Dr. Ashok Dhamija
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Dr. Ashok DhamijaAdvocateYou have asked questions on the same issue earlier, and this question is repetitive.
If a rape FIR is filed, it would be non-bailable offence. Rape is supposed to be a serious offence.
Success rate of petition filed in high court under Section 482 Cr.P.C. for quashing of FIR is very less, generally speaking. To succeed in such petition, you’ll have to show that no offence is made out even if the whole FIR is read on its face value by presuming the contents to be prima facie true; and this is not easy to show, generally speaking.
Remaining part of your question is repetitive, hence not replied. Please do not repeat the same question again and again.
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.
February 7, 2018 at 11:32 am in reply to: criminal law – complaint given in police station, then in court #3966Dr. Ashok DhamijaAdvocatePolice officers are notorious for not registering FIR even where a cognizable offence is made out. Many of the complaints under provisions like Section 406 IPC are not registered as FIR. The very fact that police has not bothered to take any action on the complaint given by you, shows that no FIR has been registered by them in your case. So, you can continue to proceed with your case in the JMFC court. There is nothing unusual in this. Many other citizens are also forced to pursue this course of action.
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, there is no all-India Vexatious Litigation (Prevention) Act. I understand that a Private member’s Bill was tabled in Rajya Sabha in 2016 (see link), but it has not been passed so far. Such an Act exists in 2-3 states, but not in all states. I do not know which state you are from and whether there is any such Act in existence in your state.
I have seen the provisions of such Acts in two states (Maharashtra and Rajasthan) and it appears that your case may not be covered thereunder or under similar provisions, as you yourself appear to be the plaintiff.
In your counter reply, you may take the stand that on a previous occasion also, due to non-appearance of the defendant, the matter was allowed in your favour ex parte and subsequently this ex parte order was set aside, and that this is the second time that the matter was allowed in your favour for the non-appearance of the defendant again, and that defendant does not deserve any favourable order this time since he is interested in delaying the matter, etc. Generally speaking, it would be rare to see an ex parte order being passed twice and then getting set aside, though of course it depends on facts of each case. But, such careless party to a case would lose sympathy of the case if it happens again and again.
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 DhamijaAdvocateIf the withdrawal of the cheque bounce case is made under Section 257 of the Criminal Procedure Code, then generally speaking, it should be the end of the matter. Section 257 is reproduced as under:
“257. Withdrawal of complaint.— If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.”
This section makes it quite clear that if the Magistrate agrees to permit the complainant to withdraw the complaint under this section, then it is mandatory for him to acquit the accused against whom the complaint is withdrawn.
Therefore, if the complainant withdraws the case against you under Section 257 Cr.P.C., then it should lead to your acquittal in the case. It is pertinent to mention that Section 300 of the Cr.P.C. lays down that a person acquitted of an offence shall not be tried again for the same offence. So, it should act as a safeguard for you.
Secondly, even otherwise, in a cheque bounce, the complaint has to be filed within the limited period of one month only, after the conditions mentioned in Section 138 N.I. Act are satisfied (of course, there can be condonation of delay in genuine cases). A second complaint would be time barred, generally speaking.
In any case, if you agree to him, let him withdraw the case unconditionally and WITHOUT liberty to file it again. Let him also explain the correct reason to the court as to why the case is being withdrawn.
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.
February 2, 2018 at 7:56 pm in reply to: Writ petition under article 226 to the high court against Lok Adalat order #3952Dr. Ashok DhamijaAdvocatePlease see my recent reply to a similar question which is available at: Can Lok Adalat’s decision be challenged in HC through writ petition?
Also see: Lok Adalat Award after compromise suit & time for Executed as Decree in Civil ct.
On the basis of what you have mentioned in your question, I think it should be possible to challenge it in high court in a writ petition under Article 226 of the Constitution. Result will of course depend on various factors.
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 DhamijaAdvocateVisit the website of your city police or district police or state police, as the case may be. You can easily get contact details of the police station covering your area, as also the contact details of the senior officers of your area (such as DCP or ACP or the SP). You may contact them on phone. Or, better still, go and meet the concerned police officers at the police station or their offices. Give them the information that you have while requesting them not to reveal your identity and other personal details. Generally, the police officers would not reveal the identity of the informant / source person who provides them information, more so when a specific request is made in this regard.
Alternatively, you may also provide information to the Police Control Room (such as at the phone number 100 if it is operational in your area, or whatever other phone number they have) by phone. The advantage of giving the information to police control room is that they record each and every information provided to them and also the action taken by them (such as directing the concerned police station or police mobile van to the spot). This would ensure that at least some action is taken on the basis of the information provided by you to the police.
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.
January 30, 2018 at 6:21 pm in reply to: Can Non-bailable Warrant (NBW) be issued to a witness in trial? #3945Dr. Ashok DhamijaAdvocateThis issue is covered in Section 87 of the Criminal Procedure Code:
“87. Issue of warrant in lieu of, or in addition to, summons.— A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—
(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.”
Thus, this section makes it quite clear that the trial court has the power to issue warrant for the arrest of a person (who may be a witness also) to ensure his appearance in court. Such warrant can be a bailable warrant or a non-bailable warrant (NBW).
In practice, generally, the trial courts initially issue summons for ensuring the appearance of a witness in a trial in the court so that his evidence could be recorded. If such witness fails to appear, without any justifiable reasons, even after receiving summons, or otherwise if the court feels that the witness is not likely to appear (as he has absconded) and is thus not likely to obey the summons, it may issue a warrant. Generally, even in these situations, initially a bailable warrant is issued, and if that also does not succeed to ensure presence of the witness, then a non-bailable warrant (NBW) may be issued. But, the court has the legal power to issue an NBW directly if the circumstances so require.
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.
January 30, 2018 at 5:34 pm in reply to: Will violation of interim order of a high court amount to contempt of court? #3944Dr. Ashok DhamijaAdvocateIn Section 2(a) of the Contempt of Courts Act, 1971, “contempt of court” is defined to mean civil contempt or criminal contempt.
And, in Section 2(b), “civil contempt” is defined to mean wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
Therefore, it should be clear that, firstly, contempt can be committed in respect of any judgment, decree, direction, order, writ or other process of a court or even wilful breach of an undertaking given to a court. This shows that contempt can be made out even in respect of an interim order of a court.
Secondly, however, it should be noted that mere violation of an order may not amount to contempt of court. It should be wilful disobedience or wilful breach. Thus, the violation of the order (including an interim order) must be wilful or intentional or deliberate.
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.
January 30, 2018 at 5:08 pm in reply to: Action against corrupt Forest Range Officer in Maharashtra #3943Dr. Ashok DhamijaAdvocateYou can file a complaint with the Anti-Corruption Bureau (ACB) of Maharashtra in respect of the demand of bribe by the Forest Range Officer. ACB has its branches in all districts of Maharashtra. Contact details of the local ACB offices can be seen on the website of Maharashtra ACB.
The ACB can lay a trap to catch the public servant concerned red-handed while demanding and accepting the bribe from you. Usually, the ACB will help you subsequently in whatever legal work you have with the department concerned for which the bribe was being demanded, and will also ensure, to the extent possible legally, to protect you from harassment by the department concerned.
Before giving a complaint to ACB, if possible, you can record the demand of the bribe in your mobile phone. This may help subsequently to prove the demand of bribe.
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.
January 30, 2018 at 5:01 pm in reply to: How can I file a PIL in Supreme Court and how much is the minimum cost? #3942Dr. Ashok DhamijaAdvocateA PIL can be filed in the Supreme Court in the form of a writ petition under Article 32 of the Constitution. Also note that such petition can be filed only if any issue of enforcement / violation of the fundamental rights is involved.
In the petition that you file, you are required to provide details of:
(a) your full name, complete postal address, e-mail address, phone number, proof regarding personal identification, occupation and annual income, PAN number and National Unique Identity Card number, if any;
(b) the facts constituting the cause of action for filing the PIL;
(c) the nature of injury caused or likely to be caused to the public;
(d) the nature and extent of your personal interest, if any, of the petitioner(s);
(e) details regarding any civil, criminal or revenue litigation, involving the petitioner or any of the petitioners, which has or could have a legal nexus with the issue(s) involved in the Public Interest Litigation; and
(f) whether the concerned Government Authority was moved for relief(s) sought in the petition and if so, with what result.
You, as petitioner, are also required to file an affidavit stating that there is no personal gain, private motive or oblique reason in filing the Public Interest Litigation.
Formats for the petition are available aplenty on the Internet. There are copies of many PILs filed earlier by others, easily available on Internet. Just search with Google.
You can file the petition, duly prepared, in the Supreme Court registry. You’ll be required to submit 1+3 copies (one original + three copies) of the petition.
The court fee for filing PIL (i.e., writ petition under Article 32 of the Constitution) is generally Rs. 500 per petitioner. Plus, the expenses on documentation (printing, photocopying, etc.) would have to be incurred, which are generally in the range of a few thousand rupees.
If you are filing the petition through an advocate on record, then of course you’ll also have to pay the professional fee of the advocate(s) that you engage. The advocate fee will differ from advocate to advocate. But, you can file the petition in person without engaging any advocate; however, in that case, you’ll have to handle all aspects of the PIL on your own, including appearing in the court and arguing your case.
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 I mentioned earlier, it is a matter of trust between the parties entering into MOU. You may incorporate whatever conditions you want. But, I doubt whether the court would pass such a conditional decree. Of course, nobody stops you from making a request but ultimately it is the prerogative of the 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.
January 29, 2018 at 10:01 am in reply to: What is FIR and what is the procedure to file an FIR? #3934Dr. Ashok DhamijaAdvocateFIR means First Information Report. It implies the information given to the police station about the commission of a cognizable offence. Based on such information, police station would register the FIR under Section 154 of the Criminal Procedure Code (Cr.P.C.). Registration of FIR is generally the starting point of investigation by police.
The procedure for registering the FIR is something like this. When a cognizable offence takes place, the person knowing about it can go to the police station and furnish information about such cognizable offence to the police. It is not necessary that the person giving such information should himself be the victim of such offence or any relative of such victim. The informant can also be a stranger; but he must be aware of the commission of such offence. He can give oral information or written information to police. If he gives oral information, then police would reduce it into writing. Every such information given in this manner (i.e., whether given in writing, or reduced into writing if it was given orally) shall be signed by the person who gave such information to police. The substance of such information is entered by the police in a prescribed book, which is generally the FIR book. An extract of the FIR is also recorded in the General Diary (in some states, it is called Station Diary) of the police station.
Once the FIR is registered in this manner, the police would begin the investigation into such cognizable offence that has taken place as per the information given in this manner.
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.
January 29, 2018 at 8:18 am in reply to: Marry without telling tha girl that he is already married and not divorced yet #3932Dr. Ashok DhamijaAdvocateFor my reply, I am presuming that your husband is not governed by the Muslim law. If that be so, then marrying for second time when his first marriage was still valid and his first wife was alive is an offence under Section 494 of the IPC, which is punishable with a maximum of 7 years’ imprisonment. However, this offence is non-cognizable and the police cannot register the FIR. Therefore, you’ll have to file a private complaint before the court under Section 494 IPC against your husband along with relevant evidence.
Secondly, again presuming that your marriage is covered under the Hindu Marriage Act, it would be a void marriage within the meaning of Section 11 of the said Act, and you can file a petition before the court for getting it declared as void by a decree of nullity. There is no need for filing a divorce petition, since a decree of nullity would be the correct option in your case.
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 DhamijaAdvocateIf you are sure about the offence actually having taken place (we cannot go into detailed facts of a case on this forum), and if the police is not registering the FIR, then your remedy is to approach the Magistrate under Section 156(3) of the Criminal Procedure Code seeking direction to police to investigate the case. Alternatively, you can file a private complaint case in the Magistrate court along with relevant evidence.
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 DhamijaAdvocateThere is no legal issue involved here. It is a matter of trust between the two parties. You may have your own worries, but your sibling may also have concern that once the criminal cases are withdrawn against you thereafter you may not part with vacant and peaceful possession of the property and may not agree for a consent decree. So, ultimately, both of you will have to sit together and agree on some common ground. Have a detailed MOU which can perhaps be executed in several steps – one step by each party in turn. Have some independent guarantors / witnesses, if 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.
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