Dr. Ashok Dhamija
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September 2, 2017 at 11:19 pm in reply to: Can complainant apply for alteration of charge a case charge sheeted by police? #2756
Dr. Ashok DhamijaAdvocateThe prosecution of a criminal case in which the police has filed charge sheet after conducting investigation is required to be conducted by the public prosecutor on behalf of the State. At the same time, the complainant’s advocate can assist the public prosecutor, though such private advocate (i.e., the complainant’s advocate) cannot take control of the prosecution.
To your limited question, whether you as the complainant, make an application before the Magistrate court for alteration of the charge by including other two sections also, the answer is “yes”. You are basically bringing certain facts to the knowledge of the Magistrate for alteration of the charge. Rest is up to the Magistrate to take action in this regard. So, as complainant, you have this much of the right. In fact, in a similar situation, in the case of Anant Prakash Sinha v. State of Haryana, (2016) 6 SCC 105 : 2016 Cri LJ 1836 : AIR 2016 SC 1197, the Supreme Court observed as under:
“As is evident, an application was filed by the informant to add a charge under Section 406 IPC as there were allegations against the husband about the criminal breach of trust as far as her stridhan is concerned. It was, in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge. The court could have done it suo motu. In such a situation, we do not find any fault on the part of the learned Magistrate in entertaining the said application. It may be stated that the learned Magistrate has referred to the materials and recorded his prima facie satisfaction. There is no error in the said prima facie view.”
So, it should be possible for you to file such an application.
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 DhamijaAdvocateWhat type of sexual harassment case has been filed against you? Is it rape case or Section 354 IPC or something else? It depends on type of case. But, in most of the offences relating to sexual harassment, there is NO limitation period.
As far as registration of FIR is concerned, if the complaint given to the police discloses the commission of a cognizable offence, the police is bound to register it. It applies to sexual harassment case also. There is no other criteria. It is whether the complaint discloses a cognizable offence. Her mere complaint mentioning facts may be sufficient to register the FIR (at the initial stage). Subsequently, during investigation, it depends on the evidence, which may include medical evidence (if any), verbal statements, eye witnesses, and any other type of evidence.
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 DhamijaAdvocateThere is no hard and fast rule for time needed to complete the investigation in a case. It depends on the facts of each case, the complexity of the issues involved, nature of investigation required to be made, opinion of the experts needed (if any), the level of expertise of the investigating officer himself, how burdened he is (with other duties and investigations), etc.
In a cheating case, a period of 4-5 months for investigation is not abnormal. If the nature of allegations in such case is complicated, the investigation may need more time also.
The best thing for you is to ask the police officer concerned about the progress in the case and the approximate time he would be needing for completing the investigation.
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 may have to file a regular civil suit for recovery of the money.
Since you do not appear to be having a written contract with your friend for the money lent by you, it may not be possible for you to file a summary suit under Order 37 of the Civil Procedure Code, which would have been a faster way of recovering the money. Therefore, it may be advisable to file a regular civil suit for recovery.
To get a better opinion on facts of your case, you may show the full details and evidence to some local lawyer.
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.
September 2, 2017 at 9:38 am in reply to: Limitation for filing Review Petition in Supreme Court #2747Dr. Ashok DhamijaAdvocateAs per the Supreme Court Rules, 2013, a review petition can be filed within 30 days from the date of the judgment or order sought to be reviewed. Therefore, the limitation period is 30 days for filing a review petition in the Supreme Court from the date or order or judgment which is sought to be reviewed.
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.
September 2, 2017 at 9:34 am in reply to: Can high court review its order in a writ petition under Article 226? #2745Dr. Ashok DhamijaAdvocateIt appears that you have not read page 51 of the Supreme Court Rules, the link to which was given by me in my previous reply and I had stated that rules for Review Petitions are given on that page. In the second paragraph itself, on that page, under Review, it is clearly mentioned that the limitation for filing review petition is 30 days. Please read that page.
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 DhamijaAdvocateThere is no hard and fast rule on this issue as to whether the Section 340 Cr.P.C. application should be taken first or at the end of the trial. It depends on the facts of each case. The section itself does not lay down any hard and fast rule.
The judicial exercise involved in this process on the part of the Trial Court calls for prima facie determination of the fact if any such false evidence or fabricated document bearing on the point and issues had been given or produced by a party to the proceeding or a witness therein.
If a particular judicial proceeding relates to trial of contentious issues, raised therein by respective pleadings of the parties, and which require final adjudication of the Trial Court on the merits of the evidence to be let in on record by the parties in support of their respective case, then the most appropriate stage for the Trial Judge in such a trial proceeding is to formulate his opinion on filing or non-filing of complaint contemplated under Section 340 of Cr. P.C. would generally be at the final stage of disposal of the main matter on merits. Otherwise, if the Trial Court is to take a decision relating to alleged perjury or false statement at the initial stage of the proceeding, then it may prejudicially affect the fair disposal of the main matter on its merit and may thus adversely affect the course of justice.
But, in certain cases, the perjury may not be in respect of something which is vital for the fair decision in the case which is to be arrived at when the case has been finally heard on merits. In such a case, it may perhaps be possible for the court to file a complaint under Section 340 Cr.P.C. at the initial stage itself.
So, it may all depend on the facts of each 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 DhamijaAdvocateFirstly, it should be clear that in Islam, polyandry, the practice of a woman having more than one husband is not permitted. In view of this, the second marriage of a Muslim woman while her first marriage is still subsisting, is not valid.
In my opinion, once this is clear, a suit for injunction in such a case should be possible. In whichever states, Family Courts have been established under the Family Courts Act, 1984, such a suit should be permissible in a Family Court having jurisdiction in view of provisions of Section 7 of the said Act. This section, inter alia, gives powers to the Family Court jurisdiction in resect of “a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship”.
In this regard, this news report may be of interest to you: Family court stops Muslim man from marrying second time.
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 should obtain the permission of the court for disposing of the property, as it is clearly mentioned in the order.
In any case, the closure report is also yet to be submitted in court, and thereafter it will have to be accepted by the court after hearing the protest petition of the complainant, if any.
Thirdly, the above order also refers to the civil case which may be instituted.
In view of this, you should take prior approval of the court before disposing of the property.
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.
August 31, 2017 at 9:08 am in reply to: Notice for illegal construction received from Municipal Coporation #2735Dr. Ashok DhamijaAdvocateIt is not clear from your question as to what is the nature of the repair work undertaken by you to your house. Does it require approval of the plan from the municipal authorities or it is of such a small or inconsequential nature that no such prior approval is necessary? Going about the fact that you have received a notice from the municipal authorities for illegal construction, it appears that the repair work may be of a nature that requires prior approval for the construction / repair plan from the authorities. Or, may be that the original construction itself is considered as illegal by them.
It would be advisable for you to first get the construction plan sanctioned by the municipal corporation authorities. Reply to whatever queries they have in this regard. Ensure that you do not construct beyond the permissible limits under the law / rules, and beyond the approval sanctioned plan. If you have already done construction which the authorities consider as illegal, try to explore the possibility of getting it regularized by paying penalty and/or other legal charges. Otherwise, you may convince the authorities that the construction is not illegal and is permissible under relevant laws. If needed, you may have to approach the court for getting stay on the potential action to be taken by the municipal authorities, including a potential demolition of the construction which they are calling illegal.
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.
August 31, 2017 at 8:55 am in reply to: Police forcing me to settle my marital dispute with wife #2734Dr. Ashok DhamijaAdvocateWhen a criminal complaint in a matrimonial case is received, depending on the nature of the complaint, the police may generally try to mediate between the two parties and try to persuade them to arrive at an amicable solution.
In the recent case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 : AIR 2014 SC 187 : 2014 Cri LJ 470, wherein a Constitution bench of the Supreme Court directed mandatory registration of FIR by police where the complaint discloses commission of a cognizable offence, the Supreme Court has allowed a preliminary enquiry to be conducted in cases of matrimonial disputes / family disputes where necessity of such an enquiry is felt before registration of FIR.
See: When can preliminary enquiry be conducted before FIR registration by police?
As per further order dated 5 March 2015 of the Supreme Court in the aforesaid case, now the preliminary inquiry, if any, is required to be completely normally in 15 days, but in exceptional cases, by giving adequate reasons to be recorded in the General Diary of the police station, it may be completed in 6 weeks.
Thus, while the police can try to persuade the parties to a matrimonial dispute to amicably solve their issues, the police is not authorized to force any party for such settlement. Therefore, forcing you to settle your dispute with your wife and demanding some amount from you, as mentioned by you, is impermissible and police cannot do so. You can take legal action in this regard and/or may complain to the senior officers of the police department. But, at the same time, also expect that if there is no amicable settlement between husband and wife, the police may register FIR on the complaint of the wife which has been given to it already, as you have mentioned.
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.
August 30, 2017 at 8:44 pm in reply to: Serving of notice in a criminal revision before High Court #2731Dr. Ashok DhamijaAdvocateIf you have named those retired persons as respondents in your revision petition, then the duty is cast on you to provide their addresses.
If they are not necessary parties to the litigation (since you say that they are retired) depending on facts of the case, you can drop their names and in that case you’ll not be required to serve notice on them. Otherwise, in the absence of the basic requirements of address, how would the proceedings start?
Another option could be to obtain their (previous) addresses from the previous stage of the case (from the court, against whose order you have filed the revision petition) and cite those addresses and send notices at those addresses, or you may have to go and make enquiries at those previous addresses.
Yet another option is if the corporate has refused to provide addresses only on the limited ground that the high court has not taken cognizance (or notice) of the matter so far, you may bring it to the knowledge of the high court and request it to issue appropriate order.
If those retired persons are getting pension from the corporate, you can also consider the option of serving the notice “care of” the corporate, and see if it helps.
Meanwhile, try to seek more time from the high court to serve notices on them.
Though it is not directly relevant since you have filed a criminal revision petition, let me point out that Order V, Rule 20(1), of the Code of Civil Procedure, provides that when the Court is satisfied that the defendant is keeping out of the way for the purpose of avoiding service, or that, for any other sufficient reason the summons cannot be served in the ordinary way, service may be effected by affixing a copy of the summons in some conspicuous place in the Court house, and also in some conspicuous place of the house, if any, in which the defendant is known to have last resided, or carried on business, or personally worked for gain, or in such other manner as the Court thinks fit. This Rule is reproduced below:
“20. Substituted service.— (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court House, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
(1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
(2) Effect of substituted service.— Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed.— Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.”
Section 64 (Service when persons summoned cannot be found) and Section 65 (Procedure when service cannot be effected as before provided) of the Criminal Procedure Code lay down somewhat similar procedure for criminal matters, however, they may not be of much help to you since in your case there are no formal summons issued, and secondly, you do not even know the addresses. However, you can go through the provisions of Chapter 6 of the Criminal Procedure Code relating to summons and warrants, for compelling the appearance in court, if they can apply in 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 DhamijaAdvocatePlease show the sessions court order to your lawyer and seek his guidance on its language. If it says court approval, then you should obtain or wait for such court approval. Do not sell property by violating the court orders.
As regards closure report, once you have said that it is already prepared, it should not take years; may be a couple of months, here and there. In case of long delay, take steps in my previous answer.
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 DhamijaAdvocateSend it by Registered Post A.D. (Acknowledge Due). Send it at the correct address. Get the proof from the post department of its delivery. A copy of the legal notice sent may be produced before court along with the Postal receipt and also the AD received back. You may also get the delivery report from the website of the post department. This is what is generally done in these 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 DhamijaAdvocateAs regards demand of bribe, I have already answered your question. On detailed facts of your individual case, please consult some lawyer by showing him relevant details.
Secondly, yes, audio recording is a valid evidence. It is electronic evidence admissible under the relevant provisions of law. Whether or not reliable also, will depend on facts of each 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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