Police officer is doing unfair investigation under political pressure. He is protecting the accused and manipulating the vital evidence. What should I do in this circumstances? My advocate says that I should file a writ petition before the High Court. Can the High Court direct the investigating officer to do fair and unbiased investigation?
The right to just and fair investigation is a fundamental right under Article 21 of the Constitution of India. In the case of Menka Gandhi vs. Union of India AIR 1978 SC 597, the Supreme Court held that the procedure in criminal trials must be right, just, and fair. Therefore, you have the right to approach the court to direct the investigating officer to conduct a fair investigation.
Remedy against unfair investigation
If you feel that the investigation is unfair, the Code of Criminal Procedure (CrPC) empowers the judicial magistrate to ensure a just and fair investigation. However, it is the primary duty of the investigating officer to conduct a fair investigation [Mohd. Yousuf vs. Smt. Afaaq Jahan (2006) 1 SCC 627]. If the police officer is doing an unfair investigation, taking favor of the accused, or ignoring material pieces of evidence, it casts a shadow of doubt on the investigation.
You can approach the concerned judicial magistrate under section 156(3) of the CrPC to order a proper investigation. If the magistrate finds a serious defect in the investigation, they can pass any suitable order under section 156(3) of the CrPC. The magistrate has the power to pass an appropriate order to ensure the fairness of the investigation. In the case of Sakiri Vasu vs. State of U.P. and others (2008) 2 SCC 409, the Supreme Court held that the judicial magistrate can monitor the investigation under section 156(3) of the CrPC.
Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
Sakiri Vasu vs. State of U.P. and others (2008) 2 SCC 409
What to do if police officer doing unfair investigation?
To ensure a fair investigation, you should file an application under section 156(3) crpc before the judicial magistrate. In this application, you should request the court to call for the case diary and progress report of the investigation from the investigating officer (IO).
Once the IO produces the case diary, he should inform the court about the steps he has taken during the investigation. Then, you should draw the court's attention to any defects or irregularities committed by the IO that have resulted in an unfair and biased investigation.
If the magistrate finds these irregularities to be fatal and concludes that the investigation is a mockery of justice, he shall pass appropriate orders to ensure a fair investigation. You should also present evidence to show the kind of unfairness committed by the IO during the investigation.
The magistrate can then monitor the investigation until the filing of the report under Section 173(2) crpc. He can order the collection of certain evidence, record statements of eyewitnesses, or take any other action he deems fit and proper in the case.
If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
Sakiri Vasu vs. State of U.P. and others (2008) 2 SCC 409
It is advised to file an application under Section 156(3) of the Criminal Procedure Code (CrPC) before the judicial magistrate instead of directly filing a writ petition under Article 226 of the Constitution. This is because the magistrate has an implied power to monitor the investigation and pass any necessary orders to ensure a fair investigation under Section 156(3) CrPC.
It should be noted that while a magistrate cannot interfere with the investigation by the police, as held by the Supreme Court in Union of India v. Prakash P. Hinduja (2003) 6 SCC 195 and the Privy Council in Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 48, the Supreme Court in Sakiri Vasu case has clarified that the magistrate has an implied power under Section 156(3) CrPC to monitor the investigation and pass appropriate orders, but cannot himself investigate.
Therefore, it is advisable to file an application under Section 156(3) CrPC before the concerned magistrate, who can call for the case diary and progress report of the investigation from the investigating officer, and take appropriate steps to ensure a fair investigation if there are any defects or irregularities in the investigation. This is an effective remedy against improper and unfair investigation, and it is important to exhaust this remedy before approaching the High Court with a writ petition.
Question: Can a complaint under 156 (3) crpc be filed against a police officer for not investigating a case properly and not discharging his duty. Is there any case law related to this?
Asked from: Uttar Pradesh
No, you have a remedy to approach the judicial magistrate for monitoring the investigation and pass necessary order or direction to ensure free and fair investigation. You should approach the judicial magistrate under Section 156(3) crpc for such an order or direction.
In the Sakiri Vasu case the supreme court has held that the judicial magistrate has the power to monitor the investigation and pass any order required for the fair investigation.
Divorce in Muslim law if wife is refusing to accept the divorce. I am a Muslim man and I have differences with my wife from last couple of months. Now I want to divorce her but she is not agreeing. I have no child and I am working in Banking sector. Kindle advice how to divorce my wife if she does not accept divorce? Can I marry second girl without divorcing her or is it mandatory that first I give divorce? Whether she must accept my divorce first then I can marry?
Muslim husband has exclusive right to divorce his wife without her consent. Consent of wife does not matter in respect of divorce. The nature of Muslim marriage is contractual hence, consent of husband and wife is mandatory for the marriage. But the consent of wife is not mandatory for divorce. Husband can divorce his wife without obtaining her consent.
Divorce in Muslim law inclined in favor of husband. Husband cannot exercise this right in arbitrary manner and give divorce on petty issues. However, wife has no option except to accept the divorce but she expects that there should be a valid reason behind dissolution of marriage. There is differences between you and your wife. If these differences have such a magnitude that end of marital relation is the only option then you can divorce your wife.
This is your first marriage. According to Muslim personal law, you can contract second marriage without divorcing the first. Your first wife can live separately and claim certain amount of maintenance. Later on you divorce your first wife. So, you can contract second marriage if she is not agree to accept divorce. Your second marriage will not affect your service.
Service rule does not interfere in the personal law of employees. If personal law of employee entitles him to contract second marriage in subsistence of first then he can do so. Hence, you will not face any disciplinary proceeding only for contracting second marriage.
I want to know about the right of daughter in the father's property. Respected Sir, I need your valuable suggestions towards property rights of my mother and her sister. Their grandfather had few agriculture land and home property. He had settled those property among his four sons equally using a "kurra cettu" - local agreement during 1966. One of the sons is my maternal grand father. He had 3 sons and 2 daughters (including my mother). Recently came to know that he has executed a family settlement deed to the sons equally. My mother and her sister did not aware of it and they had registered the property in the registrar office in 2013.
Do we (my mother and my mother sister) have any rights to fight as the property came from the grandfather considering as ancestor property?
Your mother and her sister have share in the property therefore, they can challenge the transaction by filing a civil suit. It was ancestral property and your mother's grandfather had settled among his children. After the family settlement the nature of property had changed. It became the separate property of each son. Your mother along with her siblings have coparcenary right in that property.
That coparcenary right is absolute in respect of that property because it was not the self acquired property of her father. He got that property from his father after the family settlement. However, the nature of property has changed but it is still a joint family property so far as relates to your mother and her siblings.
File a civil suit
Your mother and her sister should file a civil suit for cancellation of registration of settlement deed. That deed is bad in the eye of law because your maternal grandfather had executed in violation of the settled principle of law. It is a joint family property and all the coparceners have right therein from by birth.
According to Section 6 of the Hindu Succession Act, the daughter has equal share in the ancestral property. When an ancestral property is divided or partitioned among the coparceners it becomes a coparcenary property of each coparcener. Your maternal grandfather was a coparcener at the time of settlement. At the moment he received the property after settlement, his children became coparcener in respect of that property.
Therefore, your mother got right in the property immediately when their father received it after settlement. So, your mother has the right in the property and her father cannot transfer that property to his sons by eliminating the daughters.
My neighbour is using my boundary wall illegally and she has installed some fixtures therein. The boundary wall of my ground floor flat lies within the perimeter of my house and constructed by the company. The neighbour’s flat has been made by another company, later and without a separate boundary wall. (The flats are three stories high and about 16 years old).
I shifted into my flat 6 years ago before which, I had tenants. My neighbours have used my wall as a common wall ( which, it is not and they are aware), by fixing grills, metal gate, stormwater pipes, wires etc. the backside of their house is covered by a sheet which is fixed on my boundary wall and even my bathroom wall. They have lined up pots along the wall resulting in water damage and loosening of tiles I got fixed on my side.
The lady of the house is very loud, abusive, and has called the police about her l&ll floor tenants, though she is clearly in the wrong. Most people avoid her.
I am the widow of an Air Force officer and live with my aged mother. I am getting the wall plastered from their side to prevent further damage. How can I get all the fixtures they have put on my wall removed, without confrontation? I have mailed the SHO but have got no reply. Can I complain in the women’s cell?
She has no right to use your wall for fixing water pipes or other purposes. This is an illegal construction because in the approved map (site plan) she has definitely shown a separate wall. The development authority cannot approve a map without a separate wall or outer boundary of the house. Hence, she has to construct her own boundary wall as per the approved site plan. Your neighbour is using your boundary wall illegaly.
Therefore, you should file a complaint before the chairman of the development authority that your neighbour has not constructed her house as per the approved the site plan. The development authority will take a survey of her house and they will either direct her to erect a separate wall or demolish the whole construction.
File a mandamus writ
If development authority does not take any action on your complaint then you should prefer a writ before the High Court under article 226 of the constitution of India for issue a mandamus writ.
The high court will direct the chairman of the development authority to take action on your complaint within a stipulated time period like three or four months. Thereupon, the development authority will dispose of your complaint expeditiously otherwise they will commit contempt of the court.
Complaint against nuisance
Your neighbour is causing a nuisance by running water pipes and hanging flower pots on your wall. If you do not raise your objection today against the fixing of running water pipes in your wall then she can claim easementry right thereon. Afterwards, you cannot alter your own wall which may damage or obstruct her water pipes. So, you should take immediate action against such illegal construction.
In this situation, you should file a complaint before the district magistrate or sub-divisional magistrate under section 133 of the code of criminal procedure. This is the swift and easier procedure against the nuisance. You can also file a civil suit for removal of those fixtures and compensation thereof.
I am working in a public sector bank and want leave for educational purpose. I am pursuing a course in distance education mode. The examination is going to conduct very soon. A date has fixed. I want leave for appearing in the examination. Can I claim the leave as a right? Can I move legally if bank management is not permitting leave?
You want a leave for the specific purpose i.e. leave for appearing in the examination. Such a leave is not a matter of right; the employer can refuse to grant special leave on the ground of administrative exigencies. In State of Punjab v. Dr. Sanjay Kumar Bansal, (2009) 15 SCC 168; the Supreme Court held that special leave is not a matter of right vested in the employee. It depends on the administrative exigencies.
When you apply for the leave the concerned authority must take fair and reasonable decision. He should consider your application in respect of these facts and circumstances:
- Contingencies which may arise in the course of administration.
- The services of an employee may be required in a given case on more emergent basis vis-à-vis other employees.
- The services rendered by an employee, his seniority, the nature of work which he is required to do, his responsibilities, etc.
While refusing the leave the concerned authority must satisfy his decision on the basis of fairness and administrative exigencies. If he discriminates or took arbitrary decision, then you can challenge the order of refusal.
You can file a mandamus writ
The public sector bank also comes under the meaning of State as defined by Article 12 of the constitution of India. So, you can prefer an writ of mandamus before the High Court and challenge the legality of refusal order.
Don’t absent without taking a leave
If you remain absent without taking a leave, then it will constitute a grave misconduct. The concerned authority can issue a show cause notice. To avoid any further trouble, you should take a proper leave. Moreover, you have a genuine cause for the leave; hence, you’ll get it easily.
Each employee has the right to enrich his skill by doing advance or professional courses. You are doing a distance learning course for the advancing of your professional skill. This is a genuine cause and unless there is extreme administrative exigency the concerned authority should not refuse to grant leave.
I have a mentally unstable wife. She is harassing me for the last 10 years. Her behaviour and conduct are extremely bad. I have an adorable daughter who is 11 years old. Examples of her insane behaviour are — Since the last three years, my daughter is not going to school due to her behaviour. She does not allow her to play with other kids.
She shouts abuses at neighbours, using slang words and often has quarrelled with them for no reason- I had to change my rented house almost every year since the last 11 years.
I fear that I would be implicated for any drastic action taken by her. Severe embarrassment to me as this behaviour gets witnessed by the neighbours. She is not ready to go to the doctor for counselling. I asked her numerous times to see a psychiatrist with me. She denies that she has a problem and continues to refuse to get help.
She speaks absurd and non- sensical statements all the time. Her behaviour is very strange and childish. She frequently cleans her clothes. She often threatens me with police action stating that she will file a police complaint.
There are repetitious arguments, unfounded accusations, complete withdrawals from the relationship unwillingness or inability to discuss important issues despite my efforts to engage her. Problems like this continued to occur frequently despite repeated attempts to identify and discuss the issues that bother her.
This is something other than marital disagreement is occurring. I stuck around for a long time - 10 years, for the sake of the child and hoping that she will become normal sooner or later. She has a mental disorder of a kind and it is of such extent that we cannot live with her. I and my daughter cannot expect to live with her.
Asked from: Andhra Pradesh
You cannot get judicial separation on the curable mental disease of your wife. However, her behaviour is unstable and sometimes she becomes violent but she has not been doing such things deliberately. You should consult a psychiatrist and give proper treatment.
If her disease is incurable or her violent behaviour causes apparent threat of life, limb or health then you can seek judicial separation. Section 10 of the Hindu Marriage Act provides judicial separation on the same grounds of divorce under section 13.
The marriage subsists in case of judicial separation. You can seek judicial separation under section 13(1)(iii) of the Hindu Marriage Act. The section read as:
has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Doctor's opinion is mandatory
In this case, the doctor's opinion is mandatory to satisfy the court that her mental disorder is incurable. The court may grant a decree of judicial separation if it finds that
- Your wife's mental is incurable.
- She has been continuously suffering from that disorder.
- The nature of mental disorder exists in such an extent that it is not advisable to live with her.
File a civil suit under section 10 of the Hindu Marriage Act
In the above situation, the court may grant a decree of judicial separation. So you should file a civil suit under section 10 for the judicial separation. You have to produce evidence regarding her behaviour and acts of mental disorder. The court may take the opinion of a doctor to ascertain that whether your wife is mentally unstable. After taking off the opinion and considering all the prevailing circumstances of your case the court may grant a decree of judicial separation.
Related: Protection against divorce case
