higher income of your wife. So, in all likelihood, while the maintenance may be directed, the amount may be comparatively less (since your wife may also be contributing for child’s upkeep) in view of the specific facts of your case.

     

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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]

Once bail is granted to a person, it cannot be cancelled lightly without application of mind, even if it is default bail. There is no provision in Section 167 of the Criminal Procedure Code that if default bail has been granted under Section 167(2) due to non-submission of charge sheet by police within the stipulated prescribed period of time, it would be automatically cancelled or that the magistrate would be under obligation to cancel such bail in a mechanical manner. There is no such provision in law.

Even if bail has been granted not on merits, but on the basis of charge sheet not being submitted within prescribed time, it is like any other regular bail. Such default bail can also be cancelled only on the same considerations as is done in the case of a regular bail. It cannot be cancelled automatically on submission of charge sheet. Even such bail can also be cancelled on specific grounds, such as violation of the bail conditions, threatening or influencing the witnesses, destroying evidence or absconding from the process of law, etc.

     

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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]

Please do not write a blank question like this. This forum is only for asking questions relating to 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]

If the suspension period exceeds 6 months, then you may either file a representation before the Government for revocation of the suspension or go to the court or tribunal concerned for revocation of suspension. However, in a corruption case, the suspension may not get revoked easily and may be continued for longer durations. But, it all depends on the facts and circumstances of the case.

Bail after conviction is provided under Section 389 of Cr.P.C., by way of suspension of sentence. Legally there is no bar on bail after conviction even if the punishment is more than 3 years, but it all depends on facts of the case and discretion of the appellate court.

If there is a conviction in a corruption case, and if there is dismissal from service following such conviction, then the chances of getting back the service are very less till the conviction continues to be in existence. But, you can appeal against the conviction and if the appellate court sets aside the conviction, then you may perhaps get the service back though it is not necessary that it may always happen even in such a case.

     

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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]

Under the rules applicable to the Central Government employees, under the provisions of the Fundamental Rules – FR 53, a Government servant under suspension is not paid any pay but is allowed a subsistence allowance at an amount equivalent to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or half pay and in addition dearness allowance, if admissible on the basis of such leave salary. This means that the subsistence allowance is paid at the rate of 50%.

There are instructions in the same FR 53, that the subsistence allowance is required to be reviewed by the competent authority after 3 months of the suspension, and 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.

In your case, if no such review has been made after 3 months (you have mentioned 6 months have passed), then you can challenge the same before the Central Administrative Tribunal (CAT), or if you so wish, you may first represent to the competent authority to immediately comply with the above requirement of conducting review of the subsistence allowance after 3 months of suspension.

     

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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]

One of the mandatory conditions for a valid marriage under the provisions of the Hindu Marriage Act, 1955, is that the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage.

Further, where the bridegroom has not completed the age of 21 years or the bride has not completed the age of 18 years, their marriage would come within the meaning of a “child marriage” which is prohibited under the provisions of the Prohibition of Child Marriage Act, 2006.

So, whether you like or not, it is not possible for both of you to lawfully get married at this stage since you (being the boy) are only 20 years of age, which is less than 21 years – the minimum marriageable age for the boy.

     

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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]

Let me point out that arrest and detention under Section 151 of the Criminal Procedure Code is NOT punitive but preventive in nature. It is for preventing the commission of some crime which can otherwise be not prevented. So, it is not that you were arrested for the commission of a crime. It was only to prevent a future crime, which the police thought you were likely to commit. And, this may have been the subjective judgment of the police officer concerned.

In view of this, arrest (and detention) under Section 151 of the Cr.P.C. is considered less serious than an arrest and detention in respect of an actual crime which has already been committed.

So, generally speaking, an arrest under Section 151 Cr.P.C. several years ago should not come in the way of your getting a government job. At the same time, you must transparently give details of such arrest in the appropriate column (such as, “Whether you have ever been arrested?”) in the forms required to be filled up at the time of taking up employment in the government service. If you conceal this information, then in future you may have to face departmental action for concealing material information or misrepresenting the material facts.

     

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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]

Once a person is convicted of an offence, in appropriate cases, he may be released on bail under the provisions of Section 389 of the Criminal Procedure Code by way of suspension of his sentence awarded by the trial court, during the pendency of the appeal. If the sentence awarded to him by the trial court is not exceeding 3 years’ imprisonment, then even the trial court has power to grant him bail by suspending his sentence, during pendency of the appeal. If the sentence is more than 3 years, in that case the bail can be granted by the appellate court only.

So, it should be possible for your friend, who is convicted of an offence under Section 326 of the IPC to get bail after the conviction. He may have to apply before the appellate court, since it appears that the trial court has not granted him bail (otherwise, you would have not asked this question), may be perhaps since the sentence may be more than 3 years’ imprisonment (though you have not mentioned how much was the sentence awarded to him). Of course, depending upon the facts and circumstances of the case, it is up to the appellate court whether or not to grant him bail after conviction, by way of suspending his sentence. But, legally it is possible. There is no bar under 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.

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