[Dr. Ashok Dhamija]

In the absence of having seen the full order / judgment, and also in the absence of knowing of the full relevant facts, it is difficult to tell you accurately. Please consult someone by showing the judgment and relevant facts. However, I have already stated the general proposition of law 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]

It is well established that a second FIR is not permissible under law on the same facts. Of course, if there is a counter case by the opposite party that can be the basis of the second FIR arising out of the same incident; but, in such a case, there are two counter FIRs arising out of the same incident or out of the same transaction, but the actual facts from the point of view of the opposite parties would be different. However, filing of the second FIR by the same party on the basis of the same facts is not permissible under law. So, you cannot have two FIRs by the same party on the same facts.

In the case of T.T. Antony v. State of Kerala, (2001) 6 SCC 181 : AIR 2001 SC 2637, the Supreme Court held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. It was held that only information about commission of a cognizable offence which is first entered in station house diary by officer in charge of the police station can be regarded as FIR under Section 154 of the Criminal Procedure Code and that all such subsequent informations will be covered by Section 162 of the Cr.P.C. (i.e., statements of witnesses). In this case, the Supreme Court held as under:

“A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case [(1979) 2 SCC 322] it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.”

“The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC.”

“…under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.”

However, as mentioned above, and as seen from the above case decided by the Supreme Court, another FIR can be filed as a counter-case even if it may be arising out of the same incident or same transaction, but it needs to be kept in mind that a counter case is not by the same party but by the opposite party.

Moreover, if a fresh offence has taken place between the same parties, then of course there can be a second FIR by the same party against the same opposite party. But, on the same facts (i.e., when there is no new offence), a second FIR cannot be filed by the same party.

It may be pertinent to point out that in the case of Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441 : 2009 Cri LJ 958 : AIR 2009 SC 984, registration of a second FIR was held to be permissible because the second FIR lodged by CBI (as against the first FIR registered by local police) was on a wider canvas involving conspiracy of a large number of persons, and it was lodged after holding a detailed preliminary inquiry and the CBI had collected a large number of materials, recorded a large number of statements, enumerates as many as fifteen categories of irregularities involving as many as fourteen accused persons, and there were different versions and new discovery was made on factual foundations.

     

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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 your choice whether you should provide information about the case in the high court to media. Sometimes, the courts do not like information being provided to media to gain publicity. In such cases, sometimes, the court may think as if you have filed writ petition merely with the intention of gaining publicity. And, if the writ petition is on weak grounds (and if it is more likely to fail), then unnecessary publicity in media may be defamatory to the opposite party.

In any case, it is your call whether to share it with media. You should do it considering pros and cons.     

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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 appears to be purely academic question which we generally do not answer. Instead of asking us to enumerate all circumstances in which the Magistrate can commit a case to the Sessions Court under Section 323 Cr.P.C. (other than in counter-case scenario), you should have rather narrated the situation in your own case if the Magistrate had committed the case in your case and then asked whether that was justifiable.

Please do not ask such academic questions on the forum since we do not have time to deal with such issues and since this forum is meant mainly for helping people having genuine legal problems being faced by them. You may please consult any good book on Cr.P.C. (such as the multi-volume Sohoni’s Cr.P.C.), may be from library, where such academic questions are dealt with in detail. I may only add (in brief) that power given in Section 323 Cr.P.C. is of a wide character and can be exercised in appropriate cases where it appears to the Magistrate that the case ought to be tried by the Court of Session, he may commit it to that Court. I may also point out that the power under Section 323 Cr.P.C. is NOT confined only to the cases which can be committed under Section 209 Cr.P.C. Lastly, let me also add that Section 323 Cr.P.C. is a very rarely used provision.

     

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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]

What does the court order state on this issue? You have to look at that.

Generally speaking, if the case has been transferred from one court to another (may be inter-state or otherwise), the proceedings continue from the same stage from where the earlier court left them. But, if the case has been dismissed by the first court, to be filed again in the new court, then the proceedings may have to start afresh.

     

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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]

When a cognizable offence takes place, upon a complaint being filed, a First Information Report (FIR) is registered by the police station having territorial jurisdiction to investigate into that offence. It is the regular FIR with a regular FIR Number.

However, if the complaint of such cognizable offence is given to some other police station (which may be nearby to the person giving such report) which does not have territorial jurisdiction to investigate into such offence (since it has not occurred in its area) then it may register the FIR with a Zero FIR Number and then send / forward this Zero FIR to the concerned police station having proper jurisdiction. Such police station will then re-register such FIR with a regular FIR Number.

Thus, an FIR registered by a police station having no territorial jurisdiction to investigate into the offence is generally registered under Zero Number, and is generally referred to as Zero FIR under common parlance.

     

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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 not possible to file the FIR with police and private complaint in court simultaneously. And, in fact, it is not needed also.

If the complaint discloses a cognizable offence (such as under Section 420 IPC, as you have stated), then you must first give the complaint to the police for registration of the FIR followed by investigation. If the police refuses to register FIR, then of course, you can file a private complaint with the Magistrate court, if you so wish, or approach the Magistrate under Section 156(3) of the Cr.P.C. for directing the police to investigate the case.

If the police registers the FIR but closes the case after investigation by filing a closure report (final report) under Section 173 of the Cr.P.C., then also you will get a chance to file your protest petition with the Magistrate against such closure, whereupon the Magistrate will either direct the police for further investigation or will take the cognizance of the case directly on the basis of the police report or will consider your complaint as if it were a private complaint or may close the case if you cannot satisfy the Magistrate about your case.

So, in either case, you’ll get an opportunity to proceed with your case even if police does not do justice with your complaint. Therefore, there is no need for filing a private complaint simultaneously along with the FIR. Moreover, as mentioned above, it is also not legally permissible to file both the things simultaneously, i.e., FIR with police and private complaint in court, together.

     

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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 whether the officer facing the PC Act charges is under suspension or not. Generally, such an officer would be placed under suspension. In such a situation, the question of upgradation may not arise.

Please also note that the guidelines also provide that:

“All the prescribed eligibility criteria and promotional norms including ‘benchmark’ for up-gradation to a particular grade pay would have to be met at the time of screening for grant of higher pay-scale under these orders.”

“All instructions concerning grant of non-functional upgradation presently applicable in the case of grant of NFSG to officers of Group ‘A’ Services would apply in the event of penalty, disciplinary proceedings, suspension etc.”

With respect to the question, “How the NFU shall be given in respect of officers given penalty?”, it has been provided that: “The NFU becoming due after the expiry of the penalty period may be granted w.e.f. the due date as per DOPT instructions. In respect of officers for whom NFU becomes due before the expiry of the penalty period, the same may be granted from the day next to the date on which penalty gets over.”

As far as I understand, eligibility criteria may also include vigilance clearance. If so, in these circumstances, it is doubtful whether such an officer would be granted such benefit. So, you may have to dig deeper into the relevant guidelines after obtaining copies of the same from the concerned authorities. If the guidelines permit it but the NFU is still not given to you, then you may have to approach the appropriate court / tribunal.

     

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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 will all depend on the terms of the MOU that you would have entered into with the lady concerned and also the terms of court order, if any. It is difficult to reply without having seen all relevant documents. But, if the mutual consent divorce petition is based on any amount (or any installment) being given by you in advance, then she may refuse to give her consent at the second motion of the mutual consent divorce and due to this, the MCD petition may fail. You’ll have to consider all the aspects before taking a decision.      

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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 may have to take all possible defences. For example, you said that the cheque was given for security purpose. Then you said that there was no cash loan and it is a false allegation. No promisory note, or any agreement, etc. So, you should adduce evidence for all these things. Merely because the other party has shown the loan in Income Tax return may not be sufficient. You can also use the legal ground of cash loan of an amount above Rs. 20000 not being legally permissible and thus not being legally enforceable, more so the same being in the absence of any proof of the cash loan having been given. Since the burden will be on you (after having given cheque), you will have to do whatever best is possible in the situation, and then leave it to 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]

At one place, you have mentioned that, “On this basis my contract was also extended for another six month…”. So, from the limited facts known to me, it appears that your contract was extended but the formal notification was delayed. Secondly, you have also mentioned that you have worked for the extended period of 6 months, which means that the concerned authority would have permitted you to work for this extended period.

In view of this, you should be able to get the salary for the extended period. You have mentioned that you were working on contract basis. A contract need not necessarily be in writing. A contract can be oral also. In fact, a contract can even be implied contract. If you have been allowed to work and your “contract was also extended for another six month”, it can at least be considered to be an implied contract even if there was no formal notification. You may have to approach the appropriate court or tribunal, if needed, to get justice. Contact some local lawyer if you are not familiar with legal procedures.

     

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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 may try to get information from the postal department about the post sent by you, about delivery of the same to the accused. On their record (which may not be online now due to lapse of time), they may have the proof which may be useful to you.

Please also see the following articles, which may perhaps be useful to you since they cover similar situations:

• Proof of sending legal notice 138 NI Act
• Burden of proof of service of notice in cheque dishonour case, what if accused avoiding service?

Since your lawyer would have seen the full facts of your case, you may consult him in this regard. A person who has seen the detailed papers of the case can better suggest the possible solutions, 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]

Section 48 of the Partnership Act lays down the manner in which the assets of a partnership firm are to be applied after its dissolution:

“48. Mode of settlement of accounts between partners.—In settling the accounts of a firm after dissolution, the following rules shall, subject to agreement by the partners, be observed:

(a) Losses, including deficiencies of capital, shall be paid first out of profits, next out of capital, and, lastly, if necessary, by the partners individually in the proportions in which they were entitled to share profits.

(b) The assets of the firm, including any sums contributed by the partners to make up deficiencies of capital, shall be applied in the following manner and order—

(i) in paying the debts of the firm to third parties;

(ii) in paying to each partner rateably what is due to him from the firm for advances as distinguished from capital;

(iii) in paying to each partner rateably what is due to him on account of capital; and

(iv) the residue, if any, shall be divided among the partners in the proportions in which they were entitled to share profits.”

If, as per your arrangement, after dissolution, the industrial land is required to be transferred to a particular partner, then it may have to be transferred by way of registered transfer like any other land is transferred. Depending upon on whose name the land is presently registered, the person(s) concerned may have to sign such transfer deed as transferor(s). If the industrial land was allotted by any Government agency, you may have to take necessary steps to get such allotment transferred in the name of such partner to whom the land is to be transferred after dissolution of the 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]

Yes, it may be injustice if what you say is correct. But, what is your question?     

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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 it is a self-contained RTI answer, i.e., if it clearly shows the context also and contains useful information, you should be in a position to use it in your criminal case, without producing the question that was asked. However, if you have the copy of the question asked in RTI application, you can produce that also in court to show the complete chain. If you don’t have the copy of the RTI application and if it is necessary for your case, then you may try to obtain a copy of that RTI applicant itself from the department, by making another RTI application or otherwise!

     

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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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