[Dr. Ashok Dhamija]

Firstly, let me point out that the accused person is entitled to get a copy of the FIR registered against him on payment of the applicable legal fees. For this purpose, read my article: Does an accused have a right to get copy of the FIR registered by police?

In this regard, please also note that recently, the Supreme Court directed the states to upload FIRs on the website within 24 hours.

In view of these, you should be able to get a copy of the FIR, either from the police or download it from the Internet.

Let me also point out that in such type of cases (hitting on the body or the face), it would not be possible to get the case transferred to CBI.

At the same time, if you have some genuine grievance about improper investigation being made, you can meet the senior officers of police, such as the Superintendent of Police in the district or the DCP in the city (as the case may be). They may be requested to ensure proper investigation. If needed, you may request them to transfer the case to their local crime branch, etc., or to some other police officer.

Moreover, if you feel that there is no evidence against you, you can try to get the case quashed and for this purpose, you may have to approach the high court with a petition under Section 482 of Cr.P.C.

You can also try to give whatever evidence you have in your favour to the investigating officer or to the senior police officers, so that the investigation can be balanced. Try giving such evidence in a manner that you can have proof of having provided such evidence to them.

     

---

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]

From your question, it appears that the SLP is yet to be filed in the Supreme Court though it has been prepared. Since you have stated that you are not happy with the drafting of the SLP, I would suggest you to get it drafted properly through some good advocate. Usually, SLP is the last chance to undo injustice done at the lower levels of judiciary. This chance should not be lost casually. Once the SLP is rejected, either at the notice stage or after a detailed hearing (after grant of leave in SLP, thereby converting it into a regular civil appeal), the only remedy then available would be to file a review petition followed by a curative petition in the Supreme Court. But, my experience in the Supreme Court has been that the success rate of winning in a review petition or curative petition has been so negligent historically that the probability of success in such petitions would be almost zero. I have given detailed reasons for almost no chance in review petition or curative petition in my article: Success Rate of Review Petition and Curative Petition in Supreme Court. Please read it.

In view of these reasons, it would be advisable to put in the best possible efforts in the SLP stage itself. So, get it drafted properly if you are unhappy with the present drafting, as you have mentioned. Right now, the Supreme Court is having vacation and will be reopening on 3^rd July 2017. So, you have some time left to engage another advocate, if needed, and get it redrafted.

     

---

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 Supreme Court has held that identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court.

In this regard, some relevant observations of the Supreme Court in various cases decided by it can be summarised as below:

• The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses.
• The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity.
• The main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.
• The identification proceedings are in the nature of tests and there is no provision for it in the Criminal Procedure Code and the Evidence Act.
• It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.
• The substantive evidence is the evidence of identification in court. Test identification is only a corroborative evidence.
• Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of Supreme Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act.
• As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence.
• It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration.
• The identification parades belong to the stage of investigation, and there is no provision in the Cr.P.C. which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Cr.P.C.
• Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
• The absence of test identification in all cases is not fatal and if the accused person is well known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case.
• It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
• In a case, the Supreme Court upheld the conviction of the accused even when the witness while deposing in court did not identify the accused out of fear, though he had identified him in the test identification parade.
• It is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification test is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution.
• But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade.

These observations of the Supreme Court with regard to Test Identification Parade are general in nature and they have to be applied appropriately in the factual matrix of each individual case.

Replying to the second part of your question, it can be said that it may not be proper to convict an accused merely on the basis of a test identification parade since it is not considered as a substantive evidence and is only a corroborative piece of evidence. Generally, some other substantive evidence is needed to convict the accused, in addition to the identification tests.

     

---

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]

Merely because a Government servant has been sent on deputation from one state to another, does not mean that he is not subject to the rules of the parent state. In an appropriate case, the parent state can exercise its control over that government servant. From what you have mentioned in your limited facts, it appears that such government servant was suspended by the parent state government on the basis of some misconduct that perhaps occurred during the period when he was earlier working in the parent state. In such circumstances, it would be within the powers of the Government of the parent state to suspend him and initiate disciplinary action against him.

As an example, the judgment of the Supreme Court in the case of Khemi Ram v. State of Punjab, (1976) 3 SCC 699 : AIR 1976 SC 1737, may be seen.

     

---

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 anticipatory bail order has been passed as an interim measure (i.e., while the final order in the anticipatory bail application is still pending), then the anticipatory bail would be valid till such interim order specifically states.

But, if the anticipatory bail has been granted as a final order in the application filed for this purpose, then generally there is no time limit set for it unless the court has itself specified any particular time limit. Therefore, in such a case, the anticipatory bail would generally be applicable throughout the case.

Further, anticipatory bail does not mean that such person cannot be arrested at all. What it implies is that in the event of his arrest, he shall be released on bail as per the terms mentioned in the order of anticipatory bail. So, basically, it implies that while the person can still be arrested by police, he shall not be detained in custody and shall be released on bail as per the terms of the anticipatory bail. This is quite clear from the language used in Section 438 of the Criminal Procedure, which is the relevant provision for the grant of anticipatory bail.

In your case, the police can arrest that person, but as I mentioned above, such person (in whose favour the anticipatory bail order exists) will have to be released on bail after arrest in terms of the anticipatory bail order.

     

---

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 can file an Application for Restoration of your writ petition, giving detailed reasons as to why nobody was present in the court when the case was called out. If the court is satisfied with the reasons given by you, it may restore the writ petition which was dismissed for default.     

---

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 24-A of the Consumer Protection Act, 1986, the limitation period for filing a complaint before the District Forum is 2 years. The limitation period for filing complaint before the State Commission or the National Commission is also two years (if the complaint has to be filed before them due to the value of claim involved).

In view of this, in your case, the time period of one and half years is within the limitation period of 2 years, so you can still file your complaint before the District Forum.

Section 24-A of the Consumer Protection Act is reproduced below:

“24-A. Limitation period.—(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such 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.

[Dr. Ashok Dhamija]

As per the existing circulars of the Government of India, it is mandatory for a Government servant to take prior approval of the competent authority for going abroad even for a private visit. I have seen a circular which even says that a vigilance clearance may also be necessary for such prior approval, due to which the Government servants have been advised to submit the application for such prior approval for foreign visit at least one month in advance.

It is not sufficient to merely intimate the competent authority and then proceed to visit abroad. It is necessary to take prior permission of the competent authority for the foreign visit, even if it is a private visit and even if the leave was already sanctioned.

     

---

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, the Parliament and the State Legislatures have the power to make laws having retrospective operation (though it is generally avoided), except in those areas where there is a specific prohibition in the Constitution against retrospective operation of laws.

For example, clause (1) of Article 20 of the Constitution lays down as under:

“20. Protection in respect of conviction for offences.—(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”

In view of this provision, the Parliament or a State legislature cannot make a law which defines a new offence retrospectively or which enhances punishment for an existing offence retrospectively.

Other than the above, there is no prohibition in the Constitution restricting making of a law having retrospective operation. However, as I mentioned above, usually a law having retrospective operation is not made even though it may be permissible. It is done only in rare cases where it is essential due to some peculiar reasons, such as to explain or remove some difficulties or some loopholes in law. This is to ensure undue hardship is not caused to people.

     

---

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 to file a case in the Supreme Court through the power of attorney. You may have to file Special Leave Petition (SLP) against the decision of the high court. You will be advisable to execute a power of attorney in favour of the person concerned, specifically empowering / authorizing him to file a special leave petition in the Supreme Court in the specified matter on your behalf and giving all the related powers of signing vakalatnama, filing affidavit and signing other documents, etc.     

---

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 answer to your question is provided directly by Section 20 of the Arbitration and Conciliation Act, 1996, which is reproduced below:

“20. Place of arbitration.—(1) The parties are free to agree on the place of arbitration.

(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.”

     

---

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 India, it is not mandatory to register the will. Neither the Indian Succession Act, 1925 (wherein provisions relating to will are laid down) nor the Registration Act, 1908, makes it mandatory to register a will.

In fact, Section 18(e) of the Registration Act clearly says that registration of a will is optional. Therefore, an unregistered will is valid and lawful in India, provided other conditions as laid down in law are satisfied.

That said, if a will is registered (though it is optional), it gives extra legal evidence of its existence and genuineness. If registered, a copy of the will is retained with the Registrar office, which can then be used to prove the will, if needed.

     

---

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 to claim alimony / maintenance in a mutual divorce case.

Sections 24 and 25 of the Hindu Marriage Act, 1955, which deal with maintenance / alimony, do not make any exception in the case of mutual consent divorce case. These sections use the language “in any proceedings under this Act” and “Any court exercising jurisdiction under this Act”, respectively. These are wide provisions and do not exclude Section 13-B of the Act which deals mutual consent divorce.

Having said that, I may clarify that in a mutual consent divorce, usually the terms and conditions of divorce are negotiated between the parties before the filing of the mutual consent petition. Therefore, it is advisable to fix the terms relating to alimony / maintenance also during such negotiations.

     

---

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]

Firstly, this FIR is available online at this link (for the benefit of those who have not seen it). Accused No. 4 mentioned in the FIR is “Unknown officials of ICICI Bank Ltd.”.

Recently, in the case of CBI v. Ramesh Gelli, (2016) 3 SCC 788 : AIR 2016 SC 1063 : 2016 Cri LJ 1576, by interpreting the provisions of the Prevention of Corruption Act, 1988, and the Banking Regulation Act, 1949, the Supreme Court has held that employees / office-bearers of a private bank are also “public servants” for the purposes of Prevention of Corruption Act.

In view of this, the employees / office-bearers of ICICI Bank Ltd. would also be public servants for the purposes of corruption related offences. It may perhaps be due to this reason that the CBI has applied the sections of Prevention of Corruption Act in this FIR, since “Unknown officials of ICICI Bank Ltd.” are also named as accused persons in the FIR.

     

---

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]

From the limited facts mentioned by you (and in the absence of having seen your detailed documents), I can say that in the worst scenario, your case may be covered under the concept of adverse possession.

As per the provisions of the Limitation Act, 1963, limitation period for filing a suit for possession of immovable property based on title is 12 years. The longest period of limitation under Limitation Act in respect of an immovable property is 30 years for a mortgager to redeem or recover possession of immovable property mortgaged. That period has also expired in your case since you say that since 1965, you are occupying that property (if at all, such a claim was to be made). It is also laid down in the Limitation Act that on the expiry of the limitation period prescribed for instituting a suit for possession of any property, the right to such property is extinguished.

In these circumstances, it may not be possible for the successors of your grand father’s brother to institute a suit to recover the possession of the 20% area at such late stage, since you claim to be in peaceful and uncontested possession of the same for last about 52 years.

However, keep a proper record and all relevant documents ready with you to show the proof (if necessary, in future) that the building was constructed on the full area in 1965 (including on the extra 20% area) and that you / your family are in peaceful possession thereof since then.

As far as the payment of taxes is concerned, since the building is already in your name / possession, and the full area is also in your possession, I do not think the municipal / revenue authorities (as the case may be) will have any objection if you pay tax for the full area. If necessary, you may consult the concerned authorities.

What is being written here is on the basis of the limited facts mentioned by you. It may be advisable that you show all relevant papers / documents to a lawyer and discuss all relevant details with him for a detailed proper guidance.     

---

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.

[Author]

Posts