[Dr. Ashok Dhamija]

Usually, it is very difficult to get the charge sheet quashed or to get discharge from the case. But, this is only a general observation since it all depends on the facts of the case. You’ll have to show detailed facts / documents to some good lawyer at your place to get a definitive opinion. It is not possible to give a firm opinion on the basis of information furnished by you. This is exemplified by the fact that your own competent authority has not agreed with your defence and this may be the reason why it has granted sanction for prosecution. Therefore, you’ll need a detailed examination of the issues for your defence.     

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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]

Before filing of charge sheet, there is a requirement of obtaining sanction for prosecution of the public servant from the competent authority under Section 19 of the Prevention of Corruption Act, 1988. If you are innocent, then your competent authority may refuse to grant the sanction, in the absence of which the court will not be in a position to take cognizance of the case. On the other hand, if the competent authority grants sanction, then that would imply that your own authority is not convinced about your innocence.

In any case, you may apply for discharge if you feel that there is no evidence to prosecute you. Please consult some local lawyer having expertise in corruption cases, by showing him all the relevant papers. Only after seeing the papers in details, can someone guide you on the issues of facts.     

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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 can seek an extra copy of petition from opposite party or registry, if it was not served upon you.     

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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]

After curing of defects, usually the SLP is listed within one to two weeks.

Since you are a caveator, you may file the memo of appearance before the listing date since you get a right to be heard on “interim relief” on the first date itself.

Please check other details from the registry since these are questions of facts which vary from case to case. If you have a grievance against the registry staff, you can approach senior officers of the registry, if needed with a 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]

You can file a private criminal complaint case for the act of impersonation before the competent Magistrate court.

As regards the FIR / charge sheet filed in the matrimonial case on the basis of order given by an authority by impersonation, generally such FIR / charge sheet would be decided on its own facts. The SHO himself has the power to register FIR and he may not need SSP’s order for that purpose. Also see section 465 of Cr.P.C., for example:

“465. Finding or sentence when reversible by reason of error, omission or irregularity.— (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”

     

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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]

If the police is not registering the FIR, you can approach the Magistrate court with a private complaint. The court can take cognizance of your private complaint. Or, you can ask the court to direct investigation by police under Section 156(3) of Cr.P.C.

You can file complaint with UGC / AICTE / concerned department (education, etc.) of the Government, as the case may be, for taking action against the institution. You also have the option of filing a writ petition before the high court under Article 226 of the Constitution seeking direction to the competent authority to take action against the institution.     

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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, a caveat is valid only for 3 months. After that, you may have to file a fresh caveat. May be due to this reason, the copy was not supplied to you (i.e., your first caveat might have expired). The Supreme Court registry is very strict in these matters. If there is a valid caveat on record, the Supreme Court registry will not allow the petition / SLP to be listed unless the caveator is served in legally permissible manner. Non-listing of the matter may also be due to the fact that the defects pointed out in the SLP might not have been cured by your opposite party. Please find out the exact reason from the SC registry.

Since you are appearing in person, you are required to file the memo of appearance. There is nothing wrong in that.

Wherever SLP is filed beyond the period of limitation, an application for condonation of delay is also filed along with it. The court has the power to condone the 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]

There are judgments of the Supreme Court as per which penalty in a departmental proceedings and punishment in a criminal case on the same charges can be given. These are proceedings of different nature. It will not come under double jeopardy within the meaning of Article 20 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]

For the same act, it is not possible to register two FIRs or conduct two trials. You can use Section 300(1) of Cr.P.C. in your support, which lays down as under:

“300. Person once convicted or acquitted not to be tried for same offence.—(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof.”     

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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 a particular section of law is applied in the FIR, it would be the duty of police to get medical examination conducted, if it is necessary to get evidence to support that section. If needed, you can approach the senior officers of police. In case that also does not help, then you may have to approach the high court since the lower courts may not have the power to interfere in the investigation or to give directions to the investigating officer to conduct investigation in a particular manner. The high court can do so, in the interest of justice. So, move an application / petition under Section 482 of the Cr.P.C. and/or under Article 226 of the Constitution, if needed.     

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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 order to get the transfer of investigation to another police officer within the same district or city, you can approach the superior officers of police. If your case is in a district, approach the SP / SSP of the district. If it is in a city police, approach the CP or DCP concerned.

In case you want to approach a court for getting the investigation transferred to CID or CBI, then you’ll have to approach the high court. However, the chances of success in getting a matrimonial case transferred to CID or CBI are negligible.

If the I.O. is asking for bribe from you, you can approach the Anti-Corruption Bureau of your state. They can lay a trap and catch the police officer concerned while demanding and accepting bribe from you.
     

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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 your question is not fully clear, what I could gather is that the complainant in a case under Section 138 of Negotiable Instruments Act (cheque bounce case) did not appear in the court, but his advocate appeared and submitted his complaint which had the signature of the complainant, and the court has taken cognizance of the complaint and issued notice to the accused. Your question is whether it is permissible.

For this purpose, let me point out that, generally, for a private complaint of a criminal case, while taking cognizance, it is necessary for the Magistrate to examine the complainant on oath under Section 200 of Cr.P.C., subject to two exceptions mentioned under the Proviso therein. Summons are issued to accused after that.

However, for a cheque bounce case under Section 138 of N.I. Act, there is a special provision under Section 145 of that Act, which is reproduced below:

“145. Evidence on affidavit.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.”

Thus, this section states that “notwithstanding anything contained in Cr.P.C.” evidence of the complainant may be given by him on affidavit. Thus, despite the provisions of Section 200 of Cr.P.C., the evidence of the complainant may be given on affidavit. Therefore, in a cheque bounce case, it may not be necessary for the Magistrate to examine the complainant on oath before issuing notice / process to the accused. Process can be issued to the accused even if the complainant is not present in the court at the time of submission of his complaint by his advocate, provided his affidavit is on record.

This view has been fully supported by the Supreme Court in the case of A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 : AIR 2014 SC 630 : 2014 Cri LJ 576, by observing as under:

“29. From a conjoint reading of Sections 138, 142 and 145 of the NI Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the NI Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the NI Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the NI Act.”

“33.4. In the light of Section 145 of the NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act.”

Therefore, there is nothing legally wrong in the Magistrate issuing process to the accused on the basis of complaint signed by the complainant submitted by the advocate, provided his affidavit is also filed along with in support of the complaint. However, if the affidavit of the complainant was not on record, then the issue of process to the accused may be questionable.

What is mentioned above answers your first question. I am still not able to understand your second question. If you know Hindi and can type in Hindi, please do that, so that I could understand your second question.

     

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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 incident mentioned by you, of 20-25 people coming with sticks and shouting foul words and threatening you, can at best amount to offences under Section 143, 506, 504 of IPC. Out of these, offence under Section 143 of IPC is cognizable, which means FIR can be registered with police. Try doing that. If the police does not register FIR, then you can file a private complaint with the Magistrate court.

Generally speaking, the photographs of the incident and audio recordings may be used in evidence in court. [Also see:  Recording official telephone conversations].

In case you don’t have any option left and want to take divorce as a last resort, you should try to convince her for mutual consent divorce (see: Divorce by mutual consent – conditions and procedure). A unilateral divorce petition from you, which is opposed by her, may take long period to get decided, depending on amount of pendency in the court in your area. However, generally speaking, you should be in a position to use the evidence mentioned by you in your divorce petition. Please consult a local lawyer with full details of your case.

     

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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]

Whether or not administrative guidelines have binding effect, depends on the nature of guidelines. Many of the guidelines are held to be having binding effect. There are judgments of the Supreme Court to that effect. On the other hand, sometimes, the guidelines are held not to be binding. It all depends on the subject matter and the nature of the guidelines and the authority under which they are made.

In the case of Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 : AIR 1967 SC 1910, the Supreme Court had held that: “It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.”

Replying upon above judgment, in the case of Union of India v. K.P. Joseph, (1973) 1 SCC 194, the Supreme Court held that, generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions and that such instructions may govern the conditions of service.

In the above K.P. Joseph case, the Supreme Court further held that: “To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area.”

Therefore, it all depends. Depending upon the nature of the guidelines, they may be held to be binding.

Coming to the issue of CVC guidelines, generally speaking, they may be binding. These CVC guidelines may derive their authority from the powers of CVC to “exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government”.

The rule-making power under the CVC Act, 2003, lies with the Central Government, so the rules can be made only by the Central Government. But, the CVC has the power to make regulations under the said Act. Now, why does CVC issue guidelines and not make regulations, is a question that you may have to ask the CVC. I cannot have any answer to this question. I don’t know why and for what reasons, they have issued the guidelines. But, as I said above, most of the CVC guidelines may also be binding.

     

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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 expression “Indian law” or “law” is defined in Section 3(29) of the General Clauses Act, 1897, as under:

“(29) “Indian law” shall mean any Act, Ordinance, Regulation, rule, order, bye-law or other instrument which before the commencement of the Constitution had the force of law in any Province of India or part thereof, or thereafter, has the force of law in any Part A State or Part C State or part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule or other instrument made under such Act;”

Therefore, rules, orders, bye-laws or other instruments, which are made under the authority of an Act, and which have the force of law, are also covered within the definition / meaning of the word “Indian law”, which means “law” (after independence).

Thus, the correct legal position is that if the rules are statutory rules (i.e., made under the authority of any Act), then such rules are also covered within the meaning / definition of the word “law” or “Indian law” as defined under the General Clauses Act, 1897. Therefore, an order in violation of such rules would also be illegal.

     

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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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