[Dr. Ashok Dhamija]

If you have evidence that your wife never stayed with you after the registered marriage (as you have mentioned that she has herself admitted in the FIR), then the case under Section 498-A IPC would be very weak. I hope by registered marriage, you mean the marriage performed before the Registrar under the Special Marriage Act.

Secondly, the allegations of demand of dowry that you have mentioned in your question, would require legal provisions of Dowry Prohibition Act, and they would not be covered under Section 498-A IPC.

Thirdly, legally speaking, if the registered marriage is legally valid, then there is no legal necessity of a further so-called social marriage. That is only for the satisfaction of the family members of relatives. Law fully recognizes the registered marriage. In this context, the dowry demand may lose some of its importance under the law.

You may consult some local lawyer by sharing full details with him (including relevant papers), and if so advised, you can try for quashing of FIR through the High 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]

In the case of Mohini Jain (Miss) v. State of Karnataka, (1992) 3 SCC 666 : AIR 1992 SC 1858, for the first time, a 2-judge bench of the Supreme Court held that right to education is a fundamental right under Article 21 of the Constitution.

However, subsequently, in the case of Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 : AIR 1993 SC 2178, a 5-judge Constitution bench of the Supreme Court, while agreeing with the basic premise that “the right to education  flows directly from right to life” [under Article 21], curtailed this right somewhat by observing that  the right to education, understood in the context of Articles 45 and 41, means: (a) every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development.

Subsequently, the Constitution was amended by the Constitution (86^th Amendment) Act, 2002, which inserted Article 21-A in the Constitution (however, this provision came into force much later, with effect from 1^st April 2010):

“21-A. Right to education.—The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

So, basically, the right to education now recognized under Article 21-A is for all children of the age of 6 to 14 years.

However, your question is slightly different. Your object is not to get free education, through the right to education, but to ensure that there is no age restriction while admitting students in colleges.

Personally, I agree with you that the right to education should extend to ensure that no person is deprived of getting education due to age restrictions. [However, the right to carry on a profession or join some employment at a later age on the basis of such education acquired at a late age, would be a slightly different issue, though I feel that this should also be permissible wherever possible, subject to reasonable restrictions permissible under Article 19 on this issue.]

I think it should be possible for you to take up this issue in the Supreme Court, on the basis of some case in which admission has been denied due to age restrictions, or on the basis of discriminatory rules imposing age restrictions. But, the case should be on the basis of some real discrimination, and not as an academic issue.

     

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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]

Firstly, you have yourself not clarified as to whether these cases in respect of 10 bounced cheques were conducted separately or together. Whether there was a single complaint and a single trial, or multiple complaints and multiple trials?

Usually, under the provisions of Section 219 of the Cr.P.C., not more than 3 cases of the same type occurring with 12 months can be tried together. What was the factual position in your case?

The appeal will also have to be filed accordingly, depending on how the trial was conducted, i.e., whether separately or together.

If all the cases were tried separately by the trial court, and there are separate orders of conviction, then you may have to file separate appeals.

Generally, appeal is filed for setting aside the order of the trial court, which means setting aside the order of conviction as well the sentence. It is advisable to challenge the conviction itself. If the appellate court upholds the conviction, then you can request for reduction in sentence. So, it should be possible to make a prayer to set aside the conviction and in the alternative to reduce the sentence. It would be advisable for you to contact some local lawyer and show him the relevant papers.

     

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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 fact, sub-section (5) of Section 320 of the Criminal Procedure Code, clearly indicates that an offence can be compounded / compromised even after conviction when the appeal is pending, however, it can be done only with the permission of the appellate court:

“(5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard.”

Of course, it goes without saying that an offence can be compoundable after conviction, while the appeal is pending, ONLY IF such offence is compoundable, under the provisions of sub-sections (1) or (2) of Section 320 of Cr.P.C., or under the provisions of any other law.

In the case of Bhim Singh v. State of U.P., (1974) 4 SCC 97 : 1974 Cri LJ 1285 : AIR 1974 SC 1744, an appeal was pending before the Supreme Court against a conviction for an offence under Section 324 IPC. The Supreme Court allowed the compounding of the offence, observing that the offence under Section 324 of the Indian Penal Code is compoundable with the permission of the Court, and that where the parties have amicably settled the matter, it would be in the fitness of things if permission to compound the offence is granted. Accordingly, the Supreme Court set aside the conviction and acquitted the accused, by allowing the compounding of the offence.

In the case of Biswanath Chakravarty v. Haripada De Dhara, AIR 1959 Cal 443, 1959 Cri LJ 831, Calcutta High Court had held that an appeal being a continuation of the proceedings, an appellate court cannot refuse the compounding of offences under Section 320(1) of Cr.P.C.

     

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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, which is available at the link: Husband and wife posted at different stations both being government servants. Please read that and it would mostly cover your question.

In the above reply, I have given link to the instructions issued vide Office Memorandum F. NO. 28034/9/2009-Estt.(A) dated the 30th September, 2009 by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training). In the said O.M., the relevant part of the instructions (in addition to the general instruction therein) are as under:

“(vii) Where one spouse is employed under the Central Govt. and the other spouse is employed under the state Govt.:-

The spouse employed under the Central Govt. may apply to the competent authority and the competent authority may post the said officer to the station or if there is no post in that station to the State where the other spouse is posted.”

These instructions lay down that all possible care should be taken to ensure that husband and wife working in Government service are posted to the same station.

You may also check the relevant instructions of the concerned State Government by making enquiries with them or by locating them online.

However, you should keep in mind that while the Government may make its best possible efforts to post husband and wife at the same station, it may not be possible always throughout your service tenure of 30-35 years due to various reasons. It also depends on the nature of service of husband and wife.

     

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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’ll have to challenge your service issues in the appropriate tribunal or court, as may be applicable in your state. In some of the states, tribunal has been set up for educational institutions. Check from some local lawyer or some of your colleagues in education department. If there is no such tribunal in your state, you may have to approach the regular court.

All advocates will not be engaged by the school management. You can always get at least some lawyers who would be willing to take up your case. However, you are free to fight your case in person. Obtain format of the petition / application from the tribunal / court or search online and draft it in your case. On this Forum, we don’t have formats of petitions, but there are many online websites which provide it. Likewise, on this Forum, we do not help to draft petitions. We basically help on legal queries to the extent they are within our level of expertise.

     

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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 Evidence Act, the original of the document is called the primary evidence. A Photostat copy of a Xerox copy is in the form of what is known as secondary evidence.

The Evidence Act requires that all documents must be proved by their primary evidence except in those situations which are provided under this Act. One of the situations in which secondary evidence is permissible to prove the document is when the original of the document has been lost.

Clause (c) of Section 65 of the Evidence Act provides that secondary evidence may be given of the existence, condition or contents of a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. This section further provides that in such a situation, any type of secondary evidence of the contents of the document is admissible.

Thus, if the original document has been lost, its secondary evidence in the form of a Photostat or Xerox copy can be given as evidence in the court. In your case, you can give the Photostat or Xerox copy of the Promissory Note in evidence, if the original has been lost.

However, note that there must first be evidence on record to show that the original document has been lost. To prove the loss of the document, a diligent search is necessary to trace the document. In fact, Illustration (b) to Section 104 specifically requires loss of the document to be proved first:

“(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.”

In view of this, you’ll be required to first establish that you have exhausted all resources and means in search of the original document that has been lost. Once you do that, you’ll be able to produce secondary evidence to prove the Promissory Note.

     

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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 6 Rule 17 of the Civil Procedure Code deals with amendments to the pleadings, which include a plaint filed in a civil suit. This Rule is as under:

“17. Amendment of pleadings.— The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

It should be clear from this Rule that the Court has the power to allow amendment of the pleadings at any stage of the proceedings.

Moreover, it is pertinent to point out that no period of limitation has been prescribed either under the Civil Procedure Code or the Limitation Act for making an application for amendment of the pleadings, such as in the plaint.

In view of the above, it should be clear that there is no limitation period for moving an application for amendment in the plaint, and you can move this application for amendment even one and half year after filing of the plaint. Of course, the proposed amendments in the plaint must meet the requirements of “…as may be necessary for the purpose of determining the real questions in controversy between the parties” and other requirements of the law so that the court can exercise its discretion of allowing the amendment of the plaint in favour of 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]

First information report (FIR) in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. [See: Thulia Kali v. State of T.N., (1972) 3 SCC 393 : 1972 Cri LJ 1296 : AIR 1973 SC 501.]

In the case of Ram Jag v. State of U.P., (1974) 4 SCC 201 : AIR 1974 SC 606, the occurrence took place at about 4 p.m. and since the First Information Report was lodged at about 12.30 at night at the Police Station which was at a distance of about 4 miles from the scene of occurrence, the Sessions Judge held that there was undue delay in lodging the report (FIR) and that the delay was not satisfactorily explained. In this regard, the Supreme Court held as under:

“It is true that witnesses cannot be called upon to explain every hour’s delay and a common-sense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.”

Therefore, as held by the Supreme Court, it all depends on facts of each case. But, generally speaking, a delay of 2 days in filing complaint for lodging FIR in a case of the nature of Section 325 IPC (in today’s fast communication age), may create doubt about the truthfulness of the FIR. It is for the complainant to explain the delay in such a situation.

Where the delay in the FIR cannot be explained satisfactorily, it may definitely benefit the accused, since in that situation, the corroborative value of the FIR decreases.

     

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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]

An order refusing an application for grant of anticipatory bail does not necessarily preclude another similar application, on a later occasion, when there are more materials, further / subsequent developments, changed circumstances or applicability of different considerations on which anticipatory bail is granted. Therefore, second application for anticipatory bail may be maintainable after rejection of the first such application, if there is some substantial change in circumstances, etc.

Legally speaking, the Sessions Court has the power under law to grant anticipatory bail even after it was rejected on the first occasion by the High Court, if there are some strong grounds and substantial change in circumstances. But, in practice, generally speaking, the Sessions Court may not grant anticipatory bail if it had been refused by the High Court on the first occasion, due to judicial discipline and also sometimes due to the apprehension that the High Court may consider it as an instance of violation of its previous order. So, it may be advisable to go back to the High Court for seeking anticipatory bail again if there is some substantial change in circumstances.

[See, for more details, my book: Law of Bail, Bonds, Arrest & Custody, By Dr. Ashok Dhamija.]

     

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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 a difference in the jurisdiction in civil and criminal cases. In a criminal case, the jurisdiction lies at the place where the offence has taken place, or where at least a part of the offence has taken place. In any case, it may be beneficial to you if the case (FIR) has been transferred to your place, as you have mentioned.

As regards the filing of petition for quashing of FIR, you can do so if it is found that there is no prima facie case for registration of the offence even if the FIR is read at its face value. You will have to file such petition in the High Court under Section 482 Cr.P.C.

It is not possible for us to reply to the question on the basis of detailed facts, as stated in our Forum guidelines:

“What is replied here is “legal” questions or questions of “law”, and NOT detailed questions of “facts”. So, questions with detailed facts may not be answered, for which, in fact, it is in your own interests to contact some local lawyer who can study all relevant facts with the help of your detailed case papers (which is beyond the scope of this public forum).”

To get opinion on facts of your case, please consult some lawyer by showing him all the relevant papers.

     

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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, it is legally permissible for police to ask for presence of all accused persons, who are being charge sheeted, to remain present in the court at the time of filing of charge sheet. This is generally to enable the court to take cognizance. Though police would generally issue a written advice to remain present in court and take signature as acknowledgement, it is advisable to comply with their oral information also for remaining present in court.

One of the main conditions of the bail bond (whether in regular bail or anticipatory bail) is that the accused will remain present in court, etc., whenever asked to remain present. So, you should remain present in court if asked to do so.

All accused persons are required to remain present in court on the given date(s), unless some accused person has been given exemption from appearance for a specific date or generally exempted by court. If an accused person does not remain present, without exemption being granted, it may lead to a warrant being issued against him.

Usually, copies of charge sheet (along with relevant documents) are provided to the accused persons on the first date in court. The court may also take cognizance on that date. The court may ask for a fresh bail bond, with or without sureties. So, it is better to go with the surety.

I have already explained the risk for absence. The accused may get a warrant issued against him in case of absence in court without exemption being granted.

     

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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]

Looking at the facts of your case, I am presuming that the criminal case mentioned by you was registered prior to 15 January 2016, i.e., before the latest Juvenile Justice (Care and Protection of Children) Act, 2015, came into force. If that was the case, then in view of the provisions of Section 19 of the old Juvenile Justice (Care and Protection of Children) Act, 2000, you will not face any disqualification for any offence committed by you as a juvenile, and more so because there was an acquittal in your favour in respect of such offence. This section is as under:

“19. Removal of disqualification attaching to conviction.—(1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.

(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be.”

Therefore, the said offence committed by you as a juvenile should not be a disqualification in the matter getting employment.

     

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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 from the facts mentioned by you, you may perhaps have to file a suit in the civil court for claiming compensation and damages for mental agony, illness and illegal termination, etc., and also for violation (if any) of the contract of service. However, to get an accurate advice, you should consult some local lawyer in your area, preferably some lawyer who is expert in labour laws / service laws, by showing him all the relevant documents and details.

     

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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 19 of the Consumer Protection Act lays down that any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of Section 17 may prefer an appeal against such order to the National Commission. Thus, an appeal can be filed to the National Commission (NCDRC) only where the State Commission has passed order under Section 17(a)(i). Such order under Section 17(a)(i) is passed by State Commission in its original jurisdiction, i.e., when it is hearing a direct complaint where the amount involved exceeds Rs. 20 lakh but does not exceed Rs. 1 crore (and not in an appeal from District Forum). Your case is not covered under this provision, so appeal would not be maintainable to the NCDRC.

Though Section 21 of the Act appears to giving wider powers to NCDRC of entertaining appeals against orders of a State Commission, however, the opening words of this section are: “Subject to the other provisions of this Act…”. Therefore, the power under Section 21 would be controlled by the above provisions of Section 19. In view of this, in your case, you cannot file appeal before the National Commission (NCDRC).

On the other hand, the revision power of the National Commission is provided under Section 21(b) of the Act as under:

“(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.”

This provision does not appear to be barring a revision against the revision order of the State Commission, i.e., the language of this provision does not appear to be prohibiting second revision by the National Commission. Therefore, you may try it. However, please note that the revision power is a limited power, subject to conditions mentioned above.

Another option could be to challenge the order of the State Commission before the High Court by filing a writ petition. So, if it found that second revision (before the National Commission) is not maintainable, then in view of there being no alternative remedy, a writ petition may perhaps be possible with the High 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.

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