[Dr. Ashok Dhamija]

Section 156(3) of the Criminal Procedure Code gives power to the Magistrate to order investigation by police in a matter where a cognizable offence has taken place.

So, if any cognizable offence has been committed by the police officer conducting investigation (while doing improper investigation, as mentioned by you), and if the police is not registering FIR in such matter, then the accused can also approach the Magistrate court for directing investigation / FIR against the investigating officer for that offence.

So, remember, firstly that any person (including even an accused person) aggrieved by non-registration of FIR by police in a cognizable offence can approach the Magistrate under Section 156(3) of the Cr.P.C. Secondly, merely improper investigation is not sufficient, there must have been some cognizable offence committed by the investigating police officer, then only you can approach the Magistrate for ordering FIR / investigation against that officer.

     

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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, the offer to join a Government job is valid for a limited period. The concerned appointing authority may sometimes indicate even the last date of joining too. If the person to whom the Government job has been offered, does not join the service within the period allowed, if any, the concerned authority may offer the same job to the next candidate in the waiting list, if any; or such authority may advertise the vacancy afresh and conduct a fresh recruitment.

Therefore, generally speaking, there are little chances that the post which was offered to you is still lying vacant and nobody was given this post after you declined to join it.

However, if the post is at a remote location, sometimes such posts keep lying vacant if nobody is willing to join there.

Therefore, what I would suggest is that you should contact the concerned department / authority, and inform them that you are willing to join at this stage in the same post even at the remote location. If it is possible due to the post being vacant, and also if the rules permit it, the authority may perhaps allow you to join the post.

You can also check the relevant recruitment rules / joining rules of the concerned department to see if there is any provision in these rules which can help you in such situation.

     

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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 various judgments of the Supreme Court as per which a departmental enquiry can be conducted along with the criminal case, unless the proceedings have been stayed by a competent court.

Therefore, as far as I know, if the CBI Inspector (who investigated the case) is officially called for deposing as a witness in the departmental enquiry, he can appear and give his statement in the departmental enquiry without obtaining any permission from the court. This is what is my understanding. After all, he would be deposing only about the factual position as per the investigation conducted by him.

Moreover, when our legal system permits the departmental enquiry being conducted even during the pendency of the criminal case, there should be no objection to the investigating officer deposing in the departmental enquiry even though the criminal case may still be sub-judice.

 

     

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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 149 of the Criminal Procedure Code gives power to police to interpose for the purpose of preventing the commission of any cognizable offence. So, this is basically a preventive measure, which is taken when any offence is likely to take place in near future or imminently.

It is different from the action that the police takes where a cognizable offence has already taken place (in which case, the police would register FIR and conduct investigation).

Since action under Section 149 of the Cr.P.C. is basically for the purposes of preventing the future commissioning of an offence, usually the police may caution the person concerned, or may initiate a proceeding for obtaining bond for keeping peace, good behaviour, etc. In some urgent / extreme situations, police has the power to arrest such person under Section 151 of the Cr.P.C., which is also a preventive measure and the maximum custody for such arrest is 24 hours (except in Maharashtra, where, with the order of the Magistrate, such custody can be extended to a maximum of 15 days).

If a notice has been sent by police under Section 149 Cr.P.C., the residents to whom the notice has been sent, should cooperate with police. Keeping in view the nature of facts mentioned by you, generally, in such situations, police may resort to cautioning or proceed for obtaining bond for keeping peace or good behaviour.

 

     

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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 the case of U.R. Virupakshappa v. Sarvamangala, (2009) 2 SCC 177 : AIR 2009 SC 1481, the Supreme Court has observed (by quoting from Mulla’s Hindu Law) that:

“Property inherited by a Hindu from his father, father's father or father's father's father, is ancestral property. … The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-grandsons, they become joint owner's coparceners with him. They become entitled to it due to their birth.”.

Full paragraph quoted by the Supreme Court in this judgment from Mulla’s Hindu Law is as under:

“ §212. Joint Hindu family.—(1)***

(2) The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate, but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint. Where there is joint estate, and the members of the family become separate in estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation.

Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family.

***

§ 213. Hindu coparcenary.—A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. See § 217. The above propositions must be read in the light of what has been stated in the note at the top of this chapter.

To understand the formation of a coparcenary, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father's father or father's father's father, is ancestral property. Property inherited by him from other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-grandsons, they become joint owner's coparceners with him. They become entitled to it due to their birth. These propositions also must be read in the light of what has been stated in the note at the top of this chapter.”

 

     

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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 provisions of clause (c) of the Proviso to Section 138 of the Negotiable Instruments Act, the drawer of the cheque is required to make the payment within a period of 15 days from the date of receipt of notice from the payee of the cheque.

Therefore, the a notice of 15 days (from the date of receipt of the notice) is required to be given to the drawer of the cheque.

If the drawer fails to make payment within this period of 15 days, then a complaint under Section 138 of the Negotiable Instruments Act can be filed for cheque bounce case (provided, of course, if other conditions mentioned in that section are satisfied).

     

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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 discharge petition is required to be filed before the framing of charges. Once the charges have been framed, the trial will start and the accused can get acquitted but not discharged. Of course, the accused can challenge the order of framing of charge in the higher courts. But, if he wants to file a discharge petition in the trial court itself, then it should be done prior to 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]

It may not be permissible to see or get details of the Confidential Reports of other employees under the Right to Information Act.

Such information is generally refused under Section 8 of the RTI Act, especially, clauses (e) and (j) thereof, which are as under:

“8. Exemption from disclosure of information.—(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—

(f) information received in confidence from foreign Government;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the Appellate Authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:”

 

     

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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 basically two ways to transfer the investigation of a case from the state police to the Central Bureau of Investigation (CBI).

First method is to transfer the case with the consent of the State Government to the CBI. In such scenario, the State Government makes a request to the Central Government to hand over the investigation of the case to CBI. If the Central Government agrees to such request, it may issue an order transferring the investigation to the CBI. This is done under the provisions of the Delhi Special Police Establishment Act, 1946.

Second method is to obtain the order from a High Court or the Supreme Court transferring the investigation of the case from state police to CBI. The Supreme Court and the high courts have the power to transfer a case from state police to CBI, and this can be done even without the consent of the State Government concerned.

 

     

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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 the FIR has been filed and has been registered by police, it is not possible for the complainant to take back the FIR. But, there are other ways to nullify the effect of FIR in certain cases.

For example, if the offence for which the FIR is registered is compoundable (as specified in Section 320 of the Criminal Procedure Code), then the case can be compromised with or with the permission of the court, as the case may be, as laid down in Section 320 of Cr.P.C. Once the offence has been so compromised, the accused person is deemed to have been acquitted of the offence.

Secondly, even in some of those cases which are non-compoundable, the case can be quashed by the High Court under Section 482 of the Cr.P.C. on the basis of the compromise between the parties (however, it is not permitted in serious cases and certain other cases where corruption or public money is involved).

Thirdly, if it is found during the investigation of the FIR that sufficient evidence is not available to prove the case or that the offence is not made out or that a false complaint was given, the police officer investigating the FIR has the power to close the investigation and file a closure report in the court. This way too the FIR can be put to an end, and the complainant can try to convince the police officer in this direction if he is not interested to pursue the case.

Fourthly, in certain cases, the Public Prosecutor has the power to withdraw the prosecution under the provisions of Section 321 of the Cr.P.C.

Fifthly, if during trial, there is no evidence the accused can be acquitted. If the complainant does not give evidence against the accused during the trial, the accused has a better chance of acquittal.

 

     

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

[Dr. Ashok Dhamija]

You have not specified about the category of the employee in respect of which you are asking this question.

As far as employees of the Central Government and the Central Public Sector Undertakings (PSUs) are concerned, there is a specific provision in the CVC Manual that an officer who made the preliminary investigation or inquiry into the case should not be appointed as Presenting Officer. The relevant rule in the CVC Manual (of the Central Vigilance Commission) is reproduced below for your information:

“7.21.8 Appointment of a Presenting Officer: The Disciplinary Authority which initiated the proceedings will also appoint simultaneously a Government servant or a legal practitioner as the Presenting Officer to present on its behalf the case in support of the articles of charge before the Inquiring Authority. Ordinarily a Government servant belonging to the Departmental set up who is conversant with the case will be appointed as the Presenting Officer except in cases involving complicated points of law where it may be considered desirable to appoint a legal practitioner to present the case on behalf of the Disciplinary Authority. An officer who made the preliminary investigation or inquiry into the case should not be appointed as Presenting Officer.”

     

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

[Dr. Ashok Dhamija]

Yes, it is possible for the High Court to grant a stay against the order of the Magistrate passed under Section 156(3) of the Criminal Procedure Code.

As I mentioned in one of my previous answers (156(3) Cr.P.C. – whether revision possible before Sessions or other court), a revision petition can be filed against an order passed by the Magistrate under Section 156(3) of the Criminal Procedure Code before the Sessions Court or High Court. If such higher court is convinced about the merits of such revision petition, it may grant stay against the order of the Magistrate at the initial stage during the pendency of such revision petition. Of course, after the revision petition is finally heard, either the order of the Magistrate may be approved, or set aside or modified depending on the 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]

Firstly, it is not clear from your question as to under which Government or PSU, etc., your friend is working. The rules on suspension and the subsistence allowances may be different for different Governments / organizations. So, you may have to check the relevant rules which are applicable in the case of your friend.

But, generally speaking, many states and PSUs have rules which are similar to the Central Government rules.

As far as Central Government rules are concerned, I have explained the legal position with regard to the subsistence allowance in my previous answer, which can be seen at Subsistence allowance during suspension not increased after six months also.

As per this, there are instructions in the Fundamental Rules – FR 53, that the subsistence allowance is required to be reviewed by the competent authority after 3 months of the suspension, and it may be increased by up to 50% of the allowance during the first 3 months (which means that now it can become 75%) or reduced by up to 50 % of the allowance during the first 3 months (which means now it can become 25%).

Thus, what is required under the above rule is that a review must be conducted by the competent authority on completion of 3 months under suspension. However, it is not necessary that the subsistence allowance will always be increased after such review. It may be increased as above or may be kept intact at 50% or may even be reduced, depending upon facts and circumstances of the case (such as, for example, whether the suspended government servant is cooperating with the inquiry). Whatever may be the result of the review, it is mandatory to conduct the review even if the subsistence allowance is not changed after such review, but a formal review has to take place 3 months after the suspension and an order passed accordingly.

So, if similar rules are applicable in the case of your friend and if no such review has been conducted to change the subsistence allowance even after 2 years, as you have mentioned, then your friend should request the competent authority to do this exercise immediately. If he does not get justice from the competent authority, he may approach the appropriate court or tribunal which has jurisdiction in the service matters of your friend (i.e., depending upon where your friend is posted).

     

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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 will have to file a Special Leave Petition (SLP) against the order of the High Court in a bail matter.

The period of limitation for filing such SLP is 3 months from the date of order of the High Court. But, in appropriate cases, the Supreme Court has the power to condone the delay, for which you can file an application for condonation of delay along with the SLP, explaining the reasons for 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]

Your question is not quite clear as it is not understood what do you mean to ask. Anyway, let me try to answer it the way I understood your question.

The general diary of a police station is usually in the form of a book that contains 100 blank pages. The general diary is continued in that book till all pages in it are exhausted. Once all 100 pages are full, a new general diary book is started.

But, the general diary is otherwise maintained on day to day basis. This implies that usually the general diary will start with entry No. 1 at 12 am midnight for the new date. The subsequent entries in the general diary will be given sequential numbers, such as 2, 3, 4, etc., till the next date, till 12 am midnight when the new numbering from Entry No. 1 will start again for the new date.

However, as I mentioned, the entries for the next date are also made in the same 100-page book till there are pages left in that book. Once a general diary book of 100 pages get completed, a new book is started. This process goes on.

     

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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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