[Dr. Ashok Dhamija]

The police has no such legal power to use third-degree or torture against any person either before or after registration of the FIR. There is no power to misbehave with people. Such misbehaviour and torture may amount to offences under various sections of IPC.

You may give a formal complaint to the senior officers of police (such as Superintendent of Police of the district, or DCP of the city, as the case may be) about such misbehaviour. If needed, you may also file a complaint in the court along with medical certificate, if any.

     

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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]

Of course, the Magistrate has the power to frame charges for offences which are different from those mentioned in the charge sheet filed by the police.

In fact, the Magistrate is required to apply his independent mind to the evidence disclosed in the case as seen from the charge sheet (and not go merely as per police version), and to see whether there is prima facie evidence to frame charges. If there is no prima facie evidence to frame charges, the Magistrate may discharge the accused. On the other hand, if there is prima facie evidence to frame charges, the Magistrate has to apply his mind to see for what offences the charges can be framed (again, depending upon availability of prima facie evidence in respect of those individual offences).

So, the Magistrate has full powers to differ from the police charge sheet in respect of the offences for which charges can be framed.

In fact, while your question relates to the Magistrate’s power of framing charges at the initial stage only, the law laid down in Section 216 of Criminal Procedure Code goes to the extent of giving power to the court to modify or add to any charge at any time before judgment is pronounced, i.e., at any stage of the trial before the pronouncement of the judgment. This section is reproduced below:

“216. Court may alter charge.— (1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.”

 

     

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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 438 of the Criminal Procedure Code, which lays down provision for anticipatory bail, has been omitted for the purposes of Uttar Pradesh, by a State amendment, vide Section 9 of U.P. Act No. 16 of 1976, with effect from 28-11-1975. And, this would apply to Uttarakhand also, since in 1975, Uttarakhand was also a part of Uttar Pradesh.

Therefore, it is not possible to get anticipatory bail in Uttar Pradesh and Uttarakhand. In the absence of such provision, usually people file petition before the high court for stay on the arrest of the accused which, if granted, would serve almost the same purpose.

     

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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 provision of Section 309 Cr.P.C. of conducting the hearing on a day to day basis is not an absolute mandate.

Sub-section (1) of Section 309 provides that :“In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded…”.

Thus, sub-section (1) permits adjournment beyond the following day, though not as a routine.

But, it has to be read along with sub-section (2) that says: “If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody…”.

Therefore, sub-section (2) further permits adjournments.

The first Proviso to sub-section (2) further says that: “Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time”.

This implies that the proceedings can be adjourned for up to 15 days if the accused is in custody, but it also implies that if the accused is not in custody then the proceedings can be adjourned for a longer period.

Of course, there are certain other provisions in this section against unnecessary adjournments. However, the fact remains that while the mandate is to ensure a day-to-day hearing, it is permissible for the court to adjourn the proceedings of the trial wherever required.

The main practical reasons behind the long adjournments are lack of sufficient judicial strength and huge pendency in courts. There are only about 20,000 judges in India for a population of about 130 crore. More than 3 crore cases are pending in Indian courts, a large number of them for more than 10 years. You can imagine how 20000 judges can ensure day-to-day proceedings in all of the 3 crore cases at the same time (these numbers include judges and cases on the civil side also, and also in the high courts and Supreme Court).  So, if you continue a particular trial on day-to-day basis, then all other trials in that court will suffer. Therefore, it is a balancing of adjusting the trials by way of adjournments, so that some time may be given to all trials y rotation.

There would be no solution to the problem of long adjournments in a trial unless and until the number of judges is increased substantially. But, nobody appears to be willing to do this.

     

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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 may not be possible to withdraw an FIR once lodged. Further, the offence under Section 354 IPC is not compoundable. Therefore, the only option left would be to get the FIR and/or the criminal proceedings quashed from the high court.

Accordingly, if you are no more interested to pursue your Section 354 IPC complaint, on the basis of the compromise between you (as victim) and the accused, a petition may be filed in the high court under Section 482 Cr.P.C. for quashing of the FIR and/or the criminal proceedings arising out of the FIR.

     

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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 there is a delay of about 5 years in filing charge sheet in the case.

It is generally very rare that such long delay of 5 years takes place in investigation. Usually, such type of cases are investigated within a maximum period of say about 2 years. A delay of 5 years is generally very rare. There must be some specific reason for this, such as, non-receipt of the expert opinion (since it is a forgery case), or non-receipt of sanction for prosecution if that is needed in the case in respect of some government servant, if any involved. Or, there may be some other reason.

There is also a possibility that the investigation might have been closed and a closure report might have been filed by police, in which case you may not be intimated.

So, you may try to ascertain what is the cause of the delay.

Presuming that the investigation is still pending, if you are on bail and if no other specific disadvantage is caused to you due to such delay (such as suspension, custody, etc.), then you may wait patiently. If you so desire and if your budget permits you, in consultation with your advocate, you may approach the high court for quashing of the proceedings / investigation on the grounds of delay quoting your fundamental right to speedy trial (which also includes speedy completion of investigation). However, chances of such quashing are less, but there is a reasonable chance that the high court may at least direct the police to expedite the investigation and complete it in a time-bound manner.

You may also try to meet the senior officers of police with a request to direct the police officer concerned to speedily complete the investigation. Normally, the senior police officers will take notice of such long delay since they conduct periodic review of long-pending cases.

     

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

[Dr. Ashok Dhamija]

My reply to your question is with regard to the rules applicable to the Central Government services. Similar rules are generally applicable to other government servants.

Vide Government of India, MHA letter No. 39/59/54-Est.(A) dated the 25th February, 1955, it has been directed that:

“It shall be the duty of the Government servant who may be arrested for any reason to intimate the fact of his arrest and the circumstances connected therewith to his official superior promptly even though he might have subsequently been released on bail.  On receipt of the information from the person concerned or from any other source the departmental authorities should decide whether the fact and circumstances leading to the arrest of the person call for his suspension.  Failure on the part of any Government servant to so inform his official superiors will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone, apart from the action that may be called for on the outcome of the police case against him.”

It is thus clearly seen that the government servant is required to intimate his superior authority about his arrest / detention even if it is for a period shorter than 48 hours. It also shows that failure to do so may invite a 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]

How the maintenance charge should be fixed for the members of the society depends on the bye-laws of each society itself. It has to be decided by the society itself. There can basically be three types of methods:

• Per Square Feet charge: In this method, each flat owner pays maintenance on the basis of per square feet. So, an owner having flat with larger area will pay more. This method may not be acceptable to owners of larger apartments since there are many facilities which are used equally by all residents such as Lifts, Gardens, etc., irrespective of the flat size.
• Equal maintenance charge: In this method, each flat owner pays the same maintenance charge irrespective of the flat size. This method may be unfair to small flat owners if the sizes of the flats in the society vary drastically.
• Hybrid method: In this method, certain charges are to paid equally (for example, lift, garden or other common facilities which are equally enjoyed by everyone irrespective of the flat size) while certain other charges are paid on the basis of per square feet basis. This may be a better alternative since it is a middle path and perhaps more equitable.

It is pertinent to point out that Maharashtra is one of those rare states which has model bye-laws for housing societies. These model bye-laws are not binding but they may be adapted by societies with their own modifications as deemed fit by them. For example, see these model bye-laws. See Bye-law No. 70(a) where it is shown how the maintenance charges or service charges from society members may be calculated under various heads to ensure an equitable contribution by all members. You may notice that some of these heads charge equal fee from all members while some other heads are based on cost basis (i.e., per square feet basis). For example, when it is mentioned “minimum of 0.75 percent per annum of the construction cost of each flat”, it implies charges based on per square feet basis, since if the flats are of different sizes then their cost would also be different. Therefore, these model bye-laws offer a hybrid method.

All said and done, as I mentioned above, it is ultimately up to the society to decide (in a democratic manner) how and on what basis the maintenance charges are to be collected: whether equal for all flats, or on per square feet basis, or on hybrid basis. Generally speaking, the laws do not lay down a hard and fast rule. You have to decide on your own. If your society members are not agreeable on a common formula, the better course would be to have a hybrid method, i.e., have a breakdown of various expenses / charges and some of the charges which are enjoyed equally by all should be equal, while certain other charges may be per square feet basis, and then a total may be arrived at for each flat on the basis of such formula.

     

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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 police report mentioned in Section 190 Cr.P.C. does not refer to the FIR registered under Section 154 of Cr.P.C.

The police report mentioned in Section 190 Cr.P.C. refers to a charge sheet submitted by police under Section 173 of Cr.P.C. on completion of the investigation in FIR.

     

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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. A handwritten and unregistered will is valid in India. However, it should have been attested by two witnesses whose signatures should be present on the will. Also, the signature of a doctor certifying that the person making the will is mentally sound and healthy to make the will is preferable.

Having said that, it is not necessary that the will should be registered or that it should be typewritten. At the same time, if a will is registered (though it not mandatory), it would be better since that furnishes further proof of its genuineness.

     

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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 you have mentioned that Section 324 IPC is bailable, that is not correct now. After the 2005 amendment in Criminal Procedure Code, offence under Section 324 IPC is now non-bailable.

As regards, Section 34 IPC, it may please be noted that this section does not define any separate offence. It basically defines vicarious liability when certain acts are done by several persons in furtherance of common intention. It lays down that when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. So, all such persons having common intention would be liable for the same offence as if it was done by each one of them.

For example, if two or more persons commit an offence under Section 324 IPC in furtherance of their common intention, then they would all be charged under Section 324, 34 IPC even if only one of them had actually committed the main offence under Section 324 IPC.

It is due to this reason that since Section 34 IPC is not defined as a separate offence, it not mentioned as bailable or non-bailable in the Cr.P.C. It has to be read along with the main offence.

For example, whey you are charged under Section 324, 34 IPC, then it will be seen whether Section 324 is bailable or not. Depending on this, the nature of the case would be decided, i.e., whether it is bailable or not.

In the case of offences under Section 324, 34 IPC, the case would be non-bailable since offence under Section 324 IPC is non-bailable.

     

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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]

Unsolicited commercial communication (UCC) or the unwanted calls from marketers is a serious problem, which appears to have no satisfactory solution.

Telecom Regulatory Authority of India (TRAI) operates a Telecom Commercial Communications Customer Preference Portal, which is available here.

As per this website, a customer who has registered for not receiving unsolicited commercial communications (UCC), also commonly called DND (Do Not Disturb), on receipt of an unwanted call or SMS, he can register a complaint with his service provider within 3 days of receipt of such UCC by dialing or sending SMS to 1909. Customers will have to provide the telephone number or header of the message from where the call or message has been received, short description of such call or message along with the date of receipt of call or message.

For complaint through SMS, customer has to send SMS “the unsolicited commercial communication, XXXXXXXXXX, dd/mm/yy” to 1909. Where XXXXXXXXXX – is the telephone number or header of the SMS, from which the UCC has originated. The telephone number or header and the date of receipt of the unsolicited commercial SMS may be appended with such SMS, while forwarding to 1909, with or without space after comma.

It is laid down that the Service Provider will take action on complaint and inform the complainant within 7 days of lodging of complaint. Customers may check registration status of his complaint through the link “UCC Complaint Registration Status“.

However, the system does not work perfectly. And, in spite of DND registration and making repeated complaints, such unwanted calls and SMS continue unabated. The Government and TRAI are ineffective in this regard.

However, it is necessary that the affected persons should keep filing complaints about having received unsolicited calls. My experience with filing complaints has been that on most of the occasions, the number from which UCC is received, is disconnected if you file the complaint (I have personally filed many such complaints and the results were generally encouraging). The problem is that most people simply ignore the call and do not report such phone numbers by lodging the complaints. If most of the crores of phone users start lodging complaints, the collective effort will ensure that this problem may be solved substantially.

Perhaps, some public spirited citizen or NGO may also have to file a public interest litigation in the Supreme Court after a thorough study of the problem and suggesting solutions to improve the system. But, the solutions need to be technically possible.

     

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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]

Under Section 18 of the Right to Information Act, 2005, it is the duty of the Central Information Commission or the State Information Commission, as the case may be, to conduct inquiry, inter alia, on the complaint of a person who believes that he or she has been given incomplete, misleading or false information under this Act.

So, you can file a complaint with the Central Information Commission or the State Information Commission, as the case may be about false information given to you in the RTI reply.

Further, under Section 20 of the said Act, where the Central Information Commission or State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, inter alia, knowingly given incorrect, incomplete or misleading information, it has the power to impose penalty on such officer not exceeding twenty-five thousand rupees.

In addition to this, furnishing false information may also be an offence under the provisions of the Indian Penal Code, in appropriate cases.

     

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

[Dr. Ashok Dhamija]

One of the main reasons for the missing witnesses is the delay in judicial proceedings. If the trial prolongs for years, then some of the witnesses may move out to other places, some may even have died, etc.

If the witnesses are not found at their addresses and are reported by police to have moved out to some other city, etc., the police is expected to make detailed enquiries from the locality and the relatives of the witnesses (and other persons known to them) to find out their current addresses. Nowadays, even mobile numbers of the witnesses are supposed to be mentioned in their statements recorded by the police. So that should help. Though difficult, it is not impossible to locate the whereabouts of the witnesses who have moved out to some other places. If a witness is crucial for a trial, the police is expected to put in its best efforts to locate him. Formal witnesses, whose evidence is going to be of much consequence, may be dropped.

Fresh summons (and, where needed, warrants) may be issued by the court to produce those witnesses and some more opportunities may be given to the prosecution to locate and produce those witnesses.

If such witnesses cannot be found in spite of all best possible efforts, then there is no option but to proceed with the trial on the basis of the remaining evidence. No doubt, this may help the accused persons, but there may not be other option available. The court has the power to drop such witnesses and proceed further with the trial.

     

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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 burden of proof under Section 20 of the Prevention of Corruption Act, 1988, cast on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof that rests on the prosecution to prove its case of the receipt of the money as bribe. The accused may rebut the presumption by showing the preponderance of probability in his favour. It is not necessary for him to establish his case beyond a reasonable doubt.

In the case of V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 : (1966) 3 SCR 736 : 1966 Cri LJ 1357, the Supreme Court observed that it is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under S. 4(1) of the Prevention of Corruption Act, 1947 [equivalent to Section 20(1) of the new Prevention of Corruption Act, 1988]. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts, i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.

The quantum and the nature of proof required to displace this presumption under Section 20 of the PC Act may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise.

The burden on the accused to displace the presumption under Section 20(1) is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused other than as a motive or reward such as is referred to in Section 7 of the PC Act, 1988.

This presumption may be rebutted by the accused not only by any oral testimony or witnesses called on behalf of the accused but also by a statement of the accused under Section 313, Cr.P.C., and by any document produced on his behalf or by the surrounding circumstances.

Rebuttal of the presumption need not be by direct evidence. If the circumstances show that the prosecution version is not correct, the presumption is sufficiently rebutted.

[Note: Contents for this reply have been taken (in modified form) from my book: Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6).]

     

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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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