Dr. Ashok Dhamija
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March 13, 2018 at 7:24 pm in reply to: 498A IPC – complainant remaining absent and delaying trial #4170
Dr. Ashok DhamijaAdvocateUsually, if a witness does not attend the court in spite of summons issued by the court, warrant can be issued for ensuring his or her presence. Generally, initially a bailable warrant is issued, and if the need arises, subsequently, even a non-bailable warrant can be issued by the court. In your case, a bailable warrant has already been issued. If the complainant still does not attend the court, you can request the court on the next date to issue a non-bailable warrant against her.
If, ultimately, she fails to attend the court, then her evidence will remain incomplete since in the absence of cross-examination, her examination-in-chief would not be read in evidence. In such a situation, it would be as good as if she was never examined in the court. It will ultimately be helpful to you, since if the complainant herself is not appearing in the court, the chances of your acquittal would increase drastically, especially in a case of Section 498-A IPC, which is of a personal nature.
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.
March 13, 2018 at 7:16 pm in reply to: Can High Court review its order in a petition u/s 482 Crpc? #4169Dr. Ashok DhamijaAdvocateSection 362 of the Criminal Procedure Code specifically lays down that no Court can review its order or judgment except to correct a clerical or arithmetical error:
“362. Court not to alter judgment.— Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”
In the case of State of Orissa v. Ram Chander Agarwala, (1979) 2 SCC 305 : 1979 Cri LJ 33 : AIR 1979 SC 87, while interpreting Section 369 of the old Criminal Procedure Code of 1898 (which corresponds to Section 362 of the new Criminal Procedure Code, reproduced above), the Supreme Court held that the said section was intended to apply to all courts, the provision being “no court when it has signed its judgment shall alter or review the same”, and the Supreme Court held that “no court” would include “all courts”.
Referring to Section 561-A of the old Cr.P.C. of 1898 (which is equivalent to Section 482 of the new Cr.P.C.), the Supreme Court held that:
“It purports to save the inherent powers of the High Court to make such orders—(1) as may be necessary to give effect to any order passed under the Code, (2) to prevent abuse of the process of the court and (3) otherwise to secure the ends of justice. The introduction of the section was because doubts were expressed about the existence of such inherent powers in the High Courts after the passing of the Criminal Procedure Code. By the introduction of the section it was made clear that, the inherent powers of the High Court, for the purposes mentioned in the section, shall not be deemed to be limited or affected by the provisions of the Criminal Procedure Code. Thus, inherent power cannot relate to any of the matters specifically dealt with by the Code. It would follow that inherent powers cannot be invoked to exercise powers which would be inconsistent with any of the specific provisions of the Code. The saving of inherent power is only for giving effect to orders passed under the Code, to prevent abuse of the process of any court or otherwise to secure the ends of justice.
Thereafter, the Supreme Court held that if Section 369 of the (old) Cr.P.C. (equivalent to Section 362 of the new Cr.P.C.) is understood as applying to judgments on appeal by the High Court, Section 561-A of (old) Cr.P.C. (which is equivalent to Section 482 of the new Cr.P.C.) cannot be invoked for enabling the court to review its own order which is specifically prohibited by Section 369 (equivalent to Section 362 of the new Cr.P.C.) by providing that, no court when it has signed its judgment, shall alter or review the same except to correct a clerical error.
In view of the aforesaid Supreme Court judgment, it should be quite clear that a High Court cannot review its own order even under Section 482 of the Cr.P.C. A High Court can only correct a clerical or arithmetical error in its order, as provided under Section 362 of the Cr.P.C., but it cannot or review its order otherwise.
However, it should be noted that Section 362 of the Cr.P.C. begins by saying that “Save as otherwise provided by this Code or by any other law for the time being in force…”. Therefore, if there is a provision for filing appeal under any other law/rules (such as LPA or Letters Patent Appeal) for filing an appeal from the order of a Single-Judge bench of the High Court to a Division bench of the High Court, then such appeal may be admissible before the same High Court. However, a review is still not possible, as mentioned above (it should be noted that review of an order would imply review of the order by the same bench which had earlier passed that order).
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 DhamijaAdvocateRelevant extracts from Section 100 of the Criminal Procedure Code are reproduced below:
“(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.
(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.”
So, the legal provision clearly requires that the occupant (owner) of the house searched shall be given a copy of the search list and a copy of the list of articles seized. So, you should have objected to the seizure of the articles without giving a copy to you of the list of the seized articles, at the time when these articles were seized from you. Why did you allow them to take the articles without getting a copy of the list of seized items? This list is supposed to be signed by the police officer and two or more independent witnesses who witnessed such search and seizure.
Raising the objection subsequently after a long time gap, would leave you at the mercy of the police officers concerned, unless you have some proof of the items seized (such as CCTV / video recording of the seizure or some witnesses). If your phones had SIM cards and were active, then the location of those phones may be found in the police station after their seizure. Make enquiries about that. In any case, you may try complaining to the senior officers as well as to the court having jurisdiction.
As regards the demand of bribe from you, you should immediately contact the Anti-Corruption Bureau (ACB) at your place and file a complaint. They can lay a trap for catching the corrupt police officers for demand and acceptance of bribe. If the trap is successful, the ACB may provide whatever lawful protection is possible.
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 DhamijaAdvocateHow can we tell you as to what could be the talk between the Government lawyer and the victim, or what its purpose could be?
If the charge sheet is filed, the police would contact you and ask you to remain present in the court on the date when it is to be considered by the court for taking cognizance. If there is a change in your address, you may intimate the police, if necessary.
Generally, the accused is called to the court after filing of charge sheet, within a few days to a couple of months. If you are really anxious, you may go and enquire in the court.
Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, which defines “domestic relationship” also includes reference to “through a relationship in the nature of marriage“. This may include a live-in relationship, if the relationship is of the above kind. In such a scenario, it may be possible for the woman in the live-in relationship to claim protection under the said Act, including maintenance.
It is not possible for us to reply to the remaining questions which relate to facts of the case, in the absence of having examined full details / papers of your case. Please consult some local lawyer by showing him all the relevant papers.
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.
March 13, 2018 at 8:51 am in reply to: Validity of Registered Agreement for sale of land acquired by Govt #4160Dr. Ashok DhamijaAdvocateIt is difficult to reply on facts of a case without actually seeing the detailed documents.
But, generally speaking, if you do not have any rights in the land, then you may not be in a position to sell it. However, if suppose dispute is still going on in the land acquisition and the acquisition process is still not completed, then I think it may be possible to transfer whatever limited right you have in the land (subject to the outcome of the dispute). In such a case, your agreement should correctly and transparently mention all the relevant details of acquisition and the present status of your rights over the land, and the present status of the dispute. It should also be clearly and transparently mentioned that what is being transferred is the limited right that you have in the land. Do not state any incorrect facts. Do not conceal any information. Do not back-date the agreement. However, as I mentioned above, it is difficult to give an accurate opinion without actually seeing the detailed documents. Therefore, please be aware that the above opinion may not be correct. For getting the legally correct opinion, you should consult some good lawyer by showing him all the relevant records / documents.
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.
March 10, 2018 at 4:13 pm in reply to: Challenging jurisdiction of a court in a maintenance case #4148Dr. Ashok DhamijaAdvocateWhen the maintenance application is under the Criminal Procedure Code, then how can you challenge jurisdiction of the court under the Civil Procedure Code?
You should first try to convince the Magistrate court itself which is hearing the maintenance application, that it has no jurisdiction, on whatever grounds you have got. If the court agrees, it may dismiss the maintenance application directing the applicant to go to the appropriate court having jurisdiction.
If that court does not agree and if you feel that you have valid grounds, then you may approach the revision court (Sessions Court) against such order the Magistrate court.
Another option could be to directly approach the High Court (under Section 482 Cr.P.C.), without first requesting the Magistrate court as above, for challenging the jurisdiction of the Magistrate court.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateYou’ll have to check it from the complaint itself. It would have been explained therein.
It may perhaps be referring to the fact that the cheque was endorsed / assigned to the holder in due course by the payee, if the cheque was “& Co.” type cheque.
Or, it may be that the complaint has been filed by the POA of the complainant.
You could have seen from the complaint and should have mentioned at 2-3 lines of details from the complaint. Certain things have to be seen in context.
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 DhamijaAdvocatePOA for what purpose? For appearing in court on her behalf (like an advocate)? It may not be possible.
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.
March 9, 2018 at 9:37 am in reply to: Challenging jurisdiction of a court in a maintenance case #4138Dr. Ashok DhamijaAdvocateA maintenance case is permissible under various provisions of law. Firstly clarify under what provision of law the maintenance case is pending. The remedy may depend on that.
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 DhamijaAdvocateFor getting a stay on the arbitration award, you’ll have to file an application before the court [as defined in Section 2(e)] under Section 34 of the Arbitration and Conciliation Act, 1996, for setting aside the award and seek stay of the award in the meanwhile during pendency of the proceedings.
As explained in detailed guidelines (quoted below) for asking questions on this Forum, please note that it is not possible for us to reply on detailed facts; so for opinion on detailed facts, please contact your local lawyer and show him all relevant papers:
“(5) 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). … …”
(6) Please try to keep the facts to the bare minimum, necessary to explain the legal question. Do not provide lengthy facts. As mentioned above, questions with lengthy facts will not be replied.”
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.
March 8, 2018 at 9:44 am in reply to: Is res judicata principle applicable in public interest litigation? #4133Dr. Ashok DhamijaAdvocateTo answer your question, one may beneficially refer to Explanation VI to Section 11 of the Civil Procedure Code (CPC) which deals with the principle of res judicata:
“11. Res judicata.— No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
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Explanation VI.— Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
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Thus, Explanation VI to Section 11 of CPC would clearly show that the principle of res judicata would apply to a bona fide public interest litigation (PIL). This implies that if the previous litigation was a bona fide public interest litigation in respect of a right which was common and was claimed in common with others, the decision in such previous PIL may act as a res judicata for the subsequent PIL. However, please note that the emphasis in the above Explanation is on the word bona fide. Thus, if the previous litigation was not a bona fide public interest litigation (PIL), then it may not bar a subsequent public interest litigation.
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.
March 8, 2018 at 12:14 am in reply to: 138 ni-summons case-bail bonds or surety bonds-mandatory or imperative? #4131Dr. Ashok DhamijaAdvocateThe offence of cheque bounce under Section 138 of the Negotiable Instruments Act is a bailable offence. In view of this, considering the provisions of Section 436 of the Criminal Procedure Code, it is permissible for the Magistrate to release the accused only on a personal bond. It is not mandatory to always insist for the bail bond of sureties. Language of Section 436 Cr.P.C. itself clear in this regard, and there should be no need for any judgment in this regard.
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 DhamijaAdvocateIn my considered opinion, the answer to your question would depend on the facts of the case.
If the immovable property is being transferred formally from a partner’s name to the partnership firm’s name or in joint names of the partners, and there is a regular transfer / conveyance deed, etc., then of course, payment of registration fee, stamp duty, etc., would be required.
However, if the immovable property continues to be in the personal name of the partner and is not formally transferred to the firm’s name through a conveyance deed, but it is pooled in the stock or capital of the partnership firm (which may still be covered as firm’s property under Section 14 of the Partnership Act, 1932) then there would be no need for the registration fee and stamp duty, since there is no formal conveyance deed and the property still continues to be in the personal name of the partner.
This is what is my understanding the law on this issue.
It may also be relevant to reproduce the provisions of Section 45(3) of the Income Tax Act, 1961, for the purposes of tax treatment, which lays down as under:
“(3) The profits or gains arising from the transfer of a capital asset by a person to a firm or other association of persons or body of individuals (not being a company or a cooperative society) in which he is or becomes a partner or member, by way of capital contribution or otherwise, shall be chargeable to tax as his income of the previous year in which such transfer takes place and, for the purposes of Section 48, the amount recorded in the books of account of the firm, association or body as the value of the capital asset shall be deemed to be the full value of the consideration received or accruing as a result of the transfer of the capital asset.”
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateAs far as I understand, the name of the unmarried daughter can be added for the purposes of the family pension only after the death of the wife of the pensioner, who is at present getting the family pension. Only at that time, it can be ascertained whether the daughter is still unmarried, what is her age, what is her income and whether other conditions, if any (as per the Rules of the concerned Government) are satisfied by the daughter.
Please note the difference in family pension being given to the wife of the retired Government servant and to the unmarried daughter. In the latter case, there are certain conditions that are required to be satisfied which can generally be tested only when the time is ripe to consider the applicability of those conditions.
However, you may make enquiries with the concerned department which is paying pension to your mother for a more accurate answer to your question.
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 DhamijaAdvocate(1) It depends on the facts of the case whether or not it is advisable to go to the high court against framing of charges by the Sessions Court. If there is no prima facie case against your brother, then you can try challenging the order of framing charges against him in the high court. Consult some local lawyer on the facts of the case by showing him all the papers.
(2) Again, it is not possible to say how much time would be taken by the high court for deciding such a challenge against framing of charges. It depends on the pendency level in the concerned high court and various other factors. It may take a few months to a few years, depending on the high court. You better ask some local lawyer in the high court concerned.
(3) Proceedings in the trial will halt only if a stay on proceedings is granted by the high court during the pendency of your petition challenging the framing of charges. In the absence of any such stay, the trial may continue.
(4) Answer to this question is the same as in point (1) above. General trend is that generally the discharge is not allowed. It is allowed only in exceptional cases where there is no prima facie case.
(5) Naturally, if the prosecution is not able to prove its case, the Sessions Court will acquit the accused. How can the court convict in the absence of a proof?
(6) With the permission of the court, fresh evidence can be submitted by prosecution during trial.
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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