[Dr. Ashok Dhamija]

If a revision application has already been dismissed by the Sessions Court against an order passed by the Magistrate, then such order of the Sessions Court can be challenged before the High Court by way of a petition under Section 482 of the Criminal Procedure Code read with Article 227 of the Constitution.

     

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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]

Limitation period for taking cognizance of an offence which is to be reported to the Cyber Crime Cell is based on the same legal principle which lays down limitation for taking cognizance of other offences. There is no separate rule in this regard.

As per Section 468 of the Criminal Procedure Code, the period of limitation shall be—

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

And, there is no limitation period if the offence is punishable with imprisonment for a term exceeding 3 years.

Most of the cyber offences (i.e., offences defined under the Information Technology Act, 2000) are punishable with an imprisonment which may extend to 3 years. For these offences, the limitation period for taking cognizance would be 3 years.

On the other hand, there are certain offences under the IT Act, 2000, for which the maximum punishment can be more than 3 years. There shall be no limitation period for these offences, though the delay may have to be explained if the case is filed after considerable delay.

     

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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 way is to bring such false information to the notice of the President (i.e., the concerned department / ministry) so that administrative or departmental action can be taken against the financial institution under the relevant rules / regulations.

Secondly, there is an offence under Section 182 of IPC ["False information, with intent to cause public servant to use his lawful power to the injury of another person"] which might perhaps have been committed while giving such false information, depending on detailed facts of your case. Because this is a non-cognizable offence, its report can be lodged in the Magistrate court in the form of a private complaint.

     

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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 125(3) of the Cr.P.C., detention for a maximum period of one month is by way of “sentence”, i.e., it is a “punishment”, as this legal provision itself states (even if the order mentions that the person may be released if the payment is made sooner).

On the other hand, civil prison mentioned in the Civil Procedure Code is as a part of the execution proceedings, in order to recover the amount, and not as a sentence.

Therefore, in my considered view, these two provisions are of different nature. Detention under the Criminal Procedure Code has to be dealt with under the provisions of this Code alone, unless otherwise specified.

     

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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]

I have already explained in my previous two answers (see, here and here) that while exercising powers under Section 149 of the Cr.P.C., the police is acting NOT on the basis of any cognizable offence actually committed already, but in order to PREVENT a future cognizable offence.

Therefore, action under Section 149 Cr.P.C. is not for an offence. As such, it is not a record of any FIR filed against you.

At the same time, if complainant (who gave report against you to the police) has himself accepted the fact that he had given a false report to police against you, you can bring this fact to the notice to the police and the matter against you can then be closed. This is the easiest way to remove your name from the records.

Defamation (as defined under Section 499 of IPC) has a complicated detailed definition, with several explanations and exceptions. But, generally speaking, if a person makes any imputation or accusation concerning somebody intending to harm the reputation of such person, it may amount to defamation, punishable under Section 500 IPC, subject to certain exceptions. Therefore, the offence of defamation may be possible against the complainant, depending on detailed facts of your case (i.e., whether it falls within any exceptions, etc.).

At the same time, there is another offence under Section 182 of IPC ["False information, with intent to cause public servant to use his lawful power to the injury of another person"] which might have been committed in the present matter (may be some other offences under IPC too, relating to giving of false information, false evidence, etc., depending on detailed facts of your case).

However, Section 500 IPC as well as Section 182 IPC, both are non-cognizable offences, which means you’ll have to file a private complaint case in the court and police does not have power to register FIR in these offences.

     

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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]

Firstly, please note that application under Section 156(3) of the Criminal Procedure Code is required to be filed in the Magistrate court having jurisdiction over the area, and not in the district court.

Secondly, I doubt whether the court will accept such application sent by speedpost. Usually, the courts are governed by strict rules and work in formal ways. They have many technicalities which are required to be complied with. Even if you file some application by going to the court in person, they would accept that only if the application is in the prescribed format and fulfils the requisite formalities. Nowadays, in some courts (especially in the higher courts, such as the Supreme Court), some specific types of matters can be filed online. In Supreme Court, sometimes, a public interest litigation (PIL) is accepted by way of a letter sent to the court.

However, as far as I know, speedpost has not been prescribed as a method to send the complaint under Section 156(3) Cr.P.C. You can try to check it from the court concerned, but I doubt whether it has been done in any courts. Moreover, even if you send the complaint by speedpost, you or your advocate may still be required to argue the matter before the court by appearing in the court.

As far as law is concerned, Section 156(3) of Cr.P.C. is silent on these issues.

Still, if you are located at a far-off place and want to take a chance, you can try speedpost method. If it does not work, then you can file it by going to the court personally.

     

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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]

I don’t know what is the legal question involved here. It is a question of common sense that your advocate could have easily replied if you had asked him. If the respondents are trying to delay the hearing, it is the duty of your advocate to oppose the same, if you have some urgency. So, instruct your advocate to oppose the effort of the respondents to delay the matter, and request the court to hear the matter urgently if you have some urgency. Adjourning the matter to come up in due course (when the reply of the respondents is yet to be filed) implies that the matter may be listed when the reply is filed. Your advocate can mention the case before the court for early hearing, if there is an urgency.

     

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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 similar question has already been answered in detail with relevant judgments answer to the legal issued involved. Please see: CRPC 125(3) recovery proceedings – being in custody for long period.

This is a repeat question with change of language, which is not permitted as per our Forum guidelines and it may lead of blocking of the user too. Repeated question cannot be answered.

     

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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 125(3) of the Criminal Procedure Code provides that if any person fails without sufficient cause to comply with the maintenance order, the Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

Therefore, it should be clear that maximum custody is one month for each month’s allowance. This is also when the husband fails to comply with the order “without sufficient cause”. If you can prove to the court and can satisfy the court that you don’t have any means of paying the maintenance, then it may not perhaps be said to be without sufficient cause. You can try it.

In the case of Shahada Khatoon v. Amjad Ali, (1999) 5 SCC 672, the Supreme Court held that:

“The language of sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month.”

This implies that while the maximum custody for non-compliance of order of maintenance is one month, but the wife can again approach for similar relief if the further orders of maintenance (for further months) are also not complied with.

In this regard, in the case of R. Rajesh v. Kalaiyarasi [Crl.R.C.No.57 of 2017 & Crl.M.P.No.621 of 2017, decided on 11 July 2017], Madras High Court has held as under:

“…whenever there is a failure of complying the order for payment of maintenance, then the person would be liable to be sent to jail for a period of one month. However, this restriction of one month under sub-section 3 of Section 125 of the Code of Criminal Procedure cannot stand in the way even after one month period, if he continues to neglect the payment of arrears, once again the very same provision of 125(3) of the Code of Criminal Procedure can be invoked by the Court concerned, provided if the law is set in motion by filing an appropriate petition by the wife or the affected party. However, the Court cannot send a person to jail beyond the period of one month at a stretch or in one stroke for his failure to pay the maintenance of arrears.”

So, you can examine the facts of your case in the light of these judgments, i.e., whether the custody was for failure to pay only one month’s allowance or for several months’ allowances, and also whether every time the wife had approached the court separately or the order was passed in one stroke. Thereafter, you can take necessary action. It is not possible for us to go into detailed facts of a case on this Forum, as per our Forum guidelines.

     

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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 269(c) of the Criminal Procedure Code clearly provides that where the person in respect of whom an order is made under Section 267 (i.e., production warrant) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; the officer in charge of the prison shall abstain from carrying out the Court’s order and shall send to the Court a statement of reasons for so abstaining.

In view of this, if your friend is already on bail in one case and in the other case he has been ordered to be released from custody, then it is not correct on the part of the jailer to refuse to release him only on the ground that there is a production warrant in the first case. In such a situation, the aforesaid legal provision under Section 269(c) Cr.P.C. will come into play and the jailer need not comply with the production warrant and can send a statement to the court about the fact that his custody has already expired. And, your friend could have been released from custody (if there was no other custody order, as you appear to be suggesting). In such situation, the detention may amount to illegal detention.

     

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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 431 of IPC is as under:

“431. Mischief by injury to public road, bridge, river or channel.—Whoever commits mischief by doing any act which renders or which he knows to be likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”

If 30% of the road is encroached and converted into a hotel, Section 431 IPC may be attracted in such situation.

Section 133 of the Cr.P.C. may also be applicable in this situation, and you can request police to send report to the Executive Magistrate for removing nuisance from the public road. In fact, even you can directly file a complaint to the Executive Magistrate under Section 133 of Cr.P.C., since it talks about "on receiving the report of a police officer or other information".

Yes, if the encroachment has occurred due to negligence of some public official(s), you can file complaint against him to his superior authorities.

     

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

[Dr. Ashok Dhamija]

You have said that police has filed B-summary final report on completion of investigation, which is filed when the allegations made in the FIR are found to be false. In any case, it is a closure report in the investigation, which is filed under Section 173 of the Criminal Procedure Code.

As per the procedure, after filing of the closure report, the court is required to issue a notice to the complainant about such closure report. This is to enable the complainant to file a protest petition, if he or she wishes to do so against the closure of investigation by police. This is a requirement as per various Supreme Court judgments.

This may be the reason that the court may be insisting that the complainant should be produced in the court.

However, if the complainant is not traceable, summons / notice can be served on her known addresses. You can also help in locating her latest address through your contacts, because after all she is your ex-wife. If the notice cannot be served despite best efforts to serve it at her all known addresses, the court can consider taking further decision in the matter. You can also point out to the court that the case has already been compromised by her. If needed, you can even approach the higher courts.

In any case, in the worst situation, as I have explained in one of my articles, while there is a general restriction on grant of a passport to a person facing a criminal case in India, passport can still be issued to such a person on the specific permission granted by the concerned court (and for the period mentioned in the Notification of 1993) if he files an undertaking as mentioned in my article. Therefore, even though the B-summary final report is yet to be accepted by the court, you can still get the passport as per the procedure mentioned in aforesaid article.

     

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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]

Though you have not mentioned under what sections of law, the FIR has been registered against your husband, it appears from the details of your question that the FIR is perhaps under Sections 498-A and 406 of IPC.

Please note that the maximum punishment for both these offences is up to 3 years’ imprisonment.

Power of arrest is contained mainly in Section 41 of the Criminal Procedure Code, which was amended in 2010, as per which power to arrest in offences in which the maximum punishment is up to 7 years’ imprisonment was drastically curtailed and certain conditions were imposed. Moreover, the section uses the word “may… arrest” instead of “shall… arrest”, which means that arrest is not mandatory and depends on the requirements of the case. The relevant part of Section 41 of Cr.P.C. is reproduced as below;

“41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—

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(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police office is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing:”

There are also certain judgments of the Supreme Court, which lay down that merely because there is a power to arrest, does not mean that this power must be mandatorily exercised in all cases.

In view of all these reasons, nowadays, police officers may not make arrest in all cases, especially where the maximum punishment is up to 7 years, as in your case.

However, you can try to explain to the police as to why arrest is necessary in your case. Or, may be that, after doing some initial investigation, the investigating officer may feel the necessity of arresting the accused person.

If you feel that the investigating officer is influenced by the accused (your husband) due to some mala fide reasons, then you can approach the higher police officers.

As regards the other issue of the police forcing you to take your minor son to the police station so that your husband could meet him there, the police has no power to do that. You need not agree to it, if you are not willing to do so.

     

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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]

I have already replied to a similar question by you. Please see: https://tilakmarg.com/forum/topic/munsif-court-judge-involved-perjury-340/

At that time also, you had asked two similar questions, one out of which was deleted. Now, this is your third question on same / similar issue.

Please do not ask repeated questions on same / similar issues.      

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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]

A criminal case is required to be proved beyond all reasonable doubt. However, a civil case can be decided on the basis of preponderance of probabilities. Similarly, a departmental enquiry can also be decided on the basis of preponderance of probabilities.

In fact, in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. K.S Gandhi, (1991) 2 SCC 716, the Supreme Court held as under:

“It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt “but” the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.”

Therefore, it is quite clear from the above judgment of the Supreme Court that in a departmental enquiry, the standard of proof is not proof beyond reasonable doubt “but” the preponderance of probabilities tending to draw an inference that the fact must be more probable. Moreover, it is also clear from the above judgment that circumstantial evidence may also be used in appropriate cases to prove the charges.

     

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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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