HIGH COURT OF ANDHRA PRADESH: DV ACT 2005 is not retrospective

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
THURSDAYITHESECONDDAYOFAUGUST
TWO THOUSAND AND SEVEN
PRESENT
THE HON'BLE SRI JUSTICE K.C. BHANU
CRIMINAL PETITION NO : 3714 of 2007
Between:
1 U.U. Thimmanna, Slo U. U. Ayyanna
2 U.U. Sankaramma, W/o U. U. Thimmanna
3 U.U. Sreenivasulu, Slo U. U. Thimmanna
4 U.U. Paramesh, Slo U. U. Thimmanna
5 U.U.Ramesh, Slo U. U. Thimmanna
..... PETITIONERS
AND
1 Smt. U.U. Sandhya, Dlo U.M. Venkateswarlu
2 The State of Andhra Pradesh, rep. by its Public Prosecutor,
High Court of A.P., at Hyderabad.
I
..... RESPONDENTS
Petition under Section 482 of the Cr1.P.C praying that in the
circumstances stated in the quash proceedings filed therewith, the High
Court will be pleased to quash the proceedings in D.V.C.No. 1 of 2007
on the file of the Judicial Magistrate of First Class, Yemmiganur, Kurnool
District.
The Petition coming on for hearing, upon perusing the
Petition and the quash proceedings filed in support thereof and upon
hearing the arguments of Sri. C.PRAVEEN KUMAR, Advocate for the
Petitioner and of Smt. P. Rajeswari, Advocate for the Respondent No.1
and of the Public Prosecutor, on behalf of State.
The Court made the following:ORDER
THE HONt BLE SRI JUSTICE ' K . C . BEANU
CRIMINAL PETITION N0.3714 OF 2007.
O-RDER :
This Criminal Petition is filed by the
petitioners under Section 482 Cr.P.C. to quash the
proceedings in DVC No.1 of 2007 on the file of the
Judicial Magistrate of I Class, Yemrniganur, Kurnool
District.
1
Heard both the counsel.
Admittedly, husband of the complainant died on
14-06-2004 and since then the de facto complainant is
not residing with the petitioners. The shared household
is defined under Section 2 (s) of the Protection
of Women from Domestic Violence Act, 2005 (for short
'the Act'), which reads as follows:
' 'shared household' means a household where the
person aggrieved lives or at any stage has lived
in a domestic relationship either singly or along
with the respondent and includes such a household
whether owned or tenanted either jointly by the
aggrieved person and the respondent or owned or
tenanted by either of them in respect of which
either the aggrieved peSrson or the respondent or
both jointly or singly have any right, title,
interest or equity and includes such a household
which may belong to the joint family of which the
respondent is a member, irrespective of whether
the respondent or the aggrieved person has any
right, title or interest in the shared
household. "
Domestic relationship is defined under Section 2
( E ) of the Act, which reads as follows:
" 'domestic relationship' means a relationship
between two persons who live or have, at any
point of time, lived together in a shared ,
household, when they are related by
consanguinity, marriage, or through a
relationship in the nature of marriage, adoption
or are family members living together a3 a joint
family."
On the face of the allegations in the complaint,
the de facto complainant is not residing with the
petitioners. She is ' residing in House No.2361, Near
M.G. Petrol, Yemmiganur, whereas petitioners 1 and 2
have been residing in House No. 3/31, Uppara street,
Yemmiganur, 3 r" petitioner .i. s rcaidi.nq n I;
Mahaboobnagar, 4th petitioner is residing at
H.No.S/2267,Laxmipeta, Yemmiganur and 5th petitioner is
rcsi di nq at: l l . N o . 3/31, tlppata Street, Yemmiqanur.
Admittedly, the de facto complainant filed a suit in
O.S. No.111 of 2005, which is pending, She also filed
a case in C.C.No.94 of 2005 under Section 498-A IPC,
which is pending trial before the Judl. Magistrate of
I Class, Yemmiganur. The domestic incident report does
not disclose any of the acts of violence that were
C A L Lc.r~lpLcd or1 t i cornplainant after 26-10-2006. There
is no dispute that the Act came into effect when the
Central Government appoints 26-10-2006 as the date on
which the Act was came into force. For acts of
violence, certain penal provisions are incorporated.
Therefore, it is a fundamental principle of law that
any penal provision has no retrospective operation,
o n l y t ) r ~ o : ; ~ ) c ' c I . i v c . 'I'llere is 110 ctlleyation either in the
report or in the statement or in the complaint of the
lSt respondent with regard to the acts of domestic
violence that took place on or after 26-10-2006.
Therefore, continuation of proceedings against the
petitioners is nothing but abuse of process of Court.
Accordingly, the Criminal Petition is allowed
quashing the proceedings in DVC No.1 of 2007 on the
file of the Judicial Magistrate of I Class,
Yemrniganur, Kurnool District.
SO/-N.MURALIDHAR RAO
ASSISTANT REGISTRAR
I/ TRUE COPY N
SECTION OFFICER
To
,l.Th e Judicial First Class Magistrate , Yemmiganur, Kurnool District
2. Two CC's to the Public Prosecutor, High Court of Andhra
Pradesh, Hyderabad (OUT)
3. Two CD copies
4. One CC to Sri. C. Praveen Kumar, Advocate (OPUC).
5. One CC to Smt. P. Rajeswari, Advocate (OPUC).
Prk w
HIGH COURT
DATED: 02-08-2007
ORDER
CRL.P. NO. 3714 OF 2007
Allowing the Petition.

Dowry cases: HC puts curbs on arrest of in-laws, relatives

IN THE HIGH COURT OF DELHI AT NEW DELHI


Bail Application No. 1627/2008


04.08.2008

Judgment delivered on: 04.8.2008


Chander Bhan and Anr. ...... Petitioners
Through: Mr. Rajesh Khanna Adv.


versus


State ..... Respondent
Through: Mr. Pawan Sharma APP


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
be allowed to see the judgment? yes

2. To be referred to Reporter or not? yes

3. Whether the judgment should be reported
in the Digest? yes

KAILASH GAMBHIR, J. (Oral)

By way of the present petition the petitioners who are parents-
in-law of the complainant seek grant of anticipatory bail.
Mr. Sharma counsel for the State submits that allegations are
serious in nature against the petitioners, therefore, the petitioners do not
deserve grant of anticipatory bail.
Complainant is present in the court. She states that there is no
possibility of her going back to the matrimonial home. However, the
complainant is not averse to the matter being sent before the mediation cell.
Let the matter be sent to the Mediation Cell, Rohini Court, Delhi for exploring
the possibility of amicable settlement between the parties.
Let the parties appear before the Mediation Cell, Rohini Court,
Delhi on 11.8.2008 at 4.00 P.M.
List the matter before the court on 23.9.2008.
Till then the petitioners shall not be arrested.
Before parting with this case, I deem it expedient and in the
larger interest of saving matrimony of the couples and to restore peace between
the two hostile families of husband and wife who once must have celebrated the


marriage of couple with great zeal, fervor and enthusiasm but when faced with
many facets and stark realities of life entangled themselves to fight a long
drawn legal battle instead of building confidence, trust, understanding, mutual
respect for each other and their respective families.
The offence of cruelty by husband or relatives of husband (Section 498-A)
was added in 1986 to curb the vise of subjecting women to coerce them or their
relatives to meet unlawful demands for dowry.
Since its enactment, this provision has been subjected to systematic and
sustained attack. It has been called unfair and responsible for the
victimisation of husbands by their wives and her relatives. No doubt there may
be many deserving cases where women are being subjected to mental and physical
cruelty at the hands of the avaricious in-laws. But such cases have to be
distinguished from other cases where merely due to trivial fights and ego
clashes the matrimony is facing disaster.
What is not comprehended by young minds while invoking the provisions of
the likes of Section 498-A and 406 of IPC is that these provisions to a large
extent have done incalculable harm in breaking matrimony of the couples. Despite
the western culture influencing the young minds of our country, still it has
been seen that Indian families value their own age old traditions and culture,
where, mutual respect, character and morals are still kept at a very high
pedestal.
It has been noticed in diverse cases, where the brides and their family
members in litigation find the doors of conciliation shut from the side of groom
and his family members only on account of there having suffered the wrath of
Police harassment first at the stage when matter is pending before crime against
women cell and thereafter at the time of seeking grant of anticipatory or
regular bail and then the ordeal of long drawn trial.
Daily, matters come before this court seeking bail and for quashing of
FIR?s registered under Sections 498A/406 of the IPC. This court is of the view
that it is essential to lay down some broad guidelines and to give directions in
such matters in order to salvage and save the institution of marriage and
matrimonial homes of the couples.
Guidelines:
1. Social workers/NGO
There is no iota of doubt that most of the complaints are filed in the
heat of the moment over trifling fights and ego clashes. It is also a matter of
common knowledge that in their tussle and ongoing hostility the hapless children
are the worst victims. Before a wife moves to file a complaint with the Women
Cell, a lot of persuasion and conciliation is required.
(a) The Delhi Legal Service Authority, National Commission for Women, NGO?s and
social worker?s working for upliftment of women should set up a desk in crime
against women cell to provide them with conciliation services, so that before
the State machinery is set in motion, the matter is amicably settled at that
very stage. But, if ultimately even after efforts put by the social workers
reconciliation seems not possible then the matter should be undertaken by the
police officials of Crime against Women cell and there also, serious efforts
should be made to settle the matter amicably.
2. Police Authorities:
(a) Pursuant to directions given by the Apex Court, the Commissioner of Police,
Delhi vide Standing Order No. 330/2007 had already issued guidelines for arrest
in the dowry cases registered under Sections 498-A/406 IPC and the said
guidelines should be followed by the Delhi Police strictly and scrupulously.
(i) No case under Section 498-A/406 IPC should be registered without the prior
approval of DCP/Addl. DCP.
(ii) Arrest of main accused should be made only after thorough investigation has
been conducted and with the prior approval of the ACP/DCP.


(iii) Arrest of the collateral accused such as father-in-law, mother-in-law,
brother-in-law or sister-in-law etc should only be made after prior approval of
DCP on file.
(b) Police should also depute a well trained and a well behaved staff in all the
crime against women cells especially the lady officers, all well equipped with
the abilities of perseverance, persuasion, patience and forbearance.
(c) FIR in such cases should not be registered in a routine manner.
(d) The endeavor of the Police should be to scrutinize complaints very carefully
and then register FIR.
(e) The FIR should be registered only against those persons against whom there
are strong allegations of causing any kind of physical or mental cruelty as well
as breach of trust.
(f) All possible efforts should be made, before recommending registration of any
FIR, for reconciliation and in case it is found that there is no possibility of
settlement, then necessary steps in the first instance be taken to ensure return
of stridhan and dowry articles etc. by the accused party to the complainant.

3. Lawyers:
Lawyers also have a great responsibility in this regard.
(a) While drafting pleadings/complaints, the lawyers should not unnecessarily
suggest incorporation of wild allegations, or in character assassination of any
of the parties or their family members whatever the case may be.
(b) Lawyers are also to endeavour to bring about amicable settlement between the
parties as they are expected to discharge sacred duty as social engineers in
such cases instead of making them target for monetary considerations by
multiplying their cases.

4. Courts:
Subordinate courts, be it trying civil or criminal cases concerning bail,
maintenance, custody, divorce or other related matters shall in the first
instance, in every case where it is possible so to do consistently with the
nature and circumstances of the case, to make every endeavour to bring about
reconciliation between the parties.
a) The first endeavor should be for possible reunion and restitution of the
parties and as a last endeavor to bring about peaceful separation.
b) If possible extra time should be devoted to such matters to restore peace in
the lives of rival parties be it by re-uniting them or even in case of their
parting ways.
c) Conciliatory proceedings by the court should preferably be held in camera to
avoid embarrassment.
d) Wherever, the courts are overburdened with the work, necessary assistance of
Mediation and Conciliation cells should be sought.
Apart from above directions it would not be out of place to ask parties
also to themselves adopt a conciliatory approach without intervention of any
outside agency and unless there are very compelling reasons, steps for launching
prosecution against any spouse or his/her in-laws be not initiated just in a
huff, anger, desperation or frustration.
DASTI.

KAILASH GAMBHIR, J
August 04, 2008
?mg?






Bail Application No. 1627/2008
Page 11 of 11

voluntarily incapacitates from earning is not entitled for maintanance

1999 AIR(Raj) 304

Govind Singh
v
Smt. Vidya.

21 Apr 1999

BENCH
A. K. SINGH

THIS JUDGMENT WAS FOLLOWED IN 1 CASE(S)

ACTS REFERRED
Hindu Marriage Act, 1955[s. 24]

CASE NO
Civil Misc. Appeal No. 140 of 1999.

LAWYERS
B. P. Rajpurohit

.JUDGMENT TEXT

The Judgment was delivered by :

:- Heard the learned counsel for the appellant and perused the
impugned order dated 30-1-1999 whereby the application filed by the
appellant under Section 24 of the Hindu Marriage Act, 1955 was
rejected.

2. The appellant was formerly earning his living by running an auto-
rikshaw on hire. He has stopped that work. The respondent is said to
be working as a nurse in hospital. The learned trial Court rejected
the application filed by the appellant under Section 24 of the Hindu
Marriage Act, 1955 on the ground that there was nothing to show that
the appellant was incapable of earning his living.

3. I have carefully considered the reasons given by the learned trial
Court for rejecting the application filed by the appellant for
interim maintenance. It is true that Section 24 of the Hindu Marriage
Act, 1955 entitles either party to move an application for
maintenance provided such party has no means of subsistence and the
other party is in a position to provide maintenance. But it does not
mean that the husband who is otherwise capable of earning his living
should stop earning the living and start depending on earning of his
wife. In the instant case it appears that the appellant Govind Singh
has incapacitated himself by stopping the running the auto-rikshaw on
hire. It is a well-established maxim of Anglo Saxon jurisprudence
that no person can be allowed to incapacitate himself. That maxim is
applicable to the case of earning husband. A person who voluntarily
incapacitates himself from earning is not entitled to claim
maintenance from the other spouse.

4. I, therefore, do not find any force in this appeal. It deserves to
be dismissed at the admission and is hereby dismissed.

Appeal dismissed.

Daughter-In-Law has not right on her In-laws property

IN THE HIGH COURT OF DELHI AT NEW DELHI


Date of Reserve: September 05, 2008
Date of Order : September 30, 2008

CM(M) 105/2006
30.09.2008
Neetu Mittal ...Petitioner
Through: Ms. Radhika Chandrasekhar, Adv.


Versus


Kanta Mittal and Ors. ...Respondents
Through: Ms. Nandni Sahni, Adv. for R.1 and 2
Mr. Devendra Singh, Adv. for R.3


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the
judgment? Yes.

2. To be referred to the reporter or not ? Yes.

3. Whether judgment should be reported in Digest ? Yes.


JUDGMENT:
1. The petitioner is aggrieved by an order dated 4th January, 2006
passed by the learned Additional Senior Judge allowing an appeal of the
respondent against order dated 24.5.2005 of Civil Judge dismissing an
application under Order 39 Rule 1 and 2 CPC.
2. The respondents had filed a suit making petitioner, their son
and in-laws of the son as defendants wherein they prayed for permanent
injunction. An application under Order 39 Rule 1 and 2 was made that the
petitioner and other respondents be restrained from forcibly and illegally
entering into their house No. B-2/23, Phase-II, Ashok Vihar and from interfering
with their peaceful living. The petitioner is wife of Sh. Vikas Mittal son of
respondents, Smt. Kanta Mittal and Sh. Ram Kishan Mittal.
3. The learned Senior Civil Judge while allowing appeal observed
that wife has a right to live in the matrimonial home after marriage but there
was no specific definition of matrimonial home. However, matrimonial home was
not just a building made of bricks and walls. It was a home/place comprising of
sweetness of relations of family members and elders, full of blessing. In the
matrimonial home, matrimonial rights and obligations are to be equally observed.
Practically speaking, the residence of husband should be the home of the wife
where both the spouses have equal right to reside.
4. The learned Senior Civil Jude found that in this case, the
respondents were parents of Sh. Vikas Mittal and in-laws of Neetu Mittal
(petitioner). They had separated from their son. The son had taken a flat in
Rohini for his own residence and residence of his wife. The son and his wife
had agreed to shift there on 10th May, 2005 under a compromise arrived at Police
Station. However, the wife did not stay in the flat at Rohini. Her grievance
was that flat was not habitable due to deficiency of fan, cooler, etc.


Thereafter, she asserted that she had a right to live in her in-laws' house in
Ashok Vihar and she wanted to forcibly live there which compelled respondents
no. 1 and 2 to file the suit. The learned Senior Civil Judge found that the
respondents were aged parents. They had shown by filing medical record that
they were suffering from various ailments and at this age of their life they
have a right to live peacefully at their home. Since the relations of
petitioner were not cordial with them, there was every likelihood of breach of
peace to the detriment to their mental and physical health. Due regards have to
be given to their rights. It was a admitted fact that the respondents and
petitioner could not live together under one roof with peace and harmony. The
common use of dining and one kitchen would create further problems and a
situation may come when parties may everyday land up at Police station or in the
Court, fighting on minor issues.
5. Learned Sr. Civil Judge also observed that the
respondents(parents) even apprehend danger to their lives and dignity, as per
the complaint made by them to the Police. Under these circumstances, the
learned Senior Civil Judge allowed the application under Order 39 Rule 1 and 2
CPC and restrained the defendants (petitioner herein) from forcibly entering
into their house and disturbing the peaceful possession of the respondents.
6. Counsel for the petitioner argued that the petitioner being wife
of son of respondents no. 1 and 2 has a right to live in the matrimonial home
and no injunction could legally have been issued by the learned Civil Judge.
She referred to Protection of Women from Domestic Violence Act, 2005 and argued
that the right of women to live in the shared household was to be protected by
every Court and the house of in-laws was a shared household and a matrimonial
home and she had a right to live there.
7. In S.R. Batra vs. Taruna Batra AIR 2007 SC 1118, Supreme Court
observed as under:
?16. There is no such law in India, like the British Matrimonial Homes Act, 1967
and in any case, the rights which may be available under any law can only be as
against the husband and not against the father-in-law or mother-in-law.

17. Here, the house in question belongs to the mother-in-law of Smt. Taruna
Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna
Batra cannot claim any right to live in the said house.

xxxxx xxxxx xxxxx

27. Learned counsel for the respondent Smt. Taruna Batra has relied upon Section
19(1)(f) of the Act and claimed that she should be given an alternative
accommodation. In our opinion, the claim for alternative accommodation can only
be made against the husband and not against the husband's in-laws or other
relatives.

28. As regards Section 17(1) of the Act, in our opinion the wife is only
entitled to claim a right to residence in a shared household, and a 'shared
household' would only mean the house belonging to or taken on rent by the
husband, or the house which belongs to the joint family of which the husband is
a member. The property in question in the present case neither belongs to Amit
Batra nor was it taken on rent by him nor is it a joint family property of which
the husband Amit Batra is a member. It is the exclusive property of appellant
no.2, mother of Amit Batra. Hence it cannot be called a 'shared household'.?

8. As observed by the Supreme Court, 'Matrimonial home' is not
defined in any of the statutory provisions. However, phrase ?Matrimonial home?
refers to the place which is dwelling house used by the parties, i.e., husband
and wife or a place which was being used by husband and wife as the family


residence. Matrimonial home is not necessarily the house of the parents of the
husband. In fact the parents of the husband may allow him to live with them so
long as their relations with the son (husband) are cordial and full of love and
affection. But if the relations of the son or daughter-in-law with the parents
of husband turn sour and are not cordial, the parents can turn them out of
their house. The son can live in the house of parents as a matter of right only
if the house is an ancestral house in which the son has a share and he can
enforce the partition. Where the house is self-acquired house of the parents,
son, whether married or unmarried, has no legal right to live in that house and
he can live in that house only at the mercy of his parents upto the time the
parents allow. Merely because the parents have allowed him to live in the house
so long as his relations with the parents were cordial, does not mean that the
parents have to bear his burden throughout the life.
9. Once a person gains majority, he becomes independent and parents
have no liability to maintain him. It is different thing that out of love and
affection, the parents may continue to support him even when he becomes
financially independent or continue to help him even after his marriage. This
help and support of parents to the son is available only out of their love and
affection and out of mutual trust and understanding. There is no legal
liability on the parents to continue to support a dis-obedient son or a son
which becomes liability on them or a son who dis-respects or dis-regards them or
becomes a source of nuisance for them or trouble for them. The parents can
always forsake such a son and daughter-in-law and tell them to leave their house
and lead their own life and let them live in peace. It is because of love,
affection, mutual trust, respect and support that members of a joint family gain
from each other that the parents keep supporting their sons and families of
sons. In turn, the parents get equal support, love, affection and care. Where
this mutual relationship of love, care, trust and support goes, the parents
cannot be forced to keep a son or daughter in law with them nor there is any
statutory provision which compels parents to suffer because of the acts of
residence and his son or daughter in law. A woman has her rights of maintenance
against her husband or sons/daughters. She can assert her rights, if any,
against the property of her husband, but she cannot thrust herself against the
parents of her husband, nor can claim a right to live in the house of parents of
her husband, against their consult and wishes.
10. I therefore consider that the order passed by the learned
Senior Civil Jude granting injunction does not suffer from any illegality and
the petition is hereby dismissed.


September 30, 2008 SHIV NARAYAN DHINGRA J.

DV case partly Quashed [Ajay Kant and Others Vs Smt. Alka Sharma]

HIGH COURT OF MADHYA PRADESH, JABALPUR BENCH AT GWALIOR*
(Miscellaneous Criminal Case No.1266/07)
*Ajay Kant and Others Vs Smt. Alka Sharma*
PRESENT
HON. SHRI JUSTICE B.M. GUPTA

Petitioners by Shri R.K. Sharma, Advocate.
Respondent by Shri Gaurav Samadiya, Advocate.

ORDER:19/06/07
The instant petition is for impugning the order dt.18th January,2007 passed
by Judicial Magistrate First Class, Gwalior in Criminal Case No.848/07,
whereby the learned Magistrate has issued notice to the petitioners on an
application filed by the respondent under section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to as "the
Act").
2. Brief facts of the case are that respondent Smt.Alka Sharma has filed one
application under Section 12 of the Act against the petitioners. On which
the learned Magistrate, vide order dated 18th January, 2007, has issued
notices to the petitioners. It has been averred in the application that the
respondent has married with petitioner No.1 on 16th of May, 2005 at Gwalior.
For a period of 4-6 months she became pregnant and thereafter the
petitioners started harassing the respondent demanding Rs.2 lacs and one
Maruti car from her parents. As the father of the respondent is a pensioner,
he could not fulfill the demand. He reported the matter to Mahila Police
Station at Padav, Gwalior on 2nd November, 2005 but the report was not
lodged and no action was taken. On 3rd February, 2006 the respondent
delivered a male child in the hospital. Thereafter, on 17th February, 2006
the petitioners separated the child from the respondent, kept him along with
them and deserted the respondent. Consequently, since 20st February, 2006
she is living in her matrimonial home without her son. Petitioners are
trying to declare the respondent as mentally sick and to remarry the
petitioner No.1. Admittedly, one application for divorce has been filed by
the petitioner No.1 against the respondent and the respondent has filed an
application under Section 125 of Cr.P.C. claiming maintenance from him and
also she has filed another application under Section 9 of the Hindu Marriage
Act for seeking a decree of restitution of conjugal rights against the
petitioner No.1. These applications are pending in the Family Court,
Gwalior. On these grounds, the respondent has prayed in the application for
taking legal action against the petitioners and also to punish them.
3. The aforementioned act of filing of the application by the respondent and
issuance of notice by the Court against the petitioners has been assailed by
the petitioners on various grounds. The grounds and decisions thereon are as
under :-
(A) That, the respondent was mentally sick before the marriage, which was
not disclosed by the respondent. On this ground, application for divorce has
been filed by petitioner No.1 on 15.5.06 in which proceedings for
reconciliation have been failed on 21.9.06. Only for creating pressure
against the petitioner No.1, the present application has been filed on false
grounds by the respondent on 23.11.06.
(B) That, in the application under Section 9 of the Hindu Marriage Act filed
by the respondent these facts have not been mentioned by her that on demand
of Rs. 2 lacs and one Maruti car, she has been harassed by the petitioners
and as such the application being on false grounds, proceedings based on it
ought to quashed. The grounds in the application are false or not, this fact
cannot be decided by this Court during this
summery proceeding under Section 482 of Cr.P.C. The truthfulness or
otherwise of the facts mentioned in the application can be decided by the
learned Magistrate after due inquiry under the procedure as prescribed by
the Act. Hence, the proceeding based on the application cannot be quashed by
this Court at this stage on these two grounds.
(C) That, as provided by Section 2(q) of the Act, such application under
Section 12 of the Act cannot be filed against the petitioners No.3 and 4 who
are the ladies. In Section 2(q) of the Act the term respondent has been
defined as under :-
(q) respondent means any adult male person who is, or has been, in a
domestic relationship with the aggrieved person and against whom the
aggrieved person has sought any relief under this act : Provided that an
aggrieved wife or female living in a relationship in the nature of a
marriage may also file a complaint against a relative of the husband or the
male partner.
Thus, it is provided by this definition that an application can be filed by
an aggrieved person including the respondent claiming relief under the Act
only against the adult male person. However, as per the proviso appended to
this provision, a wife or female living in a relationship in the nature of a
marriage may also file a complaint against a relative of the husband or the
male partner. For understanding these two parts, i.e. the main part of the
Section and the proviso, it is necessary to understand the scheme of the
Act. The first three paragraphs of the statement of object and reasons under
which the bill No.116 of 2005 for passing the act was placed before the
parliament, are as under (published in the Gazette of India Extraordinary
Part II Section 2 page 22 dated 22nd August, 2005):-
"Domestic violence is undoubtedly a human rights issue and serious deterrent
to development. The Vienna Accord of 1994 and the Beijing Declaration and
the Platform for Action (1995) have acknowledged this. The United Nations
Committee on Convention on Elimination of All Forms of Discrimination
Against Women (CEDAW) in its General Recommendation No.XII (1989) has
recommended that State parties should act to protect women against violence
of any kind especially that occurring within the family.
2.The phenomenon of domestic violence is widely prevalent but has remained
largely invisible in the public domain. Presently, where a woman is
subjected to cruelty by her husband or his relatives, it is an offence under
section 498A of the Indian Penal Code. The civil law does not however
address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights
guaranteed under articles 14, 15 and 21 of the Constitution to provide for a
remedy under the civil law which is intended to protect the woman from being
victims of domestic violence and to prevent the occurrence of domestic
violence in the society.(Emphasis supplied)
Keeping these objects and reasons in mind to provide for more effective
protection of the rights of women guaranteed under the Constitution who are
victims of violence of any kind occurring within the family and for matters
connected therewith or incidental thereto, the bill was presented before the
parliament which has become the Act after passing the same by the
parliament. Thus, it cannot be lost sight of that the Act has been passed
keeping in view the rights guaranteed under articles 14, 15 and 21 of the
Constitution to provide for a remedy under the civil law which is intended
to protect the woman from being victims of domestic violence and to prevent
the occurrence of domestic violence in the society. Thus, basically the act
has been passed to provide the civil remedy against domestic violence to the
women. However, as provided by Sections 27 and 28 of the Act, a Judicial
Magistrate of the
first class or the Metropolitan Magistrate has been empowered to grant a
protection order and other orders and to try the offence under the Act. Vide
Section 28 of the Act, it is mentioned that save as otherwise provided in
this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and
the offences under Section 31 shall be governed by the provisions of the
Code of Criminal Procedure, 1973. Vide sub-sections 3 and 4 of Section 19,
it is also provided that a Magistrate may require from the respondent to
execute a bond, with or without sureties, for preventing the commission of
domestic violence and such order shall be deemed to be an order under
Chapter VIII of the Code of Criminal Procedure, 1973 and shall be dealt with
accordingly. Chapter VIII of Cr.P.C. dealt with security for keeping peace
and for good behavior which runs from Section 106 to 124. In these Sections,
it is provided that for keeping the peace and maintaining good behavior, a
person can be directed by a Magistrate to execute a bond with or without
sureties and in case of non-compliance of such order, that person can be
detained into custody. Section 31 of the Act provides penalty for breach of
protection order passed by the Magistrate, which is punishable as an
offence. A protection order can only be passed under Section 18 of the Act.
To understand better the provisions of Sections 18 and 31 are required to be
perused, which are as under: -
Section18.The Magistrate may, after giving the aggrieved person and the
respondent an opportunity of being heard and on being prima facie satisfied
that domestic violence has taken place or is likely to take place, pass a
protection order in favour of the aggrieved person and prohibit the
respondent from-
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the
person aggrieved is a child, its school or any other place frequented by the
aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved
person, including personal, oral or written or electronic or telephonic
contact;
(e) alienating any assets, operating bank lockers or bank accounts used or
held or enjoyed by both the parties, jointly by the aggrieved person and the
respondent or singly by the respondent, including her Stridhan or any other
property held either jointly by the parties or separately by them without
the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who
give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
Section 31. (1) A breach of protection order, or of an interim protection
order, by the respondent shall be an offence under this Act and shall be
punishable with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to twenty thousand rupees,
or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried
by the Magistrate who had passed the order, the breach of which has been
alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also
frame charges under section 498-A of the Indian Penal Code or any other
provision of that Code or the Dowry Prohibition Act, 1961, as the case may
be, if the facts disclose the commission of an offence under those
provisions.
The offence under Section 31 of the Act will be cognizable and non-bailable
as provided under Section 32 of the Act.
Section 8 of the Act provides for appointment of the Protection Officer and
Section 33 of the Act provides for penalty for not discharging duty by the
Protection Officer. Despite, as mentioned in the objects and reasons that
for providing a civil remedy, this act has been enacted, the provisions of
Sections 19, 27, 28, 31 to 33 clearly mention that some of the proceedings
under the Act are of criminal nature. Under Section 19 to 22 of the Act an
order to provide residential facilities, monetary reliefs, custody order for
a child and compensation can be ordered by the Magistrate under the Act.
Except a part of Section 19 with regard to direction of execution of a bond
and dealing the same as provided under Chapter VIII of the Cr.P.C., all the
reliefs under Sections 18 to 22 appear to be of civil nature. Thus, some of
the proceedings under this Act can be said to be of civil nature and some of
the proceedings can be said to be of criminal nature.
Section 12 of the Act provides that an application (not a complaint) for
seeking one or more reliefs under the Act can be filed. On perusal of
Sections 18 to 22 of the act, it appears that the reliefs under these
sections as mentioned herein above can be passed on the application under
Section 12 of the Act. The word complaint as appeared in the definition of
respondent under Section 2(q) of the Act has not been defined anywhere in
the Act. Although it is not provided that the definition of complaint can be
considered the same as provided under the Cr.P.C. but at the same time it is
also not prohibited. In view of this, the definition of complaint can
appropriately be seen in Cr.P.C. which goes as under :-
2(d) "complaint" means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but does not
include a police report.
It is clear by this definition that a complaint as provided in Cr.P.C. can
only be for an offence. As mentioned hereinabove only two offences have been
mentioned in this Act and those are (1) under Section 31 and (2) under
Section 33. It appears that this word complaint appeared in the definition
of respondent has been used for initiating proceedings for these two
offences and an aggrieved wife or female living in a relationship in the
nature of a marriage has been given a right to file a complaint against a
relative of the husband or the male partner. This word complaint cannot be
considered beyond the scope of the main provision of this Section which has
been defined in first part of Section 2(q) that is for any relief under this
Act. As provided in Section 31 of the Act, a complaint can be filed against
a person who has not complied with a protection order or interim protection
order.
Thus, it is clear by the definition of respondent that for obtaining any
relief under this Act an application can be filed or a proceeding can be
initiated against only adult male person and on such application or under
such proceeding, aforementioned protection order can be passed. Obviously
those orders will also be passed only against the adult male person. As
provided under Section 31 of the Act, non-compliance of a protection order
or an interim protection order has been made punishable and as such it can
be said that the complaint for this offence can only be filed against such
adult male person/respondent who has not complied with the protection order.
Hence, it is clear that the application under Section 12 of the Act which
has been filed by the respondent against petitioners No.3 and 4, who are not
adult male persons, is not maintainable.
(D)The proceeding has also been assailed on the ground that before issuance
of the notice, learned Magistrate has recorded the statement of the
respondent which is not required. It is true that recording of statements as
provided under Sections 200 and 202 of Cr.P.C. is not required before
issuance of the notice because application under Section 12 of the Act is an
application and not a complaint. However, this action of the learned
Magistrate cannot be a ground for quashing the proceedings because as
provided by sub-section 2 of Section 28 of the Act, the Court/learned
Magistrate is not prevented from laying down its own procedure for disposal
of an application under Section 12 of the Act.
(E) The proceeding has also been assailed on the ground that no report from
the Protection Officer under Section 12 of the Act has been called.
Sub-section 1 of Section 12 of the Act goes as under:-
12.(1) An aggrieved person or a Protection Officer or any other person on
behalf of the aggrieved person may present an application to the Magistrate
seeking one or more reliefs under this Act: Provided that before passing any
order on such application, the Magistrate shall take into consideration any
domestic incident report received by him from the Protection Officer or the
service provider; On perusal of the aforementioned proviso appended to the
provision, it appears that before passing any order on the application, it
is obligatory on a Magistrate to take into consideration any report received
by him from the Protection Officer or the service provider. Neither it is
obligatory for a Magistrate to call such report nor it is necessary that
before issuance of notice to the petitioners it was obligatory for a
Magistrate to consider the report. The words before passing any order
provide that any final order on the application and not merely issuance of
notice to the respondent/the petitioners herein. The words any report also
mention that a report, if any, received by a Magistrate shall be considered.
Thus, at this stage if the report has not been called or has not been
considered, it cannot be a ground for quashing the proceeding.
(F) The last ground raised by the petitioners is that in the application the
relief of penalizing the petitioners has been prayed for, which is beyond
the provisions of the Act. On perusal of the last paragraph of the
application, it is prayed that after registration of the case, petitioners
be legally penalized. It is true that at this stage in the application it
was not required for the respondent to claim such relief, however, if it has
been claimed, this cannot be a ground on which the proceedings can be
quashed. At the most, such reliefs if unnecessary, can be negated.
4. Although it is not argued yet it appears appropriate to mention that any
order passed by the learned Magistrate under the Act is appealable as
provided by Section 29 of the Act. Usually when an opportunity to assail the
impugned order in revision or appeal is available, taking recourse under
Section 482 of Cr.P.C. is not required. However, it is observed by the Apex
Court in para 26 in the case of Pepsi Foods Ltd. and another Vs. Special
Judicial Magistrate and others, (1998) 5 Supreme Court Cases 749 that some
time for immediate relief Section 482 of the Code or Article 227 may have to
be resorted to, for correcting some grave errors that might be committed by
the subordinate courts. Considering the steps taken by the learned
Magistrate against the petitioners No.3 and 4, this petition has been
considered herein.
5. In view of all, as discussed hereinabove, the petition deserves to be
partly allowed. Consequently, it is partly allowed. The proceeding against
petitioners No.3 and 4 is quashed. It is directed that the learned
Magistrate will deal the application as provided under the various
provisions of the Act and as observed hereinabove.

How to write a watertight will

How to write a watertight will

* Priyamvada Birla of the Birla family willed away her property to an outsider. The Birlas have been contesting the will in court since August 2004.
* Dhirubhai Ambani built a business empire that earns Rs 75,600 crore now, but seemingly didn't leave a written will. His two sons, Mukesh and Anil, are now fighting for pieces of the empire.
* Parveen Babi, an actress who lived a solitary life towards the end, left about Rs 4 crore, but no will. Now, people claiming to be her relatives are emerging from the woodwork.



They were the rich and famous of India. Thanks to what they have or haven't passed on, the harsh glare of arc-lights on them and their near ones refuse to die down even after they have passed away. And these are some of the most famous cases that have come to light recently. Across India, as in the rest of the world, countless people across generations are fighting over what they claim to be rightfully theirs. The aftertaste of all this is usually not pleasant.

Much of this clamour and unwanted glare can be avoided by leaving a simple and clear will. Had these rich and famous left a properly laid estate plan, or a will, so many across India wouldn't have lost their sleep for so long.

The cynic among us may say that disputes and displeasures are bound to happen to these people, because the pot of gold they left behind was worth the fight. But is it only the rich, those who have a veritable fortune to give away, who attract trouble? A glance around is enough to convince us that it's not so. Even the smallest of properties are contested for. Also, wouldn't you like your near ones to be left in peace?

Some typical responses from those who aren't inclined to write a will are: "I hardly have much money to will away", or "I am not old enough to write a will". It doesn't matter how much we have or how old we are, given the realisation that we don't know when death would strike. Our parrying has to do with the way we take to death. We procrastinate, ironically bringing us closer to death before we have had a chance to set things in order.

But we, too, shall pass. A carefully drafted will will go a long way in ensuring that those who would cherish your memory do so in tranquillity and warmth. Here's a guide to making an incontrovertible will.

Making a Legal Will
The Indian Succession Act, 1925 governs wills in India. It doesn't tell you any format for preparing what would be considered a legal will. But the actual job of writing a will could be simple. It can be as short as a few words - say, "All to wife" - or you can detail it over several pages. You can write it on plain paper in the manner you want. Some are even allowed to make oral wills - Armed Forces personnel engaged in war or at sea, mariners at sea, and Muslims, who are governed by Muslim personal law.

A will must be signed or marked by a thumb impression of the testator, the person making it, and must be attested by at least two witnesses, who can later verify that the will was signed voluntarily and in their presence.
Heinrich Heine,
18th century German Romantic poet

Then there are the details you need to heed if you want to make the will watertight. Lawyers advise that the signature or thumb impression be placed in a manner that indicates that there was an intention to sign the will - in other words, that the person wasn't in any doubt about the will. If the text of the will finishes at the end of a page and the signatures are on the next page, which doesn't contain any part of the will; its sanctity can be disputed.

The selection of the witnesses, those who will have to stand by the authenticity of the will, is important. It's easier to choose a close relative or friend. But if a witness or his spouse is a beneficiary of the will, the bequest to that person will not be valid. It's also desirable to have a witness who is younger, so that he can outlive the testator. A doctor's name as a witness lends some weight.

There is no need under law to register a will. The registration of a will, by itself, doesn't make it genuine. Priyamvada Birla's will, which is registered, is still being contested in court for its authenticity, among other things. "A will without registration is of equal value [as compared to a registered one] in the eyes of the law," says Arun Khosla, a senior advocate based in Delhi. Nonetheless, registration is recommended because it confirms the legality and ensures that a safe copy is kept.

For getting a will registered, the witnesses should accompany the testator to the registrar's office. If the testator can't travel, the will can be signed at a place convenient to him. Once signed, it can be kept in the custody of the registrar. During the lifetime of the testator, nobody except him or his agent is allowed to obtain a copy of the will. After the testator's death, anyone can get a copy of the will by submitting a copy of the death certificate.

Giving What, And To Whom
You are free to make a will for all kinds of movable and immovable property owned by you. Apart from land, cash and household belongings, property could consist of investments in shares, fixed deposits, and so on. If you have a joint family property, you can bequeath only your share, not the whole of it.
Napoleon Bonaparte,
Emperor of France, 1857

Apart from tangible assets, you can also pass on things of negligible monetary value that you have cherished and would want to be preserved - say, your old vinyl records. These may be of little value for anyone else to claim a stake, but because they are of great meaning to you there is no harm in deciding their future keeper too.

Mind you, the law doesn't give you complete freedom in deciding the heirs themselves. Under the Hindu Adoption & Maintenance Act, 1956, the specified dependants of a Hindu testator are permitted to claim maintenance allowance from his property, even though his will may not bequeath anything to such dependants. So a widow, minor children, unmarried daughters and parents of the testator can claim maintenance if they aren't financially sound.

A Muslim can will away only a third of his net assets. The rest of his property has to be distributed among heirs according to rules specified by the All India Muslim Personal Law Board, which interprets religious or traditional laws for the community. However, if all the heirs agree, the one-third limit can be exceeded, and whatever is left can be distributed in favour of any of the heirs. The idea is to give all legal heirs their due rights.

Avoiding Disputes
An ambiguous or incomplete will can spell more trouble than not having a will at all. Of course, you will seek the help of your lawyer in the process. But it's for you, too, to ensure that succession should happen in the manner desired. The best way is to write the will in a simple language, leaving no scope for ambiguity. It's recommended that you write the will in a language you have always known.

In the beginning, mention clearly whether it's your first or last will, and if it's not the first, whether the previous will(s) would stand cancelled.

Lawyers say that the most common ground for contesting a will is by trying to prove that the testator was not of sound mind or in stable condition at the time of making the will. To avoid such an objection, make a clear statement that you are making a will in your normal state of mind and without any pressure from anyone. This is where a doctor, as a witness, can acknowledge your sound state of mind. The other way out is to start making a will early in life, which would make it much more difficult to prove that the testator was not of sound mind than if the will is written when he is much older.
The Morals With The Mores

You pass on to your family the wealth you have accumulated over your life, hopefully making them financially secure. But throughout your life you may have held certain values to be more sacrosanct than wealth - how will you transfer those? You may have strictly kept away from liquor and tobacco. You may have been a follower of a spiritual guru, who was a guide too. Or you may have great lessons that you learnt from the mistakes made in your life. Under law, you can't force your inheritors to subscribe to any of these views perforce. But wouldn't you like to pass on some of these values and experiences to your children or grandchildren? If you do, the ethical will is the way to go.


Ethical wills originated as a Jewish tradition around 3,000 years back. Jews used to write such wills to impart instructions of ethical and religious nature to their descendants. An excerpt from a 13th century Jewish will gives interesting insights into their traditions: "I earnestly beg my children to be tolerant and humble to all, as I was throughout my life. Should a cause for dissension present itself, be slow to accept the quarrel; seek peace and pursue it with all the vigour at your command. Even if you suffer loss thereby, forbear and forgive, for God has many ways of feeding and sustaining His creatures."

Ethical wills aren't accepted as legal documents that can be enforced. So no witness or probate is needed. It is a way to share your values, lessons, feelings, or even make confessions to family members. You would have toiled to impart the best possible education to your children, to imbibe in them your family's values, and to build a rich estate they can enjoy. Once you aren't there, the estate will go to them. But the legacy of the values and experiences that founded the property may fade from their memory. Now you know how you can keep them alive.

Then, detail every property you wish to pass on. Mention everything categorically - name of banks, branches, account numbers, fixed deposit numbers, sale deeds of immovable property like land or house, and the value of these assets (as on a particular date). We go back to the Birla will - in it, Priyamvada didn't mention the value of her legacy, but reports put it at Rs 5,000 crore. BW calculations showed that her legacy would be worth Rs 1,200 crore or so.

Often, wills are also contested on the ground that the person didn't have the property in the first place to will it away. That is, he didn't have title of ownership to the property. If this can be proved, the will would be void. So it's better to attach a copy or the proof of ownership, too.

Then define the legal heirs to whom you want to pass on. Mention what part of the estate goes to whom and in what quantity. In case one of the heirs - say, one of your two sons - gets a larger share, state why you wish to give him more. Why has been the other one deprived of your estate? Was it his misconduct that discouraged you? If the reasons are mentioned in the will, the deprived heirs will be on a weak footing if they wish to contest it in future. Besides, if there is anyone (not necessarily a blood relation) who rendered services you wish to repay through the will, do mention the name of such heirs. Under the law of succession, this kind of a relation will not be covered as a legal heir.

If no will is made, the deceased's property will be divided among the legal heirs as laid out in the Hindu Succession Act, 1956. Apart from Hindus, the Act governs Buddhists, Jains and Sikhs. The Indian Succession Act, on the other hand, governs followers of all other religions, except Islam. By any of these laws of succession, if some of the legal heirs do not object, the others can get the property in their name by proffering a no-objection certificate.

Where the stakes involved are huge, it is advisable to have more than one executor to ensure that the will is properly enforced.

One of the lesser known ways of ensuring a indisputable will is keeping a video recording of the testator making the will in presence of witnesses. It is well accepted in courts of law these days. "But it doesn't give full guarantee that it was written without undue influence. It is assumed that a sound state of mind of the testator will be visible, but the undue pressure may not be reflected in the video clipping," says Jayashree Shukla, an advocate practising with Dhir & Dhir Associates.

Lawyers warn that almost every will is contested. Indeed, property stokes a deep instinct in most humans, urging to get for themselves even what isn't deemed theirs. And the law lets them, too. "This [challenge of a will] is the lengthiest possible litigation, as it calls for so many witnesses in order to contest the will," says Arun Khosla. "And unlike other litigations, there is no moratorium as to when the will can be challenged." He cites an example where a son contested his father's will 42 years after his death.

Another case may arise. If the property you pass on to, say, your son through the will was nominated to your wife, then who gets it? On various occasions, courts have held that the nominee doesn't become the owner of the property. He or she is just entrusted with its custody. So if the legal heir is different from the nominee, then the will will have its way.

Where There's No Will
The very essence of a will is that you may not like to entrust your estate to all your family members. But if there isn't any, your estate will be distributed equally among the legal heirs according to the laws governing succession (mentioned above).
Philip Thicknesse,
Esquire, Bologne in France,1796

Your self-acquired property, as well as your share in ancestral or joint-family property, will be first divided equally among the Class I heirs. They include wife, sons, daughters, and the specified heirs of a son or daughter who has already passed away. If there are no Class I heirs, it will devolve equally upon the class II heirs - father and the grandchildren of your son or daughter.

However, even today, the laws of natural succession in India favour the male heirs over the female ones. In addition to their share in the father's share of a joint-family property, they have a direct right to such a property, while female heirs have right in their father's share only. But this may change soon. A Bill pending in Parliament seeks to amend the Act to give equal rights to female heirs.
Elizabeth Orby Hunter,
Baroness of Lincolnshire, 1813

However, succession in this way isn't always easy. There can be disputes - heirs can get relinquishment deeds (giving up their shares) signed from other heirs, and so on. Also, one needs to get a succession certificate from the court for getting the property transferred in his name. Getting a succession certificate can take long and entail charges in terms of stamp duty and court fees.

Making Changes
For various reasons, you may need to keep on updating your will from time to time. You may want to do so if you'd written the first one at a young age, or if your relations with some of the heirs has changed substantially, or there's some more property to give away. The changes can take the form of a Codicil, an appending document that can consist of minor additions, deletions or alterations to the original will. A will should be updated even if the value of the assets changes.

The Codicil, like the original will, has to be attested and executed the same way. If the original will is revoked or cancelled, it doesn't lead to an automatic revocation of the Codicil. Its sanctity would hold unless the testator intended to cancel the Codicil while cancelling the original will.

Ensuring Execution
Here comes the role of an executor, who should be mentioned as such in the will. Again, like for witnesses, an executor must be appointed with great care, because he is the person authorised to ensure that your will is carried out. Therefore, he should ideally be a trustworthy person, younger in age so that he outlives the testator.
David Davis,
angry husband in Clapham, England, 1788

The law confers on him the responsibility of being a legal representative who will collect money from the debtors of the testator, pay off his debts, and then distribute the residual property in the prescribed manner. What enables him to do so is the probate document, which is issued to the executor. This document is the copy of the will certified by court. It's important to obtain a probate, as without it, the beneficiaries cannot establish their rights to the property.

In some states you need a probate, while in the others a no-objection certificate from the legal heirs would do. The Indian Succession Act says it's necessary to obtain a probate if the case falls under the state of West Bengal or the high courts of Mumbai and Chennai. For the other states, you would need a probate if the ruling high court makes it mandatory.
John Moody ,
boot maker, to a Baronet with political aspirations, 1806

To obtain a probate, the executor has to file an application with the court. It has to mention a proof of death, that it was the last will, that he was named as executor in the will, and the amount of assets which will come in his hand. Apart from the executor's or the beneficiary's signature and their verification, one of the witnesses is also required to verify it. On receiving it, the court will ask the family members to file their objections, if any. After the objections are sorted, the probate is granted to the executor. This is the process that usually drags on and may involve substantial costs, too. Stamp duty, as a certain percentage of the total estate, has to be paid to the court. It could be a beneficiary who has to bear the costs. If the beneficiary is a minor, the person appointed as the guardian will have to bear the costs.

If an executor is not mentioned in the will, it can be sorted by an administrator appointed by the court.

Limiting Tax Burden Of Beneficiaries
A will can be made in a manner that minimises the tax incidence of the beneficiaries.

If you pass on an estate not to your heirs individually, but to a Hindu undivided family (HUF), then such a transfer will be treated separately under the tax laws. Otherwise, if the property is transferred to an individual heir, it will be taxed in his hands. Therefore, transferring some of the property to the HUF of your heirs can save on individual incidences of tax.

There's yet another way. You can create a private trust by transferring some assets to it. As a separate legal entity, under the present tax laws, its income up to Rs 50,000 would be exempt, provided the beneficiaries of the trust don't have their own taxable incomes and do not receive income from any other trust. If the beneficiary is a minor, then, too, assets can be transferred to a trust with the condition that the income from it be accumulated and given to him on coming of age. This way, the minor's income will not be taxed in the hands of the parents.

But don't break your head over how to save taxes - that, after all, isn't the main consideration when you write your will. Sudhir Malik, a Delhi-based chartered accountant, says: "Taxes shouldn't come in the way of passing on your estate in a manner you would like to." Passing it on is the first and the most important point.

The question you should ask yourself is: would you like your loved ones to run around to claim inheritance, or would you want them to inherit the fruits of your labour peacefully? If you opt for the latter, now is the time to write your will.

Question to be asked in RTI and Sample applications

RTI application for Role Play 1:
To
The PIO,
__________________________,
__________________________,
__________________________.
I had made an application for the following reason (copy of application is attached) but no satisfactory
action has been taken on my application so far.
Please provide the following information with respect to the same:
1. Please indicate the daily progress made on my application so far. i.e. when did my application
reach which officer, for how long did it stay with that officer and what did he/she do during that
period?
2. Please give the names and designations of the officials who were supposed to take action on
my application and who have not done so?
3. What action would be taken against these officials for not doing their work and for causing
harassment to the public? By when would that action be taken?
4. By when would my work be done now?
5. Please give me a list of all the applications/returns/petitions/grievances received, after my
application/return/petition/grievance was received. The list should contain the following
information:

Name of applicant/taxpayer/petitioner/aggrieved person

Receipt no

Date of application/return/petition/grievance

Date of disposal
6. Please give copy or print out of those portions of records, which contains details of receipt of
the above applications/returns/petitions/grievances
7. Please give reasons for out of turn disposal of the applications/ returns/ petitions/ grievances,
if any, which were received after me.
8. By when would vigilance enquiries be initiated in the above matter of out of turn disposal of
applications/returns/petitions/grievances, if any?
9.
I am separately depositing Rs 10 as application fee.
Yours sincerely,

############################################################################

RTI application for Role Play 2:
To
The PIO,
__________________________,
__________________________,
__________________________.
I had made an application for the following reason (copy of application is attached) but no satisfactory
action has been taken on my application so far.
Please provide the following information with respect to the same:
1. Please indicate the daily progress made on my application so far. i.e. when did my application
reach which officer, for how long did it stay with that officer and what did he/she do during that
period?
2. Please give the names and designations of the officials who were supposed to take action on
my application and who have not done so?
3. What action would be taken against these officials for not doing their work and for causing
harassment to the public? By when would that action be taken?
4. By when would my work be done now?
5. Please give me a list of all the applications/returns/petitions/grievances received, after my
application/return/petition/grievance was received. The list should contain the following
information:

Name of applicant/taxpayer/petitioner/aggrieved person

Receipt no

Date of application/return/petition/grievance

Date of disposal
6. Please give copy or print out of those portions of records, which contains details of receipt of
the above applications/returns/petitions/grievances
7. Please give reasons for out of turn disposal of the applications/ returns/ petitions/ grievances,
if any, which were received after me.
8. By when would vigilance enquiries be initiated in the above matter of out of turn disposal of
applications/returns/petitions/grievances, if any?
9.
I am separately depositing Rs 10 as application fee.
Yours sincerely,

######################################################################

RTI application for Role Play 3:
To
The PIO,
__________________________,
__________________________,
__________________________.
I had made an application for the following reason (copy of application is attached) but no satisfactory
action has been taken on my application so far.
Please provide the following information with respect to the same:
1. Please indicate the daily progress made on my application so far. i.e. when did my application
reach which officer, for how long did it stay with that officer and what did he/she do during that
period?
2. Please give the names and designations of the officials who were supposed to take action on
my application and who have not done so?
3. What action would be taken against these officials for not doing their work and for causing
harassment to the public? By when would that action be taken?
4. By when would my work be done now?
5. Please give me a list of all the applications/returns/petitions/grievances received, after my
application/return/petition/grievance was received. The list should contain the following
information:

Name of applicant/taxpayer/petitioner/aggrieved person

Receipt no

Date of application/return/petition/grievance

Date of disposal
6. Please give copy or print out of those portions of records, which contains details of receipt of
the above applications/returns/petitions/grievances
7. Please give reasons for out of turn disposal of the applications/ returns/ petitions/ grievances,
if any, which were received after me.
8. By when would vigilance enquiries be initiated in the above matter of out of turn disposal of
applications/returns/petitions/grievances, if any?
9.
I am separately depositing Rs 10 as application fee.
Yours sincerely,

#############################################################################

Annexure 1
RTI application of Nannu
To
The PIO,
Food & Supplies Department,
K Block, Vikas Bhavan,
I P Estate, New Delhi – 1
Sub: Application under Right to Information Act 2005
Dear Sir,
Please provide the following information under Right to Information Act 2005. Since I am a person
living below poverty line (copy of my earlier ration card attached as a proof that I belong to BPL
category), I am not depositing application fee:
1. I filed an application for a duplicate ration card on 27th January 2004. Please tell me the daily
progress made on my application so far. i.e. when did my application reach which officer, for how
long did it stay with that officer and what did he/she do during that period?
2. According to the rules, my card should have been made in 10 days. However, it is more than three
months now. Please give the names and designations of the officials who were supposed to take
action on my application and who have not done so?
3. What action would be taken against these officials for not doing their work and for causing
harassment to the public? By when would that action be taken?
4. By when would I get my card now?
Yours sincerely,
(Nannu)


------------------------------------------------------------------------------
E Block, Welcome Colony,
Seelampur, Delhi-93
RTI application of Mr Sharma
To
The PIO,
Regional Passport Office,
Bhikaji Cama Place,
New Delhi
Sub: Application under Right to Information Act 2005
Dear Sir,
Please provide the following information under Right to Information Act 2005:
1. I made an application for issue of a new passport (copy attached). Please tell me the daily
progress made on my application so far. i.e. when did my application reach which officer, for how
long did it stay with that officer and what did he/she do during that period?
Right to Information Workbook 2006
Contributed by NAMI INDIA- India’s Voice on Mental Health www.namiindia.com
Cartoons Contributed by Gopal
18
2. According to the rules, my passport should have been made in 45 days. However, it is more than
six months now. Please give the names and designations of the officials who were supposed to
take action on my application and who have not done so?
3. What action would be taken against these officials for not doing their work and for causing
harassment to the public? By when would that action be taken?
4. By when would I get my passport now?
I am separately depositing Rs 10 as application fee.
Yours sincerely,
(S Sharma)

Accused absconding NO Anticipatory Bail [ SC ]

SLP(Crl.)No. 1403 OF 2002
ITEM No.37 Court No. 6 SECTION II
A/N MATTER


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS


Petition(s) for Special Leave to Appeal (Crl.) No. 1403/2002

(From the judgement and order dated 21/12/2001 in CRLMA 1041/01
of the High Court of Uttaranchal at Nainital)


JAGTAR SINGH Petitioner (s)

VERSUS

SATENDRA KAUR @ BHAVANA GROVER & ORS. Respondent (s)


( With Appln(s). for stay )


Date : 02/09/2002 This Petition was called on for hearing today.


CORAM :
HON'BLE MR. JUSTICE M.B. SHAH
HON'BLE MR. JUSTICE D.M. DHARMADHIKARI



For Petitioner (s) Mr. S. Muralidhar, Adv.

For Respondent (s) Mr. Ajay Kr. Agrawal, Adv.
Mr. Mahesh Chandra, Adv.

Mr. Manmohan, Adv.
Mr. Anuvrat Sharma, Adv.
Mr. M.P. Shorawala, Adv.



UPON hearing counsel the Court made the following

O R D E R


.....L.....I....T.......T.......T.......T.......T.......T.......J....R
.SP2
Heard the learned counsel for the parties.

The order passed by the High Court appears to be
unusual one. Learned counsel for the State submits that at
present the respondents-applicants are absconding.
Normally, when the accused are absconding there is no
question of granting anticipatory or regular bail.


-2-

Admittedly, neither the High Court nor the Sessions Court
has granted anticipatory bail in this matter. Hence, it
would be open to the Investigating Officer to arrest the
respondents.

At the request of the learned counsel for the
petitioners the matter is adjounred for four weeks.
.SP1



(A.S. Bisht) (Janki Bhatia)
Court Master Court Master

CENTRAL INFORMATION COMMISSION

Block IV, 5th Floor, Old JNU Campus
New Delhi 110067

Appeal No.CIC/AT/A/2006/00074 dated 21.4.’06
Appeal No.CIC/WB/A/07/00679 dated 22.5.’07

Complainant/Appellants:
Mrs. Guninder Kaur Gill
Shri Prabhakar, DCP EOW


Respondents:
Shri Prabhakar, DCP EOW
Shri Jai Parakash APIO
Smt. Bimla Maken, ADJ

Date of Hearing: 31.07.2007
Date of Decision: 02.08.2007

Facts:
By an application of 29-12-‘05 Ms. Guninder Gill of Safdarjung Enclave,
New Delhi applied to the Additional Commissioner Police (Crime) Delhi Police
Hqrs. seeking information on 3 sets of requests:
“1. In the charge sheet submitted by the Crime Branch in the above
court the Crime Branch had taken to investigate the role of
Deutsche Bank to determine their complicity in the crime in
question and to investigate that angle further as some
discrepancies with respect to the statement of Deutsche Bank were
noted. (“Correspondence of the lawyers of Deutsche Bank with
accused BN Singhvi even after the said full and final settlement had
arrived at remain unexplained. Clarification of these points may be
sought from the bank in due course”)
Hence, under the RTI Act please inform to the undersigned:
i. Was any investigation conducted as stated in the charge
sheet to ascertain the complicity of DB?
ii. If yes, what were the results?
2. Vide the undersigned’s letter dated 20.06.05 addressed to Jt CP
(Crime), it was mentioned that the procedure in German Courts is
that the claimant or representative can also sell the claim in the
third party’s name-in this regard- the undersigned requested the
Crime Branch to re-write to Deutsche Bank to obtain the written
statement of their German HO officials on this point.
2
Hence under the RTI please inform the undersigned:
i. Was any clarification sought by the Crime Branch on this
point from Deutsche Bank German officials?
ii. If so, a certified copy of the letter and the reply of the
Deutsche Bank officials be provided.
3. As per the Indian Evidence Act, a statement of the German
officials regarding filing of a case in Germany by BN Singhvi
(accused is required to be filed in the trial court. The undersigned,
hence requested as per letter dated 22.08.05 addressed to Joint
Commissioner (Crime) to request Kanga & Co solicitors, who had
replied vide letter dated 25.04.05 on behalf of Deutsche Bank to
provide a copy of the statement of the German officers of Deutsche
Bank as they were holding.
Under the Right to Information Act please inform me:
i. Did Crime Branch write to Kanga & Co/Deutsche
Bank to obtain the statements of the German officials of
Deutsche Bank held by them?
ii. If so, a copy of the letter be certified and provided to
the undersigned.
iii. A copy of the reply of Deutsche Bank/Kanga & Co. in
this regard be certified and provided to the undersigned.
The said requests led to the following questions:
“Under the Right to Information Act, please inform the undersigned:
1. If any investigation was done by the Crime Branch with respect
to these allegations concerning Sh Rajat Singhvi and Smt Asha
Singhvi or not?
2. If yes, what was the conclusion of the investigation?
3. Certified copy of report/findings/investigation of Crime Branch
be provided.
4. Were any specimen signatures of Sh Rajat Singhvi and Smt
Asha Singhvi obtained for purposes of examination and
comparison with the fabricated documents?
5. if yes, certified copies of the same to be supplied to undersigned
including copy of the FSL expert opinion with respect to the
same.
6. The charge sheet made by the Crime Branch relies solely on
the reply of certain officials of Deutsche Bank India who have
3
clarified that they have based their reply solely on some records
provided by their Singapore Branch vide their letters dated
6.12.05 and 25.04.05.
Under the Right to Information Act, kindly inform me:
i) Did the Crime Branch send any letter of rogatory to
Deutsche Bank in Germany to obtain the answers in a
format that is legally admissible as evidence as per
the Indian Evidence Act?
ii) If yes, certified copy of the same and reply thereof be
provided to the undersigned.
iii) If not, what is the legal basis of the administrative
decision not to send the letter rogatory in terms of the
Indian Evidence Act?
iv) What is the evidential value of the statement of
Deutsche bank Mumbai officials based on records
solely of Deutsche Bank Singapore Branch with
respect to filing of a case against Deutsche Bank in
Germany? Would it be considered as “proved”,
“disproved or “unproved” as per the Indian Evidence
Act?
v) In this regard, if the crime branch has taken any legal
opinion of the Public Prosecutor, the same be
supplied.
On complaining about the role of Sh. Rajat Singhvi, son of accused
in the above crime, the undersigned had requested the Crime
Branch to seize the computer used in the office of BN Singhvi and
send it for analysis.
Under the Right to Information Act, kindly inform me if the Crime
Branch sent the hard disk of the computer used in the office of BN
Singhvi for analysis to the Forensic Science Laboratory as
requested?
i) if yes, a certified copy of the report may be provided to the
undersigned.
ii) A certified copy of the dump of the hard drive may also be
provided to ascertain if the accused, BN Singhvi engaged in any
correspondence with Deutsche Bank, their solicitors Messrs Rajah
or any third party negotiating on behalf of Deutsche Bank.
1. The undersigned vide
her letter dated 26.09.05 addressed to Jt. CP (Crime) had
requested the Crime Branch
4
To file a certified copy of the correspondence with Deutsche Bank
in the trial court to enable the complicity of Deutsche Bank to be
established.
Under the Right to Information Act-please provide with the following
information:
i) Was the correspondence with Deutsche Bank as
requested filed by the Crime Branch in the trial court?
ii) If not kindly provide the basis of the administrative
decision, not to do so.
2. Vide letter dated
21.09.04 addressed to Jt. CP (Crime), the undersigned had
mentioned that the accounts and assets of BN Singhvi be frozen.
In this regard the following information be supplied under the RTI
Act to the undersigned.
i) Whether any account and assets of BN Singhvi was frozen?
ii) If yes, details thereof.
3. Vide letter dated 16-
8-05 the undersigned had requested that the Bar Council of
Maharashtra be intimated where accused BN Singhvi is registered
as advocate vide membership No.560, to take appropriate action
against him.
4. Under RTI Act kindly
inform the undersigned:
i) Whether Bar Council of Maharashtra was intimated by the Crime
Branch or not?
ii) If yes, what action has the Bar Council of Maharashtra taken?
Certified copies of the same be provided.”
In his response of 19-1-2006 Shri Muktesh Chander stated as follows:
“It is to inform you that case FIR No. 395/2004 u/s
406/409/420/467/468/471 IPC PS Connaught Place was registered
on your complaint. After investigation of the case, charge sheet was
filed in the Hon’ble trial court of MM, Patiala House, where the case
is pending trial and is at prosecution evidence stage. The next date
of hearing in the case is fixed for 31-1-2006. The EOW has
informed that throughout the investigation of the above FIR, you
were kept informed of the developments in investigation.
5
The information/documents sought for pertaining to the above case
fall under the “Exemptions from disclosure of information. Thus,
the information/documents sought for by you cannot be provided
u/s 8 (1) (h) of the RTI Act 2005.
Against this denial you may file an appeal to the Appellate Authority
i.e. Jt. Commissioner of Police, Crime, Delhi Police Hqrs. IP Estate,
New Delhi within the stipulated time as per provisions in the above
said Act, if so desired.”
In short, the PIO has sought protection of Section 8 (1) (h) in refusing
disclosure of the information sought. Appellant Ms. Guninder Gill therefore,
moved her first appeal on 9-3-2006 before the Jt. Commissioner, Police (Crime)
PHQ New Delhi in which she has disputed that the information sought is
exempted from disclosure u/s 8 (1) (h) arguing as follows:
“Firstly the information asked for by the appellant/complainant is not
covered under this clause as investigation as per EOW is over the
moment they filed the charge-sheet in the Court, it is also not
covered under the second clause of the prosecution of offenders as
the accused is being prosecuted in the trial court where the
examination of the complainant is underway and is fixed for 31-3-
2006, for further examination and the information asked for by the
appellant/complainant would rather help the appellant to get the
accused prosecuted properly and also to ensure that the role of the
other accused persons is brought to the attention of the concerned
court.”
She also pleaded that the denial of the information sought would in fact
help the accused Shri B.N. Singhvi to “get away with the crime”.
The appellate authority Shri Ranjit Narayan, Jt. Commr. Of Police, Crime
had observed as follows:
“With regard to the investigation in respect of Shri Rajat Singhvi,
comments have already been given above. As regards seizure of
computers from the office/residence of the accused, it may be
mentioned that two computers were seized during investigation.
Hard disk of the said computers along with the questioned
writing/material were sent to GEQD, Hyderabad for comparison.
Opinion of GEQD has since been received which had
positively supported the case of Prosecution.1 The said
1 Emphasis ours
6
GEQD’s opinion and the connected records are being submitted in
the court through supplementary challan.
It has already been stated above that during investigation no
evidence to establish the complicity of the Deutsche Bank officials
in the commission of the crime was noticed.”
However, he concluded by stating as follows:
“All the details/documents sought for pertaining to the above
case cannot be provided under the exemption clause 8 (1) (h)
of the RTI Act, 2005.”
Aggrieved by this decision Ms. Gill has moved her second appeal before
us on 19-4-06 in which her prayer was as follows:
“In the light of above facts and grounds, it is, therefore, most
respectfully prayed that the order dated 21-3-06 of Shri Ranjit
Narayan, Jt. Commissioner of Police (Crime) Police Hqrs, New
Delhi may kindly be struck down and they be directed to provide the
information asked for in the enclosed application and appeal, to the
appellant/complainant at the earliest.”
In response to the appeal notice Shri Ranjit Narayan through his letter of
17-5-‘06 responded to each of the grounds of appeal, but re-asserted the
application of Section 8 (1) (h) in this case while stating that “a speaking order
was passed addressing the possible queries of the appellant vis-à-vis the
referred case.”
On this basis the appeal was heard on 8-6-06 by a double Member Bench
consisting of Information Commissioner Shri A.N. Tiwari and Information
Commissioner Prof. M.M. Ansari who in a decision notice dated 8-6-06 had
directed as follows:
“Upon hearing the arguments in the case we notice that there is a
certain lack of clarity regarding what exact information the appellant
now needs after what she has already received from the public
authority through its CPIO. The appellant may, therefore, send a
clarificatory letter to the CPIO listing the exact information she
requires. The CPIO shall process the appellant’s communication
within 10 days of its receipt as per the provisions of the RTI Act and
make a suitable response.”
7
Accordingly, in her letter of 4-8-06 Ms. Guninder Gill detailed the
information that she has sought to Shri Mukhtesh Chander, Addl. Commnr.
Crime and CPIO categorized under the following heads:
i) Hard drive
ii) Deutsche Bank
iii) Other Accused
To this she received a response from Addl. Commr. Crime and PIO in
which although some information has been given under each head, it is stated
that the GEQD, Hyderabad’s opinion, to whom the hard discs have been sent,
has been submitted in the learned Trial Court and hard discs stand deposited in
the Police Station Malkhana. However, information sought has again been
argued to be exempt u/s 8 (1) (h) of the RTI Act under all three heads. Pleading
non-compliance and therefore contempt towards orders of the Central
Information Commission by the Crime Branch of Police Hqrs. Ms. Guninder Gill
moved a further petition before us on 13-9-‘06 in which her prayer repeated the
request made in her first appeal. She followed this up with another letter of 15-
12-‘06 accusing respondents of misrepresenting the facts before the Commission
and of an effort at intimidation. In the meantime Information Commissioner Shri
A.N. Tiwari constituting the bench hearing the case reported through a note on
file on 11-6-2007 as follows:
“There is no doubt that the behavior of the appellant in this case
was offensive and contemptuous. In the absence of specific
powers of the Commission to deal with such outbursts of anger and
offensive behavior by appellants during hearings, no precise action
could be taken at that moment against the appellant, or even later.
I was not inclined to initiate any action, which would later on turn
out to be indefensible, or could even be embarrassing to the
Commission.
After careful consideration, I have decided to desist from pursuing
any action against the appellant. However, I would like to that this
appeal is better heard by another Bench, preferably a Division
Bench, on a date considered convenient to the Bench.”
Accordingly since the Chief Information Commissioner constitutes the
present Bench for Delhi Police a full bench was constituted for hearing this case
8
comprised of Chief Information Commissioner Wajahat Habibullah, Information
Commissioner Prof. M.M. Ansari and Information Commissioner Mrs. Padma
Balasubramanian.
In the meantime, we were approached by Shri Prabhakar, DCP & PIO
EOW Crime, Delhi with an appeal against the order passed by Smt. Bimla Makin,
A.D.J. in the office of District & Session Judge, Delhi and First Appellate
Authority under the RTI Act: The appellant appeared personally and he was
heard by the CIC on 5-7-07. The appellant has prayed staying of an impugned
order passed by the FAA.
In this appeal petition, the appellant had submitted as follows:
i) “Subject matter being a hard disk has been seized in
connection with a criminal case and that the trial court has
rejected giving a copy of the said hard disk.
ii) RTI application in the instant case was moved before the
Director of Prosecution and that neither the Director of
Prosecution nor the office of the District & Sessions Judge,
Delhi, are the appropriate public authorities for entertaining
the RTI application.
In regard to a similar matter, an appeal has already been
pending before the CIC which was listed for hearing today by the
Full Bench and the hearing has been adjourned at the request of
appellant Smt. Guninder Gill.”
In this case appellant has challenged the order dated 2-6-2007 passed by
Ms. Bimla Makin, 1st Appellate Authority of the office of District & Sessions Judge
under the RTI Act. The appeal was to be heard on 17-7-07 and notices to that
effect were issued to the appellant as well as to the FAA. The appellant
appeared again and produced a copy of the order passed by the FAA whereby
the appellant had been directed to appear before the SHO, PS Sarojini Nagar on
13-7-2007 for the purpose of handing over copies of the hard disc that is the
subject matter of appeal. The appellant had also submitted that if stay is not
granted, the appeal petition filed by him will be rendered infructuous.
9
Under these circumstances, the Commission was satisfied that this is a fit
case that justifies grant of a stay. Accordingly, it was ordered that the operation
of the impugned orders dated 2-6-07 and 13-7-07 passed by the FAA shall
remain stayed till the 2nd appeal submitted before this Commission is heard and
decided.
Accordingly, both the cases were clubbed for a hearing on 31-7-2007.
The case was heard by full Bench and following are present
Appellant:
Ms. Guninder Kaur Gill (observer in case No 000679)
Respondents:
Shri Prabhakar, DCP/EOW, PIO (appellant in case No 00679)
Shri Rajinder Singh Ghumman, DCP, Legal Cell (-do-)
Shri R.S. Chauhan ACP/IO, EOW Crime (-do-)
APIO, Patiala House Court
Shri Ajit Singh, APIO/Supdt, District court, Tis Hazari, Delhi
Mr. Iqbal Khan, Sr. Asstt, Tis Hazari Delhi
Shri A.K. Gupta, PIO of Director of Prosecution
Observers:
Mr. M.K. Tyagi,
Ms. Jasbir Gill
Submissions by Appellant:
Opening the argument, the appellant Ms. Guninder Gill raised strong
objection to the presence of Shri Prabhakar, DCP EOW and said that the matter
has already been decided and disposed of by the Central Information
Commission and as per the said order; the information had to be provided within
10 days of the order. The duty of the police is to assist the citizens. Appellant
had suffered a huge theft of money, information about which is contained in the
hard disk that is in the Malkhana of PS Sarojini Nagar in the form of case
property. Unless the case property is disclosed, she would not be able to get her
money.
The appellant said when the order of the appellate authority was not
complied, she had to file contempt petition. She therefore argued that PIO has a
10
personal liability and he has to appear himself rather than DCP Prabhakar EOW
or DCP (Law) PHQ appearing on his behalf.
Ms. Gill produced a copy of a note addressed by Shri Shantanu
Sen, OSD, Public Grievances to the Lieutenant Governor, Delhi addressed to the
Commissioner of Police Delhi dated 20-6-07, which concludes as follows:
“Shri R.S. Chauhan ACP declaring himself as “Crl. (Criminal)
Counsel, GNCT of Delhi” has filed a criminal writ against this order
in the Delhi High Court and obtained interim ex parte stay. He
appeared himself in the Hon’ble High Court. The State Govt.
consent in a State Appeal is sacrosanct. This prima-facie could be
misconduct and after due examination and deliberation, a report
may be sent for LG’s perusal.”
Ms Gill therefore argued that Mr. Prabhakar DCP EOW or Shri R.S.
Ghumman, DCP (Law) are not entitled to represent the State as they have no
authority to be present. They have been continuously disregarding the orders of
the Director of Prosecution as well as of the LG of Delhi. These officers having
been rejected by the High Court should not be entertained by the CIC. She
wanted them to show their vakalatnama for the appearance on behalf of the
State.
Appellant Ms. Guninder Gill said that they had submitted the report before
the trial court only after one and a half years of receiving the same. As per
section 25 Cr.P.C. once challan is filed in the court, the jurisdiction of the
investigating agency is over. The respondent opposed her application for
information before the court but the public prosecutor who represents the State
supported her application before the court. Filing of 261 pages of the hard disc
before the trial court as mentioned in the order of the Metropolitan Magistrate is
only a misstatement by respondents. The prosecution is not relying on 261
pages but on all the 3 hard discs in their entirety. The police is only being
recalcitrant saying that the prosecution is relying only on 261 pages.
11
Appellant submitted that the respondents have only on 13.3.2007 at 5 PM
rushed to the Malkhana and sent the hard discs hurriedly to Hyderabad so that
the appellant should not get copy of the hard discs. She also objected to the
respondents saying that they would place before the trial court “only documents
relevant to the case”.
Appellant submitted that on the asking of the respondents, she
approached the trial court where instead of supporting the appellant, they
opposed her. She also approached two agencies for copies of evidence at any
stage of trial under the High Court Rules. She only wanted electronic documents
of the hard discs and not printouts because in the electronic documents she
could be sure that they had not been tampered with. Appellant said that
therefore she is not asking for any case property. She is only asking for its
copies in electronic form.
Appellant submitted that the Investigating Officer (IO) before depositing
the case property in Malkhana should have taken permission of the Trial Court
for doing so. The case property is now the property of the court and not the
property of the respondents. She said that if the police wishes to keep an object
in Malkhana, it has to apply to the court for permission and the permission is
granted only on an indemnity being executed by the police to the effect that as
and when the same is required by the court, it should be produced before it.
Appellant also raised objection as to why the police have removed the
case property from Malkhana of PS Sarojini Nagar when there is order not to
move the case property from the said Malkhana.
Submissions by Respondents:
To appellant’s argument regarding orders of the OSD , LG’s office Shri
Ranjit Narain Jt Commissioner has responded through a letter of 18-7-07 in
which he has addressed each of the questions placed before Lt. Governor and
also requested Secretary to LG to look into the circumstances in which an official
reference emanating the office of LG and addressed to the Commissioner of
12
Police came into the possession of Ms. Guninder Gill, which in his view was “to
the detriment to the investigating agency and to the writ petition filed in the High
Court by the investigating agency leading to dismissal on technical grounds”.
We observed that the respondents have continuously denied information
to the appellant on the ground of 8(1) (h) of the RTI Act. Considering that the
case was initiated on the basis of an FIR filed by appellant Ms Gill, respondents
were asked to justify how 8(1) (h) applies in this case. In response respondents
submitted that the information contained in 3 hard discs and 3 cases are
registered against the same persons, B.M. Singhvi, Advocate. These properties
belonged to B.N. Singhvi. If we open the seal and disclose the information to Ms.
Guninder Gill, the only person who is going to be benefited will be the accused.
In the process, the hard disc if opened may be destroyed and can spoil the
prosecution case.
We asked the respondents that, if disclosing the contents of the hard
disc would compromise the case of the appellant, then why did they not simply
tell her so instead of denying information under 8(1) (h). Respondents submitted
that firstly, the information sought was about giving of hard disc, later it was
changed to a request for image of those hard discs. We had to send that hard
disc to Hyderabad after formulating certain questionnaires and filed the same
before the trial court.
Respondents submitted that Ms. Guninder Gill had already approached the
trial court for the same information but the trial court had rejected her request.
Prosecution relied only on 261 pages, which were report based on the
questionnaire formulated by them. Even now, they do not know what exactly is
contained in the hard disc. Ms. Guninder Gill subsequently engaged an
Advocate B.N. Singhvi who misrepresented by showing certain forged
documents and said that he was pursuing the matter in a German court and
defrauded her of huge sum of money. The said B.N. Singhvi was arrested and
has been in jail for 3 years now.
13
When asked that since the information was not held by respondents, why
did they not transfer the same to the authority that held it, respondents said that
they have no conflict with the Directorate of Prosecution but the disclosure of
information would impede the prosecution.
Respondents further submitted that the Investigating Agencies do not take
any order from the Directorate of Prosecution. In this connection, Shri Prabhakar
PIO relied on the judgment of the Supreme Court in `R. Sarala vs. T.S. Velu &
ors.’ Reported in 2000 II AD (Cr.) SC 237 which held that
“The power of the Officer-in-Charge of the police station is subject
only to the supervision of superior police officers in rank as
envisaged in Section 36 of the Criminal Procedure Code. There is
no stage during which the investigating officer is legally
obliged to take the opinion of a Public Prosecutor or any
authority, except the aforesaid superior police officer in rank.”
2
But the detailed judgment in this case also explained as follows:
“Investigation and prosecution are two different facets in the
administration of criminal justice. The role of Public Prosecutor is
inside the court, whereas investigation is outside the court.
Normally the role of Public Prosecutor commences after
investigating agency presents the case in the court on culmination
of investigation. Its exception is that Public Prosecutor may have to
deal with bail applications moved by the parties concerned at any
stage. Involving the Public Prosecutor in investigation is
unjudicious as well as pernicious in law. At any rate no
investigating agency can be compelled to seek opinion of a Public
Prosecutor under the orders of court. Here is a case wherein the
investigator officer concerned is directed by the High Court to take
back the case from the court whereas it was laid by him after
completing the investigation and he is further directed to consult the
Public Prosecutor and submit a fresh charge-sheet in tune with the
opinion of the Public Prosecutor, is such a course permissible in
law?”
Respondents submitted that they are here to help the complainant and not the
accused. They will do every thing possible within the four walls of law to help
2 Emphasis ours
14
Ms. Guninder Gill as they have already done. They have sent all the 3 hard
discs to the Hyderabad laboratory on 17.7.’06 and are waiting for their print-out.
Once they have received the printouts, they will decide what documents out of
those printouts are relevant to the case and then they will produce the same
before the trial court.
Respondents submitted that the appellant submitted her first application on
10th October, 2006. On 18th November, the then Directorate of Prosecution
treated this application under the RTI Act and asked the appellant to deposit
fees. PIO of the prosecution bifurcated the RTI request of the appellant and sent
one copy to DCP, New Delhi and another to PIO of District Courts Tis Hazari,
which cannot exercise the jurisdiction of an appellate authority over the
jurisdiction of another public authority. He said that two parallel proceedings
under the RTI Act cannot take place simultaneously at two places.
Shri Prabhakar clarified that the moment an item involved in a crime
is seized, it becomes case property. Release order for this case property
can be passed only by the trial court. This is no longer the property either
of respondent or Director of Prosecutions. Respondents further submitted
that the information asked by the appellant is contained in hard disc that is a
case property that is kept in Malkhana as documents are kept as documents in
judicial files.
Director of Prosecution was and is aware of the order of the trial court
dated 16th October, 2006. The prosecution itself knows that once a case
property is seized through seizure memo, neither the investigating Agency nor
the Prosecution is owner thereof except the trial court. The Metropolitan
Magistrate, New Delhi in his order dated 16-1-2006 has directed as follows:
“However, after hearing the submissions and going through the file
I am of the view that she is not entitled to get the certified
copies of the said Hard Discs as sought in the present
application, as she is entitled only to the documents which are
15
relied upon by the prosecution whereas the alleged Hard Disc,
recovered from the accused in some other matter, also contain
some personal information of the accused. 3 In the facts of the
case the prosecution is relying upon a set of 259 computer
generated pages technically stated as images of the in stored text
of the Hard discs recovered whose copies have already been
supplied to the complainant and thus she is not entitled to get more
than that relied upon. Moreover the apprehension of the IO that the
same may be corrupted during the whole process and it is quite
risky to de seal the same unless the same is proved by the GEQD
is justified.”
Respondents are holding this information for the trial court. The order
passed by the APIO, Patiala House, therefore, constitutes contempt of the trial
court.
Respondents submitted that APIO is not empowered to entertain RTI
applications. He is to discharge only certain responsibility in the absence of the
PIO. He himself says that he is not custodian of the case property. He therefore
has no authority to direct the case property to be given to Ms. Guninder Gill.
Respondents further reiterated that neither they nor the Directorate of
Prosecution has any power under the Cr.P.C. to decide the fate of the case
property. He wanted the prosecution to cite one single precedent where the
Directorate of Prosecution has asked the Investigating Officer to disclose case
property to the complainant.
Arguments of Prosecution Branch, Patiala House:
Mr. Khan of the Prosecution Branch, New Delhi Courts, Patiala House
submitted that the application of Ms. Guninder Gill was forwarded to them by the
Directorate of Prosecution. One copy of it was sent to PIO of District & Sessions
Court and another copy to DCP New Delhi District. It was thus sent to two
Public Authorities. He cited the provisions of Sec 6 (3) the RTI Act, whereby if
one Public Authority does not have the information sought, he forwards it to
another Public Authority who holds that information. Therefore, this Public
3 Highlighted by us
16
Authority sent the request to APIO of the Trial Court, New Delhi Courts, Patiala
House where the trial was being held. They also wrote to the Ahlmad of the
court asking him that copy of the hard disc be prepared and supplied to the
appellant. However, he did not supply the same. Instead, the Ahlmad said that
hard discs are not deposited in the court and is still lying with the Malkhana. In
this connection, Smt. Mamta Sehgal and DCP were also approached. They did
not give this information to the appellant because they did not have this
information.
APIO, Patiala House Court has not ordered disclosure but has observed that,
“In view of the above facts it is directed that a copy of this order
along with copy of application dated 12-12-2006 be sent to Ms.
Mamta Sehgal, Ld. Appellate Authority and the Ld. District &
Sessions Judge, Delhi, seeking further instructions/directions in
the matter. A copy of the order be also sent to Shri Paul, PIO, Dte.
Of Prosecution and DCP/PIO, New Delhi District for information
and further action under intimation to this office.”
PIO Directorate of Prosecution:
PIO, Directorate of Prosecution who was present in the hearing raised the
following objections on a point of law: he referred to Section 19(1) of the RTI Act
and submitted that the said section does not empower any PIO or APIO to file an
appeal before the CIC and as per the said provision, it is only the aggrieved
‘person’ who is the information seeker who can file such appeal. He further
submitted that if PIO or CPIO starts filing appeal before the CIC, the entire
purpose of RTI Act will become infructuous.
Points:
- Respondents made no submission on the maintainability of their appeal.
In fact, they were silent when the PIO, Prosecution referred to provisions
of Section 19 of the RTI Act according to which only information seeker
has the right to prefer appeal before the CIC.
- It was not specifically pleaded whether the case property can be disclosed
to the appellant.
17
- The appellant also did not make submission on vacation of stay or
compliance of the order of Smt. Bimla Maken.
The issues to be decided, inter-alia, are —
1. Whether the information sought by the appellant Ms. Guninder Gill falls
under the exclusion clause of Section 8(1) (h) of the RTI Act?
2. Whether the petition moved before us by Ms Gill is to be treated as a
further hearing of the appeal or as a contempt petition
3. Whether the CPIO, who represents a public authority has the authority u/s
19 (1) to move an appeal against the orders of an appellate authority of
another public authority?
DECISION NOTICE:
Issue No.1:
It is quite clear that this is a prosecution initiated at the behest of appellant
Ms. Guninder Gill. It is also clear that investigation has been completed and the
matter is at the stage of prosecution. The judgment cited by respondents in
support of their argument is “R. Sarla vs. T.S. Velu & Ors.” But the detailed
judgment in this case also explained as follows:
“Investigation and prosecution are two different facets in the
administration of criminal justice. The role of Public Prosecutor is
inside the court, whereas investigation is outside the court.
Normally the role of Public Prosecutor commences after
investigating agency presents the case in the court on culmination
of investigation. Its exception is that Public Prosecutor may have to
deal with bail applications moved by the parties concerned at any
stage. Involving the Public Prosecutor in investigation is
unjudicious as well as pernicious in law. At any rate no
investigating agency can be compelled to seek opinion of a
Public Prosecutor under the orders of court. Here is a case
wherein the investigation officer concerned is directed by the High
Court to take back the case from the court whereas it was laid by
him after completing the investigation and he is further directed to
consult the Public Prosecutor and submit a fresh charge-sheet in
tune with the opinion of the Public Prosecutor, is such a course
permissible in law?”
18
This decision will apply quite understandably at the investigation level, but
not at the level of prosecution. As explained by appellant in the hearing she
needs to satisfy herself that the police is not seeking to cover up for the accused
in this case as a result of suspicion having aroused for the reasons mentioned in
her petition to the LG. We can, therefore, find no grounds for respondents
denying information sought to appellant on the basis of Section 8 (1) (h)
when she herself is the initiator of the prosecution and the director of prosecution
agreeing that this is not the case. It will be clear from the above that this matter
had been referred to GEQD, Hyderabad whose report had also been received.
This was, in fact, made clear in the order of the First Appellate Authority on 21-3-
06. We find however that as admitted by respondent in the hearing they have
again sent the impugned document/discs to GEQD Hyderabad on 17-7-2007,
after the issue of stay order by us at their request. Although, Shri Prabhakar,
CPIO apologized for this contempt during the hearing this has led us to suspect
the bonafides of the Delhi Police (Crime branch) in pursuing this case.
This brings us to the argument that the documents sought are the property
of the court and moreover in light of the orders of trial court their disclosure will
amount to contempt of court. They have contested the authority of the Ahlmad in
stating that the information is not the property of the Court. Even if this argument
is accepted, in that case the request for information should have been transferred
to the trial court u/s 6 (3) (i). This has not been done. Instead respondents have
repeatedly denied access to appellant Ms Gill on the grounds of Sec 8(1) (h).
The appellate authority under RTI in the office of the trial court has
ordered disclosure on which respondents have not moved for contempt in light of
their stand that the order was passed by Judge Ms Bimla Maken as appellate
authority under RTI and not in her judicial capacity as Additional District &
Sessions Judge. They have instead moved the Hon’ble High Court where their
plea for stay has failed. We therefore see no reason to interfere in the orders of
appellate authority Additional District & Sessions Judge Ms Bimla Maken. The
19
stay order 13.7.’07 is vacated. The information sought by the appellant be
made available to her as directed by appellate authority, Office of the
District & Sessions Judge within 10 days of the date of issue of this
decision notice under intimation to us. As per 7 (6) this information will be
provided free of charge
This disposes of issue no 1.
Issue No. 2
Appellant’s case is that the Decision of 1.6.’06 by CIC was in her favour
and information was to be provided to her within ten days of the date of the
Decision of 1.6.’06. Therefore her petition is of contempt and certain individuals
present have no right to appear in a contempt petition directed against specific
individuals Shri Ranjit Narayan, Jt Commissioner (Crimes) and Shri Muktesh
Chander Additional Commissioner Police (Crimes). We have perused the order
cited which is quoted above. It only requires that the CPIO process appellant’s
communication within ten days of its receipt. That communication dated 4.8.’06
has in fact been responded to on 14.8.’06 well within the time limit postulated.
The petition has therefore been treated as an extension of appellant Ms Gill’s
appeal, and it is in that context that the hearing is held. In that context it is open
to CPIO to “seek the assistance of any other officer as he or she considers it
necessary for the proper discharge of his or her duties” [sec 5(4)]. The CPIO was
therefore within his rights to seek the assistance of those present as designated
by the Commissioner of Police by Notification XXIV/29/SPL./C&T[AC-1]PHQ
issued on 7.12.’06 read with Addendum of 19.12.’06. This issue thus stands
disposed of.
Issue No. 3
The appeal No. CIC/WB/A/2007/00679 before us stands decided in light of
the above decision. However, it raises a basic issue, which is whether a public
20
authority can appeal the decision of a PIO/Appellate Authority under the RTI Act.
We have therefore proceeded to address this issue.
Section 19(2) recognizes the right of a third party to submit an appeal
before the First Appellate Authority. Section 19(2) reads as under:
“19(2) where an appeal is preferred against an order made by a
Central Public Information Officer or a State Public
Information Officer, as the case may be, under section 11 to
disclose third party information, the appeal by the concerned
third party shall be made within thirty days from the date of
the order.”
The definition of “third party” as given under Section 2(n) includes a Public
Authority. Section 2(n) is reproduced as under:
“2(n) "third party" means a person other than the citizen making a
request for information and includes a public authority.”
. Section 2(n) is a definition clause and definition clause under the Rules of
Interpretation is one that defines a concept and insofar as that particular
enactment is concerned, the meaning is applicable to the term wherever it is
used in that enactment. Thus, the term “third party” wherever it occurs in the RTI
Act shall ipso facto include a Public Authority. Over and above the definition of
“third party” is an inclusive one, which makes it’s meaning wide and extensive.
. In this context, Section 11(1) is pertinent. Under Section 11(1), whenever
a CPIO intends to disclose an information or record —
(i) which relates to and has been treated as confidential by that
`third party’; or
(ii) which has been supplied by a third party and has been
treated as confidential by that third party
the CPIO shall give a written notice to such third party of the request and of his
intention to disclose the information.
21
. Section 19(2) confers a right on a Public Authority of preferring an appeal
before the First Appellate Authority against the decision of CPIO. Thus, if the
CPIO decides to disclose information that relates to a Public Authority and if the
Public Authority has treated the information as confidential, it can submit an
appeal before the First Appellate Authority under Section 19(2) of the RTI Act.
. The issue still remains as to whether a Public Authority can appeal against
the decision of its own CPIO. In this context, the opening words of Section 19(1)
are important. It says that any person can prefer an appeal who —
(i) does not receive a decision within time specified; or
(ii) is aggrieved by a decision of the CPIO
It may be mentioned that the word `person’ has not been defined in the Act
but it is wide enough to include a Public Authority, which is a juristic entity and as
such is a “person” in the eye of law.
The right of appeal is a legal right and is available to every aggrieved party
to a proceeding and this right cannot be taken away unless law explicitly provides
it.
Insofar as an appeal before the CIC is concerned, Section 19(3) of the Act
refers, which reads as under:
“19(3) A second appeal against the decision under sub-section (1) shall lie
within ninety days from the date on which the decision should have
been made or was actually received, with the Central Information
Commission or the State Information Commission;
Provided that the Central Information Commission or the State
Information Commission, as the case may be, may admit the
appeal after the expiry of the period of ninety days if it is satisfied
that the appellant was prevented by sufficient cause from filing the
appeal in time.”
The opening words of the sub-section makes it clear that the 2nd appeal is
against the decision passed by the First Appellate Authority and it can be
preferred by any of the aggrieved parties. Issue No 3 is so disposed of.
22
Announced on 2.8.’07. Notice of this decision be given free of cost to the
parties.
(Wajahat Habibullah) (Padma Balasubramanian)
Chief Information Commissioner Information Commissioner
2-8-2007 2-8-2007
(Prof. M. M. Ansari)
Information Commissioner
2-8-2007
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges prescribed under the Act to the CPIO of
this Commission.
(L.C.Singhi)
Addl. Registrar
3-8-2007
http://cic.gov.in/CIC-Orders/Decision_02082007_02.pdf