IN THE SUPREME COURT OF INDIA
Bench: M Katju, T Thakur
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2028-2029__OF 2010
[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
D. Velusamy -versus- D. Patchaiammal
Judgment Delivered on 21 October, 2010
Cites 17 docs - [View All]
The Code Of Criminal Procedure, 1973
The Protection Of Women From Domestic Violence Act, 2005
The Indian Penal Code, 1860
Section 125 in The Code Of Criminal Procedure, 1973
Section 2(s) in The Code Of Criminal Procedure, 1973
JUDGMENT
Markandey Katju, J.
1. Leave granted.
2. Heard learned counsel for the appellant. None has appeared for the respondent although she has been served notice. We had earlier requested Mr. Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in 2 the case, and we record our appreciation of Mr. Bhushan who was of considerable assistance to us.
3. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009.
4. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.
5. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her father's house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent's father and started living in his native place, but would visit the respondent occasionally.
6. It is alleged that the appellant herein (respondent in the petition under Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the proceeding under Section 125 Cr.P.C.) two or three years after marrying her in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent (appellant herein) is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was prayed that the respondent (appellant herein) be directed to pay Rs.500/- per month as maintenance to the petitioner.
7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her father's house.
8. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein.
9. In his counter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voter's identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc.
10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.
11. In our opinion, since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status vis-`- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights. And if no such declaration could have been given obviously no declaration could validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.
12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word `wife' has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows : "Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."
13. In Vimala (K) vs. Veeraswamy (K) [(1991) 2 SCC 375], a three- Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held: "..the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision."
14. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809, this Court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife'. The Bench held that this inadequacy in law can be amended only by the Legislature.
15. Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.
16. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act states :
"2(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent";
Section 2(f) states :
"2(f) "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 as a joint family"; Section 2(s) states :
"2(s) "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 person 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."
Section 3(a) states that an act will constitute domestic violence in case it-
"3(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;" or
(emphasis supplied)
17. The expression "economic abuse" has been defined to include : "(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance".
(emphasis supplied)
18. An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).
19. Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.
20. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship' includes not only the relationship of marriage but also a relationship `in the nature of marriage'. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage'. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.
21. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act. 1
22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 (vide para 31).
23. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.
24. In USA the expression `palimony' was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony' on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.
25. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.
26. In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.
27. However, the New Jersey Supreme Court in Devaney vs. L' Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to claim palimony, rather "it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony". A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.
28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. 1
29. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.
30. However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.
31. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.
32. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).
33. In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(see `Common Law Marriage' in Wikipedia on Google) In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'.
34. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a `keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'
35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage' and not `live in relationship'. The Court in the grab of interpretation cannot change the language of the statute.
36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy's novel `Anna Karenina', Gustave Flaubert's novel `Madame Bovary' and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.
37. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.
38. Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue notice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding.
39. There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above. Appeals allowed.
....................................J.
(MARKANDEY KATJU)
.....................................J.
(T. S. THAKUR)
NEW DELHI;
21st OCTOBER, 2010
Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts
Thursday, October 21, 2010
Thursday, July 2, 2009
Homosexuality between adults an fundamental right -Delhi High Court's Historical Judgment
The historical judgment from Delhi High Court on declaring consensual homosexuality between adults an fundamental right has 105 Pages, 132 para and 26397 words. It is very big to publish here. So we are publishing here only conclusion of the judgment.
IN THE HIGH COURT OF DELHI AT NEW DELHI
WP(C) No.7455/2001
Date of decision : 2nd July, 2009
Naz Foundation .... Petitioner
versus
Government of NCT of Delhi
and Others .... Respondents
WP(C) No.7455/2001
Date of decision : 2nd July, 2009
Naz Foundation .... Petitioner
versus
Government of NCT of Delhi
and Others .... Respondents
CORAM: HON’BLE THE CHIEF JUSTICE & HON’BLE DR. JUSTICE S.MURALIDHAR
JUDGMENT BY : AJIT PRAKASH SHAH, CHIEF JUSTICE:
.....................................
...................................
CONCLUSION
129. The notion of equality in the Indian Constitution flows from
the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru
on December 13, 1946. Nehru, in his speech, moving this
Resolution wished that the House should consider the
Resolution not in a spirit of narrow legal wording, but rather
look at the spirit behind that Resolution. He said, ”Words are
magic things often enough, but even the magic of words
[WP(C)7455/2001] Page 103 of 105
sometimes cannot convey the magic of the human spirit and
of a Nation’s passion…….. (The Resolution) seeks very
feebly to tell the world of what we have thought or dreamt
of so long, and what we now hope to achieve in the near
future.” [Constituent Assembly Debates: Lok Sabha
Secretariat, New Delhi: 1999, Vol. I, pages 57-65].
130. If there is one constitutional tenet that can be said to be
underlying theme of the Indian Constitution, it is that of
'inclusiveness'. This Court believes that Indian Constitution
reflects this value deeply ingrained in Indian society,
nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every
aspect of life, is manifest in recognising a role in society for
everyone. Those perceived by the majority as “deviants' or
'different' are not on that score excluded or ostracised.
131. Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and nondiscrimination.
This was the 'spirit behind the Resolution' of
which Nehru spoke so passionately. In our view, Indian
Constitutional law does not permit the statutory criminal law
to be held captive by the popular misconceptions of who the
LGBTs are. It cannot be forgotten that discrimination is antithesis
of equality and that it is the recognition of equality
which will foster the dignity of every individual.
[WP(C)7455/2001] Page 104 of 105
132. We declare that Section 377 IPC, insofar it criminalises
consensual sexual acts of adults in private, is violative of
Articles 21, 14 and 15 of the Constitution. The provisions of
Section 377 IPC will continue to govern non-consensual
penile non-vaginal sex and penile non-vaginal sex involving
minors. By 'adult' we mean everyone who is 18 years of age
and above. A person below 18 would be presumed not to be
able to consent to a sexual act. This clarification will hold till,
of course, Parliament chooses to amend the law to
effectuate the recommendation of the Law Commission of
India in its 172nd Report which we believe removes a great
deal of confusion. Secondly, we clarify that our judgment
will not result in the re-opening of criminal cases involving
Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.
CHIEF JUSTICE
JULY 2, 2009 S.MURALIDHAR, J
“nm/v/pk”
[WP(C)7455/2001] Page 105 of 105
Tuesday, June 2, 2009
A social behaviour without intention may be offence of abetment- SC of India Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 681 OF 2003
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 681 OF 2003
Dammu Sreenu Versus State of A.P.
JUDGMENT By-Dr. Mukundakam Sharma, J.
1. The appellant herein filed the present appeal seeking for his acquittal from the order of conviction under Section 306 of the Indian Penal Code (hereinafter referred to as `the IPC') whereby he was sentenced to undergo rigorous imprisonment for three years.
1. The appellant herein filed the present appeal seeking for his acquittal from the order of conviction under Section 306 of the Indian Penal Code (hereinafter referred to as `the IPC') whereby he was sentenced to undergo rigorous imprisonment for three years.
2. The appellant herein allegedly had illicit relationship with the wife of the deceased Bitra Nagarjuna Rao. The wife of the deceased was also made a co-accused in the same offence under Section 306 IPC and she was convicted for the aforesaid offence and was sentenced initially to undergo rigorous imprisonment for a period of three years which, however, later on was altered to one year of rigorous imprisonment by the High Court of Andhra Pradesh. The said sentence of one year has been served out by Accused No. 2, the wife of the deceased Bitra Nagarjuna Rao.
3. The prosecution has alleged in its case that the present appellant had developed an illicit intimacy with Accused No. 2, who was the wife of the deceased Bitra Nagarjuna Rao. On the night of 31.12.1995, accused No. 2, the wife of the deceased went out of her house and returned to her matrimonial home only on the next day. The deceased, Bitra Nagarjuna Rao was unhappy with the aforesaid conduct and so, naturally questioned her about her behaviour because of which there was a quarrel between the two. Being disturbed and perturbed on account of the behaviour of his wife (Accused No. 2), the deceased, Bitra Nagarjuna Rao called the father of Accused No. 2 and asked him to take her away so as to give her proper counselling. Accordingly, she was taken away by her father. On the same day the present appellant (Accused No. 1) came to the house of the deceased and when he was questioned by the inmates of the house of the deceased, he stated that he had illicit relations with the wife of the deceased and that he would keep coming to the house of the deceased so long she does not object to the same. When he was told that Accused No. 2 had gone with her father, Accused No. 1 went to the house of the brother of Accused No. 2 and took her away despite the protest of PW-5, brother of Accused No. 2, in whose house his father kept her. The appellant took her away and brought her back to the house of her brother only after 4 days and to her parents' house on 06.01.1996.
4. Having come to know about the aforesaid incident, the deceased felt humiliated and insulted. He committed suicide by hanging himself in the intervening night of 7th and 8th January, 1996. It is also to be noted, at this stage, that prior to his suicide, the deceased, Bitra Nagarjuna Rao expressed before his brother that it would be better to die as he felt very much insulted and humiliated. The deceased having committed suicide, his brother gave a report to the police which was registered as a case under Section 174 of Criminal Procedure Code, 1973 (for short `the CrPC') which was, during the course of investigation, altered to a case of Section 306 IPC.
5. The police after investigation submitted a charge-sheet against the accused. The accused, however, denied the charge. Accordingly, he was tried under the aforesaid charges. During the course of trial the prosecution examined as many as 13 witnesses and the appellant-accused was also examined under Section 313 of the CrPC wherein he denied his involvement in the offence.
6. The trial court appreciated the materials available on record and, thereafter, passed a judgment and order of conviction. He convicted the present appellant under Section 306 IPC and sentenced him to undergo rigorous imprisonment for a period of five years with a fine of Rs. 100/- in default to undergo simple imprisonment for one month. The trial court also convicted accused No. 2, i.e. wife of the deceased, under Section 306 IPC and sentenced her to undergo rigorous imprisonment for a period of five years.
7. Being aggrieved by the aforesaid judgment and order of conviction and sentence the appellant as also the wife of the deceased filed a common criminal appeal in the court of IInd Additional Sessions Judge, Guntur which was registered as Criminal Appeal No. 32 of 1998. The said appeal was allowed in part and the conviction and sentence awarded by the trial court was altered and reduced by the learned Additional Sessions Judge to 3 years simple imprisonment.
8. In revision the High Court maintained the order of conviction against the accused-appellant but altered the sentence of Accused No. 2, i.e. the wife of the deceased to one year imprisonment which she has already undergone.
9. Now this appeal is, therefore, filed only by appellant No. 1, who was convicted and ordered to undergo simple imprisonment for three years. An order to release appellant No. 1 on bail was passed pursuant to which Accused No. 1 is on bail. The appeal was listed before us for hearing during the course of which we heard the learned counsel appearing for the parties and were also taken through the records.
10.According to the learned counsel appearing for the appellant, ingredients of abetment are totally absent as envisaged under Section 306 IPC read with Section 107 of the IPC and, therefore, Accused No. 1 is liable to be acquitted. It was submitted by him that on a proper interpretation of the facts as also the provisions of Section 306 IPC it cannot be said that the appellant herein was in any manner responsible for abetting the suicide committed by the deceased which was an independent act of the deceased. It was also submitted by him that the appellant did not in any manner substantially assisted the deceased in committing the offence of suicide and since there was no such participation of the appellant in abetting the offence of suicide, the conviction and sentence under Section 306 IPC is required to be set aside and quashed.
11.The aforesaid submissions were, however, refuted by learned counsel appearing for the State contending inter alia that there is a concurrent find of facts by three courts below finding the appellant guilty of the offence under Section 306 IPC and, therefore, the said findings cannot be said to be in any manner as untenable or unjustified. 12.The fact that the appellant had illicit relationship with Accused No. 2, who was the wife of the deceased, is an admitted position for which there was no cross-examination on the point which was clearly stated by PW-5, who is the brother of Accused No. 2, in his statement on 2.1.1996 which is reproduced herein below :
"On 2-1-1996 my father brought A2 to my house at Tsunduru and he informed that she is having illicit contact with A1 to change her behaviour brought her to my house to keep some time. On the same day evening A1 came to my house and took away A2. Some discussion take place between myself and A1 regarding coming to my house. Due to fear, I could not resist for taking away A2."13. We have carefully examined the aforesaid statement of PW-5 and on perusal of the statement we do not find that any suggestion was made to the said PW-5 that there did not exist an illicit relationship between Accused No. 1 and Accused No. 2. Besides, the close relatives of the deceased who were also examined as witnesses had categorically stated in their statements that on coming to know of the fact that Accused No. 1 has taken Accused No. 2 from the house of PW-5 and left her only on 06.01.1996 at her parents house, the deceased stated before the said inmates of his house that because of the said insult and humiliation he does not like to live. It is also proved that immediately thereafter in the night intervening 7th and 8th of January, 1996 the deceased committed suicide. The aforesaid fact leads to only one conclusion that it is on account of humiliation and insult due to the behaviour and conduct of Accused No. 1 and Accused No. 2 that he proceeded to commit the suicide.
14.The facts which are disclosed from the evidence on record clearly establish that Accused No. 1 had illicit relationship with Accused No. 2 who is the wife of the deceased. It is also not in dispute that Accused No. 1 was visiting the house of the deceased to meet Accused No. 2 and that he even went to the house of deceased when he came to know that the wife of the deceased was sent with her father for counselling and advise. He loudly stated that he would continue to have relationship with Accused No. 2 and would come to her house so long she does not object to the same. He also took her away from the house of PW-5, her brother and kept her with him for 4 days. Immediately after the said incident the deceased committed the suicide. Therefore, there is definitely a proximity and nexus between the conduct and behaviour of Accused No. 1 and Accused No. 2 with that of the suicide committed by the deceased. Besides, there is clear and unambiguous findings of fact of three courts that the appellant is guilty of the offence under Section 306 of IPC. Such findings do not call for any interference in our hand. This Court also does not generally embark upon reappreciation of evidence on facts which are found and held against the appellant.
15.Considering the entire facts and circumstances of the case we are, therefore, not inclined to interfere with the order of conviction as also the order of sentence passed against the accused-appellant. We uphold the order of the High Court and dismiss this appeal. The bail bond of the accused-appellant stands cancelled. He shall surrender forthwith to serve out the remaining period of the sentence.
.................................J.
(Dr. Mukundakam Sharma)
................................J.
(Dr. B.S. Chauhan)
New Delhi,(Dr. Mukundakam Sharma)
................................J.
(Dr. B.S. Chauhan)
May 28, 2009
Tuesday, May 12, 2009
Judgment between "No innocent man is punished". & "A guilty man does not escape"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1502 OF 2007
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1502 OF 2007
Narendra V/s State of Karnataka
JUDGMENT
By Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court setting aside the judgment of acquittal recorded by learned Third Additional Sessions Judge, Bangalore. Learned Sessions Judge have found the accused appellant guilty of offence punishable under Section 498(A) and 302 of the Indian Penal Code, 1860 (In short the `IPC').
2. Background facts leading to the prosecution of the appellant are as follows: On 13/14.2.1994 Smt. Mythradevi (hereinafter referred to as the `deceased') was done to death in the bedroom of the matrimonial home of the deceased. According to 'the investigation reports by about 6 a.m. on 14.2.1994 the inmates of the matrimonial home of the deceased learnt about the suspicious death of the deceased. By 9.30 a.m. on the very same day parents of the deceased came to the matrimonial home of the deceased after hearing the news of death of their daughter Mythradevi. Father of the deceased (P.W.6) informed the same to the Jurisdictional Police i.e., Srirampura Police Station as per complaint Ex. P.6. Thereafter, first part of investigation under Section 176 of the Code of Criminal Procedure, 1973 (in short the `Code') proceedings took place at about 2 p.m. on the same date after arrival of Taluk Executive Magistrate Mr. Y.M. Ramachandra Murthy (P.W.1). His inquest report is at Ex. P.1. The investigating agency kept watch over the dead body till the inquest proceedings were conducted, then the dead body was shifted for post mortem to Victoria hospital. As it was late in the night, autopsy was done on the dead body on 15.2.1994 by Dr. S.B. Patil (P.W.2). He gave postmortem report as per Ex. P2 and his opinion is at Ex. P 3. According to him, death was due to asphyxia as a result of compression of neck by human hands. The parents, sisters and other relatives of the deceased were examined. Their statements revealed after marriage between the parties, deceased started living in the matrimonial home,. Parents visited the deceased on 4 to 5 occasions. The last time the parents saw her alive was on 12.2.1994 i.e. about two days prior to her death. During this 12 months period of her stay at matrimonial home, according to kith and kin, deceased was very depressed, unhappy and was even scared to talk to any of kith and kin including the parents, whenever they visited her at matrimonial home. During her visits to the parents house, on enquiry they found the cause of her depression and unhappiness. It was due to improper treatment at the hands of her husband. Her husband was not talking to her. He was not looking after her well and he did not even like her. This was made known to her by coming home at very late hours and not talking to her in the normal way. Last visit of her parents on 12.2.94 to invite the deceased and the respondent for their first wedding anniversary at the parenta1 house of the deceased was rejected by the husband of the deceased. After that, they got the news about her death on 14.2.1994 at about 9 am The accused was not found at home. Therefore a search to apprehend him commenced. According to P.W. 3 on 15.2.1994 he was apprehended and produced before the Police Inspector (P.W. 11) as per the report at Ex.P 4. Prior to that the PSI (PW5) on the basis of the complaint of father of the deceased, registered Crime No. 71/94 for the offence punishable under Section 302 IPC. A spot mahazar was conducted under Ex.P-7, under which M.Os. 6 to 8, blood stained bed sheets, pillow cover and saree of the deceased were seized. During the inquest proceedings personal ornaments of the deceased found on the dead body i.e., M.Os. 1 to 13 including gold bangles and chain came to be seized. Ex. P.8 is the wedding card. Exs. P.9 and 10 are the photographs, which were taken at the time of inquest proceedings to show the exact position of the dead body in the bedroom of the matrimonial home of the deceased. P.W. 7 is the mother of the deceased. P.W. 8 is the elder sister of the deceased, whose statements were also recorded by the Taluk Executive Magistrate. P.W. 9 is the panch witness for the inquest proceedings. P.W. 10 is the witness for spot mahazar (Ex. P.7), but he resiled from the statement given during investigation. P.W.11 is the investigating officer, who took up further investigation from P.W.5 and filed the charge sheet against the appellant-accused. After completion of investigation charge sheet was filed. Trial court found the evidence not to be cogent and directed acquittal. It is to be noted that eleven witnesses were examined by the prosecution and two witnesses by the defence. Accused took the plea that he had gone to another place for purchase of milk on 13.2.1994 in the morning and returned only on 14.2.1994 at about 10.45 am and therefore he was not in any way involved with the crime. The High Court by the impugned order set aside the acquittal and found the appellant guilty of offence punishable under Sections 302 and 498(A) IPC. The High Court found that the analysis made by the trial court was erroneous. The trial court should not have placed reliance on the evidence of DWs 1 & 2 to accept the plea of alibi. Therefore the trial court should not have directed acquittal.
3. In support of the appeal learned counsel for the appellant submitted that two views are possible. On the evidence on record the trial court had taken a view which is a possible one. Taking into account the limited scope for interference with the judgment of acquittal, the High Court should not have interfered in the matter. Further the alibi should have been accepted. There was no motive, no torture or no demand of dowry. There is no evidence for establishing the accusations either for Section 498A or Section 302 IPC.
4. Learned counsel for the respondent-State on the other hand supported the judgment.
5. In the present case there are certain material aspects which were lost sight of by the trial court but have been noted by the High Court. The dead body was detected in the morning of 14.2.1994. Parents of the deceased informed the police and not the inmates. The parents were informed by neighbours and not by the inmates. DW2 has been disbelieved as he was nearly 70 years of age. It was highly improbable that he was in employment as a watchman. The trial court had held that the evidence of PWs.6 to 8 regarding pressing mark on the neck and injuries on the fore arms of the deceased are not corroborated by the medical opinion. This is factually incorrect. The doctor (PW2) had categorically stated that he was of the opinion that death was due to result of compression of the neck, and the post mortem report was accordingly issued. PW6 has stated that second opinion was sought for and then the report was given. The falsity of alibi is an additional link.
6. In Trimukh Maroti Kirkan v. State of Maharashtra [2006 (10) SCC 681] it has been noted as follows:
"The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.
If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [2003(11) SCC 271].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
7. That being so there is no merit in this appeal which is accordingly dismissed.
........................................J.
(Dr. ARIJIT PASAYAT)
.........................................J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
May 05, 2009
Friday, May 8, 2009
Husband's successors are the successors of wife's intested property though, she didn't live them for a day -Supreme Court of India
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3241 OF 2009
[Arising out of Special Leave Petition (Civil) No. 460 of 2008]
OMPRAKASH & ORS.- V/S - RADHACHARAN & ORS.
JUDGMENT By- S.B. Sinha, J.
1. Leave granted.
2. One Smt. Narayani Devi was married to one Dindayal Sharma in the year 1955. She became widow within three months of her marriage. Concededly, she was driven out of her matrimonial home immediately after the death of her husband. After that she never stayed in her matrimonial home. At her parental home, she was given education. She got an employment. She died intestate on 11.7.1996. She had various bank accounts; she left a huge sum also in her provident fund account.
3. Ramkishori, mother of Narayani, filed an application for grant of succession certificate in terms of Section 372 of the Indian Succession Act. Respondents herein also filed a similar application. It now stands admitted that all her properties were self acquired.
4. The question which arose for consideration before the courts below as also before us is as to whether sub-Section (1) of Section 15 of the Hindu Succession Act, 1956 (for short, "the Act") or sub-Section (2) thereof would be applicable in the facts and circumstances of this case.
Section 15 of the Act reads as under:
"15 - General rules of succession in the case of
female Hindus. - (1) The property of a female
Hindu dying intestate shall devolve according to
the rules set out in section 16.--
(a) firstly, upon the sons and daughters
(including the children of any pre-deceased son or
daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-
section (1),--
(a) any property inherited by a female Hindu
from her father or mother shall devolve, in the
absence of any son or daughter of the deceased
(including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in
sub-section (1) in the order specified therein, but
upon the heirs of the father; and
(b) any property inherited by a female Hindu
from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of
the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified
therein, but upon the heirs of the husband."
5. There is no doubt or dispute that the properties of the deceased were self-acquired ones and were not inherited from her parents' side. Appellants before us are her brothers, the original applicant being the mother of the deceased having died. Respondents are the sons of sister of the Narayani's husband.
6. Mr. N.R. Choudhary, learned counsel appearing on behalf of the appellant would contend that in a case of this nature where the husband of the deceased or her in-laws had not made any contribution towards her education or had not lent any support during her life time, sub-Section (2) of Section 15 of the Act should be held to be applicable. It was urged that the Parliamentary intent as contained in clause (a) of sub-Section (2) of Section 15 of the Act should be the guiding factor for interpreting the said provision.
7. Mr. Arvind V. Savant, learned Senior Counsel appearing on behalf of the respondent, however, would support the impugned judgment.
8. Section 15 provides for the general rules of succession in the case of female Hindus. It lays down the mode and manner in which the devolution of interest of a female shall take place. Section 16 provides for the order of succession and manner of distribution amongst the heirs of a female Hindu, stating that the same shall be according to the rules specified therein. It reads as under:
"Rule 1.--Among the heirs specified in sub-
section (1) of section 15, those in one entry shall
be preferred to those in any succeeding entry and
those including in the same entry shall take
simultaneously.
Rule 2.--If any son or daughter of the intestate had
pre-deceased the intestate leaving his or her own
children alive at the time of the intestate's death,
the children of such son or daughter shall take
between them the share which such son or
daughter would have taken if living at the
intestate's death.
Rule 3.--The devolution of the property of the
intestate on the heirs referred to in clauses (b), (d)
and (e) of sub-section (1) and in sub-section (2) of
section 15 shall be in the same order and according
to the same rules as would have applied if the
property had been the father's or the mother's or
the husband's as the case may be, and such person
had died intestate in respect thereof immediately
after the intestate's death."
9. It has not been disputed that the respondents are the heirs and legal representatives of Dindayal, husband of Narayani. Sub-Section (1) of Section 15 lays down the ordinary rule of succession. Clause (a) of sub- Section (2) of Section 15 providing for a non-obstante clause, however, carves out an exception viz. when the property is devolved upon the deceased from her parents' side, on her death the same would relate back to her parents' family and not to her husband's family. Similarly, in a case where she had inherited some property from her husband or from her husband's family, on her death the same would revive to her husband's family and not to her own heirs. The law is silent with regard to self- acquired property of a woman. Sub-section (1) of Section 15, however, apart from the exceptions specified in sub-section (2) thereof does not make any distinction between a self-acquired property and the property which she had inherited. It refers to a property which has vested in the deceased absolutely or which is her own. The self-acquired property of a female would be her absolute property and not the property which she had inherited from her parents.
10. In that view of the matter, we are of the opinion that sub-Section (1) of Section 15 of the Act would apply and not the sub-Section (2) thereof.
This is a hard case. Narayani during her life time did not visit her in-laws' place. We will presume that the contentions raised by Mr. Choudhury that she had not been lent any support from her husband's family is correct and all support had come from her parents but then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision which is otherwise impermissible. It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.
In M.D., H.S.I.D.C. and Ors. vs. Hari Om Enterprises and Anr [2008 (9) SCALE 241], this Court held:
"54. This Court applied the doctrine of
proportionality having regard to a large number of
decisions operating in the field. This Court,
however, also put a note of caution that no order
should be passed only on sympathy or sentiment."
In Subha B. Nair & Ors. vs. State of Kerala & Ors. [(2008) 7 SCC 210], this Court held:
"21. This Court furthermore cannot issue a
direction only on sentiment/sympathy."
In Ganga Devi vs. District Judge, Nainital & Ors. [(2008) 7 SCC 770], this Court held:
"22. The court would not determine a question
only on the basis of sympathy or sentiment. Stricto
sensu equity as such may not have any role to
play."
If the contention raised by Mr. Choudhury is to be accepted, we will have to interpret sub-section (1) of Section 15 in a manner which was not contemplated by the Parliament. The Act does not put an embargo on a female to execute a will. Sub-section (1) of Section 15 would apply only in a case where a female Hindu has died intestate. In such a situation, the normal rule of succession as provided for by the statute, in our opinion, must prevail.
For the aforementioned purpose, the golden rule of interpretation must be applied.
11. This Court in Bhagat Ram (Dead) vs. Teja Singh [(1999) 4 SCC 86], held as under:
"6. On perusal of the two Sub-sections we find
that their spheres are very clearly marked out. So
far Sub-section (1), it covers the properties of a
female Hindu dying intestate. Sub-section (2)
starts with the words 'Notwithstanding anything
contained in Sub-section (1)'. In other words, what
falls within the sphere of Sub-section (2), Sub-
section (1) will not apply. We find that Section
15(2)(a) uses the words 'any property inherited by
a female Hindu from her father or mother'. Thus
property inherited by a female Hindu from her
father and mother is carved-out from a female
Hindu dying intestate. In order words any property
of female Hindu, if inherited by her from her father
or mother would not fall under Sub-section (1) of
Section 15. Thus, property of a female Hindu can
be classified under two heads : Every property of a
female Hindu dying intestate is a general class by
itself covering all the properties but Sub-section
(2) excludes out of the aforesaid properties the
property inherited by her from her father or
mother.
7. In addition, we find the language used in
Section 15(1) read with Section 16 makes it
clearly, the class who has to succeed of property of
Hindu female dying intestate. Sub-section (1)
specifically state that the property of a female
Hindu dying intestate shall devolve according to
the rules set out in Section 16. So, in case Sub-
section (1) applies, then after the death of Santi,
Indro can not inheritance by succession but it
would go to the heirs of the pre-deceased husband
of Santi."
12. For the aforementioned reasons, we find no merit in this appeal. The appeal is dismissed accordingly. However, in the facts and circumstances of this case, there shall be no order as to costs.
.....................................J.
[S.B. Sinha]
.....................................J.
[Dr. Mukundakam Sharma]
New Delhi;
May 5, 2009
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3241 OF 2009
[Arising out of Special Leave Petition (Civil) No. 460 of 2008]
OMPRAKASH & ORS.- V/S - RADHACHARAN & ORS.
JUDGMENT By- S.B. Sinha, J.
1. Leave granted.
2. One Smt. Narayani Devi was married to one Dindayal Sharma in the year 1955. She became widow within three months of her marriage. Concededly, she was driven out of her matrimonial home immediately after the death of her husband. After that she never stayed in her matrimonial home. At her parental home, she was given education. She got an employment. She died intestate on 11.7.1996. She had various bank accounts; she left a huge sum also in her provident fund account.
3. Ramkishori, mother of Narayani, filed an application for grant of succession certificate in terms of Section 372 of the Indian Succession Act. Respondents herein also filed a similar application. It now stands admitted that all her properties were self acquired.
4. The question which arose for consideration before the courts below as also before us is as to whether sub-Section (1) of Section 15 of the Hindu Succession Act, 1956 (for short, "the Act") or sub-Section (2) thereof would be applicable in the facts and circumstances of this case.
Section 15 of the Act reads as under:
"15 - General rules of succession in the case of
female Hindus. - (1) The property of a female
Hindu dying intestate shall devolve according to
the rules set out in section 16.--
(a) firstly, upon the sons and daughters
(including the children of any pre-deceased son or
daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-
section (1),--
(a) any property inherited by a female Hindu
from her father or mother shall devolve, in the
absence of any son or daughter of the deceased
(including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in
sub-section (1) in the order specified therein, but
upon the heirs of the father; and
(b) any property inherited by a female Hindu
from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of
the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified
therein, but upon the heirs of the husband."
5. There is no doubt or dispute that the properties of the deceased were self-acquired ones and were not inherited from her parents' side. Appellants before us are her brothers, the original applicant being the mother of the deceased having died. Respondents are the sons of sister of the Narayani's husband.
6. Mr. N.R. Choudhary, learned counsel appearing on behalf of the appellant would contend that in a case of this nature where the husband of the deceased or her in-laws had not made any contribution towards her education or had not lent any support during her life time, sub-Section (2) of Section 15 of the Act should be held to be applicable. It was urged that the Parliamentary intent as contained in clause (a) of sub-Section (2) of Section 15 of the Act should be the guiding factor for interpreting the said provision.
7. Mr. Arvind V. Savant, learned Senior Counsel appearing on behalf of the respondent, however, would support the impugned judgment.
8. Section 15 provides for the general rules of succession in the case of female Hindus. It lays down the mode and manner in which the devolution of interest of a female shall take place. Section 16 provides for the order of succession and manner of distribution amongst the heirs of a female Hindu, stating that the same shall be according to the rules specified therein. It reads as under:
"Rule 1.--Among the heirs specified in sub-
section (1) of section 15, those in one entry shall
be preferred to those in any succeeding entry and
those including in the same entry shall take
simultaneously.
Rule 2.--If any son or daughter of the intestate had
pre-deceased the intestate leaving his or her own
children alive at the time of the intestate's death,
the children of such son or daughter shall take
between them the share which such son or
daughter would have taken if living at the
intestate's death.
Rule 3.--The devolution of the property of the
intestate on the heirs referred to in clauses (b), (d)
and (e) of sub-section (1) and in sub-section (2) of
section 15 shall be in the same order and according
to the same rules as would have applied if the
property had been the father's or the mother's or
the husband's as the case may be, and such person
had died intestate in respect thereof immediately
after the intestate's death."
9. It has not been disputed that the respondents are the heirs and legal representatives of Dindayal, husband of Narayani. Sub-Section (1) of Section 15 lays down the ordinary rule of succession. Clause (a) of sub- Section (2) of Section 15 providing for a non-obstante clause, however, carves out an exception viz. when the property is devolved upon the deceased from her parents' side, on her death the same would relate back to her parents' family and not to her husband's family. Similarly, in a case where she had inherited some property from her husband or from her husband's family, on her death the same would revive to her husband's family and not to her own heirs. The law is silent with regard to self- acquired property of a woman. Sub-section (1) of Section 15, however, apart from the exceptions specified in sub-section (2) thereof does not make any distinction between a self-acquired property and the property which she had inherited. It refers to a property which has vested in the deceased absolutely or which is her own. The self-acquired property of a female would be her absolute property and not the property which she had inherited from her parents.
10. In that view of the matter, we are of the opinion that sub-Section (1) of Section 15 of the Act would apply and not the sub-Section (2) thereof.
This is a hard case. Narayani during her life time did not visit her in-laws' place. We will presume that the contentions raised by Mr. Choudhury that she had not been lent any support from her husband's family is correct and all support had come from her parents but then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision which is otherwise impermissible. It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.
In M.D., H.S.I.D.C. and Ors. vs. Hari Om Enterprises and Anr [2008 (9) SCALE 241], this Court held:
"54. This Court applied the doctrine of
proportionality having regard to a large number of
decisions operating in the field. This Court,
however, also put a note of caution that no order
should be passed only on sympathy or sentiment."
In Subha B. Nair & Ors. vs. State of Kerala & Ors. [(2008) 7 SCC 210], this Court held:
"21. This Court furthermore cannot issue a
direction only on sentiment/sympathy."
In Ganga Devi vs. District Judge, Nainital & Ors. [(2008) 7 SCC 770], this Court held:
"22. The court would not determine a question
only on the basis of sympathy or sentiment. Stricto
sensu equity as such may not have any role to
play."
If the contention raised by Mr. Choudhury is to be accepted, we will have to interpret sub-section (1) of Section 15 in a manner which was not contemplated by the Parliament. The Act does not put an embargo on a female to execute a will. Sub-section (1) of Section 15 would apply only in a case where a female Hindu has died intestate. In such a situation, the normal rule of succession as provided for by the statute, in our opinion, must prevail.
For the aforementioned purpose, the golden rule of interpretation must be applied.
11. This Court in Bhagat Ram (Dead) vs. Teja Singh [(1999) 4 SCC 86], held as under:
"6. On perusal of the two Sub-sections we find
that their spheres are very clearly marked out. So
far Sub-section (1), it covers the properties of a
female Hindu dying intestate. Sub-section (2)
starts with the words 'Notwithstanding anything
contained in Sub-section (1)'. In other words, what
falls within the sphere of Sub-section (2), Sub-
section (1) will not apply. We find that Section
15(2)(a) uses the words 'any property inherited by
a female Hindu from her father or mother'. Thus
property inherited by a female Hindu from her
father and mother is carved-out from a female
Hindu dying intestate. In order words any property
of female Hindu, if inherited by her from her father
or mother would not fall under Sub-section (1) of
Section 15. Thus, property of a female Hindu can
be classified under two heads : Every property of a
female Hindu dying intestate is a general class by
itself covering all the properties but Sub-section
(2) excludes out of the aforesaid properties the
property inherited by her from her father or
mother.
7. In addition, we find the language used in
Section 15(1) read with Section 16 makes it
clearly, the class who has to succeed of property of
Hindu female dying intestate. Sub-section (1)
specifically state that the property of a female
Hindu dying intestate shall devolve according to
the rules set out in Section 16. So, in case Sub-
section (1) applies, then after the death of Santi,
Indro can not inheritance by succession but it
would go to the heirs of the pre-deceased husband
of Santi."
12. For the aforementioned reasons, we find no merit in this appeal. The appeal is dismissed accordingly. However, in the facts and circumstances of this case, there shall be no order as to costs.
.....................................J.
[S.B. Sinha]
.....................................J.
[Dr. Mukundakam Sharma]
New Delhi;
May 5, 2009
Monday, March 16, 2009
Information Technology Act, 2000 (1)
Information Technology Act, 2000
(a) a negotiable instrument as defined in section 13 of the Negotiable Instruments Act, 1881;
(b) a power-of-attorney as defined in section 1A of the Powers-of-Attorney Act, 1882;
(c) a trust as defined in section 3 of the Indian Trusts Act, 1882;
(d) a will as defined in clause (h) of section 2 of the Indian Succession Act, 1925 including any other testamentary disposition by whatever name called;
(e) any contract for the sale or conveyance of immovable property or any interest in such property;
(f) any such class of documents or transactions as may be notified by the Central Government in the Official Gazette.
(b) "addressee" means a person who is intended by the originator to receive the electronic record but does not include any intermediary;
(c) "adjudicating officer" means an adjudicating officer appointed under subsection (1) of section 46;
(d) "affixing digital signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature;
(e) "appropriate Government" means as respects any matter,-
(b) provide a reasonable level of reliability and correct operation;
(c) are reasonably suited to performing the intended functions; and
(d) adhere to generally accepted security procedures;
(b) the initial electronic record is retained intact or has been altered since such electronic record was so affixed with the digital signature.
(b) that two electronic records can produce the same hash result using the algorithm.
(3) Any person by the use of a public key of the subscriber can verify the electronic record.
(4) The private key and the public key are unique to the subscriber and constitute a functioning key pair.
(1) Where any law provides for-
(5) For the purposes of this section,-
If, by application of a security procedure agreed to by the parties concerned, it can be verified that a digital signature, at the time it was affixed, was-
18. Functions of Controller.
The Controller may perform all or any of the following functions, namely:-
(a) exercising supervision over the activities of the Certifying Authorities;
(b) certifying public keys of the Certifying Authorities;
(c) laying down the standards to be maintained by the Certifying Authorities;
(d) specifying the qualifications and experience which employees of the Certifying Authorities should possess;
(e) specifying the conditions subject to which the Certifying Authorities shall conduct their business;
(f) specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of a Digital Signature Certificate and the public key;
(g) specifying the form and content of a Digital Signature Certificate and the key,
(h) specifying the form and manner in which accounts shall be maintained by the Certifying Authorities;
(i) specifying the terms and conditions subject to which auditors may be appointed and the remuneration to be paid to them;
(j) facilitating the establishment of any electronic system by a Certifying Authority either solely or jointly with other Certifying Authorities and regulation of such systems;
(k) specifying the manner in which the Certifying Authorities shall conduct their dealings with the subscribers;
(l) resolving any conflict of interests between the Certifying Authorities and the subscribers;
(m) laying down the duties of the Certifying Authorities;
(n) maintaining a data base containing the disclosure record of every Certifying Authority containing such particulars as may be specified by regulations, which shall be accessible to public.
19. Recognition of foreign Certifying Authorities.
(1) Subject to such conditions and restrictions as may be specified by regulations, the Controller may with the previous approval of the Central Government, and by notification in the Official Gazette, recognise any foreign Certifying Authority as a Certifying Authority for the purposes of this Act.
(3) A licence granted under this section shall—
(b) a statement including the procedures with respect to identification of the applicant;
(c) payment of such fees, not exceeding twenty-five thousand rupees as may be prescribed by the Central Government;
(d) such other documents, as may be prescribed by the Central Government.
23. Renewal of licence.
An application for renewal of a licence shall be-
(a) in such form;
(b) accompanied by such fees, not exceeding five thousand rupees,
as may be prescribed by the Central Government and shall be made not less than forty-five days before the date of expiry of the period of validity of the licence.
(b) failed to comply with the terms and conditions subject to which the licence was granted;
(c) failed to maintain the standards specified under clause (b) of sub-section (2) of section 20;
(d) contravened any provisions of this Act, rule, regulation or order made thereunder, revoke the licence:
Provided that no licence shall be revoked unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed revocation.
Provided that the data base containing the notice of such suspension or revocation, as the case may be, shall be made available through a web site which shall be accessible round the clock:
Provided further that the Controller may, if he considers necessary, publicise the contents of database in such electronic or other media, as he may consider appropriate.
27. Power to delegate.
The Controller may, in writing, authorise the Deputy Controller, Assistant Controller or any officer to exercise any of the powers of the Controller under this Chapter.
Every Certifying Authority shall,-
(a) make use of hardware, software and procedures that are secure from intrusion and misuse;
(b) provide a reasonable level of reliability in its services which are reasonably suited to the performance of intended functions;
(c) adhere to security procedures to ensure that the secrecy and privacy of the digital signatures are assured; and
(d) observe such other standards as may be specified by regulations.
Every Certifying Authority shall display its licence at a conspicuous place of the premises in which it carries on its business.
33. Surrender of licence.
(1) Every Certifying Authority whose licence is suspended or revoked shall immediately after such suspension or revocation, surrender the licence to the Controller.
(2) Where any Certifying Authority fails to surrender a licence under sub-section (1), the person in whose favour a licence is issued, shall be guilty of an offence and shall be punished with imprisonment which may extend up to six months or a fine which may extend up to ten thousand rupees or with both.
(b) any certification practice statement relevant thereto;
(c) notice of the revocation or suspension of its Certifying Authority certificate, if any; and
(d) any other fact that materially and adversely affects either the reliability of a Digital Signature Certificate, which that Authority has issued, or the Authority's ability to perform its services.
(2) Where in the opinion of the Certifying Authority any event has occurred or any situation has arisen which may materially and adversely affect the integrity of its computer system or the conditions subject to which a Digital Signature Certificate was granted, then, the Certifying Authority shall-
(b) the applicant holds a private key, which is capable of creating a digital signature;
(c) the public key to be listed in the certificate can be used to verify a digital signature affixed by the private key held by the applicant:
Provided further that no application shall be rejected unless the applicant has been given a reasonable opportunity of showing cause against the proposed rejection.
(b) it has published the Digital Signature Certificate or otherwise made it available to such person relying on it and the subscriber has accepted it;
(c) the subscriber holds the private key corresponding to the public key, listed in the Digital Signature Certificate;
(d) the subscriber's public key and private key constitute a functioning key pair,
(e) the information contained in the Digital Signature Certificate is accurate; and
(f) it has no knowledge of any material fact, which if it had been included in the Digital Signature Certificate would adversely affect the reliability of the representations made in clauses (a) to (d).
(a) on receipt of a request to that effect from -
(i) the subscriber listed in toe Digital Signature Certificate; or
(ii) any person duly authorised to act on behalf of that subscriber,
(b) if it is of opinion that the Digital Signature Certificate should be suspended in public interest
(a) where the subscriber or any other person authorised by him makes a request to that effect; or
(b) upon the death of the subscriber, or
(c) upon the dissolution of the firm or winding up of the company where the subscriber is a firm or a company.
(2) Subject to the provisions of sub-section (3) and without prejudice to the provisions of sub-section (1), a CertifyingAuthority may revoke a Digital Signature Certificate which has been issued by it at any time, if it is of opinion that-
(a) a material fact represented in the Digital Signature Certificate is false or has been concealed;
(b) a requirement for issuance of the Digital Signature Certificate was not satisfied;
(c) the Certifying Authority's private key or security system was compromised in a manner materially affecting the Digital Signature Certificate's reliability;
(d) the subscriber has been declared insolvent or dead or where a subscriber is a firm or a company, which has been dissolved, wound-up or otherwise ceased to exist
(3) A Digital Signature Certificate shall not be revoked unless the subscriber has been given an opportunity of being heard in the matter.
(4) On revocation of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber.
CHAPTER VIII
DUTIES OF SUBSCRIBERS
40. Generating key pair.
Where any Digital Signature Certificate, the public key of which corresponds to the private key of that subscriber which is to be listed in the Digital Signature Certificate has been accepted by a subscriber, then, the subscriber shall generate the key pair by applying the security procedure.
41. Acceptance of Digital Signature Certificate.
(1) A subscriber shall be deemed to have accepted a Digital Signature Certificate if he publishes or authorises the publication of a Digital Signature Certificate-
(a) to one or more persons;
(b) in a repository, or otherwise demonstrates his approval of the Digital Signature Certificate in any manner.
(2) By accepting a Digital Signature Certificate the subscriber certifies to all who reasonably rely on the information contained in the Digital Signature Certificate that-
(a) the subscriber holds the private key corresponding to the public key listed in the Digital Signature Certificate and is entitled to hold the same;
(b) all representations made by the subscriber to the Certifying Authority and all material relevant to the information contained in the Digital Signature Certificate are true;
(c) all information in the Digital Signature Certificate that is within the knowledge of the subscriber is true.
(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(c) i ntroduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,
he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.
Explanation.- For the purposes of this section,-
(i) "computer contaminant" means any set of computer instructions that are designed-
(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or computer network;
(a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code;
(b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.
(b) the amount of loss caused to any person as a result of the default;
(c) the repetitive nature of the default
An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.
whereas the General Assembly of the United Nations by resolution A/RES/51/162, dated the 30th January, 1997 has adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law;
and whereas the said resolution recommends inter alia that all States give favourable consideration to the said Model Law when they enact or revise their laws, in view of the need for uniformity of the law applicable to alternatives to paper-cased methods of communication and storage of information;
and whereas the said resolution recommends inter alia that all States give favourable consideration to the said Model Law when they enact or revise their laws, in view of the need for uniformity of the law applicable to alternatives to paper-cased methods of communication and storage of information;
and whereas it is considered necessary to give effect to the said resolution and to promote efficient delivery of Government services by means of reliable electronic records.
be it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-
CHAPTER I
Preliminary
1. Short title, extent, commencement and application
(1) This Act may be called the Information Technology Act, 2000.
Preliminary
1. Short title, extent, commencement and application
(1) This Act may be called the Information Technology Act, 2000.
(2) It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention thereunder committed outside India by any person.
(3) It shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the commencement of that provision.
(4) Nothing in this Act shall apply to,-(a) a negotiable instrument as defined in section 13 of the Negotiable Instruments Act, 1881;
(b) a power-of-attorney as defined in section 1A of the Powers-of-Attorney Act, 1882;
(c) a trust as defined in section 3 of the Indian Trusts Act, 1882;
(d) a will as defined in clause (h) of section 2 of the Indian Succession Act, 1925 including any other testamentary disposition by whatever name called;
(e) any contract for the sale or conveyance of immovable property or any interest in such property;
(f) any such class of documents or transactions as may be notified by the Central Government in the Official Gazette.
2. Definitions
(1) In this Act, unless the context otherwise requires, -
(a) "access" with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network;(1) In this Act, unless the context otherwise requires, -
(b) "addressee" means a person who is intended by the originator to receive the electronic record but does not include any intermediary;
(c) "adjudicating officer" means an adjudicating officer appointed under subsection (1) of section 46;
(d) "affixing digital signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature;
(e) "appropriate Government" means as respects any matter,-
(i) "computer" means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network;
(j) "computer network" means the interconnection of one or more computers through—
(i) the use of satellite, microwave, terrestrial line or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained;
(k) "computer resource" means computer, computer system, computer network, data,computer data base or software;
(l) "computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions;
(m) "Controller" means the Controller of Certifying Authorities appointed under sub-section (l) of section 17; (n) "Cyber Appellate Tribunal" means the Cyber Regulations Appellate Tribunal established under sub-section (1) of section 48;
(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;
(p) "digital signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3;
(q) "Digital Signature Certificate" means a Digital Signature Certificate issued under sub-section (4) of section 35;
(r) "electronic form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;
(s) "Electronic Gazette" means the Official Gazette published in the electronic form;
(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;
(u) "function", in relation to a computer, includes logic, control arithmetical process, deletion, storage and retrieval and communication or telecommunication from or within a computer;
(v) "information" includes data, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche:
(w) "intermediary" with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;
(x) "key pair", in an asymmetric crypto system, means a private key and its mathematically related public key, which are so related that the public key can verify a digital signature created by the private key;
(y) "law" includes any Act of Parliament or of a State Legislature, Ordinances promulgated by the President or a Governor, as the case may be. Regulations made by the President under article 240, Bills enacted as President's Act under sub-clause (a) of clause (1) of article 357 of the Constitution and includes rules, regulations, bye-laws and orders issued or made thereunder;
(z) "licence" means a licence granted to a Certifying Authority under section 24;
(za) "originator" means a person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary;
(zb) "prescribed" means prescribed by rules made under this Act; (zc) "private key" means the key of a key pair used to create a digital signature; (zd) "public key" means the key of a key pair used to verify a digital signature and listed in the Digital Signature Certificate; (ze) "secure system" means computer hardware, software, and procedure that- (b) provide a reasonable level of reliability and correct operation;
(c) are reasonably suited to performing the intended functions; and
(d) adhere to generally accepted security procedures;
- (zf) "security procedure" means the security procedure prescribed under section 16 by the Central Government; (zg) "subscriber" means a person in whose name the Digital Signature Certificate is issued; (zh) "verify" in relation to a digital signature, electronic record or public key, with its grammatical variations and cognate expressions means to determine whether-
(b) the initial electronic record is retained intact or has been altered since such electronic record was so affixed with the digital signature.
(2) Any reference in this Act to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
CHAPTER II
DIGITAL SIGNATURE
3. Authentication of electronic records.
(1) Subject to the provisions of this section any subscriber may authenticate an electronic record by affixing his digital signature.
DIGITAL SIGNATURE
3. Authentication of electronic records.
(1) Subject to the provisions of this section any subscriber may authenticate an electronic record by affixing his digital signature.
(2) The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record.
Explanation.- For the purposes of this sub-section, "hash function" means an algorithm mapping or translation of one sequence of bits into another, generally smaller, set known'as "hash result" such that an electronic record yields the same hash result every time the algorithm is executed with the same electronic record as its input making it computationally infeasible-
(a) to derive or reconstruct the original electronic record from the hash result produced by the algorithm;(b) that two electronic records can produce the same hash result using the algorithm.
(3) Any person by the use of a public key of the subscriber can verify the electronic record.
(4) The private key and the public key are unique to the subscriber and constitute a functioning key pair.
CHAPTER III
ELECTRONIC GOVERNANCE
4. Legal recognition of electronic records.
Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
ELECTRONIC GOVERNANCE
4. Legal recognition of electronic records.
Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
- (a) rendered or made available in an electronic form; and
(b) accessible so as to be usable for a subsequent reference.
5. Legal recognition of digital signatures.
Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person (hen, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government.
Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person (hen, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government.
Explanation.- For the purposes of this section, "signed", with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark on any document and the expression "signature" shall be construed accordingly.
6. Use of electronic records and digital signatures in Government and its agencies.(1) Where any law provides for-
(a) the filing of any form. application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner; (b) the issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner; (c) the receipt or payment of money in a particular manner,
then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have been satisfied if such filing, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic form as may be prescribed by the appropriate Government.
(2) The appropriate Government may, for the purposes of sub-section (1), by rules, prescribe-7. Retention of electronic records.
(1) Where any law provides that documents, records or information shall be retained for any specific period, then, that requirement shall be deemed to have been satisfied if such documents, records or information are retained in the electronic form, if-
(1) Where any law provides that documents, records or information shall be retained for any specific period, then, that requirement shall be deemed to have been satisfied if such documents, records or information are retained in the electronic form, if-
Provided that this clause does not apply to any information which is automatically generated solely for the purpose of enabling an electronic record to be despatched or received.
(2) Nothing in this section shall apply to any law that expressly provides for the retention of documents, records or information in the form of electronic records. 8. Publication of rule, regulation, etc., in Electronic Gazette.
Where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette:
Where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette:
Provided that where any rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form.
9. Sections 6,7 and 8 not to confer right to insist document should be accepted in electronic form.
Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.
Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.
10. Power to make rules by Central Government in respect of digital signature.
The Central Government may, for the purposes of this Act, by rules, prescribe—
The Central Government may, for the purposes of this Act, by rules, prescribe—
-
(a) the type of digital signature;
(b) the manner and format in which the digital signature shall be affixed;
(c) the manner or procedure which facilitates identification of the person affixing the digital signature;
(d) control processes and procedures to ensure adequate integrity, security and confidentiality of electronic records or payments; and
(e) any other matter which is necessary to give legal effect to digital signatures.
CHAPTER IV
ATTRIBUTION, ACKNOWLEDGMENT AND DESPATCH OF ELECTRONIC RECORDS
11.Attribution of electronic records.
An electronic record shall be attributed to the originator—
ATTRIBUTION, ACKNOWLEDGMENT AND DESPATCH OF ELECTRONIC RECORDS
11.Attribution of electronic records.
An electronic record shall be attributed to the originator—
(a) if it was sent by the originator himself; (b) by a person who had the authority to act on behalf of the originator in respect of that electronic record; or (c) by an information system programmed by or on behalf of the originator to operate automatically.
12. Acknowledgment of receipt.
(1) Where the originator has not agreed with the addressee that the acknowledgment of receipt of electronic record be given in a particular form or by a particular method, an acknowledgment may be given by-
(1) Where the originator has not agreed with the addressee that the acknowledgment of receipt of electronic record be given in a particular form or by a particular method, an acknowledgment may be given by-
(2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgment of such electronic record by him, then unless acknowledgment has been so received, the electronic record shall be deemed to have been never sent by the originator.
(3) Where the originator has not stipulated that the electronic record shall be binding only on receipt of such acknowledgment, and the acknowledgment has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, then the originator may give notice to the addressee stating that no acknowledgment has been received by him and specifying a reasonable time by which the acknowledgment must be received by him and if no acknowledgment is received within the aforesaid time limit he may after giving notice to the addressee, treat the electronic record as though it has never been sent.
13. Time and place of despatch and receipt of electronic record.
(1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator.
(1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator.
(2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely :-
- (a) if the addressee has designated a computer resource for the purpose of receiving electronic records,-
-
(b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee.
(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.
(4) The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub-section (3).(5) For the purposes of this section,-
CHAPTER V
SECURE ELECTRONIC RECORDS AND SECURE DIGITAL SIGNATURES
14. Secure electronic record.
Where any security procedure has been applied to an electronic record at a specific point of time. then such record shall be deemed to be a secure electronic record from such point of time to the time of verification.
15. Secure digital signature.SECURE ELECTRONIC RECORDS AND SECURE DIGITAL SIGNATURES
14. Secure electronic record.
Where any security procedure has been applied to an electronic record at a specific point of time. then such record shall be deemed to be a secure electronic record from such point of time to the time of verification.
If, by application of a security procedure agreed to by the parties concerned, it can be verified that a digital signature, at the time it was affixed, was-
- (a) unique to the subscriber affixing it;
(b)capable of identifying such subscriber;
(c) created in a manner or using a means under the exclusive control of the subscriber and is linked to the electronic record to which it relates in such a manner that if the electronic record was altered the digital signature would be invalidated,
16. Security procedure.
The Central Government shall for the purposes of this Act prescribe the security procedure having regard to commercial circumstances prevailing at the time when the procedure was used, including—
The Central Government shall for the purposes of this Act prescribe the security procedure having regard to commercial circumstances prevailing at the time when the procedure was used, including—
(a) the nature of the transaction; (b) the level of sophistication of the parties with reference to their technological capacity; (c) the volume of similar transactions engaged in by other parties; (d) the availability of alternatives offered to but rejected by any party; (e) the cost of alternative procedures; and (f) the procedures in general use for similar types of transactions or communications.
CHAPTER VI
REGULATION OF CERTIFYING AUTHORITIES
17. Appointment of Controller and other officers.
(1) The Central Government may, by notification in the Official Gazette, appoint a Controller of Certifying Authorities for the purposes of this Act and may also by the same or subsequent notification appoint such number of Deputy Controllers and Assistant Controllers as it deems fit.
REGULATION OF CERTIFYING AUTHORITIES
17. Appointment of Controller and other officers.
(1) The Central Government may, by notification in the Official Gazette, appoint a Controller of Certifying Authorities for the purposes of this Act and may also by the same or subsequent notification appoint such number of Deputy Controllers and Assistant Controllers as it deems fit.
(2) The Controller shall discharge his functions under this Act subject to the general control and directions of the Central Government.
(3) The Deputy Controllers and Assistant Controllers shall perform the functions assigned to them by the Controller under the general superintendence and control of the Controller.
(4) The qualifications, experience and terms and conditions of service of Controller, Deputy Controllers and Assistant Controllers shall be such as may be prescribed by the Central Government.
(5) The Head Office and Branch Office of the office of the Controller shall be at such places as the Central Government may specify, and these may be established at such places as the Central Government may think fit.
(6) There shall be a seal of the Office of the Controller. 18. Functions of Controller.
The Controller may perform all or any of the following functions, namely:-
(a) exercising supervision over the activities of the Certifying Authorities;
(b) certifying public keys of the Certifying Authorities;
(c) laying down the standards to be maintained by the Certifying Authorities;
(d) specifying the qualifications and experience which employees of the Certifying Authorities should possess;
(e) specifying the conditions subject to which the Certifying Authorities shall conduct their business;
(f) specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of a Digital Signature Certificate and the public key;
(g) specifying the form and content of a Digital Signature Certificate and the key,
(h) specifying the form and manner in which accounts shall be maintained by the Certifying Authorities;
(i) specifying the terms and conditions subject to which auditors may be appointed and the remuneration to be paid to them;
(j) facilitating the establishment of any electronic system by a Certifying Authority either solely or jointly with other Certifying Authorities and regulation of such systems;
(k) specifying the manner in which the Certifying Authorities shall conduct their dealings with the subscribers;
(l) resolving any conflict of interests between the Certifying Authorities and the subscribers;
(m) laying down the duties of the Certifying Authorities;
(n) maintaining a data base containing the disclosure record of every Certifying Authority containing such particulars as may be specified by regulations, which shall be accessible to public.
19. Recognition of foreign Certifying Authorities.
(1) Subject to such conditions and restrictions as may be specified by regulations, the Controller may with the previous approval of the Central Government, and by notification in the Official Gazette, recognise any foreign Certifying Authority as a Certifying Authority for the purposes of this Act.
(2) Where any Certifying Authority is recognised under sub-section (1), the Digital Signature Certificate issued by such Certifying Authority shall be valid for the purposes of this Act.
(3) The Controller may, if he is satisfied that any Certifying Authority has contravened any of the conditions and restrictions subject to which it was granted recognition under sub-section (1) he may, for reasons to be recorded in writing, by notification in the Official Gazette, revoke such recognition.
20. Controller to act as repository.
(1) The Controller shall be the repository of all Digital Signature Certificates issued under this Act.
(1) The Controller shall be the repository of all Digital Signature Certificates issued under this Act.
(2) The Controller shall-
- (a) make use of hardware, software and procedures that are secure from intrusion and misuse;
- (b) observe such other standards as may be prescribed by the Central Government, to ensure that the secrecy and security of the digital signatures are assured.
(3) The Controller shall maintain a computerised data base of all public keys in such a manner that such data base and the public keys are available to any member of the public.
21. Licence to issue Digital Signature Certificates.
(1) Subject to the provisions of sub-section (2), any person may make an application, to the Controller, for a licence to issue Digital Signature Certificates.
(2) No licence shall be issued under sub-section (1), unless the applicant fulfills such requirements with respect to qualification, expertise, manpower, financial resources and other infrastructure facilities, which are necessary to issue Digital Signature Certificates as may be prescribed by the Central Government(1) Subject to the provisions of sub-section (2), any person may make an application, to the Controller, for a licence to issue Digital Signature Certificates.
(3) A licence granted under this section shall—
- (a) be valid for such period as may be prescribed by the Central Government;
(b) not be transferable or heritable;
(c) be subject to such terms and conditions as may be specified by the regulations.
22. Application for licence.
(1) Every application for issue of a licence shall be in such form as may be prescribed by the Central Government.
(2) Every application for issue of a licence shall be accompanied by-
(a) a certification practice statement;(1) Every application for issue of a licence shall be in such form as may be prescribed by the Central Government.
(2) Every application for issue of a licence shall be accompanied by-
(b) a statement including the procedures with respect to identification of the applicant;
(c) payment of such fees, not exceeding twenty-five thousand rupees as may be prescribed by the Central Government;
(d) such other documents, as may be prescribed by the Central Government.
23. Renewal of licence.
An application for renewal of a licence shall be-
(a) in such form;
(b) accompanied by such fees, not exceeding five thousand rupees,
as may be prescribed by the Central Government and shall be made not less than forty-five days before the date of expiry of the period of validity of the licence.
24. Procedure for grant or rejection of licence.
The Controller may, on receipt of an application under sub-section (1) of section 21, after considering the documents accompanying the application and such other factors, as he deems fit, grant the licence or reject the application:
Provided that no application shall be rejected under this section unless the applicant has been given a reasonable opportunity of presenting his case.The Controller may, on receipt of an application under sub-section (1) of section 21, after considering the documents accompanying the application and such other factors, as he deems fit, grant the licence or reject the application:
25. Suspension of licence.
(1) The Controller may, if he is satisfied after making such inquiry, as he may think fit, that a Certifying Authority has,-
(a) made a statement in, or in relation to, the application for the issue or renewal of the licence, which is incorrect or false in material particulars;(1) The Controller may, if he is satisfied after making such inquiry, as he may think fit, that a Certifying Authority has,-
(b) failed to comply with the terms and conditions subject to which the licence was granted;
(c) failed to maintain the standards specified under clause (b) of sub-section (2) of section 20;
(d) contravened any provisions of this Act, rule, regulation or order made thereunder, revoke the licence:
Provided that no licence shall be revoked unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed revocation.
(2) The Controller may, if he has reasonable cause to believe that there is any ground for revoking a licence under sub-section (1), by order suspend such licence pending the completion of any inquiry ordered by him:
Provided that no licence shall be suspended for a period exceeding ten days unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed suspension.
(3) No Certifying Authority whose licence has been suspended shall issue any Digital Signature Certificate during such suspension.26. Notice of suspension or revocation of licence.
(1) Where the licence of the Certifying Authority is suspended or revoked, the Controller shall publish notice of such suspension or revocation, as the case may be, in the database maintained by him.
(2) Where one or more repositories are specified, the Controller shall publish notices of such suspension or revocation, as the case may be, in all such repositories:(1) Where the licence of the Certifying Authority is suspended or revoked, the Controller shall publish notice of such suspension or revocation, as the case may be, in the database maintained by him.
Provided that the data base containing the notice of such suspension or revocation, as the case may be, shall be made available through a web site which shall be accessible round the clock:
Provided further that the Controller may, if he considers necessary, publicise the contents of database in such electronic or other media, as he may consider appropriate.
27. Power to delegate.
The Controller may, in writing, authorise the Deputy Controller, Assistant Controller or any officer to exercise any of the powers of the Controller under this Chapter.
28. Power to investigate contraventions.
(1) The Controller or any officer authorised by him in this behalf shall take up for investigation any contravention of the provisions of this Act, rules or regulations made thereunder.
(1) The Controller or any officer authorised by him in this behalf shall take up for investigation any contravention of the provisions of this Act, rules or regulations made thereunder.
(2) The Controller or any officer authorised by him in this behalf shall exercise the like powers which are conferred on Income-tax authorities under Chapter XIII of the Income-tax Act, 1961 and shall exercise such powers, subject to such limitations laid down under that Act.
29. Access to computers and data.
(1)Without prejudice to the provisions of sub-section (1) of section 69, the Controller or any person authorised by him shall, if he has reasonable cause to suspect that any contravention of the provisions of this Act, rules or regulations made thereunder has been committed, have access to any computer system, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or available to such computer system.
(1)Without prejudice to the provisions of sub-section (1) of section 69, the Controller or any person authorised by him shall, if he has reasonable cause to suspect that any contravention of the provisions of this Act, rules or regulations made thereunder has been committed, have access to any computer system, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or available to such computer system.
(2) For the purposes of sub-section (1), the Controller or any person authorised by him may, by order, direct any person incharge of, or otherwise concerned with the operation of, the computer system, data apparatus or material, to provide him with such reasonable technical and other assistance as he may consider necessary.
30. Certifying Authority to follow certain procedures.Every Certifying Authority shall,-
(a) make use of hardware, software and procedures that are secure from intrusion and misuse;
(b) provide a reasonable level of reliability in its services which are reasonably suited to the performance of intended functions;
(c) adhere to security procedures to ensure that the secrecy and privacy of the digital signatures are assured; and
(d) observe such other standards as may be specified by regulations.
31. Certifying Authority to ensure compliance of the Act, etc.
Every Certifying Authority shall ensure that every person employed or otherwise engaged by it complies, in the course of his employment or engagement, with the provisions of this Act, rules, regulations and orders made thereunder.
32. Display of licence.Every Certifying Authority shall ensure that every person employed or otherwise engaged by it complies, in the course of his employment or engagement, with the provisions of this Act, rules, regulations and orders made thereunder.
Every Certifying Authority shall display its licence at a conspicuous place of the premises in which it carries on its business.
33. Surrender of licence.
(1) Every Certifying Authority whose licence is suspended or revoked shall immediately after such suspension or revocation, surrender the licence to the Controller.
(2) Where any Certifying Authority fails to surrender a licence under sub-section (1), the person in whose favour a licence is issued, shall be guilty of an offence and shall be punished with imprisonment which may extend up to six months or a fine which may extend up to ten thousand rupees or with both.
34. Disclosure.
(1) Every Certifying Authority shall disclose in the manner specified by regulations-
(a) its Digital Signature Certificate which contains the public key corresponding to the private key used by that Certifying Authority to digitally sign another Digital Signature Certificate;(1) Every Certifying Authority shall disclose in the manner specified by regulations-
(b) any certification practice statement relevant thereto;
(c) notice of the revocation or suspension of its Certifying Authority certificate, if any; and
(d) any other fact that materially and adversely affects either the reliability of a Digital Signature Certificate, which that Authority has issued, or the Authority's ability to perform its services.
(2) Where in the opinion of the Certifying Authority any event has occurred or any situation has arisen which may materially and adversely affect the integrity of its computer system or the conditions subject to which a Digital Signature Certificate was granted, then, the Certifying Authority shall-
(a) use reasonable efforts to notify any person who is likely to be affected by that occurrence; or
(b) act in accordance with the procedure specified in its certification practice statement to deal with such event or situation.
(b) act in accordance with the procedure specified in its certification practice statement to deal with such event or situation.
CHAPTER VII
Digital Signature Certificates
35. Certifying Authority to issue Digital Signature Certificate.
(1) Any person may make an application to the Certifying Authority for the issue of a Digital Signature Certificate in such form as may be prescribed by the Central Government
Digital Signature Certificates
35. Certifying Authority to issue Digital Signature Certificate.
(1) Any person may make an application to the Certifying Authority for the issue of a Digital Signature Certificate in such form as may be prescribed by the Central Government
(2) Every such application shall be accompanied by such fee not exceeding twenty-five thousand rupees as may be prescribed by the Central Government, to be paid to the Certifying Authority:
Provided that while prescribing fees under sub-section (2) different fees may be prescribed for different classes of applicants'.
(3) Every such application shall be accompanied by a certification practice statement or where there is no such statement, a statement containing such particulars, as may be specified by regulations.
(4) On receipt of an application under sub-section (1), the Certifying Authority may, after consideration of the certification practice statement or the other statement under sub-section (3) and after making such enquiries as it may deem fit, grant the Digital Signature Certificate or for reasons to be recorded in writing, reject the application:
Provided that no Digital Signature Certificate shall be granted unless the Certifying Authority is satisfied that-
(a) the applicant holds the private key corresponding to the public key to be listed in the Digital Signature Certificate;(b) the applicant holds a private key, which is capable of creating a digital signature;
(c) the public key to be listed in the certificate can be used to verify a digital signature affixed by the private key held by the applicant:
Provided further that no application shall be rejected unless the applicant has been given a reasonable opportunity of showing cause against the proposed rejection.
36. Representations upon issuance of Digital Signature Certificate.
A Certifying Authority while issuing a Digital Signature Certificate shall certify that--
(a) it has complied with the provisions of this Act and the rules and regulations made thereunder,A Certifying Authority while issuing a Digital Signature Certificate shall certify that--
(b) it has published the Digital Signature Certificate or otherwise made it available to such person relying on it and the subscriber has accepted it;
(c) the subscriber holds the private key corresponding to the public key, listed in the Digital Signature Certificate;
(d) the subscriber's public key and private key constitute a functioning key pair,
(e) the information contained in the Digital Signature Certificate is accurate; and
(f) it has no knowledge of any material fact, which if it had been included in the Digital Signature Certificate would adversely affect the reliability of the representations made in clauses (a) to (d).
37. Suspension of Digital Signature Certificate.
(1) Subject to the provisions of sub-section (2), the Certifying Authority which has issued a Digital Signature Certificate may suspend such Digital Signature Certificate,-
(1) Subject to the provisions of sub-section (2), the Certifying Authority which has issued a Digital Signature Certificate may suspend such Digital Signature Certificate,-
(ii) any person duly authorised to act on behalf of that subscriber,
(2) A Digital Signature Certificate shall not be suspended for a period exceeding fifteen days unless the subscriber has been given an opportunity of being heard in the matter.
(3) On suspension of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber.
38. Revocation of Digital Signature Certificate.
(1) A Certifying Authority may revoke a Digital Signature Certificate issued by it-
(1) A Certifying Authority may revoke a Digital Signature Certificate issued by it-
(b) upon the death of the subscriber, or
(c) upon the dissolution of the firm or winding up of the company where the subscriber is a firm or a company.
(a) a material fact represented in the Digital Signature Certificate is false or has been concealed;
(b) a requirement for issuance of the Digital Signature Certificate was not satisfied;
(c) the Certifying Authority's private key or security system was compromised in a manner materially affecting the Digital Signature Certificate's reliability;
(d) the subscriber has been declared insolvent or dead or where a subscriber is a firm or a company, which has been dissolved, wound-up or otherwise ceased to exist
(3) A Digital Signature Certificate shall not be revoked unless the subscriber has been given an opportunity of being heard in the matter.
(4) On revocation of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber.
39. Notice of suspension or revocation.
(1) Where a Digital Signature Certificate is suspended or revoked under section 37 or section 38, the Certifying Authority shall publish a notice of such suspension or revocation, as the case may be, in the repository specified in the Digital Signature Certificate for publication of such notice.
(2) Where one or more repositories are specified, the Certifying Authority shall publish notices of such suspension or revocation, as the case may he. in all such repositories. (1) Where a Digital Signature Certificate is suspended or revoked under section 37 or section 38, the Certifying Authority shall publish a notice of such suspension or revocation, as the case may be, in the repository specified in the Digital Signature Certificate for publication of such notice.
CHAPTER VIII
DUTIES OF SUBSCRIBERS
40. Generating key pair.
Where any Digital Signature Certificate, the public key of which corresponds to the private key of that subscriber which is to be listed in the Digital Signature Certificate has been accepted by a subscriber, then, the subscriber shall generate the key pair by applying the security procedure.
41. Acceptance of Digital Signature Certificate.
(1) A subscriber shall be deemed to have accepted a Digital Signature Certificate if he publishes or authorises the publication of a Digital Signature Certificate-
(b) in a repository, or otherwise demonstrates his approval of the Digital Signature Certificate in any manner.
(b) all representations made by the subscriber to the Certifying Authority and all material relevant to the information contained in the Digital Signature Certificate are true;
(c) all information in the Digital Signature Certificate that is within the knowledge of the subscriber is true.
42. Control of private key.
(1) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and take all steps to prevent its disclosure to a person not authorised to affix the digital signature of the subscriber.
(1) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and take all steps to prevent its disclosure to a person not authorised to affix the digital signature of the subscriber.
(2) If the private key corresponding to the public key listed in the Digital Signature Certificate has been compromised, then, the subscriber shall communicate the same without any delay to the Certifying Authority in such manner as may be specified by .the regulations.
Explanation.- For the removal of doubts, it is hereby declared that the subscriber shall be liable till he has informed the Certifying Authority that the private key has been compromised.
CHAPTER IX
PENALTIES AND ADJUD1CATION
43. Penalty for damage to computer, computer system, etc.
If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network,-
(a) accesses or secures access to such computer, computer system or computer network;PENALTIES AND ADJUD1CATION
43. Penalty for damage to computer, computer system, etc.
If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network,-
(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(c) i ntroduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,
he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.
(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or computer network;
(ii) "computer data base" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network;
(iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, daia or instruction is executed or some other event takes place in that computer resource;
(iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means.44. Penalty for failure to furnish information return, etc.
If any person who is required under this Act or any rules or regulations made thereunder to—
If any person who is required under this Act or any rules or regulations made thereunder to—
(a) furnish any document, return or report to the Controller or ?he Certifying Authority fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand rupees for each such failure;
(b) file any return or furnish any information, books or other documents within the time specified therefor in the regulations fails to file return or furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which such failure continues;
(c) maintain books of account or records, fails to maintain the same, he shall be liable to a penalty not exceeding ten thousand rupees for every day during which the failure continues.
(b) file any return or furnish any information, books or other documents within the time specified therefor in the regulations fails to file return or furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which such failure continues;
(c) maintain books of account or records, fails to maintain the same, he shall be liable to a penalty not exceeding ten thousand rupees for every day during which the failure continues.
45. Residuary penalty.
Whoever contravenes any rules or regulations made under this Act, for .the contravention of which no penalty has been separately provided, shall be liable to pay a compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees.
Whoever contravenes any rules or regulations made under this Act, for .the contravention of which no penalty has been separately provided, shall be liable to pay a compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees.
46. Power to adjudicate.
(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder the Central Government shall, subject to the provisions of sub-section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer'for holding an inquiry in the manner prescribed by the Central Government.
(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder the Central Government shall, subject to the provisions of sub-section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer'for holding an inquiry in the manner prescribed by the Central Government.
(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section.
(3) No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government.
(4) Where more than one adjudicating officers are appointed, the Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction.
(5) Every adjudicating officer shall have the powers of a civil court which are conferred oh the Cyber Appellate Tribunal under sub-section (2) of section 58, and— (b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.
47. Factors to be taken into account by the adjudicating officer.
While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely:-
(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely:-
(b) the amount of loss caused to any person as a result of the default;
(c) the repetitive nature of the default
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