One of the accused has lodged an FIR against me. The trial of that accused has been going on in the sessions court. Total three persons are accused in that case. In the subsequent case the investigation is still in progress. But the sessions court has withdrawn the case from the judicial magistrate. My advocate says that I should file a revision against the order of sessions court. Can I get any relief from the High Court?
This is an interlocutory order hence you cannot file revision in the High Court. The withdrawal of the case from the judicial magistrate is illegal. Investigation is still in progress. Hence, the court cannot form an opinion at the stage of investigation that alleged offence is triable by the court of sessions.
Section 190 of the code of criminal procedure empowers the judicial magistrate of first class to take cognisance. Judicial magistrates have the power under Section 156(3) crpc to monitor the investigation. He can pass any appropriate order to ensure fair investigation. That power is not vested in the court of sessions.
Upon conclusion of the investigation, the investigating officer submits a report under Section 173(2) crpc. He can either submit a charge sheet or file a final report. In the later condition the judicial magistrate can close the case. Therefore, the case will not reach the stage of trial. Hence, withdrawal of case from the magistrate will yield no result.
Move a petition in the High Court
In this condition you should move a petition in the High Court under Section 482 of the code of criminal procedure. Withdrawal of a case at the stage of investigation is an abuse of process. It violates the provision of section 209 crpc.
The court of session cannot take cognisance unless the judicial magistrate commits a case under Section 209 crpc. Section 209 empowers the judicial magistrate to commit the case to the court of session if offence is triable by the sessions court. In Ganeshan vs State (2011) 5 CTC 474 the Madras High Court has held that
The court of sessions has no power to direct a magistrate to commit any case to his file. Nor sessions court has power to withdraw a case from the magistrate to his file.
Hence, withdrawal of case by sessions court without committal order is illegal. It is against the provision of Section 209 crpc. The judicial magistrate, after perusal of the charge sheet, will decide to commit the case to the court of session. If the offence committed by the accused is exclusively triable by the sessions court, the magistrate will commit the case. Section 209 exclusively comes within the domain of judicial magistrate. Intervention of sessions court and withdrawal of case is ultra vires.
The High Court will remand the case to the Magistrate because investigation has not been completed. You should file the afore said petition as soon as possible. Sessions court has withdrawn the case from judicial magistrate in violation of section 209 crpc.
Four accused have murdered my mother in a proeprty case. Three of them have been facing trial because a charge sheet has been filed against them. One person, a cleric, is not arrayed as accused in my case. Prosecution is protecting that accused person in murder case. One of the accused admitted that the vehicle and money was provided by said cleric. Accused have taken shelter in that cleric’s home for two months. The prosecution arrested them from his home but not mentioned in the case diary. Later on prosecution filed a charge sheet against three accused only. What should I do?
The statement of the co-accused is considered as relevant evidence. Therefore, the court can array him as an accused on the basis of his statement. If you have any independent evidence either direct or circumstantial then you should approach the court to summon that cleric as an accused.
File an application under Section 319 crpc
You must have prima facie evidence against him. That evidence must infer or indicate his participation in commission of the offence. One co-accused has admitted that the vehicle was provided by the cleric. I suppose that the investigating officer has ignored this fact and did not collect evidence towards the vehicle. Because the prosecution wanted to protect him from accusation.
Assistance in commission of crime constitutes offence of abatement. Abetment is punishable under Section 109 of the Indian Penal Code. When abetment is connected with the murder then accused will be punished under section 302/109 IPC.
Harbouring or sheltering an offender is an offence under Section 212 IPC. That cleric has committed aforesaid offences. In devoid of evidence regarding harbouring and facilitating in commission of offence, his name has struck out from the charge sheet. Now, one co-accused has brought his name in the commission of murder.
Therefore, you should pray to the court to summon him as accused under Section 319 crpc. In Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 the Supreme Court has held that
Where strong and cogent evidence occurs against a person from the evidence led before the court, which is more than prima facie case as exercised at the time of framing of charge, the court can summon that person as accused under Section 319 of the code of criminal procedure.
For application under Section 319 you must have cogent evidence against the cleric. The evidence must lead to his culpability. In Raj Kishore Prasad v. State of Bihar and another 1996 CrLJ 2523 the Supreme Court has held that in order to apply Section 319, it is essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial.
Also Read: What to do when police is doing unfair investigation?
The court has recorded the statement of a co-accused. His statement infers that the cleric is also involved in the crime. He has provided vehicle and money to the accused for commission of crime. He also harboured the accused after the commission of murder.
Hence, the court should add him as an accused and issue summons under Section 319 crpc. The court can refrain the prosecution from protecting an accused person in murder case. If the court rejects your application then you should approach the High Court under Section 482 crpc.
My boyfriend is torturing and sexually harassed me for five years. He thinks that his company has fired him because of me. However, he is working in another company on the same job status but he used to create problems in my job. Every time he proved me guilty. I was in mental pain for the last 5 months and I got to know that he is working without getting fired from job. Can i file a complaint against my boyfriend for mental harassment and sexual orientation?
In the present facts you cannot take legal action against your boyfriend. You have no evidence to prove sexual harassment. For the filing of FIR you must have evidence to prove that he has committed a cognisable offence. Current facts of your case don't suggest that he has committed any offence.
You both have attained the age of majority. The sexual or bodily relationship has been established by the mutual consent. There is no evidence that your boyfriend has committed sexual harassment by force, cheating or playing deception. Hence, you cannot initiate legal action against him for rape or sexual harassment. You have no evidence to prove that your boyfriend is torturing and harassed you sexually.
I want to cancel the marriage after the engagement. I met a girl on 14.01.2022; had an engagement (roka) on 19.01.2022. I met her from 15.01.2022 to 22.01.2022. After that she went to another city (Mumbai); joined her office. After that she used to talk very less. Several times we had issues; one day after a mild heat of argument from both sides she blocked me. After that I politely said we don't have understanding; compatibility and it is better to call off this wedding. I also said the same to her parents too and whatever token money they have given for the marriage venue shall be paid from my side.
But, her family and she kept on threatening me. Some time they say they will charge my family for asking for dowry; mentally harassing her daughter if we call off this wedding. I never had any physical relationship with the girl. I just spent time with her from 15.01.2022 to 22.01.22, hugs; forehead kisses. Kindly tell me what are the legal actions that may be taken against me? I feel that instead of marrying, we should call off this wedding so as to avoid future complications.
Asked from: Madhya Pradesh
If you want cancelling your marriage after the engagement, it's important to remember that the engagement is like an agreement instead of a final contract. Therefore, any party to the engagement has right to repudiate it on a valid ground. Marriage is a final contract which confers legal responsibility on the parties.
Cancellation of the engagement is possible on valid grounds, and the aggrieved party is entitled to compensation and recovery of expenses incurred in the engagement ceremony. Be prepared to pay expenses and return all gifts received. Communicate clearly with the other party and their family. Be ready to return any token money you received in the engagement ceremony.
If the cancellation is due to dowry demands, the guilty party is liable under the Dowry Prohibition Act. You said that your fiancé's family is making false allegation of dowry. If you prove that the alleged allegation of dowry demand is false, then your fiancé's family is not entitled to get compensation in lieu of cancellation of engagement.
If you are threatened with false charges of dowry or harassment, document these threats for possible legal action. When they lodge FIR against you for demand of dowry then approach the High Court for the quashing of that FIR. Evidence of threatening will further empower the court to quash the FIR.
There was no physical relationship between you and your fiancé, so she cannot file a criminal case for sexual harassment. Hugging and kissing with free consent does not constitute an offense unless has the sexual overture. Consensual relationships provide protection against false accusations of sexual harassment in case of cancellation of the engagement.
However, the property was your father’s self acquired property but after execution of will, your mother became the real owner. Therefore, your mother can execute a registered will. Your father has devolved all self acquired property to his wife through a registered will. Consequently, there is no dispute towards the ownership of the property.
Your mother is an absolute owner of these properties. Hence, she has an unfettered right to alienate through a registered will. Your elder brothers have no right to challenge the will if it has been executed by the free consent of your mother.
Also Read: Can sister claim share in ancestral property?
Testator’s free consent and soundness of mind are mandatory conditions for a valid testamentary will. That mental condition must exist at the time of making the will. Exclusion of other legal heirs (your elder brothers) does not render that the will is invalid. In P. N. Balakrishna & Ors v. H. B. Bhavani Shankar & Ors AIR 2010 (NOC) 739 (KAR.); the Karnataka High Court has held that:
Merely because the testator excluded other heirs from Will. It cannot be said that Will is shrouded with suspicious circumstances. Will having executed in sound state of mind in presence of attestors hence, execution of Will cannot be doubted.
You should register the will in presence of two attestators. Explicitly state in the will, reasons for not giving property to three sons. Your mother should appear personally in the court of registrar at the time of registration of will. She should identify the property before the registrar. The registrar will enter the state of mind of the testator in the will. That entry shall form an evidence of free consent and sound mind of the testator.
My sister has an illegal relationship with uncle. We had a friendship with a person 1 year ago and we considered that person as uncle but that uncle got physical with my elder sister by luring her with money. Both of them have left the city and they are living elsewhere. What should I do?
Your uncle has committed cognisable offence hence, you should immediately lodge an FIR against your so called uncle for the offence of kidnapping and rape. Lodge an FIR under Section 363 & 376 of the Indian Penal Code. If your sister is minor in age then you should also lodge FIR in the POCSO Act.
The investigating officer shall trace them from their mobile location or receiving inputs from other sources. Don’t cause delay in lodging FIR because otherwise you have to explain the delay. However, there is no limitation period for recording of FIR because offences are punishable with more than three years of imprisonment. But you should take prompt action and help the investigating agency to find them.
Your sister has been in an illegal relationship with the uncle (accused). If she is minor in age (below eighteen years) then her consent is immaterial. Absence of consent is mandatory for the offence of rape if your sister has attained the age of majority.
I am Bangladeshi Muslim man Software Developer by profession married to an Indian Muslim woman. My wife is not ready to leave India. Can husband give talaq on such a refusal? Our marriage took place in City of Bijapur, State of Karnataka, India where my wife's family resides with consent from both families under Muslim Sharia Law at the house of the bride. My wife is a project manager working for Wipro in India and I am working in Bangladesh. It has been almost 4 years since we have been married, and it seems my wife is unwilling to move to Bangladesh. She gives a reason that it will be difficult for her to have a job in Bangladesh.
I tried to assure her that I will be responsible for her full maintenance, and she won't have to worry about it. I also got offered a job By an Indian Software company which would have given me the opportunity to live with her in India and work. But she told me that she is not comfortable about me moving to India and working from there. She does not make her intentions clear when I tried to talk to her mother and brother. She got angry at me and asked why I tried to talk to them without noticing her.
It has been too long and I am facing tremendous pressure and questions from my family and relatives as to why I am not living with my wife and what my plan for the future is. Question Under the circumstance is it valid for me to raise talaq if my wife refuses to move in with me? Since I am not in India and not an Indian Citizen, can it be remotely done?
Asked from: West Bengal
Marriage is performed in India therefore, the Indian law will prevail in your case. However, you can file a case in Bangladesh but the court cannot ignore the law prevailing in India and international personal laws. Any decision in violation of Indian law will be illegal and you cannot enforce it in India.
Also read: Execution of foreign judgment in India
You can pronounce talaq but must prefer the talaq-ul-ahsan. Pronounce talaq in each consecutive tuhr or period of menstruation. According to Muslim personal law, it is not mandatory for the husband to state reason for talaq. Hence, you can pronounce talaq because the wife is not ready to leave India and live with husband in Bangladesh.
You can pronounce talaq from Bangladesh but intimate it to your wife. Intimation is necessary for enforcing the decree of the Bangladesh court in India. Living apart is a ground of divorce in Muslim law however, wife has some rights when she is living separately.
Related: Can I divorce for marrying another man?
I have purchased property with Maangalya Builder from Bangalore in September 2018 with Buy back agreement stating 100% ROI in the period of 18 months under subvention scheme. After payment of almost 90% cost the builder not obeying buy back clause of sale agreement. The property cost was 6188520 without registration. And I paid 10% which is 618852. And financed about 54 lakhs of loan via HDFC out of which 51 lakhs have been disbursed based on demand letter. As it was subvention scheme, I was not expected to pay PEMI. Following documents i have received from Builder in above regards:- 1. Receipt of Booking amount. 2. Allotment letter of unit. 3. Sale agreement 4. Supplementary Agreement which contains buyback date and return. 5. Tri Party agreement between Builder buyer and Bank.
The tenure got over in March 2020, but till date (March 2022) Builder has not executed the buyback agreement and not refunded any amount. Moreover I was forced to pay PEMI from September 2020 till date to keep my credit rating not getting impacted. I have done several follow ups with the builder for buy back and the return of the amount + agreed committed profit + PEMI paid by me till date, but there is no response from the builder.
Please let me know my options, if consumer court + RERA could be an option, if I proceed legally. I am looking for the following:- 1. Stopping PEMI without affecting my credit rating. 2. Return of Original Booking amount 618852 3. 100% committed profit of 618852 4. PEMI return which is approximately around 600000 4. Loan closure 5. Penalty compensation from Builder for not honouring the agreement for 2 years already.
This is a case of breach of agreement by the builder. You have performed your part under the sale agreement and paid almost 90% of the total cost of the flat. Construction work is still in progress and you have not received flat as per the schedule mentioned in the sale agreement.
According to the agreement, the builder agreed to buy back the flat at the current market rate if he fails to deliver the flat on time. He did not deliver the flat on the agreed date. Therefore, the buy back clause became operational.
Also read: What to do when builder is not returning booking amount?
Hence, the builder should buy your flat as per the current market price. You should send a legal notice to the builder and inform him that you are ready to sell this flat according to terms of sale agreement. However, the bank is also a party in the said agreement, hence, you should also send an enclosure to the bank also.
Buy back scheme is very much like an assured return on real estate investment. It prompts the buyers to invest in the ongoing project and get assured return on their investment. Under the buy back scheme, the builder is bound to buy the property at the current prevailing rate. You intimate the bank to stop the EMI and proceed further to recover the remaining amount out of the sale proceeds of the flat.
In your case, the builder has breached the agreement and not obeying the buy back clause of the sale agreement. Hence, he shall be liable to pay the excess interest to the bank. This is a tripartite agreement hence, the sale agreement is also binding on the bank. You cannot get the booking amount or any other payment which you have made under the sale agreement.
You‘ll get the balance amount after deduction of loan and other expenses from the sale proceeds. The builder will buy back your flat and the bank will recover the loan amount. If anything remains in your hands after deducting those amounts then that will be your profit.
I am a doctor and my patient’s son has filed a false FIR in medical negligence case. His mother was admitted to my hospital for surgery. Her condition was not good and I have informed him about the imminent danger of her life. Therefore, I have taken his consent for the surgery. During the surgery his mother died due to excessive bleeding. Then he has filed a false case under Section 420/338/201 of the Indian Penal Code. What should I do?
The aforementioned first information report (FIR) is false if you have conducted the surgery according to the standard procedure or accepted line of treatment. Negligence is the failure to meet a standard of behaviour established to protect society against unreasonable risk. It is a breach of duty which is not expected by a prudent man in discharge of his duty.
As a medical professional, you must follow the standard operating procedure (SOP) in the treatment of patients. However, a doctor need not possess the highest professional skill but it is sufficient if he has followed the accepted line of treatment. Any dereliction from accepted practice may constitute offence if the patient has suffered bodily injury.
A simple lack of care or error of judgement in a particular accident does not constitute negligence [Jacob Methew Versus State of Punjab and another, AIR 2005 SC 3180].
Quashing of false FIR of medical negligence
If you think that there was no negligence on your part then you should approach the High Court for the quashing of the false FIR. You should wait for some time because quashing is not easy at the onset of investigation. Let the investigating officer conduct the investigation.
Also read: My baby became blind due to negligence of doctor
The investigating officer will record the opinion of doctors towards the line of treatment you have adopted in the treatment of the informant's mother. If the investigating officer finds no evidence regarding the negligence then she shall submit a closure report under Section 169 of the code of criminal procedure. In vice versa he shall submit a charge sheet under Section 173 crpc.
When you find that the investigation is being conducted without recording of statements of other doctors then you should immediately move a quashing petition. In Jacob Methew case, the Supreme Court has held that
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.
If the investigation is carried on at the initial stage then you should wait for a while. When the investigation officer is not following the guidelines of the Jacob Mathew case then you should move a quashing petition and also seek protection against arrest as an interim relief.
