It is not mandatory for the accused to be arrested automatically upon the lodging of an FIR. Whether it is mandatory that the accused may be arrested after lodging an FIR? I am accused in a criminal case punishable under section 323, 504 IPC. When the offence was committed I was in Mumbai where I'm working in a company. The investigating officer is pressuring my family to call me and produce before the court otherwise an arrest warrant will be issued against me. My parents are afraid and they have bribed him to protect me from possible arrest. Now he is not disturbing me. What is the possibility of arrest in that offence?
Asked from: Uttar Pradesh
The alleged offences are punishable with the imprisonment for a term below seven years. Accused cannot be arrested automatically after lodging of FIR. As per Section 41 of the code of criminal procedure, the investigating officer has to state the reason for arrest. In Arnesh Kumar v. State of Bihar (2014) by the Supreme Court of India laid down important guidelines regarding the arrest of an accused in cases where the offence carries a punishment of up to 7 years' imprisonment. The judgment emphasised the need for police officers to exercise caution and conduct a thorough investigation before resorting to arrest.
Following the Arnesh Kumar judgment, it is not mandatory for the accused to be arrested automatically upon the lodging of an FIR for offences punishable with up to 7 years' imprisonment. The police are required to consider factors such as the necessity of arrest for the purpose of investigation, the possibility of the accused fleeing or tampering with evidence, and the seriousness of the offence before deciding on arrest.
However, it's important to note that there may still be circumstances where immediate arrest is necessary, such as cases involving violence, threat to public safety, or the possibility of the accused fleeing to avoid justice. The judgment of Arnesh Kumar serves to prevent the arbitrary and unnecessary arrest of individuals and encourages the police to prioritise investigation and evidence collection before resorting to arrest.
In Siddharth v. State of U.P., (2021) 1 SCC 676, the Supreme Court emphasised that in the normal and ordinary course of events, law enforcement agencies should refrain from arresting individuals and sending them to jail, especially if it is feasible for the police to conduct the investigation without resorting to arrest, and if the accused cooperates fully with the investigating officer.
Arrest should only be considered in cases of utmost necessity, such as when it is indispensable for the completion of the investigation, for instance, if the individual is required for the recovery of incriminating evidence or weapons, or to gather information about accomplices or circumstantial evidence.
Additionally, arrest may be warranted if the investigating officer or the officer in charge of the police station believes that the accused's presence is difficult to secure due to the serious nature of the crime, raising concerns about the individual's potential flight from justice or defiance of legal proceedings.
Personal liberty is a fundamental aspect of our constitutional mandate. The decision to arrest an accused during an investigation is warranted when custodial interrogation is deemed necessary, particularly in cases of serious crimes or when there is a risk of tampering with witnesses or the accused fleeing from justice.
In Joginder Kumar v. State of U.P., (1994) 4 SCC 260 the Supreme Court has emphasised that if arrests become routine, it can inflict immeasurable harm to the reputation and self-esteem of an individual. Accused should not be arrested if the investigating officer lacks reason to believe that the accused will evade the law or defy summons. Where the accused consistently cooperated with the investigation, it is difficult to comprehend why there should be an imperative for the officer to effect the arrest.
In your case the investigating officer has to issue a notice under Section 41A of the code of criminal procedure to secure your appearance during the investigation. Section 41A of the Code of Criminal Procedure (CrPC) pertains to issuance of notice to persons accused of committing offences punishable with imprisonment up to seven years.
This notice serves as an alternative to arrest, therefore, accused cannot be arrested automatically. The purpose of Section 41A is to promote fairness and transparency in criminal proceedings by giving accused individuals an opportunity to cooperate with the investigation without being arrested, particularly in cases where the offence is not serious and does not warrant immediate arrest.
You should immediately file a writ petition in the high court under Article 226 for protection against illegal arrest. The alleged offences are simple and of a private nature. There is no chance of fleeing from court, and there is also no opportunity to tamper with the evidence. Then, the high court may direct the investigating officer not to take any coercive action against the accused i.e. you. Alternatively you can move anticipatory bail application under Section 438 of the code of criminal procedure. For more legal help please visit Kanoon India.
Quashing of cheque bounce case if director was resigned much before issuance of cheque. I was a director in the company to which some dispute arose. Then I resigned from the directorship and started a new company. After five years a criminal case has been initiated against me under Section 138 of the NI Act. I was astonished to see that the date mentioned on the cheque is just four months before. How does it possible that I have committed an offence when there is no relation between me and that company? Sir, please help me to settle this criminal case?
Asked from: Bihar
The directors of a company can be vicariously liable if they were responsible for the day-to-day business or affairs of the company. If, in their capacity as a director, they issued a cheque to discharge a financial liability of the company, they can be held responsible for the bounce of the cheque.
However, it is crucial for the complainant to establish this vicarious liability in the complaint. Without demonstrating how the director is accountable for the dishonour of the cheque, a complaint filed under Section 138 of the Negotiable Instruments Act may be subject to being quashed.
In the case of Monaben Ketanbhai Shah v. State of Gujarat (2004) 7 SCC 15, the Supreme Court observed that it is the complainant's responsibility to include essential allegations in the complaint to establish vicarious liability against the accused. The Court also noted that there is no presumption that every partner is aware of the transaction for criminal liability.
The accused has to establish the fact in his complaint that director (accused) was responsible for the firm's business at the time of the commission of offence. If the complainant makes and supports these necessary allegations in the complaint, then it is maintainable under the ambit of Section 141 NI Act.
Therefore, in the absence of specific allegations in the criminal complaint under Section 138 of the Negotiable Instruments Act (NI Act) regarding the accused's involvement in the issuance of the bounced cheque and their liability for the same within the scope of the company's operations, the High Court may quash such a complaint under Section 482 of the Code of Criminal Procedure.
Section 141 of the Negotiable Instruments Act (N.I. Act) specifies that individuals who were in charge of overseeing the affairs or operations of a company at the time of the offence shall be held accountable and prosecuted under Section 138 of the N.I. Act. However, an exception is provided: if the offence occurred without their knowledge or despite taking all necessary precautions, they would not be held liable.
Based on the facts of the case, it seems that on the date mentioned on the cheque, you had already resigned from the position of director and had no association with the company for a significant period preceding the issuance of the cheque.
This fact itself proves that you cannot be held responsible for the issuance of that cheque. In the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. (2005) 8 SCC 89, the Supreme Court highlighted the importance of including necessary averments in a complaint before subjecting a person to criminal proceedings.
The Court emphasised that a clear case must be outlined in the complaint against the individual sought to be held liable. Specifically, Section 141 of the Act sets forth the requirements for establishing liability under the provision. It is imperative to clearly demonstrate that the respondent meets the criteria outlined in Section 141.
Based on the judgment of the Supreme Court in S.M.S. Pharmaceuticals (supra), it is indeed mandatory for the complainant to establish that you were responsible for issuing the cheque. Given that you had resigned from the company well before the date of issuance of the cheque, you cannot be held liable under Section 138 of the Negotiable Instruments Act. Furthermore, since you had disassociated yourself from the company's functions for the past five years, you are not vicariously liable for the offense committed.
In light of these circumstances, it is advisable to file a petition in the High Court under Section 482 of the Criminal Procedure Code (CrPC) for the quashing of this false and baseless criminal case. Your dissociation from the company for the past five years serves as solid evidence to prove your innocence. The criminal complaint fails to meet the essential ingredients of Section 141 of the Negotiable Instruments Act. Therefore, the High Court is likely to quash this case. For more legal help please visit Kanoon India.
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A woman's friend sexually harassed her by kissing and hugging. He did that act against her will. Thereafter the victim felt bad and decided to take legal action against that person. That act amounts to sexual harassment and punishable under Section 354A of the Indian Penal Code. Victim should lodge an FIR against the miscreant because he has committed offence by explicit sexual overture.
He was my friend. I went to the market with him. After the market, He asked me to drop home. I also said fine. But, Then, When he was going back home. He first hugged me. Until then, It was okay, But, Then he kissed me on my forehead, I got uncomfortable and then he tried to kiss me on the lips. He unfortunately kissed me. For that instance I was not in my senses about what had just happened. Then, I slapped him and tried to push him. But! He kissed me again. I shouldn't let him inside my house. But, Now I'm feeling very dirty. I am thinking of taking legal action against him. What should I do?
Asked from: Rajasthan
Any individual who employs force against a woman with the intention or awareness that it will lead to the violation of her modesty is liable to face punishment. Your friend has committed offence of sexual harassment which is punishable under Section 354-A of the Indian Penal Code. Section 354-A of the Indian Penal Code (IPC) deals with the offense of sexual harassment.
This section covers a wide range of acts that constitute sexual harassment, including but not limited to physical contact and advances involving unwelcome and explicit sexual overtures. It also encompasses making sexually coloured remarks, forcibly showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
Unwelcome and explicit sexual overtures refer to advances or actions of a sexual nature that are not desired or consented to by the recipient. These can include:
- Unwanted physical contact or touching of a sexual nature.
- Making sexual comments, jokes, or remarks that are inappropriate or offensive.
- Sending explicit messages or images without consent.
- Making suggestive gestures or movements.
- Displaying or sharing pornography without consent.
- Engaging in sexually suggestive behavior or innuendos.
In essence, any behavior or communication of a sexual nature that is not welcomed or solicited by the other person can be considered an unwelcome and explicit sexual overture. Such actions can be forms of harassment and are often considered inappropriate and offensive.
In cases related to sexual harassment under Section 354-A of the Indian Penal Code (IPC), consent is indeed a material factor. If the victim did not provide consent or if the behavior was unwelcome, it strengthens the case for sexual harassment. The law recognizes that consent is crucial in any interaction of a sexual nature, and absence of consent or coercion is a key element in defining acts as harassment.
Hugging itself is not inherently a sexual overture. It can be a gesture of affection, comfort, or friendship between consenting individuals. However, whether a hug constitutes a sexual overture depends on the context, intent, and consent of the parties involved.
If a hug is initiated without consent, or if it is accompanied by inappropriate touching or suggestive behavior, it shall be considered a form of sexual overture and may be perceived as unwelcome or harassing. In such cases, the nature of the hug and the intentions behind it would determine whether it crosses the line into sexual misconduct.
You should lodge first information report against your friend for the offence of sexual harassment (Section 354A IPC) because he has harassed you sexually without your consent. For more legal help please visit Kanoon India.
Whatsapp chat can be used as evidence to prove that boyfriend made promise to marriage. My boyfriend does not refuse to marry. He said that he never promised to marry. But I have whatsapp chat and video recordings. We are good friends and he has promised me to marry thereafter, I agreed for a sexual relationship. I was just 15 years old when I first established a sexual relationship with him. He taught me how to do sex and upon his instigation I used to sex with him. He is my relative and stayed in my house for study. My father died in 1987 so my mother got service in the ETU department of Kerala government. In absence of my mother he instigated me to be nude and have sex.
Asked from: Uttar Pradesh
You can use whatsapp chat as evidence. It is a form of electronic evidence which may be used under the provisions of Section 65B of the Indian Evidence Act. The WhatsApp chat should comply with the Indian Evidence Act, which governs the admissibility of evidence in Indian courts. According to the Act, electronic records, including WhatsApp chats, are admissible as evidence if they fulfil certain conditions laid out in Section 65B.
According to Section 65B of the Indian Evidence Act, any electronic evidence, including WhatsApp chats, must be accompanied by a certificate verifying its authenticity. This certificate can be issued by the person in charge of maintaining the electronic record, such as the person who extracted the chat from a device or a forensic expert.
You should obtain a certificate from the forensic expert by providing your mobile phone. He shall extract the information from your whatsapp account then certify that chats are genuine.
Based on the facts of your case, it appears that he has committed rape. You were under eighteen years old when he had a sexual relationship with you. According to Section 375 IPC, any penile penetration or vice versa, even with the consent of the prosecutrix, constitutes rape if she is below eighteen.
Read also: Visual documentation is a good piece of evidence
Under Section 375 of the Indian Penal Code (IPC), if sexual intercourse is done with a girl who is under 18 years old, it constitutes rape, regardless of whether or not there was consent. This section defines the offense of rape and includes specific provisions regarding sexual intercourse with a minor girl. The law aims to protect minors from sexual exploitation and abuse, and it imposes stringent penalties on offenders.
Offenders can face imprisonment for a term not less than ten years, which may extend to life imprisonment, along with a fine. It's crucial to understand that the law does not recognize consent from individuals below the age of consent, which is generally considered to be 18 years old in India.
You should lodge a first information report against that person. As per the facts of your case, you have documentary evidence that sexual intercourse was done on the false promise of marriage. False promise constitutes deception. That man had no intention to marry hence, he gave false promise for marriage. Therefore, it amounts to cheating or deception. In your case you can lodge an FIR under Section 420 & 376 IPC.
It is pertinent to note that he has also committed offence under the Protection of Children from Sexual Offences (POCSO). This act addresses sexual harassment involving teenage girls. Under this act, any form of sexual harassment, including inappropriate physical contact, verbal advances, or any other unwelcome sexual behavior towards a teenage girl, is considered a serious offense. The POCSO Act provides special provisions and stringent penalties for perpetrators who sexually harass teenage girls, aiming to safeguard their rights and protect them from exploitation and abuse. For more legal help please visit Kanoon India.
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How to tackle imminent danger posed by stray dogs? I am living in Thane City. In my housing complex, there are stray dogs around 10-12. two of the stray dogs are always biting people out of sudden without any warning. They also charge people who are jogging, delivery guys and kids playing. What we can do to remove the only dogs which are biting people. 6 incidents have been recorded in the last two months for the same dog biting people. What we can do to take dogs away from the society complex. A number of people do not want that dog to be in our complex because it bites their kids. Dog feeding complexes have dedicated places to feed stray dogs yet people are feeding them at the entrance of society buildings or other areas where kids play.
Can we charge them for not feeding dogs at assigned places? We are not against feeding but people should obey rules to feed the dog at dedicated places assigned for this task. if we stop them then they are blaming us as if we are opposing them from feeding.
Asked from: Maharashtra
You should promptly submit a complaint to the municipal corporation regarding the evacuation of stray dogs from your society. This matter is quite sensitive due to the personal attachment some individuals have in feeding these strays. However, such compassion toward stray dogs, manifested by feeding them in front of residences, must not cause danger to the public and create chaos.
If there is a dedicated place for feeding stray dogs, the residents of the vicinity must feed them there exclusively. It is the municipality's responsibility to safeguard the public from any evident danger posed by stray dogs. Stray dogs exhibit fiercely wild and uncontrollable behaviour. The municipality is also accountable for regulating the act of feeding stray dogs by the public.
However, Section 44 of the Maharashtra Police Act 1951 empowers the police to destroy or exterminate stray dogs. In the prevailing statutes against cruelty to animals such as the Prevention of Cruelty to Animals Act, 1960, it is tough for the police authority to destroy stray dogs. But, they can do something to compel the public to feed stray dogs at the designated place only.
Therefore, you can also submit an application to the Police Commission or other responsible police authority to take action against individuals who are endangering the public by not feeding stray dogs at the designated place. For more legal help please visit Kanoon India.
My wife has lodged false FIR under 498A against me and my family members: how to protect them from arrest? My wife has filed a false case against me and my family under Section 498A. She left us just two months after our marriage. My brother, who works in an MNC, is concerned that the criminal case may affect his job and prevent him from travelling abroad for work. What steps should we take to resolve this situation? How to protect them from arrest?
Asked from: Uttar Pradesh
No accused will be arrested automatically in 498 A case immediately after lodging FIR. The Supreme Court in Arnesh Kumar v. State of Bihar & Another, held that arrest should not be made automatically in cruelty case under Section 498A IPC. The Court emphasised the need for the police to conduct a thorough investigation before making an arrest. In many cases, the arrest should be avoided, particularly when the allegations appear to be exaggerated or false.
In Kahkashan Kausar v. State of Bihar, 2022 the Supreme Court has held that husband’s relatives cannot be forced to undergo trial in absence of specific allegations of dowry demand.
You should challenge the veracity of FIR in the High Court under Article 226 constitution of India, if there is no specific allegation of cruelty in the FIR. When the informant has lodged an FIR with a very general allegation which does not have specific date or events then the high court may quash such a false FIR.
You should immediately file a writ petition in the high court for quashing of FIR under Section 498A IPC. If you have evidence which prima facie proves that the particular accused has no role in commission of offence and he has been falsely implicated there is high chance that the high court may quash the FIR. For more legal help please visit Kanoon India.
Passport granting officer refused the certified copy of the order and demanding NOC from the court. I was issued a short validity passport valid for five years by a court order in 2021 due to an ongoing criminal case. However, my court case was disposed of and closed in October 2023. I possess a copy of the disposal order for my court case, and I have no pending cases against me in any court of law. I wish to renew my short validity passport to a full ten-year passport. When I went to apply for my passport renewal, the passport granting officer asked me to bring a No Objection Certificate (NOC) from the court, and my application was put on hold.
I informed the granting officer that my case has been disposed of and no case is pending against me in any court. I even presented a certified copy of the disposal order, but the officer refused to accept my application. Subsequently, I went to the session court to obtain the NOC. However, the judge refused to provide the NOC, stating that the court does not issue NOCs for disposed cases. I seek your advice on whether I should approach the High Court regarding this matter.
Asked from: Uttar Pradesh
The criminal court in India does not issue a no objection certificate for the granting or renewal of a passport. Permission from the court for passport renewal is typically sought when a criminal case is pending. In such situations, the court may grant permission if it deems that the personal attendance of the accused is not necessary during the trial.
However, once the criminal case has been disposed of, the matter is considered closed unless it is open for consideration in appeal. Since no appeal has been filed by the prosecution against the court's order, there is no pending criminal case against you. Therefore, the demand for a no objection certificate from the court is illegal and holds no ground.
You should file a writ petition in the High Court under Article 226 of the Constitution of India. Traveling abroad is considered a fundamental right (Menaka Gandhi vs Union of India AIR 1978 SC 597), and any arbitrary action to prevent a citizen from traveling abroad constitutes a violation of Articles 14, 19, and 21 of the Constitution of India.
The demand for a no objection certificate is illegal; hence, the High Court may direct the concerned authority to renew your passport within the stipulated period of time. A declaration from the passport holder stating that no criminal case is pending, along with verification from the concerned police station, should be sufficient to accept that declaration. The passport authority has no right to refuse a certified copy of the court order, and such a refusal also amounts to contempt of court.For more legal help please visit Kanoon India.
When can the passport be submitted to Passport Seva Kendra
Resignation not accepted by state government resultantly unable to join new job in central government. I joined as an Auditor in the Odisha government in February 2023 and gave my resignation in September 2023 to join a position in the central government. Since then, my salary has been stopped, but my resignation was not accepted due to pending work regarding the non-submission of audit reports. I expressed my inability to submit the reports citing reasons and showed willingness to refund the amount of my salary for the days of default. However, despite three reminders, I have not received any response for about six months now. I did not take up the previous central government job for which I requested resignation. However, I have now secured another central government job. Could you please advise me on the procedure I should follow now and what actions could be taken?
Asked from: Odisha
Regardless of the reasons for not submitting the audit report within the stipulated time, the state government is obligated to provide reasons for delay in not accepting your resignation. By refusing to accept your resignation, the state government is preventing you from taking up the new job in the central government. Meanwhile, your salary has been stopped, directly impacting your right to livelihood. This deprivation of employment due to an unreasonable delay in accepting your resignation is unacceptable.
In this situation, it is imperative that you promptly file a writ petition in the Odisha High Court under Article 226 of the Constitution. Deprivation of livelihood constitutes a violation of fundamental rights. Article 21 of the Constitution asserts that no person can be deprived of their life and personal liberty except by the procedure established by law.
There is a prescribed procedure for accepting the resignation of a government servant. If the employer has suffered any loss due to the actions and conduct of the employee, it may recover the loss from the employee but cannot indefinitely delay the decision on resignation. Such actions are unfair, unjust, and unreasonable, thus violating fundamental rights.
The high court shall ask from the concerned authority to state the reason for delay in taking decision on the petitioner's resignation. If the court finds that reason is unsatisfactory it may direct the authority to decide the resignation application within a stipulated time or finally dispose of the petition with any other appropriate decision.
The right to livelihood is not explicitly mentioned as a fundamental right in the Constitution of India. However, it is derived from Article 21, which guarantees the right to life and personal liberty. The Supreme Court of India has interpreted this article expansively to include the right to livelihood as an integral part of the right to life.
In various judgments, the Supreme Court has held that the right to life under Article 21 encompasses the right to earn a livelihood by lawful means. The court has recognized that the right to livelihood is essential for the realisation of the right to life with dignity. Therefore, any deprivation of livelihood must be in accordance with the procedure established by law and must be reasonable and justifiable. For more legal help please visit Kanoon India.
How to ensure re-entry in matrimonial home? I seek a residence order as I have been at my parents' house for nine months now. I have a two-month-old child, and my husband abandoned me in the middle of my pregnancy. I have filed an FIR against him, but he secured anticipatory bail, and all legal proceedings are still pending. Can I re-enter my matrimonial house?
Asked from: Uttar Pradesh
Under the Domestic Violence Act, a residence order is a legal directive that can be sought by a victim of domestic violence. It grants the victim the right to reside in the shared household, regardless of ownership or tenancy rights, and can also restrain the abusive partner from entering the household.
To obtain a residence order, the aggrieved person needs to file a complaint before the court of judicial magistrate, detailing the domestic violence experienced and requesting relief, including the right to reside in the shared household.
You should file a complaint under Section 12 of the Protection of Women from Domestic Violence Act 2005. The provision for a residence order under the Domestic Violence Act is contained in Section 19. This section empowers the Magistrate to pass a residence order in favour of the aggrieved person to grant them the right to reside in the shared household.
The residence order may also restrain the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household. Additionally, the Magistrate may impose other necessary conditions in the residence order to provide protection to the aggrieved person.
Under various laws including the Domestic Violence Act and personal laws like the Hindu Marriage Act, a wife typically has the right to reside in the matrimonial home. This right is recognized irrespective of whether she owns the property or not. It's aimed at providing her with a safe and secure place to live, especially in situations where she may be facing domestic violence or marital discord.
The residence order will guarantee your return to the matrimonial home and will also safeguard your personal safety. Your husband does not have the authority to limit your entry as the right to reside in the matrimonial home is inherent to the marital status of a wife. For more legal help please visit Kanoon India.
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Sapinda relation in Hindu family for ancestral property. I have some confusion about the sapinda relation. My father and me are want to get share in the ancestal property but the court is adament to reject our plea on the ground that we do not come under the concept sapinda as explained in the Mitakshra Law of inheritance. Now please advice what is sapinda and how to claim our share?
Asked from: Uttar Pradesh
In Mitakshara school of law, "sapinda" refers to a person's relatives who are connected through the line of ascent or descent, as well as those who are connected through the line of ascent of the father and the line of ascent of the mother. The concept of sapinda is important in matters such as marriage and inheritance, where restrictions may be imposed on relationships within a certain degree of sapinda to prevent incestuous unions and maintain social order. The exact rules regarding sapinda relationships may vary depending on specific cultural and legal interpretations within different regions.
In Mitakshara law, the concept of sapinda is closely linked to the inheritance of ancestral property. Sapinda relatives are those who are connected through the line of ascent or descent, as well as through the line of ascent of the father and the line of ascent of the mother.
When it comes to the inheritance of ancestral property, the law often imposes restrictions on who can inherit based on sapinda relationships. In many cases, only sapinda relatives are entitled to inherit ancestral property, while those outside the sapinda relationship may not have a legal claim to the property.
Additionally, there may be specific rules regarding the order of inheritance among sapinda relatives, with closer relatives typically having priority over more distant relatives. These rules help maintain the integrity of family property and ensure that it remains within the family lineage.
Overall, the concept of sapinda is significant in determining inheritance rights and the transmission of ancestral property within the framework of Mitakshara law. For more legal help please visit Kanoon India.
