[Dr. Ashok Dhamija]

It is not clear from your question as to whether the cheque did not bear the signature of any person at all (including that of the issuing authority) or it contained the signature of some one other than the issuing authority.

Likewise, though you have mentioned that the bank had informed you that the cheque had bounced, but the reason is not mentioned in your question; however, from the heading of your question, it appears that the reason given may perhaps have been “13-Drawer’s signature required”. Please confirm it.

In either case, it is advisable for you to give a 15 days’ time period to the concerned authority to make the amount, as required under clause (c) of the Proviso to Section 138 of the Negotiable Instruments Act, and a 3 days’ notice given by you may not be sufficient if you are required to file the case at a later stage. Moreover, you have sent the notice by email; it may not be sufficient. You should send the notice by registered post so that you get proof of delivery of the notice in court at a later stage, if needed.

Please read the provisions of Section 138 carefully or take help of some local lawyer so that you take the correct legal action as per the legal provisions.

Since the cheque issuing authority is a Government authority, I feel that the “missing signature” on the cheque may be by mistake and also that on a proper notice being sent the authority would perhaps make the payment this time.

In the worst scenario, if the payment is not made even after notice and if you act according to the provisions of Section 138, I am of the considered opinion that an offence may be made out under that section in the facts mentioned by you, provided of course that other conditions in Section 138 are satisfied, i.e., of sending the notice and the non-payment by the issuing authority.
     

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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 you feel that the opposite party is likely to approach the Supreme Court by way of filing SLP (Special Leave Petition), you may file a caveat in the Supreme Court. Under the SC Rules, it has been provided that where a caveat has been lodged, notice of the hearing of the petition (SLP) filed by the opposite party shall be given to the caveator. In the absence of a caveat, petition for grant of special leave (SLP) is put up for hearing ex-parte, but the Court, if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition.

Thus, if you file the caveat, you’ll be informed about he hearing of the case in advance by the Supreme Court and you’ll get an opportunity of opposing the grant of leave or interim relief or stay, if any, without filing any written objections.

If you so wish, you can also file your objections within 30 days from the date of receipt of notice or not later than 2 weeks before the date appointed for hearing, whichever is earlier, but you can do so only by setting out the grounds in opposition to the questions of law or grounds set out in the SLP and may produce such pleadings and documents filed before the Court/Tribunal against whose order the SLP is filed and may also set out the grounds for not granting interim order or for vacating interim order if already granted.
     

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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 437 of the Cr.P.C. deals with the power of the Magistrate to grant bail. What Section 437(1)(i) basically means is that a person accused of an offence punishable with death or imprisonment for life shall not be released on bail by the Magistrate if there appear reasonable grounds for believing that he has been guilty of such an offence. However, conversely, it also implies that where a person is accused of such a serious offence and there does NOT appear to be reasonable grounds for believing that he is guilty of such an offence, the Magistrate would have the power to grant bail to him. So, this particular clause of Section 437 basically implies that the power of Magistrate to grant bail in such a serious offence are limited.

In a practical scenario, in a serious case of this nature before him, on the basis of the facts and circumstances of the case, if the Magistrate can come to a conclusion that there is no evidence in the case or that it is a false case, etc., he may grant bail to him. But, generally, if there appears to be a prima facie case against the accused, it may not be permissible for the Magistrate to grant bail in such a serious offence.

At the same time, powers of the High Court and the Court of Session to grant bail in such cases are not limited in this manner. This is clear from the language of Section 439 of Cr.P.C., which is reproduced below:

“439. Special powers of High Court or Court of Session regarding bail.— (1) A High Court or Court of Session may direct—
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

Therefore, the High Court and the Court of Session can still grant bail in an offence which is punishable with death or imprisonment for life in appropriate cases wherever it is desirable.

Thus, the object of these provisions appears to be that the bail in such serious cases should generally be granted by the Sessions Court or the High Court.

The second part of your question (i.e., “does the position in any way change if the bail application is moved after the case has come on trial and the charges of murder or other like offences have already been framed against the accused by the court”) may not be directly relevant. This is so because once the charges are framed in an offence which is punishable with death or imprisonment for life, the case would already have been committed for trial to the Sessions Court since the power to frame charges in such a case is only with a Court of Session (these cases being Sessions triable cases). Therefore, the Magistrate would not be in a position to grant bail to such an accused when the accused is already facing trial before the Court of Session after framing of charges.
     

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

[Dr. Ashok Dhamija]

The Supreme Court judgment in the case of Ajay Kumar Choudhary [read the judgment here: http://tilakmarg.com/doc/sc/ajay-kumar-choudhary-v-union-of-india-through-its-secretary-supreme-court-judgment-16-february-2015] was delivered in the case of a person who was working under the Central Government and was subject to the Central Civil Services Rules, under which there is a provision laying down that the suspension order can be issued initially for a period of 90 days, during which period it has to be reviewed by the authority and thereafter it can be extended indefinitely for a period of 180 days at a time subject to further review within such extended period. Moreover, this judgment was passed in a case where the suspension was due to some default other than a criminal matter.

I am not sure as to whether there are similar provisions in the rules applicable to you under the Chhattisgarh Government.

However, I am of the opinion that the above Supreme Court judgment should be applicable in your case also. This is due to the fact that the Supreme Court has derived the legal principle of suspension period not exceeding 3 months by extending the benefit of the right of a speedy trial in criminal cases to the issue of suspension in service law jurisprudence. Therefore, a general principle has been laid down, which should be applicable in all similar cases. Secondly, the Supreme Court also referred to the provisions of Section 167(2) Cr.P.C. that lay down a maximum period (of 2 or 3 months) for completion of investigation otherwise an accused gets a right to bail. Supreme Court held that respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal. Thirdly, the Supreme Court has also held that “the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us”. In view of these and other reasons, it is clear that the Supreme Court in the above case is generally worded and it should apply in your case.

In the worst scenario, the fact remains that a new beginning has been made by the Supreme Court in the law relating to suspension, and the same principle may get applied also in other types of cases by extension of the same principle. In fact, any rules relating to suspension which are not in conformity with the above Supreme Court judgment may also be challenged appropriately to get them struck down.

Therefore, I feel that the judgment should be made applicable in your case and you should approach the concerned authorities or the court / tribunal for getting the benefit of this judgment.

[Read the full article referred in this reply “Suspension order not to extend beyond 3 months if charge-sheet is not served, says Supreme Court” here: http://tilakmarg.com/news/suspension-order-not-to-extend-beyond-3-months-if-charge-sheet-is-not-served-says-supreme-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]

The decision of a 5-judge Constitution bench of the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 : AIR 2014 SC 187 : 2014 Cri LJ 470, is still fully valid and it is mandatory for the police to register FIR on the basis of an information or complaint which discloses commission of a cognizable offence.

However, there is a very small clarification issued in the said judgment subsequently which is as under. As you may notice, in para 120.2 of the main Lalita Kumari judgment, the Supreme Court had held that if the information received does NOT disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. In para 120.7 of the said judgment, the Supreme Court held that such preliminary inquiry should be made time-bound and in any case it should not exceed 7 days and that the fact of such delay and the causes of it must be reflected in the General Diary entry.

Subsequently, the same Constitution bench of the Supreme Court, vide its order dated 5 March 2014 had directed a minor modification in its aforesaid earlier order dated 12 September 2013 holding that a preliminary inquiry should be made time bound and in any case it should not exceed fifteen days generally and in exceptional cases, by giving adequate reasons, six weeks time is provided and the fact of such delay and the causes of it must be reflected in the General Diary entry.

Barring this minor clarification issued subsequently, the main Lalita Kumari judgment is fully valid and binding, and as per this judgment if the information given to police discloses commission of a cognizable offence then registration of FIR is mandatory.
     

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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]

At present, there is no restriction for the purposes of contesting the elections for Legislative Assembly of State or for parliament, for a person against whom charge sheet has been filed or against whom charges have been framed in a criminal case. Such person can, therefore, contest Assembly elections.

In this regard, please see the observations of the Supreme Court made on 17 February 2015, in which the Chief justice of India, Justice H.L. Dattu stated as under:

“If we accept that persons against whom charges are framed should be prevented from contesting elections, it would result in a danger to the democratic polity and ethos of this country.”

However, earlier directions had been issued by Supreme Court holding that prosecution of an elected representative (MP or MLA) should be expedited. Please see my following articles in this regard:

(1) Expeditious criminal prosecution of sitting MPs and MLAs [http://www.tilakmarg.com/2014/05/expeditious-criminal-prosecution-of.html]

(2) Confusing signals from SC on expeditious criminal prosecution of sitting MPs and MLAs [http://www.tilakmarg.com/2014/08/confusing-signals-from-sc-on.html].     

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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 fact remains that FIR was registered, even though it was subsequently quashed by the High Court. Therefore, if there is a column in the police verification requiring that details of all FIRs should be mentioned, then it should be mentioned. Secondly, in the column asking about disposal of the FIR, you can mention that the FIR was quashed on the ground that it was registered by the complainant due to misunderstanding.

Likewise, if there is a column asking for details of pending criminal cases, there, of course, you can mention that no case is pending since this FIR was quashed.

It is necessary that correct and full information is provided to the Government at the time of seeking employment, so that there are no complications in future.
     

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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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