[Dr. Ashok Dhamija]

A writ petition can be filed in India in the Supreme Court (under Article 32 for enforcement of fundamental rights) or in a high court (under Article 226 for enforcement of fundamental rights or other rights).

Now, there are basically two types of fundamental rights. Certain fundamental rights are guaranteed only to the citizens (for example, Article 19). On the other hand, certain other fundamental rights are guaranteed to all persons, irrespective of whether they are citizens or foreigners or legal persons like companies (for example, Article 21).

Where a fundamental right is guaranteed even to a foreigner, such as Article 21, definitely such foreigner would be in a position to file a writ petition either in high court or the Supreme Court for enforcement of his fundamental right. Otherwise, what is the meaning of having a right, and that too a fundamental right which is guaranteed in the Constitution itself, if there is no remedy to enforce such fundamental right?

Thus, it should be clear that a foreigner can file a writ petition in the high court or the Supreme Court for enforcement of his fundamental rights.

In addition, if a foreigner has been granted any other type of right either under the Constitution of India or under any other law / statute, then he may file a writ petition in the high court for enforcement of such right in appropriate cases wherever such writ may be possible.

But, of course, a foreigner cannot file a writ petition in respect of those rights which are guaranteed only to the citizens of India.

     

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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 323 of the Indian Penal Code punishes the act of voluntarily causing hurt.

Now, it is defined in the IPC that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Bodily pain can also be caused by a slapping on the face, for example, which may not leave any injury mark that can always be detected by a medical examination.

Therefore, the nature of hurt that may be punishable under Section 323 IPC may not be always of such a nature which may require medical examination. Oral evidence of the incident (such as of slapping a person) may also be sufficient to prove this charge.

Therefore, while it may be advantageous to have a medical report or certificate to prove a charge under Section 323 IPC, it is not mandatory to have such a medical certificate for proving such charge. It may also be proved by oral evidence of the witnesses.

     

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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]

Anticipatory bail is required to be taken from the court which has jurisdiction over the place where the offence took place. Since the offence is registered in Madhya Pradesh, you’ll have to approach the competent court in Madhya Pradesh and NOT in Mumbai where you live.

Anticipatory bail application can be filed either in the Sessions Court of the district where the offence took place or in the high court under which such district comes. So, file your anticipatory bail application preferably in the Sessions Court of the concerned district of Madhya Pradesh. If needed, you can later approach the Madhya Pradesh high court.

However, I may clarify that sometimes in some very urgent cases (when the police is about to arrest and there is imminent danger of arrest, leaving you with no time to approach courts of the other state), the high court at the place of your residence may also grant you anticipatory bail but that will be only for a temporary period of a few days and that is also to enable you to meanwhile approach the competent court of the state (where the offence took place) for getting a regular anticipatory bail. This is a sort of interim protection for a few days to enable you to approach the appropriate court in the state where the offence took place. But, this is only an exceptional step which is taken only in extreme and urgent cases. Normally, you have to approach the courts in the place where the offence took place and NOT where you reside.

     

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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 you feel that your name has been wrongly included as an accused person, in the charge sheet filed by the police, and also that there is no evidence to support the charge against you, then you can try to file a discharge application before the trial court. If successful, you may be discharged from the case and will not be prosecuted.

Since the police has already filed the charge sheet, it may not be possible for the police to remove your name from the charge sheet. You can apply to the court through the discharge application, as mentioned above, for this purpose.

Another option could be to approach the high court under Section 482 Cr.P.C. for quashing of the criminal proceedings against you, but the high court may not generally entertain such petition at this early stage and my instead ask you to approach the trial court with a discharge application.

Other than these, the only option would be to face the trial and get acquitted from the case by proving your innocence.

     

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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, a government employee has the right (as a citizen) to file an application under the RTI Act to get information from his own department where he is working. In fact, I have already replied to a similar question in the past and my reply is available at: Can a Government employee submit RTI application relating to his service records?

This reply may please be seen for more details.

     

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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 Section 7 of the National Highways Act, 1956, the Central Government has the power to make rules for collection of toll tax for use of sections of national highways and certain bridges, etc. In accordance with this, the Central Government has framed rules called the National Highways Fee (Determination of Rates and Collection) Rules, 2008.

Under Rule 14 of the said Rules, if the driver or owner etc. of a vehicle does not pay or refuses to pay any such toll tax, his vehicle shall not be allowed to use such section of the national highway, bridge, etc. And, if such vehicles obstructs normal flow of traffic, it can be removed from such section of the national highway, bridge, etc. Further if the driver of the vehicle refuses or fails to pay such toll tax, the same shall be recovered from the owner of the vehicle.

In appropriate cases, an offence under Section 188 of IPC (for disobedience of orders promulgated by public servant) may perhaps also be registered for refusal or non-payment of toll tax which has been duly notified. Certain other provisions of the IPC may also perhaps be attracted depending upon the nature of the acts involved.

     

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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, it is possible for the mother to file a domestic violence case against her own son and daughter-in-law (who are living with her). The provisions of the Protection of Women from Domestic Violence Act, 2005, are quite clear about this.

This Act defines “aggrieved person” to mean any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

Further, the expression “domestic relationship” used in the above definition has been defined in this Act to mean a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

It is pertinent to point out that the word “consanguinity” means blood relation.

From the above definitions, it is quite clear that a mother can be an aggrieved person under the above Act and she can file a complaint of domestic violence under the Act.

It is also pertinent to point out that recently the Supreme Court has ruled that a domestic violence complaint can also be filed against another woman [See this news report].

In view of these, it is possible for a mother to file a domestic violence case against her son and her daughter 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]

Your gherao by the workers is covered within the definition of “wrongful restraint” and “wrongful confinement”. These offences are punishable under Sections 341 and 342 of the Indian Penal Code (IPC). These are cognizable offences and police has the power to register FIR. You are entitled to give complaint to the police and get the FIR registered. It is not necessary that your MD should give the complaint. You, being the affected person, are entitled to give the complaint yourself. So, file a complaint under these sections.

     

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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 GST required to be paid on the services of renting residential accommodation.

There is a specific item with the heading of “Services by way of renting of residential dwelling for use as residence” mentioned in the list of services which are exempted from the GST, as per the list approved by the GST Council in its meeting dated 19 May 2017.

So, no GST is payable in respect of the services of renting out the residential house.

     

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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]

See the following two replies on similar questions:

• Change of date of birth in Government service 8 years after joining
• alteration in date of birth basis birth certificate issued by Registrar Birth

It is true that the autonomous bodies controlled by the Government can adopt their rules and their employees would be governed by their rules. But, there is no prohibition on such autonomous bodies to adopt the government rules or rules similar to the government rules. Generally, in fact, adoption of the government rules by such bodies may be beneficial to their employees since the government rules usually follow the basic principles of natural justice, they are in conformity with the laws, and they are framed after experience of several decades.

So while it is not mandatory that the government rules should be adopted by the autonomous bodies and they have some freedom to adopt their own rules, but generally they follow rules similar to the government rules, or at least the basic theme of such rules is similar.

There may be a difference in correction of date of birth in PAN Card, Driving Licence, etc., on the one hand, and the correction of date of birth in government service record of an employee, on the other. The date of birth entered in the service records of a civil servant is of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. If the date of birth is changed, then the retirement age will change, thereby affecting not only that government servant but also the government and other employees (who may benefit from timely retirement of seniors due to promotion opportunities).

The date of birth of an employee is mentioned in service record only on the basis of the birth date provide by the employee himself. Why did he give a wrong date in the beginning? It is not that no opportunity is given to the employee to change the date of birth subsequently in genuine cases of mistake. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded. But, it has to be within a reasonable period. This period has been kept at 5 years for government service [I am not aware about your organisation’s rules in this regard]. A balance has to be struck. A person who did not take care in the beginning at the time of joining service, and who slept for 5 long years thereafter also and did not apply for change of date of birth, may lose the right to change the date of birth. In any case, he is not being thrown out of the service; he will still be allowed to continue in service till he attains the retirement age as per the date of birth provided by him himself at the time of joining service and which date he did not challenge even within 5 years of joining. Every good thing has to end somewhere.

Please keep in mind that the concept of limitation period is applicable everywhere in law. For example, a case to recover loan given cannot be filed after 3 years even though the loan is genuinely given. It is policy of the law to provide a limitation period and help only those who do not sleep over their own rights for long period of time.

At the same time, if you have a case of a genuine mistake in your date of birth which came to your knowledge after long delay and if your organisation’s rules are vague or not specific, etc., then you may try to approach the court or tribunal which is competent to handle such matter.

Moreover, which particular document provides irrefutable evidence of correct date of birth will depend on the facts and circumstances of each case.

You should accordingly consult some lawyer by showing your relevant documents, the rules of your department, the RTI replies that you have received and obtain proper and full professional advice. It may not be possible for me to give any definitive opinion on the basis of such limited information in your question without seeing the detailed documents / rules, etc., of your organisation. This forum is for general guidance and general legal answers.

     

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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 353 IPC is using assault or criminal force to deter public servant from discharge of his duty. Both “assault” and “criminal force” have been defined in Indian Penal Code. A mere verbal argument would not come within the definition of these expressions. Further, to make out an offence under Section 353 IPC, such assault or criminal force must be with the intention to deter the public servant from discharging his duty, etc. In view of these reasons, mere heated verbal arguments may not be sufficient to make out an offence under Section 353 IPC.

Section 332 IPC makes punishable the act of voluntarily causing hurt to deter public servant from his duty. So, causing hurt is an essential ingredient of this offence. Therefore, just heated verbal arguments would not be an offence under Section 332 IPC 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]

In most of the cases, the complainant is generally the victim or his relative. And, the Proviso to Section 372 of the Criminal Procedure Code now lays down as under:

“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

Further, Section 2(wa) of Cr.P.C. defines “victim” as under:

“(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;”

Therefore, now a legal right has been given to a victim or his / her guardian or legal heir to file appeal against acquittal. So, if the complainant is also the victim or his guardian or legal heir (which is generally the case in most cases), then there is no problem and the complainant can file appeal against acquittal by Magistrate before the Sessions Court.

However, if the complainant is not a victim (or his guardian or legal heir), then he can file an appeal against the order of acquittal under the provisions of Section 378 of Cr.P.C., and sub-sections (4), (5) and (6) thereof are the relevant provisions, but this is a limited right to appeal against acquittal. Section 378 Cr.P.C. is as under:

“378. Appeal in case of acquittal.— (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),—

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, 2[the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal—

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).”

     

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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 prohibition in the Criminal Procedure Code to arrest a person from the court premises if his arrest is justifiable. Likewise, there is no prohibition that a person cannot be arrested when he is with his advocate. Of course, if the accused person is already in the court room and the Magistrate / Judge is also present in the court room, the police may not arrest the accused person from the court room without court’s permission. But, there is no restriction on arrest from within the court premises. In fact, it is not uncommon for the police to arrest a person from the court premises, more so when he has been absconding.     

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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 note that if a government servant remains in custody for more than 48 hours, then he is deemed to have been suspended automatically even if no formal order for his suspension has been issued. So, if your husband has spent more than 48 hours in custody, then even if a formal order of suspension has not yet been issued by the competent authority, he is deemed to have been suspended.

You may write to the department along with full facts and supporting documents to prove his custody for more than 48 hours. Also enclose the certified copy of the court order, if any, or the confirmation from police about his custody, if you have copy of that available with you.

Thereafter, you can file RTI application to the concerned authorities in the department of your husband to find out what action has been taken on your complaint / letter intimating them about custody of your husband for more than 48 hours.

As regards the fact of your husband getting fully salary, the fact remains that he will get a subsistence allowance instead of full salary once he is under suspension. From your question, it appears that the department may not be aware of his custody due to which the deemed suspension provision is yet to be applied to him. So, once he is considered to be under suspension (whether formally ordered, or deemed suspension), he will get subsistence allowance and not full salary.

     

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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 necessary that the complainant should file a protest petition when the police file a closure report or final report in the Magistrate court on completion of the investigation.

Moreover, whether or not action should be taken against the complainant for filing a false complaint, would depend more on the evidence to show that the complaint filed was a false one, and less on whether the complainant filed a protest petition.

However, since it is your own complaint and you have said that there is evidence of your family members to support the complaint, you may file a protest petition, if needed, if the police files a closure report. After all, it will strengthen your case directly or indirectly.

     

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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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