[Dr. Ashok Dhamija]

Secondary evidence is defined in Section 63 of the Evidence Act, which is reproduced as under:

“63. Secondary evidence.—Secondary evidence means and includes—

(1) certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

Illustrations

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.”

From the above, it can be seen that as per clause (2) of Section 63, copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies, are also considered as secondary evidence. Here, “such copies” means copies made from the original by mechanical process which in themselves insure the accuracy of the copy. Thus, it appears that the expression “such copies” includes photocopies which have been produced by a mechanical process ensuring the accuracy of the copying process. In view of this, a copy made from and compared with such a photocopy may also perhaps be submitted as a secondary evidence of the original document.

If, in your question, you are referring to a “certified copy” as is given under Section 76 of the Evidence Act, of the public documents, then in such situation such certified copy is required to be a copy of the public document itself.

Therefore, the answer to your question will depend on the detailed facts of the case concerned. But, as explained above, in certain situations it may be possible to allow a copy made from and compared with the photocopy (which has been obtained by a mechanical process from the original ensuring the accuracy of the photocopying process) as secondary evidence of the original.

     

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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 have replied to a similar question earlier, which may be relevant to your question as well. Please see: Can departmental proceedings be initiated simultaneously with criminal case?

As I answered in the aforesaid question, as per the guidelines laid down by the Supreme Court, it is possible to simultaneously conduct department proceedings and the criminal proceedings on the same charges. Therefore, legally, there is no bar for conducting departmental enquiry when criminal case on the same charge is still pending in the court. It is in the discretion of the competent authority.

Sometimes, even though the charge in the departmental enquiry as well as in the criminal case may be the same, they may have to be looked at from different angles; for example, the charge in a criminal case is based purely on the legal definition of the offence, whereas the charge in the departmental enquiry may involve the ethical or moral questions also. A departmental misconduct has a much wider scope than an offence.

     

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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, you have not clarified what type of offence this is. Different types of offences take different times to investigate. Some simple offences may be investigated within a few days, while some serious offences may require several months to complete the investigation. Cases where examination by scientific experts is required, or a large number of documents are to be examined, or a number of witnesses are to be examined, may take a long period for the investigation to get completed. An undetected case may also sometimes take unduly long period of time to get investigated, since detecting a case is sometimes a time-consuming process.

Please also keep in mind that barring some small offences, known as summons cases (where the punishment is for a maximum imprisonment for two years), where usually there is a time limit of completing the investigation within a period of six months under Section 167(5) of the Cr.P.C., for other offences there is, generally speaking, no time limit for completing the investigation. Of course, it goes without saying that all investigations are required to be completed expeditiously. A detailed investigation can give an arrested accused person to get “default” bail under Proviso to Section 167(2) of the Cr.P.C.

In any case, if you feel that the investigation in your case has been delayed unnecessarily due to the negligence, carelessness or deliberate inaction on the part of the investigating officer, you can go and meet the senior officers of police and request them to get the investigation expedited.

Unless the investigation has been badly delayed beyond all reasonable periods, it may not generally be possible to obtain any relief in this regard from the courts. In case of an inordinate delay in the investigation, if approaching the senior officers of the police does not help, you can approach the High Court under Section 482 of the Cr.P.C. seeking directions to the police officer concerned to get the investigation expedited.

     

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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]

Provision for grant of anticipatory bail is laid down in Section 438 of the Cr.P.C. Anticipatory bail can be granted where arrest is apprehended in a non-bailable offence. The power to grant anticipatory bail has been vested in Sessions Court and the High Court.

If the application for the grant of anticipatory bail has been rejected by the Sessions Court, it is possible to file another application for the grant of anticipatory bail before the High Court. There is no restriction or prohibition under law for doing that.

What is the probability or chance of getting anticipatory bail in such situation, would depend upon the merits and facts of the case. There are many cases wherein the High Court granted anticipatory bail even after a similar application had been rejected by the Sessions Court. Likewise, there are many cases wherein application for the grant of anticipatory bail was rejected by the High Court in similar situations. So, it depends all on the facts and merits of an individual case.

However, as mentioned above, there is no prohibition under law for filing an application for anticipatory bail before the High Court after the application for anticipatory bail was rejected by the Sessions Court. In fact, you can even approach the Supreme Court for grant of anticipatory bail by filing an SLP against the decision of the High Court rejecting such application.

     

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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 there is another case of some other employee in which the same question of law is applicable (which the Supreme Court has kept open after having dismissed the SLP in the case of an employee), then it is possible for the state government to file SLP in the Supreme Court in the case of such other employee.

This is mainly because of the reason that facts in each case are different, while the question of law may be common. Since the Supreme Court has kept the question of law open, this implies that the question of law has not been settled by it. Therefore, if another case arises (of some other employee) in which the same question of law arises, it is possible for the state government to file an SLP in the case of such other employee to get his case decided and/or to get the question of settled.

However, once the SLP in respect of a particular employee has already been dismissed, it is not possible for the state government to file another SLP in the same matter, i.e., in the matter of the same employee arising out of the same cause of action, irrespective of whether or not the question of law has been kept open. But, even in such a case, the state government can file a Review Petition after the dismissal of the SLP; and, if such Review Petition is also dismissed, a Curative Petition can also be filed in the Supreme Court subject to certain conditions.

     

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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 to file a separate case under Section 498A of IPC, while a case under Section 125 of the Cr.P.C. is still pending in the court.

Please appreciate that proceedings under Section 125 of the Cr.P.C. are for maintenance, i.e., a monthly allowance to be paid to the wife for her sustenance. It is quite different from an offence under Section 498A of the IPC.

If an incident has taken place wherein the ingredients of the offence defined under Section 498A of the IPC are satisfied, then such an offence can be registered, irrespective of whether any proceedings under Section 125 of the Cr.P.C. are pending in court between the same parties.

In fact, in a large number of cases, in practice, cases under Section 125 of the Cr.P.C. as well as Section 498A of IPC are conducted simultaneously.

     

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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]

Recently, in the case of State of Maharashtra v. Chief Information Commissioner [W.P. (C) No. 9971 of 2013, decided on 19.04.2018], it has been held by the Bombay High Court that the Police Manual of Maharashtra state is a public document. The High Court upheld the decision of the Chief Information Commissioner under the RTI Act that copy of the Police Manual should be made available to the private person who had made a request for the same. In fact, the Chief Information Commissioner had also held that, being a public document, a copy of the same should be placed on the website of the police department. The High Court dismissed an appeal filed against the decision of the Chief Information Commissioner.

Thus, the legal position in this regard is that the Police Manual is a public document and therefore, private persons can have access thereto.

CBI Crime Manual is also similar to the Police Manual of a state police. Therefore, the CBI Crime Manual can also be said to be a public document.

Previously, it used to be available online on the website of the CBI website. You may have to check it thoroughly on the CBI website to find out whether it is available now (there does not appear to be a visible link on its website). I noticed that it is being hosted online by some private websites too. You can search online by the searching “CBI Crime Manual”. If it is not available online, then you may request the CBI under the RTI Act for a copy of the same, by agreeing to pay its price as required under the RTI Act. You may cite the Bombay High Court judgment in the above case to buttress 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]

Till recently, it was under Section 12 of the Prevention of Corruption Act, 1988, under which a person offering or giving bribe to the public servant was punished. This section is reproduced below:

“12. Punishment for abetment of offences defined in Section 7 or 11.—Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine.”

However, with effect from 26 July 2018, the above Act has been amended through the Prevention of Corruption (Amendment) Act, 2018. These new amendments have come into force with effect from 26 July 2018. A new Section 8 has been substituted in the Prevention of Corruption Act, 1988, which now punishes the bribe-givers, as reproduced below:

“8. Offence relating to bribing of a public servant.- (1) Any person who gives or promises to give an undue advantage to another person or persons, with intention—

(i) to induce a public servant to perform improperly a public duty; or

(ii) to reward such public servant for the improper performance of public duty;

shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both:

Provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage:

Provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage:

Provided also that when the offence under this section has been committed by commercial organisation, such commercial organisation shall be punishable with fine.

Illustration.—A person, ‘P’ gives a public servant, ‘S’ an amount of ten thousand rupees to ensure that he is granted a license, over all the other bidders. ‘P’ is guilty of an offence under this sub-section.

Explanation.—It shall be immaterial whether the person to whom an undue advantage is given or promised to be given is the same person as the person who is to perform, or has performed, the public duty concerned, and, it shall also be immaterial whether such undue advantage is given or promised to be given by the person directly or through a third party.

(2) Nothing in sub-section (1) shall apply to a person, if that person, after informing a law enforcement authority or investigating agency, gives or promises to give any undue advantage to another person in order to assist such law enforcement authority or investigating agency in its investigation of the offence alleged against the later.”

Moreover, in the newly substituted Section 9 by way of the above amendments, a new offence relating to bribing a public servant by a commercial organisation, has also been created.

     

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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 Section 461(g) of the Cr.P.C., where a magistrate makes an order for maintenance, when he is not empowered by law in this behalf, his proceedings are void. This means that the order of maintenance passed by the magistrate is invalid and can be set aside by the higher courts. Therefore, your lawyer has correctly advice to challenge this order and get it set aside by the higher courts.     

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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 to file a non-cognizable offence report with the police. You can specifically request the police to not register any FIR and give your complaint in such a manner that its ingredients are only those of non-cognizable offence. A police station usually maintains an NCR register (Non-Cognizable Report Register) in which they record the complaints received by them which disclose non-cognizable offences. The police officer concerned will give you the serial number in this register against which your complaint has been recorded.     

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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 your consumer case was originally decided by the district forum and you have filed an appeal against that decision before the state consumer forum, then take the decision of the state consumer forum in such appeal goes against you, then you can file a revision application before the National consumer forum (i.e., NCDRC) under the provisions of Section 21(b) of the Consumer Protection Act, 1986.     

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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]

Since the trial in a cheque bounce case is conducted by a Magistrate court, an appeal against the decision of the Magistrate in such a case can be filed in the Sessions 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 offence of possessing assets disproportionate to the known sources of income is defined under clause (e) of Section 13(1) of the Prevention of Corruption Act, 1988, which is reproduced below:

“13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of criminal misconduct,—

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(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.—For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.”

It is clear from the above provisions that even if a public servant has, at any time during period of his office, been in possession of assets, etc., subject to other conditions of the said provision, the offence under Section 13(1)(e) of the said Act is made out.

Therefore, if the retired senior government officer, referred to by you, was in possession of disproportionate assets at any time during his service, the said offence is made out against him.

It is also noteworthy that the above offence is punishable with a maximum of 10 years’ imprisonment. Therefore, there is no limitation period for taking of cognizance in such offence. Accordingly, even though he retired one year back, if the offence of disproportionate assets was committed by him at any time during his service, such offence can still be registered even after his retirement.

     

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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, note that a witness is required to remain present in the court himself for examination. Nobody else can appear for him if he has expired. Of course, if such witness was a formal witness (such as for just producing some documents), then sometimes another person may do the same thing in court, i.e., for example for producing such documents if he is familiar with them and can authenticate them.

Secondly, for production of your defence documents, you could have tried to produce such documents at the time of cross-examination of the prosecution witnesses, wherever relevant.

Thirdly, you can try to produce these documents under Section 294 of the Criminal Procedure Code, asking the opposite party, i.e., the prosecution, to admit or deny the same. If the prosecution admits those documents, then there is no need for producing them through any defence witness and such admitted documents are taken on record straightaway.

Fourthly, your defence documents can be produced through any other defence witness also (other than the accused persons) provided they are familiar with them and can authenticate them. For example, for hospital bills, etc., someone from the accounts section of the hospital can produce them as a defence witness.

Lastly, if you or any other accused person produces such defence documents in the court as a defence witness, then the prosecution will get a chance to cross-examine. No examination of a witness is considered to be complete without cross-examination.

     

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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 do not know how to operate the Income Tax Calculator the link to which was given by me in my previous answer. In such situation, please engage some local CA to do the computations for you. You commit the mistake yourself, and then you blame on the above calculator / software or blame me saying that the basic exemption limit of Rs. 250,000 is not being allowed.

Using the figures given by you, I have done the calculations myself on the above IT Calculator, and the total taxable limit comes to Rs. 335,000 (and not Rs. 385000 as found by you). Moreover, the above IT Calculator correctly allows the basic exemption limit of Rs. 250,000 and then on the remaining taxable income of Rs. 85000, tax at the rate of 20% is calculated for LTCG. The total tax is Rs. 14500 (after giving the deduction under Section 87A) and with cess, the total tax is Rs. 14,935 only.

You can download the calculation chart prepared by me from the above IT Calculator from the following link:

https://drive.google.com/file/d/1fBpwALe8Hfq8la8weZrHiQDxoUgxeJ2_/view?usp=sharing
     

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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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