[Dr. Ashok Dhamija]

Police custody means when the accused person is given in custody of the police officer who is conducting the investigation of the offence in which the accused in involved. In such situation, the accused is generally kept in the police lockup. This custody enables the police to question / interrogate the accused on various aspects of the case and collect evidence with the help of his interrogation. The police custody can be for a maximum period of 15 days.

On the other hand, the detention of the accused in a custody, other than the police custody, is generally known as magisterial custody or jail custody. In such situation, the accused is generally detained in jail. If a charge sheet has not been filed then the total custody (including police custody which is for maximum of 15 days and the magisterial custody which is for the remaining period) can be a maximum of 90 days or 60 days, depending upon the nature of the offence. The maximum custody is:

• for 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
• for 60 days, where the investigation relates to any other offence.

However, if the charge sheet has been filed within the aforesaid total period of 90 days or 60 days, as the case may be, and if the accused has not been released meanwhile, then the above time limits for the total custody may not apply and his custody may extend beyond these periods.

The provisions relating to custody of the accused are laid down in Section 167 of the Criminal Procedure Code till the filing of the charge sheet, and in Section 309 if the court has already taken cognizance of the case after filing of the charge sheet.
     

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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]

As per the website of the Anti-Corruption Bureau, Rajasthan, in the year 1957, a separate Anti-Corruption Branch of the Rajasthan Police was established under a Special Inspector General of Police. The office of the Special Inspector-General of Police, Anti-Corruption Bureau, Jaipur was declared a Police Station by the Government, to be known as the Anti-Corruption Police Station, with its territorial jurisdiction extending over whole of the area of the State of Rajasthan vide notification of the Home Deptt.[A] No. F.14/1/4/HA/57 dated 15.07.1957 [published in Rajasthan Gazette, Extra ordinary, Part-IV[C] dated 15.7.57], in exercise of the powers conferred by clause[s] of Section 4 of the Criminal Procedure Code 1898.

The said website also makes it clear that through another notification No. F.14/1/HA/59 dated 15.07.1957 published on the same day in the Rajasthan Gazette, the Government of Rajasthan in pursuance of clause (P) of Section 4 read with section 156 and 551 of the Code of Criminal Procedure, 1898, empowered all officers of and above the rank of Sub-Inspector of police in the Anti Corruption Bureau to exercise the power of an officer-in-charge of a Police Station. The notification empowered the Anti-Corruption Police Station to deal with all cognizable offences relating to bribery and corruption including criminal breach of trust, criminal misappropriation and criminal misconduct in which a public servant was also involved.

Thus, it is clear that the Anti-Corruption Bureau has been declared as a police station having its jurisdiction throughout the state of Rajasthan and all officers (of and above the rank of Sub-Inspector of police in ACB) have been given the power to investigate corruption cases. Since it appears that all these officers are posted in a single police station (i.e., ACB police station) having jurisdiction over Rajasthan as a whole, they may be in a position to trap a public servant anywhere in Rajasthan.

Hope this answers your question. This answer has been given on the basis of the information available in public domain on the official ACB Rajasthan website and it is hoped to be correct. To get more detailed information, you may please contact the ACB Rajasthan through RTI or otherwise.
     

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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 it is a single cause of action or not, will depend upon the detailed facts of the 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]

Unfortunately, there can only be two possible legal remedies. Either convince or persuade the authority concerned (or his superior authority) to grant you the relief sought by you, or to approach the court / tribunal if the authority does not grant you the relief. I cannot think of any other legal remedy (I am not counting the unlawful remedies here that may be available) available, of course, the third option could perhaps be to simply forget the benefit if the stakes are not too high. It is true that the tribunal may take a long time to deliver justice, and that is unfortunate, but what else is the way out? So, if you feel that the amount involved is substantial and is worth waiting for tribunal decision (and after spending some money on pursuing this litigation), there is no option but to challenge it in the tribunal or other court having jurisdiction.     

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

[Dr. Ashok Dhamija]

I don’t know about the rules applicable in your state. But, generally, the rules are similar to the rules applicable under the Central Government Group Insurance Scheme. As per this scheme:

“The balance of the subscription shall be credited to a Saving Fund. The amount in the Savings Fund will be held by the Central Government in Public Account. The total accumulation of Savings together with interest thereon will be payable to the member on his retirement after attaining the age of Superannuation or on cessation of his employment with the Central Government or to his family on his death while in service.”

You can see these rules online by clicking here.

The actual amount to be paid to an employee on retirement, etc., is as per the tables that are issued every year (see the table online by clicking here).

The rules also provide for recovery of subscriptions during the period when the employee is on without-pay leave as under:

” If an employee is on extraordinary leave and there is no payment of his salary/wage for any period, his subscriptions for the months for which no payments of salary/wage are made to him shall be recovered with interest rounded to the nearest whole rupee admissible under the scheme on the accretions to the Saving Fund in not more than three instalments commencing from his salary/wage for the months following the month in which he resumes duty after leave. if an employee dies while on extraordinary leave, the subscriptions due from him shall be recovered with interest rounded to the nearest whole rupee admissible under the scheme on the accretions to the Savings Fund from the payments admissible to his family under the scheme.”

So, you’ll have to check your own rules which may be similar to these and check the tables issued by your authority to see your entitlement.     

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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 charge sheet has already been filed by police after completing the investigation and if you are named as an accused in such charge sheet, then you have a right to get copies of the charge sheet, statements of witnesses and other documents. This right is provided under Section 207 of the Cr.P.C., which is reproduced below:

“207. Supply to the accused of copy of police report and other documents.— In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:—
(i) the police report;
(ii) the first information report recorded under Section 154;
(iii) the statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of Section 173;
(iv) the confessions and statements, if any, recorded under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.”

Usually, these copies are provided to the accused by the police after filing of the charge sheet. In this regard, Section 173(7) of Cr.P.C. is also relevant which provides that:

“(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).”

However, if the investigation is yet to be completed and the charge sheet is yet to be filed, then you may not have a right to obtain copies of statements of witnesses and other documents, but you may still be able to obtain a copy of the FIR as was mentioned in my article: Does an accused have a right to get copy of the FIR registered by 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]

A single partner cannot sell the property of the partnership firm without the consent of other partners. However, the partners can authorize a single partner to sell the property on behalf of the firm and for this purpose they can pass a resolution. Moreover, under the terms of the partnership deed (or contract) also, a single partner may be authorized to sell the firm property. However, without such specific authority, a single partner cannot sell the firm property without the consent of other partners.

It is noteworthy that in Section 19(2)(g) of the Partnership Act, 1932, it is laid down that in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to transfer immovable property belonging to the firm.
     

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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 a cheque was issued and the bank returns that cheque unpaid by giving the reason “no such account”, then it can generally happen in the following two situations:

(1) If the cheque was genuine, then it means that previously there was a bank account for which the cheque book must have been issued by the bank and the returned cheque was issued from such account; but by the time the cheque was presented to the bank, the account would have been closed due to which the bank gave the reason for the return of the cheque as “no such account”, which in this situation is equivalent to saying that the “account is closed”. In such a situation, it would amount to an offence of cheque bounce under Section 138 of the Negotiable Instruments Act (because of the amount of money standing to the credit of that account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with that bank), provided other conditions mentioned in that section are satisfied. There are judgments to show that Section 138 offence is made out when the cheque is returned unpaid on the grounds of “account closed”.

(2) On the other hand, if the cheque was not genuine, then that means that the cheque might have been a forged one or that the account never existed in the bank. In such a situation, issuing of such a cheque by the drawer when no such account existed, may even amount to the offence of cheating under Section 420 of IPC.

There does not appear to be any decided Supreme Court case on the issue of “no such account”. However, in the case of Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689 : AIR 2008 SC 3086, which was decided by the SC, the cheque was returned on the reason of “no such account”, but this case was decided on other issues. In that case, the cheque was issued as a post-dated cheque in 1996 and it was presented in bank in 2001, by which time the account had been closed. Due to this reason, the cheque was returned on the ground of “no such account”. However, in this case, the complaint under Section 138 of the N.I. Act was filed after delay beyond the limit permissible in the N.I. Act. Therefore, this case was decided on the issue of 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]

The basic issue involved in your case is that in a departmental enquiry initiated against you on certain charges (which you have described as false and frivolous), the penalty of compulsory retirement has been inflicted on you. You have mentioned that you have been victimised since you acted honestly and did not allow corruption of your seniors. Your appeal against the said penalty is pending with the appellate authority for last about 6 months and no decision has yet been taken in that appeal.

The remedy for you is to approach the appropriate court or tribunal in your state, where the service matters from your department are required to be filed (for example, for Central Government servants, the case has to be filed in Central Administrative Tribunal). You’ll have to find out which is the court or tribunal in your state where your service matter will need to be filed in the first instance.

Secondly, you’ll have to check under the appropriate rules applicable to your service, as to whether any specific maximum time period has been prescribed for the appellate authority to take a decision in your appeal against the penalty. If this maximum period is yet to expire, you’ll have to wait. But, if this maximum period has already lapsed and the decision is yet to be taken by the appellate authority, then you may approach the appropriate court / tribunal challenging the penalty of compulsory retirement even though the appellate authority has not decided yet. Thirdly, if you wait for the decision of the appellate authority and if you are not satisfied with his decision as and when it is decided, then also you can challenge it before the appropriate court / tribunal.

As and when you file the case before the court / tribunal challenging the penalty, include all your grounds on merits of the case, including challenging the validity of the evidence adduced against you and also other circumstances that show mala fides of the authorities for victimising you for your honesty. You may also consult some local lawyer (by showing him all the details of your case) for properly including all the issues that may have relevance for 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]

In that case, you may please consider one of the options mentioned earlier.     

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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 appears that you have not approached the high court so far. The options before you could perhaps be like this (on the basis of whatever information is available in your question):

(1) Write to your authority for grant of the benefit in accordance with the decision of the high court, under which your case is fully covered, as you have mentioned (this is presuming that you’ve so far not applied to the authority. As of today, the high court has not be set aside, though stayed by SC.

(2) If the department grants you the benefit, well and good. But, if the department does not grant the benefit to you, citing the stay granted by the Supreme Court in the above case, then you may perhaps get a cause of action to approach the Supreme Court in the above case as an intervener since in that case your interest is also affected by the future decision of the SC. Alternatively, you can approach the high court citing authority’s refusal to grant you the benefit. If the high court gives you benefit, again it is good for you. But, if the high court refuses to give you the remedy on the ground of its judgment having been stayed, in that case also you may perhaps intervene in the Supreme Court in the above case.

(3) The third option, of course, would be to do nothing other than writing to your authority and just to wait for decision of the Supreme Court. If the SC ultimately dismisses the SLP, your authority would be bound by it and would have to grant you the similar benefit if your case is covered by it.      

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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 judgment of the Supreme Court [Prakash v. Phulavati, (2016) 2 SCC 36] mentioned by you in your question basically relates to devolution of interest in coparcenary property in a Joint Hindu family governed by the Mitakshara law.

What is a coparcenary property? Well, in the case of Sathyaprema Manjunatha Gowda v. CED, (1997) 10 SCC 684, the Supreme Court had earlier held as under:

“…coparcenary is a narrower body than a joint family and consists of only those persons who have taken, by birth, an interest in the property of the holder for the time being and who can enforce a partition whenever they like. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. Thus while a son, a grandson or a great-grandson is a coparcener with the holder of the property, the great-great-grandson cannot be a coparcener with him, because he is removed by more than three degrees from the holder.”

Originally, the Hindu Succession Act, 1956, did not give daughters inheritance rights in coparcenary property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on 9 September, 2005. Section 6 of the Hindu Succession Act was amended in 2005, and sub-section (1) of it now provides as under:

“6. Devolution of interest in coparcenary property.—(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
… …”.

While interpreting this new amendment that was brought about on 9 September 2005, the Supreme Court vide its recent judgment in the case of Prakash v. Phulavati, (2016) 2 SCC 36, has held that the said amended provision of the Hindu Succession (Amendment) Act, 2005, could not have retrospective effect and that the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings in a coparcenary property of a Joint Hindu family.

The Supreme Court held that:

“The text of the amendment itself clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. Section 6(3) talks of death after the amendment for its applicability.”

“In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment.”

The Supreme Court thus held that the rights under the amendment are applicable to living daughters of living coparceners as on 9 September 2005 irrespective of when such daughters are born.

However, as mentioned above, the aforesaid amendment and the above judgment of the Supreme Court are relevant for the purposes of devolution of interest in coparcenary property in a Joint Hindu family governed by the Mitakshara law.

In your case, if your question is related to sharing of coparcenary property of the Joint Hindu family, then you may not be able to claim share in such property of your father since he had died prior to 2005.     

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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]

As mentioned in my previous reply, please send a proper notice for 15 days through Registered A.D. post, even if the authority has promised you. This is so because you have mentioned that the authority is expecting some gratification from you. So, in the absence of a gratification from you, if the authority does not make the payment within 15 days after receipt of notice, at least you would be able to initiate criminal action for cheque bounce case.

Secondly, if the authority is expecting gratification and has demanded any bribe from you, you should approach the Anti-Corruption Bureau / department in your state and get the concerned officer caught red-handed for demand / acceptance of bribe.     

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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]

Generally speaking, in the case of a cheque bounce, an offence under Section 138 of the Negotiable Instruments Act is made out, and not under Section 420 IPC. Therefore, when a cheque is dishonoured, a complaint should be filed in the competent court for the offence under Section 138 of N.I. Act, after satisfying other ingredients of the offence under that section.

However, there may be some situations when an offence under Section 420 IPC may be made out in the case of a cheque bounce. For example, if the person who has issued the cheque has already closed his bank account; and knowing fully well that he has already closed his bank account, he still issues a cheque to some other person and takes delivery of some goods against that cheque; in such a situation, the intention of the person issuing cheque is clearly dishonest since he knows very well that the cheque would not be honoured as he had himself already closed his account, and with this dishonest intention since the inception he has cheated the other party by making him deliver the goods to him for that cheque which was never intended to be honoured. So, this may perhaps be one example where offence under Section 420 IPC can be made out for cheque bounce. There may be other similar situations when the offence of cheating under Section 420 IPC could be made out in cheque bounce.

However, generally speaking, as mentioned above, in cheque bounce, the offence under Section 138 of Negotiable Instruments Act only is made out.

Please keep in mind that offences under Section 138 N.I. Act and Section 420 IPC are two different offences altogether. Whether this offence or that offence is made out would depend on the facts of each case. You’ll have to check the ingredients of which particular offence are satisfied from the facts of your case. See the provisions of Section 420 IPC, which is reproduced below and check whether these ingredients are satisfied, and if yes, then the cheating case is made out, otherwise if only the ingredients of Section 138 N.I. Act are satisfied then you’ll have to file the case under that section alone.

“420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

Offence of cheating requires that there should a dishonest intention since the beginning to cheat, and then, other ingredients of that offence (as mentioned above) should also be satisfied. If these conditions are satisfied, then the offence of cheating can be made out even in a cheque bounce case. But, as mentioned above, generally speaking, for a cheque bounce case, offence under Section 138 N.I. Act only is made out, and that too, if conditions mentioned in that section are satisfied. Please read for more details: Cheque bounce cases under Section 138 Negotiable Instruments Act Explained.     

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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 mentioned that “Appeal filed against the judgement stood dismissed”, but it is not mentioned whether the appeal was filed before the Supreme Court or before the division bench of the High Court (if the order was that of a single judge bench of the High Court).

Generally speaking, there is no restriction in law against challenging an implemented order or judgment of the High Court (i.e., an order which has already been implemented), but the higher court (in this case, the Supreme Court) may observe that the order has already been implemented and that the challenge (i.e., the appeal in the higher court) is only an academic exercise and in such a case the appeal may be dismissed or may not be relevant for laying down the legal principle. But, some times, there are other reasons for challenging such order which has already been implemented. For example, the high court order may initially be in favour of a single person and the Government or authority concerned may implement that thinking that it does not have serious financial implications. But, subsequently, it may come to the notice of the authority that a number of other people may also claim similar benefit, which may have wider financial implications for the Government, so, therefore, the authority may decide to challenge such order even if it has been already implemented in respect of one or more employees.

However, this does not mean that you do not have remedy in this case. Firstly, you may also file an appropriate petition before the High Court and you may get a similar order from the High Court. Stay by the Supreme Court does not mean that the order of the High Court has been reversed as yet. As of today, the High Court order is valid, though stayed.

Second remedy for you would be to directly file an impleadment / intervening application before the Supreme Court in the case in which the High Court order has been challenged, on the ground that you would also be affected by its judgment. If your application is allowed by the Supreme Court, you may also be named as a respondent and you would be heard by the court and you can make your own submissions. In such a case, the judgment of the Supreme Court would be directly applicable to your case also.
     

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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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