High Courts do not have jurisdiction over conusmer cases

                                                                                                    REPORTABLE

                                        IN THE SUPREME COURT OF INDIA
                                         CIVIL APPELLATE JURISDICTION
                                           S.L.P.(C) No.24228-24229 of 2012
                                              (CC Nos. 12891-12892 of 2012)

Cicily Kallarackal        …Petitioner

Versus

Vehicle Factory …Respondent

O R D E R
1. These special leave petitions have been filed against the impugned judgments and orders dated 16.9.2008 in Writ Appeal No. 2518 of 2007 and 17.12.2009 in Review Petition No. 380 of 2009. In order to decide the controversy it is not necessary to make the reference to the factual controversy involved herein.
The basic issue has been raised in the petitions that the Kerala High Court did not have jurisdiction to entertain the writ petition against the judgment and order passed by the National Consumer Disputes Redressal Commission (hereinafter called ‘the Commission’). The said order could be challenged only before this Court in view of the provisions of National Consumer Protection Act, 1986, thus, the order passed by the High Court impugned herein is a nullity for want of jurisdiction.

2. So far as the issue of jurisdiction is concerned, the learned counsel for the petitioner is right that the High Court had no jurisdiction to deal with the matter against the order of the Commission. However, while dealing with a similar issue this Court in Mohammad Swalleh & Ors. v. IIIrd All. District Judge, Meerut & Anr., AIR 1988 SC 94, observed:
“7. It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. (sic no appeal lay)… On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Art. 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art. 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken.” (Emphasis added)

In view of the above, it is not always necessary to set aside an order if found to have been passed by an authority/court having no jurisdiction. Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds.

3. So far as these petitions are concerned, there is an inordinate unexplained delay of 1314 days in filing the petition against the order dated 16.9.2008 and of 851 days against the order dated 17.12.2009. Cause shown for not approaching this Court within limitation is stated that petitioner was not physically fit and for some days remained in  hospital. The cause shown is not  ufficient as it was not necessary for the petitioner to come here personally.

4. This Court in Anshulal Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special courts/tribunals have been  constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the court must keep in mind the special period of limitation prescribed under the statute (s).

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.

7. While declining to interfere in the present Special Leave Petition preferred against the order passed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, we hereby make it clear that the order of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27 A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission.
A copy of this order may be sent to the Registrar General of all the High Courts, for bringing the same to the notice of Hon'ble the Chief Justices and Hon'ble Judges of the respective High Courts.


………..……………………….J.
(Dr. B.S. CHAUHAN)

……….………………………..J.
(SWATANTER KUMAR)

New Delhi,
August 6, 2012

administrative difficulties & short of human resources cannot be reason for denying information

                                                            Madras High Court
                                        W.P.NO.20372 of 2009 and M.P.NO.1 OF 2009
                                                           DATED : 07.01.2010

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

Public Information Officer/ Dy Commr of
Archives and Historical Research,
Tamil Nadu Archives, Egmore, Chennai-8. .. Petitioner

Vs.

1.State Chief Information Commissioner, TNIC,
Kamadhenu Super Market 1st Floor, Teynampet, Chennai-18.

2.-do-

3.S.Thanuskodi, M.D.
Kandamanur Zameen Wealth Developer, Madurai-625 014. .. Respondents

This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records pertaining to the order dated 4.5.2009 passed by the first respondent in Case No.2242/Enquiry/2009 and to quash the same.

For Petitioner:                Mr.R.Neelakandan, GA
For Respondents:           Mr.G.Rajagopal, SC for
M/s.G.R.Associates for  R1

                                                                              - - - -

ORDER
Heard both sides.

2.The petitioner is the Deputy Commissioner of Archives and Historical Research of Tamil Nadu Archives, Chennai. They have filed the writ petition seeking to challenge the order, dated 29.4.2009 issued by the first respondent.

3.It is seen that the third respondent claiming to be a Managing Partner of a Real Estate firm, asking for certain information from the office of the petitioner, relating to old maps, settlement records and title deeds and also the details of court of wards. On receipt of the requisition from the third respondent, the petitioner informed the Central Land Survey Office, Chepauk that they should send two staff for one month period to take over the records from the Archives. They have also stated that they should provide the District, Taluk and village numbers and a complete records, for which records are required. A copy of the letter, dated 31.10.2008 was also marked to the third respondent. Further, a letter was also sent to the Land Reforms Department, Chepauk with reference to providing settlement records, title deeds and court of wards index. They have sought for permission from the department to provide such information.

4.The Commission, after notice to the petitioner Archives and also to the Central Survey Office, held that Archives cannot refuse to furnish any information unless it is covered by Sections 8 and 9 of the Right to Information Act.

5.In the present case, the claim of the petitioner Archives was that they are only the custodian of records in terms of the Madras Secretariat Office Manual as well as Archieval Policy Resolution adopted by the State Government and approved by G.O.Ms.No.1, Education (W1) Department, dated 2.1.1990 and hence they are not bound to provide any information to any one. The policy resolution adopted by the State in paragraph No.xvii reads as follows: "(xvii)All non-confidential public records, over 30 years old transferred to the State Archives will be open to bonafide Research Scholars, subject to such exceptions and restrictions as may be found necessary by the Departments concerned in consultation with the Commissioner of Tamil Nadu Archives and Historical Research."

6.However, as rightly overruled by the first respondent, Section 22 of the RTI Act has an overriding effect. Section 22 reads as follows: "22.Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

7.Therefore, the petitioner cannot contend that the documents cannot be furnished without the concerned department's consent. To obviate this difficulty, the Commission in the impugned order had stated that in order to ascertain the concerned department's objection, the petitioner Archives must notify to those department. Such department in case of any objection should submit their objection within 10 days in the normal circumstances. However, in case of documents which are more than 20 years old, since Section 8(3) itself de-classifies those documents, there is no difficulty for the Archives to provide those documents even without consulting the concerned department.

8.Section 8(3) reads as follows:

"8(3)Subject to the provisions of clauses (a),(c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act."

9.It is this impugned order, the petitioner has chosen to challenge in the writ petition. The writ petition was admitted on 08.10.2009 and an interim stay was granted.

10.The contention raised by the petitioner was that the petitioner archives is not the owner of the documents. The archives is a very small department and cannot handle if such requests are made to them as they are maintaining approximately 65 lakhs records. They also placed reliance upon Section 6(3) of the RTI Act, wherein a transfer of request of any applicant to the concerned department can be made. It was also stated that they cannot act as a public information officer for over 45 departments of the Government. Only the parent department will know the details of the documents sought for.

11.Since the Commission under Section 8 is entitled to overrule any objection if larger public interest warrants disclosure of such information, the question of taking umbrage under the exemption clause will not arise. Any objection will have to be raised before the Commission by the Department of Archives or on notice by the archives the concerned department. Even then, the Commission can decide disclosure of such information was required in public interest. The Commission has clearly stated that the so-called owner of the document can only be like a third party and subject to provisions of Section 11 of the RTI Act and that they can forward the objections made by the concerned department.

12.In so far as documents which are more than 20 years old, Section 8(3) itself declassifies those documents. The petitioner Tamil Nadu Archives is a "public authority" within a meaning of Section 2(h) of the RTI Act. Since they are empowered to retain records, subject to provisions of Sections 8 and 11, they cannot object to the disclosure of such information. Further, the Commission has safeguarded the interests of the concerned departments as they will be put on notice by the Archives about their objection in terms of law.

13.The other objections that they are maintaining a large number of documents in respect of 45 departments and they are short of human resources cannot be raised to whittle down the citizens' right to seek information. It is for them to write to the Government to provide for additional staff depending upon the volume of requests that may be forthcoming pursuant to the RTI Act. It is purely an internal matter between the petitioner archives and the State Government. The right to information having been guaranteed by the law of Parliament, the administrative difficulties in providing information cannot be raised. Such pleas will defeat the very right of citizens to have access to information. Hence the objections raised by the petitioner cannot be countenanced by this court. The writ petition lacks in merit.

14.In the result, the writ petition will stand dismissed. No costs. Consequently, connected MP also stands dismissed.

vvk

To

1.State Chief Information Commissioner, TNIC
Kamadhenu Super Market 1st Floor, Teynampet, Chennai-18.

2. -do-

Information from non-Public Authority can be obtained directly u/s 2(J) & 2(F)

                                    CENTRAL INFORMATION COMMISSION
                                 Complaint No.CIC/WB/C/2006/00302 dated 27.12’07
                                    Right to Information Act 2005 – Section 18


Appellant:     Shri Jarnail Singh,
Respondent: Registrar, Coop. Societies, GNCT, Delhi.

Facts
By an application of 10-11-2006 Shri Jarnail Singh of Pitampura, New Delhi applied to the Registrar of Cooperative Societies (RCS) as follows:
“As per the DDA order No. F-23(23)81/Bldg. Dy. 6616 dated 9.3.92, sealing and demolition orders 4 March, 1992 by Director P.C. Jain, DDA Bldg. For LIG 24 stilt flats in parking zone of MIG-II. Please
provide me action taken report for inspection.”

In his response of 8-12-2006 Shri G.K. Singh, Asstt. Registrar (NW) SPIO has sent the following response:
“Shri Jarnail Singh applicant requested action taken report in reference DDA order No.23(23)81/Bldg Dy. No. 616 dated 9.3.92 in respect of Sealing & demolition order issued by Director P.C.Jain, DDA Building for LIG 2 stilt flats in parking zone of MIG-II. This letter is not available on the file. However, correspondence made in the file in respect of demolition unauthorized construction. The same can be inspected and obtained the copy of the same. Copy can be obtained from the Asstt. Registrar DRI/RTI after
depositing the requisite fees. However, the applicant can inspect the file as desired by him.”

Not satisfied with this response appellant Shri Jarnail Singh made his first
appeal before Addl. Registrar on 18-12-2006 wherein he specified that action
taken copy may be obtained from the Ghalib Memorial C.G.H.S. Pitampura, Delhi
office.

In his second appeal before us dated 22-12-06 Shri Jarnail Singh refers to first appeal before Addl. Registrar dated 14-12-06 at 3.00 p.m. attended by his daughter Ms. Gursharan Kaur to which he had not received a reply. His request, therefore, was as follows:
“Now my request is for justice as per my membership HIG flat in the approved list of members RCS & DDA. Society did not give G.F. flats on medical grounds please. According to DUAC Ground floor
is on the stilts. All blocks were to be constructed on stilts. Culprits allotted me illegal construction in Parking Zone, when the M.C., RCS, DDA allotted flats to non-members against the resigned members using their original membership numbers unlawfully. Under the above circumstances, you are requested to help me for
getting justice i.e. HIG flat which I had booked on becoming member while I am without proper flat after 30 years membership. They had allotted me illegal construction with the cheating intention. Concerned authorities all hidden information about wrong allotment and never took action on my representations. Matter with RCS.”

In response to the appeal notice Asstt. Registrar in his letter of 2.4.’07 had stated as follows:
“In this connection Shri Jarnail Singh was intimated that the letter is not available in the file. However, some correspondence made in the file in respect of demolition of unauthorized construction is available which can be inspected by the applicant. The applicant was also intimated that she can inspect any file including the ones she has mentioned in her application.

As regards his grievances that he has not been allotted HIG flats in the society in spite of bonafide membership No.39 and he deserved a HIG flat. In this connection it stated that Shri K. Mahesh, the then D.RCS was appointed as enquiry officer for investigating the matter. The said report has been submitted by Shri K. Mahesh vide letter No.118 dated 28-7-06. The enquiry officer concluded that:-
`On the basis of records produced and submissions made by both the sides cumulatively and collectively it is abundantly clear that it was very much in the knowledge of the complainant that he was allotted an MIG-II flats and the possession of MIG-II was handed over to him on 1-10-89 which the complainant accepted it and has since been physically occupying this flat. The question of any wrong allotment of MIG-II flat instead of HIG flat does not arise and any such claim in this regard is baseless and self-created on the basis of records produced. As the plans and designs of construction of flat No.199 was already approved by DDA, the Delhi Urban Arts Commission and the MCD and later on the basis of reports submitted by Shri C.R. Kashyap, Asstt. Registrar (E) and the society Architect M/s Cambow Associates, I have firm reasons
to believe that the poor living conditions as described by the complainant have arisen due to ill maintenance and illegal encroachments by the occupant of the house over a period of time. In fact such encroachments are not only by the complainant, but also by other flat owners. It is not for me, but for the authorities to
take note of the same and initiate appropriate action in this regard”

The report submitted by enquiry officer has been accepted by the RCS / Competent Authority. The copy of the report has already been sent to Shri Jarnail Singh for his comments. Moreover, Shri C.P.Kashyap, AR (E) was directed to inspect the premises of the society along with architect and President/Secretary of the society vide letter No. 1508 dated 15.9.06 (copy enclosed). Shri Kashyap in his report concluded that flat No. 199 allotted to Shri Jarnail Singh was poorly maintained by the occupant Shri Jarnail Singh no white wash was done for years and the draining system was found to be chocked due to non clearness of same”

A copy of the report was enclosed. The appeal was heard on 9-4-2007. The following are present:

Appellant:
Shri Jarnail Singh
Ms. Gursharan Kaur, assisting appellant

Respondents:
Shri G.K. Singh, Asstt. Registrar (NW)
Shri D.D. Sharma, Asstt. Registrar (NW)

Shri Neeraj Kumar was present as observer. Ms. Gursharan Kaur clarified with reference to the hearing of 14-12-06 before the appellate authority that this was only on the question of seeking advice of the Department about the procedure for making a first appeal, which was subsequently moved on 18-12-2006. An order has been passed by Shri Mohan Lal, Addl. Registrar on 28-12-2006, copy of which has been taken on record. Shri Mohan Lal, Addl. Registrar, and Appellate Authority has as per this order directed as follows:
“On the basis of their submissions it appears that the reply of the SPIO is specific and the grievance of the appellant can better be solved by the SPIO providing facility of inspection of the file up to 15-1-2007 to the appellant. SPIO agreed to that and if on that basis the appellant needs/requires copy of any paper available in the office of the SPIO the SPIO will provide that to him on his proper application. Decided accordingly.

While noting the proceedings Smt. Gursharan Kaur mentioned that “It is requested that kindly provide this order and action taken report from society management as earlier order of Shri V.K. Bansal, AR (NW) dated 27-1-06 letter No. F.47/163/Coop/GH/NW/249 Letter to President regarding inspection of records of the society till date not provide for inspection. It is humble request kindly provide letter and action taken report from society.

As no such order dated 27-1-06 is there on this file, this order issues with the direction to the SPIO as decided above.”

It was clarified to both the parties that allotment of HIG flats and the quality of up-keep of the flat at present occupied by appellant, which is the subject of inquiry referred to by Asstt. Registrar are not the concern of this Commission which is concerning with ensuring that information sought in this case must be
provided, if permissible under the RTI Act 2005.

                                                       DECISION NOTICE:
The key issue before us, therefore, is the question of inspection of record with regard to action taken on the directions of DDA. Asstt. Registrar and PIO Shri G.K. Singh has held that the original directions from DDA are not on their file but the file may be inspected. Nonetheless, Ms. Gursharan Kaur representing appellant Sh Jarnail Singh has argued that whereas promises have been made, no opportunity has actually been given to her for inspection of record nor has the record from the Society been obtained for inspection.

Since, the question pertains to a particular direction from the DDA which in the view of appellant had not been complied with by the office of RCS the most obvious course would have been to obtain a copy of the directions of the DDA referred to by appellant and then determine whether any follow up was required
to be taken by the office of Registrar or by the Cooperative Societies under its direction. Because of the failure in this initial stage a good deal of inconvenience has been caused to appellant.

It is possible that the Society is not a public authority as defined u/s 2 (h) of the RTI Act. However, because the information is available to the Registrar under the Delhi cooperative Societies Act, such information as is sought by Shri Jarnail Singh will be accessible to him u/s 2 (f) and 2 (j). Because this was not arranged in response to the first appeal despite first Appellate Authority having recognized this matter, these records will now be obtained by the Office of Registrar for the inspection of appellant. Now, therefore, Asstt. Registrar and PIO in the Office of RCS is directed to obtain copies of the record from the Ghalib Memorial C.G.H.S. Society and arrange an inspection by appellant and her representative on 16-4-2007 in the office of RCS at 10.00 a.m. when a representative of this Commission will also be present to ensure that such records as are held by the Society and the department with regard to the specific directions issued by DDA referred to by appellant are made available and copies of documents identified by him provided to appellant Sh Jarnail Singh or his authorized representative.

Note: It is possible that Society is not a public authority under the declaration of Section 2 (h) of the RTI Act. Because of that such information as is sought by Shri Jarnail Singh will be accessible to him u/s 2 (f) and 2 (j). Because this was not arranged in response to the first appeal despite first Appellate Authority having recognized this matter, these records will now be obtained by the Office of Registrar for the inspection of appellant.

Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
9-4-2007

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
9-4-2007

RTI Application to be transferred to appropriate Public Authority

                                CENTRAL INFORMATION COMMISSION
                             Appeal No. CIC/WB/A/2006/00365 dated 5.6.2006
                                   Right to Information Act 2005 – Section 19

Appellant: Shri Shyam Singh Thakur
Respondent: Deptt. of Science & Technology.

Facts:
Shri Shyam Singh Thakur of Shahpura, Bhopal applied to PIO, Deptt. of Science & Technology on 5.1.06 seeking the following information :
1. How many Projects on “Aapda Anusandhan” have been proposed and sanctioned, which will be getting financial assistance of the Govt. of India. Detailed information along with the name and amount be given.

2. On the basis of “Theory of uncertainty” that the simultaneous calculations of status and dynamics of nature cannot be done has been proved. No research can be scientific in absence of the mathematical principle. However, in this case if there is any principle, ‘fair use’ certificate may be given.

3. As per clause 9.2 of the Copyright and Related Rights Act of WTO within TRIPPS, ‘fair use’ has been defined. How many projects have been certified with ‘fair use’ as per the clarification of TRIPPS ?

4. If the policies at Sr. No. 2 & 3 have not been followed then all outcome of research becomes illegal. Keeping this in view why the FIR has not been registered with the police as the matter is of national security.
From the letter of Shri A.K.Barua, it is clear that by 26.12.2005 the concerned authority had full knowledge of this, yet why an FIR could not be registered, should be clarified. In response to this application vide his letter dated 3.2.06, Shri A.K.Barua, CPIO Deptt. of Science & Technology sent the following reply :
1. In reference to item No. 2 of your application, it is informed that the information asked for is not related to any theory. As far as “fair use” is concerned, it is used as per the Copyright Act of 1957, in which it has a very specific meaning. If any person uses the work of others with a copyright for educational and research purposes, it is not a violation of the original work. In all cases related to the implementation of the Copyright Act MoHRD is the nodal ministry. You are advised to contact the MoHRD in respect of item Nos. 2 & 3 of your application.
2. In light of the above, therefore, your suggestion at Sr. No. 4 does not merit any action.

Aggrieved, Shri Thakur moved a first appeal with the Jt. Secretary, Deptt. of Science & Technology on 12.4.06 stating that the information sought was in compliance with the policies of the Govt. of India of which the Deptt. of Science & Technology is a part, impediments had been placed in supply of information. In his orders of 28.3.06 Shri Sanjiv Nair, Appellate Authority and Jt. Secretary stated that whereas Shri Shyam Singh Thakur has sought information on Disaster Research on its fair use and infringement of copyright and the CPIO has stated in response that in matters concerning disaster research and copy right etc. the department had no role whatever, so the answers to the questions of appellant Shri Thakur were given as zero, in respect of questions 1 & 3, and questions 2 & 4 did not constitute information as defined in Sec 2(f).

In response to our appeal notice, issued by us on receiving the second appeal from appellant Shri Thakur on 25.5.06, Appellate Authority Shri Sanjiv Nair has responded as follows in a letter of 21.11.06:
(i) “No relief could be given to the applicant during the appeal filed against the order of the CPIO, DST because the issues raised were so generic and broad that it was difficult to pinpoint what exact information the applicant desired. For example, he had sought information on disaster research. There is no specific project/scheme, as far as information brought to my notice, about the disaster research being carried out by DST. Further, disaster research is such a vast area which encompasses early warning system, mitigation exercises and communication system. Therefore, the appeal was disallowed.
(ii) The second issue on which he wanted information was the principle of uncertainty. There is a vast field of literature on uncertainty both in the fields of science and economics, and other fields and it was difficult to comprehend what exactly could be given to him on uncertainty. The ground work in this area will have to be done by the applicant because of the vast quantity of literature that is available and, as an appellate officer; no specific direction could be issued for providing information.”

Appellant’s rejoinder to this dated 1.12.06 has been taken on file. He has stated as follows:
1. In respect of question No. 1, the Appellate Authority in his orders dated 3.2.06 and 28.3.06 informed that the Govt. of India has not been supporting any of the projects, hence the information is zero.
2. The clarification given by the Joint Secretary MoS&T in respect of the “Theory of uncertainty” violates the proposition of the “vision on the Science & Technology, Serial No. C & D” announced by the Hon’ble President of India on 25.1.06.
3. In respect of the “fair use” as defined in TRIPPS the reply is Zero. This amounts to contempt of TRIPPS by a Joint Secretary to the Govt. of India.
4. RTI is a Civil Right whereas FIR is used to curb the criminal activities of the criminals. RTI is essentially applicable to the officers/officials including the Central Information Commission.
5. Since I have filed an affidavit, I will request the Commission to arrange the replies of the respondents in the affidavit for the right of equality as is applicable to both the parties.

The appeal was heard by us on 4.12.06. Following are present:
1. Sh. Shyam Singh Thakur, appellant
2. Sh. Rakesh Bhartiya Dy.Secy. M/o Sc. & Tech.
3. Sh. Davinder Nath, Dy.Secy. Deptt. of Sc.& Tech.
4. Sh. N.K.Gupta, U.S., Deptt. of Sc. & Tech.

It was pointed out to respondents that u/s 6(3)(1) of the Act, if they receive an application requesting information which is held by another public authority, they are required to transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately on such transfer. Moreover, such transfer was to be effective in no case later than 5 days from the date of receipt of the application. The Ministry has indeed asked the applicant to approach the HRD Ministry for
information against point 2 & 3 the answer to which is are also related Q. No. 4 but it was required to transfer the case as provided in the Act.

During the hearing appellant Shri Thakur argued that as we have pointed out in relation to questions 2 & 3, so in the case at Point 1, the department is required either to answer and provide the information sought or
to transfer it to the concerned public authority. Neither has been done.

DECISION NOTICE
As agreed by appellant, the information sought against point No.1, refers to all departments of Govt. of India. If this information was not available with Dep't. of Science & Technology Shri Thakur’s application should have been referred to the concerned authority/authorities that could have provided him the information he had sought. However, we find on a simple reading of the application that the information sought seems to have been directed specifically to the department to which it is addressed. The department has, therefore, rightly stated “it has no such programme in  operation in its jurisdiction”.

With regard to Points 2 & 3, respondents have admitted that because this was a new case, they have neglected to transfer it but simply referred the appellant to the appropriate authority. Although there is no penalty u/s 6(3), in such matters, the Department is cautioned that on receiving applications of this nature of which it feels a part pertains to another public authority, this is to be transferred to the concerned public authority within 5 days of the receipt of the application. In the instant case the application is now referred to the CPIO, Ministry of Human Resources Department to provide applicant Shri Thakur the information sought by him in regard to points 2, 3 & 4 of his application.

Announced in hearing. Notice of this decision be given free of cost to the parties.

(Wajahat Habibullah)
Chief Information Commissioner
22.1.2007

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. The copy file together with the application is transferred to the Ministry of Human Resource Development for examination and
disposal within the provisions of the Right to Information Act, 2005

(L.C.Singhi)
Addl. Registrar
22.1.2007

exemption u/s 8(1) cant be applied if information is 20 yrs old

                                      CENTRAL INFORMATION COMMISSION
                                 BLOCK IV, OLD JNU CAMPUS, NEW DELHI 110067
                                                                                              Appeal No.37/ICPB/2006
                                                                                              June 26, 2006

  In the matter of Right to Information Act, 2005 – Section 19.

 Appellant:           Shri S.R. Pershad,
                                        Dy. Director of Supplies, DGS&D.

Public Authority:         Directorate General of Supplies & Disposals
                                Ms. Asha Makhijani, CPIO  &        
                                        Shri Subodha Nath Jha, DG – AA.

FACTS:
By  an  appln dt21.2.2006  to  PIO,  appellant,  an  officer  of  Indian Supply Service, presently on suspension, sought for copies of notifications  issued  by  POI  in  terms of Allocation of Business Rules  regard decentralization of purchase  & disposal  functions  of  DGS&D  authorizing  various Mins/Depts. to make their own arrangements for purchase of their  requirements  in yrs 1974, 1984, 1985, 1991 & 1999. By communication dt 7.3.2006,  CPIO  informed  appellant  that  info sought for  in respect of yrs 1974, 1984 & 1985 being related to a period beyond 20 years need not  be furnished in terms of S. 8(3) of RTI Act.  Further, since all 5 items sought  for  were  policy  matters,  they  were  not  dealt  with  in admin. of Dir. of DGS&D.   Aggrieved with  this decision,  appellant  filed an appeal before  AA on  3.4.2006. In  his  decision  dated  24.4.2006,  AA has pointed out that since Allocation of Business is notified by  President  through  Cabinet  Secretariat,  CPIO  should  have  fwd appln of  appellant  to  Cabinet Secretariat  in terms of S. 6(3) of RTI Act.   He has also further stated in his decision that since these notifications are published in Gazette of India, appellant could get copies of same from market/ libraries & these are not privy to DGS&D.

GROUNDS OF APPEAL:
2.  Stand of  DGS&D  that  info sought for  is available only  in Cabinet Secretariat is wrong.  Without initiative/involvement of DGS&D & its admin. min., on  its  own  Cabinet  Secretariat  doesn’t initiate  any proposal  for  reallocation of  business  relating to DGS&D.   Therefore,  copies  of  notifications  should  be  available  with  DGS&D  & as  such, CPIO  should  be directed to furnish same

DECISION :
3. Comments were called for from CPIO. In  a  most  cryptic  & short comments that this Commns has ever received, CPIO has intimated that in her letter  to   appellant  on  7.3.2006,  she  only  conveyed  info that she  had received from Admin of Dir Gen. of Supplies & Disposals & if  concerned Dir is able to provide any such  document to  her, same could be provided to appellant as per direction of AA

4.  In terms of RTI Act, it is responsibility of designated CPIO to furnish info sought for by a citizen, if said information is in custody of PA.  It is quite  possible  that  info sought  for  may  not  be available  with  CPIO  himself/  herself,  but  if  it  is  available  within   PA,  it  is  responsibility  of  CPIO  to  collect/gather  said  info from concerned person/section of PA & furnish same to  info seeker. In  present case, neither  CPIO nor AA has  categorically  stated  whether  copies  of  notifications  are available  within DGS&D or not.  If they are not available, a simple communication to appellant to that effect could have sufficed. Observation of  AA appellant could get copies of notifications from libraries/shops is uncalled for as in terms of RTIA, a citizen is entitled to get info from PA which is in its possession/ custody even if same is in public domain.

5. Further, PA has erred in interpreting S 8(3) of Act to state that since some of info related to period  prior to 20 yrs, same need  not  be  furnished.  S. 8(3) is part of S. 8, which deals with ‘exemption from  disclosure  of  info”. S. 8(1) specifies classes of info which are exempt from disclosure. What S. 8(3) stipulates  is that, exemption u/s 8(1) cant be applied if info sought related to a period prior to 20 yrs except those covered in S. clauses (a), (c) & (i) of sub-s.8(1). In other words, even if info sought is exempt in terms of other subclauses of sub-s.(1) of S. 8, & if same relates to period 20 yrs prior to dt. of appln., then same shall be provided.  In present case, since part of info sought, even though related to period prior to 20 yrs, relate to notifications, DGS&D is bound to furnish same, if same is available with  it. It is also stated by CPIO that info sought  relates to policy matters  not dealt with  in admin. of Dir.  What appellant seeks is only copies of notification &, therefor, question of same being related to policy matter doesn’t arise.

6.  I dispose of this appeal with the direction to CPIO to furnish copies of notifications  as  sought  for  by  appellant,  if  available within DGS&D, within  15 days of receipt of  this decision.   If not available, an affidavit to that effect should be filed before Commn & appellant should be informed accordingly within said period.

7.  Let a copy of this decision also be sent to appellant and CPIO.

Sd/-
(Padma Balasubramanian)
Information Commissioner

Authenticated true copy :

 ( Prem K. Gera )
     Registrar

Address of parties :
1.  Ms. Asha Makhijani, Central Public Information Officer, Directorate General
of Supplies & Disposal, Jeevan Tara Building, 5 Sansad Marg, New Delhi.

2.  Shri  S. R.  Pershad, GP-18, CPWD Officers Transit Hostel & Guest House,
Aliganj Colony, Lodi Road, New Delhi-110003.

Applicant address need not be personal to file RTI

                                     CENTRAL INFORMATION COMMISSION

                                                                                       No. CIC/OK/A/2006/00050

                                                                                      Dated, the 22nd August, 2006

Name of Appellant:           Shri Bibhav Kumar

                                          E-169, Shanti Marg, West Vinod Nagar, Delhi

Name of Public Authority:  University of Delhi, Delhi

                                                                  ORDER

Brief Facts:

In response to Commission’s Notice No.CIC/OK/A/2006/00050 dated 31st July, 2006 in the Bibhav Kumar Vs. PIO, Delhi University case, hearing was held on 11th August, 2006. The Commission heard explanation of Registrar, University of Delhi, for delay in supply of information to Appellant. Respondents outlined steps taken to collect info from Director, South Campus of University, about canteen as it related to SouthCampus of University. There were some glitches in implementation of RTIA which now have been ironed out. There was an apparent mis-interpretation of the provisions of Act leading to a faulty decision. The CPIO presented the University’s case file for inspection by Commission to show that there had been no malafide intention in denying information. On other hand, Appellant contended that info supplied by University about affairs of  South Campus Canteen on 13th July, 2006 was incomplete. Appellant further informed Commission that when he met Shri Hemant Singh, APIO & present PIO, he was threatened of dire consequences. He was directed to file a written complaint to Commission regarding this.

2. The matter was heard by bench of Dr. O.P. Kejariwal, ICr. Dr. A.K. Dubey presently AA in Delhi University appeared on behalf of Respondents & Appellant appeared in person.

Decision:

3. In order to study facts in depth Commission inspected file & documents submitted by University of Delhi, in exercise of powers conferred on it by clause (b) of sub-S.3 of S.18-RTIA. Commission noticed that info, in fact, was collected by Delhi University from South Campus on 28th Dec, 2005. The record also showed that a letter was sent by University to reported address of applicant on 9th January, 2006 seeking his correct address to enable University to send him reply. It was a subsequent development that Kabirs address which is NGO came into focus. PIO, in his judgement, thought that it was on behalf of Orgn., Kabir, & not on behalf of himself as an individual that applicant was seeking information and hence presumed that he was not entitled to seek info from PA. In fact, applicant would have received info he sought had it not been for confusion created by his change of address. The information was later supplied to applicant on 13th July, 2006 after Commission overruled PIO, Delhi University’s decision in its order of 3rd July, 2006

4. After considering carefully entire case & hearing Registrar, who appeared before Commission on 11th August, 2006, Commission is of opinion that PA has been earnest about the implementation of the provisions of the RTI Act and that there is no case for taking penal action against CPIO u/s 20 of RTIA. However, Commission directs CPIO, Delhi University, to supply to applicant remaining information i.e. copies of agreements etc. relating to canteen within 15 days of issue of this order. If applicant is still not satisfied with information, he can approach Commission for further orders.

5. The Commission ordered accordingly.

                                                                                               Sd/-

                                                                                   (O.P. Kejariwal)

                                                                             Information Commissioner

Authenticated true copy:

              Sd/-

      (L.C. Singhi)

Additional Registrar

Cc:

1. Shri Bibhav Kumar, E-169, Shanti Marg, West Vinod Nagar, Delhi- 110092.

2. Dr. A.K. Dubey, Registrar & Appellate Authority, University of Delhi, Delhi-110007.

3. Officer Incharge, NIC.

4. Press E Group, CIC.

Admission of dues of maintenance cant be contempt

                        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                   MISC.CIVIL APPLICATION - FOR CONTEMPT No. 1308 of 2006
                               SPECIAL CIVIL APPLICATION No. 8143 of 2005

USHABEN CHANDUBHAI RAVAT & 1 - Applicant(s)

Versus

CHANDUBHAI BHIKHUBHAI RAVAT - Opponent(s)

Appearance: MR MR PRAJAPATI for Applicant(s) : 1 - 2. MR
HARSHADRAY A DAVE for Opponent(s) : 1,

CORAM: Hon’ble Mr. Justice D.A.Mehta & Hon’ble Mr. Justice Z.K.Saiyed

Date: 27/03/2008

ORAL: ORDER (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED)

1. The applicant has preferred this application seeking initiation of contempt proceedings against the opponent and after holding the opponent guilty of deliberate and willful disobedience of order dated 18.2.2006 made in Special Civil Application No. 8143 of 2005, punish the opponent.

2. Heard the learned advocate Mr. MR Prajapati for the applicants and Mr HA Dave for the opponent.

3. Both the parties are husband and wife. Due to constant harassment, the applicant no. 1 started to live separately with opponent no. 2 and after living separately from opponent, it was difficult for the applicant no. 1 to survive with minor daughter Yuti ? applicant no. 2 herein, and therefore, applicant no. 1 has filed Special Civil Suit No. 54 of 2001 before the 5th Jt. Civil Judge(JD), Junagadh, for getting maintenance amount of 36 months under section 18 and 20 of the Hindu Adoption and Maintenance Act, which was partly allowed on 8.10.2003 against which the opponent had preferred First Appeal No. 361 of 2004 before this Court which was withdrawn on 26.10.2004. It appears that during the pendency of the First Appeal, due to non-compliance of the order dated 27.2.2004, the applicant had initiated contempt proceedings against the opponent by filing Misc. Civil Application No. 1598 of 2005 but it was rejected on 23.8.2005. That after withdrawal of the First Appeal, the applicant no. 1 has initiated execution proceedings against the opponent in the trial court by filing Special Darkhast No. 2 of 2004 and after hearing both the parties, the trial court issued attachment warrant against the opponent. Against the order of attachment warrant, the present opponent has approached this Court by filing Special Civil Application No. 8143 of 2005 and obtained stay against execution proceedings. That after hearing learned advocates of both the parties, this Court has passed an order directing the opponent to pay an amount of Rs. 1 lac to the applicant on 24.10.2005. That before granting interim relief to the applicant, this Court has invited calculations regarding amount of maintenance from both the sides and after going through the said calculation, this Court has passed the said order dated 24.10.2005. In the above Special Civil Application No. 8143 of 2005, on 18.2.2006,this Court has passed the order, which reads as under:
1.Husband, petitioner is directed to pay Rs. 6000/- between 1st to 10th date of every month. The husband is directed to pay remaining amount i.e. Rs. 5,51,754/- within one month from the date of receipt of the writ.  If the husband neglected to pay the amount, then he will have to pay 12% interest on the same.??

 4. Despite the above order passed by this Court, the present opponent has not complied with the said order, therefore, the applicant has issued legal notice to the opponent but as the opponent is alleged to have deliberately and willfully disobeyed the order of this Court dated 18.2.2006, the contempt proceedings was launched against the present opponent.

5. After hearing the learned advocates appearing for both the sides, opponent has filed the statement of the amount paid to the applicant and the amount due to be paid, on page No. 33 of this application. We have perused the said statement. In view of the statement, the applicant no. 1, who is staying at Junagadh, has sent a letter and clarified all due amount and has contended in paragraph-2 of her letter that due to unavoidable circumstances, that is, examination of her daughter, she was unable to come before this court, but if, the Court is required to hear the applicant no. 2, she is ready to come before this court.

6. We have gone through the contents of the letter of applicant no. 1 and read the reply of opponent, it appears that there is delay in complying with the order passed by this Court, but from the contentions it appears that every person has a right to utilise the provisions of law. In the present case, opponent had challenged the order of the legal fraternity and try to get some justice in her favour. The conduct of the present opponent shows that when a person is utilising the provisions of law, then, none can say that he has disobeyed the order passed by this Court. From the statement in affidavit dated 9.3.2008 produced by the opponent, it appears that he has admitted all dues but from the said admission, it cannot be said that he has committed the contempt and willful disobedience of the order of this Court.

7. From the aforesaid discussion, it appears that the goal of the applicant which is fulfilled by opponent’s statement, then there is nothing on record to say that the opponent has disobeyed the order of this Court.

8. In view of aforesaid reasons, the present application is disposed of. No order as to costs. Notice discharged.

 (D.A. MEHTA, J.)

 (Z.K. SAIYED, J.)

all documents including the correspondence between parties should decide whether there was case made out or misused

IN THE HIGH COURT OF DELHI AT NEW DELHI

Crl.M.C. No. 98 of 2006 02.03.2007

Date of Decision: March 02, 2007


Smt. Sangeeta Kalra .......Petitioner
Through : Mr. G.D. Gandhi, Advocate

Versus

State .........Respondent
Through : Ms. Richa Kapoor, Advocate.


CORAM:
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 the judgment should be reported Yes. in the Digest?

:SHIV NARAYAN DHINGRA (Oral)


1. This is a petition under Section 482 Cr. P.C. for quashing of FIR No. 518/2000, under Sections 498A/ 406/ 34 IPC.

2. Complainant in this case married petitioner's brother on 11.3.99. She lived in matrimonial home for two weeks and left the matrimonial home. She wrote a letter to her husband giving reasons of her leaving matrimonial home, which reads as under:-
? Dear Raju,
There are several other things which I wanted to tell but I could not tell you, so I have gathered courage to write the same. I have now learnt that you are a good human being and you have condoned my several draw backs. Thus, I shall always be grateful to you. Raju, like any other girl, I also had dreams, which I could not tell you but I would like to tell you the same today, so that we can understand each other better and can give happiness and love to each other. My dreams were there should be light music in my room and my partner should shower love on me and should accept me from core of his heart fully. I should be attractive and we should be able to possess each other. Raju, I know there were some mistakes on my part that I could not seduce you completely. While preparing you mentally I forgot to prepare you physically. I am sorry. Henceforth I shall make full efforts that you get satisfaction from me and not from yourself. You must be understanding what I am trying to say. Raju, the relationship of husband and wife is not only of body but it is of heart and soul as well. I understand your all problems and I shall give company to you in all times. So far as babies are concerned, we will not have babies till you do not want them and I will not make any demand from you howsoever long it may take. Raju, I am going today, you should come to my parental house to take me back if you consider that I am not a useless thing. Raju, please destroy this letter after reading it so that it does not fall into the hands of others and we become laughing matter. And lastly thank you very much for all your affection, concern, care and love ( I hope so) ? I love you very much dear and will always do so even if you accept me or not it doesn't matter?. Always your and only yours.
Summi.
Post Script. - Raju I have disturbed you for several nights and now you should sleep properly. I know if you wanted you could have forcibly established relationship with me but you left me thinking as if I was a child. I would not get better husband than you in this world. I am very lucky that I got a husband like you and I thank god for giving such a wonderful husband.?

3. This letter is undisputedly in the hands of complainant. After this letter, she never lived at the matrimonial home. This letter was written about two weeks after the marriage when she left the matrimonial home. First complaint thereafter was made to the police by her father on 24.6.1999 and in that complaint he specifically wrote that his daughter was at his home for more than three months which also shows that complainant had not lived with her husband for more than 10 days or so, since marriage had taken place on 11.3.99. In the complaint written by the father of the girl, he did not give the date of leaving of matrimonial home by his daughter and made all vague allegations without specifying any demand of dowry and any incident of cruelty. He wrote that few days after marriage of the girl, the boy, mother, father sometime accompanied by sister troubled the girl. The sister mentioned herein is the sister who was married much before the marriage of the complainant and was living in her house at New Friends Colony, which is almost 20 kilometer away from the matrimonial home of the complainant, with her husband and children. It is not alleged in this complaint or in the statement made by the girl that the sister of the boy left her matrimonial home and started living at her parental home. The sister who is married and having children, obviously has to look after her home. Thus, there was no occasion for her to live at the matrimonial home of the complainant.

4. It seems that the complainant, who left the matrimonial home due to failure of physical relationship and resultant dissatisfaction, later on thought of implicating every member of the family in an anti-dowry and cruelty case. Initially, she made vague allegations against everybody and thereafter made a supplementary statement under Section 161 Cr. P.C. supplementing her earlier statement. In the supplementary statement it is stated that her father spent more than Rs. 22,00,000/- on her marriage while there was no such claim made by her father even in his own complaint made to the police on 24.6.1999.

5. It is true that while considering the quashing of criminal proceedings under Section 482 Cr. P.C, the Court should not embark upon an enquiry into the truthfulness of the allegations made by complainant but where the charges are framed by the lower court without considering the material, with closed mind and charges amount to gross misuse of criminal justice system and trial is an abuse, it becomes the duty of the High Court to intervene in such cases, under section 482 Cr. P.C so that there is no miscarriage of justice and faith of people remains intact in the judicial system. In this case, charges have been framed against the petitioner, sister of the husband, without their being an iota of evidence of any cruelty or entrustment of any property by the complainant in the intial complaint or in the later complaint. Even in subsequent complaint made by the complainant herself there are no specific allegations and only vague allegations are there involving every family member.

5. In G. Sagar Suri V. State of UP (2000) 2 SCC 636, Supreme Court observed that criminal proceedings should not be allowed to be resorted to as a short cut to settle the score. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. Jurisdiction under Section 482 Cr. P.C has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 Cr.P.C or Article 227 of the Constitution of India. In M/s Indian Oil Corporation Vs. NEPC Indian Limited (2006) 7 Scale 286 Supreme Court deprecated the tendency of using criminal justice system as a tool for arms twisting and to settle the score and laid down that High court can intervene where the criminal justice system is used as a tool.

6. In Ramesh and Others Vs. State of Tamil Nadu 2005 CRI.L.J 1732 in a similar case the married sister of husband living at her matrimonial home was roped in under Section 498-A/ 406 IPC. In that case she had stayed at her parents house, for some days. In the present case, there are no allegations that petitioner stayed at her parents house even for one day after the marriage. Allegations against the petitioner in that case were that she directed complainant to wash W.C and sometimes made some imputations against her. Supreme Court observed that all these do not amount to harassment with a view to coercising informant or her relations to meet an unlawful demand. In the present case the complainant left house after leaving a letter to her husband giving reasons of leaving the matrimonial home. However, she turned colour after she started living at her parental house. She who showered praises on her husband for his understanding, love and affection, without living with him a day further, suddenly made allegations of dowry demand and cruelty and used language which is not used by the civilized persons. In her complaint she used abusive language for her father-in-law like 'kameena' and 'zaleel' etc. Simultaneously she claimed that she belonged to a well educated family.

7. I consider that while framing charges, the Trial Court must take into account the entirety of the case, all documents which are brought to its notice including the correspondence between the parties and thereafter should decide whether there was case made out or the court was being used as a tool. I consider it is a fit case where criminal proceedings against the petitioner be quashed. I, therefore, hereby quash criminal proceedings against the petitioner under sections 498A/406/34 IPC, in FIR No.518/2000 Police Station Shalimar Bagh, Delhi. Dasti.

Petition stands disposed of.


March 02 , 2007 SHIV NARAYAN DHINGRA,.

498a quashed when criminal justice system is misused as tool to settle scores

                             IN THE HIGH COURT OF DELHI AT NEW DELHI
                           W.P.(Crl.) No. 1217/2007 and Crl.M.A.No. 10498/2007
                                                 Reserved on: 17.9.2007
                                              Date of Decision: 09.10.2007

Harvinder Singh Khurana and Ors. .......Petitioners
Through : Mr. Atul Sharma, and Mr. Raghunath Menon, Advocates

Versus

$ The State (NCT of Delhi) and Anr. ........ Respondents
Through : Ms. Mukta Gupta, and Ms. Rajdipa Behura, Adovates

CORAM: 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 the judgment should be reported Yes.

JUDGMENT
This petition under Article 226 r/w Section 482 Cr.P.C. for quashing of FIR No. 1198/06 U/s 498A/406/34 IPC registered at PS Lajpat Nagar filed by respondent no.2 against three petitioners. Petitioner no.1 is husband of respondent no. 2 and while petitioners no.2 and 3 are jeth and jethani (brother-in-law and his wife) of respondent no. 2.

2. The petitioner no. 1 was married to respondent no. 2 on 19thJuly, 1992. They have two children. A perusal of FIR shows that the complainant/respondent no. 2 made allegations in FIR that at the time of marriage her parents had given dowry but the petitioners were not satisfied with the dowry given and she was taunted that the dowry articles were not up to the mark. The elder brother of her husband Parvinder Singh Khurana and his wife played a leading role in causing harassment, humiliation to the respondent no. 2by describing the dowry articles as sub-standard and insufficient as a result that the relations between her and her husband were strained and never cordial. She was also asked to bring Rs. 2 Lac from her parents for enhancement of their business, which demand could not be fulfilled. She continued to live with the petitioner hoping that happy days may come and good sense may prevail upon but it did not happen. She made specific allegations against her husband in the FIR in the following terms: That the husband of the applicant Sh. Harvinder Singh has been indulging in bad habits like drinking, womanizing etc. The applicant also made her best efforts that he should leave his bad habits but all in vain. He is daily drinker and some time, he come to house at objectionable hours in the dead night and dead drink on being objected by the applicant, he always created rowdy scenes even annoy the neighborers and to the applicant. He is in habit of hurling filthy abuses and he is also in the habit of beating physically to the applicant and thereby caused physical and mental tortures. It has been learnt by the applicant that the husband of the applicant also keeps a concubine and reside with her at Panipat. The applicant has been subjected to cruelties to extent that he has created serious horror in her mind and she has a serious apprehension to her life. She further made allegations in the FIR in following terms: He stopped Taxi and brought out can of petrol etc. and he wanted to throw petrol etc. over applicant but fortunately, the parents of applicant helped her in getting her inside the door and bolted. He tried to throw petrol and some petrol poured on her clothes. When he failed in his attempt, then out of frustration, he poured petrol himself and lit himself. As result of that he sustained burn injuries and he was removed by police who had come immediately at spot and he was admitted to Civil Hospital, Anandpur Sahib but later on he was shifted to P.G.I. Chandigarh. The entire expenses were borne by the father of applicant. Later on, his family members came at the Chandigarh Hospital and he tried to blame parents of applicant. However, police registered a case u/s 309 IPC at PS Anandpur Sahib vide FIRNo. 75/01 dated 22.8.2001.

3. It is undisputed that respondent no. 2 had also filed a petition U/s 10 of HMA for judicial separation from her husband. Copy of this petition being HMA No. 2/2003 is placed on record. In this petition, respondent no. 2 stated that relations between her and her husband became strained after about 2 years of marriage, however, dispute between respondent no. 2 and her husband was amicably settled by mother-in-law. After death of mother-in-law her husband again started teasing and maltreating her on flimsy matter specially after consuming liquor and started beating her and threw her out of matrimonial home along with her daughter. There was intervention of relatives and she was sent to her matrimonial home on assurance of her husband that he would behave properly. Even after that, behavior of her husband did not improve and he gave threats to burn her forcibly by pouring kerosene oil. She went to her parents' house and narrated about these threats to her parents. Again matter was got resolved and petitioner no. 1 again promised not to drink liquor in future, not to misbehave and give threats and respondent no. 2 joined his company. However, maltreatment of respondent no. 2 at hands of petitioner no. 1 continued and his threats also continued with result that she had to leave company of petitioner no. 1 along with children on 24th May, 2001. She got a job of teacher in Anandpur Sahib and got admitted her children there and she started living there since May, 2001.

4. Nothing is stated by respondent no. 2 in her petition U/s 10 about any dowry demand made by any of petitioners or any cruelty perpetuated on her by petitioners no. 2 and 3 or any role played by them. A perusal of petition would show that since 1994 respondent no. 2 and petitioner have been living separately; first they lived at G-1 Railway Colony Shahdara, then they lived at Sector 13, Rohini and then they lived at Karol Bagh. Petitioner no. 2 and 3 had not been living with them since 1994 when they shifted to Rohini. Respondent no. 2 had also filed an FIR at District Ropar on22.8.2001 in respect of incident of pouring petrol on petitioner no. 1 on himself and in that FIR she gave following account: I was married to Harvinder Singh Khurana @ Goldi son of Sh. Kulwant Singh Khurana respondent of 14/1076, Naiwalan Karol Bagh, New Delhi on 19th July,1992. My husband is running a shop of spare parts of Maruti. My husband daily use to harass me after taking liquor after my marriage. I inform same to my parents, my parents tried to convince to him, but he did not understood. Resulting which I along with my children came to Anandpur Sahib to my parents from Delhi in month of May 2001. I am working as private teacher in Mata Sahib Kaur academy school, Anandpur Sahib. My two children are studying here. My husband so many time told me on phone I shall brought back my children, incase you did not give children to me, I shall make suicide before you. On21.8.2001, I along with my children went to Mata Sahib Kaur Academcy Anandpur Sahib for teaching, then my husband came to academy in my class where I was teaching to children, I told him it is not permitted to come in school, you can talk me outside school gate after school time. After holiday return back to my house along with children through school bus. It was 4, 'O'clock from leaving bus near my house gate my husband was coming towards behind me who was having can in his hand who told me that children be handed over to him failing which I shall throw kerosene oil upon myself and set fire, I told him that I shall not permit children to go with you in this condition, then in my presence he poured kerosene oil upon him and set fire through match sticking front of me.

5.After the incident of burning of petitioner no. 1 petitioner no. 1 moved Punjab and Haryana High Court making allegations that he was set on fire by his in-laws and he had not made attempt to commit suicide. Punjab and Haryana High Court vide order dated 24.1.2002 gave directions to the SHO of PS Anandpur Sahib to investigate/inquire into the version given by petitioner no.1, as contained in his statement made to judicial magistrate and take further action according to law.

6. It is obvious that present FIR is contrary to earlier complainants by respondent no. 2 to Courts. The allegations made in present FIR in respect of her harassment by petitioners no. 2 and 3 for dowry or taunting for dowry do not stand anywhere. She has been living separate with her husband since 1994.In her complaint she stated that her husband was a drunkard and womanizer and maltreating her because of his drinking habits. Her husband attempted to commit suicide in her presence when she refused to handover children to him. It was not her case that her husband tried to pour kerosene oil on her as alleged in present FIR.

7. Although this Court must be loath in quashing FIR and FIR should be quashed in rarest of rare cases. FIRs can be quashed only in those cases where either the criminal justice system is being put to gross misuse and issued as a tool to settle the scores by making such allegations which can stand even the initial scrutiny by the Court and are made malafidely or in those circumstances where, if all facts are considered as true, still no commission of a offence is revealed. In the present case, the respondent no. 2/complainant was living separate from her husband since May, 2001. She was living at Anandpur Sahib and alleged incident of attempt to commit suicide took place in Aug ‘2001 and is being investigated there. Her husband lodged a complaint that it was not an attempt to suicide but it was an attempt to killing. During pendency of these complaints she filed a petitioner U/s 10 of HMA for judicial separation from her husband, her husband filed a petition under Section U/s 9 of HMA. In none of these complaints or petitions there was even a talk of harassment for dowry or involvement of any other family member in the dispute between husband and wife. Suddenly in 2006when she filed this FIR she implicated elder brother and his wife in this FIR making allegations of dowry demands, despite fact that they were living separate from them since 1994.

8. It is apparent that this FIR was a gross misuse of criminal justice system. Respondent no. 2 in order to settle the score with her husband implicated other family members for dowry harassment while there was no complaint prior to that and she was married to petitioner no. 1 for about 14years before lodging of this complaint and had two children. Her main allegation even in FIR are against her husband, who has been stated to be a drunkard and womanizer. I consider that FIR lodged by the respondent no. 2against petitioners no. 2 and 3 regarding her harassment for dowry or taunting is a malafide and needs to be quashed. I, therefore allow this petition and criminal proceedings arising out of FIR No. 1198/2006 PS Lajpat Nagar in respect of petitioners no. 2 and 3 are hereby quashed. As far as petitioner no. 1 is concerned, serious allegations of cruelties being perpetuated by him from thevery beginning of his marriage are stated in the FIR against him and the police shall investigate the crime vis-a-vis petitioner no. 1.
The writ petition stands disposed of with above directions.

SHIV NARAYAN DHINGRA,J
October 09, 2007 .

Criminal law (498a) can not be allowed to be used to settle the personal scores

                                      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                         W.P.(Crl.) No. 957/2003
                                                         Reserved on: 22.08.2007
                                                     Date of Decision: 12.09.2007

Kanchan Gulati and Anr. .....Petitioners
Through: Mr. S.S.Gandhi, Sr.Advocate
with Mr. Vishal Gosain, Advocate

Versus

The State and Ors. . ......Respondents
Through : Ms. Mukta Gupta, Advocate for State
Mr. Rahul Goyal, Advocate for R-4

CORAM:
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 the judgment should be reported Yes. in the Digest?

JUDGMENT
This writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been made for quashing of FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi. Petitioners are mother and brother of the former husband of the complainant (ex mother-in-law and brother-in-law of the complainant) .

2. In the FIR, complainant stated that she was married to Anuranjan Gultai R/0 3245, N. oakland Avenue Milwaukee, WI 43211, USA on 13.08.1993 at New Delhi. In marriage, her parents spent Rs.2.5 lac for expenses towards reception of guests, gave various articles and gifts worth Rs.1,46,000/ – and an amount of Rs.4500/- was paid to Anuranjan Gulati by cheque. Anuranjan Gulati was a computer engineer working in USA. Marriage took place in Jai Krishna temple at Pitampura. Her parents paid for her ticket to USA at the time when she left for USA to join her husband. Her precious and heavy jewellery were kept in India by her mother-in-law and brother-in-law. She went to USA however, the attitude of her husband in USA was not good towards her and he started harassing her physically and mentally.

3. On 06.5.1997 her husband filed a divorce petition in the Circuit Court of USA. She contested the divorce petition which was later withdrawn by her husband on 03.6.1998. Her husband shifted his residence from Lake County and on 31.8.1998, he filed another petition for divorce in the Circuit Court, Lake Country, Illinois, USA. She hired services Of another lawyer and contested the divorce petition to her might. However, vide order dated 31.3.1999 divorce petition was allowed and marriage was dissolved. In the order, the Court asked for exchange of dowry and other articles etc. but the same were not returned to her either by her ex-husband or by her mother-in-law or brother-in-law. She approached the Appellate Court in USA and challenged the decree of the Trial Court.  The appeal was dismissed. She alleged that she could not pursue the legal remedy in USA properly due to financial constraints. She came back to India on 31.7.2002 thereafter, she lodged this FIR on 1.6.2003.

4. Quashing of this FIR has been prayed for by the petitioners. It is argued by the counsel for petitioners that no offence has been committed by any of the petitioners. There are no allegations of cruelty against the petitioners. The complainant, after marriage left for USA and all along lived in USA till July, 2002. Even after July, 2002 she had not stayed with the petitioners even for a single day and there was no occasion for petitioners to harass her for dowry and perpetuate any cruelty. Complainant had left behind some jewellery articles and as per decree of divorce, which case was duly contested by the complainant, both the parties were to exchange certain articles. The ex-husband of the complainant had been all along writing to the complainant to take back those articles, but the complainant instead of taking back articles, lodged this FIR.

5. The complainant has not disputed about her contesting divorce petition and filing an appeal before the US Court. The orders of the US Court have been placed on record. The decree passed by the USA Court has not been challenged. The order of the US Court shows that the complainant had taken up all grounds like withholding her property, dowry etc. by her husband. The US Court directed the parties to exchange articles and passed following order:
A. That the bonds of matrimony now existing between the petitioner, ANURANJAN GULATI and the Respondent, ANUJA GULATI be and are hereby dissolved pursuant to Statute. That said dissolution is granted to both Petitioner and Respondent.

B. That the marital home located at 1258 S. Pleasant Hill Gate, Wakegan, Illinois has been sold and will close on or about March 31, 1999. That the net sales proceeds after paying all costs of sale and deb(s) on the home shall be equally divided between the parties. That any deficit from the sale shall be paid from the 3 Com Corp Stock owned by the parties.

C. That each party shall receive his or her own vehicles and each shall execute any documents necessary to transfer the title of the vehicle to the other.

D. That each party shall receive his or her own personal property currently in his or her possession. That the Husband shall receive the following personal property as his sole property which shall be delivered to him by the Wife on March 21, 1999: Sharp TV Bed (with frame, and box spring), Sharp Microwave,Small fridge,Cooking Utensils and accessories,Spices,Square side table (brown, wood),3 Chairs ( wood frame and brown leather seat),Dining Table and Chairs,2 Chairs (steel frame, leather seat),Glass top tables Comforter from aunt,Utensils, spices and other stuff from my relatives.

E. That the 433 shares of 3 Com Corp stock of the parties shall be equally divided between the parties. That a party may sell his or her shares or divide the stock in kind.

F. That the Husband shall receive his stock options as his sole property.

G. That the Oakmark IRA of the Husband which has a value of approximately $3889.00 shall be
equally divided between the parties by a Qualified Domestic Relations Order if such is needed by Oakmark.

H. That each party is barred from any maintenance from the other.

I. That the Wife and Husband shall equally divide the 3 Com Corporation 401 (k) plan acquired during the marriage. That the Wife’s interest in the pension shall be evidenced by a Qualified Domestic Relations Order to be entered in these proceedings.

J. That the parties shall exchange their dowry items within 60 days of the entry of this Judgment for Dissolution of marriage. The Wife Shall give to the Husband all the items on the attached list: One gold chain with pendant,One gold ?krishna murti? pendant with diamonds.,One diamond ring,one pair of big earrings (mina wale),2 pair of earrings,one gold ring ( given on Kwar-dhoti),one pair of silver paizeb,one long mangal-sutra (mina wala),Bangles One (1) Golden Challa (sister-in-law).
The Husband shall give to the Wife all items on the attached list: One Navrattan set (1 necklace, 1 bracelet, 3 earrings with strings),One Sitarami Necklace (Necklace only) One Gold Chain given to me,One Gold and Diamond engagement ring,One Gold wedding band,One Gold coin (guenea),One Double gold chain given to my mother One Gold chain given to my sister-in-law,Two gold rings (1 for my father, 1 for my brother),Two silver trays (rectangular),One silver tray (circular),One silver small bowl (katori),One wedding saree,One luggage carrier (foldable cart),Check book for bank account in Anuja’s name.

6. The appellate order passed by the appeal court would show that appeal was not dismissed because the appellant had not been able to engage advocate, as claimed, but it was dismissed on technical ground, since the appeal was filed beyond the period of limitation and without fulfilling the necessary requirements. After passing of the orders by the USA Court granting divorce and exchange of dowry articles, the husband had been writing to the complainant for exchange of articles and taking back all her articles, but the complainant had not received these articles deliberately; the letters written by the husband are on record.

7. Quashing of FIR in exercise of writ jurisdiction is a discretion of the Court. The Court should exercise discretion in rarest of rare case, where the circumstances and the facts reveal that, even if, all the allegations made in the FIR considered as true, no offence is made out. In the present case, the complainant had all along lived in USA. She had left India immediately after her marriage. There are no allegations of cruelty or breach of trust during this period. The allegations are that her father spent money in marriage beyond his capacity. This does not amount to a dowry demand. If her jewellery or other articles were left behind in India with mother-in-law or brother-in-law, a court of competent jurisdiction has passed an order in respect of these dowry articles and directed the parties for exchange of those articles. The decree passed by the court of USA has not been challenged by the complainant. She herself submitted to the jurisdiction of the USA
Court and contested the case. She was living, at the time of contesting, the case in USA and continued to live in USA even after passing of decree till 2002. She even preferred an appeal, which was dismissed. Thus, it is not a case where decree was obtained by her husband clandestinely or she had not submitted to the jurisdiction of the US Court or the US Court had no jurisdiction. Once a competent Court has passed an order in respect of return or exchange of articles including dowry articles, no offence under Section 406 IPC can be tried for the same articles in India.

8. I consider that it is a rarest of rare case, where the Court should exercise its discretion. Criminal law can not be allowed to be used to settle the personal scores neither the Courts can be allowed to be used as tools. The complainant, who lost her divorce case in USA and was in USA all along from 1997 till 2002 and had not stayed with the petitioners, even for a single day. She lodged this FIR only to settle her personal scores. I, therefore, allow this petition. The FIR No. 277/2003 under Section 498A/406 IPC registered at Police Station New Friends Colony, Delhi is hereby quashed.

September 12, 2007 SHIV NARAYAN DHINGRA,J

Parents/Accused staying separately - quashed

                         IN THE HIGH COURT OF KARNATAKA AT BANGALORE
                                 DATED THIS THE 7th DAY OF FEBRUARY 2008
                       BEFORE   THE HON’BLE Dr. JUSTICE K. BHAKTHAVATSALA
                                            CRIMINAL PETITION No. 1289/2006

BETWEEN:

1. Shivakumar Shetty,
S/o. T. Vittal Shetty, Major,

2. Balasubramnya Shetty,
S/o. T. Vittal Shetty, Major,

3. Sri. Jeenendra Shetty,
S/o. T. Vittal Shetty, Major,

4. Niranjan Shetty
S/o. T. Vittal Shetty, Major,

5. Shalika Shetty
W/o. Niranjan Shetty  Major,

A1 – A5 are R/o. ‘Sri Vasuki’,
Manial-Perampalli Road,
Ambagilu, Santhekatte Post,  Udupi Taluk.

6. T. Vittal Shetty,
S/o. late Thimmappa Shetty, Major,

7. Savithri Shetty,
W/o. Vittal Shetty,

A6 – A7 are R/o. ‘Vishwaroopa’,
Parapu, Nakre Road,
Karkala Taluk, Udupi Dist.

8. Geetha Shetty,
W/o. Sampathkumar Shetty, Major,
Occ: Veterinary Inspector,
Kalya, Kaup Post,
Udupi Taluk & Dist.

9. Sampathkumar Shetty
S/o. Mr.Shetty Major,
Occ: Veterinary Inspector,
Kalya, Kaup Post,
Udupi Taluk & Dist.

10. Mohini Shetty,
D/o. Gulabi Shetty, Major,
R/o. Kotwalaguttu,
Uliyargoli Post,
Udupi Taluk & Dist.

11. Kum. Rohitha Shetty,
D/o Amba Shetty, Major,
R/o. Adve, Nandikur via
Padubidri Post, Palimaru,
Udupi Taluk & Dist.,

At present residing at

“Sri Vasuki:,
Manipel-Perampalli Road, Ambagilu,
Santhekatte Post, Udupi Taluk & Dist. …PETITIONERS

 (By Sri. P. Prasanna Kumar, Adv.)

- AND-

1. Smt. Anusuya,
W/o. Shivakumar Shetty, Major,
Occ: Service,
C/o. Rajashekar,
Shiva Padma Compound,
N.H.No. 17, Kundapura-576 201.

2. The State of Karnataka,
By Udupi Town Police Station, Udupi,
Rep. by the SPP,
High Court Building,
Bangalore-560 001. …RESPONDENTS
(By Sri. A. Ramakrishna, HCGP for R-2,

 Sri.A.Anand Shetty &

 Sri.N.Rajashekar, Advs. For R-1)

This Criminal Petition is filed under Section 482 Cr.P.C.,   praying to set aside the order dt.28.1.06 passed in Cr.RP No.70/05 on the file of the S.J, Udupi, thereby dismissing the  revision petition filed by the petro, & confirming the order  dt.20.7.05 in C.C.No.5043/02 on the file of the Addl.C.J (Jr.Dn) &  JMFC, Udupi & quash the entire proceedings pending thereon. This Criminal Petition coming on for admission, this day, the  Court made the following:-

ORDER

The petitioners/Accused Nos.1 to 11 in C.C.No.5043/2002  on the file of JMFC at Udupi, are before this Court under Section  482 of Cr.P.C., praying for quashing the proceedings for the offence under Sections 323, 406, 498(A), 504 and 506(2) read with Section 34 of IPC and under Sections 3, 4 and 6(A) of Dowry Prohibition Act.

2. Heard arguments for final disposal.

3. The brief facts of the case leading to the filing of thepetition may be stated as under;The Respondent No.1/complainant filed a private complaintin P.C.R.No.716/2000 on the file of JMFC at Udupi, alleging that the accused have committed offence under Sections 323, 406, 498(A), 504, 506(2) read with Section 34 of IPC and under Sections 3, 4 and 6(A) of the Dowry Prohibition Act.  The learned Magistrate referred the matter for investigation and report under Section 156(3) of Cr.P.C.  The police, after investigation, laid charge-sheet against Accused No.1/husband, Accused No.3/brother of theAccused N.1 and Accused No.11/distant relative of Accused N. 1for the offence under Section 498(A). As against that report, thecomplainant filed a protest petition. The learned Magistrate, againreferred the matter to Dy.S.P for further investigation. The Dy.S.Palso, after investigation, filed a report stating that the reportalready filed is correct. But the learned Magistrate, after perusingthe protest petition, taken cognizance for the offence underSections 323, 406, 498(A), 504, 506(2) read with Section 34 of IPCand under Sections 3, 4 and 6(A) of the Dowry Prohibition Act andordered to issue process. Therefore, the petitioners are before thisCourt, praying for quashing the proceedings.

4. The learned counsel for the petitioners submita that theRespondent No.1/complainant is working as a Superintendent inSocial Welfare Department and the marriage of the complainantwith the Accused No.1 is a love marriage and their marriage wasperformed on 26.12.1993. The present complaint came to be filedon 13.11.2001. There was no issue out of the marriage. Hefurther submits that as per the averment of the complaint I ParaNo.3, the complainant and her husband were living separately in arented house, but the other accused used to visit her house andinstigate the Accused No.1 to ask for dowry and to ill-treat thecomplainant. The allegation that the relatives of the Accused No.1often visited the house of the complainant and the statement thatthey instigated Accused No.1 is a bald statement. He also submitsthat the relatives of the Accused No.1 did not oppose the marriageof the complainant with the Accused N.1. Since the complainantherself is a Government servant, the question of any demand fordowry is false. Therefore, he prays for quashing the proceedingsagainst the petitioners.

5. The learned counsel for the Respondent No.1/complainantsubmits that the averments made in the complaint are true andcorrect and it is only in evidence she will be in a position to proveher case and at this stage, it cannot be said that the complainanthas not made out a prima facie case for the offences allegedagainst the accused.

6. In the light of the arguments addressed by the learnedcounsels for the parties, it is crystal clear that the marriage of thecomplainant with the Accused No.1 was a love marriage and theywere living separately in a rentd house. Under suchcircumstances, the allegation that Accused Nos.2 to 11 werefrequently visiting the house of the complainant and theyinstigated Accused No.1 to demand dowry and ill-treat her, isnothing but a self-serving statement with an intention to harassthem. In my view, the complainant has not made out a prima faciecase for the offences alleged against the Accused Nos.2 to 11. In sogar as the Petitioner No.1/Accused No.1 is concerned, thereappears to be a prima facie case for the alleged offences. I see nogood ground to quash the proceedings as against Accused No.1.

7. For the reasons stated supra, the petition in so far as Petitioners 2 to 11 (Accused Nos.2 to 11) is allowed. The PetitionerNo1’s petition is rejected and the proceedings inC.C.No.5043/2002 on the file of JMFC at Udupi, for the offenceunder Sections 323, 406, 498(A), 504 and 506(2) read with Section34 of IPC and under Sections 3, 4 and 6(A) of Dowry ProhibitionAct as against Petitioners 2 to 11(Accused Nos.2 to 11), is quashed.

Sd/-
Judge

bnv*

Summary: There were 11 accused. The proceedings against accused 2 to 11 were quashed primarily because they were not staying with the couple.