Chargesheet vs FIR

What is a Chargesheet?

Charge sheet refers to a formal police record showing the names of each person brought into custody, the nature of the accusations, and the identity of the accusers. It is the next step after the FIR followed by the investigation by the police. Chargesheet is important step in starting the court proceedings for the offence against the accused.

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Difference between FIR and Chargesheet:

FIR: 

It is a core document that describes that the crime had been committed. It sets the police machinery in action. It has the information about the offence, the accused, the complainant and the details about the offence It is made by the police based on the complainant’s complaint It can be quashed only by High court as per section 482 of CrPC.

Chargesheet:

A chargesheet usually refers to one or more FIRs and charges an individual or organization for (some or all of) the crimes specified in those FIR(s). It sets the court’s trial process against the accused in motion. It has the information about the accused and the witnesses; the charges and specifications; the preferring of charges and their referral to a summary; it is for the trial record. It is made by the police based on the FIR, offence investigation and charges thereof. Can be quashed only by High court as per section 482 of CrPC

The word chargesheet does not find place in the CrPC, but under section 173 Report of police officer on completion of investigation i.e. the document containing the investigation details and thereby justifying the charges as per the investigation, hence in the common language referred to as the Chargesheet.

1.Every investigation under this Chapter shall be completed without unnecessary delay.

2. (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- 

a. the names of the parties; 

b. the nature of the information; 

c. the names of the persons who appear to be acquainted with the circumstances of the case; d. whether any offence appears to have been committed and, if so, by whom; 

e. whether the accused has been arrested; 

f. whether he has been released on his bond and, if so, weather with or without sureties; 

g. whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

Time limit for Filing Charge-Sheet?

The time limit to file charge sheet is related to arrest of the accused in the case. 

When is accused is still in police custody, the charge sheet is to be filed within 60 days from the date of arrest of the accused in cases where the maximum punishments does not exceed 7 years and 90 days in cases where the maximum punishment exceeds 7 years.

If the accused is already on bail or released on bond after the preliminary enquiry by the police, then the police may file the chargesheet anytime before the completion of the maximum period of the punishment of the alleged offence.

What can be done in case of delay in filing the chargesheet?

An individual can approach the higher authorities of the police or write to them for their intervention

OR

One can approach the respective state Highcourt under section 482 of the CrPC for issuing directions to police to file the chargesheet without any further delay. The party approaching the Highcourt has to satisfy the Highcourt on the urgency and the need for their intervention.

Effects of delay in filing the charge sheet: 

The accused may apply for the default bail and may be released by the concerned court after the accused complies with the bail conditions.

However, the exception to the above is the landmark judgement of the Honourable Supreme Court:

In Rakesh Kumar Paul [4] case, where accused was charged with offence under Section 13(1) of the Prevention of Corruption Act being punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years, the State argued since the petitioner could face imprisonment that could extend up to 10 years; the date for applying for default bail would commence on the expiry of 90 days.

However, Justice Madan Bhimarao Lokur of Supreme Court held that the petitioner had satisfied all the requirements of obtaining Default Bail he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet has been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail. Justice Deepak Gupta of Supreme Court further held that Section 167 (detention, remand & default bail) (2((a)(i) of the CrPC is applicable only in cases where the accused is charged with:

1. offences punishable with death and any lower sentence;

2. offences punishable with life imprisonment and any lower sentence and

3. offences punishable with minimum sentence of 10 years; in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment, then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of default bail after 60 days, in case charge-sheet is not filed.

It was also held, in matters of personal liberty, we cannot and should not be too technical and must lean in favor of personal liberty. In Aslam Babalal Desai (1992) case,Supreme Court has held, The provisions of the Code, in particular Sections 57 (person arrested not to be detained more than 24 hours) and 167 (detention, remand & default bail), manifest the legislative anxiety that once a person’s liberty has been interfered with by the police arresting him without a courts order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to Section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Section 437(1) or (2) {when bail may be taken in case of non-bailable offence} or Section 439(1) {Special powers of High Court or Court of Session regarding bail} of the Code. Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or Section 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437(1) or (2) or Section 439(1) of the Code. No case for grant of bail will be made out under section 167(2) of the Code if charge sheet is filed before the expiry of 90 days or 60 days, as the case may be, from the date of first remand. The right of default bail is lost, once charge sheet is filed. Default bail is a sort of a rap on the knuckles of the police for not completing the investigation and filing the final report within 90 or 60 days of first remand of the accused. However, for the failure of a Judge to pass a formal judicial order of extension of remand on the application of the prosecution, default bail is not the remedy. The maxim Actus Curiae Neminem Gravabit meaning – an act of the Court shall prejudice no one, cannot be ignored. Such a ground for bail cannot be founded either under section 167(2) or section 437 of the Code.

Conclusion:

A chargesheet is a core document after the FIR that sets the court process in motion for the said offence. The chargesheet has to be filed in the court by the police after completion of the investigation in the said offence. The time limit max 60 to 90 days incase of depending on the offence and punishments for it if the accused is is in custody.

Principles of Natural Justice

Principles of Natural Justice are those rules which have been laid down by courts as being minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights.

Norms of Natural Justice: Norms of Natural Justice are as follows:

a. No one should be condemned unheard;

b. No one shall be judge in one’s own case;

c. A party is entitled to know the reasons for the decision;

d. Making available a copy of statutory report.

Principles of Natural Justice: There are mainly two Principles of Natural Justice and these two principles are:

(A) Nemo Judex in Causa Sua (Rule Against Bias) &

(B) Audi Alteram Partem (Rule of Fair Hearing).

(A) Nemo Judex in Causa Sua (Rule Against Bias): 

Nemo Judex in Causa Sua is a Latin word which means “No man shall be a judge in his own cause”. It means the deciding authority must be impartial and without bias. It implies that no man can act as a judge for a cause in which he has some interest which may be pecuniary or otherwise.

Bias: 

Bias means an operative prejudice, whether conscious or unconscious, in relation to a party or issue. As a result of this, the ‘Rule Against Bias’ strikes against those factors which may improperly influence a judge in arriving out at a decision in any particular case.

The requirement of this principle is that the judge must be impartial and must decide the case objectively on the basis of evidence on record and merit. Therefore, if a person for whatever the reason, cannot take an objective decision on the basis of evidence on record and on merit he/she shall be said to be biased.

A person cannot take an objective decision in a case in which he/she has an interest for, as human psychology tells that, very rarely can people take decisions against their own interests. This rule of disqualification is applied not only to avoid the possibility of a partial decision but also to ensure public confidence in the impartiality of the administrative adjudicatory process because not only must “no man be judge in his/her own cause” but also “justice should not only be done but should manifestly and undoubtedly be seen to be done”.

On the basis of above, it is clear that Rule Against Bias is so important in Principles of Natural Justice and it is required to be discussed in length. There are many kind of ‘Bias’ under this principle. Primely important ‘Bias’ components are discussed in successive paras hereinafter.

Personal Bias: 

It arises from a certain relationship equation between the deciding authorities and the parties which results into inclination of him/her unfavourably or otherwise on the side of one of the parties. Such equation may develop out of varied form of personal or professional hostility or friendship.

An example of Personal Bias can be taken from a judgement delivered by Hon. Apex Court that it quashed the selection list prepared by Departmental Promotion Committee (DPC) which considered the confidential reports of candidates prepared by an officer who himself was a candidate for promotion. In this case, Principle of Natural Justice – Rule against Bias (Personal Bias) was not followed.

Pecuniary Bias: 

The kind of favour/bias which involves financial interest and decision is affected is known as Pecuniary Bias. Judicial approach is unanimous and decisive on the on the point that any financial interest whether small or huge would vitiate administrative as well as judicial action. Pecuniary Biased member cannot be involved in any decision-making machinery as chances of fair and impartial decision may not be delivered.

In a case, Hon. Supreme Court quashed the decision of the Textbook Selection Committee because some of its members were also authors of books which were considered for selection.

Subject Matter Bias: 

Those cases fall within this category where the deciding authority is directly, or indirectly or otherwise, involved in the subject matter of the case. Mere involvement would not vitiate the administrative action unless there is a real likelihood of bias.

In a case, Hon. Supreme Court quashed the decision of the Andhra Pradesh Government, nationalizing road transport on the ground that the Secretary of the Transport Department who gave hearing was interested in the subject-matter.

Departmental bias or Instrumental bias:  

It when the functions of a Judge and the Prosecutor (Public Prosecutor/Government counsel) are combined in the same department as it is not uncommon to find that the same department which initiates the matter also decides, department which heard and decided the case was the same, the element of departmental bias vitiated administrative action.

The problem of departmental bias is something which is inherent in the administrative process, and if it is not effectively checked, it may negate the very concept of fairness in the administrative proceeding.

In a case, Hon. Supreme Court quashed the notification of the Government which conferred powers of a Deputy Superintendent of Police on the General Manager, Haryana Roadways in matters of inspection of vehicles on the ground of departmental bias. In this case, private bus operators alleged that the General Manager of Haryana Roadways who is a rival in business in the State, cannot be expected to discharge his duties in a fair and reasonable manner he would be too lenient in inspecting the vehicles belonging to his own department.

Preconceived Notion Bias: 

This type of bias is also known as unconscious bias. All person exercising adjudicatory powers are humans with human prejudices, no matter some persons are more humans than others. This may include class bias and personality bias. Every person is a product of a class and inherits some characteristics of the class which may also reflect in his decision-making process. In the same manner, the personality of every person is a combination of his biological and social heredity which determine his values and attitudes in a way that may condition his/her decision-making process. In general, it can be said community-based bias.

The problem of Preconceived Notion Bias is such which is inherent in any adjudication and cannot be eliminated unless detected by some over action of the authority and also is so detected can vitiate an administrative hearing if it has a direct relation with decision. This may include a situation where the deciding officer openly expresses his/her prejudice.

Bias on Account of Obstinacy: 

It is a new category of bias as discovered by Hon. Supreme Court arising out of thoroughly unreasonable obstinacy. It literally means unreasonable and unwavering persistence and the deciding officer would not take no for an answer. This category of bias was discovered in a situation where a judge of Hon. Calcutta high Court upheld its own judgement while sitting in appeal against its own judgement.

 (B) Audi Alteram Partem (Rule of Fair Hearing): 

Rule of fair hearing simply implies that a person must be given an opportunity to defend himself/herself as it is not merely of some importance but is of fundamental importance that justice should not be done but should manifestly and undoubtedly be seem to be done. However, refusal to participate in enquiry without valid reason cannot be pleaded as violation of natural justice at a later state.

The important components of this rule are – (a) Right to Notice; (b) Right to present case & evidence; (c) Right to Rebut Adverse Evidence; (d) Cross-Examination; (e) Legal Representation; (f) Report of Inquiry to be shown to the Other Party; (g) Post Decisional Hearing. These components of Rule of Fair Hearing are discussed in length in successive paras hereinafter.

Right to Notice: 

The term Notice originated from a latin word notitia means being known. ‘Notice’ is the starting point of any hearing in the case. Unless a person knows the formulation of subjects and issues involved in the case, he/she cannot defend himself/herself. It is not enough that the notice in the case be given, but it must be adequate also. Any decision taken without serving notice is liable to be quashed subject to conditions.

Notice which is to be served in the case is to be adequate and must contain – 

(i) sufficient information and material so as to enable the person concerned to put up an effective defence; 

(b) name of person to whom notice to be served; 

(c) Time, place & nature of hearing; 

(d) sufficient time to be given to comply with the requirement of notice; 

(e) Statement of specific charges which the person has to meet/alleged as a person cannot be punished for any other charge for which notice is not served. A notice should not create any dilapidated condition in the case.

Right to Present Case & Evidence: 

The adjudicatory authority should extend reasonable opportunity to the party to present his/her case. This can be done through writing or orally at the discretion of the authority unless the statute under which the authority is functioning directs or otherwise.

The requirements of natural justice are met only if opportunity to represent is given in view of the proposed action. The demands of natural justice are not met even if the very person proceeded against has been furnished information on which the action is based, if it is furnished in a casual way or for some other purposes. This does not mean that the opportunity need be a “double opportunity”, that is one opportunity on the factual allegations and another on the proposed penalty.

This can be done through writing or orally. Oral hearing is not an integral part of fair hearing unless the circumstances are so exceptional that without oral hearing a person cannot put up an effective defence. In a case where complex legal and technical questions are involved or where stakes are very high, oral hearing shall become a part of fair hearing. Thus, in the absence of a statutory requirement for oral hearing courts will decide the matter taking into consideration the facts and circumstances of every case.

Right to Rebut Adverse Evidence: 

The right to rebut adverse evidence presupposes that the person is informed about the evidence against him. This does not, however, necessitate the supply of adverse material in original in all cases. It is sufficient if the summary of the contents of the adverse material in made available provided it is not misleading.

The opportunity to rebut evidence necessarily involves the consideration of two factors: 

(i) Cross-Examination and (ii) Legal representation.

Cross-Examination: 

Cross-Examination is the most powerful weapon to elicit and establish truth. In case, where the witnesses have orally deposed, the refusal to allow cross-examination would certainly amount to violation of the principles of natural justice. In the area of labour relations and disciplinary proceedings against civil servants also, the right to cross-examination is included in the rule of fair hearing.

Legal Representation: 

Normally, representation through a lawyer in any administrative proceeding is not considered an indispensable part of the rule of natural justice as oral hearing is not included in the meaning of fair hearing. Denial of legal representation is justified on the ground that lawyers tend to complicate matters, prolong the proceedings and destroy the essential informality of the proceedings.

It is further justified on the ground that the representation through a lawyer of choice would give edge to the rich over the poor who cannot afford a good lawyer. The fact Techniques of Law remains that unless some kind of a legal aid is provided by the agency itself, the denial of legal representation would be a mistaken kindness to the poor people.

It is required to be established to what extent legal representation would be allowed in administrative proceedings depends on the provisions of the Statute. Factory Laws do not permit legal representation, Industrial Dispute Acts allows it with the permission of the Tribunal and some Statutes like Income Tax Act permit legal representation as a matter of right. However, the Courts in India have held that in situations where the person is illiterate, or the matter is complicated and technical, or expert evidence is on record or a question of law is involved, or the person is facing a trained prosecutor, some professional assistance must be given to the party to make his/her right to defend himself/herself correctly.

Report of Inquiry to be shown to the Other Party: 

It is experiences in many cases, especially in matters relating to disciplinary proceedings, on the basis of the report of the inquiry submitted by the Inquiry Officer, suitable action is taken by the competent authority. Under these circumstances a very natural question arises whether the copy of the report of the inquiry officer be supplied to the Charged Officer (DGS) before final decision is taken by the competent authority or otherwise? This question is important both from the constitutional and administrative law point of view.

One of the cardinal principles of the administrative law is that, any action which has civil consequences for any person cannot be taken without complying with the Principles of Natural Justice. Therefore, administrative law practice in disciplinary matter has always been whether failure to supply the copy of the Report of the Inquiry Officer to the Charged Officer (DGS) before final decision is taken by the competent authority would violate the principles of natural justice or otherwise?

In the same manner the constitutional question subsequently arises in such a situation, whether failure to supply the copy of the report of the Inquiry Officer to the Charged Officer (DGS) would violate the provisions of Article – 311(2) of the Constitution of India? 

Article – 311(2) of the Constitution provides that no government employee can be dismissed or removed or reduced in rank without giving him/her a reasonable opportunity of being heard in respect of charges framed against him/her. Therefore, it has always been a perplexing question whether failure to supply the report of the inquiry officer to the DGS before final decision is taken would amount to failure to provide “reasonable opportunity” as required under Article 311(2).

In the same line of interpretation, there is a question arises if copy of Inquiry Officer is not supplied to the DGS be treated as violation of Article 14 of the Constitution which enshrines the great harmonizing and rationalizing principle or otherwise?

Neither the findings nor the recommendations of the Inquiry Officer are binding on the Disciplinary Authority in disciplinary proceeding. The findings of Inquiry Officer with evidence recorded constitute material on which the government has ultimately to act and this is the only purpose of the Inquiry. Hence, it is advisable to show the findings of Inquiry officer to the DGS to satisfy the norm – reasonable opportunity under Principle of natural Justice.

The application of the principles of natural justice varies from case to case depending upon the factual aspect of the matter. For example, in the matters relating to major punishment, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules before a person is dismissed removed or reduced in rank, but where it relates to only minor punishment, a mere explanation submitted by the DGS concerned meets the requirement of principles of natural justice. Also, in some matters oral hearing may be necessary but in others, It may not be necessary.

The Law and Courts in India

The law in India can be divided in 2 basics laws:

a) Substantive Law  (b) Procedural Law

Substantive Law gives and defines “rights” and the Procedural Law lays down the machineries to implement Substantive rights. Thereby meaning that the Substantive law gives “rights” & the Procedural law “implements” it.

The Code of Criminal Procedure 1973 often referred as 'CrPC' is a Procedural Law.

There 2 types of justice system existing in the civilised countries world over:

1. Adversarial Criminal justice system   and

2. Inquisitorial Criminal Justice system. 

The Inquisitorial Criminal Justice System:- An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defence.

 

The Adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly.

The three very important attributes of the Adversarial Criminal Justice System are:

1. that the accused  is presumed innocent unless proven guilty.

 

2. the burden of proving the guilt against accused person lies on the Prosecution and it never shifts.  

3. In the Adversarial Criminal Justice System is Magistrate is treated as a neutral umpire. Magistrate does not take active interest or active involvement in the criminal trial.  Magistrate participates or interferes against only whenever it becomes immanent.  Therefore, the role of a Magistrate is to act as a neutral umpire to hear both the sides clearly and then to adjudicate.

The Indian criminal justice system follows the Adversarial Criminal Justice System. Magistrate does not take active interest or active involvement in the criminal trial. 

Section 6 CrPC, categorises the Criminal Courts as follows:

The powers, position & role of various courts:

High Court

High Court is the highest court exercising criminal jurisdiction  in a state. It hears appeal from District & Session Courts. Though,  it has original jurisdiction in some matters but predominantly, it is for hearing appeals from the District & Sessions Courts. It can pass any sentence authorised under law including Capital punishment (Death Sentence).   But the most important function that is performed by High Court is it exercises administrative control over the District Courts.   So, all the District courts are within the administrative control of High Court.

The Sessions court

The next court under the hierarchy is the Court of Sessions (Section 9-10 CrPC). Courts of Sessions are established by State Governments in every sessions division. CrPC categorises every district in a state into one session division and for each of a session division there is a provision of Session judge. The Session judge is the judge who presides over the court of Sessions. The court of Sessions is subordinate to the High Court  and it can pass any sentence authorised under law in force {Section 28(1)}  but a sentence of death has to be confirmed by the High Court {Section 28(2)}.  

Judicial Magistrate First Class/ Metropolitan Magistrates/District Judges

The next court under the hierarchy is the courts of Judicial Magistrate First Class/ Metropolitan Magistrates (Section 11-14). Judicial Magistrate First Class or Metropolitan Magistrates in a district is appointed by the High Court. The senior most Judicial Magistrate of First Class is designated as the Chief Judicial Magistrate. He heads the Magistracy in the district. The Chief Judicial Magistrate can pass any sentence authorised by law, except a sentence of death or life imprisonment or imprisonment exceeding 7 years {Section 29 (1)}.

The High Court may also appoint Additional Magistrates in any district in order to assist the Chief Judicial Magistrate (CJM). Additional Magistrate can pass any sentence of imprisonment not exceeding 3 years or of fine not exceeding fine of Rs. 5000 thousand or both {Section 29(2)}.

Judicial Magistrate Second Class

Judicial Magistrate Second Class (Section 15 CrPC) are appointed by High Court and they can pass any sentence of imprisonment not exceeding 1 year or of fine not exceeding Rs. 1000 or both {Section 29(3)}.

Executive Magistrate 

An Executive Magistrate is an officer of the Executive branch (as opposed to the Judicial branch) who is vested with specific powers under both the CrPC and the Indian Penal Code (IPC). Technically, the police are to assist the Executive Magistrate.

Conclusion:

The Indian criminal justice system follows the Adversarial Criminal Justice System. Magistrate does not take active interest or active involvement in the criminal trial.  Magistrate participates or interferes against only whenever it becomes immanent.  Therefore, the role of a Magistrate is to act as a neutral umpire to hear both the sides clearly and then to adjudicate.

The Courts system in India are designed to effectively cater to all regions of the country with clear demarkation of jurisdictions, powers, limits and process of appeals to higher courts.

Natural Justice

What is Natural Justice?

Natural Justice in simple terms can be defined as the minimum standards or principles which the administrative authorities should follow in deciding matters which have the civil consequences. Natural Justice represents higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting the rights of a private individual. One of the cardinal principles of the administrative law is that any action which has civil consequences for any person cannot be taken without complying with the Principles of Natural Justice.

The Principles of Natural Justice are firmly grounded under various Articles of the Constitution. There are mainly two principles of Natural Justice – 

(a) Rule against Bias & (b) Rule of Fair Hearing.

Concept of Natural Justice

Natural Justice is a concept of Common Law and it is the Common Law which is the counterpart of the American concept of procedural due process. Natural Justice implies – fairness, reasonableness, equity and equality.

The concept of doctrine of Principles of natural Justice and its application in justice delivery system is since the beginning of justice delivery system.

Natural Justice represents higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting the rights of a private individual.

Natural Justice is an expression of English common law which involves a procedural requirement of fairness. The term Natural Justice signifies basic principles of justice which are made available to everyone litigant during trial.

Historical background & development: 

Natural Justice is not a creation of Constitution or mankind; it is originated along with human history and civilization. The Greeks accepted the principle that no one should be condemned unheard. It was first applied in ‘Garden of Eden’ where opportunity to be heard was given to Adam and then he was punished.

Principles of Natural Justice are also found in (a) Arthsastra  written by Kautailya; (b) Manusmriti and many different texts as well. Before the beginning of era of Christ, Aristotle spoke about Principles of Natural Justice and called it as universal law.

Legal evolution: 

The birth of the Principle of Natural Justice cannot be ascertained in single time frame as it took its shape and necessity during the course human civilization. But, the Principles of Natural Justice through various decisions of courts can easily be ascertained through their application in a given situation may depend on multifarious factor. Hon. Supreme Court many times in its judgement talked about natural justice.

Constitutional provision: 

The Principles of Natural Justice are firmly grounded under various Articles of the Constitution. All fairness which is included in the principles of Natural justice can be read into Article 21 of the Constitution.

Article 14 applies not only to discriminatory class legislation but also to arbitrary or discriminatory State action. When a person is deprived of his/her life and personal liberty.

Violation of Natural Justice results in arbitration, therefore, violation of natural Justice is violation of Equality Clause of Article 14. As a result now, the principle of natural justice cannot be wholly disregarded by law because this would violate the fundamental rights guaranteed by Article 14 and 21 of the Constitution.

Norms of Natural Justice: 

a. No one should be condemned unheard;

b. No one shall be judge in one’s own case;

c. A party is entitled to know the reasons for the decision;

d. Making available a copy of statutory report.

The application of the principles of natural justice varies from case to case depending upon the factual aspect of the matter.

Writ Petetions

What Is A Writ?

A writ is a formal written order issued by Apex or Higher courts with more power. It is given to a court with a lower jurisdiction or public office or govt/semi-govt institutions or to an individual if any citizen’s fundamental rights are violated. A writ may be issued by the Indian Supreme Court in accordance with Article 32 of the Indian Constitution. The High Court also has this authority under Article 226. 

Lets understand the basic differences between Article 32 and Article 226 of the Indian Constitution.

Why Writ Is Required?

A writ petition is typically filed when someone’s fundamental rights have been violated or they have been the victim of injustice. For the following reasons, it is essentially a corrective measure provided by the constitution against the nation’s body responsible for maintaining law and order:

To assist people in defending their rights against judicial orders

The legal system’s authorized higher authorities do not object to providing an alternative to the harmed in the event of an accusation to guarantee that justice is administered and not obstructed.

In simple terms, enforcement of the Article 32 and 226 is done with the help of five prerogative Writs .

The following outlines the type of Writs, the steps to be taken, and the requirements that the petitioner must meet in the event that any fundamental rights have been violated.

1. Writ of Habeas Corpus:

You should have the body. 

Purpose: Release the person from illegal detention, Challenge the legality of detention.

Scope: 

• It is in the nature of an order calling upon the person who has detained another to produce the latter before the court 
• To know on what ground he has been detained 
• To set him free if there is no legal justification for the imprisonment 

Landmark Cases:

• Kanu Sanyal v. District Magistrate

the court may examine the legality of the detention without requiring the person detained to be produced before it 

• Sheela Barse v. State of Maharashtra

if the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf. 

• Nilabati Behera v. State of Orissa

The petitioner was awarded compensation of Rs. 1, 50, 000. 

2. Writ of Mandamus 

It is a courts order of commanding an inferior court or public authority to perform an official duty correctly

The Writ can granted against a public authority if :

• Acted against the law
• Exceeded his limits of power
• Acted with malafides 
• Did not apply his mind
• Abused his discretionary powers
• Did not take into account relevant consideration 
• Has taken into account irrelevant consideration 

Landmark cases:

• Hemendra v Gauhati University : 

Mandamus was issued to direct a University to announce that the petitioner has passed where, University had refused so to declare though the petitioner had obtained the pass marks required by the statutory rules of the University. 

• Barada Kanta v State of West Bengal : 

Writ of Mandamus cannot be issued against an individual person or any private organization because they are not entrusted with a public duty. 

3. Writ of Certiorari 

It means “To be Certified” Both preventive and curative. 

Issued by SC and HC’s for quashing the order of any inferior court, tribunal or Quasi- Judicial body. 

Propositions laid in issuing this writ by the High Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233) 

It is issued to correct the errors of Jurisdiction. 

When court or tribunal acts illegal in its jurisdiction. 

Order against principles of natural justice. 

Court acts in exercise of its supervisory and not appellate Jurisdiction. 

An error in the decision or determination itself may also be amenable to a writ of Certiorari. 

Landmark cases

Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., (1958) SCR 1240, the parameters for the exercise of jurisdiction. 

1. Check whether inferior court has exceeded its jurisdiction. 

2. Mere formal and technical errors doesn’t attract this. 

4. Writ of Quo-Warranto 

It means “what is your authority”. 

Issued to restrain a person from holding a public office. 

Conditions: 

Public office created by a statue 

Person to be appointed by a statue or statutory instrument. 

Illustrations: 

a) Subramanian Swamy petition against Jayalalitha in 2001. Two PIL’s against her appointment. 

b) Manohar Reddy vs Union of India: two advocates filed a petition quashing the appointment of a Judge of a HC of AP and a writ is in the nature of Mandamus commanding the Bar Council of AP to cancel the enrollment as an advocate N V Ramana. 

5. Writ of Prohibition 

Purpose:

It is to forbid or to stop called as “Stay Order”

Issued in cases where is excess of Jurisdiction and where there is absence of Jurisdiction. 

When the proceedings are pending in the court. 

Issued by both SC and HC’s to any inferior court or Quasi- Judicial Body but not against legislative or administrative body 

Adoption Process

ADOPTION PROCEDURE FOR RESIDENT INDIANS

It is a legal and emotional process that involves accepting the responsibility of caring for a child who is not biologically related to the adoptive parents.

The process of adoption in India is monitored and regulated by the Central Adoption Resource Authority (CARA), which is part of the Ministry of Women and Child Care.

CARA is the nodal body for adoption of Indian children and is mandated to monitor and regulate in-country adoptions.

CARA is also designated as the Central Authority to deal with inter-country adoptions in accordance with the provisions of the Hague Convention on Inter country Adoption, 1993, ratified by Government of India in 2003.

Laws Related to Adoption in India:

Adoptions in India are governed by two laws: the Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice Act, 2015 (JJ).

Both laws have their separate eligibility criteria for adoptive parents.

Those applying under the JJ Act have to register on CARA’s portal after which a specialised adoption agency carries out a home study report.

After it finds the candidate eligible for adoption, a child declared legally free for adoption is referred to the applicant.

Under HAMA, a “dattaka hom” ceremony or an adoption deed or a court order is sufficient to obtain irrevocable adoption rights.

Hindus, Buddhists, Jains, and Sikhs are legalized to adopt kids under this Act.

A. Registration and home study of the prospective adoptive parents.― 

(1) The Indian prospective adoptive parents, if interested to adopt an orphan or abandoned or surrendered child, may apply for the same on the Designated Portal ‘https://carings.nic.in /Parents/PAPsRegistration.aspx?Pagetype=I’ by filling up the online application form, as provided in the Schedule VI, and uploading the relevant documents within thirty days thereby registering themselves as prospective adoptive parents.

(2) The prospective adoptive parents shall be permitted two state choices or they may choose a cluster of states as per their identification.

(3) Registration on the Designated Portal shall be a deemed registration in all Specialised Adoption Agencies of the State or States they have opted for.

(4) The prospective adoptive parents shall get their registration number from the acknowledgement slip which may be used for viewing the progress of their application.

(5) The registration shall be completed and confirmed to the prospective adoptive parents immediately once the application form as provided in the Schedule VI are uploaded on the Designated Portal.

(6) After registration, prospective adoptive parents shall apply to a Specialised Adoption Agency or District Child Protection Unit nearest to their residence for conducting the Home Study.

(7) The Home Study Report of the prospective adoptive parents shall be prepared through the social worker of the selected Specialised Adoption Agency or the empanelled social worker of the District Child Protection Unit or the State Adoption Resource Agency who shall also be responsible for providing pre-adoption counselling to the prospective adoptive parents.

(8) The Home Study Report shall be completed in the format given within sixty days from the date of submission of requisite documents and shall be shared with the prospective adoptive parents immediately, thereafter.

(9) The Home Study Report shall be posted on the Designated Portal by the Specialised Adoption Agency within a period of three days from the date of completion of Home Study Report.

(10) The Home Study Report shall remain valid for three years and shall be the basis for adoption of a child by the prospective adoptive parents from anywhere in the country.

(11) The District Child Protection Unit shall facilitate online registration of application of prospective adoptive parents, uploading of their documents and also for addressing technical difficulties faced by the Specialised Adoption Agencies.

(12) The adoption of a child by the prospective adoptive parents, after completion of their Home Study Report, shall depend upon the availability of a suitable child.

B. Referral of a child from a Specialised Adoption Agency through the Designated Portal to prospective adoptive parents.―

(1) The seniority of the prospective adoptive parents for child referral shall be from the date of completion of registration process on https://carings.nic.in

(2) On the basis of seniority, the prospective adoptive parents shall be referred maximum three referral with one month interval in between two consecutive referrals subject to availability of children through the Designated Portal which shall include their photographs, Child Study Report and Medical Examination Report, in their preference category, if any, from one or more Specialised Adoption Agencies.

(3) After viewing the profile of the child or children on the Designated Portal, the prospective adoptive parents may reserve the child or children within a period of forty-eight hours for possible adoption and the unreserved child or children shall be released by the Designated Portal for other prospective adoptive parents in the waiting list.

(4) The Specialised Adoption Agency shall get the details of the prospective adoptive parents through the Designated Portal for fixing an appointment with the prospective adoptive parents for matching, to assess the suitability of the prospective adoptive parents by an Adoption Committee and the Adoption Committee shall prepare the minutes of the meeting.

(5) The Chairperson and another member shall form the quorum of the Adoption Committee in case of adoption from a Specialised Adoption Agency and in case of adoption from a Child Care Institution, the committee shall constitute Chairperson and two other members of the committee.

(6) The Adoption Committee shall scrutinise the requisite documents as stipulated for the prospective adoptive parents as prescribed.

(7) The Specialised Adoption Agency shall organise a meeting of the prospective adoptive parents with the child.

(8) At the time of matching, the social worker of Specialised Adoption Agency concerned shall orient the prospective adoptive parents for taking care of the child and also older child or children about their rights and responsibilities.

(9) The entire process of matching shall be completed within a maximum period of thirty days from the date of reserving the child.

(10) The prospective adoptive parents shall raise their grievance to District Child Protection Unit regarding the matching of the child, if any.

(11) While accepting the child, the prospective adoptive parents shall sign the Child Study Report and Medical Examination Report which may be downloaded from the Designated Portal, in the presence of the social worker or chief functionary of the Specialised Adoption Agency and the Specialised Adoption Agency shall record the acceptance by the prospective adoptive parents on the Designated Portal.

(12) In case the prospective adoptive parents are not selected for the child by the Adoption Committee, the reason for non-selection of the prospective adoptive parents shall be recorded on the Designated Portal. 

(13) If grounds of rejection after the enquiry are found to be due to systemic error or on non-justiciable reasons, seniority of the prospective adoptive parents shall be retained.

(14) In case the prospective adoptive parents do not accept the reserved child, the prospective adoptive parents shall be relegated to the bottom of the seniority list, as on that date, who may avail a fresh chance when the seniority becomes due and the same procedure shall be followed in the subsequent chances. 

(15) In all cases referred the reasons for not considering the prospective adoptive parents have to be clearly stated on the Designated Portal. 

(16) The registration of prospective adoptive parents shall continue till the time they have not exceeded the maximum composite age, i.e. fifty five years for single and one hundred ten years for couple and subject to revalidation of the Home Study Report in every three years. 

(17) The prospective adoptive parents may also get the Medical Examination Report of the child reviewed by a medical practitioner of their choice before giving their acceptance for adoption of the child.

C. Pre-adoption foster care.― 

(1) The child shall be taken in pre-adoption foster care by the prospective adoptive parents within ten days from the date of matching, after signing the pre-adoption foster care undertaking in the format.

D. The prospective adoptive parents shall provide original documents or notarised or self-attested copy of the original documents to the Specialised Adoption Agency.

E. Adoption Order.― 

(1) The Specialised Adoption Agency shall file an application with the District Magistrate of the district through District Child Protection Unit where the child is located, along with relevant documents as provided in the Schedule IX within ten days from the date of matching of the child with the prospective adoptive parents.

(2) The Specialised Adoption Agency shall file an application in the office of the District Magistrate through District Child Protection Unit.

(3) In case the child is from a Child Care Institution, which is not a Specialised Adoption Agency and is located in another district, the Specialised Adoption Agency shall file the application in the office of the District Magistrate in the district through District Child Protection Unit where the child is located and in such a case, the Child Care Institution shall be a co-applicant along with the Specialised Adoption Agency and the Child Care Institution shall render necessary assistance to the Specialised Adoption Agency concerned.

(4) In case of siblings or twins, the Specialised Adoption Agency shall file single application with the District Magistrate through District Child Protection Unit

(5) The Specialised Adoption Agency shall not make any opposite party or respondent in the adoption application since an adoption case is non-adversarial in nature.

(6) The District Magistrate shall hold the adoption proceeding in-camera and dispose of the case as early as possible, not exceeding two months from the date of filing of the adoption application by the Specialised Adoption Agency.

(7) The adoptive parents shall not be asked in the adoption order to execute any bond or make investment in the name of the child, considering the fact that their psycho-social profile and financial status have already been ascertained from the Home Study Report and other supporting documents.

(8) The Specialised Adoption Agency shall obtain a certified copy of the adoption order from the District Magistrate through the District Child Protection Unit and forward it to the prospective adoptive parents within ten days via e-mail and shall also upload it on the Designated Portal https://carings.nic.in/Parents which could be downloaded by the prospective adoptive parents.

(9) The Specialised Adoption Agency shall apply to the birth certificate issuing Authority for obtaining the birth certificate of the child within five days from the date of issuance of adoption order, with the name of adoptive parents as parents, and date of birth as recorded in the adoption order and the same shall be issued by the issuing Authority within five days from the date of receipt of the application.

(10) The Specialised Adoption Agency shall submit an affidavit to the District Magistrate while filing the application. In case the recognition of Specialised Adoption Agency has not been renewed or not likely to be renewed soon, then the District Child Protection Unit concerned shall directly file the application before the District Magistrate after completing its scrutiny.

F. Follow-up of progress of adopted child.― 

(1) The Specialised Adoption Agency which has prepared the Home Study Report, shall prepare the post-adoption follow-up report on six monthly basis for two years from the date of pre-adoption foster placement with the adoptive parents, in the format as provided in the Schedule XII and upload the same on the Designated Portal along with photographs of the child within ten days from the conduction of such report.

(2) In case the adoptive parents relocate, they shall inform the agency which has conducted their home study and the District Child Protection Unit of the district where they relocate.

(3) The District Child Protection Unit of the district of the current residence of the prospective adoptive parents shall prepare the post-adoption follow-up report and upload the same on the Designated Portal within ten days from the conduction of such report: Provided that first follow-up report of the adopted child shall be done within three months from the date of pre-adoption foster care.

(4) In case of non-adjustment of both the child and the adoptive family with each other, the Specialised Adoption Agency or the District Child Protection Unit shall arrange the required counselling for such adoptive parents and adoptees or link them to the counselling services available within the district or state within seven days with due intimation to the State Adoption Resource Agency and the District Magistrate: Provided that in case of non-compliance for three consecutive post adoption follow-ups the District Child Protection Unit shall prepare the social investigation report and inform the Child Welfare Committee for further action as may deem fit.

G. Procedure of disruption- In case of disruption in in-country adoption.―

(a) at the stage of pre-adoption foster care before filing an adoption application, the child shall be taken back to the Specialised Adoption Agency with information to District Child Protection Unit and State Adoption Resource Agency;

(b) at the stage of pre-adoption foster-care after the application has been filed with the District Magistrate through District Child Protection Unit, the child shall be taken back by the

(c) Specialised Adoption Agency and adoption application shall be withdrawn with prior permission from the Child Welfare Committee with intimation to the District Child. Protection Unit and the State Adoption Resource Agency and the status of the child on the Designated Portal shall be updated by the Specialised Adoption Agency accordingly;

(d) where the child has been taken to another state during the adoption process, the relocation of the child shall be coordinated by the State Adoption Resource Agency in the state where the child is currently residing and the State of origin.

H. Procedure for dissolution-In case of dissolution in in-country adoption.-

(a) In case of dissolution, the application for annulment of adoption order shall be filed by the Specialised Adoption Agency with the District Magistrate through District Child Protection Unit;

(b) No application should be filed until two counselling sessions have been completed by the local Specialised Adoption Agency or District Child Protection Unit before making any decision concerning disruption or dissolution;

(c) Post dissolution order, the child shall become legally free for adoption;

(d) The Specialised Adoption Agency or the District Child Protection Unit shall update the child’s status as legally free for adoption on the Designated Portal within three days.

I. Where the Indian adoptive parents move with the child abroad, within two years from the date of pre-adoption foster care, the concerned Indian Diplomatic Mission in the country of arrival in case of Non-Hague countries and Authorised Foreign Adoption Agencies or Central Authorities in Hague countries, shall be intimated at least fifteen days in advance through a written communication for the purpose of remaining follow up reports by the adoptive parents with their full contact details at the new place.

J. The onus of getting the balance post-adoption follow-up is with the adoptive parents and they have to bear the professional charges on their own, and further the adoptive parents shall give an undertaking to the Authority to that effect.

Documents required for Adoption

• Current family photograph/ photograph of person adopting a child
  
  
• Aadhar Card or Passport or Voter card or Driving License of the prospective adoptive parents or Birth Certificate or Overseas Citizen of India card of the prospective adoptive parents (if applicable) and PAN Card (if applicable).
  
  
• Proof of residence (Aadhar card/ voter card/ passport/current electricity bill/telephone bill)
  
  
• Proof of income of last year (salary slip/income certificate issued by Govt. department/income tax return)
  
  
• Certificate from a medical practitioner certifying that the prospective adoptive parents do not suffer from any chronic, contagious or fatal disease and they are fit to adopt (In the event of a married couple, upload the applicant’s respective medical certificate)
  
  
• Marriage certificate/Divorce Decree/Declaration from the competent court or affidavit on oath pertaining to divorce in case of divorce governed by personal law where decree of divorce is not mandatory/Death certificate of spouse whichever is applicable.
  
  
• Undertaking from the relative in case single prospective adoption parents (if applicable).
  
  
• Consent of the older child/children in the adoptive family.
  
  
  source: carings.nic.in

Registered Will

Registered Will: can it be legally challenged in the court?

The concept of Will has its deep-rooted origin for a very long time in India; its importance grows with the sense of transferring family wealth and business from one generation to another with ease.

A Will is a declaration by way of an established instrument wherein a person disposes of their property which shall take effect after their death and which to its primary nature is ambulatory and revocable during that person’s life. The Will was mainly recognised because of its ambulatory characteristics as it was a distinguishable feature of the disposition from the normal deed. According to the statute, a will is the aggregate of man’s testamentary intention so far as their manifested duly executed.

A will is a written document wherein a person states the procedure of devolution of his/her property and manifest his/her desire as to what and how a lifetime worth of assets will be dealt with after his/her death. A person who creates the Will is known as the ‘Testator’, and the person for whom the Will is executed is known as the “executor”, and the property disposed of in the Will is known as the subject matter of the Will.

In India, as the registration of the Will is concerned, the Indian Registration Act, 1908 deals with the provision that has to be complied with, and as per the provision of the Indian Registration Act, 1908, there exists no provision for making the registration of the Will compulsory , because  if the Act makes such document to be registered compulsorily that will attract some adverse consequences in many aspects of its practice in India. The registration of the Will in India is optional and at the peril of the parties creating a Will. The contrary opinions have been formed on the matter of registration of Will. It is always advisable by the legislature that a Will if made, should be registered. The Will has not necessarily been too registered by the testator or the creator of the Will, but any person who is an executor of the Will can write the Will after the testator's death. A Will can be kept with any person by himself (testator) or by any executor with the registrar wherein the Will was registered; the Will of the person can be deposited in the seal covered with the testator's name attached with the statement of nature of the document.

There are several legal considerations to creating a Will. The registered Will is a registered document/deed that can be challenged in the court of law for many reasons mentioned in this article below.

Reasons pursuing to which a registered Will can be challenged in the court of law:

1.     Fraud

A document made by any person that obliges any other person to work in part or in full for consideration or without any consideration will not be allowed to sustain. Such document will not be attributed any validity or legality in the eye of law. A registered document is though earned, a presumption that it is free from any malice or by any way illegal; according to the same understanding, it is interrelated that the registered Will is free from any fraud. The person who challenges the Will in the court of law on the reason that it was created by fraud the burden is upon him to prove the fraud in the registered document or registered Will.

2.     Coercion

Any person committing an act of violence against any such person from whom any obligations have to be fulfilled or any task has to be compelling without the consent of his/her is known as coercion. An act of coercion is illegal in the eyes of the law. If the reregistered Will is created by an act of coercion, it will be deemed unlawful, but such a person claiming the Will to be illegal has to prove that the Will is unlawful in this context.

3.     Undue Influence

Undue influence is to use the influence by way of position of power or for any reason of emotional connection wherein the decision is taken is not based on sound mind or informed reason. Such a factor plays a major role in deciding whether any document registered under such influence has any morality or, for that purpose, any legality. The registered Will for any purpose, if made by the undue influence of any family member or by any member of the testator, can be challenged in the court of law if proven by the substantial evidence on this behalf.

4.     Wills having suspicious nature

Various aspects prove the legality of the Will in the court of law, whereas the nature of Will also falls prey to being challenged if the Will is not created in complete accordance with these aspects. Following are various aspects if found, or deficient such Will could be challenged in the court of law:

a.     When any person creates a Will wherein any of the content(s) of the Will is vague or has no meaning as to substance, then such Will can be challenged, whereas if there exist two Wills wherein one is vague and other supplements other at the same time then such Will can be challenged, and such objection will be allowed by law.

b.     There exists a fault with regards to the stamp required by the Testator for registration of Will, and if such Will is not duly stamped but still registered, it can be challenged.

c.      If the thumb impression is required on the Will or not duly made or if there are more thumbprints though required by the law, such impression creates confusion among the signatories on the Will, such confusion on a Will can also be challenged in the court of law.

d.     If by the creation of Will there exists a disposition of property or devolution of any rights in the property but such disposition or devolution is made in favour of any person who is not remotely connected or there exists no connection to substantiate Will’s validity, then such Will can be challenged in the court of law.

e.    The Will has been executed at any place, but while registration, the date, time, and place has to be mentioned on the Will, but if at all the site of the execution on the Will is not mentioned, then such Will can be challenged in the court of law. E.g., If a person has executed a Will in a hospital, but the executor or any person concerned failed to mention this on a Will, then there can be a question raised on the validity of the Will in the court of law.

5.     Error in executing the Will

As any person who wishes to execute a Will, he has to perform some functions in creating Will and then some legal compliance to validate the Will and create a Will that has the support of law and is recognised in the eye of law. If there are errors in the execution of the “Will”, then such a Will can be challenged in the court of law.

6.     Error in the substance of Intention

As discussed above, the Will can now be fairly understood as the Testator’s demand/desire/order for dealing with his property after death. Any person while making a Will maintains a clear and transparent content as to the wish of the Testator, but such intention of the testator should be made clear, and the content of the Will should be concise and unambiguous, but if by any interpretation of the Will there seems so that the provision of any clause in the Will seems ambiguous or contrary to the intention of the testator then such clause or any Will to that extent can be challenged in the court of law.

7.     Incapacitate for Testamentary

There are certain pre-conditions required by any person who creates the Will that is mandatory for him/her to comply, without which anything done in such process of creation will be termed as null and void.

Following are certain conditions for creating a Will:

a. A person should be in the clear conscious to understand the terms and content of the Will and its effect with regards to the execution.

b. A person should be told, or he/she should understand the extent of his/her property he/she wishes to dispose of or his/her rights he/she wishes to devolve to someone.

c. A person willing to create a Will shall be able to comprehend and appreciate the claims to which he/she ought to give effect in terms of execution.

d. A person should be sound, and every decision taken by him/her should be in clear mind to its application when it’s brought in effect as to substance.

e. No person should be allowed to make a decision or create a Will at the time of any phase of paralysis of sound thinking or informed decision making.

f. If a person has a situation of mental disorder in intervals, a Will can only be created when the person is of sound mind.

g. A person should comply with all the requirements of section 10 of the Indian Contract Act, 1872 for a valid establishment of Will.

Conclusion

A Will is a very important aspect of a person’s life as it decides who will inherit all the hard-earned money once the person is dead. Therefore, in a country like India, it becomes very important that if a person finds a Will formed to be unsatisfactory, then he/she has the right to challenge the registered Will in the court to make sure there is no misconduct happening. The registered Will can be challenged for all the reasons mentioned above, and the procedure to be followed has been discussed in the article.

 - Adv. Anita Adsul