Dr. Ashok Dhamija

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  • in reply to: Offence under 498a, 307/34 IPC, 3/4 dowry prohibition act #285

    It depends under what provisions she has filed the private complaint in the court. If it is under Section 156(3) Cr.P.C., then that may be for directing the police to register FIR and conduct investigation. If the private complaint is filed under Section 190 Cr.P.C., then the court may directly take up cognizance and then she (i.e., complainant) will have to examine her witnesses before the court, in which case the case will have to be proved by her. In the second situation, it will be more difficult for her to prove her case.

    What you have mentioned is the evidence that you have on your side. Use this evidence as and when the need arises, whether during investigation or during court case. It is not possible to given any opinion on the evidence, unless one can go into details of the evidence of both sides. You should engage some local lawyer if you are not confident of conducting your own case and ask for his expert advice on issues in your mind by showing him detailed evidence.
         


    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.

  • in reply to: Offence under 498a, 307/34 IPC, 3/4 dowry prohibition act #283

    If the FIR is already registered by police, the case will be investigated by police. Depending upon the evidence, the case may be charge-sheeted or closed or it may be charge-sheeted only against some but not all accused. You may cooperate with police and show the evidence (that you may have) to prove your innocence. You’ll have to fight the case on merits. Many of such cases are ultimately compromised. So, you may consider that option also, preferably at the earlier stage itself.     


    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.

  • in reply to: 498A, 313, 323, 506, 504, 377, 34, 3, 4 #282

    Two FIRs for the same offence are not possible. But, during the investigation of the first FIR, if police finds that the complainant herself is the accused or that a different offence is made out (on the basis of evidence available) then it can file charge sheet against a different person (including the complainant, if necessary) and under different sections (such as 313 can be changed into 312). So, you should try that the relevant evidence comes on record during the investigation.

    Merely because the offence is registered in the city where the other party resides, does not mean that the police will be influenced by them. You have to try your best to cooperate with police and show whatever evidence you have with you to the police. If need be, approach the appropriate court at the appropriate stage. My suggestion would be to engage a good local lawyer, since it appears that you have too many doubts.     


    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.

  • in reply to: Is it necessary to register a copyright? #278

    Under the provisions of the Copyright Act, 1957, it is not mandatory to register copyright in any work. In fact, a careful reading of Section 13 of this Act shows that copyright may subsist even in an unpublished work in certain situations. Therefore, it is not necessary to register copyright in a work. It is optional.

    Thus, if you so wish, you can make an application for registration of your copyright in the Register of Copyrights in accordance with the provisions of Section 45 of the said Act. But, it is optional and not mandatory. If you do such registration, then such registration may be a prima facie evidence of the particulars entered in such Register, i.e., it may be a prima facie evidence of your copyright.

    However, if you don’t register your copyright in a work, you’ll have to provide some evidence to substantiate your claim of having copyright in that work if the need arises (such as in case of an infringement or a dispute).

    It goes without saying that if your copyright in infringed, even if it be unregistered, you can bring an action in accordance with the provisions of the Copyright Act against the person who has violated it. Of course, you’ll have to provide evidence of subsisting of your copyright in that work.
         


    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.

  • The penalty of removal from the central government service is not a bar for a future employment under the same government. Please note that Rule 11(xiii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which defines the penalty of “removal” itself clearly states this fact, as shown below:

    “(viii) removal from service which shall not be a disqualification for future employment under the Government;”

    Therefore, it should be clear that the penalty of “removal” from an earlier service under the Central Government is not a disqualification for future employment under the same Government and you can apply for another employment.

    However, please keep in mind that you may have to satisfy at the time of seeking the new employment as to why (and what grounds) you were removed from the earlier service. This is because this aspect may be relevant for showing your conduct and discipline in the previous service.
         


    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.

  • in reply to: 498A, 313, 323, 506, 504, 377, 34, 3, 4 #275

    You may have to file the complaint under Section 312 IPC if you want to file the complaint against the woman who aborted, provided other conditions of that section are satisfied. Section 312 IPC is reproduced below:

    312. Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
    Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.”

    It is clear from the Explanation attached to Section 312 (as above) that a “woman who causes herself to miscarry, is within the meaning of this section” which means that she can be punished under this section.
         


    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.

  • Yes, it is possible to file both civil and criminal cases in respect of defamation simultaneously. The civil case is for claiming damages for defamation. On the other hand, the criminal case (under Section 500 of IPC) is for taking action for the offence of defamation. Both are separate and action can be taken for both at the same time.

    Since offence under Section 500 IPC (for defamation) is a non-cognizable (NC) offence, therefore, the police does not have the power to register FIR in such case and it can only register an NC complaint but cannot investigate it, which appears to have been done in your case. You have to approach the Magistrate court with a private complaint if you want to take criminal action in respect of defamation.
         


    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.

  • Offence under Section 138 of the Negotiable Instruments Act is made out only after a cheque has bounced, i.e., when the cheque is presented in the bank and it is returned unpaid. Please read the article: Cheque bounce cases under Section 138 Negotiable Instruments Act Explained for details as to how this offence is defined and what are its ingredients.

    In your case, it appears that you still have blank cheques signed by the person to whom you have lent money and have not presented them to the bank. In this situation, the above offence is not made out. Unless you present these cheques in the bank and unless these are returned unpaid by the bank and other ingredients mentioned in Section 138 (see above article) are satisfied, the offence of cheque bouncing is not complete.

    If your opposite party has permitted you to present these cheque in the bank, then you may deposit them in the bank. If they are paid, then you get your amount. If they are returned unpaid, then you should follow the procedure mentioned in Section 138 (see above article) so as to take action against the other party under Section 138 of the above Act.
         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • Section 2(2) of the Hindu Marriage Act, 1955, states as under:

    “(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribes within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.”

    Therefore, the Hindu Marriage Act contains a specific provision laying down that this Act is not applicable to members of any Scheduled Tribe. However, power has been given to the Central Government to issue a notification in the official gazette for making the provisions of this Act applicable also to the members of Scheduled Tribes. In the absence of any such notification issued by the Central Government, by virtue of above Section 2(2), the provisions of the Hindu Marriage Act shall not be applicable to members of Scheduled Tribes (ST). I am not aware of any such notification having been issued by the Central Government. Therefore, it appears that the divorce petition of tribal people cannot be filed under the Hindu Marriage Act.

    As an example of this, please read the judgment of Himachal Pradesh high court in the case of Ms. Sushma alias Sunita Devi vs. Shri Vivek Rai, [FAO (HMA) No. 229 of 2014, decided on 16 October 2014] [read the judgment].

    Also see, the case of Sobha Hymavathi Devi v. Setti Gangadhara Swamy, (2005) 2 SCC 244 : AIR 2005 SC 800, in which the Supreme Court indirectly accepted the proposition that divorce was permissible as per the custom prevailing in the community in the facts of that case wherein both parties to the marriage were members of the same scheduled tribe.

    In the case of Surajmani Stella Kujur (Dr) v. Durga Charan Hansdah, (2001) 3 SCC 13, a similar observation is seen pointing out that the provisions of the Hindu Marriage Act are not applicable to members of scheduled tribes, in the absence of a notification, and that a valid custom may govern the field.
         


    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.

  • in reply to: Can divorce case run in two separate courts simultaneously? #263

    From the description given by you, it appears that your appeal against rejection of your divorce petition by lower court is pending in high court. At the same time, your wife has now filed for a divorce petition in the lower court. Thus, it appears that both of you are interested in divorce, though may be on different grounds. In these circumstances, it would be advisable to file a divorce petition by mutual consent, which can be decided much faster than a contested petition and in an amicable manner. If both parties agree for divorce by mutual consent, then after filing such petition by mutual consent, other two cases can be withdrawn.

    The second option is that either of you can agree to the petition filed by the opposite party (since both petitions ultimately want divorce) and get the decree of divorce passed, and thereafter withdraw the other pending petition. The terms of divorce can be decided mutually.     


    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.

  • in reply to: 498A, 313, 323, 506, 504, 377, 34, 3, 4 #262

    From the facts mentioned by you, it appears that the police has directly registered the FIR in city A on the basis of the complaint given by wife. When the complaint discloses cognizable offence, there is no need for Magistrate’s order.

    Whether to file FIR in city B or go to Magistrate court with private complaint? It will depend on facts. The FIR has to be lodged in the city where the offence took place. It cannot be filed in other city. However, if the police refuses to register the FIR, then you can approach the Magistrate court with private complaint.

    Investigation starts immediately on filing of FIR. It can continue even when mediation is going on, except when there is a stay on investigation from a higher court.

    One cannot answer the question of influencing investigation in general. It depends on the facts of a case. If you have evidence that someone is influencing investigation with money, you can approach higher police officers or the courts.

    Please engage some local lawyer so that you can get proper guidance on all your issues.
         


    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.

  • in reply to: CIVIL LAWS IN RAS EXAM #253

    There are several daily orders in these matters. However, what may perhaps be relevant to you is the order dated 29.07.2008 of the Supreme Court in SLP (Civil) Nos. 18272-76/2008, in which it was directed that:

    “Until further orders, it is directed that the vacancies to be filled up from amongst Ex-Servicemen shall not be filled up from amongst the persons belonging to the other categories.”

    Thereafter, the above SLPs have been converted into regular appeals as Civil Appeal No(s). 2049-2053/2011, and certain other writ petitions have also been tagged with them. From SC website, it appears that these matters were lasted listed on 4 September 2015. However, you may please contact your lawyer to get more details to find out that whether there is any subsequent change in the status of these cases.
         


    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.

  • in reply to: cyber case issue #252

    Since a movie which has not been released so far may have been copied or stolen from the computer of the producers, downloading such a movie may perhaps be covered under Section 66-B of the Information Technology Act, 2000, which is reproduced below:

    66-B. Punishment for dishonestly receiving stolen computer resource or communication device.—Whoever dishonestly receives or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both.”

    Here, it may be pointed out that “computer resource” is defined widely to cover “data” also (which, in turn, may perhaps cover a downloaded movie), as shown below:

    “(k) “computer resource” means computer, computer system, computer network, data, computer database or software;”

    In addition, Section 43(3) of the above Act lays down as under:

    43. Penalty and Compensation] for damage to computer, computer system, etc.—If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network,—
    ***
    (b) downloads, copies or extracts any data, computer database or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
    ***
    he shall be liable to pay damages by way of compensation to the person so affected.”

    It may be pointed out that an act committed under above Section 43 may also be punishable under Section 66 of the said Act if other ingredients are satisfied, the relevant extract of which is as under:

    66. Computer related offences.—If any person, dishonestly or fraudulently, does any act referred to in Section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.”

    In addition, downloading a movie illegally may also amount to violation of the relevant provisions of the Copyright Act, for which action may be taken under that Act.
         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: 498A, 313, 323, 506, 504, 377, 34, 3, 4 #201

    It is true that generally the law would favour the woman in matrimonial disputes. This is due to the reason that women have generally been suppressed. However, even though the law would generally favour the woman in matrimonial matters, it does not mean end of the road for a man. You can still fight the case on merits and get justice if you feel that you are the aggrieved party and have sufficient evidence to prove your innocence. How to prove your innocence – it will depend on the detailed facts of the case. You may keep all evidence in your favour ready and if need be, engage a good lawyer in your city and consult him.

    Nowadays, generally the courts have started taking a comparatively lenient stand in respect of relatives of the husband when the whole family of the husband is unnecessarily involved in a criminal case. This is more so, if some of the relatives are living abroad. While nobody can stop your wife from making allegations and filing FIR against relatives, it should be possible for you and your relatives (including female members of your family) to prove your innocence. You’ll have to fight the case in the courts and try your best to prove your innocence.

    If the SHO of the police station has not taken action on your complaint relating to abortion, you have the option of approaching the Magistrate court by filing a private complaint case or seeking direction to police to conduct investigation. If your complaint is genuine, you should be in a position to pursue it successfully.

    It should be possible for you to vacate the rental house. From the facts mentioned by you, there does not appear to be any legal hitch, such as stay from any court on this issue.

    Generally, in matrimonial matters, courts would suggest mediation. It is for the benefit of both parties if an amicable solution can be found. Otherwise, multiple litigations between the two parties may take a lot of time, energy, money from both sides, also leading to health issues. An amicable solution, at first instance, may appear to be difficult monetarily, but if you compare the long-term costs of multiple litigations, it may still be cheaper. Litigations continue for several years (sometimes for decades), with appeals, applications, revisions, and the like, from one court to another. However, mediation is not binding even if the courts have suggested it. But, if you don’t agree for mediation, then you should be ready to continue long-drawn litigations.

    If both parties cannot stay together, and also, if they do not agree to a divorce by mutual consent, then the only option is to file a divorce petition which would be opposed by the other party and continue with this litigation till logical conclusion. Normally, divorce by mutual consent is desirable and advisable instead of fighting the case for long durations.

    Generally, the right to stay in the shared house may be granted (see, section 17 of the Protection of Women from Domestic Violence Act, 2005, reproduced below). Right to claim ownership of the parental house may not be possible, generally speaking.

    17. Right to reside in a shared household.—(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
    (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.”

    Also see, Section 19 of the Protection of Women from Domestic Violence Act, 2005, which deals with “Residence orders”.

    If your parents, sister and brother-in-law were not staying with you and are not involved in the case, you can try for the quashing of the FIR as against them. Nowadays, the courts are generally sympathetic to these issues. Otherwise, even during police investigation, these facts can be shown and they may not be charge sheeted if there is no evidence against them.

    You don’t have to share your proof with me or any one else on this online forum. Please show your evidence to your local lawyer whom you have engaged for your case.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Prosecution of Judges #199

    Please note that the judges have been given protection in the matter of performance of their official judicial duties. It is true that the judges can also commit mistakes. This is clearly seen from a large number of judgments of lower courts which are reversed by the higher courts on regular basis. However, please remember that it is presumed that the judge applies his judicial mind and generally such application of mind may be in a subjective manner. He decides a case on the basis of his own analysis of the factual matrix of a case and the application of the existing provisions of law to those facts (and, also interpreting those laws in the light of the decided case law). While doing so, he may commit some mistakes. But, such mistakes of judgment can be corrected by the higher courts. However, a judge cannot be prosecuted merely because his judgment was reversed, even if his judgment was perverse and his reasoning was incorrect. But, in appropriate cases, if it is found that a judge has deliberately given a wrong judgment in a mala fide manner, or for some consideration or motive (such as bribe), suitable action may be taken against him under law either under the appropriate criminal law (such as the Prevention of Corruption Act) or under departmental proceedings, etc. There have been several cases where judges (in the lower judiciary) have been removed from their posts, or even have been prosecuted for corruption. There are instances when impeachment proceedings were initiated even against a sitting Supreme Court judge or a sitting High Court judge for removal from his post.

    However, as mentioned above, judges cannot be prosecuted or acted against merely on the grounds of mistakes of judgment, or because their judgments were wrong or were reversed by higher courts. The law provides protection to them in this regard.

    For example, Section 1 of the Judicial Officers Protection Act, 1850, provides as under:

    1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders.—No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction:
    Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.”

    Likewise, Section 3 of the Judges (Protection) Act, 1985, lays down as under:

    3. Additional protection to Judges.—(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.
    (2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.”

    Please note that there is a protection to the judges even for the words spoken by him while acting in the discharge of his duties.

    Please also note that even if an offence is allegedly committed by a judge during the discharge of his official duties, he cannot be prosecuted without first obtaining sanction for his prosecution from the competent authority as per the provisions of Section 197(1) of the Criminal Procedure Code (Cr.P.C.), which is reproduced below:

    197. Prosecution of Judges and public servants.— (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013—
    (a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
    (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: …”.

    It may be pertinent to point out that such protection is provided to the judges only while acting in the discharge of their official duty, such as while exercising judicial functions.
         


    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.

Viewing 15 posts - 1,891 through 1,905 (of 1,942 total)