I am an accused of the offence committed under section 13(1)- (c)(d)(e) of the prevention of corruption act. When the case was filed, the FIR was not coupled with a valid sanction of the competent authority. Therefore, I opposed the cognisance taken by the special court constituted under the prevention of corruption act. Later on, prosecution approached the state government for granting a valid sanction.
Consequently, the competent authority of the state government granted a valid sanction and prosecution submitted it before the court. Now I want to challenge this second sanction issued against me. What is the possibility?
Section 19 of the Prevention of Corruption Act (PC Act) mandates the previous sanction for prosecution of a public servant. That sanction is necessary for the offence under section 7, 10, 11, 13 & 15 of the PC Act. The sanction must be granted by proper sanctioning authority, empowered to issue a sanction for prosecution of the public servant.
When the sanction is necessary
The permission is essential for launching prosecution in a court of law. No court shall take cognisance of the offence, above mentioned unless a valid sanction accompanies the challan filed under section 173(2) of the Code of Criminal Procedure.
The court takes cognisance of the offence mentioned in the challan and frames charges for launching a trial against the accused. Hence, a valid sanction is sine quo non (essential condition) for taking cognizance of the offence under section 7, 10, 11, 13 & 15 of the PC Act.
Invalid sanction
If the sanction is invalid (not granted by a competent sanctioning authority), the accused has the right to challenge the cognisance. The sanction is not necessary for the initiation of an investigation. It becomes mandatory if the investigating agency submits its investigation report in the court for taking cognisance of the offence.
State of Goa v. Babu Thomas (2005) 8 SCC 130 the Supreme Court has held that invalid sanction is a fundamental error hence it renders the proceeding invalid.
Furthermore, in Nanjappa v. State of Karnataka (2015) 14 SCC 186 the Supreme Court has held that in case the sanction is found to be invalid the court can discharge the accused.
If a sanction for prosecution is invalid, then the accused should object at an earlier stage in the proceeding.
Subsequent Sanction
When accuses objects to invalid sanction, the court under section 465 of the Code of Criminal Procedure determines whether that irregularity in sanction has occasioned a failure of justice. If the court finds no failure of justice, then it cannot desist the prosecution to approach the proper sanctioning authority for grant of subsequent sanction.
The investigating agency submits its investigating report before the concerned authority for grant of sanction. The concerned authority examins that report and grant sanction if finds that offence has been committed by the public servant in discharge of his public duty. Eventually, the authority grants sanction if there is sufficient material disclosing the commission of a cognizable offence.
The procedural flaw in granting of sanction is a mere irregularity, and it can be corrected at the later stage in the proceeding. In Nanjappa v. State of Karnataka (2015) 14 SCC 186 the Supreme Court has held that court may take the cognizance of offence if the subsequent sanction is valid.
Hence, you’ll not get any fruitful relief if you challenge the validity of proceeding on the basis of invalid sanction. Generally, the High Court does not interfere in mere irregularity committed in the proceeding.
I purchased a plot in Saharanpur for the consideration of thirty-five lakh. The younger brother of the seller has filed a lawsuit for cancellation of the sale deed. I did not present in the court proceeding on some dates because I live in Mumbai. The civil court has passed an ex-parte order. I came to know about it from other sources. What is the remedy available against this decree?
It was your responsibility to present before the court. If you could not be able to appear on some dates, you were to move an adjournment application. The court does not pass an ex-parte decree without giving ample opportunity to the opposite party to present in the court proceeding. When the court finds that the defendant is deliberately remaining absent, the court is bound to pass an ex-parte decree in favour of the plaintiff.
Move an application for setting aside the decree. At this stage, you have a right to set aside that decree if you had sufficient cause to remain absent in the court. You should immediately move an interlocutory application (IA) for setting aside/restoration of the ex-parte decree.
When the defendant had sufficient reason for non-appearance before the court, he can move an IA under Order 9 Rule 13 of the Code of Civil Procedure(CPC) for setting aside the ex-parte decree.
You said that you are living in Mumbai. In this condition, it might be possible that the plaintiff got the decree by placing false evidence before the court. If he obtained the decree by any fraudulent act, then you may also move an application before the court under section 340 of the Code of Criminal Procedure. Adducing false evidence is an offence punishable under section 193-199 of the Indian Penal Code (IPC).
If you don’t want to set aside the ex-parte decree, you can file an appeal under section 96 of the CPC.
Prefer an appeal against the ex-parte decree
In Bhanu Kumar Jain v. Archana Kumar [(2005) 1 SCC 787]; the Supreme Court observed that when an ex-parte decree passed, the defendant has two clear options. First, to file an appeal or to submit an application for setting aside the order regarding Order 9 Rule 13 of the Code. He can initiate both proceedings simultaneously.
Order 9 Rule 13 of the CPC, empowers the Court to set aside the ex-parte decree when the applicant shows “sufficient cause” for his absence.
It is mandatory for you to prove that there was sufficient reason for your non-appearance. In State of Rajasthan v. Shankar Lal, (2009) 16 SCC 116 the Supreme Court is held that the reasons given for restoration of the petition should be satisfactory in considering the facts of the case. If there is no sufficient cause was shown for the restoration of the petition, then it should be dismissed.
The petition must show the cogent reason for absence because the court may examine the facts stated therein. Its contents are vital for determination of sufficient cause. If the court finds that there was adequate reason for absence, then it shall set aside the ex-parte decree.
In Raj Kishore Pandey v. the State of U.P., [(2009) 2 SCC 692] the Supreme Court is held that whether the applicant has made out sufficient cause or not in the application for restoration, the court is required to look at all facts pleaded in the petition.
You have two options against the ex-parte decree. Either you may move a petition for setting aside the decree or file an appeal against that decree.
Our neighbour is harassing us because he is saying that we have built an illegal construction and have blocked his way. Whereas, in reality, he has extended his house wall towards the road thereby blocked the access of the main road. Thereupon my dad filed a complaint in Panchayat. But nothing has happened. Now when we have been building a boundary wall then he is harassing us. Don't understand what to do. Please help me with your suggestion.
Your neighbour has been causing the breach of peach by blocking the access of the main road and interfering in construction of boundary wall. First of all, you should stop such interference. Therefore, you should report this incident to the officer-in-charge of the nearest police station. That police officer will send a report to the executive magistrate for seeking an order under section 145 of the code of criminal procedure.
Section 145 CrPC is a preventive measure and its primary object is to prevent a breach of peach by issuing temporary order in respect of a dispute regarding the property. So the magistrate may issue a notice to your neighbour and prevent him to interfere in construction of boundary wall. Since order passed under section 145 is temporary because magistrate cannot adjudicate the civil dispute so, you have to file a civil suit.
You should file a civil suit for a mandatory injunction to prevent him finally from interference in enjoyment of the property. Being the owner of the property you have an absolute right to make any lawful construction in the property. The absolute owner possesses the right to construct, destructor transfer the property without permission or interference of any person.
They cannot preclude you from the construction of building on the ground that it is illegal and against the bye-laws of the municipality. In Fatima v. Village Panchayat of Merces, 2000 SCC OnLine Bom 475; it is held by the Bombay High Court that a person has no locus standi (right) to prevent the neighbours to construct any part of their building on the ground that construction is illegal.
If any illegal construction is being done then municipality suo motu initiate legal proceeding against the person. Since you have valid permission to construct a boundary wall so no one has locus to stop the construction either by hook or crook.
Your neighbour has been committing a breach of peace therefore you should move an application to the nearest police officer and file a civil suit for a mandatory injunction for the ultimate settlement of the dispute.
I am a working lady and sometimes stay in office till late night due to some workload hence, used to stay in the office till 9 PM. I have been working in a private form so bound to follow the instructions of my boss. In fact, one of our colleague is very irritating such as interfering in my work without my desire.
Yesterday, he touched my private parts so as to show that it happened accidentally. Since he had the bad intention, therefore, one day he falsely said that my boss called me in his office. At the same time he followed me and locked the door from inside forthwith I entered the office. Unfortunately, there was no other staff except the peon. I strongly opposed his act thereafter he went out of the office.
His act constitutes the offence of sexual harassment punishable under section 354 A of the Indian Penal Code. Even today women have been placed at various disadvantaged positions in the society due to gender differences and bias.
In Vishaka v. State of Rajasthan, (1997) 6 SCC 241 the Supreme Court opined as sexual harassment is a form of gender discrimination that undermines dignity, equality of opportunity and treatment between women and men.
It projects unwelcome sexual advances or sexual overtures in order to commit sexual harassment. Eventually, any action or gesture either directly or by implication aims at or has the tendency to outrage the modesty of a female employee generally falls under the terms of sexual harassment.
The act of sexual harassment violates the fundamental right of gender equality and the right to life and liberty. In Prem Shankar Shukla vs Delhi Administration (1980) 3 SCC 526: the supreme court has opined that sexual harassment at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and there can be no compromise with such violations.
Your colleague has committed sexual harassment because his act was not innocent. He committed those acts especially with the intention to outrage your modesty. He knew the consequence of his acts because he tried to find suitable occasions for committing those acts.
The supreme court in Vishaka v. State of Rajasthan [(1997) 6 SCC 241] tried to define acts of sexual harassment as:
A physical contact and advances, a demand or request for sexual favours, sexually-coloured remarks, showing pornography and any other unwelcome physical, verbal or non-verbal conduct of sexual nature constitutes an act of sexual harassment.
You may file either a complaint or FIR for the offence of sexual harassment. This offence is punishable under section 354-A IPC. There must be a physical contact with sexual advances or overtures so as to commit sexual harassment.
Section 354-A is applicable in a situation where accused committed a series of same acts so as to advance sexual overture [(2017) 237 DLT 271]. All the ingredients of Section 354-A are fulfilled in your case so you may initiate criminal proceeding as soon as possible.
Can DNA testing decide paternity of a child? I want to get paternity check of my child through the court because I think that my wife had a sexual relationship with a man before the marriage. Her paramour is also working in Bangalore, and he used to contact her via email, chat and WhatsApp. I have sufficient evidence to prove that they are in the physical and sexual relationship. I doubt that my daughter is the child of her paramour. Therefore I want to file a criminal case against him as well as a divorce case against my wife. What is the law towards DNA test?
Asked from: Uttar Pradesh
Section 112 of the Indian evidence act provides presumption about the paternity of child upon fulfilment of certain conditions. The conditions mentioned in section 112 are necessary for the determination of paternity of a child. These conditions exclude the chance to perform a DNA test for the purpose of determine of paternity.
The issue is relating to the paternity of the child which strikes at the root and creates doubt about his legitimacy. Hence, the law always presumes the legitimacy of a child unless and until disproved by cogent evidence.
You have admitted that she is your legally wedded wife so prima facie the court shall presume that you are the father of the child. Now the “burden of proof” is shifted upon you to prove by sufficient evidence that he is not your child.
Also read: Presumption of Paternity in Law
When a child is born within 280 days from the date of your marriage, and you had sexual intercourse with his mother, then the conditions mentioned in section 112 become fulfilled, and the court shall presume that he is your child.
Generally, the court does not permit to conduct a DNA test in case child is born during the subsistence of valid marriage. Law does not direct to perform a DNA test to prove paternity unless there is substantial doubt of legitimacy. In Goutam Kundu v. the State of W.B., (1993) 3 SCC 418; the Supreme Court held that:
The DNA test is a useful test to determine the question of disputed paternity. The court can rely upon finding of such test as circumstantial evidence which ultimately excludes a particular individual as a father of the child. Section 112 of the Evidence Act does not create a legal fiction but provides a strong presumption to prove paternity of the child.
You can demand to perform DNA test if you have cogent evidence to show that you had no access to the wife or had no sexual relationship when the child begot or wife has an extramarital affair or living in adultery. Thereafter, the court can direct to conduct a DNA test.
In Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454: Section 112; reproduces the rule of English law that it is undesirable to enquire into the paternity of a child when the mother is a married woman and husband had access to her.
In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 the supreme court opined that Section 112 of the Evidence Act enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The presumption may afford legitimate means of arriving at an affirmative legal conclusion.
You can approach the court for a DNA test, but you have to prove that there is definite proof which creates doubt about the paternity or legitimacy of the child. You can file a criminal case against that man for the offence of adultery as well as you can present a divorce case on the ground of adultery.
My wife has filed three cases against me and my family members in different sections of IPC as well as under the Domestic Violence Act. She has filed a divorce case against me in district Ajmer so as to mount pressure upon me. In the meantime, I have filed a petition for restitution of conjugal rights before the family court Jaipur.
Thereupon she filed a criminal case under section 498-A/323/506/377/511 IPC before session court Rohini, New Delhi and maintenance case under section 125 crpc before the Magistrate court Ajmer. We have reached a conclusion that we should settle our disputes out of the court, hence, our disputes have settled. Finally, I want to know what procedure should I adopt to settle these cases?
As far as your case is concerned, you have reached at the stage of compromise then ready to settle all the pending cases. You should convince your wife so as to withdraw all the cases filed by her on the basis of compromise. When she decides to withdraw all these cases then you should file a petition before the supreme court under section 406 of the code of criminal procedure for transfer of all cases at any one district.
Thereafter you should prepare a compromise deed and file a divorce suit under section 13-B of the Hindu Marriage Act i.e. divorce by mutual consent. On the basis of that compromise deed, you may file a petition before the High Court under section 482 of the code of criminal procedure for quashing of a criminal case. In B. S. Joshi vs State of Haryana (2003) SCC 675; it is held by the supreme court that when parties to the marriage have reached compromise then criminal case filed by them shall be quashed.
Yogendra Yadav v. State of Jharkhand, (2014) 9 SCC 653; the High Court can quash criminal proceeding under section 482 of the code of criminal procedure in case parties have amicably settled their dispute and victim has no objection.
Divorce case shall lie however the criminal case has quashed by the high court and Divorce by mutual consent shall be granted by the court on the basis of compromise deed.
Also read: Court should quash the criminal case on the basis of compromise even the offence is non-compoundable
My wife has filed three cases against me and my family members in different sections of IPC as well as under the Domestic Violence Act. She has filed a divorce case against me in district Ajmer so as to mount pressure upon me. In the meantime, I have filed a petition for restitution of conjugal rights before the family court Jaipur.
Thereupon she filed a criminal case under section 498-A/323/506/377/511 IPC before session court Rohini, New Delhi and maintenance case under section 125 crpc before the Magistrate court Ajmer. We have reached a conclusion that we should settle our disputes out of the court, hence, our disputes have settled. Finally, I want to know what procedure should I adopt to settle these cases?
The High Court may quash the lame proceeding under section 482 of the code of criminal procedure in order to secure ends of justice. The High Court may quash the Fir when.
- FIR discloses no specific allegation against the accused towards the commission of the cognizable offence.
- FIR contains bald allegation against the accused so as to prove the commission of the cognizable offence.
- Informant wants to harass the accused therefore abused the process of law by filing a false FIR.
The state of Haryana vs Bhajan Lal, 1992 Supp (1) SCC 335; if the allegation in the FIR does not disclose any offence against the accused then the court may quash the FIR. FIR is a piece of information about a cognizable offence and given to the nearest officer in charge of the police station with the purpose to initiate an investigation. Therefore, FIR should disclose the ingredients of the alleged offence.
The police officer cannot initiate an investigation unless the FIR discloses commission of the cognizable offence. In case the FIR discloses commission of non-cognizable offence then police officer shall initiate investigation only after taking permission of the Magistrate under section 155 (2) CrPC.
The supreme court has opined that the High Court should exercise its power under Section 482 CrPC very sparingly and cautiously so as to:
- Secure the ends of justice
- Prevent the abuse of process of the court.
In your case, the allegation made in FIR is absurd and improbable because no prudent person can reach a conclusion that a person can commit offence only by standing near the bike.
My father has made a gift in favour of his second wife who is my stepmother thereupon she took possession over the property. She sold that property to his son-in-law thereafter my step sister erected a house thereon.
The property gifted was probably our joint family property. However, there is no evidence to prove that my father made a gift but I am quite sure that she forced my father to transfer the property upon her. My stepmother illegally dispossessed me from the land then sold it to her son-in-law. Can I challenge this gift?
There is no evidence towards execution of gift deed therefore you cannot challenge it on the ground that transfer was void. In fact, your stepmother has sold it to her son-in-law thereafter her daughter erected a house and living therein.
The above-mentioned facts show that your step sister has a valid right over the property. If it was your father’s self-acquired property, then he had the right to transfer it by way of gift to any person even his wife. Albeit you never challenged the gift deed as well as execution of sale deed.
In the absence of any pleading as well as any proper evidence, you can not prove before the court that it was joint family property. In Kuppala Obul Reddy v. B.V. Narayana Reddy, (1984) 3 SCC 447; the supreme court has opined that in absence of any proof or proper evidence about the nature of property i.e. property being joint family properties, it cannot be said that it is a joint family property only on the ground that property was being enjoyed by the family members.
Hence, you cannot challenge the sale deed only on the mere statement that it was joint family property. Your stepmother had been in lawful possession and in the due process sold it to her son-in-law invalid consideration. Therefore the transfer of property in favour of her son-in-law is legal and he has acquired absolute right over the property.
My wife has filed a false case against me to compel me for meeting her demand. She is not willing to live with me because she has an affair with a man and she wants to live with him. Her parents are also taking her favour therefore they demand a huge amount of money for mutual divorce.
I was unable to fulfil their demand so that they started fighting and threatened me to face dire consequences. After some time, she approached me to return all the goods and money expended in her marriage. I denied returning a single penny because it was unfair to demand.
Thereafter she filed a false case of cruelty and sodomy against me. We have settled our disputed consequently we want to get rid of criminal cases. My advocate says that sodomy is a non-compoundable offence, therefore, it cannot be compounded under section 320 crpc, please advise.
This criminal case is an undesirable consequence of the matrimonial dispute. Therefore if victim i.e. your wife is ready to withdraw this case to start a new life then the court may quash it under section 482 of the CrPC. The court will admit your petition irrespective of the fact that some offences are non-compoundable.
Section 482 of the code of criminal procedure confers wide power to the High Court. Generally, the court does not quash the non-compoundable offence because it gives the wrong signal in society. More serious offences are categorized as a non-compoundable offence because they affect society at large. Section 320 of the code of criminal procedure provides a list of compoundable offence. The offences not mentioned in the list are non-compoundable offence.
Since it is a false case and your wife is ready to withdraw then you should initiate a proceeding for quashing. Your petition is maintainable however sodomy is a non-compoundable offence.
In Yogendra Yadav vs State of Jharkhand, (2014) 9 SCC 653; the Supreme Court has held that
"The High Court can quash a criminal proceeding in the exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable."
The Supreme Court has reiterated the same decision in Gian Singh vs State of Punjab, (2012) 10 SCC 303. Above all where the alleged offence is wholly personal and does not affect the society then the court can quash the case in exercise of its power under Section 482 of the Code.
But in B.S. Joshi vs State of Haryana, (2003) 4 SCC 675; the supreme court has held that court can quash the criminal proceeding between parties to the marriage (husband-wife) if they have concluded that their marriage should be dissolved and a compromise deed has prepared by them to settle their issue out of the court.
The court can quash the criminal proceeding when there is no probability of conviction. A lame proceeding does not serve the interest of justice therefore any need to carry on that lame proceeding.
In Narinder Singh vs State of Punjab, (2014) 6 SCC 466; the High Courts accepted the compromise between the parties and quash the non-compoundable offence. When a victim has no objection to quash the proceeding then quashing becomes justified to:
- Secure ends of justice, or
- Prevent abuse of process of the court.
Therefore, in the interest of justice, the High Court can quash the proceeding if some non-compoundable offences are alleged therein. So in your case, you should file a petition before the High Court under section 482 of the code of criminal procedure for quashing of a criminal proceeding.
Sir, I refused to live with my husband due to deliberate demand of dowry and act of cruelty. I filed a maintenance case against him under section 125 of CrPC then court granted maintenance. My husband approached my family to reconcile the dispute and convince me to live with him. He approached my family with an ulterior motive to frustrate the maintenance order.
When I resumed marital life the same act of cruelty began because he had no interest to start a new life. My life became miserable thereupon I again decided to leave the matrimonial home. I left the matrimonial home and joined a convent school as a Hindi teacher.
Now I want to file another maintenance case against him however I revoked earlier petition due to resume of matrimonial life. Can I file such a case?
Yes, you can file the second petition for maintenance under section 125 of the code of criminal procedure because the right to maintenance is a continuing right. The second complaint about maintenance is maintainable despite you had approached the court in an earlier petition.
In Mahua Biswas v. Swagata Biswas, (1998) 2 SCC 359 it is held by the Supreme Court that the second petition under section 125 crpc is maintainable and the court can pass maintenance order in the second complaint irrespective of the fact that once the order was passed by him in the past.
It is the paramount duty of the husband to maintain his wife and save her from starvation. Consequently, the wife can claim maintenance anytime when she is living in destitution. You have not committed any mistake by resuming your marital life upon reconciliation of matrimonial dispute. If reconciliation fails and you are bound to live separate then you again entitled to seek maintenance under section 125 crpc.
The basic object of section 125 is to save the wife from starvation or destitution. The wife can claim maintenance under section 125 CrPC if she is unable to maintain herself. The court will pass maintenance order if:
- The applicant is the legally wedded wife.
- She has no sufficient means to maintain herself.
- Her husband has sufficient means but he refuses or neglects to maintain her.
Maintenance is a continuing right and an entitled person can approach the court under section 125 crpc anytime and without any period of limitation. You think that it is a second application for maintainable but it is a fresh complaint about maintenance. However, maintenance is a continuing right so you can move afresh complaint whenever you face vagrancy.
you have revoked earlier maintenance as the result of cheating of your husband. Your husband played a dirty game intending to frustrate you right to maintenance. But, your right is still alive and you can move a complaint under section 125. The court may admit your complaint because there is no restriction to move the second complaint.
