[Dr. Ashok Dhamija]

Article 12 of the Constitution defines “State” for the purposes of fundamental rights guaranteed under Part 3 of the Constitution:

“12. Definition.—In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

A municipal corporation is a local authority within the meaning of Article 12, and therefore, it is covered within the word “state”. Accordingly, a writ petition under Article 226 of the Constitution can be filed against a municipal corporation before a high court.

For example, in the case of Nagar Nigam v. Al Faheem Meat Exports (P) Ltd., (2006) 13 SCC 382, the Supreme Court has held that municipal corporation of Meerut (in Uttar Pradesh) is a “state” being a local authority.

     

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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 always necessary that the victim of the crime must always be available to prove the offence. An offence can be proved on the basis of other evidence also.

Chapter 14 of the Criminal Procedure Code lays down as to who can file complaint in respect of certain offences in IPC. But, there is no restriction in respect of other offences in IPC (i.e., which are not mentioned in the said Chapter 14 of the Cr.P.C.) as to who can file a complaint for registering FIR. Therefore, in respect of these other offences, including an offence under Section 354 IPC, any person knowing about the commission of the offence can file the complaint which can then be registered as FIR.

Having said that, let me point out that if the victim is not available to give her statement, it will definitely make the case comparatively weaker.

Generally, bail would be granted in a case under Section 354 IPC, if not immediately, then after some days, except where the offence is of a serious nature or has attracted media glare and public outcry in which situation grant of bail may get delayed.

It is not possible for me to comment on the facts of your case in the absence of having seen the documents of your case. You may consult some local lawyer to decide whether you should apply for quashing of FIR as it depends 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]

Section 2(a) of the Contempt of Courts Act, 1971, defines what is “contempt of court”:

“(a) “contempt of court” means civil contempt or criminal contempt;”

Now, “civil contempt” and “criminal contempt” are defined in Section 2(b) and 2(c) respectively:

“(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;

(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”

So, from the point of view of your question, what is relevant is that when you say something, by spoken words or by written words, you should not scandalise the court, should not lower the authority of a court, should not prejudice or interfere with due course of any judicial proceeding, should not interfere or obstruct the administration of justice in any other manner.

These are very wide and general words. However, over a period of time, now it is said that you can criticize any judgment in a fair manner, but you should not criticize the judge unnecessarily by attributing any unnecessary motives to him.

We are in a democracy. Every institution is accountable in one way or the other. It is quite common to see people criticising the judgments of the courts, including those of the Supreme Court, in public forum and in media. I have myself done it on many occasions. There is nothing wrong in that. However, while criticising a judgment, always try to be fair and respectful. Do not criticise the judgment for the sake of criticism. Your criticism should be based on valid points (though there could be difference of opinions), and not on witch-hunting. It should be a constructive criticism, not with the intention of scandalising the 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 Central Bureau of Investigation (CBI) has been established as “Delhi Special Police Establishment” under the provisions of the Delhi Special Police Establishment Act, 1946. Section 4 of this Act lays down as under:

“4. Superintendence and administration of Special Police Establishment.—(1) The superintendence of the Delhi Special Police Establishment insofar as it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988), shall vest in the Commission.

(2) Save as otherwise provided in sub-section (1), the superintendence of the said police establishment in all other matters shall vest in the Central Government.

(3) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government (hereinafter referred to as the Director) who shall exercise in respect of that police establishment such of the powers exercisable by an Inspector-General of Police in respect of the police force in a State as the Central Government may specify in this behalf.”

In the above Section, “Commission” means the “Central Vigilance Commission” (CVC).

Thus, from the above, it should be clear that for the purposes of offences under Prevention of Corruption Act, investigated by the CBI, it is under the superintendence / control of the CVC. However, it should be made clear that the Proviso to Clause (b) to Section 8 of the Central Vigilance Act, 2003, lays down that while exercising the powers of superintendence or giving directions, the CVC shall not exercise powers in such a manner so as to require the CBI to investigate or dispose of any case in a particular manner. Thus, the control of CVC over CBI is of a general nature and not directing investigation in a specific case.

For all other purposes, including administrative matters and also investigation of other offences, the CBI is under the superintendence / control of the Central Government. However, if one reads the provisions of the CBI Manual, the CBI is not supposed to take orders from the Government with regard to the manner in which a particular investigation is conducted by it.

What is mentioned above is the legal position. In practice, the Central Government may be indirectly influencing investigations conducted by the CBI by use (or abuse) of its administrative powers.

     

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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]

Facts mentioned by you show that no FIR was registered against you. You were not arrested. No charge sheet was filed against you.

A General Diary entry may relate to a mere incident or may be a non-cognizable offence, as per what you have mentioned (scuffle).

This should not come in the way of your getting a Government job.

However, if there is a specific column in the police verification form or attestation form about mentioning even such an incident, then you must transparently mention it there and should not hide it. It is not likely to come in the way of your getting into a Government service.

     

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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 cognizable offences, where the police has the power to register FIR and conduct investigation, law gives power to police to arrest an accused person during the investigation stage. Section 41 of the Criminal Procedure Code gives this power.

In fact, the power of police to arrest an accused, without orders of the court, is normally exercised prior to the filing of charge sheet. Once the charge sheet is filed, normally the arrest would be made in accordance with court orders, except in certain situations where the law itself gives such power to police ever after charge sheet.

Previously, the power of police to arrest accused persons in cognizable offences, without warrant / order from court, was very wide. However, after amendments were made in Section 41 Cr.P.C. in the years 2009 and 2010, these powers of arrest have been curtailed to somewhat extent.

Now, if the offence is punishable with the maximum imprisonment of up to 7 years, the police officer can arrest an accused only if he has reason to believe that the accused has committed such offence, and then he should be satisfied that the arrest is necessary on certain grounds (such as accused may abscond otherwise or that he would tamper with evidence, etc.) and he has to record the reasons for making arrest in writing.

For more serious offences, the power of arrest is slightly wider than the above.

In any case, if police arrests you before filing of charge sheet, it may either release you on bail (if it has power to release on bail) or will produce you in court within 24 hours (excluding journey time) and thereafter further custody can only be as per court orders, and you can also apply for bail before the 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]

Mediation is an alternative dispute resolution (ADR) mechanism. It takes a long period of time to resolve cases in courts. Sometimes, it may take decades. Therefore, generally the courts try to refer the parties, in disputes such as matrimonial, to mediation wherever possible so that they can try to resolve the disputes amicably, if possible. If mediation succeeds, the parties are saved years of court cases and consequent legal expenses and mental tension.

Also note that mediation works by mutual agreement of the parties, with the help of a mediator who is an independent third party. You will not be forced to accept mediation terms, however, of course, there can be genuine efforts of persuasion. If you do not want to agree to the terms of compromise suggested by the mediator or by your opposite party (i.e., wife), you can refuse to agree. In such a situation, the mediator will submit a report to the Supreme Court (which has referred the matter for mediator) that the mediation could not succeed, after which the Supreme Court would hear the matter on merits and decide it.

But, I think, there is no harm in at least trying to resolve the disputes by way of mediation. You have said that there are 3 cases pending between you and your wife. All these 3 cases can be amicably settled if both of you can agree on some mutually acceptable terms. See the advantage that you get. However, at the same time, if you do not agree to the terms of compromise, or if you do not want any compromise at all, you can take that stand during the process of mediation. The court will not force you to accept the terms of the mediation. But, please note that if your stand is found to be too unreasonable, sometimes you may lose the sympathy of the court, even if the court would not compel you to accept mediation.

So, give a try to mediation if the court is giving you an opportunity. If you still find that it is not possible for you to accept the terms of compromise being offered to you, you can refuse to agree to those terms. The mediator will give a report to the court about failure of the mediation process and then your matter would be heard by the court on merits. But, there is no harm in at least giving the mediation process a genuine and honest try.

     

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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 note that a curative petition can be filed in the Supreme Court as a last resort, and that too, in limited circumstances. A curative petition can be filed only after a review petition has been rejected by the Supreme Court.

Therefore, if at all, you feel that you need to challenge the order of the Supreme Court dismissing your SLP, you should first file a review petition, which is required to be filed within a period of 30 days from the date of order. In fact, even a review petition can also be filed on some limited grounds.

Since I have already discussed these issues in detail, I am not repeating the same. Please read my following articles for more details:

• Curative Petition vs Review Petition
• Success Rate of Review Petition and Curative Petition in Supreme Court
• Supreme Court AOR Examination – Leading Cases – Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388(for curative petition).

 

     

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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]

This issue is covered directly under Section 157(1) of the Motor Vehicles Act, 1988, which is  quoted as below:

“157. Transfer of certificate of insurance.—(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.

Explanation.—For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.”

Thus, if the vehicle is transferred to some other person by its owner, the insurance policy is deemed to have been transferred to such transferee and the insurance company will continue to be liable under that policy during the period of validity of the same.

This issue was further settled by the Supreme Court recently in the case of Firdaus v. Oriental Insurance Co. Ltd., (2017) 15 SCC 674. In this case, the vehicle was insured with Oriental Insurance Co. Ltd. at time of accident resulting in death of the deceased who was driver of the registered owner of vehicle who had allegedly transferred the vehicle to another person. The Supreme Court held that irrespective of whether ownership of vehicle vested with the original owner or with the transferee, the liability of Oriental Insurance Co. continued to be there, since the accident occurred during the period of validity of the insurance policy.

     

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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 act alleged against the other party amounts to a specific criminal offence, punishable under law, then, in my opinion, a criminal complaint can be filed against the opposite party despite the fact that there is an arbitration clause in the agreement.

Recently, in the case of A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386 : AIR 2016 SC 4675, the Supreme Court dealt with a somewhat similar issue. In this case, the Supreme Court has inter alia held that where the allegations of fraud make a virtual case of criminal offence, then the court may refuse to refer the matter to arbitration. It was held that where court finds serious issue of fraud involving criminal wrongdoing then exception to arbitrability may come into existence.

     

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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 generally depend of the rules applicable in the concerned court, however, usually such affidavit is required.

I have seen that in the Supreme Court, Delhi High Court and even in CAT, the application for condonation of delay is required to be supported by an affidavit of the party concerned.

In the Supreme Court, generally a composite affidavit is prepared which covers the SLP and other Criminal Misc. Applications (including one for condonation of delay) in the same affidavit. But, in Delhi High Court, usually a different affidavit is required for the application for condonation of delay.

You may have to check the rules applicable for the particular court (where you want to file such application) on this issue. But, generally, an affidavit may be needed for this purpose.

     

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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]

Without going into the merits of facts of your case, since the order has been passed by the Family Court, which is constituted under the provisions of the Family Courts Act, 1984, a revision application against such order can be filed before the High Court under the provisions of Section 19(4) of the Family Courts Act. This is presuming that the order relating to jurisdiction of the court is not considered as an interlocutory order. And, in my opinion, it should not be considered as an interlocutory order as it finally settles the question of jurisdiction.     

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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 Supreme Court has held that there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document. The stipulation of the period of six months prescribed in Section 54 of the Stamp Act, 1899 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper.

Therefore, an old stamp paper can be used in an agreement. There is no legal restriction for that purpose.

The above observations of the Supreme Court were made in the case of Thiruvengadam Pillai v. Navaneethammal, (2008) 4 SCC 530 : AIR 2008 SC 1541. The relevant observations in this case are reproduced below:

“The Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in Section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.”

     

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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 15 of the Consumer Protection Act, 1986, any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order. In appropriate cases, the State Commission has the power the condone the delay also.

Therefore, if you want to pursue this matter further, you may file an appeal with the State Consumer Forum in your state.

     

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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 permissible to file a private complaint in a corruption case against a public servant. This complaint will have to be filed in the court of the Special Judge appointed under the provisions of the Prevention of Corruption Act, and not in the court of a Magistrate.

However, please note that if you want to yourself prosecute the public servant in the private complaint case, you may need to obtain sanction for prosecution against the public servant as required under Section 19 of the Prevention of Corruption Act. For most of the offences under the PC Act, the Court has no power to take cognizance of the offence in the absence of the sanction for prosecution.

Moreover, generally speaking, it would be difficult to prove the corruption case against a public servant in a private complaint case, as it may not be possible for you to collect sufficient evidence against him.

Therefore, it is generally advisable that you file a complaint against the public servant with the State Anti-Corruption Bureau (ACB) or the CBI, as the case may be. If they are not taking action, then you may consider filing a complaint to the Special Judge under Section 156(3) of the Criminal Procedure seeking direction to the CBI / ACB to investigate the matter.

For more information on some of these issues, please read the judgment of the Supreme Court in the case of Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : 2012 Cri LJ 1519 : AIR 2012 SC 1185, in which the Supreme Court has discussed some of these issues.

     

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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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