[Dr. Ashok Dhamija]

Your question involves complicated questions of facts and law. It is not possible for us to give an accurate answer to your answer in the absence of having seen the full details / documents of the case.

But, generally speaking, such an act may amount to the offence of cheating if the builder has sold the flat to you my misrepresenting the facts in a dishonest manner. It is also not understood how a bank (HDFC Bank) gave you loan (that too 95% loan) against such property, since the banks would generally examine the title in detail. In particular, the HDFC Bank is generally very strict in these matters. Thirdly, there would be indemnity bond executed along with the sale deed, you can try to enforce it, provided such agreement had been signed. Fourthly, you yourself appeared to have been negligent in as much as you took possession without getting the deed registered on time, otherwise you would have come to know of the fraud in the initial stage itself. Fifthly, unless there is a stay from the competent court, it would be difficult for you to stop the DHFC. And, as far as my understanding goes, the stay may have to be obtained not from the criminal court of CJM but from the DRT or other competent court where DHFC has filed proceedings against the builder, or you have filed the civil matter, if any, against the builder. You should consult some local lawyer by showing him all relevant documents.

     

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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]

Depending on detailed facts of your case, it may be an offence under Section 434 of the Indian Penal Code (IPC):

“434. Mischief by destroying or moving, etc., a landmark fixed by public authority.—Whoever commits mischief by destroying or moving any landmark fixed by the authority of a public servant, or by any act which renders such landmark less useful as such, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

You may also check the provisions of the Revenue laws of your State (such as the Andhra Pradesh Land Revenue Code or other related laws) to find out whether there is some specific offence defined for such type of act.

     

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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 appear to have quoted the wrong legal provisions. Looking at the facts mentioned in your question, the correct legal provisions for the offences committed would be Section 30-C (offence by Government officer) and Section 30-A or 30-B (for a person doing illegal construction), as the case may be, of the Ancient Monuments And Archaeological Sites And Remains Act, 1958.

Since these offences appear to be cognizable, you may file a complaint with police with proof. If police does not take action, you can try filing a private criminal complaint in the competent 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]

If the decision was taken by a Single Judge of the High Court, as it appears from your question, you may have the option of challenging the same before the division bench of the high court, provided the rules of your High Court allow it. So, check the relevant rules of your high court in this regard.

You have already tried the review petition also. Both times, as per facts in your question, it was not heard on facts. While I am aware of detailed facts of your case, it appears that the high court has left the decision to the concerned authority, without deciding on merits, as you have mentioned. It is up to the court concerned to take a call, in the given situation. If you are not satisfied with its decision, you can challenge such decision in accordance with law. If the high court has asked the departmental authority to take decision in your case, then you may approach the departmental authority for the same.

Your last two questions are already covered in the first para of my reply. If your high court rules permit, you can approach the division bench. Otherwise, you can challenge before the 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 word “removable” under Section 197 of the Cr.P.C. refers to the authority which has the power to remove the public servant concerned from his service.

As you have mentioned, the removing authority for an Inspector of Police is generally the Director General of Police (DGP) or the Inspector General of Police (IGP) and NOT the State Government. Therefore, in so far as the main provision of Section 197 Cr.P.C. is concerned, i.e., under sub-section (1) thereof, there is no requirement for taking sanction of the Government for prosecuting the Inspector.

However, for police personnel, sub-section (3) of Section 197 may also be relevant, which is as under:

“(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.”

Therefore, if a Notification has been issued by the concerned State Government under sub-section (3) for applying the provision of sanction to other classes of police personnel, then sanction may be necessary even for such lower level police personnel. For example, if I remember correctly, in Maharashtra, such a Notification has been issued by the State Government, necessitating sanction under Section 197 Cr.P.C. even for a police constable if other conditions in sub-section (1) thereof for that offence are satisfied.

So, you should check the relevant Notification, if any, of the concerned State Government.

     

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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, there are a large number of Supreme Court judgments on this issue. It is a well established principle of law that departmental proceedings and criminal case proceedings can be initiated and continued simultaneously. Of course, it is up to the departmental authorities to decide whether they should initiate the disciplinary proceedings immediately or they should wait for the result of the criminal trial and then take disciplinary action on the basis of result of the criminal case. However, there is no legal bar if both the proceedings are conducted simultaneously.

The departmental proceedings will have to be initiated under the relevant rules of the Government, which are applicable to the government servant concerned. Each Government has its own separate rules. For example, if he is a Central Government servant, then the rules applicable are the Central Civil Services (Discipline and Appeal) Rules.

     

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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 answered a similar question at the link: Defamation case for false 498A IPC case filed by wife. Please read that as it covers a part of your question.

As regards your question relating to offence under Section 406 IPC, there is no restriction under law for filing the case. So, you can file a case. However, it is for you to judge whether in the peculiar facts and circumstances of your matter, such case is advisable and/or whether it would succeed.

     

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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]

While it is for the concerned authority to take the final call, generally speaking, a pending case under Sections 323/ 341/ 354/ 354b/ 506/ 509/ 34 IPC should not come in the way of getting a government job. You should, however, declare about the pending criminal case transparently in the relevant columns of the attestation form / police verification form when you are offered a job.

But, after conviction in the criminal case, if any, the competent authority may take action against the government servant concerned, which may generally be removal or dismissal from service in such a 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]

It is surprising that the opposite party has constructed a hotel on your land, as you claim, and still you have not filed any court case. The description given by you may amount to the offence of criminal trespass, depending on detailed facts of your case. If police is not acting on the complaint, you can file a private complaint in the Magistrate court having jurisdiction.

You should also file a civil suit for the encroachment, for eviction and injunction. Please consult some local lawyer with full details of the facts and documents.

     

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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]

From your question, it appears that the bank is paying you half of the salary during the suspension period, but you are not being allowed to withdraw the same. Unless there is an order of some lawful authority (such as court) by which your bank account is sealed or attached, I don’t think the bank has the power to stop you from operating your account and stop you from withdrawing amounts from your own account. You may have to approach the appropriate tribunal or court if the bank does not permit you to do so. It may, however, be advisable first to send a written notice to the bank and/or to ask the ask the bank as to under what provision of law they have stopped you from withdrawing the amounts from your bank account.

It is not necessary that an enquiry should always be conducted first before suspending an employee (more so, if it concerns a criminal case involving arrest). Please study the relevant service rules (Conduct Rules, as well as Discipline & Appeal Rules, by whatever name they are called) of your bank relating to suspension and departmental / disciplinary enquiries. Engage some local lawyer if you cannot do so on your own. If needed, you can challenge the suspension order before the appropriate court or tribunal, as applicable in 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]

The applicant / complainant can appear in person in his own case.

If he is not able to present the case properly and wastes time of the court, then sometimes the courts ask him to engage some lawyer. However, the courts do not force him to engage a lawyer; the court would generally only try to persuade the applicant in person to engage a lawyer if the court feels that it is necessary looking at the facts of the case.

As far as Section 32 of the Advocates Act is concerned, in my opinion, it is for permitting a person (other than advocate) to appear on behalf of some other party.

As far as applicant in person is concerned, in my opinion, there is no need to invoke Section 32 of the above Act, since applicant in person has a right to appear in his own case.

If the court passes a written order forcing you to engage an advocate, then you can approach the higher court against such order.

     

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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]

Please understand that the maximum punishment for an offence under Section 420 IPC is 7 years’ imprisonment. For such type of offences, the Parliament had amended the law [Section 41 of the Cr.P.C.] in 2009 and 2010 making it more difficult for police to arrest the accused persons. Therefore, arrest in such an offence cannot be made by police in a routine manner as the law requires now.

Secondly, if an accused is not arrested during investigation, then generally chances are more in favour of the accused not being denied bail when the court takes cognizance after filing of the charge sheet.

Thirdly, being a case where police had filed the FIR and charge sheet, the case will be handled by the public prosecutor in the court, who is paid by the Government. You are not required to engage any private advocate.

In such a case, even if you engage a private advocate, his role would be generally limited to assist the public prosecutor.

     

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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 caveat is filed then the caveator will get copy of the SLP before the first listing in court. Unless copy is served on caveator, the SLP will not be listed in court. The caveator can opposite grant of stay.     

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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 recently replied to a quite similar question: What action can be taken against shopkeeper charging more than MRP price?

Please read that reply as it covers your question as well.

     

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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 is not possible for me to comment about any specific case as I am not involved in that case and am not aware of the facts of the case.

However, generally speaking, wherever the Supreme Court has to grant the stay, usually it is granted on the first date of listing before the regular bench.

You may also see: How many days it takes SLP to be listed before Supreme Court after it is filed?

     

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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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