[Dr. Ashok Dhamija]

In the case of suspension for a criminal offence which is pending trial, usually the suspension may be continued till the trial is completed. This is the general experience, though there are exceptions. You should try to get the trial completed as early as possible, though sometimes that may also be not in your hands. But, at least, don’t delay the trial from your side.

Secondly, check your service rules. Whether suspension is required under rules to be periodically reviewed after every 90 days or 180 days, etc.? If yes, whether the suspension has been reviewed in accordance with such rules? If the rules are not followed with regard to periodic review of the suspension, you may challenge the same in appropriate court or tribunal.

Where a criminal case is pending against an employee, the University may not always initiate the departmental proceedings immediately. The authorities may first wait for the result of the criminal trial and thereafter consider the departmental action.

Depending on facts of your case and the hardships that you are facing, in consultation with your local lawyer who has seen your case papers in details, you can challenge the suspension in the appropriate court or tribunal having jurisdiction in 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]

It is generally not possible to compare the listings of two different SLPs. Generally, after notice is issued, the SLP is listed before the Registrar court for service on respondents and completion of the pleadings (replies), which is some cases take one or two years or even more. So, it may appear that the SLP is being listed again and again. Then, in some SLPs, the issue may be urgent or small issue. Sometimes, the advocate concerned would mention the case before the court for early hearing giving justifiable reasons.

If you check the SC website, you may find several SLPs which may be much older than your SLP also. I am myself having SLPs which are much older than yours. So, it all depends on the facts of each case.

If you feel that your case is of urgent nature and needs early hearing or is being unduly delayed, then your advocate can mention the case before the court for an early hearing. If you can justify an early hearing, the court may allow it.

     

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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]

No. Filing of FIR is not compulsory before preparing Panchnama in a case. FIR can be filed subsequent to a Panchnama also depending on facts of a case.

Panchnama is considered to be a part of the investigation in an offence.

Now, Section 157 of the Criminal Procedure Code lays down “Procedure for Investigation”. Sub-section (1) of this section begins with: “If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, … … shall proceed in person, or shall depute one of his subordinate officers … …, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender…”.

This section makes it clear that the police officer can start investigation from information received or otherwise. Here, the expression information received implies information received under Section 154 of Cr.P.C., which is FIR. And the expression or otherwise implies that the investigation can be started even without registration of FIR.

Thus, panchnama, being part of investigation, can be prepared before the registration of FIR also, if need arises in the facts of a case, though FIR would be generally registered subsequently.

     

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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]

With regard to your statement “judge who says that she wont allow file to be taken outside the court”, you have to ask the Magistrate or your advocate what was meant by this and in what context the above statement was made by the Magistrate.

When a closure report is filed by police in a criminal case, there are basically three options before the Magistrate:

• Accept the police report and close the case.
• Ask the police for further investigation.
• Reject the police report and directly take cognizance of the case and proceed with trial.

Depending on facts of the case, at the time of your filing and arguing your protest petition, you’ve to take a call whether you want to request for further investigation or you want the court to proceed with the trial if you can convince the Magistrate to reject the police report. You can also get the case converted into a private complaint case in which situation you will have to conduct the prosecution yourself (of course, you can engage a private advocate for this purpose).

This is your decision, in consultation with your local lawyer who would have seen the detailed papers of the case. In the absence of having seen the detailed papers, it is not possible for me to give any advice on this specific issue. But, I have outlined the options broadly, which are available to 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]

Section 142 of the Negotiable Instruments Act lays down that the trial for an offence under Section 138 of the said Act is to be conducted by the court within whose jurisdiction the branch of the bank is situated in which the account of the payee is maintained in which the cheque is deposited.

Section 410 of the Criminal Procedure Code gives power to the Chief Judicial Magistrate to transfer a case from one Magistrate to another within his jurisdiction. This power is similar to the power of transfer of the Supreme Court under Section 406 and that of the High Court under Section 407 of the Cr.P.C.

In the case of Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204 : 2000 Cri LJ 3480 : AIR 2000 SC 2293, the Supreme Court held that:

“The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.”

Thus, the Supreme Court has held that convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition.

So, it all depends on facts of each case. Transferring a case is a discretionary power, which is exercised in the facts and circumstances of the case being transferred. Usually, such transfers are not ordered as a routine, but in some exceptional cases such transfer can be ordered by the court concerned, including by the CJM under Section 410 Cr.P.C.

I may point out that after transfer the case would continue from the same stage at which it was left by the previous Magistrate.

If you are not satisfied with the order of transfer, you can challenge the same in the higher courts if you have some cogent reasons to oppose such transfer.

     

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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]

Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, [or, the CCS (CCA) Rules, in brief] is reproduced at the end of this reply.

It is quite clear from the said Rule that reduction to a lower stage in the time scale of pay can be a minor penalty or a major penalty, depending on how such penalty is imposed.

For example, clause (iii-a) of the said Rule defines the following minor penalty:

“(iii-a)   reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.”

On the other hand, clause (v) of the said Rule defines the following as major penalty:

“(v)        save as provided for in clause (iii) (a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay.”

In view of the above legal position, it should be clear that reduction to a lower stage of time scale of pay may be a minor penalty or a major penalty, depending on further details such as the period for which it would be applicable, its cumulative effect and its future effect, etc.

Rule 11 of the CCS (CCA) Rules is reproduced below:

“11.     Penalties

The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely :-

Minor Penalties –

(i)           censure;

(ii)         withholding of his promotion;

(iii)       recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;

(iii-a)   reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.

(iv)       withholding of increments of pay;

Major Penalties –

(v)        save as provided for in clause (iii) (a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay

(vi)       reduction to  lower time-scale of pay, grade, post or Service for  a period  to be specified in the order of penalty, which  shall be a  bar to the  promotion of the Government servant during such specified period to the time-scale of pay, grade, post or Service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified  period –

(a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay, and if so, to what extent; and

(b) the Government servant shall regain his  original seniority in the higher time scale of pay , grade, post or service;

(vii)      compulsory retirement;

(viii)     removal from service which shall not be a disqualification for future employment under the Government;

(ix)       dismissal from service which shall ordinarily be a disqualification for future employment under the Government.

Provided that, in every case in which the charge of possession of assets disproportionate to known-source of income or the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clause (viii) or clause (ix) shall be imposed :

Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed.

EXPLANATION –  The following shall not amount to a penalty within the meaning of this rule, namely:-

(i)                withholding of increments of a Government servant for his failure to pass any departmental examination in accordance with the rules or orders governing the Service to which he belongs or post which he holds or the terms of his appointment;

(ii)        stoppage of a Government servant at the efficiency bar in the time-scale of pay on the ground of his unfitness to cross the bar;

(iii)       non-promotion of a Government servant, whether in a substantive or officiating capacity, after consideration of his case, to a Service, grade or post for promotion to which he is eligible;

(iv)              reversion of a Government servant officiating in a higher Service, grade or post to a lower Service, grade or post, on the ground that he is considered to be unsuitable for such higher Service, grade or post or on any administrative ground unconnected with his conduct;

(v)       reversion of a Government servant, appointed on probation to any other Service, grade or post, to his permanent Service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing such probation;

(vi)       replacement of the services of a Government servant, whose services had been borrowed from a State Government or any authority under the control of a State Government, at the disposal of the State Government or the authority from which the services of such Government servant had been borrowed;

(vii)     compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement;

(viii)          termination of the services –

(a)       of a Government servant appointed on probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation, or

(b)       of a temporary Government servant in accordance with the provisions of sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, or

(c)        of a Government servant, employed under an agreement, in accordance with the terms of such agreement.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

If the husband refuses to take the wife back in the matrimonial home, she has several options, all or some of which may be available to her depending on facts of the case:

• She can file a petition for Restitution of Conjugal Rights (RCR) under Section 9 of the Hindu Marriage Act.
• She can file an application for maintenance under Section 125 of the Criminal Procedure Code.
• She can file a complaint under the Protection of Women from Domestic Violence Act for protection order, residence order, or monetary relief, etc.

     

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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 Section 7 of the Right to Information Act, reply to the RTI application is required to be provided (or the request rejected) within a period of 30 days from the date of receipt of the request for information. As per Section 19 of the said Act, if the applicant does not receive the information within the above period of 30 days or does not receive any decision within this period, he can file appeal to the designated higher authority within further 30 days (though delay in filing appeal can be condoned if sufficient cause is shown).

     

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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]

These are bailable offences, which means you’ll get bail as right if arrested. From your question it appears that you do not understand legal provisions and procedures, so it would be advisable to engage an advocate who can defend you during the trial. Once the charge sheet is filed by police and trial begins, you’ll have to defend your case. Though the burden is on the prosecution to prove that you have committed the offences, as alleged, you can cross-examine the prosecution witnesses (through your advocate) and produce your own defence witnesses, if needed, to prove your innocence.

For more details of the procedure involved, also see: What are different stages in procedure followed in criminal cases?

     

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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 not allowing the tenant to take away his goods even if he has paid the rent, as you have said, may perhaps amount to dishonest misappropriation of property or may even be a criminal breach of trust, depending on facts of the case.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

It is not possible to understand your question. Please ask your question in a clear language as to what do you want to ask.     

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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]

Sections 7 and 13 of the Prevention of Corruption Act, 1988, were amended by Act No. 1 of 2014, and these specific amendments came into effect from 16 January 2014. As per these amendments:

• Offence under Section 7 of the PC Act is now “punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine”.
• Offence under Section 13(2) of the PC Act is now “punishable with imprisonment for a term which shall be not less than four year but which may extend to ten years and shall also be liable to fine”.

Any offence under the above provisions which occurred on or after 16 January 2014 will attract these new punishments. Since you have mentioned that the date of occurrence of the offence in case of your father is 15 February 2017, the above amended / mew provisions relating to punishment for these offences would be applicable in this 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]

I have already replied to you that: “There is no standard or sample certificate prescribed under law. It should fulfil the conditions mentioned in Section 65-B of the Evidence Act in plain simple language, and that should suffice.” I have also quoted the section in my reply for your help in this regard. You may also search the Internet for such sample formats.

If the memory storage of the device is intact (as you claim) and only display is damaged, it should still be acceptable as primary evidence, since in that case the relevant file can still be accessed from such memory storage.

If other smartphone devices have copied files of the recording, then they will not be primary evidence.

If it is a private complaint case, then of course you can keep the device in your own safe custody. But, if it is a police case, then they will seize it and keep in their or in court custody and you have no option but to trust them.

I have already replied to you that you may search from the Internet about such forensic laboratories. Or, else, engage some expert to do so. It is not possible for us to do such research on facts of the case on your behalf.

As already stated, it is not possible for us to reply on detailed facts of the case on this pro bono forum. Take help of some local expert in your place about the type of questions to be asked from the forensic laboratory since that would depend on the detailed facts of the case.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

These are things of practice and not of any legal principles. It is not possible for us to say how much time it would take for the guidelines or directions to reach the lower courts.

But, generally, they should reach in a month or so. If the directions are given in an individual case and are sent directly by the Supreme Court to the concerned Magistrate court, then such directions would normally be issued and would reach in less than a month. But, if these are general directions for future compliance in all cases, then usually such directions would be sent through the respective High Courts to the Magistrate courts. So, there may be some delay on the part of the High Court concerned also. It is not possible to say how much delay would be there on the part of each High Court.

You can try to file an RTI application to find out when such directions were circulated by the concerned High Court to the Magistrate courts. Or, sometimes, such information may also be available on the High Court website.

If the Magistrate court is acting in a manner that is against the directions of the Supreme Court, you can try to get such action of the Magistrate set aside.

     

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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]

Study the relevant legal provisions (such as the relevant sections in IPC which relate to offences alleged by you) which are available free on the Internet. See the format of a private complaint, again available free on the Internet. It will generally be in ordinary common-sense language. If needed, you can visit the local Magistrate court to get some draft format. Draft your private complaint in such format, mentioning the relevant facts in detail, and trying to show how the main ingredients of the offences alleged by you are satisfied. File this complaint in the Magistrate court having jurisdiction. Filing a private complaint case is not at all a difficult task.

     

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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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