Dr. Ashok Dhamija

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March 1, 2018 at 5:00 pm in reply to: autonomous body service matter #4082

Dr. Ashok Dhamija

Advocate

Please see Rule 62 [in particular, sub-rule (b)] of the Rules of Practice, 1993 of CAT (which are available online here], and see whether it can help you:

“62. Appearance on behalf of Government, etc. – (a) Any legal practitioner appearing on behalf of the Central Government or State Government or any Government servant sued or suing in his official capacity or any authority/corporation/society notified under section 14 of the Act shall not be required to file a vakalatnama but he shall file into Tribunal a Memo of Appearance in Form No. 11 duly signed by him.

(b) A presenting officer other than a legal practitioner representing any of the parties referred to in sub-rule (a) shall also file a memo of appearance in Form No.11.”

One more thing, we have noticed that the detailed questions being asked by you are similar to the detailed questions being asked by another user at this link: Reopening of reserved judgement on ground other than connected with the case.

Are these two persons the same? If so, please do not use run parallel questions in two different user names. We may have to block the users and delete the questions.

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 1, 2018 at 4:40 pm in reply to: Reopening of reserved judgement on ground other than connected with the case #4081

Dr. Ashok Dhamija

Advocate

Usually, the lower courts will go by the time fixed by the higher court for disposal of the case. Why are you presuming so many things?

If the CAT is not in a position to ensure disposal within the time given in the high court order, you may approach the high court and bring it to its notice, whereupon the high court may pass appropriate orders, including the extension of time.

Usually fixation of time by higher courts are in the form of a request to the lower court and not as a strict direction, therefore, filing of a contempt petition is not desirable.

March 1, 2018 at 9:00 am in reply to: What is limitation for filing appeal against conviction u/s 279/338 IPC? #4078

Dr. Ashok Dhamija

Advocate

As per the provisions of Article 115(b)(ii) of the Schedule to the Limitation Act, 1963, the limitation period to file appeal against an order of conviction under Section 279/338 IPC by the Magistrate is 30 days from the date of sentence or order. The appeal has to be filed before the Sessions Court.

March 1, 2018 at 8:50 am in reply to: Format for Memorandum of Association of a Company #4076

Dr. Ashok Dhamija

Advocate

Format for the Memorandum of Association of a Company Limited by Shares is provided in Table A of the Schedule I to the Companies Act, 2013 (you can this Act online here):

Memorandum of Association of a Company Limited by Shares

1st	The name of the company is “…………………………….Limited/Private Limited”.
2nd	The registered office of the company will be situated in the State of……………………………..
3rd	(a) The objects to be pursued by the company on its incorporation are—
	(b) Matters which are necessary for furtherance of the objects specified in Clause 3(a) are—
4th	The liability of the member(s) is limited and this liability is limited to the amount unpaid, if any, on the shares held by them.
5th	The share capital of the company is …………………………………………………………… rupees, divided into…………………………….shares of…………………………….rupees each.
6th	We, the several persons, whose names and addresses are subscribed, are desirous of being formed into a company in pursuance of this memorandum of association, and we respectively agree to take the number of shares in the capital of the company set against our respective names—

Names, addresses, descriptions and occupations of subscribers	No. of shares taken by each subscriber	Signature of subscriber	Signature, names, addresses, descriptions and occupations of witnesses
A.B. of……..Merchant	…………..		Signed before me:
			Signature………………….
C.D. of……..Merchant	…………..		Signed before me:
			Signature………………….
E.F. of……..Merchant	…………..		Signed before me:
			Signature………………….
G.H. of……..Merchant	…………..		Signed before me:
			Signature………………….
I.J. of……..Merchant	…………..		Signed before me:
			Signature………………….
K.L. of……..Merchant	…………..		Signed before me:
			Signature………………….
M.N. of……..Merchant	…………..		Signed before me:
			Signature………………….
Total shares taken:

7th	I, whose name and address is given below, am desirous of forming a company in pursuance of this memorandum of association and agree to take all the shares in the capital of the company (Applicable in case of one person company)—

Name, address, description and occupation of subscriber	Signature of subscriber	Signature, name, address, description and occupation of witness
A.B. of……..Merchant		Signed before me:
		Signature………………….

8th	Shri/Smt………………, son/daughter of ………………….., resident of………… aged………… years shall be the nominee in the event of death of the sole member (Applicable in case of one person company)
	Dated…………………………………. the day of ……………………..

The Memorandum of Association of other types of companies is also provided in Schedule I to the Companies Act, 2013.

March 1, 2018 at 8:31 am in reply to: under section 125 CRPC for maintenance of minor son #4074

Dr. Ashok Dhamija

Advocate

Legally speaking, she may be entitled to seek maintenance for the minor son who is living with her, even after filing of son’s custody case by you. However, it is up to the court whether or not to order maintenance, depending on the facts of the case.

For example, please note that a Proviso to Section 125(3) of the Criminal Procedure Code provides as under:

“Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”

This shows that the Magistrate can order maintenance in favour of the wife even if the wife refuses to live with her husband provided he is satisfied that she has a just ground for so doing. In your case, the maintenance is for the minor son, which may be on a better footing perhaps as there appears to be no such restrictive provision for such maintenance.

However, as I mentioned above, ultimately it is for the Magistrate to decide whether it is just to order maintenance for the minor son in the given facts and circumstances of the case.

February 28, 2018 at 7:44 pm in reply to: Can Facebook give my private messenger conversations to police for investigation #4070

Dr. Ashok Dhamija

Advocate

Yes, if your information contained on Facebook (such as your private messages) is required by police for the investigation purposes, Facebook may share such information to police if it is a valid request under law. This is as per the Data Policy / privacy policy of Facebook. For example, this is what is mentioned by Facebook in its Data Policy as to how does Facebook respond to legal requests or prevent harm:

“We may access, preserve and share your information in response to a legal request (e.g. a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction and is consistent with internationally recognised standards. We may also access, preserve and share information when we have a good faith belief that it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves, you and others, including as part of investigations; or to prevent death or imminent bodily harm. For example, we may provide information to third-party partners about the reliability of your account to prevent fraud and abuse on and off our Services. Information that we receive about you, including financial transaction data related to purchases made with Facebook, may be accessed, processed and retained for an extended period of time when it is the subject of a legal request or obligation, governmental investigation, or investigations concerning possible violations of our terms or policies, or otherwise to prevent harm. We also may retain information from accounts disabled for violations of our terms for at least a year to prevent repeat abuse or other violations of our terms.”

Generally, these terms and conditions are part of the privacy policy to which you may be subject when you become a member of Facebook or continue to be a member thereof. Therefore, your private messages on Facebook may be provided by it to police if there is a valid requisition from police in exercise of its lawful powers in connection with an investigation.

February 28, 2018 at 7:15 pm in reply to: Difference between Executive Magistrate and First Class Judicial Magistrate #4069

Dr. Ashok Dhamija

Advocate

Section 3(4) of the Criminal Procedure Code lays down as under:

“(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters—

(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or

(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.”

From this description, and from other provisions of the Cr.P.C., it should be clear that a Judicial Magistrate is basically concerned with the prosecution / trial of persons for offences, grant of custody or bail for such offences, and other matters related to investigation / inquiry in relation to offences.

On the other hand, an Executive Magistrate is mainly concerned with administrative matters, preventive matters, maintenance of law & order, etc.

For example, for obtaining security / bond for keeping peace or good behaviour under Sections 107, 108, 109 and 110 of the Cr.P.C., the power has been given to the Executive Magistrates. This is basically to prevent future offences. Likewise, power for dispersal of unlawful assemblies under Sections 129, 130 and 131 of the Criminal Procedure is also with the Executive Magistrates. Similarly, the power to deal with public nuisances, apprehended danger to public tranquillity, etc., under Sections such as 133, 143, 144 of the Cr.P.C. is also given to the Executive Magistrate.

However, power to grant custody (police custody or judicial custody) under Section 167, power to grant bail under Sections 436, 437, power to conduct trial for criminal offences under various provisions of the Cr.P.C., are given to the Judicial Magistrates.

Executive Magistrates are generally revenue department officers (such as Tehsildar, Deputy Collector / SDM, Collector / DM) and in some metropolitan cities (where Commissioner of Police system is introduced) even police officers may be appointed as Executive Magistrates.

On the other hand, Judicial Magistrates are regular judicial officers / judges who sit in courts and are controlled by the High Court on the administrative side.

February 28, 2018 at 5:33 pm in reply to: Pension after 10 Years of service in Indian Air Force #4068

Dr. Ashok Dhamija

Advocate

Please note that the pension rules applicable to the Central Government servants (civilians) are different and they are governed by the Central Civil Services (Pension) Rules, 1972. But, these rules are not applicable to the defence personnel, who are governed by different rules. [See, para 1.1 of the FAQs for Pension Policy for Central Civil Services.]. It is true that Rule 49 of the Central Civil Services (Pension) Rules, 1972, states that pension may be payable after 10 years of service, however, these rules are not applicable to personnel of the Indian Air Force, as pointed out above.

Personnel of the Indian Air Force are governed by different pension rules. Please see the Pensioner’s Handbook For Airmen and NCs (E). As per this Handbook, for Service Pension, the minimum qualifying service is 15 years for Airmen and 20 years for NCs(E).

However, you may please request the concerned department for further confirmation on this issue.

February 28, 2018 at 5:01 pm in reply to: procedure u/s 143 etc of N.I. Act not followed by JMFC. #4067

Dr. Ashok Dhamija

Advocate

The purpose of taking surety while granting bail to an accused person is also to ensure the presence of the accused in court. So, I feel that there is nothing abnormal if the Magistrate is issuing summons to the surety for ensuring the presence of the accused. It may lead to forfeiture of the bond under Section 446 of the Criminal Procedure Code, and the bond executed by the accused and/or bail-bond executed by the surety can be cancelled under Section 446-A of Cr.P.C., leading to arrest of the accused.

If you are not satisfied by an order passed by the Magistrate in his judicial capacity (such as not issuing an order Section 82 of Cr.P.C.), I think it is advisable to challenge such judicial order before the higher courts by way of appeal or revision or under Section 482 of Cr.P.C., whichever provision is applicable. It may not be desirable to report the matter to the Registrar of the High Court, unless there are specific allegations of corruption or some other serious allegations of irregularity of personal nature.

February 28, 2018 at 11:07 am in reply to: Want to withdraw a case. Plz guide me Sir. #4066

Dr. Ashok Dhamija

Advocate

You have mentioned that the FIR has been filed under Section 498-A, 313, 493, 34 IPC. All the three substantive offence in the FIR (i.e., 498-A, 313, 493 IPC) are non-compoundable offences, i.e., these offence cannot be compromised by the two parties under the provisions of Section 320 Criminal Procedure Code.

There are two options for closure of the case in such a situation:

(1) The police can close the case after completion of the investigation, if they find that there is no evidence to support the allegations made in the FIR.

(2) Both the parties can enter into a compromise, and on the basis of such compromise, a petition can be filed under Section 482 Criminal Procedure Code before the High Court for quashing the criminal proceedings. In such situation, if the High Court is convinced, it can quash the criminal proceedings in the case, depending on the nature of allegations.

February 27, 2018 at 8:53 pm in reply to: Pension for unmarried daughter in state uttarakhand #4064

Dr. Ashok Dhamija

Advocate

It is not possible for me to give you accurate information about a particular state rules, since generally these state rules are not available in the up-to-date form on Internet. You’ll have to make enquiries with the concerned department of the State Government, if needed by RTI application.

However, this page from the UP Government (earlier Uttarakhand was part of UP, so the same rule may perhaps apply) indicates that family pension to an unmarried daughter may perhaps be given if a person from category 1 is not available to receive such family pension, and such pension would be available till marriage/re-marriage or till the date of starting earning, or death, whatever comes first.

Likewise, this page from Uttarakhand Government gives information about circulars for Government pensioners. You may examine these circulars, if they are of any help.

Otherwise, the best option is to contact the concerned department of the Uttarakhand Government, or from the office where your father retired.

February 23, 2018 at 4:44 pm in reply to: U/s 482 for quashing of proceeding. #4058

Dr. Ashok Dhamija

Advocate

You may have to obtain a specific order from the high court regarding stay of the proceedings in the lower court, or a stay against the warrant, or at least an order that no coercive action be taken against you during the pendency of the application in the high court.

On a different note, since the warrant issued against you is a bailable warrant, you would be released on bail, in accordance with terms of such warrant, as and when the warrant is executed against you. Of course, you’ll have to appear in lower court on the dates given. Otherwise, as mentioned above, you should obtain stay on the proceedings of the lower court.

February 23, 2018 at 4:39 pm in reply to: Corruption case against SARFEASI act #4057

Dr. Ashok Dhamija

Advocate

Please note that Explanation (d) to Section 7 of the Prevention of Corruption Act, 1988, provides as under:

“(d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.”

Therefore, where a public servant accepts a bribe, even if he was not in a position to do the work for which the bribe was demanded, it may still amount to an offence. Of course, the fact that he was not in a position to do the work would be a relevant fact, and may perhaps make the case a little weaker, but the fact remains that the law itself provides that even in such a situation, the offence may still be made out. So, ultimately, the case will be decided by taking a complete view of the detailed facts of the case.

Now that the case against you is pending in the court after charge sheet has been filed, you’ll have to fight it on merits, on facts of the case. You may engage some good lawyer for handling your case and show him all the relevant papers of the case.

February 21, 2018 at 6:09 pm in reply to: Can NC (non-cognizable) be converted into FIR? #4053

Dr. Ashok Dhamija

Advocate

Police does not have the power to register FIR or conduct investigation in a non-cognizable (NC) offence. If you lodge a complaint about the commission of an NC offence with police, they will record this information in the NC Register and in the General Diary of the police station. But, no FIR will be registered and no investigation will be conduced. On the other hand, the police will advise you to approach the Magistrate court and file the case there, if you so wish.

However, if the Magistrate gives a direction to the police to conduct investigation in such NC case under Section 155(2) of the Criminal Procedure Code, then in view of the provisions of Section 155(3), the police can conduct the investigation in even such NC case in the same manner as they do in a cognizable case, with the only exception that police cannot arrest the accused without warrant from the Magistrate.

Moreover, sometimes after an NC complaint is filed with police, there may be a subsequent development which may turn that offence into a cognizable offence. For example, suppose an initial complaint is lodged as NC complaint under Section 323 of IPC, for a simply hurt. But, subsequently, if there is a medical report about the injury caused, say, opining that there was a fracture, then it amounts to a cognizable offence. In such a scenario, in the changed circumstances, police may now register FIR in such case and investigate it, wherein initially an NC offence was only registered.

February 21, 2018 at 5:46 pm in reply to: Getting Final closure or report from District court for life insurance claim #4052

Dr. Ashok Dhamija

Advocate

Try to get it from police, which filed the closure report. Otherwise, you’ll have to ask some local advocate only and/or to make enquiries from the court.

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