Dr. Ashok Dhamija
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Dr. Ashok DhamijaAdvocate
If your advocate is not returning the blank signed papers on one or other excuse, it may be difficult to recover them from him. These things are generally done by people in trust (i.e., signing blank papers), which are avoidable, and once the trust is lost, they may sometimes create future problems. Even for a valid and legal purpose also, it may not be advisable to sign on blank paper, since one is supposed to read the full contents before signing. At this stage, if possible, at least you can try to put it on record that he has some blank signed papers from you, by recording conversation or by writing to him.
Generally speaking, it would not be possible for the opposite party to get divorce on the basis of mutual consent or otherwise by using these blank signed papers. For mutual consent divorce, there is always the second motion which takes places after six months and you have to remain present in court; so, you can always deny. Even for contested divorce, you can always deny that you gave any such reply which may be falsely attributed to you.
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.
September 24, 2016 at 4:40 pm in reply to: Time period for charge sheet after arrest, how to obtain bail #646Dr. Ashok DhamijaAdvocateYou have not specified the law under which your husband has been arrested. You have merely mentioned sections 4 and 5, but of which Act or law, that has not been mentioned.
In any case, you don’t have to wait for filing of charge sheet for getting bail. Immediately after arrest, you can apply for bail before the appropriate court. If it is a bailable offence, then bail is as good as a right under Section 436 of Cr.P.C. If it is a non-bailable offence, then bail can be sought under Section 437 of Cr.P.C. from the Magistrate court or under Section 439 of Cr.P.C. from the Sessions Court or the high court, depending upon the nature of the offence.
Generally speaking, there is no maximum time period for filing of charge sheet prescribed under law. However, for summons cases (i.e., a case NOT relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two year), the following legal provision exists in Section 167(5) of Cr.P.C.:
“(5) If in any case triable by Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.”
Other than this, there is no general provision for putting a maximum time limit on the filing of charge sheet. However, if an accused is under arrest and if the charge sheet is not filed within 90 days or 60 days (depending upon the gravity / seriousness of the case), then he may seek default bail after such period if the charge sheet is not filed within that period [See: sub-section (2) of Section 167 of Cr.P.C., for more details]. But, this does not mean that there is a maximum time limit for filing charge sheet; it only means that if the charge sheet is delayed beyond these periods then the accused under arrest will get right to be released on bail on this ground alone.
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.
September 24, 2016 at 4:19 pm in reply to: Jurisdiction when cheque deposited in another branch of bank having account #644Dr. Ashok DhamijaAdvocateIn such a situation, the jurisdiction will be with the court in Delhi. This is clear from the amended provisions of the Explanation to Section 142(2) of the Negotiable Instruments Act, which is reproduced below:
“(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
Explanation.— For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”
The Explanation makes it quite clear that where a cheque is delivered for collection at any branch of the bank of the payee, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee maintains the account.
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.
September 24, 2016 at 9:54 am in reply to: Defination of Independent Witness under Evidence Act #642Dr. Ashok DhamijaAdvocateThe expression “independent witness” is not defined in the Evidence Act, 1872. In fact, even the word “witness” is not defined in the Evidence Act.
In the case of M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865, with regard to the meaning of the expression “be a witness” used in Article 20(3) of the Constitution of India, an 8-judge Constitution bench of the Supreme Court observed as under:
“…The phrase used in Article 20(3) is “to be a witness”. A person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (See Section 119 of the Evidence Act) or the like. “To be a witness” is nothing more than “to furnish evidence” and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word “witness”, which must be understood in its natural sense i.e. as referring to a person who furnishes evidence.”
Therefore, a person who furnishes evidence of some type is a “witness”. Whether a “witness” is an “independent witness”, depends on the facts and circumstances of each case. Basically, an independent witness would mean a witness who is not interested in the outcome or success of the case. Generally speaking, if a person is not closely related or associated with a party in a case, and does not have any interest in the success or failure of the case, then he may be termed as an independent witness. However, it will ultimately depend on the facts of a case as to whether a witness is independent or not.
Moreover, to prove a case, it is not necessary that there should always be independent witnesses in a case. There have been a large number of cases where cases have resulted in conviction even though there was no independent witness.
In fact, Section 134 of the Evidence Act clearly implies that even a single witness may be sufficient to prove the case:
“134. Number of witnesses.—No particular number of witnesses shall in any case be required for the proof of any fact.”
Recently, in the case of Sadhu Saran Singh v. State of U.P., (2016) 4 SCC 357, the Supreme Court held as under:
“29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.”
Therefore, as the Supreme Court held, an entire case cannot be thrown out on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.
Your question is whether it is possible to have complainant and all witnesses from same department and well-known to each other. The answer is “yes”. It is possible. However, whether such witnesses are reliable and trustworthy, will depend on the facts and circumstances of the 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. List of his YouTube Videos.
September 23, 2016 at 3:38 pm in reply to: How many times can a person change his lawyer in thr High Court #639Dr. Ashok DhamijaAdvocateThere is no maximum number prescribed which would apply to the number of times you can change your advocates for a case. Generally speaking, you can obtain NOC from your existing advocate and appoint a new advocate in his place or appear in person yourself. The courts would generally not come in the way when you want to change your advocate for some genuine reasons.
In your case, you have mentioned that you have taken NOC from your existing advocate and you want to appear yourself in person. That is permissible. You have asked whether it would be possible afterwards to again appoint an advocate in future; the answer is “yes”. It should be possible for you appoint another advocate for your case in future. That should not be a problem, generally speaking.
See, if you want to appear yourself in court in the two applications, instead of engaging any advocate, then naturally you’ll have to depend on your own knowledge or expertise, or ask for help whosoever can help you. You can also try to find some advocate who can help by charging professional fee for general guidance without court appearance. You’ll have to make efforts for that purpose at your place. Everything has pros and cons.
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.
September 20, 2016 at 3:14 pm in reply to: Order of lower court challenged in high court but not stayed – implementation of #632Dr. Ashok DhamijaAdvocateGenerally speaking, when the order of the lower court is not stayed during the pendency of appeal in the higher court, it can be implemented (though, sometimes, out of deference to the admission of the appeal in higher court, the implementation may be deferred even in the absence of the stay). In such a case, if the order is implemented, and thereafter, if the higher court reverses the order of the lower court in appeal, then depending on the nature of the order, its effect may be reversed. For example, if the order relates to recovery of some amount and if it is implemented during pendency of appeal, and then the order is reversed by the higher court, in such a situation, the amount recovered may have to be returned. So, in such a situation, though the stay is not granted during pendency of appeal, yet the implementation of the order of lower court may be subject to the final outcome of appeal.
But, in certain situations, the nature of order is such that once implemented, it cannot be reversed. For example, if order relates to sentence of imprisonment of a person, then once the imprisonment has already been undergone in the absence of a stay on order of sentence, then if the order is reversed in appeal it would not be possible to undo the implementation of the order. However, even in such cases, it may not be necessary that the order of the lower court is always stayed by the higher court while admitting the appeal. But, in such a case, it may be impressed upon the higher court to stay the order of the lower court in the interests of justice, though ultimately, it is up to the higher court to grant the stay or not.
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.
September 20, 2016 at 2:03 pm in reply to: Transfer of 138 N.I. Act case as per SC judgment and Amendment Act #630Dr. Ashok DhamijaAdvocateOn the basis of whatever brief facts have been mentioned by you, it can be said that the case will have to heard in the court which has jurisdiction as per the Amendment made to the Negotiable Instruments Act in 2015. The Supreme Court’s judgment in the case of Dashrath Rupsingh Rathod v. State of Maharashtra is no more valid now, in view of the amendment made to the Negotiable Instruments Act.
If the complainant has left the case and is not pursuing the case any more, the accused may apply for discharge / acquittal from the case due to non-prosecution of the case by the complainant.
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.
September 20, 2016 at 1:28 pm in reply to: Can a non-lawyer appear in court to defend his wife? #628Dr. Ashok DhamijaAdvocateGenerally speaking, a non-advocate is not allowed to appear in a court on behalf of another person. Either the party himself can appear in person or an advocate is required to be engaged to represent the party in the court. Section 29 of the Advocates Act, 1961, states as under:
“29. Advocates to be the only recognised class of persons entitled to practise law.—Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.”
However, at the same time, Section 32 of the Advocates Act states as under:
“32. Power of court to permit appearances in particular cases.—Notwithstanding anything contained in this Chapter, any court, authority or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.”
Thus, while generally speaking only an advocate can appear in court on behalf of another person (or that person can himself or herself appear to represent his or her own case), in some special circumstances, the court has power to permit a private person (who is not an advocate) to appear before it in a particular case.
Similarly, the Supreme Court Rules, 2013, also contains the following provision:
“Provided further that the Court may, if it thinks desirable to do so for any reason, permit any person to appear and address the Court in a particular case.”
In this regard, in the case of Harishankar Rastogi v. Girdhari Sharma, (1978) 2 SCC 165 : AIR 1978 SC 1019 : 1978 Cri LJ 778, the Supreme Court has held as under:
“…a private person, who is not an advocate, has no right to barge into court and claim to argue for a party. He must get the prior permission of the court, for which the motion must come from the party himself. It is open to the court to grant or withhold permission in its discretion. In fact, the court may, even after grant of permission, withdraw it halfway through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.”
In the case of Goa Antibiotics & Pharmaceuticals Ltd. v. R.K. Chawla, (2011) 15 SCC 449, the Supreme Court held:
“Section 32 of the [Advocates] Act, however, vests discretion in the court, authority or person to permit any person who is not enrolled as an advocate to appear before the court and argue a particular case. Section 32 of the Act is not the right of a person (other than an enrolled advocate) to appear and argue before the court but it is the discretion conferred by the Act on the court to permit anyone to appear in a particular case even though he is not enrolled as an advocate.”
“There is a distinction between the right to appear on behalf of someone, which is only given to enrolled lawyers, and the discretion in the court to permit a non-lawyer to appear before it. Under Sections 29 and 33 of the [Advocates] Act only those persons have a right to appear and argue before the court who are enrolled as an advocate while under Section 32 of the Act, a power is vested in the court to permit, in a particular case, a person other than an advocate to appear before it and argue the case. A power-of-attorney holder cannot, unless he is an enrolled lawyer, appear in court on behalf of anyone, unless, permitted by the court under Section 32 of the Act, though of course he may sign sale deeds, agreements, etc. and do other acts on behalf of someone else, unless prohibited by law.”
In view of what is mentioned above, if you are not an advocate, you can appear on behalf of your wife only with the permission of the court and the court may ask you and/or your wife to explain the reasons as to why a non-advocate should be permitted to appear on behalf of her. If justifiable reasons are given, you may be permitted by the court to appear on behalf of your wife to represent her. But, it is also possible that instead of permitting you to appear in court on her behalf, the court may give the free assistance of some advocate as legal aid.
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 DhamijaAdvocateThis is not the correct forum for asking such question. This forum is related to law-related questions.
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.
September 18, 2016 at 9:41 pm in reply to: Wife making false statement of not working in her maintenance case in court #620Dr. Ashok DhamijaAdvocateGiving false evidence in a court is an offence under Section 191 of the Indian Penal Code (IPC). It is the offence of perjury. Likewise, fabricating false evidence for producing it in a court is an offence under Section 192 of the IPC. Both these offences are punishable under Section 193 of IPC. These sections are reproduced below. You can file a complaint before the court where such false evidence has been produced for taking necessary action in accordance with law. [Note: Please also read this article which is similar to your question: Forged Documents In Civil Court.]
Sections 191, 192 and 193 of IPC are reproduced below:
“191. Giving false evidence.—Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1.—A statement is within the meaning of this section, whether it is made verbally or otherwise.
Explanation 2.—A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
192. Fabricating false evidence.—Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said “to fabricate false evidence”.
Illustrations
(a) A puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.
(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court of Justice. A has fabricated false evidence.
(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in imitation of Z‘s handwriting, purporting to be addressed to an accomplice in such criminal conspiracy, and puts the letter in a place which he knows that the officers of the police are likely to search. A has fabricated false evidence.
193. Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Explanation 1.—A trial before a Court-martial is a judicial proceeding.
Explanation 2.—An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of judicial proceeding, though that investigation may not take place before a Court of Justice.
Illustration
A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence.
Explanation 3.—An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.
Illustration
A, in an enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false 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. List of his YouTube Videos.
September 18, 2016 at 9:23 pm in reply to: What is period of protection of a copyright under Indian law? #618Dr. Ashok DhamijaAdvocateThe term for which the copyright protection is available under the Copyright Act, 1957, depends on the nature of the work which is copyrighted. Generally, it is 60 years. For example:
(1) For any literary, dramatic, musical or artistic work published within the lifetime of the author until, the term of the copyright subsists during the lifetime of the author and further for 60 years after his death.
(2) In the case of a literary, dramatic, musical or artistic work (other than photograph), which is published anonymously or pseudonymously, copyright shall subsist until 60 years since the work is first published. However, where the identity of the author is disclosed before the expiry of the said period, copyright shall subsist during his lifetime and thereafter until 60 years after the death of the author.
(3) In the case of a photograph, copyright shall subsist until 60 years from the beginning of the calendar year next following the year in which the photograph is published.
(4) In the case of a cinematograph film, copyright shall subsist until 60 years from the beginning of the calendar year next following the year in which the film is published.
(5) In the case of a sound recording, copyright shall subsist until 60 years from the beginning of the calendar year next following the year in which the sound recording is published.
(6) In the case of a Government work, where Government is the first owner of the copyright therein, copyright shall subsist until 60 years from the beginning of the calendar year next following the year in which the work is first published.
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.
September 17, 2016 at 8:13 pm in reply to: Is Income Tax payable on Family Pension received by a widow #616Dr. Ashok DhamijaAdvocateLet me first point out that there is difference between “pension” and “family pension” for the purposes of Income Tax Act, 1961. The income tax treatment for “pension” and “family pension” is different.
“Pension” is generally a periodical allowance or stipend granted on account of past service. Pension is a compensation for past service. It owes its origin to a past employer-employee or master-servant relationship. It is paid on the basis of earlier relationship of an agreement of service as opposed to an agreement for service. This relationship ends only on the death of the employee.
On the other hand, “family pension” is defined in Section 57 of the Income Tax Act as a regular monthly amount payable by the employer to a person belonging to the family of an employee in the event of the employee’s death.
Thus, “pension” and “family pension” are different for the purposes of Income Tax Act. While “pension” is paid during the lifetime of the employee, “family pension” is paid after death of the employee to surviving family members.
It is pertinent to point out that “pension” received from a former employer is taxable under the head “salary” since Section 17 of Income Tax Act specifically lays down in clause (ii) of sub-section (1) that “any annuity or pension” is included in “salary”. Therefore, “pension” is taxed in the same way as “salary” is taxed.
On the other hand, in case of “family pension”, since there is no employer-employee relationship between the payer and the payee, it is not included in the head “salary”. It is noteworthy that Section 56(1) of the Income Tax Act provides that “Income of every kind which is not to be excluded from the total income under this Act shall be chargeable to income tax under the head “Income from other sources”, if it is not chargeable to income tax under any of the heads specified in Section 14, Items A to E”. Now, since “family pension” is not included in any of these heads specified in Section 14, Items A to E, therefore, “family pension” is taxed under Section 56 as “Income from Other Sources”.
Therefore, “family pension” received by you is taxable under the head “Income from Other Sources”. But, it is pertinent to mention that in view of the provisions of Section 57(iia) of the Income Tax Act, in respect of income due to “family pension”, a deduction of a sum equal to thirty-three and one-third per cent of such income (i.e., one-third of such income) or Rs. 15000, whichever is less, is allowed from such income.
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.
September 17, 2016 at 10:53 am in reply to: Regarding non-appearnce of petitioner in CrPC125 after decision of interim maint #605Dr. Ashok DhamijaAdvocateFirstly, if needed, you can change your advocate.
Secondly, if the opposite party is repeatedly delaying the proceedings unnecessarily, you have the right to request the court to direct the party to complete its evidence expeditiously.
Thirdly, usually, the cross-examination is required to be conducted on the same day when the witness is examined. But, due to various reasons, the court has the power to allow the cross-examination to be conducted on the next day. Moreover, Section 311 of Cr.P.C. allows the court to recall and re-examine any witness if the condition mentioned therein is satisfied. Therefore, a request can be made to the court to recall a witness, if need be, in justifiable situations. Section 311 is reproduced below:
“311. Power to summon material witness, or examine person present.— Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the 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. List of his YouTube Videos.
September 17, 2016 at 10:41 am in reply to: Can offence under Section 354 IPC be compromised and quashed? #604Dr. Ashok DhamijaAdvocatePrior to the amendment of the Cr.P.C. in 2009, the offence under Section 354 IPC was compoundable under Section 320(2) of Cr.P.C. with the permission of the court. However, after the 2009 Amendment to Cr.P.C., offence under Section 354 IPC is not compoundable now.
But, if both parties have compromised the matter, then a petition under Section 482 of Cr.P.C. can be filed in the High Court for quashing of the charges on the basis of the compromise. If the high court, in its discretion, depending on the facts and circumstances of the case, agrees to do so, then the case can be quashed on the basis of the compromise. Generally, the high court may agree if it finds that the compromise is genuine and not under threat, etc. But, it is not guaranteed that it will agree in every such 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. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateSection 28 of the Protection of Women from Domestic Violence Act, 2005, states as under:
“28. Procedure.—(1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23.”Moreover, there appears to be no provision in this Act which excludes the operation of the Evidence Act.
Therefore, generally speaking, the cross-examination should be permitted for all questions which relate to “relevant facts” and which are permissible under the Evidence Act. The right to ask such questions should not be curtailed. But, the court may refuse to allow irrelevant questions. However, the accused / respondent should not seek unnecessary adjournments for conducting the cross-examination.
Usually, one day should be sufficient to cross-examine the complainant in a case of domestic violence. So, you should try your best to conclude the cross-examination as per the time granted. And, at the end of the day, if the court feels that you have not wasted time unnecessarily and that you are asking only relevant questions, and if some of your questions are still left, the court may generally allow you further time to cross-examine.
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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