What is the exam Pattern?

Ans: There will be ten questions carrying eight marks each.  Though he says ten questions, but in reality you are supposed to write thirty questions. Ours is a three hours exam and he tests eighteen subjects.

How many words shall be written?

Ans: In three hours exam atleast one should write three thousand words.  It is difficult for many to write three thousand words. There is no fixed word limit in the civil judge exam, the emphasis is on quality. The ideal word limit is 1800 to 2000. So, one should write sixteen words per minute if you write 3000 W/3H and you have to write ten words per minute if you write 1800 W/3H.

Whether impression carries any weight?

Ans: Yes, good handwriting and legibility fetch more marks. After all, man carried away by impressions.   People are mad off beauty and attractions. Exploit it, to fullest extent.

Whether we should by heart answers?

Ans: Yes, but when you write in the exam it should indicate that our answer full of right information and it is brief and precise and it is a comprehensive one. Thus the way we write answer shall indicate your practical approach rather than academic approach.

Whether we shall write sections and case laws?

Ans: Yes, it is always important to write correct sections. Writing case law is not necessary.

Whether we should read law journals?  

Ans: Yes, it is always ideal to read previous two years law journals.  This helps us to know latest trend and approach of judges and it also enhances our richness in understanding the subject.

Whether Guess work works out?

Ans: There is hardly any necessity of guess work, read all previous questions.

What is the advantage of relying upon previous questions?

Ans: Nearly 80% questions are from previous exams.

What is the mode of Preparation?

Ans: As 80% questions are repetitive, intensive study of all previous question is very important.  One should repeatedly write all previous question and answers again and again.   This will help you have you to acquire time management and stress management and come out from the exam hall with more ease and not struggle your mind for life time and think about next notification.

When 80% are previous question are from old question papers, can we left reaming 20%?  How to study the remaining 20%? 

Ans: Aspirant must be very through with previous questions and readiness to attend any question asked in the exam is also very important. Because, if you survey previous years question papers, they ask one trick or off-beat question for more marks that would alter our fate, despite writing remaining all question correctly and properly. So having grand idea and ability to attend all questions is also equally important.

What is meant by legal Jargon?

Ans: They are certain legal words, which would convey exact meaning and helpful in conveying the idea in a brief and precise manner. We shall use them in presenting our answer.

Why should we write small sentences? How to write small sentences? 

Ans: It always ideal to express only one idea in each sentence, long, complicated sentences often mean that you aren’t sure about what you want to say. Shorter sentences are also better for conveying complex information; they break the information up into smaller, easier-to-process units. Complexity is the greatest enemy of clear communication.  Sentences loaded with dependent clauses and exceptions confuse the audience by losing the main point in a forest of words. Resist the temptation to put everything in one sentence; break up your idea into its parts and make each one the subject of its own sentence.

What are Connectors? What is their use?

Ans: A connector is a word that is used to join words and sentences. They play key role in connecting the paragraph as well.  You should many what are connectors and how to use them.

How much time is adequate to prepare for Mains Exam?

Ans: Six months time is required.

When will be the exam?

Ans: God knows.. Don’t ask us..

ORIGIN OF STATE AND LAW:

Men desire absolute and unlimited freedom. In fact it is one of the basic instincts of human being to acquire control over men and material. However, the similar and equally powerful instinct on part of his fellow human beings is a great hindrance to enjoy freedom absolutely and without any limitations.  Furthermore, the dangers that nature offer coupled with compelling necessity of organized life by man to have minimum secured life made it imperative for him to live with his fellow human beings and establish society.

 Men in order to ensure social cohesion amongst members of society on proper lines after due consideration of human instincts like sex, love, possession tied up people with certain bonds and links in the name of tribe, family, lineage, kinship etc.,. Further to ensure perfect and effective operation of these links and bonds, he attached certain values ideas and beliefs either in the name of religion or customs. In ancient times when contact with members outside the community is minimum these values and community customs used to work out well and ensured peaceful co-existence. However, the rapid advancement made in the field of science and technology greatly weakened social solidarity of societies as such custom and community values role in safeguarding rights of weak became out-dated. However, it doesn’t weakened interdependence of one person over other and rather it enhanced in geometric proportion, though in a different form and scale. The net result is organization of people under a roof called nation states from the primitive tribe. The modern states tied up relationship between state and people and inter-se in the name of law replacing values and custom. Therefore, there necessitated an organized legal system to protect the rights of man for due discharge of state’s duties. Perhaps, for this reason only Sir John Salmond defines law as “the body of principles recognised and applied by the state in the administration of justice”.

The above referred idea about origin of society or state is called as theory of Social contract. The Prominent political thinkers who advanced this theory are: Thomas Hobbes, Rousseau, John Locke, and John Rawls. The theme of their opinion is that individuals are self-interested. However, to protect themselves from each other and to create rules of the game that ensure the ability to live together in peace and harmony they created society. Thus, by sacrificing some of their liberty, they obtain greater liberty than they could have ever known in the state of nature. It is also widely accepted by many Nations.  The Magna Carta of British which guarantees certain rights to citizens and American Declaration of rights of man, 1789 stand as true testimonies for acceptante of this theory about origin of society and state.  In foregoing chapters we study certain core general principles of law on which legal system is constructed so as to translate the promise made by state to its citizens and persons.

OPERATIVE TOOLS OF LAW:

Rights and Duties:    Bentham who is the forerunner of Analytical School of thought states that the relationship between State and its subjects and inter-se is governed by rules of rights and duties. Right means advantages, benefits a person can enjoy. Obligations on the contrary are duties or charges imposed on a person, who is under the obligation to full-fill them.

The synonyms of right are: Liberty, Power, Privilege, and Immunity.

The synonyms of duty are: Liability, Disability, no right.

Rights and obligations though distinct and opposite, they are no manner different as one cannot exist without other. They are simultaneously same in origin. There cannot be a right without there being corresponding obligation one another. However, it is expressed as right at one place and duty at another place basing on the context. To illustrate, a person in settled peaceful possession of property has every right to continued to be in possession of the property without the interference of another and there is an obligation on the whole world to respect the same. If we read the same from penal law perspective, it can be said that no one shall commit trespass into possession of property in the hands of another.   Thus penal law converts obligation on part of individual into offences. Penal law creates an offence either by way of positive command or by a prohibition. Thus civil law is in fact only another aspect of penal law and to establish right means prohibition on another and vice-versa. To put straight, law is either rights or obligation or both. Infact all modern legal systems are constructed on the edifice of this principle only.

Now the question is what is the meaning of term right?  It means something that is due to a person or governmental body by law, tradition, or nature.

According to Salmond: “A legal right is an interest recognised and protected by a rule of legal Justice – an interest the violation of which would be a legal wrong done to whom whose interest it is and respect for which is a legal duty”

According to Holland: “A right means a capacity residing in one man of controlling with the assent and assistance of the state the acts of the other”

According to Ihering such of those interests that have gained legal protection can be regarded as legal rights.

In strict sense – legal rights are correlatives of legal duties – interests which law protects by imposing duties on others.

In essence right refers to something which others are due to a person and it is a claim recognized by state and enforced through process of law.  It can also be said that to call something as right there should be a remedy. Otherwise, it is not a right. Ubi jus, ibi remedium – The maxim was first recorded in the laws of England some 700 years ago by King Edward I.

In this connection it must also be mentioned that violation of right is the only pre-condition to seek for redressal of court but not quantum of damage sustained. This concept is explained through two following legal maxims:  Injuria Sine Damno and Damnum sine Injuria.

Injuria Sine Damno: Plaintiff can sustain a legal action for the infringement of his legal right even though he didn’t suffer any loss or damage. Ashby v. White (1702) 2LD Raym 938. Plaintiff is a legally qualified voter. The defendant, returning officer, maliciously prevented the plaintiff to exercise his franchise. The plaintiff sued the defendant even though the candidate, to whom he intended to vote, was declared elected. Holt C.J held the defendant liable on the ground that the plaintiff’s legal right was infringed.

Damnum sine Injuria: Mere sustenance of loss or damage by plaintiff doesn’t give rise to cause of action if there is no infringement of legal right. The important case law in this context is:

Gloucestor Grammar School Case: In this case, the defendant started a school and collected reduced fee from students. As a result, the students in plaintiff’s school transferred to defendant’s school. Consequently, the plaintiff suffered loss and sued the defendant.  Hankford J. held that plaintiff’s suit is not actionable on the ground that his legal right is not infringed by the defendant.

It is evident from above discussion one can seek the aid of court only if there is an invasion or threat to invasion of right guaranteed by law.  Therefore a robust understanding of some of the most basic and relevant rights is very much necessary. In fact under law we basically study about legal rights under substantive law.  These rights can also be classified into following heads:-

1) Fundamental rights      2) Public rights

3) Personal rights          4) Customary rights       5) Contractual rights

Remedies: Any person who’s right is violated or who has an apprehension that his right may be violated can approach the court to protect his right or to prevent its violation or for remedy provided under law for its violation.  The Law basing on the kind and nature of violation of legal right sets-out certain remedial measures. It must be mentioned that in democracy wedded with rule of law aggrieved or victim upon violation of his rights can’t demand for enforcement of a remedy which is not recognized by law. To put straight one cannot demand a remedy from court which he opines correct. Ex: If eye is lost due to action of hurt, victim can’t demand removal of eye of the accused unless it is recognized by law.The following are the major remedial measures provided under various laws.

Constitution provides following kinds of remedial measures for protection or enforcement of violated fundamental rights. They are:

a) Habeas Corpus             b) Quo Warranto                c) Mandamus           d) Certiorari               (e) Prohibition.

Specific relief Act,1963 provides following remedial measures for protection or enforcement of violated of Civil rights:-

(a) Specific performance       (b) Injunction          (c) Declaration            (d) Recovery of possession                                 (e) Cancellation            (f) Recession.

The other reliefs available under Civil law are:

(a) Damages           (b) Maintenance          (c) Mesne profits        (d) Partition         (e) Grant of succession certificate.

Indian Penal code and other penal laws provide followings kinds of remedial measures for violations duties prescribed under them. It is also known as punishment. a) Death, b) Imprisonment for life, c) Imprisonment, which is of two descriptions, namely:— (1) Rigorous, that is, with hard labour; (2) Simple;                                                         d) Forfeiture of property; e) Fine. Court can also award compensation.

Redressal of right:

The Court in order to grant any remedy, it is necessary for it to ascertain the existence of such right which is being claimed.  As such, it is imperative for court to follow uniform and effective procedure for ascertain the existence of such right and enforce the remedy in the event of allowing the claim. Thus apart from right and remedy, the procedure for reporting the grievance and its adjudication, enforcement is also equally important.  In order to look after these affairs basing upon kind, nature of right and remedy sought for certain laws are enacted. These laws are called procedural laws. Some of the most important procedural laws are:

(a) Constitution of India and Writ rules

(b) Civil Procedure Code and Civil rules of Practice,

(c) Criminal Procedure Code and Criminal rules of Practice

(d) Limitation Act

(e) Suit Valuation and Court Fee Law

(f) Stamp and Registration Law

(g) Indian Evidence Act

(h) Legal Services Authority

(i) Arbitration and Conciliation Act 1996

(k) Consumer Protection Act.

In a Democracy wedded with rule of law the concept of fairness must embrace in every action of state both apparently and inherently including especially in adjudicating a claim which has large scale implications on the lives of citizens.    Therefore, based on above public policy considerations and administrative convenience or limitations of adjudicatory forums following principles or rules are scaled out and organized accordingly with the aid of above mentioned laws. In fact these fundamental principles on which any civilized adjudicatory forum operate. The principles are:

1) Principle of Locus standi,

2) Resjudicata, Admissions,  Estoppel,

3) Jurisdiction,

4) Law of Limitation,

5) Stamp Act and Registration Act,

6) Suit Valuation and Court Fee Law,

7) Principles of Pleadings,

8) Summons,

9) Fixing up disputed question,

10) Recording of evidence,

11) Arguments

12) Adjudicating claim or judgment,

13) Appeal, Enforcement of judgment.

The following are the major dispute resolution mechanisms wherein we find the operation of these principles with minor variations here and there:

1. WRIT court    
2. Civil Court
3. Criminal Court  
4. Legal Service Authority
5. Mediation and Arbitration forum
6. Consumer Tribunal
7. Endowments Tribunal                 
8. Family court
9. Administrative Tribunal 10. Arbitration

What is meant by Bonafide Requirement (S.10)?

Ans:  The bonafide requirement of landlord of his premises is the ground for seeking eviction of tenant. The term bonafide means good faith.  That requirment of the landlord should not be a mere desire that means the landlord must require the requirement of his business or it must be an additional requirement for his business.

What is meant by Wilful default (S.10)?

Ans:  “Wilful default” implies intentional violation of obligation to pay rent. Default must be real and not mere technical. It shall be conscious violation of duty or obligation to pay the rents, having knowledge of consequences, which shall follow.

 Write a note about Appeal under Rent Control law?

Ans: S.20: APPEAL:  The person aggrieved by the order of the controller can appeal before Chief judge or Principal subordinate judge as the case may be.  The appellate court upon such appeal may order stay of further proceedings, pending appeal.  The appellate court shall decide the appeal after giving opportunity to party on either side and if necessary making inquiry either personally or through controller shall decide the appeal.  The order of appellate authority is final. The decision of controller is final subject to the order of appellate authority.  Explanation:  The appellate authority may while confirming the order of eviction passed by the controller grant an extension of time to the tenant for putting the landlord in possession of the building.

Commentary: 1.Appeal is a continuation of original proceedings and the appellate authority will exercise all powers of original authority in applying procedural law and granting releif. A plain reading of S.20 would show there are no restrictions on appellate authority to reverse or modify order of rent controller.  The Appellate authority has powers to confirm, reverse or modify the order of the rent controller.   Sree Datta Agencies, Hyderabad v Dinesh Kumar Kucheria 2008 (5) ALD 344 = 2008 (5)ALT 400.

2. Appellate authority has power of remand. This is integral part of S.20.
3. The appellate authority has power to receive additional evidence if there exist circumstances stated under O.41 R.27. It is not a right of the party.
4. Appeal against interlocutory orders of Rent controller is not maintainable. Revision u/A.227 is maintainable.

Appeal against conviction is not maintainable without deposit of arrears of rent as determined by rent controller.

     5. Appeal is maintainable against an interlocutory order if it affects the rights of the parties. Dismissal of interlocutory application by a third party for impleading in the proceedings is appealable as it can’t be said that the order does not affect the rights of the parties. B.Y.Ramulu v Budhan Saheb Mosque Committee, 2002 (3) ALD 377.

     6. Appellant Court being the last court for appreciation on facts should take care to see that the issue with regard to the ground of eviction is considered in a more perspective manner on all aspects and it has to necessarily meet the findings and all the reasons given in the findings of the court below and by giving its own reasons must reverse it by its own findings. Merely giving different independent and its own reasons and dehors the reasons given the by the court below would not be a valid reversal.

Write a note about Revision under Rent Control law?

Ans: S.22 Revision: The High court may, at any time, on the applciaiton of any aggrieved party call for and examine the records relating to any order passed or proceeding taken under this Act by the controller in execution u/S.15 or by the appellate authority on appeal under S.20, for the purpose of satisfying itself as to the legality, regularity or of propreity of such order or proceeding, and may pass such order in reference thereto as it thinks fit.

2)  The costs of and incident to all proceedings, before the high court under S.s(1) shall be in its discretion.

Comment: 1. Power of high court in revision under the Act is wider than the power of revision under CPC.

2. It is settled law that admission in a pleading can’t be allowed to be withdrawn by way of an amendment. The tenant admitting in the counter initially filed by him that he was paying rents but receipts were not given by landlord, could not have subsequently sought for an amendment of the counter raising the plea that there was no landlord-tenant relationship between them.
3. No revision lies against an order refusing amendment in a pending rent control case. It can be challenged by way of main appeal. This is not an interlocutory order.

Interference when justified:

1. If the courts below misdirected themselves and didn’t consider the evidence in the proper perspective by adverting to the provisions contained in S.10 of the Act, the high court is justified in interfering with concurrent findings.
2. The general rule is revision court can’t interfere with finding of fact. Interference of revisional court can’t be totally ousted not only on the question of law but also on finding of fact provided the said findings of fact provided the said finding was not based on evidence or if the finding is contrary to law.
3. Concurrent findings of fact can be interfered with in revision if they suffer from inherent defects and are based on irrelevant material. P.V. Venkata Krishna Rao: 1989 (3) ALT 284.
4. Question of bona fide requirement of landlord, being a mixed question of fact and law, can be gone into in revision by high court. Nallabill Satyanarayna :1999(2) ALD 659.

                                                                                                                                                                                                      What is the fate of proceedings in the event of death by petitioner in rent control case?

Ans: S.24:- Proceedings by or against legal representatives: –

1) Any application made, appeal preferred or proceeding taken under this Act by or against any person, may in the event of his death, be continued by or against his legal representative.

2) Where any application, appeal or other proceeding could have been made, preferred or taken under this Act by or against any person, such application, appeal or other proceeding, may, in the event of his death, be made, preferred or taken by or against his legal representatives.

Comment: Section 24 of the Act empowers the person to initiate proceedings by or against the legal representative in the event of death of the party. It is stated in Clause (2) of Section 24 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 that any application, appeal or other proceedings could be preferred under this Act, by or against any person, such application, appeal or other proceeding, may, in the event of death of the party, be made, preferred or taken by or against his legal representatives. Rule 19 of A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961 prescribes period of limitation of thirty days for bringing legal representatives on record. Rule 19(2) mentions that application can be admitted after expiry of the period of limitation if the applicant satisfies the Controller or Appellate Authority that he had sufficient cause for not making the application within the time. Nanik Ram vs Bavarlal (Died) : 2004 (6) ALD 200

Abatement of appeal:  During the pendency of the appeal, the original landlord died and all his sons were not brought on record.  The court said it is not necessary that all must be brought on record. Another point to be noted that either tenant or landlord can continue the suit even after their death by their legal representatives.  On the death of the original tenant during the pendency of the CRP filed u/r.22 of the Act, one of the LRS of the deceased tenant, in whatever capcity he might have been on record, carried the matter unsuccesfflly  upto the apex court. Other LRs of the orignal tenant contended that they were not brought on record as LRs of original tenant and the proceedings became abated and non-est in the eye of law and therefore execution can’t be don agasint them.  It is rejected as one of the tenant effectively represented the rights. K.Megamal @ M.Meghamal :2006(3)ALD810.

What is the Object of this Act?

Ans: The object of this Act is to provide measures for checking unauthorised occupation of Government lands and to protect the government property. This is done by the imposition of penal assessment or by subjecting unauthorised occupants to summary eviction.

What are the properties for which this law is applicable? What is government property?

Ans: Government properties only. The term government property means all public roads, streets, lanes and paths, bridges, ditches, dykes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nalas, lakes and tanks and all canals and water courses and all standing and flowing water and all lands situated are the property of the Government including Railway lands and land in Port limits. (Section 2(1)).

All public roads and streets vested in any local authority shall be deemed to be the property of the Government. (Section 2(2))

What are the coercive tools available under the Act against unauthorized occupations?

Ans:  They are: 1) The imposition of assessment and penalty 2) summarily evicting the person in occupation.

What is the mode of recovery?

Ans: It may be recovered as arrears of land revenue under A.P.Revenue Recovery Act, 1864. (Section 9 of the Act)

What is the mode of assessment in respect of unauthorized occupations?

Ans: This is done by the Tahsildar. He levies assessment basing on two considerations. They are: 1) Village or town 2) Assessed or unassessed land.

What is the method of evicting unauthorised occupant?

Ans: He can be summarily evicted. Before taking proceedings under Section 5 or 6, service of Notice is a mandatory and it should contain specification of the land so occupied and calling on him to show cause before certain date why he should not be proceeded against him under Section 5 or 6. If such Notice is not obeyed, the eviction to be carried out after hearing objections if any filed. If he resists or obstructs the Tahsildar, may issue Warrant for the arrest of the said person for such a period not exceeding 30 days in order to prevent the continuance of such obstruction or resistance or may send him with a Warrant in form of schedule for imprisonment in the Civil Jail of the District for the like period. (Section 6 & 7of the Act). Authorities constituted under the Act cannot take eviction proceedings against person in unlawful and illegal encroachments of Government lands without following the procedure laid down under Section 6 & 7 of the Act. (K.R.Zilla Parishad High School Committee, Katur Vs. The State ofA.P., 1976(1) An WR 86)

Write a note about S.7-A of the Act?

Ans: Section 7- A of LE Act was introduced by means of an amendment in 1980. When a group of persons without entitlement and with a common objection of occupying and Government land occupy and do not vacate on demand by the Collector shall order without notice and immediate vacation of the encroachers and for taking possession of the land. Thereupon, the encroachers should be evicted from the land by force, taking such police assistance as may be necessary and take possession of the land. An order U/s 7-A of the Act for eviction so passed by the Collector shall be final and shall not be questioned in any Court. If any dispute arises as to whether any land is the property of the Government, such land shall be presumed to be the property of the Government until the contrary is proved.

Is there any appellate forum against the order of Tahsildar?

Ans: yes, Appeal lies to the RDO against the orders of Tahsildar, to the District Collector against the orders of RDO and to the CCLA against the orders of District Collector otherwise than an Appeal. No Appeal shall be brought after the expiration of 60 days from the date of receipt of the copy of order. The District Collector and the CCLA have got revisional powers. (Sections 10, 11 & 12 of the Act). he Government have power to call for records and pass necessary orders. [Section 12(A)] .

What is the punishment provide for re-enter by unauthorisdely occupied person?

Ans: Any person who unauthorisedly re-enters and occupies land from which he was evicted, shall be punishable with imprisonment upto 6 months or with fine upto Rs.1000/- or with both. (Section 6 (3) of the Act)

Whether civil court has Jurisdiction?

Ans:  This Act provides Conclusiveness of decision as to amount of assessment payable under Section 3 shall not be questioned in any Civil Court. (Section 4 of the Act). Further,   no decision made or order passed under this Act except proceeding effecting the title to the land of a person shall be called in question before Civil Court. (Section 14 of the Act)

What is Bailable offence?

Ans: As per S.2(a) Bailable offence: means an offence which is shown as bailable in the First schedule, or which is made bailable by any other law for the time being in force; and non-bailable offence‖ means any other offence.

What is Cognizable offence?

Ans: As per S.2(c) Cognizable offence: means an offence for which, and cognizable case means a case in which a police officer may, in accordance with the First schedule or under any other law for the time being in force, arrest without warrant.

What is Non cognizable offence?

Ans: As per S.2 (l)Non cognizable offence means an offence for which, and non-cognizable case means a case in which, a police officer has no authority to arrest without warrant.

What is Inquiry?

Ans: As per S.2(g)Inquiry means every inquiry, other than a trial, conducted under this code Magistrate or court.

What is Investigation?

Ans: As per S.2 (h)Investigation: includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person authorized by a Magistrate on this behalf.

What is Complaint?

Ans: As per S.2 (d)Complaint: means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this code that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation: — A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.

What is Offence?

Ans: As per S.2 (n) Offence: means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespassers Act, 1871.

What is Summons case?

Ans: As per S.2 (w)Summons case means a case relating to an offence and not being a warrant case.

What is Warrant case?

Ans: As per S.2 (x)Warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding 2 years

What is arrest? Why arrest? Who can arrest?

Ans: Arrest means apprehension of a person by legal authority resulting in deprivation of his liberty. One of the essential features of fair trial requires that the trial proceedings are conducted in the presence of the accused and that he is given a fair chance of defend himself. After the trial is over and if the accused is found guilty, he must be available in person to receive the punishment. For this purpose the presence of the accused is necessary during the trial. A police, private persons and magistrates can arrest.

When a person can be arrested?

Ans: Arrest of person may be necessary in certain circumstances:- a) So as to secure the attendance of the accused at the trial          b) As a preventive measure       c) So as to obtain correct name and address of the accused d) For taking a person escaped from the lawful custody      e)So as to remove obstruction to police in the execution of their duties.

Explain different kinds of arrest?

Ans: Cr.P.C provides four types of arrests:

(1) Arrest with warrant                 (2) Arrest without warrant

(3) Arrest by private persons        (4) Arrest by Magistrate.

Arrest with warrant: A warrant for arrest may be issued by a Magistrate after taking cognizance of any offence. This offence may be a cognizable offence or non-cognizable offence. Generally if the case is warrant case, a warrant of the arrest of the accused is issued. If the case in which the Magistrate has taken cognizance is a summons case, a summons shall be issued to the accused person. But the Magistrate has got the discretion to deviate from this general rule if the circumstances so demand in any particular cases. If the Magistrate has reason to believe that the accused has absconded or would not obey the summons, he may issue an Arrest warrant.

Arrest without warrant: S: 41 provides When a police may arrest without warrant:-

1. Any police officer may, without an order from a Magistrate and without a warrant, arrest any person:

(a)Who has been concerned in any cognisable offence, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) Who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or who has been proclaimed as an offendor either under this code or by order of the State Govt; or

(c) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

• Who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
• who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India, which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or who, being a released convict, commits a breach of any rule, made under s.s (5) of section 356; or
• for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there form that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories or persons specified in section 109 or section110. 42 says a police officer may also arrest any person concerning in a non-cognizable offence, if he doesn‘t furnish his address. But once, satisfied with identity & address he shall release.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      When can a private person arrest without warrant?

Ans: As per S.43 any private person can arrest without warrant, if any person who commits a non-bailable and cognisable offence in his presence or a proclaimed offender. It is the duty of such private person to produce that person without unnecessary delay before the nearest police station. The police officer, when the arrested is produced before him shall re arrest him.

Write about s.41A?

Ans: S.41-A the police officer shall in all cases when the arrest of a person is not required under the provisions of s.41 (1), issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence to appear before him at such other place as may be specified in the notice.

• Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
• Where such person compiles and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded the police officer is of the opinion that he ought to arrested.
• Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.

What are the objects of police control rooms?

Ans: As per S.41C the state government shall establish police control room at every district. It shall display on the notice board of the control room, the names and addresses of the person arrested and the name and designation of the police officers who made the arrests. The control room at the police headquarters at the state level shall collect from time to time, details about the person arrested, nature of the offence with which they are charged and maintain a data base for the information of the general public.

How arrest is made?

Ans: S.46 says Arrest is made by police or any other person by touching or confining the body unless already submits to him. Police may use necessary force if arrest is resisted. But this doesn‘t give a right to any person to cause the death of any person who is not accused of an offence with death or imprisonment of life. A person arrested by the police shall not be subjected to more restraint the unnecessary to prevent his escape. Woman shall not be arrested before or after sunset.

 When can a Magistrate arrest?

Ans: Any Judicial or executive magistrate may arrest any person: 1) when offence is committed in his presence within his local jurisdiction or 2) may arrest any person to whom he is competent to issue warrant, in his local jurisdiction. In these two cases he can also direct any person to arrest.

How a search can be made in a closed place for arrest of a person?

Ans: As per S.41 a police officer may enter any closed place even by using violence if necessary by breaking open the doors and windows by arresting person obstructing him from discharging duties, and search the place to arrest any person required. Similarly, he can also use violence while coming out from the closed place after search.

What are the duties of a police officer while making arrest?

Ans: 1) Article 22 of constitution and S.50 of Cr.P.C says person arrested must be informed as the grounds of his arrest and also to his relatives and friends.

2) Accused shall also be informed his right to release on bail (S.50(2)).

3) Accused must be produced before nearest magistrate without any delay (A.22, Secs 56, 57) as accused can‘t be detained for more than 24 hrs without judicial scrutiny.

4) He must be allowed to consult a legal practitioner of his choice (A.22 (1) and Secs.303)

• Female suspects should be guarded by women constable Interrogation of female suspects should be in the presence of female police officers.
• The arrested person shall be informed his right to consult advocate of his choice
• Person arrested has a right to be examined by a Medical practitioner (S.54)
• Right of the accused person to get free legal aid & must informed about the same (A.21, S.304)
• Police officers arresting person shall have name plates on their uniform or possess identity cards
• Police when they arrest should prepare memo card of arrest and get it attested by a member of the family of any respectable person of the locality at the time of arrest. The memo should be counter signed by the arrestee. Entries of arrest must be made in the case dairy.
• Copies of all documents relating to arrest must be sent to magistrate along with remand report.

Under what circumstances police can register FIR?

Ans: Police shall register FIR in the following circumstances:

1. If someone gives information about commission of cognizable offense.
2. If someone gives information in non-cognizable offences – but court endorses for registration (S.155(2))
3. If the court endorses a case (S.156(3))
4. A cognizable case by Police on their own (S.157)

 How information of commission of cognizable offence is registered by the police? Is there any remedy to the person aggrieved by the refusal on the part of the police to record the information?

Any Person aware of the commission of the cognizable offence may give its information to the SHO of PS. It must be recorded as per S.154 Cr.P.C. (1). It can be oral or writing signed by informant.  It must be entered in a book is called station diary or general diary. A copy of the same shall be given forthwith, free of cost, to the informant. The substance of the information shall then be entered by the police officer in a book to be kept by such officer in the form prescribed by the state government. This book is called as station diary or general diary.  If police refuses to register FIR, Aggrieved can send it to SP of the District or can file Private complaint before Magistrate. S.P can appoint an officer either to investigate the case himself or appoint any officer for investigation. Such officer shall have all the powers of an office-in-charge of the police station in relation to that offence.

The evidentiary value of the FIR is greater than that of any other statement recorded by the police during the course of investigation. FIR is a report to the commission of an offence given to the police. It can be registered by the police suo-moto. FIR is not a substantive piece of evidence, but it can be used to corroborate the informant U/S 157 or contradict U/S 145 of the IEA 1872, if the informant is called as a witness at the time of the trial. If the FIR is of a confessional in nature it cannot be proved against the accused/informant in view of S.25 of the IEA. However, accused confession is relevant u/S.21 or 8 of the IEA.

Is it mandatory that information must be given to jurisdictional police?

Ans: No, an information may be given to the nearest police station whether having jurisdiction or not and that police should register the case and transfer the case to the police station having jurisdiction.

What is the procedure when a non-cognizable offense is reported to police?

Ans: As per S.155 say when any person gives information relating to the commission of a non-cognisable offence, the police officer has to enter the substance of such information in a book prescribed for this purpose then refer the informant to the Magistrate. If the magistrate directs the police officer to conduct the investigation into that non-cognisable offence, than that officer conducts investigation. Otherwise the officer has no duty to conduct investigation. While conducting investigation the police officer can exercise all the powers available to him except the power of arrest. If the case relates two or more offences of which at least one is cognisable, the case shall be deemed to be a cognisable case, notwithstanding that the other offences are non-cognisable

What is the procedure when a cognisable offense is endorsed by the court?

Ans: As per S.156 when a cognisable case is presented directly in a court and it is endorsed by court to police, the station house officer should register the case and investigate in the same way as if the offence is reported to him directly.

 What is the procedure when trifling cases are reported?

Ans: As per S.157 police officer after registration of FIR shall proceed for investigation but he need not proceed so in the following cases: 1.If the offence is not of serious nature and the offender is known 2.He need not investigate trifling cases or unidentifiable cases.

What is Investigation? Does it differ from Inquiry?

Investigation, according to Cr.P.C is to be conducted always by a police or other authorized person (other than a Magistrate). It includes all the proceedings under the code for the collection of evidence (S.2(4)). Broadly speaking the investigation of an offence consists of:-

Proceeding to the place of offence:

Ascertainment of the facts and circumstances of the case;

Discovery and arrest of the suspected offender;

Collection of evidence relating to the commission of the offence which may consist of – (a) the examination of various persons (including the accused) and the reduction of their statements into writing if the police officer making the investigation thinks fit; (b) the search of places or seizure of things considered necessary for the investigation of trial;

Formation of the opinion as to whether on the materials collected there is a case to place the accused before a magistrate for trial, and if so, taking necessary steps for the same by filing a charge sheet u/s 174 Cr.P.C, 1973.

What is an Inquiry?

Ans: Inquiry: An inquiry according to Cr.P.C,1973 means every inquiry which is conducted by a magistrate or court and which is not a trial(S.2(g)). In common parlance investigation and inquiry are used as synonymous or interchangeable terms. But the Cr.P.C uses them differently and with specific distinct connotations. Where a Magistrate or court conducts an inquiry for deciding as to guilt or innocence of any person accused of any offence, such an inquiry is not just an inquiry but it is termed as a trial. But where the inquiry relates to a matter other than the determination of guilt or innocence in respect of any alleged offence such an inquiry is not trial but a mere inquiry. Example: inquiry for determining the liability to pay maintenance to the wife, children or parent u/s.125.

Explain the method of recording statements of witnesses during Investigation?

Ans: Examination of witnesses by the police is regulated by S.161 Cr.P.C while the use of such statements is regulated by S.162 Cr.P.C. Any police officer making an investigation may require by an order in writing the attendance of any person residing in his station limits or in the limits of the adjoining station for examination. And such person shall be bound to answer all questions truly. Any disobedience of such a direction is an offence punishable u/s 174 IPC. However, non-attendance is no disobedience when the order is not in writing. A boy under the age of 15 years or any women can be examined only at place where he or she resides. (Proviso to section 160(1) cr.p.c). The statements of the witnesses examine by the police shall be recorded in part II of the case dairy. A police officer is not bound to reduce in writing the statements of each and every witness examined by him. He is vested with discretion in the matter. It is however necessary to records the statements of all material witnesses. The statements of witnesses shall be recorded separately. They shall be reduced into writing by the police officer himself. They shall be recorded in the first person and the language in which they are made. The Investigation officer can note down points and elaborate afterwards. In such a case jottings also should be supplied to the accused. The statement shall not be signed by the witnesses. S 162 Cr.P.C. Sub section 3 of s.162 Cr.P.C r/w sub section (4) of 173 Cr.P,C indicates that separate statements of all persons whom the prosecution proposes to examine as it witnesses should be recorded and copies thereof must be furnished to the accused before the commencement of the inquiry or trial. All these mandatory provisions, though non compliance does not vitiate the proceedings or trial, but raise the question is one of prejudice. If the prejudice is caused to the accused he is entitled for benefit of doubt. The accused shall invariably be examined soon after his arrest. This statement shall be recorded in part of the case dairy but not in part II. It need not also be in the first person. It need not also be the language in which it is made.

What is the value of 161 Cr.P.C statements?

Ans: The statements recorded u/s 161 Cr.P.C can be used to contradict the witnesses(s 145 IEA). A prosecution requires the permission of the court to contradict a witness while the defense counsel does not require such permission. A person can be contradicted only when he is called as a prosecution witnesses. He cannot be so contradicted when he is called as a defense witness or as a court witness. If a statement of a witness has been recorded by police u/s 161 Cr.P.C. that statement can be used for corroboration or contradiction in a subsequent case, provided the latter offence did not exist at the time of recording the statement in the previous case. The statements recorded u/s 161 Cr.P.C cannot be used for corroboration. The statements recording during the course of investigation alone hit by S.162 Cr.P.C, 1973 and not S.32 (1) and 27 of the IEA872.

How confessional statements are recorded by a Magistrate?

Ans: 1. Confessional statement made to magistrate is totally admissible and it is treated as substantive piece of evidence. Confession means admission of guilt.

2. Confession statement must be recorded in accordance with procedure prescribed the under s.164 Cr.P.C and Rule 32 of Criminal rules of Practice. The record is admissible in evidence even though the magistrate making record is not called as a witness to formally prove its contents during the trial of the accused person.

3. The following preliminary steps and precautions have to be observed by the magistrate in recording confession of an accused.

4. Before recording a confession, the magistrate is required to explain to the person making the confession that: (i) that he is not bound to make a confession (ii) if he does so it might be used against him 164(2). The Magistrate is under a duty to see that the above mentioned warning is brought to home to the mind of the person making the confession. It is also necessary that the magistrate should disclose his identity to such person so as to assure him that he is no longer in the hands of police. The Magistrate should not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

5. After warning the person making a confession the magistrate should give him adequate time to think and reflect, so that the mind of the accused is completely freed from any possible police influence. Normally such person if coming from police custody, is sent to judicial custody, is sent to judicial custody at least for a day before his confession is recorded.

6. Every inquiry must be made from the accused as to the custody from which he was produced and as to the custody to which he was to be consigned and the treatment he had been receiving in such custody in order to ensure that there is no scope of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of the accused person. If marks of injuries are found on he should be asked how he received them.

7. If the accused is handcuffed, the magistrate should order to remove handcuffs, and the police and other persons who are likely to have any influence over the accused should be ordered out of court in order to create a free atmosphere.

8. The accused should be assured, by the magistrate about protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a confession.

9. If at a time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession the Magistrate is not authorize the detention of such person in police custody s.164(3).

10. Even in a case of confession is made and recorded, the accused person as a matter of rule, should be sent to judicial lock up and on account be returned to police custody.

11. The accused should particularly be asked the reason why he is going to make statements which would surely go against his self interest in course to trial and he should further be told, in order to remove any lurking suspicion in his mind, then even if he continuous subsequently to repeat the confession it will still be evidence against him.

12. The Magistrate recording the confession must apply his judicial mind to the task of ascertaining that the statement the accused is going to make is of his own accord and not on account of any influence on him.

13. The Magistrate must put questions to the accused in order to ascertain the voluntary of the confession and the record of the confession must show that the questions where so asked to ascertain voluntariness.

14. The confession is to be recorded in the manner provided by S.281 Cr.P.C. for the recording of the examination of an accused person.

The whole of the confession, including every question put to the accused and every answer given by him shall be recorded in full. The record, shall, if practicable be in the language in which the accused gave the confession or that is not practicable in the language of the court. The record shall be shown or read over to the accused or if he does not understand the language in which it is written, shall be interpreted to him in a language in which he understands and he shall be at liberty to explain or add to his answers. The confession so recorded shall be signed by the accused person making it.

Under what circumstances, police can conduct search without warrant?

Ans: S.165 Cr.P.C deals with Search without warrant. During investigation, if there is no time to obtain a search warrant and immediate search of a place is necessary for the purpose of investigation, investigating police officer can conduct a search without warrant (s.165). The following provisions have been made to restrain the police power:

1. The power to search without a warrant can be exercised only by a police officer in charge of a police station or any other officer authorized to investigate into any offence and in fact making such an investigation.

2. Such a police officer may, however, instead of conducting the search himself require a subordinate officer to conduct the search under certain circumstances; and there upon the subordinate officer shall have the authority to conduct the search.

3. The search is not to be a general search but must be one for particular things, documents or specified materials necessary for the purpose of investigation.

4. The place of search must be within the limits of the police station of which the officer-in-charge or which he is attached.

5. The police officer making the search must have reasonable grounds to believe that:- (i) any specific thing necessary for the purpose of investigation may be found in the place, and (ii) such thing, in his opinion , cannot otherwise be obtained without undue delay i.e., in his opinion it would be too late before a search warrant is obtained from a magistrate.

6. A police officer before proceeding to search place must record the grounds of his belief as to the necessity of such a search and must also specify in such a record the things for which the search is to be conducted.

7. The copies of record made prior to the search are required to be sent forthwith to the nearest magistrate. This would ensure that these records are not conveniently fabricated later. The magistrate is also required to furnish, free of cost, to the occupier of the place searched, a copy of the entire record so received by him from the police. The copy would facilitate the proof any illegality or impropriety, if any, in the search.

8. The police officer, as far as possible, is to conduct search in person. If he is unable to do so and there is no other person competent to make the search present at the time, then, he can authorize any subordinate officer to make the search.
9. The police officer giving such authority must record his reasons for doing so; the authority must be in writing and it should, as far as possible, specify the place to be searched and the thing for which search is to be made. In addition to the above, the provisions as to search warrants and the general provisions as to searches shall, apply to the search made by a police officer without warrant. If the place is to be searched is beyond the limits of the Police station, such a search can be arranged through the concerned SHO, or in case of urgency, by the police officer himself. But in either case the rules mentioned above have to be followed mutatis mutnadis.

What is the procedure, police can adopt, if the investigation is not completed within 24hrs?

Remand: 1. A person arrested has to be produced before the nearest judicial magistrate within 24 hours of his arrest. This period of 24hrs is exclusive of the time of journey from the place of arrest to the court of the Magistrate (S.57).

2. As a result, it is not possible to complete investigation as such to meet this end investigating officer resort to S.167 of Cr.P.C. Thus, these provisions are intended to operate at a stage where a person is arrested and either an investigation was started or is yet to start and is not likely to be completed within 24 hours.
3. The remand report shall be accompanied by a copy of the case diary (part-I). The Magistrate before whom he is produced may authorized his detention for a term not exceeding 15 days. If the said Magistrate has no jurisdiction to try or commit the accused to custody, and considers further detention unnecessary, he may order the accused too be forwarded to the Magistrate having Jurisdiction.
4. The Magistrate is prohibited from detaining a person in police custody beyond the period of 15 days. Police custody may be at the request of the police or otherwise. It is not at the request of the police, it amounts to detention by the magistrate. If the Magistrate is of the opinion that adequate grounds exist for detention more than 15 days, he can so detain a person for a period not exceeding 90 days where the investigation relates to an offence punishable with death or imprisonment for life or for a period not less than ten years and for a period not exceeding 60 days where the investigation relates to any other offence. In calculating the period of 60 or 90 days, the date of arrest shall be excluded.

                                                                                                                                                                                                            What is police diary?

Ans: According to S.172 (1) every Investigating Officer is required to enter day by day his proceedings of the investigations in a Diary. Such a diary shall set forth the time at which the officer, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

Any criminal Court ask the police officer‘s diary of a case under inquiry or trial in such court, and may use such diary, not as evidence in the case, but to aid it in such inquiry or trial. S.172 (3) imposes a restriction on the use of case diary by the accused person. It says: -Neither the accused nor his agents shall be entitled to for such diaries nor he or they shall be entitled to see them merely because they are referred to by the court. However, the accused person is allowed to use the case diary for Cross-examination of the police officer who made it under two circumstances: If the police officer, while giving evidence refreshes his memory to the case diary (S.159 IEA) the accused is entitled to see the relevant entries in the diary and may use them for cross-examining the police officer provided u/s 161 IEA. If the court uses the case diary for the purpose of contradicting such police officer in accordance with the provisions of S.145IEA, then the accused can have the right to inspect the relevant portions of the diary.

It may be noted that even in the above two circumstances the accused is not allowed the wholesome inspection of the entire case diary. If the case diary is not maintained as required by S.172, that in it may not vitiate the trial; but it would expose the evidence of the Investigating officer to adverse criticism, and might diminish the values of his evidence.

Value: The entries in police diary are neither substantive nor corroborative and they can’t be used by or against any witness except investigating officer for limited purpose provided in the S.172. A judge can’t make use of the case diaries in his judgement and in seeking confirmation of his opinion on the question of appreciation of evidence from statements in the diary.

Explain about Inquest?

Ans: Inquest: Provisions relating to inquests are contained in sections 174 to 176 of the Cr.P.C. In case of murder, death, under suspicious circumstances suicide, sudden, unnatural or accidental deaths, the police are required to held inquest. Inquest can be held by an officer-in-charge of a police station or some other police officer specially empowered in that behalf. Inquest report prepared u/s 174 Cr.P.C should contain the details found on the body and at the scene of offence. The witnesses examined at inquest are bound to answer truly all questions other than those the answers to which have tendency to expose a criminal charge or to penalty or forfeiture. Inquest report is an important document in ascertaining the cause of death and the circumstances under which it took place. Inquest report is not substantive evidence .It can be used for corroboration u/s 157 or for refreshing memory u/s 159 and for contradiction u/s 145 IEA.

Under section 174 police have duty to inquire and report the suicides and killing of one person by another person, killing of a person by an animal and unnatural deaths etc. Under section 175 police have got the power to summon any person acquainted with facts and circumstances of the case. Under section 176 the Magistrate has got the power to conduct an inquiry or inquest into the death of a person in police custody.

Write a short note on Charge-Sheet?

Ans: Charge-sheet: S.173 of Cr.P.C talks about Charge-sheet or challan.

1. After the completion of investigation, the investigation officer has to submit a report to the Magistrate. This report is called as Charge-sheet or challan. This report is to be sent in the form prescribed by the Government.
2. This report must contain the following information:

(i) Name of the parties (ii) Nature of the information

(iii) Names of the persons acquainted with the facts and circumstances of the case

(iv) Whether any offence appears to have been committed or not, if so by whom

(v) Whether the accused has been arrested or not

(vi) Whether he has been released on bond, if so with sureties or without sureties

(viii) Whether he has been forwarded in custody or not.

3. When this report is sent through a superior police officer, this superior police officer can order further investigation into the case if he considers the information not sufficient to prove the guilt of the accused.
4. The investigating officer submitting the report has to communicate to the person who has given First Information about the action taken by him.
5. When the report is relating to an offence where sufficient evidence is available to prove the guilt of the accused, the police officer should forward along with the report to Magistrate all the document s on which prosecution proposes to rely and the statements of witnesses recorded u/s 161 whom the prosecution wants to examine as its witnesses.

If the police officer thinks that any part of the statement should not be disclosed to the accused, he can request the Magistrate to exclude that part of the statement from the copies given to the accused. If it is convenient to the police officer he shall furnish the copies u/s 173 (5) to the accused. If the magistrate, before whom the charge sheet, is filed, thinks that the conclusions of the police are incorrect, he can further investigation. Even after submitting the charge-sheet, if the investigating officer comes to know about the existence of additional evidence, he can submit a supplementary report or challan.

What is meant by continuing offence?

Ans: This term is appeared in S.178 Cr.P.C. If an act is committed which constitutes an offence and if that act continues from day to day and a fresh offence is committed by the accused so along as that act committed. Normally an offence is committed only once. But there are offences which can be committed day to day. Those offences are only called as continuing offences. Ex: A Conspiracy is a continuing offense. Each case is dependent on its own facts.

What is the general rule regarding place of Trial?

Ans: Trial in nearby court is more conducive to the sense of social security. Therefore, for the purpose of determining the venue or the place of trial, the basic general rule is: “Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed” (S.177). The subsequent sections 178-184 provide for alternative venues for inquiry and trial under certain circumstances and in respect of certain kinds of offences. The arrangement is intended essentially to minimise the inconvenience that might be caused by the strict adherence to the basic rule contained in the above S.177. The same rules apply for investigation of cases by police officers.

Is there any time limitation or other limitations for taking cognisance of offense by court?

Ans: Yes, however, it applies to offences which are less three years punishment only. A magistrate can take cognisance of an offence only within the time limits prescribed by law for this purpose (467-473). Preliminary objections can be taken at beginning of trial, soon after charge is framed or offence when explained to him. The following objections can be taken:

1. First plea can be question of jurisdiction;
2. Magistrate has no power to try
3. When the accused person is suffering from certain disabilities;
4. When the case is barred by limitation of time. This rule applies only to less serious offences which are punishable with imprisonment up to three years. S.468 provides a basic rule of limitation that except as otherwise provides elsewhere in the code no court after the expiry of the period of limitation shall take cognisance and offence punishable with fine only or with imprisonment up to three years. For the purpose of above rule, the period of limitation is provided in S.468 (2).

S.468 provides a basic rule of limitation:

One year – Imprisonment exceeds one year

Three years – Imprisonment exceeding one year but not exceeding three years

What is the procedure for prosecuting a public servant in discharge of his official duties?

Prosecution of Judges and Public Servants: According to Section 197 (1) Cr.P.C 1973, no court shall take cognizance of any offence alleged to have been committed by a person who is or was judge or Magistrate or a public servant, except with the previous sanction of the appropriate state or central government. In order to attract this restrictive rule, the provision requires that:-

The judge, magistrate or the public servant is or was one not removable from his office save by or with the sanction of the appropriate government. The alleged offence must have been committed by him while acting or purporting to act in the discharge of his official duty.

What is the restriction for taking cognizance for offenses against marriage?

Ans: For offences relating to marriage as provided under Chapter 20 of the Cr.P.C complaint must be made person who is aggrieved by the offence. If aggrieved is minor complaint must be made by the guardian or parent.

What is the restriction to prosecute a husband or relative of husband under S.498A IPC?

Ans: For offences u/s.498A IPC unless filed by police or when on complaint by the aggrieved or her parents or other relatives by blood.

What is the restriction to prosecute for offense of contempt of lawful authority or public servants and against public justice or relation to documents given by evidence?

Ans: (1)No court shall take cognizance of certain offences i.e 172 to 188 IPC except on complaint in writing of the public servant or his superior whose authority is defined.

(2)No court shall take cognizance of certain offences i.e 193 to 196, 199, 200, 205 -211, 218, 228 IPC except on complaint in writing of the public servant or his superior whose authority is defined.

The purpose of S.195 is to bar private prosecutions where the course of justice is sought to be prevented, leaving it to the court itself to uphold its dignity and prestige offence relating to forgery. S.340 lays down the procedure, the court concerned should adopt when any such offence appears to have been committed.

When Magistrate is said to take Cognisance of offence? What are the options left with Magistrate when he receives a complaint? What is the procedure in case of complaint made by public servant or court?

Ans: A Magistrate is said to take cognizance of any offence U/S 190 (1) (a), Cr.P.C when he not only applies his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions U/S 200 and thereafter sending it for inquiry and report under S.202. When the Magistrate applies his mind not for these subsequent sections but for some other purpose, e.g., ordering investigation under S.156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.‖

The taking cognizance merely means judicial application of the mind of the magistrate to the facts mentioned in the complaint with a view to taking further action Thus the Sec190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations.

If the Magistrate chooses to take cognizance he can adopt any of the following alternatives:

• He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straight away issue process to the accused before he does so he must comply with the requirements of S.200 and record the evidence of the complainant or his witnesses.
• The Magistrate can postpone the issue of process and direct an inquiry by himself

(c) The Magistrate can postpone the issue of process and direct an inquiry by any other person or an investigation by the police.

In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are no sufficient grounds for proceeding he can dismiss the complaint.

Where a magistrate orders investigation by the police before taking cognizance u/s 156(3) of the code and receives report and discharge the accused or straight way issue process against the accused or apply his mind to the complaint filed before him and take action under S190 as described above.

Procedure in case of Public Servant: According to provisio of S.200 (2) Cr.P.C the magistrate need not examine the complaint and witness in the following cases:-

If a public servant acting or purporting to act in the discharge of his official duties or court has made the complaint.

What is the procedure if the Magistrate doesn’t have the jurisdiction to try the case? What is the procedure if the case is to be tried by court of sessions?

Ans: Procedure if the Magistrate is not competent to take cognisance of offence, he shall:-if the complaint is in writing, return it for presentation to the proper court with an endorsement to that effect;

1. ii)if the complaint is not in writing, direct the complaint to the proper court.

Procedure if the case is to be tried by court of sessions: According to S.209 if the case is exclusively tribal by the court of session, Magistrate shall commit the case to the court of session after complying with the provisions of S.207 and 208, the case to the court of session, and subject to the provisions relating to bail, remand the accused to custody until such commitment has been made. It should also send the record of the case and the documents and articles, if any, which are to be produced in evidence. Notify the Public Prosecutor of the commencement of the case of the Court of Session.

Under the above provision the magistrate is only to examine the police report and other documents referred to in the section and find out whether the facts stated in the report make out an offence tribal exclusively by Court of Session. Once that conclusion is reached Magistrate has to com it the case to Court of Session.

What is Charge? Who frames Charge?

Charge included more heads than one. Charge serves the purpose of notice or intimation to the accused person about the accusation he is called upon to face. Court frames charge. Charge shall be framed as S.211 Cr.P.C & 212.

Section 211 talks about form and contents of charge:

1. It must state the offence with which accused is charged.

2.Name of the offence committed in IPC or in any other Act.

3. Name of the offence or definition in case of no name to it.
4. Section of law with which he was charged.

5.It shall be in writing in the language of the court.

6. Details of previous conviction, if any, if the accused is liable to enhanced punishment, of a different kind, for a subsequent offence

7.Time and place of the alleged offence and the person against whom the alleged offence is committed. In case of a thing in respect of thing alleged offence is committed (s.212 (1)).   

8. In criminal breach of trust, dishonest misappropriation details of gross sum.

Whether at one trial several charges can be tried?

Ans: There shall be separate charge for every distinct offence. However S.218, 219, 220, are exceptions. However, If accused make a request in writing stating that all or any of charged made against him may be tried together they can tried jointly:  Provided if court is of opinion that such person is not likely to be prejudiced  thereby (S.218 Cr.P.C).

Whether three offences of same kind can be tried together at one single trial?

Ans: Yes as per S.219 three offences of same kind committed within a year may be charged together and tried at one trial.  For the purpose of this section:

ExP-I Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the IPC or of any special or local law.

Ex.P-II An offence punishable under section 379 of the IPC shall be deemed to be an offence of the same kind as an offence punishable under section 380 IPC

If in one transaction several offences are committed whether all the charge and tried together at one trial? Or Write a note on S.220 (1) Cr.P.C?

Ans: Yes as per S.220 (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.  As per S.220(2) an who committed offence of falsification of accounts, for the purpose of committing Criminal breach of trust or dishonest misappropriation can be charged and tried at one trial.  As per S.220(3) If the acts alleged against accused constitute an offence falling within two or more separate definitions of penal law he can be charged with all those offences and tried together at one trial.

Whether accused can be convicted for an offence for which he is not charged?

Ans: Person shall not be convicted for an offence, for which he is not charged with. However, S.221 and 222 are exceptions to this rule.

What is S.221 Cr.P.C?

Ans: If it is doubtful which of several offences the facts which can be proved will constitute offence, the accused may be charged with having committed all or any of such offences (221(a)). If in such a case the accused is charged with one offence, and it appears in evidence he committed a different offence for which he might have been charged under the provision of S.S (1), he may be convicted of the offence which he is shown to have been committed, although he was not charges with it (221(b)).

Ex: 379 is charge.  Evidence disclosed S.411 IPC.   He can be convicted.

What is 222 Cr.P.C?

Ans: There are three clauses under this section. They are: i) Though accused charge with several particulars, but few particulars only proved and they disclose an offence, not charged,  ii) Charged Major offence bur evidence proved  minor offence  iii) Attempt to commit offence

What is 222 (1) Cr.P.C?

Ans: A person charged with several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, he may be convicted though he was not charged with it (222(1)). Example: A is charged u/s 407 of the IPC, with a Criminal breach of Trust in respect of property entrusted to him as a carrier. It appears that he did not commit criminal breach of trust u/s 406 IPC in respect of that property, but that it was not entrusted to him as a carrier. He may be convicted of CBT. 394 = 392 +323 394: Robbery causing hurt  392: Robbery    323: Hurt

What is 222(2)?

Ans: A person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it (222(2). Example: A is charged u/s 324 of the IPC, with causing grievous hurt. It was proved that he committed offence u/s 323 simple hurt.  Ex: 324 is charge.

Charge: 324 IPC, Evidence: 323 IPC.   He can be convicted u/S.323 IPC

What is 222 (3) Cr.P.C?

Ans: When a erson is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged (222(3)).Charge: 324 IPC,

Evidence: 324 r/w 511 IPC.   He can be convicted.

GENERAL PROVISIONS OF INQUIRE AND TRIALS :              

Write about Doctrine of Double Jeopardy or Autrefois convict or Autrefois acquits?

Ans: S.330 No man shall be punished twice for the same offence.    

Conditions for its application: Thus person once convicted by court of competent jurisdiction can’t be tried again (A.20 COI).

1. a) The first court must be Competent court.
2. b) If accused is charged with different offence based on same set of facts, the second trial is barred. However, by obtaining consent of State government accused can be tried for the second offence. But accused is supposed to be charged under S. S.221 (1) or (2) Cr.P.C, even on consent of state accused can’t be tried again.
3. c) This rule has no application if accused charged with one offence but his acts resulted to a different offence and the consequences had not happened or were not known to the court at the time when he was convicted.
4. d) A Person discharged u/S.258 Cr.P.C shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate.

What is the procedure to be followed in case accused is a company? 

Ans: As per S.11 IPC accused can be artificial person or body of persons.  Hence, accused must be examined under S.239 or 313 Cr.P.C as the case may be and for such purpose S.305 devised. It says in case corporation is an accused, it can appoint a representative for the purpose of the inquiry or trial. This appointment need not be under the seal of the corporation.  Anything that has to be done i.e, examination, stating or explaining can be made to such accused. However, if such representative of a corporation does not appear, any such requirement as is referred to in sub-section (3) shall not apply.

Who is an approver? In which cases approver technique can be used?

Ans: An approver is an accomplice who has tendered pardon with a view to securing his evidence against the remaining accused. Hence, he is exempted from criminal liability.  The law relating to approvers is contained in S.306, 307, 308 of Cr.P.C. The pardon can be rendered before any magistrate or sessions at any stage of trial but before pronouncement of judgment.  Offences exclusively triable by court of sessions or an offence punishable with more than seven years imprisonment.   IF the approver failed to comply with conditions of pardon, he can be tried for the said offence, but he shall not be tried jointly with any of the other accused. He can be prosecuted for giving false evidence with the sanction of the High Court (S.380).

Can a judge or Magistrate make a local inspection?

Ans: Yes, as per S.310 A court is competent to make local inspection after giving due notice to the parties and a record of relevant facts observed becomes a part of record for appreciation of evidence.

Whether court can summon a witness and examine him?

Ans: As per S.311 any court at any stage of inquiry, trial or other proceeding, summon any person, as a witness or examine any person in attendance or recall or re-examine any witness already examined, if such evidence is necessary for the just decision of the case.

Whether any person can be directed to give his specimen signatures?

Ans: As per S.311A Cr.P.C magistrate can direct any person to give his specimen signature or hand writings if is arrested with respect to that offence.

What is S.313 Cr.P.C?

Ans: This examination shall be conducted soon after the completion of Prosecution evidence provided there is incriminating evidence against the accused. No oath shall be taken. This kind of examination can be conducted at any time. However, it is mandatory upon completion of prosecution evidence.

Whether accused is a competent witness?

Ans: Yes as per S.315 Cr.P.C accused is a competent defence witness if there is a request in writing by the accused.

Whether court can proceed against any person if there is evidence during the trail suggesting he has committed the offence?

Ans: Yes, as s.319 in the course of an inquiry or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

Write on Compounding of offences?

Ans: S.320 of the code permits parties to compromise certain offences. For some offences it is with the permission of the court and some others without the permission of the court.  Compounding amounts to acquittal. S.320 (1) lists out offences which can be compounded without the permission of the court and S.320 (2) Contain offense which can be compounded only with the permission of the court.

During the course of inquiry or trial magistrate has come to know that he has no Jurisdiction to try that case. What he can do?

Ans: As per S.322 case shall be sent to Chief judicial magistrate.

During the course of inquiry or trial magistrate has come to know that case shall be exclusively triable by Court of Session? What he can do?

Ans: As per S.323 he shall commit the case to court of Session (209 Cr.P.C)

If the accused is liable for enhanced punishment in but he can’t inflict the same, what he can do? 

Ans: As per S.324 case shall be sent Chief judicial magistrate having jurisdiction.  This kind of scenario arises in cases of offences against coinage, stamp-law or property i.e, offences punishable under Chapter XII (Of offences relating to coin and Government stamps) or Chapter XVII (Property offences) of the Indian Penal Code. Under these offences accused on subsequent offence is liable for life imprisonment.

When the Magistrate can’t pass sentence sufficient severely?

Ans: As per S.325 case shall be sent Chief judicial magistrate having jurisdiction.

Ex: 494 IPC is triable by magistrate but punishment is less than 07 years.

What is Bail? List of different Kinds of Bails?

Ans: Setting a person at liberty by obtaining security.  Security can be demanded by way of bond with or without sureties. Bailable offence (S.436), Non-Bailable offence (437)  Bail by high court or Court of Session (439), Anticipatory Bail,Interim Anticipatory Bail

Write a note on Bailable offense?

Ans: S: 436 of Cr.P.C talks about Bailable offence: S: 436 says:

Person arrested in a bailable offence is entitled to bail as matter of right. It can be granted by either police or Court.  Person arrested on a bailable offence shall be informed of his right to be released on bail. Accused has the right to be released on bail if investigation is not completed within prescribed days i.e., 90 days or 60 days as the case may be. (i)  The day on which custody was granted couldn’t be excluded it must be included. 

(ii) Detention u/s 57 Cr.P.C is excluded

(iii) When there are no reasonable grounds for believing the accused guilty of a non-bailable offence but there is sufficient grounds for further inquiry, S.437 (2) Cr.P.C says that accused shall be released on bail u/S.436 Cr.P.C. In bailable offence if accused failed to furnish security, he would be continued to be in detention. If such period exceeds 07 days, he can be declared as indigent person and can be released on personal bond.

Write a note on S.436A?

Ans: If any under trial prisoner is in detention for ½ of the longest period of the imprisonment alleged for that offence he shall be released on personal bond without or with sureties. However, if prosecutor objects and court by recording reasons in writing can continue the detention even after the lapse of half of the imprisonment period provided for that offence. It must also be mentioned that in no case a person can be detained for more than maximum period of imprisonment provided for that offence.

Write a note on issues relating to Non-Bailable offense?

Ans: It is Generally dealt by JMFC. In non-bailable cases grant of bail is at the discretion of court. The magistrate shall not grant bail in the following cases:

If it appears that accused is committed an offence punishable with death or imprisonment for life.  2) If the accused is brought before him in a cognizable offence and previously convicted of an offence punishable with death or imprisonment for life or 07 years imprisonment.  3) If the accused is previously convicted in two or more offences which are cognizable in nature and which are punishable with imprisonment for 03 year and which is not less than 07 years imprisonment. However, the above rules not applicable in case persons under the age of 16 years or sick & infirm persons. Such person may be released on bail even if the offence charged is punishable with death or imprisonment for life.  The discretion exercised by the court is guided by law.  Similarly, a person u/S437 (2) can also be released on bail upon special reasons recorded in writing.

As per 437 Mere pendency of TIP would not bar court to grant bail in non-bailable offence, if accused is entitled to bail otherwise.

As per 437 Cr.P.C prosecutor shall be given notice with respect to an offence punishable with imprisonment more than 07 years.  As per S.437 Cr.p.C in the course of proceedings, the magistrate is of the opinion that the accused didn’t commit offence, which is non-bailable in nature, he can be granted with bail.

Write a note on Anticipatory Bail?

Ans: It talks about anticipatory bail provided following conditions exist:

Person must have a reason to believe that he may be arrested on accusation of having committed a non-bailable offence. Thus, there is no need of registration of FIR for A.bail. However, petitioner must be apply for this bail only if it is non-bailable offence. This bail can be filed before high court or courts of session. This is a concurrent jurisdiction. Issues to be considered while granting Anticipatory bail:  a) nature of accusation b) Antecedents of the accused which includes previous conviction in a cognizable case. c) Possibility of applicant flees from justice.

Write a note on Interim Anticipatory Bail?

Ans:  (S.438 (1A): Granting bail pending anticipatory bail application is called Interim Anticipatory Bail. If court grants A.bail it shall give notice to Prosecutor and SP (Police). It can also direct the accused to appear before court.

 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.

75.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.

What is 428 Cr.P.C?

Ans: Set-off of remand period with respect to punishment awarded in the event of imprisonment awarded as a part of sentence.

Proceedings under Section 125 of the Cr.P.C.1973 are in the nature of claim of a civil right of a wife, children and parents upon on any person having sufficient means to maintain-Comment?

Ans: Sections 125 to 128 of Cr.P.C.1973 provide for speedy, effective relief and rather inexpensive remedy against persons who neglect or refuse to maintain their dependent wives, children and parents. Thus purpose of these provisions is not to determine criminal liability but to inquiring about civil right and to ensure their effective enforcement. This section is really intended for ensuring some supply of food, clothing and shelter to the deserted wives, neglected children and parents

The party under obligation is called as respondent but not accused. The case does not deal with an offence and the application for maintenance is not a complaint within the meaning of S.2 (d) of the code. The proceedings don’t end in either acquittal or conviction. The object of the provisions is not punishing him for past neglect, or neglect amounts to an offence. .

The provisions U/S 125 to 128 pertaining to the right of maintenance have the trappings of civil proceedings and projection of input to recover maintenance apparently of civil nature are transplanted in the Cr.P.Cc for proving speedy and imminent relief and immediate sustenance of life to the handicapped segment of the society. With the above it is clear that a proceeding U/S 125 CrP.c 1973 are in nature of the claim of a civil right of wife, children and parents.

What are the conditions to grant maintenance by the Court U/S.125 Cr.P.C.?

Ans: IF the dependent is unable to maintain herself or himself JMFC class 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. It provides speedy effective and inexperience remedy order may be issued against person who refuses to maintain his dependent.
2. This provision applies to person belonging to all religion.
3. JMFC order is not final for more maintenance parties can agitate before civil court.
4. Marriage must be valid one.
5. Children includes both legitimate and illegitimate.
6. Presumption of marriage can be raised in favour of wife u/s 50 of IEA.
7. Wife may be minor or major such allowance shall be payable from the date of the order, if so ordered from the date of application for maintenance.

8.If any person ordered, fails without sufficient cause to comply with the order  any such Magistrate, may, for every order, 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).

9. Time limitation is one year.

10.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.

11. 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.
12. Evidence must be recorded in presence of respondent or his advocate. It must be recorded as summons case.
13. When there is wilful avoiding of summons, court can declare such person as exparty and proceed. 14. Exparty order can be setaside only on showing good ground within 90 days.
14. Court can order for costs also.
15. Court can issue warrant of imprisonment on failure to pay maintenance.
16. The person claiming maintenance must be unable to maintain him or herself.
17. Enquiry U/S 125-128 is not a trial. It can’t be considered as acquittal or conviction.
18. Whole marriage is void in view of S.5 and 11 of Hindu Marriage Act, 1955 is not entitle to relief U/S125.

20.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.

Write a note on Return of Property for Interim Custody?

Ans: 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 u/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.

Is it legally correct to make conviction on the basis of sole testimony of one eye witnesses (i.e.,PW2)? If yes, what is the necessity of many eye witnesses, complainant, inquest Panch, Scene of offence panch, confession and recovery Panch, Medical officer and investigating officer?

Ans: Yes, legally it is not wrong to convict the accused provided his evidence is relevant and admissible.  However, as matter of prudence and safety it is improper to make conviction on such basis. The reason is: the consequence of proof of guilt is taking away the liberty of individual. To put it straight, individual life can’t be put to danger solely on the basis of sole testimony of one individual despite it being relevant and admissible, as the consequences on the society would be far reaching and dangerous. It is a serious halt on the freedom of liberty, creativity and entrepreneurship of the individual and consequently on the growth and development of the society.  Therefore, there is an increasing emphasis on the high level proof to act upon the evidence and thereby hold any person guilty of offence. Therefore to satisfy the high degree of proof, it is necessary on part of the Investigation officer to meticulously collect every piece of available evidence by putting best possible efforts.

Further, the proof required under Criminal law is beyond reasonable doubt and any amount of doubt created by the accused would entitle him to benefit of doubt. So all this makes job of prosecution as a tough and arduous task. Furthermore, in criminal cases generally there would be no documentary evidence and it is the oral evidence that play a lead role in determining the guilt. Hence, I.O besides recording statements of witness conducts scene of offense Panchanama, confession and recovery Panchnama, wound certificate etc. For this purpose Cr.P.C soon after registration of FIR Clothes the police with all powers of Investigation as mentioned under S.154 to 176 Cr.P.C so as to collect the evidence and finally to file the charge-sheet. In the course of investigation I.O can record the statements of the persons who could give some details relating to the offense. Further, he can conduct scene observation report, send the injured to medical aid and obtain report from medical officer, record confession and recovery statement. Finally, file charge-sheet. I.O conducting the investigation should know the values of various kinds of evidence, he collects. Generally, those facts deposed before the court carries substantive value except Dying declaration. All other statements made prior to evidence before the court can have either corroboration or contradiction value only. In other words, FIR, S.164 Cr.P.C, wound certificate, Scene observation, confession and recovery carry only either corroborative or contradictory value only. Just because they carry either corroborative or contradictory vlaue only, IO can’t take them lightly. If IO don’t undertake these exercises, the evidence of those witness will be treated as improvements and can’t be acted upon safely. The meaning of substantive value is that evidence upon which court can act upon for determining right or liability.

Complainant: Two basic things expected from Person who is close to the deceased would be first, search for body and second, reporting matter to police at the earliest point of time to see that person responsible for offence is get punished. As result, FIR occupies prominent place in criminal trial as it is the document which set criminal in motion. Hence, FIR has corroborative and contradictory value, if such person come and deposes the same. For this reason if a person report the death of close relative despite knowing it 10 0r 20 years, later even though it’s being true it is not safe to act upon.

Eye witness: S.134 says evidence must be weighed but not counted as such one solid eye witness evidence to convict the accused, however, when there are several available person choosing one and neglecting remaining is seen a fishy action. Hence, to show consistency, coherence, no discrepancies in prosecution version and to give weight to prosecution story as many witness will be examined to support prosecution version.

161 Cr.P.C Statements: In all the criminal cases police record the statements of witness, though they don’t have either substantive or corroborative value. Because any witness who speak before the court but whose statement is not recorded by police hardly carries any value as such his evidence before the court is treated as omission. This makes I.O to record the 161 Cr.P.C statements of witness ensuring that all the important details which that particular witness is examined by him with respect to the offence under investigation so as to see there would be no material omission or contradictions.

Inquest: It tells apparent cause of death. The person who died unnaturally will have multiple injuries or unusual symptoms over the dead body of the deceased.   This is readily available evidence as such not conducting inquest raises doubt about the prosecution for not securing such important evidence. Even the evidence of PME or injury certificate issued by doctor will have great significance as it suggest real cause of death and which can be easily secured.

PME or Wound report: The wound certificate will be issued by competent Medical officer. It spells about name of person examined, time and date of examination, nature and kind of injury. It shall also specify the time when injury must have occurred and weapon with which it is caused. Its value is corroboration or contradiction. It has no substantive value.

Scene of offence or Crime detail form Panch: It is but natural that the place where offence is committed will be in a very unusual one and it obviously contains certain marks suggesting occurrence of offence. Therefore, it is but natural to expect to collect such evidence in a document form with the aid of independent and respectable local persons. Hence, Inquest and CDF has corroborative and contradictory value if person comes depose the same. For this reason absence of CDF or inquest report is looked with grave suspicion. In fact this is another important action police undertake soon after investigation is take upon i.e., visiting scene and drawing the rough sketch and conduct scene observation panchnamma in the presence of independent local inhabitants. The object behind this activity is to show the court that there occurred an offense at a particular place (mode and manner).

Confession and recovery Panch: S.27 permits discovery of physical material consequent to the statement of accused would be admissible, therefore, whenever physical object connect to offence is discovered consequent to accused statement it occupies prominent place in the evidence. It has corroborative and contradictory value. In India in 99% cases police use this section.

Investigation officer: Examination of I.O is not necessary as he is not manner connected to the case except being collection of evidence. However, when there is a material contradiction in the prosecution it is always necessary to get them clarified with the aid of IO who recorded the statements; otherwise such contradictions have no value.

Charge-sheet: It carries no value. It is the case summary setting out the details about how report has come and it time and date. Consequent to it actions undertake by the IO in the course of investigation. It also set out the detailed description of witness examined by him and property seized.

What is Jurisdiction? Explain different kinds of Jurisdictions?                                              

Ans: Jurisdiction: Jurisdiction within the meaning of the code means the power of a criminal court to try an offendor. Under IPC we have 03 kinds Jurisdiction They are: 1) Personal 2) Extra Territorial 3) Admiralty.

Personal Jurisdiction: S.2 IPC says every person shall be liable to be punished for every offense committed within India. The physical present is not necessary. Thus every person, citizen and alien, alike will come under this jurisdiction. The persons exempted from personal jurisdiction are: Presidents, Governors, judges, Ambassadors their families, secretaries etc.,

Extra Territorial Jurisdiction: S.3 says An Indian citizen if committed offence outside India he is deemed to have committed an offence in India. It is irrelevant whether the same is offence in that foreign territory. He can be tried in India.

Admiralty Jurisdiction: High seas is a no man‘s territory. The jurisdiction to try offences committed on the high seas is known as Admiralty Jurisdiction. When a ship sailing on the high seas it is considered to be a floating in the land of that nation whose national flag it is flying. So if the offence is committed on the high seas, if the ship is flying Indian National Flag, he will be tried in India under admiralty Jurisdiction. Any person in any place without and beyond India committing offense targeting a computer resource located in India.

Whether a company can be prosecuted under IPC?

Ans: Yes, as per S: 11 IPC says person includes any company or association or body of persons, whether incorporated or not. The word person includes artificial or juridical persons. Originally, it was opined that only companies can’t be prosecuted as it has no physical body or mind of its own. Moreover, the concept of vicarious liability is not applicable under Criminal law. However House of Lords decision in Lennard Carrying Co.Ltd v. Asiatic Petroleum Co.Ltd, altered the view.

What are the essential elements of an offence? Whether Guilty mind (Mensrea) is essential for all offences?

Ans: The four elements that constitute offence under IPC are: a) Human Being     b) Guilty intention   c) Illegal act or omission     (d) injury to another human being.

The illegal act or omission is punishable only if it coupled with guilty mind.  (actus non acit nisi mens sit rea). However, with advent of welfare state and consequent statutory offences, there is change in the judicial perception. Now, it is a settled proposition that mensrea is an essential element of every offense even under modern penal statue. However, if law either expressly or by necessary implication excludes, it is deemed an offence even though offence is unsupported by guilty mind. Similarly, under the following cases even if there is no specific exclusion of guilty mind, a person can be punished.

1. Acts which are not criminal in any real senses, but in public interest they are prohibited with a penalty. All public nuisances
2. Although proceedings are criminal in form; it is only a summary mode of enforcing a civil right. The two leading cases on this subject are: R v. Prince & R v. Tolson and State of Maharashtra v. M.H. George.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Which stage of an offense is punishable under IPC?

Ans: For every offense 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 within the same section. Ex:Waging war (s.121), Sedition (s124-A) Dacoity (s.391) .

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.

Whether word Mensrea is mentioned u/ IPC?

Ans: No, the word mensrea has not been expressly mentioned under the code but it is implied through various words. They are fraudulently, dishonestly, voluntarily, rashly and negligently.

What is meant by Wrongful gain and Wrongful loss?

Ans: S: 23: of IPC defines Wrongful gain and wrongful loss. Wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss is loss by unlawful means of property to which the person losing it is legally entitled. The gain or loss must be material and not remote.

Explain about the term fraudulently and dishonestly?

Ans: S: 25 of IPC talks about fraudulently. The expression defraud involves two elements, viz., deceit and injury to the person deceived.

S: 24 talks about dishonestly. It says whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly.

What is the difference between fraudulently and dishonestly?

Ans: 1. A dishonest act is not necessarily a fraudulent act and whereas Fraudulent involves deception necessarily while dishonestly does not.

2. Dishonestly necessarily involves the idea of injury to the property as well as injury of every other kind i.e., injury to body, mind or reputation.
3. A dishonest intention is intention to cause loss of specified property belonging to a particular person. Fraudulently on the other hand refers to injury in respect of unspecified property, to unknown and unascertained persons.

Deception is essential for fraud but not for dishonesty. An act may be dishonest & yet not fraudulent.

Deception: the act of deliberately making some one believes something is true.

What is the term mean voluntarily?

Ans: S.39 defines this term. In ordinary senses the word voluntarily means an act done without influence or compulsion. The words as used in S39 takes into account not only intention but also knowledge and reasonable grounds of belief.

What is meant by rashly, negligently and Good faith?

Ans: The words rashly and negligently have been used in sections 279, 280, 283, 289, 304A, 336 to 338. Rashly means doing of an overhasty act without due deliberation and caution. Negligence means not taking due care and caution or precaution required by law. According to S.52 of IPC the term Good faith means doing any act due care & caution. It is always a question of facts to be determined in accordance with the proved facts & circumstances of each case.

Who is a Public servant?

Ans: 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.

What is meant by Counterfeit?

Ans: According S.28 a person is said to counterfeit who causes one thing to resemble another thing, intending by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practiced. Explanation: I: It is not essential to counterfeiting that the imitation should be exact.

Explanation: II: When a person causes one thing to resemble another thing and the resemblance is such that a person might be deceived thereby, it shall be presumed, until contrary is proved that the person so causing the one thing to resemble the other thing intend by means of that resemblance to practice deception or knew it to be likely that deception would thereby be practiced.

What is the term meant illegal and injury?

Ans: 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.

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

What is the term mean Harbour?

Ans: According to S.52A, defines the term Harbour. It says 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.

BODILY OFFENCES:

What is Force? (S.349IPC)

Ans: Changing State of thing or person from rest or motion or motion to rest in any of the ways: 1) Bodily power, 2) With aid of substance 3) By inducing any animal to move

What is Criminal Force? (S.350 IPC)

Ans: Intentionally using force against other without his consent with an intent to commit offence or cause injury, fear or annoyance to that person.

Ex: Karan incites a dog to spring upon Shekar, without Shekar’s consent. Here if Karan intends to cause injury, fear or annoyance to Shekar, he uses criminal force to Shekar.

What is Assault? (S.351)

Ans: If the accused made a gesture or preparation to use criminal force and same the same was made in the presence of the person in respect of whom the said gesture or preparation is made. And the accused by the use of such force or gesture intends that would cause that other person to apprehend that criminal force and it did cause in the mind of the other person, then offence assault is said to have been committed.

Ex: Aneel begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby causes Shekar to believe that he is about to cause attack Shekar. Aneel has committed an assault upon Shekar.

What is Wrongful restraint and Wrongful confinement?

Ans: S.339 says Wrongfully Obstructing or preventing a person to move in a direction in which he has right to move. S.340 says Wrongfully Obstructing or preventing a person to move  beyond certain circumscribed limits direction in which he has right to move.

What is kidnapping and Abduction? (S.359IPC)

Ans: S.359 says Kidnapping means taking or enticing any minor (less than 16 years for a male and less than 18 years for a female) or any person of unsound mind, out of the keeping of, and without the consent of a lawful guardian.

S.362IPC says Abduction means compelling by force or inducing by any deceitful means any person to go from any place.

What is Hurt and Grievous Hurt?

Ans: Hurt is defined under S.319, it says Whoever cause bodily pain, disease or infirmity to any person is said to cause hurt.

Grievous Hurt (S.320): The following kinds of hurt only designated as grievous.

First- Emasculation

Secondly-Permanent privation of the sight of the either eye

Thirdly- Permanent privation of the hearing of either ear

Fourthly- Privation of any member or joint, or

Fifthly- Destruction or permanent impairing of the powers, of any member or joint

Sixthly- Permanent disfiguration of the head or face

Seventhly- Fracture or dislocation of a bone or tooth

Eighthly-Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain, or unable to follow his ordinary pursuits.

PROPERTY OFFENCES:

What are the elements of Offence of theft?

Ans: Theft: In order to constitute offence under this section following ingredients must be proved :

(i) Moving a movable property of a person out of his possession without his consent.

(ii) The moving being in order to the taking of the property with a dishonest intention. Thus the absence of person‘s consent at the time of moving and the presence of dishonest intention in so taking and at that time, are the essential ingredients of the offence. Temporary retention of the property is an offence.

What are the elements of Extortion(S.383)?

Ans: The person charged must intentionally put the victim in fear of injury either to himself or some other person whom victim is interested and thereby dishonestly induces the person to deliver property or valuable security.

What is the difference between theft and extortion?

Ans: Theft & extortion (S.378, 379 383 & 384): a) In the theft the property is taken away without the consent of the owner. Extortion is committed with consent of the owner which is not given freely.

B) In the case of theft only the movable property can be a subject matter of theft. In the case of extortion movable as well as immovable property may be a subject matter of theft.

c) In case of theft there is no element of force. In extortion the property is obtained by putting a person in fear of injury either to himself or another to deliver the property.

D) Theft becomes robbery when the offender while committing theft causes to any person death or hurt or wrongful restraint or attempt to cause the same. Extortion becomes robbery when the offender while committing extortion puts any person in fear of instant death or instant hurt or instant wrongful restraint to that person.

E) In theft there is no deliver of property unlike in extortion.

When theft is robbery?

What is the difference between robbery based on theft & 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.

What is the difference between Robbery and Dacoity?

Ans: 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.

What is cheating?

Ans: 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 and 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 the 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.

What is the difference between Cheating & Extortion?

Ans: Section 415, & 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.

What is meant by Criminal breach of trust?

Ans: In order to constitute the offence, it must be established that the accused was entrusted with the property of another and that he dishonestly misappropriated it or converted it to his own use. That is to say, it must be proved that the beneficial interest in the property in respect of which the offence is alleged to have been committed was vested in some person other than the accused, and that the accused held that the property on behalf of that person.

What is meant by Criminal misappropriation of property?

Ans: There must be dishonest misappropriation or conversion of property for a person‘s own use; & such property must be movable.

Ex: Karan takes the property belonging to Shekar out of Shekar‘s possession in good faith believing at the time he takes it, that the property belongs to him. Karan is not guilty of theft, but if Anil after discovering his mistake misappropriates the property to his own use, he is guilty of an offence under this section.

What is stolen property (S.410)?

Ans: 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.

What is Criminal trespass (S.441)?

Ans: 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.

What is House trespass and Lurking House Trespass?

Ans: 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 tress pass: 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).

What is House Breaking?

Ans: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.

What is forgery?

Ans: 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.

Write a note on Perjury?

Ans: 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.

What is meant by fabricating false evidence?

Ans: 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.

MARRIAGE OFFENCES:

What are the offences relating to marriage?

Ans: The offences relating to marriage are dealt under Section 493 to 498.

1. S.493 IPC: If a Man by way of Deception marries a woman knowing that she is not thereby lawfully married and had sexual intercourse with her, he is punishable.

2. S.496 IPC: If a male or female undergoes a marriage ceremony knowing that she or he is not thereby lawfully married and underwent this marriage either dishonestly or fraudulently is punishable under this section. Thus the offender can be Male of female who married the vitim.

3. Bigamy: 494 to 496: Marrying again during the subsistence of marriage by any of the spouse is known as Bigamy. To this rule there are three exceptions:     (i) if the marriage is dissolved by a court of law                      (ii) or if nothing is heard of other spouse for a continuous period of seven years or                                            (iii) it is not contrary to any personal law.

4. Adultery: 497: If a man has a sexual intercourse with a lady, having reason to believe that the lady is wife of another person, it amounts to committing the offence of adultery. It is also be stated that such sexual intercourse must be without the consent or connivance of the husband of the lady and the sexual intercourse doesn‘t amount to the offence of rape. The male offender alone has been made liable to punishment.

5. Seduction or Criminal elopement: 498: Taking or enticing away a married woman for the purpose of having sexual intercourse with her is known as seduction. The taking or enticing should be from the control of the husband or any other person who is having control on behalf of the husband. The man is liable for the offence even if the woman voluntarily accompanies him.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  What are the ingredients of 498A of IPC?

Ans: Section 498A defines as follows: Whoever being the husband or relative of the husband of women , subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation: For the purpose of this section Cruelty means:-

1.  Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause such grave injury or danger to life limb or health (whether mental or physical) of the woman;
2. Harassment or coercion of the women to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Section 498A can be invoked whether the woman is alive or dead. The period of her married life is not material. But when the women dies of cruelty by committing suicide and the prosecution wants to invoke 113A of IEA to make the husband or his relation liable as abettor, the suicide must have been committed within seven years of marriage.

What is Defamation?

Ans: 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:

a) If imputation harms the reputation of that dead person, if living.

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.

What is meant by Criminal intimidation?

Ans: 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 t 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: Rajeev for the purpose of inducing Deepak to desist from prosecuting a civil suit threatens to burn Deepak’s house. Rajeev 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.

Write a short note on Attempt to commit offence?

Ans: According to S. 511of IPC Whoever attempts to commit offence punishable by this code with imprisonment for life or imprisonment shall, where no express provision is made by this code, for the punishment of such attempt be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or as the case may be ½ of the longest term of imprisonment provided for the offence or with such fine as its provided for the offence, or with both.

What is mean by Unlawful Assembly?

Ans: Unlawful Assembly (149IPC): The principle behind this section is to discharge disorderly assemblage of men and thereby preserving the public peace. An unlawful assembly is an assembly of five or more persons if their common object is:

1. To overawe by criminal force or show criminal force to central or  any state government or parliament or legislature of any state or any public servant in exercise of the lawful power of such public servant or

2. To resist the execution of any law or legal process

3. To commit any (i) mischief      (ii) criminal trespass or other offence

4. By means of criminal force or show of criminal force or obtain possession of any property of any person or deprive any person a right of way, the use of any water, other incorporated rights of which he is in possession or enjoyment or to enforce any right or support right or to compel any person by means of criminal force or show of criminal force to do what he is not legally bound to do or omit to do what he is legally entitled to.

Write difference between Rioting and Affray?

Write a short note on General Exceptions?

Ans: Section 76 to 106 of the IPC deals with general exceptions. These exceptions are categorized in the following ways:

1. Mistake of fact: Law excuses even if one commits an offence due to mistake of fact or believing that he is justified under law but not by reason of mistake of law. Mistake of law ordinarily means mistakes as to the existence of any law on a relevant subject. Example: In R v/s Tolson Tolson was acquitted of bigamy as what she did on a reasonable belief that her husband had died. So her act of remarriage was mistake of fact. Mistake of fact may be happened due to forgetfulness, ignorance, imperfect information. To get the benefit of these sections, the accused must have acted in good faith.

2. Judicial Acts: Offence committed by a judge when acting judicially in the exercise of any power which he is, or which in good faith he believes to be given to him by law is excused. This benefit applies to persons who act under the court judgment or order.

3. Accident: Accident means an unintentional or unexpected act. If an offence is committed by a person due to accident but without any criminal intention or knowledge he is exempted from criminal liability. Ex: A is at work with hatchet, the flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A his act is excusable and not an offence.

4. Necessity: If an act is done voluntarily but in good faith and without any criminal intention to cause harm, for purpose of preventing a greater evil. Example: A, in great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Thus harm is excused as it was found to be greater danger and it was imminent as to excuse A’s act. The land mark judgments:R Vs. Dudley Stephnes (1884)14QBD. Bishamber Vs.Roomal AIR 1951 All.H.C: Necessity is a question of fact.

5. Infancy: It provides exemption to children from criminal liability. It is of two kinds. If a child below seven years commits an offence he will be fully exempted from criminal liability. It is presumed that the child below the age of seven years cannot have mensrea (Doli incapx). However, if the child is above seven years and below twelve years he is exempted to liability subject to one condition i.e., he/she does not have sufficient maturity of understanding.

6. Unsoundness of mind: S.84 IPC talks about it. The term unsoundness of mind means incapability of distinguishing right or wrong. This situation may arise due to variety of reasons. They are: Insanity, mania, hallucination. It must be mentioned that the term unsoundness of mind is synonymous to insanity. A lunatic, Idiot, person with mental sickness are also called as insane persons. Insanity is a kind of mental derangement.

S.84 says if a person of unsound mind commits any offence punishable under IPC is exempted from criminal liability. As per S.105 the person who claims benefit of S.84 burden lies on him. The rules relating to insanity are explained in R v. M.C. Naughten case:

1) Every person is supposed to be sane. Thus every one possesses capability of distinguishing right and wrong.

2) It must be established by the accused that at the time of commission of occurrence of offence he was insane or the person of unsound mind.

3) Insanity or unsoundness of mind is always a question of fact.

4) It is for the judge to decide whether person is insane or unsound at the commission of offence.

7. Doctrine of Consent: Consent refers to an act of reason made after due deliberation and thought by weighing good and bad, pros and cons. It can be studied from five kinds:                                                                   I. Act done by consent in good faith for a person’s benefit (S.88).                                                                                     II. Act done in good faith for benefit of child or insane person (S.89).

           III. Legal Consent (S.90),

           IV. Implied consent (S.92)

Consent: An act is not an offence if harm is caused to a person of eighteen years above provided consent is given. However, such consent shall not be given so as to cause either death or grievous hurt.

1. Act done by consent in good faith for a person’s benefit (S.88): If an act is not intended to know to be likely to cause death, done in good faith by consent of the person to whom harm is caused for his benefit is not an offence. Thus this section provides protection to doctors and surgeons. If the doctor is not qualified or applies the wrong medicine the consent is not one obtained in good faith.
2. Act done in good faith for benefit of child or insane person (S.89): S.89 extends of IPC extends the provisions of S.88 to the cases of infants under 12 years of age and to person of unsound mind when consent is given by their parents or guardians within the permissible limitations.
3. Legal Consent (S.90): S.90 IPC the consent is not legal: a) Consent given by a person under fear or injury or under a misconception of fact; b) Consent by insane or intoxicated person ; c) Consent by a child under 12 years age.
4. Implied consent (S.92): If a harm is caused in good faith to a person without that person’s consent under the following circumstances:-a)If it is impossible to obtain that person’s consent. b)If that person is incapable of giving consent (being an infant or a lunatic). If no guardian or other person in lawful charge of him is present, ay harm caused to such a person for his benefit under the above circumstances is justified u/S.92IPC.

Write a short note on Right of Private defence?

Ans: S.96 to S.106 of IPC talks about right of private defense (RPD). If an offence is committed in exercise of right of private defence (RPD) he is exempted from criminal liability. RPD is available not only against one’s own body and property but also against others body and property. However, in case of property offences it applies to certain offences like: Theft, Mischief or Criminal trespass or in attempt to commit to those offences.  It can be exercised even if may cause any harm to insane or child or intoxicated person or one suffering under misconception of facts.

Limitations: In exercise of RPD one can’t cause more harm than necessary. There is no RPD if assistance of public authorities can be secured.  The RPD against body commences as soon as reasonable apprehension of danger to body arises and RPD continues to exist as long as it exists.

Right to cause death in case of offence bodily offences: In exercise of RPD one may cause death in certain Circumstances:  Assault which reasonably cause apprehension of death or grievous hurt or rape or unnatural offence or kidnapping or abduction or wrongful confinement if RPD is not exercised.

Right to cause death in case of offence Property offences: 1) Reasonably apprehension in mind that death or grievous hurt would be consequence if RPD is not exercised.

2) Robbery, house-breaking by night, mischief by force to any building, tent or vessel used for the purpose of dwelling or custody of the property. In this category apprehension in the mind of person exercising RPD is not necessary.    .

Commencement of RPD in case of body and its duration:

Theft: It continues and ceases till the offender retreat (move away) with the property or if property is recovered before retreat. If assistance of public authorities is obtained it ceases.

Robbery: It continues when the offender caused or attempts to cause any person death or hurt or wrongful restraint or as long as the fear of instant death or hurt or personal restraint continues.

Criminal trespass or mischief: The right continues as the offender continues to be in the commission of criminal trespass or mischief.

Write a short note on abetment?

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

A person is said to abet another to do a thing if he instigates him, or if he engages with one or more others in any conspiracy of if he intentionally aids by any act or illegal omission, the doing of that thing.  Thus offence of abetment can be committed by instigation, conspiracy or intentional aid. The abetment of abetment is also an offence.  A person who abets the commission of the offence is known as abettor.  Person who acts in accordance with direction of abettor is called abettee. Further, Doing anything in order to facilitating the commission prior or at the time of commission of the act is said to be abetment.

The abetment of the illegal omission of an act may amount to an offence although is not bound to that act. Even though abettee is a minor or unsound person, abettor is said to commit the offence if abetment. It is sufficient he is connected with such illegal act or connection. To Constitute abetment of conspiracy, the abettor need not concert (performance) the offence with the person who commits it. It is sufficient if he engage in the conspiracy in pursuance of which the offence is committed. S.110 says if the intention or knowledge of the person abetted is changed, it doesn’t affect the liability of the abettor.

S.111 says if the act is abetted and a different act is done, the abettor is liable provided that act done was a probable consequence of the abetment. S.112 says if additional act apart from the act abetted, the abettor is liable for both the offences.  S.113 says if one act is abetted but different act is resulted abettor is liable provided he knew that the act abetted was likely to cause that effect.

S.114 says if the abettor is present at the scene where the offence is committed, he will be treated as principal offender.

 Difference between Abetment by conspiracy and Criminal Conspiracy?

Distinguish between Common object & Common Intention (S.149 & 34 IPC)?

 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.

What is culpable homicide? When it amounts to murder?

Ans: Culpable homicide means one human being killing 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 known as simply murder.

b) Culpable homicide not amounting to murder (s.299 IPC). Criminal intention or knowledge is the necessary ingredient. However, the difference 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. There is a third form of culpable homicide where death follows from rash or negligent act i.e. crushing a man to death by rash driving.

How can we say culpable homicide amounts to murder?

Ans: S.300 of the IPC says culpable homicide becomes murder under following circumstances:

Firstly, 300(1) The act itself caused death and it is done with the with the intention of causing death.  Ex for M: A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

Secondly, 300(2) The offender intentional caused bodily injury and it is likely to cause death. Further, he has knowledge that injury is adequate to cause death having regard to health status of the victim.

Ex: A person, who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Here offender has knowledge about health status of the victim.

Thirdly, S.300(3)The offender intentional caused bodily injury and it is likely to cause death.  Further, the injury in­flicted is sufficient in the ordinary course of nature to cause death. if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;

Fourthly, 300(4) The offender knows that act he has caused is likely to cause to death. Moreover, the act he has caused is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. Furthermore, he should commit such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Ex: A without any excuse fires loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

What is meant by injunction? What are various kinds on injunctions?

Ans: Injunction is granted to prevent the breach of an obligation existing in favour of the plaintiff and against the defendant. The term obligation means a duty enforceable by law.  They can be classified into following kinds:

Basing on Nature: (a) Prohibitory   (b) Mandatory

Basing on time:     (a) Permanent or Perpetual     (b) Temporary

Other:                     Inherent Jurisdicton to grant Injunction.

Prohibitory Injunction: If an injunction prohibits the commission or continuance of an act it is known as prohibitory injunction.

Mandatory Injunction:  If an injunction prohibits the defendant to do a particular act and compel him to restore things to former condition or to do require acts.

Permanent or Perpetual: It is granted after the trial and forms part of the decree holding good without any time limit.It is governed by Specific relief Act,1963.

Temporary Injunction: It is an injunction granted to preserve the status quo pending trial and judgement. They are governed by O.39 R 1 and 2 C.P.C 1908.

(3) Inherent Jurisdicton to grant Injunction

What are the grounds for granting Permanent Injunction?

Ans: It is dealt u/S.38 of Specific Relief Act.The conditions are like this. Injunction is granted to prevent the breach of obligation existing in favour of the plaintiff and against the defendant. The term obligation means a duty enforceable by law.

Additional conditions: 1) There  exists no standard to ascertain the actual damage caused, or likely to be caused, by the invasion.

2) If  the invasion is such that compensation in money would not be affordable relief;

3) Injunction is necessary to prevent multiplicity of proceedings.

When Permanent Injunction shall not be granted?

Ans: S.41 says when Injunction shall not be granted. An injunction cannot be granted:-

(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings.

(b) To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought.

(c) To restrain any person from applying to any legislative body.

(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter.

(e) To prevent the breach of a contract the performance of which would not be specifically enforced.

(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will  be a nuisance.

(g) To prevent a continuing breach in which the plaintiff has acquiesced;

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court.

(j) When the plaintiff has a no personal interest in the matter. S.42:

If the contract consists of positive agreement and negative agreement, merely because court enforce positive agreement it doesn’t bar the court to enforce the specific performance of negative agreement.  However, plaintiff has to perform his part of contract so far as it is binding on him.

What are the grounds for granting Temporary Injunction? 

Ans: As per O.39 rule.1 CPC Temporary Injunction can be granted for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit.

It can be granted even against the plaintiff, if the Property in dispute is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree. As per Rule 2, the court can grant Temporary injunction restraining the defendant from repetition or committing continuance breach of contract or other injury provided suit is filed for such purpose.

Remedy available in the event of violation: As per Rule 2A: If there is disobedience or breach of order granted rule.1 & 2, the court may order attachment of property and may also order such person to be detained in civil prison for a term not exceeding three months.

The attachment made under this order shall not be in force for more than one year. If the disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation to injured party and balance to the party entitled.

What are the basic principles governing grant of temporary injunction? Elaborate.

Ans: The main object of granting temporary injuction is to protect the interests of the parties pending disposal of the suit.  Principles for granting or refusing to grant are:

1) Prima facie Case        2) Balance of Convenience       3) Irreparable loss

1) Prima facie case: The Petetioner has to make out a prima facie case. The Injunction petition allegations shall establilsh that act complained is a violation of right or is atleast an act which if carried into effect will necessarily result in violation of right.

2) Balance of Convenience: It means upon measuring convenience and inconvenience of the parties and the same may be equated with what had been left out after weighing the primafacie case of both sides.

3) Irreparable Injury: The petetioner will suffer irreparable injury in the event of non-granting injunction. Irreparable injury is one which is substantial which cannot be remedied by damages.

4) Conduct of the petitioner: Injunction being equitable and discretionary relief conduct is an important factor to be seen. The conduct can assessed from the facts like lack of bonafides, fraud, misrepresenation, suppression of material facts, acquiescence or delay.

Explain that when injunction can be granted to restain encashment of unconditional bank guarntee? 

Ans: The act of court shall not hamper free flow of financial transaction especially connected to the bank. Hence, generally, court should not interfere by way of injunction to prevent the beneficiary of a bank guarantee from enforcing the same. However, this principle cannot be extended to protect an unscruplous seller when there is a fradulent transaction and if fraud is pleaded and proved primafacie, temporary injunction can be granted in such a case.

Explain whether a mandatory injunction can be granted on an interlocutory application?

Ans: Mandatory Injunction is defined as an order requiring the defendant to do some positive act for the purpose of putting an end to wrongful state of things created by him or otherwise in fulfillement of his legal obligations.

Example: An order to pull down a building which he has created to the obstruction of the plantiff’s right etc.,

According to O.39 R1 and 2 R/W CPC the court has power to pass an order even in mandatory form if it is necessary to preserve the suit property from being destroyed or if such order is required to maintain status quo. If a mandatory injunction is granted at all on a interlocutory applicatioin, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. It was held by court in Nandan Pictiurews v/s Art Picturesd Ltd and others AIR 1956 CAL.  The court should exercise this power sparingly and with due care and caution.

Whether court has inherent powers to grant injunction?

Ans: Yes.  The inherent powers u/S.151 CPC can be exercised only in the absence of express provision under the Code.  As S.94 empowers the court to grant temporary injunction only in circumstances covered under O.39 CPC, the court can grant Temporary Injunction under inherent powers in those circumstances which are not covered under O.39 CPC. The party has a no right to insist the court to exercise the inherent jurisdiction and the courts exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. Monhar lal Chopra v/s Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC532.

What is meant by Specific Performance?

Ans: The term specific performance means demanding to do what was actually promised by the defendant.

Whether relief of Specific performance can be refused even though plaintiff could successfully establish his right under the contract?

Ans: S.20 says court refuse to grant decree for Specific performance even though plaintiff could successfully establish his right under the contract.  Thus relief of Specific performance is discretionary in nature. However, this discretion shall be exercised basing on well recognised principles and polices. They are:

1. If contract is specifically enforced it gives unfair advantage to the plaintiff over the defendant.
2. That the non-performance of the contract doesn’t involve any hardship to the plaintiff and whereas it cases hardship to the defendant.
3. It is inequitable to enforce specific performance.

What are the essential allegations to seek decree for Specific Performance?

Ans: The relief of Specific Performance is a discretionary and equitable one. The conditions to seek specific performance of contract are laid down S.10 of the Specific Relief Act, 1963.  They are: There exists no standard to ascertain the actual damage caused by the non-performance of the act agreed to be done or that the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation: If the breach is relating to transfer of immovable property court shall presume that compensation in money is not adequate relief.  Similarly in case of movable property which is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market. Further, if the property is held by the defendant as the agent or trustee of the plaintiff.

Readiness and Willingness:  Regarding explanation (ii) of Cl.(c) of section 16, the position is settled that the plaintiff should not only aver but also to prove his continuous readiness and willingness to perform his part of contract at all material times, right from date of contract till the date  of decree/execution of sale deed.  Some courts are of the opinion that this should be specifically pleaded in the plaint.

What are the grounds to refuse relief of Specific Performance?

Ans: The relief of Specific Performance is a discretionary and equitable one. The conditions to refuse specific performance of contract are laid down S.14 of the Specific Relief Act, 1963.  They are: A contract for the non-performance of which compensation in money is an adequate relief; A contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or violation of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; A contract which is in its nature determinable; A contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

Whether relief of Specific Performance can be refused on personal grounds?

Ans: Yes, they are listed under S.16 of the Act. They are:

1. Plaintiff is not entitled for compensation for breach of the contract.
2. Plaintiff is incapable of performing his part of the contract.
3. Plaintiff is incapable for performing a part of the contract.
4. Plaintiff violates any essential term of the contract which has to be performed by him.
5. If plaintiff commits fraud.
6. Plaintiff wilfully act in variance or in subversion of the relation intended to be established by the contract.
7. That the party who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms, the performance of which has been prevented or waived by the defendant.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Whether Specific performance can be sought even though plaintiff has no title to the property?

Ans: Yes, as per S.13 of the Act says even though the property is purchased from the person who has no title or defective title, the buyer has following rights:

1. If the seller acquires title in the manner and mode dealt u/S.43 of the Transfer of Property Act, the buyer can compel the seller to execute the sale deed.
2. If the concurrence or consent of some other is necessary for validating the title, the buyer can compel the seller to obtain the concurrence of those persons upon such request by the vendor those persons shall give their concurrence.
3. If the vendor professes to transfer unencumbered property but it turns out to be encumbered property and mortgage amount is less that the purchase money the buyer can compel the seller to redeem the mortgagee and get a valid discharge.

4. If the seller files a suit for specific performance but it was dismissed due to lack of title or imperfect title, the buyer has a right to seek for return of any deposit he had made along with interest.

What is the time limitation for filing suit for Specific performance?

Ans: Article.54 of the Limitation Act sets out the time period for filing suit for specific performance. The date of limitation shall be counted from the date on which the defendant refused to perform his part of contract. It is a settled proposition of law that before initiating suit for specific performance written notice shall be given to defendant demanding his performance.   If time is not specified for performance o of the contract, it can be performed within the reasonable time (S.46 Contract Act).

If the parties specify the time period and there is an intention is that it must be performed within the time frame and same is also evident from the terms of the contract that contract is known as time is the essence of the contract (S.55 Contract Act). Generally, it is presumed that contract to transfer of immovable property time is the essence of contract. If time is essence of contract non-performance within the stipulate time make the contract voidable one.

The time limitation for permanent injunction is three years. The three years period counted from the date of threat to the right of the plaintiff fear of invasion to the right of the plaintiff.

1. Define decree and order?

Ans: 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. 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.

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.

S.2(14) of CPC says Order means the formal expression of any decision of a civil court which is not a decree. An order can be passed at any stage of the suit. Order is not appealable unless it is the one specified under S.104 CPC.

2. 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.

Necessary Party: Parties whose presence is essential for the adjudication of the claim and in whose absence a decree can’t be passed. Thus presence of necessary party is indispensable for the disposal of the suit and as such non-joining of necessary party is fatal to the case.

Proper Party Parties in whose absence an effective decree can’t be passed. Thus his presence is necessary for complete and final adjudication of suit claim. Lack of proper party is not fatal to the suit.

Joinder of Parties (OI rule.1): It refers to an idea that all person who are proper and necessary parties to the suit must be made as parties to the suit. If either the proper or necessary parties are not made as parties to the suit such suit is called as non-joinder of parties. If persons other than necessary or proper parties are joined as parties such suit is called misjoinder of parties.  All objections relating to non-joinder and misjoinder of parties shall be raised at the earliest point of time or before settlement of issues. Otherwise, they are deemed to have been waived.

3. 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.  Similarly, 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. The person under disability shall not be added as a plaintiff suing without a next friend or as the next friend of a plaintiff without his consent. The proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

4. Write a note on Cause of Action?

Ans: Cause of action: Bundle of facts which entitles plaintiff to a relief in the 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 R.3 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 the 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 causes of action shall be taken before settlement of issues.

5. Write a note on rejection of plaint and return of plaint?

Ans: Rejection of plaint is dealt under O.7 Rule.11. It is a deemed decree as per s.2(2) of CPC and therefore it is appealable. Whereas O.7 rule 10 talks about return of plaint and it is only an order and it is appealable.

O7 rule 1- to 10B:- Where at any stage of the suit, the court finds that it has no jurisdiction, either territorial or pecuniary or with regard to the subject matter of the suit, it will return the plaint to be presented before proper court as per rule 10(1).As per rule 10(2), the judge while returning the plaint should make endorsements on it regarding:- 1) the date of presentation

2) the date of return

3) The name of the party presenting it and

4) reasons for returning it.

6. What is Jurisdiction & kinds of Jurisdiction & objection as to Jurisdiction?

Ans: Jurisdiction: may be defined to be the power or authority of a court to hear and determine a cause, to adjudicate & exercise any judicial power in relation to it.

Territorial: Areas within which court is permitted to adjudicate civil legal claims. These are fixed by the State Government.

Pecuniary: Monetary limits within which court is permitted to adjudicate civil legal claims. Limits are fixed by the State Government. Ex: Jr.C.Judge Court upto three lakh; Sub-Courts upto fifteen lakhs; District court unlimited pecuniary value.

Inherent or Subject matter(S.9): It means a civil court has power to adjudicate all suits of civil nature unless barred either expressly or impliedly. The expression suit of a civil nature will cover private rights and obligations of a citizen.

Objections:  The objections relating to territorial or pecuniary need not be considered unless Objection is taken before settlement of Issues and as a result there occasioned a failure of justice. Whereas inherent jurisdiction, it is an incurable defect and can be raised at any stage including before Supreme Court for first time.

7. Write a note on Right to sue?

Ans: Right to sue means the right to initiate a civil action before court of law. A person can acquire a right to sue if a civil right is violated or threatened to be violated. O.I R (1) of CPC says any person who has right to sue or civil action against any person can institute a suit. It must be noted that there is a difference between having right and right to sue. Right to sue is arises when there is violation of right or threat to invasion of right. Thus mere having doesn’t entitle a person to file a suit and he must have right to sue as well.  If the right to sue continues even death doesn’t abate the suit.  The person who instituted the suit has right to withdraw the suit either in respect of whole or part of the claim either against all or any of the defendants. If such withdrawal is with the permission of court one can file fresh suit basing on the same cause of action but it doesn’t save time limitation.  The can grant leave to withdraw only two conditions:  a) Formal defect b) Sufficient cause.  If there is more than one plaintiff, court can’t allow the plaintiff to withdraw the suit without the consent of other plaintiffs. O23R1A: If suit is withdrawn by plaintiff, the defendant can make a request to transpose him as a plaintiff. The court while granting leave shall have due regard to the question whether the applicant has a substantial question to be decided against the other defendants.

8. What is representative Suit?

Representative Suit: O.I Rule.8: A suit filed by or against one or more persons on behalf of themselves and others having the same interest in the suit with the permission of the court is called a Representative Suit. The object of filing such a suit is to facilitate the decision of questions in which large body of persons are interested without recourse to the ordinary procedure.  The Essential Conditions:-

1) Numerous parties.

2) Numerous parties must have the same interest in the suit.

3) Permission of the court and.

4) Notice must have been issued to the parties whose interested is to be represented in the suit. Any compromise or withdrawal in this kind of suit must be with the leave of the court, otherwise it is void.

Suit by or against Minor O.32 says Every suit by or against a minor should be instituted in his name by a next friend. The next friend should be a person who is of sound mind, who has attained majority, who is not a defendant in the suit, and whose interest is not adverse to that of the minor. If the defendant is a minor, the court should appoint a guardian for the suit (guardian adlitem). The guardian adlitem should be person of sound mind who has attained majority, who is not a plaintiff in the suit, and whose interest is not adverse to that of the minor. A decree passed against a minor in a suit which he is not represented by a guardian adlitem is a nullity. No next friend or guardian, without the leave of the court expressly recorded in the proceedings can enter into any compromise, on behalf of a minor with reference to the suit. Any withdrawal or compromise entered into without such leave is voidable at the option of the minor. Apart from that it must also satisfy following conditions:

(a) An affidavit of the next friend of minor or person of unsound mind and

(b) By a certificate of pleader, if any represents such case, to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. The above rules apply also to persons of unsound mind. S: 147 CPC also talks about the same.

10. Write a note about Suit against state or its officers: (S.80):

Ans: To institute suit against state or its officers, Sixty days prior notice is mandatory. It must be in writing and it should state the cause of action, the name, description and place of residence of the plaintiff and the relief claimed by him. No suit shall be maintainable without such notice. Such notice has to be served upon a secretary in case of central government, a general manager in case of railway and a secretary or collector of the district in case of state govt. However, the court has the power to dispense with the requirement of the service of such notice if it is satisfied that the suit is filed to obtain urgent or immediate relief. For this purpose separate application leave of the court shall be obtained.  But even in such cases, the court has no power to grant any interim relief exparty without notice to the govt.

 Interpleader Suit S.88 & O.35: It is a request by a third person asking the court to decide who is the owner of the property and to whom property must be delivered. Thus, in interplead suit the real dispute will be between defendants only and plaintiff claims no interest in the suit except costs or charges for filing the suit. This suit shall not be filed, if there is any other suit pending in which this question can be decided. In every suit of interpleader, the plaint shall contain following facts:

(a) That the plaintiff claims no interest in the subject-matter in dispute other than for charge or costs.

 (b) The claims made by the defendants severally; and

(c) The there is no collusion between the plaintiff and any of the defendants.

It is also the duty of the plaintiff if the thing is capable of being paid into court or placed in the custody of the court, he shall deposit in the court.

S.35 R.5 puts a bar for agent or tenant to sue his principal or landlord respectively for the purpose of compelling him interplead with any person, other than the person making claim through the land lord.  S.116 of the IEA lays down that an agent cannot deny the title of his principle and the tenant cannot deny the title of his landlord.

Res Subjudice: In a court of competent jurisdiction if a Suit is pending between same parties with respect to subject matter or issue, the subsequent or 2^nd suit, if any, instituted between the same parties with respect to same subject matter, the 2^nd suit shall be stayed. The bar is against subsequently instituted suit. Suit under this section doesn’t include foreign suit.

13. Write a note on Resjudicata?

Ans: S.11: If a suit is heard and finally decided by a competent court and the subject matter or issue directly and substantially the same, court is barred from entertaining the second suit on the same subject matter provided it is between the same parties. Bar is against suit which is not disposed off. Suit under this section include foreign suit unless hit by S.13.

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.

14. What is the difference between Resjudicata and Res Subjudice?

15. What is the difference between Explanation IV Resjudicata and OII Rule 2?

16. What is meant by Foreign Judgment? Whether it is binding on Indian Courts?

Ans: Foreign judgment (S.2 (6)): means the judgment of a foreign court

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 foreign judgement (FJ) is conclusive and will operate as resjudicata between the parties. However, to operate as resjudicata any of following circumstances shall not exist: They are: 1. FJ not by a competent court. 2.FJ not on merits  3.FJ agaisnt international law or Indian law 4.FJ opposed to natural justice. 5.FJ obtained by fraud.  6.FJ founded on a breach of Indian law.

17. How to enforce a foreign Judgment in India?

Ans: 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.

18. Explain about interest under Section 34 of C.P.C, 1908?

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.

Prior to Suit: It is governed Substantive law or agreement between the parties or mercantile usage etc

During Pendency: It is the discretion of the court. As a general rule, the  court awards  contractual rate of interest unless  it is inequitable.

Date of decree till the payment: It is at the discretion of the court. However, it shall not exceed six percent per annum provided if contractual rate of interest is less than the 6%, the court shall award contractual rate of interest. If the liability arises out of a commercial transaction the rate of interest shall be the interest that is charged by nationalised banks in relation to commercial transactions.

19. Write a note on Settlement of disputes outside the court?

Ans: It is dealt u/S.89 CPC. 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.  The award passed by this forum is equal to civil court decree and as such it can enforced under O.21 CPC.

20. 20. When does a suit abate and what is effect of the abatement? What difference dose it make if any of the parties dies after the hearing? Does a partition suit abate on the death of a sole plaintiff? What are options open to the defendat in such a case when the legal representatives of the deceased plaintiff do not take any steps?

Ans: The relevant law is dealt under O.22 CPC. Death of a party abates the suit unless right to sue survives.  The right to sue survive either in favour parties who are already on record or if legal representative (LR) are brought on record within 90 days. It is the duty of the counsel to communicate the death to the court. If there is no LR court can appoint any person as LR provided he has no adverse interest to that of the deceased person.  If the death of the party is between the conclusion of the hearing and the pronouncing of the judgment, the court can pronounce the judgment and it shall have the same force and effect as if it had been pronounced before the death took place.

In a partation suit every party to the suit is a plaintiff and defendant. Hence upon the death of the  sole plaintiff suit does not abate. Legal representatives of the deceased plaintiff  by making an application to the court, they shall be made as a parties and court shall proceed with the suit. If the legal representatives of the deceased plaintiff do not take any steps the court upon the application of defendant, transpose defandant as plaintiff according to O.1 Rule.10 of C.P.C as plaintiffs and deceased  legal representative of the plaintiff as defendant. Because any person refused to join as plaintiff, shall be joined as defendant and no person can be added as plaintiff with out his consent .

21.  Explain briefly the sailent features introduced CPC, 2002 amendments regarding recording of evidence.

O.18 R.9:Recording of evidence: The examination-in-chief by way of affidavit and whereas cross-examination and re-examination can be by court or by the commissioner appointed by it. The Commissioner has power to record demeanour of any witness while under examination. Any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. The commissioner shall submit his report within 60 days.

22. Estoppel and various kinds of Estoppels?

S.115 defines Estoppel: If a Peron by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. The estoppel can be in any of the following ways:

Estoppel by Record or Estoppel by judgment: It stops a party to a judgment from re-agitating the same issue which has been finally determined by a court. This doctrine is also is incorporated U/S 11 of the C.P.C. S.40 of the IEA also dealing with the doctrine of resjudicata. It says previous judgement ,order or decree would be relevant in order to prevent the court from taking cognizance of any suit in respect of the matters which have been already been finally resolved by such previous judgement.  Thus, stopping a party, by showing a judgement copy, from relitigating the same issue.

Estoppel by deed: This estoppel is based on the principle that when a person has entered into a transaction by deed under his hand he shall not be permitted to deny the matter which he has asserted by a party to the deed is an admission. U/S 31 of the IEA statements of admissions are not conclusive proof unless they operate as estoppel, but however where it is shown that the other party has relied on it and suffered  a detriment, the deed may operate as estoppels. Stopping a party by showing a document or deed in which he entered into a transaction.

Estoppel by Conduct or Pais: When a party by his conduct allows another to believe a certain things to be true and induces action upon it, later he cannot deny his conduct. If he denies estoppel by conduct applies against him.

23. Difference between Resjudicata and Order 2 Rule 2:

Ans: The former refers to the plaintiff’s duty to bring forward all the grounds of attack in support of his claim, while the later only requires the plaintiff to claim all reliefs flowing from the same cause of action. Secondly, while the former rule refers to the parties, plaintiff as well as defendant, and precludes a suit as well as a defence, the later refers only to the plaintiff and bars further suit.

     24.    Difference between Resjudicata and Estoppel:

Ans: The doctrine of resjudicata is often treated as a branch of law of estoppel. Resjudicata is really estoppel by judgement. The rule of constructive resjudicata is nothing else but a rule of estoppel. Even then, the doctrine of resjudicata differs in essential particulars from the doctrine of estoppel.

1. Whereas resjudicata results from a decision of the court, estoppel from the acts of the parties.
2. The rule of resjudicata is based on public policy viz., that there should be end to litigation. Estoppel, on the other hand, proceeds upon the doctrine of equity that he who, by his conduct, has induced another to alter his position to his disadvantage, cannot turn around and take advantage of such alteration of other’s position. In other words, while resjudicata bars multiplicity of suits, estoppel prevents multiplicity of representations.
3. Resjudicata ousts the jurisdiction of the courts to try the case and precludes an inquiry in liminie; estoppel is only a rule of evidence and shuts the mouth of a party.
4. Resjudicata prohibits a man averring the same thing twice in successive litigations, while estoppel prevents him from saying one time and the opposite at another.

25. What is restitution? (S.144)

If a person has received any kind of benefit under a decree or order of the court and if such decree or order has been reversed or setaside, the person who has received the benefit is under a legal obligation to return the same to the person from whom it has been received. S.144 bars filing a separate suit for the relief. It can be claimed by way of an application u/s 144(2) CPC. Under this section 144 of CPC the court may make any orders including orders for the refund of costs, and for the payment of interests, damages, and compensation and mesne profits. An application for restitution is treated as an application for execution for the purpose of limitation and it is governed by the Article 136 of that Act. It’s a decree. It can be enforced within 12 years.

26.What is Caveat? (S.148A)?

Ans: It’s a caution or giving notice to the court not to issue grant or to take any step without notice given to the party lodging the caveat. Hence, no ex-parte order shall be passed against the caveator. The life time of caveat is 90 days from the date on which it was lodged.

27. Write a note on Set-off?                                                                                                                                                                                                                                                                                                                                                Ans: A plea of set-off is a reciprocal discharge of debts between two persons. The rights of the defendant to claim set-off have been recognized u/r 6 of O.8 CPC. It obviates the necessity of filing a fresh suit by defendant. Ex: A sued B on a Pro-note for an amount of Rs.500/-. B holds judgement against A for Rs.100/- The two claims being both definite, pecuniary demands may be set-off. Conditions to maintain set-off by the defendant:

1) The suit of the plaintiff must be legally for recovery of money.

2) Such sum must not exceed pecuniary limits of jurisdiction of the court

3) The claim of the defendant against the plaintiff must be for ascertained sum of money and such sum must be legally recoverable. The court has discretion to set-off unascertained sum on condition that such claim arises out of the same transaction out of which the suit claim has arisen. Ex: A Bank can transfer amount deposited in current a/c to its loan a/c for set off. .

28. Write a note on Counter claim?

Ans:It is dealt under O.8,R.6A to 6G CPC. It’s claim made by the defendant in a suit against the plaintiff. It is a claim independent and separable from the plaintiff’s claim. It is a cause of action in favour of the defendant against the plaintiff. Ex: In a suit for injunction, a counter-claim for possession can be allowed.  It can be filed either before or after the filing of the suit but before the defendant has delivered his defence. 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. 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.

29. Write a note on Differences between Counter-claim and set-off.

30. Write a short on Issue? How many kinds of Issues are there?

Ans: Issue: Material Proposition of fact or law affirmed by one party and denied by other. Issues are of two kinds: Factual and legal. The object of framing issues is to ascertain with precision the propositions of law or fact on which the parties are at variance and on such questions issues are required to be framed. Issues must be framed in such manner that they should indicate burden of proof. Issues must be specific and clear and not vague or evasive. The day on which court applies its mind to the case either for framing issues or taking evidence can be said to be the first day of hearing of the suit.

31.What is the meaning of material proposition of fact or law?

Ans: Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence (R.1 (2)). There shall be a distinct issue for each material proposition.

32. Whether a document, compulsorily registrable, but not registered can be admitted in evidence, and if so, for what purpose?

Ans: According to S.49 of the Registration Act, an unregistered document required to be registered under law can’t be received in evidence except in case of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument.  Thus under the proviso to Sec. 49 of the Registration Act, an unregistered document, though inadmissible to prove the main or principal transaction, can be received as evidence of any collateral transaction or matter or purpose, not required to be effected by a registered document. Thus there is no remedy for non-registration of instrument required by law to be registered except registration itself.

33.Whether unduly stamped document can be marked in evidence?  Whether court can direct the plaintiff to pay deficit stamp duty with ten times penalty on an unduly stamped instrument at the stage of filing the plaint? What are the consequences of non-payment of deficit stamp duty?  

Ans: a) No, the Court cannot direct the plaintiff to pay stamp duty or deficit stamp duty with penalty on the documents liable for stamp duty and penalty at the time of registration of the suit. Section 33 of the Indian Stamp Act deals with examination and impounding of instruments and Section 35 of the Indian Stamp Act deals with the instruments not duly stamped inadmissible in evidence and proviso (a) to Section 35 contemplates that the instrument which is unstamped or insufficiently stamped  shall be admitted in evidence on payment of duty and penalty.  On a combined reading of the above Sections, it is manifest that unless deficit stamp duty is paid, the said document shall not be admitted in evidence, which means deficit stamp duty shall be collected only when the document is tendered in evidence. The same was also held by the Hon’ble High Court of A.P. In K. Santhakumari v. K. Suseela Devi 1961 (1) An.W.R 425.

Consequences are two-fold: I) As per S.35 unduly stamped instrument shall not be: a) Received in evidence b) Acted upon c) Registered d) Authenticated e) shall not be used for any purpose. But the same principle is not applicable to any instrument tendered to receive in evidence in any criminal Court other than the proceedings under Chapter IX or X(D) of the Code of Criminal Procedure.

II) Penal consequences: Taking proceeding or payment of penalty shall not bar to prosecute for offence under this law. However, sanction of collector is necessary and collector should opine it was done with an intention to evade payment.

34. Write a note on Arrest before judgment?

Ans: O38 R 1-4 talks about arrest before judgement.

R: 1 says: If at any stage of a suit the court is satisfied by affidavit or otherwise:-

a)That the defendant with intent to delay the plaintiff or to avoid any process of the court, or to obstruct or delay the execution of any decree that may be passed against him,

a) has absconded or left the local limits of the jurisdiction of the court, or is about to abscond or leave the local limits of the jurisdiction of the court, or

b) has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof, or

c) If the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or thereby be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance. The defendant shall not, however, be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim.

35. Whether Surety holder can give security under O38 R.1

Ans: Yes, the whole purpose is to ensure satisfaction of decree that may be passed against defendant and presence of defendant is only an incidental affair. Hence, any person can given security and in such S.145 would apply. However, if the surety holder wants discharge either he shall pay money or make an application. The court before disposing such application shall give notice to the defendant and direct him to furnish security. If he fails to furnish he may be committed to civil prison for a period of six months. If the suit claim is less than Rs.50/- detention in civil prison shall not be more than three months. If payment is made or security is shown, detention gets setaside.

36. Write a note on Attachment before judgment?

Ans: O: 38: R: 5: R:5 says: If at any stage of a suit, the court is satisfied, by affidavit or otherwise:-  (a)that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,

(i) is about to dispose of the whole or any part of his property or

(ii) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, or

The court may direct the defendant, within a time to be fixed by it, either to furnish security as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. If the defendant fails to furnish security, which is sufficient to satisfy decree within time fixed, it can pass an order of attachment of any specified property or such portion thereof as may be sufficient to satisfy the decree.   If an order of attachment is made without complying with the provisions of Rule 5(1), such attachment shall be void.

37.What is the difference between O.38 R.1 & R.5?

Ans: Normally and naturally in the absence of defendant there is no purpose in having a decree without person. Similarly, there is hardly any purpose having a decree without property. To meet this end only these two rules are designed. The object of these two rules is to ensure satisfaction of decree that may be passed in future. This is achieved by demanding security. However, the method and purpose of obtaining security in two cases is slightly different.O38R.1 talks about arrest of the defendant who is about to leave the local limits of the court and whereas O38 R.5 talks about the defendant who about to dispose his property. In O38 R.1 the purpose is to ensure presence of defendant during the course of suit and whereas R.5 it is to prevent the disposal of defendant property.  The grounds for exercising power R5 are very limited and whereas under R.1 are very wide. U/R.1 security can be demanded on variety of reasons like not only removing property but also leaving the limits of court and whereas under R.5 it can be only for the purpose of removing or disposing of the property.

1. The law of limitation does not extinguish the right of a party but only prescribes a statutory period after which the remedy to enforce the right is barred. Explain proposition with reference to the law relating to adverse possession .

Ans: Limitation law prescribes time period within which legal remedies shall be agitated before the court of law. The fact that the parties cannot, by consent or agreement, can’t extend or alter the period of limitation, underlies the importance of limitation law. Such an agreement comes u/s 23 of the contract Act and it is void. Thus the law of limitation does not extinguish the right of a party but only prescribes a statutory period after which the remedy to enforce the right is barred. In other words, if a person under legal obligation discharges the same after the expiry of time limitation and same is received by person who is under due, such acceptance is legal. Thus law of limitation rests on the principle “Law of limitation bars claim but doesn’t extinguish right”. However, adverse possession and easement by prescription are exceptions to this rule.

Adverse possession: Adverse possession really means a hostile posssession which is expressely or implidely in denial of the title of the true owner.  Apart from that such denial of title and possession shall be in continuity, adequate publicity, peaceful and undistrubed possession for the period of twelve years.

Example: If Aneel adversely, continuously and openly is in hostile possession of land belonging to Bhima for an unbroken period of 12 years or more by, then claim the title to the land by adverse possession.

2. Write a note on Acknowledgement and Part payment?

Ans: Acknowledgement by person under liability; Acknowledgement by person under liability means an admission of the truth of one‘s own liability. If before the expiry of time for any application or suit in respect of any property, the acknowledgement of liability in respect of such property or right is made in writing signed by the party against whom such property or right is claimed a fresh period of limitation is computed from the time when the acknowledgement was so signed (S.18)

Part Payment by person under liability: If there is a part payment of debt or of interest on a legacy before the expiry of limitation period fresh period of limitation shall be computed from the time when the payment was made. Further, person making part payment should indorse the same and should sign (S.19).

1. Write a note on Easement?

Ans: Easement: An easement is a right which the owner or occupier of a certain land possess as such for the benfecial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon in respect of certain other land not of his own.  Essence of easment is that it should be a right over immovable property belonging not to the owner but to some one else.

Dominant heritage and Servient Hertiage: The land for the benfecial enjoyment of which the right exists is called the dominant heritage and the owner or occupier thereof the dominant owner; the land on which liability is imposed is imposed is called the serveint heritage and the owner or occupier thereof the serveint owner.

Example: A, as the owner of a certain house, has a right of way thither over his neighbour B’s land for purposes connected with benfecial enjoyment of the house.

2. Write a note on Easement by way of prescription?

Ans: One can claim this right subject to following conditions: 1. A owner of immovable property who has peacefully and openly enjoyed the right of way or other rights in the land of another as a matter of right continuously and uninterruptedly for a period of twenty years (in case of government its 30 years) is entitled to Easement by way of prescription.

2) However, even the 1^st condition is fulfilled in case of cases following cases, no one can claim.

Easement by way of prescription :(a) If the enjoyment of easement would result destruction of right or property in which easement if claimed.

(b) If the right is for free passage of light or air through an open space or ground.

(c)  Water not flowing in a stream and not permanently collected in pool or tank or otherwise.

(d) Similarly one cannot claim right under this category underground water not flowing in a defined channel.

3. Write a note on Easement by Necessity?

Ans: Easement by necessity: In order to claim easement by necessity the following elements must be fulfilled:

1. As a result of division of land into two pieces and their connection with each other is in such a way that one cannot be enjoyed without other having privilege over another’s land . To put straight the beneficial enjoyment of one’s land is possible only, if there is a limitation or restraint on the absolute enjoyment of right of ownership in the land of another. Generally this arises for purpose of right of way.
2. It must be noted that, if there is any other way or means through which the property can be enjoyed beneficially though it may be inconvenient, it’s not a ground to seek easement by way of necessity. To put straight, claiming right under this category depends upon absolute necessity.
3. Easement right under this category can be claimed as long as necessity is existed, the moment it is seized the right ceases
4. The time period is computed next before two years from the date of filing a suit.

4. Define license and point out difference between a license and easement?

Ans: Secton 52 defines license as folows: