Dr. Ashok Dhamija

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  • in reply to: Child Support #4905

    If you are not able to arrive at an amicable settlement of the issue with your wife, then you may have to file an application before the family court (or other court having jurisdiction in such matter in your state / city) for custody of the child. It is for the court to give order for grant of child custody. Please see the relevant provisions of the Guardians and Wards Act, 1890, which may be available online.

         


    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.

  • Usually, one-third of the salary income is considered as household expenditure of the public servant in a case of disproportionate assets under Section 13(1)(e) of the Prevention of Corruption Act, 1988. This is done for the non-verifiable expenses for the basic necessities of life such as food, clothing, etc., for which generally there may not be any evidence available. Other verifiable expenses (for which separate evidence is available) are usually shown separately.

    Since the expenditure on hostel stay of your son is a special expenditure (with evidence), the court or the prosecution may not agree for 50% reduction of this amount from the general household expenditure.

    You may instead try to use the following formula for reduction on account of this hostel expenditure. Firstly, suppose there are 4 members in the family, then it is only 25% of the family members being out for residence. Secondly, this hostel expenditure is for 2 years while the general household expenditure may have been for the whole duration of the check period. So, you may be entitled for the corresponding share of the deduction for 2 years. For example, if the check period is of 20 years, then compute the general household expenditure for the relevant 2 years when your son was in hostel (it is better to take one-third of salary of those 2 years). Now, out of the general household expenditure for these 2 years, reduce 25% of the same, presuming that there are a total of 4 members in the family. The amount arrived at in this manner may perhaps be deducted from the general household expenditure, as this would be a fair manner of calculating it.

         


    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.

  • In the facts stated by you, it may not be possible to apply for anticipatory bail. The person had already been granted bail and it is only due to his non-appearance that a warrant has been issued against him by the court. In this situation, instead of seeking anticipatory bail, the person should try for cancellation of warrant issued against him, explaining reasons for his non-appearance.

    Here, I am presuming that a non-bailable warrant (NBW) would have been issued against him, though you have not clarified whether it is a NBW or a bailable warrant. In such situation, generally, NBW is issued.

         


    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.

  • I have replied earlier to a similar question: Time limit to complete investigation in FIR.

    The same legal principle applies for the completion of investigation by police under Section 156(3) of the Criminal Procedure Code.

    But, if the magistrate has asked the police to complete the investigation within a specific time period, while directing them to investigate under Section 156(3) of the Cr.P.C., then usually the police would comply with such direction. However, if the police officer concerned is not able to complete the investigation within the time specified by the magistrate, he would generally seek extension of time from the magistrate.

         


    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.

  • The Supreme Court has power under Article 139-A of the Constitution to withdraw cases from one or more high courts to itself, when cases involving similar questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and if Supreme Court is satisfied that such questions are substantial questions of general importance. This Article is reproduced below:

    139-A. Transfer of certain cases.—(1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney-General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself:

    Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.

    (2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.”

    On certain issues (such as, writ petitions relating to enforcement of fundamental rights), the Supreme Court and the high Courts may have concurrent jurisdiction. Therefore, it may become necessary for the Supreme Court, sometimes, to withdraw cases from the High Courts to itself when the same question of law is involved.

    Generally speaking, the court of the judicial magistrate may not be having such cases which would involve the same question of law which is involved in a case pending before the Supreme Court. This is mainly because their jurisdictions are entirely different. The court of the judicial magistrate would generally be involved in conducting trial of criminal cases, and such court has no power to entertain a writ petition. The Supreme Court does not conduct trial of criminal cases, though, of course, it may hear appeals in such matters at a later stage.

    Yet, in certain exceptional situations, for example, when a bail application is being heard by the judicial magistrate, and a bail application of the same accused person in some related case or the bail application of some other accused in the same case is presently pending before the Supreme Court, it may be open to the Supreme Court to withdraw such case from the court of the judicial magistrate and decide all such cases together in the interest of justice. However, if at all it happens, it will not be done under Article 139-A of the Constitution, but in exercise of the powers of the Supreme Court under Article 142 of the Constitution.

         


    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.

  • If your client has closed his bank account but still owes you some amount, he should either make the payment of the amount due or at least provide you with a new cheque (drawn on some other bank account) in place of the existing cheque.

    In the absence of the above, if there is a debt or liability on the part of the client then dishonour of the cheque even on the ground of the bank account having been closed may also amount to an offence under Section 138 of the Negotiable Instruments Act. In any case, if the cheque is dishonoured due to this reason, and if you send him a notice as required under Section 138, then he should make the payment in terms of such notice if he is a genuine person and if the account was closed genuinely. However, if he fails to make the payment of the amount of the cheque even after receiving the notice after the cheque dishonour, it may amount to a case under Section 138 of the said Act even though the dishonour of the cheque was due to closure of bank account.

    For more information, please also read: Impact of closing of account on cheque bouncing case – whether Section 138 attracted?

         


    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.

  • I don’t think it would be possible for him to file a case of cheque dishonour against you under Section 138 of the Negotiable Instruments Act in the facts and circumstances mentioned by you.

    For an offence under Section 138 to be made out, the cheque should have been issued "for the discharge, in whole or in part, of any debt or other liability", and then it should have been dishonoured. In your case, you have mentioned that you have already paid the amount due to him by NEFT, which implies that there is no debt or other liability pending against you. Therefore, it may not be possible for him to file the case under Section 138 of the said Act.

    Moreover, after a cheque has been dishonoured, the payee is required to send a notice to the drawer of the cheque for making payment of the amount of the cheque. The drawer of the cheque has a time period of 15 days to make such payment from the date of receipt of such notice. Therefore, if at all any such notice is received by you, you can explain to him that there is no debt or other liability and that you have already made the payment to him by way of NEFT. And, in case you feel that the notice given by him is correct then you can still make the payment due to him, in which case the offence under Section 138 of the Negotiable Instruments Act would not be made out.

         


    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.

  • Making a request for removal of name of an accused from the FIR, is equivalent to making a request for quashing the FIR qua that accused person.

    For this purpose, it is possible to file a petition under Section 482 of the Cr.P.C. before the High Court for quashing the FIR qua a particular accused person, i.e., to remove his name from the FIR.

    Of course, chances of success in such petition would depend on the facts of the case as to whether such accused person could not have been named in the FIR even if all the allegations made in the FIR were to be read as a whole.

         


    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.

  • After the amendment of the Negotiable Instruments Act, 1881, in 2015, which came into force with effect from 15th June 2015, subsection (2) of Section 142 of this Act is as under:

    “(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—

    (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

    (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

    Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”

    It should be clear from the above legal provision that the territorial jurisdiction for the case under Section 138 of the Negotiable Instruments Act for cheque dishonour will be with the court within whose local jurisdiction the branch of the bank where the payee maintains the account is situated.

    In view of these reasons, in the facts stated by you in your question (though you have not mentioned the facts clearly), if the cheque was deposited in the bank account of “B” at Bangalore, then the jurisdiction to try such case would be with the court at Bangalore. This will be irrespective of where “A” and “B” reside.

         


    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.

  • Yes, the police officer recording statement of a witness under Section 161 of the Criminal Procedure Code can sign such statement. In fact, in practice, statements recorded under Section 161 of the Cr.P.C. are always signed by the police officer recording them.

    Under Section 162 of the Cr.P.C., there is a prohibition on obtaining the signature of the witness, whose statement has been recorded under Section 161. Therefore, signature of the witness whose statement has been recorded under Section 161 cannot be obtained on such statement. However, there is no such prohibition for the signatures of the police officer himself on such statements recorded under Section 161.

    Therefore, the police officer can sign on the statements recorded by him during investigation under Section 161 of the Cr.P.C. And, it happens in practice too.

         


    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.

  • Offences under Section 13(1)(d) and Section 13(1)(c) of the Prevention of Corruption Act, 1988, are two different offences even though there are part of the same Section. These two provisions are reproduced as under:

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

    *** ***

    (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

    (d) if he,—

    (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

    (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

    (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

    *** ***.”

    It is clear from these provisions that while the offence under clause (c) relates to misappropriation of any property entrusted to him as a public servant, the offence under clause (d) relates to obtaining of any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant, etc.

    Therefore, while there may be some similarity between these two offences, these two offences have different ingredients and are distinct offences. This is despite the fact that they have been laid down under the same Section of the Prevention of Corruption Act, 1988. Of course, there may be situations where both these offences may be attracted in the facts of a case.

    In view of these reasons, I am of the opinion that if the FIR was registered for the offence under Section 13(1)(d), sanction was granted for this offence, and the charge was also framed for this offence, then the conviction under Section 13(1)(c) may not be appropriate. However, it may have to be seen, in the facts of the case, whether the accused person was misled by the error or omission in the charge and whether it has occasioned a failure of justice.

         


    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.

  • Legally, it is possible for the police to arrest a person despite the fact that he appeared before the police in compliance with the notice issued by police under Section 41-A of Cr.P.C. Sub- section (3) of Section 41-A lays down that where a person complies and continues to comply with the notice, ordinarily he shall not be arrested in respect of the offence referred to in the notice, however, for reasons to be recorded as to why such person ought to be arrested, the police officer may still arrest him. Section 41-A of the Criminal Procedure Code is reproduced as under:

    41-A. Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

    (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

    (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

    (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

         


    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.

  • In order to answer your question, let me first reproduce the relevant provisions of law.

    Section 219 of IPC is as under:

    219. Public servant in judicial proceeding corruptly making report, etc., contrary to law.—Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”

    In order to attract the offence defined under Section 219 of IPC, the Lokayukta or the Information Commissioner are required to be “public servants” and the proceedings before them are required to be “judicial proceedings”. Let us examine these two aspects with regard to the Lokayukta and the Information Commissioners.

    Section 21 of the IPC defines “public servant” and the relevant extract from this Section is reproduced as under:

    21. “Public servant”.—The words “public servant” denote a person falling under any of the descriptions hereinafter following, namely:—

    *** ***

    Third.—Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

    Fourth.—Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorised by a Court of Justice to perform any of such duties;

    Fifth.—Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;

    Sixth.—Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;

    *** ***.”

    From the above definition, it is obvious that every Judge is a public servant, and likewise any person empowered by law to discharge any adjudicatory functions is also a public servant.

    I may point out that a Lokayukta as well as an Information Commissioner have been empowered by law to discharge adjudicatory functions.

    For example, Section 18(3) of the Right to Information Act, 2005, lays down that the Central Information Commission and the State Information Commission have the same powers as are vested in a civil court; for example, they have the power to take evidence on oath, they can receive evidence on affidavit, and have other powers of a civil court, as shown below:

    “(3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:—

    (a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;

    (b) requiring the discovery and inspection of documents;

    (c) receiving evidence on affidavit;

    (d) requisitioning any public record or copies thereof from any court or office;

    (e) issuing summons for examination of witnesses or documents; and

    (f) any other matter which may be prescribed.”

    Therefore, it appears that the Information Commissioners perform adjudicatory functions. Thus, an Information Commissioner should be considered as a public servant within the meaning of Section 21 of the IPC.

    Likewise, we can see that Lokayukta is also a public servant. For example, under Section 11 of the Madhya Pradesh Lokayukta Evam Up-Lokayukta Act, 1981, the Lokayukta has the power of examining persons on oath, taking evidence on affidavit, etc.; Lokayukta is specifically declared to be a Court for the purposes of the Contempt of Court Act; the proceeding before the Lokayukta is also declared as judicial proceeding (see here).

    Similarly, under Section 11 of the Karnataka Lokayukta Act, 1984, the Lokayukta has been given the powers of a civil court for certain purposes such as the power of examining persons on oath, taking evidence on affidavit, etc.; the proceeding before the Lokayukta is also declared as judicial proceeding for the purposes of Section 193 of IPC (see here).

    Thus, we may notice that Information Commissioners as well as Lokayukta are public servants within the meaning of Section 21 of IPC.

    Now, let us consider the second aspect. IPC does not define “judicial proceeding”. However, in Section 2 of the Code of Criminal Procedure (Cr.P.C.), “judicial proceeding” is defined as under:

    “(i) “judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath;”.

    As we have seen above, the Information Commissioners as well as the Lokayukta have the power to take evidence on oath. Therefore, the proceedings before them are judicial proceedings. In fact, in so far as the Lokayukta is concerned, as we have seen above, the proceedings before them are, generally, specifically declared as judicial proceedings.

    In view of what is mentioned above, in my opinion, Lokayukta as well as the Information Commissioners satisfy the two conditions of being public servants and conducting judicial proceedings under Section 219 of IPC.

    Therefore, I am of the opinion that in appropriate cases, where the necessary ingredients are satisfied, Section 219 IPC may be attracted in the case of Lokayukta and Information Commissioners. In am writing this despite being aware of the fact that criminal laws (specially, the substantive criminal laws) are required to be strictly construed.

         


    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.

  • in reply to: Can the State file a writ petition before the High Court? #4891

    The answer to your question is “yes”. In certain situations, even the State can also file a writ petition before the High Court, and in practice, it is being done on several occasions. Let me explain the reason.

    Under the Constitution of India, a writ petition can be filed either before the Supreme Court of India (under Article 32 of the Constitution) or before the High Court (under Article 226 of the Constitution).

    A writ petition under Article 32 of the Constitution can be filed only when there is a violation of the fundamental rights of the person concerned.

    However, a writ petition under Article 226 of the Constitution can be filed before the High Court not only when there is the violation of the fundamental rights or to enforce the fundamental rights but also “for any other purpose”. In this regard, clause (1) of Article 226 is reproduced below:

    226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

    From the above, it can clearly be seen that a writ petition under Article 226 of the Constitution can be filed before the High Court either for the enforcement of the fundamental rights (guaranteed under Part III of the Constitution) or for any other purpose.

    Mainly because of this reason, in appropriate cases, the State can also file a writ petition before the High Court. In fact, I have personally seen the State filing writ petitions in the high courts on several occasions. In my own cases (i.e., cases handled by me as an advocate on behalf of my clients), the State has filed writ petitions on several occasions. For example, when the Government of India (i.e., Union of India) loses a case before the Central Administrative Tribunal (CAT) against a government servant, on most of such occasions, the Union of India files writ petition before the concerned High Court under Article 226 of the Constitution challenging such order of the Tribunal.

         


    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.

  • The offence under Section 409 IPC is a serious offence of criminal breach of trust by public servant or by banker, merchant or agent, etc. The maximum punishment for this offence can be life imprisonment or imprisonment up to 10 years. It is a cognizable and non-bailable offence.

    Therefore, the police has the power to arrest a person accused of an offence under Section 409 IPC without warrant during the investigation of the case, i.e., before filing of the chargesheet before the court.

    Accordingly, the answer to your question is “yes”; the police officer investigating the case under Section 409 IPC can arrest the accused person before filing charge sheet.

    Section 409 IPC is reproduced below for your information:

    409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

         


    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.

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