Bail in rape cases against the minor girl

Bail in rape cases against the minor girl. My brother has falsely been prosecuted for the offence of rape. The neighbour has lodged a FIR against him that he had committed rape while she was playing in the field. There was no evidence that she was playing in the field. No witness saw that the victim was playing in the field. That allegation is false and frivolous. The sessions judge has cancelled the bail on the ground that there is enough evidence that the accused has committed the offence. Now I am planning to approach the high court for the bail. Please suggest whether the high court can grant bail in this matter?

The girl was minor at the time of commission of offence. Therefore, your brother has committed the offence under the special law i.e. Protection of Child from Sexual Offences Act. 

If the medical report suggests that the girl was sexually exploited or subjected to sexual assault then it would be very tough to get bail from the High Court. Generally the court does not grant bail in sexual offences committed against a minor child unless the investigation has not been completed. 

You should wait till the submission of the charge sheet under Section 173(2) of the Code of Criminal Procedure (crpc). After submission of the charge sheet, the court may grant bail:

  • If there is no cogent evidence against the accused
  • When the prosecution failed to prove the incident
  • If prima facie no offence is made out against the accused
  • After filing of the charge sheet there is no apprehension that the accused may temper with the evidence or manipulate the witnesses
  • If the court thinks that accused is the sole bread earner and his incarceration may cause difficulty in contesting his case
  • There is no chance that the accused may not cooperate in the trial

If the investigating officer has recorded the statement of the victim under Section 164 crpc and there is medical evidence in support of the commission of offence, you should wait till the filing of the charge sheet.

You cannot take a plea that it was consensual sex because the girl (victim) is minor. The consent of minor is immaterial in the rape case. 

If there is no extreme urgency you should wait and let the investigating officer conclude the investigation. This is a special Act and bail is generally not granted by the court at the initial stage of investigation. 

My girlfriend habitually engaged in sex and vulgar chat with many people now threatening to file a false case against me

My girlfriend habitually engaged in sex and vulgar chat with many people now threatening to file a false case against me. I have been in a relationship with a girl since 2018. Everything was good until lockdown. We were in a live-in relationship. But the moment I came to my hometown she was having boyfriends behind my back. 

When I returned to my hometown and now I found out she was doing sex chating. Vvulgar chats all day night with like 40 plus boys and had 6-7 bfs. She is 22 and some boys are uncles, some are married, some are engaged like 35 of age, some are 32 and I found it via her gmail id.

Now I have so much anger inside me that she used my emotions. My parents are aware of her. She used to talk to them also with my sisters. She was betraying me the moment the long distance started and she was always like, I'm the most loyal girl, she always compared her to sita ji. Now I wanna tell her parents about her deeds that they have raised a pathetic person.

It's been 4 months I'm in depression, there is so much insecurity inside me. Her sister is saying if you tell anyone then I will frame you under rape case. What should I do to save myself in because I don't have trust on her family. She can do anything, so what should I do to save myself.

You both are major and have the capability to make decisions in your life. If you find that she has been indulging in sex chat or vulgar behaviour with many people, there is no need to keep relations with her. You are free to leave her and end the relationship with her. 

So far as the threatening is concerned, you did not commit any offence while living with her in the live-in relationship. That relationship was consensual and there was no compulsion or cheating on your part.

In this situation no offence has been made out against you. If you think that she may misuse or abuse the process of law by lodging a false first information report (FIR) against you, then you should first lodge an FIR against her for extortion and cheating.

She has misused you in the pretext of love and affection. Therefore, she has committed the offence of cheating because she has deceived you. Threatening to lodge false FIR is also an offence. Hence, you should lodge an FIR whenever you think that it is the last resort to get rid of these circumstances. 

Children of seller are challenging sale deed however the land was allotted to the seller by BDA

Children of seller are challenging sale deed however the land was allotted to the seller by BDA. Recently in 2021 I have purchased a BDA site from the first allottee "A" who is the sole and absolute owner. Children of seller are challenging sale deed, however, the land was allotted to the seller by BDA. Subsequently after the registration I took over the possession of the property. The allottee has 2 wives. 1st wife died 20 years back. He has 2 children with his 1st wife. 

He presently stays with his 2nd wife and he also has 2  children with his 2nd wife. Now the 1st wife's children have filed a civil suit against me falsely claiming the said scheduled property purchased by me is a joint family property. However it is very clear the property is a BDA allotted one and is backed with the proof.

Evidence such as allotment letter, possession letter, lease cum sale agreement, sale deed, khata and all the other documents are issued by BDA to the allottee from whom I have purchased the property. I need to know on what basis they filed the case against me claiming it as joint family property.? Can property allotted by bda be considered as joint family property?

The claim of the children of the seller is false and frivolous. He cannot claim that the property is ancestral because the BDA had acquired his land after the payment of compensation. The nature of property has changed after the allotment. Now it became the self-acquired property of each allottee. 

The seller got absolute ownership because it was his self-acquired property. Therefore, the children of the seller have no right to challenge the legality of alienation or transfer of property. The seller had unfettered right to transfer the land by way of sale. 

You should file a declaratory suit against the children of the seller. File a civil suit under Section 34 of the specific relief act. You should adduce the copy of sale deed, allotment letter issued by BDA, land acquisition notification and sale deed executed between seller and BDA. The court shall declare your right thereafter, no one can challenge your right in that land. 

New passport can be issued after closing of the criminal case

New passport can be issued after closing of the criminal case. I have a legal query regarding a new passport application hoping that you will understand my situation and reply to that. New passport can be issued after closing of the criminal case. Some years back I had a bike accident whose trial lasted for 2.5 years and I won the case in my favor and no charges was proved against me and case got closed/disposed (by the way those charges was not true they just framed against me and want to extort money from me through this case) than I paid full fees to the lawyer which was decided before the trial. 

At that time I forgot everything because this case was so much of a burden for me physically as well as mentally and by the way I have the original judgment copy (Hard (printout) and soft). So I applied for the new passport through a passport agent and told him about my situation. 

He said to me that you don't need to worry about your case because it is closed and I will be not asked about this at passport seva kendra but can be asked during police verification so just said "NO" that you don't have any open case if he checks in the system then show him the judgement copy say that case is closed also suggest me if possible bribe them for the fast process that's all he advised me. 

But I have some questions in my mind. 1) Do I need to worry? 2) Do I need to make any affidavit regarding this case? 3) Do I need any other documents regarding this case? It is not as good as it should be.

Now there is no criminal case pending against you. in this scenario the passport officer shall issue a new passport. no need to bribe the police officer in respect of the submission of a police verification report.  

If no criminal case is pending against the applicant there is no ground to reject the application for issuance of a new passport. If the officer does not issue a new passport then you can move a writ petition in the High Court under Article 226 of the constitution of India.

You should apply with the original document instead of fake one. The certified copy of order of the court is a relevant evidence to prove that you have been acquitted in that case. So you should adduce the certified copy of order of the court along with the application.

Who is the competent authority to grant prosecution sanction?

Who is the competent authority to grant prosecution sanction under section 19 of PC act? If the public servant is retired from the service the competent authority is bound to grant the sanction for the prosecution. In this respect please clarify who is the competent to grant sanction. I have retired from the service in 2015 and the anti-corruption court is taking cognisance in my case.

The prosecution did not present the sanction order. When my advocate objected the court said that sanction is not necessary. I am very afraid that the court is working under the pressure of the prosecution. Kindly save my life otherwise the court may convict me in that false case.

Asked from: Uttar Pradesh

Government is the sanctioning authority in respect of the sanction for prosecution under the Prevention of Corruption Act. You are an employee of the state government. Therefore, the Governor is the sanctioning authority in your case. The sanction must be valid otherwise the High Court may quash the proceeding.

You are entitled to claim sanction for prosecution if your service is subject to termination by the order of the government. If an officer has power to terminate you in disciplinary proceeding then sanction is not required. 

Sanction for prosecution is necessary if the accused is in service at the time of taking cognisance. After the retirement of a government servant the prosecution sanction is not required. Sanction is mandatory for taking cognisance. It does not require for the investigation and after retirement of the accused.

Husband has not been appearing in the court proceedings

Husband has not been appearing in the court proceedings. My marriage is 14 years old. I filed a case under the domestic violence act for maintenance and protection order. In that complaint I also asked for a residence order in the shared household. My husband never came to court. Court has passed a maintenance order. Now my husband is not paying rent or paying anything to me.  And has run away. I'm unaware of his whereabouts. What can be done? 

My advocate is not co-operating in this matter. He told me that you should search your husband and serve a notice upon him. I think he has connived with my husband therefore, he is taking his favour. This is a very strange situation and I am facing a lot of problems due to paucity of money. please help and suggest in this situation what I should do?

The court has power to execute its order if your husband does not appear in the court proceeding. When your husband has not been appearing in the court proceeding then the court might have passed an ex-parte order. that order is valid and the court can execute it. 

You should move an application before the court for the execution of its order. The court has power to issue a warrant against your husband and attach his property in the course of execution of the order of maintenance. 

No need to search your husband who is deliberately not appearing in the court. You should avail the existing remedy i.e. to pray from the court to attach his property. 

Maintenance is a legal right granted to the destitute wife under the Domestic Violence Act. If the husband has the sufficient means to maintain his wife but refuses or neglects then the court compels him to perform his obligation by passing an order of maintenance against him. 

This is the law prevailing in India towards the alimony of a wife. If the husband is deliberately disobeying the order of the court, his property shall be liable to be attached.

Can a flat owner construct a balcony which is not in the approved plan?

Can a flat owner construct a balcony which is not in the approved plan? The flat owner below my flat has illegally constructed balconies extending the roof of his balconies up to my balcony covering the entire wall. It is to mention that No balcony was originally provided for the ground floor by the builder due to the cellar below. Now he has constructed balconies almost extending up to the compound wall which is also a violation of cantonment rules. Due  to his illegal construction,  my view to the road from my balcony view is obstructed. What is the remedy sir to remove his illegal rods and asbestos from my balcony walls. 

In this situation the flat owner has no right to construct any kind of permanent structure without obtaining prior permission or approval from the concerned authority.

He has to prepare a modification plan and present it to the concerned authority for its approval. If the authority grants approval then he can construct those balconies. But it infers from your question that he has no valid permission. 

Therefore, you should move an application to the concerned development authority to stop the ongoing construction work. You have a right to make a complaint regarding an illegal construction. The authority shall take proper action against that person. 

Move a writ petition

If the concerned authority does not take any action on your complaint, then you have a right to approach the High Court under Article 226 of the constitution of India. 

Take the copy of complaint and file a writ petition for directing the concerned authority to stop the ongoing construction or demolish the illegal construction.

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Question: My 3bhk apartment is under construction, and it is located on the 10th floor. Am I allowed to request the builder to construct my balcony area to a higher load-bearing standard than the other balconies as per the construction plans? I intend to install a hot tub on the balcony, and I want to be extra cautious, even though the load is within the safer limits of the structure. Can I request a higher standard than what is mentioned in the approved plan, provided that I pay the incurred costs?

Asked from: Kerala

Yes, you can request the builder to construct your balcony area to a higher load-bearing standard than the other balconies, considering your intention to install a hot tub on it. Because that proposed strengthening will not make any external structural changes in the sanctioned plan.

However, you must ensure that you obtain approval from the relevant authorities for the proposed modifications and ensure that they comply with the building codes and regulations. 

Additionally, you should also make sure that the builder agrees to your request and provides you with a revised cost estimate for the construction work. You should also have a written agreement with the builder outlining the scope of work, costs, and timelines for completing the modifications. 

Overall, it is advisable to take the necessary precautions and be extra cautious to ensure the safety of your balcony and hot tub installation, even if it means incurring additional costs.

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Top floor owner wants to erect an illegal flat without permission of development authority

Top floor owner wants to erect an illegal flat without permission of the development authority. I am residing in a flat which is a 5 story building. The top story is in the ownership of a private limited company. That company wants to erect another floor without taking prior permission of the development authority. We are separate owners of 4 floors. Each floor has 6 flats, therefore, 24 flats owners are at risk of demolition if the company erects another floor without necessary permission from the development authority. Sir I want to know in this situation what would be the best legal recourse to stop the private limited company from erecting an illegal flat?

It is not appearing from your question that the top floor owner is doing any act to construct another floor. Unless and until the company does any act which has the effect that it is going to construct another floor you cannot take any action against the company.

Planning without any overt act does not constitute an offence or an act which is prohibited by law. There is no action on the part of the company which has the tendency to prove that it is trying to convert his illegal plan into reality.

If you have evidence to prove that the company is lurking to construct an illegal floor then you can file a civil suit for passing a temporary injunction against the owner of the top floor. Without having evidence you cannot get any relief from the court in the civil suit.

Thus, it is mandatory for you to collect some evidence before filing a civil suit against the company. Because the burden of proof lies upon you to establish the fact about the planning or design to construct an illegal floor. If the company is planning to construct another floor after taking requisite permission from the concerned authority then you will have no right to object.

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Whether pulling bra in a bus constitute offence in the IPC?

Whether pulling bra in a bus constitute offence in the IPC? A lady has threatened to lodge a complaint against me because I have pulled her bra in a local bus when I was traveling to my office. However, it was accidentally pulled but that lady is threatening to face legal action. In this situation, I want to know whether pulling bra in a bus constitutes offence? Please advise.

Yes, pulling someone's bra with the intension to outrage the modesty of woman would likely be considered an offense under the Indian Penal Code (IPC). Specifically, it could be considered sexual harassment, which is a form of sexual assault, and is punishable under Section 354A of the IPC. The punishment for sexual harassment is imprisonment for a term that may extend to three years, or with fine, or both.

It is important to note that such behavior is unacceptable and constitutes a violation of an individual's bodily integrity and dignity.

Infringement of bodily or personal integrity

Infringement of bodily or personal integrity refers to the violation of an individual's right to control their own body, physical autonomy, and dignity. This includes any form of physical violence, sexual assault, harassment, or unwanted physical contact.

Examples of infringement of bodily or personal integrity include:

  1. Physical assault or battery
  2. Rape or sexual assault
  3. Sexual harassment or misconduct
  4. Unwanted physical contact, such as touching or groping
  5. Forced medical procedures or exams
  6. Unlawful detention or imprisonment
  7. Torture or cruel, inhumane, or degrading treatment

In most countries, including India, such acts are considered criminal offenses and are punishable by law. It is important for individuals to be aware of their rights and to seek help if their bodily or personal integrity has been violated. This may involve reporting the incident to the authorities, seeking medical attention, and seeking support from friends, family, or advocacy organizations.