Dr. Ashok Dhamija

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  • in reply to: Offence under Section 63 of the Copyright Act #1944

    Offence under Section 63 of the Copyright Act is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.

    The Copyright Act is silent as to whether the offences under this Act are cognizable or not, and also whether such offences are bailable or non-bailable. Therefore, we have look at the general provisions contained in Part-II of Schedule I to the Criminal Procedure Code, which are applicable to offences under Acts other than IPC. As per this, if an offence in an Act other than the IPC is punishable with imprisonment for 3 years and upwards but not more than 7 years, then it is cognizable and non-bailable. Offence defined in Section 63 of the Copyright Act fits in this classification.

    Therefore, the offence under Section 63 of the Copyright Act is cognizable and non-baialble.

         


    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.

    in reply to: Can my mother cancel a registered gift deed of property? #1943

    Recently, I have replied to a similar question, which may please be seen: Cancellation or revocation of registered gift deed of immovable property.

    As mentioned in the above reply, once a gift of an immovable property has been registered, it cannot be revoked by the donor at his or her own will. Further, if there is a clause in the gift deed that it could be revoked by the donor in future, then such gift deed itself is void.

    In view of this, once an immovable property has been gifted to you by your mother by way of a registered gift deed, and by fully understanding the consequences of such gift, such gift cannot be revoked by her.

         


    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.

    If it is a self-acquired property of your father, as it is mentioned in your question, then as per the provisions of the law applicable to Hindus, he has full right during his lifetime to dispose of the property in his discretion to any person. There is no restriction on him in this regard. He can sell the property or he can gift it to anyone. So, he can transfer the property to you by way of a registered gift deed. Other family members cannot oppose it legally since it is the exclusive right of your father to dispose of his self-acquired property in the manner he wants.

         


    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.

    in reply to: Vehicle seized in case -how to get it back from police? #1940

    If the vehicle has been seized by the police during investigation, as it appears from your question, then you have to make an application before the Magistrate having jurisdiction under Section 457 of the Criminal Procedure Code for return of the property. After seeking comments from the police, the Magistrate, if he thinks fit, may direct the delivery of the vehicle to you on “supardari” or “supardnama”, i.e., in your custody subject to conditions imposed by the Magistrate, such as on an undertaking that you would produce the vehicle at the time of the trial for evidence purposes, if needed.

    Section 457 Cr.P.C. is as under:

    457. Procedure by police upon seizure of property.— (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

    (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.”

     

         


    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.

    Under the old Companies Act, 1956, there was a specific provision contained in Section 45 of that Act, laying down the consequences of the number of members (i.e., shareholders) of a public company falling below the minimum required number of seven and this section was as under:

    45. Members severally liable for debts where business carried on with fewer than seven, or in the case of a private company, two members.—If at any time the number of members of a company is reduced, in the case of a public company, below seven, or in the case of a private company, below two, and the company carries on business for more than six months while the number is so reduced, every person who is a member of the company during the time that it is so carries on business after those six months and is cognizant of the fact that it is carrying on business with fewer than seven members or two members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued there for.”

    However, under the new Companies Act, 2013, I have not been able to find any corresponding provision laying down what happens if the number of members in a public company falls below seven (7).

    But since the minimum requirement for number of shareholders is 7 in respect of a public company, if it falls below this number then either the number will have to be increased to 7 or above (by introducing new members) or the company will have to be wound up.

         


    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.

    in reply to: Requirements for general power of attorney #1923

    Of course, the donor of the power of attorney must put his signature on the power of attorney document. In addition, it may even have to be registered before the Sub-Registrar (which means also signatures of two witnesses) if it relates to power being given to sell any immovable property and also in certain other situations where the POA is for a transaction which is required to be registered. This is as per the requirements of Section 33 of the Registration Act. Further, the donor of the POA must be a person of sound mind and should be competent to enter into a contract, i.e., he should be an adult, etc.

         


    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.

    in reply to: Eviction of tenants and how to get owner possession #1922

    Every state has its own Rent Control Act which may have different provisions, and providing different types of protections to the tenants. Please consult some lawyer in your state / city having regard to your local state Rent Control Act which may be applicable in your case.

    But, generally speaking, you may have to file a suit for eviction of the tenants from your premises since you say that they are not even paying any rent for last several years. Depending on provisions of the Act applicable to you, you may also take the ground that you need the premises for your own use or for renovation, etc., or whatever other grounds are available to you under the Act.

         


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

    You have not given the full facts. Whether the insurance that you are talking about is of your vehicle or of the vehicle of the opponent or you are talking about your personal insurance?

    In any case, it will depend on the actual terms and conditions of the insurance policy as to in what conditions insurance amount can be given and whether or not it can be given when the offence is compounded. Please note that such things are not laid down in any law in the form of any hard and fast rules. It all depends on the actual terms and conditions of each insurance policy and it is a subject matter of negotiation between the parties, i.e., between the insured and the insurer. So, please refer to the terms and conditions of your insurance policy.

    Moreover, once you said that you are compromising the offence, it would generally imply that you are getting some compensation from the accused person in the road accident. So, you may also take into consideration the amount of compensation that is being paid by the accused and the compensation that you may get from the insurance company, if any.

         


    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.

    in reply to: Can high court issue writ against a cooperative bank? #1920

    It is well settled that a writ will ordinarily lie only against the State or instrumentality of the State and also that a writ will lie against a private body only when it performed a public function or discharged a public duty. A cooperative bank is basically a private entity so a writ can be issued to a cooperative bank only when it performed a public function or discharged a public duty. In this regard, it may be apposite to quote the relevant observations of the Delhi high court [Markandeya Katju, C.J and Madan B. Lokur, J.] in the case of S.D. Siddiqui v. University Of Delhi, (2006) 88 DRJ 504 (DB):

    “The language of Article 226 is no doubt very wide. It states that a writ can be issued “to any person or authority” and “for enforcement of any of the rights conferred by Part III and for any other purpose.” However, the aforesaid language in Article 226 cannot be interpreted and understood literally. We cannot apply the literal rule of interpretation while interpreting Article 226. If we take the language of Article 226 literally it will follow that a writ can even be issued to any private person or to settle even private disputes. If we interpret the word “for any other purpose” literally it will mean that a writ can be issued for any purpose whatsoever, e. g., for deciding private disputes, for grant of divorce, succession certificate etc. Similarly, if we interpret the words “to any person” literally it will mean that a writ can even be issued to private persons. However, this would not be the correct meaning in view of various decisions of the Supreme Court in which it was held that a writ will ordinarily lie only against the State or instrumentality of the State vide Chander Mohan Khanna v. National Counsel of Educational Research and Training (1991) 4 SCC 578, Tekraj Vasandhi v. Union of India, AIR 1988 SC 496, General Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad (2003) 8 SCC 639, Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (2002) 5 SCC 111). In Binny Ltd. v. Sadasivan, AIR 2005 SC 3202, the Supreme Court observed that a writ will lie against a private body only when it performed a public function or discharged a public duty. …”.

     

         


    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.

    in reply to: Defamation case for false 498A IPC case filed by wife #1919

    Generally speaking, it may be difficult for you to succeed in the defamation case under Section 500 IPC against your wife on the basis of the grounds that she filed a false case against you under Section 498-A IPC. It will depend on the facts of each case, but generally it is difficult to prove defamation case in such a situation.

    Defamation is defined under Section 499 of the IPC.

    As per the 8th Exception to Section 499 IPC, the allegation made by your wife in her 498-A IPC case before the competent authorities may perhaps be protected from being a defamation; so it may not amount to defamation in law. Only thing that may have to be seen is whether she made such accusation against you in good faith or with the mala fide intention of defaming you. In view of this, your chances of success in such a case are not very bright. This Exception is reproduced below (please also see the Illustration given below this Exception):

    Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

    Illustration

    If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, a child, to Z’s father—A is within this exception.”

     

         


    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.

    in reply to: Period of validity of caveat filed in Supreme Court #1918

    As per the provisions of Section 148-A of the Civil Procedure Code, a caveat is valid only for a period of 90 days from the date on which it was lodged. After that it expires. Therefore, if the SLP is not filed by your opponent within this period of 90 days, and if you feel that he may still file the SLP, then you should file a fresh caveat on expiry of the first caveat (i.e., after 90 days), which then again would be valid only for 90 days.

         


    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.

    It depends on the language of the order passed by the high court while staying the criminal proceedings in the lower court. It also depends on what types of prayers were made before the high court. Sometimes, even if the proceedings are stayed, lower court has to give dates, for example, to extend the custody of the accused (if they are in custody) from time to time. So, it all depends. You have not mentioned the specific language used in the order.

    In case you also wanted stay on warrant issued against you, you could have specifically brought it to the knowledge of the high court that a warrant was pending against you, in which case on being convinced the high court could have specifically directed that no coercive action be taken against the accused in the meanwhile.

    Anyway, in the absence of knowledge of full details of the order passed the high court, it is difficult to interpret its full effects.

         


    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.

    As per Section 154 of the Criminal Procedure Code, it is mandatory to register the FIR when information about commission of a cognizable offence is given to the police.

    I may point out that recently a 5-judge Constitution bench of the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 : AIR 2014 SC 187 : 2014 Cri LJ 470, has held that it is mandatory for the police to register FIR on the basis of an information or complaint which discloses commission of a cognizable offence. However, in this case, the Supreme Court also held as under:

    “Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.”

    In this regard, the Supreme Court referred to its following observations in the case of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1:

    51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

    52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test [Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118] to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”

    So, accordingly, the Supreme Court in the above case of Lalita Kumari held, inter alia, that a preliminary enquiry may be conducted in the case of medical negligence before registration of FIR, if necessary.

    In view of this, you may ascertain as to whether such a preliminary enquiry is being conducted by police on your complaint of medical negligence. So, have some patience and meanwhile provide all relevant documents and records, etc., to the police. You may also approach the senior officers of police. If the police fails to register FIR even after the preliminary enquiry (the maximum period for which is 15 days generally and in exceptional cases, by giving adequate reasons, six weeks), then you consider going to the Magistrate under Section 156(3) of the Cr.P.C. or filing a private complaint in court.

         


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

    in reply to: Change of name of company within one year of incorporation #1915

    The name of a company is mentioned in the Memorandum of Association of the company. Change of name of a company is possible by amending the memorandum of the company in the prescribed manner as laid down in the Companies Act, 2013. This will need passing of a special resolution at the general meeting of the company. Other formalities as prescribed, such as approval of the Central Government, would also be necessary.

    The relevant provisions are contained in sub-sections (2) and (3) of Section 13 of the Companies Act, and the relevant extracts of this section are as under:

    13. Alteration of memorandum.—(1) Save as provided in Section 61, a company may, by a special resolution and after complying with the procedure specified in this section, alter the provisions of its memorandum.

     (2) Any change in the name of a company shall be subject to the provisions of sub-sections (2) and (3) of Section 4 and shall not have effect except with the approval of the Central Government in writing:

    Provided that no such approval shall be necessary where the only change in the name of the company is the deletion therefrom, or addition thereto, of the word “Private”, consequent on the conversion of any one class of companies to another class in accordance with the provisions of this Act.

    (3) When any change in the name of a company is made under sub-section (2), the Registrar shall enter the new name in the register of companies in place of the old name and issue a fresh certificate of incorporation with the new name and the change in the name shall be complete and effective only on the issue of such a certificate.”

    The sub-sections (2) and (3) of Section 4, referred to above, are reproduced as under:

    “(2) The name stated in the memorandum shall not—

    (a) be identical with or resemble too nearly to the name of an existing company registered under this Act or any previous company law; or

    (b) be such that its use by the company—

    (i) will constitute an offence under any law for the time being in force; or

    (ii) is undesirable in the opinion of the Central Government.

    (3) Without prejudice to the provisions of sub-section (2), a company shall not be registered with a name which contains—

    (a) any word or expression which is likely to give the impression that the company is in any way connected with, or having the patronage of, the Central Government, any State Government, or any local authority, corporation or body constituted by the Central Government or any State Government under any law for the time being in force; or

    (b) such word or expression, as may be prescribed,

    unless the previous approval of the Central Government has been obtained for the use of any such word or expression.”

         


    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.

    If a charge sheet is filed in a criminal case, the accused gets the copies of the charge sheet and all statements and documents, as a matter of right under the provisions of the Criminal Procedure Code.

    However, where a closure report is submitted in a criminal case by the police, there is no specific mention in the Cr.P.C. about giving of such copies to the accused. The Cr.P.C. is silent on this issue.

    At the same time, there is no prohibition in Cr.P.C. that copies of closure report and statements / documents cannot be given to the accused where the criminal case is closed.

    So, you may try to make a request to the police as well as to the court (where such closure report is submitted) by filing an application for copies of the same. You may show your willingness to pay the legal copying charges. If necessary, you can even try to get these copies from police under the RTI Act.

         


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

Viewing 15 posts - 1,471 through 1,485 (of 2,167 total)