[Dr. Ashok Dhamija]

Firstly, it is not clear whether there was a minimum lock-in period (say, one year or six months) mentioned in the rent agreement during which the agreement could not be terminated even by one-month notice. If so, then the action of the landlord would be in violation of the same and you cannot be forced to vacate the premises during the minimum lock-in period.

Secondly, it is not clear whether it was mentioned in the rent agreement that you would be spending as much as Rs. 8 lakh (or any other similar amount) for furniture and fixtures, including customized furniture for the said flat. Whether there was any clause in the agreement to the effect that if the landlord asks you to vacate the premises in an unreasonable manner within a short time then he had to compensate for your loss? In fact, if it was intended that you would be spending such huge amount, then it was advisable that you should have insisted for a minimum lock-in period which would have enabled you to recover your investment at least to a reasonable extent.

If there is no minimum lock-in period and if the landlord has given you the notice of one month as stipulated in the agreement, then he may be legally right. You may have to contend that due to this unreasonable behaviour, you are suffering losses, more so if the furniture was purchased with the specific permission or knowledge of the landlord. You may consult some local lawyer by showing him full details and explore possibility for challenging the landlord’s action, and claim specific performance or damages. However, it all depends on the terms of the rent agreement which I have not seen.

     

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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, note that this act may amount to the offence of criminal trespass defined in Section 441 of IPC and punishable under Section 447 IPC. So, you can initiate action for this offence against trespassers. You may also take steps for their eviction.

Since it appears to be a vacant residential plot, you may put a fencing wall around it so that outsiders are not able to trespass the land without your permission.

If the registration and mutation are in your name in the relevant records of the authorities concerned, it may not be possible for the encroachers to change the records in their names without your permission. You may inform the authorities concerned about any possible fraud / forgery in this regard, requesting them not to transfer the same without your permission. Also keep a regular watch by periodically checking the plot physically either yourself or through your representatives.

     

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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 41-A of the Criminal Procedure Code is reproduced below:

“41-A. Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

It is clear from the above section that where the person, to whom a notice of appearance has been issued under Section 41-A of the Cr.P.C., complies with and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice. However, for reasons to be recorded, if the police officer is of the opinion that he ought to be arrested, such person may still be arrested. Generally speaking, such person would not be arrested if he continues to remain present before the investigating officer as required under the notice. It is only in exceptional circumstances that such person may still be arrested if the police officer records the reasons in writing for his opinion for the necessity of arresting him and the reasons for such arrest would be (as mentioned in Section 41 of the Cr.P.C.):

• to prevent such person from committing any further offence; or
• for proper investigation of the offence; or
• to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
• to prevent such person from making 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 the police officer; or
• as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

However, please note that as provided in sub-section (4) of Section 41-A, if such person [to whom a notice of appearance has been issued under Section 41-A of the Cr.P.C.], at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may arrest him for the offence mentioned in the notice, subject to any orders passed by a competent Court in this behalf.

     

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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 125(3) of the Criminal Procedure Code is reproduced below:

“(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

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.

Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”

It should be clear from the above provision that firstly an application is required to be made to the Magistrate for levying the monthly maintenance allowance which has not been paid. From your question, it appears that no such application has been made so far by your wife.

Secondly, on such application being made, the Magistrate may issue a warrant for levying the amount due, if the person has failed without sufficient cause to comply with the maintenance order. So, when such an application is made, you may try to show sufficient cause explaining the difficulties that you are facing and also the fact that you have already made half payment of the arrears and that you are willing to make the remaining half payment in instalments. Or, still better, you may deposit the remaining half amount of arrears on such application being made. In such a situation, if the Magistrate is satisfied with the sufficient cause being shown by you, he may not pass any order with regard to your arrest and sentence.

So, generally speaking, if you show your good intention to make payment of the maintenance allowance, including the arrears, chances of arrest and jail would be negligible. The object of the above provision is to ensure that the maintenance is paid timely as per the order passed by the Magistrate. By sending you to the jail, the payment of maintenance by you would become even more difficult (since you would not be earning for the period while you are in custody), so, generally, arrest and jail are not the preferred options for the 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]

Once you have enrolled as an advocate with a state bar council, you are allowed to practice law; but, simultaneously, you are not allowed to indulge in any other business or profession during your law practice. Thereafter, if you want to join any legal job with a company (after getting enrolled as advocate), you can do so by formally suspending your practice. For this purpose, you may have to intimate the state bar council in the prescribed format of your intention to suspend your law practice, pay some nominal prescribed fee. Once you do this, you are allowed to suspend your law practice and join a job in some company or do business, etc., whatever you wish. Subsequently, in future, if you change your mind again and want to start the law practice again, you may revoke the suspension of your law practice in future and start the law practice again by quitting such job or business, and applying in the prescribed format to the state bar council for resumption of your practice.

Remember that if you want to join any law firm as their associate or junior (and not some other company or some other job or business), you may not even have to formally suspend your practice. In this situation, they may show you as a retainer and you can continue to be enrolled as an advocate while being with such law firm.

     

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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]

Before the cognizance is taken, you can ask for quashing of the FIR by filing a petition before the high court. But, generally, it is quite difficult to get the FIR quashed. You may have to show that even if the whole FIR is read at its face value, no offence is made out. Alternatively, you may approach the senior officers of the investigating agency with regard to whatever illegalities you claim have been committed during investigation. Thirdly, you may approach the sanctioning authority requesting him to refuse sanction for prosecution, pointing out whatever defects have been noticed by you.

After charge sheet is filed and cognizance is taken, you may apply for discharge.

If you succeed in your petition before high court, as mentioned above, the FIR itself may be quashed. Alternatively, if the sanctioning authority refuses to grant sanction for prosecution, the cognizance cannot be taken.

     

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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 have not given details of the Supreme Court judgment referred to by you. Perhaps, you may be referring to the case of Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153 : AIR 2016 SC 3228. In that case, the issue related to a “large number of identified posts in Groups A and B are filled only through promotion” in Prasar Bharati. The Supreme Court held as under:

“A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.” [Emphasis supplied.]

Further, the Supreme Court directed that the Government to extend three per cent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts.

It can be seen from the above that the emphasis in the SC judgment is on the posts that are identified for reservation for PWD. It any posts are identified then it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post (i.e., whether by direct appointment or by promotion).

So, you have to ascertain whether the higher post is identified for reservation for PWD and whether there is appointment for that post only by promotion (even for general categories). If so, then you may be entitled as per the above SC judgment. Otherwise, it may depend on detailed facts of the case, and if needed, you may have to challenge it in courts. It is not possible for me to go into detailed facts of a case on this forum (as mentioned in the guidelines for asking questions). So, if needed, please consult some local lawyer on facts 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]

As I have previously explained in a reply to a question (Can a case be filed directly in the Supreme Court?), the Supreme Court very rarely entertains a direction petition under Article 32 of the Constitution. Nowadays, the Supreme Court generally insists that the person concerned should first approach the high court, even if his fundamental right has been violated. So, nowadays, it is in very rare cases (such as in some PILs, for example, in issues of great public importance) that the Supreme Court will directly entertain a writ petition under Article 32.

Therefore, it is advisable to approach the high court for what you have mentioned.

But, in your question, you have mentioned that this matter is already pending in various high courts. So, this perhaps can be a reason to directly approach the Supreme Court, not under Article 32 of the Constitution, but under Article 139-A of the Constitution, which is reproduced as under:

“139-A. Transfer of certain cases.— (1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney-General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself:

Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.”

So, you may perhaps take the ground that since various high courts are hearing the same matter, there is a likelihood of them giving differing verdicts, therefore, it may be expedient in the interests of justice that such substantial question of law may be decided authoritatively by the Supreme Court by withdrawing / transferring all these high court cases to the Supreme Court itself. There is no guarantee that the Supreme Court will agree to your petition under Article 139-A of the Constitution in this regard, but this is an option available to you to try.

     

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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]

Default in repayment of a loan or interest thereof is not a criminal offence. It is a civil matter for which the bank can file a civil suit for recovery, or in appropriate cases, proceed under the provisions of the SARFAESI Act (Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002) to recover its dues.

There may be a few cases where the loan itself was sanctioned in violation of various rules of the bank as a conspiracy to help the borrower. This may be by way of giving forged papers for giving security for the loan, or giving loan in excess of limits without verifying the credentials of the borrower, or by other irregular ways. In such cases, the concerned bank officers may also be involved in the illegal sanctioning of the loan to the borrower. Sometimes, in such cases, criminal cases are registered for illegal sanctioning of the loan in the first instance itself.

However, if the loan was properly sanctioned as per the rules of the bank, then a subsequent default in the repayment of the loan or interest thereof would only be a civil matter and not a criminal 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]

Section 315 of the Criminal Procedure lays down that:

“315. Accused person to be competent witness.—(1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:

Provided that—

(a) he shall not be called as a witness except on his own request in writing;

(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.”

Thus, this provision makes it quite clear that while an accused is a competent witness and can give evidence in the court, he shall not be called as a witness except on his own request in writing.

Thus, an accused can become a witness during trial only if he wants. The prosecution, or you as the complainant in your private complaint case, cannot force the accused to become a witness and give his evidence.

However, if the accused voluntarily decides to become a witness in the trial and give evidence, then you can definitely cross-examine him.

But, if the accused does not want to become a formal witness in the trial and does not enter the witness box, then, of course, there is no question of his cross-examination by you as complainant.

     

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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 court has the power under Section 311 of the Criminal Procedure Code to recall a witness for his examination at any stage of the trial:

“311. Power to summon material witness, or examine person present.— Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

This section clearly shows that the court has a vast power to recall and re-examine a witness during the course of a trial under the Criminal Procedure Code. Of course, it goes without saying that “witness” also includes the “complainant”.

However, as I have pointed out in Power of court to recall and re-examine a witness in trial under Section 311 Cr.P.C., the power of the court to recall and re-examine a witness during a trial is quite wide, but this power is not to be exercised for filling up the lacunae in the prosecution case. Such witness should be recalled, if it is necessary, for a just decision of the case or to determine the truth.

If you feel that the complainant is being recalled to fill up the lacunae in the prosecution case, you may object to the same and if it is important for your case, you may challenge the decision of the trial court for recall of the complainant in the higher courts.

     

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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]

Usually, auction is required to be conducted by a bank of only an asset or property of which possession has been taken by the bank under the SARFAESI Act. In fact, Section 14 of the said Act specifically provides for the secured creditor (i.e., the bank) to take possession of the property with the help of the Chief Metropolitan Magistrate or the District Magistrate who can help in taking possession even by force. Even Section 13 also refers to taking possession of the secured assets of the borrower. Therefore, the bank is supposed to auction a property only after taking possession thereof.

In any case, the auction is conducted on as is where is basis.

It is not advisable to bid for a property during such auction if the bank is not giving you the vacant and peaceful possession of the property. If you buy such property when the borrower and his tenant are still occupying the property, then you will have to subsequently get the property vacated which is not an easy task. You may have to file an eviction suit in court that may take years. Therefore, it is advisable to bid for a property at such action only if the bank is able to ensure vacant and peaceful possession of the property.

     

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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]

It is like an employment bond between you and your employer. It is basically a contract between the two of you.

Usually, when a person immediately after completion of his education joins an establishment, he is required to be trained for meeting the requirements of the job. It may be in the form of a formal training and/or on-the-job training. The establishment may have to spend considerable money and time training such new employee. It is generally in consideration of such training, including practical on-the-job training, that the employee may be required to work for the establishment for a specific minimum period of time. In case of violation of such stipulation, the employee may be liable to pay a specified amount of money to the employer. This is the essence of the employment bond.

An employment bond is justified by the employer on the ground that he has to spend considerable amount of money and time for training the employee, who otherwise might not have been having practical experience to perform the job when he joined. Therefore, the employer has a legitimate expectation that he should get some benefit of the training imparted to the employee by ensuring that he is in the job at least for a minimum period of time. Secondly, the employer may also feel that if the employee leaves the job shortly after his training, he may join his rivals / competitors to give them the benefit of his training and/or reveal his professional / trade secrets. Thus, while the employer who imparted the training loses such trained employee, another competitor gets advantage of such trained employee. This is, in brief, the justification for the employment bond.

Being a contract, an employment bond may be valid under the Contract Act if it is signed by both the parties with their free will and consent, and if there is no force, coercion, misrepresentation, undue influence, mistake, etc.

It is true that Section 27 of the Contract Act lays down that every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. However, the restraints or the negative covenants in such agreement may be valid if they are reasonable.

In the event of a breach of the employment bond, the employer might incur a loss due to which he may be entitled for compensation. But, the compensation awarded should be reasonable to compensate such loss incurred by him.

This is the general legal position with regard to the employment bond.

In your scenario, you have already completed one year out of the two-year requirement. It may be advisable that you should negotiate with your employer in a transparent manner and try to find an amicable settlement. It is not uncommon to see employers agreeing to allow employees leaving the job prior to the stipulated periods if some convincing reasons are given.

     

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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 have not mentioned in your question as to what is the nature of business / profession / activities of your organisation and what is the nature of your job.

Anyway, in general, in the absence of full details, I can only say that you may have to approach the labour officer in your area with your complaint.

     

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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]

It is difficult to suggest anything to you since I do not find any legal question in what you have asked. What you are asking is how to avoid future fake cases. Generally speaking, it is not easy to stop someone from filing a fake case or true case, whatever, in future. You may have to fight such case on merits. Take common-sense precautions of avoiding contact with them. Or, better still, try to settle the issue with them once and for all. But, it is difficult to find a sure-shot formula that can avoid any future case against oneself.

     

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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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