Delay in trial is a ground for quashing of proceedings under Section 482 crpc. I have been facing a criminal trial since 2001 without framing of charges by the trial court. The trial court has not framed the charges against me on the basis of the charge sheet. However, the trial court has taken cognisance of the offence punishable under section 323/504/506 IPC, on the charge sheet. From the last twenty years, the prosecution has failed to approach the court and only a date has been fixed in my case. In this condition what is the remedy to get rid of this bogus trial?
Asked from: Rajasthan
You should file a petition before the hon'ble high court under Section 482 of the code of criminal procedure for the quashing of proceedings. You are facing the agony of a criminal trial for the last about twenty-two years without your fault.
Speedy trial is a fundamental right of every citizen under Article 21 of the constitution of India. In Hussainara Khatoon v. Home Secretary State of Bihar, (1980) 1 SCC 81 the hon'ble supreme court has held that "No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21."
In Abdul Rehman Antulay v. R.S. Naik, (1992) 1 SCC 225 the hon'ble supreme court reiterated the importance of speedy trial and held that:
Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
The right to a speedy trial, derived from Article 21, encompasses all stages of the legal process, including investigation, inquiry and trial. It ensures that every individual involved in a legal proceeding is entitled to a prompt and expeditious resolution at each step of the process.
This right acknowledges the significance of timely justice and safeguards against unnecessary delays or prolonged proceedings that may infringe upon an individual's fundamental rights.
Undue delays in legal proceedings can potentially undermine the accused's ability to mount an effective defence. Such delays may lead to various adverse circumstances, including the death, disappearance, or unavailability of crucial witnesses. As time passes, memories fade, witnesses may become inaccessible, or evidence may become compromised or lost.
These factors can significantly impair the accused's capacity to present a robust defence and can result in an unfair disadvantage. Therefore, it is essential to ensure that legal processes proceed in a timely manner to uphold the accused's right to a fair trial and the opportunity to present a strong defence.
Offence of hurt and criminal intimidation are not serious offences. Hence, it is in the interest of justice to quash such a proceeding because inordinate delay in trial is causing prejudice to the accused.
In P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, Pankaj Kumar v. State of Maharashtra, (2008) 16 SCC 117 and Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355 has approved the law laid down in Antulay case (1992) 1 SCC 225; and held that
If the Court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges or the conviction as the case may be, may be quashed unless the Court feels that having regard to the nature of offence and other relevant circumstances quashing of the proceedings may not be in the interest of justice.
Your case is fit for the quashing because the allegations are general and such a delay has infringed your fundamental right enshrined in Article 21 of the constitution of India. Approach the high court under section 482 crpc for quashing of criminal proceedings including charge sheet.
Also read: Accused cannot produce evidence at the stage of framing of charges
Question: Family members can act on behalf of society's members. In registered co-operative society in Gujarat, there is President, Secretary, Tresury and other Members, totaling to 8 to 11 strengths. Normally a share certificate holder who are owning their property are members of such society. But if he is not able to devote time can his close family members such as Mother/Father/Brother /Sister be member of Society. Pls advise.
In a registered cooperative society in Gujarat, the eligibility for membership is typically determined by the society's bylaws and the relevant provisions of the Cooperative Societies Act of Gujarat. The specific rules regarding who can become a member may vary from society to society, so it is important to review the society's bylaws for accurate information in your specific case.
Generally, cooperative societies prioritize granting membership to individuals who are shareholders or owners of property within the society. However, the bylaws may provide provisions for the transfer or nomination of membership in certain situations.
In the case where a share certificate holder or property owner is unable to actively participate in the society due to personal reasons, such as not being able to devote time, it is possible that the society's bylaws may allow for a close family member, such as a mother, father, brother, or sister, to be nominated as a representative or authorized member on behalf of the share certificate holder.
To obtain precise information on whether family members can become members in such circumstances, you should consult the society's bylaws or governing documents. If the bylaws do not explicitly address this issue, you may need to seek clarification from the cooperative society itself or consult with a legal professional specializing in cooperative law in Gujarat. They can provide guidance based on the specific regulations and practices governing cooperative societies in your jurisdiction.
Share Certificate
In India, a share certificate is a document issued by a cooperative housing society to its members who own flats or units within the society. The share certificate signifies the ownership of shares in the society, which correspond to the member's ownership of a specific flat or unit.
The share certificate typically contains information such as the member's name, the flat/unit number, the number of shares allocated to the member, and any other relevant details pertaining to the membership and ownership rights.
Shareholders or share certificate holders in a cooperative housing society have certain rights and privileges, including:
- Voting rights: Shareholders are generally entitled to vote in the society's general body meetings and elections.
- Participation in decision-making: Shareholders can actively participate in discussions and decision-making processes related to the management and functioning of the cooperative society.
- Dividend entitlement: Depending on the society's bylaws, shareholders may be eligible to receive dividends or a share in the profits earned by the society.
- Transfer or sale of shares: Shareholders have the right to transfer or sell their shares to other eligible individuals, subject to the rules and regulations of the cooperative society.
It is important to note that the specific rules and regulations regarding share certificates and the rights of share certificate holders may vary depending on the state or union territory in India and the specific bylaws of the cooperative society.
Therefore, it is advisable to refer to the relevant cooperative laws and regulations applicable in your jurisdiction and consult with legal professionals specializing in cooperative law to understand the precise meaning and implications of share certificates in your particular context.
Can builder ask court to allow him to refund the buyer in installments. Can builder ask court to allow him to refund the buyer in installments. The litigation expenses and agony expenses. If yes, what counter arguments can be told to the judge to force him to pay me in lumpsum. Possibility is that the builder will default in installments after a while then what to do. It is a consumer case. What does RERA say about modus operandi of refund process by builder. Are there any previous judgements on this process.
Asked from: Uttar Pradesh
Regarding your question about a builder requesting the court to allow installment-based refunds, it is possible for a builder to make such a request. However, the final decision would depend on the discretion of the court based on the circumstances and the applicable laws in your jurisdiction.
In a consumer case, if the court allows installment-based refunds, it is crucial to carefully review the terms and conditions set forth by the court. These terms may include the specific amounts, timelines, and any penalties for defaulting on the installment payments. It is important to consider the credibility and financial stability of the builder when evaluating the feasibility of installment payments.
If you have concerns about the builder defaulting on the installments in the future, you may present counterarguments to the court. Some possible counterarguments could include:
- Requesting a lump sum refund: You can argue that a lump sum refund is more favorable and provides you with immediate financial relief and closure. You may emphasize any financial hardship or need for the funds to support your case.
- Builder's financial stability: If you have evidence or concerns about the builder's financial instability, you can present this information to the court. Highlighting any past defaults, insolvency issues, or ongoing legal disputes involving the builder may strengthen your argument for a lump sum refund.
- Consumer protection laws: Depending on your jurisdiction, consumer protection laws, including those related to real estate and construction, may offer specific provisions that protect the rights of homebuyers. You can cite these laws and regulations to support your request for a lump sum refund.
As for the modus operandi of refund processes by builders under the Real Estate (Regulation and Development) Act, 2016 (RERA), it is essential to review the specific provisions and regulations applicable in your jurisdiction. RERA typically mandates certain refund mechanisms and timelines to protect the rights of homebuyers, but the specific details can vary by state. The RERA confers certain responsibility over the builder.
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Question: Triple talaq after the delivery of child is possible or not? I want to divorce my wife because she is a characterless lady. She is now pregnant and I am doubtful whether she is pregnant by me or any other else. In this situation the idea of divorce should be stayed. I want to know whether can I pronounce talaq after delivery of child according to the Muslim law applicable in Sunni Muslim in India?
In India, the personal laws governing divorce for Sunni Muslims are primarily governed by the Muslim Personal Law (Shariat) Application Act, 1937. Under this law, the concept of "talaq" exists, but it has undergone changes through subsequent legal developments.
In September 2021, the practice of "triple talaq" (pronouncing talaq three times in one sitting) was declared unconstitutional by the Supreme Court of India in 2017. This ruling stated that instant triple talaq is not a valid form of divorce and must be accompanied by appropriate legal procedures. The court directed the government to legislate on the matter.
The Muslim Women (Protection of Rights on Marriage) Act, 2019 was subsequently enacted to address the issue of instant triple talaq and make it a criminal offense. The act provides for imprisonment and a fine for any person who pronounces instant triple talaq.
I would be better for you to adopt the process of talaq-ul-sunnah and it is still a legal and valid process of pronouncement of talaq. Talaq-ul-Sunnah refers to the form of divorce prescribed in Sunni Islamic law, which follows the teachings and practices of Prophet Muhammad (peace be upon him).
Talaq-ul-Sunnah is considered the recommended or preferred form of divorce within Sunni Muslim jurisprudence. In Sunni Islamic law, Talaq-ul-Sunnah can be pronounced in two ways:
- Talaq-ul-Raj'i (revocable divorce): This form of divorce allows the husband to pronounce a divorce to his wife while she is in a state of purity (not menstruating) and without having had sexual intercourse during that period. Following the pronouncement of Talaq-ul-Raj'i, the wife enters into a waiting period called 'Iddah, which lasts for three menstrual cycles or three months (whichever is longer). During this period, the husband has the right to revoke the divorce and reconcile with his wife without the need for a new marriage contract.
- Talaq-ul-Ba'in (irrevocable divorce): This form of divorce is a more severe and final form of divorce. It is pronounced when the husband intends to terminate the marriage irrevocably, without any possibility of reconciliation or revocation. Talaq-ul-Ba'in takes immediate effect, and the couple is permanently separated. Reconciliation is only possible if the wife subsequently marries another man, consummates the new marriage, and then becomes widowed or divorced from that subsequent husband.
It is important to note that the specifics of divorce procedures may vary depending on local customs, cultural practices, and interpretations of Islamic law within different Sunni schools of thought. Therefore, it is advisable to consult with a qualified Islamic scholar or a family law attorney well-versed in Islamic jurisprudence to obtain accurate and detailed guidance on divorce procedures specific to your situation.
Can I file a suit for declaration for my second marriage as valid? Wife of first marriage is threatening to take legal action against me when he knew about my second wife. I am in love with my second wife and after taking her consent I married in local temple. We both are happy but when the first wife came to about it she has been consistently abusing and threatening me on phone. Due to fear I am not resuming my job. She is very cruel and can cross any limit to harass me. I am thinking about declaration of my second marriage from the court.
Asked from: Haryana
It appears from the facts of your case that you solemnised second marriage while the first marriage was still subsisting. Therefore, the second marriage is void. You should know about the conditions of a valid marriage. It is established fact and it also appears from your admission that your first marriage is surviving or prevailing.
Section 5 of the Hindu Marriage Act, clearly and explicitly prohibits solemnisation of second marriage while the spouse (wife or husband) of the first marriage is still alive. Therefore, your second marriage is invalid under the provisions of Hindu Marriage Act.
A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) neither party has a spouse living at the time of the marriage.
Section 5(i) Hindu Marriage Act
You have knowingly solemnised second marriage in the subsistence of first marriage. This act amounts to an offense of bigamy. Your first wife can initiate criminal proceedings against you under Section 494 of the Indian Penal Code.
Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 494 IPC
Therefore, in the prevailing circumstances declaratory suit is not maintainable. You should try to settle the dispute with mutual understandings of both wives. Don't think about filing a suit for declaration of second marriage valid. This marriage is void, hence, you have no efficacious legal remedy.
Also Read: What to do when in-laws denying marital status of daughte-in-law after death of their son?
Question: Can I sell my property after passing of decree in a civil suit? In 2017, a property dispute was settled by a decree in my favor by the honorable civil court, and there are currently no stay orders associated with the property in question. The petitioner has filed an appeal in the senior division, which is currently pending before the court. There are no pending litigations recorded in the registry office. Now, we are interested in selling a share of the property in question. Is it permissible to sell the share of the suite property? Alternatively, can we transfer the share to another partner of the suite property? I kindly request your guidance and opinion on this matter.
The property is still a suit property; however, the appellate court has not passed any stay order regarding the execution of decree. In this situation, you can sell the property without the consent of the appellate court.
A transfer pendente lite is not illegal ipso jure but remains subservient to the pending litigation. In Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593] the Supreme Court while interpreting Section 52 of the Transfer of Property Act observed that:
the words ‘so as to affect the rights of any other party thereto under any decree or order which may be made therein’, make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto.
AIR 1956 SC 593 page: 602, para 25
Therefore, there are no legal obstacles preventing the transfer of the property in question, either through a sale deed or by transferring it to another co-owner of the property. You have the freedom to choose the method by which you wish to transfer the property.
Question: Wife failed to prove cruelty but I want to withdraw my defence. In 2020, my wife filed for divorce, but I contested it with strong evidence. However, it has been three years and the petitioner evidence stage has just begun. I am considering withdrawing my defense since she has submitted no evidence of cruelty. However, I am concerned if she can claim joint property that is not under the jurisdiction of the Delhi court, and if she can still be granted a divorce. Thank you.
If your wife is unable to prove cruelty, which was the basis for seeking a divorce, the court will likely dismiss her case. As the burden of proof lies with your wife, it is not necessary for you to withdraw your defense. However, it is important to note that you should not give your wife an opportunity to win the case by not presenting any evidence in defense.
The court will carefully review the evidence presented by your wife, and if she is unable to prove that you were cruel towards her, the court will dismiss her case. This will hold true regardless of whether or not you present any evidence in your defense or counter her case.
Question: Some residents are misusing our common terrace and causing nuisance. Our residence is situated in a four-story apartment building, with a common terrace located above our floor. Unfortunately, some of the other residents frequently use this terrace for recreational activities such as playing cricket, cycling, and running, which generates significant noise and disturbance within our apartment. We are seeking advice on any available legal options to address this issue.
One option is to check if your apartment complex has any by-laws or rules regarding the use of the terrace. If there are such rules in place, you can bring the matter to the attention of the building management or the resident welfare association (RWA) and ask them to enforce the rules to stop the noise.
If there are no specific by-laws or rules in place regarding the use of the terrace, you may want to consider approaching the police or local authorities with a complaint of nuisance. If they are causing nuisance which may breach the peace and tranquility in the society, then the authorities can take action against those who are causing nuisance. Police can take a bond from them to maintain peace and tranquility.
You may also want to consider talking to the residents involved directly and requesting that they be more considerate about their behavior on the terrace. If the problem persists, you may need to escalate the matter to the building management or the authorities.
Question: Stopping of Pension or getting pension in part of my deceased father. My mother died in 1996, and in 1998 my father got second marriage. My father was a govt employee and now the pension is being completely acquired by my stepmother. She took all the retirement benefits and did a lot of misdeeds with me. I am 30 year old and even do not have my own home, because it is subjugated by my stepmother and his two children. Is there any way of claiming part in pension or stop the pension that my stepmother is getting. Kindly help in that case.
Family pension is only available to the dependents of retired government servants, and not to those who are able-bodied. However, if a child is disabled or handicapped, they are entitled to receive a portion of the pension as a matter of right, in addition to the pension received by the other dependents. You are not entitled to get pension because you are an abled person.
Question: Hello, we are in the early stages of launching our startup in India and would like to engage an advisor to help ensure that we comply with all legal requirements during the launch process. Could you please provide us with your pricing information for this type of service?
Sure! It's a great idea to have a legal advisor on board during the launch process to ensure compliance with all relevant laws and regulations. Here are a few things to keep in mind when searching for an advisor:
- Look for an advisor who has experience in the specific industry or sector your startup is operating in. This can be especially important in ensuring that you are aware of any industry-specific regulations or laws that may apply.
- Make sure that the advisor is licensed to practice law in India and is in good standing with the bar association.
- Ask for references and check them before engaging an advisor. It's important to work with someone who has a good track record and positive reviews from previous clients.
- In terms of pricing, some advisors may charge a flat fee for their services, while others may charge an hourly rate. Make sure to clarify the pricing structure upfront and get a detailed breakdown of the costs involved.
Overall, it's important to prioritize finding an advisor who is a good fit for your specific needs and can provide valuable guidance during the launch process.
