Wednesday, April 3, 2013

[rti4empowerment] Fwd: Law Web

 

Very useful mail for activists and advocates. 

Thanks and Regards,
Alok Tholiya,
9324225699 


---------- Forwarded message ----------
From: Law Web <beniprasad.agrawal@gmail.com>
Date: Mon, Mar 25, 2013 at 7:37 PM
Subject: Law Web
To: atholiya@gmail.com


Law Web

Good Practice Guide for Computer-Based Electronic Evidence

Posted: 24 Mar 2013 08:11 AM PDT

http://www.7safe.com/electronic_evidence/ACPO_guidelines_computer_evidence.pdf

The traditional "pull-the-plug" approach overlooks 
the vast amounts of volatile (memory-resident and 
ephemeral) data that will be lost. Today, investigators 
are routinely faced with the reality of sophisticated 
data encryption, as well as hacking tools and malicious 
software that may exist solely within memory. Capturing 
and working with volatile data may therefore provide 
the only route towards finding important evidence. 
Thankfully, there are valid options in this area and 
informed decisions can be made that will stand the 
scrutiny of the court process.

The guide also considers network forensics pertaining 
to "information in transit" i.e. as it passes across 
networks and between devices, on a wired and 
wireless basis. As forensic investigators, we need to 
take into consideration, where legally permitted, the 
flow of data across networks. This type of approach 
can prove critical when analysing and modelling 
security breaches and malicious software attacks. 
7Safe advocates best practice in all dealings with 
electronic evidence. By publishing this guide in 
conjunction with ACPO, our aim is to help ensure
that procedural problems do not arise during 
investigations or in the court room and that the very 
highest of standards are achieved and maintained
by those working in the electronic evidence arena.

Information recovered through RTI applications be admissible as evidence in courts?

Posted: 24 Mar 2013 08:01 AM PDT


In what situations will the information recovered through RTI applications be admissible as evidence in courts?
Answer: Under Section 2 (j) (ii) of the Act, the applicant can ask for certified copies of the documents or records. This certified copy of the document giving information can be admitted in the Court as Secondary Evidence. Note that under the RTI Act, the right to information includes the right to inspection of work, documents and records; taking notes, extracts or certified copies of documents or records; and taking certified samples of material held by the public authority or held under the control of the public authority. A citizen has a right to obtain information from a public authority in any relevant form including in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through print-outs provided such information is already stored in a computer or in any other device from which the information may be e-mailed or transferred to diskettes etc.
Reasoning: Information obtained under the RTI Act is part of the documents held by Public Authority, who are Gazetted officers. Any certified copy of a document received by virtue of RTI Act is secondary evidence according to the Evidence Act, 1872. It can be used as Secondary Evidence in Court, since it is part of the Government records and provided by Govt. Authorities, certified under Govt. Seal.
Effect: For information obtained under the Act to be admissible in Court, it is essential that a certified copy of the same is obtained. The information can become important evidence and it can be used for proving one's stand in Court. These days the Courts are allowing information obtained under RTI as evidence in an increasing number of cases.

The court must be satisfied that the document sought to be introduced as secondary evidence is a faithful and accurate reproduction of the document whose copy it purports to be.

Posted: 24 Mar 2013 07:57 AM PDT

The argument of the learned counsel, in my opinion, is based on a very narrow and technical approach to the meaning of this section. The argument also ignores the import of the words 'means and includes' in the beginning of the section. According to the ordinary rules of interpretation of statutes where in the definition of any term, the legislature intends to include certain things within the meaning of the term defined the phrase 'include' is usually employed and from this must be inferred a legislative intent to give an enlarged meaning to that word. The word 'include' therefore, is normally a term for extension of scope of definition and not used in any way to restrict the meaning. In such a case the definition has to be read as enlarging its meaning and when so construed, it should be deemed to be comprehending all that it may signify according to its natural import and would include all that is specifically intended to be included within the meaning of the term according to the definition given in the Act.
 For the reasons I have already given earlier, I am of the opinion that the scope of Section 63 is not restricted to its five clauses but leaves enough scope for those cases which do not strictly fall within any of those enumerated therein. The term 'includes' leaves some scope for a case like the present one. The Court must, however, be satisfied that the document sought to be introduced as secondary evidence is a faithful and accurate reproduction or draft of the final document whose copy it purports to be.

Allahabad High Court
Smt. Lachcho vs Dwari Mal on 5 August, 1985
Equivalent citations: AIR 1986 All 303

1. In this Second Appeal by the defendant in a suit for ejectment, only one point has been urged in support of the appeal. The appellant urges that on the evidence on the record, the copy of the notice has not been proved in accordance with Section 63 of the Evidence Act since it is not the compared copy of the original and as such should not have been taken into consideration while decreeing the plaintiff's suit
2. The appellant has admitted that a notice had been sent by the plaintiff and it was duly replied to by her and her original reply is also on the record as also the draft of the notice prepared by the plaintiff's counsel The learned counsel has submitted that before a document can be tendered as secondary evidence, it must be established that the requirements of one of the five clauses of Section 63 had been complied with. Section 3 of the Evidence Act defines 'evidence' which means oral and documentary evidence. Oral evidence is dealt with in Chapter IV while documentary evidence has been dealt with in Chapter V of the Act and deals primarily with the proof of contents of documents. Documentary evidence itself is divided into two parts -- primary and secondary and after defining what is primary evidence and secondary evidence, Section 64 lays down that proof of document must always be by primary evidence except in those cases which are dealt with in subsequent Sections. Section 63 may, therefore, be extracted here to clearly understand the submission made by the counsel:
"63. Secondary evidence-Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter contained :
(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it."
3-4. The opening words of the section are that secondary evidence 'means and includes' and thereafter five kinds of secondary evidence have been enumerated. According to the counsel Sub-clauses (1), (2), (4) and (5) of the section are not attracted in the instant case and the nearest clause is Sub-clause (3) thereof according to which the secondary evidence must be a copy made from or compared with the original. What has been stressed is that according to the plaintiff's evidence, there is nothing to indicate that the secondary evidence of the notice i.e. paper No. 54-Ka was a copy made from or compared with the original. It may be stated that according to the plaintiff's statement, his counsel had drafted the notice Paper No. 54-Ka and thereafter it was faired and that faired document was sent to the defendant. It is on this basis that it is urged that Paper No. 54-Ka is only a draft and it was never compared with the original faired copy which was actually dispatched to the defendant. Obviously 54-Ka is not a copy made from the fair notice which was sent to the defendant.
5. The argument of the learned counsel, in my opinion, is based on a very narrow and technical approach to the meaning of this section. The argument also ignores the import of the words 'means and includes' in the beginning of the section. According to the ordinary rules of interpretation of statutes where in the definition of any term, the legislature intends to include certain things within the meaning of the term defined the phrase 'include' is usually employed and from this must be inferred a legislative intent to give an enlarged meaning to that word. The word 'include' therefore, is normally a term for extension of scope of definition and not used in any way to restrict the meaning. In such a case the definition has to be read as enlarging its meaning and when so construed, it should be deemed to be comprehending all that it may signify according to its natural import and would include all that is specifically intended to be included within the meaning of the term according to the definition given in the Act.
6. On the other hand, where any term or thing in the Act is defined as 'meaning' some thing this must ordinarily be interpreted to mean only that which is defined therein notwithstanding what its natural or normal import may be. Thus for the purposes of the Act, the word or phrase as defined must always be understood to mean only that and in such a case it must be deemed that the legislature intended to give it a hard and fast definition, which must be interpreted in that light.
7. In some statutes, however, the phrase 'mean and include' is used to define the import of a particular expression, word or phrase. From the word 'mean', what one understands is to have in mind and is some times, if rarely, treated as synonymous with the word 'includes'. As seen above, the word 'includes' is a term of enlargement and very seldom restrictive in operation. Thus the terms 'means' and 'includes' are not the same in their import and denote two different aspects. While one is restrictive, the other is expansive. Where, therefore, the legislature chooses to employ both these words together in order to define or explain something, it cannot be said to be impurposive. This is one of the legislative modes of defining a certain thing. When using the word 'mean' the legislature only intends to restrict the meaning of the term to a great extent, but where its intention is not to be too rigid in this matter, the other term of enlargement i.e. 'includes' is also used simultaneously. Thus where both these terms are used to define some thing, it should only be taken to mean that primarily the intention of the legislature is to supply restricted meaning to the term and ordinarily should be taken into account in that spirit. The extended meaning can be given to the thing defined only to the extent that it does no violence to the definition given in the Act and to that extent, the term 'includes' can be taken help of. In this view of the matter, permissive inclusion or enlargement of a term intended to be given a restricted meaning in some rare cases may be given a slightly enlarged meaning also where sticking to the restrictive definition too rigidly may result in causing injustice.
8. Reading now Section 63 in the light of the above, and applying the principles to the facts of the present case, we find that there is nothing in the section which may cover a situation like the present one therein. According to sub-el. (3), a document sought to be introduced as secondary evidence ought to be either a copy made from the original or compared with the original. In this case, a draft was prepared first and the final copy was prepared with its aid. Now the draft which is Paper No. 54-Ka is not a copy made from the original because at that time there was no original in existence. The draft was copied out in fair by the counsel and was sent. Again the final faired notice cannot be said to be a copy being the original notice which was sent to the defendant. It also cannot be said to be a copy compared with the original. Therefore, the present case may not fall in any of the five categories enumerated in Section 63. Can, therefore, in these circumstances; the meaning of the term 'secondary evidence' as enumerated in any of the five clauses of Section 63, be enlarged so as to include a fair copy prepared from a draft of a notice also as being admissible in evidence as secondary evidence. In my opinion, this can be done and there should not be any restriction in doing so. As I understand the evidence, the fair copy of the notice was prepared by the counsel in his own handwriting (it is in evidence that the original was not got typed but was scribed by the counsel himself) and, therefore, comparison with the draft is inherently involved in the process. When a draft is copied to prepare the fair copies, it is usually the faithful reproduction of the draft which is finally given shape of the document, i.e. the notice in the present case which was sent to the defendant. Thus even though there may not be direct evidence of the fact that the counsel had compared the draft with the final notice, yet from the very process by which the final notice was prepared, it must be deemed that it was so done which automatically compared it with the draft notice. It is true that there are some cuttings in the draft but it is quite natural. When the final notice must have been prepared according to the said draft, the portions cut down or scored out must have been omitted while preparing the final notice.
9. The learned counsel has submitted that when the expression 'mean and include' is used, it must be given the ordinary and precise meaning and should be treated as exhaustive. He has cited some cases in support of this submission but, as noticed above, this expression need not necessarily be given such a rigid construction or taken as strictly defining what the meaning of the words must be under all circumstances. Rather they should be regarded as only declaring and should be comprehended within the particular expression where the circumstances require that they should.
10. The first case cited by the appellant is Jagannatha Naidu v. Secry. of State for India in Council, AIR 1922 Mad 334. However, in that case, there is no discussion at all on the question and the learned Judges constituting the Division Bench felt satisfied merely by mentioning that the term 'means and includes' in Section 63 of the Evidence Act is exhaustive of secondary evidence of five kinds enumerated therein. The other case to which reference in this connection is made is that ofGirdhar Prasad v. Ambika Prasad Thakur AIR 1969 Pat 218 and there also Section 63 of the Act was held to be exhaustive of all kinds of secondary evidence. However, the facts of that case would reveal that there a draft of an award by the arbitrator signed only by one of the arbitrators was sought to be introduced as secondary evidence of the award. In para 17 of the Report, the learned Judges observed in this connection as under: --
"Here the drafts can be admitted in evidence only if it is shown by the evidence on the record that they were compared with the original and the contents are the same. Such evidence is wanting in this particular case."
10A. The evidence in that case did not indicate that the final award prepared from the (draft) award was actually reproduction of the draft. For these reasons, the learned Judges did not accept the evidence as secondary evidence of the contents of the draft within the meaning of Section 63 of the Act. I respectfully disagree with this line of reasoning. The learned Judges of the Patna High Court have felt that Section 63 is exhaustive of all kinds of secondary evidence that count be led.
11. The learned counsel also placed reliance on a single Judge decision of the Lucknow Bench of this Court in Deputy Commr. of Pratabgarh v. Universal Film Co. (India) Ltd., AIR 1950 All 696. In that case, the estate of a director of a company had been taken over by the Court of Wards and under the law it was necessary for the Company to notify its claim to the Deputy Commissioner. The Company relied upon a document purporting to be the office copy of a claim made before the Deputy Commissioner and which appeared to be signed by one Bhairon Prasad. The only evidence led in the case was of two persons who identified the signatures of Bhairon Prasad who was predecessor in office. No evidence, however, was given about the contents of the letter sent to the Deputy Commissioner. It was under these circumstances that it was held that the mere proof of signature of Bhairon Prasad did not amount to proof of the contents of the original. There was nothing to show that Ext. 25 (the office copy in question) was the result of a uniform process, namely, typing with the aid of a carbon paper and there is certainly no evidence to show that it was compared with the original. In order to show that it was an exact copy of the original, it was necessary to prove that either it was prepared by a uniform process or it was compared with the original by some witnesses who can give evidence to that effect.
12. It is this part of the decision on which the maximum reliance has been placed by the learned counsel. However, in this case, the contents of the notice had not been proved at all. On the other hand, in the case in hand, it has come in evidence that from the draft notice 54-Ka, a fair notice was prepared by the counsel and was dispatched to the plaintiff. The instant case is, therefore, clearly distinguishable from the facts of the decision relied upon.
13. For the reasons I have already given earlier, I am of the opinion that the scope of Section 63 is not restricted to its five clauses but leaves enough scope for those cases which do not strictly fall within any of those enumerated therein. The term 'includes' leaves some scope for a case like the present one. The Court must, however, be satisfied that the document sought to be introduced as secondary evidence is a faithful and accurate reproduction or draft of the final document whose copy it purports to be.
14. The two Courts below have considered this aspect of the matter and have come to the conclusion that it was a true and faithful reproduction of the final notice sent and for this the Court below has also taken aid from the reply admittedly sent by the defendant in response to the plaintiff's notice. In my opinion, therefore, the document 54-Ka was rightly taken as secondary evidence of the contents of the notice and cannot be rejected on the technical ground that Section 63 will bar its admission.
15. The matter may be considered from another angle also. The fact that a notice was sent is admitted and it was also replied to by the appellant. Only the validity of the notice was challenged. In such circumstances, it was for the defendant to produce the original to show what kind of invalidity the notice suffers from. I am supported in my view by a decision of a learned single Judge of this Court in Mast Ram Ram Charan v. Deputy Commr. Bahraich, AIR 1968 All 321. In that case a notice under Section 80, C.P.C. was admitted to have been received by the administration but its validity was challenged. It was in that connection that the learned Judge has observed as under: --
"Original notice was with defendant and it was for him to produce it before the Court. What were the contents of the notice could not be proved by oral evidence in view of Section 92 of the Evidence Act. The onus being on the defendant No. 1 to prove that the notice was defective..........".
16. In view of what I have said above, I cannot agree with the submissions so vehemently made by the appellant. In my opinion, the notice was properly proved. No other point was pressed. The cross objection also has no force and must fail.
17. Accordingly, the appeal is dismissed. However in view of only legal points being involved in the appeal, I think it proper that parties should be left to bear their own costs of this appeal. The cross objection is also dismissed with costs easy.

Admissibility of documents received under right to information Act

Posted: 24 Mar 2013 07:50 AM PDT

Documents or certified copies obtained from courts are not the only documents which are admissible as evidence. There are many other kinds of papers which we tender as evidence like personal/official letters,survey records,rent-receipts etc. There is no reason why information obtained under the RTI Act should not be taken in evidence. It is as good as any other document admissible as evidence. Moreover,it is primary evidence and not secondary. What is the use of the information if it can not be used as evidence? I am of the firm opinion that the "information"under the RTI Act is an important piece of evidence.
Information obtained under RTI Act, are actually part of the documents held by Public Authority, who are actually Gazetted officers and also hold quasi-judicial authority. Any certified copy of any document received by virtue of RTI Act, is a document in conclusive. By virtue of the RTI Act, it is a perfect Primary and Secondary evidence as well, since it is part of the Government records and provided by Govt. Authorities, certified under Govt. Seal. The orders of the Appeal authorities (Lok-Ayukta ...) are final and no court has jurisdiction to admit any case against these orders made within the RTI Act. (u/s 23). (In other words, the court has no jurisdiction to object to accept as evidence, the documents obtained under the RTI Act). (In other words, the Court has no jurisdiction to summon or record evidences of the PIO's ..., giving them immunity against all acts, but the RTI Act) As it is the PIO / SIC / CIC, all are under Oath to uphold the Constitution and Laws u/s 13(3) and 16(3). HENCE, by that logical fact, the
Information (Documents ...) that is given by this authorities are already under Oath under the Constitution and hence cannot be refuted. There is no reason the PIO could provide you with false / incomplete documents, as this itself is barred under the RTI Act. Hence the question of incomplete evidence does not arise.

Submission on the Admissibility of Certified Copies of Documents obtained under  the Right to Information Act, 2005 as Secondary Evidence under the provisions of the Evidence Act, 1872.

Section 61 of the Evidence Act, 1872 provides that thecontents of documents may be proved either by primary or by secondary evidence. Further Section 65 of the Evidence Act provides for circumstances where under secondary evidence may be given of the existence, condition or contents of a document. Section 65(g) stipulates that in case of public documents as defined under Section 74, certified copies may be admitted as secondary evidence.

Section 74 (1) (iii) of the Evidence Act, 1872 stipulates the documents forming the acts or records of the acts of public officers, legislative, judicial and executive, of any part of India to be public documents.

The certified copies of public documents which are required to be submitted as secondary evidence can be obtained under the following provisions:
(I)                 Section 76 of the Evidence Act and
(II)              Provisions of the Right to Information Act, 2005.

(I)                 Section 76 of the Evidence Act provides that every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

 Thus Section 76 in terms entitles a person, who has a right to inspect a public document, to a certified copy thereof. The section, however, does not specify the persons who would be entitled to inspect a public document. But judicial decisions have settled that question. It has been held that the right to inspect a public document is correlated to the interest which the person who seeks inspection has in the document and that interest should be a direct and tangible one in the document.

(II)               On the other hand section 2(j) of the Right to Information Act, 2005 defines right information as follows:


"right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to—

(i)
inspection of work, documents, records;

(ii)
taking notes, extracts or certified copies of documents or records;

(iii)
taking certified samples of material;

(iv) 
obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;
                  
Section 3 of the said RTI Act provides that every citizen shall have the right to information and may obtain the same by submitting an application under Section 6 of the RTI Act and payment of the requisite charges as stipulated in the Right to Information (Regulation of Fee and Cost) Rules, 2005.

          Furthermore, Section 6(2) of the RTI Act clarifies that an applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

An analysis of the relevant provisions of both Acts establishes that the provisions of the RTI Act imposes requirements, for obtaining certified copies, which are less stringent  from those contained in the Section 76 of the Evidence Act.

          Firstly, the certified copies under RTI Act can be obtained by any person whereas under the Section 76 of Evidence Act only a person who has a right to inspect i.e. a person having direct and tangible interest in the document can demand certified copies.

          Secondly, under Section 76 of the Evidence Act, certified copies can be provided only by public officer having custody of the public document; whereas the RTI Act designates a specific Central Assistant Public Information Officer (CAPIO) who is entrusted with the responsibility of providing certified copies. The said CAPIO may or may not have custody of the said public document.

Thirdly, Section 76 of the Evidence Act provides for a specific procedure for making a certified copy such a signing on the bottom of each document, date, name and official title of the said officer, recital that it is a true copy of such document etc. On the other hand no specific procedure for certification is provided under the RTI Act; putting the date and office seal on each document copy along with a covering letter by the CAPIO may be deemed to constitute a certified copy of the public document.

Coming back to the provisions of the Evidence Act, Section 63 of the said Act provides as follows:
63. Secondary evidence. Secondary evidence means and includes--
(1)      certified copies given under the provisions hereinafter contained; 
(2)      copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3)      copies made from or compared with the original;
(4)      counterparts of documents as against the parties who did not execute them;
(5)      oral accounts of the contents of a document given by some person who has himself seen it.

                    It has been judicially settled that Section 63 is not exhaustive of all the kinds of secondary evidence. It has been held that the scope of section 63 does not strictly fall only within any of those sub-sections enumerated therein. The term 'includes' leaves scope for such an interpretation. However, the court must be satisfied that the document sought to be introduced as secondary evidence is a faithful and accurate reproduction of the document whose copy it purports to be. (Smt Lachcho vs Dwari Mal AIR 1986 ALL 303)

          Therefore, certified copies of documents obtained under the provisions of the RTI Act are admissible as secondary evidence under Section 63 of the Evidence Act, 1872 as long as the court does not have any reason to doubt that the said certified copies are not faithful and accurate reproductions of the original documents in custody of Government Departments.

           If a prosecution is lanunched on the basis of recorded conversation the accuser is only required to satisfy the authenticity of the recording.  He is not required to prove that the same was obtained from accused by telling him on the beat of drum by saying,  "Hello dear, I am recording the conversation and please speak as much evidencs against you".

Many a times, PIO redirects applicant to website for getting information rather than himself supplying it in hard copy.

Posted: 24 Mar 2013 07:35 AM PDT


INFORMATION ON WEBSITES UNDER RTI ACT 2005

Many a times, PIO redirects applicant to website for getting information rather than himself supplying it in hard copy. You can file first appeal based on following points:

1. Even when information is available on website, CIC has directed supply of information in hard copies vide following decisions:

CIC/WB/A/2010/000167SM dated 03-06-2011
No.37/ICPB/2006 dated 26-06-2006
CIC/SG/A/2011/001755 dated 25-07-2011
CIC/SM/A/2011/001466/SG/15161 dated 12-10-2011
CIC/SG/A/2011/002686/16186 dated 08-12-2011

2. Information hosted in the website has no authenticity, as  information is liable for hacking. The said information has also no evidentiary value in courts or tribunals. Information on website can be removed and it may become difficult for information seeker to prove it later on. Websites are not updated regularly by most of public authorities.


3.  PIO has not mentioned even the exact link in website or ULR. He cannot expect information seeker to roam into entire website and locate required information.

4. As on 2010 only 15% of Indians were having access to internet and hence reference to website excludes 85% of population if website is to be accessed.

5. I had sought information while PIO has given me location of information. This is violative of RTI Act in letter and spirit.

6. It would be prudent and reasonable on your part to order PIO to get print outs from website and supply to me duly authenticated.

7. Under section 19.5 of RTI Act the onus to justify replies rests with PIO. Under section 20.1 the burden of proving that PIO acted reasonably and diligently is enjoined on the PIO. He should be put to strict test to this effect in hearing of this appeal.



Promises held out over loudspeakers can not constitute binding representation

Posted: 24 Mar 2013 04:04 AM PDT

The principal contention of the plaintiffs, is that a representation was made to the purchasers by or on behalf of the co-owners that plot No. 19 would be reserved for a Bharaashala, that the purchasers paid high prices for the plots by reason of that representation and therefore the co-owners had no right to sell the plot to Manohari Devi who, in turn, had no right to sell it to the defendant There are numerous difficulties in accepting this contention. There is no evidence as to who, on behalf of the co-owners, made the particular representation. It is said that it was announced over a loudspeaker, while the housing scheme was being advertised, that a plot will be reserved for a Dharmshala. Who made the announcement and under whose authority are matters on which plaintiffs have been unable to, shed any light. Thus, the argument lacks basis. Besides, though modem contrivances like microphones are useful aids in propagation of views or dissemination of information, they have not yet acquired notoriety carriers of  binding representations. Promises held out over loudspeakers are often claptraps of politics. In the Instant case, the announcement, was if at all, a puffing up of property put up for sale.


Supreme Court of India
Banwari Lal And Ors. vs Sukhdarshan Dayal on 12 December, 1972
Equivalent citations: AIR 1973 SC 814, (1973) 1 SCC 294
Bench: J Shelat, Y Chandrachud

1. This appeal by special leave is directed against a judgment dated December 7, 1967 of a learned single Judge of the High Court of Allahabad, setting aside a decree of affirmance passed by the III Additional Civil Judge, Meerut.
2. An extensive area comprised in Plot No. 765 of Mauza Bhaunjar, Tehsil Ghaziabad, was sub-divided by the co-owners into small plots, as a part of a housing scheme called "Chandrapuri Colony". The case of the plaintiffs who on behalf of the various purchasers of the sub plots, brought the present suit under Order 1, Rule 8 of the CPC is that a representation was made to them that plot No, 19 will be reserved for being used in common as a Dharmshala and yet it was sold to one Manohari Devi who in turn sold it to the defendant. The defendant constructed a boundary wall around the plot, rendering impossible the use of the plot for common benefit. Plaintiffs therefore asked for a declaration that plot No. 19 was earmarked for a Dharmshala, for a permanent injunction restraining the defendant from interfering with the construction of a Dharmshala and for possession of the plot after demolition of the boundary wall.
3. Defendant denied that plot No. 19 was reserved for the use of a Dharmshala and contended that Manohari Devi who, under the sale in her favour had become an absolute owner of the plot was entitled to sell it to him.
4. While decreeing the suit, the trial court and the 1st appellate court held that plot No. 19 was set apart for the construction of a Dharmshala, that the co-owners had lost their ownership over that plot and therefore they had not right to sell it. The High Court having reversed those findings and dismissed the suit, plaintiffs have filed this appeal.
5. The principal contention of the plaintiffs, is that a representation was made to the purchasers by or on behalf of the co-owners that plot No. 19 would be reserved for a Bharaashala, that the purchasers paid high prices for the plots by reason of that representation and therefore the co-owners had no right to sell the plot to Manohari Devi who, in turn, had no right to sell it to the defendant There are numerous difficulties in accepting this contention. There is no evidence as to who, on behalf of the co-owners, made the particular representation. It is said that it was announced over a loudspeaker, while the housing scheme was being advertised, that a plot will be reserved for a Dharmshala. Who made the announcement and under whose authority are matters on which plaintiffs have been unable to, shed any light. Thus, the argument lacks basis. Besides, though modem contrivances like microphones are useful aids in propagation of views or dissemination of information, they have not yet acquired notoriety carriers of binding representations. Promises held out over loudspeakers are often claptraps of politics. In the Instant case, the announcement, was if at all, a puffing up of property put up for sale.
6. It would appear that in the maps which were annexed to some of the sale-deeds, plot No. 19 was described as "Dharmshala". But, in the context, that circumstance cannot be construed as containing a representation that the particular plot will in perpetuity remain unbuilt upon. It was on September 21,1946 that the plot was sold to Manohari Devi. And yet, maps annexed to subsequent sale-deeds described the plot as "Dharmshala". The transfer in favour of Manohari Devi was effected by a registered deed of sale and therefore, subsequent purchasers of the other plots in Chandrapuri Colony had notice, constructive at any rate, that plot No. 19 was not subject to any restraining covenant. It seems clear that, in fact the co-owners had at no time created fetters on their disposing power. The decision in K.S. Nanji and Company v. Jatashankar Dossa which
plaintiffs rely proceeded on different facts for, there the map was annexed to the Seed of lease in order to delineate the boundary line between the holdings of the parties. The maps in the instant case axe not annexed to the sale-deeds and cannot therefore be deemed to be a part of the sale-deeds by incorporation or otherwise. In fact no sale-deed refers to any map in the context of the use of plot No. 19.
7. It is significant that none of the sale-deeds on record contains a stipulation that plot No. 19 would be reserved for common use as a Dharmshala For the matter of that, no reservation is made in any of the sale-deeds as regards the use to which the plot may be put. Most of the sale-deeds contain an express recital that the co-owners will lay out roads and drains. If plot No. 19 was truly earmarked for a specific purpose it is impossible that a suitable term in that behalf would not be included in the various sale-deeds.
8. In the first two courts, arguments revolved round a plea of estoppel. Learned Counsel for the plaintiff put the same plea in the forefront before us contending that the co-owners were estopped from disputing the right of the plaintiffs to ask that plot No. 19 shall remain reserved for the use of a Dharmshala. There is no merit in this contention. Evidence regarding the representation is vague and true facts were known to those who purchased the sub-plots after plot No. 19 was sold to Manohari Devi in 1946. Besides, estoppel is but a rule of evidence and except in cases like those under Section 43 of the Transfer of Property Act, when a grant is fed by estoppel, the rule does not operate to create interest in property regarding which the representation is made. Accordingly, plaintiff cannot claim that possession of plot No. 19 be given to them so as to enable them to construct a Dharmshala. The learned Additional Civil Judge in First Appeal observes that the description of plot No. 19 in the map as "Dharmshala" would show that the plot was "more or less in trust" for general benefit. That shows like saying, if the issue be whether there is a binding agreement between the parties, that the agreement is "more or less a contract". Such fluid phrases cannot give rise to legal rights.
9. The High Court was therefore right in concluding that the title of the co-owners to plot No. 19 was not divested and that the plaintiffs had no cause of action to bring the suit. Accordingly, we confirm that judgment and dismiss the appeal with costs.
. Promises held out over loudspeakers are often claptraps of politics. In the Instant case, the announcement, was if at all, a puffing up of property put up for sale.


Supreme Court of India
Banwari Lal And Ors. vs Sukhdarshan Dayal on 12 December, 1972
Equivalent citations: AIR 1973 SC 814, (1973) 1 SCC 294
Bench: J Shelat, Y Chandrachud

1. This appeal by special leave is directed against a judgment dated December 7, 1967 of a learned single Judge of the High Court of Allahabad, setting aside a decree of affirmance passed by the III Additional Civil Judge, Meerut.
2. An extensive area comprised in Plot No. 765 of Mauza Bhaunjar, Tehsil Ghaziabad, was sub-divided by the co-owners into small plots, as a part of a housing scheme called "Chandrapuri Colony". The case of the plaintiffs who on behalf of the various purchasers of the sub plots, brought the present suit under Order 1, Rule 8 of the CPC is that a representation was made to them that plot No, 19 will be reserved for being used in common as a Dharmshala and yet it was sold to one Manohari Devi who in turn sold it to the defendant. The defendant constructed a boundary wall around the plot, rendering impossible the use of the plot for common benefit. Plaintiffs therefore asked for a declaration that plot No. 19 was earmarked for a Dharmshala, for a permanent injunction restraining the defendant from interfering with the construction of a Dharmshala and for possession of the plot after demolition of the boundary wall.
3. Defendant denied that plot No. 19 was reserved for the use of a Dharmshala and contended that Manohari Devi who, under the sale in her favour had become an absolute owner of the plot was entitled to sell it to him.
4. While decreeing the suit, the trial court and the 1st appellate court held that plot No. 19 was set apart for the construction of a Dharmshala, that the co-owners had lost their ownership over that plot and therefore they had not right to sell it. The High Court having reversed those findings and dismissed the suit, plaintiffs have filed this appeal.
5. The principal contention of the plaintiffs, is that a representation was made to the purchasers by or on behalf of the co-owners that plot No. 19 would be reserved for a Bharaashala, that the purchasers paid high prices for the plots by reason of that representation and therefore the co-owners had no right to sell the plot to Manohari Devi who, in turn, had no right to sell it to the defendant There are numerous difficulties in accepting this contention. There is no evidence as to who, on behalf of the co-owners, made the particular representation. It is said that it was announced over a loudspeaker, while the housing scheme was being advertised, that a plot will be reserved for a Dharmshala. Who made the announcement and under whose authority are matters on which plaintiffs have been unable to, shed any light. Thus, the argument lacks basis. Besides, though modem contrivances like microphones are useful aids in propagation of views or dissemination of information, they have not yet acquired notoriety carriers of binding representations. Promises held out over loudspeakers are often claptraps of politics. In the Instant case, the announcement, was if at all, a puffing up of property put up for sale.
6. It would appear that in the maps which were annexed to some of the sale-deeds, plot No. 19 was described as "Dharmshala". But, in the context, that circumstance cannot be construed as containing a representation that the particular plot will in perpetuity remain unbuilt upon. It was on September 21,1946 that the plot was sold to Manohari Devi. And yet, maps annexed to subsequent sale-deeds described the plot as "Dharmshala". The transfer in favour of Manohari Devi was effected by a registered deed of sale and therefore, subsequent purchasers of the other plots in Chandrapuri Colony had notice, constructive at any rate, that plot No. 19 was not subject to any restraining covenant. It seems clear that, in fact the co-owners had at no time created fetters on their disposing power. The decision in K.S. Nanji and Company v. Jatashankar Dossa which
plaintiffs rely proceeded on different facts for, there the map was annexed to the Seed of lease in order to delineate the boundary line between the holdings of the parties. The maps in the instant case axe not annexed to the sale-deeds and cannot therefore be deemed to be a part of the sale-deeds by incorporation or otherwise. In fact no sale-deed refers to any map in the context of the use of plot No. 19.
7. It is significant that none of the sale-deeds on record contains a stipulation that plot No. 19 would be reserved for common use as a Dharmshala For the matter of that, no reservation is made in any of the sale-deeds as regards the use to which the plot may be put. Most of the sale-deeds contain an express recital that the co-owners will lay out roads and drains. If plot No. 19 was truly earmarked for a specific purpose it is impossible that a suitable term in that behalf would not be included in the various sale-deeds.
8. In the first two courts, arguments revolved round a plea of estoppel. Learned Counsel for the plaintiff put the same plea in the forefront before us contending that the co-owners were estopped from disputing the right of the plaintiffs to ask that plot No. 19 shall remain reserved for the use of a Dharmshala. There is no merit in this contention. Evidence regarding the representation is vague and true facts were known to those who purchased the sub-plots after plot No. 19 was sold to Manohari Devi in 1946. Besides, estoppel is but a rule of evidence and except in cases like those under Section 43 of the Transfer of Property Act, when a grant is fed by estoppel, the rule does not operate to create interest in property regarding which the representation is made. Accordingly, plaintiff cannot claim that possession of plot No. 19 be given to them so as to enable them to construct a Dharmshala. The learned Additional Civil Judge in First Appeal observes that the description of plot No. 19 in the map as "Dharmshala" would show that the plot was "more or less in trust" for general benefit. That shows like saying, if the issue be whether there is a binding agreement between the parties, that the agreement is "more or less a contract". Such fluid phrases cannot give rise to legal rights.
9. The High Court was therefore right in concluding that the title of the co-owners to plot No. 19 was not divested and that the plaintiffs had no cause of action to bring the suit. Accordingly, we confirm that judgment and dismiss the appeal with costs.

CONVEYANCING OF SALE DEED AND ITS REQUIREMENTS

Posted: 24 Mar 2013 03:48 AM PDT

Conveyancing has been practiced as a fine art in England by a class of trained lawyers who have specialized as conveyancers after an intensive study of the law relating to contracts and real property. Though the term conveyancing used by most of the England Lawyers for drafting the documents of their clients but as the years rolled by Conveyancing got its own importance even in India too. In Modern India Draftsman plays an important role while drafting any legal documents or deeds and he can do so if he is high qualified in the field of law so draftsman must keep in mind all the legal principles before preparing any legal documents or deeds.The word 'CONVEYANCING' means lend transfer inter-vivos i.e. two living persons. Conveyancing is an art of drafting deeds and legal documents whereby any right, title or interest in tangible immovable property is transferred from one person to another. Conveyancing is not just an ordinary art but it is thoroughly based on legal knowledge and principles evolved over years. The term conveyancing is restricted to deeds and documents concerned with the transfer of property whereas drafting carries a general meaning that of preparing any legal documents or deeds or any other business oriented documents.

The word 'SALE' defined under Section 54 of "The Transfer of Property Act, 1882" is a transfer of ownership in exchange of price paid or promised or part-paid and part-promised. It means absolute transfer of tangible immovable property by the vendor to the purchaser by entering into a contract for sale wherein both the parties will settle the terms and conditions of transfer. Such transfer can be done through the registered document and thus delivery of the property can be by handing over the actual possession of the immovable property by the vendor to the purchaser or the person legally authorised by him. In a sale of tangible immovable property an Encumbrance Certificate will be passed to the purchaser by the vendor whereby all the statutory rights i.e. easementry rights, beneficiary rights, actionable claims as well as vested interest in the immovable property will be transferred in-toto.
Before explaining the term 'Sale Deed' let me define 'Agreement To Sell' which proceeds 'SALE DEED' and it protects the interest of both buyer and seller. An agreement to sell is a legal written document on which the conveyance deed is drafted under which both the parties will settle certain terms and conditions i.e. seller will be intending to transfer/sale the property and buyer will be intending to purchase it. An agreement to sell has to be executed by the seller and the buyer on a non-judicial stamp paper and the same has to be duly signed by both the parties. It has got legal value and if necessary can be produced as evidence in a court of law. An agreement is a pre-requirement for the sale of an immovable property where in the buyer will pay to seller some token amount as advance and seller must issue receipt for the amount received as token amount. While entering into an agreement to sell, the seller should mandatorily state all the material defects in the property as well as in the title and it is the right and duty of the buyer to investigate the title before buying the property. There should not be any Lis- Pendens i.e. pendency of suit in a court of law regarding the property in sale. Lastly the agreement to sell must contain all the terms and conditions which are necessary for transaction of a valid sale of an immovable property.
The word 'SALE DEED' otherwise called as 'Conveyance Deed' is a legal written document executed by the vendor and the purchaser which evidences the sale and transfer of ownership of the tangible immovable property. A sale deed is governed by 'The Registration Act, 1908' and is an important document for both the buyer or the transferee and the seller or the transferor. A sale deed is executed after the execution of the agreement to sell, and after compliance of various terms and conditions between the seller and the purchaser mutually. A sale deed is the main document which gives details of how the seller got the property, at what consideration the seller is selling the property and assurance to the purchaser that the property is free from any encumbrances, liabilities or indemnity clauses. A sale deed acts as a essential document for the further sale of the property by the purchaser as it establishes the proof of ownership of property.
Requirements of Sale Deed:
A sale deed is one of the most valuable legal documents in a purchase or sale of a property. A sale deed is drafted by legal draftsman on a non-judicial stamp paper of the requisite value as prescribed by stamp act of the particular state concerned. A draftsman must include certain clauses while preparing the construction of the sale deed which are as follows:
  • Name of the deed: It is the parties who have to decide that which deed has to be prepared e.g. THIS DEED OF SALE or THIS DEED OF MORTGAGE or THIS DEED OF LEASE etc. and based on which there will be transfer of ownership of immovable property.
  • Parties to sale deed: An absolute sale deed must contain the names, age and respective addresses of parties to the transaction and both the parties i.e. seller and buyer must be competent to enter into a contract so that it will not affect the validity of the valid sale. It is very much important that the sale deed is duly signed and executed by both the parties with their bona-fide intention. A valid sale deed must start with clear description of the parties.
  • Description of the property sold: A valid sale deed must contain full description of the property which is the subject matter of sale. It must include identification number, total plot area, construction details as well as its location with its surrounding areas. A schedule of the property must be included in the sale deed which will define the exact location where the property is actually situated.
  • Agreement for sale: An agreement for sale is the main requirement of the drafting of the valid sale deed and both the parties must mutually settle the terms and conditions of the agreement so that it will not affect the rights of the parties. A sale deed always precedes agreement to sell.
  • Sale consideration clause: A sale deed must include the clause stating the sale consideration/amount as agreed between the seller and the buyer which has to be paid by the buyer to the seller on the execution of sale deed. A sale amount should be clearly stated in sale deed as agreed in the agreement to sell so that there should not be any onus on the parties to the transaction.
  • Advance payment if any: If there is any transaction of token amount paid by the buyer to the seller then it has to be clearly mentioned in the sale deed, and how much is the remaining balance to be paid on the execution of the sale deed.
  • Mode of payment: It is always the buyer who has to decide that how he is going to pay the sale consideration amount whether by Cash /Cheque/ Demand Draft and the same has to be agreed by the seller.
  • Passing of the title: A sale deed should contain the clause when the original title of the property to be passed to the purchaser. A time limit should be given to the seller for the transfer of the title. Once the title of the immovable property is transferred, all the rights will pass to the purchaser.
  • Delivery of the possession: The possession of the immovable property will be transferred to the purchaser by the vendor once the registration process is completed. A clause in the sale deed must state when there will be actual delivery of the possession.
  • Indemnity provision if any: A seller must clear all the statutory charges i.e. property tax, electricity charges, water bills, cess, society charges, maintenance charges and all other charges relating to the property before the execution of the sale deed. In case there is any encumbrance on the property, the seller needs to repay the loan amount and get the property papers cleared of the encumbrance. It is the duty of the buyer to verify the encumbrance status from the office of the registrar.
  • Execution: Once the Sale Deed is prepared all the parties to the deed shall execute it by affixing their thumb impression or full signature. Each page should be signed by the seller and buyer. Any alteration, addition or deletion is to be authenticated by full signature of the parties. Execution of the sale deed requires to be witnessed by two witnesses. The witnesses shall give their full particulars and addresses.
  • Registration: According to Section: 17 of 'The Registration Act, 1908', the registration of a tangible immovable property is compulsory if the value of the respective property exceeds rupees 100/- and it is the registration of the property which makes the sale valid. For getting the registration done both the parties must be present before the jurisdictional sub-registrar office with the original documents within four months from the date of execution. A stamp duty has to be paid by the purchaser to the sub-registrar for getting the registration done. A certified copy of the registration document to be obtained for the future reference.
  • Testatum: Once all the terms and conditions have been settled between both the parties, a sale deed is prepared. The executed sale deed should be witnessed by at least two witnesses one from seller side and one from buyer side, giving their full names, addresses and signatures.
  • Original documents: Once the property gets registered under the registration act all the original documents of the sold property to be hand over by the seller to the purchaser. All the statutory rights along with ownership, possession, title, interest will get vested in favour of the purchaser.
  • Default clause: An agreement for sale of immovable property should include the clause stating if there is any default by the vendor or the purchaser then the party who rescinds the contract need to pay damages to the other party for the breach of contract so that it will not affect to the execution of the sale deed.
Since drafting of sale deed requires abundant caution and presence of mind with sufficient knowledge of property and other allied laws, it would be better if services of advocates who have vast experience in property transactions are utilized to avoid unexpected and uncalled for litigations which may arise in a poorly drafted sale deed.
    

Reasonable modes of acceptance in an ecommerce transaction are:

Posted: 24 Mar 2013 03:27 AM PDT

Indian Laws for Ecommerce Transactions

eCommerce-Transaction-LawisgreekThe validity of electronic transactions is established under the IT Act. The act establishes that an ecommerce transaction is legal if the offer and acceptance are made through a 'reasonable' mode. For instance, a communication sent by an offeror to an offeree through indirect means, such as an email that passes multiple servers and spam mails, is not regarded as a reasonable mode under the IT act. 
Reasonable modes of acceptance in an ecommerce transaction are:
  • Direct mail from the offeree to the offeror.
  • Acceptance by conduct, which is pressing an 'Accept' button to an offer.
Additionally, the IT act governs the revocation of an ecommerce offer and acceptance. An ecommerce transaction is said to be complete when the offeror receives acknowledgment of the receipt of the offer. Besides, an offeror has the liberty to terminate an offer, provided its acceptance has not been communicated by the offeree.

E-Commerce & Law-DISTINCTION BETWEEN E-COMMERCE & E-BUSINESS:

Posted: 24 Mar 2013 03:21 AM PDT
INTRODUCTION
Electronic commerce (e-commerce) is relatively new, emerging and constantly changing area of business management and information technology. "Electronic commerce is sharing business information, maintaining business relationships and conducting business transactions by means of telecommunications networks"
[1]. The buying and selling of products and services by businesses and consumers through an electronic medium, without using any paper documents. It is a type of business model, or segment of a larger business model, that enables a firm or individual to conduct business over an electronic network, typically the internet.
Electronic commerce draws on such technologies as electronic funds transfer, supply chain management, Internet marketing, online transaction processing, electronic data interchange (EDI), inventory management systems, and automated data collection systems. E-commerce has allowed firms to establish a market presence, or to enhance an already larger market position, by allowing for a cheaper and more efficient distribution chain for their products or services.
With the advent of the Internet, the term e-commerce began to include:
A)  Electronic trading of physical goods and of intangibles such as information.
B)  All the steps involved in trade, such as on-line marketing, ordering payment and support for delivery.
C)  The electronic provision of services such as after sales support or on-line legal advice.
D)  Electronic support for collaboration between companies such as collaborative on-line design and engineering or virtual business consultancy teams.

Electronic data interchange (EDI):-
Electronic data interchange (EDI) is the structured transmission of data between organizations by electronic means. It is used to transfer electronic documents or business data from one computer system to another computer system, i.e. from one trading partner to another trading partner without human intervention. It is more than mere e-mail; for instance, organizations might replace bills of lading and even cheques with appropriate EDI messages.
EDI and other similar technologies save a company money by providing an alternative to, or replacing, information flows that require a great deal of human interaction and materials such as paper documents, meetings, faxes, etc.   One very important advantage of EDI over paper documents is the speed in which the trading partner receives and incorporates the information into their system thus greatly reducing cycle times.
DISTINCTION BETWEEN E-COMMERCE & E-BUSINESS:
Electronic commerce can be broadly defined as the exchange of merchandise (whether tangible or intangible) on a large scale between different countries using an electronic medium – namely the Internet whereas E-business is the conduct of business on the Internet, not only buying and selling but also servicing customers and collaborating with business partners. [2]

Overview of "UNCITRAL MODEL LAW"
United Nations Commission on International Trade Law (UNCITRAL) Model Law on E-Commerce, the Government of India enacted the Information Technology Act in June 2000. The Act facilitates E-commerce in the country.
The United Nations General Assembly adopted the United Nations Commission on International Trade Law (UNCITRAL) Model Law on E-Commerce through a Resolution[6]  passed on 30 January 1997.  The UNCITRAL Model Law on E-commerce was drafted in order to serve as a document that the various countries of the world could use and evaluate and amend their own laws and practices and by providing a common legal platform on which all countries could model their domestic legislations allow the countries of the world to move towards a uniform international law on E-commerce.
The main objective of UNCITRAL Model Law of E-commerce is to offer national legislators with a set of internationally acceptable rules as to how the legal obstacles in the communication of legal significant information through paperless messages, may be removed and how a more secure legal environment may be created for E-commerce.
Any legislation pertaining to E-commerce will be a futile exercise unless it fills up the lacunae in the existing law regarding the validity of online contracts. Recognizing this factor, the Model law has incorporated a provision in Article 11 relating to the formation and validity of contracts:
In the context of contract formation, unless otherwise agreed by the parties, an offer and the acceptance of an offer may be expressed by means of data messages. Where a data message is used in the formation of a contract that contract shall not be denied validity or enforceability on the sole ground that a data message was used for that purpose.[7]

Overview of the Indian law
The Information Technology Act, 2000 ("IT Act") deals with contractual aspects of use of electronic records.
The validity of electronic transactions is established under the IT Act. The act establishes that an ecommerce transaction is legal if the offer and acceptance are made through a 'reasonable' mode. The objectives of the Information Technology Act, as outlined in the preamble, are to provide legal recognition for E-commerce transactions. The Act lays down procedures for networking operations and for civil wrongs and offences. The Indian Information Technology Act does not have any express provision regarding the validity or formation of online contracts.
For instance, a communication sent by an offeror to an offeree through indirect means, such as an email that passes multiple servers and spam mails, is not regarded as a reasonable mode under the IT act. Reasonable modes of acceptance in an ecommerce transaction are:
Direct mail from the offeree to the offeror.
Acceptance by conduct, which is pressing an 'Accept' button to an offer.
The IT act governs the revocation of an ecommerce offer and acceptance. An ecommerce transaction is said to be complete when the offeror receives acknowledgment of the receipt of the offer. Besides, an offeror has the liberty to terminate an offer, provided its acceptance has not been communicated by the offeree.
The Information Technology (Amended) Act, ITAA, was amended in 2008 to increase security of e-commerce transactions, with special provisions for legal recognition of digital signatures and electronic documents. Section 43A of ITAA holds ecommerce companies accountable for protection of personal data.
When an ecommerce company fails to protect personal data of its customers or is negligent in maintaining and implementing reasonable security practices, and if this results in wrongful loss of an online buyer, the laws are clear that its body corporate is wholly liable to pay the damages by means of monetary compensation.

Good legal websites

Posted: 24 Mar 2013 03:12 AM PDT

Different types of cyber crimes relating to online Transaction

Posted: 24 Mar 2013 02:23 AM PDT


Page jacking

If you click on a link and find yourself at an unexpected website, you may have been 'pagejacked'. This happens when someone steals part of a real website and uses it in a fake site. If they use enough of the real site, Internet search engines can be tricked into listing the fake site and people will visit it accidentally. The fake site could contain unwanted or offensive material. As an online merchant trading via a website, you need to know that your site is not being stolen in this way. Unfortunately you cannot prevent page jacking;  you can only deal with it after you know it is a problem.

Advance fee scams

An advance fee scam is fairly easy to identify as you will be asked for money or goods upfront in return for giving you credit or money later. These advance fee scams can seem convincing and have taken in many people. One example of an advance fee scam plays out in online auctions. If a buyer sends you a cheque for much more than you asked, be suspicious. If you accept the cheque and refund the extra money to the buyer, you may find out later that the cheque was bad and that you have lost the whole amount.

Bad cheque scams

Always be wary of unusually large orders, even when the customer is paying in advance by wire transfer (an extremely safe method of payment when performed bank-to-bank). Though the transaction could be perfectly legitimate, pay attention if the customer asks for your bank's address or suddenly asks to pay by cheque instead of by transfer. In both cases, the customer may be about to pull a bad cheque scam. Both scenarios allow the customer to deposit money into your account by cheque. If the cheque is a clever fake and you accept it as payment, you lose both the money and the merchandise.

Fake money orders

Usually a money order is one of the safest ways to receive payment. The amount is prepaid by the customer, and a bank passes the amount on to the merchant. Because the money is handled via a third party and can be transferred internationally, many online transactions are made using money orders. These are difficult to counterfeit, but be especially cautious of money orders from high-risk areas such as Asia, Africa, Eastern Europe, the Middle East or Russia, as counterfeit money orders from these areas are unfortunately becoming more common.

Wire transfer fraud

As long as you avoid transfers via cash offices and stick to transfers performed bank-to-bank, wire transfer is a very safe way to move money around. This does not apply if you are asked to accept money and then pass it on to someone else via wire transfer. If that happens, be suspicious, especially if you are asked to do this by anyone you do not know well. You may think you are helping someone, but actually this is a form of money laundering used by organized crime. Though your money is not being stolen, falling victim to wire transfer fraud can get you into trouble with the authorities.[12]

ATM Fraud
All ATMs run on the Widows platform. "Hacking into any of these is as easy as hacking into a computer, and everyone knows the levels of sophistication fraudsters have reached". Even as banks are adopting high-end anti-skimming and surveillance products, the easiest way to perpetrate an ATM fraud is through an insider. Security agencies are advising banks to carry out proper background checks on their employees.

Risk for Internet Hacking -addition of apps means corporate data is being put at risk,

Posted: 24 Mar 2013 01:59 AM PDT

Regardless of the size of the institution, there is concern that handheld devices are now opening new holes. A recent study from Origin Storage found that 41 percent of what should be a security savvy audience are carrying sensitive data on mobile devices unprotected. The study also found that 19 percent of respondent organizations suffered a data breach following the loss of a portable device that contains unencrypted data.
"Mobile devices are opening new holes to networks, and the addition of apps means corporate data is being put at risk," says Tom DeSot, Executive Vice President and Chief Information Officer for Digital Defense, noting this is increasing a problem with small and medium sized businesses. "Things that connect wirelessly or via a USB tether are further adding new issues. It is hard for a small business to stay on top of everything."
Protecting from cyber crime is also unfortunately becoming ever more difficult, in part because too many people are far too trusting online.
"When is the last time you opened the door blindfolded to someone you don't know," asks Abdulhayoglu? "Most people would never do this at home or work, but we do it every day in the digital world."

Compensation if no information is furnished under RTI ACT due to missing docs

Posted: 24 Mar 2013 01:32 AM PDT


Mr. Mehta, learned counsel, appearing on behalf of the petitioners,
submitted that the Information Commissioner has committed an error awarding
the monetary compensation without considering that the information sought for
by the petitioners during pendency of the Second Appeal was not available. The
information was sought regarding the documents, which were missing. The
Information Commissioner has also not appreciated that there was no ill will or
malafide intention and the petitioners were prevented from supplying the
information under the circumstance beyond their control. He further submitted
that the award of compensation is wholly without any basis and is arbitrary and
unwarranted. The impugned orders are, thus, liable to be quashed.

All those circumstances based
on records were almost admitted by the petitioners and were duly considered by
learned Information Commissioner and some compensation was awarded.
Though the compensation was not adequate, the respondent no.2 has not
raised any objection regarding the same, in the hope that the same will be paid
to him.


 W.P.(C) No.2132 of 2009 with W.P.(C) no.2143 of 2009
In the matter of an application under Article 226 of the Constitution of India.
---
1.Public Information Officer, Ranchi University[W.P.(C) no.2132/09]
2.Registrar, Ranchi University[(W.P.(C)no.2143/09] …. Petitioners
 Versus
(in both cases) 
1.Jharkhand State Information Commissioner, Ranchi
2.Dr.Shyama Raman Pandey ...Respondents
----

 ---
P R E S E N T
 The Hon'ble Mr. Justice Narendra Nath Tiwari


 By Court: In these writ petitions, the petitioners have challenged the orders of the
learned State Information Commissioner, Ranchi, whereunder learned
Information Commissioner has held that the petitioners failed to furnish the
information and comply with the orders and has awarded compensation of
Rs.50,000/- and Rs.25,000/- respectively.
2. Since the common questions of law based on almost similar facts
situation are involved, with the consent of the parties, both these writ petitions
have been taken up and heard together and being disposed of by this common
order.
3. The orders have been challenged mainly on the ground that learned
Information Commissioner has passed the orders without considering the facts
and circumstances, placed before him by the petitioners and has awarded
compensation without any cogent basis. The orders of the Information
commissioner are, thus, wholly arbitrary and illegal.
4. Mr. Mehta, learned counsel, appearing on behalf of the petitioners,
submitted that the Information Commissioner has committed an error awarding
the monetary compensation without considering that the information sought for
by the petitioners during pendency of the Second Appeal was not available. The
information was sought regarding the documents, which were missing. The
Information Commissioner has also not appreciated that there was no ill will or
malafide intention and the petitioners were prevented from supplying the
information under the circumstance beyond their control. He further submitted
that the award of compensation is wholly without any basis and is arbitrary and
unwarranted. The impugned orders are, thus, liable to be quashed.
5. The respondent no.2(private respondent) has appeared in person and
supported the orders of learned Information Commissioner. He submitted that
the orders of learned Information Commissioner are well discussed and based
on facts and materials on record. The applicant/respondent no.2 had sought
information relating to pay fixation, insurance papers and other materials. He
was teachers appointed in the Ranchi University and subsequently promoted up.2.
to the post of University Professor. It is wholly unbelievable that the information
relating to pay fixation and insurance papers are not available. But information
relating to statement of payment of salary from 1980, loan deducted, file relating
to deposit of deducted portion of D.A. with PF, relevant file showing the rate of
interest from 1967 to 1994 actually paid to the applicant/respondent no.2 and
the similar other related information sought for, deliberately were not furnished.
The said reply was given by the Ranchi University after harassing the
applicant/respondent no.2 for about 15 months. All those circumstances based
on records were almost admitted by the petitioners and were duly considered by
learned Information Commissioner and some compensation was awarded.
Though the compensation was not adequate, the respondent no.2 has not
raised any objection regarding the same, in the hope that the same will be paid
to him. The University even thereafter adopted harassing attitude and filed these
writ petitions and has unnecessarily dragged the respondent no.2 to this Court.
6. I have heard learned counsel for the petitioners and respondent no.2(in
person). I also perused the impugned orders. The petitioners, as aforesaid,
have mainly assailed the orders of learned Information Commissioner on the
ground that he has passed the impugned orders without properly considering
the facts and materials on record and has not assigned any cogent reason for
awarding compensation of Rs.50,000/- and Rs.25,000/- respectively in the said
two cases.
7. I find no substance in the submissions of the petitioners. 
8. Learned Information commissioner has taken into consideration every
aspect of the said case and he has discussed the facts and materials on record
and has awarded compensation, exercising his discretionary power. I find no
ground made out to interfere with the said discretion, exercised by learned
Information Commissioner. 
9. The orders of learned Information Commissioner are thoroughly
discussed and well considered and I find no arbitrariness and illegality.
10. These writ petitions are, accordingly, dismissed.
( Narendra Nath Tiwari, J.)
Jharkhand High Court
Ranchi
19th January,2012
N.A.F.R./s.b.

Information under rti Act can be given after reconstruction of record

Posted: 24 Mar 2013 01:26 AM PDT


It is not in dispute that the petitioner-appellant
originally by moving the application under the Right To
Information Act and Rules, sought information and in
appeal it was ordered that record which according to
appellant was not traceable be reconstituted and then
information be given. It may be true that the record may
have traveled from Kolkata to Patna and then to Jharkhand
and it is also true that record is pertaining to the files of
the year 1992. But, in a case where the information is
sought from a department and the department is required
to keep the record and was not entitled to weed-out that
part of the record from which the information was sought,
then the authority certainly can direct to give the
information to the applicant, if he is otherwise found
entitled to the relief under the Act and Rules referred above and in that process if record is required to be
reconstituted then, that is certainly within the jurisdiction
of the authorities under the Right To Information Act to
direct the office to reconstitute the record, which process
is also a step taken in furnishing the information to the
applicant. Otherwise also the appellant should not have
raised any grievance against such direction because it was
a duty of the appellant to immediately make effort for
reconstitution of the record when they came to know that
record is not lying with them and for that purpose, they
could have taken help even from the applicant by
obtaining certain information or also the requisite
documents from the party to whom the original record was
related to.
4. Be that as it may be, the direction to
reconstitute the record is only a one step in furtherance of
providing the information to the applicant under the Right
To Information Act. 

IN THE HIGH COURT OF JHARKHAND AT RANCHI
-----------
L.P.A. No. 543 of 2009
 ------
The Commissioner (Appeal) of Central
Excise and Service Tax, Ranchi ...… .........Appellant
--Versus--
Information Commissioner, Central
Information Commission, New Delhi & Anr....... Respondents
-------------
CORAM : HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MRS. JUSTICE JAYA ROY

Order No.13 Dated 11th July, 2011

Heard the counsel for the parties.
2. The grievance of the appellant is that in a
proceeding under the Right To Information Act, the
authorities could not have directed for re-constitution of
the records and then give the information to the applicant.
3. It is not in dispute that the petitioner-appellant
originally by moving the application under the Right To
Information Act and Rules, sought information and in
appeal it was ordered that record which according to
appellant was not traceable be reconstituted and then
information be given. It may be true that the record may
have traveled from Kolkata to Patna and then to Jharkhand
and it is also true that record is pertaining to the files of
the year 1992. But, in a case where the information is
sought from a department and the department is required
to keep the record and was not entitled to weed-out that
part of the record from which the information was sought,
then the authority certainly can direct to give the
information to the applicant, if he is otherwise found
entitled to the relief under the Act and Rules referredabove and in that process if record is required to be
reconstituted then, that is certainly within the jurisdiction
of the authorities under the Right To Information Act to
direct the office to reconstitute the record, which process
is also a step taken in furnishing the information to the
applicant. Otherwise also the appellant should not have
raised any grievance against such direction because it was
a duty of the appellant to immediately make effort for
reconstitution of the record when they came to know that
record is not lying with them and for that purpose, they
could have taken help even from the applicant by
obtaining certain information or also the requisite
documents from the party to whom the original record was
related to.
4. Be that as it may be, the direction to
reconstitute the record is only a one step in furtherance of
providing the information to the applicant under the Right
To Information Act. 
5. Therefore, the learned Single Judge was right
in dismissing the writ petition preferred by the appellant.
We do not find any illegality in the said order, and hence,
we do not find any merit in this L.P.A., which is
accordingly, dismissed. 
6. It is made clear that the respondent should
also co-operate with the department in getting the record
reconstituted, and therefore, in that process, certainly
some more time may be consumed , but it should be a
reasonable time. 
 (Prakash Tatia, A.C.J.)
 (Jaya Roy, J.)
Biswas/SI

Information can not be denied to citizen on the ground which is not mentioned in rti Act

Posted: 24 Mar 2013 01:20 AM PDT


In the present case, the grounds raised by the 
appellant for not furnishing the information, like seeking 
information or confirmation about the authenticity of the person 
applying, verifying whether he is an Indian citizen or not, whether his application should be on the printed letterhead of the 
company, etc. cannot be said to be relevant reasons for refusal or 
denial of the information sought. This denial is permitted only if 
the case and information sought falls under the exemptions as 
provided under Sections 8 and 9 of the Act. Beyond these 
exemptions, the State Public Information Officer cannot either 
delay in giving the information or deny such furnishing of 
information. It is to be noted that even though the information 
was sought as long back as in August, 2008, necessary 
information was furnished only in March, 2009, that too by the 
successor of the appellant herein. This indicates that, prima 
facie, there was no obstruction for furnishing such information 
and hence we find that the State Commission as well as the 
learned Single Judge were justified in imposing the penalty which 
needs, in our view, no interference. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 
WA.No. 2815 of 2009() 
1. P.N. MOHANADASAN, 
... Petitioner 
Vs 
1. THE STATE INFORMATION COMMISSION, 
... Respondent 
2. STATE PUBLIC INFORMATION OFFICER AND 
3. RASHEED ANAPPARA, 
For Petitioner :SRI.T.SETHUMADHAVAN 
For Respondent : No Appearance 
The Hon'ble the Chief Justice MR.S.R.BANNURMATH The Hon'ble MR. Justice A.K.BASHEER 
Dated :10/12/2009 
O R D E R 
S.R.Bannurmath, C.J. & A.K. Basheer, J. 
------------------------------------------ 
W.A. No.2815 of 2009 
------------------------------------------ 
Dated this the 10th day of December, 2009 
JUDGMENT 
S.R.Bannurmath, C.J. 

 Aggrieved by the judgment of the learned Single Judge 
dated 18th November, 2009 dismissing the writ petition filed by the 
appellant herein, the present writ appeal is filed. 
 2. The appellant who is now working as 
Administrative Assistant in the office of the District Medical 
Officer of Health, Wayanad was the designated State Public 
Information Officer in the office of the District Medical Officer of Health, Pathanamthitta. After such appointment, the third 
respondent herein submitted an application on 17.8.2008 under the 
Right to Information Act, 2005, hereinafter referred to as 'the Act', 
and requested for certain information. On receipt of the 
application, the appellant intimated the applicant/third respondent 
by letter dated 4.9.2008 to furnish certain details regarding his 
organization, the registration number and other details and also to 
prove that he is an Indian citizen. Sensing the delaying tactics 
and bona fides of the appellant in not giving the information and 
delaying it, the third respondent filed a complaint before the State 
Commission under Section 18(1) of the Act and after detailed 
consideration, the State Commission found that there was refusal 
of access to the information and not given a response to the 
request for information, and therefore, allowed the complaint and 
imposed a penalty as per Ext.P4 order for a sum of Rs.18250/- 
calculated at the rate of Rs.250/- per day for a period of 73 days. 
 3. Aggrieved by the same, the writ petition was filed. 
The learned Single Judge declined to interfere with the well 
considered order (Ext.P4) and dismissed the writ petition. Hence 
the present writ appeal. 
 4. The main contention of the learned counsel for the 
appellant is that without invoking the appellate jurisdiction under Section 19 of the Act, the State Commission should not have 
entertained the complaint and imposed the penalty. 
 5. On a perusal of Section 20 of the Act wherein 
penalty is proposed to be imposed on a complaint or in an appeal 
indicate that irrespective of invoking the appeal provision, a party 
can approach and invoke jurisdiction of the State Commission on 
a complaint bringing it to the notice that there was illegal denial 
of information or withholding of information, as the case may be. 
As such, as it is open to the State Commission to impose penalty 
either on a complaint in this regard lodged invoking the 
jurisdiction of the authority under Section 18 of the Act or in an 
appeal filed before it under Section 19 of the Act, the present 
invoking of jurisdiction directly under Section 18 cannot be said 
to be either illegal or erroneous. In a given case, the aggrieved 
party may file appeal against the order of refusal, but it is always 
open for him to bring it to the notice of the State Commission the 
the delaying tactics which is contrary to the objectives of the 
Act. 
 6. In the present case, the grounds raised by the 
appellant for not furnishing the information, like seeking 
information or confirmation about the authenticity of the person 
applying, verifying whether he is an Indian citizen or not, whether his application should be on the printed letterhead of the 
company, etc. cannot be said to be relevant reasons for refusal or 
denial of the information sought. This denial is permitted only if 
the case and information sought falls under the exemptions as 
provided under Sections 8 and 9 of the Act. Beyond these 
exemptions, the State Public Information Officer cannot either 
delay in giving the information or deny such furnishing of 
information. It is to be noted that even though the information 
was sought as long back as in August, 2008, necessary 
information was furnished only in March, 2009, that too by the 
successor of the appellant herein. This indicates that, prima 
facie, there was no obstruction for furnishing such information 
and hence we find that the State Commission as well as the 
learned Single Judge were justified in imposing the penalty which 
needs, in our view, no interference. 
 7. Hence, we find no merit in the writ appeal. 
However, at this stage, it is submitted by the learned counsel for 
the appellant that as the penalty is heavy some breathing time 
may be granted to the appellant to remit the amount. In the 
peculiar facts and circumstances of the case, we grant two 
instalments to the appellant to pay the penalty, first of which shall 
be paid by 31st December, 2009 and the second within 15 days 
thereafter.  With this modification in the impugned judgment, we 
dismiss the writ appeal. 
 S.R.Bannurmath, 
 Chief Justice 
 A.K. Basheer, 
 Judge 
vns 

Private universities are covered under the RTI Act- P&H high court

Posted: 24 Mar 2013 01:15 AM PDT


Once it is shown that a body
has been constituted by an enactment of the State Legislature,
then nothing more need be shown to demonstrate that such a
body is a "public authority" within the meaning of Section 2(h)(c)
of the RTI Act.
9. The submission made by the learned counsel to assert
that the petitioner-University is not a body of a "self-Government"
and thereby would not be covered under the expression "public
authority", is also without merit. Self-Government as sought to be
portrayed in the pleadings on record and at the stage of
arguments would not be a requirement and essential ingredient
for invoking the provisions of RTI Act. It would have been a
relevant para-meter to fulfil the requirement under Article 12 of
the Constitution of India in relation to enforcements of the
fundamental rights through Courts. The RTI Act, on the other
hand, intends to achieve access to information and to provide an
effective frame-work for effecting the right to information
recognized under Article 19 of the Constitution of India.


IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.1509 of 2013
DATE OF DECISION: MARCH 01, 2013
Chandigarh University, Village Gharuan .......Petitioner
Versus
State of Punjab & others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA



The question for consideration in the instant writ
petition is whether the petitioner-Chandigarh University is a
"public authority" within the meaning of Section 2(h) of the Right
to Information Act, 2005 (hereinafter to be referred to as the "RTI
Act"). The State Information Commission, Punjab has, by an order
dated 14.12.2012, answered such question in the affirmative. It
is this order dated 14.12.2012, passed by the State Information
Commission, Punjab that has been impugned before this Court.
2. Learned counsel appearing for the petitioner would, at
the very outset, concede that the petitioner-University is a
creation by law made by the State Legislature i.e. the Punjab
University Act, 2012 of the State of Punjab (Act No.7 of 2012).CIVIL WRIT PETITION NO.1509 of 2013 2
Learned counsel would, however, strenuously argue that the
petitioner would not fall within the definition of public authority
under Section 2 (h) of the RTI Act. In furtherance of such
submission, it has been urged that the statements of objects and
reasons of the Act have to be read with the provisions contained
in the Act itself, while interpreting such provision. Reliance in this
regard has been placed upon a judgment of the Apex Court in
Rameshwar Parshad etc. v. State of U.P. and others, AIR 1983
SC 383. It has been argued that the objective of the RTI Act is
not to victimize a private body, person or entity under the garb of
eliciting information. The second limb of the argument raised by
the learned counsel is that the petitioner-University is not an
authority or body of a self-Government. Much emphasis has been
laid upon the expression "self-Government" to contend that the
same would mean the Office of the Government or State itself
which by act of law creates the said "public authority" to carry out
the acts and deeds of the State as defined in Article 12 of the
Constitution of India. Learned counsel while impugning the order
dated 14.12.2012, Annexure P4, passed by the State Information
Commission, Punjab further argues that the petitioner-University
is a privately owned and managed Institution which is not
receiving financial assistance directly or indirectly from the State
and, accordingly, on this count alone cannot be construed as
"public authority" as defined under the RTI Act.
3. Learned counsel for the petitioner has been heard at
length.
4. There would be no quarrel as regards the firstCIVIL WRIT PETITION NO.1509 of 2013 3
submission raised by the learned counsel that while interpreting
the provision of the statute, due emphasis would have to be given
to the statement of objects and reasons of the RTI Act. The
statement of objects and reasons of the RTI Act indicate that it
has "provisions to ensure maximum disclosure and minimum
exemptions, consistent with the constitutional provisions and
effective mechanism for access to information and disclosures by
authorities". The pre-amble to the RTI Act notes that "democracy
requires an informed citizenry and transparency of information
which are vital to its functioning and also to contain corruption
and to hold Governments and their instrumentalities accountable
to be governed."
5. It is against such background that the provisions of the
RTI Act as also definition of "public authority" under Section 2(h)
would require to be interpreted. A wider definition would have to
be assigned to the expression "public authority" rather than a
restrictive one. The Hon'ble Supreme Court in Reserve Bank of
India v. Peerless General Finance and Investment Co.Ltd.(1987)
1 SCC 424 noted the importance of the context in which every
word is used in the matter of interpretation of statutes and held in
the following terms:
"Interpretation must depend on the text and the
context. They are the bases of interpretation. One may
well say if the text is the texture, context is what gives
the colour. Neither can be ignored. Both are important.
That interpretation is best which makes the textual
interpretation match the contextual. A statute is bestCIVIL WRIT PETITION NO.1509 of 2013 4
interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a
whole and then section by section, clause by clause,
phrase by phrase and word by word. If a statute is
looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such
context, its scheme, the sections, clauses, phrases and
words may take colour and appear different than when
the statute is looked at without the glasses provided
by the context. With these glasses we must look at the
Act as a whole and discover what each section, each
clause, each phrase and each word is meant and
designed to say as to fit into the scheme of the entire
Act. No part of a statute and no word of a statute can
be construed in isolation. Statutes have to be
construed so that every word has a place and
everything is in its place."
6. Turning to Section 2(h) of the RTI Act, the same reads
as under:
2. Definitions.- In this Act, unless the context otherwise
requires, -
(a) to (g) xxxxxxxxx
(h) "public authority" means any authority or body or
institution of self-government established or
constituted, -
(a) by or under the constitution;
(b) by any other law made by Parliament;CIVIL WRIT PETITION NO.1509 of 2013 5
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the
appropriate Government, and includes any-
(i) body owned, controlled or substantially
financed;
(ii) non-Government Organisation substantially
financed, directly or indirectly by funds provided
by the appropriate Government;"
7. On a plain reading of the provision, the expression
"public authority" would include an authority or a body or an
Institution of self-government established or constituted by a law
made by the State Legislature under Section 2(h)(c) of the RTI
Act. The legislature had made a conscious distinction between
"by or under" which is used in relation to the Constitution and
"by" in relation to a Central or State Legislation. As such, it would
not be enough for the body to be established under "a Central or
State legislation to become a "public authority". If this be so,
then every Company registered under the Companies Act would
be a "public authority". However, this is not the case here.
Admittedly, the petitioner-University is a body established by law
made by the State Legislature. Clearly, the petitioner would be
covered under the scope and ambit of the definition of "public
authority" under Section 2(h)(c) of the RTI Act.
8. The requirement as regards a body being owned,
controlled or substantially financed would only apply to the latter
part of Section 2(h) of the RTI Act i.e. body falling within the
meaning of Section 2(h)(d)(i) or (ii). Once it is shown that a bodyCIVIL WRIT PETITION NO.1509 of 2013 6
has been constituted by an enactment of the State Legislature,
then nothing more need be shown to demonstrate that such a
body is a "public authority" within the meaning of Section 2(h)(c)
of the RTI Act.
9. The submission made by the learned counsel to assert
that the petitioner-University is not a body of a "self-Government"
and thereby would not be covered under the expression "public
authority", is also without merit. Self-Government as sought to be
portrayed in the pleadings on record and at the stage of
arguments would not be a requirement and essential ingredient
for invoking the provisions of RTI Act. It would have been a
relevant para-meter to fulfil the requirement under Article 12 of
the Constitution of India in relation to enforcements of the
fundamental rights through Courts. The RTI Act, on the other
hand, intends to achieve access to information and to provide an
effective frame-work for effecting the right to information
recognized under Article 19 of the Constitution of India.
10. For the reasons recorded above, this Court finds no
infirmity in the impugned order dated 14.12.2012, Annexure P4,
passed by the State Information Commission, Punjab holding the
petitioner-University to be falling within the meaning of "public
authority" under Section 2(h) of the RTI Act.
11. No merit. Dismissed.
( TEJINDER SINGH DHINDSA )

Guidelines to use for filling RTI Online

Posted: 24 Mar 2013 01:05 AM PDT



http://rtionline.gov.in/request/guidelines.php?request 

1. This RTI Online Portal facilitates the Indian citizens to file RTI 
application online and to make payment for RTI application online. It 
also facilitates the Indian citizens to file First appeal online.
2. At present, an applicant who desires to obtain any information 
under the RTI Act 2005 can make a request through this portal to 
Department of Personnel and Training (DoPT) only.
3. On selecting the option Submit Request in the RTI Online Portal, the 
applicant needs to provide the required details in request form. The 
fields pre-fixed with * are mandatory.
4. The text of the application may be written in the prescribed column 
of the form.

5. At present, the text of the application is confined up to 500 
characters only in the prescribed column of the form.
6. In case, the text of an application contains more than 500 
characters, it can be uploaded as a PDF attachment in the 
Supporting Document column of the form.
7. After filling the first page, a non-BPL applicant has to click on Make 
Payment button for remittance of the prescribed RTI fee.
8. The applicant can pay the prescribed RTI fee through the following 
modes:
(i) Internet banking through SBI and its associated banks;
(ii) Using ATM-cum-Debit card of SBI.
9. For a non-BPL applicant, an application shall be considered only 
after making successful payment through the above-mentioned 
modes.
10.No RTI fee is required to be paid by any citizen who is below 
poverty line, as per RTI Rules, 2012. However, the applicant must 
attach a copy of the certificate issued by the appropriate 
government in this regard, alongwith the application.
11.Fee for making an application is as prescribed in the RTI Rules 2012.Downloaded from www.rtiindia.org; the complete online community portal of India
12.On submission of an application, a unique registration number be 
issued, which may be referred by the applicant for any future 
reference.
13.It may be noted that the application filed through this RTI Online 
Portal reach electronically to the Nodal Officer of DoPT and Not to 
the CPIO of the concerned Ministry/Department.
14.The Nodal Officer shall transmit the RTI application, either 
electronically or physically to the concerned CPIO.
15.In case the RTI application is not meant for DoPT, the Nodal Officer 
of DoPT will transfer the application physically to the concerned 
ministry/department, under section 6 (3) of the RTI Act.
16.In case additional fee representing the cost is required for providing 
information, the Nodal Officer shall intimate the same, which can be 
viewed by the applicant through View Status option in the RTI 
Online Portal and an e-mail alert be sent to the applicant for the 
same,.
17.For submitting the additional fee online, the applicant needs to use 
the option View Status in the RTI Online Portal and on providing the 
registration number of the request option for Make Payment
provided.
18.For making an appeal to the first Appellate Authority, the applicant 
has to select the option Submit First Appeal in the RTI Online Portal 
and fill up the form that appear.
19.The registration number of original application may be used for the 
reference.
20.As per RTI Act, no fee has to be paid for first appeal.
21.The appeal so filed through this RTI Online Portal also reach 
electronically to the Nodal Officer of DoPT and Not to the first 
Appellate Authority.
22.The Nodal Officer transmit the first appeal to the concerned First 
Appellate Authority (FAA), either electronically or physically.
23.At present, an applicant/the appellant can see only the following 
status :
(i) Date of filing of Request ApplicationDownloaded from www.rtiindia.org; the complete online community portal of India
(ii) Amount of Additional fees, if required to pay
(iii) Date of filing of Appeal
24.Though optional, the mobile number can be provided by the 
applicant/ appellant in order to receive SMS alerts.
25.To begin with, the CPIOs and the FAAs reply to the 
applicant/appellant in physical mode, as being done at present.
26.The RTI Online portal facilitates the citizens to register them onto 
the portal. User registration is optional.
27.All the requirements for filing an RTI application and first appeal as 
well as other provisions regarding time limit, exemptions etc., as 
provided in the RTI Act, 2005 continue to apply. I have read and 
understood the above guidelines.
28.In case an application/first appeal is filed after normal office hours, 
the same will be accessed by the Nodal Officer during the next 
working day

Get your own criminal case details under RTI Act

Posted: 24 Mar 2013 01:02 AM PDT


This Court is inclined to concur with the view expressed by the CIC that in order to 
deny the information under the RTI Act the authority concerned would have to show a 
justification with reference to one of the specific clauses under Section 8 (1) of the RTI 
Act. In the instant case, the Petitioner has been unable to discharge that burden. The 
mere fact that a criminal case is pending may not by itself be sufficient unless there is a 
specific power to deny disclosure of the information concerning such case. In the 
present case, the criminal trial has concluded. Also, the investigation being affected on 
account of the disclosure information sought by the Respondent pertains to his own 
case. No prejudice can be caused to the Petitioner if the D.D. entry concerning his arrest, 
the information gathered during the course of the investigation, and the copies of the 
case diary are furnished to the Respondent. The right of an applicant to seek such 
information pertaining to his own criminal case, after the conclusion of the trial, by 
taking recourse of the RTI Act, cannot be said to be barred by any provision of the CrPC. 
It is required to be noticed that Section 22 of the RTI Act states that the RTI Act would 
prevail notwithstanding anything inconsistent therewith contained in the Official 
Secrets Act, 1923 and any other law for the time being in force.

* IN THE HIGH COURT OF DELHI 
AT NEW DELHI 10 
+ W.P.(C) 12428/2009 & CM APPL 12874/2009 
DEPUTY COMMISSIONER OF POLICE ..... 

versus 
D.K.SHARMA ....
CORAM: JUSTICE S. MURALIDHAR 
ORDER 
 15.12.2010 

1. The Deputy Commissioner of Police, Anti Corruption Branch ('DCP') is aggrieved by 
an order dated 25th September 2009 passed by the Central Information Commission 
('CIC') directing the Petitioner DCP to provide to the Respondent copies of the 
documents sought by him. These documents include certified copies of D.D. entry of 
arrest of the Respondent and various other documents relating to the investigation of 
the case, under FIR No. 52 of 2003. The CIC found the denial of the information by the 
Petitioner by taking recourse of Section 8 (1) of the Right to Information Act, 2005 ('RTI 
Act') to be untenable. It was held that none of the clauses under Section 8 (1) covered 
subjudice matters and therefore, the information could not be denied. 
2. This Court has heard the submissions of Mr. Pawan Sharma, learned counsel 
appearing for the Petitioner, and the Respondent who appears in W.P. (Civil) 
12428/2009 Page 1 of 3 person. 3. Mr. Pawan Sharma referred to Section 172 (2) of the Code of Criminal Procedure, 
1973 ('CrPC') and submitted that copies of the case diary can be used by a criminal court 
conducting the trial and could not be used as evidence in the case. He submitted that 
even the accused was not entitled, as a matter of right, to a case diary in terms of Section 
172 (2) CrPC and that the provisions of the RTI Act have to be read subject to Section 
172 (2) CrPC. Secondly, it is submitted that the trial has concluded and the Respondent 
has been convicted. All documents relied upon by the prosecution in the trial were 
provided to the Respondent under Section 208 CrPC. The Respondent could have asked 
for the documents sought by him while the trial was in progress before the criminal 
court. He could not be permitted to invoke the RTI Act after the conclusion of the trial. 
4. The Respondent who appears in person does not dispute the fact that the trial court 
has convicted him. He states that an appeal has been filed which is pending. He submits 
that his right to ask for documents concerning his own case in terms of the RTI Act was 
not subject to any of the provisions of the CrPC. Finally, it is submitted that no prejudice 
would be caused to the Petitioner at this stage, when the trial itself has concluded if the 
documents pertaining to the investigation are furnished to the Respondent. 
5. The above submissions have been considered. 
6. This Court is inclined to concur with the view expressed by the CIC that in order to 
deny the information under the RTI Act the authority concerned would have to show a 
justification with reference to one of the specific clauses under Section 8 (1) of the RTI 
Act. In the instant case, the Petitioner has been unable to discharge that burden. The 
mere fact that a criminal case is pending may not by itself be sufficient unless there is a 
specific power to deny disclosure of the information concerning such case. In the 
present case, the criminal trial has concluded. Also, the investigation being affected on 
account of the disclosure information sought by the Respondent pertains to his own 
case. No prejudice can be caused to the Petitioner if the D.D. entry concerning his arrest, 
the information gathered during the course of the investigation, and the copies of the 
case diary are furnished to the Respondent. The right of an applicant to seek such 
information pertaining to his own criminal case, after the conclusion of the trial, by 
taking recourse of the RTI Act, cannot be said to be barred by any provision of the CrPC. 
It is required to be noticed that Section 22 of the RTI Act states that the RTI Act would 
prevail notwithstanding anything inconsistent therewith contained in the Official 
Secrets Act, 1923 and any other law for the time being in force. 7. Consequently, this Court is not inclined to interfere with the impugned order dated 
25th September 2009 passed by the CIC. 
8. The petition and the pending application are dismissed. S.MURALIDHAR, J 
DECEMBER 15, 2010 
rk

Right to information Act- Ignorance of law is no excuse.

Posted: 24 Mar 2013 12:55 AM PDT


I have considered the rival contentions in detail. In
Ext.P8, there is no specific finding that the petitioner delayed
furnishing of the information without reasonable cause. But,
still the explanation offered by the petitioner would only be
sufficient to reduce the penalty and not to absolve the
petitioner from liability. Ignorance of law is no excuse. The
petitioner had sufficient time to get himself acquainted withthe law and get clarification within the time stipulated. There
was delay in doing the same for which I am of opinion that a
nominal penalty has to be imposed on the petitioner, which is
necessary to ensure strict compliance with the provisions of
the Right to Information Act, by the petitioner and others in
future.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
TUESDAY, THE 28TH DAY OF FEBRUARY 2012/9TH 
PHALGUNA 1933
WP(C).No. 27210 of 2007 (L)

P.G.SASIDHARAN,
THE PUBLIC INFORMATION OFFICER, COMMERCIAL TAXES
ERNAKULAM.

RESPONDENT(S):--------------
1. THE STATE INFORMATION COMMISSION,

Dated this the 28th day of February, 2012

JUDGMENTThis writ petition arises under the Right to Information Act.
The 2nd respondent filed a request under the Right to Information
Act for information within the possession of the Public
Information Officer, Commercial Taxes, Ernakulam. At the time
when the request was submitted on 24.5.2006, the petitioner's
predecessor in office, one Smt. Rahmanthnisa Begum was the
Public Information Officer. She endorsed on the file that the
views of the Commissioner of Commercial Taxes may be sought
and thereafter, she entered on leave. In her absence, one
Sri. J. Julies Smith was holding additional charge of the office of
the Public Information Officer. But, he did not know of the
request and he demitted office on 10.7.06. Thereafter, the
petitioner took charge as the Public Information Officer. The
request came to his attention on 13.7.06. But, he provided the
information to the 2nd respondent only on 12.9.06, after sixty
days. The 2nd respondent approached the Commission because
of delay in furnishing information and it was during the
pendency of those proceedings, the information was supplied.
Thereafter, the State Information Commission initiated
proceedings under Section 20 of the Act and by Ext.P8 order
imposed on the petitioner penalty of Rs.7500/- for the delay in
supplying the information. That order is under challenge in
this writ petition.2. The petitioner's contention is that penalty under
Section 20 can be imposed only by finding that, without
reasonable cause, the Public Information Officer refused to
furnish the information. In this case, when the request came
to this attention, he immediately wrote to the Commissioner of
Commercial Taxes for clarification as to whether the
information can be supplied, in view of Section 85 of the
Kerala Value Added Tax Act. On 25.8.2006, the State
Information Commissioner directed the petitioner to dispose of
the request of the 2nd respondent within ten days and to report
compliance before 15.9.2006. In the meantime, on 2.9.2006,
the Commissioner of Commercial Tax, by letter dated 23.8.2006
also clarified that the information sought for would not come
under any prohibitory clause under Right to Information Act.
On 8.9.2006, the petitioner directed the Commercial Tax
Officer, Kalamassery to furnish the information, which was
supplied on 12.9.2006. The petitioner submits that the
request of the 2nd respondent was the first of its kind dealt with
by the petitioner and the petitioner did not even have a copy
of the Right to Information Act which was actually borrowed
from the office of the Deputy Commissioner and the petitioner
was not very sure as to whether the information was one that
could be legally supplied. Therefore, according to thepetitioner, the petitioner had sufficient and reasonable cause
for not furnishing the information within the time stipulated, is
the contention raised.
3. The learned counsel for the State Information
Commission submits that the reasons put forward by the
petitioner are not valid reasons for delay in furnishing the
information. According to him, the ignorance of law is no
excuse. The petitioner had sufficient time to furnish the
information by obtaining clarification, if necessary from the
Commissioner of Commercial Taxes. Therefore, it cannot be
stated that the petitioner had sufficient cause for not
furnishing the information within the time stipulated, is the
contention raised.
4. I have considered the rival contentions in detail. In
Ext.P8, there is no specific finding that the petitioner delayed
furnishing of the information without reasonable cause. But,
still the explanation offered by the petitioner would only be
sufficient to reduce the penalty and not to absolve the
petitioner from liability. Ignorance of law is no excuse. The
petitioner had sufficient time to get himself acquainted withthe law and get clarification within the time stipulated. There
was delay in doing the same for which I am of opinion that a
nominal penalty has to be imposed on the petitioner, which is
necessary to ensure strict compliance with the provisions of
the Right to Information Act, by the petitioner and others in
future.
5. In the above circumstances, while upholding Ext.P8,
I reduce the penalty payable by the petitioner to Rs.1,000/-,
which shall be paid within two weeks from today.
The writ petition is disposed of as above.
S. SIRI JAGAN, JUDGE
acd

Case laws on IPC-part 1

Posted: 23 Mar 2013 10:06 PM PDT


Report to Police - A rape victim may think seriously before giving the information
to the police about rape as the onslaught of a social stigma may haunt her for life
- Though the delay as such is not serious, but while considering broad
probabilities of the case, the delay in giving the information to the police also
assumes some importance. (Sudhansu Sekhar Sahoo Vs State of Orissa) 2003(1) Apex
Court Judgments 129 (S.C.)Indian Penal Code, 1860, S.376 - Rape - Girl 10 years of
age - As per FIR recorded on statement of prosecutrix, rapist had muffled his face
with his shirt after taking it off - FIR did not show that during this period
prosecutrix had recognised rapist - It is dangerous to rely on testimony of child
witness and more so when her version was improved or contradictory on material
particulars - FIR appeared to be outcome of deliberators and consultations - Pant
of accused with blood stains produced in Court during trial but parcel bearing
seals of hospital where parcel had been sent to State Forensic Laboratory -
Conviction not sustainable. (Tarvinder Kumar Vs State of Himachal Pradesh) 2004(4)

Criminal Court Cases 791 (H.P.)Indian Penal Code, 1860, S.376 - Rape - Girl below
18 years - No evidence that sexual intercourse was without consent and by force -
Conviction u/s 376 IPC cannot be sustained. (Allaudin Vs State of Assam) 2004(3)
Criminal Court Cases 130 (Gauhati)Indian Penal Code, 1860, S.376 - Rape - Girl if
below 16 years of age, the question of consent is wholly irrelevant. (Dhruvendra
Singh & Ors. Vs State of Rajasthan) 2002(2) Criminal Court Cases 307 (Raj.) Indian
Penal Code, 1860, S.376 - Rape - Husband of prosecutrix reached the spot and found
accused lying on his wife but he did not make an attempt to catch hold of the
accused - After all, accused, to get up and to tie his clothes and then to run,
would have taken some time - Testimony of prosecutrix is unreliable and
untrustworthy - Conviction set aside. (Rambir Vs State of Haryana) 2004(4) Criminal

Court Cases 396 (P&H)Indian Penal Code, 1860, S.376 - Rape - Identification parade
- Rape case - Magistrate who conducted identification parade in Jail not examined
as a witness - However, memo prepared regarding identification of accused persons
in presence of Magistrate placed on record and that not challenged in cross
examination - Prosecutrix in her cross examination stated that she had disclosed
the four accused persons in the identification parade who had committed rape with
her - Held, accused were identified in identification parade. (Sawailal & Anr. Vs
State) 2005(2) Criminal Court Cases 807 (Rajasthan)Indian Penal Code, 1860, S.376 -
Rape - Identification - Contention that because of darkness it was not possible for
prosecutrix to identify accused - Prosecutrix however in her statement stated that
where rape was committed moon-light was there - Held, that it is unbelievable that
a victim against whose wishes intercourse has taken place will ever forget the face
of the person who had committed rape on her. (Sawailal & Anr. Vs State) 2005(2)
Criminal Court Cases 807 (Rajasthan)Indian Penal Code, 1860, S.376 - Rape - If
Court is satisfied from the evidence of the victim a conviction can be solely based
on such evidence without looking for further corroboration. (State of Chhattisgarh
Vs Derha) 2004(4) Criminal Court Cases 631 (S.C.)Indian Penal Code, 1860, S.376 -
Rape - If Court is satisfied that the evidence of prosecutrix is free from blemish
and is implicitly reliable, then on the sole testimony of the prosecutrix,
conviction can be recorded. (State of Rajasthan Vs Biram Lal) 2005(1) Apex Court
Judgments 662 (S.C.) : 2005(2) Criminal Court Cases 699 (S.C.)Indian Penal Code,
1860, S.376 - Rape - Incident 14 years old - Accused was then 18 years of age -
Accused thereafter married and having family - Sentence reduced from 10 years to 7
years. (State of Chhattisgarh Vs Derha) 2004(4) Criminal Court Cases 631 (S.C.)
Indian Penal Code, 1860, S.376 - Rape - Injuries - Evidence of Doctor that injuries
suffered by prosecutrix could not have been self inflicted - There was blood on
private part of prosecutrix, the hymen was torn and medial side of the labia-minora
was inflamed - This was even 4 days of the incident - Doctor in specific terms
stated that victim is not habituated to sexual intercourse - This by itself goes to
show that injury suffered by the victim was one that could have been caused only by
an act of rape as alleged by the prosecution. (State of Chhattisgarh Vs Derha)
2004(4) Criminal Court Cases 631 (S.C.)Indian Penal Code, 1860, S.376 - Rape -
Injury on the body of victim - Doubt regarding age of ruputure of the hymen - No
other injury found on body of victim - It would be dangerous to pass a conviction

merely on the fact that the hymen of victim was found ruptured. (Suresh Vs State
of Maharashtra) 2004(1) Criminal Court Cases 326 (Bombay)Indian Penal Code, 1860,
S.376 - Rape - Intercourse with consent - A woman would not ordinarily put her
chastity at stake by making a false allegation of rape but though this may be the
general rule, exceptions thereto are not lacking. (Dinesh Vs State of Haryana)
2004(3) Criminal Court Cases 383 (P&H)Indian Penal Code, 1860, S.376 - Rape -
Intercourse with consent - Plea of consent not taken - Held, even if plea is not
taken in defence it is still open to Court to infer that a case of sexual
intercourse with consent was made out on the basis of the prosecution evidence.
(Dinesh Vs State of Haryana) 2004(3) Criminal Court Cases 383 (P&H)Indian Penal
Code, 1860, S.376 - Rape - It is not possible for a single man to commit sexual
intercourse with a healthy adult female in full possession of her senses against
her Will. (Sukru Gouda Vs State of Orissa) 2004(2) Criminal Court Cases 673
(Orissa)Indian Penal Code, 1860, S.376 - Rape - Married woman - Doctor could not
give any definite opinion as there was profuse bleeding - This is of no consequence
in view of the unimpeached evidence of the victim. (Sri Narayan Saha & Anr. Vs
State of Tripura) 2004(4) Criminal Court Cases 638 (S.C.)Indian Penal Code, 1860,
S.376 - Rape - Married woman - If a prosecutrix is an adult and full understanding
the Court is entitled to base a conviction on her evidence unless the same is shown
to be infirm and not trustworthy - If the totality of the circumstances appearing
on the record of the case disclose that the prosecutrix does not have a strong
motive to falsely involve the person charged, Court should ordinarily have no
hesitation in accepting her evidence. (Sri Narayan Saha & Anr. Vs State of Tripura)
2004(4) Criminal Court Cases 638 (S.C.)Indian Penal Code, 1860, S.376 - Rape -
Material witness not examined - Testimony of prosecutrix not suffering from any
infirmity - No adverse inference can be drawn if the case projected by
prosecutrix is otherwise acceptable. (Devinder Vs State of Haryana) 2003(2)
Criminal Court Cases 673 (P&H) Indian Penal Code, 1860, S.376 - Rape - Medical
evidence of prosecutrix being 19 years of age - No injury on any pat of body of
prosecutrix - Main eye witness not supporting prosecution case - Report lodged
after about 12 days - No evidence ofintention - It being essentially a state of
mind it is very difficult to produce direct evidence to prove such intention - It
has to be inferred from the act like, the conduct of the accused or other relevant
circumstances of the case - Inference can be gathered by the manner in which the
accused arrived at the scene, mounted the attack, determination and concert with
which the attack was made, from the nature of injury caused by one or some of them
- It can further be inferred from the subsequent conduct after the attack - Even an
illegal omission on the part of such accused can indicate the sharing of common
intention - Totality of circumstances must be taken into consideration in arriving
at the conclusion whether the accused had the common intention to commit an offence
of which they could be convicted. (Ramesh Singh @ Photti Vs State of A.P.) 2004(4)
Criminal Court Cases 674 (S.C.)Indian Penal Code, 1860, S.34 - Common intention -
Joint liability - Prosecution has to establish by evidence that there was plan or
meeting of mind of all the accused persons to commit offence - Direct proof of
common intention is seldom available - Intention can be inferred from the
circumstances. (Harbans Kaur & Anr. Vs State of Haryana) 2005(2) Criminal Court
Cases 570 (S.C.)Indian Penal Code, 1860, S.34 - Common intention - Once it is found
that a criminal act has been committed by several persons in furtherance of common
intention of all, each of such persons is liable for the criminal acts as if it
were done by him alone. (Saravanan & Anr. Vs State of Pondicherry) 2005(1) Criminal
Court Cases 745 (S.C.)Indian Penal Code, 1860, S.34 - Common intention - Prior
concert and prearranged plan is its foundation - Two of four accused caused
injuries on the back of deceased whereas two other caused injuries on the head and
only head injuries were found fatal but circumstances indicated common intention
and conviction with aid of S.34 calls for no interference. (Krishnan & Anr. Vs
State Rep. By Inspector of Police) 2003(2) Apex Court Judgments 281 (S.C.) :
2003(3) Criminal Court Cases 181 (S.C.) Indian Penal Code, 1860, S.34 - Common
intention - Proof - Prosecution must establish by evidence, whether direct or
circumstantial, that there was plan or meeting of mind of all the accused persons

to commit the offence for which they are charged with the aid of S.34, be it pre-
arranged or on the spur of moment but it must be before the commission of the
crime. (Raju Pandurang Mahale Vs State of Maharashtra & Anr.) 2005(1) Criminal
Court Cases 189 (S.C.)Indian Penal Code, 1860, S.34 - Common intention -
Prosecution
has to establish by evidence, direct or circumstantial, that there was plan or
meeting of mind of all the accused persons to commit the offence for which they are
charged with the aid of S.34, be it prearranged or on the spur of moment, but it
must necessarily be before the commission of the crime - True contents of the
provision are that if two or more persons intentionally do an act jointly, the
position in law is just the same as if each of them has done it individually by
himself. (Babulal Bhagwan Khandare Vs State of Maharashtra) 2005(1) Criminal Court
Cases 503 (S.C.)Indian Penal Code, 1860, S.34 - Common intention - Three accused
came together - Only one of them had grudge against deceased - Two accused caught
hold hands of deceased and third accused stabbed the deceased on vital parts - Two
accused did not prevent third accused from attacking - This leads to an
irresistible and in inescapable conclusion that the accused persons had shared the
common intention. (Ramesh Singh @ Photti Vs State of A.P.) 2004(4) Criminal Court
Cases 674 (S.C.)Indian Penal Code, 1860, S.34 - Common intention - To attract the
provision two facts have to be established (1) common intention (2) participation
of the accused in commission of the offence - If the above two ingredients are
satisfied even overt act on the part of some of the persons sharing in the common
intention is not necessary. (Hamlet @ Sasi & Ors. Vs State of Kerala) 2004(1) Apex
Court Judgments 333 (S.C.)Indian Penal Code, 1860, S.34 - Common intention - To
bring home charge of common intention prosecution has to establish by evidence,
whether direct or circumstantial, that there was plan or meeting of mind of all the
accused persons to commit the offence for which they are charged with the aid of
Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be
before the commission of the crime. (Girija Shankar Vs State of U.P.) 2004(3)
Criminal Court Cases 291 (S.C.)Indian Penal Code, 1860, S.34 - Common intention -
To bring home the charge of common intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there was plan or meeting of mind
of all the accused persons to commit the offence for which they are charged with
the aid of Section 34, be it pre-arranged or on the spur of moment; but it must
necessarily be before the commission of the crime. (Hari Ram Vs State of U.P.)
2004(4) Criminal Court Cases 198 (S.C.)Indian Penal Code, 1860, S.34 - Common
intention - To bring home the charge of common intention, the prosecution has to
establish by evidence, whether direct or circumstantial, that there was plan or
meeting of mind of all the accused persons to commit the offence for which they are
charged with the aid of Section 34, be it pre-arranged or on the spur of moment;
but it must necessarily be before the commission of the crime. (State of M.P. Vs
Deshraj & Ors.) 2004(4) Criminal Court Cases 231 (S.C.)Indian Penal Code, 1860,
S.34 - Common intention - (i) To attract the applicability of Section 34 IPC
prosecution is under an obligation to establish that there existed a common
intention which requires a prearranged plan because before a man can be vicariously
convicted for the criminal act of another, the act must have been done in
furtherance of the common intention of all (ii) Common intention can be formed
previously or in the course of occurrence and on the spur of the moment (iii)
Common intention arising at any time prior to the criminal act, can be proved by
circumstantial evidence (iv) The 'act' referred to in the later part of S.34 means
the ultimate criminal act with which the accused is charged of sharing the common
intention (v) The essence of S.34 is simultaneous consensus of the mind of persons
participation in the criminal action to bring about a particular result (vi) Mere
distancing himself from the scene cannot absolve the accused. (Lallan Rai & Ors. Vs
State of Bihar) 2003(1) Apex Court Judgments 438 (S.C.) : 2003(2) Criminal Court
Cases 48 (S.C.) Indian Penal Code, 1860, S.34 - Conviction for offence by applying
S.34 IPC in absence of charge cannot be said to be fatal by itself. (State of
Andhra Pradesh Vs K.Srinivasulu Reddy & Anr.) 2004(1) Criminal Court Cases 646
(S.C.)Indian Penal Code, 1860, S.34 - Conviction for murder with aid of S.34 -

Appellant exhorted other accused to fire at the deceased and other accused fired
shot by his fire-arm - Though carrying weapon, appellant did not fire at anyone -
Two other accused acquitted - Benefit of doubt extended to appellant. (Nirmal Singh
& Anr. Vs State of Bihar) 2005(2) Criminal Court Cases 24 (S.C.)Indian Penal Code,
1860, S.34 - Exhortation can constitute common intention in certain circumstances -
Appellant exhorted his companion to fire at deceased - Shot fired at deceased which
killed him - Applicability of S.34 IPC - Deceased was tried for murder of uncle of
appellant - Accused who fired shot was tried for murder of son of deceased -
Parties well known to each other - Held, in the given facts and circumstances of
the case, there is no doubt about the applicability of S.34 IPC - It was pursuant
to the common intention of both that shot was fired resulting in death. (Damodar Vs
State of U.P.) 2005(1) Criminal Court Cases 960 (S.C.)Indian Penal Code, 1860, S.34
- Four accused - All the four did not come together - Held, for the applicability
of the provision it is not material how the accused converge on the place of
occurrence - What is material for the applicability of the provision is their
common intention. (State of Madhya Pradesh Vs Mansingh & Ors.) 2003(2) Apex Court
Judgments 277 (S.C.) : 2003(3) Criminal Court Cases 559 (S.C.) Indian Penal Code,
1860, S.34 - Ingredients - Common intention in the sense of a pre arranged plan
between the two and person sought to be so held liable had participated in some
manner in the act constituting the offence - Unless common intention and
participation are both present section 34 cannot apply - Actual presence at the
scene of incident not necessary in all cases. (Dani Singh & Ors. Vs State of
Bihar ) 2004(2) Criminal Court Cases 694 (S.C.)Indian Penal Code, 1860, S.34 -
Murder - Common intention - Appellant caught hold of waist of deceased, took him
towards nulla and threw him on ground and then co-accused inflicted iron rod blows
five times - Appellant did not try to prevent co-accused from assault or exhibited
any intention that co-accused should discontinue the attack - Held, offence would
be deemed to be committed by both accused in prosecution of common intention.
(Dayal & Anr. Vs State of Maharashtra) 2003(3) Criminal Court Cases 403 (Bombay)
Indian Penal Code, 1860, S.34 - On exhortation of one appellant second appellant
fired gun shot - Conviction of third appellant, who accompanied other two, with aid
of S.34 IPC - Third appellant had carried no weapon and no overt act attributed to
him except that he accompanied other two - Conviction of third appellant set aside.
(Binod Prasad Vs State of Bihar) 2004(4) Criminal Court Cases 640 (Patna)Indian
Penal Code, 1860, S.34 - With the aid of section 34 a person can be made liable for
an action of an offence not committed by him but by another person with whom he
shared the common intention as section 34 recognises the principle of vicarious
liability in criminal jurisprudence. (Ganga Paswan & Anr. Vs State of Bihar)
2003(1) Apex Court Judgments 593 (S.C.)Indian Penal Code, 1860, Ss.34, 147, 148,
149, 302, 307, 323, 341 - Prosecution of eight accused - Coming together of all not
established - Unlawful object to kill B who lay herself down on J not developed at
any point of time prior to actual occurrence - Incident not occurring in manner as
described by prosecution - Origin of occurrence withheld - Injuries caused not
consistent with shot fired from distance of 30 feet - Not sufficient evidence as to
participation of accused K, G, L, B and H1 - Eye witnesses creditworthy as regards
involvement of M, H2 and J - All of these accused sharing common intention to
commit murder of B and to cause injuries to K - Accused M and J held guilty u/ss
34, 302 and 307 - Accused H2 held guilty u/s 302 IPC - All other acquitted on
benefit of doubt. (Kamal & Ors. Vs State of Rajasthan) 2003(3) Criminal Court Cases
156 (Rajasthan) Indian Penal Code, 1860, Ss.34, 149 - Common intention & common
object - Distinction - Common intention denotes action in concert and necessarily
postulates the existence of a pre-arranged plan implying a prior meeting of the
minds, while common object does not necessarily require proof of prior meeting of
minds or preconcert - Though there is substantial difference between the two
sections, they also to some extent overlap and it is a question to be determined on
the facts of each case whether the charge under section 149 overlaps the ground
covered by section 34. (Chittarmal Vs State of Rajasthan) 2003(1) Apex Court
Judgments 191 (S.C.)Indian Penal Code, 1860, Ss.34, 149 & 96 - Free fight - Ss.34 &
149 IPC are inapplicable - Each individual is responsible for his own acts - There

is no constructive or vicarious liability for the act of another. (Majid Khan &
Ors. Vs State of M.P.) 2003(2) Criminal Court Cases 308 (M.P.) Indian Penal Code,
1860, Ss.34, 201, 302 - Appeal against conviction - Circumstantial evidence - No
conclusive evidence of accused and deceased being last seen together - Statement of
witnesses on point of extra judicial confession full of contradictions on material
aspects - Witness to whom extra judicial confession made having no intimacy with
accused as such there is no reason to make confession to such witnesses - Alleged
recovery of weapon of offence not proved to be made at instance of accused - None
of these circumstances proved against accused - Conviction
set aside. (Harbansh & Anr. Vs State of Rajasthan) 2004(1) Criminal Court Cases
469 (Rajasthan)Indian Penal Code, 1860, Ss.34, 302/34 - Absence of charge u/s 34
IPC - Accused can be convicted for the offence under S.302 read with S.34 provided
facts and circumstances show that there existed common intention and the accused
committed the act with such intention. (Karnam Ram Narsaiah & Ors. Vs State of
Andhra Pradesh) 2004(4) Criminal Court Cases 472 (S.C.)Indian Penal Code, 1860,
S.52 - Good faith - A thing shall be deemed to be done in "good faith" where it is
in fact done honestly whether it is done negligently or not. (Mangtu Ram Vs State
of Rajasthan) 2004(1) Criminal Court Cases 623 (Rajasthan)Indian Penal Code, 1860,
S.57 - Life imprisonment - Is to be treated as imprisonment for life. (Chacko Vs
State of Kerala) 2003(3) Criminal Court Cases 239 (Kerala) Indian Penal Code,
1860, S.80 and 304-A - Accused picking gun, unlocked it and put the cartridges and
fired from close range - Neither section 80 nor Section 304-A attracted - Accused
convicted u/s 304 Part II. (Shankar Narayan Bhadolkar Vs State of Maharashtra )
2004(2) Criminal Court Cases 782 (S.C.)Indian Penal Code, 1860, S.80 - Burden of
Proof - Presumption is against the accused who pleads exception u/s 80 - Burden of
proof lies on accused. (Shankar Narayan Bhadolkar Vs State of Maharashtra )
2004(2) Criminal Court Cases 782 (S.C.)Indian Penal Code, 1860, S.80 - Scope and
Ambit - Requirement - Primordial requirement of section 80 is that the act which
killed other person must have been done with proper care and caution - Care and
circumspection taken by accused must be one taken by prudent and reasonable man -
Where act of the accused is itself criminal in nature protection u/s 80 is not
available. (Shankar Narayan Bhadolkar Vs State of Maharashtra ) 2004(2) Criminal
Court Cases 782 (S.C.)Indian Penal Code, 1860, S.84 - For applicability of the
provision elements necessary are: (i) the accused was of unsound mind at the time
of commission of the act; and (ii) by reason of unsoundness of mind, the accused
was incapable of knowing the nature of the act or that he was doing what was
either wring or contrary to law. (Vidhya Devi Vs State of Rajasthan) 2004(3)
Criminal Court Cases 366 (Rajasthan)Indian Penal Code, 1860, S.84 - Insanity -
Burden of proof - AIR 1984 SC 1563 followed wherein held: (1) Prosecution must
prove beyond reasonable doubt that the accused committed the offence with the
requisite mens rea and the burden of proving that always rests upon the
prosecution (2) There is a rebuttable presumption that the accused was not insane
when he committed the crime, in the sense laid down in Section 84 - Burden of proof
upon him is no higher than that which rests upon a party in civil proceedings, that
is, to prove this defence by a preponderance of probabilities; (3) That even if the
accused was not able to establish conclusively that he was insane at the time he
committed the offence, the evidence placed before the Court by the accused or by
the prosecution, may raise a reasonable doubt as regards one or more of the
ingredients of the offence, including mens rea of the accused and in that case the
Court would be entitled to acquit the accused on the ground that the general burden
resting on the prosecution has not been discharged. (Smt.Rukhsana (In Jail) Vs
State of U.P.) 2002(3) Criminal Court Cases 647 (Allahabad) Indian Penal Code,
1860, S.84 - Insanity - Burden of proof - Lies upon the accused. (Evidence Act,
1872, S.105). (Shrikant Anandrao Bhosale Vs State of Maharashtra) 2002(3) Criminal
Court Cases 642 (S.C.) Indian Penal Code, 1860, S.84 - Insanity - Following
circumstance show that accused was of unsound mind and entitled to benefit of S.84
IPC viz. (1) The appellant has a family history - his father was suffering from
psychiatric illness; (2) Cause of ailment not known - hereditary plays a part; (3)
Appellant was being treated for unsoundness of mind since 1992 - Diagnosed as

suffering from paranoid schizophrenia; (4) Within a short span, soon after the
incident from 27th June to 5th December, 1994, he had to be taken for treatment of
ailment 25 times to hospital; (5) Appellant was under regular treatment for the
mental ailment; (6) The weak motive of killing of wife - being that she was
opposing the idea of the appellant resigning the job of a Police Constable; (7)
Killing in day light-no attempt to hide or run away. (Shrikant Anandrao Bhosale Vs
State of Maharashtra) 2002(3) Criminal Court Cases 642 (S.C.) Indian Penal Code,
1860, S.84 - Insanity - If an act is committed out of extreme anger and not as a
result of unsoundness of mind, accused is not entitled to the benefit of exception
as contained in S.84 IPC. (Shrikant Anandrao Bhosale Vs State of Maharashtra)
2002(3) Criminal Court Cases 642 (S.C.) Indian Penal Code, 1860, S.84 - Insanity -
Paranoid schizophrenia - What is? - Analysed. (Shrikant Anandrao Bhosale Vs State
of Maharashtra) 2002(3) Criminal Court Cases 642 (S.C.) Indian Penal Code, 1860,
S.84 - Insanity - State of mind of accused at the time of commission of the offence
is to be proved so as to get the benefit of the exception. (Shrikant Anandrao
Bhosale Vs State of Maharashtra) 2002(3) Criminal Court Cases 642 (S.C.)Indian
Penal Code, 1860, S.84 - Insanity - To claim defence on the ground of insanity it
must be proved that at the time of committing the act accused was labouring under
such a defect of reason from disease of the mind as not to know the nature and
quality of the act he was doing or if he did know it, that he did not know he was
doing what was wrong or contrary to law. (Vidhya Devi Vs State of Rajasthan)
2004(3) Criminal Court Cases 366 (Rajasthan)Indian Penal Code, 1860, S.84 - Lunatic
- Conviction for offence of murder - Appellant at the time of commission of offence
was of unsound mind - Subsequent to commission of crime also civil surgeon found
him to be lunatic - Conviction cannot be maintained - Appeal allowed and accused
acquitted. (Motiram Maroti Dhule Vs State of Maharashtra) 2003(1) Criminal Court
Cases 492 (Bombay) Indian Penal Code, 1860, S.84 - Person not of sound mind - Four
type of such persons are: (i) an idiot; (ii) one made non compos by illness; (iii)
a lunatic or madman; and (iv) a drunkard i.e. one who is drunk. (Vidhya Devi Vs
State of Rajasthan) 2004(3) Criminal Court Cases 366 (Rajasthan)Indian Penal Code,
1860, S.84 - Principles governing applicability of the provision are: (a) every
type of insanity is not legal insanity; the cognitive faculty must be so destroyed
as to render one incapable of knowing the nature of his act or that what he is
doing is wrong or contrary to law; (b) the Court shall presume the absence of such
insanity; (c) the burden of proof of legal insanity is on the accused though it is
not as heavy as one the prosecution to prove an office; (d) the Court must consider
whether the accused suffered from legal insanity at the time when the offence was
committed; (e) in reaching such a conclusion, the circumstances which preceded,
attended or followed the crime are relevant considerations; and (f) the prosecution
in discharging its burden in the face of the plea of legal insanity has merely to
prove the basic fact and rely upon the normal presumption of law that everyone
knows the law and the natural consequences of his act. (Vidhya Devi Vs State of
Rajasthan) 2004(3) Criminal Court Cases 366 (Rajasthan)Indian Penal Code, 1860,
S.84 - Unsoundness of mind - A legal insanity which requires that cognitive
faculties of the accused are such that he does not know what he has done or what
will follow from his act. (Atrup Vs State of Rajasthan) 2004(2) Criminal Court
Cases 646 (Rajasthan)Indian Penal Code, 1860, S.84 - Unsoundness of mind - At the
time of commission of offence - In order to ascertain whether accused was insane
at the time of commission of the offence, it is relevant to consider the state of
such person's mind immediately preceding as well as subsequent to the commission of
the offence - State of mind before and after the act is relevant though not
conclusive. (Vidhya Devi Vs State of Rajasthan) 2004(3) Criminal Court Cases 366
(Rajasthan)Indian Penal Code, 1860, S.84 - 'Schizophrenia' - It is one of the types
of insanity. (Vidhya Devi Vs State of Rajasthan) 2004(3) Criminal Court Cases 366
(Rajasthan)Indian Penal Code, 1860, Ss.84, 302 - Murder - Plea of insanity - After
arrest accused dashed his head against iron bars of prison and a case was
registered but the plea of insanity was rejected - Plea of insanity negatived on
the ground (1) Accused entered into place of incident concealing the axe under his
clothes and after inflicting injury on the head he fled away; (2) After his arrest

accused disclosed that he had hidden the axe under the soil near the hill and on
the basis of his disclosure statement the axe got recovered from the said place by
the I.O.; (3) Explanation of accused u/s 313 Cr.P.C. was that he is falsely
implicated in the case because of group rivalry and the prosecution witnesses
deposed against him as his relations with them were inimical and all the questions
put to appellant were properly answered by him - Held, all these circumstances show
that the accused was not insane, his cognitive faculties were not lost and he was
not incapable of knowing the nature of his act. (Atrup Vs State of Rajasthan)
2004(2) Criminal Court Cases 646 (Rajasthan)Indian Penal Code, 1860, Ss.84, 302,
304 Part II - Self incriminating FIR by accused of having killed his wife - Defence
of insanity not sufficient to rebut presumption of sanity - Relations between
accused and deceased were cordial as stated by neighbours - Non confessional part
of FIR admissible in evidence enlightening conduct of accused -
Pant and shirt of accused stained with human blood - Six incriminating
circumstances against accused conclusively pointing towards his guilt - Incident an
outcome of sudden spurt of temper - Single hammer blow on head not stated by doctor
to be sufficient in ordinary course of nature to cause death - Accused convicted
u/s 304 Part II. (Ajay Singh Vs State of Rajasthan) 2002(2) Criminal Court Cases 54
(Raj.)Indian Penal Code, 1860, Ss.84, 302, Evidence Act, 1872, S.3 - Attempt to
murder - Unsoundness of mind - To claim exemption from criminal liability on this
ground, it must be shown that unsoundness of mind existed at material time of
commission of offence - Evidence of doctor that accused was treated for
schizophrenia and epileptic fits some years prior to incident and also subsequently
during trial is not sufficient to absolve accused from criminal liability where
direct evidence of eye witnesses shows that accused was not acting under
schizophrenia or epileptic automatism - Accused enraged by lodging of complaint
with police against him, waylaying complainant and inflicted grievous hurt with
lethal weapon - When it is not proved that insanity existed at time of commission
of act, conviction has to be upheld. (Venkatesh alias Tiger Venkatesh alias English
Venkatesh Vs State ) 2005(2) Criminal Court Cases 173 (Karnataka)Indian Penal Code,
1860, S.85 - Intoxication - Self inflicted - Benefit of S.85 IPC is not available -
To avail benefit of the provision it must be proved that the thing which
intoxicated him was administered to him without his knowledge or against his will.
(Imtiaz Ahamed alias Imtiaz Pasha Vs State) 2002(2) Criminal Court Cases 217
(Karnataka) Indian Penal Code, 1860, Ss.88 & 89 - Corporal punishment by a teacher
to student - When a criminal offence - If a teacher out of fury and excitement,
inflicts injuries which is harmful to the health of a tender aged student, it
cannot be accepted as a right conferred on such a teacher to inflict such
punishment, because of the express or implied authority granted by parents of that
student - However, when a teacher gave beatings on the gluteal region, only to make
a student adhere the standards of school, the same is done with bona fide intention
and teacher does not commit any criminal offence. (Abdul Vaheed Vs State of
Kerala) 2005(2) Criminal Court Cases 775 (Kerala)Indian Penal Code, 1860, S.91 -
Self defence - Court can consider such a plea on basis of material available even
if accused fails to plead it - Burden is upon accused to establish such plea.
(Mitra Prasad Rai Vs State of Sikkim) 2004(4) Criminal Court Cases 601 (Sikkim)
Indian Penal Code, 1860, S.96, 304 - Right of private defence - Deceased taking
possession of sheep belonging to accused - In a sudden quarrel accused gave
injuries - Deceased fell down - Deceased again gave a blow on neck - Held, accused
exceeded right of private defence - Accused convicted under S.304 Part I and
sentenced 10 years. (Sekar @ Raja Sekharan Vs State rep. by Inspector of Police,
T.Nadu) 2002(3) Criminal Court Cases 676 (S.C.) Indian Penal Code, 1860, S.96,
Evidence Act, 1872, S.105 - Private defence - Not required to be proved by calling
evidence - It can be established by reference to circumstances transpiring from the
prosecution evidence itself. (Sekar @ Raja Sekharan Vs State rep. by Inspector of
Police, T.Nadu) 2002(3) Criminal Court Cases 676 (S.C.) Indian Penal Code, 1860,
S.96, Evidence Act, 1872, S.105 - Private defence - Burden of proof - Is on the
accused and the burden stands discharged by showing preponderance of probabilities
in favour of that plea on the basis of the material on record. (Sekar @ Raja

Sekharan Vs State rep. by Inspector of Police, T.Nadu) 2002(3) Criminal Court Cases
676 (S.C.) Indian Penal Code, 1860, S.96, Evidence Act, 1872, S.105 - Private
defence - The defence pleaded must be a reasonable and probable version satisfying
the Court that the harm caused by the accused was necessary for either warding off
the attack or for forestalling any further reasonable apprehension, from the
attacker. (Sekar @ Raja Sekharan Vs State rep. by Inspector of Police, T.Nadu)
2002(3) Criminal Court Cases 676 (S.C.) Indian Penal Code, 1860, S.96 - Murder -
Right of private defence - Nothing is an offence which is done in exercise of right
of private defence - 'Right of private defence' is not defined - Provision merely
indicates that nothing is an offence which is done in exercise of such right -
Whether in a particular set of circumstances, a person legitimately acted in the
exercise of the right of private defence is a question of fact to be determined on
the facts and circumstances of each case - No test in the abstract for determining
such a question can be laid down. (Babulal Bhagwan Khandare Vs State of
Maharashtra) 2005(1) Criminal Court Cases 503 (S.C.)Indian Penal Code, 1860, S.96 -
Private defence - In a given case, Court can consider it even if the accused has
not taken it, if the same is available to be considered from the material on
record. (Sekar @ Raja Sekharan Vs State rep. by Inspector of Police, T.Nadu)
2002(3) Criminal Court Cases 676 (S.C.) Indian Penal Code, 1860, S.96 - Private
defence - Number of injuries is not always a safe criterion for determining the
aggressor - Prosecution not to explain injuries sustained by accused if injuries
are minor. (Laxman Singh Vs Poonam Singh) 2003(3) Criminal Court Cases 667 (S.C.) :
2003(2) Apex Court Judgments 558 (S.C.)Indian Penal Code, 1860, S.96 - Private
defence - Right of private defence is purely preventive and not punitive or
retributive - It is not a right to take revenge nor is a right of reprisal.
(Mohammed Nazim Vs The State of Rajasthan) 2003(1) Criminal Court Cases 340
(Rajasthan)
Indian Penal Code, 1860, Ss.96, 97 & 100, Evidence Act, 1872, S.105 -
Private defence - If circumstances show that the right of private defence was
legitimately exercised, it is open to Court to consider plea of self defence -
Court can consider it even if accused does not assert such a defence - Accused can
prove right of self defence by reference to circumstances transpiring from the
prosecution evidence itself - Burden of establishing plea of self defence is on the
accused and the burden stands discharged by showing preponderance of probabilities
in favour of that plea on the basis of material on record. (Laxman Singh Vs Poonam
Singh) 2003(3) Criminal Court Cases 667 (S.C.) : 2003(2) Apex Court Judgments 558
(S.C.)Indian Penal Code, 1860, Ss.96, 97 and 100 - Private defence - Principles :
(1) Number of injuries is not always a safe criterion for determining who the
aggressor was; (2) Right commences, as soon as a reasonable apprehension of danger
to body arises from an attempt, on threat, to commit the offence although the
offence may not have been committed but not until there is that reasonable
apprehension - The right lasts so long as the reasonable apprehension of the danger
to the body continues; (3) Person apprehending death or injury cannot weigh in
golden scales in the spur of moment in the heat of circumstances, the number of
injuries required to disarm the assailants. (V.Subramani & Anr. Vs State of Tamil
Nadu) 2005(2) Criminal Court Cases 407 (S.C.)Indian Penal Code, 1860, Ss.96 to 100,
Indian Penal Code, 1860, Ss.302 and 304 Part I - Private defence - Bandh activists
wanted accused to close mill - Altercation took place - Bandh activists by using
explosives put mill and property on fire - Accused resorted to fire with gun
causing death of two activists and injuring others - Held, accused acted in private
defence - Conviction set aside. (James Martin Vs State of Kerala) 2004(2) Criminal
Court Cases 183 (S.C.)Indian Penal Code, 1860, Ss.96 to 100 - Right of private
defence - Burden of proof is on accused who sets up the plea of self defence - To
prove right of private defence it is not necessary to call evidence - Right of
private defence can be proved by reference to circumstances transpiring from the
prosecution evidence - Defence must be a reasonable and probable version satisfying
the Court that the harm caused by accused was necessary for either warding off the
attack or for forestalling the further reasonable apprehension from the side of he
accused - Burden is discharged by showing preponderance of probabilities in favour
of that plea on the basis of material on record. (James Martin Vs State of Kerala)

2004(2) Criminal Court Cases 183 (S.C.)Indian Penal Code, 1860, Ss.96, 304 Part II,
323, 447 - Private defence - Land dispute - Accused asserting that field belongs to
them and they will not allow complainant party to plough field - After several
verbal aggression accused started assault on complainant party - Attacks not
premeditated - Plea of right of self defence accepted - Acquittal upheld. (Laxman
Singh Vs Poonam Singh) 2003(3) Criminal Court Cases 667 (S.C.) : 2003(2) Apex Court
Judgments 558 (S.C.)Indian Penal Code, 1860, S.97 - Private defence - It has to be
established that the accused persons were under such grave apprehension about the
safety of their life and property that retaliation to the extent done was
absolutely necessary. (Chacko @ Aniyan Kunju & Ors. Vs State of Kerala) 2004(3)
Criminal Court Cases 48 (S.C.)Indian Penal Code, 1860, Ss.97, 100 - Private defence
- Right of causing death - Right of private defence extends to causing death if
there is reasonable apprehension that death or grievous hurt would be the
consequence of the assault. (State of Madhya Pradesh Vs Ramesh) 2005(1) Criminal
Court Cases 462 (S.C.)Indian Penal Code, 1860, Ss.97, 99 - Private defence of
property - Deceased set a hut on fire - Accused reached there and gave a lathi blow
on head of deceased resulting in his death - Held, accused is not entitled to right
of private defence of property
as gave the blow at the stage when act of fire had already taken place. (Jugan Vs
State of M.P.) 2005(1) Criminal Court Cases 613 (M.P.)Indian Penal Code, 1860,
Ss.97 and 99 - Private defence of property - Plea of - Can be raised for the first
time in appeal - If accused does not plead self-defence, it is open for the High
Court to consider such a plea if same arises from the material on record - Accused
can get benefit of right of private defence of property on the basis of evidence
led by prosecution. (Jugan Vs State of M.P.) 2005(1) Criminal Court Cases 613
(M.P.)Indian Penal Code, 1860, Ss.97 to 102 - Private defence - Not necessary to
plead that action was done in self defence - If the circumstances show that the
right of private defence was legitimately exercised, it is open to Court to
consider such a plea - Court can consider it if available from the material on
record even in absence of such a plea by accused - To prove plea of self defence
burden is on accused - Accused can establish his plea of right of private defence
by reference to circumstances transpiring from the prosecution evidence itself -
Where right of private defence is pleaded, the defence must be a reasonable and
probable version satisfying the Court that the harm caused by the accused was
necessary for either warding off the attack or for forestalling the further
reasonable apprehension from the side of the accused - Burden of establishing the
plea of self defence is on the accused and the burden stands discharged by showing
preponderance of probabilities in favour of that plea on the basis of the material
on record. (State of Madhya Pradesh Vs Ramesh) 2005(1) Criminal Court Cases 462
(S.C.)Indian Penal Code, 1860, Ss.97 to 102 - Private defence - Number of injuries
is not always a safe criterion for determining who the aggressor was - Right
commences as soon as a reasonable apprehension of danger to the body arises from an
attempt, or threat, or commit the offence, although the offence may not have been
committed but not until there is that reasonable apprehension - The right lasts so
long as the reasonable apprehension of the danger to he body continues. (State of
Madhya Pradesh Vs Ramesh) 2005(1) Criminal Court Cases 462 (S.C.)Indian Penal Code,
1860, Ss.97 to 102 - Private defence - Right of - Right to defend does not include
a right to launch an offensive, particularly when the need to defend no longer
survived. (State of Madhya Pradesh Vs Ramesh) 2005(1) Criminal Court Cases 462
(S.C.)Indian Penal Code, 1860, Ss.97 to 102 - Private defence - Right whether
available or not - Injuries received by the accused, the imminence of threat of his
safety, the injuries caused by the accused and the circumstances whether the
accused had time to have recourse to public authorities are all relevant factors to
be considered. (State of Madhya Pradesh Vs Ramesh) 2005(1) Criminal Court Cases 462
(S.C.)Indian Penal Code, 1860, Ss.97 to 105 - Private defence - Availability of
right - Relevant considerations are injuries received by accused, the imminence of
threat to his safety, the injuries caused by the accused and the circumstances
whether the accused had time to have recourse to public authorities. (Shriram Vs
State of Madhya Pradesh) 2004(1) Criminal Court Cases 619 (S.C.)Indian Penal Code,

1860, S.100, 304 Part I - Decreased threw bricks upon accused whereas he went
inside house and brought his gun and fired shots in self defence - Held, there was
no occasion for accused to use gun - Accused exceeded his right of private defence
- Accused is liable for conviction u/s 304 Part I IPC. (Shingara Singh Vs State of
Haryana & Anr.) 2005(1) Criminal Court Cases 68 (S.C.)Indian Penal Code, 1860,
S.100 and 302 - Right of self defence - Mere statement of accused u/s 313 - Not
sufficient to raise plea of self defence - Conviction upheld. (Anil Kumar Vs State
of U.P.) 2005(1) Criminal Court Cases 01 (S.C.)Indian Penal Code, 1860, S.100 -
Private defence - Force used while exercising right of private defence to avert the
threat shall not exceed - However, it cannot be said how much force is required for
averting a particular assault - Facts of the case as spoken to by the witnesses
have to be evaluated to consider whether one had exceeded right of private defence.
(Kuriachan Joseph alias Kuriachan Vs State of Kerala) 2005(2) Criminal Court Cases
250 (Kerala)Indian Penal Code, 1860, S.100 - Private defence - Right of - Both
parties came armed and indulged in free fighting - It resulted in injuries on both
sides - As both parties had come prepared to fight, it is not necessary to go into
the question as to whether any of them was entitled to right of private defence -
Culpability of accused to be determined by reference to their individual acts.
(Kewal Singh & Ors. Vs State of Punjab) 2004(4) Criminal Court Cases 160 (S.C.)
Indian Penal Code, 1860, Ss.100, 88, 302/149, 148 - Murder - Self defence - Assault
exceedingly vindictive and maliciously excessive - - Accused not entitled to right
of private defence. (Bathusingh & Ors. Vs State of M.P.) 2005(1) Criminal Court
Cases 549 (S.C.)Indian Penal Code, 1860, Ss.100, 88, 302/149, 148 - Murder - Self
defence - Right of private defence is essentially one of defence or self protection
and not a right of reprisal or punishment - It is subject to the restrictions
indicated in S.88 which are so important as the right itself. (Bathusingh & Ors. Vs
State of M.P.) 2005(1) Criminal Court Cases 549 (S.C.)Indian Penal Code, 1860,
Ss.101 to 105 - Self defence - Right of - Plea of right comprises the body or
property (i) of the person exercising the right; or (ii) of any other person; and
the right may be exercised in the case of any offence against the body, and in the
case of offence of theft, robbery, mischief or criminal trespass, and attempts at
such offences in relation to property - S.99 lays down the limits of the right of
private defence - Ss.96 and 98 give a right of private defence against certain
offences and acts - Right given u/ss 96 and 98 and 100 to 106 is controlled by S.99
- To claim a right of private defence extending to voluntary causing of death, the
accused must show that there were circumstances giving rise to reasonable grounds
for apprehending that either death or grievous hurt would be caused to him - Burden
is on the accused to show that he had a right of private defence which extended to
causing of death - Ss.100 and 101 IPC define the limit and extent of right of
private defence. (Babulal Bhagwan Khandare Vs State of Maharashtra) 2005(1)
Criminal Court Cases 503 (S.C.)Indian Penal Code, 1860, Ss.102, 105 - Private
defence - Commencement and continuance - Right commences as soon as a reasonable
apprehension of danger to the body arises from an attempt, or threat, or commit the
offence, though offence may not have been committed but not until that there is
reasonable apprehension - Right lasts so long as the reasonable apprehension of the
danger to the body continues. (Laxman Singh Vs Poonam Singh) 2003(3) Criminal Court
Cases 667 (S.C.) : 2003(2) Apex Court Judgments 558 (S.C.)Indian Penal Code, 1860,
Ss.102 & 105 - Private defence - Of body and property - The right commences, as
soon as a reasonable apprehension of danger to the body arises from an attempt, or
threat, or commit the offence, although the offence may not have been committed but
not until that there is that reasonable apprehension - The right lasts so long as
the reasonable apprehension of the danger to the body continues. (Shriram Vs State
of Madhya Pradesh) 2004(1) Criminal Court Cases 619 (S.C.)Indian Penal Code, 1860,
S.103 - Private defence of property - Extending to causing of death - Not available
in case of trespass in respect of open land. (Jassa Singh Vs State of Haryana) AIR
2002 S.C. 520Indian Penal Code, 1860, Ss.104, 325/34 - Crop sown by accused in
disputed field and accused asked PW2 not to remove the crop - Incident took place
in the field and fracture injury caused on both hands of PW2 - Accused had right of
private defence of property in causing grievous hurt to PW2 - Conviction set aside.

(Devi Singh & Anr. Vs State of M.P.) 2004(1) Criminal Court Cases 455 (M.P.)Indian
Penal Code, 1860, S.105 - Private defence of property - Commences when a reasonable
apprehension of danger to property commences - In the instant case the right
commenced when the complainant party entered the property and the right continued
as long as the complainant party remained on the property and the trespass
continued. (Sita Ram & Ors. Vs State of Haryana) 2005(1) Criminal Court Cases 517
(P&H)Indian Penal Code, 1860, S.107 - Abetment - A person abets the doing of a
thing if he firstly, instigates any person to do that thing; or secondly, engages
with one or more other person or persons in any conspiracy for the doing of that
thing, if an act or illegal omission takes place in pursuance of that conspiracy,
and in order to the doing of that thing; or thirdly, intentionally aids, by any act
or illegal omission, the doing of that thing. (Sanju @ Sanjay Singh Sengar Vs State
of Madhya Pradesh) 2002(2) Criminal Court Cases 647 (S.C.) Indian Penal Code,
1860, S.107 - Abetment - Ingredients - Includes instigating any person to do a
thing or engaging with one or more person in any conspiracy for the doing of a
thing, if an act or illegal omission takes place in pursuance of that conspiracy
and in order to the doing of that thing, or intentional aid by any act or illegal
omission to the doing of that thing. (Hans Raj Vs. State of Haryana ) 2004(2)
Criminal Court Cases 351 (S.C.)Indian Penal Code, 1860, S.107 - Abetment - May be
by instigation, conspiracy or intentional aid - A1 instigated other accused who way
laid two deceased and caused them injuries by stone picked up from way side - Other
accused
convicted u/s 304 Part I IPC and A1 convicted u/s 304 Part I r/w 109 IPC. (Goura
Venkata Reddy Vs State of Andhra Pradesh) 2004(1) Apex Court Judgments 112 (S.C.)
Indian Penal Code, 1860, Ss.105, 304 Part II - Trespass on land of accused -
Accused stabbed the deceased with spear in chest - Held, accused exceeded right of
private defence - Accused could have stopped the deceased from trespassing by
inflicting lesser injury on legs - Only house trespass may give right to cause
death - Accused is guilty of offence u/s 304 Part II. (Sita Ram & Ors. Vs State of
Haryana) 2005(1) Criminal Court Cases 517 (P&H)Indian Penal Code, 1860, S.109 -
Abetment - Ist petitioner charged with offences u/ss 493 & 376 IPC - No offence
committed by him under the said sections - Petitioners 2 to 4 (brother and parents
of lst petitioner) cannot therefore be said to have abetted those offences. (Suram
Kiran Kumar Reddy Vs State of A.P.) 2003(1) Criminal Court Cases 308 (A.P.)
Indian Penal Code, 1860, Ss.109, 120-B and 302 - Murder - Abetment and conspiracy -
Distinction as to - Offence of conspiracy is a bare agreement to commit an offence
- It is made punishable u/s 120-B IPC - Offence of abetment created under the
second clause of S.107 requires that there must be something more than mere
conspiracy - There must be some act or illegal omission in pursuance of that
conspiracy. (Ranganayaki Vs State by Inspector of Police) 2005(1) Criminal Court
Cases 564 (S.C.)Indian Penal Code, 1860, S.113-B, 302 - Acquittal of accused u/s
302 IPC - Presumption u/s 113-B of Evidence Act does not stand automatically
rebutted. (Alamgir Sani Vs State of Assam) 2003(2) Apex Court Judgments 65 (S.C.)
Indian Penal Code, 1860, Ss.115, 120-B - Conspiracy - P.W. overheard the accused
persons of a conspiracy to murder a person and his sons due to previous enmity -
Matter reported to police two months later - No explanation for delay - Prosecution
supported by most convenient witness used by police on different

different occasions -
Conviction set aside - Cash amount recovered from them restored. (Amrik Singh &
Anr. Vs State of Punjab) 2003(1) Criminal Court Cases 616 (P&H) Indian Penal
Code, 1860, S.120-B, 406, 420, 467, 468 & 471 - Charges under - Manager of Bank
forging Drafts - Other accused receiving amount thereunder - Material on record
constituting ground to presume that accused committed offence - Trial on such
charge cannot mean harassment - No case for quashing charges. (Rajendra Kumar Jain
Vs State of Rajasthan) 2002(3) Criminal Court Cases 514 (Rajasthan) Indian Penal
Code, 1860, S.120-B, Prevention of Corruption Act, 1947, S.5(2) r/w S.5(1)(d) -
Investigation by CBI - Central Vigilance Commission (CVC) has power of
superintendence and view progress of investigation conducted by CBI - CBI however
is not required to obtain approval of CVC for filing charge-sheet in Court. (Union
of India Vs Prakash P.Hinduja & Anr.) 2003(2) Apex Court Judgments 205 (S.C.)Indian

Penal Code, 1860, S.120-B - Conspiracy - For the offence of conspiracy some kind of
physical manifestation of agreement is required to be established - Express
agreement need not to be proved - Evidence as to the transmission of thoughts
sharing the unlawful act is not sufficient - A conspiracy is a continuing offence
which continues to subsist till it is executed or rescinded or frustrated by choice
of necessity - During its subsistence whenever any one of the conspirators does an
act or series of acts, he would be held guilty under S.120-B of the Act. (Damodar
Vs State of Rajasthan) 2003(3) Criminal Court Cases 567 (S.C.) : 2003(2) Apex Court
Judgments 361 (S.C.)Indian Penal Code, 1860, S.120-B - Criminal conspiracy - Charge
- General evidence or some connecting link or factors in the evidence collected
with the police are sufficient to frame charge. (Rajendra Kumar Jain Vs State of
Rajasthan) 2002(3) Criminal Court Cases 514 (Rajasthan) Indian Penal Code, 1860,
S.120-B - Criminal conspiracy - Direct evidence is rarely available and the same
can be inferred from the proved circumstances - Before such an inference is drawn,
the facts established must rule out any likelihood of innocence of the accused - If
there are circumstances compatible with the innocence of the accused person, the
prosecution will fail - A clear link has to be established and the chain has to be
completed from the circumstances relied upon by the prosecution otherwise it is too
risky to accept a part of the link as a complete one and to base conviction on the
basis of such incomplete evidence. (Shambhoo Sharan Pandey & Anr. Vs State of U.P.)
2002(2) Criminal Court Cases 48 (All.) Indian Penal Code, 1860, S.120-B - Criminal
conspiracy - Elements of criminal conspiracy are (a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish the object, (c) an agreement or
understanding between two or more of the accused persons whereby, they become
definitely committed to cooperate for the accomplishment of the object by the means
embodied in the agreement, or by any effectual means, and (d) in the jurisdiction
where the statute required an overt act. (K.Hashim Vs State of Tamil Nadu) 2005(1)
Criminal Court Cases 635 (S.C.)Indian Penal Code, 1860, S.120-B - Criminal
conspiracy - Prosecution has to prove - (1) that the accused agreed to do or cause
to be done an act; (2) that such act was illegal or was to be done by illegal
means; and (3) that some overt act was done by one of the accused in pursuance of
the agreement. (Shambhoo Sharan Pandey & Anr. Vs State of U.P.) 2002(2) Criminal
Court Cases 48 (All.) Indian Penal Code, 1860, S.120-B - Criminal conspiracy -
Prosecution need not necessarily prove that the perpetrators expressly agree to do
or cause to be done illegal act; the agreement may be proved by necessary
implication - Offence of criminal conspiracy consists not merely in the intention
of two or more, but in the agreement of two or more to do an unlawful act by
unlawful means - So long as such a design rests in intention only, it is not
indictable - When two agree to carry it into effect, the very plot is an act in
itself, and an act of each of the parties, promise against promise, actus contra
capable of being enforced, if lawful, punishable if for a criminal object or for
use of criminal means. (K.Hashim Vs State of Tamil Nadu) 2005(1) Criminal Court
Cases 635 (S.C.)Indian Penal Code, 1860, S.120-B - Criminal conspiracy - To prove
criminal conspiracy there must be evidence direct or circumstantial to show that
there was an agreement between two or more persons to commit an offence - Where the
factum of conspiracy is sought to be inferred from the circumstances, the
prosecution has to show that the circumstances give rise to a conclusion or
irresistible inference of an agreement between two or more persons to commit an
offence - A few bits here and few bits there on which the prosecution relies cannot
be held adequate for connecting the accused with the commission of crime of
criminal conspiracy. (Mohd. Hanif & Ors. Vs State of Rajasthan) 2004(2) Criminal
Court Cases 235 (Rajasthan)Indian Penal Code, 1860, Ss.120-A, 120-B, Evidence Act,
1872, S.10 - Criminal conspiracy - Can be proved by direct evidence or
circumstantial evidence or both - Inference can be drawn from circumstances - Fact
that accused had met other accused several times immediately prior to commission of
murder is relevant fact to draw inference that they conspired together to commit
murder which they committed - Conspiracy to commit offence is itself offence and
person can be separately charged with respect to such conspiracy. (Basappa alias
Basavaraj Vs State Through Gandhi Chowk Police, Bijapur) 2004(1) Criminal Court

Cases 798 (Karnataka)Indian Penal Code, 1860, Ss.120-B, 201, 302, 364, 379 -
Conviction - Appeal against - Circumstantial evidence - PW 23 not able to identify
accused either at identification parade or in Court - Facts disclosed by PW 5 not
finding place in his report or in his statement to police - Deceased last seen in
company of accused not established - PW1 and PW 25 declared hostile - PW 10 denying
that accused brought jeep for repairs at his shop - Fact that accused pointed out
place of murder not established - Disclosure statement, if any, not leading to any
recovery - Recovery of stephny not proved and thus recovery doubtful - Links in
chain of circumstances missing - No case made out for conviction in absence of
corpus delicti - No evidence to connect accused with crime - Conviction set aside.
(Surajbhan Vs State of Rajasthan) 2003(3) Criminal Court Cases 628 (Rajasthan)
Indian Penal Code, 1860, Ss.120-A, 302 - Murder - Conspiracy - Main accused who
hatched the conspiracy and who had motive to kill the deceased discharged - That
matter attained finality - No purpose would be served in proceeding with the case
against remaining accused. (Central Bureau of Investigation Vs Akhilesh Singh)
2005(1) Criminal Court Cases 413 (S.C.)Indian Penal Code, 1860, Ss.141, 149 and 302
- Common Object - Unlawful Assembly - Common Intention - U/s 149 prior concert and
a common meeting of minds before attack not required - Whether there were five or
more person and whether they had common objects as specified under section 141 are
the key ingredients to convict accused with the help of section 149 - Common object
may be formed at any stage by all or a few members of the assembly even during the
course of incident at spot - It may be modified or altered or abandoned at any
stage - It may be formed by all or few members at any stage and others members may
join it subsequently. (Charan Singh & Ors. Vs. State of Uttar Pradesh ) 2004(1)
Apex Court Judgments 564 (S.C.) : 2004(2) Criminal Court Cases 533 (S.C.)Indian
Penal Code, 1860, Ss.143, 384 & 120-B, Criminal Procedure Code, 1973, S.482
- Collection of goonda tax from shopkeepers - However, no evidence of any victim -
Total evidence was that of police officials - Held, when there is absolutely no
evidence of any victim about the offence committed by the petitioner, the charge
sheet does not stand as such the same quashed. (Anoop Kumar Vs State of U.P. &
Anr.) 2004(2) Criminal Court Cases 298 (Allahabad)Indian Penal Code, 1860, Ss.144,
148, 302, 326 and 324/149 - Acquittal - Appeal against - Free fight between two
groups - All the injured prosecution witnesses except PW 1 turned hostile and did
not support prosecution case - Injuries on person of accused including one accused
having suffered grievous injury remained unexplained - No material to show what
happened to counter case - Some material to show that it was prosecution party who
came to shop of accused No.5 and was armed with deadly weapons - Acquittal order
calls for no interference. (State Vs Unni) 2003(3) Criminal Court Cases 88 (Kant.)
Indian Penal Code, 1860, Ss.147, 148, 149, 302, 506 - Appeal against conviction -
Weapon of offence not recovered - Discrepancy between version of FIR and statement
of witnesses - In FIR no specific role assigned to any of the accused - No inimical
relations between deceased and accused which may lead them to commit murder -
Complete chain of evidence missing - Conviction set aside. (Lallu @ Naresh & Anr.
Vs The State of Rajasthan) 2005(2) Criminal Court Cases 255 (Rajasthan)Indian Penal
Code, 1860, Ss.147, 148, 302/149 and 307/149 - Conviction by trial Court - High
Court maintained conviction of one accused and that too u/s 326 IPC - Accused armed
with deadly weapons sword, axe and lathis with an object to kill PW-1 chased
deceased who tried to escape from house of PW-1 and assaulted him and committed his
murder - PW-1 was then assaulted and his left arm severed and treating him dead ran
away - Prosecution version amply established by evidence of eye witnesses - Nature
of injuries, weapons used and manner of assault, all accused are liable in terms of
S.149 IPC - Gruesome nature of attack demonstrated by injuries noticed on body of
deceased - Conviction u/s 302/149 IPC recorded by trial Court should not have been
disturbed and was liable to be restored - Offence u/s 307/149 is also liable to be
restored. (State of Maharashtra Vs Kashirao & Ors.) 2003(2) Apex Court Judgments
414 (S.C.)Indian Penal Code, 1860, Ss.147, 148, 307, 364, 302/149 - Deceased
alongwith son travelling in bus - Twelve accused came in car, got bus stopped and
deceased forcibly taken in car - PW 1 son was inflicted injuries when he tried to
resist - Motive was that accused had contested election against accused party -

Next day body of deceased found with injuries and one hand severed - Conviction of
A1 and A2 u/s 364 and 302 and A1 to A7 u/s 148 and A8 to A14 u/s 147 IPC - Appeal
against - Contention that no evidence that A1 and A2 committed murder - A3 to A14
were acquitted in respect of abduction for reasons that there was no consistency in
evidence of PW1 as against them but there was consistency in his evidence as
against A1 and A2 - Once it is established that there was abduction of deceased by
accused if deceased was found murdered within short time after abduction,
irresistible presumption is that accused had murdered deceased - No interference
with order of conviction. (Kumar @ Kumarasamy & Ors. Vs State) 2004(4) Criminal
Court Cases 714 (Madras)Indian Penal Code, 1860, Ss.147, 148, 323, 325 and 447 -
Possession delivered in execution of Civil Court decree - Prosecution case of
committing trespass over such land stands falsified - Even if injuries are caused
then the same are in exercise of right of private defence qua their land -
Acquittal calls for no interference. (State of H.P. Vs Amar Singh) 2003(2) Criminal
Court Cases 159 (H.P.) Indian Penal Code, 1860, Ss.147, 149, 302 - Deceased first
dragged and then thrown into well - Nothing to affect credibility of PWs 4, 8 and
10 - Delay of few hours in recording statements of witnesses no serious infirmity
in prosecution case - Evidence of these witnesses wholly reliable - Accused not
explaining incriminating circumstances but totally denying from them - Eye
witnesses having no animosity against accused - Ocular evidence of P.Ws.4 and 6
corroborating PWs 8 and 12 as also other circumstances - Conviction upheld.
(Bhanwari & Ors. Vs State of Rajasthan) 2002(2) Criminal Court Cases 114 (Raj.)
Indian Penal Code, 1860, Ss.147, 323, Criminal Procedure Code, 1973, S.482 -
Essential ingredients of offence u/s 147 completely missing - Prosecution case not
inspiring any confidence in view of the fact that the complainant has neither
sustained any injury nor specific overtact has been assigned to the petitioners -
Proceedings quashed. (Ganpatlal & Ors. Vs State of Rajasthan) 2003(1) Criminal
Court Cases 647 (Rajasthan) Indian Penal Code, 1860, Ss.147, 302/149 - Murder -
Eleven accused - Acquittal by trial Court - Conviction of six by High Court -
Murder while deceased was grazing cattle in field - PW1 nephew and PW2 brother of
deceased eye witnesses - Trail Court found presence of eye witnesses doubtful and
noticing contradictions between ocular evidence and medical evidence acquitted all
accused of offence - Conduct of PW1 hiding himself behind a tree and not joining
PW2 and PW6 who were there in nearby field was unusual which creates doubt of his
presence on spot - Material contradictions between evidence of these witnesses and
medical evidence - Doubt in regard to place of incident as victim had sustained
amputation of hand at wrist but no blood found on spot where body was found lying -
Trial Court's view that prosecution has not established guilt of accused beyond
doubt was correct - Conviction of appellant set aside. (Ramsewak & Ors. Vs State of
M.P.) 2004(2) Apex Court Judgments 354 (S.C.)Indian Penal Code, 1860, Ss.147,
302/149 - Murder - Eleven accused - Acquittal by trial Court - Conviction of six by
High Court - Murder while deceased was grazing cattle in field - PW1 nephew and PW2
brother of deceased eye witnesses - Trail Court found presence of eye witnesses
doubtful and noticing contradictions between ocular evidence and medical evidence
acquitted all accused of offence - Conduct of PW1 hiding himself behind a tree and
not joining PW2 and PW6 who were there in nearby field was unusual which creates
doubt of his presence on spot - Material contradictions between evidence of these
witnesses and medical evidence - Doubt in regard to place of incident as victim had
sustained amputation of hand at wrist but no blood found on spot where body was
found lying - Trial Court's view that prosecution has not established guilt of
accused beyond doubt was correct - Conviction of appellant set aside. (Ramsewak &
Ors. Vs State of M.P.) 2004(3) Criminal Court Cases 100 (S.C.)Indian Penal Code,
1860, Ss.148, 149, 302, 304 Part II, 323, 325, 449 - Mutual fight ensued between
the parties - There was no common object - Ss.148 and 149 not attracted -
Prosecution failed to establish charge u/ss 325, 323 and 449 IPC beyond reasonable
doubt - Material contradictions in statements of prosecution witnesses - Conviction
of 'K' altered from S.302 to that u/s 304 Part II - All others acquitted. (Kajod
Singh & Ors. Vs State of Rajasthan) 2005(2) Criminal Court Cases 16 (Rajasthan)
Indian Penal Code, 1860, Ss.148, 149, 302, 304 Part II, 323 & 325 - Conviction of

nine accused - Well in dispute and electricity motor lying therein belonged to
accused - Complainant party was the aggressor - Accused also sustaining injuries
and prosecution not explaining injuries on the person of accused - Genesis of
incident rendered doubtful - Accused 'H' and 'K' held liable to be convicted u/s
304 Part II IPC and all other accused acquitted. (Jaleb Khan & Ors. Vs The State of
Rajasthan) 2005(2) Criminal Court Cases 33 (Rajasthan)Indian Penal Code, 1860,
Ss.148, 149, 304 Part II, 325 - Appeal against conviction - Injuries by blunt
object - Most of injuries simple - No grievous injury on vital part - Grievous
injury only on legs or forearms - Death after 7 days - Conviction u/s 304 Part II
not justified - PWs.2, 3 and 14 turning hostile - PWs 6 and 7 not present on spot
but made as eye-witnesses but they did not intervene - FIR lodged after two days -
Allegation in FIR that accused "U" had assaulted deceased with kulhari but no
injury caused by sharp weapon found on body of deceased - PW 8 also not truthful
witness - Dying declaration not genuine but manipulated by PW 12 - Investigation
not impartial and amounted to misconduct on part of I.O. - Conviction set aside.
(Dalu & Ors. Vs The State of Rajasthan) 2003(1) Criminal Court Cases 655
(Rajasthan) Indian Penal Code, 1860, Ss.148, 149, 448/149, 364/149 and 302/149 -
Appellant A1 with A2 and five others armed with knife and sticks entered the house
of deceased, beat him and took him away in auto rickshaw and later dead body of
deceased was found lying behind house of A1 - Trial Court found A1 and A2 having
assaulted deceased and A1 was convicted u/s 302 IPC and A2 for other offences and
A3 to A3 not identified by witnesses were acquitted - High Court upheld conviction
- Sister of A1 and wife of deceased committed suicide 2/3 days before incident -
PW2 mother of deceased, eye witnesses gave consistent evidence of incident -
Evidence of eye witnesses cannot be rejected merely because they are related -
Blood stained weapon of offence i.e. knife and wooden reaper recovered pursuant to
confession of accused - Sequence shows that there was no delay in lodging FIR -
Conviction not liable to be interfered. (Ravi Vs State Rep. by Inspector of Police)
2005(2) Criminal Court Cases 679 (S.C.)Indian Penal Code, 1860, Ss.148, 149,
448/149, 364/149 and 302/149 - Appellant A1 with A2 and five others armed
with knife and sticks entered the house of deceased, beat him and took him away in
auto rickshaw and later dead body of deceased was found lying behind house of A1 -
Trial Court found A1 and A2 having assaulted deceased and A1 was convicted u/s 302
IPC and A2 for other offences and A3 to A3 not identified by witnesses were
acquitted - High Court upheld conviction - Sister of A1 and wife of deceased
committed suicide 2/3 days before incident - PW2 mother of deceased, eye witnesses
gave consistent evidence of incident - Evidence of eye witnesses cannot be rejected
merely because they are related - Blood stained weapon of offence i.e. knife and
wooden reaper recovered pursuant to confession of accused - Sequence shows that
there was no delay in lodging FIR - Conviction not liable to be interfered. (Ravi
Vs State Rep. by Inspector of Police) 2005(1) Apex Court Judgments 16 (S.C.)Indian
Penal Code, 1860, Ss.148, 302 r/w 149, 325 r/w 149, 323 r/w 452 r/w 149, 436 r/w
149 - Conviction of nine persons - Affirmed by High Court without reappraisal of
evidence - Appeal to Supreme Court - Complainant party and accused party related
but inimical - FIR lodged late though police station was nearby - Version of PW 2
found to be an improvement on the basis of medical evidence - Prosecution story
found suppressed and unreliable - Injuries on person of accused serious in nature
not explained - Prosecution has failed to establish its case - Appeal allowed.
(Raghunath Vs State of Haryana & Ors.) 2003(1) Apex Court Judgments 290 (S.C.)
Indian Penal Code, 1860, Ss.148, 304 Part I r/w S.149 - Deceased assaulted severely
by five accused - PW3 who was accompanying him saw the occurrence - On hearing
about assaults, informant, elder brother of deceased and PW2, wife of deceased went
to he spot - FIR lodged immediately in which names of five accused indicated - High
Court held that witnesses on whose evidence prosecution relied on were not truthful
witnesses - Perusal of High Court's judgment revealed that it was based more on
surmises and conjectures - Some of the conclusions were contrary to record - No
delay in lodging FIR - Judgment of acquittal recorded by High Court is not
sustainable. (Chanakya Dhibar (Dead) Vs State of West Bengal & Ors.) 2004(1)
Criminal Court Cases 743 (S.C.)Indian Penal Code, 1860, Ss.148, 342, 396, 397, 398,

458 - Conviction - Identification parade conducted after 29 days but same not fatal
- Recovery and identification of ornaments proved - Accused Om Parkash came with
pistol without concealing his identity - No explanation how accused came in
possession of ornaments - Conviction sustained. (Vinod Kumar & Ors. Vs State of
Rajasthan) 2004(1) Criminal Court Cases 254 (Rajasthan)Indian Penal Code, 1860,
S.149 - Applicability of the provision requires deep scrutiny and detailed and
specific proof for holding that the accused persons were members of an unlawful
assembly with a common object with particular reference to the part played by each
of the accused persons who constituted the unlawful assembly. (Kailash Kumar @
Kalji & Ors. Vs State of Rajasthan) 2004(3) Criminal Court Cases 310 (Rajasthan)
Indian Penal Code, 1860, S.149 - Common object of an unlawful assembly can be
gathered from the nature of the assembly, arms used by them and the behaviour of
the assembly at or before scene of occurrence. (State of Rajasthan Vs Nathu & Ors.)
2003(2) Apex Court Judgments 35 (S.C.)Indian Penal Code, 1860, S.149 - Common
object of unlawful assembly - Can be gathered from the nature of the assembly, arms
used by them and the behaviour of the assembly at or before scene of occurrence.
(State of U.P. Vs Kishan Chand & Ors.) 2004(4) Criminal Court Cases 337 (S.C.)
Indian Penal Code, 1860, S.149 - Common object - Does not require prior concert and
a common meeting of minds before the attack - An unlawful object can develop after
the accused assembled - The existence of the common object of the unlawful assembly
has to be ascertained in the facts and circumstances of each case. (Oorkaval
Perumal & Ors. Vs State rep. By Inspector of Police) 2004(1) Criminal Court Cases
180 (Madras)Indian Penal Code, 1860, S.149 - Common object - Has to be
distinguished from the common intention - There is no question of common intention
in S.149 of the Code - When no injury is inflicted pursuant to the common object to
kill the deceased, but caused only when provoked by one of the witnesses, the
members of the unlawful assembly cannot be held guilty for the commission of the
offence of murder. (Sukhan Raut & Ors. Vs State of Bihar) 2002(1) Criminal Court
Cases 582 (S.C.) Indian Penal Code, 1860, S.149 - Common object - Is different from
common intention - In the former no prior consent is required, nor a prior meeting
of minds before the attack would be required whereas an unlawful object can develop
after the people get there and there need not be a prior meeting of minds. (Shri
Gopal & Anr. Vs Subhash & Ors.) 2004(3) Criminal Court Cases 37 (S.C.)Indian Penal
Code, 1860, S.149 - Common object - Is different from 'common intention' as it does
not require a prior concert and a common meeting of minds before the attack - It is
enough if each has the same object in view and their number is five or more and
that they act as an assembly to achieve that object - 'Common object' of an
assembly is to be ascertained from the acts and language and utterances of the
members composing it, the nature of arms carried, and from a consideration of all
the surrounding circumstances - It may be gathered also from the course of conduct
adopted by and behaviour of the members of the assembly at or before the actual
conflict - What the common object of the unlawful assembly is at a particular stage
of the incident is essentially a question of fact to be determined, keeping in view
the nature of the assembly, the arms carried by the members, and the behaviour of
the members at or near the scene of the incident - It is not necessary under law
that in all cases of unlawful assembly, with an unlawful common object, the same
must be translated into action or be successful - An assembly which was not
unlawful when it was assembled, may subsequently become unlawful - It is not
necessary that the intention or the purpose, which is necessary to render an
assembly an unlawful one comes into existence at the outset - Time of forming an
unlawful intent is not material - An assembly which, at its commencement or even
for some time thereafter, is lawful, may subsequently become unlawful - In other
words it can develop during the course of incident at the spot co-instante. (Madan
Singh Vs State of Bihar) 2004(3) Criminal Court Cases 283 (S.C.)Indian Penal Code,
1860, S.149 - Common object - May be formed by express agreement after mutual
consultation, but that is by no means always necessary - It may be formed at any
stage by all or a few members of the assembly and the other members may just join
and adopt it - Once formed, it need not continue to be the same - It may be
modified or altered or abandoned at any stage. (Madan Singh Vs State of Bihar)

2004(3) Criminal Court Cases 283 (S.C.)Indian Penal Code, 1860, S.149 - Common
object - Mere presence in unlawful assembly cannot render a person liable unless
there was a common object and he is actuated by that - Object has to be common to
persons who compose the assembly - Distinction between common object and common
intention - Common object of an assembly is to be ascertained from the acts and
language of the members composing it and from consideration of all the surrounding
circumstances - It may be gathered from the course of conduct adopted by the
members of the assembly - Determination of object of the unlawful assembly at a
particular stage is essentially a question of fact to be determined, keeping in
view the nature of the assembly, the arms carried by the members, and the behaviour
of the members at or near the scene of the incident - Section 149 consists of two
parts - Where offence was committed to accomplish the common object and that
offence was such as members knew was likely to be committed - No overt role was
ascribed to a specific accused would not mean non-application of S.149 IPC.
(Bhargavan & Ors. Vs State of Kerala) 2004(3) Criminal Court Cases 63 (S.C.)Indian
Penal Code, 1860, S.149 - Common Object - Object means the purpose and design and
in order to make it common it must be shared by all. (Dani Singh & Ors. Vs State
of Bihar ) 2004(2) Criminal Court Cases 694 (S.C.)Indian Penal Code, 1860, S.149 -
Common object - Whenever any offence is found committed by any member of an
unlawful assembly in prosecution of the common object of that assembly or when the
members of that assembly knew that the offence was likely to be committed in
prosecution of that abject then every person, who at the time of committing of that
offence is a member of that group, will also be vicariously held liable and guilty
of that offence. (Oorkaval Perumal & Ors. Vs State rep. By Inspector of Police)
2004(1) Criminal Court Cases 180 (Madras)Indian Penal Code, 1860, S.149 - Identity
of four out of presence of five persons established - S.149 is applicable - It is
not required that all five persons must be identified - Requirement to establish is
presence of five persons with a common intention of doing an act. (Ram Dular Rai &
Ors. Vs State of Bihar) 2004(4) Criminal Court Cases 80 (S.C.)Indian Penal Code,
1860, S.149 - In case of a sudden mutual fight between the two parties, there can
be no question of invoking the aid of Section 149 for the purpose of imposing
constructive criminal liability on an accused - Accused in such a case can be
convicted only for the injuries caused by him by his individual acts. (Budha @
Siris Kumar Bose & Ors. Vs State of Orissa) 2003(2) Criminal Court Cases 506
(Orissa)
Indian Penal Code, 1860, S.149 - Large number of persons present - In such a case,
it is safe to convict only those persons against whom overt act is alleged with aid
of S.149 IPC - This is a rule of caution and not rule of law. (Nagarjit Ahir etc.
Vs State of Bihar) 2005(2) Criminal Court Cases 115 (S.C.)Indian Penal Code, 1860,
S.149 - To attract the provision it is not necessary that an overact must be
committed by all the accused persons - What is necessary is formation of an
unlawful assembly and knowledge of the persons thereof about consequences arising
from doing an act which amounts to offence. (Shri Gopal & Anr. Vs Subhash & Ors.)
2004(3) Criminal Court Cases 37 (S.C.)Indian Penal Code, 1860, S.149 - Unlawful
Assembly - Common object - Determination of common object - Object is entertained
in human mind and it being a mental attitude no direct evidence can be available
and like intention has to be gathered from act which person commits and result
thereof - It can reasonably be collected from nature of assembly, arms it carries
and behaviour at or before or after the scene of incident. (Dani Singh & Ors. Vs
State of Bihar ) 2004(2) Criminal Court Cases 694 (S.C.)Indian Penal Code, 1860,
S.149 - Unlawful Assembly - Common object - Common intention - Are different from
each other - Distinction - Common object does not require a prior concert and a
common meeting of minds before the attack - If five or more person with same object
in view act as an assembly to achieve that object would attract section 149. (Dani
Singh & Ors. Vs State of Bihar ) 2004(2) Criminal Court Cases 694 (S.C.)Indian
Penal Code, 1860, S.149 - Unlawful Assembly - Common object - Formation - Can be
formed at any stage by all or a few members of assembly and other members may just
join or adopt - Once formed it need not continue to be the same - Effect of section
149 may be different on different members of the same assembly - It can develop

during the course of incident at the spot eo instanti. (Dani Singh & Ors. Vs
State of Bihar ) 2004(2) Criminal Court Cases 694 (S.C.)Indian Penal Code, 1860,
S.149 - Unlawful Assembly - Common Object - If common object is not proved person
cannot be convicted with the aid of section 149. (Dani Singh & Ors. Vs State of
Bihar ) 2004(2) Criminal Court Cases 694 (S.C.)Indian Penal Code, 1860, S.149 -
Unlawful assembly - Common object - It cannot be laid down as a general proposition
of law that unless an overt act is proved against a person, who is alleged to be a
member of unlawful assembly, it cannot be said that he is a member of such an
assembly - The only thing required is that he should have understood that the
assembly was unlawful and was likely to commit any of the acts which fall within
the purview of S.141 - The word 'object' means the purpose or design and, in order
to make it 'common', it must be shred by all. (Sunil Kumar Vs State of Rajasthan)
2005(2) Criminal Court Cases 164 (S.C.)Indian Penal Code, 1860, S.149 - Unlawful
assembly - Common object - Mere presence of accused in unlawful assembly cannot
render a person liable unless there was a common object and he was actuated by
common object - Member of assembly should be aware of object and concur in it - For
determining common object, conduct of each member of assembly before and at the
time of attack and thereafter, motive for crime, weapons used are some of the
relevant considerations - Offence would also fall within purview of provision if
offence was such as members knew was likely to be committed. (State of Maharashtra
Vs Kashirao & Ors.) 2003(2) Apex Court Judgments 414 (S.C.)Indian Penal Code, 1860,
S.149 - Unlawful assembly - Common object - Mere presence in an unlawful assembly
does not render a person liable unless there was a common object and he was
actuated by that common object and that object is one of those set out in section
141 - It is not necessary that common object may be formed by express agreement -
It may be formed at any stage by all or a few members of the assembly and other
members may just join and adopt it - Once formed, it need not continue to be the
same - It may be modified or altered or abandoned at any stage. (Sunil Kumar Vs
State of Rajasthan) 2005(2) Criminal Court Cases 164 (S.C.)Indian Penal Code, 1860,
S.149 - Unlawful Assembly - Common object - Offence must be connected immediately
with common object. (Dani Singh & Ors. Vs State of Bihar ) 2004(2) Criminal Court
Cases 694 (S.C.)Indian Penal Code, 1860, S.149 - Unlawful Assembly - Common object
- Presence - Mere presence in an unlawful assembly cannot render a person liable
unless there is common object and that object is one of those set out in section
141. (Dani Singh & Ors. Vs State of Bihar ) 2004(2) Criminal Court Cases 694
(S.C.)Indian Penal Code, 1860, S.149 - Unlawful assembly - Common object - Though
no hard and fast rule can be laid down under the circumstances from which the
common object can be culled out, it may reasonably be collected from the nature of
the assembly, arms it carries and behaviour at or before or after the scene of
incident. (Bikau Pandey & Ors. Vs State of Bihar) 2003(2) Apex Court Judgments 649
(S.C.)Indian Penal Code, 1860, S.149 - Unlawful assembly - Common object was only
to cause injuries and in course of incident one of accused inflicted knife blow
which caused death of one of the victims - Only such accused for his individual act
can be convicted for murder and rest of accused cannot be made liable with help of
S.149 IPC. (Babukhan & Anr. Vs State of M.P.) 2005(2) Criminal Court Cases 228
(M.P.)Indian Penal Code, 1860, S.149 - Unlawful assembly - Definite roles not
ascribed to the accused - It is not necessary for the prosecution to prove which of
the members of the unlawful assembly did which or what act - Mere presence in the
unlawful assembly may fasten vicariously criminal liability u/s 149 IPC. (Chanakya
Dhibar (Dead) Vs State of West Bengal & Ors.) 2004(1) Criminal Court Cases 743
(S.C.)Indian Penal Code, 1860, S.149 - Unlawful assembly - Evidence established
that accused formed an unlawful assembly common object of which was to kill
deceased - Acquittal of accused who actually fired shot at deceased, would not wipe
out application of S.149 IPC. (Chanda & Ors. Vs State of U.P. & Anr.) 2005(1)
Criminal Court Cases 328 (S.C.)Indian Penal Code, 1860, S.149 - Unlawful Assembly -
How to ascertain formation of unlawful assembly - Question of fact - Depends on
facts and circumstances of each case - Acts and language of members - Course of
conduct of assembly - Nature of assembly - Arms carried by members - Behaviour of
members at or near scene of the incident to be seen. (Dani Singh & Ors. Vs State

of Bihar ) 2004(2) Criminal Court Cases 694 (S.C.)Indian Penal Code, 1860, S.149 -
Unlawful assembly - If it had common object it is not necessary that all persons
forming the unlawful assembly must be shown to have committed some overt act for
the purposes of incurring the vicarious liability for the offence committed by a
member of such unlawful assembly. (Sukhan Raut & Ors. Vs State of Bihar) 2002(1)
Criminal Court Cases 582 (S.C.) Indian Penal Code, 1860, S.149 - Unlawful assembly
- It is not really necessary to determine as to which of the accused persons
forming part of the unlawful assembly inflicted what particular or specific injury
in the course of the occurrence - Actual conviction of less than five, or that,
case projected certain one or more persons as having inflicted injury but the same
could not be proved to have been committed by him or that such persons were
acquitted for some reason or other does not in any manner prejudice the case of the
prosecution or the liability of others who formed the unlawful assembly to be
convicted for having carried out the object by merely being the members of the
unlawful assembly, as long as the participation of others in furtherance of the
common object of the unlawful assembly remained sufficient substantiated. (Chanda
& Ors. Vs State of U.P. & Anr.) 2005(1) Criminal Court Cases 328 (S.C.)Indian Penal
Code, 1860, S.149 - Unlawful assembly - Liability of other members - Rests upon the
fact whether other members knew before hand that the offence actually committed was
likely to be committed in prosecution of the common object - Such knowledge may
reasonably be collected from the nature of the assembly, arms or behaviour at or
before the scene of action - If such knowledge may not reasonably be attributed to
other members of the assembly, then their liability for the offence committed
during the occurrence by a person who was not initially a member does not arise.
(Budha @ Siris Kumar Bose & Ors. Vs State of Orissa) 2003(2) Criminal Court Cases
506 (Orissa) Indian Penal Code, 1860, S.149 - Unlawful assembly - Liability of
other members - Rests upon the fact whether other members knew before hand that the
offence actually committed was likely to be committed in prosecution of the common
object. (Sukhan Raut & Ors. Vs State of Bihar) 2002(1) Criminal Court Cases 582
(S.C.) Indian Penal Code, 1860, S.149 - Unlawful assembly - Members of an unlawful
assembly are vicariously liable where it is proved that the offence is committed in
pursuance of the common object of the unlawful assembly which the members of the
unlawful assembly knew that such offence was likely to be committed in prosecution
of the object of the unlawful assembly. (Sukhan Raut & Ors. Vs State of Bihar)
2002(1) Criminal Court Cases 582 (S.C.) Indian Penal Code, 1860, S.149 - Unlawful
assembly - Mere presence of an accused in unlawful assembly cannot render him
liable unless there was common object and he was actuated by that common object -
Where common object of an unlawful assembly is not proved, accused persons cannot
be convicted with the
help of S.149 IPC. (Chanakya Dhibar (Dead) Vs State of West Bengal & Ors.) 2004(1)
Criminal Court Cases 743 (S.C.)Indian Penal Code, 1860, S.149 - Unlawful assembly -
Murder by more than five persons - Definite roles not attributed to accused -
Section 149 applies - Not necessary to prove which of the members of the unlawful
assembly did which or what act. (Ram Dular Rai & Ors. Vs State of Bihar) 2004(4)
Criminal Court Cases 80 (S.C.)Indian Penal Code, 1860, S.149 - Unlawful assembly -
Of less than five members - There can be unlawful assembly of less than five
members if there is material to come to the conclusion that apart from those named
accused there were also others who were unnamed but who were members of such
assembly and shared the common object of that unlawful assembly. (Hamlet @ Sasi &
Ors. Vs State of Kerala) 2004(1) Apex Court Judgments 333 (S.C.)Indian Penal Code,
1860, S.149 - Unlawful Assembly - Overt act - Not necessary to prove a overt act
against the accused - Accused being a member of unlawful assembly attracts
conviction for acts of such unlawful assembly. (Dani Singh & Ors. Vs State of
Bihar ) 2004(2) Criminal Court Cases 694 (S.C.)Indian Penal Code, 1860, S.149 -
Unlawfully assembly - Once a person is found to be member of unlawful assembly and
participates in commission of an offence in prosecution of common object of that
unlawful assembly, he cannot escape liability by plea that he did not cause serious
injury. (Rajendran & Anr. Vs State of Tamil Nadu) 2004(3) Criminal Court Cases 186
(S.C.)Indian Penal Code, 1860, S.149 - Vicarious liability of the members of

unlawful assembly arises where the offence is committed by another member or
members of unlawful assembly if the commission of such offence is the common object
of that assembly or if the members of the unlawful assembly knew that the offence
of the nature committed was likely to be committed though the common object may be
something different. (Shiva Shankar Pandey & Ors. Vs State of Bihar)

Model Standards of Conduct for Mediators

Posted: 23 Mar 2013 05:52 PM PDT

Facebook page of rtiindia.org

Posted: 23 Mar 2013 08:16 AM PDT

Court must "hear those who cannot shout; listen to those who cannot speak".

Posted: 23 Mar 2013 07:49 AM PDT


The Court must appreciate the evidence accounting for the
ground realities of life in case of social human relations.   The
Court must approach the evidence with empathy and sensitivity
(sentipathy).  The Court cannot bypass or ignore the underlined
though   not   apparent   factualities.     Proverbially   speaking,   the
Court must "hear those who cannot shout; listen to those who
cannot speak".  This case must be considered on the evidence
recorded herein only.  The evidence shows that the plaintiff was
thrown  out  of  her  home within  12  days  of  the  death  of  her
husband.     The   plaintiff   mother­in­law   has   had   a   smooth
transition  from   her  own   house   to   her  deceased   son's   house.
Hence   the   later   evidence   of   the   plaintiff   that   she   was   not
allowed to get back into her home stands to reason.  The child
would not know if and how her mother may have tried to get
back   into   her  husband's   house,   but  was   not   allowed  by   her
grandparents.  She has been left where she was, uninterrupted,
undisturbed and unobstructed.  It may be unfortunate that she
considers that she was abandoned by her mother.  This is only in
the light of later events.  



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 31 OF 2005
IN
TESTAMENTARY PETITION NO. 172 OF 2004
Dilip Chhaganlal Dave  ...Deceased
Kalpana Dilip Dave  ...Plaintiff
Vs.
Pramila @ Pista Chhaganlal Dave ...Respondent

CORAM : MRS. ROSHAN DALVI, J.    
                  
                   Date of Pronouncing the Judgment: 24th January, 2013



1. The   plaintiff   is   the   wife   of   the   deceased   one  Dilip
Chhaganlal   Dave  who   died   intestate   on   28th  August,   2001
leaving behind the plaintiff  as his widow as also his mother and
daughter.  The petition is for issue of Letters of Administration of
his estate.   Letters of Administration would have to be granted
to   one  of   the  parties  to  the  suit.    The  defendants  have  not
applied for issue of Letters of Administration. 
2. All  the  three heirs including  the plaintiff  are entitled  to
receive 1/3rd  share of the above estate, comprising movable as
well as immovable properties. 

3. The   entire   estate   is   not   admitted   belonging   to   the
deceased.  What is the admitted estate and what constitutes the
entire estate of the deceased shall have to be seen.
4. The admitted estate comprises one flat purchased by the
deceased  upon  taking  a loan  of Rs.5.5 lakhs  from  the HDFC
Bank, the death dues payable to the deceased in the company
where   he   served   consisting   of   gratuity,   provident   fund   and
employees deposit link insurance scheme, certain bank accounts
and shares in certain companies.  
5. The deceased had nominated his wife, the plaintiff herein,
in   his   Provident   Fund   Account   and   other   death   dues.     The
plaintiff   has   withdrawn   the   death   dues   of   the   deceased
consequent upon her nomination.   
6. Certain amounts under LIC policies of the deceased have
been   received   under   certain   interim   orders   passed   in   this
petition and each of  the three above heirs have received their
respective 1/3rd  share  therein.   Rs.80,000/­ and odd are lying
deposited in this Court.  
7. The   pension   amount   was   payable   to   the   wife   and
separately to her daughter.  The plaintiff  wife has received her
pension amount.  She has also received the amount of pension
payable to the daughter.  She has not refunded the amount to
the daughter.

8. The   defendants   reside   in   the   above   flat.     The   plaintiff
resides in her parental home. 
9. The defendants have disputed item Nos.1, 2, 5, 6A, 7, 9A,
15, 16, 21, 22, 26 & 29 of the schedule to the petition.   Item
Nos. 1 & 2 are not known to the defendants.  Item No.5 is the
flat of the father of the deceased.  Item No.6A is the jewellery.
Item Nos. 7 & 9A are the ancestral property of the family in their
native village in Rajasthan.  Item Nos.15, 16, 21, 22, 26 & 29 are
the shares of limited companies stated  to be belonging  to  the
brother of the deceased.  The father of the deceased has expired
after the deceased.  His heirs are his widow who is the mother­
in­law of the plaintiff, his living son or sons and the plaintiff and
her   daughter   as   the   heirs   of   the   predeceased   son   of   that
deceased.  Hence the plaintiff, having a share in his estate has
included his estate also. 
10. The defendants  contended that the plaintiff  is not entitled
to be issued Letters of Administration even with regard to the
admitted estate because  she has disqualified herself upon her
conduct. They claim  that  the  plaintiff is not  a  fit  and  proper
person to be issued any Letters of Administration.   Upon their
caveat,   the   petition   has   been   converted   into   the   above
Testamentary Suit. 
11. This has been shown upon a premise that the plaintiff  was
separated from her husband during the life time of her husband.
She was  residing  at  her  parental  home.  She did  not  have  or

claim   custody   of   her   daughter   also.     The   daughter   was
maintained and educated initially by the deceased and later by
her   grandparents.   They   learnt   that   the   plaintiff   wife   had
withdrawn  the entire  amount  of  gratuity,  provident  fund  and
employees   deposit   link   insurance   amount   from   the   company
where the deceased served as she was the nominee.  She has not
given the 1/3rd share of her daughter as also her mother­in­law
to them.  They  also claim that the deceased had purchased a flat
upon taking a loan.  They have lived in the flat after the death of
the deceased.  They have repaid the loan of the bank partly from
the insurance  amount  of  the  deceased  received  by  defendant
No.1 and partly after taking a friendly loan.   The plaintiff has
not paid off the loan amount.  Based upon the aforesaid cases
Justice S.C. Dharmadhikari framed issues on 16th January, 2009
as follows which are answered as follows: 
I S S U E S
1 Whether plaintiff is a fit and proper
person  to be entitled  to Letters of
Administration to the property and
credits   of   the   deceased   Dilip
Chaganlal Dave.
   Yes
2 Whether the plaintiff is entitled to
Letters of Administration in respect
of properties stated at Item Nos. 5,
7  and  9A  of  Schedule  – 1  of  the
petition.
 Yes
3 What order ? As per final order
13. Since the defendants claimed that the plaintiff was unfit to

be issued Letters of Administration, the onus lied upon them to
prove the issue raised.  The defendants, therefore,  had the right
to begin the evidence.  They were directed to file their affidavit
of evidence.  Both the defendants being the mother­in­law and
the daughter of the plaintiff have filed their respective affidavits
of evidence and have been cross examined.   The plaintiff has
also led evidence. 
14. Issue No.1:
The largest estate of  the deceased is his  residential  flat.
The oral evidence of the parties with regard to the residence of
the plaintiff as  the wife of  the deceased will have  to be seen.
The   plaintiff   has   claimed   that  she   was   thrown   out  of   the
matrimonial home before the 12th and 13th day ceremony of her
deceased husband by her in­laws who kept the custody of her
daughter. The defendants have claimed that the plaintiff did not
have   good   relations   with   the   deceased   and   had   left   the
matrimonial home during his life  time.   She had also left  the
daughter in  the matrimonial home who was cared  for by  the
deceased.
15. The   plaintiff's   examination­in­chief   has   shown   good
relations between the spouses as also her and her in­laws during
the life time of the deceased.  The plaintiff would be expected to
live in her matrimonial home on  the date of  the death of  the
deceased under those circumstances.  
16. Her cross examination shows that she tried to get back to

the matrimonial home, but was not allowed. She has deposed
that her in­laws never kept contact with her after the death of
her husband and never even visited her.  She was not called at
the time of the funeral of her father­in­law. The plaintiff had not
lodged any police complaint or any application  for custody of
her child.  
17. The evidence of the mother­in­law of the plaintiff shows
that the relations between the deceased and the plaintiff were
strained,  she looked   after  and  educated   the  daughter  of  the
deceased and that the daughter has been residing with her since
birth "and" at the aforesaid flat in Pritisagar and that she never
resided with the plaintiff.  She has deposed that the plaintiff has
been residing at her parental home since the last 18 years.  (The
affidavit of evidence is filed in July, 2011.  Hence that would be
since about 1993).
18. Her   cross   examination   shows   that   the   spouses   lived
together for one year in their matrimonial home which was in
Pritisagar building.  She had noticed that the relations were not
cordial " because if one was inside the house the other would go
out   of   the   house".     Her   cross   examination   shows   that   the
plaintiff's daughter was with her only for 3 months  and that she
has   not   driven   the   plaintiff   out   of   the   house.     Her   cross
examination also shows that she herself was residing with her
husband at another premises being Tulsirunda Society prior to
the death of her deceased son.  

19. Hence after the death of the deceased she has shifted to
the matrimonial home of the plaintiff with her husband.  After
her husband's death she has continued to live in that premises
with  the plaintiff's daughter.   Admittedly  the plaintiff has not
lived in that premises after the death of her husband.
20. The evidence of the daughter of the plaintiff shows  that
she was born on 6th November, 1993.  In para 3 of her evidence
she   has   deposed   that   since   her   birth   she   lived   with   her
grandparents in Pritisagar and her mother lived in her parental
home.  She has also deposed that since her birth her father and
her grandparents looked after her.  In para 10 of her evidence
she has deposed that she  never resided with  the plaintiff  who
never cared for her.   
21. Her   cross   examination   shows   a   volte   face.     She   has
admitted that initially the family lived in Tulsirunda Society as a
joint family. Her parents had gone to the new house which was
acquired, but her parents did not stay together until the death of
her father. She had volunteered to state that when she was in
pre­school and in first standard her mother was not living with
them, but was residing with her parents.  She has also deposed
that she hardly stayed with her mother, but always stayed with
her grandmother.  
22. A reading of  the aforesaid 3 depositions  together clearly
shows that the deceased initially lived with his parents, wife and
child.  Thereafter the deceased his wife and child lived in their

own premises separately from his parents.  The spouses had  not
separated or divorced. The plaintiff continued  to be his wife.
The deceased had nominated her for his death/retiral benefits.
The deceased continued the nomination.    It was not changed.
Besides, after  the birth of  the daughter also  the spouses lived
together.  The daughter would attend Jr. Kg when she would be
about 4 years old.  Until then her mother, who moved to the new
flat purchased by her father to live separately from his parents,
is   not   stated   to   have   left   the   matrimonial   house.   It   is
inconceivable why the deceased would have acquired a new flat
to live separately from his parents if his relations with his wife
were so strained  that his wife had separated and gone  to her
parental home leaving behind a newly born child.  The evidence
of the daughter in her cross examination showing that once the
"family"   lived   together   in   Tulsirunda   Society   and   later   her
parents had "gone to the new house" falsifies the entire evidence
of the mother­in­law as well as of the daughter that the plaintiff
left  the matrimonial  house  18 years  before  the evidence was
recorded   or   that   she   never   cared   for   her   child   or   that   her
daughter was always cared for by her grandparents.
23. There is no evidence of the grandparents having moved in
with the deceased in his new house prior to his death.  They had
their own premises.  If the plaintiff did not care for her daughter,
and went to her parental home, her daughter would have lived
only with the deceased during his lifetime.  Her evidence does
not show or suggest that the grandmother moved in her father's
house to care for her during his lifetime in the absence of her

mother, the plaintiff.  Even the evidence of the mother­in­law of
the plaintiff does not show that she had moved into the flat of
the deceased to fill in any gap left by the plaintiff as the mother
of her child before the death of her son.  Her description of how
she  realised   that  the  relations  between  the  spouses   was  not
cordial is   was upon what she had "noticed" about one of the
spouses going out of the house, when the other came in.  This
evidence   is   a   pointer   to   the   fact   that   she   lived   in   her   own
previous house and only visited her son's house.  
24. The deceased continued to live in his new house with his
wife and daughter.  He continued his nomination in favour of his
wife. The daughter continued  to live with  the deceased.   The
grandmother   visited   their   house.     The   mother,   under   such
circumstances, is not expected to have abandoned her daughter
to live with her parents.  
25. The deceased prematurely expired leaving behind a young
widow and a small child of 6 years. 
26. It is then that the plaintiff claims that she was thrown out
of her matrimonial home and her daughter was kept  therein.
The grandparents were the only persons then who could have
done so.  It is at this juncture that admittedly the grandparents
moved in  their son's house.   The 6 year old child was in that
house.  She would hardly understand the undercurrents  of the
relationship   between   her   young   widowed   mother   and   her
grandparents.   She continued  to live as before.   At age 6 she

would  have  been in  Standard  I.   The evidence, which is  not
venomous but betrays betrayal is that her mother left her when
she was in pre­school/Standard I.  She is not expected to clearly
know or remember when exactly her mother purportedly left her
and went  to her parents' home.   Her evidence does not even
show that fact.  It does not show any cause of leaving the house,
more   specially   her.   Further   neither   her   evidence,   nor   her
grandmother's evidence shows any gap of  time when she was
left bereft of care by virtue of being orphaned and abandoned. 
27. The evidence shows that even before dust had settled on
the void left by her father's death, the grandparents had moved
in her father's flat.  They would have come and remained there
from  the date of his death itself.   They would be expected  to
continue to live there during the first 12 days from the funeral
as per social norms. 
28. It is exactly  then  that  the  plaintiff  claims  that  she was
thrown out of her matrimonial home.  The plaintiff is not shown
to be a career person.  She would have been only a home­maker.
It needs some depth and visualisation of the social position of a
woman of the kind that the plaintiff was to accept or reject the
respective   cases   of   the   parties   upon   their   evidence.     A
woman/widow, her young husband having expired, would be in
a fragile situation.  She cannot prevent the entry of her parents­
in­law in her home.  She cannot take charge and control of her
life at such a sudden misfortune.  She is very likely to be thrown
out of her home as she has deposed.  She has nowhere except

her parental home  to go  to.   She may or may not be able  to
strike back.  She knew that her daughter is not alone.  She chose
not  to  complain  of  the  action  or  claim  custody  of  her  child.
What was the support that she would have in her parent's house
and the care that her daughter would have there is not known
because the plaintiff has at no time raised any dispute.  Perhaps
that has been  her  sacrifice  as  a mother.    She has  since  been
bereft of her husband as well as her only child. 
29. Reading  the evidence  as  a whole,  the  plaintiff's  case  of
being thrown out of her home before the 12th day of the death of
her husband is seen to be in expectations of the norms of our
society and hence would have to be accepted as correct.   The
case of her mother­in­law is seen to be unacceptable upon the
circumstantial evidence of her admittedly moving into the flat of
her deceased son after his death and not before.  The evidence
of the daughter is indeed of a child with blurred memory.  She
has deposed about not being with her mother for more than 3
months.  She has also deposed that her mother left her when she
was in pre­school/ Standard I which would be when she was at
least 4 – 6 years old.  She would be 6 years of age in Standard I.
Her father expired when she was 6 years old.  That fits in with
the time her mother is stated to have been thrown out of her
matrimonial home.  She has also deposed about the fact that her
parents had moved to a new flat.  She has not deposed that the
grandmother had lived with her  father, in  the absence of her
mother  to  care  for  her  even  during  the lifetime  of  her  own
husband.  She has admitted the state of affairs deposed by her is

from what she learnt from her grandparents.   Her generalised
evidence   of   how   she   was   cared   for   by   her   father   and   her
grandparents aside from being inadmissible as hearsay, is wholly
unacceptable as false.
30. The Court must appreciate the evidence accounting for the
ground realities of life in case of social human relations.   The
Court must approach the evidence with empathy and sensitivity
(sentipathy).  The Court cannot bypass or ignore the underlined
though   not   apparent   factualities.     Proverbially   speaking,   the
Court must "hear those who cannot shout; listen to those who
cannot speak".  This case must be considered on the evidence
recorded herein only.  The evidence shows that the plaintiff was
thrown  out  of  her  home within  12  days  of  the  death  of  her
husband.     The   plaintiff   mother­in­law   has   had   a   smooth
transition  from   her  own   house   to   her  deceased   son's   house.
Hence   the   later   evidence   of   the   plaintiff   that   she   was   not
allowed to get back into her home stands to reason.  The child
would not know if and how her mother may have tried to get
back   into   her  husband's   house,   but  was   not   allowed  by   her
grandparents.  She has been left where she was, uninterrupted,
undisturbed and unobstructed.  It may be unfortunate that she
considers that she was abandoned by her mother.  This is only in
the light of later events.    
31. The matrimonial home in Pritisagar was the estate of the
deceased.   He had purchased it upon  taking a loan of Rs.5.5
lakhs from the HDFC Bank.  The mother­in­law has paid off that

loan   from   the   amount   received   from   the   maturity   of   the
insurance policy of the deceased and upon taking personal loan.
That was the liability of the deceased which has been discharged
by   the   plaintiff's   mother­in­law.   The   mother­in­law   and   the
daughter continued to live in  the premises to the exclusion of
the plaintiff who has a 1/3rd share therein.  Naturally they would
have to pay off the loan and pay the society's charges. 
32. The   plaintiff   has   appropriated   to   herself   the   gratuity,
provident fund and employees deposit link insurance amount of
Rs.88,247/­, Rs.1,60,826/­ and Rs.56,992/­.  That was allowed
because   the   deceased   had   nominated   her   to   receive   such
amount.  The deceased had not changed his nomination. This is
the largest single circumstantial evidence of the relationship of
the spouses until the death of the deceased. 
33. The plaintiff is entitled to pension herself.  Her daughter is
entitled  separately  to  the  pension  amount.    The  plaintiff  has
opened   the   bank   account   of   her   daughter   as   her   guardian
showing  the  daughter  as  a  minor.     The  amounts  of   pension
received under that account has been  withdrawn.  The daughter
has not received the pension amount. 
34. It   is   upon   these   facts   that   her   unfitness   is   contended.
Whilst the appropriation of the largest property of the deceased
by the mother­in­law and the daughter is sought to be explained
by the falsity which has been demonstrably exposed in the cross­
examination of the daughter, much is made about the lesser part

of the estate being appropriated by the plaintiff. 
35. Though  the plaintiff has not  shared  the proceeds of  the
gratuity, provident  fund and employees deposit link insurance
scheme   amount   as   also   the   pension   of   her   daughter,   the
defendants have not given the share of the plaintiff in the flat of
the deceased  to  the plaintiff.   All are admittedly entitled  to a
1/3rd share atleast in the above admitted estate of the deceased. 
36. The issues relating to the unfitness of the plaintiff would
have to be decided in that light.  Both the parties have come out
in the same light.  The plaintiff has appropriated only the death
dues   of   her  husband.     The  defendants  have  appropriated   to
themselves his entire flat.  
37. The withdrawal of  the nominated amounts of  the death
dues   by   the   plaintiff   is   not   illegal.   No   other   could   have
withdrawn it.  Of course, the plaintiff is seen to have withdrawn
the  pension  amounts  of  the daughter  also  as  reflected in  the
bank   passbook   of   the   daughter's   pension   account   which   she
would be entitled to operate as her guardian.  That is a paltry
amount.  The employer is entitled to pay off the entire dues to
the  nominee.   The  nominee is  a  trustee  for  the estate.    The
plaintiff was left stranded upon the death of her husband.  The
plaintiff's only source of support was gone.  She had no means of
income.  She was legally bound to be maintained by her father­
in­law as the Hindu widowed daughter­in­law, being the wife of
a predeceased  son under Section 19 of Hindu Adoptions  and

Maintenance Act, 1956.  Instead she was shown the door.  She
had to rely upon her parents for support.   It was under those
circumstances   that   she   appropriated   the   death   dues   of   her
husband.  In fact the defendants have excluded the plaintiff from
the flat.  They have not contended even in their evidence that
the plaintiff is welcome in her own matrimonial home.  Merely
by residing in the flat of the deceased, the mother­in­law and the
daughter alone cannot claim title.  The plaintiff's right and title
is   not   excluded.   The   plaintiff   has   not   even   claimed   such
statutory legal right just as she had not claimed her daughter's
custody.    She   could,   therefore,   appropriate  to   herself   only   a
lesser  part  of  the estate  towards  payment  of  her  share.   The
defendants are required to pay off  a larger part of the estate as
the  plaintiff's  share.    The  defendants would  have  to  pay  the
plaintiff 1/3rd  of the value of the flat.  That would be running
into lakhs of rupees.  The plaintiff would have to pay 2/3rd of the
death dues  to  the defendants. That would be to  the extent of
about  Rs.1 lakh each.  Even if the plaintiff has not demonstrated
an   impeccable   act,   the   defendants   have   not   shown   any
exemplary conduct.  The defendants continue to live in the suit
flat   and   continue   to   enjoy   the   most   valuable   estate   of   the
deceased.  In fact, there are other properties also in which the
plaintiff's right is denied or not granted.  It is seen that whatever
be the conduct of the plaintiff, she has not received her share in
the   estate   of   the   deceased   since   she   has   not   lived   in   her
matrimonial home. She has also not been maintained out of the
estate of the deceased though as a Hindu daughter­in­law she is
entitled to be maintained even by her father­in­law as the widow

of his predeceased son.
38. Hence  the plaintiff's unfitness  to act as Administrator of
the estate is not  seen.   Hence  issue No.1 is  answered in  the
affirmative.
39. Issue No.2:
Certain items in the schedule to the petition are admitted
to be the estate of the deceased.  Certain other items are stated
not  to be known by  the defendants, but not denied.   Certain
other items  are  stated  to be  the  shares of  the brother of  the
deceased.  Aside from stating such facts, the title thereto is not
shown and cannot be gone into in this petition. 
40. The defendants have specifically denied items 5, 7 and 9A
of the schedule to the petition.  These are immovable properties.
41. The flat item No.5 in Tulsirunda Society was acquired by
the  father­in­law  of  the  plaintiff.    He  has  since  expired.  The
plaintiff is an heir of her father­in­law representing the estate of
her deceased husband as the widow of the predeceased son of
her  father­in­law.   She would obtain half  the share which her
husband would have been entitled to in the estate of his father.
Her daughter would have the other half share. 
42. The immovable properties in Rajasthan are stated to be the
properties   acquired   by   the   father­in­law   of   defendant   No.1.
They would similarly also devolve upon the deceased husband of

the  plaintiff.  The  plaintiff would  obtain  a  half  share  of  such
share which her husband would have obtained upon the death
of his father as the heir of the predeceased son of her father­in­
law. Her daughter would be entitled to the other half share. 
43. This   position   in   law   is   seen   from   the   facts   shown   by
defendant No.1 in her Caveat and her evidence.   Hence upon
such admitted facts, the denial of the plaintiff's rights and share
is   seen   to   be   incorrect.     Hence   the   above   admissions   are
recorded. 
44. In view thereof the plaintiff would be entitled to be issued
Letters  of Administration in  respect  of  the  properties  at item
Nos.  5,  7  &  9A  also.    Hence  issue  No.2 is  answered in  the
affirmative. 
45. Issue No.3:
The Letters of Administration would have to be issued to
the plaintiff for the entire estate of the deceased.  The plaintiff
shall be entitled to administer the estate.  
O R D E R
1. The plaintiff's suit is made absolute as prayed.
2. The  plaintiff is issued  Letters  of Administration  to
the   entire   estate   of   her   deceased   husband   Dilip
Chhaganlal Dave who expired on 28th August, 2001
as shown in the schedule to the above petition. 

3. The  Prothonotory  and Senior Master  of  this Court
shall issue Letters of Administration to the plaintiff. 
4. Suit as well as petition are disposed of accordingly.
5. Drawnup decree is dispensed with.
(MRS. ROSHAN DALVI, J.)

Appellate   authority under RTI Act  can   issue     direction   to   such   public authority to take any of those steps as are suitable to coerce the persons having information to abide by directions issued under the RTI Act

Posted: 23 Mar 2013 06:22 AM PDT


   In paragraph 44, this Full Bench of Delhi High Court,
from  the preamble of  the RTI Act, also notes  that it is passed
because   'democracy   requires   an   informed   citizenry   and
transparency of information which are vital to its functioning and
also   to   contain   corruption   and   hold   Governments   and   their
instrumentalities accountable  to  the governed'.  It    restricts  the
right  to information  to citizens vide Section 3. Citizen seeking

information need not give any reasons for such 

information need not give any reasons for such demand & there
is no requirement of scrutiny into his locus standi.   I find that
when   the   procedure   to   exercise   the   right   to   information   is
statutorily prescribed & its breach is to be redressed exclusively
by   the   "forums"   created   thereunder,   the   "execution"   of   such
adjudicated   entitlement   against   unwilling   establishment   by
invoking all available legal avenues is the deliberate measure &
an integral part of the scheme of RTI Act


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.  3650  OF  2012
1. Kausa Education & Charitable Trust

V/s.
1. Maharashtra State Information Commission,

CORAM         : B.P. DHARMADHIKARI, J.

PRONOUNCED ON : 8th JANUARY 2013.



Heard.  By consent of parties, rule is made returnable
forthwith.  
2. By this petition filed under Articles 226 and 227 of
the Constitution of  India, petitioner No.1­ an educational  trust
through its school; one of its trustees; and Head Mistress of that
school have  together questioned  the order dated 5th  May 2011
passed by the appellate authority in first appeal under the Right

to Information Act, 2005 (hereinafter  referred to as "RTI Act" for
short) and the latter order dated 10th  February 2012 passed in
further appeal by the State Information Commissioner.
3. The   petitioners   have   pointed   out   the   accepted
position that the school run by the Trust is private unaided one
and, therefore, it is not public authority to which provisions of
RTI Act are applicable.   The authorities have answered this issue
in   its   favour   and   its   concurrent   findings   have   not   been
questioned  by  the  respondent who  sought information.      The
appellate   authority,   however,   in   the   impugned   order   directed
Education Officer (Secondary)   to gather  the information  from
the   petitioners   and   to   supply   it   to   respondent   No.5,   an   ex­
employee of the petitioners.     Thus, what could not have been
done  directly is  sought  to  be  achieved indirectly,  thereby  the
powers or jurisdiction under the RTI Act are being exceeded &
legal rights of the petitioner are violated.   Learned counsel for
the petitioners submits that the Head Mistress of the school had
received  a witness  summons  from  the  State Commission  and,

accordingly,   she   had   appeared   on   20th  September   2011.
Hearing, however, was conducted on 16th  December 2011 and,
on that day, the petitioners were absent as no notice was issued
to them of any such hearing.   Leaned counsel urges thus, that
the said order passed by the State Information Commissioner i.e.
respondent No.1 in the present matter is without any opportunity
and,  therefore, in breach of principles of natural justice.     He
submits   that   the   information   directed   is   in   relation   to   "third
party" and is to be gathered also from a third party as defined in
section 2(n) of RTI Act.   The procedure as prescribed in section
11 of the RTI Act for that purpose has not been followed and on
this count also the impugned order is unsustainable.
4. The provisions of section 2(n) defining "information"
are read out to contend that its sweep is wide but then its impact
is   curtailed   because   of   a   narrower   concept   of   "right   to
information" contained in section 2(g) thereof.    This aspect has
been  totally lost  sight of by  the authorities.     Powers of State
Information Commissioner as laid down in section 19(8) are also

relied upon with submission that those powers do not envisage
capacity to give direction to other authorities to take recourse to
other   enactments   to   coerce   the   petitioners   to   supply   the
necessary information.      The  direction  by  respondent  No.1  to
Education   Officer   that   he   should   use   his   powers   under   the
Maharashtra   Employees   of   Private   Schools   (Conditions   of
Service) Regulation Act, 1977 (hereinafter referred to as "1977
Act") is, therefore, urged to be without jurisdiction.   By way of
abundant   precaution   and   in   the   alternative,   it   is   added   that
entire information available with the petitioners has already been
supplied to respondent No.5­ employee.   The information which
is not available cannot be asked to be supplied under the RTI Act.
Respondent No.5  is  a dismissed employee who approached the
School Tribunal in an appeal under section 9 of 1977 Act and
claimed   various   documents/   information   only   to   harass   the
present petitioners.   Attention is also invited to the applications
moved by him for the said purpose to show its illusive or vague
nature.       Learned   counsel,   in   this   background,   prayed   for
allowing of petition.

5. The learned counsel appearing  for respondent No.5
has,  at  the  outset,  stated  that  application  seeking information
dated 7th April 2011 moved by said respondent and filed at "Exh.
N" with this writ petition is not being pressed.   Respondent No.5
needed  copy of  the  approval  given  to  his employment  by  the
Education Officer and, accordingly, by his first application dated
13th  December   2010   the   same   was   sought.     Other   relevant
information  to prosecute his grievance was  sought  for on 28th
December 2010 from the Education Officer.     Said information
has   still   not   been   supplied   and   hence,   respondent   No.1   has
rightly   allowed   the   appeal.       The   information   sought   for   is
accessible by  the Education Officer  and,  accordingly,  a  correct
direction has been issued by that authority.   The very same legal
provisions pressed into service by the petitioners are relied upon
to   support   that   exercise.     Unreported   judgment   of   the
Uttaranchal High Court in Writ Petition No.809/2010 dated 3rd
June   2010   (Anuj   Public   School       v.     State   Information
Commissioner)   is   also   relied   upon   to   support   the   impugned
order.      Learned counsel  submits  that  the Appeal adjudicating

authority   has   been   empowered   to   ensure   steps   necessary   to
effectively implement RTI Act &  ask  the Education Officer    to
access/call  requisite information with petitioners or  to provide
the same to it and then Education Officer is duty bound to supply
it to the present respondent No.5.
6. It   is   urged   that   purpose   for   which   information   is
sought is not decisive or relevant in the present matter but it is
pointed out  that respondent No.5 has  succeeded in his appeal
before the School Tribunal and his dismissal has been set aside.
Learned counsel further contends that the petitioners were aware
of the date of hearing and hence there is no question of violation
of principles of natural justice.   Prayer, therefore, is  to dismiss
the writ petition.
7. Thus, before this Court, the finding that provisions of
RTI Act do not apply to the petitioner­ establishment  is not in
dispute.   The contention that respondent No.1, by directing the
Education Officer (Secondary) to procure information from the

petitioners and then to supply it to respondent No.5, has done
something   which   is   prohibited   by   RTI   Act   and   the   other
contention   about   denial   of   opportunity     of   hearing   by   said
respondent  are,  therefore,  to  be evaluated.     Rival  contention
about need of adherence  to S. 11 relating to the "third party"
procedure for procuring the information from these petitioners or
any of them may deserve a look  dependent upon the answer to
this exercise.  However, if provisions of S. 19 of RTI Act are held
insufficient to clothe the appellate authority with power to issue
the directions of nature / type as in present case, the complaint
of breach of principles of natural justice by petitioner, may not
assume   much   importance.   Respective   Counsel,   therefore   have
addressed   this Court at some length in that regard. If the said
authorities are found not to possess such powers, then only other
grievances as raised do not survive. Further course of action to be
adopted by this Court therefore depends upon scope of S. 19(8)
which calls for determination first. 
8. The  order  of  respondent  No.1  dated  10th  February

2012 assailed in this petition is in Marathi.   This order in its last
but one paragraph shows that the appellate authority has relied
upon the order dated 5th May 2011 issued by respondent No.4­
Chief   Commissioner   of   Information   and   directed   respondent
No.3­ Education Officer to use the provisions of 1977 Act to seek
information   from   the   petitioners   and   then   to   pass   it   on   to
respondent No.5.   The petitioner's translation of this direction in
English  and use of words "Education Inspector (Secondary)" in
it   is,   therefore,   not   correct.       The   words   should   have   been
"Education Officer (Secondary)".   The provisions of section 19 of
the   RTI   Act   deal   with   appeals;   and   the   powers   of   State
Information   Commissioner   while   deciding   said   appeals   are
prescribed   in   sub­section   (8)   clause   (a).       This   sub­section
enables the State Information Commissioner to require the public
authority to take any such steps as may be necessary to secure
compliance with the provisions of RTI Act.  Sub­clause (i) then
permits the said authority to achieve very same goal by providing
access to information in a particular form.    Main clause (a) is
"general" in nature & ends with words "include".  Its sub­clauses

(i)  to (vi) show  the mention of specific powers or steps which
may be taken. Thus, this placement & arrangement reveals the
legislative mandate that powers later specified in sub­clauses  are
not designed to restrict the wide field kept deliberately open for
the  appellate  forums    and  not  to  encroach  upon  the  general
power to issue various types of directions under main clause. The
stipulation of specific powers is without prejudice to generality of
vast power conferred by S.19(8)(a) i.e. main clause. There is no
reason to cut down sweep of this procedure aimed at effective
implementation as it militates with its completeness within the
RTI Act envisaged & achieved through overriding effect in S. 22
& bar of jurisdiction of civil court in S.23.  All the steps/measures
required  to be adopted  for achieving  the purpose, object of &
compliance with RTI Act, are therefore, open & permitted, and
the   appellate   authority   can   issue     direction   to   such   public
authority to take any of those steps as are suitable to coerce the
persons having information to abide by directions issued under
the RTI Act.   Said steps giving teeth to  it & intended at making
the law effective, therefore, may include a direction to use other

powers available to such public authority i.e. conferred upon it
under  any   other  law  like   1977   Act.      The  Education  Officer
(Secondary) is a public authority and has acted as first appeal
authority also in the present matter.   Statutorily, it is associated
with   administration   and   functioning   of   all   recognized   and
approved schools due to & in accordance with the provisions of
1977 Act as also Secondary School Code.      It has got various
powers to monitor the functioning and standard of education in
terms  of  these  statutory instruments.   For  that  purpose it can
access the records of the petitioners. Here, overriding effect given
to RTI Act vide its  S. 22  also assumes  significance.   Hence, a
direction  by  respondent  No.1 in its  order  dated  10th  February
2012   to   respondent   No.2   to   use   any   of     those   powers   for
procuring information from the petitioners cannot be viewed as
excessive.    The contention that what is directly prohibited has
been achieved indirectly  through such a direction or course of
action is, therefore, misconceived and unsustainable.  
9.               Full Bench of the Delhi High Court in AIR 2010 Delhi

159 ­­ "Secretary General, Supreme Court of India v. Subhash
Chandra Agarwal" has observed:­­ 
"60.   The   decisions   cited   by   the   learned   Attorney
General on the meaning of the words 'held' or 'control'
are relating to property and cannot be relied upon in
interpretation   of   the   provisions   of   the   Right   to
Information   Act.  The   source   of  right  to  information
does not emanate from the Right to Information Act. It
is   a   right   that   emerges   from   the   constitutional
guarantees   under   Article   19(1)(a)   as   held   by   the
Supreme Court in a catena of decisions. The Right to
Information   Act   is   not   repository   of   the   right   to
information.  Its repository is  the constitutional rights
guaranteed under Article 19(1)(a).  The Act is merely
an instrument  that lays down statutory procedure in
the exercise of this right. Its overreaching purpose is to
facilitate democracy by helping to ensure that citizens
have   the   information   required   to   participate
meaningfully in the democratic process and to help the
governors  accountable  to  the governed.  In  construing
such a statute, the Court ought to give to it the widest
operation  which its language  will  permit.  The  Court
will also not  readily  read words which are not  there
and introduction  of  which  will  restrict  the  rights  of
citizens for whose benefit the statute is intended.

61. The words 'held by' or 'under the control of under
Section 2(j) will include not only information under the
legal control of the public authority but also all such
information   which   is   otherwise   received   or   used   or
consciously   retained   by   the   public   authority   in   the
course of its functions and its official capacity.  There
are  any number  of  examples where  there is no legal
obligation to provide information to public authorities,
but   where   such   information   is   provided,   the   same
would   be   accessible   under   the   Act.   For   example,
registration  of  births,  deaths, marriages,  applications
for   election   photo   identity   cards,   ration   cards,   pan
cards   etc.   The   interpretation   of   the   word   'held'
suggested by the learned Attorney General, if accepted,
would   render   the   right   to   information   totally
ineffective."
10.            In paragraph 44, this Full Bench of Delhi High Court,
from  the preamble of  the RTI Act, also notes  that it is passed
because   'democracy   requires   an   informed   citizenry   and
transparency of information which are vital to its functioning and
also   to   contain   corruption   and   hold   Governments   and   their
instrumentalities accountable  to  the governed'.  It    restricts  the
right  to information  to citizens vide Section 3. Citizen seeking

information need not give any reasons for such demand & there
is no requirement of scrutiny into his locus standi.   I find that
when   the   procedure   to   exercise   the   right   to   information   is
statutorily prescribed & its breach is to be redressed exclusively
by   the   "forums"   created   thereunder,   the   "execution"   of   such
adjudicated   entitlement   against   unwilling   establishment   by
invoking all available legal avenues is the deliberate measure &
an integral part of the scheme of RTI Act.
11.             The learned counsel for the petitioners has also urged
that  though definition of "information" as contained in section
2(f) is comparatively wide, that scope is curtailed when RTI Act
confers   upon   the   persons   like   respondent   No.5   right   to
information.  He has urged that section 2(j) defining this phrase
"right to information" is intended at  controlling and narrowing
wide   sweep   of   section   2(f).       Similarly,   the   petitioners   are
claiming themselves to be a third party as defined in section 2(l)
of RTI  Act.      None  of  these  contentions  are  addressed  to  by
respondent   No.1.       Perusal   of   impugned   appellate   judgment

shows that Head Mistress working with petitioners i.e. petitioner
No.3 had appeared  before respondent No.1 on 20th  September
2011 for giving evidence of the action taken on applications of
respondent No.5.   Hearing took place on 16th October 2011 and
the impugned order records that on that day present respondent
No.5 (appellant) was only present.   This position has not been
seriously disputed by respondent No.5.     Respondent No.5 has
not pointed out that there was any other notice or intimation to
the  petitioners  to  remain  present  for  hearing  on  16th  October
2011.      The  submission  of  petitioners  that  out  of  documents
demanded   by   respondent   No.5   vide   his   two   applications,
available documents or information have been already supplied
and remaining material is not available with it, therefore, does
not find any consideration by respondent No.1.   Issue whether
copy  of  approval  order  sought  for  on 13th  December  2010  by
respondent No.5 is available with  the petitioners or  then, it is
available with authorities granting approval i.e. respondent No.2,
therefore, need not be looked into by this Court.   Similarly, on
28th December 2012, respondent No.5 has demanded total nine

documents or information &   respondent 5 has stated that the
information or documents in relation to serial Nos.1, 2, 3, 7, 8
and 9 are still not received by him.  Whether this information or
document/s is available with the petitioners or not can also be
looked   into   by   respondent   No.1   after   extending   them   an
opportunity of hearing.      It is not necessary  for  this Court  to
pronounce  on it  as  petitioners  have  not  been  given  necessary
opportunity of hearing before passing of impugned order.
12. Perusal   of   judgment   of   Uttaranchal   High   Court   in
Anuj   Public   School     vs.     State   Information   Commissioner
(supra) reveals that the learned single Judge has issued direction
to the petitioners therein to give information not covered under
section 8 of the RTI Act within two weeks.   This judgment also
considers situation of private institutes in the light of section 11
of the RTI Act.   Its bearing in the matter, if any;  can be pointed
out by the parties to respondent No.1.
13. In   the   light   of   this   discussion,   it   is   held   that   the

impugned  order  to  the extent indicated  above passed without
hearing the petitioners  is unsustainable.   The said order dated
10th February 2012 is, accordingly, quashed and set aside.   The
proceedings in Appeal No. KR­1323/2011 are restored back  to
the file of respondent No.1 for fresh hearing and consideration.
Petitioners as also respondent No.5 are directed to appear before
respondent   No.1   on   12th  February   2013   and   to   abide   by   its
further   instructions   in   the   matter.       The   said   authority   shall
attempt to decide the appeal finally as early as possible.
14. Petition is, thus, partly allowed and disposed of.   No
costs.
(B.P. DHARMADHIKARI, J.)

Latest case law on inter country adoption of child

Posted: 23 Mar 2013 05:04 AM PDT


 If the foreign adoptive parent is otherwise
suitable and willing, and consent of the child had also been taken (as in the present case) and the expert 
bodies engaged in the field are of the view that in the present case the adoption process would end in a 
successful blending of the child in the family of the appellant in USA, we do not see as to how the
appellant could be understood to be disqualified or disentitled to the relief(s) sought by her in the
proceedings in question. It is our considered view that having regard to the totality of the facts of the case
the proposed adoption would be beneficial to the child apart from being consistent with the legal 
entitlement of the foreign adoptive parent. If the above is the net result of the discussions that have
preceded, the Court must lean in favour of the proposed adoption.


Stephanie Joan Becker Vs. State and Ors. 


SUPREME COURT OF INDIA 
(P. SATHASIVAM, RANJAN GOGOI AND V. GOPALA GOWDA, JJ.)
Decided on 8-2-2013. 



2. The rejection of the applications filed by the appellant under Sections 7 and 26 of the Guardians and
Wards Act, 1890 (hereinafter for short the "Guardians Act") by the learned Trial Court vide its order
dated 17.09.2010 in Guardianship Case No. 2 of 2010 and the affirmation of the said order made by the 
High Court of Delhi by its order dated 09.07.2012 in FAO No. 425 of 2010 has been put to challenge in
the present appeal. By the application filed under Section 7 of the Guardians Act, the appellant had sought 
for an order of the Court appointing her as the guardian of one female orphan child Tina aged about 10 
years whereas by the second application filed under Section 26 of the Guardians Act the appellant had 
sought permission of the Court to take the child Tina out of the country for the purpose of adoption. 
3. The rejection of the aforesaid two applications by the learned Trial Court as well as by the High Court
is on a sole and solitary ground, namely, that the appellant, being a single prospective adoptive parent,
was aged about 53 years at the relevant point of time whereas for a single adoptive parent the maximum 
permissible age as prescribed by the Government of India Guidelines in force was 45. Though a no 
objection, which contained an implicit relaxation of the rigour of the Guidelines with regard to age, has 
been granted by the Central Adoption Resource Authority (CARA), the High Court did not consider it 
appropriate to take the said no objection/relaxation into account inasmuch as the reasons for the relaxation 
granted were not evident on the face of the document i.e. no objection certificate in question. 
4. To understand and appreciate the contentious issues that have arisen in the present appeal, particularly, 
the issues raised by a non- governmental organization that had sought impleadment in the present 
proceedings (subsequently impleaded as respondent No. 4) it will be necessary to take note of the 
principles of law governing inter-country adoption, a short resume of which is being made hereinbelow. 
But before doing that it would be worthwhile to put on record that the objections raised by the 
Respondent No.4, pertain to the legality of the practice of inter country adoption itself, besides the 
bonafides of the appellant in seeking to adopt the child involved in the present proceeding and the 
overzealous role of the different bodies involved in the process in question resulting in side stepping of 
the laid down norms.
5. The law with regard to inter-country adoption, indeed, was in a state of flux until the principles 
governing giving of Indian children in adoption to foreign parents and the procedure that should be 
followed in this regard to ensure absence of any abuse, maltreatment or trafficking of children came to be 
laid down by this Court in Lakshmi Kant Pandey v. Union of India[(1984) 2 SCC 244]. The aforesaid 
proceedings were instituted by this Court on the basis of a letter addressed by one Lakshmi Kant Pandey, 
a practicing advocate of this Court with regard to alleged malpractices indulged in by social and voluntary 
organizations engaged in the work of offering Indian children in adoption to foreign parents. After an 
elaborate consideration of the various dimensions of the questions that arose/were raised before the Court 
and the information laid before it by the Indian Council of Social Welfare, Indian Council of Child 
Welfare, SOS Children's Villages of India (respondent No. 2 herein) and also certain voluntary 
organizations working in the foreign jurisdictions, this Court, after holding in favour of inter country 
adoption, offered elaborate suggestions to ensure that the process of such adoption is governed by strict 
norms, and a well laid down procedure to eliminate the possibility of abuse or misuse in offering Indian 
children for adoption by foreign parents is in place. This Court in Lakshmi Kant Pandey (supra) also laid 
down the approach that is required to be adopted by the courts while dealing with applications under the 
Guardians and Wards Act seeking orders for appointment of foreign prospective parents as guardians of 
Indian children for the eventual purpose of adoption. Such directions, it may be noticed, was not only 
confined to hearing various organizations like the Indian Council for Child Welfare and Indian Council of 
Social Welfare by issuance of appropriate notices but also the time period within which the proceedings 
filed before the Court are to stand decided. Above all, it will be necessary for us to notice that in Lakshmi 
Kant Pandey (supra) this Court had observed that : 
"Of course, it would be desirable if a Central Adoption Resource Agency is set up by the 
Government of India with regional branches at a few centres which are active in inter-country 
adoptions. Such Central Adoption Resource Agency can act as a clearing house of information in 
regard to children available for inter-country adoption and all applications by foreigners for 
taking Indian children in adoption can then be forwarded by the social or child welfare agency in 
the foreign country to such Central Adoption Resource Agency and the latter can in its turn 
forward them to one or the other of the recognized social or child welfare agencies in the 
country." 
6. Pursuant to the decision of this Court in Lakshmi Kant Pandey (supra) surely, though very slowly, the 
principles governing adoption including the establishment of a central body, i.e., Central Adoption 
Resource Authority (CARA) took shape and found eventual manifestation in a set of elaborate guidelines 
laid down by the Government of India commonly referred to as the Guidelines For Adoption from India 
2006 (hereinafter referred to as "the Guidelines of 2006"). A reading of the aforesaid Guidelines indicates 
that elaborate provisions had been made to regulate the pre-adoption procedure which culminates in a 
declaration by the Child Welfare Committee that the child is free for adoption. Once the child (abandoned 
or surrendered) is so available for adoption the Guidelines of 2006 envisage distinct and separate steps in 
the process of adoption which may be usefully noticed below : 
(1) Enlisted Foreign Adoption Agency (EFAA) 
(i) The applicants will have to contact or register with an Enlisted Foreign Adoption 
Agency (EFAA)/Central Authority/Govt. Deptt. in their country, in which they are 
resident, which will prepare the a Home Study Report (HSR) etc. The validity of "Home 
Study Report" will be for a period of two years. HSR report prepared before two years 
will be updated at referral. 
(ii) The applicants should obtain the permission of the competent authority for adopting a 
child from India. Where such Central Authorities or Government departments are not 
available, then the applications may be sent by the enlisted agency with requisite 
documents including documentary proof that the applicant is permitted to adopt from 
India 
(iii) The adoption application dossier should contain all documents prescribed 
in Annexure-2. All documents are to be notarized. The signature of the notary is either to 
be attested by the Indian Embassy/High Commission or the appropriate Govt. 
Department of the receiving country. If the documents are in any language other than 
English, then the originals must be accompanied by attested translations 
(iv) A copy of the application of the prospective adoptive parents along with the copies of 
the HSR and other documents will have to be forwarded to RIPA by the Enlisted Foreign 
Adoption Agency (EFAA) or Central Authority of that country. 
(2) Role of Recognized Indian Placement Agency (RIPA) 
(i) On receipt of the documents, the Indian Agency will make efforts to match a child 
who is legally free for inter- country adoption with the applicant. 
(ii) In case no suitable match is possible within 3 months, the RIPA will inform the 
EFAA and CARA with the reasons therefore. 
(3) Child being declared free for inter-country adoption - Clearance by ACA 
(i) Before a RIPA proposes to place a child in the Inter country adoption, it must apply to 
the ACA for assistance for Indian placement. 
(ii) The child should be legally free for adoption. ACA will find a suitable Indian 
prospective adoptive parent within 30 days, failing which it will issue clearance 
certificate for inter-country adoption. 
(iii) ACA will issue clearance for inter-country adoption within 10 days in case of older 
children above 6 years, siblings or twins and Special Needs Children as per the additional 
guidelines issued in this regard. 
(iv) In case the ACA cannot find suitable Indian parent/parents within 30 days, it will be 
incumbent upon the ACA to issue a Clearance Certificate on the 31st day. 
(v) If ACA Clearance is not given on 31st day, the clearance of ACA will be assumed 
unless ACA has sought clarification within the stipulation period of 30 days. 
(vi) NRI parent(s) (at least one parent) HOLDING Indian Passport will be exempted from 
ACA Clearance, but they have to follow all other procedures as per the Guidelines. 
(4) Matching of the Child Study Report with Home Study Report of FPAP by RIPA 
(i) After a successful matching, the RIPA will forward the complete dossier as per 
Annexure 3 to CARA for issuance of "No Objection Certificate". 
(5) Issue of No Objection Certificate (NOC) by CARA 
(i) RIPA shall make application for CARA NOC in case of foreign/PIO parents only after 
ACA Clearance Certificate is obtained. 
(ii) CARA will issue the 'NOC' within 15 days from the date of receipt of the adoption 
dossier if complete in all respect. 
(iii) If any query or clarification is sought by CARA, it will be replied to by the RIPA 
within 10 days. 
(iv) No Indian Placement Agency can file an application in the competent court for intercountry adoption without a "No Objection Certificate" from CARA. 
(6) Filing of Petition in the Court 
(i) On receipt of the NOC from CARA, the RIPA shall file a petition for 
adoption/guardianship in the competent court within 15 days. 
(ii) The competent court may issue an appropriate order for the placement of the child 
with FPAP. 
(iii) As per the Hon'ble Supreme Court directions, the concerned Court may dispose the 
case within 2 months. 
(7) Passport and Visa 
(i) RIPA has to apply in the Regional Passport Office for obtaining an Indian Passport in 
favour of the child. 
(ii) The concerned Regional Passport Officer may issue the Passport within 10 days. 
(iii) Thereafter the VISA entry permit may be issued by the Consulate/Embassy/High 
Commission of the concerned country for the child. 
(8) Child travels to adoptive country 
(i) The adoptive parent/parents will have to come to India and accompany the child back 
to their country. 
7. Even after the child leaves the country the Guidelines of 2006 contemplate a process of continuous 
monitoring of the welfare of the child through the foreign placement agency until the process of adoption 
in the country to which the child has been taken is completed, which process the Guidelines contemplate 
completion within two years. The monitoring of the welfare of the child after the process of adoption is 
complete and the steps that are to be taken in cases where the adoption does not materialize is also 
contemplated under the Guidelines of 2006. As the said aspects are not relevant for the purposes of the 
present adjudication the details in this regard are not being noticed. What, however, would require 
emphasis, at this stage, is that by and large the Guidelines of 2006 framed by the Ministry of Women and 
Child Development are in implementation of the decision of this Court in the case of Lakshmi Kant 
Pandey (supra). 
8. Two significant developments in the law governing adoptions may now be taken note of. Section 41 of 
the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter for short the "JJ Act") was 
amended by Act 33 of 2006 by substituting sub-Sections 2, 3 and 4 by the present provisions contained in 
the aforesaid sub-Sections of Section 41. The aforesaid amendment which was made effective from 
22.8.2006 is significant inasmuch as under sub-Section 3 power has been conferred in the Court to give a 
child in adoption upon satisfaction that the various guidelines issued from time to time, either by the State 
Government or the CARA and notified by the Central Government have been followed in the given case. 
The second significant development in this regard is the enactment of the Juvenile Justice (Care and 
Protection of Children) Rules 2007 by repeal of the 2001 Rules in force. Rule 33 (2) makes it clear that 
"for all matters relating to adoption, the guidelines issued by the Central Adoption Resource Agency and 
notified by the Central Government under sub-section (3) of Section 41 of the Act, shall apply." Rule 33 
(3) in the various sub- clauses (a) to (g) lays down an elaborate procedure for certifying an abandoned 
child to be free for adoption. Similarly, sub-rule (4) of Rule 33 deals with the procedure to be adopted for 
declaring a surrendered child to be legally free for adoption. Once such a declaration is made, the various 
steps in the process of adoption spelt out by the Guidelines of 2006, details of which have been extracted 
hereinabove, would apply finally leading to departure of the child from the country to his/her new home 
for completion of the process of adoption in accordance with the laws of the country to which the child 
had been taken. In this regard the order of the courts in the country under Section 41(3) of the JJ Act 
would be a step in facilitating the adoption of the child in the foreign country. 
9. It will also be necessary at this stage to take note of the fact that the Guidelines of 2006 stand repealed 
by a fresh set of Guidelines published by Notification dated 24.6.2011 of the Ministry of Women and 
Child Development, Government of India under Section 41(3) of the JJ Act. The time gap between the 
coming into effect of the provisions of Section 41(3) of the JJ Act i.e. 22.08.2006 and the publication of 
the 2011 Guidelines by the Notification dated 24.6.2011 is on account of what appears to be various 
procedural steps that were undertaken including consultation with various bodies and the different State 
Governments. A reading of the Guidelines of 2011 squarely indicate that the procedural norms spelt out 
by the 2006 Guidelines have been more elaborately reiterated and the requirements of the pre-adoption 
process under Rules 33(3) and (4) have been incorporated in the said Guidelines of 2011. As a matter of 
fact, by virtue of the provisions of Rule 33(2) it is the Guidelines of 2011 notified under Section 41(3) of 
the JJ Act which will now govern all matters pertaining to inter-country adoptions virtually conferring on 
the said Guidelines a statutory flavour and sanction. Though the above may not have been the position on 
the date of the order of the learned trial court i.e. 17.9.2010, the full vigour of Section 41(3) of the JJ Act 
read with Rule 33 (2) of the Rules and the Guidelines of 2011 were in operation on the date of the High 
Court order i.e. 9.7.2012. The Notification dated 24.06.2011 promulgating the Guidelines of 2011 would 
apply to all situations except such things done or actions completed before the date of the Notification in 
question, i.e., 24.06.2011. The said significant fact apparently escaped the notice of the High Court. 
Hence the claim of the appellant along with consequential relief, if any, will have to be necessarily 
considered on the basis of the law as in force today, namely, the provisions of the JJ Act and the Rules 
framed thereunder and the Guidelines of 2011 notified on 24.6.2011. In other words, if the appellant is 
found to be so entitled, apart from declaring her to be natural guardian and grant of permission to take the 
child away from India a further order permitting the proposed adoption would also be called for. Whether 
the order relating to adoption of the child should be passed by this Court as the same was not dealt with in 
the erstwhile jurisdictions (trial court and the High Court) is an incidental aspect of the matter which 
would require consideration. 
10. The facts of the present case, as evident from the pleadings of the parties and the documents brought 
on record, would go to show that the appellant's case for adoption has been sponsored by an agency 
(Journeys of the Heart, USA) rendering service in USA which is recognized by CARA. The Home Study 
Report of the family of the appellant indicates that the appellant apart from being gainfully employed and 
financially solvent is a person of amicable disposition who has developed affinity for Indian culture and 
Indian children. The appellant, though unmarried, has the support of her brother and other family 
members who have promised to look after the child in the event such a situation becomes necessary for 
any reason whatsoever. The Child Study Report alongwith medical examination Report prepared by the 
recognized agency in India has been read and considered by the appellant and it is only thereafter that she 
had indicated her willingness to adopt the child in question. Before permitting the present process of inter 
country adoption to commence, all possibilities of adoption of the child by an Indian parent were explored 
which however did not prove successful. The matter was considered by the No Objection Committee of 
the CARA and as stated in the affidavit of the said agency filed before this Court, the No Objection 
Certificate dated 03.02.2010 has been issued keeping in mind the various circumstances peculiar to the 
present case, details of which are as hereunder : ] 
1. "Child Tina was an older female child (aged 7 years when the NOC was issued) and thus 
relaxation was permissible as per the guidelines. 
2. The Prospective parent was 54 years of age, which is within the age up to which adoption by 
foreign prospective parent is permissible after relaxation i.e. 55 years. 
3. The Prospective Adoptive Parent is otherwise also suitable as she is financially stable and there 
are three reference letters supporting adoption of the child by her. The Home study report of the 
prospective parent (Ms. Stephanie Becker) shows the child as kind, welcoming, caring and 
responsible individual with physical, mental emotional and financial capability to parent a female 
child up to age of seven years from India. 
4. Procedures such as declaration of the child as legally free for adoption by CWC Child Welfare 
Committee (CWC); ensuring efforts for domestic adoption and clearance of Adoption 
Coordinating Agency; and taking consent of older child had been followed. • Follow-up of the 
welfare of the child was to be properly done through Journeys of the Hearts, USA, the authorized 
agency which had also given an undertaking to ensure the adoption of child Tina according to the 
laws in USA within a period not exceeding two years from the date of arrival of the child in her 
new home. The agency has also committed to send follow-up reports as required. • The 
Biological brother of the prospective parent, Mr. Philip Becker Jr. and his wife Ms. Linda Becker 
have given an undertaking on behalf of the single female applicant to act as legal guardian of the 
child in case of any unforeseen event to the adoptive parent. This is another important safeguard. 
• Article 5 from the Office of Children's Issues, US Department of State allowing child Tina to 
enter and reside permanently in the United States and declaring suitability of the prospective 
adoptive parent, was available." 
11. In view of the facts as stated above which would go to show that each and every norm of the adoption 
process spelt out under the Guidelines of 2006, as well as the Guidelines of 2011, has been adhered to, we 
find that the apprehension raised by the intervener, though may have been founded on good reasons, have 
proved themselves wholly unsubstantiated in the present case. If the foreign adoptive parent is otherwise
suitable and willing, and consent of the child had also been taken (as in the present case) and the expert 
bodies engaged in the field are of the view that in the present case the adoption process would end in a 
successful blending of the child in the family of the appellant in USA, we do not see as to how the
appellant could be understood to be disqualified or disentitled to the relief(s) sought by her in the
proceedings in question. It is our considered view that having regard to the totality of the facts of the case
the proposed adoption would be beneficial to the child apart from being consistent with the legal 
entitlement of the foreign adoptive parent. If the above is the net result of the discussions that have
preceded, the Court must lean in favour of the proposed adoption. We, therefore, set aside the orders 
dated 17.09.2010 in Guardianship Case No. 2 of 2010 passed by the learned Trial Court and the order 
dated 09.07.2012 in FAO No. 425 of 2010 passed by the High Court of Delhi and appoint the appellant as 
the legal guardian of the minor female child Tina and grant permission to the appellant to take the child to 
USA. In view of the provisions of Section 41(3) of the JJ Act and to avoid any further delay in the matter 
which would be caused if we were to remand the aforesaid aspect of the case to the learned Trial Court, 
only on the ground that the same did not receive consideration of the learned Court, we deem it 
appropriate to pass necessary orders giving the child Tina in adoption to the appellant. The CARA will 
now issue the necessary conformity certificate as contemplated under clause 34(4) of the Guidelines of 
2011. The appeal consequently shall stand allowed in the above terms. 
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