[Dr. Ashok Dhamija]

Under the provisions of the Criminal Procedure Code, a magistrate does not have the power to recall his order or review his order. In this particular case, the order passed by the magistrate dismissing the complaint and discharging/acquitting the accused is a final order and the magistrate cannot recall this order or review such order.

Therefore, you may have to file an application for revision of this order before the sessions court or the High Court. Where the revision application is not maintainable, an application under Section 482 of the Criminal Procedure Code may be filed before 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]

You appear to be referring to filing of an appeal from the decision of the Motor Accident Claims Tribunal (MACT).

Under the provisions of Section 173 of the Motor Vehicles Act, 1988, the time period for filing an appeal against the decision of the MACT is 90 days and such appeal can be filed in the high court. If the person fails to file an appeal within the said limitation period of 90 days, the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

Section 173 of the Motor Vehicles Act is reproduced below:

“173. Appeals.—(1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court:

Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees.”

      

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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 all depends on the relevant rules which are applicable to you. Sometimes, the rules may specifically provide that if you take any extraordinary leave, the probation period may be extended. Some other rules may perhaps be silent.

For example, as per the Government of India, DP&T O.M. No. 11037/15/93-AIS(III) dated 3rd Dec., 1993, it has been laid down that the period of absence from training of an IAS officer will be treated as extraordinary leave as provided for in Rule 15 of the AIS (Leave) Rules, 1955 except for the period which can be treated as maternity leave as provided for in Rule 18 of AIS (Leave) Rules, 1955 and the period of probation will be extended accordingly; this will, however, not effect the seniority of the probationers in the IAS.

On the other hand, rules concerning some other services may be silent in this regard. But, generally speaking, the probation period is required to be completed satisfactorily, to the satisfaction of the competent authority, and the Appointing Authority may, if it so thinks fit, extend the period of probation of a Government servant by a specified period [see: GOI, DOPT, O.M. No. 28020/1/2010-Estt(C) dated the 21st July, 2014]. So, it may be the discretion of the appointing authority to extend the period of probation if the probation period has not been completed satisfactorily. One of the grounds could even be long absence on extraordinary leave during the probation period.

Therefore, you’ll need to check the relevant rules that are applicable to your service.

     

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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]

Before one could answer your question, the basic question is can a person actually have two Aadhaar cards? The Aadhaar system has been devised in such a manner that it is not possible for a single person to obtain two Aadhaar numbers, because it is unique to a person and is tied to his biometric information which cannot be changed. Therefore, if a person could obtain two Aadhaar numbers then the very basis on which the Aadhaar system has been devised becomes faulty.

If a person has already obtained an Aadhaar number by enrolling with the system by providing his biometric information, he will not be able to enrol again by providing the same biometric information since the system will not register him for the second time. So, it will not be possible to have two Aadhaar numbers for a single person.

In fact, if a person registers for Aadhaar number by impersonating as some other person, his own biometric information will be tied with the Aadhaar number obtained in the name of such other person. Subsequently, such person will not be able to obtain Aadhaar number in his own name also because his biometric information is already registered against some other person for whom he impersonated.

Therefore, it would not be possible for a person to get two Aadhaar numbers using his own biometric information.

Accordingly, if a person has two Aadhaar numbers, then it would imply that one of those two Aadhaar numbers has been obtained by impersonation using the biometric information of some other person. And, impersonation for getting Aadhaar number is made an offence under the Aadhaar Act of 2016.

     

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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]

Sub-section (1) of Section 313 of the Criminal Procedure Code is reproduced below:

“313. Power to examine the accused.—(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).”

It is clear from this provision that it is mandatory for the court to question the accused person “generally on the case” after the witnesses for the prosecution have been examined and before the accused person is asked to submit his defence.

So, the questions asked from the accused person under Section 313 of the Criminal Procedure Code are generally related to the case. In practice, the accused person is asked questions relating to the evidence which has come on record against him in the form of the prosecution evidence. So, whatever evidence has come on record in the form of the statements of the witnesses examined by the court and also in the form of the documents exhibited by the prosecution, the accused will be asked questions with regard to them in a general manner.

No oath is administered while examining the accused person under this section. Moreover it is not mandatory for the accused to answer all the questions asked of him and he can maintain silence in reply to any question.

     

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

[Dr. Ashok Dhamija]

Employees of a public sector undertaking (PSU) are not government servants. The expression “government servants” includes employees working directly under the central government or any of the state governments or the Government of a union territory.

However, employees of a public sector undertaking would generally come within the definition of “public servants” within the meaning of section 21 of the Indian Penal Code (IPC) and section 2 of the Prevention of Corruption Act, 1988.

     

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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]

Please note that the proceedings under section 125 of The Criminal Procedure Code are not relating to an offence. These proceedings are for maintenance to be given to the wife children, parents who are not able to maintain themselves.

Therefore even if the proceedings under section 125 of The Criminal Procedure Code and Section 498-A of the Indian Penal Code are based on same or similar facts, conducting these two types of proceedings together will not amount to double jeopardy, since one of these two types of proceedings is not for an offence.

     

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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 391 of the Criminal Procedure Code permits the Appellate Court to take additional evidence, if it thinks it to be necessary, by recording its reasons. This court has the power to take such evidence itself or direct it to be taken by the lower court, such as by a Magistrate or by a Court of Session. Thus, during the appeal stage, the appellate court has the power to take additional evidence itself or it can remit back the case to the lower court to record such additional evidence. You should file an application before the appellate Court making a prayer for recording of additional evidence, explaining why such additional evidence is necessary for the case and also why such evidence could not be recorded during the trial stage. Section 391 of The Criminal Procedure Code is reproduced below:

“391. Appellate Court may take further evidence or direct it to be taken.— (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.”

     

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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]

Judgement of one high court is not binding on another high court. However, it has persuasive value if it is a reasoned order. Coming from a constitutional court, the judgement of a High Court has to be considered with respect if it provides detailed reasoning for the conclusions drawn in the judgement. Therefore, other High Courts may be persuaded to follow the reasoning of such judgement even if it is not from the same High Court. However, as I mentioned above, judgement of one high court is not binding on other High Courts, but it has a persuasive value as pointed out above.

     

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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 please note that the proceedings under section 12 of the Protection of Women from Domestic Violence Act are not proceedings for an offence. These proceedings do not relate to an offence, but are meant for protection of the woman.

Likewise, the person against whom such proceedings are being conducted is not an accused, but he is referred to as respondent.

Generally speaking, such proceedings against a person should not come in the way of his getting a government job.

However, at the time of applying for the government job, in the appropriate column of the forms required to be filled up, you should submit correct information about the proceedings pending against you in any Court and you should not conceal any such information about the pendency of the proceedings in any court, including the proceedings under section 12 of the Protection of Women from Domestic Violence Act as mentioned by 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]

When a closure report is submitted by the police under section 173 of the Criminal Procedure Code, the magistrate is not bound to accept the report as submitted by the police. The magistrate has three options: (1) to accept the closure report submitted by the police as it is; (2) to reject the closure report submitted by the police and to directly take the cognizance of the offence; or (3) to direct the police for further investigation.

Therefore, there is nothing wrong if the magistrate directs the police to conduct further investigation after submission of a closure report by the police under section 173 of the criminal procedure for.

     

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

[Dr. Ashok Dhamija]

You have yourself mentioned that you did not have any leave left in your account and secondly you went on leave without authorisation. In such situation, the decision of the authority concerned to treat your absence from duty as leave without pay or unauthorised leave cannot be said to be improper.

Even if no leave was left in your account, you should have at least intimated the authority concerned or taken his permission before proceeding on leave, instead of going on leave for a long period of three months without taking his permission specifically. In these circumstances, the authority concerned has the power to initiate departmental proceedings for proceeding on leave for a long period without permission and thereby adversely affecting the office functioning and also violating the rules.

From your question, it appears that departmental proceeding for imposing a major penalty has been initiated against you. Removal is one of the major penalties that can be inflicted on a government servant, and therefore, legally it is possible to impose a penalty of removal in such situation. However, during the course of the departmental proceedings, you should try to explain the genuine reasons for the urgency for proceeding on leave without taking permission. If the disciplinary authority is convinced, generally speaking, in such cases a lesser penalty may perhaps be imposed, such as stoppage of increments or reduction to the lower stage of the pay scale; in fact, if you can fully convince the disciplinary authority, you may even be exonerated from the disciplinary action.

     

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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]

There is no legal provision allowing a formal procedure for seeking status report of the investigation from the police. At the same time, being the complainant, you can contact the investigating officer to find out the progress of the investigation, and the officer may give you a broad idea of the stage of investigation. If you feel that the investigation is not being conducted properly and/or is delayed, you may also contact the superior officers of police requesting them to monitor the investigation or change the investigating officer, if needed.

     

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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]

Compounding an offence implies compromise between the parties. Compromise means both parties must consent thereto. Therefore, it may be necessary to obtain consent of the complainant for the compounding of the cheque bounce case.

Please note that a case of cheque bounce under Section 138 of the Negotiable Instruments Act is mainly a criminal offence, and not merely for recovery of the amount (through the fine imposed) for the cheque amount. Therefore, there may be situations where the complainant may wish to continue proceedings for imposing penalty on the accused for the cheque bounce. However, generally speaking, experience shows that the complainant may be willing to accept the payment of the cheque (with or without interest and/or costs, etc.) and agree for compounding. Sometimes, if the accused is willing to make the payment of the cheque amount, even if the complainant is not willing to compromise, the magistrate may persuade him (or, should I use the word “compel” him?) to compromise, in order to unclog the system of unnecessary pendency of cases. Therefore, the accused may offer to pay the cheque amount on the first appearance in court and generally speaking the cheque dishonour case may be compounded.

In this regard, I may also point out the case of Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, in which the Supreme Court has issued the following guidelines:

(a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.

(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the court deems fit.

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.

However, my understanding of this judgment is that “compounding” referred to in this judgment would still require the consent of the complainant, since consent of both parties is inherent in the word “compromise” or “compounding”. What the Supreme Court has laid down is that compounding may be permitted at various stages (including appeal stage or the SLP stage before Supreme Court) with additional costs. But, in my understanding, even such compounding presupposes consent of the complainant.

     

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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 very difficult to reply to a question on facts, without actually seeing the detailed documents. But, in general, it depends on the type of the stay order issued by the court and in appropriate cases, the court can pass order with regard to rent received as a part of the stay order.

     

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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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