[Dr. Ashok Dhamija]

If the investigation is still pending and charge sheet is yet to be filed, then basically both the things will mean the same. If you get the FIR quashed, the criminal proceedings on the basis of such FIR will also get quashed or get over since FIR is the starting point. On the other hand, if the criminal proceedings are quashed, that also means that now the FIR is of no meaning since no proceedings are pending now.

If the charge sheet has already been filed then it may be advisable to seek quashing of the criminal proceedings resulting out of such charge sheet. In such situation, you may even formally pray for quashing of the charge sheet also, along with the criminal proceedings.

In fact, if the FIR is still under investigation, you may make a prayer something like this: “…the FIR No. **** of **** Police Station may please be quashed along with the quashing of the consequent criminal proceedings…”.

     

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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 general rule under Section 14 of the Hindu Marriage Act is that the court cannot entertain any petition for divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage. However, under the Proviso to this Section, the Court has been empowered to allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, if an application is made to the court in accordance with such rules as may be made by the High Court in that behalf.

So, you’ll have to check if any such rules have been made by the high court of your area and then in accordance with such rules, you may have to file the application showing as to how this case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. If these conditions are met, then it may be legally possible for the court to accept the petition for divorce even before the completion of one year from the date of marriage.

Otherwise, as mentioned above, the divorce petition cannot be presented to the court before completion of one year from the date of marriage.

Section 14 of the Hindu Marriage Act is reproduced below:

“14. No petition for divorce to be presented within one year of marriage.—(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage :

Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”

 

     

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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 11 of the Consumer Protection Act, 1985, while considering the pecuniary jurisdiction of the District Forum, the value of the goods or services AND the compensation, if any, claimed, have to be considered together, and the total of these two should not be more than Rs. 20 lakh.

In your case, if the value of the flat is Rs. 18 lakh and the compensation claimed is Rs. 2 lakh, then the total becomes Rs. 20 lakh. If this is only amount demanded by you, then it would be within the jurisdiction of the District Forum. But, if you demanded refund of the value of flat (Rs. 18 lakh) + INTEREST + compensation (Rs. 2 lakh), then the total becomes more than Rs. 20 lakh, where the State Consumer Forum will have the jurisdiction and not the District Forum.

     

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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, both these proceedings are possible under law. One is to punish for the criminal offence of Section 138 of the Negotiable Instruments Act for dishonour of the cheque. And, the other is to recover the amount of debt due from the party. These are for different purposes.

In fact, in the case of D. Purushotama Reddy v. K. Sateesh, (2008) 8 SCC 505, the Supreme Court has held that:

“A suit for recovery of money due from a borrower indisputably is maintainable at the instance of the creditor. It is furthermore beyond any doubt or dispute that for the same cause of action a complaint petition under terms of Section 138 of the Act would also be maintainable.”

However, the Supreme Court further observed that:

“In terms of sub-section (1) of Section 357 of the Code, a criminal court is empowered to direct that out of the amount recovered from an accused by way of fine, compensation of a specified amount may be directed to be paid for any loss or injury caused by the offence, when compensation is, in the opinion of the court, recoverable by a person in a civil court. It is, therefore, evident that the amount of compensation could have been directed to be paid by the criminal court as the same was recoverable by the respondent as against the appellants in a civil court also. Such an order can also be passed by the appellate court or by the High Court or by the Court of Session when exercising its power of revision.”

“Evidently, a duty has been cast upon the civil courts to take into account the sum paid or recovered as compensation in terms of Section 357 of the Code.”

I may point out that, thus, while both the proceedings are possible (i.e., cheque bounce case under Section 138 as well as civil suit for recovery of money due), generally in practice only Section 138 case is filed by most people since this is a faster way of getting justice and also since if this case succeeds then generally the court will award fine / compensation equivalent to the amount of the cheque, which will obviate the need for filing of the civil suit for recovery of money.

     

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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 may first try to convince your maid servant and her family against such child marriage. If they do not listen to you, and if need be, you can file a complaint before the court of the Judicial Magistrate of First Class or the Metropolitan Magistrate (as the case may be) under Section 13 of the Prohibition of Child Marriage Act, 2006. Under this Section 13, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, if a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage. A complaint under this Section may be made by any person having personal knowledge or reason to believe, and a non-governmental organisation having reasonable information, relating to the likelihood of taking place of solemnisation of a child marriage or child marriages.

It may be noted that any child marriage solemnised in contravention of an injunction order issued under Section 13, whether interim or final, shall be void ab initio.

Further, Whoever knowing that an injunction has been issued under Section 13 against him disobeys such injunction shall be punishable with imprisonment up to two years or with fine which may extend to one lakh rupees or with both (however, no woman shall be punishable with imprisonment).

It is also noteworthy that under Section 11 of this Act, where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees (however, no woman shall be punishable with imprisonment).

And, under Section 10 of the Act, whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

     

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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 may be difficult for you to succeed in the defamation case under Section 500 IPC against your wife in the face of the facts stated by you.

Defamation is defined under Section 499 of the IPC.

As per the 8^th Exception to Section 499 IPC, the allegation made by your wife in a divorce proceeding before the competent court may be protected from being a defamation; so it may not amount to defamation in law. Only thing that may have to be seen is whether she made such accusation against you in good faith to win her case or with the mala fide intention of defaming you. In view of this, your chances of success in such a case are not very bright. This Exception is reproduced below (please also see the Illustration given below this Exception):

“Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Illustration

If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, a child, to Z’s father—A is within this exception.”

 

     

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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 Court of Small Causes, Mumbai has exclusive Jurisdiction under Section 28 of the Bombay Rents, Hotel and Lodgings House Rates Control Act, 1947 irrespective of value of the subject matter and as such, hears all the suits under the said Act in Greater Mumbai.

An Appeal or Revision from a decision of a Judge under the Bombay Rent Control Act, 1947 is heard by a Bench consisting of the two Judges of the same Small Causes Court under Section 29 of the Mumbai Rents, Hotel and Lodgings House Rates Control Act, 1947.

This Small Causes Court has also exclusive jurisdiction in the matters under the Maharashtra Rent Control Act-1999 which came into force with effect from 31 March, 2000. Under Section 34 of the Maharashtra Rent Control Act, 1999, an appeal shall lie in Mumbai from a decree or order made by the Court of Small Causes Mumbai, exercising jurisdiction under section 33, to a bench of two Judges of the said Court which shall not include the Judge who made such decree or order.

     

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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, it is not necessary under law to have a written agreement with your commissioned agent or with any person, for that matter. As per the provisions of the Contract Act, a contract or agreement may be written or unwritten. In fact, the contract may be implied also, which means a contract may be inferred from the circumstances or conduct of the parties even if there was no formal contract (whether written or unwritten).

So, the law does not make it mandatory to have a written agreement or contract. It is up to you if you want to have a formal written contract, mentioning all necessary details to avoid any future complications. Choice is yours. If you have good understanding with the person concerned, you may deal with him without a formal written agreement. At the same time, if you want, you can have a written agreement with him. Just keep in mind that sometimes it may be advisable to have a written agreement with all necessary terms and conditions if you want to avoid any future confusion. But, as I mentioned above, it is the choice of the parties concerned.

     

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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 main problem with the judicial system in India is that there is a large pendency of cases and the number of judges required to dispose of these case is not sufficient. Due to this a large number of cases remain pending for long periods of time. The problem that is being faced by you is also faced by most of the litigants who all want to expedite their cases. So, while you can try to get your case expedited, it will ultimately depend on the pendency before the court where your case is pending. It is not always necessary that the court will be able to expedite your case on your request.

At the same time, if you have some peculiar difficulties and hardships being faced by you, you can bring the same to the notice of the court with the request to expedite your case.

In an exceptional situation, you may also try to approach the high court of your state under section 482 of the Criminal Procedure Code with the request to direct the concerned Court to expedite your case and complete it in a time bound manner. Though the High Court may not always agree to entertain such application, if it does so it may give a direction to the concerned Court to complete your case in a time bound manner. Of course approaching the high court will entail further expenses.

     

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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 main conditions imposed on grant of bail is that the accused on bail will not threaten the witnesses. In this case, you have said that the accused is trying to threaten you to force you for compromising the case. If you have evidence of such threats, then it may become a fit case for cancellation of bail granted to the accused.

Yes, you as a victim (and, it appears that you are also the complainant) can file an application before the court which granted the bail, for cancellation of bail. You may engage a private advocate for this purpose. You’ll also have to make the State also a party (through the police station concerned).

At the same time, it may be advisable to convince the police to file such an application since that may perhaps carry more weight. If the local police station is not helping you in this regard, you can complain to the senior officers of police.

     

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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 the offence under Section 337 IPC is a bailable offence wherein bail is a matter of right under Section 436 of the Cr.P.C.

Anticipatory bail can be granted only in a non-bailable offence, and Section 337 IPC is not a non-bailable offence where you would need the anticipatory bail.

So, there is no need to worry for anticipatory bail, since being a bailable offence the police will grant you bail after arrest in this case, if at all they decide to arrest you.

For more information, please also see: Where and how can I file anticipatory bail application?

The case against you under Section 337 IPC appears to be a weak case in view of the facts of your case. If you want to file application for quashing of the case (though generally the courts do not agree to quash a case in the initial stage itself), then you’ll have to approach the high court of your state under Section 482 Cr.P.C. Engage a local lawyer for this purpose.

     

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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 present Rule of the Central Board of Secondary Education (CBSE) regarding Correction in spelling of name or surname etc. lays down as under:

Correction in name to the extent of correction in spelling errors, factual typographical errors in the Candidate’s name / Surname, Father’s name / Mother’s name or Guardian’s name to make it consistent with what is given in the school record or list of candidates (LOC) submitted by the school may be made.

Application for correction in name of the Candidate /Father’s /Mother’s / Guardian’s name will be considered by the CBSE only within one year of the date of declaration of result provided the application of the candidate is forwarded by the Head of Institution along with the following attested documents:

(1) True Copy of Admission form(s) filled in by the parents at the time of admission duly attested by the Head of the concerned institution.

(2) True Copy of the School Leaving Certificate of the previous school submitted by the parents of the candidate at the time of admission duly attested by the Head of the concerned institution.

(3) True copy of the portion of the page of admission and withdrawal register of the school where the entry has been made in respect of the candidate, duly attested by the Head of the concerned institution.

Further, the CBSE Rule relating to Change in name of the candidate is as under:

Applications regarding changes in name or surname of candidates may be considered, provided the changes have been admitted by the Court of law and notified in the Government Gazette before the publication of the result of the candidate.

So, please make the necessary application in accordance with these rules.

     

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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]

This means that the cheque has not been cleared or honoured by the bank and it has been returned unpaid by the bank with the Code No. 12 of Drawer’s signature differs. Please read this article, where all these codes are explained: Complete list of reasons for which a cheque can be returned unpaid by a bank.

Code No. 12 – Drawer’s signature differs – implies that the signature of the drawer of the cheque (i.e., the person who has given you the cheque) does not match with his signature which is on the record of the bank. Due to difference in signatures, the bank did not pass the cheque in your favour.

So, you should contact the drawer of the cheque and ask him to give you another cheque with proper signatures. And, if you feel that the drawer has deliberately given a cheque with different signatures, then you should issue him a legal notice for cheque bounce.

     

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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 outer limit mentioned in the law for the number of cases in which a person can stand surety for a single accused or for more than one accused for the grant of bail to him / them.

However, it appears that the intention of the law is that a person should not stand surety for a large number of accused persons, since every surety is required to make a declaration under Section 441-A of the Cr.P.C. before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars:

“441-A. Declaration by sureties.— Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.”

In this regard, Section 441(4) of Cr.P.C. is also relevant, which lays down as under:

“(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.”

This shows that the court can conduct an inquiry to ascertain whether a surety is fit or sufficient. This implies that if a person has stood surety for a large number of accused persons, he may not be found fit or sufficient for standing surety for further accused persons.

In fact, even the solvency of a person may also be in question if he stands surety for many accused persons or in many cases for the same accused person.

Thus, while the law does not lay down any specific outer limit on the number of accused persons (or the number of cases for a single accused) for whom a person can stand surety, the above factors may be considered to ascertain whether a surety is fit or sufficient. Therefore, standing surety for a large number of cases for a single accused or for a large number of different accused persons may not be acceptable.

     

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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]

At the outset, let me point out that a crime is considered to be a wrong against the State as a whole, even though the victim of a crime may be a single private individual. Therefore, the general principle is that the prosecution of criminal cases is conducted by the State through its Government advocates, who are called public prosecutors, and not by private advocates.

This is more so true in respect of those cases in which police has registered FIR and has submitted charge sheet in the competent court. In such cases, generally speaking, the prosecution is to be conducted by the public prosecutors.

However, if a particular criminal case has been instituted on the basis of a private complaint which has been filed directly in the court (and NOT through the police), in such cases, generally speaking, a private advocate may conduct the case on behalf of the private complainant against the accused.

Having said that there are certain provisions in the Criminal Procedure Code that allow private advocates to assist the public prosecutors, with the permission of the court. There are various provisions in the Criminal Procedure Code on this issue, which need to be explained.

Firstly, Section 225 of the Cr.P.C. unequivocally mentions that a trial before a Sessions Court must be conducted by a Public Prosecutor. Therefore, such trial cannot be conducted by a private advocate.

“225. Trial to be conducted by Public Prosecutor.— In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.”

Then, Section 302 of the Cr.P.C. says that permission may be granted to a person to conduct the prosecution by a Magistrate, who may do so personally or by an advocate. However, the public prosecutor (PP) or Assistant PP can conduct the prosecution without permission. It is noteworthy that this section mentions only the “Magistrate” and it does not cover a trial before the Court of Session. This section is as under:

“302. Permission to conduct prosecution.—(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.”

But, in this regard, Section 301 Cr.P.C. is also quite relevant. It speaks about the PP or the APP appearing in a case without any written authority. And, it further says that if in any such case any private person engages an advocate to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the private advocate shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. Therefore, the private advocate can only assist in the prosecution. Please mark that this section uses the word “Court” and is not confined merely to the Magistrate court, and it may cover even a Court of Session. This implies that even in a Sessions Court, a private advocate may be engaged but he can only assist the public prosecutor and submit written arguments towards the end of the case. This section is as under:

“301. Appearance by Public Prosecutors.—(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.”

I may further point out that recently there was an amendment to Section 24 of the Cr.P.C., which deals with the appointment of public prosecutors. As per this amendment, the Court may permit the victim to engage an advocate of this choice to assist the prosecution. The relevant part of Section 24, namely, sub-section (8) is reproduced as under:

“(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:

Provided that the Court may permit the victim to engage an advocate of this choice to assist the prosecution under this sub-section.”

So, generally speaking, the trial is to be conducted by a public prosecutor or the assistant public prosecutor, and a private advocate can only assist in the prosecution as mentioned above.

     

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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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