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CS Executive JIGL Important Topics

JIGL Important Questions Answers for June & Dec, 2024 Exams

Index

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1. Sources of Law

2. Constitution of  India

3. Interpretation of  Statutes

4. Administrative Laws

5. Torts

6. Civil  Procedure Code

7. Criminal  Procedure Code

8. Indian Evidence Act

9. Specific  Relief  Act

10. Limitation Act

11. Arbitration Act

12. Indian Stamp Act

13. Registration of  Documents Act

14. RTI  Act

15. IT Act

16. Contract  Law

17. Sales of  Goods Act

18. Negotiable Instruments Act

 

Sources of Law

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Q. Natural law says that certain rights are inherent by virtue of human nature and can be understood universally through human reason. Explain. (June, 21 – 5 Marks)

Ans. Natural law says that certain rights are inherent by virtue of human nature and canbe understood universally through human reason.

Under this school fall most of the ancient definitions given by Roman and other ancient Jurists.

Ulpine defined Law as “the art or science of what is equitable and good.” Cicero said that Law is “the highest reason implanted in nature.” Justinian’s Digest defines Law as “the standard of what is just and unjust.”

In all these definitions, propounded by Romans, “justice” is the main and guiding element of law.

Ancient Hindu view was that ‘law’ is the command of God and not of any political sovereign. Everybody including the ruler, is bound to obey it. Thus, ‘law’ is a part of “Dharma”. The idea of “justice” is always present in Hindu concept of law.

Salmond, the prominent modern natural law thinker, defines law as “the body of principles recognised and applied by the State in the administration of justice.”

In other words, the law consists of rules recognised and acted upon by the courts of Justice. It may be noted that there are two main factors of the definition. First, that to understand law, one should know its purpose: Second, in order to ascertain the true nature of law, one should go to the courts and not to the legislature.

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Q. ‘Justice, Equity and Good Conscience’ is the main Secondary Source of Indian Law. Explain it. (Dec, 20 5 Marks)

Ans. The concept of “justice, equity and good conscience” was introduced by Impey’s Regulations of 1781. In personal law disputes, the courts are required to apply the personal law of the defendant if the point at issue is not covered by any statute or custom. In the absence of any rule of a statutory law or custom or personal law, the Indian courts apply to the decision of a case what is known as “justice, equity and good conscience”, which may mean the rules of English Law in so far as they are applicableto Indian society and circumstances.

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The Ancient Hindu Law had its own versions of the doctrine of justice, equity and good conscience. In its modern version, justice, equity and good conscience as a sourceof law, owes its origin to the beginning of the British administration of justice in India. The Charters of the several High Courts established by the British Government directed that when the law was silent on a matter, they should decide the cases in accordance with justice, equity and good conscience. Justice, equity and good conscience have been generally interpreted to mean rules of English law on an analogous matter as modified to suit the Indian conditions and circumstances.

The Supreme Court has stated that it is now well established that in the absence ofany rule of Hindu Law, the courts have authority to decide cases on the principles of justice, equity and good conscience unless in doing so the decision would be repugnantto, or inconsistent with, any doctrine or theory of Hindu Law.

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Q. ‘‘All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts.’’ Discuss the essential tests for customs to be recognized as valid sources of law. (Dec, 21 – 8 Marks) or

Q. What are the essential conditions of a valid custom ? Discuss. Explain any four. (June, 21 4 Marks)

Ans. Requisites of a Valid Custom

A custom will be valid at law and will have a binding force only if it fulfils the following essential conditions:

(i)Immemorial (Antiquity) : A custom to be valid must be proved to be immemorial; it must be ancient. According to Blackstone, “A custom, in order that it may belegal and binding must have been used so long that the memory of man runs not to the contrary, so that, if any one can show the beginning of it, it is no good custom”. English Law places a limit to legal memory to reach back to the yearof accession of Richard 1 in 1189 as enough to constitute the antiquity of a custom. In India, the English Law regarding legal memory is not applied. All that is required to be proved is that the alleged custom is ancient.
(ii)Certainty : The custom must be certain and definite, and must not be vague and ambiguous.
(iii)Reasonableness : A custom must be reasonable. It must be useful and convenient to the society. A custom is unreasonable if it is opposed to the principles of justice,

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equity and good conscience.

(iv)Compulsory Observance : A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct.
(v)Conformity with Law and Public Morality : A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable.
(vi)Unanimity of Opinion : The custom must be general or universal. If practice isleft to individual choice, it cannot be termed as custom.
(vii)Peaceable Enjoyment : The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.
(viii)Consistency : There must be consistency among the customs. Custom must not come into conflict with the other established customs.

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Q. Discuss the ‘‘Doctrine of Stare Decisis’’, under the sources of law. (Dec, 19 – 5 Marks)

Ans. The doctrine of stare decisis means adherence to the past decision and do not unsettle things which are established. It is a useful doctrine intended to bring about certainty and uniformity in the law. Under the stare decisis doctrine, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. In simple words, the principle means that like cases should be decided alike. This doctrine is based on public policy. Although doctrine should be strictly adhered to by the Courts, it is not universally applicable. The doctrine should not be regarded as a rigid and inevitable doctrine which must be applied at the cost of justice.

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Q. Distinguish between ‘Ratio Decidendi’ and ‘Obiter Dicta’ in a judgment by a Court. (Dec, 18 4 Marks)

Ans. The underlying principle of a judicial decision, which is only authoritative, is termed as ratio decidendi. The proposition of law which is necessary for the decision or could be extracted from the decision constitutes the ratio. The concrete decision is binding between the parties to it. The abstract ratio decidendi alone has the force of law as regards the world at large. In other words, the authority of a decision as a precedent lies in its ratio

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decidendi.

The literal meaning of Obitor Dicta is “said by the way”. The expression is used especially to denote those judicial utterances in the course of delivering a judgement which taken by themselves, were not strictly necessary for the decision of the particular issue raised. These statements thus go beyond the requirement of a particular case and have the force of persuasive precedents only.

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Q. Critically examine Roscoe Pound’s theory of interests. (June, 19 5 Marks)

Ans. Roscoe Pound a distinguished American legal scholar drew a similarity between the task of a lawyer and an engineer and gave his theory of social engineering. The goal of this theory was to build such a structure of society where the satisfaction of maximum of wants was achieved with the minimum of friction and waste. Such a society according to Roscoe Pound would be an ‘efficient’ society. Realisation of such a social structure would require balancing of competing interests. Roscoe Pound defined interests as claims or wants or desires which men assert de facto, and about which law must do something, if organised societies are to endure. For any legal order to be successful in structuring an efficient society, there has to be a recognition of certain interests- individual, public and social; a definition of the limits within which such interest will be legally recognized and given effect to and securing of those interests within the limits as defined.

According to Roscoe Pound, for determining the scope and the subject matter of the legal system, following five things are required to be done:

1)Preparation of an inventory of interests and their classification.
2)Selection of the interests which should be legally recognized.
3)Demarcation of the limits of securing the interest so selected.
4)Consideration of the means whereby laws might secure the interests when these have been acknowledged and delimited, and
5)Evolution of the principles of valuation of interests.

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Roscoe Pound’s classification of interests are as follows:

1)Individual interest : These are claims or demands determined from the standpoint of individual’s life and concern. They are Interest of personality; Interest in domestic relations and Interest of substance.

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2)Public interest : These interests are asserted by individual from the standpoint of political life. They are Interests of the state as a juristic person and Interests of the state as guardian of social interest.
3)Social interests : These are claims or demands thought of in terms of social life and generalized as claims of the social group. It is from the point of view of protecting the general interest of all members of the society.

 

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Q. Critically examine the statement by Austin that “Law is the command of sovereign”. (Dec, 18 5 Marks) or

Q. Describe Austin’s “Command Theory of Law” under analytical school. (Dec, 21 –

4Marks)

Ans. According to Austin, Law is the command of sovereign that is backed by sanction. Austin has propagated that law is a command which imposes a duty and the failure to fulfill the duty is met with sanctions (punishment).

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According to Austin Law has three main features:

1)It is a command.
2)It is given by a sovereign authority.
3)It has a sanction behind it.

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Command is an expression of wish or desire of an intelligent person, directing another person to do or to forbear from doing some act, and the violation of this wish will be followed by evil consequences on the person so directed. Command requires the presence of two parties- the commander (political superior) and the commanded (political inferior). Sanction is the evil consequence that follows on the violation of a command.

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In Austin’s theory, sovereign is politically superior. He has defined sovereign as an authority that receives habitual obedience from the people but itself does not obey some other authority habitually. According to Austin, the sovereign is the source of all laws. Sanction should not also be confused with a reward that might be on offer if a given conduct is followed or refrained from. Reward confers a positive right whereas a sanction is a negative consequence.

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According to Austin the sovereign does not have to obey anyone but the modern states have their powers limited by national and international laws and norms.

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Q. Define the concept of Kelson’s ‘Pure Theory of Law’ under Analytical School. (Dec, 21 5 Marks)

Ans. Hans Kelson is known for his ‘Pure Theory of Law’. Kelson believed that the contemporary study and theories of law were impure as they were drew upon from various other fields like religion and morality to explain legal concepts. Kelson, like Austin was a positivist, in that he focused his attention on what the law was and divested moral, ideal or ethical elements from law. He discarded the, notion of justice as an essential element of law because many laws, though not just, may still continue as law.

Kelson described law as a “normative science’ as distinguished from natural sciences which are based on cause and effect, such as law of gravitation. The laws of natural science are capable of being accurately described, determined and discovered whereas the science of law is knowledge of what law ought to be. Kelson considered sanction asan essential element of law but he preferred to call it ‘norm’. According to Kelson, ‘law is a primary norm which stipulates sanction’.

According to Kelson, ‘norm (sanction) is rules forbidding or prescribing certain behaviour’. He saw legal order as the hierarchy of norms having sanction, and jurisprudence was the study of these norms which comprised legal order. Kelson distinguished moral norm with legal norm and said that though moral norms are ‘ought prepositions, a violation of it does not have any penal fallout. The ‘ought’ in the legal norm refers to the sanction to be applied for violation of law.

According to Kelson, legal-normative meaning is assigned to certain actions and not to others depending on whether that event is accorded any legal-normative by any other legal norm. This second norm gains its validity from some other norm that is placed above it. The successive authorizations come to an end at the highest possible norm which was termed by Kelson as ‘Grundnorm’. Thus, Kelson’s pure theory of law is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm. Grundnorm or basic norm determines the content and gives validity to other norms derived from it. In his view the basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by itself.

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Constitution of India

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Q. Discuss the test laid down by the Supreme Court of India to determine the entity

of “State”, whether it is ‘instrumentality or agency of State’. (Dec, 18 -5 Marks)

Ans. Article 12 of the Constitution of India defines State and its scope includes the Government and Parliament of India; the Government and Legislature of each of the States; and all local or other authorities within the territory of India or under the control of the Government of India.

In the case of Ajay Hasia v. Khalid Mujib, AIR 1981 SC 481, the Supreme Court has enunciated the following test for determining whether an entity is an instrumentality or agency of the State:

(1)If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of the Government.
(2)Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character.
(3)Whether the corporation enjoys a monopoly status which is conferred or protected by the State.
(4)Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or an instrumentality.
(5)If the functions of the corporation are of public importance and closely related to government functions, it would be a relevant factor in classifying a corporation as an instrumentality or agency of government.
(6)If a department of government is transferred to a corporation, it would be a strong factor supporting an inference of the corporation being an instrumentality or agency of government.

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Q. “Any law which is inconsistent with the fundamental rights is void ‘to the extent of inconsistency’ and it is not necessary to strike down the whole Act as invalid, if only a part is invalid.” Discuss. (June, 21 4 Marks)

Ans. A law is void only “to the extent of the inconsistency or contravention” with the relevant Fundamental Right. It is known as Doctrine of Severability. According to Article 13 of the Constitution of India, it is not the entire law which is affected by the

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provisions in Part III, but the law becomes invalid only to the extent to which it is inconsistent with the Fundamental Rights. So only that part of the law will be declared invalid which is inconsistent, and the rest of the law will stand.

However, on this point a clarification has been made by the Courts that invalid part of the law shall be severed and declared invalid if really it is severable, i.e., if after separating the invalid part the valid part is capable of giving effect to the legislature’s intent, then only it will survive, otherwise the Court shall declare the entire law as invalid.

The doctrine has been applied invariably to cases where it has been found possible to separate the invalid part from the valid part of an Act. Article 13 of the Constitution only says that any law which is inconsistent with the fundamental rights is void “to the extent of inconsistency” and this has been interpreted to imply that it is not necessaryto strike down the whole Act as invalid, if only a part is invalid and that part can survive independently. In A.K. Gopalan v. State of Madras, A.I.R.1950 S.C. 27, the Supreme Court ruled that where an Act was partly invalid, if the valid portion was severable from the rest, the valid portion would be maintained, provided that it was sufficient to carry out the purpose of the Act.

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Q. Discuss the ‘Doctrine of Eclipse’ under the Constitution of India. (Dec, 20 – 5 Marks)

Ans. According to Article 13 of the Constitution of India an existing law inconsistent witha fundamental right became in-operative from the date of the commencement of the Constitution, yet it is not dead altogether. A law made before the commencement of theConstitution remains eclipsed or dormant to the extent it comes under the shadow of the fundamental rights, i.e. is inconsistent with it, but the eclipsed or dormant parts becomeactive and effective again if the prohibition brought about by the fundamental rights isremoved by the amendment of the Constitution. This is known as the doctrine of eclipse.

The doctrine was first evolved in Bhikaji Narain Dhakras v. State of M.P., A.I.R. 1955

S.C. 781. In this case, the validity of C.P. and Berar Motor Vehicles Amendment Act, 1947, empowering the Government to regulate, control and to take up the entire motor transport business was challenged. The Act was perfectly a valid piece of legislationat the time of its enactment. But on the commencement of the Constitution, the existing law became inconsistent under Article 13(1), as it contravened the freedom to carry on trade and business under Article 19(1)(g). To remove the infirmity the Constitution (First Amendment) Act, 1951 was passed which permitted creation by law of State monopoly in respect of motor transport business. The Court held that the Article by reason of itslanguage could not be read as having obliterated the entire operation of the

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inconsistent law or having wiped it altogether from the statute book. In case of a pre- Constitution law or statute, it was held, that the doctrine of eclipse would apply. The relevant part of thejudgement is:

“The true position is that the impugned law became as it were, eclipsed, for the time being, by the fundamental right. The effect of the Constitution (First Amendment) Act,1951 was to remove the shadow and to make the impugned Act free from all blemish orinfirmity.”

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Q. Article 14 of the Constitution of India says that state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.

Explain it. Refer the relevant Judgements. (June, 19 8 Marks)

Ans. Article 14 of the Constitution of India provides that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

As is evident, Article 14 guarantees to every person the right to equality before the law or the equal protection of the laws. The expression ‘equality before the law’ which is borrowed from English Common Law is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. Every person, whatever be his rank or position is subject to the jurisdiction of the ordinary courts. The expression “the equal protection of the laws” directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favouritism or discrimination. Article 14 applies to all persons and is not limited to citizens. A corporation, which is a juristic person, is also entitled to the benefit of this Article (Chiranjit Lal Chowdhurary

v. Union of India, AIR 1951 SC 41). The right to equality is also recognised as one of the basic features of the Constitution (Indra Sawhney v.Union of India, AIR 2000 SC 498).

A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of the same laws for all. It is here that the doctrine of classification steps in and gives content and significance to the guarantee of the equal protection of the laws. To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between persons who are and who are not similarly situated. The Supreme Court in a number of cases has upheld the view that Article 14 does not rule out classification for purposes of legislation. Article 14 does not forbid classification or differentiation which rests upon reasonable grounds of distinction.

The Supreme Court in the case of State of Bihar v. Bihar State ‘Plus-2’ lectures

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Associations, (2008) 7 SCC 231 held that now it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law and confers equal protection of laws. It prohibits the state from denying persons or class of persons equal treatment; provided they are equals and are similarly situated. It however, does not forbid classification. In other words, what Article 14 prohibits is discrimination and not classification if otherwise such classification is legal, valid and reasonable.

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Q. ‘‘Article 16 of the Indian Constitution guarantees equal opportunity to all citizens of India in matters related to public employment. However, there are certain exceptions of the Article 16’’. Explain the reservation policy in India. (Dec, 21 4 Marks)

Ans. Article 16(1) and (2) of the Constitution of India lay down provisions for equal opportunity of employment in the public sector. However, there are certain exceptions provided in Article 16(3), 16(4), 16(4A), 16(4B), 16(5) & 16(6). These are as under:

1.Parliament can make a law that in regard to a class or classes of employment or appointment to an office under the Government of a State on a Union Territory,under any local or other authority within the State or Union Territory, residence within that State or Union Territory prior to such employment or appointment shall be an essential qualification. [(Article 16(3)].
2.A provision can be made for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. [Article 16(4)].
3.Parliament can make law for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. [Article 16(4A)].
4.The State can consider any unfilled vacancies of a year which are reserved forbeing filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. [Article 16(4B)].
5.A law shall not be invalid if it provides that the incumbent of an office in connection with the affair of any religious or denominational institution or any member of the

governing body thereof shall be a person professing a particular religion or

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belonging to a particular denomination. (Article 16(5)].

6.Parliament can make law for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentionedin clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category. [Article 16(6)].

Using the exceptions, the government, both at the central and state levels, have reserved government jobs for STs, SCs, OBCs, women and economically weaker section of the unreserved castes. These reservations are part of ‘affirmative action’ policies ofthe government.

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Q. Article 19(1)(g) of the Constitution of India provides that all citizens shall have the right to practice any profession, or to carry on any occupation, trade or Business. Explain. (Dec, 20 8 Marks)

Ans. Article 19(1)(g) of the Constitution of India provides that all citizens shall have theright to practise any profession, or to carry on any occupation, trade or business.

An analysis of the case law reveals that the emphasis of the Courts has been on social control and social policy. However, no hard and fast rules have been laid down by the Court for interpreting this Article. The words ‘trade’, ‘business’, ‘profession’ used in this Article have received a variety of interpretations. The word ‘trade’ has been held toinclude the occupation of men in buying and selling, barter or commerce, work, especially skilled, thus of the widest scope (The Management of Safdarjung Hospital v. K.S. Sethi, AIR 1970 S.C. 1407).

The word ‘business’ is more comprehensive than the word ‘trade’. Each case mustbe decided according to its own circumstances, applying the common sense principle as to what business is. A profession on the other hand, has been held ordinarily as an occupation requiring intellectual skill, often coupled with manual skill. Like other freedoms discussed above, this freedom is also subject to reasonable restrictions. Article 19(6) provides as under:

Nothing in sub-clause (g) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions in the exercise of the right conferred by the said sub-clause, and in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to

(i)the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

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(ii)the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, industry or service whether to the exclusion, complete or partial, of citizens or otherwise.

Article 19(1)(g) of the Constitution guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. The freedom is not uncontrolled, for, clause (6) of the Article authorises legislation which (i) imposes reasonable restrictions on this freedom in the interests of the general public; (ii) prescribes professional or technical qualifications necessary for carrying on any profession, trade or business; and (iii) enables the State to carry on any trade or business to the exclusionof private citizens, wholly or partially.

In order to determine the reasonableness of the restriction, regard must be had to the nature of the business and conditions prevailing in that trade. It is obvious that these factors differ from trade to trade, and no hard and fast rules concerning all trades can be laid down. The word ‘restriction’ used in clause (6) is wide enough to include cases of total prohibition also. Accordingly, even if the effect of a law is the elimination of the dealers from the trade, the law may be valid, provided it satisfies the test of reasonableness or otherwise.

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Q. Explain the freedom of association under the Constitution of India. What reasonable restrictions have been imposed on this freedom under Article 19 of the Constitution of India ? (June, 19 5 Marks)

Ans. According to Article of 19(1) (c) of the Constitution of India, all citizens shall have the right to form associations or unions. The freedom of association includes freedom to hold meeting and to takeout processions without arms. Right to form associations for unions is also guaranteed so that people are free to have the members entertaining similar views. This right is also, however, subject to reasonable restrictions which the State may impose in the interests of:

(i)The sovereignty and integrity of India, or
(ii)Public order, or
(iii)Morality.

A question not yet free from doubt is whether the fundamental right to form association also conveys the freedom to deny to form an association. In the case of Tikaramji v. Uttar Pradesh, AIR 1956 SC 676, the Supreme Court observed that assuming the right to form an association “implies a right not to form an association, it does not follow that the negative right must also be regarded as a fundamental right”.

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Q. What are the restrictions on right to freedom of speech and expression under Article 19 of the Constitution of India ? (Dec, 18 4 Marks)

Ans. Article 19(2) of the Constitution of India specifies the grounds on which the freedom of speech and expression may be restricted. It enables the Legislature to impose by law reasonable restrictions on the freedom of speech and expression under the following heads:

Sovereignty and integrity of India
Security of the State
Friendly relation with foreign States
Public Order
Decency or morality or
Contempt of Court
Defamation
Incitement to an offence

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Q. “Article 20 of the Constitution of India guarantees protection against self- incrimination”. Explain briefly. (Dec, 18 4 Marks)

Ans. According to Article 20(3) of the Constitution of India, no person accused of any offence shall be compelled to be a witness against himself. In other words, an accused cannot be compelled to state anything which goes against him. But it is to be noted that a person is entitled to this protection, only when all the three conditions are fulfilled:

1)that he must be accused of an offence;
2)that there must be a compulsion to be a witness; and
3)such compulsion should result in his giving evidence against himself.

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So, if the person was not an accused when he made a statement or the statement was not made as a witness or it was made by him without compulsion and does not result as a statement against himself, then the protection available under this provision does not extend to such person or to such statement.

The ‘right against self-incrimination’ protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. [Selvi v. State of Karnataka, AIR 2010 SC 1974].

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Q. Vijay, an accused, committed an offence of dacoity in 2015. At that time dacoity was punishable with imprisonment of 10 years. In 2016 during his trial, a

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law was passed which made dacoity punishable with life imprisonment. Which penalty would be applicable on accused Vijay ? Discuss the answer with reference to Article 20(1) of the Indian Constitution. (June, 21 5 Marks)

Ans. According to Article 20(1) of the Constitution of India, no person shall be convicted ofany offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might havebeen inflicted under the law in force at the time of the commission of the offence.

Ex-post facto laws are laws which punished what had been lawful when done. If a

particular act was not an offence according to the law of the land at the time when the person did that act, then he cannot be convicted under a law which retrospectively declaresthat act as an offence.

Even the penalty for the commission of an offence cannot be increased with retrospective effect.

In the given case, for committing dacoity the punishment in 2015 was 10 years imprisonment and Vijay commits dacoity in that year. By a law passed after his committing the dacoity the punishment, for his act cannot be increased to life imprisonment, because punishment cannot be increased retrospectively.

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Q. Discuss ‘the procedure established by law’ under Article 21 of the Constitution of India with decided case laws. (Dec, 18 8 Marks)

Ans. According to Article 21 of the Constitution of India no person shall be deprived of his life or personal liberty except according to procedure established by law.

The expression ‘procedure established by law’ means procedure laid down by statute or procedure prescribed by the law of the State. Accordingly, first, there must be a law justifying interference with the person’s life or personal liberty, and secondly, the law should be a valid law, and thirdly, the procedure laid down by the law should have been strictly followed.

The law laid down in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, that the expression ‘procedure established by law’ means only the procedure enacted by a law made by the State. Subsequently, in Maneka Gandhi’s case (AIR 1978 SC 49), it was laid down, that the law must now be taken to be well settled that Article 21 does not exclude Article 19 and a law prescribing a procedure for depriving a person of ‘personal liberty’ will have to meet the requirements of Article 21 and also of Article 19, as well as of Article 14.

The procedure must be fair, just and reasonable. It must not be arbitrary fanciful or oppressive. An interesting, follow-up of the Maneka Gandhi’s case came in a series of cases.

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In Bachan Singh v. State of Punjab, AIR 1980 S.C. 898, it was reiterated that in Article 21 the founding fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.

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Q. Briefly describe the Fundamental Rights against exploitation under Constitution of India. (Dec, 21 5 Marks)

Ans. Fundamental Rights against exploitation under the Constitution of India are providedin Article 23 and 24. They are described as under:

(a)Prohibition of traffic in human beings and forced labour

Article 23 imposes a ban on traffic in human beings, begar and other similar forms of forced labour. The contravention of these provisions is declared punishable by law. Thus, the traditional system of beggary particularly in villages, becomes unconstitutional and a person who is asked to do any labour without payment or even a labourer with payment against his desire can complain against the violation of his fundamental right under Article 23. ‘Traffic’ in human beingsmeans to deal in men and women like goods, such as to sell or let or otherwise dispose them of. ‘Begar’ means involuntary work without payment. The State can impose compulsory service for public purposes such as conscription for defence or social service etc. While imposing such compulsory service the State cannot make any discrimination on grounds only of religion, race, caste or class or any of them. (Clause 2 of Article 23).

Traffic in human beings i.e. women, children, etc. and forced labour militate against human dignity. Under the old Zamidari system, the tenants were sometimes forced to render free service to their landlords. This was called begar. Indian citizens are now free to take up any job for which they are found suitable and workers cannot be paid less than minimum wages fixed by the Government. Children of the prostitutes have a right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life. This is declared in the case of Gaurav Jain & Union of India A.I.R 1997 S.C. 3021.

(b)Prohibition of employment of children

Article 24 prohibits the employment of children below the age of fourteen in any factory or mine. The Factories Act, 1948; The Mines Act, 1952; The Apprentices’ Act, 1961; and the Child & Adolescent Labour (Prohibition and Regulation) Act, 1986 are some of the important enactments in the statute book to protect the children from exploitation by unscrupulous employers. The Supreme Court has issued detailed guidelines as to child labour in M.C. Mehta v. State of T.N., AIR

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1993 S.C. 699.

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Q. “Under the Indian Constitution, Parliament is empowered to make law even on the subjects enumerated in the State List”. Discuss the power of Parliament to make Laws on State List. (June, 21 4 Marks)

Ans. Under the following circumstances the Parliament is authorised to make Laws on the subjects enumerated in the State List

(i)In the National Interest (Article 249) Parliament can make a law with respect toa matter enumerated in the State List if the Council of States declares by a resolution supported by two-thirds of its members present and voting, that it is necessary or expedient in the national interest that Parliament should make alaw on that matter. By such declaration Parliament gets the authority to legislate on that matter for the whole or part of the country so long as the resolution of theCouncil of States remains in force. But such resolution shall remain in force for a period not exceeding one year.
(ii)During a proclamation of emergency (Article 250) – While a Proclamation of Emergency is in operation, Article 250 of the Constitution of India removes restrictions on the legislative authority of the Union Legislature in relation to the subjects enumerated in the State List. Thus, during emergency, Parliament shall have power to make laws for the whole or any part of the territory of India with respect to all matters in the State List.
(iii)Breakdown of Constitutional Machinery in a State (Article 356 and 357) – In case the Governor of a State reports to the President, or if he is otherwise satisfied that the Government of a State cannot be carried on according to the provisions of the Constitution, then he (President) can make a proclamation to that effect. By that proclamation, he can assume to himself all or any of the functions of the Government of the State and all or any of the powers vested inor exercisable by the Governor or anybody or authority in the State, and declarethat the powers of Legislature of that State shall vest in Parliament.
(iv)On the request of two or more States (Article 252) Article 252 of the Constitutionenumerates the power of Parliament to legislate for state. The exercise of such power is conditional upon an agreement between two or more States requestingParliament to legislate for them on a specified subject
(v)Legislation for enforcing international agreements (Article 253) – Parliament has exclusive power with respect to foreign affairs and entering into treaties and agreements with foreign countries and implementing of treaties and agreements and conventions with foreign countries. But a treaty or agreement concluded with

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another country may require national implementation and for that purpose a law may be needed. To meet such difficulties, the Constitution authorises the Parliament to make law on any subject included in any list to implement:

(a)any treaty, agreement or convention with any other country or countries, or
(b)any decision made at any international conference, association or otherbody.

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Q. Write a short note on writ of ‘Quo Warranto’. (Dec, 19 4 Marks)

Ans. The writ of Quo Warranto enables enquiry into the legality of the claim which a person asserts, to an office or franchise and to oust him from such position if he is a usurper. The holder of the office has to show to the court under what authority he holds the office. It is issued when:

(i)the office is public and of a substantive nature,
(ii)created by statute or by the Constitution itself, and
(iii)the respondent has asserted his claim to the office. It can be issued even though he has not assumed the charge of the office.

The fundamental basis of the proceeding of Quo Warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. It is a discretionary remedy which the court may grant or refuse.

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Q. Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was challenged on the ground that it deals with a matter which falls in entry 81 of List-I under the Constitution of India which reads :

‘‘Post and telegraphs, telephones, wireless broadcasting and other like forms of communication’’ and therefore, the State Legislature was not competent to pass it. Examine the proposition in the light of ‘‘Pith and Substance Rule’’ referring the case law on this point. (Dec, 19 -5 Marks)

Ans. The Rule of Pith and Substance means that where a law in reality and substance falls within an item on which the legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a matter outside the competence of legislature.

Acting on Entry 6 of List II of the Constitution of India which reads — Public Health and Sanitation, Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was challenged on the Schedule VII, entry 31 of List I of the Constitution of India deals with “Post and telegraphs, telephones, wireless broadcasting

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and other like forms of communication, and, therefore, the State Legislature was not competent to pass it. The Supreme Court rejected this argument on the ground that the object of the law was to prohibit unnecessary noise affecting the health of public and not to make a law on broadcasting, etc. Therefore, the pith and substance of the law was – public health and not – broadcasting (G. Chawla v. State of Rajasthan, AIR 1959 SC 544).

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Interpretation of Statutes

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Q. Discuss the Rule of Harmonious Construction for the interpretation of statutes. (Dec, 21 4 Marks)

Ans. A statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute. It is the duty of the Courts to avoid “a head on clash” between two sections of the sameAct and, “whenever it is possible to do so, to construct provisions which appear to conflict so that they harmonise” (Raj Krishna v. Pinod Kanungo, A.I.R. 1954 S.C. 202 at 203). Where in an enactment, there are two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect may be given to both.This is what is known as the “rule of harmonious construction.”

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Q. Explain the rule of ‘Expressio Unis Est Exclusio Alterius’ under Interpretation of statutes. (Dec, 20 4 Marks)

Ans. The rule “Expressio Unis Est Exclusio Alterius” means that express mention of one thing implies the exclusion of another.

At the same time, general words in a statute must receive a general construction, unless there is in the statute some ground for limiting and restraining their meaning by reasonable construction; because many things are put into a statute ex abundanti cautela, and it is not to be assumed that anything not specifically included is for that reason alone excluded from the protection of the statute. The method of construction accordingto this maxim must be carefully watched. The failure to make the ‘expressio’ complete may arise from accident. Similarly, the ‘exclusio’ is often the result of inadvertence or accident because it never struck the draftsman that the thing supposed to be excluded requires specific mention. The maxim ought not to be applied when its application leadsto inconsistency or injustice.

Similarly, it cannot be applied when the language of the Statute is plain with clear meaning (Parbhani Transport Co-operative Society Ltd. v. Regional Transport Authority, AIR 1960 SC 801)

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Q. Describe the ‘‘Rule of Reasonable Construction’’ under the Interpretation of

Statutes. (Dec, 19 5 Marks)

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Ans. According to Rule of Reasonable Construction the words of a statute must be construed ut res magis valeat quam pereat, so as to give a sensible meaning to them. A provision of law cannot be so interpreted as to divorce it entirely from common sense; every word or expression used in an Act should receive a natural and fair meaning.

It is the duty of a Court in constructing a statute to give effect to the intention of the legislature. If, therefore, giving of literal meaning to a word used by the draftsman particularly in penal statute would defeat the object of the legislature, which is to suppress a mischief, the Court can depart from the dictionary meaning which will advance the remedy and suppress the mischief.

It is only when the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence (Tirath Singh v. Bachittar Singh, A.I.R. 1955 S.C. 830).

Courts can depart from dictionary meaning of a word and give it a meaning which will advance the remedy and suppress the mischief provided the Court does not have to conjecture or surmise. A construction will be adopted in accordance with the policy and object of the statute (Kanwar Singh v. Delhi Administration, AIR 1965 S.C. 871).

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Q. Explain the ‘‘Rule of Beneficial Construction’’. (June, 19 4 marks)

Ans. Beneficial construction involves giving the widest meaning possible to the statutes. When there are two or more possible ways of interpreting a section or a word, the meaning which gives relief and protects the benefits which are purported to be given by the legislation, should be chosen. A beneficial statute has to be construed in its correct perspective so as to fructify the legislative intent. Beneficial construction to suppress the mischief and advance the remedy is generally preferred.

Beneficial Construction of statutes have enormously played an important role in the development and beneficial interpretation of socio – economic legislations and have always encouraged the Indian legislators to make more laws in favor of the people belonging to backward class of people in India.

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Q. Explain the rule of ‘Ejusdem Generis’ under the Interpretation of statute. (June, 19 4 Marks)

Ans. “Ejusdem Generis” literally means “of the same kind or species”. The ejusdem generis rule is that, where there are general words following particular and specific words, the general words following particular and specific words must be confined to things of the same kind as those specified, unless there is a clear manifestation of a

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contrary purpose. It is merely a rule of construction to aid the Courts to find out the true intention of the Legislature. To apply the rule the following conditions must exist:

1)The statute contains an enumeration by specific words,
2)The members of the enumeration constitute a class,
3)The class is not exhausted by the enumeration,
4)A general term follows the enumeration,
5)There is a distinct genus which comprises more than one species, and
6)There is no clearly manifested intent that the general term be given a broader meaning that the doctrine requires.

The rule of ejusdem generis must be applied with great caution because, it implies a departure from the natural meaning of words, in order to give them a meaning or supposed intention of the legislature.

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Q. Explain the ‘mischief rule’ under the Interpretation of Statutes. (Dec, 18 4 marks)

Ans. Mischief Rule was enunciated by the Barons of the Exchequer “that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the Common Law) four things are to be discerned and considered. They are (1) What was the Common Law before the making of the Act; (2) What was the mischief and defect for which the Common Law did not provide; (3) What remedy the Parliament had resolved and appointed to cure the disease of the Commonwealth; and

(4) The true reason of the remedy.

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The consideration of the “mischief” or “object” of the enactment is common and will often provide the solution to a problem of interpretation. The rule directs that the Courts must adopt that construction which “shall suppress the mischief and advance the remedy”. But this does not mean that a construction should be adopted which ignores the plain natural meaning of the words or disregard the context and the collection in which they occur.

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Q. If the intention of the legislature is not clear, there are number of presumptions. Explain any four presumptions. (June, 21 4 Marks)

Ans. Where the meaning of the statute is clear, there is no need for presumptions. But ifthe intention of the legislature is not clear, there are number of presumptions. These are:

(a)that the words in a statute are used precisely and not loosely.
(b)that vested rights, i.e., rights which a person possessed at the time the statute was passed, are not taken away without express words, or necessary implicationor without

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compensation.

(c)that “mens rea”, i.e., guilty mind is required for a criminal act. There is a very strong presumption that a statute creating a criminal offence does not intend to attach liability without a guilty intent.

The general rule applicable to criminal cases is “actus non facit reum nisi menssit rea” (The act itself does not constitute guilt unless done with a guilty intent).

(d)that the state is not affected by a statute unless it is expressly mentioned as being so affected.
(e)that a statute is not intended to be inconsistent with the principles of International Law. Although the judges cannot declare a statute void as being repugnant to International Law, yet if two possible alternatives present themselves, the judgeswill choose that which is not at variance with it.
(f)that the legislature knows the state of the law.
(g)that the legislature does not make any alteration in the existing law unless by express enactment.
(h)that the legislature knows the practice of the executive and the judiciary.
(i)legislature confers powers necessary to carry out duties imposed by it.
(j)that the legislature does not make mistake. The Court will not even alter an obvious one, unless it be to correct faulty language where the intention is clear.

(jj) the law compels no man to do that which is futile or fruitless.

(k)legal fictions may be said to be statements or suppositions which are known, tobe untrue, but which are not allowed to be denied in order that some difficultymay be overcome, and substantial justice secured. It is a well settled rule of interpretation that in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on which alone the fiction can operate.
(l)where powers and duties are inter-connected and it is not possible to separate one from the other in such a way that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties.
(m)the doctrine of natural justice is really a doctrine for the interpretation of statutes,under which the Court will presume that the legislature while granting a drasticpower must intend that it should be fairly exercised.

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Q. Explain the role of ‘Preamble’ as internal aid in interpretation of statute. Though the preamble cannot be used to defect the enacting clause of a statute, it has

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been treated to be a key for the interpretation of the statute. Examine. (Dec, 19

4 Marks)

Ans. The true place of a preamble in a statute was at one time, the subject of conflicting decisions. In Mills v. Wilkins, (1794) 6 Mad. 62, Lord Hold said: “the preamble of a statute is not part thereof, but contains generally the motives or inducement thereof”. On the other hand, it was said that “the preamble is to be considered, for it is the key to open the meaning of the makers of the Act, and the mischief it was intended to remedy”.

The modern rule lies between these two extremes and is that where the enacting part is explicit and unambiguous the preamble cannot be resorted to, control, qualify or restrict it, but where the enacting part is ambiguous, the preamble can be referred to explain and elucidate it [Raj Mal v. Harnam Singh, (1928) 9 Lah. 260].

In Powell v. Kempton Park Race Course Co., (1899) AC 143, 157, Lord Halsbury said: “Two propositions are quite clear — One that a preamble may afford useful light as to what a statute intends to reach and another that, if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment”. Allahabad High Court has held in Kashi Prasad v. State, AIR 1967 All. 173, that even though the preamble cannot be used to defeat the enacting clauses of a statute, it has been treated to be a key for the interpretation of the statute.

Supreme Court in Kamalpura Kochunni v. State of Madras, AIR 1960 SC 1080, pointed out that the preamble may be legitimately consulted in case any ambiguity arises in the construction of an Act and it may be useful to fix the meaning of words used so as to keep the effect of the statute within its real scope.

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Q. Describe the role of ‘interpretation or definition clause’ in statutes. (Dec, 21

5Marks)

Ans. It is common to find in statutes “definitions” of certain words and expressions usedelsewhere in the body of the statute. The object of such a definition is to avoid the necessity of frequent repetitions in describing all the subject-matter to which the word or expression so defined is intended to apply. A definition section may borrow definitions from an earlier Act and definitions so borrowed need not be found in the definition sectionbut in some provisions of the earlier Act.

When a word has been defined in the interpretation clause, prima facie that definition governs whenever that word is used in the body of the statute.

Type of Definitions – The definition of a word in the definition section may either be restrictive of its ordinary meaning or it may be extensive of the same. When a word is defined to ‘mean’ such and such, the definition is prima facie restrictive and

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exhaustive, whereas where the word defined is declared to ‘include’ such and such, the definition is prima facie extensive. Further, a definition may be in the form of ‘means and includes’, where again the definition is exhaustive. On the other hand, if a word is defined ‘to apply to and include’, the definition is understood as extensive. (Balkrishan v. M. Bhai AIR 1999 MP86)

A definition section may also be worded in the form ‘so deemed to include’ which again is an inclusive or extensive definition and such a form is used to bring in by a legalfiction something within the word defined which according to ordinary meaning is not included within it.

When a word has been defined in the interpretation clause, prima facie that definition governs whenever that word is used in the body of the statute.

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Q. Discuss the importance of ‘Illustrations’ for interpretation of statutes. (June, 21 4 Marks)

Ans. “Illustrations attached to sections are part of the statute and they are useful so far as they help to furnish same indication of the presumable intention of the legislature. An explanation is at times appended to a section to explain the meaning of words contained in the section. It becomes a part and parcel of the enactment. But illustrations cannot have the effect of modifying the language of the section and they cannot either curtail or expand the ambit of the section which alone forms the enactment. The meaning to begiven to an ‘explanation’ must depend upon its terms, and ‘no theory of its purpose can be entertained unless it is to be inferred from the language used.” (Lalla Ballanmal v. Ahmad Shah, 1918 P.C. 249).

An explanation, normally, should be so read as to harmonise with and clear up any ambiguity in the main section and should not be so construed as to widen the ambit of the section. It is also possible that an explanation may have been added ex abundanti cautela to allay groundless apprehension.

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Q. What are ‘External Aids’ in the interpretation of statutes? Briefly describe any two external aids in the interpretation of statutes. (Dec, 21 4 Marks)

Ans. Apart from the intrinsic aids, such as preamble and purview of the Act, the Court can consider resources outside the Act, called the extrinsic aids, in interpreting and finding out the purposes of the Act. Where the words of an Act are clear and unambiguous, no resource to extrinsic matter, even if it consists of the sources of the codification, is permissible. But where it is not so, the Court can consider, apart from the intrinsic aids, such as preamble and the purview of the Act, both the prior events leading up to

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the introduction of the Bill, out of the which the Act has emerged, and subsequent events from the time of its introduction until its final enactment like the legislation, history of the Bill, Select Committee reports. The Supreme Court, enunciated the rule of exclusion of Parliamentary history in the way it is enunciated by English Courts, but on many occasions, the Court used this aid in resolving questions of construction. The report of a Select Committee or other Committee on whose report an enactment is based, can belooked into “so as to see the background against which the legislation was enacted. When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. Use of foreign decisions of countries following the same system of jurisprudence as ours and rendered on statutes in pari materia has been permitted by practice in Indian Courts.

Few external aids in the interpretation of statutes are:

1)Parliamentary History – The Supreme Court, enunciated the rule of exclusion of Parliamentary history in the way it is enunciated by English Courts, but on many occasions, the Courtused this aid in resolving questions of construction.
2)Reference to Reports of Committees – The report of a Select Committee or other Committee on whose report an enactment is based, can be looked into “so as to see the background againstwhich the legislation was enacted.
3)Reference to other Statutes – It has already been stated that a statute must be read as a whole as words are to be understood in their context. Extension of this rule of context, permits reference to other statutes in pari materia, i.e. statutes dealing with the same subject matter or forming part of the same system.
4)Dictionaries When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance.
5)Use of Foreign Decisions – Use of foreign decisions of countries following the same system of jurisprudence as ours and rendered on statutes in pari-materia has been permitted by practicein Indian Courts.

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Administrative Law

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Q. Administrative law is the by-product of ever increasing functions of the Governments. Now, States have no longer policies limited to maintaining internal order and external threats. Examine. (June, 21 4 Marks)

Ans. Administrative law is the by-product of ever increasing functions of the Governments. States are no longer police states, limited to maintaining internal order and protecting from external threats. These, no doubt continue to be the basic functions but a state that is limited to this traditional role will de-legitimize itself.

With the rise of political consciousness, the citizens of a state are no longer satisfiedwith the state’s provisioning of traditional services. The modern state is, therefore, strivingto be a welfare state.

It has taken the task to improve social and economic conditions of its people. It involves undertaking a large number of complex tasks. Development produces economicand social changes and creates challenges in the field of health, education, pollution, inequality etc. These complex problems cannot be solved except with the growth of administration. States have also taken over a number of functions, which were previouslyleft to private enterprise. All this has led to the origin and the growth of administrative law.

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Q. Discuss the main feature of Statutory Corporation under Administrative Law. (June, 21 5 Marks)

Ans. The main features of Statutory Corporations are as under:

It is incorporated under a Special Act of Parliament or State Legislative Assembly.
It is an autonomous body and is free from government control in respect of its internal management. However, it is accountable to the Parliament or the state legislature.
It has a separate legal existence.
It is managed by the Board of Directors, which is composed of individuals whoare trained and experienced in business management. The members of the Board of Directors are nominated by the Government.
It is supposed to be self sustained in financial matters. However, in case of necessity it may obtain a loan and/or seek assistance from the government.
The employees of these enterprises are recruited as per their own requirementsby following the terms and conditions of recruitment decided by the Board.

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Q. Explain the rule of ‘nemo judex in causa sua’ under Administrative Law. (Dec, 20 4 Marks)

Ans. Rule against bias (nemo judex in causa sua): According to this rule no person should be made a judge in his own cause. Bias means an operative prejudice whetherconscious or unconscious in relation to a party or issue. It is a presumption that a person cannot take an objective decision in a case in which he has an interest. The ruleagainst bias has two main aspects- one, that the judge must not have any direct personalstake in the matter at hand and two, there must not be any real likelihood of bias.

Bias can be the following types:

(a)Pecuniary Bias
(b)Personal Bias
(c)Subject matter Bias

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Q. What are the principal sources of Administrative Law in India ? Explain in brief. (Dec, 20 4 Marks)

Ans. There are four principal sources of administrative law in India:

1)Constitution of India : It is the primary source of administrative law. Article 73 of the Constitution provides that the executive power of the Union shall extend to matters with respect to which the Parliament has power to make laws. Similarpowers are provided to States under Article 162. Indian Constitution has not recognized the doctrine of separation of powers in its absolute rigidity.
2)Acts/ Statutes : Acts passed by the central and state governments for the maintenance of peace and order, tax collection, economic and social growth empower the administrative organs to carry on various tasks necessary for it. These Acts list the responsibilities of the administration, limit their power in certain respects and provide for grievance redressal mechanism for the people affected by the administrative action.
3)Ordinances, Administrative directions, Notifications and Circulars : Ordinances are issued when there are unforeseen developments and the legislature is not insession and therefore cannot make laws. Ordinances allow the administration to take necessary steps to deal with such developments. Administrative directions, notifications and circulars are issued by the executive in the exercise of power granted under various Acts.
4)Judicial decisions : Judiciary is the final arbiter in case of any dispute between various wings of government or between the citizen and the administration. InIndia, we have the supremacy of Constitution and the Supreme Court is vestedwith the authority to interpret it. The courts through their various decisions on the exercise

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of power by the administration, the liability of the government in case of breach of contract or tortious acts of Governments servants lay down administrative laws which guide their future conduct.

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Q. Under what circumstances the decision exercised by administrative authorities are treated as abuse of discretion ? Explain any four. (Dec, 19 -4 Marks)

Ans. The decision exercised by administrative authorities are treated as abuse of discretion in the following circumstances:

1)Mala fides : If the discretionary power is exercised by the authority with bad faith or dishonest intention, the action is quashed by the court. Malafide exercise of discretionary power is always bad and taken as abuse of discretion.
2)Irrelevant considerations : If a statute confers power for one purpose, its use for a different purpose is not regarded as a valid exercise of power and is likely to be quashed by the courts. If the administrative authority takes into account factors, circumstances or events wholly irrelevant or extraneous to the purpose mentioned in the statute, then the administrative action is vitiated.
3)Leaving out relevant considerations : The administrative authority exercising the discretionary power is required to take into account all the relevant facts. If it leaves out relevant consideration, its action will be invalid.
4)Arbitrary orders : The order made should be based on facts and cogent reasoning and not on the whims and fancies of the adjudicatory authority.
5)Improper purpose : The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for another purpose it will amount to abuse of power.
6)Colourable exercise of power : Where the discretionary power is exercised by the authority on which it has been conferred ostensibly for the purpose for which it has been given but in reality for some other purpose, it is taken as colourable exercise of the discretionary power and it is declared invalid.
7)Non-compliance with procedural requirements and principles of natural justice: If the procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of power will be bad. Whether the procedural requirement is mandatory or directory is decided by the court. Principles of natural justice are also required to be observed.
8)Exceeding jurisdiction : The authority is required to exercise the power within the limits or the statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and, therefore, void.

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Q. Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution. Comment. (Dec, 19 4 Marks)

Ans. The biggest check over administrative action is the power of judicial review. Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution. Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government agency within that jurisdiction.

The power of judicial review controls not only the legislative but also the executive or administrative act. The Court scrutinizes the executive act for determining the issue as to whether it is within the scope of authority or power conferred on the authority exercising the power. Where the act of executive or administration is found ultra-virus the Constitution or the relevant Act, it is declared as such and, therefore, void. The Courts attitude appears to be stiffer in respect of discretionary powers of the executive or administrative authorities. The Court is not against the vesting of discretionary power in the executive, but it expects that there would be proper guidelines for the exercise of power. The Court interferes when the uncontrolled and unguided discretion is vested in the executive or administrative authorities or the repository of the power abuses its discretion.

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Q. Enumerate in short the exceptional circumstances of the application of natural justice under Administrative Law. (Dec, 19 – 4 Marks)

Ans. Though the normal rule is that a person who is affected by administrative action is entitled to claim natural justice, that requirement may be excluded under certain exceptional circumstances as mentioned below:

1.Statutory Exclusion : The principle of natural justice may be excluded by the statutory provision. Where the statute expressly provides for the observance of the principles of natural justice, the provision is treated as mandatory and the authority is bound by it. Where the statute is silent as to the observance of the principle of natural justice, such silence is taken to imply the observance thereto.
2.Emergency : In exceptional cases of urgency or emergency where prompt and preventive action is required the principles of natural justice need not be observed. However, the determination of the situation requiring the exclusion of the rules of natural justice by the administrative authorities is not final and the court may review suchdetermination.
3.Interim disciplinary action : The rules of natural justice are not attracted in the case of interim disciplinary action.
4.Academic evaluation : Where a student is removed from an educational institution on the grounds of unsatisfactory academic performance, the requirement of pre-decisional

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hearing isexcluded.

5.Impracticability : Where the authority deals with a large number of person it is not practicable to give all of them opportunity of being heard and therefore in such condition the court does not insist on the observance of the rules of natural justice.

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Q. Define the rule against bias under Administrative Law and also discuss its kinds. (Dec, 21 4 Marks)

Ans. According to the rule against bias, no person should be made a judge in his own cause. Bias means an operative prejudice whether conscious or unconscious in relation to a party or issue. It is a presumption that a person cannot take an objective decision in a case in which he has an interest. The rule against bias has following two main aspects:

(i)that the judge must not have any direct personal stake in the matter at hand.
(ii)there must not be any real likelihood of bias.

Bias can be of the following three types:

(a)Pecuniary bias : The judicial approach is unanimous on the point that any financial interest of the adjudicatory authority in the matter, howsoever small, would vitiate the adjudication. Thus, a pecuniary interest, howsoever insufficient, will disqualify a person from acting as a Judge.
(b)Personal bias : There are number of situations which may create a personal bias in the Judge’s mind against one party in dispute before him. He may be friend of the party, or related to him through family, professional or business ties. The judge might also be hostile to one of the parties to a case. All these situations create bias either in favour of or against the party and will operate as a disqualification for a person to act as a judge.
(c)Subject matter bias : A judge may have a bias in the subject matter, which means that he himself is a party, or has some direct connection with the litigation. To disqualify on the ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute. To vitiate the decision on the ground of bias as for the subject matter there must be real likelihood of bias.

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Q. Explain in brief doctrine of ‘Nemo Judex in Causa Sua’. (June, 19 -4 Marks)

Ans. Nemo Judex in Causa Sua is Rule against bias. According to this rule no person should be made a judge in his own cause. Bias means an operative prejudice whether conscious or unconscious in relation to a party or issue. It is a presumption that a person cannot take an objective decision in a case in which he has an interest. The rule against bias has two

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main aspects- one, that the judge must not have any direct personal stake in the matter at hand and two, there must not be any real likelihood of bias.

Bias can be of the following three types:

1)Pecuniary bias : The judicial approach is unanimous on the point that any financial interest of the adjudicatory authority in the matter, howsoever small, would vitiate the adjudication. Thus a pecuniary interest, howsoever insufficient, will disqualify a person from acting as a Judge.
2)Personal bias : There are number of situations which may create a personal bias in the Judge’s mind against one party in dispute before him. He may be friend of the party, or related to him through family, professional or business ties. The judge might also be hostile to one of the parties to a case. All these situations create bias either in favour of or against the party and will operate as a disqualification for a person to act as a Judge.
3)Subject matter bias : A judge may have a bias in the subject matter, which means that he himself is a party, or has some direct connection with the litigation. To disqualify on the ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute. To vitiate the decision on the ground of bias as for the subject matter there must be real likelihood of bias.

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Q. Explain in brief ‘Audi Alterum Partem Rule’ under the Administrative law. (Dec, 18 4 marks)

Ans. The rule of audi alteram partem is the rule of fair hearing . The principle of natural justice is audi alteram partem (hear the other side) i.e. no one should be condemned unheard. It requires that both sides should be heard before passing the order. This rule implies that a person against whom an order to his prejudice is passed should be given information as to the charges against him and should be given an opportunity to submit his explanation thereto.

Following are the ingredients of the rule of fair hearing:

(a)Right to notice : Hearing starts with the notice by the authority concerned to the affected person.
(b)Right to present case and evidence
(c)Right to rebut adverse evidence
(d)Disclosure of evidence
(e)Reasoned decision: When the adjudicatory bodies give reasons in support of their decisions, the decisions are treated as reasoned decision.

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Torts

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Q. ‘‘To constitute a tort, there must be a wrongful act and legal damages’’. Explain. (June, 21 4 Marks)

Ans. A tort consists of some act or omission done by the defendant whereby he has without just cause or excuse caused some harm to plaintiff. To constitute a tort, theremust be:

(i)Wrongful act : The act complained of, should under the circumstances, be legally wrongful as regards the party complaining. In other words, it should prejudicially affect any of the above mentioned interests, and protected by law. Thus, every person whose legal rights, e.g., right of reputation, right of bodily safety and freedom, and right to property are violated without legal excuse, has a right of action against the person who violated them, whether loss results from such violation or not.
(ii)Legal damages : It is not every damage that is a damage in the eyes of the law. It must be a damage which the law recognizes as such. In other words, there should be legal injury or invasion of the legal right. In the absence of an infringement of a legal right, an action does not lie. Also, where there is infringement of a legal right, an action lies even though no damage may havebeen caused. As was stated in Ashby

v. White, (1703) 2 Ld. Raym. 938 legal damage is neither identical with actual damage nor is it necessarily pecuniary.

Two maxims, namely: (i) Damnum sine injuria, and (ii) injuria sine damnum, explain this proposition.

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Damnum sine injuria

Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means infringement of a right conferred by law on the plaintiff. The maxim meansthat in a given case, a man may have suffered damage and yet have no action in tort, because the damage is not to an interest protected by the law of torts. Therefore, causing damage, however substantial to another person is not actionable in law unless there is also a violation of a legal right of the plaintiff. Common examples are, where the damage results from an act done in the exercise of legal rights. Thus, if I own a shop and you open a shop in the neighborhood, as a result of which I lose some customers and my profits decline, I cannot sue you for the loss in profits, because you are exercising your legal right. [Gloucester Grammer School case, (1410) Y.B. Hill. 11 Hen, IV to 27, pp. 21,36].

Injuria sine damnum

It means injury without damage, i.e., where there is no resultant damage yet it is an injury or wrong in tort, i.e., where there is infringement of a legal right not resulting in harm but plaintiff can still sue in tort. Some rights or interests are so important that their violation is an actionable tort without proof of damage. Thus when there is an invasion of an “absolute” private right of an individual, there is an injuria and the plaintiff’s action will succeed even if there is no Damnum or damages. An absolute right is one, the violation of which is actionable per se, i.e., without the proof of any damage. Injuria sine damnum covers such cases and action lies when the right is violated even though no damage has occurred. Thus the act of trespassing upon another’s land is actionable even though ithas not caused the plaintiff even the slightest harm.

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Q. Distinguish between ‘Damnum Sine Injuria’ and ‘Injuria Sine Damnum’ under the law relating to Torts. (Dec, 18 4 Marks)

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Q. Explain the Latin maxims ‘damnum sine injuria’ and ‘injuria sine damnum’. (Dec, 21

4 Marks)

Ans. Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means infringement of a right conferred by law on the plaintiff. The maxim means that in a given case, a man may have suffered damage and yet have no action in tort, because the damage is not to an interest protected by the law of torts. Therefore, causing damage, however substantial to another person is not actionable in law unless there is also a violation of a legal right of the plaintiff.

Injuria Sine Damnum means injury without damage, i.e., where there is no damage resulted yet it is an injury or wrong in tort, i.e. where there is infringement of a legal right not resulting in harm but plaintiff can still sue in tort. Some rights or interests are so important that their violation is an actionable tort without proof of damage. Thus when there is an invasion of an “absolute” private right of an individual, there is an injuria and the plaintiff’s action will succeed even if there is no Damnum or damages. An absolute right is one, the violation of which is actionable per se, i.e., without the proof of any damage. Injuria sine damnum covers such cases and action lies when the right is violated even though no damage has occurred.

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Q. Discuss the ‘Rule of Strict Liability’ under the Law of Torts. (Dec, 18 – 4 Marks)

Ans. Under the Rule of Strict Liability the defendant is liable even though the harm to the plaintiff occurred without intention or negligence on the defendant’s part. In other words, the defendant is held liable without fault. These cases fall under the following categories:

(i)Liability for Inevitable Accident – Such liability arises in cases where damage is done by the escape of dangerous substances brought or kept by anyone upon his land.
(ii)Liability for Inevitable Mistake – Such cases are where a person interferes with the property or reputation of another.

Vicarious Liability for Wrongs committed by others – Responsibility in such cases is imputed by law on grounds of social policy or expediency. These case involve liability of master for the acts of his servant.

The Rule of Strict Liability was laid down in the case of Ryland v. Fletcher (1868) L.R. 3

H.L. 330. It has been explained that two conditions are necessary in order to apply the rule i.e.

(i)Little Escape may cause danger – Escape from a place of which the defendant has occupation or over which he has a control to a place which is outside his occupation or control or something likely to do mischief if it escapes; and
(ii)Non-natural use of Land : The defendant is liable if he makes a non-natural use of land.

If either of these conditions is absent, the rule of strict liability will not apply.

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Q. The managing clerk of a firm of solicitors, while acting in the ordinary course of business committed fraud, against a lady client by fraudulently inducing her to sign documents transferring her property to him. He had done so without the knowledge of his Principal. Explain whether the Principal will be liable ? (June, 21

4 Marks)

Ans. Qui facit per alium facit per se – he who acts through another is acting himself, sothat the act of the agent is the act of the principal. When an agent commits a tort in the ordinary course of his duties as an agent, the principal is liable for the same. In Lloyd v. Grace, Smith & Co. (1912) A.C. 716, the managing clerk of a firm of solicitors, while acting in the ordinary course of business committed fraud, against a lady client by fraudulently inducing her to sign documents transferring her property to him. He had done so without the knowledge of his principal who was liable because the fraud was committed in the course of employment.

The House of Lords in this case held that, by allowing the managing clerk to deal with clients, the firm had given him ostensible authority to conduct certain types of business. Therefore the firm was liable for the fraud.

Normally, the tortfeasor is liable for his tort. But in some cases a person may be

held liable for the tort committed by another. A master is vicariously liable for the tort of his servant, principal for the tort of his agent and partners for the tort of a partner. Thisis known as vicarious liability in tort.

Q. Anil and Amit are two partners of a firm. Anil, while ordinarily dealing with another firm, bribed that firm’s clerk to divulge secret relating to the other firm where that clerk was working. In this case, who shall be liable—whether both the Partners i.e. Anil and Amit or only Anil ? Explain. (Dec, 19 4 Marks)

Ans. Tort committed by a partner in the ordinary course of the business of the firm, all the other partners are liable therefore to the same extent as the guilty partner. The liability of the partners is joint and several.

In the case of Hamlyn vs.Houston & Co. (1903) 1 K.B. 81, one of the two partners bribed the plaintiff’s clerk and induced him to divulge secrets relating to his employer’s business. It was held that both the partners were liable for the tort committed by only one of them.

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Q. Explain the liability of master for the act of his servant under the law of torts. (Dec, 21 5 Marks)

Ans. A master is liable for the tort committed by his servant while acting in the course of his employment. The servant, of course, is also liable; their liability is joint and several.

In such cases

(1)liability of a person is independent of his own wrongful intention or negligence
(2)liability is joint as well as several
(3)In case of vicarious liability, the liability arises because of the relationship between the principal and the wrongdoer but in case of absolute or strict liability,the liability arises out of the wrong itself.

A master is liable not only for the acts which have been committed by the servant, but also for acts done by him which are not specifically authorized, in the course of his employment. The basis of the rule has been variously stated: on the maxim Respondeat Superior (Let the principal be liable) or on the maxim Qui facit per alium facit per se (he who does an act through another is deemed to do it himself). The master is liable even though the servant acted against the express instructions, for the benefit of his master,so long as the servant acted in the course of employment.

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Q. Swaraj an employer of ABC Company Ltd., appointed Rakesh as an independent contractor. Discuss under what circumstances Swaraj would be liable for the fault of Rakesh. (Dec, 18 5 Marks)

Ans. A master/employer is liable for the tort committed by his servant while acting in the course of his employment. The servant, of course, is also liable; their liability is joint and several. This is known as vicarious liability. The relationship of an individual with that of his/ her independent contractor is not that of master-servant.

The employer is not liable merely because an independent contractor commits a tort in the course of his employment. The employer is liable only if he himself is deemed to have committed a tort. This may happen in one of the following three ways:

(i)When employer authorizes him to commit a tort.
(ii)In torts of strict liability
(iii)Negligence of independentcontractor.

In the present case, Swaraj would be liable for the fault of Rakesh in the above mentioned circumstances.

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Q. Discuss the vicarious or tortious liability of state for the act of his servant. Refer relevant Judgements. (June, 19 4 Marks)

Ans. When a case of Government liability in tort comes before the courts, the question is whether the particular Government activity, which gave rise to the tort, was the sovereign function or non-sovereign function. If it is a sovereign function it could claim immunity from the tortuous liability, otherwise not. Generally, the activities of commercial nature or those which can be carried out by the private individual are termed as non-sovereign functions.

The first important case involving the tortious liability of the State was raised in the pre-independence era P. and O. Steam Navigation v. Secretary of State for India (5 Bom HCR App 1). The question referred to the Supreme Court was whether the Secretary of State for India is liable for the damages caused by the negligence of the servants in the service of the Government. The Supreme Court answered the question in the affirmative. The Court pointed out the principle of law that the Secretary of State for India in Council is liable for the damages occasioned by the negligence of Government servants, if the negligence is such as would render an ordinary employer liable. According to the principle laid down in this case the Secretary of State can be liable only for acts of non-sovereign nature, liability will not accrue for sovereign acts. The Court admitted the distinction between the sovereign and non-sovereign functions of the government and said that here was a great and clear distinction between acts done in exercise of what are termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them.

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Q. Distinguish between Battery and Assault as enumerated under the Law of Torts. (Dec, 20 4 Marks)

Ans. Battery

Any direct application of force to the person of another individual without his consentor lawful justification is a wrong of battery. To constitute a tort of battery, therefore, twothings are necessary:

(i)use of force, however, trivial it may be without the plaintiff’s consent, and
(ii)without any lawful justification.

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Even though the force used is very trivial and does not cause any harm, the wrong is committed. Thus, even to touch a person in anger or without any lawful justification is battery.

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Assault

Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend a contact. Thus, when the defendant by his act creates an apprehension in the mind of the plaintiff that he is going to commit battery against him, the tort of assault is committed. The law of assault is substantially the same as that of battery except that apprehension of contact, not the contact itself has to be established. Usually when there is a battery, there will also be assault, but not for instance, when a person is hit from behind. To point a loaded gun at the plaintiff, or to shake first under his nose, or to curse him in a threatening manner, or to aim a blow at him which is intercepted, or to surround him with a display of force is to assault him clearly if the defendant by his actintends to commit a battery and the plaintiff apprehends it, is an assault.

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Q. Describe the concept of False Imprisonment under Law of Torts. Cite case law in support of your answer. (Dec, 21 5 Marks)

Ans. False imprisonment consists in the imposition of a total restraint for some period, however short, upon the liberty of another, without sufficient lawful justification.

It means unauthorized restraint on a person’s body. What happens in false imprisonment is that a person is confined within certain limits so that he cannot move about and so his personal liberty is infringed. It is a serious violation of a person’s right and liberty whether being confined within the four walls or by being prevented from leaving place where he is. If aman is restrained, by a threat of force from leaving his own house or an open field thereis false imprisonment.

In Sunil Batra v. Delhi Administration AIR 1980 SC 1579, the Supreme Court while interpreting section 56 of the Prisons Act, 1894, observed that there is an implied duty on the jail superintendent to give reasons for putting bar fetters on a prisoner to avoid invalidity of that provision under Article 21 of the Constitution. Thus the Supreme Court laid the foundation of a sound administrative process requiring the adjudicatory authorities to substantiate their order with reasons.

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Q. Discuss briefly ‘‘Malicious Prosecution’’ and its essential elements under the law relating to Torts. (Dec, 19 4 Marks)

Ans. Malicious prosecution consists in instigating judicial proceedings (usually criminal)

against another, maliciously and without reasonable and probable cause, which terminate in favour of that other and which results in damage to his reputation, personal freedom orproperty.

The following are the essential elements of this tort:

(i)There must have been a prosecution of the plaintiff by the defendant.
(ii)There must have been want of reasonable and probable cause for that prosecution.
(iii)The defendant must have acted maliciously (i.e. with an improper motive and not to further the end of justice).
(iv)The plaintiff must have suffered damages as a result of the prosecution.
(v)The prosecution must have terminated in favour of the plaintiff.

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Q. What remedies can be sought under the Law of Torts ? (Dec, 18 4 Marks)

Ans. Under the Law of Torts remedies can be in the form of Judicial Remedies and Extra Judicial Remedies.

Judicial Remedies

Three types of judicial remedies are available to the plaintiff in an action for tort namely:

(i)Damages,
(ii)Injunction, and
(iii)Specific Restitution of Property.

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Extra Judicial Remedies

In certain cases it is lawful to redress one’s injuries by means of  self-help without recourse to the court. These remedies are:

a)Self Defence
b)Prevention of Trespass
c)Re-entry on Land
d)Re-caption of Goods
e)Abatement of Nuisance
f)Distress Damage feasant

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Q. Discuss any four Extra Judicial Remedies under Law of Torts. (Dec, 20 – 4 Marks)

Ans. Extra Judicial remedies under Law of torts are available in certain cases. It is lawful to redress one’s injuries by means of self-help without recourse to the court; these areas under:

(a)Self Defence It is lawful for any person to use reasonable forces to protect

himself, or any other person against any unlawful use of force.

(b)Prevention of Trespass – An occupier of land or any person with his authority may use reasonable force to prevent trespassers entering or to eject them but the force should be reasonable for the purpose.
(c)Re-entry on Land – A person wrongfully disposed of land may retake possession of land if he can do so in a peaceful and reasonable manner.
(d)Re-caption of Goods – It is neither a crime nor a tort for a person entitled to possession of a chattel to take it either peacefully or by the use of a reasonable force from one who has wrongly taken it or wrongfully detained it.
(e)Abatement of Nuisance – The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously affecting it. Thus, he may cut overhanging branches as spreading roots from his neighbour’s trees, but (i) upon giving notice;

(ii) by choosing the least mischievous method; (iii) avoidingunnecessary damage.

(f)Distress Damage Feasant – An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing damage there and detain them until compensation is paid for the damage. The right is known as that of distress damage feasant-to distrain things which are doing damage.

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Civil Procedure Code

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Q. How ‘Decree’ is defined under Section 2(2) of the Civil Procedure Code, 1908 and mention essentials of a Decree. (Dec, 20 4 Marks)

Ans. “Decree” is defined in Section 2(2) of the Civil Procedure Code, 1908 as

(i)the formal expression of an adjudication which, so far as regards the Court expressing it;
(ii)conclusively;
(iii)determines the rights of the parties;
(iv)with regard to all or any of thematters in controversy; (v) in the suit and may be either preliminary (i.e. when further proceedings have to be taken before disposal of the suit) or final.

But decree does not include:

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

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Essentials of a decree are:

There must be a formal expression of adjudication.
There must be a conclusive determination of the rights of the parties.
The determination must be with regard to or any of the matters in controversy in the suit.
The adjudication should have been given in the suit.

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Q. What do you understand by ‘set off’ and ‘counter-claim’ under the Civil Procedure Code, 1908 ? What is the effect of set-off ? (Dec, 19 4 Marks)

Ans. Set-off

Order VIII, Rule 6 of Civil Procedure Code, 1908 deals with set-off which is a reciprocal acquittal of debts between the plaintiff and defendant. It has the effect of extinguishing the plaintiff’s claim to the extent of the amount claimed by the defendant as a counter claim.

Under Order VIII , Rule 6 of Civil Procedure Code, 1908 where in a suit for the recovery of money the defendant claims to set off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff not exceeding the

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pecuniary jurisdiction of the Court and where both parties fill the same character as in the plaintiff is suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

Counter-claim

A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filling of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of claim for damages or not. Such counter-claim must be within the pecuniary jurisdiction of the Court. (Order VIII, Rule 6A).

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Effect of Set-off

The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgement in respect both of the original claim and of the set-off, but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

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Q. Distinguish between review and revision under the Civil Procedure Code 1908. (June, 19 4 Marks)

Ans. The right of review has been conferred by Section 114 and Order 47 Rule 1 of the Civil Procedure Code 1908. It provides that any person considering himself aggrieved by a decree or order may apply for a review of judgement to the court which passed the decree or made the order on any of the grounds as mentioned in Order 47 Rule 1, namely—

i.discovery by the applicant of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or
ii.on account of some mistake or error apparent on the face of the record, or
iii.for any other sufficient reason,

and the Court may make such order thereon as it thinks fit.

Whereas Section 115 of the Civil Procedure Code 1908 deals with revision. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate

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Court appears—

(a)to have exercised a jurisdiction not vested in it by law, or
(b)to have failed to exercise a jurisdiction so vested, or
(c)to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order as it thinks fit.

Provided that the High Court shall not vary or reverse any order made or any order deciding an issue in the course of a suit or proceeding except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.

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Review vs. Revision

Review

Revision

(i) Section 114 Order 47 deals with Review.

(i) Section 115 deals with the Revision.

(ii) Any court, which passed the decree or made order, can review the case.

(ii) The High Court can only do revision of any case which has been decided by any court subordinate to it.

(iii)The review can be made only on an application by an aggrieved party.

(iii)Revisional powers can be exercised by the High Court on an application or even suo motu

(of its own motion).

(iv) The order granting the review is appealable.

(iv) An order passed in the exercise

of revisional jurisdiction is not appealable.

(v) Review can be made even when an appeal lies to the High Court.

(v) Revisional power can be exercised by the High Court

only in a case where no appeal lies to the High Court.

(vi)The grounds for review are:
a)discovery of new and important matter or evidence;
b)mistake or error apparent on the face of the record;
c)(c) any other sufficient reason.

(vi) The Conditions: (a) A case must have been decided; (b) the Court which has decided the case must be a Court subordinate to the High Court;

(c) The order should not be an appeaiable one; (d) The subordinate court must have

(i) exercised jurisdiction not

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vested in it by law; or (ii) failed to exercise jurisdiction vested in it, or (iii) acted in the exercise of its jurisdiction illegally or with material

Irregularity

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Q. The Civil Court has power to grant temporary injunction, but for obtaining the same the plaintiff is required to satisfy the Court. Explain in brief. (June, 19 – 4 Marks) or

Q. What is Temporary injunction under the Code of Civil Procedure, 1908 ? Under what circumstances can it be granted ? Discuss. (June, 21 4 Marks)

Q. It is well settled law that for grant of temporary injunction, three factors have to be satisfied, which are prima facie case, balance of convenience and irreparable loss. Discuss. (Dec, 21 4 Marks)

Ans. Temporary injunction – The Court may grant temporary injunction for the purpose of staying and preventing the wasting, damaging, alienation or sale or 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; where it is proved by affidavit or otherwise:

(a)that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b)that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, or
(c)that the defendant threatens to dispossess the plaintiff or otherwise cause injuryto the plaintiff in relation to any property in dispute in the suit.

It would be necessary for the plaintiff to satisfy the Court that he has a prima facie case in the sense that even a superficial look at the facts of the case will show that the plaintiff’s case has some merit. Further, the balance of convenience should also lie in favour of the plaintiff. For example, in a suit for eviction of a tenant from a rented premises, the balance of convenience would lie in favour of the tenant who is occupying the property. Moreover, the plaintiff will also have to satisfy the Court that substantial and irreparable harm or injury would be suffered by him if such temporary injunction (till the disposal of the suit) is not granted and that such loss or damage or harm cannot becompensated by damages.

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Q. Discuss the doctrine of ‘Res Sub Judice’ under Section 10 of Civil Procedure

Code, 1908. (Dec, 18 5 marks)

Ans: Section 10 of the Civil Procedure Code, 1908 provides that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Doctrine of Res Sub Judice restricts or bar under Section 10 of the Civil Procedure Code, 1908.

However, the pendency of a suit in a foreign court does not preclude the Courts in India from trying a suit founded on the same cause of action.

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To prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue, Section 10 is enacted. The purpose is also to avoid conflict of decision. It is really intended to give effect to the rule of res judicata. The institution of second suit is not barred by Section 10. It merely says that the trial cannot be proceeded with.

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Q. Discuss the provision of Civil Procedure Code, 1908 which prevents multiplicity of suits in respect of same cause of action. (Dec, 21 4 Marks)

Ans. Section 11 of the Code of Civil Procedure 1908, deals with the doctrine of Res Judicata that is, bar or restraint on repetition of litigation of the same issues. It is a pragmatic principle accepted and provided in law that there must be a limit or end to litigation on the same issues. The doctrine underlines the general principle that no one shall be twice vexed for the same cause.

For the applicability of the principle of res judicata embodied in Section 11, the following requirements are necessary:

(a)The matter directly and substantially in issue in former suit shall also be directly and substantially in issue in latter suit.
(b)The issue or the suit itself is heard and finally decided, then it operates as res judicata.
(c)Such former suit and the latter are between the same parties or litigation under the same title or persons claiming under parties above.

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Q. Explain the difference if any, in between ‘Res Judicata’ and ‘Res Sub-Judice’. (June, 19 4 marks)

Ans. The Rule of Res Sub Judice relates to a matter which is pending judicial enquiry while Res Judicata relates to a matter adjudicated upon or a matter on which judgement has been pronounced. Res Sub Judice bars the trial of a suit in which the matter directly or substantially is pending adjudication in a previous suit, whereas rule of res judicata bars the trial of a suit of an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit between the same parties under the same title.

Res Judicata arises out of considerations of public policy viz., that there should be an end to litigation on the same matter. Res-Judicata presumes conclusively the truth of the former decision and ousts the jurisdiction of the Court to try the case. It is however essential that the matter directly and substantially in issue must be the same as in the former suit and not matters collaterally or incidentally in issue.

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Q. Whether in case of consent and compromise decree in between parties, principle of Res Judicata shall apply ? Discuss. (June, 21 4 Marks)

Ans. A consent or compromise decree is not a decision by Court. It is an acceptance of something to which the parties had agreed. The Court does not decide anything. The compromise decree merely has the seat of the Court on the agreement of the parties. As such, the principle of res judicata does not generally apply to a consent or compromise decree. But when the court on the facts proved comes to a conclusion that the parties intended that the consent decree should have the effect of deciding the question finally,the principle of res judicata may apply to it.

Section 11 of the Code of Civil Procedure, 1908 deals with the doctrine of Res Judicata. The doctrine underlines the general principle that no one shall be twice vexed for the same cause, however, it does not apply in case of Consent and Compromise between parties, but depends on the Court, subject to the facts of the case.

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Q. Discuss the provisions relating to place of suing under section 16 of the Code of Civil Procedure, 1908. (Dec, 21 4 Marks)

Ans. According to section 16 of the Code of Civil Procedure, 1908, subject to the pecuniary or other limitations prescribed by any law, the following suits (relating to property) shall be instituted in the Court within the local limits of whose jurisdiction the property is situated:

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a)for recovery of immovable property with or without rent or profits;
b)for partition of immovable property;
c)for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;
d)for the determination of any other right to or interest in immovable property;
e)for compensation for wrong to immovable property;
f)for the recovery of movable property actually under distraint or attachment.

Further, It has been provided by a proviso that where relief could be obtained through personal obedience of the defendant such suit to obtain relief for compensation or respecting immovable property can be instituted either in a local Court within whose local limits of jurisdiction the property is situated or in the Court within whose local limits of jurisdiction the defendant voluntarily resides or carries on business or personally works for gain.

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Q. Elaborate the provisions of Civil Procedure Code, 1908 regarding suits by or against minors and what will be the impact after minor attains the age of majority? (Dec, 20 8 Marks)

Ans. A minor is a person (i) who has not completed the age of 18 years and (ii) for whom or his/her property a guardian has been appointed by a Court, or whose property is under a Court of Wards, the age of majority is completed at the age of 21 years.

Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. The next friend should be a person who is of sound mind and has attained majority. However, the interest of such person is not adverse to that of the minor and that he is not in the case of a next friend, a defendantfor the suit. (O.32, Rules 1 and 4 of Civil Procedure Code ).

Where the suit is instituted without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. (O.32, R.2).

Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor [O.32, R.3(1)].

An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff [O.32, R.3(2)]

A person appointed as guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continues as such throughout all proceeding arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree. [O.32, R.3(5)].

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When minor attains majority – When the minor plaintiff attains majority he may elect to proceed with the suit or application or elect to abandon it. If he elects the former course, he shall apply for an order discharging the next friend and for leave to proceed in his own name and the title of the suit will be corrected. If he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant apply for an order to dismissthe suit on repayment of the costs incurred by the defendant or opposite party etc.

Q. ‘Explain provisions of summary procedure’ including leave to defend under Civil Procedure Code. (June, 19 4 Marks)

Ans. Order 37 of the Civil Procedure Code provides for a summary procedure in respect of certain suits. The object is to prevent unreasonable obstruction by a defendant. A procedure by way of summary suit applies to suits upon bill of exchange, hundies or promissory notes, when the plaintiff desires to proceed under the provisions of Order 37.

The rules for summary procedure are applicable to the High Courts, City Civil Courts and Small Courts and such other Courts.

Leave to defend

Order 37 Rule 3 of the Civil Procedure Code prescribe the mode of service of summons etc. and leave to defend. The defendant is not entitled to defend the suit unless he enters an appearance within 10 days from the service of summons.

Such leave to defend may be granted unconditional or upon such term as the Court or the Judge may think fit. However, such leave shall not be granted where:

(1)the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence or that the defences are frivolous or veracious, and
(2)the part of the amount claimed by the plaintiff and admitted by the defendant to be due from him is not deposited by him in the Court.

On the hearing of such summons for judgement, the plaintiff shall be entitled to judgement provided the defendant has not applied for leave to defend or if such application has been made and is refused or where the defendant is permitted to defend but he fails to give the required security within the prescribed time or to carry out such other precautions as may have been directed by the Court.

After decree, the Court may, under special circumstances set-aside the decree and if necessary stay or set aside execution, and may give leave to the defendant to appear and to defend the suit. (Order 37 Rule 4)

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Q. In a civil case what remedies are available for the defendant against whom an ex-parte decree has been passed by the court ? (Dec, 18 4 marks)

Ans. In a civil case, a defendant has four remedies available if an ex-parte decree is passed against him:

a)He may file an appeal against the ex-parte decree under Section 96 of the Civil Procedure Code.
b)He may file an application for review of the judgement. (Order 47, Rule 1 of the Civil Procedure Code)
c)He may apply for setting aside the ex-parte decree.
d)A suit can also be filed to set aside an ex-parte decree obtained by fraud but no suit shall lie for non-service of summons.

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Criminal Procedure Code

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Q. Define ‘Complaint’ under Criminal Procedure Code, 1973. (Dec, 20 4 Marks)

Ans. “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code of Criminal Procedure, 1973 that some person, whether known or unknown, has committed an offence, but it does not include a police report. [Section 2(d)]

However, a report made by the 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 making the report as a complainant. In general a complaint about an offence can be filed by any person except in cases of offences relating to marriage, defamation and offences mentioned under Sections 195 and 197.

It is to be noted that a complaint in a criminal case is what a plaint is in a civil case.

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Q. Distinguish between cognizable and non-cognizable offence under the Criminal Procedure Code, 1973. (June, 19 5 Marks)

Ans. According to Section 2(c) of the Code of Criminal Procedure, 1973 “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.

As per Section 2 (l) of the Code of Criminal Procedure, 1973 “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. Thus, a non-cognizable offence needs special authority to arrest by the police officer.

In order to be a cognizable case under Section 2(c) of the Code, it would be enough if one or more (not ordinarily all) of the offences are cognizable.

It may be observed from the First Schedule that non-cognizable offences are usually bailable while cognizable offences are generally non-bailable. Cognizable offences are generally more serious than non-cognizable offences.

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Q. Section 41 of the Criminal Procedure Code, 1973 enumerates the different categories of cases in which a police officer may arrest a person without an order from a Magistrate and without a warrant. Explain any five Categories of such cases. (Dec, 20 5 Marks) or

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Q. Enumerate any four categories of cases in which a police officer may arrest a person without an order from magistrate and without a warrant under section 41 of Cr.P.C., 1973. (Dec, 19 4 Marks)

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Ans. Section 41 of the Criminal Procedure Code 1973, enumerates different categories of cases in which a police officer may arrest a person without an order from a Magistrate and without a warrant. Any police officer may without an order from a Magistrate and without a warrant, arrest any person–

(a)who commits, in the presence of a police officer, a cognizable offence;
(b)against whom a reasonable complaint has been made, or credible informationhas been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:–
(i)the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii)the police officer is satisfied that such arrest is necessary–
a.to prevent such person from committing any further offence; or
b.for proper investigation of the offence; or
c.to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
d.to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
e.as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentenceand the police officer has reason to believe on the basis of that information that such person has committed the said offence;

(c)who has been proclaimed as an offender either under this Code or by order of the State Government; or

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(d)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
(e)who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f)who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g)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
(h)who being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or
(i)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 causes for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issues the requisition.

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Q. Explain the requisites of a ‘warrant of arrest’. What is the time limit within which the police officer should bring the person arrested before the court. (June, 21 4 Marks)

Ans. Every warrant of arrest issued by a Court under the Code of Criminal Procedure, 1973 shall be in writing, signed by the presiding officer of such Court, and shall bear the seal of the Court. Such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. (Section 70).

The form of warrant of arrest is Form No.2 of the Second Schedule of the Code of Criminal Procedure, 1973. The requisites of a warrant are as follows:

1.It must be in writing.
2.It must bear the name and designation of the person who is to execute it;
3.It must give full name and description of the person to be arrested;
4.It must state the offence charged;
5.It must be signed by the presiding officer; and

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6.It must be sealed.

Such warrant is only for production of a person before the concerned Court and not before the police officer.

Under Section 76 the police officer or other person executing the warrant of arrest shall (subject to the provisions of Section 71 as to security) bring the person arrested before the Court without unnecessary delay provided that such delay shall not in any case exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

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Q. Explain the procedure given in Criminal Procedure Code, 1973 for publication of proclamation regarding absconding persons. (Dec, 21 4 Marks)

Ans. According to section 82 of the Criminal Procedure Code, 1973, if a Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, the Court may publisha written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. While issuing proclamation, the Magistrate must record to his satisfaction that the accused has absconded or is concealing himself.

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The Court issuing a proclamation may, for reasons to be recorded in writing, at any time after the issue of such proclamation, order the attachment of any property, movable or immovable, or both belonging to the proclaimed person. When the person in relation to whom the proclamation is to be issued is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local jurisdiction of the Court, the Court may order the attachment simultaneously with the issue of the proclamation.

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The proclamation should be published as follows:

(i)(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b)it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c)a copy thereof shall be affixed to some conspicuous part of the Court- house;
(ii)the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person

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ordinarily resides.

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Q. Describe in brief the cases in which a Search Warrant can be issued under Section 93 in the Criminal Procedure Code, 1973. (Dec, 19 4 Marks)

Ans. According to Section 93 of the Criminal Procedure Code, 1973, a search warrant can be issued onlyin the following cases:

(i)Where the Court has reason to believe that a person summoned to produce any document or other thing, will not produce it
(ii)Where such document or other thing is not known to the Court to be in the possession of any person
(iii)Where a general inspection or search is necessary. However, a search warrant may be general or restricted in its scope as to any place or part thereof.

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Q. Discuss the power under section 144 of the Code of Criminal Procedure, 1973 to issue order in urgent cases of nuisance or apprehended danger. (Dec, 21 – 4 Marks) or

Q. Discuss the power to issue order is urgent cases of nuisance or apprehended danger under section 144 of the Criminal Procedure Code, 1973. (June, 21 – 4 Marks)

Ans. As per Section 144 of the Code of Criminal Procedure, 1973, where in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable, in such cases the Magistrate may by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of the public tranquility,or a riot, or an affray.

An order under this Section may be passed ex-parte in cases of emergency or in cases where the circumstances do not admit of the serving of notice in due time upon the person against whom the order is directed.

Validity of such Orders An order under this Section can remain in force for 2 months,

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and may be extended further for a period not exceeding 6 months by the State Government if it considers necessary.

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Q. Discuss the provisions relating to information to the police and their power to investigate in cognizable and non-cognizable cases under the Criminal Procedure Code 1973. (Dec, 19 8 Marks)

Ans. Information in cognizable cases and investigation of such cases.

According to Section 154 of the Criminal Procedure Code 1973, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant. Every such information shall be signed by the person giving it and the substance thereof shall be entered in a book kept by such officer in such form as may be prescribed by the State Government in this behalf.

The above information given to a police officer and reduced to writing is known as First Information Report (FIR). The investigation of the case proceeds on this information only. Thus, the principal object of this Section is to set the criminal law in motion and to obtain information about the alleged criminal activities so as to punish the guilty.

For the purpose of enabling the police to start investigation, it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in- charge of the police station as indicated in Section 154 of the Code.

Any person aggrieved by a refusal on the part of an officer incharge of a police station to record the information may send the substance of such information in writing and by post to the Superintendent of Police concerned who if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.

Information as to non-cognizable cases and investigation of such cases

As per Section 155 of the Criminal Procedure Code 1973, when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the informant to the Magistrate. The police officer is not authorised to investigate a non-cognizable case without the order of Magistrate having power to try such cases, and on receiving the order, the police officer may exercise the same powers in respect of investigation as he may exercise in a cognizable case.

Where a case relates to two