[Dr. Ashok Dhamija]

Firstly, let me point out that I had written two detailed articles on Section 166A of IPC:

• Beginning of the end of the non-registration of FIRs.
• Non-registration of FIRs – back to square one.

Please read them as some of your doubt may be cleared by them.

Section 166-A of IPC is reproduced below:

“166-A. Public servant disobeying direction under law.—Whoever, being a public servant,—

(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or

(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or

(c) fails to record any information given to him under sub-section (1) of Section 154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to cognizable offence punishable under Section 326-A, Section 326-B, Section 354, Section 354-B, Section 370, Section 370-A, Section 376, Section 376-A, Section 376-B, Section 376-C, Section 376-D, Section 376-E or Section 509,

shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.”

Now, as regards clause (c), there should no doubt that it applies only to the FIR filed under Section 154 of the Criminal Procedure, since it specifically mentions so.

In so far as clause (b) is concerned, in my opinion, it should apply to all directions relating to investigation, including direction given by the Magistrate under Section 156(3) of the Cr.P.C. But, please note that the main ingredient of clause (b) is “knowingly disobeys”. So, it should not only be mere delay or mere disobeyance of an order, it should also be intentional (i.e., he should do it knowingly).

I cannot comment on the facts of your case, as to whether this provision would be attracted in your case. If you can prove that the police officer knowingly disobeyed the order of the Magistrate for 2 months, well, you may perhaps have 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]

Please note that Section 161 of the Criminal Procedure Code (Cr.P.C.) relates to examination of witnesses and recording of their statements during the investigation.

If a charge sheet is filed on the basis of statements recorded under Section 161 Cr.P.C., then that means that the charge sheet contains evidence of witnesses, i.e., the oral evidence.

Now note that the Evidence Act lays down that evidence is of two types: (1) Oral evidence; (2) Documentary evidence.

It is not necessary that both types of evidence should be present in every case. There is nothing wrong if the charge sheet in a particular case contains evidence of only one type, such as oral evidence.

Therefore, a charge sheet filed only on the basis of Section 161 Cr.P.C. statements (of witnesses) is valid and there is nothing wrong in that. Ultimately, all these witnesses would be examined in the court and they have to give their evidence in court, only after that the accused can be convicted.

     

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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 far as I understand, it is the right of the member of the society to get his share certificates. These share certificates are issued to show his membership rights in the society. If there is any default committed by a member against the rules of the society, then the society can take action in accordance with legal provisions applicable. However, refusing to issue the share certificate appears to be wrong.

At the same time, you should also check the relevant Societies Act applicable in your state and also the byelaws of your society.

     

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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 has been held by the Supreme Court that disciplinary proceedings cannot be initiated or continued against an employee after his retirement unless such action is authorised under the rules regulating the particular service. For this purpose, see the following judgments of the Supreme Court:

• Bhagirathi JenaOrissa State Financial Corpn., (1999) 3 SCC 666.
• Dev Prakash TewariU.P. Coop. Institutional Service Board, (2014) 7 SCC 260.

Therefore, you’ll have to check the rules of your organisation as to whether such post-retirement penalty is permitted under the rules applicable. If there is no such provision in your rules permitting the authority to take such action against the officer after his retirement, then no such action can be taken against him.

     

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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 answer to both your questions appears to be “yes”.

     

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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 far as I understand all PSUs have detailed rules framed for the purpose of imposing major penalty on the officers, such as removal from service. You have to check the rules applicable in your PSU.

But, generally speaking, I have seen that such rules require that definite charges shall be framed on the basis of the allegations against such officer. Such charges are required to be communicated to the officer concerned and his explanation (written statement) is called. After that, if needed, a detailed inquiry is conducted wherein a reasonable opportunity is required to be given to the officer to present his side of the case. These are basic requirements of the principles of natural justice, which are generally incorporated in the rules of the PSUs.

Check the relevant rules applicable in your PSU. If these rules have not been followed, then you can challenge the penalty imposed before the appropriate court or tribunal, as may be applicable in the case of your PSU.

     

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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]

Generally, such interest is supposed to be on the default amount itself, and not on the interest component also, i.e., it is supposed to be simple interest and not compound interest. However, you may also have to check the relevant rules / byelaws of your society, as to what are its provisions. You can request the society to inform you under which byelaws it is charging interest on interest, or compound interest.

     

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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 to understand your question and the facts stated therein. Please write in clear language. The dates mentioned by you are also not matching. The date of closure of case is of 2017 whereas the protest petition date is of 2016.

However, it appears from your question that the case has already been closed and the protest petition has been submitted after that (though you appear to have given wrong dates). If this is the situation and if the case was closed without giving an opportunity to the complainant to file a protest petition, then such closure of case would be wrong and you can challenge it before the higher courts. On the other hand, if an opportunity was given earlier to the complainant to file protest petition but he did not file it and the case was closed due to this reason, and if the complainant now wants to file the protest petition, then you may have to approach the higher courts to get the case reopened. The trial court may not have the power to reopen the case once it is closed properly in accordance with law.

     

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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 the case of Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283, the Supreme Court observed as under:

“The Latin word alibi means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.”

In the above case, the Supreme Court further observed that an alibi is not an exception (special or general) envisaged in the Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant.

In the case of Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166, the Supreme Court observed that:

“The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.”

Recently, in the case of Jumni v. State of Haryana, (2014) 11 SCC 355 : 2014 Cri LJ 1936, the Supreme Court held that:

“…when an alibi is set up, the burden is on the accused to lend credence to the defence put up by him or her. However, the approach of the court should not be such as to pick holes in the case of the accused person. The defence evidence has to be tested like any other testimony, always keeping in mind that a person is presumed innocent until he or she is found guilty.”

In view of the above judgments of the Supreme Court, the burden is on the accused to prove alibi before the trial court. It is ultimately for the trial court to appreciate the rival contentions of the prosecution and the accused, and to arrive at a conclusion. These are the basic legal principles governing alibi. More than this, it is not possible for me to comment on the merits of facts of an individual case without seeing the detailed facts / 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]

In my opinion, it will all depend on the actual specific terms and conditions of an Insurance Policy under which the two wheeler was insured. Insurance is a matter of negotiation between the parties and it is a contract between the parties. It is for the parties to define the terms of the such contract of Insurance Policy. Accordingly, you’ll have to look into the specific clauses of the insurance policy whether insurance claim can be granted in case theft took place due to negligence of the owner.

     

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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 154 of the Criminal Procedure, which deals with registration of FIR or the First Information Report, starts with the words, “Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf…”.

So, any information that discloses commission of a cognizable offence can be treated as FIR. It can even be oral information given to the SHO (officer in charge of the police station).

Therefore, there appears to be no legal bar for the email being treated as an FIR if it discloses the commission of a cognizable offence.

In fact, recently, it was officially stated that an FIR can be filed with Tripura Police through an SMS or via an email.

     

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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]

There is no question but a statement in what you have stated. I don’t think I need to add anything to this, except that it is an old academic issue, generally found in some books on the Constitution. But, it is not of any relevance today since the fact remains that the whole country is being governed under the Constitution and everything written in the Constitution is considered as binding on all institutions in the country.

     

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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 combined reading of Sections 399, 401 and 386 of Criminal Procedure Code shows that the revision court has the power to:

• alter or reverse the order;
• make any amendment or any consequential or incidental order that may be just or proper.

So, while entertaining the revision application against the order of the Magistrate refusing to take cognizance, the Sessions Court has the power to overrule the Magistrate’s order and can direct him to take cognizance. But, it is the discretion of the Sessions Court. And, in the facts and circumstances of the case, the Sessions Court can also give any other direction, if it considers that necessary.

     

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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 appears that the DoPT (Department of Personnel & Training) website as well as the NCBC (National Commission for Backward Classes) website do not contain up to date information on the creamy layer.

The relevant information is available here on these websites that may be helpful to you in this regard:

• http://dopt.gov.in/sites/default/files/Ch-02_2014.pdf
• http://www.ncbc.nic.in/Writereaddata/dopteng.pdf

Also see this recent news report as per which the Government had  expanded the ambit of ‘creamy layer’ to include certain posts in PSUs and public sector financial institutions, thus barring these officials and their kin from claiming reservation benefits under the OBC category.

Since these guidelines keep changing from time to time, and since up to date information is not available online, it is advisable for you to contact the concerned authorities (may be by RTI application) to get clarification about your status.

     

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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 257 Cr.P.C. is applicable to summons cases. A summons case means a case where the maximum punishment prescribed under law is up to 2 years. However, for an offence under Section 498-A IPC, the maximum punishment is 3 years, and therefore, it is not a summons case. It is a warrant case, for which the provisions of Section 257 Cr.P.C. are not applicable.

Since it is a private complaint case under Section 498-A IPC and trial is yet to begin, as mentioned by you, the complainant can try filing an application before the Magistrate for withdrawal of the complaint. If the Magistrate has not taken the cognizance, it may perhaps be allowed to be withdrawn. But, even otherwise, in my opinion, on the basis of such withdrawal application, it should be possible for the Magistrate to discharge the accused under the provisions of Section 245(2) Cr.P.C., which is reproduced below for your information:

“(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.”

If this method does not work, then you have to file a petition before the High Court under Section 482 Cr.P.C. for quashing of the proceedings on the basis of the compromise between the parties.

As regards the complaint under the provisions of the Protection of Women from Domestic Violence Act is concerned, and also application under Section 125 Cr.P.C. for maintenance, I think it should be possible to withdraw the same by filing an application for withdrawal of the same.

     

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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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