[Dr. Ashok Dhamija]

You may have to apply for setting aside this ex parte order. As far as my knowledge goes, the time limit to challenge such ex parte order is 30 days.

     

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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]

On the basis of the limited information available, presuming that your father did not make a will, the property in your father’s name will devolve as per the provisions of Section 8 of the Hindu Succession Act. As per this, your mother, you and your sister will have one-third share each in the property, i.e., the property will be equally divided in 3 parts.

How to actually physically divide or partition this property is up to all of you.

     

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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 Section 151 (of Cr.P.C.) is only a preventive arrest and not a punitive custody or a custody for commission of a crime.
Secondly, usually, Section 151 arrest is followed by a proceeding for obtaining a bond for keeping peace, etc. (such as under Section 106 of the Cr.P.C.). It is not clear whether any such further proceedings were initiated against you.
Thirdly, you should check whether your arrest was officially shown in police records as an arrest. This is so because many a time it is noticed that police may simply detain a person for 2-3 hours but may not finally show the arrest in their records.
Fourthly, if your formal arrest is shown in the police records, then you should provide correct details in a transparent manner about such arrest when applying for renewal of the passport. If it was only Section 151 Cr.P.C. arrest without any other / subsequent proceedings, normally it should not come in the way of renewal of passport. However, if any other proceedings are pending, then it depends. Read: Can a person get passport during pendency of criminal case?
Normally, such preventive arrest should not come in the way of a Government job, however, it is a decision to be taken by the concerned authority. But you should declare it transparently in the police verification form.
     

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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 appear to be making a reference to my reply at the link Video Conferencing Option during police investigation. But, that reply was with regard to police investigation, referring to the amendment in the provisions of Section 161 of the Criminal Procedure Code, which lays down that:

“Provided that statement made under this sub-section may also be recorded by audio-video electronic means.”

I had thus referred to recording of a statement during investigation by police by audio-video electronic means. This, also, is only an enabling provision. The police should have this facility available with them.

However, what you are referring to is the statement before the consumer court. Nowadays, video-conferencing facility is available in many courts also. Sometimes, the statement of a witness during trial is recorded through video conferencing facility where it is not possible for the witness to remain present in court.

You’ll have to check whether the video-conferencing facility with relevant safeguards (as the guidelines require many safeguards to be in place for using this feature) is available in the consumer court concerned. If yes, you may make an application to that court for recording your statement by this facility. If the court agrees, you can give your statement through video-conferencing facility.

     

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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]

Maximum punishment for an offence under Section 304A of IPC is two years.

For an offence carrying this much punishment, Section 468 of the Cr.P.C. lays down the period of limitation to be three years. The prohibition is on the taking of cognizance by the court when the period of limitation has expired. In a case based on investigation conducted by police, the cognizance is taken by the court on filing of a charge sheet under Section 173 of the Cr.P.C.

You have stated that the police has filed the charge sheet after a period of 3 years of the commission of the said offence. So, this appears to be a violation of the provisions of Section 468 Cr.P.C. laying down limitation period.

However, you have also said that the incident took place 10 years ago, so does it mean that the charge sheet is pending for last about 7 years and does it mean that the court has already taken cognizance because the court would normally not wait for 7 years (after filing charge sheet) for taking cognizance? So, it appears that you have not given the full relevant facts which were necessary for correctly replying to your question.

But, in any case, if the cognizance is taken after 3 years, which is beyond the period of limitation in such a case, then such cognizance would be barred by limitation.

However, please also remember that Section 473 of the Cr.P.C. allows the court to take cognizance of an offence even beyond the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.

Please also note that Section 460 of the Cr.P.C., inter alia, provides that if the Magistrate erroneously takes cognizance of an offence on the basis of a police report (i.e., charge sheet), then the his proceedings shall not be set aside merely on the ground of his not being so empowered.

So, the answer to your question depends on detailed facts of your case and you have not provided the relevant details. If the cognizance has already been taken in your case, then Section 460 Cr.P.C. may perhaps come into play.

In any case, if so advised by your advocate who has seen full facts, you may try to challenge the cognizance taken beyond the period of limitation. You may have to approach the high court for this purpose.

     

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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’ll have to defend the case on merits. You have not given details of the offence registered against you, but it appears to be mainly under Section 354 / 323 of the IPC.

It appears that there may be two allegations against you: (i) of molestation and touching her inappropriately; (2) slapping her.

The plea of self-defence may not be available against the first act, but then you can try to prove that it was not intentional or deliberate. Self-defence plea with regard to the second allegation has to be examined as to whether it was necessary and whether it was proportional, and also whether the whole incident was caused due to your own provocation.

If other commuters in the metro, who have witnessed the said incident, are willing to support you as you have mentioned, you can enlist their support and can get them examined by police.

More than this, it may not be possible for us to help you on facts, since we cannot go into detailed facts of the case on this forum. Please consult some local lawyer by sharing with him all the necessary details.

     

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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]

A complaint about the professional misconduct committed by an advocate can be made to the State Bar Council with which such advocate is enrolled. Under Section 35 of the Advocates Act, 1961, such misconduct is to be referred by the State Bar Council to its disciplinary committee. After conducting enquiry, if the committee finds that the charge is proved against the advocate, it may reprimand him, suspend him from practice for a fixed period, or remove his name from the state roll of advocates. This section is reproduced below:

“35. Punishment of advocates for misconduct.—(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

(1-A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and the Advocate-General of the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely :—

(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

Explanation.—In this section, Section 37 and Section 38, the expressions “Advocate-General” and “Advocate-General of the State” shall, in relation to the Union territory of Delhi, mean the Additional Solicitor-General of India.”

 

     

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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]

Yes. Giving of dowry is also an offence under the same Section 3 of the Dowry Prohibition Act, 1961, which punishes taking of dowry, subject to the conditions mentioned therein:

“3. Penalty for giving or taking dowry.— (1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

(2) Nothing in sub-section (1) shall apply to, or in relation to,—

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;

(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.”

The stand to be taken by you would depend on the detailed facts of your case. Please consult some local lawyer by showing him full details 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 per the rules / guidelines under the Legal Metrology Act, 2009, weights and measures are required to be re-verified after certain specific intervals of time (which appears to be 12 months for weights and measures and for electronic scales) to maintain their accuracy. So, if you have not got such reverification done, it may be a violation of the legal provisions and may entail penalty.

Moreover, tampering with or alteration in any weights and measures is also punishable under the said Act, though it refers to a deliberate alteration and not unintentional malfunctioning.

So, if you have not made any deliberate alteration in the electronic scale, then you may take that defence with evidence. But, if such scale has not been reverified after specified interval, as required under rules, then also it may be liable for penalty even if the malfunction was not intentional.

     

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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]

Depending upon detailed facts of the matter, it may amount to an offence under Section 201 of the Indian Penal Code (IPC), which is reproduced below:

“201. Causing disappearance of evidence of offence, or giving false information to screen offender.—Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false,

[if a capital offence] shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

[if punishable with imprisonment for life] and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

[if punishable with less than ten years’ imprisonment] and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

Illustration

A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine.”

 

     

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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 far as I understand, the solution is checked for the presence of phenolphthalein powder (which is applied to the currency notes during trap proceedings) and not for the pH value of the solution. Colour of the solution is a visual indicator of the presence of the phenolphthalein powder.

It is the Investigating Officer who is recognized in the Criminal Procedure Code for the purposes of the investigation. He can take all necessary steps for the investigation. As regards someone else signing for the SP, you have to make enquiries with the concerned organisation itself as to what is contained in their guidelines.

Check from the concerned forensic science laboratory concerned, as to who is authorized to sign while receiving samples. These are procedural matters within an organisation, which can be replied to by that organisation itself, and these are not questions of law which this forum can entertain.

Your question No. 4 is again a procedural question to be answered by the organisation concerned itself. There is no specific law in this regard.

Case diary is a privileged document under law. An accused is not entitled to ask for its copies.

Your questions Nos. 5 and 6 again would have to be answered by the investigation agency itself, if they have any internal guidelines in this regard.

     

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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]

Statements are recorded by police during investigation under the provisions of Section 161 of the Criminal Procedure Code. In 2009, Section 161 Cr.P.C. was amended and the following provision was added thereto:

“Provided that statement made under this sub-section may also be recorded by audio-video electronic means.”

Therefore, it is perfectly lawful for an investigating officer to record statements during investigation by video-conferencing. You can request the police officer in this regard by bringing this amendment to his notice. You may also express your inability to visit India for this purpose citing whatever practical difficulties you have, if any.

     

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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 stated in the General Guidelines for this forum, we do not answer questions on facts for the reasons stated therein. So, we cannot comment in detail as to what stand you should take in defence. However, generally speaking, you can deny her allegations of cruelty. At the same time, since you appear to be having your own counter-allegations of cruelty, you can mention the same in your reply.

As both of you seem to be willing for divorce, it may be advisable to go in for a mutual consent divorce.

Yes, alimony would generally be decided at the time of passing decree of divorce.

For your third question, read: How is the amount of alimony or maintenance computed on divorce?

     

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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 Government of India has framed the Legal Metrology (Packaged Commodities) Rules, 2011, under the authority of the Legal Metrology Act, 2009. These Rules, inter alia, provide for printing of Maximum Retail Price (MRP), inclusive of all taxes, on a packaged commodity.

Selling any product above the MRP price is punishable under Section 36 of the Legal Metrology Act, 2009, and it is punishable with fine which may extend to twenty-five thousand rupees, for the second offence, with fine which may extend to fifty thousand rupees and for the subsequent offence, with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees or with imprisonment for a term which may extend to one year or with both.

Complaint about sale of a product above MRP can be made to an officer of the department of Legal Metrology. A complaint in this regard can also be filed with the consumer forum under the provisions of the Consumer Protection Act, 1986.

     

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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 may amount to an offence of “harbouring offender” which is punishable under Section 212 of the Indian Penal Code (IPC) and/or under Section 216-A of IPC, which are reproduced below:

“212. Harbouring offender.—Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment,

[if a capital offence] shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine;

[if punishable with imprisonment for life, or with imprisonment] and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.

“Offence” in this section includes any act committed at any place out of India, which, if committed in India, would be punishable under any of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India.

Exception.—This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender.

Illustration

A, knowing that B has committed dacoity, knowingly conceals B in order to screen him from legal punishment. Here, as B is liable to imprisonment for life, A is liable to imprisonment of either description for a term not exceeding three years, and is also liable to fine.”

“216-A. Penalty for harbouring robbers or dacoits.—Whoever, knowing or having reason to believe that any persons are about to commit or have recently committed robbery or dacoity, harbours them or any of them, with the intention of facilitating the commission of such robbery or dacoity or of screening them or any of them from punishment, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Explanation.—For the purposes of this section it is immaterial whether the robbery or dacoity is intended to be committed, or has been committed, within or without ²[India].

Exception.—This provision does not extend to the case in which the harbour is by the husband or wife of the offender.”

It may be seen from the above legal provisions that even if the offender is a close friend, harbouring him may be an offence under these provisions. The only exception is when the harbour is by the husband or wife of the offender, as the case may be, in which case the harbouring is not an offence.

     

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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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