Dr. Ashok Dhamija

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  • in reply to: What is a warrant case? #1463

    As per clause (x) of Section 2 of the Cr.P.C., a warrant case is defined as a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

    And, as per clause (w) of Section 2 of the Cr.P.C. defines a summons case to be a case relating to an offence, which is not a warrant case.

    The procedure for trial of a warrant case by Magistrate is laid down in Chapter 19 of Cr.P.C., from Sections 238 to 250 of Cr.P.C.

         


    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.

  • A Government Order cannot override the specific provisions of a law enacted by the Parliament. So, if an order of the Government (including an Office Memorandum) is contrary to certain specific provisions of a duly enacted law / Act of a competent legislature, then it would be invalid to the extent of the inconsistency or the repugnancy.

    Likewise, a Government order cannot override a specific rule or regulation which has been made under the authority of a law.

    However, if the Government order does not run contrary to a law or rule but merely fills up the gaps in respect of which the law (or rule) is silent, then such Government order will not be held to be invalid.

    So, if there is a conflict between the two, the law will prevail over the Government Order. However, if the Government Order does not contravene the provisions of law, but merely fills up the gaps in respect of which the law (or rule) is silent, then such Government Order may be enforced by the courts and is valid.

    In this regard, please see the following judgments.

    In the case of Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 : AIR 1967 SC 1910, the Supreme Court held as under:

    “It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.”

    In the case of Union of India v. K.P. Joseph, (1973) 1 SCC 194 : AIR 1973 SC 303, the Supreme Court held that:

    “Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910] that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.”

    “To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area.”

    It may also be relevant to point out that Rules are generally framed by a Government under the authority given to it by a law / Act made by the Parliament / State legislature. It is generally called rule-making power, and the rules are called subordinate legislation or delegated legislation. Regulations are generally framed by an authority (such as, e.g., SEBI) other than the Government exercising the powers given to such authority under a law made by the Parliament / legislature. However, this nomenclature, though generally followed, may sometimes be interchanged.

    An Office Memorandum or a Government Order are the executive orders issued by the Government in exercise of its executive powers, and these may not be directly under any rule-making power given under a law.

         


    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.

  • In such a scenario, where the non-bailable warrant (NBW) issued against the accused person cannot be executed since he is absconding or is concealing himself, an application can be made to the court under Section 82 of the Criminal Procedure Code (Cr.P.C.) to declare him a proclaimed offender. Once it is done, the court has the power under Section 83 of the Cr.P.C. to pass order for the attachment of the movable and immovable property of such proclaimed offender.

    Further, where if it is proved that the accused is absconding and there is no immediate chance of his being arrested, the court has the power under Section 299 of the Cr.P.C. to record evidence of the witnesses in his absence.

    All the aforesaid sections, i.e., Section 82, 83 and 299 of the Cr.P.C. are reproduced below:

    82. Proclamation for person absconding.— (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

    (2) The proclamation shall be published as follows:—

    (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

    (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

    (c) a copy thereof shall be affixed to some conspicuous part of the Court house;

    (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

    (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

    (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

    (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).

    83. Attachment of property of person absconding.— (1) The Court issuing a proclamation under Section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, moveable or immovable or both, belonging to the proclaimed person:

    Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,—

    (a) is about to dispose of the whole or any part of his property, or

    (b) is about to remove the whole or any part of his property from the local jurisdiction of the Court,

    it may order the attachment simultaneously with the issue of the proclamation.

    (2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.

    (3) If the property ordered to be attached is a debt or other moveable property, the attachment under this section shall be made—

    (a) by seizure; or

    (b) by the appointment of a receiver; or

    (c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

    (d) by all or any two of such methods, as the Court thinks fit.

    (4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases—

    (a) by taking possession; or

    (b) by the appointment of a receiver; or

    (c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or

    (d) by all or any two of such methods, as the Court thinks fit.

    (5) If the property ordered to be attached consists of livestock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.

    (6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).”

    299. Record of evidence in absence of accused.—(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial, such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

    (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.”

         


    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.

  • in reply to: Limitation for recovery of loan given #1436

    The normal limitation period for filing suit for recovery of a debt / loan is 3 years. However, in your case, as late as in June 2015, the other party has made a part-payment of (Rs. 1 lakh) the loan. Therefore, in accordance with Section 19 of the Limitation Act, 1963, a fresh limitation period starts running from the time when such part payment was made. Therefore, the limitation for filing suit for recovery of this loan would now be up to June 2018.

    Section 19 of the Limitation Act is reproduced below:

    19. Effect of payment on account of debt or of interest on legacy.—Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:

    Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.

    Explanation.—For the purposes of this section,—

    (a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment.

    (b) “debt” does not include money payable under a decree or order of a 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.

  • In the Finance Act, 2017, there is a provision to insert two new sections in the Income Tax Act, 1961, namely sections 269ST & 271DA. The purpose of introduction of these new sections in the IT Act is to place restriction on certain cash transactions.

    It has been provided by these two new sections that no person (other than those specified in these provisions) shall receive an amount of Rs. 200,000 (two lakh rupees) or more,

    (a) in aggregate from a person in a day;

    (b) in respect of a single transaction; or

    (c) in respect of transactions relating to one event or occasion from a person,

    otherwise than by an account payee cheque or account payee bank draft or use of electronic clearing system through a bank account. This means cash payment of such amounts cannot be received.

    Any contravention to the said provision shall attract penalty of a sum equal to the amount of such receipt. [Note: this restriction is on the person who receives such cash payment, and not on the person who pays the cash amount.]

    However, the said restriction is not applicable to any receipt by Government, banking company, post office savings bank or co-operative bank.

    Initially, when these sections were introduced in the Income Tax Act, there was a lot of confusion that even if you withdraw cash from bank of Rs. 2,00,000 (two lakh) or more in a single day, then also it is prohibited and you may have to pay a penalty equal to the cash amount so withdrawn. This confusion was due to the reason that newly introduced Section 269ST was very widely worded.

    However, subsequently, by a Press Release issued on 5th April 2017 by the Government of India, Ministry of Finance, Department of Revenue (Central Board of Direct Taxes), it has been clarified that it has been decided that the above restriction on cash transaction shall not apply to withdrawal of cash from a bank, cooperative bank or a post office savings bank. It was also mentioned in the said Press Release that necessary notification in this regard was being issued. This Notification is available at this link.

    In view of this clarification issued by the Government, it should now be clear that the above prohibition or restriction of cash transactions of Rs. 2 lakh will NOT apply to withdrawal of cash from a bank.

    Newly introduced sections banning cash transactions of and above Rs. 2 lakh are reproduced below:

    269ST. Mode of undertaking transactions.- No person shall receive an amount of two lakh rupees or more—

     (a)       in aggregate from a person in a day; or

     (b)       in respect of a single transaction; or

     (c)       in respect of transactions relating to one event or occasion from a person,

    otherwise than by an account payee cheque or an account payee bank draft or use of electronic clearing system through a bank account:

    Provided that the provisions of this section shall not apply to—

      (i)       any receipt by—

      (a)      Government;

      (b)      any banking company, post office savings bank or co-operative bank;

      (ii)      transactions of the nature referred to in section 269SS;

     (iii)      such other persons or class of persons or receipts, which the Central Government may, by notification in the Official Gazette, specify.

    Explanation.—For the purposes of this section,—

     (a)       “banking company” shall have the same meaning as assigned to it in clause (i) of the Explanation to section 269SS;

     (b)       “co-operative bank” shall have the same meaning as assigned to it in clause (ii) of the Explanation to section 269SS.

    271DA. Penalty for failure to comply with provisions of section 269ST.- (1) If a person receives any sum in contravention of the provisions of section 269ST, he shall be liable to pay, by way of penalty, a sum equal to the amount of such receipt:

    Provided that no penalty shall be imposable if such person proves that there were good and sufficient reasons for the contravention.

    (2) Any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner.

         


    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.

  • One cannot be registered as a voter twice – whether in the same constituency or in different constituencies. This is as laid down in Sections 17 and 18 of the Representation of the People Act, 1950. Having two voter ID for registration as a voter twice may be an offence.

    I have already answered a similar question in detail and the answer to that question may be seen at the following link: http://tilakmarg.com/answers/is-it-an-offence-to-have-two-voter-ids-for-election-in-india/

    You should surrender one voter ID to the issuing authority.     


    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.

  • It does not matter much whether an agreement is printed on a letter head of the company, on a plain simple paper or on a stamp paper. What is important is whether proper stamp duty has been paid. If proper stamp duty has been paid on such agreement, then it does not make much difference even if such agreement is printed on the letter head of the company.

    There is an Act called the Indian Stamp Act, 1899. Section 17 of this Act lays down that “All instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution”.

    In Section 2(14) of this Act Instrument has been defined to include “every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded”.

    This is an Act which is supposed to have been made by the Parliament under its power of legislation under Entry 44 of the Concurrent List in the Seventh Schedule to the Constitution.

    Entry 91 of the Union List in the Seventh Schedule to the Constitution, power has been given to the Union to fix “Rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts”.

    Power with regard to rates of stamp duty in respect of documents other than those specified above in the provisions of the Union List has been given to the States vide Entry 63 of the State List in the Seventh Schedule.

    Article 268 of the Constitution lays down that even those stamp duties, which are included in the Union List, shall be levied by the Central Government, but these shall be collected by the States within their areas, and the duties so collected shall be assigned to the states wherein they have been collected.

    Now, various States have enacted their own Stamp Acts for their own respective areas (by way of amendment / repeal of the aforesaid Indian Stamp Act, 1899, in accordance with the provisions of the Constitution), and stamp duty rates have been fixed. These rates fixed by the respective states may have to be consulted and the stamp duty has to be paid accordingly on an agreement as per the prescribed rate. Once such stamp duty has been paid, it does not matter much how such agreement is printed.

         


    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.

  • Section 2(f) of the Right to Information Act, 2005, defines “information” as under:

    “(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;”

    It is clear from the above wide definition that Government Notesheets or the file notings are also covered within the definition of “information”. There should, therefore, be no doubt that copies of the note-sheets or the file notings in a Government department are also required to be supplied under the RTI Act. However, if the information contained in any note-sheet is exempted from disclosure under Section 8 of the RTI Act, then such notesheet need not be communicated. Of course, charges for photocopying, as prescribed, may be charged from the applicant.

    In this regard, it is pertinent to mention that vide Office Memorandum No.1/20/2009-IR dated 23rd June, 2009 Government of India [Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training] has clarified (as under) that copies of such file-notings may be provided under the RTI:

    “It is hereby clarified that file noting can be disclosed except file noting containing information exempt from disclosure under section 8 of the Act.”

    There have, in fact, been a large number of cases wherein copies of official note-sheets have been obtained by citizens under RTI from various departments.

         


    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.

  • While I am not aware of the full facts of your case, depending on the actual facts and circumstances of the case, generally following types of legal actions may be possible:

    (1) A case under Section 500 of IPC for criminal defamation, if such offence is made out in the facts of the case. Please note that it is a non-cognizable offence, and therefore, the police will not register FIR and you’ll have to file a private complaint in the court.

    (2) A civil suit seeking damages / compensation for defamation (if the facts disclose it).

    (3) Depending on the facts of the case, sometimes other offences may also be made out (such as, for example, forgery, if the false news contains forged documents).

    (4) If the crime in respect of which the alleged false news has been published is pending before a court of law for adjudication, and if the nature of the false news is such that it is likely to interfere in the course of justice, you may seek injunction against publishing of any further false news in this regard. Sometimes, depending on facts, in such a scenario, it may even amount to a contempt of court [see, the definition of “criminal contempt” in Section 2(c) of the Contempt of Courts Act, 1971, which is reproduced at the end of this reply].

    (5) If any such false news has been broadcast on TV media, then a complaint may also be made to the News Broadcasting Standards Authority (NBSA), which is an independent body set up by the News Broadcasters Association, whose task is to consider and adjudicate upon complaints about broadcasts. At present, NBSA is headed by the former Supreme Court judge Justice (Retd.) R.V. Raveendran.

    (6) In case of false news being published in a newspaper, a complaint may also be made to the Press Council of India.

    Definition of “criminal contempt” in Section 2(c) of the Contempt of Courts Act, 1971:

    (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—

    (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or

    (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

    (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;     


    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.

  • Filing of a false affidavit in a criminal court amounts to giving of false evidence in a judicial proceeding, which is punishable under Section 193 of the Indian Penal Code (IPC). Since you have referred to a criminal court, let me point out that if such false evidence was given with the intention of procuring conviction in a criminal case, then depending on the nature of the case in which conviction was sought to be procured through such false evidence, offences under Section 194 or Section 195 of IPC may also be committed, which carry more punishment. In any case, filing a false affidavit in a judicial proceeding will amount to an offence at least under Section 193 of IPC, which is punishable with imprisonment up to 7 years and also with fine.

    Section 195 of the Criminal Procedure Code lays down that in respect of these offences (i.e., under Sections 193, 194, 195 of IPC), cognizance cannot be taken EXCEPT on the complaint in writing of that Court (in which court such false evidence was given) or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.

    And, such court has to follow the procedure laid down in Section 340 of the Cr.P.C. to make a complaint of such false evidence, as is mentioned in Section 195 of Cr.P.C.

    Therefore, the procedure in brief is like this:

    • You should make an application before the court where this false affidavit was filed, along with relevant evidence.
    • Such court may conduct a preliminary enquiry, if necessary, as provided under Section 340 Cr.P.C.
    • Record a finding to that effect, i.e., about the false evidence given to such court.
    • Make a complaint thereof in writing;
    • Send such complaint to the Judicial Magistrate of the first class having jurisdiction.
    • Take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate.
    • Bind over any person to appear and give evidence before such Magistrate.
    • On receipt of such complaint, the Judicial Magistrate will conduct the trial in accordance with law, under the relevant provisions such as under Section 193, 194, 195, of IPC, etc., as the case may be.

         


    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.

  • It appears that by withdrawal of the case, you meant compounding or compromise in the case.

    Since a case under Section 498A of IPC is generally registered with the police by way of FIR, and the police then files the charge sheet in the court after completing investigation, in such cases, the withdrawal of case may be done by the Public Prosecutor or the Assistant Public Prosecutor under Section 321 of the Cr.P.C. It is so because such a case is prosecuted by the State and not by the individual, even if the initial complaint was given by an individual.

    Compounding of a case is done under Section 320 of Cr.P.C., wherein both parties arrive at a compromise, and the case can be compounded with or without the permission of the court, as per the provisions of Section 320 Cr.P.C.

    However, the offence under Section 498-A IPC is NOT compoundable, either without or with the permission of the court.

    But, if both parties have arrived at a compromise in a matrimonial dispute such as this, you can file an application under Section 482 Cr.P.C. before the high court for quashing of the criminal proceedings in the case under Section 498A IPC. The high court has inherent powers to quash such criminal proceedings in a matter of this nature on the basis of the compromise between the parties. For more details on this issue, please read: http://tilakmarg.com/forum/topic/can-stalking-offence-under-section-354-d-ipc-be-compounded-by-parties/.

         


    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.

  • If the divorce petition has been simply withdrawn without the court giving any liberty to file a fresh divorce petition, then also a fresh divorce may be possible if there is a fresh cause of action or if there is a continuing wrong or cause of action (such as continuing cruelty or continuing of any other ground on which divorce is sought).

    Your second question appears to be arising out of a feeling that if the petitioner has not reunited with the respondent, and if they are not living together, then how would a fresh or continued ground of cruelty could be made out. However, please note that under Section 13 of the Hindu Marriage Act, divorce can be sought on many grounds and some of these grounds do not require living together (in fact, sometimes, the opposite may be true) or cruelty.

    For example, divorce can be sought on the grounds of:

    • voluntary sexual intercourse with any person other than his or her spouse; or
    • treated the petitioner with cruelty; or
    • has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
    • has ceased to be a Hindu by conversion to another religion; or
    • has been incurably of unsound mind, or has mental disorder of a serious kind, etc., or
    • has been suffering from a virulent and incurable form of leprosy; or
    • has been suffering from venereal disease in a communicable form; or
    • has renounced the world by entering any religious order; or
    • has not been heard of as being alive for a period of seven years or more, etc.;

    Therefore, even if husband and wife have not reunited and not living together, one or more of these grounds may come into existence afresh or may continue to exist. And, it may thus be possible to file a fresh divorce petition even if the parties did not reunite after withdrawal of the first divorce petition. Of course, it will depend on the facts and circumstances of each individual case and no hard and fast rule can be laid down.

    In fact, even the ground of cruelty may continue to exist or may give rise to a new cause of action despite the fact that the parties are living separately. For example, it has been held that filing false cases against the spouse may amount to cruelty. Having sexual intercourse with a person other than the spouse may also amount to cruelty. These are just a few examples. Such types of cruelty may not depend on the living together of husband and wife.

    In this regard, it is pertinent to point out that in the case of K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court held as under:

    “In our opinion, the High Court wrongly held that because the appellant husband and the respondent wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a precondition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse’s life miserable. This is what has happened in this case.”

    Therefore, even if both parties are living separately after the withdrawal of the first divorce petition, a fresh cause or action or a continuing cause of action may still arise on the basis of which a fresh divorce petition may be filed. As I mentioned earlier, of course, it will all depend on the facts and circumstances in each individual case. No hard and fast rule can be laid down.

         


    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.

  • Where a joint petition is filed for mutual consent divorce, the terms for the divorce might already have been settled between the two parties, including maintainance, if any, to be paid to the wife. Therefore, in such a situation, it may not be mandatory to file the ITR and income details. However, wherever it is filed, of course, the other party may get access to the same.

    On the other hand, if a divorce petition is filed only by one party (especially, by wife) and she also claims maintenance from her husband, it may be necessary to give details of income. In such a situation, the husband may also be required to provide his income details.

         


    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.

  • The offence of stalking under Section 354-D of the Indian Penal Code is a non-compoundable offence within the meaning of Section 320 of the Criminal Procedure Code. Therefore, generally speaking, it is not possible to compound such offence.

    At the same time, if both parties have compromised the matter, then a petition under Section 482 of Cr.P.C. can be filed in the concerned High Court for quashing of the case on the basis of such compromise.

    The Supreme Court [Narinder Singh v. State of Punjab, (2014) 6 SCC 466] has held that power conferred in the High Court under Section 482 of the Cr.P.C. is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Cr.P.C.. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

    The Supreme Court further held that when the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

    (i) ends of justice, or

    (ii) to prevent abuse of the process of any court.

    While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

    It was further held that such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

    On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
    Thus, on the basis of the compromise, you can file a petition under Section 482 Cr.P.C. before the high court for quashing of the criminal proceedings. If the high court, in its discretion, depending on the facts and circumstances of the case, agrees to do so, then the case can be quashed on the basis of the compromise. Generally, the high court may agree if it finds that the compromise is genuine and not under threat, etc. But, it is not guaranteed that it will agree in every such case.

    In fact, recently, the Delhi High Court quashed criminal proceedings in a case involving offence under Section 354D of IPC in the case of Yumnam Marjit Singh v. State, which was decided on 27 May 2017.

         


    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.

  • You have the following options if you have failed to file the case of cheque bounce within the stipulated period of one month after cause of action arises for cheque bounce case:

    (1) If the cheque is still during its validity period (of 3 months or 6 months, as the case may be), try depositing the cheque again in the bank; if it bounces again, you can issue a fresh notice to the issuer of the cheque.

    (2) Section 142 of the Negotiable Instruments Act which mandates that the complaint in respect of cheque bounce case is required to be filed within one month of the cause of action arising under Section 138, also says that “the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period”. So, you can try filing the complaint with an application for condonation of delay, if you have some reasonable justification for the delay in filing the complaint. If the court is satisfied, it may still take cognizance.

    (3) File a summary suit for recovery of money from the issuer of the cheque.

    (4) Try to negotiate with the issuer of cheque for return of the money, if possible.

         


    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.

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