Obstruction in construction despite obtaining necessary permissions. I have obtained the required permissions from the local Municipal Corporation for constructing my residential building. However, despite providing proper curtain cover to prevent dust and disturbances, my neighbours have been causing unnecessary disturbances and hindrances to our labourers and to the public road during the construction process. I kindly request advice on what strict legal actions or warnings can be issued to my neighbour to prevent interference in my construction activities.
Asked from: Uttar Pradesh
You should submit an application to the Sub Divisional Magistrate under Section 133 of the Criminal Procedure Code (CrPC) to address the obstructions created by your neighbour. Their actions are illegal, as if their rights are being infringed upon, they should file a complaint with the appropriate authority instead of causing disturbances or hindrances on public roads.
Under Section 133 of the Criminal Procedure Code (CrPC), Magistrates possess authority to address public nuisances or wrongful acts impacting the public. This provision enables them to issue orders to eliminate or mitigate nuisances and prevent their recurrence.
Key provisions include the issuance of conditional orders for the removal of nuisances within specified timeframes, immediate orders in urgent situations endangering public health or safety, and penalties for non-compliance with Magistrates' orders.
Additionally, affected individuals retain the right to appeal Magistrates' decisions to higher judicial authorities. Essentially, Section 133 empowers Magistrates to swiftly tackle public nuisances, safeguarding public welfare, safety and removing nuisance causing by neighbour. Obstruction in construction despite obtaining necessary permissions is amount to nuisance. Aggrieved person should invoke section 133 crpc.
Section 133 crpc
Section 133 of the Code of Criminal Procedure (CrPC) empowers a magistrate to issue a conditional order for the removal of a nuisance. Here's a breakdown of the key points:
- Authority: District Magistrate, Sub-divisional Magistrate, or any other Executive Magistrate authorized by the State Government [1].
- Circumstances for Order: The magistrate can issue a conditional order if they are satisfied, based on a police report, other information, or some evidence, that:
- There's an unlawful obstruction or nuisance in a public place, public way, river, or channel.
- A trade/occupation, keeping of goods, or construction activity is causing harm to public health or comfort.
- There's a risk of fire or explosion due to a building or substance.
- A dangerous animal needs to be controlled or removed. [1]
- Content of Order: The order directs the person responsible for the obstruction/nuisance to remove it within a specified timeframe [1].
Essentially, Section 133 provides a mechanism for swift action against public nuisances that can potentially endanger public health, safety, or comfort. For more legal help please visit Kanoon India.
FIR lodged under prevention of corruption act against other than public servant. I am working under a service provider agency which is hired by the rural department for providing different experts for inspection of work conducted under the public works department rural areas. A work order given to a firm in December 2022 for completion of check dams in the rural area prone to flood. After completion of construction that firm has to obtain a completion certificate cum quality certificate from me. I have inspected the work done by the said firm and found so many anomalies in respect of quality and measurement of the work, then stopped the further proceeding. He contacted the anti-corruption bureau and caught me in a false trap. Now an FIR has been lodged and I am arrested. Can I challenge the FIR because I am not a public servant?
Asked from: Uttar Pradesh
You cannot challenge the legality of the First Information Report solely on the basis that you are not a public servant. You are an outsourced employee working in the department on a contractual basis, with remuneration paid by the government. It is immaterial that the salary has been disbursed by the service provider after receiving funds from the government.
More importantly, you qualify as a public servant due to your involvement in discharging a public duty. Conducting work inspections and issuing completion certificates in accordance with tender specifications falls under the purview of public duty.
Section 2(b) of the Prevention of Corruption Act 1988 (PC Act) defines "public duty" as a responsibility discharged in the interest of the State, the public, or the community at large.
(b) “public duty” means a duty in the discharge of which the State, the public or the community at large has an interest;
Section 2(b) of the Prevention of Corruption Act 1988
Section 2(c) of the Prevention of Corruption Act 1988 defines public servants. As per sub clause (viii) of clause (c) of Section 2 of the PC Act, any person who holds an office by virtue of which he is authorised or required to perform any public duty is said to be a public servant.
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty
Section 2(c)(viii) of the Prevention of Corruption Act 1988
Therefore, you are indeed a public servant, as defined by Sections 2(c) and 2(b) of the PC Act. The construction work for public purposes must adhere to tender terms and conditions in the larger public interest. Your responsibility includes inspecting the work and issuing completion certificates, demonstrating that you are discharging a public duty.
Rather than challenging your status as a public servant, you may seek to quash the FIR by demonstrating that the trap proceedings were false and orchestrated by the Anti-Corruption Bureau (ACB) team in violation of established procedures. If you have prima facie evidence indicating that you never demanded gratification, not given favour to the contractor for issuing completion certificates and that all proceedings are false and fabricated, the High Court may quash the FIR. For more legal help please visit Kanoon India.
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Allegations of kidnapping and death threats: my father-in-law's filed fir. My father in law filed an FIR for the offence of kidnapping and threatening us if we return to our city. I solemnised marriage with my girlfriend when her father came to know about it and he has filed a criminal case against me. Our marriage is against the will of my father in law. He is an influential person and has good contacts in the administration. We are very afraid about the consequences when we go to our city. My parents are trying to settle this matter by engaging him to talk about the matter in the presence of respectable members of our society but failed to achieve anything.
Asked from: Uttar Pradesh
In this situation you need protection against the threatening and harassment from the police authorities. If you both are an major and of sound mind you have the right to solemnise marriage without consent of parents. FIR is not maintainable because no offence of abduction is made out in your case.
No need to file a counter case against the father in law. You should file a writ petition in the high court under Article 226 of the constitution of India for seeking protection order. No need to file habeas corpus writ because in these circumstances it is not maintainable as per the dictum of Kanu Sanyal vs DM Darjeeling, AIR 1979 SC 814.
You should file a writ petition because allegations of kidnapping is false. In the judgment and dictum of Lata Singh versus State of Uttar Pradesh (2006) 5 SCC 475 you are entitled to seek protection against such a threatening and false FIR, the High Court may direct the Superintendent of Police of your district to provide protection while you stay in your city. Additionally, the court may instruct the SP not to arrest the petitioner i.e. you in pursuance of the FIR. For more legal help please visit Kanoon India.
Related: Boyfriend threatening and causing violence: How to protect my girl?
There is compromise with my wife in a criminal case. My wife is living with me after compromise but the court refused to quash criminal case initiated by my wife under 498 A IPC. There was some dispute between me and my wife therefore, my wife had left my house and was living with her parents. In the influence of her parents she lodged an FIR for the offence of cruelty and demand of dowry. After a lapse of six years we had decided to live together hence, compromised all matters and settled our dispute out of the court. Then I moved an application to the court for dropping the criminal case. But the court has refused. My wife is not ready to appear in court, the court muharrir said that a warrant shall be issued against my wife if fails to appear in court. I am facing great problem how to settle this criminal case.
Asked from: Uttar Pradesh
The trial court's refusal of your application is based on the fact that the offences of cruelty and dowry demand are non-compoundable, as per Section 320 of the Code of Criminal Procedure. This section categorises certain offences as compoundable, meaning they can be settled between the parties involved upon the will of the victim. However, Section 498A IPC and Sections 3 & 4 of the Dowry Prohibition Act are not designated as compoundable offences under Section 320 CRPC. Therefore, the trial court's decision to deny your application appears appropriate.
In this situation, your next course of action would be to file a joint petition in the High Court under Section 482 of the Code of Criminal Procedure (CrPC) for the quashing of the entire criminal proceedings. The High Court possesses exceptional power under Section 482 CRPC and can consider special circumstances to determine whether it is expedient and in the interest of justice to allow the prosecution to continue.
Additionally, in Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors. [(1998) 5 SCC 749], the Supreme Court held that the sole purpose of Section 482 crpc is to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits.
Your wife is living with you and she is not willing to carry on this criminal proceeding. Therefore, chances of conviction are very bleak. If this proceeding will carry on and your wife becomes hostile the court cannot hold you guilty. So this proceeding became a futile exercise for both complainant and the court. Hence, such a proceeding should be quashed in the interest of justice.
In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [(1988) 1 SCC 692], the Supreme Court established that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features present in a particular case to determine whether it is expedient and in the interest of justice to allow a prosecution to continue. If the court deems that the chances of an ultimate conviction are slim and no useful purpose is likely to be served by continuing with the criminal prosecution, it may quash the proceedings.
In B.S. Joshi & Ors vs State Of Haryana & Anr AIR 2003 SC 1386 the Supreme Court has held that:
In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.
If the offence is non-compoundable the high court has power under Section 482 crpc to quash that proceeding for the ends of justice. Provisions of Section 320 crpc does not limit the inherent power of the high court vested by Section 482 crpc. The high court may quash the criminal proceeding despite the fact that offences are non-compoundable. For more legal help please visit Kanoon India.
Penile penetration is mandatory for rape under section 376 IPC before amendment act 2013. My brother has been convicted in the fake criminal case lodged under section 376 and 354 IPC. He was contesting election for gram pradhan in 2009 and won that election. Our village is dominated by muslim community but my brother, being a hindu had good support from the muslim. Therefore, he successfully won the election. After the election that FIR was lodged by the rival group. The allegation is that my brother went to the house of the victim and compel her to hold his penis. There was no evidence of sexual intercourse. The father of the victim was hostiled during the trial but the court overlooked all that evidence and convicted him for seven years. In this situation, what is the possibility of saving my brother? He is in jail from 3rd March 2024.
Asked from: Uttar Pradesh
Prima facie, it seems that the conviction is bad in law because in the absence of penile penetration, the offense of rape is not established. You mentioned nothing about the medical report of the victim, which is crucial evidence to establish the fact of penile penetration. Without a medical examination report, the court cannot form an opinion about whether there was penetration of the penis into the victim's vagina.
In this situation, you should file an appeal against the order of conviction. This is the only remedy available in this scenario. Before the enforcement of the criminal law amendment act 2013, penile penetration was mandatory for a rape conviction. If the accused did not penetrate his penis into the victim's vagina, he could not be punished for the offense of rape.
Holding the penis in hand may amount to the offence of outrage of modesty if it was against the will of the victim. However, you did not mention the age of the victim. If the victim's age is below 12 years, her consent is immaterial. The offence under Section 354 is made out if the victim's age is below 12 years. Therefore, the punishment under Section 354 IPC is appropriate.
When the victim's age is between 12 to 18 and she is confronted in her statement under section 164 of the CrPC, then the court shall presume that she did not give her consent. In this situation, the conviction seems proper.
However, when the victim's age is above 18 years and there is no evidence of use of force, deceitful act, or compulsion from the accused, the offence under Section 354 IPC is not established. Because an adult woman is competent to give her consent. For more legal help please visit Kanoon India.
Also read: Physical injury is not mandatory to prove the charge of rape
Whether revision lies against order in domestic violence. My wife has filed a case under the domestic violence act for the maintenance, protection order and residential relief. Now the magistrate granted an interim order as five thousand rupees per month. My advocate filed a revision in the sessions court and sought cancellation or alteration in the order of interim maintenance. When my advocate appeared the opposite party objected that it is not maintainable. My advocate is not willing to withdraw that application. Please help.
Asked from: Bihar
Your advocate has filed an incorrect application in the sessions court. A revision application is not maintainable because you have right to appeal under Section 29 DV Act. Section 29 of the Domestic Violence Act states that an appeal shall lie against any order passed by the judicial magistrate under this act.
When special statutes such as the Domestic Violence Act provide a specific procedure, they shall prevail over the procedures laid down in general law. Hence, the provisions of the Code of Criminal Procedure shall not apply in your case.
You need to file an appeal to the sessions court under Section 29 of the DV Act. Every order passed by the judicial magistrate under Domestic Violence Case is made appealable under DV Act. At this stage, you should withdraw that revision application and file an appeal.
Sessions court shall admit your appeal and if there is any apparent error it may remand the case to trial court. If you again feel aggrieved from the order of the appellate court, you can file a revision in the High Court under Article 227 of the Constitution. For more legal help please visit Kanoon India.
I was earning around 1.5L and my wife is earning around 75K. I lost my job due to the layoffs and trying to search for the same. I put the application in the District court that I have lost my job but they have put up the maintenance of 10K under DV act. To counter this my lawyer asked me to move to session court and we moved there. After moving to session court we did not get any stay and the court said that I have left the job intentionally and would have to pay the maintenance. What should we do in this case? Should we move to high court? As I am currently in the search of a job and my wife is also earning handsomely and we do not have any children either.
Asked from: Uttar Pradesh
As per the facts of your case, it seems that your wife is an educated lady and earning well to maintain herself. A wife who is well educated and her earring is sufficient to maintain her, she is not entitled for maintenance under Section 125 crpc and Domestic Violence Act.
In the case of Shailja & Anr. v Khobbanna, (2018) 12 SCC 199, the Supreme Court ruled that the mere fact that a wife is capable of earning is not sufficient grounds to reduce the maintenance awarded by the Family Court. Instead, the Court must assess whether the wife's income is adequate to sustain her in a manner consistent with the lifestyle enjoyed in the matrimonial home with her husband. This emphasises that maintenance awards should reflect the need for a standard of living comparable to that during the marriage, irrespective of the wife's earning capacity.
You should plead that the applicant (wife) is earning well and her income is sufficient to maintain herself. Hence, she is not entitled to get maintenance. When the wife has sufficient means to maintain herself the maintenance case is liable to be dismissed. For more legal help please visit Kanoon India.
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Wife asking for shelter money in DV case while taking maintenance in Section 24 of Divorce case. This case is 10 years old, the wife was awarded 6k maintenance + 4K for shelter in DV case. Later she filed a section 24 application where she is taking 16k per month since Oct 2016. Now she has filed an application in DV court to take the arrears of 4K per month awarded for shelter since 2014. 1. On record, the wife is living with parents all this while Section 24 maintenance is awarded on the basis on 1/3 of my salary in session court in 2016. In 2014 she was offered money in DV case including but she refused on record and filed an application in High court in 2016 for staying in my parents house, which was dismissed in Mar 2024.
Now that the application is dismissed in high court, she thought about claiming shelter 4 k amount. Is she really entitled to claim 4K per month in DV case for the last 10 years while taking 16k maintenance in section 24? If not, please guide and share judgements /authority in such cases.
Asked from: Uttar Pradesh
In the present circumstances, it appears that your wife may not be entitled to receive four thousand rupees as shelter money in the Domestic Violence case. Additionally, the amount of sixteen thousand rupees as ad-interim maintenance under Section 24 seems excessively high, suggesting that she may be receiving more than her actual requirement..
Your wife is obligated to demonstrate her genuine need for maintenance to sustain herself and prevent destitution. Enjoying a certain lifestyle while living apart from the husband does not necessarily entitle her to maintain such a standard without valid justification of need.
You should request the court to adjust the amount of maintenance being paid to the wife across different proceedings. Specifically, the interim maintenance amount of sixteen thousand per month under Section 24 of the Hindu Marriage Act is deemed excessively high and requires adjustment.
In your case, the adjustment of maintenance is necessary to prevent the respondent/husband from being burdened with complying with successive maintenance orders issued under different enactments.
Wife cannot get more alimony than one
The Supreme Court, in the case of Rajnesh v. Neha (2020 SCC OnLine SC 903), has provided guidelines concerning the maintenance of a wife, including the adjustment of maintenance amounts made in various proceedings. These guidelines aim to ensure fairness and clarity in the determination and adjustment of maintenance obligations. These guidelines address several key aspects including:
- Overlapping Jurisdiction: Clarification on how to address overlapping jurisdiction under various enactments concerning the payment of maintenance.
- Payment of Interim Maintenance: Guidance on the payment of interim maintenance to the wife during the pendency of proceedings.
- Criteria for Determining Quantum of Maintenance: Criteria and factors to be considered in determining the amount of maintenance payable to the wife.
- Commencement Date of Maintenance: Clarification on the commencement date from which maintenance is to be awarded, specifying the retrospective or prospective nature of such orders.
- Enforcement of Maintenance Orders: Instructions on the enforcement of maintenance orders to ensure compliance with the court's directives.
The Court observed that although a party can approach the Court under one or more enactments, the relief sought under each Act is distinct and independent. However, simultaneous operation of these Acts can result in multiple proceedings and conflicting orders, which needs to be streamlined. This is to ensure that the respondent/husband is not burdened with complying with successive maintenance orders issued under different enactments.
It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding.
Rajnesh v. Neha (2020 SCC OnLine SC 903)
The supreme court directed that both parties involved in maintenance proceedings, including those pending before the relevant Family Court, District Court, or Magistrate's Court nationwide, are required to file an Affidavit of Disclosure of Assets and Liabilities.
You should pray from the court that the opposite party produce assets and liability affidavit and disclose her expenses and source of income. You should also adduce that affidavit and disclose your assets, salary and liability.
The maintenance amount awarded should be reasonable and realistic, avoiding extremes. It should neither be so extravagant that it becomes oppressive and unbearable for the husband, nor so meagre that it pushes the wife into penury. The adequacy of the amount should ensure that the wife can maintain herself with reasonable comfort
Rajnesh v. Neha (2020 SCC OnLine SC 903)
After receiving an affidavit from both parties, the court shall adjust the amount of maintenance. The purpose of granting interim or permanent alimony is to prevent the dependent spouse from falling into destitution or vagrancy due to the breakdown of the marriage, and not to punish the other spouse.
Relevant factors for determination of amount of maintenance
In determining the quantum of maintenance payable to an applicant, the court considers various factors including:
- The status of the parties involved.
- The reasonable needs of the wife and dependent children.
- The education and professional qualifications of the wife..
- Whether the wife has any independent source of income.
- Employment status prior to and during the marriage.
- The financial capacity of the husband, including income, reasonable expenses, and liabilities.
- The standard of living of the husband, considering inflation and cost of living.
- The husband's obligation to provide for the family.
- Child's expenses including food, clothing, residence, medical care, and education.
- Additional expenses of the husband.
You should request the court to adjust the amount of maintenance after considering all payments made to your wife under different laws/proceedings. The court will determine the maintenance amount by taking into account the payments made under Section 24 of the Hindu Marriage Act and under the Domestic Violence Act. This will ensure a fair assessment of the overall maintenance obligations. In this situate wife asking for shelter money is not tenable because it'll become excessive and beyond the financial capacity of husband. For more legal help please visit Kanoon India.
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Circumstantial evidence can be form the basis of conviction if there is no eye witness and circumstances of chain is complete. I am a teacher and the most senior staff member in my school after the principal. When the principal was on leave for ten months, I was in charge of our school. During my tenure as acting head, scholarships were distributed to the students. The list of eligible students was prepared by the principal in consultation with the district school inspector. No changes were made during my tenure, but later on, an investigation was conducted by the Basic Siksha Adhikari in the district and found that as many as 236 students received scholarships without being eligible.
The entire allegation was levelled against me. An FIR was lodged, and a charge sheet was submitted. Now, the trial is at an advanced stage. The entire prosecution relies upon circumstantial evidence. There is no evidence regarding the manipulation of data during my tenure. The school inspector signed off on the list of eligible students, and all those who received scholarships were included. What is the possibility of my guilt?
Asked from: West Bengal
In the present case admittedly, there are no eye-witnesses to the incident and the conviction of the appellant solely rests on the circumstantial evidence. Circumstantial evidence refers to evidence that indirectly proves a fact through inference. Unlike direct evidence, which directly proves a fact without the need for inference (such as eyewitness testimony or a confession), circumstantial evidence requires the judge to draw conclusions based on a combination of circumstances and facts presented.
Circumstantial evidence can be highly persuasive if it establishes a chain of events or a pattern that leads to a logical conclusion about the guilt or innocence of the accused. However, it is subject to scrutiny and must be evaluated carefully by the court. The Indian legal system recognizes circumstantial evidence as valid and admissible, provided it meets certain criteria, including relevance, reliability, and consistency.
In your case, there is no evidence to prove that you had manipulated the data prepared by the principal. The principal was the one who best knew the eligible students for the scholarship. As the incharge of the school, you simply took custody of that list. All the students listed therein received scholarships.
The fact that scholarships were dispersed during your tenure as incharge does not necessarily imply that you entered the names of ineligible students. There must be concrete evidence to establish that you manipulated the list during your tenure. The circumstantial evidence must lead to only one conclusion that you have entered the name of ineligible students in that record. Failure to prove this fact the chain of circumstances remains incomplete.
The law concerning sentencing based solely on circumstantial evidence is well-established. In S. K. Yusuf vs State Of West Bengal AIR 2011 SC 2283 the hon'ble supreme court has held that
The circumstances leading to the conclusion of guilt must be thoroughly established. These established facts should only align with the hypothesis of the accused's guilt and cannot be explained by any other scenario. The circumstances should be conclusive and definitive. A complete chain of evidence must be presented, leaving no reasonable doubt about the accused's innocence, and indicating that it is highly probable that the accused committed the act.
The prosecution has the responsibility to establish the chain of circumstances. One crucial circumstance is the manipulation of data, which must be proven by the prosecution. Without the prosecution proving this fact, even through the circumstantial evidence, the court cannot convict you.
Additionally, there is no evidence to support the claim that students not mentioned in the alleged list received scholarships. It proves that you have no role in commission of the offence. In Wakkar & Anr. v. State of Uttar Pradesh, (2011) 3 SCC 306) the supreme court has reiterated that
The circumstances supporting the inference of an accused's guilt should be unequivocal and align solely with the hypothesis of the accused's guilt. They should be incapable of being explained by any other scenario except the guilt of the accused. When all the circumstances, considered together, inevitably lead to the conclusion that the accused alone is responsible for the crime, the inference becomes irresistible.
If there is no evidence of manipulation with the list, the chain of circumstances does not lead to your guilt. The absence of your involvement in the commission of the crime breaks the chain of circumstances, resulting in your acquittal. Therefore, there is no chance of your guilt because suspicion cannot form the ground of conviction. For more legal help please visit Kanoon India.
