by Shivendra Pratap Singh | Apr 14, 2025 | Criminal Matter
Can I file second complaint under section 223 BNSS after dismissal of first on the same cause of action. I filed a complaint against the seller of the land for committed fraud in the course of execution of sale deed. Seller shown that he is the sole owner of the land because it was devolved to him after his father's death. When the sale deed was registered in the officer of registrar and I went to get possession of the land, then came to know that the property belongs to the irrigation department. This fact was concealed by him at the time of registration of sale deed.
That complaint was dismissed because the finding of the magistrate that the dispute is pertaining to the civil dispute and no criminal case is made out from the complaint. Later on, I came to know that the said land was already sold to one more person prior to my sale deed. Same thing happened in that case. One more fact I came to know that immediately before the sale deed the seller received a notice from the irrigation department to vacate the land. On breach of that notice a proceeding has been initiated by the department for his eviction from the land.
Asked from: Uttarakhand
You can file a second complaint on the same cause of action after the dismissal of the first one. From the facts, it appears that the accused had the intention to deceive right from the beginning. He has also cheated another person in a similar manner. The seller received a notice from the Irrigation Department to vacate the land, which proves that he was aware that he was an illegal occupant of the property. Since the seller is not the lawful owner of the land, he falsely claimed ownership and induced you to purchase it. These facts clearly establish that the offence of cheating has been committed.
The first complaint was wrongly dismissed by the court. When the Magistrate decided that there were no sufficient grounds to summon the accused, stating the case was civil in nature, he was required to provide you with an opportunity to be heard. That opportunity was not given before the complaint was dismissed. Therefore, you also have the right to file a revision Section 438 BNSS against that order of Magistrate.
The matter is entirely criminal in nature because the accused has committed the offence of cheating. Moreover, additional facts have come to light that were not within your knowledge when the original complaint was filed. Hence, you can file a second complaint, including these new facts, which further support that the accused had the intention to deceive you from the beginning by pretending to be the owner and persuading you to purchase the land. Section 223 does not bar a second complaint on the same cause of action when it is accompanied by new facts that were unknown to the complainant at the time of the first complaint.
Related: Accused falsely implicated in criminal case
by Shivendra Pratap Singh | Apr 14, 2025 | Criminal Matter
Accused falsely implicated in criminal case for abatement of suicide by the father of deceased. It is a case of quarrel. My husband and his employee were in heated exchange of words on the missing shipment which was important for my husband. That shipment was handled by his deceased employee. When my husband received an email that the requisite documents have not been received yet from your end, he made some enquiry about his employee. During that enquiry my husband asked him to produce the bill and receipt of that shipment. He refused to furnish those documents.
Thereafter, my husband called his manager and told him to assign some general work and if possible, send him at the godown. Thereafter, the deceased employee went angry and said that it would be better to die than doing job at the godown. In that reply my husband told then go and die. On the next day he committed suicide, but no suicide note was found from his dead body. Investigation was completed and charge sheet has been filed under section 306 IPC. How to protect my husband.
Asked from: Uttar Pradesh
The facts of the case suggest that the accused had no intention of instigating the deceased to take his own life. There was a quarrel between the accused and the deceased regarding a missing shipment. The shipment was important to the accused, and the deceased failed to produce a receipt to prove its delivery. Following the argument, the accused called his manager and instructed that the deceased be transferred from the office to the godown. In response, the deceased remarked that it would be better to die, to which the accused replied, "Go and die." The following day, the deceased committed suicide.
The entire incident indicates that the accused did not intend to instigate the deceased to commit suicide or end his life. The conduct of the accused further supports the view that he did not create circumstances that left the deceased with no other option but to commit suicide. Therefore, it cannot be concluded that the accused instigated the deceased to take such an extreme step.
In Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Supreme Court held that words spoken in a fit of anger or emotion, without the intention that consequences should actually follow, do not amount to instigation.
The Supreme Court has repeatedly emphasized in a series of judgments that to establish an offence under Section 306 IPC, there must be specific abetment as defined under Section 107 IPC, coupled with the intention on the part of the accused to bring about the suicide of the concerned individual. In Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628, the Court further held that the intention of the accused to aid, instigate, or abet the deceased in committing suicide is essential to attract liability under Section 306 IPC.
The words "go and die" spoken by the accused do not amount to instigation in any legal sense. Since the deceased committed suicide the next day, he had ample time to reflect and cool down. If the charge sheet contains no direct or indirect evidence that establishes a clear link between the alleged incitement and the suicide, then it is advisable to approach the High Court for the quashing of the charge sheet.
A petition under Section 528 of the BNSS should be filed in the High Court for quashing the charge sheet and the entire proceedings, as the accused has been falsely implicated in criminal case for abatement of suicide.
Related: Legal position on police investigation under Section 202 CrPC
by Shivendra Pratap Singh | Apr 12, 2025 | Blog, Criminal Matter
Legal position on police investigation under Section 202 CrPC. When a complaint is filed under Section 200 of the Code of Criminal Procedure (CrPC). The Magistrate, after examining the complainant and the witnesses, may postpone the issuance of summons or warrant (process) and refer the case to the police for investigation under Section 202 CrPC.
Legal position on police investigation under Section 202 CrPC
Such an investigation is ordered after the Magistrate has taken cognizance of the offence and has examined the complainant and the witnesses. It is important to note that an investigation under Section 202 is distinct from an investigation under Section 156(3) CrPC. The investigation under Section 202 does not involve the filing of a charge sheet. Instead, the police officer is required to submit a report to the Magistrate under this section.
The purpose of the investigation under Section 202 is to determine whether there are sufficient grounds to proceed against the accused under Section 204 CrPC. Accordingly, the investigating officer must examine witnesses other than those already examined by the Magistrate, particularly those who are acquainted with the facts and circumstances of the alleged offence.
If the investigating officer records only the statement of the accused and fails to examine any independent witnesses, and then submits a report to the Magistrate, any subsequent summoning of the accused based solely on such a report would be illegal. The very act of referring the matter to the police for investigation under Section 202 implies that the Magistrate is not, at that point, satisfied with the sufficiency of the grounds to issue process.
Since cognizance has already been taken, the accused cannot be compelled to be a witness against himself. Therefore, if the police record the accused’s statement and base their report solely on it, and the Magistrate issues process based on that report, it would amount to the Magistrate having considered the statement of the accused—something that is impermissible in law.
In such a scenario, the summoning of the accused is vitiated. The accused may challenge the summoning order by filing a revision. Furthermore, if no independent witnesses have been examined during the investigation under Section 202, it cannot be said that a proper investigation has been conducted. The Magistrate has the authority under Section 203 CrPC to dismiss the complaint if it is found that there is no sufficient ground to proceed.
Hence, in the absence of examination of independent witnesses acquainted with the facts of the case, the Magistrate is bound to consider only the complaint, and the statements of the complainant and his witnesses. The purpose of directing an investigation under Section 202 is to ensure that there is enough material to justify summoning the accused. The examination of the accused alone cannot satisfy this requirement. Therefore, issuance of process based solely on the accused’s statement is illegal, and the summoning order is liable to be quashed.
Also read: Court is not providing copies of statement recorded under Section 164 crpc
by Shivendra Pratap Singh | Apr 11, 2025 | Blog, Family Dispute
In India, impotency is recognized as a ground for divorce under various religious personal laws, including Hindu, Muslim, Christian, and Parsi laws, as well as under the Special Marriage Act, 1954. However, the interpretation and conditions for invoking this ground vary across different statutes.
Impotency a ground of divorce in India
Under the Hindu Marriage Act, 1955, which is applicable to Hindus, Buddhists, Jains, and Sikhs, impotency is addressed in two specific sections. Section 13(1)(ii) provides that divorce can be granted if the respondent has been incurably of unsound mind or suffers from a mental disorder making cohabitation impossible. Section 12(1)(a) specifically addresses impotency by allowing for annulment (declaring a marriage voidable) if either party was physically or mentally incapable of consummating the marriage. Judicial interpretation has emphasized that the impotency must have existed at the time of marriage and must be of a permanent nature.
Under Muslim Personal Law, as governed by the Shariat Application Act, 1937, impotency can also be a ground for divorce. Both Sunni and Shia legal traditions recognize that if the husband is incurably impotent and unable to consummate the marriage, the wife may seek dissolution. This can be done through Faskh-e-Nikah, a procedure where the wife approaches a Qazi (judge). Additionally, under the doctrine of Lian, if the husband falsely denies his impotency, the wife can still pursue divorce. Notably, the law may allow a period known as the Iddat, typically lasting from one to three years, during which the husband can attempt to prove his potency before a final decree is passed.
The Indian Divorce Act, 1869, which governs Christian marriages in India, also acknowledges impotency as a ground for divorce. According to Section 10(1)(iii), a petitioner may seek divorce if the respondent was impotent at the time of marriage or incurably of unsound mind. Courts typically require strong medical evidence to establish incurable impotency in such cases.
Under the Parsi Marriage and Divorce Act, 1936, Section 32(d) provides that impotency at the time of marriage, if it continues thereafter, is a valid ground for seeking divorce. Like other statutes, the emphasis is on the permanence of the condition.
For marriages conducted under the Special Marriage Act, 1954, which applies to inter-religious or civil marriages, Section 27(1)(a) clearly states that impotency existing at the time of marriage and persisting thereafter can be a valid reason for divorce.
Some key considerations apply across all these laws. Firstly, the impotency must be incurable; temporary or treatable conditions do not meet the legal threshold. Secondly, the burden of proof lies on the petitioner, who must often submit medical evidence to substantiate the claim. Lastly, if impotency develops after the marriage, it typically does not qualify as a ground for divorce under impotency clauses, though it might be considered under other grounds such as cruelty, depending on the circumstances.
In conclusion, impotency is indeed a valid ground for divorce or annulment in India, recognized under various personal laws and the Special Marriage Act. However, the specific legal procedures and requirements vary, making it essential to seek legal counsel based on the applicable religious or civil law framework.
Also read: Khula without consent of husband
by Shivendra Pratap Singh | Apr 10, 2025 | Service Matters
Promotion is denied even after quashing punishment order by the tribunal. The logic of the department is that I will be considered for promotion when the next DPC will be constituted. A specific order is passed by the department in this respect. It means I will be considered for promotion in the next dpc when another batch of officers will be promoted. When the previous departmental promotion committee was formed, a departmental enquiry was pending against me. That enquiry was pending from 1999 and dpc was formed in 2014. The order of the tribunal passed in 2023. Punishment order has been quashed by the tribunal on the basis that I was not involved in the alleged offence and also no opportunity of being heard was provided to me. In this circumstances it is very painful for me to wait for a promotion for an indefinite period.
Asked from: Uttar Pradesh
Your promotion was rejected by the Departmental Promotion Committee (DPC) because a departmental enquiry was pending against you. In such a situation, your promotion order should have been kept in a sealed cover by adopting sealed cover procedure. This is a valid procedure when promotion is being considered for an officer facing disciplinary proceedings. However, it is not clear from your question whether the DPC had actually placed your promotion order in a sealed cover.
The quashing of the punishment itself grants the employee the right to be promoted from the date when their juniors were promoted. This principle applies to your case. The department's decision to wait until the next DPC is convened is patently erroneous.
Given these circumstances, you should challenge the department's order by filing a claim petition before the services tribunal. In G. Muthuraj v. State of Tamil Nadu, (2013) 11 SCC 648, the Supreme Court held:
Therefore, once the order of punishment was quashed by the learned Single Judge, the appellant automatically became entitled to be considered for promotion with effect from the date persons junior to him were promoted to the post of Executive Engineer.
Based on this judgment, you are entitled to be promoted from the date the DPC issued promotion orders in 2014. Your promotion was denied on the ground of a pending departmental enquiry. However, once the punishment order was quashed and you were exonerated by the tribunal, you became automatically entitled to promotion from the date your juniors were promoted.
You should file another claim petition seeking the quashing of the department's order and requesting promotion effective from 2014. The decision of the department thereby your promotion is denied even after quashing punishment order will be set aside by the tribunal.
Also read: Second ACP is not granted because an enquiry is pending
by Shivendra Pratap Singh | Apr 5, 2025 | Blog, Service Matters
Notional promotion in Indian Service Law serves as a retrospective remedy for employees who were unjustly denied timely promotions, functioning primarily to rectify past injustices without providing actual financial benefits for the period in question. Its core purpose is to correct seniority discrepancies and ensure accurate pension calculations, particularly in cases of administrative errors, court-ordered rectifications, post-retirement settlements, and seniority disputes. While employees do not receive back wages, notional promotion allows for the recalculation of pension and retirement benefits based on the higher grade they should have attained.
Legal foundations for this concept are rooted in Fundamental Rules (FR 22 & 25) and bolstered by judicial precedents, such as the Supreme Court's rulings in Union of India vs. K.V. Jankiraman and State of Kerala vs. E.K. Bhaskaran Pillai, which clarify its application and the absence of monetary entitlements unless explicitly specified. Essentially, notional promotion acts as a legal mechanism to restore fairness in career progression and pension rights without immediate financial gain.
Union of India vs. K.V. Jankiraman (1991) 4 SCC 109
The Supreme Court's landmark judgment in Union of India vs. K.V. Jankiraman (1991) established crucial guidelines regarding delayed promotions due to pending disciplinary inquiries, effectively preventing the arbitrary withholding of promotions. The Court ruled that mere pendency of inquiries should not indefinitely bar promotions, and employees later exonerated are entitled to notional promotion from their original due date, albeit without arrears of salary. Actual promotion occurs post-exoneration, with seniority fixed retrospectively.
Also read: Promotion is denied even after quashing punishment order
This judgment balanced employee rights with administrative discipline, clarifying that notional promotion serves to correct seniority and pension rights, not to provide back wages unless the inquiry was proven malicious. The ruling's impact is evident in subsequent DoPT guidelines and its application in cases like State of Punjab vs. Bakshish Singh and Union of India vs. K.G. Soni, cementing its status as a pivotal precedent in Indian service law.
Also read: Efficiency Bar
by Shivendra Pratap Singh | Apr 5, 2025 | Blog, Service Matters
Increment: In Indian service law, particularly for government employees, an increment represents a periodic increase in salary within a pay scale, acting as a financial reward for continued service, contingent upon satisfactory performance and adherence to service rules. These increments, primarily annual, stagnation, or efficiency bar-related, are governed by Fundamental Rules (FR), Central Civil Services (CCS) Rules, and State Service Rules. An annual increment, typically automatic, can be withheld due to inefficiency or disciplinary actions, while a stagnation it addresses situations where employees reach the maximum of their pay scale without promotion.
The efficiency bar increment is specifically withheld if an employee fails to meet performance standards. The withholding of increments can occur as a penalty under Rule 11 of CCS (CCA) Rules, 1965, due to inefficiency as measured by the efficiency bar, or for administrative reasons such as prolonged absence. Judicial interpretations emphasize that increments are conditional benefits, not absolute rights, and their withholding must be justified and not arbitrary.
Recent changes, notably from the 7th Pay Commission, have standardized annual increases to 3% of basic pay, with fixed increment dates. Essentially, an enhancement in salary is a crucial component of employee compensation, subject to performance-based evaluations and legal safeguards against unjust denial.
Also read: Notional promotion
by Shivendra Pratap Singh | Apr 5, 2025 | Blog, Service Matters
In the context of Service Law in India, the "Efficiency Bar" serves as a critical performance evaluation checkpoint for government employees. This mechanism is designed to assess an employee's competence before allowing them to advance to higher pay scales within their existing grade. Primarily applicable to government servants under the Central Civil Services (CCS) Rules and similar state regulations, it's frequently encountered in time-bound promotions or automatic pay progression schemes. The core objective of the Efficiency Bar is to uphold meritocracy and prevent automatic promotions for underperforming individuals, thereby maintaining efficiency in public administration.
If an employee is deemed inefficient, they can be stopped at the Efficiency Bar, resulting in the denial of further increments until their performance improves. This process ensures that only deserving employees are rewarded. The consequences of being stopped at the bar include the withholding of increments, a chance for improvement, and potentially, disciplinary action like compulsory retirement for prolonged inefficiency. Indian courts have validated the Efficiency Bar as a necessary administrative tool, emphasizing that decisions to stop an employee must be fair, reasoned, and based on objective assessments.
It's important to distinguish the Efficiency Bar from probation; while probation is an initial assessment for new recruits, this bar applies to confirmed employees at later career stages. In essence, it functions as a performance-linked control mechanism, promoting accountability and discouraging complacency within government services.
by Shivendra Pratap Singh | Apr 5, 2025 | Service Matters
Second ACP is not granted because an enquiry is pending. That has been pending for the last five years. I am posted in the irrigation department. A false complaint was filed by the contractor that I demanded money from him for clearing his bills. Upon his complaint an enquiry was set up by the department. In 2024, I will have completed sixteen years of service and become eligible for the second ACP. Now for the sake of pending enquiry the department has refused to grant that benefit.
Asked from: Uttar Pradesh
The departmental enquiry against you remains pending, and no conclusive determination of punishment can be inferred at this stage. Even if the enquiry ultimately results in a penalty, such punishment would be imposed in 2025 or thereafter. Consequently, it stands as an established fact that until 2024—when you became eligible for the Second Assured Career Progression (ACP)—no punishment had been awarded to you.
It is a settled principle of law that any disciplinary action ordinarily takes effect prospectively from the date of its imposition and cannot be applied retrospectively. Therefore, the department lacks the authority to enforce the proposed punishment with retrospective effect.
In the given circumstances your sixteen-year service record remains unblemished up to the date of your ACP eligibility, therefore, you are legally entitled to the benefits of the Second ACP.
To enforce your right, you should file a writ petition in the High Court under Article 226 of constitution, seeking a mandamus order directing the department to grant you the Second ACP, as no punishment had been imposed on you at the time of eligibility.
Also read: Department is planning to recover more than eight lakh from my salary
by Shivendra Pratap Singh | Apr 1, 2025 | Service Matters
Department is planning to recover more than eight lakh from my salary in excess payment made to me from 2009. My case is urgent and I want quick advice from your website. I am employed in the irrigation department and at the post of head clerk. When the increment was added in my salary the department says that was erroneously added in my salary. Now I am going to retire in the month of September. All recovery will start from April 2025. In this situation I will face financial problems and not be able to manage my family. In this situation I have given several representations to the head of the department for not recovering any amount from my salary but it is planning to recover that amount from my salary.
Asked from: Uttar Pradesh
Based on the facts of your case, it appears that an anomaly in the fixation of your salary occurred in 2009. Now, as you approach retirement, it is evident that the incorrect salary fixation was not due to any fraud or misrepresentation on your part. The error was solely the fault of the department, which miscalculated your salary by wrongly interpreting the applicable rules or laws when adding increments in 2009. You had no role in this process, and therefore, you are not at fault. Any attempt to recover the excess salary from you at this stage would cause you immense hardship.
Your case is directly covered by the legal principles established by the Supreme Court in State of Punjab vs. Rafiq Masih (2015) 4 SCC 334. In this judgment, the Hon'ble Court held that no recovery can be made from Class III and IV employees who are due to retire within one year, particularly when the anomaly was committed more than five years before the order of recovery.
Additionally, in Col (Retd.) B. J. Akkara vs. Government of India (2006), the Supreme Court ruled that unless an employee has committed fraud or misrepresentation in obtaining an excess salary, the employer has no right to recover that amount.
Given these legal precedents, recovery in your case is not permissible. You should consider filing a writ petition in the High Court to challenge both the recovery order and the refixation of your salary. In light of the Supreme Court's rulings, the court is likely to grant an immediate stay on the recovery process and ultimately quash the order after providing the government an opportunity to be heard.
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