Dr. Ashok Dhamija
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Dr. Ashok DhamijaAdvocateI have already replied to your question on the similar lines. Please see here: Section 166A(b) IPC – does it relate only to FIR cases or covers other investigations also?
Please do not misuse the privilege of asking free questions made available on this Forum, by asking repeated questions on the same issue. We have limited time at our disposal and we have to reply to other users also.
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.
April 12, 2018 at 10:40 am in reply to: Different punishments by different disciplinary authorities for same misconduct #4443Dr. Ashok DhamijaAdvocateYou are talking about the disciplinary authority in a Government department. In fact, there are no sentencing guidelines or sentencing policy even for the courts in India which can send accused persons to jail.
It is the discretion of the concerned authority, which has to be exercised on the basis of the facts of each case, the seriousness of the charges, mitigating circumstances available in favour of the delinquent officer, aggravating circumstances against him, and many other factors, etc. In the absence of any sentencing policy or the penalty policy, as to how much penalty must be imposed in which circumstances, it is the discretion of the authority and it may depend somewhat also on the subjective satisfaction of the authority.
While a particular individual who has been awarded a penalty may appeal against it under the rules to the higher authorities or to the courts / tribunals, I don’t think you can challenge it on the ground that in one case it was dismissal while in the other it was a lighter punishment. However, in your case, you can cite such other case as an example for seeking a similar lenient penalty.
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 DhamijaAdvocateSection 151 Cr.P.C. is for preventive arrest, which is for a maximum of 24 hours (except in Maharashtra, where a longer period is possible as per a State Amendment). This period must already have been over.
Proceedings under Section 107 read with Section 116, are for obtaining security / bond for keeping peace from a person who is likely to commit a breach of peace, etc.
These are basically preventive measures to avoid future incidents, and NOT for any offence already committed. Usually, this would not come in the way of getting a Government job. However, you must transparently mention the details of all such proceedings against you in the police verification form and should not conceal any such information.
If the above proceedings are already over and if the security / bond period is also already over, then it would not be possible to challenge them because the matter would have already been closed. But, if these proceedings or the bond period is still continuing, then you can challenge such proceedings in accordance with provisions of Chapter 8 of the Criminal Procedure Code, in particular, Section 123 thereof, or under Section 482 Cr.P.C. if the circumstances of the case so permit.
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.
April 12, 2018 at 10:19 am in reply to: Consent/compromise order by collusion, pressure, coercion in CrPC 125 #4440Dr. Ashok DhamijaAdvocateOnce you have yourself signed the compromise statement, how do you blame the lawyer? Your lawyer might perhaps have colluded as you allege, but at least you could have refused to sign. It is your own mistake if you have signed it.
In any case, in the facts stated by you, it would be advisable for you to approach the higher courts by challenging the order on the grounds mentioned by you, instead of approaching the same court.
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.
April 12, 2018 at 10:12 am in reply to: cheating case – FIR u/s 406,420 IPC filed-but after 4 months charge sheet not filed #4438Dr. Ashok DhamijaAdvocateThere is no fixed period for completion of investigation in such type of cases. A period of 4 months is not excessive. In a documentary case, sometimes, it may take much longer period to complete the investigation.
If you do not have the basic confidence and trust in police, then why did you ask the high court for investigation by police? You could have filed a private complaint case directly in court, in which scenario you could have yourself conducted the trial (including through your advocate) in the court with no involvement from police.
Anticipatory bail, once granted, will generally continue till filing of charge sheet. After that, it may be converted into regular bail by the court.
After filing of charge sheet, he is likely to be released on regular bail, as he was on anticipatory bail throughout. However, it is up to the court.
In the cheque bounce case, usually the court would impose fine from out of which compensation may be paid to you equivalent of the cheque amount. Of course, he must have some property or money to pay back. It is for you to keep track of his properties. There is a procedure laid down in the Criminal Procedure Code for recovery of 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. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateI have already replied to a similar question [Want to leave job after 1 year when there is bond for 2 years], in which your question is also adequately covered. Please read that reply.
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 DhamijaAdvocateWhat you have mentioned, may perhaps come under anti-competitive agreements, as it appears to be forming a cartel to control the supply of goods or price rigging, as mentioned in Section 3 of the Competition Act, 2002.
There may also be violation of the law/ rules relating to MRP, if price at which the goods are being sold are more than MRP. See, my reply (for more information): What action can be taken against shopkeeper charging more than MRP price?
Thirdly, there may be a possibility that a criminal offence such as cheating is committed.
As per our Forum policy guidelines, it is not possible for us to go into the detailed facts of a case. You can examine the above possibilities in the light of detailed facts of your case, if necessary, by consulting some local lawyer by showing him all the relevant details.
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 DhamijaAdvocateAs I have already replied to you in Time limitation for review petitions in Supreme Court and High Court, it may not be possible to file a review petition after a delay of 4-5 years. Even if you file such review petition along with an application for condonation of delay, it is likely to be rejected. Moreover, you will have to explain as to why there is such a huge delay of 4-5 years, when the limitation period was only 30 days.
Still if you have money to spare, and if you want to take a chance, you can try it. But, as I mentioned earlier, there is hardly any chance of success. On the other hand, sometimes, the court may impose costs for such a matter. In fact, the chance of success even in a timely review petition is itself very limited, and in your case there a huge delay also. But, it is up to you if you want to spend money by taking a chance with very little probability of success. You may contact some good lawyer and get it done.
Once the Supreme Court has rejected the SLP, the only possibilities are review petition and curative petition. However, curative petition is filed after the rejection of the review petition and the chances of success in curative petition are further less. Since there is no review petition from you till date, you cannot file a curative petition at this stage.
There is no other remedy in such a situation when the SLP was dismissed 4-5 years back.
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.
April 9, 2018 at 9:16 pm in reply to: Criminal case pending in CBI court; Can get stay in departmental enquiry? #4422Dr. Ashok DhamijaAdvocateI have already replied to a similar question, which is available at the link: Can departmental proceedings be initiated simultaneously with criminal case?
It covers your question. Please go through 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. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateRight now, it is not possible for me to accept your request of internship. If there is a scope in future, I’ll let you know.
However, please do not post such issues of personal nature on the public forum. Such issues should better be addressed through personal communication, such as email, etc.
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.
April 9, 2018 at 10:22 am in reply to: Unauthorised Construction of Building – Municipal Corporation not taking action #4415Dr. Ashok DhamijaAdvocateSince the municipal corporation is not taking action in spite of complaints given to it, and since the construction is allegedly in violation of laws, you can try filing a writ petition in the high court under Article 226 of the Constitution seeking direction to the municipal corporation to take action under law.
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.
April 9, 2018 at 10:14 am in reply to: Quantum of conviction after pleading guilty in 1 instance #4414Dr. Ashok DhamijaAdvocatePlease note that the maximum punishment for an offence under Section 420 IPC is 7 years. On the other hand, the maximum punishment for an offence under Section 409 IPC is life imprisonment.
Therefore, you have to be cautious while pleading guilty for such crime. Awarding sentence is a highly discretionary issue and it differs from judge to judge. India does not have a sentencing policy yet, in view of which there are no fixed yardsticks about the sentence that may be awarded. There have been wide variations in the sentences granted by various judges for the same type of offence and for similar facts. It also depends on the gravity of the offence, i.e., the seriousness of the offence, as also various mitigating circumstances that may exist in favour of the accused. Therefore, there is no guarantee.
If you go through the Cr.P.C. provisions (Chapter 21-A) relating to plea bargaining, you may notice that generally one-fourth of the maximum punishment may be awarded, and if a minimum punishment is prescribed then the punishment awarded may be half of the minimum punishment prescribed. However, please note that the provisions relating to plea bargaining would not be applicable in a case under Section 409 IPC.
As a very rough estimate, you can expect anywhere between one year to five years imprisonment on pleading guilty in a case under Sections 420, 409 IPC. But, as I mentioned above, this is only guess work. Ultimately, it is the discretion of the judge and you should try to show the mitigating circumstances in your favour so that minimum possible punishment is awarded.
As there is no provision for a minimum punishment for these two offences, if you are lucky and if the case is not a very serious one, then you may be let off with a nominal punishment also.
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.
April 9, 2018 at 9:55 am in reply to: Internship for a law student – advice about branch of law #4412Dr. Ashok DhamijaAdvocateIt depends more on the interest of the student and his background. For example, some lawyers do not want to practice in criminal law, as a matter of choice.
Major branches of law in which there are good number of cases available are: criminal courts; regular civil courts, service law, etc. Yes, it is true that there are a large number of cases relating to cheque bounce and matrimonial matters. There is a better chance for a beginner to get cases in these types of matters, more so if he is a first generation lawyer.
Number of cases in the company law would be comparatively less, and majority of such cases go to the established law firms. Usually, big corporates have regular arrangements with established law firms and they may not trust newcomers or individual lawyers. So, if the student is willing to join some law firm as an associate lawyer, then he can consider business law and company law, etc. Individual practice in these branches at the initial stages of practice is generally difficult to establish.
Since most of the initial cases that a lawyer would get come from his contact circle, such as friends, relatives, colleagues, known persons, the student should also try to ascertain what type of cases can come to him from his contact circle. For example, if the student is from a service class family (i.e., his parents or other relatives are Government servants), there is a likelihood that he may get some service law cases from the friends / colleagues of his parents.
If the student is from a lawyer family, then of course, he can concentrate on the branches of law in which his family members are already established.
During internship, the student should at least try to learn about the major branches of law, in which maximum number of cases are registered. This is applicable more in the case of a first-generation lawyer.
If he is interested more in joining as an associate / junior of some lawyer or in some law firm, rather than establishing his own independent practice, then of course, he can choose his branch as per his liking.
Internship is more of a familiarisation process with the legal system, including the courts. Ultimately, he would learn when he starts practice. My experience has been that when you finally practice in courts, your knowledge of law (substantive laws as well as procedural laws) will help you 90% of the time and the court-craft (including arguments inside court, mannerism, filing of cases in courts, etc.) will help you only about 10% since the latter part is not much difficult to learn. So, while internship may help to some extent, ultimately it is your actual knowledge of law that matters more. This is what one has to learn during LL.B. But, when it comes to getting success in law, if you want to practice independently, initially at least, your contact circle will matter more than even your knowledge of law. Initially, you’ll get cases from your own circle, as I mentioned above, and not on the basis of your knowledge. Over a period of time, of course, if you can establish yourself as a good lawyer, the chain reaction starts and your good work starts fetching you more work, by word of mouth, etc.
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.
April 8, 2018 at 11:21 pm in reply to: Time limitation for review petitions in Supreme Court and High Court #4404Dr. Ashok DhamijaAdvocateLimitation period for filing a review petition in the Supreme Court against final order passed in an SLP is 30 (thirty) days.
Similarly, time period to file review petition in a High Court against its order, is also 30 days.
Delay of 4-5 years after the judgment means it is badly delayed for filing a review petition.
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.
April 8, 2018 at 11:09 pm in reply to: Company assuming full right to appoint sole arbitrator, should I agree? #4402Dr. Ashok DhamijaAdvocateThough it is your choice whether or not to agree to such arbitration clause, but generally speaking such type of arbitration clause may not be fair to you. Since the company has full discretion and full power to appoint the only or sole arbitrator, the possibility of the company appointing some person as arbitrator who would favour the company, cannot be ruled out. Once there is an arbitration clause, you will not be able to approach the regular civil court to resolve any future dispute, and if the arbitrator is also not an impartial and neutral person, it may mean that the dispute resolution may not be impartial.
Usually, the arbitration clause should be such that both parties to the dispute would appoint one arbitrator each and then the two arbitrators would appoint a third arbitrator. If a sole arbitrator is to be appointed, then it should be with the mutual consent of both parties.
Therefore, it is up to you to decide whether you would like to agree to such arbitration clause which may not be fair to you. It also depends on the nature of the contract / agreement, how valuable the contract is to you is, how much are the chances of a dispute arising in future, and also whether you can insist with the company for changing the arbitration clause without losing the business deal with 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. List of his YouTube Videos.
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