INDIAN PENAL CODE, 1860:

IPC, 1860 came into force on 6^th October 1860. IPC is drafted by Lord Macaulay.

Jurisdiction and its Kinds: Jurisdiction:  Under IPC the term Jurisdiction means the power of a criminal court to try a person for an offence. Under IPC we have 03 kinds Jurisdiction They are: 1) Personal 2) Extra Territorial 3) Admiralty.

The Expression computer resource shall have same meaning assigned to it in s.2(1)(k) of Information Technology Act,2000

Mensrea under IPC and other laws: The four essentials to constitute offence are:

i) A Human Being        ii) Guilty intention      (iii) Actus reus, illegal act or omission and      (iv) injury to another human being.

Actus non facit reum nisi mens sit rea’.The meaning of the term is that intent and act must both concur to constitute the crime. Physical element and mental elements are the two tests of criminality.  No act of the person was punishable unless the same is done with evil intent. Though the word mensrea is not expressly mentioned anywhere in the IPC, it is implied through various words. They are fraudulently, dishonestly, voluntarily, rashly, negligently, intentionally and knowingly.

Which stage of an offense is punishable under IPC?

Ans: For every crime there are four stages.

They are:    1) Intention       2) Preparation       3) Attempt      4) Actual commission.

Stage- I: Intention: This Stage alone is not punishable.

Stage-II: Preparation: This stage is punishable only in three circumstances.

The 03 offences provide punishments for the preparation are:

1) Preparation to wage war against the Government of India (s.122)

2) Preparations to commit depredations on territories which are in alliance with the government of India (s.126)

3) Preparation to commit Dacoity (s.399).

Stage-III: Attempt: The third stage or attempt is always punishable. The offences dealing with attempt are divided into three groups:

        i) Offences in which the commission & attempt to commit an offence are dealt with in the same section. Ex: Waging war (s.121), Sedition (s124-A) Dacoity (s.391) etc.

       ii) Offences in which separate specific punishments are prescribed.

Ex: Attempt to commit murder (s.307) Attempt to commit culpable homicide(s.308).

Attempt to commit to suicide (s.309)

     iii) All attempts which are not coming under the above two classes are made punishable as per section 511.

Important Explanations but not defined under IPC: 

Fear: an Unpleasant emotion caused by the threat of danger or pain.

Insult: Abuse in words or action.                  Annoy: Make slight angry.

Intimidate: Frighten into doing something.   Harm: Deliberate Injury.

Reputation: The opinion generally held about someone or something.

Modesty: Not showing off the body.   Motive: A person’s reason for doing something.

Deception:   The act of deceiving.

Deceive: Cause to believe something false or giving misleading impression.

Important Explanations – defined under IPC: 

Hurt: Causing bodily pain, disease or infirmity to any person is said to cause hurt (S.319).

Injury: Any harm whatever caused illegally to any person in body, mind reputation or property (S.44).  Intention:  The operation of motive into reality.

Knowledge: Possession information about anything.

Voluntarily: Intentionally or knowingly (S.39)

Dishonestly: Causing wrongful loss or gain (S.24)

Fraudulently: Deception + Injury (S.25).

Negligently: Not taking proper care and caution or precaution required by law.

Rashly: Doing an Act over hastily.

Good Faith: An act done with due care and caution (S.52).

Reason to believe: Sufficient cause to believe (S.26).

S.6: Every offence Under IPC must be read along exceptions mentioned under Chapter IV of IPC. It talks about general exceptions. Thus whenever we study an offence, if offence is committed under the conditions or situations mentioned under this chapter, such accused is exempted from criminal liability.   This rule applies not only every offence but also to every penal provision and every illustration.

S: 10: (i) Man: the word “man” denotes a male human being of any age.

(ii) Woman: The word “woman” denotes a female human being of any age.

 S: 11: Person: The word “person” includes any company or association or body of persons, whether incorporated or not.

 S: 14: Servant of Government: Any officer or servant continued, appointed or employed in India by or under the authority of Government.

 S: 17: Government: Central Government or the Government of a state.

 S: 18: India: India means the territory of India excluding the State of Jammu & Kashmir.

 S: 19: Judge:  The following any one can be called as Judge:

Any person who is officially designated as a judge   or

Any person, who is empowered by law to give, in any legal proceeding , civil or criminal,

a definitive judgement  or If such judgement which, if not appealed against, would be definitive or a judgement which, if confirmed by some other authority, would be definitive.

Ex: A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal is a judge.

A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another court is not a judge.

S: 20: “Court of Justice”: A judge or body of Judges who is empowered by law to act judicially alone.

 S: 21: Public servant: The term public servant is defined in section 21. The following are public servants:-                          1.  Commissioned Officers in Military, Naval or Air force, Every Judge.                                                                                    2. Officer of a Court of justice.                                                                                                                                                              3. Arbitrator.                            4. People empowered to place or keep any person in confinement.                                        5. Peace officers.                     6. Miscellaneous Officers of Govt.                                      7. Officers of local bodies.             8. Persons connected with elections.             9. Persons in the service or pay of the Govt or local authority or corporation or govt companies

 S.22: Moveable Property: The words moveable property is intended to include corporeal property of every description, except land &things attached to the earth or permanently fastened to anything which is attached to the earth.

S: 29: Document: The substance used for expressing or describing anything by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

S: 30: Valuable security: A document, in which any legal right is created, extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal disability or has not a certain legal right.

 S: 31: “A Will”: The words ‘a will’ denote any testamentary document.

Joint liability or constructive liability: This is discussed in S.34 to 38 IPC. In order to fix criminal liability of person connected with an offence, law basing on their physical or mental act or omission certain principles explained under these sections.   Under IPC the term Act includes illegal omission also.

 S.34 says: All persons are criminally liable even if the offence is committed by any one of them provided there is a prior meeting of mind. Thus, physical presence of all accused is not necessary to fix up criminal liability on all. Barender Kumar Gosh v. King Emperor

S.35 fix criminal liability on all persons equally though there can be no prior meeting of minds. However, it is necessary that all persons must present at the time of offence and does their act with same or similar criminal knowledge or intention.

S: 36: If certain effect is caused by an act or by omission, is an offence. It is also an offence if the effect is caused partly by act or partly by omission.

S.38 says if there is no such same or similar intention or knowledge each of the offender can be prosecuted to the extent of their criminal liability.

S.37 says if the offence is occurred due to co-operation and they also participated in the commission of the offence both are equally liable for the offence.

 S: 40: Offence: denotes a thing punishable by this code.

 S: 41: Special law: A special law is a law applicable to particular subject.

S: 42: Local Law: A local law is a law applicable only to a particular part of India.

 S: 43: Illegal: 1) Offence or 2) An act or omission which is prohibited by law or 3) Anything which furnishes ground for civil action. The term “legally bound to do” includes illegal on part of the person to omit.

 S: 44: Injury: The word injury denotes any harm whatever illegally caused to any person in body, mind, reputation or property.

 S: 45: Life: The word life denotes the life of a human being, unless the contrary appears from the context.

S.46: Death: Death denotes death of a human being.

S: 47: Animal: The word ‘animal’ denotes any living creature other than a human being.

S: 48: Vessel: The word vessel denotes anything made for the conveyance by water of human beings or of property.

S: 49: “Year “Month”: whenever the word “year” or the word “month” is used, it is to be understood that the year or the month is to be reckoned according to the British Calendar.

 S: 51:Oath: Any solemn affirmation made before a public servant to be used for the purpose of proof, whether in a court of justice or not.

S: 52A Harbour: Except in S.157 & in S 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word “harbour” includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension.

Write a note of General Exceptions? 

Write a note of Law of consent as ground for exemption from Criminal Liability?

Write a Note on Right of Private Defence?

Ans: It is dealt under S.96 to 106:

Write a short note on abetment?

Ans: It is dealt under S.107 to 120:

 Difference between Abetment by conspiracy and Criminal Conspiracy:

 Distinguish between Common object & Common Intention?

Ans: S.149 & 34 IPC:

Write difference between Rioting and Affray:

OFFENCES RELATING TO HUMAN BODY:

Culpable homicide means killing a human being by another human being. All murders are culpable homicide but all culpable homicides are not necessarily murders.

There are two classes of culpable homicides:

   a) Culpable homicide amounting to murder. It is known as Murder.

   b) Culpable homicide not amounting to murder. The difference between both (a & b) lies in the degree of criminality as manifested by the act. In murder, there is greater intention or knowledge than culpable homicide not amounting murder. Culpable homicide not amounting to murder is dealt under S.299 of the IPC and under S.304 of the IPC.

There is a third form of culpable homicide where death follows from rash or negligent act as such as crushing a man to death by rash or negligent driving.

The landmark cases which explained the distinction between Culpable homicide and murder are: Reg. v. Govinda. Virsa Singh v. State of Punjab

The criterion to inflict death penalty is laid down in Bachan Singh v State of Punjab.

Write a note on exceptions laid down under S.300IPC?

Ans: Culpable Homicide not amounting to murder provided u/s 300 IPC

Exception I: Grave and sudden provocation: Culpable homicide is not murder if the offendor, whilst deprived of the power self-control by grave & sudden provocation, cause death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:

First: that the provocation is not sought or voluntarily provoked by the offendor as an excuse for killing or doing harm to any person.

Secondly: That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of powers of such public servant.

Thirdly: That the provocation is not given by anything done in exercise the lawful exercise of the right of private defence.

Explanation: Whether the provocation was grave & sudden enough to present to prevent the offence from amounting to murder is a question of fact.

Exception II: Right of Private Defence: Culpable homicide is not murder if the offendor, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than necessary for the purpose of such defence.

Exception III: Culpable homicide is not murder if the offendor, being a public servant or aiding a public servant acting for the advancement of public justice exceeds the powers given to him by law, and causes death by doing an act which he in good faith, believes to be lawful and necessary for the due discharge of his duty such public servant and without ill-will towards the person whose death is caused.

Exception IV: Sudden Fight: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.

Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception V: Consent: Culpable Homicide is not murder when the person whose death is caused, being above the age of 18 years, suffers death or takes the risk of death with his own consent.

Transfer of malice: The offence is complete as soon as any person is killed. It is immaterial if the person whose death has been caused is not the person whom the accused intended to kill. It is clear from Illustration (a) to S.299 of IPC. This is called as transfer of malice.

What is S.304 IPC?

Ans: S.304 IPC: S.304 IPC provides the punishment for culpable homicide not amounting murder. There are two parts to S.304 of the IPC.

1. a) Where the act is done with intention of causing death or such bodily injury as is likely to cause death (Part-I); and
2. b) Where the act is done with the knowledge that is likely to cause death without any intention to causing death (Part-II).

Write a short note on Dowry death?

Ans: Dowry death S.304B: If the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’ and such husband or relative shall be deemed to have caused her death. This section is supplementary to S.498A.

Causing death by Rash or negligent Act: S.304A: Where the act is in its criminal nature the section has no application. Causing death of any person by doing any rash or negligently act, not amounting to culpable homicide is punishable with two years imprisonment or fine or both. S.304A punishes the cause of death by negligence. The provision of this section apply to cases where there is no intention to cause death and no knowledge that the act in all probability would cause death.

1. Rash means over hasty act done without due deliberation and caution
2. Negligently means party fails to comply with a legal obligation and breaks a positive duty and does not do an act which is his duty to do.

Write a note on Property offences?

When extortion is robbery? Difference between robbery based on theft and extortion:

Ans: In robbery based on extortion the entire menace (threat or danger) is precedes the delivery of property.  In robbery based on theft the use of violence may be before or after the delivery of property.

In sum: Robbery = Theft + violence or fear of instant violence.

Robbery: Extortion + Presence of offender + fear of instant violence + immediate delivery.

Violence: death, Instant (Sudden) Death or Wrongful restraint or hurt.

Difference between Robbery and Dacoity: Sections 390 and 391 IPC: All Dacoities are Robberies, but all Robberies are not Dacoties. When Robbery is committed or attempted to be committed by 05 or more persons then Robbery becomes Dacoity. Therefore Robbery can be committed even by single person, while for Dacoity at least 05 persons are required.

Stolen property: The property, the possession of which has been obtained by theft, extortion, robbery, dacoity or property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed is termed as stolen property, if it comes into the possession of the person, who is legally entitled to the identity of stolen property should not lost after coming into the possession of the accused. So long as the article remains the same in substance though, it is altered doesn’t cease to be stolen property.

Cheating: S: 415: Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person to consent that any person shall retain any property or intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived an d which act or omission could likely to cause damage or harm to that person in body, mind, reputation or property.

Explanation: A dishonest concealment facts is a deception within the meaning of this section.

Comment: There are two parts u/s.415. Part-I deals only property. Part-II deals injury. Thus it can be body, mind, reputation or property. In the first part, loss of property is either due to dishonest or fraudulent action. In the second part the injury is sustained due to intentional inducement by act of deception.

Part-I: Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person to consent that any person shall retain any property is called as an act of cheating.  It is punishable u/S.420 IPC.

Part-II: Whoever, intentionally induces another to do an act or omission and as a result of such deception, victim sustained damage, harm to mind, body or reputation or property is called cheating. It is punishable u/S.417 IPC.

Difference between Cheating & Extortion: S.415, 383 & 384 IPC: The primary object offence of cheating and extortion is wrongful gain of property. In both the cases property is removed with the consent of the owner. However in cheating the consent is obtained by fraud, whereas in extortion the consent is obtained by fear.

Mischief: S.425 IPC defines Mischief. It says  Whoever, with intent to cause, or knowing that he is likely to cause, wrongful  loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof and thereby destroys or diminishes its value or utility or affects it injuriously commits mischief.

Explanation-I: It is not essential to the offence of mischief that the offender should intent to cause loss or damage to the owner of the property injury or destroyed. It is sufficient if he intends to cause or knows, that he is likely to cause, wrongful loss or damage to any person or not.

Explanation 2.- Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.

Example: Aneel voluntarily throws into a river a ring belonging to Shekar, with the intention of thereby causing wrongful loss to Shekar. Aneel has committed mischief.

Forgery: S: 463: Whoever makes a false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed commits forgery.

Forgery= False Document (Full or Part): Fraudulent intention + Damage or injury (or support any title or claim or part with property of any person) + to any person or public.

Criminal trespass (S.441): Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby intimidate, insult or annoy any such person or with intent to commit an offence is said to commit C.T.

House trespass (S.442): Whoever commits C.T. by entering into or remaining in any building, tent or vessel used as a human dwelling, tent or any building used as a place of worship, or as a place for the custody of property, is said to commit H.T. The introduction of any part of the C.T’s body is sufficient to constitute H.T.  

Lurking House Trespass: S.443: If any person commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit “lurking house-trespass”. If such Lurking house-trespass is committed after sunset and before sunrise it is called “lurking house-trespass by night” (S.444).

House Breaking: Section 445 IPC: A person is said to commit house breaking who commits house trespass, if he effects into the house or any part of it in any of the six ways hereinafter described; or if being in the house or any part of it for the purpose of committing an offence; or having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say:

1. By entering and quitting through a passage made by himself
2. By entering or quitting by opening any lock
3. By entering and quitting by opening a passage by any means which the occupier has not intended.
4. By entering and quitting through a passage not intended by any person other than the offender for human entrance or through any passage through which he gains access by scaling or climbing over any wall or building.
5. By entering and quitting by using criminal force or committing an assault or threatening any person with assault.
6. By entering and quitting any passage by unfastening the passage.

Perjury (False evidence) (S.191): To constitute offence under this section following conditions are required to be fulfilled: A person must be legally bound by an oath or by an express provision of law to state the truth or to make any declaration upon any subject but he makes a false statement, knowing or believing it to be false or does not believe to be true and he is said to be giving false evidence. Ex: Aneel in support of just claim which Shekar has against for one Rs100/-, falsely swears on a trial that he heard Shekar admitting the justice of Shekar’s claim. Aneel has given false evidence.

Fabricating False evidence: S: 192: A person is said to be fabricating false evidence if he  (i) Causes any circumstances to exist  (ii) Makes any false entry in any book or record (iii) Makes any documents containing a false statement intending such circumstances false entry or false statement may:(a)appear in evidence (b) judicial proceeding or (c) a proceeding taken by law before public servant or an arbitrator and causes in  such proceeding is to form an opinion upon evidence to entertain an erroneous opinion touching any point material to the result of such proceeding.

 S.201 IPC: To establish charge it prosecution establish that accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment and caused the evidence thereof to disappear.

S.153: Wantonly giving provocation with intent to cause riot.

S.153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

 S.153AA: Punishment for knowingly carrying arms in any procession or organising or holding or raking pat in any mass drill or mass training with arms.

S.510 IPC:  Misconduct by a drunken person in public place. The punishment is one day.

S.303IPC: It is not declared unconstitutional. It is under eclipse: Mithu v. State of Punjab. This section says person who is under sentence of imprisonment for life, commits murder shall be punished with death.

S.511: Attempt to commit offence: The punishment is for a term which may extend to ½ of the imprisonment for life or ½ of the longest term of imprisonment provided for the offence or with such fine as it is provided for the offence, or with both.

Write a note on Offences relating to marriage?

Ans: Contract Act, 1872 applies and as a corollary non-compliance of the same makes the contract void, voidable or illegal. Apart from Contract law, other personal laws prescribe certain conditions for entering to contract of marriage and they must also be complied with.  In event of violating the same law prescribe remedies. Similarly, Indian penal code also offers certain penal remedies. They are dealt under S.493 to 498: They are as follows:

(1) Invalid Marriages S.493 & 496,        (2) Bigamy (S.494 and S.495)    (3) Adultery (S.497)

(4) Criminal elopement (S.498)              (5) Cruelty (S.498A)

Marriage is a result of contract between two parties. As such, the rules prescribed under

Criminal intimidation: S. 503 defines criminal intimidation. Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do or omit to do any act which that person is legally entitled to do, as the means of avoiding this execution of such threat, commits criminal intimidation. Ex: Aneel for the purpose of inducing Deepak to desist from prosecuting a civil suit threatens to burn Deepak’s house. Aneel is guilty of criminal intimidation.

Intimidate: Putting a man into fear with a view of inducing him to enter into a contract or to money or to do or to abstain from doing some act.

Defamation:

S.499 IPC defines Defamation and S.500 prescribes punishment.

S.499 has four explanations and ten exceptions.

S.499 says If a person imputes anything to another with intend to harm the reputation of such other person is said to be defamation. Such imputation can be done either spoken or intended to be read, or by signs or by visible representations, makes or publishes.

Explanations: The First explanation deals with defamation of a deceased man and the 2^nd one deal with defamation against company.

The 1^st explanation says imputing anything to deceased person is defamation in the following circumstances:

1. a) If imputation harms the reputation of that dead person, if living.
2. b) If it is intended to be hurtful to the feelings of his family or other relatives.

The 2^nd explanation says if an imputation is made against a company or an association or collection of persons it amounts defamation.

The 3^rd explanation says an imputation in the form of an alternative or expressed ironically, may amount to defamation. (Innuendo).

The 4^th explanation says in order to constitute defamation it must lower the reputation of alleged aggrieved in the eye of public or persons known to him.

Exceptions: There are ten exceptions to the section. These exceptions provide privileges available in case of defamatory statements and burden to prove them, lies on the person who claims the benefit.

Ex.1: Imputation of truth which public good required to be made or published.

Ex.2: Public conduct of public servant

Ex. 3: Conduct of any person touching any public question

Ex. 4: Publication of reports of proceedings of courts

Ex.5: Merits of cases decided in courts or conduct of witnesses or other concerned

Ex.6: Merits of public performance

Ex.7: Censure passed in good faith by the person having lawful authority over another

Ex.8: Accusation preferred in good faith by person for protecting of his others interests.

Ex.9: Imputation made in good faith by person for protection of his or others interests.

Ex.10: Caution intended for good of person to who conveyed or for public good.

Problems and Solutions:

PUNISHMENT:

 What is the difference between Conviction and Sentence?

Ans: The finding given by the court stating that accused committed the offence is called Conviction.  The punishment given by the court is called as Sentence.  Conviction is a technical process. Sentence is not technical affair and judge must act like a social and legal scientist. The sentence must be awarded basing on physical and mental social, economic, cultural status of the accused, nature of offence, mode and manner of committing offence.

What are the different kinds of Punishments provided under IPC?

Ans:S.53: The punishments to which offenders are liable under the provisions of this Code are:- 1) Death, 2) Imprisonment for life, 3) deleted 4) Imprisonment, which is of two descriptions, namely:- (1) Rigorous, that is, with hard labour; (2) Simple; 5) Forfeiture of property; 6) Fine.

What is the meaning of the term life under IPC?

Ans: As per S.45 IPC defines Life. The term life means complete life of the individual. Inflicting life imprisonment is one of the modes of punishment. Thus imprisonment of life would ordinarily mean imprisonment for the full or complete span of life. Premature released is governed by S.55 IPC &S.433 (b) Cr.P.C 1973.

According to S.55 the State Government has power to commute (convert) the sentence of imprisonment for life to punishment for imprisonment of either description for a term not exceeding 14 years without the consent of the prisoner.

Under S.57, though the term twenty is used it is only for the purpose of calculating fractions of terms of punishments i.e., Attempt to commit offence which is punishable with life imprisonment.  Unless the sentence is commuted or remitted by the appropriate authority u/s 55 of the code or u/s Cr.P.C. a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison.

What is the period of imprisonment that can be imposed in the event of non-payment of fine?

Ans:

If the convict fine any time, he can be released and fine would be reduced proportionately.

How Solitary confinement is awarded?

Ans: Generally, when court imposes sentence of imprisonment it is deemed that it is simple and without solitary confinement. However, if it is specified as rigours or solitary convict shall undergo such kind of punishment only.  The solitary confinement in no case shall exceed three months.

S: 74: Limit of Solitary Confinement: As per this section Solitary Confinement shall in no case exceed 14 days at a time. If imprisonment awarded more than three months solitary confinement shall not exceed seven days in any month.

Write note on Sentencing power of various criminal courts?

 What is quantum of punishment to be awarded in case offender is punished for the offences mentioned under C.XII or CXVII of IPC?

Ans: As per S.75 IPC, person who committed offence mentioned under these chapters for subsequent offence, he is liable to be punished with imprisonment for life, or to imprisonment of either description for a term which may extend to 10 years.

However, it is necessary that the punishment for the first offence and second offence prescribed under law shall be three years or more.

XII: Offences relating to coin and Government stamps

XVII: Offences against property.

S: 71: Consists of four paragraphs:

Para 1: It deals with all the acts of an offendor which constitute together only an offence although each of the individual acts also constitutes the same offence.

It refers to illustration (i) of 220Cr.P.C. In such cases, the offendor can be punished only for an offence.

Ex-I:   A number of blows on one person.

Ex-II: Accused stole property at night belonging to different persons from the same room of a house; it was held he could not be sentenced separately as for two offences of theft.

 Para:II: A single transaction may give rise to either

(a) Several offences of different character, each complete in itself and distinct from the other.

Ex: Criminal breach of trust and falsification of accounts; House breaking and adultery.

(b) Several offences of the same character but affecting different persons.

Ex: A single gunshot fired with it, injured two or more person, where different persons are injured, grievous hurt being caused in one case and simple hurt in others, it is competent for the court to impose separate and cumulative sentences. (a,f,&g illustrations of S.220)

Para:III: It corresponds to S.220(4) Cr.P.C. It deals with plurality of acts and applies to cases in which one or more of the acts of the accused in a transaction constitute one offence but all the acts together or combined give rise to different offence.

The same series of acts may constitute different offences. All may be charged, but only one offence can be regarded as committed for the purpose of inflicting punishment.

Ex: Where as persons set a fire to a ware house, here his act is an offence u/s 435 &also u/s 436, and though he may be charged for both, but he cannot be punished for more than one of these offences.    Similarly, for driving on a public road so rashly so as to endanger human life and causing hurt, accused cannot be punished for both the offences.

Whether court can impose sentence in default of payment of fine?

Ans: Yes, as per s.30 the court of a magistrate may award such term of imprisonment in default of payment of fine as is authorised by law:

Provided that the term: – It shall not be excess of the powers of the Magistrate u/s 29 of the code. Where imprisonment has been awarded as part of the substantive sentence, it shall not exceed 1/4^th of the term of imprisonment which the magistrate is competent to inflict as punishment for the offence. The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the magistrate u/s 29.

What is the mode of sentences in case of conviction of several offences at one trial?

Ans: S.31 talks about Sentence in cases of conviction of several offences at one trial: When one person is convicted at one trial of two or more offences, the court may, subject to the provisions of S.71of the IPC, sentence him for such offences, to the several punishments prescribed therefore which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court direct that such punishments shall run concurrently.

It is not necessary for the court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offendor for trial before a high court.  Provided that in (i) no case shall such person be sentenced to imprisonment for a longer period from 14yrs (ii) the aggregate punishment shall not exceed twice the amount of punishment which the court is competent to inflict for a single offence. Thus section 31 enhances the ordinary powers given to Magistrate u/s 29 Cr.P.C.  For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.

Explanation: At one single trial, accused is charged with more than one offence (like S.324 IPC). In such case he is permitted to impose six years imprisonment though he is competent to inflict punishment of imprisonment not more than three years as per S.29 Cr.P.C. In such case it is also not necessary for such magistrate to send the file to superior magistrate for inflicting more punishment.

However, magistrate is under an obligation to report the matter to superior magistrate if the magistrate has to impose imprisonment more than the twice the punishment, which he is authorised to inflict (i.e, more than six years).

Ex: If the Magistrate has to impose imprisonment for a period of more than six years, he has to send the file to Chief Judicial Magistrate.

INDIAN EVIDENCE ACT, 1872:
IEA is enacted in the year 1^st Sept-1872. It is drafted by Sir James Fitzjamen Stephen. IEA is not applicable to proceedings before tribunals and arbitrators and departmental inquiries. IEA is strictly applicable to judicial proceedings in courts. A proceeding is said to be Judicial if its object is to determine the legal relations between one person and group of persons. Further, to make it as judicial proceeding Judge must act in a judicial capacity.

IEA is applicable to both civil & criminal law. However, the quantum of proof in either case is different. In Civil cases it is preponderance of Probability and criminal it is beyond reasonable doubt. Apart from that S.52 and 55 dealing with character of parties and S.115 to 117 dealing with estoppel are exclusively applicable to Civil law only. The term evidence means to show clearly, to discover clearly, to ascertain, to prove. Evidence also means to make clear to the sight. Affidavit is not evidence under IEA unless it is permitted under some other law. They are treated as evidence if the deponent is subjected to cross-examination.

General Principles: IEA primarily talks about following five issues:

1) Relevancy     2) Admissibility      3)Competence

4)Burden of Proof    5)Credibility    6) Presumptions

1) Relevancy:          Facts that can be used to prove a case

2) Admissibility:     Persons with whose aid relevant facts can be placed before court.

3) Competence:       Mental capability of understanding questions and gives rational answers.

4) Burden of Proof: The obligation to prove a case.

5) Credibility:          The probability of relevant and admissible evidence being true.

6) Presumptions:    Basic values or presumptions about certain facts of life court shall have.

1) Relevancy: Facts that can be used to prove a case. The fact may be proved with the aid of evidence, admissions and judicial notices. The proof of facts before the court must be with the aid of facts listed under S.6 to 55 of Indian Evidence Act. It is also known as theory of Relevancy. No exceptions. The proof of facts before the court must be with the aid of facts listed under S.6 to 55 of Indian Evidence Act. Those facts are hereunder:

    2. Admissibility: Persons with whose aid relevant facts can be placed before court. The 2^nd qualification is that witness must be through direct evidence. Direct evidence refers to facts perceived by one’s own sense. It means to act as witness before court one must directly perceive them with his any of the five senses. However the following are the exceptions to this broad general rule. They are based are certain public policy considerations. They are: Resgestae; Admissions and confessions; Statements U/S32 and 33; Statements in Public documents; Opinion of experts.

Direct evidence can be given either orally or in documentary form. However if the law requires transaction to be in writing or oral terms are reduced to writing, oral evidence is not permitted (s.91, 92). Even this documentary evidence that can be produced must be through original (Primary evidence) unless law permits secondary evidence. Primary evidence means original document itself. Another important rule connected to this point is that contents of documents must be proved   with the aid the person who is author or executants or scribe or witness to the document or person acquainted with the facts of the document, Expert. In case of public document or document of thirty years old any person can produce and prove the facts contained in it.

3) Competence:  Persons though admitted to speak facts they shall qualify test laid down under S.118 to S.132. The first and foremost qualification to be a witness is mental capability.  In other words witness must be capable of understanding questions and give rational answers to those questions and not expressly prohibited by law not to give evidence.  Mental capability and not prohibited by law are alone can be witness before court.

 4) Burden of proof:  The person seeks judgment in his favour for a threatened invasion or invasion of his right, burden lies to prove the case through relevant facts, admissible and competent persons in a credible way.  The consequence of failing to prove the same is dismissal of the case.  There are certain exceptions to this rule. They are: presumptions, estoppel, admissions, judicial notice, Facts admitted. They are exceptions as they relieve the party’s burden to prove certain facts subject to certain qualifications.

 5) Credibility:  The term credibility refers to value of evidence. The plain reading of S.3 of the spells out that mere proof of essential elements of right & liability with the aid of relevant facts, admissible and competent persons wouldn’t result proof of fact.  The section emphasize that court shall upon seeing the matters before it believe the same to conclude that a fact is said to be proved.  Thus evidence before the court must meet another test is called credibility. In other words evidence must be convincing, logical, consistent, coherent, corroborative, no contradictions and free from doubts.  The last chapter of IEA offers various tools to enhance or diminish the credibility of the facts showing elements of right or liability.

  6) Presumptions: Demanding a party to adduce evidence on an every trivial fact or logical consequence of a proved fact and which is quite common to notions of civilized way of living, hardly have any rationality. Hence, Act directs court to possess certain values or perceptions or presumptions with respect to certain facts of life. They are listed under S.105 to 114 A IEA. In such factual scenario court shall not demand evidence.

 THEORY OF RELEVANCY:

“PROSECUTION FAILED TO PROVE THE GUILT OF   ACCUSED BEYOND REASONABLE DOUBT”.

This is the usually ending sentence we find in the judgments of Criminal Courts.

What is the inference we can draw from this Sentence?

Ans: They are as follows:

• There is no evidence on record                     2) Inadequate evidence
• I don’t know whether offence is committed   3)  Accused didn’t commit offence

4)  Accused committed the offence but didn’t meet Standard of Proof.

The above inferences suggest that to prove a case it is not enough to prove elements of offence, we have to prove something else also.  This is also evident from the word called ‘Proved’ defined under Evidence Act. Therefore, it is necessary for prosecution or plaintiff to make story credible, logical, consistent, and coherent, trust worthy, corroborative, truthful, and free from doubts, no contradictions and discrepancies

Proved: S.3 of IEA defines proved. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

A fact is proved: Matters + Belief.  Now the question is : what is Matters?

The term matters: Evidence and other facts.

Evidence (S.3): Oral or documentary statement made on oath before court or any public authority. All facts can be proved by oral evidence except the contents of a document.

Evidence means and includes—

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence : S.59, 60, 63(5), 91 Explanation, 92-Proviso 2 & 3, 119 and S.144 Explanation deal with oral evidence.

(2) All documents including electronic records produced for the inspection of the Court such documents are called documentary evidence: S.61, 62, 65, 91, 92 &145deal with documentary evidence.

The following are not evidence as they are not on oath:

        a) A confession or statement of the accused (S.239, 251, 313, 164 Cr.P.C)

       b) Demeanor of witness (S.280 Cr.P.C),

       c) Local investigation or inspection (S.310Cr.P.C)

      d) Facts judicially noticeably (S.56)              

      e) Material objects (Criminal rules of Practise).

Fact: S.3 says Fact means and includes:-

(1) Anything, state of things, or relation of things, capable of being perceived by senses.

(2) Any mental condition of which any person is conscious.

Ex: (a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) Any mental condition of which any person is conscious.

Fact in issue: S.3 of IEA defines fact in issue.

Fact in issue: Any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceedings, necessary follows. It means matter under controversy.

Document: S.3 of IEA defines document. A document means any matter expressed or recorded or any substance by means of letters, figures or marks. Documentary evidence means all documents including electronic records produced for the inspection of the court.

Ex: Caricature, Currency note, photograph, inscription on rocks, marking on trees, Tatoo mark on human body. White of paper is not a document.

Why we go to Court?  What essentials are required to be proved before court of law?

Ans: Party goes to court to establish his legal right or liability of another. Therefore, party approaching the court shall fundamentally prove essential elements of right or liability.

S.13, 14 & 15 of the IEA talks about essential elements of right or liability.

Consider Hypothetical situation:

Raju is a Hindu and he has one son by name Arjun. Raju used to work as a clerk in Jr.Civil Judge Court, Ranga Reddy and he took his last breath on 12/1/14. During his life time he used to save his earnings and at the time of his death he is having an amount of Rs.10,000/- in SBH Ranga reddy District Court branch. Upon his death Arjun claimed money lying in the bank by approaching Bank Manager. Arjun said to Manager that he being the CLASS-I legal heir entitled to property and demanded for payment of amount to him. He also showed WILL executed by his father in his favour. At that time one Ragini claiming she to be Second wife approached manager and demanded to give money to her. The Manager refused to act upon and demanded for Succession certificate. It is to be noted Arjun mother died long back.  Arjun filed case before Jr.CJ, R.R. Dist.

Relevant: Facts that can be used to prove a case.

Facts relating to right or custom in question (S.13) : If there is a question as to the existence of any right or custom S.13 makes admissible: (1) Transaction (2) particular instances.

S.13 (a) dealing with transactions says that where the question as to whether a certain right or custom exists, any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence , may be proved.

S.13 (b) dealing with particular instances says that where the question is as to whether a right or custom exists, particular instances in  which the right or custom in was claimed, recognized, exercised or in which its existence was disputed, asserted or departed from, may be proved.

Facts relating to state of mind, body or bodily feeling (S.14):

This section renders all facts showing state of mind, body or bodily feeling relevant only when the existence of any such fact is in issue or relevant facts.

This section is based on the principle that when the intention of the accused is a relevant fact, evidence of similar transactions both prior and subsequent to the alleged offence is admissible as evidence of intention.

The principle, on which evidence of similar acts is admissible, is not to show that, because the accused defendant has committed an offence, he would therefore be likely to commit another but to establish the animus of the act and rebut by anticipation the defenses of ignorance, accident, mistake, or some innocent motive or intention.

S.15 is merely an application of the general rule laid down in S.14.  It is plain that this section is of assistance where the existence of a state of mind such as intention, knowledge, good faith, negligence rashness, ill-will or goodwill towards a person or the existence of a state of body or bodily feeling in issue.

S.15 is merely an application of the general rule laid down I S.14.  S.15 says facts relating to show whether the fact was accidental or intentional are relevant. This section picks out only those cases where the question is whether a particular act is accidental or intentional. Example.1: A sues B for the damages done by a dog of B. B knew it to be ferocious. The facts that the dog had previously bite X, Y, Z and same was complained to B are relevant u/S.14.

What is the need and necessity of S.6 to 11 of IEA as S.13, 14 & 15 of the IEA proves the elements of right or liability?

Ans: It is true proving elements of right or liability is enough. However, to make the proof of the right beyond any amount of doubt especially in view of standard laid down under S.3of the Act, it is always ideal to give forward and backward linkages for occurrence of fact in issue or any other relevant fact. Thus by taking aid of forwards and backward linkages we are making either     prosecution or plaintiff version credible, logical, consistent, coherent, trust worthy, corroborative, truthful, free from doubts and also avoid contradictions and discrepancies.  Now, let us turn to S. 6 to 11 IEA which help parties to give forward and backward linkages for occurrence of fact in issue or any other relevant facts:

      a) If such fact form part of the same transaction (S.6)

      b) If it is the occasion, cause and effect of the fact in issue (S.7)

      c) Facts relating to motive, preparation and previous or subsequent conduct. However, conduct must be accompany and explain act (S.8).

     d) S.9: Introductory Or Explanatory Facts

    e) S.10 : Things said or done by conspirator w.r.t common design

    f) S.11 : Inconsistent facts In this connection it important to remember that S.3 mandates mere

Explain the use of S.17 to 54 when S.7 to 16 already covered the field to prove a case?

Ans: S.17 to 54 of IEA offer various other sources to prove relevant facts contained in S.7 -16.

Whether previous confession statement made by the accused before courts can be used to prove a case against him?

Ans: Yes, they can be used under certain conditions and they are dealt u/S.25 to 30.

Under What Circumstances a former statement made by third person can be taken as evidence in the court of law?

Ans: It can’t be used as evidence unless he personally come and deposes before the court. However, under certain conditions like: he is dead or incapable of giving evidence or not found or can’t be procured with unreasonable delay, any person can give evidence of his former statement subject to condition laid down under S.32 & 33 of the Act.

Whether facts contained in documents can be used to prove case?

Ans: Yes, they can be used under certain conditions and they are dealt under S.34 to 39.

Whether Courts Judgments are relevant?

Whether Third Persons evidence is relevant?

Ans: It is relevant even though it is hearsay evidence provided they meet conditions laid down under S.45 to 51.

Whether Character evidence is relevant?

Ans: It is irrelevant except under certain situation. They are expressly dealt under S. 51 to 54.

Admissibility (S.59 & 60): All facts can be proved by way of oral evidence except the contents of documents. Oral evidence shall be direct. It means evidence shall be given by those persons who perceived with their own senses. Unless these people give evidence court is prohibited to treat the same as evidence to be taken into consideration. This is called admissibility rule. However there are some exceptions to this rule.   Exceptions to hearsay rule of evidence: a) Resgestae(S.6) b) Admissions and confessions c) Statements U/S32  d) Evidence given in judicial proceeding or before any person authorized to take evidence by law e) Statements in Public documents f) Opinion’s of experts.

The sections exempted from Hearsay rule are:

S.21, 22, 27 to 30 b) S.32, 33, 34 to 38, 40 to 42, 45.c) S51,53 and 54.

Facts which are need not be proved: The following facts are need not be proved :(a) facts which the court will take judicial notice (S.57) (b) facts admitted by parties by their pleadings (S.58) However the court may in its discretion require the facts admitted to be proved otherwise then by such admission.

Facts which court can take judicial notice: S.57 enumerates 13 facts, which the court is bound to take judicial notice. They are:

1. All laws in force in the territory of India.
2. Articles of War for the Indian Army, navy or Air Force.

    3.The course of proceedings of parliament of the U.K, of the constituent Assembly of India, of parliament and of the legislatures established under any laws for the time being in force in the state or in India.

4. The division of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette.
5. The commencement continuance and termination of hostilities between the government of India and any other State or body of persons.
6. The names of the members and officers of the court and of their deputies and sub-ordinate officers and assistance, and also of all officers acting in execution of its process , and  all Advocates, pleaders and  other persons authorized by law to appear or act before it .
7. The rule of the road on land or at sea

DOCUMENTARY EVIDENCE AND CLASSIFICATION:

Whether secondary evidence can be produced in the absence of primary?

The general rule is that document must be proved by primary evidence only subject to certain exceptions specifically given. This rule is stated in S.64. And exceptions are provided in S.65.

(a) When the original is shown or appears to be in the possession or power of the person against whom document is sought to be proved or any person out of reach of or not subject to the process of court or of any person legally bound produce it, when after giving notice as mentioned in S.66 such person doesn’t produce it.

(b) When existence of original have been is admitted in writing

(c) When the original had been destroyed or loss or cannot be produced

(d) When the original is not moveable                                                                                                                                          

(e) When original is a public document

(f) When the original consists of numerous accounts.

According to S.66 party before resorting to secondary evidence u/s 65 (a) a notice to produce the original must be served on the person in whose possession the original is. The purpose of this rule is to give adequate opportunity to produce the original in whose possession it is and thereby to produce the best evidence to prove the contents.  However no notice is required to produce secondary evidence in the following six mentioned cases. The parties can straight way produce without notice:

When the document to be proved itself is notice- When from the nature of the case, the adverse party must know that he will be required to produce it- When it appears or is proved that the adverse party has obtained the possession of the original by fraud or force-when the adverse party or his agent admitted the loss of the document-When the person is in possession of the document is out of reach of or not subject to the process of court.

Whether evidence can be given varying the terms mentioned in the document?

Ans: No, Section 92 says No oral evidence to contradict, varies, and adds or to subtract the terms of a document can be allowed. The section recognized superiority of a written proof over the verbal. However there are seven exceptions to this rule:

      i) Any fact which would invalidate any document or entitle any person to any decree or order relating thereto may be proved i.e. fraud, intimidation, illegality, failure of consideration.

     ii) Any separate oral agreement has to any matter on which the document is silent and which is not inconsistent with terms may be proved.

    iii) Any separate oral agreement, imposing condition precedent to the attaching of any obligation under any such contract, grant or disposition of property may be proved.

    iv) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant, disposition of property may be proved, except where such contract or grant is required to be in wiring are has been registered .

    v) Any usage or custom by incidents not expressly mentioned in any contract or usually annexed such contracts may be proved, if they are not inconsistent with it express terms.

    vi) Fact showing the manner the language of the document to the existing facts may be proved.

    vii) Persons who are not parties to a document or representatives interest may give evidence of facts tending to show a contemporaneous agreement varying the terms of the document.

Write note General rules of Burden of Proof?

Ans: The term burden of proof indicates obligation to prove a case. The first four sections under Burden of Proof Chapter laid down certain basic rules to law of burden of proof.

Rules relating to Burden of proof:

Presumption: Presumption is an inference drawn by the court based on certain proved facts. The following table clearly explains the same. May presumptions are indicated in S.86 to 88, 90 & 114. Shall presumptions are indicated in S.79 to 85, 89 & 105. Conclusive proof is contained in S.41, 112 & 113.  It’s a short cut to Proof.

It is evident from S.101 to 105 IEA burden to prove a fact lies on a person whoever avers the same and his failure to prove the same would result not believing such assertion or fact. Now, can you list out circumstances under which though facts are averred and asserted by one but burden to prove lies on different person?

Ans:  The general rule is burden lies on that person who avers the fact but in the following factual scenario burden lies some other person. They are dealt under S.106 to S.114.

Write a short note on S.114 IEA?

Ans: The court merely because parties on either side fail to place evidence, it shall not remain silent and S.114 offers various presumption court is entitled to draw and act accordingly and reach truth.  However, such presumption as to existence of or happening of any fact shall be based on following considerations:

     a) Common course of natural events          b) Human conduct         c) Public and private business.

It must be noted that such presumption must arise basing on their relation to the facts of the particular case.

Write a note on Esttopel?

Ans: The following table explains basic rules relating to Law of estooppel.  

COMPETENCY AND COMPELLABILITY:

Who is a competent Witness? 

Ans: S.118 says every person is a competent to be a witness provided he is capable of understanding questions put to him and give rational answers to them. Even child, old age persons, sick person, insane persons, dumb persons are competent witness if they are capable of understanding questions put to him and give rational answers to those questions.

As per S.119 Dumb and deaf person can be witness and give evidence by way of gestures and signs or writing in court and whatever he gives is deemed to be oral evidence.

As per S.120 even the wife and husband are competent witness against or for the suit filed by either of the spouse, though, in the eye of religion wife and husband are said to be one and same.

Who can’t be compelled to act Witness? 

Ans: S.121 to 131 of IEA list out persons who shall not be compelled by court to give evidence even though they possess relevant and admissible and clinching evidence w.r.t matter under controversy. These prohibitions are based sound policy considerations.

 Article 20 says Accused can’t compel to be a witness against himself. However, as per S.315 Cr.P.C he can be competent defence witness. He can be called as a witness only upon his request in writing. Therefore, as per S.161(2) Cr.P.C any person who is giving statement to police in the course of investigation need not disclose anything if it exposes him to penalty or forfeiture of property as it violates A.20 of Constitution.  However, Such person is a witness before the court as S.132 IEA he shall speak even though it expose him to penalty or forfeiture of property but shall not be used as evidence to prosecute on the basis of whatever he testified before court of law.

Comment: Right to Silence or Testimonial compulsion: It is one of the foundation principles of Criminal Justice System that ‘no man shall be compelled to be a witness against himself’. Thus every person has to remain silence if in the event of speaking or giving evidence would expose him to criminal charge, penalty or forfeiture of property. This can be made known from A.20 (3) of constitution, S.161 (2) Cr.P.C and S.132 Indian Evidence Act, 1872. (As per S.132 witness before court is not excused from speaking, however, he can’t be charged for the same).

This was also held by the Supreme Court in Nandini Satpathy vs. P.LDani AIR 1978 SC1025. However, the only exception to this rule is judicial Confession

 S.133 says accomplice is a competent witness against an accused person and conviction is not illegal merely it because it is uncorroborated.

S.134 says there is no requirement of number of witness for proving a case. It is the quality that matters but no quantity.

Mode of Recording Evidence:

S.135 regulates the law and procedure and practice and the order in which witness to be produced. If there is no provision court has discretion to adopt its own procedure. Chapter XVII, XIX, XXI, XXIX of the Cr.P.C deals with manner of examining the witness. Generally, on whom the burden of proof lies examine his witness first. In criminal cases prosecution has right to begin the examination of witness. The other non-examined listed witnesses are not allowed to sit in the court hall when the witness is examined. And this is not a ground to refuse to examine the witness, who sat in the court hall. However, a note must make in the court hall.

S.136 court has power to ask the party under what section evidence offered by him is relevant.  As per S.136 the court has power to control the sequence of the production of the evidence in case the proof of one fact is dependent on the proof of another fact. Ex: Evidence in D.D.

S137 deals with examination of witnesses.

Examination-in-Chief: means the evidence elicited by the person who calls the witness.

Cross-Examination: The questions put by and evidence elicited by the adverse party from the witness is called cross-examination.

Re-Examination: Subsequent to the cross examination any questions pot to and answers elicited by party who called the witness is known as re-examination.

The Purpose of Examination-in-chief is to take such testimony for which is called by a party.

The Purpose of Cross Examination is to test veracity of witness by impeaching his credit.

The Purpose is to re-examination inconsistency which may have arisen during examination in chief and cross examination.

As per S.138 order of the examination is follows:      (a) Chief examination       (b) Cross-examination                                                             (c) Re examination.

As per section 139 of the IEA, a person summoned to produce a document doesn’t become a witness. He can’t be cross-examined unless and until he is been called as witness.

According to S.140 witness to character may be cross-examined and re-examined.

According to S. 141 a leading question is one which suggests the answer to the witness or which the person putting it wishes or expects to receive. A question itself contains answer. EX: “Did you not see the accused running with a blood-stained knife from the scene of murder?”

 Section 142 prohibits a leading question being asked in the examination-in-chief or in re-examination except with the permission of the court. Leading questions are permissible if they are: introductory in nature, undisputed facts, regarding matter which is already proved.

 Section 143 permits leading questions to be put in cross-examination. The term viva-voce means examination-in –chief.

 As per S.144 if a witness giving w.r.t matter contained in the document he must not be allowed to testify the same unless same is produced.

As per S.156 a witness can be questions w.r.t any other surrounding circumstances or events which witness observed at or near the place at which such relevant fact occurred for the purpose of corroboration.

Corroboration: According to S.157 the testimony of witness is allowed to be corroborated with the help of any former statements made by him in respect of the fact in issue or statement made at or about the time when the fact in issue took place or made before any authority legally competent to investigate the facts.

S.146 tells about tools to test the credibility of the evidence. This can be tested with following tools they are: a) Questions that test the veracity of a witness, b) Questions that establish the identity of the witness and position he holds in the life, c) Questions connected to the character of the witness.

Section 155 enables the party to give independent evidence witness for the purpose of impeaching the credit of witness so as to convince the mind of the court that the evidence of the witness in question is not safe enough to be relied on.

1. By receiving evidence of persons who can testify that they, from their knowledge about the witness, believe him to be unworthy of credit.
2. Independent evidence can be adduced to impeach the credit of witness by showing that he is a professionally hired witness receiving a bribe or some other corrupt inducement.
3. By showing that the witness has made statements on previous occasion which are inconsistent with any party of his evidence, and which are liable to be contradicted. Proof of such contradictory statements can be given to the extent which S.153 permits such contradiction.

Comment on S.146 & 155: The following evidence can be placed before court to test the Credibility of the witness. It can be done either by cross-examination or producing independent evidence. S.146 says such activity can be done by way of cross-examination and whereas S.155 says it can be done by way of independent evidence also.  In either case the tools to test the credibility are one and the same. They are:

         a) Veracity a witness,   b) Identity of the witness and position he holds in the life,   c) Character of the witness.

 S.147 says when a question arises whether a witness is compelled to answer or not, S.132 applies.

S.148: In the cross examination any question that imputes anything to the witness is permitted provided it would seriously affect the opinion of the Court as to the credibility of the witness on the matter of which he testifies. However, if there is a great disproportion between the imputation made against the witness’s character and the importance of his evidence, court shall not allow the counsel to ask such questions. It is one of the principles that the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavorable.

S.149 says Court has power to direct the lawyer not to ask the question referred under S.148 if such imputation is not well founded or it has no reasonable grounds.

S.150 says If the advocate crosses the limits set out in the Act and he is ruthless in questioning the witness and thereby injuring the character of witness and same is not based on reasonable grounds, the court can report the actions of such advocate to the appropriate authority i.e., Bar Council or High Court.

S.151 authorizes the court to forbid indecent or scandalous questions being asked even though such questions or enquires may have some kind of bearing on the questions before the court.

S.152 authorises that court to forbid any question which appears to it  to be intended to insult or annoy, or which, though proper in itself appears to the court needlessly offensive  in form .

Comment: Imputation: It means an allegation. It is not wrong to make imputation to witness on oath. The following table discloses imputation that are permitted and imputation that are not permitted.

Section 153 says when the witness answers a question relating to the inquiry which is put to him to shake his credit by injuring his character no evidence shall be given to contradict the answer given by the witness.  Whatever be the answer the witness gives, it must be received without any contradiction. However if he answers falsely he may afterwards he can be charged with giving false evidence for this above rule there are two exceptions: (a) previous convections (b) impeaching his impartiality. In both two cases witness answers can be contradicted.

Hostile Witness: Section 154: When a party calls a witness he naturally expects the witness to be favourable to him. But in certain case the witness so called by a party may unexpectedly turn hostile towards the cause of the party or he may be unwilling to speak truth. Such a witness who is imbubed with prejudiced mind towards the party calling him is called as hostile witness. In such cases it is just reasonable that the party calling such witness must be given an opportunity to cross examine such hostile witness.

Value of hostile witness evidence: Court can rely upon the evidence of hostile witness evidence to the extent it is supported by other evidence on record.

According to S.158 statements U/S 32 or 33 are treated on par with the statements of witnesses, who, if they had been available as witnesses, for the purpose of contradiction or corroboration

Refreshing Memory: Section 159 to 161: On account of the long gap between the incident and commencement of legal proceedings before the court, their memory is likely o fade and it becomes necessary for such witnesses to refresh his memory. Section 159 -161 provide the rules to enable the witness to refresh their memory. Section 159 permits to refresh his memory by making reference to any writing made by him at the time of transaction or so soon afterwards that in the opinion of the court the transaction was fresh in memory. He can also refer any document written by a person provided if it is seen he saw it in above said time. He can refresh his memory with the aid of copy of the document also provided he gives proper explanation for the absence of original.

An expert may refresh his memory by reference of professional treatises. S.161 says the above said document through witness refreshed his memory must be shown to cross-examiner also, if he asks.

If a witness who is having valid objections to produce a document, when he is summoned to produce document doesn’t produce it, subsequently he can’t be allowed to produce the same.

As per S.162 A witness who wishes to take objection for production of document shall bring it court then only he can take objection.  This rule applies to S.123 of the Act.

As per S.163 If a party calls for the production of particular document by giving a notice to the adverse party and has inspected the document on its production, he is bound to make the document as a part of evidence.

S.164 says if a party who is in possession of a document refuses to produce it when a notice is served on him for its production, subsequently he can’t make the document as part of evidence.

Role of Judge under S.165: A court has unlimited power U/S 165 of IEA, to put any question to any witness or order him to produce any documents. Under this section court may examine or recall or re-examine any witness in the interests of justice. If the prosecutor omits facts, the court may act u/s 165 and may question the witness to elicit the matter.

Restrictions on the power of the Judge:

1. It must be only for obtain proper proof of relevant facts.
2. Judge can ask irrelevant questions, but judgment must be based upon relevant facts and duly proved.
3. It can’t violate rules of privilege mentioned u/s 121 to 131 both inclusive.
4. The judge shall not ask questions which are held to be improper u/s 148 and 149.
5. A judge shall not dispense with primary evidence of documents for the purpose of proving the contents of a document unless justification is shown for the admissibility of secondary evidence u/s 65 of the Act.

 As per S.167 IF there is a sufficient evidence to justify a decision – improper admission or rejection of evidence is not a ground for new trial. The object of this rule is that technical objections will not be allowed to prevail, where substantial justice has been done.

Comment: The court has to receive relevant and admissible evidence. However, if it receives irrelevant or inadmissible evidence or rejects relevant or admissible evidence.

  what is fate of such Judgment?

Ans: If excluding such evidence, there would be no variation in the judgment there is no need of  new trial, otherwise it is a ground for new trial.

THEORY OF RELEVANCY: IMPORTANT EXAMPLES:

CRIMINAL PROCEDURE CODE, 1973:

ARREST

IMPORTANT SECTIONS:

INVESTIGATION:

What are the values of several of statements or reports prepared during the course of Investigation?

JURISDICTION:

COGNIZANCE:

What are the various kinds of Technical Bars for taking cognizance of offence?

Ans: They can be classified into two: Time limitations and other. The others can be either obtaining sanction or report by victim. The time limitation for taking cognizance is dealt under S.468 Cr.P.C

Note: on Commencement of period of limitation: 

1. On the date of offence or
2. First day of offence comes to know to the knowledge of person or police whichever is earlier.                                 3. When identity comes to the knowledge of person or police whichever is earlier
3. In section 472, the first day is excluded for continuing offences from every continuing moment.

LIMITATIONS TO TAKE COGNIZANCE:

CHARGE

What is the Procedure for Trial of Summons-cases by Magistrate?

Ans: Trial of Summons-cases: When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon.

If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent, thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused except some reasons. This rule applies to cases where the non-appearance of the complainant is due to his death.

In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.

S.256 Cr.P.C: If the complaint upon receipt of summons is called absent on the date fixed for the accused or any other matter for which matter is adjourned, the court can acquit the accused. This rule applies even for the non-appearance of the complaint due to his death.

S.249: Absence of complaint: If the complaint in a complaint case is called absent or didn’t turn before framing the charge, he can discharge the accused, provided offence alleged is a compoundable and non-cognizable case.  The two situations must be satisfied: compoundable and non-cognizable case.

The magistrate as S.258 Cr.P.C can stop the proceedings at any stage in the following circumstances: a) It must be a summons case b) It must be a case instituted otherwise than on complaint i.e., On a police report.

If such stoppage of proceedings is after the examination any of the witness it is called acquittal. If such stoppage is without any recording of any evidence it amounts to discharge.

Difference between acquittal and Discharge:

If the accused is set at liberty prior to recording of evidence, it is known as Discharge.

If the accused is set at liberty after recording of evidence, it is known as acquittal.

If the matter is ended in acquittal, he can’t be tried again. If accused discharged he can be tried by same court or its superior court.

Difference between 249 and 256: S.256 is applicable to both summons case and warrant cases and where as S.256 is applicable to summons cases only.

S.249 is applicable to cases whether it is either compoundable or non-cognizable and whereas S.256 is applicable in case of summons case.

It is irrelevant under S.256, whether offence is compoundable or non-compoundable.

S.257: A complaint in a complaint case can withdraw the case by showing sufficient grounds. Such withdrawal can be all or any of the accused in that case.  Upon such permission given by the court accused gets acquitted.

Difference between acquittal and Conviction: Conviction means the proof of guilt. Sentence means quantum of punishment awarded upon conviction.  It is mandatory to hear the accused on sentence in case of session’s case (235) and warrant cases (248). It is desirable in case of Summons case.

Summary Trials:  In summary trial unlike other trials there is no elaborated procedure to try the accused. It is a simple, quick and inexpensive procedure. This mode of trial can be adopted only by certain class Magistrates or Magistrates authorized by High court in following cases only: i) offences which are less than two years. ii) In following cases even if the punishment is more than two years but worth of property involved is only Rs.200/- court can conduct summary trial. They are: S.379, 380, 381, 411, 414, 454, 456, 504, 506 IPC, S20 of Cattle Trespass Act.

Summary Procedure: Basically in all summary trials the summons procedure is framed i.,e no requirement of framing charge, recording of substance of evidence. However, if the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. But in no case Magistrate can’t inflict punishment for a period more than three months upon finding the accused is guilty offence. Generally, in every summary trial record following particulars must be mentioned, namely:- (a) the serial number of the case: (b) the date of the commission of the offence; (c) the date of the report or complaint; (d) the name of the complainant (if any); (e) the name, parentage and residence of the accused; (f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed; (g) the plea of the accused and his examination (if any); (h) the finding; (i) the sentence or other final order; (j) the date on which proceedings terminated.

Another impressive feature of this trial is that accused need not come to court he can plead guilty through post or pleader or by person upon receipt of summons and pay fine as mentioned in the summons.  During the trial of case if the Magistrate is opinion that it undesirable to try the case under summary procedure he can convert it into any other manner as provided by code.

Write a note on Return of Property for Interim Custody?

Ans: Return of Property for Interim Custody: S.451 & 457 of Cr.P.C are the relevant provisions which deal with return of property for interim custody. S.451Cr.P.C deals with order for custody and disposal of property pending trial in certain cases. S.457 Cr.P.C of speaks about procedure to be followed by police upon seizure of property. Another distinction between both these sections is like this:

Under 457 1) Property has been seized by police officer. 2) Seizure is reported to the Magistrate. 3) The property so seized is not produced before the court during inquiry or trial and whereas under S.451 there is no deposit of property before court.

A plain reading of these two sections indicates that powers u/s.451, 457 Cr.P.C shall be exercised expeditiously and judiciously. If the property is not returned to its original owner the value of the property gets diminished and it’s a clog on property. Therefore, it is held that if there is a proper panchanama before handing over the property to its original owner towards interim custody, it can be used in evidence instead of its production of property during the trial. One important judgment pertaining to this issue which is delivered by Apex court in Sunder bha Ambalal Desi Vs. Gujarat 2003(1) ALD (CRL) 8 SC. Following are guide lines laid down: (a) Preparation of detailed panchanama of articles seized (b) taking photographs of such articles and a bond that such articles would be produced at the time of trial and (c) Taking proper security.

S.452 gives jurisdiction to court to order for disposal only at the conclusion of trial.

Write a note on Maintenance proceedings Under Cr.P.C?

Ans: Sections 125 to 128 of Cr.P.C.1973 operates against persons who neglect or refuse to maintain their dependent wives, children and parent. It applies person of all religions and have no relationship with the personal laws of the parties except divorced Muslim women. It is an enforcement of civil remedy by way of criminal machinery.

Conditions:   If the dependent is unable to maintain herself or himself, JMFC upon proof of such neglect or refusal pass an order for payment of maintenance. Dependent means wife, parent or child.

 Salient features of s.125 Cr.P.C:-

1. JMFC has power to pass order under this Section. JMFC order is not final for more maintenance parties can agitate before civil court.
2. Marriage must be valid one. 3. Children includes both legitimate and illegitimate.
3. Presumption of marriage can be raised in favour of wife u/s 50 of IEA.
4. Wife may be minor or major such allowance shall be payable from the date of the order or if so ordered from the date of application for maintenance.
5. If any person ordered, fails without sufficient cause to comply with the order any such Magistrate, may issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person accordingly u/s 125(3).
6. Time limitation is one year.

    8.In section 125(4) disqualifications from entitling maintenance are provided, they are as follows: (a) if she is living in adultery (b) without sufficient reason refuses to live with him or (c) living separately under mutual consent between husband and wife (d) when she is remarried.

9. Territorial jurisdiction for filing application U/S 125Cr.P.C proceedings may be taken against any person in any district: (a) where he is or (b) where he or his wife resides or (c) where he resided with his wife or as the case may be, the mother of the illegitimate child.
10. Evidence must be recorded in presence of respondent or his advocate. It must be recorded as summons case.
11. When there is wilful avoiding of summons, court can declare such person as exparty and proceed. 14. Exparty order can be seta side only on showing good ground within 90 days.
12. Court can order for costs also. 13.Court can issue warrant of imprisonment on failure to pay maintenance.
13. The person claiming maintenance must be unable to maintain him or herself.
14. Enquiry U/S 125-128 is not a trial. It can’t be considered as acquittal or conviction.
15. If marriage is void in view of S.5 and 11 of Hindu Marriage Act, 1955 is not entitle to relief U/S125.

21.Kuldeep Kour v/s Surinder singh: Sending defaulting husband to jail is only a mode or method of recovery and not a substitute for recovery of the maintenance allowance. Husband is not absolved from his liability to maintenance, the amount is still recoverable.

Inherent powers: The power of court to do anything to meet the ends of justice in the absence of express provision of law is called inherent powers. This power can be expressed only the H.Court under 482 Cr.P.C.

GENERAL PROVISIONS OF INQUIRE AND TRIALS:                        

Write a note on issues relating to Bail?

Misc:

In summons case substance of evidence can be recorded.

In Warrant cases as the examination of each witness proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court. The same is the case with the trial before Court of Session.

S.280 Judge can record demeanour of witness (Non-Verbal Communication)

281. Record of examination of accused.
282. No formal proof of certain documents:- If the genuineness of document is not disputed it can be read in evidence without meeting S.67 IEA, provided that the Court may, in its discretion, require such signature to be proved.

In Criminal trial evidence shall be recorded in court in the presence of accused. It shall not be on affidavit except under S.138 NIAct and S.296 Cr.P.C

S.296. Evidence of formal character on affidavit.

298 talks about how to prove previous conviction or acquittal: It can be proved in the following ways: (a)            Certified copy of the court, under whose custody he had conviction or acquittal held. (b) in case of a conviction, either by a certificate signed by the officer in charge of the Jail in which the punishment is undergone.

299. Record of evidence in absence of accused:- (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial, such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.

Write a note on Plea Bargaining?

Ans:Plea Bargaining- means concession given to convict with respect to sentence upon admission of guilt. Section 265-A TO 265-L have been added in the CR.P.C so as to apply the plea bargaining. Plea-bargaining is the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to the court approval. Therefore, it can be said that plea-bargaining refers to pre-trial negotiations between the defendant through his/her counsel and the prosecution during which the accused agrees to plead guilty in exchange for lesser punishment.

The salient features of plea-bargaining: 

1) It is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years. 

2) It does not apply where such offence affects the socio- economic condition of the country or has been committed against a woman or a child below the age of 14 years.  

3) The application should be filed by the accused voluntarily.

4) An accused must file an application for Plea-bargaining in the court in which such offence is pending for trial. 

5) The accused and prosecution both are given time to work out a mutually satisfactory disposition of the case, which may include giving compensation to the victim by the accused and other legal expenses incurred during pendency of the case.

6) Where a satisfactory disposition of the case has been worked out, the Court shall dispose of the case by sentencing the accused to one-fourth of the punishment provided or extendable, as the case may be for such offence.

7) The statement or facts stated by an accused in an application for plea-bargaining shall not be used for any other purpose other than for plea-bargaining.

8) The judgment delivered by the Court in the case of plea-bargaining shall be final and no appeal shall lie in any court against such judgment.

9) Three essentials work at the time of filing an application of plea-bargaining:

      a) Accused‘s voluntariness to plead guilty.        b) The statements or facts stated by an accused in the application for plea-bargaining should not be used for any other purpose except plea-bargaining.                                                                 c) It is a contractual agreement between the prosecution and the defendant regarding the disposition of criminal charge. However, it is not enforceable until a judge approves it.

CRIMINAL APPEALS:

1. I. At the outset, it apt to remind Certain points:

Hierarchy of courts: JMSC—JMFC—-Asst.Sessions/Sessions Court- H.C- S.Court.

Criminal Court has no inherent powers except for H.C u/S.482 Cr.P.C.

In Chapter.29 Of Cr.P.C, S.372 to 394 talks about criminal appeals.

1. The basic rule is there is no appeal unless provided. In following cases there no appeals:
2. H.C imposes imprisonment up to six months or fine Rs.1000/-.
3. Court of session imposes imprisonment up to three months or fine Rs.200/-.
4. MFC or JMSC imposes imprisonment fine of Rs.100/-.
5. Conviction is on plea of guilty except on legality of sentence (other than HC)

III.Procedure to appeal:In the event of acquittal or inadequate sentence  from any court, appeal lies to immediate Superior court. Appeal can be filed by victim also. It must be filed within ninety days(114LA) by state (is prosecuting agency) and thirty days by private complaint.  However, revision can be filed u/s.397 (90days). In the event of Conviction from any court, appeal lies to immediate superior court as matter of right. It must be filed within 30 days(A.115LA). Ex; S.498A IPC conviction from JMFC lies to Court of Session as a matter of right. If the appeal is to HC from any court of session sixty days (Art.115LA)

1. Bail issues:(S.389): It is 2 kinds i.e., Bail by sentencing court and appellate court.

Bail by sentencing court: It can grant if the convict is on appeal and he is sentenced to imprisonment for a term not exceeding three years or offence is a bailable one, and he is on bail. It is for limited period i.e., till the appeal is filed.

Appellate court: It can exercise the power to grant bail only if (i) the person asking for release on bail is convicted person ii) he is in confinement iii) his appeal against the conviction is pending. The appellate court in exercising its powers under S.389(1) can suspend the execution of sentence and conviction also. Under this section, it is irrelevant whether the offence involved is baialble or non-bailable.

1. Mode and manner of disposing appeal: Memo of appeal must be annexed with copy of judgment. It is duty on part of court to call of records and hear both parties before proceed to dispose the appeal.
2. Powers of appellate court: Grant bail, arrest the accused, receive additional evidence or direct the lower court to record the evidence, re-appreciate the evidence.

Options available to appellate court:

      a) Dismiss the appeal: If the court considers that there is no sufficient ground for interfering, dismiss the appeal.

     b) In case of Appeal from conviction: Court can reverse the finding and sentence and acquit or discharge the accused or order him to be retired by a competent court.

     i) the appellate court may alter the finding and maintain the sentence or

     ii) the appellate court may with or without altering the finding, alter the nature or extent or the extent or the nature and extent of the sentence so as to enhance or reduce the same(S.386(c))

   c) In case of appeal from acquittal: The Court may reverse such order and direct that further inquiry be made or that the accused be retried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law(386(a)).

As to the exercise of power of the appellate court, the S.C in Sanwat Singh v State of Rajasthan has laid down three principles.

First, the appellate court has full powers to review the evidence upon which the order of acquittal is founded. Second, the principles laid down by the judicial committee of the privy council in Sheo Swarup V King of Emperor AIR 1934 PC 227(See below) afford a correct guide for the appellate court’s approach to case in disposing of such an appeal. Thirdly, the appellate court in coming to its conclusion should not only consider every matter on record having a bearing on the questions of fact and the reasons given by court below in support of its order of acquittal, but it should also express those reason to hold the acquittal was justified. The appellate court should deal with each one of the reason which promoted the trial court to record the acquittal and should point out how, if at all, those reasons were wrong or incorrect.

   d) In an appeal for enhancement of sentence.-    i) Court can reverse the finding and acquit or discharge the accused or order him to be retired by a competent court.

     ii) Court can alter the finding and maintain the sentence or

     iii) Court can with or without altering the finding, alter the nature or extent of the sentence so as to enhance or reduce the same(S.386(c))

      e) In an appeal from any other order.- The appellate court may in such a case alter or reverse such order (S.386(d))

      f) Consequential or incidental orders.- The appellate court may make any amendment or any consequential or incidental order that may be just or proper (S.386(e)).

      g) No dismissal of appeal for default or on the appeal becoming infructuous.- No provision in code dealing with this issue. Once, the court decides to dismiss an appeal summarily; it should dispose it of giving reasons for its conclusion except u/s. S.394.

Misc: Only reference and revision is there in Criminal law but not review. On death of accused appeal abates, however, interested party can continue it by impleading (S.394).

Revisional powers of HC(S.407) and sessions court(S.397) are concurrent.

Revision: To see that lowers working within the framework of law.  That subordinate criminal court does not exceed their jurisdiction, or abuse their powers vested in them by the code. They can be  exercised Suo- motu, or on the petition of any aggrieved party or even on the application of any other person.

Revisioanl powers are exercised only in cases where there is a glaring defect in the procedure or there is manifest error on point of law and consequently there has been a flagrant miscarriage of justice.

There is no abatement on the death of the petitioner.

S.397 to 405 deals with the powers of revision conferred on higher courts and the procedure to regulate these powers. These powers are very wide and discretionary in nature. However, there are certain limitations on these powers:

       a) IF there is appeal but no appeal is brought, ordinarily no proceedings by way of revision shall be entertained

       b) revisional powers shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry or trial.

       c) the revisional court is not authorized to convert a finding of acquittal into one of conviction

      d) A person is allowed to file only one application for revision either to the Court of Session or high court.

S.397 says the HC or Court of Session is empowered to call for and examine the record of any proceedings before any inferior court and satisfy itself as to the correctness, legality or propriety of nay order passed by the inferior court. If any defect, irregularity or illegality justifying, corrective action is found on the examination of the record, the subsequent sections namely 398 -401 empower the superior courts to pass suitable orders to remove the miscarriage of justice.   During the period of calling for records, the court can direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.

The revisional powers shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry or trial.

S.404: When the record of any trial held by a metropolitan magistrate is called for by the high court or court of session u/s.397, the magistrate may submit with te record a statement setting forth the grounds of his decisions or order and any facts which he thinks material to the issue; and the court shall consider such statements before overulign or settinga side the said decision or order.

S.398: Power to order inquiry: On examining  any record u/s.397 or otherwise, the high court or court of session may direct the CJM or any magistrate to conduct inquiry into any complaint which has been dismissed u/s.203 or 204(4) or into the case of nay person accused of an offence who has been discharged:

Provided that no court shall make any direction under this section for inquiry into that case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

Thus powers exercisable under this section are limited to proceedings pending or concluded at the pre-stage charge.                                  .

 S.399: Sessions judge power of revision: It says the powers exercisable by session judge w.r.t to revision are same as that of high court u/s.401(1).  S.400 says the Additional session judge can exercise all the powers which a session judge can exercise.

S.401 sets out powers of revision and the limitations on such powers of the high court. 

The revisional powers are intended to be used by the high court to decide all questions as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by any inferior criminal court and even as to the regularity of any proceedings of such inferior court.

The object of conferring revisional power on the high court is to clothe the highest court in a state with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders.

The error or defect may arise from misconception of law, irregularity of procedure, misreading of evidence, misapprehension or misconception about law or facts, mere perversity or even undue hardship or leniency.

S.401(1) confers on the HC all the powers of appellate court as mentioned in Ss386, 389, 390 and 391 and it also empowers the high court to direct tender of pardon to the accused person as contemplated by S.307. apart from these powers the code has given additional powers in espect of specific cases falling u/s.106(4), 356(4), 357(4), 359(2), 360(4) etc.

Any order passed in any proceedings under the code, except when it is specifically barred such as an interlocutory order, is revisable by the high court u/s.401.

S.403 is an exception to rule audi alterm partem. The section 401(2) is imperative and can be considered as an exception to S.403.

S.401(2) says court while passing order under S.401 shall hear parties to the case.

S.401(5) says if the party under the erroneous belief that there is no appeal prefers revision court can convert it into an appeal.

Introduction:

Changes are made in IPC, Cr.P.C and Indian Evidence Act. The changes are made by the President of India by way of Ordinance in exercise of his powers under A.123 (1) of Constitution.

AMENDMENTS TO THE INDIAN PENAL CODE:

1. In S.100, the term Grievous hurt is added.
2. Another S.166A is added. As per this section if any person authorized to investigate refuses to register FIR and fails to obey any direction given by law for the purpose of investigation of any offence or any other matter especially for offences like S.354, 354A, 354B, 354C, 354D (2), 376, 376A, 376B, 376C, 376D, 376E, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.
3. A new section called 326A and 326B are added.

S.326A: Voluntarily causing grievous hurt by use of acid, etc: Not less than ten years but which may extend to imprisonment for life and with fine which may extend to ten lakh rupees. The fine shall be given to victim.

S.326B: Voluntarily throwing or attempting to throw acid: with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. The fine shall be given to victim.

4. The Punishment for S.354 is enhanced to imprisonment of either description for a term of one year which may extend to five years and shall also be liable to fine.

5. The new sections called S.354A, 354B, 354C and 354D are inserted. New offenses are introduced like Sexual Harassment, Assault or use of criminal force to woman with intent to disrobe, Voyeurism, Stalking.

6. S.354A defines Sexual Harassment (SH): The following any of the act is said to be SH:

(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) A demand or request for sexual favours; or   (iii) making sexually coloured remarks; or

(iv) Forcibly showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

(2) The Punishment for offences specified in clause (i) or clause (ii) of sub-section (1) shall be punished with RIwhich may extend to five years, or with fine, or with both.

(3) The punishment for offences specified in clause (iii) or clause (iv) or clause (v) of sub-section (1) shall be punishable with imprisonment of either description that may extend to one year, or with fine, or with both.

7. Assault or use of criminal force to woman with intent to disrobe

354B. Assaulting or using criminal force on women with an intention to disrobing or compelling her in any naked place shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years and with fine.

8. Voyeurism: 354C. Watching or capturing the image of women who is engaging in any private act where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator.

The punishment for 1^st conviction shall not be less than one year, but which may extend to three years, and shall also be liable to fine.

The Punishment for 2^nd conviction or subsequent conviction is with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

9. Stalking: 354D. (1) Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking. However the following are exceptions:

(i) that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or

(ii) that it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) that in the particular circumstances the pursuit of the course of conduct was reasonable.

Punishment: Imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine.’.

10. S.370 IPC is replaced with S.370 and S.370A IPC.

S.370 defines Trafficking.

S.370 Says for the purpose of exploitation if any person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by––

First.–– using threats, or

Secondly.–– using force, or any other form of coercion, or

Thirdly.–– by abduction, or

Fourthly.–– by practising fraud, or deception, or

Fifthly.–– by abuse of power, or

Sixthly.–– by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.

Explanation 1.–– The expression “exploitation” shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs.

Explanation 2.–– The consent of the victim is immaterial in a determination of the offence of trafficking.

Punishment: RI for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. IF more than one person is involved it shall be punishable with RI for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

IF the offence involves the trafficking of a minor, it shall be punishable with RI for a term which shall not be less than ten years but which may extend to imprisonment for life.

IF the offence involves the trafficking of more than one minor at the same time, it shall be punishable with RI for a term which shall not be less than fourteen years but which may extend to imprisonment for life.

IF a public servant including police officer is involved in the trafficking of a minor then such public servant shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life.

If a person is convicted of the offence of trafficking of minors, on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life.

11. Employing of a trafficked person.

370A. (1) IF any person despite knowing that a child has been trafficked, employs such child in any form of labour, shall be punished with RI for a term which shall not be less than five years but which may extend to seven years, and with fine.

(2) IF a person despite knowing that an adult has been trafficked, employs such adult for labour, shall be punished with RI for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.’.

12. S. 375, 376, 376A, 376B, 376C & 376D IPC are replaced with S.375, 376, 376A, 376B, 376C and 376D. S.375 defines Rape t:

‘375. A person is said to commit “Rape” if that person––

(a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or  anus of another  person or makes the person to do so with him or any other  person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of another person or makes the person to do so with him or any other person; or

(c)  manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such  person  or makes the person to do so with him or any other person; or

(d)  applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person;

(e) touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, except where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any of the following seven descriptions:––

First:- Against the other person’s will.

Secondly:-  Without the other person’s consent.

Thirdly:- With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or of hurt.

Fourthly:- When the person assaulted is a female, with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.

Fifthly:- With the consent of the other person when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that action to which such other person gives consent.

Sixthly:-With or without the other person’s consent, when such other person is under eighteen years of age.

Seventhly. –– When the person is unable to communicate consent.

Explanation 1.–– Penetration to any extent is “penetration” for the purposes of this section.

Explanation 2.–– For the purposes of this section, “vagina” shall also include labia majora.

Explanation 3.–– Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act:

Provided that, a person who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception.–– Sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not Rape.

Punishment for Rape.

13. 376. (1) Whoever, except in the cases provided for by sub-section (2), commits Rape, shall be punished with RI of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,––

(a) being a police officer, commits Rape –

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a person in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits Rape on a person in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces is in the area by virtue of deployment by the Central or a State Government, commits Rape; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits Rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits Rape on a person in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards, the person assaulted, commits Rape on such person; or

(g) commits Rape on a woman knowing her to be pregnant; or

(h) commits Rape on a person when such person is under eighteen years of age; or

(i) commits Rape, where the person assaulted is incapable of giving consent; or

(j) being in a position of economic or social dominance, commits Rape on a person under such dominance; or

(k) commits Rape on a person suffering from mental or physical disability; or

(l) while committing Rape causes grievous bodily harm or maims or disfigures or endangers the life of a person; or

(m) commits persistent Rape,

shall be punished with RI for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Explanation 1.–– For the purposes of this sub-section,––

(a) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children;

(b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

(c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861;

(d) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces.

Explanation 2.–– Where a person is subjected to Rape by one or more persons in a group of persons acting in furtherance of their common intention, each of the persons in the group shall be deemed to have committed Rape within the meaning of this sub-section.

14.Punishment for causing death or resulting in persistent vegetative state of the victim.

376A. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with RI for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death.

15. Rape by husband upon his wife during separation.

376B. IF husband commits Rape on his own wife, who is living separately under a decree of separation or under any custom or usage, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

16. Sexual intercourse by a person in authority

376C. Whoever,––

(a) being in a position of authority or in a fiduciary relationship; or

(b) a public servant; or

(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or

(d) being on the management of a hospital or being on the staff of a hospital,

and abuses such position or fiduciary relationship to induce or seduce any person either in the first mentioned person’s custody or under the first mentioned person’s charge or present in the premises and has sexual intercourse with that person, such sexual intercourse not amounting to the offence of Rape, shall be punished with RIof either description for a term which shall not be less than five years but which may extend to ten years, and shall also be liable to fine.

Explanation 1: – In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (c) of section 375.

Explanation 2: – For the purposes of this section, Explanations 1 & 2 to S.375 also applicable.

Explanation 3.–– “Superintendent”, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.

Explanation 4.–– The expressions “hospital” and “women’s or children’s institution” shall respectively have the same meaning as in Explanation 1 to sub-section (2) of section 376.

17. Rape by gang:376D. Where a person is sexually assaulted by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of Rape, regardless of gender and shall be punished with RI for a term which shall not be less than twenty years, but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim.

Explanation.–– For the purposes of this section, imprisonment for life shall mean imprisonment for the remainder of that person’s natural life.

18.Punishment for repeat offenders:S.376E says for every subsequent offence: 376E. Whoever has been previously convicted of an offence punishable u/S.376 or section 376A or section 376C or section 376D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life or with death.’

19. The punishment for S.509 IPC is enhanced to simple imprisonment for a term which may extend to three years and shall also be liable to fine.

AMENDMENTS TO THE CODE OF CRIMINAL PROCEDURE, 1973

1For S.54A, the following proviso is inserted. It says: ––  If the person identifying the arrested person is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate. He shall take appropriate steps to ensure that such person identifies the person arrested using methods that the person is comfortable with. This whole identification process may be videographed.

2. 1For S.154, the following provisos must be inserted. It says: ––

IF the information is by the woman against whom an offence u/s.326A, 326B, 354, 375, 376, 376A, 376B, 376C, 376D, 376E, 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded by a woman police officer. Further, such woman shall be provided legal assistance and also the assistance of a healthcare worker or women’s organisation or both:

Provided further that––  IF such above said offense are committed against mentally or physically disabled person, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of a special educator or an interpreter. This process must be videographed.  It is also the duty of the police officer to get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.

4. Changes to S.160 Cr.P.C: The Statements of persons who are under the age of eighteen years or above the age of sixty-five years or a woman or a physically or mentally disabled person shall be recorded at the place of residence.

5. Changes to S.161: The statements of victim for the following offences shall be recorded by woman police officer: u/s.326A, 326B, 354, 375, 376, 376A, 376B, 376C, 376D, 376E, 509 of the Indian Penal Code.

6. Changes to S.164: For the above offenses the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police. If such person is physically or mentally disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement. The same shall be recorded with the assistance of an interpreter or special educator, may be videographed.

The statement recorded of physically or mentally disabled shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.

7. Insertion of new section 198B: In case of offence under S.376B IPC, where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the accused husband.
8. Provisio is added to S. 273: IF the victim who is giving evidence is less than 18 years is alleged to have been subjected to Rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.
9. Amendment of section 327: In section 327 of the Code of Criminal Procedure, in sub-section (2), for the words, figures and letters “trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code”, the words, figures and letters “trial of Rape or an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code” shall be substituted.

There is a change to 1^st Schedule of Cr.P.C in view of this Amendment.

AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872

1. S.53 A is inserted: It says Evidence of character or previous sexual experience not relevant in certain cases.

“53A. In a prosecution for an offence under section 354, section 354A, section 354B, section 354C, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”.

2.S.114 A is inserted: It says Presumption as to absence of consent in certain prosecution for Rape.

S.114A: In a prosecution for Rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l) or clause (m) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the other person alleged to have been sexually assaulted and such other person states in that person’s evidence before the court that such person did not consent, the court shall presume that such person did not consent.

Explanation.–– In this section “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (c) of section 375 of the Indian Penal Code.’.

3.S.119 A is inserted. It talks about a situation when a Witness is unable to communicate verbally.

S.119:- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of a special educator or interpreter in recording the statement, and such statement may be videographed.”.

4.For S.146 Proviso is added:

   “Provided that in a prosecution for an offence under sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

INDIAN CONTRACT ACT, 1872:

List out certain General rules relating to Contract?

Write a note on essential elements of Contract?

Ans:   In common usage there is no big difference between agreement and contract. However, in the eye of law the difference is striking and significant difference to note.  Any understanding between two or more can be called as an agreement but not contract. In order to call any agreement as contract, it must possess following essentials:

1) Parties to agreement must competent and not disqualified by law

2) The purpose of agreement must be lawful and entered with an intention to create legal relations. 

3) Parties must be entered into agreement with free consent

4) Such agreement must not be declared void by law

4) It must comply with legal formalities like: writing, Stamp, registration etc., Agreement required to be in writing or stamped or registered or attested only if it is demanded by law. 5) Agreement must be for consideration

6) Conditions imposed under agreement must be certain and possible to perform.

7) There must be offer by one party and acceptance by other party.

If any of the above rules not satisfied the agreement does not become a contract.

Write a note on rules relating to offer and Acceptance?

Ans: For every contract there must be at least two parties, one making an offer or proposal and another accepting it.  The legal rules relating to proposal are:

1. Proposal conveys a promise to do or to abstain from doing anything, with a view to obtaining the assent of the person to whom proposal is made to such act or abstinence. If the proposal doesn’t involve a promise in law, its acceptance cannot mature into a promise.
2. The proposal must be capable of creating legal relations. It must be such that, when it is accepted, a contract is formed. No contract can come into existence, if the terms are vague, indefinite or illusory, or unenforceable at law.

The legal rules relating to acceptance are:  

1) It must be communicated to offeree.

2) It must be absolute & unqualified,

3) It must be according to the mode prescribed or usual mode.

4) It can’t come before offer is made.

S.4 talks about Communication, acceptance and revocation of offer:

Who are competent to enter into contract?

Competence of parties to contract: Competence refers to power of parties to enter into contract. Capacity of a party is an essential element of a valid contract.

According to Sec.11, every person is competent to contract, who is of the age of majority, sound mind, not expressly disqualified.

Consequences if contract is entered with minor, lunatic, unsound mind?

Position of Minors Agreements:

1. An agreement with or by a minor is void and in operative abinitio i.e., from the beginning: All agreements with minors are void ab-initio i.e., from the beginning. The relevant case law is Mohiri bibi Vs. Dharma Das Ghosh.
2. He can be a promise or a beneficiary: a minor is incapable to enter into a contract but he can always be a beneficiary in a contract. Such contracts may be enforced at his option, but not at the option of the other party.  Ex: L Who is aged 17 years, agreed to purchase a second hand car for Rs.7,000/- from m and paid 1,000/- rupees as advance with the promise that he will pay the remaining amount the next day.  When L went with the money the next day M said that he has changed his mind and is ready to return the advance.  Held, the M cannot avoid the contract but if L chooses he may.
3. His agreement cannot be ratified by him on attaining the age of majority

Write a note on consideration?

Consideration: S.10 ICA says Consideration is one of the essential elements of a contract. According to S.25 of ICA an agreement without consideration is void.

S.2(d) ICA defines consideration. It says: When at the desire of the promisor, the promisee or any other person has done or abstained from doing, does or abstains from doing, promises to do or abstain from doing something, such act, abstinence or promise is called consideration for the promise.

(a) Consideration must pass at the desire of the promisor only, that is an act or abstinence must be done at the desire of the promisor. It is done at the instance of a third party or without the desire of promisor, it will not be a valid consideration.

Ex: A saves B’s goods from the fire without being asked for it. A cannot demand payment for it.

(b) It may move from the promisee or any other person: Consideration may move from the promisee or any other person. It means as long as there is a consideration, it is immaterial, who furnishes it. Thus in India there is no privity of consideration. Ex: Mother gifted property to defendant by deed stipulating that she would give annuity to plaintiff. Defendant held liable to pay annuity to plaintiff. 

(c) Consideration may be past, present or future

(d) Act, abstinence or promise constitutes consideration: Consideration must be of some value, not necessary in monetary from, always.

(i) Forbearance to sue is a valid consideration: Plaintiff has a right of action against the defendant but on a promise by the defendant, he refrains from bringing the action. It applies only if the claim is immediately due. An agreement to compromise a bonafide action pending in the court is a valid consideration.

Consideration need not be adequate: Section.25, Explanation (2) says an agreement to which the consent is freely given is not void merely because the consideration is inadequate, though it must have some value in the eye of law.  However, it can be considered whether contract is outcome of free consent or not.

Agreement without consideration is void and Exceptions to this rule:

S.25 of ICA says an agreement without consideration is void. However, they are some well-recognized exceptions to this rule. They are:

(a) A written registered agreement based on natural love and affection between near relatives is enforceable even without consideration.

(b) A contract of agency

(c) S.25 Explanation (1) says a completed gift. In this case there need not be nearness of relationship or natural love and affection between the donor and donee.

(d) A promise to pay for a Past voluntary service

(e) A promise by debtor to pay a time-barred debt is enforceable provided it is made in writing &signed by the debtor or his agent.

(f) Charitable Subscriptions.

Privity of contract: Stranger to a contract: Only parties to the contract can enforce contractual obligations, but no other, even if it solely for the benefit of third party. It is known as privity of contract. But it has no applicability in India. It was held by the S.C in M.C.Chacko Vs. State Bank of Travancore. Thus a person who is not a party to the contract can enforce contractual obligations. The following are the situations:

(a) The beneficiary may enforce a contract though he is a stranger to the contract creating trust.

 (b)Where a an agreement is made in connection with marriage and a provision is made for the benefit of a person, he may take advantage of the agreement although he is not a party to it. 

(c) If a provision is made in a partition or family arrangement for maintenance or marriage expenses of female members, such members though not parties to agreement can sue on the footing of the agreement. 

(d) If a charge is created in favour of a stranger in respect of a specific immovable property.

(e)Acknowledgment or estoppel 

(f) Covenants running with the land

Consent: Two or more person agreeing about same thing in same sense.

Free consent:  Consent is said to be free if the approval of the parties is not affected by: (1) Coercion (Sec.15) (2) Undue Influence (Sec.16) (3) Fraud (S.17) (4) Misrepresentation (S.18) (5) Mistake (S.20, 21, 22).

If the consent to the proposal has been through any of the above means, the contract become voidable at the option of the party whose consent has been so obtained. Contract resulted without free consent is Voidable contract except in case of Mistake of fact.

 Coercion: Committing or threatening to commit any act forbidden by the IPC or unlawful detaining or threatening to detain any property, to the prejudice of any person, with an intention to get approval of the party to a contract is called Coercion. Even the threat to commit suicide amounts to coercion.

Undue Influence- Sometimes the relationship between the parties is such that one party is in a position to influence the will of another.  In such a case undue influence is said to have been employed. Sec(16) defines undue influence as “A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. The following relationships usually raise a presumption of undue influence viz,. Parent and child, Guardian and ward, Trustee and beneficiary, Religious adviser and disciple, Doctor and Patient, Solicitor and client, Finance and Financer.

Misrepresentation: S.16 ICA deals with it. Misrepresentation is a statement of fact which one party makes in the course of negotiations to another with an intention to induce the other party to enter into a contract.  Representations may be expressed by words spoken or written or implied from the behaviour of the parties.

Fraud: An intentional material representation of a fact with an intention to induce a party to enter into a contract and act upon it. Due to which, party acted upon it and suffered an injury.

S.17ICA deals with it. The following acts committed by a party to a contract with an intent to deceive another party or to induce him to enter into the contract are also called as frauds:

(i) A false suggestion known to be false or not believed to be true

(ii) The active concealment of a fact, with knowledge or belief of the fact

(iii)A promise not intended to be performed,

  (iv) Doing any other act fitted to be deceive

(v) Doing any such act or omission as the law specially declares to be fraudulent.              

Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud unless the circumstances of the case reveal:

(a) That it is duty of the person keeping silence to speak; or

(b) his silence is, in itself equivalent to speech. 

In either case of misrepresentation or fraud the aggrieved party can:

(a) Avoid or rescind the contract (Voidable).

(b)Accept the contact but insist that he shall be placed in the position in which he would have been if the representation made had been true (rescission).

Mistake – kinds of Mistake: Section.20,21,22 of ICA deals with Mistake. Mistake may be defined as an erroneous belief about something. It can be either of fact or law. Mistake of fact occur either due to both parties or one of the party. S.20 deals with bilateral mistake. S.22 deals unilateral mistake. S.21 deals with mistake of law.  Mistake of law is not an excuse. However, mistake of foreign law is treated as mistake of fact.

Bilateral Mistake: If either party to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void. However, an erroneous opinion as to the value of thing which forms the subject-matter of the agreement, is not to be a deemed a mistake as to a matter of fact.

Explanation: Mistake must be mutual. A unilateral error due to one’s own stupidity, ignorance, carelessness doesn’t effect. It was his duty to know or he has means of knowledge, knowledge will be imputed to him in law debarring him from avoiding the contract.

Ex: X sold the property to Y upon the belief that he is the owner of the property. The same was also got registered and developed by Y believing that X is the owner of the property. Subsequently, it was it came to light that Aneel is the actual owner of the property. Since X and Y are mistaken belief as to the title of X, the sale becomes void. However, u/s.65 of ICA, Y recover purchase price from the defendant.

Unilateral Mistake: If one of the party to the contract is mistaken regarding the subject matter or understanding the terms of the agreement, the mistake is unilateral. It is not allowed as a defence to avoid the contract. But in certain cases if the consent is given under a mistake which is so fundamental to the agreement that the agreement is declared void.

The following are the situations: (a) If there is a mistake as to the identity of the person contracted with.           (b) If there is a mistake as  to the nature of the contract. Ex: If a person signing a document of a different class. A old man having poor eye sight endorsed a Cheque thinking that it was a guarantee. It is not a contract as the mind of the signer didn’t accompany the signature.

According to S.23 ICA the consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such a nature that if permitted it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the court regards it as immoral or opposed to public policy. Such agreements are voidabintio.

List out agreements declared voidable under Contract Act and HMA.

List agreements declared void under Contract Act and Hindu marriage Act:

Void agreements are unenforceable in the court of law. Many provisions of the contract Act expressly declared which are void agreements.  They are: S.10, 20, 22, 23, 25 to 30, 34, 35, 36, 56. As per S.64 & 65: If the agreement is discover void (S.64) or voidable(S.65) contract is rescinded, the party who receives benefit shall compensate the other party or bound to restore the benefit received.

Conditional contract: Performance of contract depends upon future uncertain event. It is called Contingent Contract. It can be happening or non happening.

Ex: A Contracts to pay B Rs.1000/- if B’s house is burnt. This is a contingent contract.

S.32: Event Happening: Performance can be demanded in the event of happening uncertain future event.

If the event becomes impossible such contracts becomes void.

Ex: A promises to pay Rs.10,000/- if the ship reaches Mumbai port on or before 31/5/2014. If the ship reaches before 31/5/14 contract can be enforced.

If the ship reaches after 31/5/14 or Sunks: It is void.

S.33: Event Non-Happening: Performance can be demanded in the event of non-happening uncertain future event. If the event becomes impossible such contracts becomes valid. Ex: A promises to pay Rs.10,000/- if the ship doesn’t reach Mumbai port on or before 31/5/2014. If the ship reaches after 31/5/14 contract can be enforced – Valid.  If it reaches before  31/514 contract can’t be enforced Void.

If there occurred an event which makes it impossible to return prior to 31/5/14- Contract is enforceable. If the ship reaches before 31/5/14 or Sunks: It is valid.

S.35: Performance of contract depends upon happening or non-happening of an even within the time fixed, contract becomes void if the even doesn’t happen.

Contract performance can also be enforced if before the time fixed, occurrence event become impossible.

S.36: If condition imposed is impossible to happen, it is a void condition.

Write a note on Wagering Agreement?

Ans: 1. A wager is a promise to pay money or money’s worth on the happening or non-happening of an uncertain event.

2. A contingent contract need not necessarily be a wager. Thus we can say that all wagering agreements are contingent but all contingent contracts are not wager.
3. In case of a wagering agreement promise must be mutual.
4. Example. In wagering agreement A agrees to pay B 20 rupees if it rains on Monday and if it does not rain B will pay 20 rupees to A. In the above example there is mutuality of agree­ment but this mutuality of promises is not necessary in case of a contingent contract.
5. In a wagering agreement there is no independent interest apart from the money to be won or lost.

Example: A promises to pay Rs. 100 to B if it rains on Monday. It is a wagering agreement as A has no independent interest.

6. In a wagering agreement determination of an uncertain event is the main condition of the contract.

Who has to perform the promise?

Promisor or his legal representative can perform the contract. However, if contract only promisor shall perform the contract, he shall alone perform the contract.

If the promise accepts performance from third party, he can’t later seek its enforcement from third party. In case contract has to be performed by several promissors, promise may compel any one to perform the promise. (Joint liability)

Ex: Three taking debt from one.  One of the joint promissory who performed the contract can seek other promissors to compensate him to contribution.

 How to perform the promise?

S.46: If the time is not specified for the performance of the contract, it can be performed within reasonable time.  S.47: If time is specified at any time during usual hours.

S.48: If the promise is to be performed on a certain day and the promissor has not undertaken to perform it without application by the promise, it is the duty of the promise to apply for the performance at a proper place and time within the usual business hours.

S.49: If the promise is to be performed without the application of the promisee, and no place is fixed for the performance of it, it is the duty of the promisee to apply for the performance to appoint a reasonable place for the performance of the promise.

S.50: The performance of any promise may be made in any manner or at any time which the promise prescribed or sanctions.

Time is the essence of Contract (S.55): In a contract if time is specified for the performance of contract + Parties intention is that contract must be performed within the stipulated time= Such contract is called as time is the essence of contract.  Intention can be gathered from the terms of contact. It is a voidable contract.

When performance in case of Reciprocal promises:

Ans:  a) Willful prevention: If the performance of promise depends upon another and same is prevented by another, he is exempted from performance.

     b)  Failure to do some positive condition agreed upon by parties: If the performance of promise depends upon promise of another and same is not performed, the other party is exempted from performance. In both cases (S.53 & 54) compensation can be claimed.

Difference between S.53 & 54: In both the case other person didn’t perform his part of contract. However, reasons for such non-performance are different and person entitled for compensation are different. Under S.53 it is due to willful prevention to perform and whereas under S.54 such non-performance other is due to failure to do some positive condition agreed upon.  The other important difference is that under S.53, party who is prevented to perform will be given compensation and whereas under S.54 who is failed to perform compensation shall give compensation.

Whether performance of promise can be demanded in case contract consists of legal and illegal promises?

Ans: This is dealt under S.57, 58. They say merely because a contract consists of promise of which some are legal and remaining are illegal. The same is the case with alternative promise. The part to the extent is legal is valid. The illegal agreement is void.

Ex (S.57): A and B agree that A shall sell B a house for 10,000 rupees, but that, if B uses it as a gambling house, he shall pay A 50,000 rupees for it. The first set of reciprocal promises, namely, to sell the house and to pay 10,000 rupees for it, is a contract. The second set is for an unlawful object, namely, that B may use the house as a gambling house, and is a void agreement.

Ex (S.58): A and B agree that A shall pay B 1,000 rupees, for which B shall afterwards deliver to A either rice or smuggled opium. This is a valid contract to deliver rice, and a void agreement as to the opium.

What Contracts that need not be performed?

Ans: The following contracts need not be performed.  They are dealt under S.37, S.56, 62, 67, 63.

S.37:  If the performance is dispensed or exempted by law.

S.38: If the promise refuses to accept the performance, promisor need not perform.

S.39: Promisee may put an end to contract, if the promissory refused to perform or failed to perform.

S.56: a) An agreement to do an impossible act is void.

     b) Contract to do an act afterwards becoming impossible or unlawful (DOF)

S.62: a) Parties agree to substitute a new contract, b) Parties to contract rescind or alter it.

S.63: Promisee may dispense with or remit, wholly or in part the performance of the promise made to him. It may extend the time for such performance or may accept, instead of it any satisfaction which he thinks fit.

Write a note on Quasi Contracts?

Ans: The concept of quasi contracts is dealt under S.68 to 72.

S.68: If a person under obligation or to a person who can’t enter into contract is supplied with Necessaries suited to his condition in life, The person who has furnished such supplied must be reimbursed from the property of that person.

S.69: Person who is interested in payment of money which another is bound to pay.

S.70: Obligation of person enjoying benefit of non-gratuitous act:  New Model car.

S.71: Responsibility of finder of goods.

Appropriation of debts (Several debts):  S.58 if a person owes several distinct debts to same person money paid shall be applicable as per direction of the debtor. If not indicated, they apply as per order in time including time barred debts. If neither party indicated, court would apply in order of time It can also be applied to a debt even though it is barred by limitation. If the debts are of equal standing, the payment shall be applied in discharge of each proportionally.

Agreement to do impossible act-

The following agreements or contracts need not be performed:

1) An agreement to do an act impossible in itself is void.

2) Contract to do act afterwards becoming impossible or unlawful

3) A contract to do an act which, after the contract is made, becomes impossible by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

If one person has promised to be something which he knew or, with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promisee sustains through the non-performance of the promise.

Illustrations

(a) A agrees with B to discover treasure by magic. The agreement is void.

b) A and B contract to marry each other. Before the time fixed for the marriage, A goes mad. The contract becomes void.

(c) A contracts to marry B, being already married to C, and being forbidden by the law to which he is subject to practise polygamy. A must make compensation to B for the loss caused to her by the non-performance of his promise.

Comment: Doctrine of frustration: Contract whose performance is possible, at the beginning, becomes either impossible or unlawful, due to a subsequent event, such a situation is often referred as frustration of contract or Doctrine of frustration. It has been aptly explained by Viscount Simon LC in Satyabrat Ghosh Vs. Mugneeram Bangur.

The grounds of frustration are as follows:  (a)Destruction of the subject matter                                         (b)Change of circumstances             (c) Non-occurrence of contemplated event       (d) Death or incapacity of the party (e) Government of legislative intervention (f)Intervention by war.

Breach of Contract:

S.73: The court in the event of breakage of contract can award damages. The court while awarding damages would take following issues into consideration:

1) Loss or damage that would arouse in the usual course of thing because of such breach.

2) The loss or damage that would occur, which parties had knowledge at the time of entering into contract itself.

The above rules are laid down by Court of England in Hadley v. Bexendale, 9 Ex 742. The object of this rule is that damages cannot include compensation for any remote and indirect loss or damages even if it is due breach of contract.

The same rules will apply with respect to quasi contracts upon assumption that parties having knowledge of loss or damage occur in the event of breakage of contract or violation of condition of contract.

S.74: If the contract stipulates amount as penalty for its violation in the event of breach of contract the court can award such amount as damages or reasonable compensation.  Thus court has discretion to award either of the one.

   INDEMNITY AND GUARANTEE:

There are sections twenty three sections spread over S.124 to 147 of the Act.

Contract of Indemnity:  As per Section 124 of the ICA, the contract of indemnity is defined as “a contract by which one party promises to save other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person’.

Ex: Suppose you are hired by a newspaper to write articles for them as a freelancer. Typically, your contract would have an indemnity clause so that if you write something against a very important person and that person files a suit against the newspaper for defamatory material, the newspaper can show the indemnity clause that you signed, protecting them from any form of loss caused due to your conduct. Then, the onus of fighting the defamation suit becomes your responsibility. A person who promises to bear the loss is known as indemnifier and the person whose loss is covered is known as indemnified. These types of contracts are mainly formed between insurance companies and their customers.

Contract of Guarantee: As per S.126, of the Act, a contract of guarantee is defined as, “a contract to perform the promise, or discharge the liability of a third person in case of his default.” This type of contract is formed mainly to facilitate borrowing and lending money.

The three parties involved in this type of contract are:

Surety: is the person by whom the guarantee is given.

Principal Debtor: is the person from whom the assurance is given.

Creditor: is the person to whom the guarantee is given.

Differences between Contract of Indemnity and Guarantee:

The following are few important distinctions between a contract of indemnity & contract of guarantee:

1. Number of Parties: In a contract of indemnity only two parties are involved, whereas in a contract of guarantee, three parties are involved.
2. Purpose: A contract of indemnity is formed to provide compensation of loss. There is an agreement to bear loss, in the event of loss. A contract of guarantee is formed to give assurance to the creditor in lieu for his money. It’s an assurance to perform the contract.
3. Nature of Liability: In a contract of indemnity, the indemnifier is the sole person who is held liable. In a contract of guarantee, the liability is shared by the surety and principal debtor.  A Contract to perform the promise, or discharge the liability, of a third person in case of his default is called Contract of Guarantee.
4. Surety has the right to sue the third party (Principle Debtor) directly. The Law puts him in the position of Creditor. Whereas in Contracts of Indemnity, the Indemnifier cannot sue the third party in his name. He has to sue in the name of the Indemnity-holder or after obtaining the rights from him.
5. Anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee. The guarantor need not personally derive any benefit from the guarantee.
6. The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. The creditor can straightway proceed against the guarantor without first proceeding against the principal debtor. The surety however may restrict his liability to part of the Principal debtor’s liability by contract. Surety’s liability is distinct and separate

Continuing Guarantee: A Guarantee which extends to a series of transactions is called a continuing guarantee. A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor. Any variance, made without the surety’s consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance.

Rights of a surety: The rights of sureties can be classified into two kinds. One is against is creditor and other is against the principal debtor.

As against the Creditor:

S.133: If the creditor shall not vary terms of the contract between the creditor and the principal debtor without the surety’s consent. Any such variance discharges the surety as to transactions subsequent to the variance. However, if the variance is for the benefit of the surety or does not prejudice him or is of an insignificant character, it may not have the effect of discharging the surety.

Sec. 134:- The creditor should not release the principal debtor from his liability under the contract. The effect of the discharge of the principal debtor is to discharge the surety as well. Any act or omission on the part of the creditor which in law has the effect of discharging the principal debtor puts an end to the liability of the surety.

Sec. 135: – If an agreement is made between the Creditor and Principal debtor for compounding the later’s liability or promising him extension of time for carrying out the obligations or promising not to sure, discharges the surety unless he assents to such a contract.

Sec. 139: – The surety is discharged if the creditor impairs the surety’s eventual remedy against the principal debtor.

As against the Principal Debtor:

Right of subrogation:- The surety on payment of the debt acquires a right of subrogation.

S.140:- The surety cannot claim the right of subrogation to the creditor’s securities, if he has signed up as a security for a part of the agreement and security has been held by the creditor for the whole debt.

Surety obtained under following cases is invalid:

Guarantee obtained by means of misrepresentation made by the creditor (S.142 part-I).

Guarantee though obtained with his knowledge and assent but concealing a material part of the transaction, is invalid (S.142 part-II).

Guarantee obtained by means of keeping silence as to material circumstances (S.143).

If a person gives a guarantee upon a contract that the creditor shall not act upon it until another person has joined in it as co-surety, the guarantee is not valid that other person does not join (S.144).

Miscellaneous:

S.145: There is an implied promise by the principal debtor to indemnify the surety and on its basis the latter is entitled to recover from the former whatever sum the latter had rightfully paid under the contract of guarantee; C.K. Aboobacker v. K.P. Ayishu, AIR 2000 Ker 29 (NOC).

S.146: In the absence of the contract to the contrary Co-sureties are liable to contribute equally.

S.147: Co-sureties who are bound in different sums are liable to pay equally as far as the limits of their respective obligations permit.

 BAILMENT:

Bailment: It is a kind of legal relationship where physical possession of personal property, is transferred from one person (the ‘bailor’) to another person (the ‘bailee’) who subsequently has possession of the property. It arises when a person gives property to someone else for safekeeping or for doing specific duty with respect to that property. Further, upon accomplishment the goods must be returned or otherwise disposed of according to the directions of the bailor (S.148).

Ex: Giving your coat to washer man. The person delivering the goods is called the Bailor. The person to whom they are delivered is called the Bailee.

It is different from contract of sale or gift  as it only involves the transfer of possession and not its ownership. Though in lease where possession of the property is handed over to the lessee, there is a transfer of right of enjoyment but bailee can’t do so in the case of Bailment.

S.149: The goods are deemed to have delivered to bailee, if they are put in his possession or any person authorized by bailee.

S.150: It is the duty of the Bailor to disclose the material defects of the goods bailed which materially interfere with the use of them, or expose the bailee to extraordinary risk. If bailor didn’t make such disclosure, he is responsible for damage arising to the bailee directly from such faults.

S.151. The bailee is under an obligation to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity and value as the goods bailed.

S.152: In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances.  However, bailee is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 151 unless there is a special contract in this regard (S.152).

S.153: The contract of bailment is voidable at the option of the bailor, if the bailee does any act with regard to the goods bailed, inconsistent with the conditions of the bailment.

S.154: Bailee is liable to pay compensation for the damage caused if the goods bailed are not used according to the conditions of the bailment.

Ex: (a) A lends a horse to B for his own riding only. B allows C, a member of his family, to ride the horse. C rides with care, but the horse accidentally falls and is injured. B is liable to make compensation to A for the injury done to the horse.

S.155: If the bailee, with the consent of the bailor, mixes the goods of the bailor with his own goods, the bailor and the bailee shall have an interest, in proportion to their respective shares, in the mixture thus produced.

 S.156: If the bailee, without the consent of the bailor, mixes the goods of the bailor with his own goods and the goods can be separated or divided, the property in the goods remains in the parties respectively; but the bailee is bound to be bear the expense of separation or division, and any damage arising from the mixture.

S.157: If the bailee, without the consent of the bailor, mixes the goods of the bailor with his own goods in such a manner that it is impossible to separate the goods bailed from the other goods, and deliver them back, the bailor is entitled to be compensated by the bailee for the loss of the goods.

 S.158: If by the conditions of the bailment, the goods are to be kept or to be carried, or to have work done upon them by the bailee for the bailor, and the bailee is to receive no remuneration, the bailors shall repay to the bailee the necessary expenses incurred by him for the purpose of the bailment.

S.159: The lender of a thing for use may at any time require its return, if the loan was gratuitous, even though he lent it for a specified time or purpose. But if, on the faith of such loan made for a specified time or purpose, the borrower has acted in such a manner that the return of the thing lent before the time agreed upon would cause him losses exceeding the benefit actually derived by him from the loan, the lender must, if he compels the return. indemnify the borrower for the amount in which the loss so occasioned exceeds the benefits so derived.

S.160: It is the duty of the bailee to return, or deliver according to the bailor’s directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished.

S.161: Bailee’s responsibility when goods are not duly returned.—If by the fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.

S.162: A gratuitous bailment is terminated by the death either of the bailor or of the bailee.

S.163: In the absence of any contract to the contrary, the bailee is bound to deliver to the bailer, or according to his directions, any increase or profit which may have accrued from the goods bailed.

Illustration: A leaves a cow in the custody of B to be taken care of. The cow has a calf. B is bound to deliver the calf as well as the cow to A.

S.164: The bailor is responsible to the bailee for any loss which the bailee may sustain the reason that the bailor was not entitled to make the bailment, or to receive back the goods, or to give directions, respecting them.

S.165: If several joint owners of goods bail them, the bailee may deliver them back to, or according to the directions of, one joint owner without the consent of all in the absence of any agreement to the contrary.

S.166: If the bailor has no title to the goods, and the bailee, in good faith, delivers them back to, or according to the directions of the bailor, the bailee is not responsible to the owner in respect of such delivery.¹

S.167: If a person, other than the bailor, claims goods bailed he may apply to the court to stop delivery of the goods to the bailor, and to decide the title to the goods.

S.168: The finder of goods has no right to use the owner for compensation for trouble and expense, voluntary incurred by him to preserve the goods and to find out the owner; but he may retain the goods again the owner until he receive such compensation; and where the owner has offered a specific required for the return of goods lost, the finder may sue for such reward, and may retain the goods until he received it.

S.169: If the thing which is commonly the subject of sale is lost, if the owner cannot with reasonable diligence be found, or if he refuses upon demand, to pay the lawful charges of the finder, the finder may sell it –

(1) When the thing is in danger of perishing or of losing the greater part of its value, or

(2) When the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.

Right to Lien: S.170: If the bailee has in accordance with the purpose of the bailment, rendered any service involving the exercise of labour or skill in respect of the goods bailed he has in the absence of a contract to the contrary, a right to retain such goods until he receives due remuneration for the services he has rendered in respect of them.

Illustrations

(a) A delivers a rough diamond to B, a jeweller, to be cut and polished, which is accordingly done. B is entitled to retain the stone till he is paid for the services he has rendered.

(b) A gives cloth to B, a tailor, to make into a coat. B promises A to deliver the coat as soon as it is finished, and to give a three months credit for the price. B is not entitled to retain the coat until he is paid.

S.171: Bankers, factor, wharfingers, attorneys of a High Court and policy brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other person have a right retain, as a security for which balance, goods, bailed to them, unless is an express contract to that effect.

PLEDGE

Definition of terms Pledge, Pawnor and Pawnee (S.172):   The term pledge means bailment of goods as security for payment of a debt or performance of a promise. The bailor is in this case called Pawnor. The bailee is called Pawnee.

Pawnee’s rights:

Right to retain: (S.173): In order secure the debt or performance of promise Pawnee has right to retain the goods pledged. Further, such right can be exercised even to secure interests of the debt and all necessary expenses incurred by Pawnee in respect to the possession or for the preservation of the goods pledged.

This right to retain is can’t be exercised with respect to other goods even though pledged to same Pawnee unless there is a contract to the contrary. However, in the absence of contract to the contrary court shall presume that it extends to subsequent advances made by the Pawnee (S.174).

Further, Pawnee is entitled to receive from the pawnor extraordinary expenses incurred by him for the preservation of the goods pledged (S.175).

Pawnee’s right where pawnor makes default: If the pawnor makes default in payment of the debt, or performance, at the stipulated time, or the promise, in respect of which the goods were pledged, the pawnee may bring as suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale (S.176 part-I).

If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater that the amount so due, the pawnee shall pay over the surplus to the pawnor (S.176 part-I).

Defaulting pawnor’s right to redeem (S.177): If a time is stipulated for the payment of the debt, or performance of the promise, for which the pledged is made, and the pawnor makes default in payment of the debt or performance of the promise at the stipulated time, he may redeem the goods pledged at any subsequent time before the actual sale of them; but he must, on that case, pay, in addition, any expenses which have arisen from his default.

Pledge by mercantile agent(S.178):  If a mercantile agent is in possession of goods or the documents of title to goods, any pledge made by him, when acting in the ordinary course of business of a mercantile agent, is valid.  However, the possession of the agent is with the consent of the principal and he is authorized by contract to pledge (including at the time of pledge) the goods and agent must act in good faith.

Pledge by person in possession under voidable contract (S.178A): If the pawnor has obtained possession of the other goods pledged by him under a contract voidable under section 19 of section 19A, but the contract has not been rescinded at the time of the pledge, the pawnee acquired a goods title to the goods, provided he acts in good faith and without notice of the pawnor’s defect of title.

S.179: If the right of the pawnor is limited in the goods bailed, the pledge is valid to the extent of that interest.

S.180: If a third person wrongfully deprives the bailee of the use of possession of goods bailed, or does them any injury, the bailee is entitled to use such remedies as the owner might have used in the like case if no bailment has been made; and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury.

S.181: Whatever is obtained by way of relief of compensation in any such suit shall, as between the bailor and the bailee, be dealt with according to their respective interests.

LAW OF AGENCY:

                    The law of agency is an area of commercial law dealing with a set of contractual, quasi-contractual and non-contractual relationships that involve a person, called the agent, who is authorized to act on behalf of another (called the principal) to create a legal relationship with a third party. The agent is, thus, required to negotiate on behalf of the principal or bring him and third parties into contractual relationship.

The common law principle in operation is usually represented in the Latin phrase, qui facit per alium, facit per se, i.e. the one who acts through another, acts in his or her own interests and it is a parallel concept to vicarious liability in which one person is held liable in criminal law or tort for the acts or omissions of another.

There are fifty sections under law of Agency: (S.182 to 232)

 Definition of Agent and Principal:  S.182 says an agent is a person who is employed to do any act for another or to represent another in dealing with third person.  The person who is so represented as Principal.

Who may employ agent: S.183 says every person who attained majority and is sound mind can be employed as agent.  However, if a minor or unsound mind is appointed as agent, agent is not responsible between the act of such minor agent and principal (S.184).  An agent can be appointed either orally or by way of writing (S.186). In case of express it must be in writing and whereas in case of implied it can be inferred from such facts and circumstances (S.187).

S.185 says in a contract of agency consideration is not required.

Powers of agent: 

 a) Agent has authority to do every lawful thing which is necessary in order to do such act. Similarly, in case of a person who is acting as agent is conducting business, he has authority to do every lawful thing necessary for the purpose of conducting such business. Further, all the acts that can be usually done in the course of conducing such person (S.188).

  b) Second, in case of emergency he can do such act, which he would in his own case, to prevent any financial loss (S.189).

 c) An agent can’t appoint sub-agent. However if the trade permits or agency is of such nature, sub-agent can be appointed (S.190). The term sub-agent means a person employed by and acting under the control of, the original agent (S.191).

 d) Agent is responsible to the principal for acts of the sub-agent. The sub-agent is responsible to agent for his acts. However, in case of fraud or willful wrong sub-agent is responsible to principal (S.192).

 e) If sub-agent is appointed without the authority of principal, such agent is responsible for the acts of such sub-agent, to third parties and principal (S.193).

 f) If an agent is authorized to name another person to act for principal, the person so appointed by agent is not a sub-agent; he is called as agent (S.194). In selecting such agent for principal, the agent is bound to exercise same discretion as a man of ordinary prudence (S.195).

 g) If a person acts on behalf of another, but without his knowledge or authority, such another person may ratify it. If it is ratified, he is called as agent. Such ratification can be done either expressly or impliedly (S.196 & 197).

h) If the knowledge of the facts is materially defective, ratification is not valid (198).

  i) If part of the act is done by agent is not authorized but transaction is ratified, it is deemed that the unauthorized part is also ratified (S.199).

  j) If ratification of unauthorized act can’t injure third person. An act done by one person on behalf of another, without such other person’s authority, which, if done with authority would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect (S.200).

 k) A minor in India can’t ratify, after attaining majority. That is because a void agreement cannot be ratified. Ratification may be express or implied. Ratification, when valid operates retrospectively. When time is limited for doing ac act, the ratification must be before the expiry of that time. When no time is fixed, the ratification must be within a reasonable time.

Termination of agency: An agent’s authority can be terminated at any time. If the trust between the agent and principal has broken down, it is not reasonable to allow the principal to remain at risk in any transactions that the agent might conclude during a period of notice.

S.201 says an agency is terminated in the following ways:

a) If the principal revokes agent authority,

b) The agent renouncing the business of the agency,

c) The business of agency is completed;

d) The death of principal or agent or any one of them becomes unsound mind, the principal becoming insolvent.

e) The agreement between parties.

f) The efflux of lien, the subject matter ceasing to exist, the principal losing his control over the subject matter.

When agency can’t be revoked: As per S.202 says if agent’s authority is coupled with interest it can’t be revoked. In other words, if the agent himself has interest in the property which forms the subject-matter of the agency, the agency can’t be terminated unless there is an express contract to the contrary.

S.205, if the agency is for a fixed period, the principal cannot terminate the agency before the time expired, except for sufficient cause. If he does, he is liable to compensate the agent for the loss caused to him thereby. The same rules apply where the agent, renounces an agency for a fixed period. Notice in this connection that want of skill, continuous disobedience of lawful orders, and rude or insulting behavior has been held to be sufficient cause for dismissal of an agent.

Further, reasonable notice has to be given by one party to the other; otherwise, damage resulting from want of such notice, will have to be paid (s.206). As per s. 207, the revocation or renunciation of an agency may be made expressly or impliedly by conduct. The termination does not take effect as regards the agent, till it becomes known to him and as regards third party, till the termination is known to them (s.208).

Time of revoking agent’s authority: This is dealt under S.203, 204 & 210.

S.203 says The principal may revoke the authority given to agent at any time before the authority has been exercised by agent. However, principal cannot revoke the agent’s authority after it has been partly exercised, so as to bind the principal (section 204),

If an agent’s authority is terminated, it operates as a termination of subagent also (section 210).

Agent’s duty towards principal (S.211 to 221):

S.211: Agent is bound to conduct business according to the directions given by the principal and in the absence of directions as per customs prevailing. If any loss is sustained agent must make it good to his principal and if any profit accrues, he must account for it.

S.212:  Agent has to discharge his duties with skill, care and due diligence. He shall make compensation to his principal in respect of the direct consequences of his own neglect, want of skill or misconduct.

S.213: An agent is bound to render proper accounts to his principal on demand.

S.214: Agent in case of difficulty to use all reasonable diligence in communicating with his principal and in seeking to obtain his instructions.

S.215: If an agent deals on his own account in the business of the agency, without first obtaining the consent of his of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him.

Principal duty to agent (S.222 to 225):

The employer is under an obligation to indemnify the agent for the consequences of all lawful acts done by agent in exercise of the authority conferred upon him (S.222) and similarly for the acts done in good faith (S.223). However, employer is not liable to indemnify the agent even though is to do a criminal act (S.224). The principal must make compensation to his agent in respect of injury caused to agent by the principal’s neglect or want of skill (S.225).

Effect of agency on contracts with third person (s.226 to 238):

Contract entered by agent is treated like as if contract entered by principal himself (S.226) and same is the case with the notice issued by agent (S.229).

If the agent entered into contract beyond his authority, if such contract can be separated from exceeded part, part within the authority can be enforced (S.227). If it can’t be separated, the principal is not bound to recognize the transfer (S.228).

As per S.230, Agent cannot personally enforce contracts entered by him on behalf of his principal. He is also personally not bound by them. However, the following are exception:

1) If there is contract to the contrary

2) If the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad.

3) If the agent does not disclose the name of his principal; and

4) If the principal, though disclosed, cannot be sued.

5) The undisclosed principal can seek for the enforcement of contract. The other contracting part has same rights against the principal. However, if the agent wouldn’t have entered into contract had the principal is known, he can refuse to fulfill the contract (S.231).

Rules relating to Undisclosed Principal:

Undisclosed Principal: Meaning: The anonymous party represented by an agent, authorized to act on the behalf of the principal. The actions of the agent then are legally binding upon the principal.

Rules:

1) An undisclosed principal can enforce only such rights and obligations that subsist between agent and principal (S.232).

2) In cases where the agent is personally liable, a person dealing with him may hold either him or his principal, or both of them (S.233).

3) If contacting party induces that agent (or principal) the agent (or principal) is liable, later he can’t retract (S.234).

4) Pretended agent is liable to make compensation for the loss caused to the contracting party (S.235).  Pretended agent means a person untruly representing himself to be the authorized agent of another. A person, with whom a contract has been entered into in the character of agent, is not entitled to require the performance of it if he was in reality acting, not as agent, but on his own account (S.236).

5) If an agent without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations, if he has by his words or conduct induced such third persons to believe that such act and obligations were within the scope of the agent’s authority (S.237).

6) Misrepresentations made, or frauds committed, by agents acting in the course of their business for their principals, treated as if they are made by the principal. However, if they do not fall within their authority, do not affect their principals.

Miscellaneous:

1) If an agent, without the knowledge of his principal, deals in the business of the agency on his own account instead of on account of his principal, the principal is entitled to claim from the agent any benefit which may have resulted to him from the transaction (S.216).

2) Agent is bound to pay to his principal all sums received on his account (S.218).

3) However, an agent may retain, out of any sums received on account of the principal in the business of the agency, all moneys due to himself in respect of advances made or expenses properly incurred by him in conducting such business, and also such remuneration as may be payable to him for acting as agent(S.217).

4) Similarly, he can detain money towards remuneration, if there is no contract to the contrary (S.219).

5) In the absence of any contract to the contrary, an agent has right of lien over the goods, papers, and other property, whether movable or immovable, of the principal received by him, until the amount due to himself for commission, disbursements and services in respect of the same has been paid or accounted for to him(221).

6) An agent who is guilty of misconduct in the business of the agency is not entitled to any remuneration in respect of that part of the business which he has misconducted (220).

                TRANSFER OF PROPERTY ACT, 1882

List out certain General rules relating to transfer of immovable Property?

TRANSFER OF PROPERTY ACT (Problems and Solutions)

CIVIL PROCEDURE CODE, 1908:

CIVIL SUIT – ADJUDICATORY PROCESS

INTERLOCUTORY PETITION IN A CIVIL SUIT ADJUDICATORY PROCESS:

Civil Procedure Code, 1908: CPC, 1908 contains 158 sections, 51 Orders and One schedule

Definitions—

(1) Code includes rules.

 (2) Decree:   It’s a formal expression of an adjudication given by court which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

Following are also called as Decrees: i) It shall include the rejection of a plaint

ii) Determination of any question within S.144.

Following are not called as Decrees:

(a) any adjudication from which an appeal lies from an order or          b) any order of dismissal for default.

Decree can be either preliminary or final. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. A decree can be partly preliminary and partly final.

Decree-holder (3): means any person in whose favour a decree has been passed. It also means any person in whose favour an order capable of execution has been made.

District (4): means the local limits of the jurisdiction of a principal civil court of original jurisdiction (hereinafter referred as District court) and includes the local limits of the ordinary civil jurisdiction of a high court.

Foreign court (5): To call any court as foreign court it must meet two conditions:  a) It must situate outside India b) It must not be established or continued by the authority of India.

Foreign judgment (6): means the judgment of a foreign court

Government pleader(7): includes any officer appointed by the state government to perform all or any of the functions expressly imposed by this code on the government pleader and also any pleader acting under the directions of the government pleader.

High court (7-A); India (7-B);

Judge (8): Presiding officer of a civil court

 Judgement S.2 (9): Judgement means the statement given by the judge on the grounds of a decree or order. Every judgment should contain: a) a concise statement of the case b) the points for determination c) the decision thereon and d) the reason s for such decision.     Items 2 and 3 need not be there in small cause’s court. The court shall record its findings on each issue the findings form part of the judgement. A judgement once signed cannot afterwards be amended or altered except (i) to correct clerical or arithmetical mistakes, or errors due to accidental slips or omissions (S.152); or (ii) On review (S.114).

 As per S.33 upon pronouncement of judgement, a decree shall follow.

 Judgement-debtor (10) : It means any person against whom a decree been passed. It also means any person in against whom an order capable of execution has been made.

Legal representative (11) : As per S.11 CPC the following are treated as Legal representatives:

      i) Any Person who in law represents the estate of a deceased person or

     ii) Any person who intermeddles with the estate of the deceased and where a party sues or sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

Mesne profits (12): IF a person is in wrongful possession of property, whatever profits he actually received together with interest on such profits are called as Mesne profits. However, it shall not include profits due to improvements made by the person in wrongful possession.

Movable property (13) including growing crops.

 Order (14) means the formal expression of any decision of a civil court which is not a decree.

 Pleader (15) means any person entitled to appear and plead for another in court, and includes an advocate, a vakil and an attorney of a High Court.

 Prescribed (16) means prescribed by rules.

Who is party? Who can file suit?  Write a note on different kind of parties?

Ans: Party to suit means it can be plaintiff or defendant. Any person who has a right to sue or cause of action can institute a suit and he is called as Plaintiff. Person against whom right is claimed and liability is sought to be enforced is called defendant. OI CPC talks about kind of parties.

Write a note on Cause of Action?

Cause of action: Bundle of facts which entitles to a relief in a suit.  Every plaint must disclose a cause of action; if it doesn’t, it is the duty of the court to reject the plaint (O.7 r.11).

O.II CPC says Plaintiff can unite all or any one of causes of action against one defendant or defendants in one suit. This is called joinder of cause of action.  In such case the jurisdiction of the Court as regards he suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit’. However, court has discretion to direct the plaintiff to file a separate suit if opines that it would delay or embarrass the trial. Objection as to misjoinder of cause of action shall be taken before settlement of issues.

Whether court has power to permit a person or body of persons to present opinion or take part in the proceedings?

Ans: Yes, as per R.8A if court is satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest.

Whether court has power to strike out or add or substitute any person as plaintiff?

 Ans: Yes, as per Rule.10. If the suit is instituted in the name of the wrong plaintiff the court at any stage of the suit and that it is necessary for the determination of the real matter in dispute adding or substituting any person as plaintiff is necessary, it can do so. However, court must be satisfied that the suit is instituted under a bona fide mistake.

(1)The Court may at any stage of the proceedings strike out any party if party is improperly joined. Similarly, the Court may at any stage of the proceedings add any person as party to the suit if it opines that whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. The addition or striking out of parties can be either at the application of the party or on suo-moto by court.

(2) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(3) Where defendant added, plaint to be amended-

Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(4) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

Conduct of suit: The Court may give the conduct of a suit to such persons as it deems proper. If there are more than one plaintiff or defendant, one can be authorised by other to represent them, plead or act in proceeding.

What is Jurisdiction and write a note on various kinds of Jurisdiction?

Jurisdiction: Jurisdiction may be defined to be the power or authority of a court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it.

Write a note on forum for the institution of different kinds of Suit?

Ans: S:15 to 20 of the CPC1908 regulate the forum for the institution of suits.

S15: Every suit shall be instituted in the court of the lowest grade competent to try it.

Under What circumstances party is barred to file or continue Suit?

How to enforce a foreign Judgment in India?

Presumption as to foreign judgements: As per S:14 the court upon the production of any document purporting to be a certified copy of a FJ, that judgment is pronounced by a court of competent jurisdiction, unless the contrary appears on the record or is proved.

A FJwhich is conclusive u/s 13 can be enforced in india in the folllowing ways:

    1. By instituting a suit on such FJ

    2. By instituting execution proceedings

    3. By instituting a suit on such FJ it may be enforced in india. If such foreign judgment is embodied in a decree of Indian court, the Indian court cannot go into the merits of the origianl claim. Such a suit must be filed within three years from the date of judgeemnt.

    4. A foreign judgemnt can be enforced in execution u/s 44 & 44A of the CPC. U/S 44A, a certified copy of a decree of a superior court in a reciprocating territory can be enforced in the District court, as if the decree is passed by the District court in which the execution proceedings are filed. The judgement debtor may raise all such objectios which are open to him u/s 13 as if a suit had been filed.

What are the others rules that also treated as Resjudiata?

Ans: S.11 explanations list out circumstances which shall also called as resjudicata.

1. The term former suit refers to suit which is disposed of first but not suit which is instituted first
2. Once court of competent jurisdiction is disposed the matter whether matter is appealed or pending is irrelevant.
3. In the former suit one party must have either alleged and other must have admitted or denied.
4. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
5. Any relief which is prayed but not granted is deemed to have been refused.
6. This rules applies to representative suit i.e, right claimed is private or public provided it is filed with boanifide intention.
7. The above rules equally applicable to execution proceedings.
8. Even if the matter is decided by court of limited jurisdiction the above rules provided it is a competent court though earlier court which decided the suit jurisdiction is ousted subsequently.

What is the difference between Resjudicata and Res Subjudice? 

What is the difference between Explanation IV Resjudicata and OII Rule 2?  

Write a note on Transfer of suits?

How suit is instituted and with how many days summons must be served on defendant?

Ans: S.26 CPC says every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.   In every plaint, facts shall be proved by affidavit. As per S.27 if the suit has been duly instituted, a summons may be issued to the defendant to appear &answer the claim. They shall be served on the defendant within 30 days from the institution of the suit.

Whether court has power to summon any person to be a witness or produce thing or document?

Ans: Yes, court is a search engine of truth. As per S.30 the court at any time either of its own motion or on the application of any party: –

     a) Make such orders as may be necessary or reasonble in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or ther material objects produce as evidence;

    b) Issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

    c) Order any fact to be proved by affidavit.

S.30 says the rules laid down in S.s 27, 28, &29 shall apply to summons to give evidence or to produce documents or other material objects.

What powers court can exercise in the event of disobedience to summons issued to a witness or person directed to produce a thing or documents?

Ans: S.31 talks about such powers. S.31 says the court may compel the attendance of any person to whom a summons has been issued u/S.30 and for that purpose may:-  a) issue a warrant for his arrest; b) attach and sell his property c) impose a fine upon him not exceeding Rs5000-/- d) Order him to furnish security for his appearance and in default commit him to civil prison.

Write a note on rate of interests to be awarded?

Ans: S.34 talks about rate of interest to be awarded.  It is obligatory on part of court to grant interest and court shall give reasons for not awarding interest. If for any reason decree doesnot provide for interest, it will be deemed to have been refused. The rates of interest are different at different stages.

Write a note on rate of interests to be awarded?

Ans: S.35 , 20A, 35A, 35B, 95 talks about costs. Imposing costs is the discretion of court and normally court shall impose costs upon the disposal of judgment or petition. The court for imposing costs need not give any reasons but for not imposing costs it shall give reasons.

Costs a civil court imposes can be classified into following kinds:

a)General Costs (S.35);

b) Miscellaneous costs (O.20A);

C) Compensatory costs for false and vexatious claims or defences-S.35A;  

d) Costs for casuing delay-S.35 B.

List out what are Supplementary Proceedings and Incidental Proceedings?

Write a note on Settlement of disputes outside the court?

Ans: S.89 CPC talks about Settlement of disputes outside the court: The court upon receipt of pleadings on either side examine the parties and there if it appears to the court there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receving the observations of the parties, the court may reformulate the terms possible settlement and refer the same for : – (a)Arbiration; (b) Concilation; (c) Judicial settlement including settlement through Lok Adalat (d) Mediation . Thereafter the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.    

 Miscellaneous

ORDERS:

Pleadings: O: VI: The word pleading has been defined in the rule of this order: It says “pleading mean a plaint or written statement”. It includes the additional written statement, rejoinder, counterclaim, set-off. Civil law is set in motion by filing a plaint.

Plaint is a memorial tendered to a court in which the plaintiff sets forth his cause of action, so it is the exhibition of an action in writing.  A defendant’s statement is the written statement.

O.7: R: 11: Rejection of plaint: The conditions laid down under O.7 rule 11 CPC,1908 are:

a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the  plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law:

(e) where it is not filed in duplicate; 

(f) where the plaintiff fails to comply with the provisions of rule 9.

Written statement: O: VIII: It must deal specifically with each allegation. The denial must be specific. It is not sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but he must deal specifically with each allegation of fact which he does not admit, except damages (R.3). Denial should not be vague or evasive. Where a defendant wants to deny any allegation of fact in the plaint, he must do so clearly, specifically and explicitly and not evasively or generally. Details of new facts, such as suit is not maintainable by pleading, void, voidable, fraud, barred by limitation , release, payment , performance or illegality must be pleaded(R.2). Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability. The court may, however, require proof of any such fact otherwise than by such admission. When the defendant has not filed a written statement the court may either pronounce the judgment on the basis of the facts stated in the plaint(except as against a person under disability), or may require any such fact to be proved.   If a judgment is pronounced by the court, a decree shall be drawn up in accordance with it (R.5). If his denial of a fact is not specific but evasive the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.  Where the defendant relies upon several distinct grounds of defence or set-off or counter-claim founded upon on separate and distinct facts, they should be stated separately and distinctly(R.7).  Any new ground of defence which has arisen after the institution of the suit or presentation of a written statement claiming a set-off or counter claim may be raised by the defendant or plaintiff, as the case may be, in his written statement. Here the court is empowered to take notice of subsequent events.

If the defendant fails to present his written statement within the time permitted or fixed by the court, the court will pronounce the judgment against him or pass such order in relation to the suit as it thinks fit a decree will be drawn up accordingly (R.10).

Set-off: A plea of set-off is ‘a plea whereby a defendant acknowledges the justice of the plaintiff’s demand of his own, to counter balances that of the plaintiff either in whole or part”. Thus it is a reciprocal acquittal of debts between two persons. The rights of the defendant to claim set-off have been recognized u/r 6. It obviates the necessity of filing a fresh suit by defendant.

EX: A sued B on a bill of exchange for Rs500. B holds judgement against A for Rs 100-/-. The two claims being both definite, pecuniary demands may be set-off. Following conditions must be satisfied before the defendant can plead set-off against the plaintiff: O: 8: R: 6: 1) The suit of the plaintiff must be legally for recovery of money.   2) The claim of the defendant against the plaintiff must be for ascertained sum of money and such sum must be legally recoverable. Such sum must not exceed pecuniary limits of jurisdiction of the court. Both the parties must fill in the same character in set-off as well as suit claim. Set-off is nothing but shield for defendant. It is almost like a cross suit. The provision regarding set-off is not exhaustive and the courts have allowed the defendant to claim set-off in certain circumstances dehors the code. Such set-off is called equitable set-off. Even unascertained sums of money are also allowed to be claimed by way of set-off on condition that such claim arises out of the same transaction out of which the suit claim has arisen. It is a matter of discretion of the court. Ex: A Bank can transfer amount deposited in current a/c to its loan a/c for set off and Solicitor’s heir for costs.

Counter claim: O: 8: R 6A to 6G: “A claim made by the defendant in a suit against the plaintiff” It is a claim independent of, and separable from, the plaintiff’s claim which can be enforced by a cross-action. It is a cause of action in favour of the defendant against the plaintiff. It can be filed either before or after the filing of the suit but before the defendants has delivered his defence or before the time fixed for delivery of his defence has expired. Such counter-claim, however, should not exceed the pecuniary limits of the jurisdiction of the court. In other words, by laying down counter claim, pecuniary jurisdiction of the court cannot be ousted and power to try the suit already entertained cannot be taken away by accepting the counterclaim beyond its pecuniary jurisdiction. Ex: In a suit for injunction, a counter-claim for possession can be allowed.

It is an attack mounted by the defendant on plaintiff. It is a means of attack to defendant. It was added by 1976 Amendment. Before that court had discretion to accept it or not. The object of inclusion is to avoid multiplicity of proceedings. The right to make counterclaim is in addition to the right to claim set-off and both are not inconsistent or mutually exclusive. It is like a sword in the hands of defendant.

The counter-claim shall be treated as plaint and will be governed by the rule applicable to plaint. Similarly, a reply filed in answer to counter claims shall be treated as a written statement and governed by rules applicable to written statement.

Differences between counterclaim and set-off:

1. Set-off is a statutory defence to a plaintiff’s action, whereas a counter-claim is substantially a cross-action.
2. Set-off must be for an ascertained sum of money or it must arise out of the same transaction; a counter-claim need not arise out of the same transaction
3. Set-off is a ground of defence to the plaintiff’s action. Counter-claim is a weapon of offence, a sword, which enables the defendant to enforce the claim against the plaintiff effectually as an independent action.
4. In the case of a legal set-off, the amount must be recoverable at the date of the suit, while in the case of a counter-claim the amount must be recoverable at the date of the written statement.
5. When the defendant demands in a plaintiff’s suit an amount below or up to the suit claim, it is a set-off stricto sensu, but when it is for a larger amount, the claim for excess amount is really a counter claim.

Commissions: Order XXVI:

R.9 and 10: Commission to make local investigation: The court may, in any suit, issue a commission to such person as it thinks fit directing him to make local investigation and to report thereon for the purpose of

(a) elucidating any matter in dispute, or

(b) ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits. The object of local investigation is not to collect evidence which can be taken in court but to obtain evidence which form its very peculiar nature can be had only on the spot.

VARIOUS KINDS OF SUITS: