Police have lodged a false case under section 294 IPC, is there any chance to get remedy from the High Court?
Facts in brief: In this alleged complaint the complainant is the police itself. No eye witness was there. Neither investigation officer has investigate any independent witness. Moreover, the incident took place at 11:45 AM and a complaint was registered at 13:16 PM. But in a written statement in front of the magistrate IO has said the incident took place at night.
Sir, the complainant has mentioned in the complaint that I along with my friends were standing behind the auto and singing a song, but in the complaint they didn't mention the auto no. Neither during the investigation IO has mentioned anything nor have they taken any statement from the auto driver. If I challenge this complaint in an honourable High court, is there any chance I get some relief?
The timing and place of the incident are vital facts in your case. It is mandatory for the police officer to prove that the indecent or obscene act was committed in the public place. Therefore, the statements of the auto rickshaw puller and eye witness become vital to establish this case.
When police has lodged the false case
You should approach the High Court for quashing if the police has lodged the false case. Falsity alone may be a ground for quashing this false case. In absence of those statements, the complainant cannot prove that you have committed such an offence. Moreover, there is a contradiction regarding the timing of the incident. The complaint shows that the offence was committed in broad daylight. But the complainant’s statement before the magistrate shows that it happened at night.
This type of contradiction will harm the prosecution case and infers that no such incident has happened. Therefore, the High Court, in the interest of justice, can intervene and quash the entire proceeding.
Quashing of false criminal case
You should approach the High Court to quash the instant criminal proceeding. The Supreme Court has held in the State of Haryana vs Bhajan Lal [1992 Supp (1) SCC 335] that the court may quash the false and frivolous criminal proceeding:
Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
The contradictory statement of the complainant, his failure to identify the auto rickshaw puller and to record the statement of eyewitness constitute that no offence has been made out against you under Section 294 IPC.
Statements of eye witnesses are mandatory to prove that the offence was committed at a public place. If no eyewitness is present, it proves that no one has heard the obscene song. Hence, you can prove from the records of this case that no offence under section 294 IPC has been made out against you.
If you approach the High Court, you’ll get appropriate relief. This case is false and frivolous. If you have evidence to prove the motive of the complainant behind bringing such a case, then you will definitely get relief. The high court may quash this criminal proceeding.
My neighbour has stopped my construction work: what should I do? My neighbour has stopped my construction work. I have fenced my boundary wall (approved by Nagar Nigam ) with an iron grill. My neighbour objects to this and is not allowed to get plaster in this area. Please advise me. What can I do against my neighbour, who has stopped my work?
If you have obtained the necessary permission from the appropriate authority, your neighbor has no right to impede your construction work. Any attempt to do so is illegal and may lead to a breach of peace. In such a case, Section 145 of the Code of Criminal Procedure (CrPC) provides a quick remedy.
To take legal action when your neighbor stops your construction work, you should file an application with the nearest executive magistrate, informing them of your neighbor's illegal activity. If this is not possible, you can inform the nearest police station.
In the latter case, the station house officer will visit your premises and can take two actions to prevent further disturbance. Firstly, they can send a report to the executive magistrate to take action under Section 145 of the CrPC. Secondly, they can ask your neighbor to furnish a bond under Section 151 of the CrPC.
In either case, your neighbor will not be able to object to the plastering work on your fences. As you have the necessary permission from a competent authority to fence your premises, no one can legally oppose or intervene to stop your construction work.
Sections 145 and 151 of the Code of Criminal Procedure serve as preventive measures to maintain peace and tranquillity by preventing individuals from engaging in illegal activities. This is a summary procedure, and the relevant authority will act swiftly to address the situation in their jurisdiction. You can choose either of the procedures mentioned above to take legal action against your neighbor.
How can I take possession over my father’s house? Is there any legal formality before taking such a possession? There is a house owned by my father. Both my father and mother expired. How to take possession over my father’s house? There are two daughters as legal heirs, me and my elder sister. The house is of G+1 and the built area of the floors are unequal.
There was an attempt for an amicable settlement where I was given the option to take the floor that has 75% of constructed area as compared to the other one.
Since I am not ok with it , I suggested a vertical partition leaving the common passage. But my elder sister and her husband did not agree. Now they occupied the entire house and enjoyed the rental income of the other floor as well. When we tried to enter the premises they locked the gate so we reached the police station.
But it did not work as they were influenced by the local political power. We filed the partition suite and it is in progress. Is there any legal procedure that will help to enter the premises and stay there till the verdict for the partition suite is given.
There is no dispute that it is your father’s self acquired property. He has died intestate i.e. without making a testamentary will. In this condition the legal heirs are entitled to inherit this house. He (your father) had two daughters hence, daughters are the legal heirs.
How to take possession over father’s house?
In your case one daughter has illegal possession over the entire property. Therefore, you should initiate a mutation proceeding in the municipal corporation. This property should be mutated in the name of both daughters. Mutation is evidence of possession.
When you move the mutation proceeding your sister cannot oppose it because she cannot deny your legal heirship. Collect the death certificate of your father and file an application for mutation.
At the same time you should move an application under Section 145 of the Code of Criminal Procedure (crpc). That application will be filed in the court of the Executive Magistrate. Since, there is no dispute regarding the title and legal heirship hence, the Magistrate will give you possession over the house.
You have filed a partition suit in civil court. It is a good decision because the civil court is competent to decide the right of legal heirs. In the same civil suit you should claim permanent injunction and declaration of your right. The proceeding under Section 145 crpc is fast and effective. Hence you should try that procedure and get possession over the house.
Can the NHAI take Partial acquisition of house under the Land Acquisition Act? Is there any law relating to acquisition of house? NHAI has acquired my land whereon my house is situated. As per the acquisition scheme the NHAI will not acquire my entire house. Therefore, the compensation will be given to a portion of that house only which has been acquired by the NHAI. I want to take action against the partial acquisition of my house. Please guide.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has replaced the Land Acquisition Act, 1894. The purpose of enacting a new law is to provide fair compensation to those whose land is taken away.
Partial acquisition of house under the Land Acquisition Act 2013
Section 94 of the aforesaid Act 2013 provides that “this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired.”
Hence, the NHAI cannot acquire only a part of the house if the owner of the house desires to acquire it entirely. You can raise objections against the partial acquisition of your house. The Collector will determine your objection under Section 23 of the aforesaid Act.
If only a portion of the house is acquired it will deprive the owner to enjoy the benefits of the entire property. Therefore, section 94 is enacted to acquire the entire house or building if its owner requests to do so.
If there is a dispute that proposed land acquisition will acquire a portion of house or building then the Collector shall refer the determination of such a dispute to the Authority concerned and shall not take possession of such land until after the question has been determined.
If the portion of a house of building comes under the land acquisition scheme the government or any other authority shall acquire the entire house of building as per the mandate of Section 94(3).
The provision of section 94 is mandatory therefore, NHAI cannot acquire only a part of the house. Section 94 says that “this Act shall not be put in force for the purpose of acquiring a part only of any house…….” The word “shall” makes it mandatory to not acquire only a part of the house or building under the Act of 2013.
Objection against acquisition of a portion of house
You should file an objection before the Collector against the partial acquisition of your house. The Collector will determine the objection before passing the award of compensation. If you think that the authority may dispossess you forcefully from the land then you should approach the High Court. File a writ of mandamus in the High Court under Article 226 of the Constitution of India.
The High Court may prohibit the authority to dispossess you without prior determination of objection and invoking the provision of Section 94.
How to protect my house which is given as the bank guarantee? My father-in-law signed as a guarantor for a loan (to an unknown person from a loan shark). He put home papers as collateral (but the house is on mother-in-laws name, not father-in-law). My mother-in-law expired last year. My wife is the only child. What is liability towards such a loan?
That guarantee was void ab initio. Your father in law had no right in that property. The said property was the self acquired property of your mother in law. Property papers prima facie prove the right of your mother in law. Hence, your father in law had no right to alienate or transfer that property in the lifetime of your mother in law.
Since your mother in law was alive at the time when the house was presented as a bank guarantee. Therefore, your father in law had no right to present that property as collateral for the loan. A guarantor who is not the owner of the property cannot keep it as a collateral for the loan. In this scenario you should file a civil suit for declaration of your right and cancellation of collateral.
After the death of your mother in law her daughter and husband became entitled to inherit that property. Both have equal share in that property. But so far collateral is concerned, it is void from the beginning. Hence, the bank cannot claim that the bank guarantee is legally valid.
Bank guarantee is void ab initio
According to Section 6 of the Transfer of Property Act, a person cannot claim a right in property in which he has only spes successionis. In devoid of title or right in the property the guarantee is void. Spes successionis means a chance of succession. It states about the mere possibility that a person may have the property in succession after the death of the current owner.
If your mother in law might have made a testamentary will or gifted that property to her daughter, then your father in law would have no right in the property. Hence, there was a doubt towards the guarantor’s ownership in the property when it was submitted as a collateral.
However, after the death of your mother in law your father in law became 50% shareholder in that property. But in such a situation the bank guarantee is void ab initio. When the bank guarantee is void from the beginning then the bank cannot claim that guarantee is valid because the guarantor, afterward, got 50% share in the property.
File a civil suit
Your wife accrued 50% share in that property. Since that property has been given as bank guarantee hence, she should immediately file a declaratory suit under Section 34 of the Specific Relief Act. The court shall declarate her right in the property because she is the legal heir of the deceased owner.
So far as bank guarantee is concerned, she should claim cancellation of collateral because that guarantee is void ab initio. She can claim both rights in the same civil suit. Make the bank as a necessary party.
SARFAESI proceedings against the co-owner of the property. I am currently fighting Divorce (since 2016) & DV (since 2017) cases in separate courts. We also have a flat in joint ownership (purchased in 2014 and I am the 1st owner) which is in his custody. In Oct 2018, I stopped paying my share of EMI in a joint account, since even after repeated requests he denied me access to the flat and threatened me. Ever since I stopped paying my share of EMI, I started receiving recovery calls for the loan EMI, society maintenance, electricity bill (which has only his name on it) and also recovery of his credit cards.
I had already informed the bank’s loan dept. in 2019 (in writing) about both ongoing cases and also provided my number and email ID for further communications. Just last month (Nov 21), I received a call from the bank recovery dept and they informed me about the notices sent for nonpayment of EMI and that even the court would serve notice.
I informed them that I did not receive any notice from the bank or the court pertaining to the flat. I asked them to email me the copies as I was not aware about it. I received the following documents: 1) Demand Notice under Sec 13(2); dated 6-11-2019. 2) Possession Notice; dated: 12-2-2020. 3) Foreclosure letter & 4) Account statement. It is a joint loan taken for the flat where my husband is the 1st applicant and I am the co-applicant.
He has put up his hand stating he is jobless since 2017 and asked me to provide him maintenance. He is not even paying maintenance towards the child, even after the MM court passed an order on the same in 2018. Arrears for the same have reached Rs.3.5 lakhs. Please advise what can be done pertaining to the property? I am going through a lot of mental and financial stress. This flat is my only hope to recover something.
You have defaulted in repayment of loan amount. Therefore, the bank has the right to initiate proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [SARFAESI Act]. You should initiate proceedings with the bank for the settlement of the loan. The bank can settle the loan in a few installments.
In this situation you have to discharge your financial liability and start the repayment of the loan. You are a joint owner of this property hence, your responsibility cannot be absolved because there is matrimonial acrimony between co-owners. This is an exclusive affair than the matrimonial disputes.
You should file an application before the Debt Recovery Tribunal (DRT) for extension of time and stay of the proceedings. You did not receive the notice issued under Section 13 of SARFAESI Act. Hence, you must have a reasonable opportunity to reply to that notice. Giving fair opportunity to reply to notice is the principle of natural justice.
The DRT may stay the proceeding and give you an opportunity to reply to the notice. In the replay, you can show your hardship in the repayment of the loan. If you are willing to discharge your liability and start repayment of the loan then the bank may convert the outstanding amount to be paid in some installments.
So far as maintenance case is concerned, you can move an application under Section 128 of the code of criminal procedure (crpc) for the enforcement of order of maintenance. Husband is bound to maintain his wife and children even if he is jobless.
There is no period of limitation under Section 128 crpc for the enforcement of maintenance order. Hence, you can move an application even after three years of passing the order of maintenance.
Insurance policy not renewed after receiving premium. My wife lagged behind in paying her life insurance premium for April and May, hence her policy went on hold. But later she paid the premiums and even paid a little extra. Then she kept paying it till the month of September and as she was diagnosed with Muscular Dystrophy she claimed for the disability rider in her life insurance policy.
We got a response that our policy is still on hold since June and the insurance company will conduct a medical test before reinstating it. And as my wife had already been diagnosed with MD, her results obviously came out to be of a sick person. And then they denied us the claim and terminated the policy. What should we do in this case?
Asked from: Maharashtra
The health insurance contract is related to the category of life contracts. A policy of health insurance is for insuring against the risk of disease. The contract of health insurance, like that of life insurance made in consideration of premium. When the insurer receives the premium it has an effect that the contract between insurer and insured become complete.
In your case the insurance company had been receiving the premiums towards the policy. It enables you to take all the benefits available under insurance policy. Whether an insurance policy is on hold or inactive is the fact within the specific knowledge of the insurer. It was the liability of the insurer to intimate the insured person towards the status of policy before receiving premium.
If the insurer does not inform the insured person about the status of policy but receiving premiums, it proves that the policy is renewed. The rule of estoppel will apply in this case and the insurer shall be stopped to take any plea which tends to disentitle the insured person to take benefits of policy.
In your case the insurance company has accepted the premiums with a fine in respect of late payment. Accepting premiums reflects the conduct of the insurance company that it has renewed or reinstated the policy. You have paid all the premiums and two of them i.e. premium for the month of April & May with a fine.
It was the duty of the insurance company to conduct a medical test immediately after receiving the premiums. If not done on time the insurer cannot refuse the policy.
Accepting premiums with fines proves that the policy has not been terminated. Refusal to renew the policy after receiving a claim of reimbursement from the insured person is an arbitrary action of the insurer. Such a refusal is prohibited.
In Biman Krishna Bose v. United India Insurance Company Ltd. (2001) 6 SCC 477; the Supreme Court held that the insurer cannot arbitrarily refuse to renew the policy.
A renewal of an insurance policy means repeating the original policy. When a policy is renewed, it extends the original terms from the expiration date. Essentially, renewal revives the old policy and substitutes the obligations of the old policy, unless stated otherwise. Though a new contract may come into effect upon renewal, it adheres to the same terms and conditions as the original.
If an insurance company, which has the exclusive right to provide insurance, refuses to renew a mediclaim policy based on irrelevant reasons, any disease contracted during the gap period won't be covered under a new policy due to the exclusion clause for pre-existing conditions.
If the policy cannot be renewed retroactively, insurance companies could exploit this to deny renewals arbitrarily, depriving the insured of coverage for diseases that arose during the lapse period. This unjust refusal to renew must be corrected. Therefore, if an insurance company's refusal to renew a policy is found to be arbitrary, the policy should be renewed from the original renewal date.
You should serve a legal notice to the insurer for the reimbursement. If the insurer does not reimburse then you should file a case before the District Consumer Forum. Insurance policy not renewed after receiving premium by cheque is directly affecting your right.
