Dr. Ashok Dhamija
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June 13, 2020 at 11:49 pm in reply to: Revocation of suspension continuing for one year with no chargesheet #5495
Dr. Ashok DhamijaAdvocateOn the basis of the facts narrated by you in your question, I feel that it may perhaps be a fit case to approach the courts for revocation of suspension.
As I had mentioned in one of my previous articles (Suspension order not to extend beyond 3 months if charge-sheet is not served, says Supreme Court), there is a Supreme Court judgment as per which suspension should not extend beyond 3 months if charge sheet is not served on the suspended employee. It appears that the legal principle laid down by the Supreme Court in the aforementioned case has been violated in your case.
Therefore, in my opinion, you can perhaps approach the competent court / tribunal for revocation of the suspension.
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.
June 13, 2020 at 10:52 pm in reply to: How to compromise a case of assault on police (353) and non-obedience of order? #5494Dr. Ashok DhamijaAdvocateAll the three offences mentioned by you, namely those under Section 186 of IPC (Obstructing public servant in discharge of his public functions), Section 188 of IPC (Disobedience to an order lawfully promulgated by a public servant), and Section 353 of IPC (Assault or use of criminal force to deter a public servant from discharge of his duty) are non-compoundable offences. This means that these offences cannot be compromised or compounded even if the concerned police officer (against whom such offences were committed) is willing to compromise them.
The only way out for you, at the initial stages, could be to file a petition before the High Court for quashing the FIR and/or quashing of the criminal proceedings on the ground that it is a false FIR and/or that the police officer is willing to compromise it (though I doubt whether the police officer would be willing to compromise it).
For more information about how to compromise a non-compoundable offence, please watch my following YouTube video:
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.
June 13, 2020 at 10:37 pm in reply to: How can I obtain copies of Case Diary from police of investigation done in FIR? #5493Dr. Ashok DhamijaAdvocateThe case diary of a criminal case is a privileged document under Section 172 of the Criminal Procedure Code.
Section 172(3) of the Cr.P.C. clearly lays down that neither the accused nor his agents (such as his lawyer) shall be entitled to get the case diary. Also, they are not entitled to see the case diary merely because they are referred to by the Court.
However, during trial of the case, if the case diary is used by the police officer who wrote it during investigation to refresh his memory, or if the Court uses it for the purpose of contradicting such police officer, then the accused may be entitled to see the case diary as per provisions of Section 161 of the Evidence Act. In such a situation, the accused can cross-examine the police officer in accordance with Section 145 of the Evidence Act and contradict him with regard to contents of the case diary.
Other than the above situation, the accused is not entitled to get copies of the case diary maintained by police.
Therefore, it may not be possible for you to obtain copies of the case diary from the police relating to investigation of the criminal case registered against you. Filing an RTI application or going to court in this regard may also be of no help.
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.
June 13, 2020 at 10:17 pm in reply to: What should I do first if a false FIR is registered against me? #5492Dr. Ashok DhamijaAdvocateIf the FIR relates to a non-bailable offence, your first step could be to apply for anticipatory bail before the Sessions Court. If you can prima facie show to the Court that the FIR is false, there are good chances of anticipatory bail being granted to you. This can help you avoid the arrest and custody which can be embarrassing and harassment.
You can cooperate with police to provide the evidence that shows your innocence and that the FIR is false. If the investigating officer is convinced, he can file a closure report in the case.
Thirdly, if needed, and if you have sufficient material to show that the FIR is false, you may even consider filing a petition in the High Court for quashing of the FIR.
If nothing works, and if a charge sheet is filed against you, you can file a discharge application before the trial court by showing that there is no prima facie case made out against you in the charge sheet. Discharge means the closure of the case against you.
As a last resort, you may have to face the trial and prove the prosecution case false and show your innocence, leading to acquittal.
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 DhamijaAdvocateFull form of FIR is “First Information Report”. Generally speaking, it is the first information received by the police about the commission of a cognizable offence. Such information is registered as FIR under Section 154 Cr.P.C.
FIR is generally registered immediately after the commission of the offence. At such initial stage, even full details of the offence may not always be available, e.g., who has committed the offence, how the offence was committed. It goes without saying that at the time of registration of the FIR, in most of the cases, no evidence is available. It is during the investigation of the FIR that the police collects evidence / material to examine whether the offence has actually been committed, and if so, who has committed the offence and what is the evidence to support that. Thus, generally speaking, in most of the cases, evidence is collected during investigation.
Since FIR is merely the “first information” of an offence, and at that stage it is not expected that evidence would be available in support of the complaint being registered as FIR, it goes without saying that FIR can be registered without evidence being available.
What is needed is the report about the commission of a cognizable offence. If a cognizable offence appears to have been committed, as per the complaint, police is bound to register the FIR. At that stage, evidence is not insisted upon.
Thus, FIR can be filed without evidence being available at that stage.
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 DhamijaAdvocateWas there any condition in the bond / contract that the college authorities have the right to withhold your education certificates till your comply with the bond?
If there was no such condition then the action of the authorities to withhold the education certificates does not appear to be justified. If the college authorities want, they can take action to enforce the bond against you for your act of not complying with the conditions of joining the company, but they should not withhold the certificates.
If you had health problems due to which you could not join the company as per the contract, then you should have taken permission by submitting medical certificates and should have properly intimated them. Now, you may have to defend the future action, if any, initiated for enforcing the bond against you. May be, you can try to convince the authorities.
As regards the education certificates, if the college authorities refuse to handover the documents and illegally withhold them, then you may have to approach the appropriate higher authorities (such as education department) or court / tribunal.
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 DhamijaAdvocateThe correct answer to your question may depend on the detailed facts of your case, which are not clear from your question.
However, here is a general answer to the issue raised in your question. It may be advisable for you to consult some lawyer by showing him full facts of your case.
Once you have obtained a divorce in Australia in 2018 (as you have mentioned), and if this divorce decree was granted by a competent court, then, depending on detailed facts, it may not be necessary to obtain a fresh divorce in India. More so, if you have acquired citizenship in Australia, as you have mentioned.
Please note that under Section 13 of the Civil Procedure Code, a foreign judgment shall be conclusive with regard to any matter directly adjudicated upon between the same parties, except in certain situations mentioned therein. Also, Section 14 of the said Code lays down that such foreign judgment shall be presumed to have been pronounced by a court of competent jurisdiction, unless evidence to the contrary is produced.
Further, a perusal of the Hindu Marriage Act (under which you may perhaps be seeking a fresh divorce) shows that its provisions may not be applicable if you are NOT domiciled now in India, as it perhaps appears to be the case since you appear to have settled in Australia by acquiring its citizenship.
However, as I mentioned above, these are general observations in the absence of knowing full facts of your case. You may please consult some local lawyer by showing him detailed facts / documents of your case.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
January 24, 2019 at 5:41 pm in reply to: Special public prosecutor – Can de facto complainant ask for appointment of? #5413Dr. Ashok DhamijaAdvocateIf the criminal case has been instituted as a private complaint case (i.e., not through police), then the complainant can definitely appoint his own lawyer to conduct prosecution.
However, if a case is under trial on the basis of a police investigation, then the appointment of a private lawyer by the complainant is governed by the provisions of Section 301 of the Criminal Procedure Code:
“301. Appearance by Public Prosecutors.—(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.”
Therefore, in a police case, if the complainant appoints his private lawyer, then such private lawyer has to work only under the directions of the public prosecutor, etc., who is officially appointed.
Of course, if it is some very sensitive / important case, the complainant may request the government for appointment of some experienced lawyer as a special public prosecutor. But, it is up to the government to accept or deny such request. And, if such person is appointed as special public prosecutor by the government, then he shall be deemed to be the public prosecutor; however, the complainant may not be in a position to instruct him about the manner in which the prosecution can be conducted.
Collection of evidence is not done by prosecutor; he is basically required to conduct the prosecution in the court. Collection of evidence is done by police.
The prosecutor can file petition / application in the absence of the accused, but usually copy of such application is given to the accused and the accused (or his lawyer) is also heard before the court passes any order. The dates for hearing are fixed by court, and it may do so on the suggestion of lawyers of both sides.
Public prosecutor does not act on the instructions of the de facto complainant. He has his own independent authority under law.
Accused can request the court to provide copy of the appointment of the public prosecutor, and generally it would be provided. Usually, there is a general order of the appointment of a public prosecutor, and he may not need any special authority in a particular case, as mentioned in Section 301 Cr.P.C., as reproduced above. But, if some special public prosecutor has been appointed by the government in an individual specific case, then there would be a special order for that case (or group of cases).
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 DhamijaAdvocateThe answer to your question lies in Section 15 of the Hindu Marriage Act, which is as under:
“15. Divorced persons when may marry again.—When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”
And, the limitation period or time for appeal is laid down in Section 28(4) of the said Act, which is as under:
“(4) Every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.”
A combined reading of the two provisions shows that the limitation period to file appeal against a decree of divorce is 90 days, and if no appeal is filed during this period then it is lawful for either party to the marriage to marry again.
It is also pertinent to point out that under Section 12 of the Limitation Act, the time requisite to obtain copy of the decree is excluded from the limitation period. At the same time, it has been held that delay caused by the appellant’s carelessness or negligence cannot be considered as “time requisite” and cannot be excluded.
In any case, you have mentioned that the appeal filed by your wife is within limitation period as she got the copy of the judgment after one month. So, I presume that you have verified the above rules with regard to exclusion of time required to obtain copy of judgment from the court.
In these facts, in my considered opinion, if her appeal is within limitation period (as you have said), then the remarriage may not be valid, because this would mean that “the time for appealing” had not expired within the meaning of Section 15 of the Hindu Marriage Act.
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 DhamijaAdvocateSection 34(3) of the Arbitration and Conciliation Act is as under:
“(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”
Therefore, it appears that the language of the provision is neutral (and silent), and it does not refer to any specific party which made the request under Section 33 of the Act.
For example, suppose one party had made request under Section 33 for correction in award and the other party was given notice (as required under that section) of this request, then naturally, the other party may also wait for the decision of the arbitral tribunal under that section.
In my opinion, this limitation provision should be applicable to both parties because pendency of a request under Section 33 of the Act means that the proceedings are still going on and the award may be corrected or interpreted, as the case may be, by the arbitral tribunal.
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 DhamijaAdvocateYou have not clarified as to why do you want to know about the admissibility / acceptability of the work experience certificate under the Evidence Act. From your question, it appears that you need this certificate for getting some fresh contract or work from some other company. If that is the case, the new employer will not ask you to prove the experience certificate under the Evidence Act. And, you have mentioned as to whether some litigation is going on with regard to that experience certificate.
In any case, if the company had prepared the certificate at an earlier time but given you now, it would be accepted under the Evidence Act even if it is a subject matter of some litigation.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateAs mentioned in our Forum guidelines, it is not possible to answer question on detailed facts of a case since the detailed facts are not before us.
That said, the result of a case depends on various factors, including the overall reading of the evidence.
You have said that your CA forged the cheques, but have you got evidence of forgery of cheques by getting them examined through the scientific experts?
If you can prove the above fact, then you can take advantage of the opening line of the definition of offence under Section 138 of the Negotiable Instruments Act, saying: "Where any cheque drawn by a person on an account maintained by him with a banker…". So, in that case, you can say that you did not draw the cheque and that it was forged by your CA.
The law also requires that the cheque should have been given "for the discharge, in whole or in part, of any debt or other liability". You have mentioned that the complainant has shown proof of amount transferred to your current account. But, you have not clarified as to whether you accept this version and also whether this was on account of a loan given to you or your company. Now, even if it was a friendly loan, it is still a loan. So, the burden is on you.
If the accused is not known to the complainant, then why did he transfer the amount to the current account?
So, there are many questions that have to be considered. Please consult your local lawyer for more guidance on your case.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateThe limitation period for filing SLP is 3 months from the date of the high court order. The actual time taken for supply of certified copy of the high court order (which is generally not more than 10-15 days) may be excluded from this limitation period.
However, it is possible to file SLP even after this period, but then the opposite party may have to file an application for condonation of delay along with the SLP. If the Supreme Court is convinced about the reasons for delay, it may condone a few months’ delay.
Once the review petition has also been decided, the opposite party may not get a chance to approach the high court again. However, if the original order and the review order were passed by a Single judge bench, and if there is a provision for approaching a division bench of high court (of 2 judges) in the rules of your high court, then it may be possible for the opposite party to approach the division bench of the high court against such order.
From your side, if you want, you can file a caveat in the Supreme Court, so that the moment SLP is filed you’ll get a notice of the same. This will help you to oppose grant of an interim order against you.
Meanwhile, you can also request to get the order (in your favour) implemented by the concerned authority. And, if they don’t do it, you can consider filing a contempt petition for not complying with the direction of the high court.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateIf you got higher rank than other candidates and are fully eligible to join the job, then you have the right to be appointed. In such situation, if you immediately challenge the action of the authority concerned of not appointing you to the post and instead of that appointing someone else to the post, then if the court is satisfied with your version, it may grant an interim stay to not fill the posts and keep a seat vacant for you. Otherwise, the court may also pass the order that the filling of the posts shall be subject to the final outcome of the case, which means that in future if you succeed in your case, the department may have to appoint you by removing a person or by creating another post. So, it all depends on the facts of the case and also the nature of the order to be passed by the court.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateOnce a case has been filed against you, there is no option but to defend the case. You can try to reach at a compromise with your wife, but if she is adamant to continue the case in the court, you’ll have to defend the same.
Secondly, it perhaps appears from your question that you want to ask whether she can file a second domestic violence (DV) case after her first case was dismissed. Well, it depends on the facts of the case. If the second case has been filed on the basis of fresh facts or a new cause of action, then it is possible to file the second case.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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