[Dr. Ashok Dhamija]

It is basically a violation of privacy, which is recently declared as a fundamental right by SC. But, as far as I understand there is no separate Privacy Act so far which punishes such violation. At the most, it may perhaps be a tort, but for that detailed facts need to be examined by some expert.

Section 43-A of IT Act requires proof of wrongful gain or wrongful loss due to failure to protect data, then only it is applicable. See, their definition in Section 23 of IPC.     

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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 judgment that I cited earlier is also in respect of a special law. The general principle is the same, i.e., whether the investigation is done by a police officer who is lower in rank than the police officer who is authorized under law. The above case from Supreme Court is on the same issue.

As I mentioned earlier, the investigation is illegal in such case, but the illegality in investigation may not vitiate the proceedings unless miscarriage of justice is shown. Chances of acquittal or discharge in such case would thus depend on showing the miscarriage of justice (and to some extent, also, on whether such defect was pointed out at the initial stage).

As I mentioned, if you show this defect at the initial stage, the court may order a re-investigation by a competent officer, but chances of complete discharge or acquittal would be very limited, unless miscarriage of justice is shown.

You should engage some good lawyer who can properly guide in this regard in detail, especially with regard to the above legal principle.     

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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 investigation is conduced by a police officer of the rank of Sub-Inspector of Police when the legal requirement is that the investigation should be conducted by an officer of the rank of Inspector or above, then such investigation is illegal. However, long back, in the case of H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 : 1955 Cri LJ 526, the Supreme Court held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. It was held that if cognizance is in fact taken on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought miscarriage of justice. An illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. There have been other judgments, more or less on similar lines.

Coming back to your question, you may bring such illegality to the notice of the court at the initial stage itself, when it takes cognizance of the offence or when the charges are to be framed. If pointed out at such initial stage, the court may put the case on hold and direct the investigating agency to cure the defect in the investigation by directing that it should re-investigated by a competent officer. However, if the trial is completed already, then such trial may not be set aside due to such defect in the investigation unless the illegality in the investigation can be shown to have brought miscarriage of justice.

     

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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 stated by you, it appears that both forgery and perjury are committed.

Forgery is committed since the document appears to have been forged outside court and before submission of the same to the court. So, approach the Magistrate court under Section 156(3) or Section 190 Cr.P.C.

Since this forged document is used in court (in high court – original side), there is perjury also. So, file application under Section 340 Cr.P.C. before high court.

Therefore, legally speaking, you can take both actions. But, ultimately, it is your call.     

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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]

Either the bank itself should agree to pay the subsistence allowance to you or the court should pass an order directing the bank to do so. In my view, there does not appear to be any other lawful method to make the bank pay the subsistence allowance to you. I don’t think the RBI or the Bank Ombudsman can help you in such matter.

You may try to convince the bank, may be by meeting the senior officers and explaining the factual position with regard to the clinic. Else, you may request the high court to pass an interim order (by citing your financial difficulties), during the pendency of the petition, directing the bank to pay the subsistence allowance, wholly or in part; if possible, you may consider giving an undertaking that if the case goes against you, you would refund the allowance so paid.

You should try to expedite the departmental inquiry, if any, which might have been initiated into the cause for which you were suspended. This may help you to get your suspension revoked at an earlier date, if the charges are not proved against you.

As regards your question relating to lawyer, it is not mandatory that you should always engage a lawyer. You can appear in person in the high court. Else, you may seek held of a legal aid lawyer from the legal aid cell of the high 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]

The territorial jurisdiction of a District Consumer Forum is laid down in Section 11(2) of the Consumer Protection Act, 1986, which is as under:

“(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.”

From your question, it appears that the solar system has actually been installed at your residence in Yamunanagar district of Haryana by the said respondent firm and the payment also might perhaps been made at that place. Installation of the solar system might perhaps have been a part of the transaction. If so, the cause of action arose in Yamunanagar, if not wholly then at least in part, and accordingly, in view of clause (c) of Section 11(2), it should be possible to file the consumer complaint in Yamunanagar District Forum.

     

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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 are right. The judgment referred to by you is reported as Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 : AIR 2005 SC 2119.

However, please note that registration of this FIR (or private complaint) will not be for an offence of perjury, but for the offence of forgery. And, for this, you’ll need to produce evidence of the forgery having been committed prior to its production in the court.

What I had stated in my previous reply related to the offence of perjury. I was replying to your question in para 4 of your question, which related to “Will I still need an FIR to file a perjury petition?” and other related questions in that para. I still hold that police will not register FIR for the offence of perjury since the court has to initiate action in this regard, as I explained in my previous reply. So, please keep the difference in consideration. My reply was with regard to the offence of perjury, whereas the above judgment refers to the offence of forgery in respect of the same document.

Now, coming to your further question, if you can substantiate the offence of forgery (as different from perjury) having been committed in respect of the document prior to its production in court, make those specific allegations in your complaint to the police, including highlighting the aspect that the forgery was committed earlier (specific dates may be mentioned or the time period may be mentioned, or at least it may be mentioned that it was prior to submission in court). If the police refuses to register FIR, then you can approach Magistrate under Section 156(3) Cr.P.C., or pursue it as a private complaint under Section 190 Cr.P.C.

With regard to your question in para 4 of your further question, let me point out that the complaint for forgery (and not for perjury) has to be filed in the criminal court (i.e., that of the Magistrate) and not in the civil court (or in the high court – original side). Had it been a petition / complaint in respect of perjury, you were required to approach the civil court in which such forged document had been submitted. But, since, now you are referring to a complaint for forgery (prior to submission of document in court), you’ll have to file it in Magistrate’s court (i.e., a criminal court) since for this offence the civil court (including high court – original side) does not have jurisdiction. For this also, as mentioned above, first try to register such complaint with police, if needed, approach senior police officers (such as Superintendent of Police in a district, or DCP in a city) under Section 154(3) of Cr.P.C., and if they do not register the FIR, then go to the Magistrate court under Section 156(3) Cr.P.C. or as a private complaint under Section 190 Cr.P.C.

     

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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]

Photocopy of an original document is a “secondary evidence” of the document. Since you have mentioned that the original document (which is the “primary evidence”) has been lost, you are permitted to file the photocopy of the document as secondary evidence, as per the provisions of clause (c) of Section 65 of the Evidence Act. However, first you’ll have to adduce evidence to show that the original document has been lost.

     

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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, you have mentioned that you are filing the second anticipatory bail application. Once the case has already been charge-sheeted, there is no point in seeking anticipatory bail since it would not be granted. This is what in fact has been told to you by the Supreme Court also, when it rejected your anticipatory bail application on the ground that charge sheet has been filed and it asked you to seek regular bail.

Regular bail will be granted only if you are arrested or if you surrender on your own before the court.

Secondly, once the charge sheet has been filed, there is no point in going for FIR quashing, charge sheet quashing, etc. These will be possible only from the high court, which is likely to direct you to go to trial court in view of charge sheet filed. You should try for discharge from the trial court (the 4^th option mentioned by you), which is the best option if you feel that there is no evidence to make out offences, as alleged, against you.

Otherwise, you may have to face trial and show that you are innocent.

     

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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 case under Section 420 IPC and other sections mentioned by you will be charge sheeted in Magistrate court and will be tried there. So, you have file discharge application in that court.

Cannot comment on wrong sections applied since I have not seen detailed FIR and other documents.

No. In a case under Section 420 IPC, even the Magistrate court has the power to grant bail.     

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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]

Offence under Section 420 IPC is punishable with imprisonment up to 7 years. It is a cognizable and non-bailable offence, in which police has the power to arrest without warrant from court under Section 41(1)(b) of the Cr.P.C. Legal power under this provision can be exercised by police by satisfying the conditions mentioned therein. There is nothing in this section that says that the police cannot arrest till a particular time after registration of the FIR.

Likewise, the police has powers to conduct search and seizure in a cognizable offence.

Since you were also produced before the court and remained in custody for several days, this would imply that judicial mind was also applied in respect of the arrest.

You’ll have to fight the case legally.

You can apply for discharge only after charge sheet has been filed. Before filing of charge sheet, you can file a petition before the high court for quashing of the FIR, if you feel that no case is made out against you even on the basis of whatever is mentioned in the FIR.

There is no requirement of formally recording your statement on merits of the case by Magistrate at this stage when the investigation is still going on. The statement of the accused is recorded during trial after completion of the prosecution evidence.

If you feel that police has committed any irregularities, you can approach the competent court. You’ll have to show all relevant papers to a lawyer to know about irregularities, if any, that might have been committed by police in the investigation. It is not possible for me to make comments on these aspects without seeing the papers of the case in detail. On the face of what you have mentioned, as I pointed out above, the police has the power to arrest and conduct search and seizure. Only a detailed scrutiny of the papers of the case can reveal irregularities, if any. So, please consult your local lawyer.

     

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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 well established legal principles, it is permissible for a party in a civil suit to take alternative or even mutually inconsistent pleas, but they should not be mutually destructive of each other. This means that these mutually inconsistent pleas should be capable to coexist with each other and should not be so inconsistent as to make it impossible to prove one plea unless the other is given up.

Of course, it is within your rights to object to the mutually inconsistent stands taken by the defendant in the same civil suit and point out the same to the court. However, it is for the court to decide whether such mutually inconsistent pleas taken by the party are destructive of each other or whether they can be permissible.

In this regard, I may point out that in the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 : 1951 SCR 277, the Supreme Court observed that:

“But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative.”

Relying upon the above decision, in the case of Arundhati Mishra (Smt) v. Sri Ram Charitra Pandey, (1994) 2 SCC 29, the Supreme Court held that it is settled law that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted, and that if the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised. 

However, in the case of Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713, the Supreme Court held that while alternative and inconsistent pleas could be raised but they should not be mutually destructive of each other. It held:

“Pleadings of the parties, it is trite, are required to be read as a whole. The defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other.”

This is general position of law on this issue. So, raise your objection before the court and try to prove that the mutually inconsistent stands taken by the defendant are so inconsistent that they are mutually destructive of each other.

     

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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, the evidence of such witness will be admissible though how much value is to be attached to such evidence (i.e., its credibility) will depend on the facts of the case.

In this regard, I may point out that Section 7 of the Oaths Act, 1969, clearly lays down that evidence and proceedings are not invalidated by an omission to take any oath or by an irregularity in the administration of the oath. This section states as under:

“7. Proceedings and evidence not invalidated by omission of oath or irregularity.— No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”

It is also noteworthy that in the case of Rameshwar v. State of Rajasthan, 1952 Cri LJ 547 : AIR 1952 SC 54, the Supreme Court held as under:

“…an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in section 118 [of the Evidence Act]. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that section 118 must prevail.

Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of section 118 these matters only touch credibility and not admissibility.”

Therefore, the evidence of a witness which was recorded without administering oath to him would not become inadmissible merely because of that fact; however, this may raise a question about the credibility of his evidence. But, even the question of credibility of his evidence has to be decided by considering his evidence as a whole.

     

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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 situation described by you is taken care of by Order 18 Rule 15 of the Civil Procedure Code. This Rule is reproduced below:

“15. Power to deal with evidence taken before another Judge.— (1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it.

(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under Section 24.”

So, where evidence has been recorded by one judge, who is then transferred, the new judge can proceed further from the stage at which his predecessor left the case. In your case, since what remains is only the pronouncement of judgment and recording of evidence and arguments, etc., have already been completed, in view of the provisions of the above Rule, the new judge is competent to pronounce judgment in the case. There is no need to record the evidence afresh merely because the previous civil judge has been transferred.

The Supreme Court judgment in the case of Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196, directly covers this point. In this case, the Supreme Court held as under:

“Order 18 Rule 15 provides for the contingency where the Judge before whom the hearing of the suit has begun is prevented by death, transfer or other cause from concluding the trial of a suit. This provision enables the successor Judge to proceed from the stage at which his predecessor left the suit. The provision contained in Order 18 Rule 15 of the Code is a special provision. The idea behind this provision is to obviate re-recording of the evidence or rehearing of the suit where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit and to take the suit forward from the stage the predecessor Judge left the matter. The trial of a suit is a long-drawn process and in the course of trial, the Judge may get transferred; he may retire or in an unfortunate event like death, he may not be in a position to conclude the trial. The Code has taken care by this provision that in such event the progress that has already taken place in the hearing of the suit is not set at naught.

This provision in Order 18 Rule 15 comes into play in various situations such as where part of the evidence of a party has been recorded in a suit or where the evidence of the parties is closed and the suit is ripe for oral arguments or where the evidence of the parties has been recorded and the Judge has also heard the oral arguments of the parties and fixed the matter for pronouncement of judgment. The expression “from the stage at which his predecessor left it” is wide and comprehensive enough to take in its fold all situations and stages of the suit. No category or exception deserves to be carved out while giving full play to Order 18 Rule 15 of the Code which amply empowers the successor Judge to proceed with the suit from the stage at which his predecessor left it.”

In view of the above, it should be clear that there is no need for the new civil judge to record the evidence afresh and he can directly proceed to pronounce the judgment on the basis of the evidence recorded by the previous judge.

     

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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]

To answer your question relating to the third party insurance of a motor vehicle, let me reproduce Section 147(1) of the Motor Vehicles Act, 1988:

“147. Requirements of policies and limits of liability.—(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which—

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required—

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee—

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation.—For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.”

It should be clear from the above that a passenger travelling in a private car, which only has a third party insurance, will not be covered under such insurance policy.

There are some Supreme Court judgments also on this issue, as per which in terms of Section 147 of the Act a contract of insurance must be taken by the owners of the vehicle only in regard to reimbursement of the claim to a third party. It was held that the provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice, and that it, however, must be kept confined to a third-party risk. A gratuitous passenger would not be covered by a contract of insurance entered into by and between the insurer and the owner of the vehicle in terms of Section 147 of the Act. The insurance policy which is a statutory policy or a third party policy does not cover the risk of death of or bodily injury to a gratuitous passenger. [For example, see: Oriental Insurance Co. Ltd. v. Sudhakaran K.V., (2008) 7 SCC 428 : AIR 2008 SC 2729.]

     

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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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