[Dr. Ashok Dhamija]

Yes, now it is mandatory to file an affidavit in support of the private complaint filed by a person before the Magistrate under Section 156(3) of the Criminal Procedure Code, for seeking direction to the police for investigation in a cognizable offence.

Recently, in the case of Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 : 2015 Cri LJ 2396 : AIR 2015 SC 1758, the Supreme Court held as under:

“30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. …”

“31. … The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

 

     

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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]

A Special Leve Petition (SLP) is filed in the Supreme Court under Article 136 of the Constitution of India. Generally, such SLP is filed when no regular appeal is available in a case to approach the Supreme Court. Here, “special leave” means the special permission sought from the Supreme Court to file such appeal, since regular appeal is not available. When such special leave is granted (or, simply, leave is granted by the Supreme Court) in an SLP, then it is registered as a regular Civil Appeal or Criminal Appeal, as the case may be.

So, if your SLP has been converted into a regular Criminal Appeal, it implies that leave has been granted by the Supreme Court to you for such Appeal, even though no regular appeal was available in the case. Now, this Criminal Appeal would be heard as a regular appeal. This is generally heard in detail, on merits of the case.

Usually, more time is taken to dispose of a Criminal Appeal than an SLP (Criminal). There is a queue of already pending criminal appeals. Moreover, since more time is devoted to hear such appeals in detail, as compared to SLPs, it may cause some further delay.

     

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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 this is a non-bailable offence, you can immediately apply for anticipatory bail before the Sessions Court. If the Court grants you anticipatory bail, then you would be immediately released on bail by police on arrest being made, in terms of the order of the anticipatory bail.

And, if it is a bailable offence, then even if you are arrested, you’ll get bail from the police itself.

Also note that nowadays the discretion of the police to make arrest of an accused person is drastically curtailed where the maximum punishment for the offence is up to 7 years imprisonment. The provisions of Section 41 of the Criminal Procedure Code were amended a few years back for this purpose. In such cases, usually the police can make an arrest only if it is satisfied about the commission of offence by the accused, and there are certain other conditions also required to be satisfied before an arrest is made.

In any case, if you have been arrested in such case and you don’t have anticipatory bail granted to you, then the police would be producing you before the court. The court would also satisfy itself whether the arrest has been made in accordance with law. At such time, you can show to the court that the case is false and/or that you have been arrested wrongly. You can also apply for regular bail in the court when you are produced before the court.

At an appropriate stage, you can also apply for quashing of the FIR before the High Court or if the charge sheet has been filed, then you can file an application before the trial court for discharge in the case. But, all this would depend on the nature of the case and the evidence available to show that it is a false case or that no case is made out against you.

     

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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 think it should be possible for you to get the job during the pendency of an offence under Section 323, 504, 506 IPC. Of course, the ultimate decision is with the concerned authority which has to take a call in this regard.

But, you should not conceal the information relating to the offence against you while filling in the police verification form or the attestation form.

However, please note that if there is a conviction subsequently, then the Government may take action against you even if job was provided to you earlier during pendency 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]

If it was not your car and if you were not driving this car, as you have mentioned, then you cannot be made an accused for the offence related to car accident. So, if these are the only facts involved in the case, then you have been named wrongly as an accused person in the case by police.

However, if there was any scuffle or fight subsequent to the accident (as it happens many times), and if sections relating to injury caused, if any, to the other party, have also been included in the FIR, and if in such situation your name has been added as an accused person in the case, then it may be a different thing and it would then depend on the detailed facts of the case.

In any case, there are basically three ways to get your name removed from the case as an accused person:

• Provide proper evidence to the police during investigation that shows your innocence. If the police officer investigating the case is convinced with your innocence, he would drop your name from the charge sheet to be filed in the case, if any.
• File a petition under Section 482 of the Criminal Procedure Code before the High Court for quashing of the FIR qua
• If the charge sheet has already been filed, then you can apply for discharge before the trial 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 question raised by you involves complicated questions of law which have not been the subject matter of a decided case, as far as I remember. Being the author of a 2250 page book on Prevention of Corruption Act [Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-592-6)], I have not seen any such judgment on this issue.

There are two rival contentions in your case:

• Provision of Section 19(3)(a) as per which, “…no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby”.
• The fact that you have been continued to be in service, after your dismissal order was set aside.

By considering the overall circumstances, I feel that prosecution in such a case was not valid in the absence of the sanction order, though it is ultimately for the court to take the call. You may have to carefully draft your arguments to show that the prosecution without sanction in such case was not valid.

     

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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]

Legally speaking, it is possible to get a case (including a divorce petition) transferred from one district to another district, in fact also from one state to another state. However, in your particular case, since the divorce petition has been filed by the wife, in practice, it would be difficult to get it transferred to the district where the husband wants it have. Generally, the higher courts take a view in favour of the women in such transfer matters. But, under law, there is no such restrictions. You can therefore file a transfer petition, though the chances of success of a transfer of case to another district in favour of the husband would be comparatively less.

If the transfer of the divorce petition is from one district to another district within the same state, you can file a transfer petition before the High Court under Section 24 of the Civil Procedure Code (CPC).

On the other hand, if the transfer of the divorce petition is from one state to another state, you can file a transfer petition before the Supreme Court under Section 25 of the Civil Procedure Code (CPC).

     

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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 State Government is deliberately / wilfully not obeying the Supreme Court and is wilfully not implementing such order, you can file a Contempt of Court petition in the Supreme Court against the concerned officers of the State Government. If the default is being committed at the ministry level, then you can file contempt petition against the Secretary in that ministry / department.

Usually, under the threat of contempt action, the Government would implement the order. Otherwise, the Court can take contempt action [under the provisions of the Contempt of Courts Act, and also under Article 129 of the Constitution of India] against the concerned officers who are responsible for not implementing its order deliberately.

     

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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 check the relevant rules / orders applicable in the autonomous body where you were working and which has deducted the amount towards NPS. It will depend on the relevant rules applicable in that organisation as to under what specific conditions such organisation was deducting the amounts. Make enquiries with the organisation, if necessary, through the RTI.

But, you must at least get the interest on such deductions.

     

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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]

FIR is registered under Section 154 of the Criminal Procedure Code, when an information or a complaint about the commission of a cognizable offence is given to the police station. It leads to a detailed investigation in such offence, which may culminate in filing of a charge sheet against the accused in the court (if there is prima facie evidence in the case) or the closure of the case (if there is no prima facie evidence).

On the other hand, General Diary is maintained in the police station to record all important events taking place in the police station. It is a diary or register, maintained in a chronological order, which implies that it is not possible in the normal course to enter some back-dated information in the General Diary. Information about movement of staff, complaints given, FIRs registered, etc., are all mentioned in the General Diary, which is also known as Station Diary in some states (such as in Maharashtra).

If you had given complaint about the theft of your vehicle, then it should have been registered as FIR, and not merely as a General Diary entry. If you had insurance police that covers theft of vehicle, then you may not be able to claim insurance merely on the basis of the General Diary entry about it. You should insist with the police station officers to register FIR for the theft of vehicle, if it was stolen and was not merely lost.

Also see: FIR not registered by police for car theft, what to do?

     

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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]

Rule 2 in CHAPTER – III (Conditions for right to practice) of PART – VI (Rules Governing Advocates) of the Bar Council of India Rules lays down as under:

“2. An advocate shall not enter into a partnership or any other arrangement for sharing remuneration with any person or legal practitioner who is not an advocate.”

Therefore, this Rule makes it clear that an advocate cannot become a partner with a non-advocate. It should thus be clear that if a law firm consists of persons who wish to practice as advocates in courts, then both (or all) partners must be advocates / lawyers.

However, if a law firm does not intend to practice in courts and deals only with non-litigation work, such as advisory work or documentation work, then it may not be necessary that the partners should only be lawyers. Even in such a case, if one of the partners is an advocate who appears in court even in his personal capacity, then action may be taken against him by Bar Council for violation of the above Rule. So, he will also have to be a non-practicing advocate, preferably having suspended his law practice if he has enrolled earlier as an advocate.

     

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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]

Order 23, Rule 1 of the Civil Procedure Code deals with withdrawal of the suits (it is reproduced at the end of this answer). Sub-rule (4) of this Rule lays down that if the plaintiff abandons any suit or withdraws from a suit without the permission of the court with liberty to file a fresh suit in respect of the subject-matter of such suit, then he shall be precluded from instituting any fresh suit in respect of such subject-matter. Thus, in such a situation, he is not allowed to file a fresh suit.

However, if the plaintiff withdraws the suit with permission of the court with a liberty to file a fresh suit [in terms of sub-rule (3) of the said Rule], then he is entitled to file a fresh suit. In such a situation, the principle of res judicata would not come in his way.

In fact, as per Section 11 of the CPC itself, res judicata is applicable when the previous suit “has been heard and finally decided by such Court“. If such suit was withdrawn by the party with liberty to file a fresh suit, then it cannot be said that the previous suit was heard and finally decided. In such case, therefore, res judicata would not apply.

Order 23, Rule 1 of the CPC is reproduced below, for your information:

“1. Withdrawal of suit or abandonment of part of claim.— (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An Application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person.

(3) Where the Court is satisfied,—

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff—

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),

he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.”

 

     

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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]

Once you have filed a petition for divorce on the ground of mutual consent, under Section 13-B of the Hindu Marriage Act, and if both the parties have already given their consent to the divorce on the second motion also, then the decree of divorce is passed by the court in the same petition. There is no need to file any separate petition or any separate case or any separate application. The very purpose of filing petition under Section 13B is to seek a decree of divorce. Therefore, there is no need for any separate application for getting the decree of divorce in such a case.

In fact, Section 13-B itself lays down that after the second motion, “…the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

Though it is expected that you should remain present in court at the time of hearing of the matter, once you have remained present at the time of the second motion and given your consent, it should be possible for you to be represented by your lawyer and POA, and the court will generally permit it. In fact, it should not take much time for the court to pass decree of divorce after the second motion.

     

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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 am replying to your question on the basis of the limited information available on the facts of the case and without having seen the detailed documents. So, it would be advisable for you to seek opinion of some expert who has actually seen the documents.

Generally speaking, if someone is declared medically unfit for a technical post as per the rules at the time of the selection for appointment itself, then he cannot be appointed to such post. His appointment should have been challenged at that time itself, i.e., at the time of selection / appointment itself.

But, if he is senior to you and if his appointment is not challenged to be illegal, then he may maintain his seniority. The reason may be that it is his appointment which may be challenged to be illegal, and not his seniority. Either he remains in service or he does not remain in service. If he does not remain in service in view of his illegal appointment, then there is no question of seniority being decided since he is already out of service. But, if his appointment is found to be legal and/or his appointment is not challenged successfully on the ground of medically being unfit, then he would continue to be senior if he was above you.

Therefore, in my view, you may have to challenge his illegal appointment itself, and not the seniority. If he is medically unfit, then he may not have been appointed even as junior to you.

As mentioned above, this is a tentative opinion since I have not seen the detailed documents of your case. It is advisable for you to consult some expert by showing him all relevant details and all relevant rules / guidelines applicable in your organisation.

On the second part of your question, you have yourself mentioned that your organisation is not within the purview of CAT. That being the position, how can you approach CAT? You may have to approach the District Court by way of a civil suit or the High Court by way of writ 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]

I have already replied to a similar question in detail: Family pension to unmarried daughter of more than 25 years age.

Please read that. As per this, if your father was working in the Central Government, then you, being the unmarried and unemployed daughter, would be eligible to get the family pension even if you are above the age of 25 years.

However, since you have not mentioned where your father was working, if your father was working in some other Government or organisation, then you’ll have to check the relevant rules of the concerned Government or organisation where he was working.

     

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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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