[Dr. Ashok Dhamija]

In the case of an employee of a nationalised bank, both the Central Bureau of Investigation (CBI) and the State Anti-Corruption Bureau (ACB) have concurrent power to lay trap in a corruption case. This means that both these agencies can organise a trap in a corruption case by a bank employee.

If the trap in a corruption case against a nationalised bank employee is laid by the State ACB, it does not require the permission of CBI to do so. State ACB is fully competent to trap such an employee in a corruption case.

In fact, police is a State subject under the Constitution of India. Investigation of an offence is the power of police. Therefore, State ACB has the original power to investigate corruption cases. However, by way of arrangement between the Central Government and the State Government [by virtue of Section 5 and 6 of the Delhi Special Police Establishment Act, 1946, under which CBI has been set up], CBI also has been given power to conduct investigation in certain corruption cases when the employees involved are Central Government employees or Central PSU employees even if the offence takes place in the areas of a State. However, this does not mean that the power of the State ACB has been withdrawn. Therefore, in such situation, both State ACB and CBI have concurrent powers, i.e., both can investigate trap cases of corruption against Central Government and Central PSU employees, wherever the States have given consent for CBI under Section 6 of the above Delhi Special Police Establishment Act, 1946.     

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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]

Once an order has been passed by a court under the Criminal Procedure Code (Cr.P.C.), generally the court has no power to change that order subsequently. You have to file a revision or appeal before the higher court, if you are not satisfied with that order. However, if there is any arithmetical error or any clerical error in a judgment of the court, then that court itself has the power to correct that mistake. For this purpose, have a look at Section 362 of the Cr.P.C., which lays down as under:

“362. Court not to alter judgment.— Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

Thus, the above section clearly says that when a court has signed its judgment or final order disposing of a case, it shall not alter or review the same; except when a clerical or arithmetical error is to be rectified or corrected.

Error in mentioning a name in an order may be considered as a clerical error (except where the name refers to an altogether different person). Therefore, an application may be filed before the same court, which passed the original order, to rectify the mistake and alter the order by correcting the name.

     

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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]

Recently, the Supreme Court had ruled that if no charge sheet is served then the suspension period beyond 90 days will be invalid. See: http://tilakmarg.com/news/suspension-order-not-to-extend-beyond-3-months-if-charge-sheet-is-not-served-says-supreme-court/

Also see: http://tilakmarg.com/news/suspension-not-to-exceed-3-months-if-charge-sheet-not-served-says-central-government/

http://tilakmarg.com/answers/approaching-court-for-revocation-of-suspension-and-reinstatement-after-long-suspension/     

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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 answer to your question is covered in an earlier answer given on Tilak Marg. The answer to your question is also similar. Please see the answer at the following link: Wife making false statement of not working in her maintenance case in court.     

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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 127 of the Criminal Procedure Code permits the Magistrate to make alternations in the  allowance for the maintenance or the interim maintenance of a woman which has earlier been ordered under Section 125 of the Cr.P.C., on proof of a change in the circumstances of the wife receiving a monthly allowance for the maintenance or interim maintenance, or on proof of a change in the circumstances of the husband ordered to pay a monthly allowance for the maintenance or interim maintenance to his wife.

Therefore, it is possible for the wife to ask for enhanced maintenance if there is a substantial change in the income of the husband subsequent to the earlier order of maintenance. As regards the probability of success for enhanced maintenance, it is not possible to make any prediction since it depends on facts and circumstances of each case.

Section 127 of Cr.P.C. is reproduced below for your information:

“127. Alteration in allowance.— (1) On proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,—

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under Section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said 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]

Usually, in body offences (including an offence under Section 377 IPC which is mentioned by you), during investigation, the police itself gets medical examination of the victim of the offence conducted. This is for the purposes of getting sufficient medical evidence to support the charge for which the criminal case is registered. If the police has already filed the charge sheet in your case and has not conducted the medical examination, then you can request the Magistrate with a specific prayer to get yourself examined medically, and, generally speaking, the Magistrate will allow you to be medically examined.

There is no specific provision in Cr.P.C. for medical examination of the victim of the offence in a case where the offence is under Section 377 of IPC, though there is Section 164-A of the Cr.P.C, for medical examination of a victim of rape offences, which is reproduced below:

“164-A. Medical examination of the victim of rape.—(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:—

(i) the name and address of the woman and of the person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

Explanation.—For the purposes of this section, “examination” and “registered medical practitioner” shall have the same meanings as in Section 53.”

It is pertinent to point out that there are three sections in Cr.P.C. for medical examination of a person accused of an offence, viz., Section 53, 53-A and 54 of Cr.P.C., which are reproduced below:

“53. Examination of accused by medical practitioner at the request of police officer.— (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of Sub-Inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Explanation.—In this section and Sections 53-A and 54,—

(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practioner thinks necessary in a particular case;

(b) “registered medical practitioner” means a medical practitioner who possesses any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.

53-A. Examination of person accused of rape by medical practitioner.—(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed, by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:—

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

54. Examination of arrested person by medical officer.—(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made:

Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.

(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.

(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.”

But, there does not appear to be a specific provision in Cr.P.C. for the medical examination of a victim of an offence, other than in the case of a rape victim (i.e., Section 164-A Cr.P.C.). This may be because medical examination of the victim is generally done during investigation on voluntary basis, i.e., normally it is in the interest of the victim himself or herself to get examined medically so that sufficient evidence to support the case be available during the investigation. However, absence of a legal provision should not come in the way of the medical examination of the victim where the victim herself is interested to get medically examined. So, you may make an application before the Magistrate for this purpose, if the medical examination has not been got conducted in your case so far by the 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]

Yes, immovable property can be acquired on behalf of a partnership firm in India.

Firstly, an immovable property can be acquired through “transfer of property” which is governed by the Transfer of Property Act, 1882. Section 5 of this Act lays down as under:

“5. “Transfer of Property” defined.— In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons and “to transfer property” is to perform such act.

In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.”

Thus, any “living person” can transfer property to one or more other “living persons”. And, the expression “living person” is defined to include a company or association or body of individuals, whether incorporated or not. Thus, an association of individuals or a body of individuals, whether incorporated or not, is also a “living person” for the purposes of the above definition. A partnership firm is thus included in this expression since it is an association or a body of individuals which is not incorporated. It should thus be clear that a partnership firm can transfer an immovable property or an immovable property can be transferred to it.

Further, Section 14 of the Partnership Act, 1932, defines what is the “property” of a firm:

“14. The property of the firm.—Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business.

Unless the contrary intention appears, property and rights and interest in property acquired with money belonging to the firm are deemed to have been acquired for the firm.”

This section does not limit the expression “property” to only “movable property”. Also, immovable property is not excluded from its definition.  The section is wide enough to include “…all property and rights and interests in property…”.

Likewise, Section 19 of the Partnership Act lays down as under:

“19. Implied authority of the partner as agent of the firm.— (1) Subject to the provisions of Section 22, the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm.

The authority of a partner to bind the firm conferred by this section is called his “implied authority”.

(2) In the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to—

(a) submit a dispute relating to the business of the firm to arbitration,

(b) open a banking account on behalf of the firm in his own name,

(c) compromise or relinquish any claim or portion of a claim by the firm,

(d) withdraw a suit or proceeding filed on behalf of the firm,

(e) admit any liability in a suit or proceeding against the firm,

(f) acquire immovable property on behalf of the firm,

(g) transfer immovable property belonging to the firm, or

(h) enter into partnership on behalf of the firm.”

Clauses (f) and (g) of sub-section (2) of above section 19 clearly refer to “acquire immovable property on behalf of the firm” and “transfer immovable property belonging to the firm”, which can have meaning only if the partnership firm has or can acquire immovable property.

In respect of the above Section 19, the Supreme Court, in the case of Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev, (1999) 5 SCC 222 : AIR 1999 SC 2171, held as under:

“Under Section 19(1) of the Partnership Act, the acts of a partner which are done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm. Under Section 19(2), in the absence of any usage or custom of trade to the contrary, the above implied authority — (here express authority under clause 10 of the same nature) — does not prima facie empower the partner to “transfer immovable property belonging to the firm” as stated in clause (g) of Section 19(1) of the Partnership Act. Such a power to transfer property of the firm must be expressly given to the transferring partner. So far as immovable property is concerned there is no such authority shown. Clause 10 does not contain any express power to Shri R.K. Jain to transfer the immovable property of the firm. Hence the said clause is of no use, prima facie.”

From what is held by the Supreme Court, it is clear that the power to transfer immovable property must be expressly given to a partner by the firm.

Thus, from the above, it is obvious that immovable property can be acquired on behalf of a partnership.

     

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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]

Following actions are possible when a witness is threatened by the opposite party, depending on the facts and circumstances of the case and nature of the threat given:

(1) Firstly, since a witness is being threatened, the chances are that the witness is being threatened to give false evidence, therefore, the offence under Section 195-A of the Indian Penal Code may be made out against the person who gave the threat:

“195-A. Threatening any person to give false evidence.—Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both;

and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.”

(2) Secondly, depending on the nature of the threat given, offence under Section 506 of IPC may be made out against the person giving the threat:

“506. Punishment for criminal intimidation.—Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”

In this regard, also see: Section 506 IPC – whether bailable or non-bailable?

(3) If the person giving threat is an accused person who has been released on bail, then application may be made to the court for cancellation of bail, since generally it is one of the conditions that he would not threaten the witnesses.

(4) Protection may be sought for the witness from the court and/or the police.

The answer to your second question would depend on the facts and circumstances of the case. The phone recording of the threat given may definitely be relevant for proving the allegation of threat given to the witness, provided it is recorded properly and there is no likelihood of it having been tempered. Whatever other evidence is available to prove the allegation of threat (including the statement of the witness who has been threatened) should be relevant, also including phone call details.

     

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

[Dr. Ashok Dhamija]

It is the person holding power of attorney, authorized by plaintiff to file suit or do other things as permitted, who is recognized as the agent of the plaintiff. If there is a defect in the power of attorney, then that may affect the power of the agent to do things, as authorised, on behalf of the plaintiff or the donor of the power. In view of this, the opposite party may be in a position to point out defects in the power of attorney, if any.     

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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]

Usually this will not happen in the Supreme Court. At the time of filing of the SLP, the Registrar office will generally ensure that all parties before the high court are named as parties in the Supreme Court as per the memo of parties in the high court.

In any case, you can file an impleadment application before the Supreme Court in the SLP, giving reasons as to why you are a necessary party and also that you were a party in the high court proceedings out of which the SLP arose. The Supreme Court is likely to allow your application to implead in such circumstances.

     

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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 specific time limit has been specified for filing a writ petition in a high court under Article 226 of the Constitution. This is an extraordinary and discretionary remedy. The normal time limit for most types of cases is generally 3 months or 90 days. However, while there is no specific limitation period for filing a writ petition in high court, it is expected that it would be filed without any unnecessary delay. In any case, the delay should be explained by citing justifiable reasons. In your case, the impugned order is about 5 months old. Generally speaking, this much delay of 5 months will not be considered fatal for a writ petition and the high court may entertain the petition if it has merit. So, you can go ahead with filing of your writ petition in Delhi high court.

In the case of Rajmata Vijai Raje Scindia v. State of U.P., AIR 1986 SC 756, it was held by the Supreme Court as under:

“It was not disputed before us that there is no limitation prescribed for the purpose of filing a writ petition against any executive action that might be impugned. Ordinarily the writ petitions are expected to be filed without any laches. In this case, since the petition was filed not within 90 days, which was erroneously regarded as a prescribed period of limitation the petition has been dismissed on the technical ground being barred by limitation. We may observe that the petition was filed within a period of 4 months. The impugned order is, therefore, set aside and the Writ Petition No. 8827 of 1978 filed by Smt. Vijai Raje Sindia and anr. is remanded back to the High Court for disposal on merits in accordance with law.”

Thus, it was held by the Supreme Court that there is no limitation prescribed for filing a writ petition but ordinarily it is expected to be filed without any laches (i.e., delay).

Therefore, while there is no limitation period prescribed, if the delay in filing is quite long then the writ petition may be dismissed on the grounds of delay alone. For example, in the case Cheripalli Madar v. Asstt. Division Engineers, (2005) 11 SCC 546, the order of the high court refusing to entertain a writ petition filed after a delay of 3 years was held to be proper. Likewise, in the case of SDO, Grid Corpn. of Orissa Ltd. v. Timudu Oram, (2005) 6 SCC 156, where there was ten years’ delay in bringing writ petition after dismissal of a civil suit and no reasons were given for such inordinate delay, it was held that the writ petition was not maintainable.

     

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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. An unmarried daughter is eligible to get the family pension even if she is above the age of 25 years. As per the Office Memorandum No. 1/19/03-P&PW (E) dated 6^th September 2007, issued by the Government of India, Ministry of Personnel, P.G. & Pension, Department of Pension & Pensioners’ Welfare, now an unmarried daughter who is beyond of age of 25 years is also eligible to receive family pension. It has been mentioned in this O.M. as under:

“The Staff Side of National Council (JCM) had raised the issue of extension of scope of family pension to unmarried daughters of the Government servants/ Pensioners even after attaining the age of 25 years at par with the widowed/ divorced daughters, which has been agreed to in principle.  It has, accordingly, been decided that the unmarried daughters beyond 25 years of age shall also be eligible for family pension at par with the widowed/ divorced daughters subject to other conditions being fulfilled.  Grant of family pension to unmarried/ widowed/ divorced daughters shall be payable in order of their date of birth and younger of them will not be eligible for family pension unless the next above her has become ineligible for grant of family pension.  It is further clarified that family pension to unmarried/ widowed/ divorced daughters above the age of 25 years shall be payable only after the other eligible children below the age of 25 years have ceased to be eligible to receive family pension and that there is no disabled child to receive the family pension.”

In your case, you appear to be eligible to receive family pension subject to income and other conditions since your brother is not eligible to receive it now.

     

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

[Dr. Ashok Dhamija]

In a trap arranged to catch a public servant red-handed while demanding and accepting bribe from a complainant, it is a common practice of sending an independent witness, i.e., a panch or shadow witness, along with the complainant who could witness the whole incident including the transaction, of currency notes as well as the conversation relating thereto, taking place between the accused public servant and the complainant. As a complainant is a person who is very much interested in the success of the trap case, it is necessary to have an independent and disinterested person as a panch witness in the trap case. It has become a common practice nowadays with the CBI and other investigating agencies dealing with the corruption matters to take some other public servants for acting as panch witnesses in the trap cases.

Highlighting such a need for employing independent witnesses as shadow witnesses in trap cases, in Raghbir Singh v. State of Punjab, AIR 1976 SC 91 : 1976 Cri LJ 172 : (1976) 1 SCC 145 : 1975 SCC (Cri) 776 [See also, Panchanan Rout v. State of Orissa, 1991 Cri LJ 2442 (Ori) : (1991) 71 Cut LT 823; Pooran Chandra Rastogi v. State of U.P., 1992 Cri LJ 2430 : 1992 All LJ 800; Sabhapati Tiwari v. State of U.P., 1978 Cri LJ (NOC) 32 (All); Abdul Rahman Sheikh v. State of M.P., 2002 (2) MPLJ 251 (MP) : 2002 (3) CCR 17 : 2002 (3) MPHT 330.], the Supreme Court observed that the Officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid.

In a trap case the duty of the officer to prove the allegations made against a government officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid. [Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211 at p. 222 : AIR 2005 SC 3123 : 2005 Cri LJ 3454.]

Where the material witnesses in a trap case were alleged to be relations of the complainant, it was held by the Himachal Pradesh High Court that it is the duty of the prosecution, to join independent and disinterested person in the raiding party. The prosecution could have easily, while on way to the place of the accused, included independent, disinterested and reputable persons of the area and locality for evidencing the trap. The absence of any reason by the prosecution for not including independent, disinterested and reputed witnesses in the raiding party, therefore indicates that the incident has not taken place in the manner as the prosecution had contended. It further throws doubt on the whole case and the result is that the explanation given by the accused appears to be more sound and convincing. [State of H.P. v. Tej Ram, 1990 Cri LJ 995 : (1989) 2 Sim LC 9.]

It is the common practice in a trap case that an independent witness would be accompanying the decoy, to witness the actual offer and acceptance of the bribe and to overhear the conversation that takes place between the accused and the complainant at the relevant time. So such a witness must be really independent so that his evidence can be safely relied on. The decoy is a highly interested witness and so a person closely associated with him is likely to share his interestedness and so no useful purpose would be served by making such a person as the accompanying witness. The proposition that it is always necessary to associate really independent and respectable witnesses in a trap party to inspire confidence in the mind of the Court needs no emphasis. [Niranjan Khatua v. State of Orissa, 1990 Cri LJ 2790 (Ori).]

It is the duty of the prosecution to join independent and disinterested person in the raiding party. In the instant case, the absence of any reason stated by the prosecution for not including independent, disinterested and reputed witnesses in the raiding party, indicates that the incident has not taken place in the manner as the prosecution has contended. It further throws doubt on the whole case and the result is that the explanation given by the accused that the complainant and other witnesses were all interested witnesses appeared to be more sound and convincing. [State of H.P. v. Ram Krishan, 2001 (3) Shim LC 275 at pp. 283-84 (HP) : 2002 (2) Chand LR 178; relying upon Raghbir Singh v. State of Punjab, AIR 1976 SC 91 : 1976 Cri LJ 172 : (1976) 1 SCC 145 : 1975 SCC (Cri) 776.]

It can thus be seen that the shadow witnesses in a trap case under the Prevention of Corruption Act, 1988, are required to be independent witnesses. They are supposed to witness the transaction of demand and acceptance of bribe by the accused public servant from the complainant. They are also supposed to witness the proceedings of the trap and be independent witnesses to the same. Therefore, if a shadow witness is not independent and is related to the complainant or his father, it may dent the credibility of his evidence. Accordingly, you can definitely raise the issue in your defence that the shadow witness is not an independent person. How far his evidence is reliable and trustworthy will ultimately depend on the facts and circumstances of the case.

[Note: Some extracts have been taken from my book: Prevention of Corruption Act, Second Edition (2009), by Dr. Ashok Dhamija, appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6).]

     

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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 not made it clear whether any FIR was registered in the matter (followed by charge sheet or closure report) by police or merely a non-cognizable report / complaint was taken on record. From what you have written, it does not appear to be a serious offence and it appears that merely a complaint was made and it appears that no FIR was perhaps registered, which could come in the way of a future employment.

The general rule in such matters is that when you get employment and have to fill in details of any offences committed in the past, you should always write truthfully. If there is a column meant specifically for FIR registered against you, the FIR, if any, registered, should be mentioned. If, in the above incident, no FIR was registered then there may be no need to mention about the above complaint under the heading of FIR. If, however, there is a separate heading of any other types of criminal complaints lodged (such as, including non-cognizable offence), then you should truthfully mention the details of whatever complaints have been lodged. But, then you can also mention about the end-results of such complaint. For example, if no action was taken by police on such complaint / FIR, then you must clearly mentioned that fact and also that the complaint was closed.

It always pays to be truthful in reporting about such incidents in the application form at the time of getting employment. If you hide it, during police verification, the department may still come to know about it and then it may be considered as a case of wilful concealment of the material information, which may adversely affect the future employment. However, if you have truthfully reported about the criminal complaints against you, and if such complaints are of minor nature, then it may not harm the employment prospects. There are judgments of the courts in this direction as per which every minor criminal complaint against you may not come in the way of your future employment provided you have reported the same truthfully.

     

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

[Dr. Ashok Dhamija]

Please note that arbitration proceedings and the cheque bouce case are two different proceedings and both can take place simultaneously. When a cheque is dishonoured, a separate liability arises in terms of Section 138 of the Negotiable Instruments Act, whereas the arbitration proceedings are conducted under the agreement signed between the two parties and this basically relates to the dispute which may relate to recovery of the money.

In the case of Trisuns Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686 : 2000 SCC (Cri) 47, decided by the Supreme Court, a similar question arose in relation to arbitration proceedings taken during the continuance of a complaint filed under Sections 415 and 420 of IPC. In the said decision, it was held that merely because arbitration proceedings have been undertaken, the criminal proceedings could not be thwarted.

Similarly, in the case of Sri Krishna Agencies v. State of A.P., (2009) 1 SCC 69 : (2009) 1 SCC (Cri) 241 : AIR 2009 SC 1011 : 2009 Cri LJ 787, the High Court quashed the proceedings under S. 138 of the Negotiable Instruments Act, 1881 for cheque bounce case, on the ground that appellant had already taken recourse to arbitration proceedings. However, the Supreme Court held that there can be no bar to the simultaneous continuance of a criminal proceeding and a civil proceeding if the two arise from separate causes of action. Accordingly, the High Court order was set aside and the proceedings under Section 138 of the Negotiable Instruments Act were restored.

The above decision of the Supreme Court in the case of Sri Krishna Agencies, is squarely applicable to your case. You can show this case to the high court and get the case filed by the opposite party dismissed.

     

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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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