[Dr. Ashok Dhamija]

It is possible for you to seek maintenance under Section 125 of the Criminal Procedure Code from your husband. This maintenance can be claimed under two heads: (i) for you as wife, who is unable to maintain herself, and (ii) for your minor son who is not able to maintain himself. There are good chances that the court may award maintenance to you and your son. Divorce is not needed for seeking maintenance under Section 125 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]

Your question uses confusing language. On the one hand, you have mentioned that you are getting “pension” from EPFO, and on the other, you are referring to Section 57(ii-a) of the Income Tax Act, which relates to “family pension”.

Please note that there is a difference of tax treatment in the Income Tax Act for “pension” and “family pension”, as I have explained in detail in my answer at Is Income Tax payable on Family Pension received by a widow.

Now, if what you are getting from EPFO is “pension”, then please appreciate that “pension” is treated under the “salary” head, as I have explained in my aforesaid answer. So, in that situation, your salary from present work and the “pension” from EPFO (which is also considered under the Salary head) will be added, and the standard deduction will be applied to this total salary. So, in this situation, benefit of deduction under Section 57(ii-a) of the IT Act may not be available.

However, if what you are getting is “family pension”, then it will be considered as “income from other sources”, which is a different head of income. So, in my opinion, in that situation, you should be eligible to get benefit of deduction of both provisions, i.e., standard deduction from your current salary as well as deduction under Section 57(ii-a) for the family pension.

     

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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 are a very large number of Supreme Court judgments on Section 197 of the Criminal Procedure Code with regard to the requirement of the sanction for prosecution. In fact, in my book [Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis, New Delhi (ISBN: 978-81-8038-592-6)], I have spent more than 100 pages on this section discussing various judgments.

It is not possible to quote Supreme Court judgments in a general manner, in the absence of a specific issue.

However, with regard to your query, let me point out generally that sanction for prosecution under Section 197 of Cr.P.C. is required only in respect of those public servants who are removable by the Government (Central or State). If a public servant can be removed from his post by an authority lower than the Government itself, then sanction for prosecution under Section 197 is not needed (except in some situations, as mentioned in the section itself).

Secondly, even for such higher level of public servants, sanction for prosecution is needed only for an offence which is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. For other types of offences, such sanction would not be required.

In most of the states, a Police Inspector is generally appointed by an authority lower than the Government. For example, in Delhi Police, an Inspector is appointed by Additional Commissioner of Police, as per Section 12 of the Delhi Police Act. So, if there is a similar provision in your state, then sanction for prosecution under the main provision [sub-section (1)] of Section 197 Cr.P.C. is not needed for a Police Inspector.

However, there is another provision under sub-section (3) of Section 197, under which the State Government has the power to issue a Notification requiring sanction for prosecution under Section 197 even for lower level officers / members of a police force. For example, if I remember correctly, Maharashtra Government had issued such a notification that required such sanction for all members of Maharashtra Police. So, if a similar notification has been issued by your State Government, then sanction for prosecution of a Police Inspector may be needed under this section for an offence which is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.

     

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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]

From the facts mentioned by you, it appears that you would be filing the complaint at least under Section 498-A of IPC (there may be other sections too). The limitation period for taking cognizance of such offence is 3 years.

Therefore, legally speaking, it should be possible for you to file a complaint now, at this stage, even 4 months after the incident.

However, please note that a complaint filed after long delay is generally viewed with suspicion about its genuineness. Nonetheless, as I mentioned above, you can file the complaint even now.

     

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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 your question will generally depend on the nature and facts of the case.

Generally speaking, if a case has been decided by the Supreme Court on the basis of the individual facts of the case concerned (and not on the basis of deciding a legal question), then the judgment in that case may not generally be applicable to the other case where the facts are different.

However, if a legal question has been decided by the Supreme Court and if the same legal question is applicable to your case too, then the judgment of the Supreme Court would be applicable in your case. So, in that situation, you may not have to file a separate SLP in the Supreme Court. But, here too, sometimes, the concerned authorities may not implement the SC judgment (delivered in another case) in your case and may expect you to obtain a separate judgment in your case. This may happen even though it may be a similar matter. In such situation, you may have to file a separate SLP and try to get a similar judgment, by pleading that your case is covered by that previous judgment of the SC in your friend’s case mentioned by you.

It is also relevant to mention that if both of you had won your cases in the high court with similar legal question and similar facts, and the opposite side challenges that in the Supreme Court in your friend’s case, and the SLP in the SC is decided in favour of your friend (i.e., against the common opposite side), in that situation, the Supreme Court judgment should be made applicable to your case too.

But, from your question, it appears that it is your friend who filed the SLP, so it appears that the high court decision was against you. If this is the real situation, then the chances of the SC judgment in your friend’s case being made applicable to your case would be less, and you may have to file a separate SLP. I am saying this in a general manner and it depends on the facts of the case.

So, what I would suggest to you would be to ask the opposite party to apply the Supreme Court judgment in your friend’s SLP to your case too. If the opposite party does not agree to do so, then you may file your own SLP to get a similar order.

     

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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 are at least two laws which give protection to such elderly parents.

Firstly, under Section 125 of the Criminal Procedure Code, a father or mother unable to maintain himself or herself, can seek monthly allowance of maintenance from his child who has sufficient means and refuses or neglects to maintain such parent. Such maintenance order can be passed by the Magistrate.

Secondly, there is an Act called the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The provisions of this Act also enable a parent or a grand parent ("who is unable to maintain himself from his own earning or out of the property owned by him") to seek maintenance from one or more of his children. In fact, in certain situations, such maintenance can also be sought by such senior citizen from some other relative (having sufficient means, provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen). Some protection is available to senior citizens too, under this Act.

     

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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 you are furnishing the correct information about your education and employment, then it may not be termed as a fraud. You have said that you had informed the college authorities for skipping the classes and despite this, they permitted you to appear in the examination. So, I think it should be alright if the college has officially permitted you to appear in examination without attending classes and if the rules permit it. There are many persons who study along with their employment.

The only grey area would be if your attendance was falsely shown in the college records even though you did not attend the classes, in order to enable you to appear in the examination. That can be objectionable.

However, if no such false attendance was shown and you had been permitted to appear in the examination despite not attending the classes, then it may not be a fraud. But, even in this situation, if a minimum attendance percentage was necessary (say 75%) and despite your having less attendance percentage, you were permitted by college to appear in examination, then it may be an issue for the college authorities to reply. You can also check whether the university / college has a rule to disqualify a person in such situation, when he was allowed to appear in examination without fulfilling the attendance conditions. Yet, it cannot be termed as a fraud if no falsification of records has taken place.

     

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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 provision in the Supreme Court Rules, which lays down as under:

“… where the matter filed on scrutiny is found to be defective and a diary number has been generated, one copy of the Petition and Court Fee Stamp tendered shall be retained and the defects shall be communicated to the petitioner. If the defects are not removed till 90 days from the date of communication of the defects, the matter shall be listed with Office Report on default before the Judge in Chambers for appropriate orders.”

Further, under the Supreme Court Rules, the Chamber Judge has the power to allow an application for condonation of delay in re-filing where the delay exceeds 60 days from the date of notifying the defects.

Thus, if the defects in the filing of the SLP have not been removed and if the case has not been refiled till 90 days after removing defects, the case is listed before the Chamber Judge, who then decides about the fate of the case. The Chamber Judge has the power to condone delay in refiling of case after removing defects, in appropriate cases.

So, legally speaking, if the Government (which is petitioner in your case) is interested, it can still file an application for condonation of delay in removing the defects and refiling the case. If it can provide some good justifiable reasons, the court can still condone such delay.

You can file a caveat in the Supreme Court, if you are interested, so that you get a chance to be heard by the Supreme Court if any adverse order is to be passed at the interim stage.

     

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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 306 IPC, relating to the offence of abetment of suicide, is as under:

“306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

In the case of Gurcharan Singh v. State of Punjab, (2017) 1 SCC 433, the Supreme Court held that the basic ingredients of Section 306 IPC are suicidal death and abetment thereof. To constitute abetment, intention and involvement of accused to aid or instigate commission of suicide is imperative. Any severance or absence of any of these constituents would militate against said indictment. Remoteness of culpable acts or omissions rooted in intention of accused to actualise the suicide would fall short of offence of abetment essential to attract Section 306 IPC. Contiguity, continuity, culpability and complicity of indictable acts or omission are concomitant indices of abetment. Section 306 IPC thus criminalises sustained incitement for suicide.

In the case of Common Cause v. Union of India, (2018) 5 SCC 1, the Supreme Court held that to constitute abetment, there must be course of conduct or action of intentionally aiding or facilitating another person to end life. 

In another recent case, in M. Arjunan v. State, (2019) 3 SCC 315, the Supreme Court held that insulting deceased by using abusive language will not, by itself, constitute abetment of suicide. There should be evidence capable of suggesting that accused intended by such act(s) to instigate deceased to commit suicide. Unless ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 IPC.

In view of these and other judgments of the Supreme Court, in my opinion mere filing of a complaint against the victim may not be sufficient to constitute an offence of abetment to suicide under Section 306 IPC; more so, if the person filing the complaint was doing so in lawful exercise of his rights. It should be shown that the accused person had the intention of driving the victim to commit suicide by his abetment. So, ultimately, it will depend on the detailed facts and circumstances of the case, to see the intention of the accused and his complicity in 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 the accused is not attending court despite bailable warrant having been served upon him, the first thing that can be done is to get a non-bailable warrant (NBW) issued against him. In that scenario, the accused can be arrested and produced before the court.

Secondly, efforts can be made to get his bail bond cancelled and also that of the surety, if any.

Thirdly, if needed, the court can be moved to declare him a proclaimed offender which can, in due course, lead to attachment of his property.

Being the complainant, you can make efforts to find out the new address of the accused, if he is not traceable.

     

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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 of all, immediately change your password for the social account that is being misused by your friend. Use a strong password containing at least one uppercase or capital letter (such as A, B, C), at least one lowercase letter (such as a, b, c,), at least one number digit (such as 0, 1, 2, 3) and at least one special character (such as #, $, &, @).

This will ensure that he is not able to use your account henceforth.

Secondly, after changing password, login to your account and delete all the objectionable posts that your friend has posted in your account. If needed, also post an update mentioning that your social account had been hacked / abused by some other person and that now you have got control of your account.

Thirdly, if necessary, give a complaint to the police or other cyber law authorities in respect of personation and unauthorized use of your social account by your friend for taking criminal action against him.

And, next time, be cautious. Don’t use any other person’s device to login to your account. If you have to do it in an exceptional situation, ensure that you should log off from that device after your genuine work is done. Also delete cookies for that login from that device.

     

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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 victim / complainant of the offence, you can oppose grant of anticipatory bail to the accused person by the Sessions Court when the issue of granting him regular anticipatory bail comes up.

And, if the Sessions Court still decides to grant him regular anticipatory bail, you can even approach the high court against such order, if you so wish.

Grounds on which you can oppose the grant of anticipatory bail will generally depend on the facts of the case concerned. However, some of the grounds on which you can oppose the grant of anticipatory bail may perhaps be as under:

(i) the nature and gravity of the offence, if the offence is serious;

(ii) the antecedents of the accused;

(iii) the possibility of the accused to flee from justice;

(iv) the possibility that the accused is not likely to cooperate for interrogation by a police officer as and when required;

(v) the possibility that the accused is likely to, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(vi) the possibility that the accused may destroy or conceal the relevant documents;

(vii) the possibility that the accused may leave India without the previous permission of the court.

Of course, all of these grounds may not be relevant to your case. So, use whatever grounds are relevant. And, also other grounds which may be peculiar to your case, depending on the facts and circumstances of your 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 the wife, who has filed the case under Section 498-A IPC against her husband, is herself willing to stand surety for the bail of the accused husband, then why not settle the case?

Offence under Section 498-A IPC is a non-compoundable offence. However, there are ways of compromising / settling / compounding certain non-compoundable cases too. I have explained it in one of my YouTube videos:

In your case, if the case is still under investigation, then the police may perhaps file a closure report on the request of the complainant wife on the ground of having settled the case. But, if the case is charge-sheeted, then both the parties can approach the high court for quashing of the case on the ground of mutual consent having compromised the case and now living together peacefully.

Once there is a non-bailable warrant issued for execution by police, the police can arrest the accused and produce him before the court which issued the NBW. Thereafter, it is up to the court to send him to custody or grant him bail for appearance on next date. Yes, the police can execute this NBW immediately.

An application for recall / cancellation of the NBW can be filed before the court which issued it. The accused may be asked to remain present for this application. If the court is convinced, it can cancel the warrant. The application is of miscellaneous nature and the format can be seen from your local court. Generally, it is a simple type of format.     

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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]

CBI will not take up such cases of frauds, where a private person has defrauded another private person. This comes within the jurisdiction of the local police.

So, you should approach the local police station within the area of which, this fraud has taken place and file your FIR. However, many a time, it is seen that even the local police may not register FIR as they avoid taking up more cases, especially of financial nature. In that case, you may have to file a private criminal complaint case in the Magistrate court in your area. Consult some local lawyer for this purpose, if needed.

Secondly, in addition to the criminal case, it may also be possible to file a civil suit against the person concerned for fraudulent deals like this.

In the absence of having seen the full details of your case, it is not possible for me to advise you on this aspect. You may contact some local lawyer and show him all your documents / details for a proper advice.

     

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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]

Even if the trial of the cheque bounce under Section 138 of the Negotiable Instruments Act is converted into a warrant-case, interim compensation of 20% may still be directed by the Magistrate to be paid to the complainant by the accused; however, the stage of payment of such interim compensation may be slightly different.

Under the provisions of Section 143-A of the Act, in a summary trial or a summons case, the order for interim compensation in cheque bounce can be made when the accused pleads not guilty to the accusation made in the complaint. But, in any other case (i.e., in warrant-case, if it is converted into it), the interim compensation may be ordered upon framing of charge.

So, only the stage of ordering the interim compensation may change slightly, but the order for interim compensation can still be made even if a cheque bounce case is tried as a warrant-case.

Section 143-A of the N.I. Act is reproduced as under:

“143-A. Power to direct interim compensation.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant—

(a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and

(b) in any other case, upon framing of charge.

(2) The interim compensation under sub-section (1) shall not exceed twenty per cent of the amount of the cheque.

(3) The interim compensation shall be paid within sixty days from the date of the order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque.

(4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.

(5) The interim compensation payable under this section may be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) The amount of fine imposed under Section 138 or the amount of compensation awarded under Section 357 of the Code of Criminal Procedure, 1973 (2 of 1974), shall be reduced by the amount paid or recovered as interim compensation under this section.”

     

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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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