JIGL Full Notes

JAI AASHAPURA MATA KI
INDEX
Chapter No. Name Page no.
1. Sources of Law 1.1 – 1.31
2. Constitution of India 2.1 – 2.59
3. Interpretation of Statues 3.1 – 3.26
4. General Clauses Act, 1897 4.1 – 4.25
5. Administrative Law 5.1 – 5.30
6. Law of Torts 6.1 – 6.19
7. The Limitation Act, 1963 7.1 – 7.15
8. The Code of Civil Procedure, 1908 8.1 – 8.34
9. Indian Penal Code, 1860 9.1 – 9.45
10. Code of Criminal Procedure, 1973 10.1 – 10.32
11. Indian Evidence Act, 1872 11.1 – 11.38
12. Special Courts, Tribunals under the Companies Act & Other Legislations 12.1 – 12.28
13. Arbitration & Conciliation Act, 1996 13.1 – 13.32
14. Indian Stamp Act, 1899 14.1 – 14.38
15. Registration Act, 1908 15.1 – 15.20
16. Right to Information Act, 2005 16.1 – 16.22
17. Information Technology Act, 2000 17.1 – 17.42

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Sources of Law
Points to be studied
1. Meaning, nature, characteristics and significance of law.
2. Various five different categories of law
3. Sources of Indian Law.
a) Primary Source of Law
b) Secondary source of law
4. Customs- Meaning ,classification & Requisites
5. Decisions of Upper courts are binding on Lower courts
6. Judicial precedents and it’s types
7. Personal Law- Hindus & Mohammedans
8. Legislation- Supreme & Subordinate
9. Justice, Equity & Conscience
10. English Law- Common Law , Law of Merchant , Principle of Equity ,Statute law
11. Doctrine of stare decisis
12. Ratio decidendi
13. Obiter Dictum
14. Jurisprudence & its 3 Angles- Analytical,Sociological,Telelogical
15. Short note on:
a. Austin’s command theory of law.- Positivist
b. Roscoe pounds theory of law- Social engineering
c. Salmond’s theory of law-Principles recognized & Applied by the state in the administration
of Justice
d. Kelsen’s pure theory of law- Theory of Positive Law- Grundnorm( Basic Norm)
e. Bentham’s theory of law- Pleasure & pain theory
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Law is an instrument to regulate human behavior whether in social life or business life.
Nature and Meaning of Law
Law is described by various jurist. There is no unanimity of opinion regarding for a nature and
meaning of law.
At different times and from different point of view the meaning of law changes. Therefore, since
their n precise and definition meaning of law. We can’t define law which may hold good for all the
times to come.
Conclusion
Hence law is not universal in nature because different legal theorist have propounded different
facts of law and have helped in building up a complete and rounded picture of the concept of law.
We shall classify law in following five broad categories.
Natural Positivistic Historical Sociological Realistic
Definition Definition Definition Definition Definition
↓ ↓ ↓ ↓ ↓
By the law Law is command It defines law in Law is a social Law is derived
Roman of sovereign the sense that institution to out of judicial
↓ which imposes a “law is found and satisfy the social process.
duty and is not made” (i.e. wants
Law is based on backed by custom law)
Justice ↓
sanctions.
↓ i.e. socio
economic justice
What is JUST & [Austin & Kelsen [theory of social
UNJUST Theory] engineering]
[Salomond [Roscoe Pound

Theory] Theory]
Conclusion:
Thus there is no universal definition / meaning of law. All above 5 categories when combined a
complete picture of concept of law that is derived “Law is a mechanism developed by sovereign to
provide justice and regulate the human behavior in the society.”
Characteristics of Law
Law to become universal in nature must include all the following elements
1. There is a “state” (i.e. sovereign)
2. State makes or authorizes to make or sanctions rules of conduct by people [Laws] as
circumstances & conditions in a society change
3. The rules may have some purpose (social / personal)
4. The rules shall be effective from a particular time & in a particular territory.
Therefore separate rules & principles are called laws. Laws may be:
a. Affirmative act (action) (mandatory law)
e.g. Payment of Taxes
b. Negative conduct (prohibitive law)
e.g. Prohibits carrying weopon in concealed way.
c. Permissive law (not mandatory / prohibitory) eg: Licences
Conclusion:Thus, law is not static as it changes with change in circumstances and conditions in
society.
Significance of Law
1. Law is not static as it changes with the change in circumstances and condition in society.
2. Modern science and Technology have transformed the concept and structure of law.
3. Law has a basic object of social justice and order which will help to provide security for the
future by removing the existing imbalances in our socio – economic structre.
Conclusion:Thus, since law has to serve as vehicle of social change and with the objective of
providing equality of income and justice ,law has lot of significance in our civilized society.
Sources of Indian Law
Principle source of Indian law Secondary source of Indian law

↓ ↓
1. Customs / customary law 1. Justice, equity & good conscience. (good
2. Judicial decisions / precedents intention / motive)
3. legislation 2. English law
4. Personal law
Meaning of customs and its classification and requisites

1. A rule in a particular family or district or section of society or class or tribe which is been
used since long period obtains force of law.
2. Customs may be divided into
Custom without sanction Custom having sanction
1. It is not obligatory 1. Legal customs – such customs are recognized and

2. It is observed due to enforce by courts, which form part of law of land,
public pressure (say known as
truth) - Local customs &
e.g. Positive morals - General customs
2. Conventional customs
- It is binding due to an agreement between
parties & not due to any legal authority.
e.g. Dress code of different religions & states
in India
Requisites of valid custom
A custom will be valid at law and will have a binding force only if it fulfils the following essential
conditions, namely:
1. Immemorial (Antiquity): A custom to be valid must be proved to be immemorial it must e
ancient. According to Blackstone, “A custom, in order that it may be legal and binding must
have been used so long that the memory of man runs not the contrary, so that, if anyone can
show the beginning of it, it is no good custom.”
2. Certainty: The custom must be certain and definite and must not be vague and ambiguous.
3. Reasonableness: A custom must be reasonable. It must be useful and convenient to the
society. A customs is unreasonable if it is opposed to the principles of justice, equity and good
conscience.
4. Compulsory Observation: 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.
5. Conformity with law and public morality: A customer must not be opposed to morality or
public policy nor must it conflict with statute law. If a custom is expressly by legislation and
abrogated by a statute, it is inapplicable.
6. Unanimity of opinion: The custom must be general or universal. If practice is left to individual
choice, it cannot be termed as custom.
7. Peaceable enjoyment: The custom must have been enjoyed peaceably without any dispute in
a law court or otherwise.
8. Consistency: There must be consistency among the custom. Custom must not come into
conflict with the other establish customs.
Summary:
- Antique / ancient
- Certain & definite
- Reasonable - useful and convents to society
- Compulsorily being observed
- Confirms with law and public morality
- Unanimity of opinion
- (i.e. universal)
- Consistent
(not in conflict with other established custom)
A custom is rule which in a particular family or district or particular sect, class or tribe has from
long usage obtained force of law. Custom have played an important role in moulding the ancient
Hindu Law.Customs have worked as a driving force in Indian Law.
Decisions of Upper courts are binding on Lower courts:
High Court
1. High court is bound by the decision of Supreme Court and Privy council.
2. The decision of HC are binding on all the subordinate courts and tribunals within it’s
jurisdiction.
3. The decision of one HC are not binding on the other HC and have only persuasive value.
4. In a HC, a single judge constitutes the smallest Bench.
a. A bench of two judges is known as Division bench.
b. Three or more judges constitute a full bench.
5. One bench of the same HC can’t take a view contrary to the decision already given by another
coordinate bench of the HC.
6. In case of any conflict between the two decisions of co – equal benches, generally the later
decision is to be followed.
Supreme Court
1. The SC is the highest court and its decisions are binding on all courts and other judicial
tribunals of the country.
2. The expression ‘all courts’ used in Article 141 refers only to courts other than the SC. Thus,
the SC is not bound by its own decisions.
3. SC has observed that the earlier decisions of the court can’t be departed from unless there are
extraordinary or special reasons to do so.
Precedents:
1. Precedent literally means a rule followed or a principle applied previously by a competent
authority under similar facts and circumstances. If previous decisions by a court is taken as a
basis or source for deciding the case under similar fact and circumstances, it is called judicial
precedent.
2. According to Salmond:
a. In loose sense it includes merely reported case law which may be cited and followed by
courts.
b. In strict sense, that case law which not only has a great binding authority but must also be
followed.
3. According to Bentham precedents are ‘Judge made Law’.
a. Only such decisions which lay down some new rule or principle are called judicial
precedents.
b. The principles of law expressed for the first time in court decisions become precedents to
be followed as law in deciding problems and cases identical with them in future. The rule
that a court decision becomes a precedent to be followed in similar cases is known as
doctrine of Stare Decisis.
c. The practice of following precedent creates confidence in the minds of litigants. Law
becomes certain and known and that in itself is a great advantage.
d. Administration of justice becomes equitable and fair.
Kinds of Precedents : Precedents may be classified as:
1. Declaratory and original precedents
2. Persuasive precedents
3. Absolutely authoritative precedents
4. Conditionally authoritative precedents
Various Types of Precedent’s
Original Declaratory Persuasive Absolutely authoritative precedents
Conditionally Authoritative Precedents
1. Original Precedents: Is one which creates and applies a new rule. The number of original
precedent is small but their importance is very great. They alone develop the law of the country.
They serve as good evidence of law for the future.
2. Declaratory Precedents: Is one which is merely the application of an already existing rules of
law. Declaratory precedent is already a declaratory law and follows in present and future
declaratory precedents are numerous.
The legal authority of both declaratory and original precedents is exactly the same.
3. Persuasive Precedents:
a. The judges are not obligated to follow but which they will take into consideration and to
which they will attach great weight as it seems to them to deserve.
b. In India, the decision of one high court are only persuasive precedents in the other High
Court.
c. The ruling of the English and American courts are persuasive precedents only.
4. Absolutely Authoritative Precedents
a. Judges must follow whether they approve of it or not.
b. Thus, decisions of supreme court are binding force on High Courts and District courts.
c. An authoritative precedent is a legal source of law.
5. Conditionally Authoritative Precedents
a. Is one which though ordinarily binding on the court before which it is cited, is liable to be
disregarded in certain circumstances.
Doctrine of Stare Decisis : Stare Decisis means ‘to stand by decided cases’.
1. The doctrine of stare Decisis means, “adhere to the decision and do not unsettle things which
are established.”
2. Important points relating to doctrine of Stare Decisis:
a. The doctrine brings certainty and uniformity in the law.
b. A principles of law which has become settled by a series of decisions generally is binding on
the courts and should be followed in similar cases.
c. It is based on public policy and expediency.
d. This should be strictly adhered to by the courts, but it is not universally applicable.
Example: Triple Talak.
e. The doctrine should not be regarded as a rigid and inevitable doctrine which must be
applied at the cost of justice.
Ratio Decidendi and Obiter Dictum
1. The decision or judgement of a judge may fall into two parts:
Ratio Decidendi Obiter Dictum
Reason for the decision Something said by the way
a. Ratio Decidendi
i. When a judge delivers judgement in a case he outlines the fact which he finds have been
proved on the evidence.
ii. Then he applies the law to those facts and arrives at a decision, for which he gives the
reason.
iii. Prof. Goodhart, Ratio decidendi is nothing more than the decision based on the material
fact of the case.
iv. The principles which are deducted by way of abstraction of the material facts of the case
eliminating the immaterial elements is known as ratio decidendi.
b. Obiter Dictum
i. Obiter dictum is nothing but the supplementary opinion by a judge that is not essential
to the actual decision.
ii. The binding part of a judicial decision is the ratio decidendi. An obiter disctum is not
binding in later cases because it was not strictly relevant to the matter in issue in the
original case.
iii. An obiter dictum may be of persuasive value in later cases.
Legislation as Source of Law

1. “Legis” means law and “latum” means making legislation means law making.
2. According to Salmond, “legislation is that source of law which consists in the declaration of
legal rules by a competent authority”.
3. It is sometimes called Jus scriptum as contrasted with the customary law or Jus Non scriptum.
4. Legislation is either supreme or subordinate.
a. Supreme Legislation:
i. Supreme legislation is that which proceeds from the sovereign power in the state or
which derive it’s powers directly from the constitution/
ii. Act of parliament and the ordinance and other laws made by the President and
governors.
b. Subordinate legislation/Delegated Legislation
i. Is that which proceeds from any authority other than sovereign power.
ii. It is dependent for it’s continued existence and validity on some sovereign or supreme
authority.
iii. The legislation made by various authorities like corporations, municipalities etc.
iv. The limits under which powers of delegated legislation may be exercised is Classified
into – Executive,Judicial,Municipal,Autonomous,Colonial.
Personal law
The courts are required to apply the personal law of the parties where the point at issue is not
covered by any statutory law or custom.
Personal laws for Hindus Personal laws for Mohammedans
A. Personal laws for Hindus: In the case of hindus, for instance, their personal law is to be found
in:
1. The Shruti which includes four Vedas.
2. The Smritis which are recollections handed down by the Rishi’s or ancient teaching and
precepts of God, the commentaries written by various ancient authors or these Smritis.
a. There are three main Smritis:
Manu Yajnavalkya Narada
B. Personal Laws for Mohammedans

1. The personal law of Mohammedans is to be found in:
a. The holy kuran
b. The actions, percepts and saying of the Prophet Mohammed which though not written
during his life time were preserved by tradition and handed down by authorized person.
These are known as Hadis.
c. Ijmas, i.e. a concurrency of opinion of the companions of the Prophet and his disciples.
d. Kiyas or reasoning by analogy.
2. Mohammedans are governed by their personal law as modified by statute law and custom
in all matters relating to inheritance, will succession, legacies, marriage, dowry, divorce,
gifts, wakfs, guardianship and pre – emption.
Justice, equity and good conscience
1. The general idea behind “Justice, Equity and good conscience” doctrine was that if on a
particular point of dispute before the court there was no express / parliamentary law, no
regulation and if it fell outside the heads for which Hindu and Mohammedan laws were
prescribed, then the court was to decide the matter according to ‘Justice, equity and good
conscience’.
2. The concept of Justice, Equity and Good conscience’ also means application by Indian courts
rules of English law in so far as they are applicable to Indian society and circumstances.
English Law: Main Sources
Common Law
1. The name given to those principles of law evolved by the judges in making decisions on case
that are brought before them.
2. Primary source of law:
a. General Antique( unique) customs
b. Judicial decisions
c. Text books on jurisprudence
Law of Merchant
Means those customs and usages which are binding on traders in their dealing with each other.
Principle of Equity
1. Equity is a body of rules, the primary source of which was neither custom nor written law.
2. In same case, there was no remedy or inadequate remedy at common law. The king is
considered as the fountain head of justice. Mercy petitions filed with the king by people who
were dissatisfied with decision of common law, were referred to the chancellor/Bishop by the
King and the bishop used to pass decision based on his common sense,natural justice & good
conscience.
Statute law
1. Is that portion of law which is derived from the legislation or enactment of parliament or the
subordinate and delegates legislative bodies.
2. Important enactments in the domain in Mercantile law are:
a. English Partnership Act, 1890
b. English Sale of Goods Act, 1893
c. Carriers Act, 1830
d. English Companies Act, 1948
Jurisprudence and it’s classification
Meaning – Juris – Law
Prudence – Knowledge
Therefore, Jurisprudence is study of science of law.
The jurisprudence theory was defined not about any particular statute or a rule but of law in
general, it’s concepts, it’s principle and philosophies.
The theory helps to obtained a deeper understanding of the legal institutions and the role of law
in society.
The word Jurisprudence have been classified by various scholars in the following various angles:
1. Analytical Jurisprudence
a. This theory results from analyzing and comparing many legal concept and does not depend
upon any one theory or existing principles or laws.
b. It is an abstract theory of law in which a system is described without specifying a structure.
2. Social Jurisprudence
a. This theory was coined by the Americal Jurist Roscoe Pound.
b. The theory focuses on the actual social effects of legal institutions, doctrines and practices.
c. The theory examines the actual effects of law within society and the influence of social
aspects on law, also known as sociology of law.
3. Teleological Jurisprudence
Telos the Greek word means end and logos means disclosure.
a. This theory emphasizes that law is the product of human reason and is related to the idea
for human purpose.
b. Thus, the theory seeks to find the supreme ends which law should follow i.e. study of design
or purpose of law.
Austin’s Command Theory of Law
The command theory of law is divided into following two aspects.
1. Law properly so called
2. Law improperly so called
According to Austin “Law properly” so called as drafted by the political superiors to political
inferiors. Example: Command given by the King to the common people.
Austin explained “Laws improperly so called” as those laws which are not said directly or indirectly
by a political superior. They are voluntarily followed by a people such as morals.
Thus, according to Austin law is the command of sovereign which imposes a duty and on failure
to fulfill the duty it imposes sanctions.
Conclusion: Thus the Austin’s command theory of law though focuses on a positive aspect of law.
The theory ignores inter – relationship between law and morality as well as judge made law did
not find place in the theory.
Roscoe Pound’s Theory of Law
1. One of the most leading and influential jurists who developed American sociology jurisprudence
in a systematic form.
2. Roscoe Pound’s concept of law is of practical importance which inspires judges, legislators and
jurists to mould and adjust law to the needs and to interest of the community.
3. The end of law according to him is to satisfy a maximum of wants with a minimum of fraction
or confrontation.
4. Roscoe Pound stated that the function of law is to reconcile the conflicting interest of
individuals in the community and harmonize their inter – relations. He termed this as “social
engineering.”
5. The goal of 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’.
6. Roscoe Pound’s classification of interest as follows:
a. Individual interest: These are claims or demands determined from the standpoint of
individual’s life and concern. They are:
i. Interest of personality
ii. Interest in domestic relations
iii. Interest of substance
b. Public Interest: These interests are asserted by individual from the standpoint of political
life they are:
i. Interest of the state as a justice person.
ii. Interest of the state as guardian of social interest.
c. Social Interest: These are claims or demands thought of in terms of social life and
generalized as claim of the social group. It is from the point of view of protecting the general
interest of all members of the society.
Salmond’s Theory of Law
1. This theory claimed that the purpose of law was to deliver justice to the people and required
the presence of the state for implementation of law.
2. Salmond law is the body of principles which are recognized and applied by the state in the
administration of justice.
3. Salmond says that human experience has made it clear that some form of compulsion is
required to maintain justice.
4. If a just society is to be maintained then same regulations are necessary.
5. Salmond argued that the administration of justice was primary task of the state and the laws
were made to achieve that objective.
6. Conclusion: Thus, the Salmond’s theory pursuit justice only and emphasizes that justice is
the end and law is only a medium to realize it.
Kelsen’s Pure Theory of Law

The Kelsen theory is a theory of positive law which is presented by Kelsen as forming hierarchy of
law which start from a basic norm. (i.e. Grundnorm)
1. All other norms are related to each other with the basic norm being the superior one.
2. The theory of Kelsen was made applicable at all time and all places.
3. Kelsen law is a ought proposition (i.e. “if A happens then B is ought to happen”) Example: If
someone commits theft, the judge ought to punish him.
4. The Grundnorm determines the contain and gives validity to other norms derived from it.
5. Conclusion: However, the Kelsen’s theory of law is practically difficult to implement because
it is difficult to find a Grundnorm in every legal system. As well as the theory pointed out that
law should be kept free from morality.
Bentham’s theory of law- Pleasure & pain theory

1. According to Bentham him ‘a law’ may be defined as collection of signs & declarations at the
will of sovereign adopted by the sovereign in a state, concerning the conduct to be observed of
persons are supposed to be subject to his power. Thus, Bentham’s concept of law is an imperative
one.
2.Bentham claimed that nature has placed man under the command of two sovereigns – pain and
pleasure. ‘Pleasure’ in Bentham’s theory has a somewhat large signification.
3.The function of laws should be to bring about the maximum happiness of each individual for the
happiness of each will result in the happiness of all.
4.The justification for having laws is that they are an important means of ensuring happiness of
the members of community generally.
5. Conclusion : However the theory Does not take into account laws conferring power like the
power to make contracts, create title etc & it did not give a fair treatment to custom as a source of
law. Bentham’s theory did not allow for judge made laws .The theory did not provide how a
subjective criterion of pain and pleasure can be transmuted into an objective one.Vague
criteria of happiness: It is not always true that an increase in the happiness of a certain segment
of society will lead to an increase in the overall happiness level because it might be associated with
a diminution in the happiness of some other rival section of the society.
IMPORTANT QUESTIONS FOR PRACTICE
Q No. 1. Write a short note on: Sources of Law

Q No. 2. What do you understand by the term custom? Describe the reasons for binding force of
customs.
Q No. 3. What are the requisites of a valid custom? Describe the reasons for binding force of
customs.“Custom is source of law, provided it satisfies a certain minimum requirement.”
Elucidate.
Q No. 4. Explain: Precedent as source of law.
Q No. 5. Discuss the various types of precedents.
Q No. 6. Write a short note on: Doctrine of Stare Decisis
Q No. 7. Explain the terms ‘Ratio Decidendi’ & ‘Obiter Dictum’.
“It is the ratio decidendi or the general principle which has the binding effect as a precedent, and
not the obiter dictum”. Explain.
Q No. 8. Discuss the legislation as source of law.
Q No. 9. Legislation is either supreme or subordinate. Comment.
What is ‘delegated legislation’? What are the limits under which powers of delegated legislation
may be exercised?
Source of Law 1.13
Chapter
1 Sources of Law
Introduction: In any society, everybody is subject to the law. Everybody must do as the law
says, or face the punishments which can be handed out to law-breakers. Societies have laws in
order to protect people from the actions of other people. There are many different sources of law
in any society. Some laws will be written in the country's Constitution; others will be passed by
the legislature (usually a parliament); some other laws will come from long social tradition.
In this chapter we are discussing various sources of law and various theories of laws.
Nature of Law
Que. No. 1] Write a short note on: Classification of definition of law
Ans.: For the purpose of clarity and better understanding of the nature and meaning of law, definitions of
law can be classified into five broad classes:
(a) Natural
(b) Positivistic
(c) Historical
(d) Sociological
(e) Realistic
Que. No. 2] Critically examine the Natural School’s definition of ‘law’.
Ans.: Under Natural School fall most of the ancient definitions given by Roman and other ancient Jurists.
Various definitions are as follows:
Ulpine Law is the art or science of what is equitable and good.
Cicero Law is the highest reason implanted in nature.
Justinian’s Law is the standard of what is just and unjust.
Digest
Vinogradoff Law is a set of rules imposed and enforced by society with regard to the attribution and
exercise of power over persons and things.
Salmond Law is the body of principles recognized and applied by the State in the administration of
justice.
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.
Que. No. 3] Write a short note on: Positivistic definition of law

Ans.: Natural law theory exaggerates the relation of law and morality. Positive law is a reaction against
particularly that aspect of natural law theory. It insists on a distinction between human law, which they
call positive law and moral and scientific laws.
According to John Austin, “law is the aggregate of rules set by man as politically superior, or sovereign, to
men as political subject.”
In other words, law is the “command of the sovereign”. It obliges a certain course of conduct or imposes a
duty and is backed by a sanction.
Thus, the three elements of law are:
 Command,
 Duty and
 Sanction.
CA, CS Nilamkumar Bhandari CS N S Zad

Source of Law 1.14
Kelsen gave a ‘pure theory of law’. According to him, law is a ‘normative science’. The legal norms are
‘Ought’ norms as distinct from ‘Is’ norms of physical and natural sciences.
Law does not attempt to describe what actually occurs but only prescribes certain rules. The science of
law to Kelson is the knowledge of hierarchy of normative relations.
Que. No. 4] Write a short note on: Historical definition of Law
Ans.: Savigny’s theory of law can be summarized as follows:

 Law is a matter of unconscious and organic growth. Therefore, law is found and not made.
 Law is not universal in its nature. Like language, it varies with people and age.
 Custom not only precedes legislation but it is superior to it.
 Law should always conform to the popular consciousness.
 Law has its source in the common consciousness of the people.
 Legislation is the last stage of law making, and, therefore, the lawyer or the jurist is more important than
the legislator.
According to Sir Henry Maine, “the word ‘law’ has come down to us in close association with two notions,
the notion of order and the notion of force”.
Que. No. 5] Write a short note on: Sociological definition of Law
Ans.: Duguit defines law as “essentially and exclusively as social fact.”

Ihering defines law as “the form of the guarantee of the conditions of life of society, assured by State’s
power of constraint”.
There are three essentials of this definition.
 First, in this definition law is treated as only one means of social control.
 Second, law is to serve social purpose.
 Third, it is coercive in character.
Roscoe Pound a distinguished American legal scholar was a leading jurist of 20th century and was one of
the biggest proponents of sociological jurisprudence which emphasized taking into account of social facts
in making, interpretation and application of laws.
Roscoe Pound 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. Realization 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 organized societies are to endure.
Que. No. 6] Write a short note on: Realist Definition of Law
Ans.: Realists define law in terms of judicial process.

According to Holmes, “Law is a statement of the circumstances in which public force will be brought to
bear upon through courts.”
According to Cardozo, “A principle or rule of conduct so established as to justify a prediction with
reasonable certainty that it will been forced by the courts if its authority is challenged, is a principle or
rule of law.”
From the above definitions, it follows that law is nothing but a mechanism of regulating the human
conduct in society so that the harmonious co-operation of its members increases and thereby avoid the
ruin by coordinating the divergent conflicting interests of individuals and of society which would, in its
turn, enhance the potentialities and viability of the society as a whole.

Source of Law 1.15
Que. No. 7] Law has undergone a vast transformation – conceptual and structural. Do you
agree? Explain.
Distinguish between: Prohibitive Law & Permissive Law
Ans.: Following are the main characteristics of law and a definition to become universal one, must
incorporate all these elements:
 Law pre-supposes a State.
 The State makes or authorizes to make, or recognizes or sanctions rules which are called law.
 For the rules to be effective, there are sanctions behind them.
 These rules (called laws) are made to serve some purpose. The purpose may be a social purpose, or it
may be simply to serve some personal ends of a despot.
Separate rules and principles are known as ‘laws’. Such laws may be mandatory, prohibitive or permissive.
Mandatory Law: A mandatory law calls for affirmative act.
Example: Law requiring the payment of taxes is mandatory law.
Prohibitive Law: A prohibitive law requires negative conduct.
Example: Law prohibiting the carrying of concealed weapon or running a lottery are prohibitive laws.
Permissive Law: A permissive law is one which neither requires nor forbids action, but allows certain
conduct on the part of an individual if he desires to act.
The law, and the system through which it operates, has developed over many centuries into the present
combination of statutes, judicial decisions, customs and conventions. By examining the sources from
which we derive our laws and legal system, we gain some insight into the particular characteristics of our
laws.
The State, in order to maintain peace and order in society, formulates certain rules of conduct to be
followed by people. These rules of conduct are called ‘laws’.
Law is not static. As circumstances and conditions in a society change, laws are also changed to fit the
requirements of society. At any given point of time the prevailing law of a society must be in conformity
with the general statements, customs and aspirations of its people.
Modern science and technology have unfolded vast prospects and have aroused new and big ambitions in
men. Materialism and individualism are prevailing at all spheres of life. These developments and changes
have tended to transform the law patently and latently. Therefore, law has undergone a vast
transformation – conceptual and structural. The idea of abstract justice has been replaced by social
justice.
The object of law is order which in turn provides hope of security for the future. Law is expected to provide
socio-economic justice and remove the existing imbalances in the socio-economic structure and to play
special role in the task of achieving various socio-economic goals enshrined in our Constitution.
Source of Indian Law
Que. No. 8] Write a short note on: Sources of Law

CS (Inter) – Dec 1989 (7.5 Marks), June 1995 (4 Marks)
Enumerate the principle sources of Indian Law. CS (Inter) – Dec 1992 (8 Marks)
Ans.: The modern Indian law as administered in courts is derived from various sources and these sources
fall under the following two heads:
[A] Principle sources of Indian law:
(1) Customs or Customary Law
(2) Judicial Decision or Precedents
(3) Statutes or Legislation
(4) Personal Law
[B] Secondary source of Indian Law:
(1) Justice, Equity & Good Conscience
(2) English Law

Source of Law 1.16
Que. No. 9] What do you understand by the term custom? Describe the reasons for
binding force of customs. CS (Inter) – Dec 1988 (7.5 Marks), Dec 1990 (7.5 Marks)
Ans.: A custom is rule which in a particular family or district or particular sect, class or tribe has from
long usage obtained force of law.
Custom is the most ancient of all the sources of law and has held the most important place in the past,
though its importance is now diminishing with the growth of legislation and precedent.
A study of the ancient law shows that in primitive society, the lives of the people were regulated by
customs which developed spontaneously according to circumstances. It was felt that a particular way of
doing things was more convenient than others. When the same thing was done again and again in a
particular way, it assumed the form of custom.
Customs have played an important role in moulding the ancient Hindu Law. Most of the law given in
Smritis and the Commentaries had its origin in customs. The Smritis have strongly recommended that the
customs should be followed and recognized. Customs worked as a re-orienting force in Indian Law.
Classification of Customs: The customs may be divided into two classes:
(A) Customs without sanction: Customs without sanction are those customs which are non-obligatory
and are observed due to the pressure of public opinion. These are called as “positive morality”.
(B) Customs having sanction: Customs having sanction are those customs which are enforced by the
State. These may be divided into following two classes:
(1) Legal Customs: Legal customs are those customs which are recognized and enforced by the Courts
and therefore. They are part of the law of land. Legal customs are of two types:
(a) Local Customs: Local custom is the custom which prevails in some definite locality and
constitutes a source of law for that place only. But there are certain sects or communities
which take their customs with them wherever they go. They are also local customs. Thus, local
customs may be divided into two classes:
- Geographical Local Customs
- Personal Local Customs. These customs are law only for a particular locality, section or community.
(b) General Customs: A general custom is that which prevails throughout the country and
constitutes one of the sources of law of the land. The Common Law in England is equated with
the general customs of the realm.
(2) Conventional Customs: These are also known as “usages”. These customs are binding due to an
agreement between the parties, and not due to any legal authority independently possessed by
them. Before a Court treats the conventional custom as incorporated in a contract, following
conditions must be satisfied:
 It must be shown that the convention is clearly established and it is fully known to the
contracting parties. There is no fixed period for which a convention must have been observed
before it is recognized as binding.
 Convention cannot alter the general law of the land.
 It must be reasonable.
Like legal customs, conventional customs may also be classified as general or local. Local
conventional customs are limited either to a particular place or market or to a particular trade or
transaction.
Que. No. 10] What are the requisites of a valid custom? Describe the reasons for binding
force of customs. CS (Inter) – Dec 1988 (7.5 Marks), Dec 1990 (7.5 Marks)
“Custom is source of law, provided it satisfies a certain minimum requirement.”
Elucidate. CS (Inter) – June 1991 (7 Marks)
Ans.: A custom is rule which in a particular family or district or particular sect, class or tribe has from
long usage obtained force of law.
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, namely:
(1) 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 be legal and binding must have been used so

Source of Law 1.17
long that the memory of man runs not to the contrary, so that, if anyone can show the beginning of it, it is
no good custom”.
(2) Certainty: The custom must be certain and definite, and must not be vague and ambiguous.
(3) 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, equity and good conscience.
(4) 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.
(5) 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.
(6) Unanimity of opinion: The custom must be general or universal. If practice is left to individual choice, it
cannot be termed as custom.
(7) Peaceable enjoyment: The custom must have been enjoyed peaceably without any dispute in a law
Court or otherwise.
(8) Consistency: There must be consistency among the customs. Custom must not come into conflict with
the other established customs.
Que. No. 11] Decision of upper Courts are binding on lower Courts. Elaborate.
Ans.: High Courts:

 High Court is bound by the decision of Supreme Court and Privy Council.
 The decisions of High Court are binding on all the subordinate Courts and Tribunals within its
jurisdiction.
 The decisions of one High Court are not binding on the other High Courts and have only persuasive
value.
 In a High Court, a single judge constitutes the smallest Bench. A Bench of two judges is known as
Division Bench. Three or more judges constitute a Full Bench. A decision of such a Bench is binding
on a Smaller Bench.
 One Bench of the same High Court cannot take a view contrary to the decision already given by
another coordinate Bench of that High Court. Though decision of a Division Bench is wrong, it is
binding on a single judge of the same High Court.
 A decision by a Bench of the High Court should be followed by other Benches unless they have reason
to differ from it, in which case the proper course is to refer the question for decision by a Full Bench.
 In case of any conflict between the two decisions of co-equal Benches, generally the later decision is to
be followed.
Supreme Court:
 The Supreme Court is the highest Court and its decisions are binding on all Courts and other judicial
Tribunals of the country. Article 141 of the Constitution makes it clear that the law declared by the
Supreme Court shall be binding on all Courts within the territory of India. The words ‘law declared’
includes an obiter dictum provided it is upon a point raised and argued. [Bimladevi v. Chaturvedi, AIR
1953 All. 613] However, it does not mean that every statement in a judgment of the Supreme Court has
the binding effect. Only the statement of ratio of the judgment is having the binding force.
 The expression ‘all courts’ used in Article 141 refers only to Courts other than the Supreme Court.
Thus, the Supreme Court is not bound by its own decisions. However, in practice, the Supreme Court
has observed that the earlier decisions of the Court cannot be departed from unless there are
extraordinary or special reasons to do so.
 If the earlier decision is found erroneous and is thus detrimental to the general welfare of the public,
the Supreme Court will not hesitate in departing from it.
 English decisions have only persuasive value in India. The Supreme Court is not bound by the
decisions of Privy Council or Federal Court. Thus, the doctrine of precedent as it operates in India lays
down the principle that decisions of higher courts must be followed by the Courts subordinate to them.
However, higher courts are not bound by their own decisions.

Source of Law 1.18
Que. No. 12] Explain: Precedent as source of law.

CS (Inter) – June 1988 (7.5 Marks), June 1993 (7 Marks)
Ans.: Precedent literally means a rule followed or a principle applied previously by a competent authority
under similar facts and circumstances. If a previous decision by a Court is taken as a basis or source for
deciding the case under similar facts and circumstances, it is called judicial precedent.
According to Salmond –
 In loose sense it includes merely reported case law which may be cited & followed by Courts.
 In strict sense, that case law which not only has a great binding authority but must also be followed.
According to Bentham precedents are ‘Judge made Law’.
In general use, the term “precedent” means some set pattern guiding the future conduct. In the judicial
field, it means the guidance or authority of past decisions of the Courts for future cases. Only such
decisions which lay down some new rule or principle are called judicial precedents.
Judicial precedents are an important source of law. They have enjoyed high authority at all times and in
all countries. This is particularly so in the case of England and other countries which have been
influenced by English jurisprudence. The principles of law expressed for the first time in court decisions
become precedents to be followed as law in deciding problems and cases identical with them in future. The
rule that a court decision becomes a precedent to be followed in similar cases is known as doctrine of
Stare Decisis. [Stare Decisis, means “to stand by decided matters”]
The reason why a precedent is recognized is that a judicial decision is presumed to be correct. The practice
of following precedents creates confidence in the minds of litigants. Law becomes certain and known and
that in itself is a great advantage. Administration of justice becomes equitable and fair.
Kinds of Precedents: Precedents may be classified as:
(1) Declaratory and Original Precedents
(2) Persuasive Precedents
(3) Absolutely Authoritative Precedents
(4) Conditionally Authoritative Precedents
Que. No. 13] Discuss the various types of precedents. CS (Inter) – June 1994 (8 Marks)
Ans.: Various types of precedents are as follows:

(1) Original Precedents: An original precedent is one which creates and applies a new rule. Ashby v. White
case is an example of original precedent for “injuria sine damnum”. The number of original precedent
is small. In the case of an original precedent, it is law for the future because it is now applied. The
number of original precedents is small but their importance is very great. They alone develop the law
of the country. They serve as good evidence of law for the future.
(2) Declaratory Precedents: A declaratory precedent is one which is merely the application of an already
existing rule of law. Declaratory precedents merely follow the original precedents. In the case of a
declaratory precedent, the rule is applied because it is already a law. Declaratory precedent is already
a declaratory law and follows in present and future. Declaratory precedents are numerous. A
declaratory precedent is as good a source of law as an original precedent.
The legal authority of both declaratory and original precedents is exactly the same.
(3) Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow but
which they will take into consideration and to which they will attach great weight as it seems to them
to deserve. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a
historical source of law. Thus, in India, the decisions of one High Court are only persuasive
precedents in the other High Courts. The rulings of the English and American Courts are persuasive
precedents only. Obiter dicta also have only persuasive value.
(4) Absolutely Authoritative Precedents: An authoritative precedent is one which judges must follow
whether they approve of it or not. Thus, decisions of Supreme Court are binding force on High Courts
and District Courts. Its binding force is absolute and the judge’s discretion is altogether excluded as
he must follow it. Such a decision has a legal claim to implicit obedience, even if the judge considers it
wrong. Unlike a persuasive precedent which is merely historical, an authoritative precedent is a legal
source of law.

Source of Law 1.19
Absolutely authoritative precedents in India – Every Court in India is absolutely bound by the
decisions of courts superior to itself. The subordinate courts are bound to follow the decisions of the
High Court to which they are subordinate. A single judge of a High Court is bound by the decision of a
bench of two or more judges. All courts are absolutely bound by decisions of the Supreme Court. In
England decisions of the House of Lords are absolutely binding not only upon all inferior courts but
even upon itself. Likewise, the decisions of the Court of Appeal are absolutely binding upon itself.
(5) Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which, though
ordinarily binding on the Court before which it is cited, is liable to be disregarded in certain
circumstances. The Court is entitled to disregard a decision if it is a wrong one i.e. contrary to law
and reason.
Example: The decision of a single Judge of the High Court is absolutely authoritative so far as
subordinate judiciary is concerned, but it is only conditionally authoritative when cited before a
Division Bench of the same High Court.
Que. No. 14] Distinguish between: Original Precedents & Declaratory Precedents
Ans.: Following are the main points of distinction between original & declaratory precedents:
Points Original Precedents Declaratory Precedents
Meaning An original precedent is one which creates A declaratory precedent is one which is
and applies a new rule. merely the application of an already
existing rule of law.
Nature An original precedent is law for the future Declaratory precedents merely follow the
because it is now applied. original precedents. In the case of a
declaratory precedent, the rule is applied
because it is already a law.
Number The number of original precedent is small. Declaratory precedents are numerous.
Courts Most of the original precedents comes from Most of the District Court and Tribunals
Supreme Court & High Court when declare applies rule of law which is already
a new rule of law. declared by Supreme Court & High Court
for similar cases which are declaratory
precedent.
Que. No. 15] Distinguish between: Absolutely Authoritative Precedents & Conditionally
Authoritative Precedents
Ans.: Following are the main points of distinction between absolutely authoritative precedents &
conditionally authoritative precedents:
Points Absolutely Authoritative Precedents Conditionally Authoritative Precedents
Meaning An authoritative precedent is one which A conditionally authoritative precedent is
judges must follow whether they approve of one which, though ordinarily binding on
it or not. the Court before which it is cited, is liable
to be disregarded in certain circumstances.
Binding In case of absolutely authoritative The Court is entitled to disregard a decision
force precedents, its binding force is absolute if it is a wrong one i.e. contrary to law and
and the judge’s discretion is altogether reason.
excluded as he must follow it.
Example The decision of a single Judge of the High The decision of a single Judge of the High
Court is absolutely authoritative so far as Court is only conditionally authoritative
subordinate judiciary is concerned. when cited before a Division Bench of the
same High Court.

Source of Law 1.20
Que. No. 16] Write a short note on: Doctrine of Stare Decisis
CS (Inter) – Dec 1988 (5 Marks), Dec 1994 (4 Marks)
Ans.: Stare Decisis means ‘to stand by decided cases’.

The doctrine of Stare Decisis means, “adhere to the decision and do not unsettle things which are
established”. In simple words, the principle means that like cases should be decided alike.
Important points relating to doctrine of Stare Decisis:
 The doctrine brings certainty and uniformity in the law.
 As per 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.
 Doctrine of Stare Decisis is based on public policy and expediency.
 Doctrine of Stare Decisis should be strictly adhered to by the Courts, but it is not universally
applicable. Certain exceptions do exist for the doctrine. For example, Supreme Court may change its
earlier decision. Example is recently decided ‘Triple Talak issue’ and Maneka Gandhi’s famous case on
Article 21 of the Constitution of India.
 The doctrine should not be regarded as a rigid and inevitable doctrine which must be applied at the
cost of justice.
Que. No. 17] Explain the terms ‘Ratio Decidendi’ & ‘Obiter Dictum’.
CS (Inter) – Dec 1990 (5 Marks)
“It is the ratio decidendi or the general principle which has the binding effect as a
precedent, and not the obiter dictum”. Explain.
Ans.: The decision or judgment of a judge may fall into two parts: the ratio decidendi (reason for the
decision) and obiter dictum (something said by the way).
RATIO DECIDENDI – The ratio decidendi of a case is the principle of law on which a decision is based. When
a Judge delivers judgment in a case he outlines the facts which he finds have been proved on the evidence.
Then he applies the law to those facts and arrives at a decision, for which he gives the reason (ratio
decidendi).
Thus, the underlying principle of a judicial decision, which is only authoritative, is termed as ratio
decidendi. 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 decidendi.
Prof. Goodhart says that ratio decidendi is nothing more than the decision based on the material facts of
the case.
Where an issue requires to be answered on principles, the principles which are deduced by way of
abstraction of the material facts of the case eliminating the immaterial elements is known as ratio
decidendi and such principle is not only applicable to that case but to other cases also which are of similar
nature.
OBITER DICTUM – The Judge may go on to speculate about what his decision would or might have been if
the facts of the case had been different. This is an obiter dictum.
In simple words, obiter dictum is nothing but the supplementary opinion by a judge that is not essential to
the actual decision.
The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases
because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum
may be of persuasive value in later cases.
It is the ratio decidendi or the general principle which has the binding effect as a precedent, and not the
obiter dictum. However, the determination or separation of ratio decidendi from obiter dictum is not so easy.
It is for the judge to determine the ratio decidendi and to apply it on case to be decided.
Que. No. 18] Discuss the legislation as source of law. CS (Inter) – June 1989 (7.5 Marks)
Ans.: “Legis” means law and “latum” means making. Legislation means lawmaking. It also refers to the law
made by the legislature. It may also be defined as the promulgation of legal rules by an authority which

Source of Law 1.21
has the power to do so. It is the formal declaration of the legal rules by the legislative organ of the body
politic.
In a wider sense, it includes all the sources of law, any act done with the effect of adding to or altering the
law. When a judge establishes a new principle in a judicial decision, it is possible to say that he has
exercised legislative power and it is also legislation. It frames new laws, amends the old laws and cancels
existing laws in all countries.
According to Salmond, “Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.”
In Indian context, legislation is that source of law which consists in the declaration or promulgation of
legal rules by an authority duly empowered by the Constitution in that behalf. It is sometimes called Jus
Scriptum (written law) as contrasted with the customary law or Jus Non-scriptum (unwritten law).
Statute law or statutory law is what is created by legislation, for example, Acts of Parliament or of State
Legislature. Legislation is either supreme or subordinate (delegated).
(a) Supreme Legislation: Supreme Legislation is that which proceeds from the sovereign power in the State
or which derives its power directly from the Constitution. It cannot be replealed, annulled or controlled
by any other legislative authority.
Acts of Parliament and the Ordinances and other laws made by the President and Governors in so far
as they are authorized to do so under the Constitution are supreme legislation.
(b) Subordinate Legislation: Subordinate Legislation is that which proceeds from any authority other than
the sovereign power. Subordinate legislation is dependent for its continued existence and validity on
some sovereign or supreme authority.
The legislations made by various authorities like Corporations, Municipalities etc. under the authority
of the supreme legislations are subordinate legislation.
Que. No. 19] Distinguish between: Supreme Legislation & Subordinate Legislation
Ans.: Following are the main points of distinction between supreme & subordinate legislations:
Points Supreme Legislation Subordinate Legislation
Meaning Supreme Legislation is that which proceeds Subordinate Legislation is that which
from the sovereign power in the State or proceeds from any authority other than the
which derives its power directly from the sovereign power.
Constitution.
Authority Supreme Legislations can enacted, Subordinate legislation is dependent for its
replealed, annulled or controlled by continued existence and validity on some
sovereign or supreme authority like Lok sovereign or supreme authority.
Sabha & Rajya Sabha.
Example Acts of Parliament and the Ordinances and The legislations made by various authorities
other laws made by the President and like Corporations, Municipalities etc. under
Governors in so far as they are authorized to the authority of the supreme legislations are
do so under the Constitution are supreme subordinate legislation.
legislation.
Que. No. 20] Legislation is either supreme or subordinate. Comment.

What is ‘delegated legislation’? What are the limits under which powers of delegated
legislation may be exercised? CS (Inter) – Dec 2004 (6 Marks), June 2008 (4 Marks)
Ans.: Delegated or subordinate legislation means rules of law made under the authority of an Act of
Parliament. Although law making is the function of legislature, it may, by a statute, delegate its power to
other bodies or persons. The statute which delegates such power is known as Enabling Act. By Enabling
Act the legislature, lays down be broad guidelines and detailed rules are enacted by the delegated
authority. Delegated legislation is permitted by the Indian Constitution. It exists in form of bye rules,
regulations, orders, bye laws etc.

Source of Law 1.22
Legislation is either supreme or subordinates. The supreme legislation is that which proceeds from
supreme or sovereign power in the State and therefore capable of being repealed, annulled or controlled by
legislative authority. Subordinate legislation is that which proceeds from any authority other than the
sovereign power, and is, therefore, dependent for its continued existence and validity on some sovereign or
supreme authority.
Classification of Subordinate Legislation:
(1) Executive: Though the main function of the executive is to enforce laws, but in certain cases, the power
of making rules is delegated to the various departments of the government, which is called subordinate
delegated legislation. Thus, the rules framed by the Government under the various Municipal Acts fall
under this category.
(2) Judicial: It means rules of procedure made by superior courts for their own guidance under authority
delegated to them for the purpose. In other words the superior courts have the power of making rules
for the regulation of their own procedures. The High Courts are authorized to frame rules for regulating
the procedure to be followed in Courts. Some such rules have been framed by the High Court under
the Guardians of Wards Act, Insolvency Act and Succession Act etc.
(3) Municipal: Sometimes municipal authorities are provided with the power of establishing special laws
for the districts under their control. They are allowed to make bye-laws for limited purposes within
their areas. These are legislation of local bodies such as municipal or corporations.
(4) Autonomous: Under this head fall the regulations which autonomous bodies such as Universities make
in respect of matters which concern themselves.
(5) Colonial Legislation: The law made by colonies under the control of some other nation, which are
subject to supreme legislation of the country under whose control they are.
Que. No. 21] Write a short note on: Personal Law
Ans.: In many cases, the courts are required to apply the personal law of the parties where the point at
issue is not covered by any statutory law or custom.
(A) Personal Laws for Hindus: In the case of Hindus, for instance, their personal law is to be found in:
(a) The Shruti which includes four Vedas.
(b) The Smritis which are recollections handed down by the Rishi’s or ancient teachings and precepts
of God, the commentaries written by various ancient authors on these Smritis. There are three
main Smritis: the Codes of Manu, Yajnavalkya and Narada.
Hindus are governed by their personal law as modified by statute law and custom in all matters
relating to inheritance, succession, marriage, adoption, co-parcenary, partition of joint family
property, pious obligations of sons to pay their father’s debts, guardianship, maintenance and
religious and charitable endowments.
(B) Personal Laws for Mohammedans: The personal law of Mohammedans is to be found in:
(a) The holy Koran.
(b) The actions, percepts and sayings of the Prophet Mohammed which though not written during
his life time were preserved by tradition and handed down by authorized persons. These are
known as Hadis.
(c) Ijmas i.e., a concurrence of opinion of the companions of the Prophet and his disciples.
(d) Kiyas or reasoning by analogy. These are analogical deductions derived from a comparison of the
Koran, Hadis and Ijmas when none of these apply to a particular case.
(e) Digests and Commentaries on Mohammedan law, the most important and famous of them being
the Hedaya which was composed in the 12th century and the Fatawa Alamgiri which was
compiled by commands of the Mughal Emperor Aurangzeb Alamgiri.
Mohammedans are governed by their personal law as modified by statute law and custom in all
matters relating to inheritance, wills, succession, legacies, marriage, dowry, divorce, gifts, wakfs,
guardianship and pre-emption.

Source of Law 1.23
Que. No. 22] 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. Comment.
Write a short note on: Justice, Equity and Good Conscience
Ans.: The general idea behind “Justice, Equity & Good Conscience” doctrine was that if on a particular
point of dispute before the Court there was no express/parliamentary law, no regulation and if it fell
outside the heads for which Hindu and Mohammedan laws were prescribed, then the Court was to decide
the matter according to ‘justice, equity and good conscience.
It was applied by the Courts only for few topics, viz. inheritance, marriage, caste, and other religious
usages and institutions. It was introduced to cover gaps left in law.
The concept of “justice, equity and good conscience” also means application by Indian Courts rules of
English Law in so far as they are applicable to Indian society and circumstances. In other words “justice,
equity and good conscience” is generally interpreted to mean rules of English law on an analogous matter
as modified to suit the Indian conditions and circumstances.
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 source of 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.
The Supreme Court has stated that it is now well established that in the absence of any 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 repugnant to, or inconsistent with, any doctrine or theory of
Hindu Law.
Que. No. 23] Briefly discuss the main sources of English Laws.
Ans.: The chief sources of English law are as follows:
(1) Common Law (Judge-made Law): The Common Law, is the name given to those principles of law evolved
by the judges in making decisions on cases that are brought before them. These principles have been
built up over many years so as to form a complete statement of the law in particular areas. Thus, the
primary sources of such Common Law are –
 General immemorial customs
 Judicial decisions
 Text books on Jurisprudence.
Common Law is unwritten law of England which is common to the whole of the realm.
(2) Law Merchant: Law Merchant means those customs and usages which are binding on traders in their
dealings with each other.
(3) Principle of Equity: Equity is a body of rules, the primary source of which was neither custom nor
written law, but the imperative dictates of conscience and which had been set forth and developed in
the Courts of Chancery. The procedure of Common Law Courts was very technical and dilatory. Action
at Common Law could be commenced by first obtaining a writ or a process. The writs were limited in
number and unless a person was able to bring his case within one of those writs, no action could lie at
Common Law.
In some cases, there was no remedy or inadequate remedy at Common Law. The King is considered as
the fountain head of justice; when people were dissatisfied or aggrieved with the decision of the
Common Law Court, they could always file a mercy petition with the King-in-Council. The King would
refer these petitions to his Chancellor. The Chancellor, who was usually a Bishop, would dispose of
these petitions not according to the rigid letter of the law but according to his own dictates of
commonsense, natural justice and good conscience. The law so administered by the Chancellor came
to be known as ‘Equity’ and such courts as
These ‘Equity Courts’ acted on number of maxims e.g.
1. “He who seeks equity must do equity”.
2. “He who comes to equity must come with clean hands”.

Source of Law 1.24
The Equity Courts had their separate existence from the Common Law Courts in England until the
passing of the Judicature Act of 1873, when the separate existence of such courts was abolished and
all High Courts were empowered to grant either or both the remedies (Common Law as well as Equity)
according to the circumstances of each case.
Some of the important principles and remedies developed by Equity Courts are recognition of the right
of beneficiary to trust property, remedy of specific performance of contracts, equity of redemption in
case of mortgages etc.
(4) Statute Law: Statute law is that portion of law which is derived from the legislation or enactment of
Parliament or the subordinate and delegated legislative bodies. It is now a very important source of
Mercantile Law. A written or statute law overrides unwritten law, i.e., both Common Law and Equity.
Some of the important enactments in the domain of Mercantile Law are:
 English Partnership Act, 1890
 English Sale of Goods Act, 1893
 Carriers Act, 1830
 English Companies Act, 1948 etc.
Que. No. 24] What do you understand by mercantile law? Explain the main sources of
mercantile laws in India.
Ans.: The Mercantile Law or Law Merchant or Lex Mercatorla is the name given to that part of law which
grew up from the customs and usages of merchants or traders in England which eventually became a part
of Common Law of England.
Mercantile Law is related to the commercial activities of the people of the society.
It is that branch of law which is applicable to or concerned with trade and commerce in connection with
various mercantile or business transactions. Mercantile Law is a wide term and embraces all legal
principles concerning business transactions. The most important feature of such a business transaction is
the existence of a valid agreement, express or implied, between the parties concerned.
The following are the main sources of Mercantile Law in England:
 Common Law
 Law Merchant
 Principle of Equity
 Statute Law
Mercantile Law in India: The main sources of Indian Mercantile Law are:
(1) English Mercantile Law: The Indian Mercantile Law is mainly an adaptation of English Mercantile Law.
However, certain modifications wherever necessary, have been incorporated in it to provide for local
customs and usages of trade and to suit Indian conditions.
(2) Statute Law: The Acts enacted by the Indian legislature from time to time which are important for the
study of Indian Mercantile Law include –
 Indian Contract Act, 1872
 Sale of Goods Act, 1930
 Partnership Act, 1932
 Negotiable Instruments Act, 1881
 Arbitration & Conciliation Act, 1996
 Insurance Act, 1938.
(3) Judicial Decisions: Judges interpret and explain the statutes. Whenever the law is silent on a point, the
judge has to decide the case according to the principles of justice, equity and good conscience.
(4) Customs and Trade Usages: Most of the Indian Law has been codified. But even then, it has not
altogether done away with customs and usages. Many Indian statutes make specific provisions to the
effect that the rules of law laid down in a particular Act are subject to any special custom or usages of
trade. For example, Section 1 of the Indian Contract Act, 1872, lays down that, “Nothing herein
contained shall effect the provisions of any Statute, Act or Regulation not hereby expressly repealed, nor
any usage or custom of trade, nor any incident of any contract, not inconsistent with the provisions of
this Act”.
Similarly Section 1 of the Negotiable Instruments Act, 1881, lays down that, “nothing herein
contained…... affects any local usage relating to any instrument in any oriental language”.

Source of Law 1.25
Jurisprudence
Que. No. 25] What do you understand by the term ‘Jurisprudence’?
Ans.: The word Jurisprudence is derived from the word ‘juris’ meaning law and ‘prudence’ meaning
knowledge. Jurisprudence is the study of the science of law. The study of law in jurisprudence is not
about any particular statute or a rule but of law in general, its concepts, its principles and the
philosophies underpinning it.
In other words, Jurisprudence or legal theory is the theoretical study of law, principally by philosophers.
Scholars of jurisprudence, also known as jurists or legal theorists, hope to obtain a deeper understanding
of legal reasoning, legal systems, legal institutions, and the role of law in society.
Scholars of jurisprudence have studied and classified the word ‘jurisprudence’ from various angle. These
are described below –
(1) Analytical Jurisprudence: Analytical jurisprudence is a philosophy of law resulting from analyzing and
comparing many legal concepts and does not depend upon any one theory or existing principles or
laws.
Analytical jurisprudence concentrates on abstract theory of law, trying to discover the elements of
pure science which will place jurisprudence on the sure foundation of objective factors which will be
universally true, not on the shifting sands of individual preference, of particular ethical or sociological
views.
Abstract theory means a theory in which a system is described without specifying a structure.
(2) Sociological Jurisprudence: Sociological jurisprudence highlights the limitations of pure science of law
and says that since the very purpose for the existence of law is to furnish an answer to social
problems, some knowledge of these problems is necessary if one seeks to understand the nature of
law. One can understand what a thing is only if one examines what it does.
Sociological jurisprudence is a term coined by the American jurist Roscoe Pound to describe his
approach to the understanding of the law. This philosophical approach to law stresses the actual
social effects of legal institutions, doctrines, and practices. It examines the actual effects of the law
within society and the influence of social phenomena on the substantive and procedural aspects of
law. This is also known as sociology of law.
(3) Teleological Jurisprudence: Teleology, from the Greek words telos (end) and logos (discourse), is the
study of design or purpose. In philosophy, it is “the science or doctrine that attempts to explain the
universe in terms of ends or final causes”, believing that all things are designed for or are directed
toward a final result, and that that inherent purpose or final cause exists in nature.
The teleological school of jurisprudence emphasizes that a mere collection of facts concerning social
life is of no avail. Law is the product of human reason and is intimately related to the notion of
purpose. Hence, this school seeks to find the supreme ends which law should follow.
Que. No. 26] Discuss briefly ‘positivism’ theory of law of British Philosopher Prof. HLA
Hart.
Ans.: Prof. HLA Hart British Legal Philosopher listed many meanings associated with the term ‘positivism’
as follows:
(1) Laws are commands.
(2) The analysis of legal concepts is – (a) worth pursuing, (b) distinct from sociological and historical
enquiries into law, and (c) distinct from critical evaluation.
(3) Decisions can be deduced logically from predetermined rules without recourse to social aims, policy or
morality.
(4) Moral judgments cannot be established or defended by rational argument, evidence or proof.
(5) The law as it is laid down should be kept separate from the law that ‘ought to be’.
Positivism is most commonly understood as the fifth description above. Natural law theory claims that a
proposition is ‘law’ not merely because it satisfies some formal requirement, but by virtue of an additional
minimum moral content. According to it, an immoral rule cannot be ‘law’ even if it satisfies all the formal
requirements.

Source of Law 1.26
Que. No. 27] Critically examine the ‘Austin’s Command Theory of law’.
Ans.: John Austin a noted English legal theorist was the first occupant of the chair of Jurisprudence at the
University of London. Austin is known for the ‘Command Theory of Law’. Austin was a positivist. He
concerned on “what the law was” instead of going into its ‘justness’ or ‘fairness’.
Austin differentiated between ‘Law properly so called’ and ‘laws improperly so called’.
 “Laws properly so called” are given by political superiors to political inferiors.
 “Laws improperly so called” are those laws which are not set directly or indirectly by a political
superior.
In earlier days laws (commands) are given by the Ruler or King (political superiors) which has to be
observed by common people (political inferiors) and non-observance of such command may liable to
punishment; such commands or laws are the “laws properly so called”.
Now a day laws are made by Parliament (political superiors) which has to be observed by the
common people (political inferiors) otherwise they can be penalized as per provisions in laws. Austin
describes such laws as “laws properly so called”.
There are many rules in society or business which are voluntarily followed by the people such as
morals and other laws which Austin describes as “laws improperly so called”. This category includes
diverse type of rules, such as rules of clubs, law of fashion, laws of natural science, the rules of
international law etc.
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).
Thus, law has four main features:
 Command
 Sanction
 Duty
 Sovereignty
In order to properly appreciate Austin’s theory of law, we need to understand his conception of command
and sovereign.
Command: It 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).
Sovereign: 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: Is the evil consequence that follows on the violation of a command. To identify a law, the
magnitude of the sanction is not relevant but the absence of sanction disentitles an expression of the
sovereign from being a law in Austinian sense. 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.
Criticism of Austin’s Command Theory of law
(1) Customs Overlooked: Austin’s view that law is the command of sovereign is not supported by historical
evolution of law when customs played a significant role in regulating human conduct.
(2) No place for judge made law: Judge made law has no place in Austinian conception of law.
(3) International law as mere morality: Austin doesn’t treat international law as law because it lacks
sanction.
(4) Command over emphasized: Prof. Olivereona has denied as command as an inevitable constituent of
law. He says that in modern society law is nothing but an expression of the general will of the people.
(5) Interrelationship between law and morality completely ignored: The greatest shortcoming of Austin’s
theory is that it completely ignored the relationship between law and morality as law can never be
completely divorced from ethics or morality which provide strength to it.
(6) Sanction alone is not a means to induce obedience: Austin’s view that it is sanction alone which induces
a person to obey law. There are many other considerations such as fear, deterrence, sympathy, reason
etc. which may induce a person to obey law.

Source of Law 1.27
Que. No. 28] Critically examine the Roscoe Pound’s theory of law.
Ans.: Roscoe Pound was one of the most leading and influential jurists who developed the American
sociological jurisprudence in a systematic form. He emphasized on inter disciplinary approach to law so
that rule of law and life may flow together. He treated law as a means for affecting social control and did
not believe in the abstract or mechanical application of law.
He is considered to be the father of American Sociological Jurisprudence for his unique contribution to the
science of law and legal philosophy. The emergence of Realist School in America in later years owes its
origin to Pound’s functional jurisprudence and theory of interests.
Roscoe Pound’s concept of law is of practical importance which inspires judges, legislators and jurists to
mould and adjust law to the needs and to interests of the community. Since the society is always changing
law should be continually adapted and readapted to the needs of individuals and society. He, therefore,
stresses the need of paramount co-ordination and co-operation between the legislators, administrators,
judges and jurists to work in unison towards the realization and effective implementation of law for
securing social harmony and social justice to the general public with the a minimum of waste or friction
and maximum of material satisfaction of wants, needs and interest.
Roscoe Pound emphasized to take into account social facts in making, interpretation and application of
laws. The end of law according to him is to satisfy a maximum of wants with a minimum of friction or
confrontation. Elaborating the functional aspect of law, Roscoe Pound stated that the function of law is to
reconcile the conflicting interest of individuals in the community and harmonize their inter-relations. He
termed this as “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’. Realization 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 organized societies are to endure. For any legal order to be
successful in structuring an efficient society, there has to be:
 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.
 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.
Roscoe Pound’s classification of interest is as follows:
1. Individual Interest: These are claims or demands determined from the standpoint of individual’s life
and concern. They are –
(a) Interest of personality: This includes physical integrity, freedom of will, honour and reputation,
privacy and freedom of conscience.
(b) Interest in domestic relations: This includes relationships of parents, children, husbands and wives.
(c) Interest of substance: This includes interests of property, freedom of association, freedom of
industry and contract, continuity of employment, inheritance and testamentary succession.
2. Public Interest: These interests are asserted by individual from the standpoint of political life. They are
–
(a) Interests of the state as a juristic person: It includes integrity, freedom of action and honour of the
state’s personality, claims of the politically organized society as a corporation to property acquired
and held for corporate purposes.
(b) Interests of the state as guardian of social interest.

Source of Law 1.28
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. Social interests include –
(a) Social interest in the general security: This includes general safety, peace and order, general health,
security of acquisition and transaction.
(b) Social interest in the security of social institutions such as domestic, religious, political and
economic institutions.
(c) Social interest in general morals like laws dealing with prostitution, gambling, bigamy,
drunkenness.
(d) Social interest in the conservation of social resources like the natural and human resource. This
social interest clashes to some extent with the individual interest in dealing with one’s own
property as on pleases.
(e) Social interest in general progress. It has three aspects – economic, political & cultural.
(f) Social interest in individual life. It involves self-assertion, opportunity and conditions of life.
Society is interested in individual life because individuals are its building blocks.
Having given various interest recognized by law, Roscoe Pound applied himself to figure out to balance
competing interests. He said that interests should be weighed on the same plane. According to him one
cannot balance an individual interest against a social interest, since that very way of stating them may
reflect a decision already made. Thus all the interests should be transferred to the same place, most
preferably to the social plane, which is the most general, for any meaningful comparison.
Criticism of Roscoe Pound’s theory of law:
(1) Unrealistic assumptions like – interest pre-exist laws: Pound said that interest pre-exist laws and the
function of legal system should be to achieve a balance between competing interests but we see that a
lot of interests today are a creation of laws.
(2) No criteria for the evaluation of interest: The Pound’s theory of law does not provide any criteria for the
evaluation of interest. It is not interests as such, but the yardstick with reference to which they are
measured that matter. It may happen that some interest is treated as an ideal in itself by a society, in
which case it is not the interest as an interest, but as an ideal that will determine the relative
importance between it and other interests.
(3) More importance to judiciary than legislature: Pound’s theory of balancing interests can be effectuated
most effectively by judges because the judges get to translate the activity involved in the cases before
them in terms of interests and select the ideal with reference to which the competing interests are to be
measured. Thus his theory gives more importance to judiciary in comparison to the legislature.
(4) Distinction between Public and Social interests is doubtful: Pound’s distinction between Public and
Social interests is doubtful and even the distinction between Individual and Social Interest is of minor
significance.
(5) The recognition of a new interest is a matter of policy. The mere presence of a list of interests is,
therefore, of limited assistance in helping to decide a given dispute.
Que. No. 29] Write a short note on: John Salmond’s theory of law.
Ans.: John William Salmond was a law professor in New Zealand who later also served as a judge of the
Supreme Court of New Zealand. He made seminal contribution in the field of jurisprudence, law of torts
and contracts law.
Salmond claimed that the purpose of law was the deliverance of justice to the people and in this sense he
differed from Bentham and Austin who went into the analysis of law as it stood without going into its
purpose. But Salmond also necessitated the presence of the State for implementation of laws just like
Bentham and Austin.
Salmond differentiated between ‘a law’ and ‘the law’ and said that the former refers to the concrete and the
latter to the abstract. According to him this distinction demands attention for the reason that the concrete
term is not co-extensive with the abstract in its application.
According to Salmond law is the body of principles which are recognized and applied by the State in the
administration of justice. His other definition said that law consists of a set of rules recognized and acted
on in Courts of justice. ‘Law’ in this definition is used in its abstract sense.

Source of Law 1.29
Salmond says that human experience has made it clear that some form of compulsion is required to
maintain justice. It is in the nature of things to have conflict, partly real, partly apparent, between the
interests of man and man, and between those of individuals and those of society at large; and men cannot
be left to do what they believe is right in their own eyes. Therefore, if a just society is to be maintained, it
is necessary to add compulsion so as to complement to walk on the desired path. Hence, there exists
various regulative or coercive systems, the purpose of which is the upholding and enforcement of right and
justice by some instrument of external constraint. One of the most important of such systems is the
administration of justice by the state. The administration of justice may therefore be defined as the
maintenance of right within a political community by means of physical force of the state. Another is the
control exercised over men by the opinion of the society in which they live. Censure, ridicule, contempt are
the sanctions by which society (as opposed to the state) enforces the rules of morality.
Salmond argued that the administration of justice was the primary task of a state and the laws were made
to achieve that objective. Administration of justice was thus antecedent to the laws. Laws thus are
secondary, accidental, unessential. Law consists of the pre-established and authoritative rules which
judges apply in the administration of justice, to the exclusion of their own free will and discretion.
Salmond further said that the administration of justice is perfectly possible without laws though such a
system is not desirable. A court with an unfettered discretion in the absence of laws is capable of
delivering justice if guided by equity and good conscience.
Salmond says that development and maturity of a legal system consists in the progressive substitution of
rigid pre-established principles for individual judgment, and to a very large extent these principles grow up
spontaneously within the courts themselves. That great aggregate of rules which constitutes a developed
legal system, is not a condition precedent of the administration of justice but a product of fit. Gradually
from various sources – precedent, custom, statute – there is a collected body of fixed principles which the
courts apply to the exclusion of their private judgment. Justice becomes increasingly justice according to
law, and
courts of justice become increasingly courts of law.
Criticism of Salmond’s Theory:
(1) Salmond’s assertion that justice is the end and law is only a medium to realize it does not always hold
true because there are a number of laws that can be called ‘unjust’.
(2) The pursuit of justice is not the only purpose of law, the law of any period serves many ends and these
ends themselves change with the passage of time.
(3) There is a contradiction when Salmond says that the purpose of law is the administration of justice but
limits ‘jurisprudence’ to the study of the ‘first principles’ of civil law of a national legal system because
justice is a universal concept, the jurisprudential analysis of law should not be constrained by national
boundaries.
Que. No. 30] Discuss Kelson’s pure theory of Law. What are the mains points of criticism
of this theory?
Ans.: Salient Features of Kelsen’s Pure Theory of Law:

(a) Law as science: Kelsen tried to present a theory that could be attempted to convert law into a science, a
theory that could be understood through logic.
(b) As a positive law: Kelsen introduces his theory as being a theory of positive law. This theory of positive
law is then presented by Kelsen as forming a hierarchy of laws which start from a Basic Norm, i.e.
‘Grundnorm’ where all other norms are related to each other by either being inferior norms.
(c) Law “as it is”: Kelsen emphasized that analysis must focus on law as ‘it is’ actually laid down, and not
as ‘it ought to be’.
(d) Law contains set of rules: Kelsen emphasized that the Law contains mass of rules, and a theory should
organize them in an ordered pattern.
(e) Law and morality: Kelsen's strict separation of law and morality, is an integral part of his presentation
of the Pure Theory of Law. The application of the law, in order to be protected from moral influence or
political influence, needed to be safeguarded by its separation from the sphere of conventional moral
influence or political influence. Kelsen did not deny that moral discussion was still possible and even

Source of Law 1.30
to be encouraged in the sociological domain of inter-subjective activity. However, the Pure Theory of
Law was not to be subject to such influences.
(f) Theory of law should be uniform: According to Kelsen, the theory of law should be applicable at all times
and all places.
(g) Law is ‘ought’ proposition: A norm is a proposition or an if statement: “If A happens, then B is ought to
happen.” Thus: “If someone commits a theft, the judge ought to punish him.” A legal system is
composed of series of such norms.
Basic Core of Kelsen’s Theory – “The Grundnorm”:
According to Kelsen, ‘norm (sanction) is rules forbidding or prescribing a 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.
According to Kelsen, we attach legal-normative meaning 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 Kelsen as ‘Grundnorm’. Thus, Kelsen’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. Under
Kelsen’s pure theory, the Grundnorm does not derive its validity from any other norm and its validity must
be presupposed. 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.
The legal order as conceived by Kelsen receives its unity from the fact that the multiple norms which make
the legal system can be traced back to a final source. This final source is the basic norm or the
Grundnorm which he defined as “the postulated ultimate rule according to which the norms of this order
are established and annulled, receive or lose their validity. For example, In India a statue or law is valid
because it derives its legal authority from being duly passed by the Parliament and receiving the accent of
the President, the Parliament and the President, derive their authority from a norm i.e., the Constitution.
As to the question from where does the Constitution derive its validity there is no answer and, therefore, it
is the Grundnorm, according to Kelsen’s conception of pure theory of law.
Criticism of Kelsen’s Pure Theory of law:
(1) Difficult to trace ‘grundnorm’: It is difficult to trace ‘grundnorm’ in every legal system. Also, there is no
rule or yardstick to measure the effectiveness of grundnorm. All that Kelsen maintained was that the
grundnorm imparts validity as long as the ‘total legal order’ remains effective, which he later revised
to ‘by and large’ effective. He did not give any measure of ‘total’ and ‘by and large’.
(2) It is not a pure theory of law: Kelsen’s theory ceases to be ‘pure’ the moment one tries to analyze the
grundnorm because then one will have to draw upon subjects other than law like sociology, history
and morality.
(3) International law does not sit well with Kelsen’s Pure theory: Kelsen advocated a monist view of the
relationship between international and municipal law and declared that the grundnorm of the
international system postulated the primacy of international law. The actual experience has been to
the contrary and the countries of the world mostly give primacy to municipal laws over international
laws.
(4) Kelsen attempted to convert law into a science: A theory could be understood through logic, but Kelsen
insisted on the validity of the grundnorm to be “assumed”, rather than based upon some “logic”.
(5) Morality aspect: Kelsen also pointed out that law should be kept free from morality. A general question
should be raised here, whether is it possible to keep law free from morality? Kelsen made emphasis in
the effective of law and by this way he indirectly accepted the morality as a part of effectiveness.
Que. No. 31] Discuss Bentham’s theory of law. What are the main points of criticism of
this theory?
Ans.: Jeremy Bentham was the pioneer of analytical jurisprudence in Britain. According to him ‘a law’ may
be defined as an assemblage of signs, declarative of volition, conceived or adopted by a sovereign in a
state, concerning the conduct to be observed in a certain case by a certain person or a class of persons,
who in the case in question are or are supposed to be subject to his power. Thus, Bentham’s concept of
law is an imperative one.

Source of Law 1.31
Bentham was of the initial contributors on the function that laws should perform in a society. He claimed
that nature has placed man under the command of two sovereigns – pain and pleasure. ‘Pleasure’ in
Bentham’s theory has a somewhat large signification, including altruistic and obligatory conduct, the
‘principle of benevolence’; while his idea of ‘interest’ was anything promoting pleasure. The function of
laws should be to bring about the maximum happiness of each individual for the happiness of each will
result in the happiness of all. The justification for having laws is that they are an important means of
ensuring happiness of the members of community generally. Hence, the sovereign power of making laws
should be wielded, not to guarantee the selfish desires of individuals, but consciously to secure the
common good.
Bentham said that every law may be considered in eight different respects:
(1) Source: The source of a law is the will of the sovereign, who may conceive laws which he personally
issues, or adopt laws previously issued by sovereigns or subordinate authorities, or he may adopt laws
to be issued in future by subordinate authorities. Sovereign according to Bentham is any person or
assemblage or person to whose will a whole political community is supposed to be in a disposition to
pay obedience, and than in preference to the will of any other person.
(2) Subjects: These may be persons or things. Each of these may be active or passive subjects, i.e. the
agent with which an act commences or terminates.
(3) Objects: The goals of a given law are its objects.
(4) Extent: Direct extent means that a law covers a portion of land on which acts have their termination;
indirect extent refers to the relation of an actor to a thing.
(5) Aspects: Every law has ‘directive’ and a ‘sanctional’ part. The former concerns the aspects of the
sovereign will towards an act-situation and the latter concerns the force of a law. The four aspects of
the soverign will are command, prohibition, non-prohibition and non-command and the whole range of
laws are covered under it. These four aspects are related to each other by opposition and
concomitancy.
(6) Force: The motivation to obey a law is generated by the force behind the law.
(7) Remedial appendage: These are a set of subsidiary laws addressed to the judges through which the
judges cure the evil (compensation), stop the evil or prevent future evil.
(8) Expression: A law, in the ultimate, is an expression of a sovereign’s will. The connection with will raises
the problem of discovering the will from the expression. Having listed the eight different respects
through which a law can be considered, Bentham went on to analyse the ‘completeness’ of law in
jurisprudential sense. He said that a complete law would have the features of integrality as well as
unity. Integrality means that a law should be complete in expression, connection and design. A law is
complete in expression when the actual will of the legislation has been completely expressed. A law is
complete when various parts of it dealing with various aspects are well coordinated. If a law does not
cover a specific situation that it might have wanted to cover while being enacted, it is incomplete in
design. According to Bentham the unity of a law would depend upon the unity of the species of the act
which is the object of the law.
Criticism of Bentham’s theory of law:
(a) Do not take into account laws conferring power: Due to Bentham’s strait-jacketing of laws into an
imperative theory – all laws have to be either command or permission, it does not take proper account
of laws conferring power like the power to make contracts, create title etc.
(b) No fair treatment to custom: Bentham did not give a fair treatment to custom as a source of law. He
said customs could never be ‘complete’.
(c) No place for judge made law: Bentham’s theory did not allow for judge made laws and hoped that such
laws would be gradually eliminated by having ‘complete laws’.
(d) No subjective criterion of pain and pleasure: To judge an action according to the pleasure-pain criterion
is to judge it subjectively. The theory did not provide how a subjective criterion of pain and pleasure
can be transmuted into an objective one.
(e) Vague criteria of happiness: It is not always true that an increase in the happiness of a certain segment
of society will lead to an increase in the overall happiness level because it might be associated with a
diminution in the happiness of some other rival section of the society.
* * * * * * * * * * *

Nilamkumar Bhandari For Best Content & Quality lectures Visit www.lawlogic.in Page 2.1
[CA, CS, MCOM, MA (ENG)]
CONSTITUTION OF INDIA
Points to be 1) Preamble
Article 5
studied 2) Structure
3) Definition of ‘’state’’ Citizen of India =
Natural Person +
4) Article 13- Domicile of India+
Any of the following
a) Doctrine of severability conditions must be
b) Doctrine of eclipse fulfilled to be Indian
Citizen-
c) Doctrine of waiver of rights 1. Person must be born
d) Single person law in India
2. Either of parents
5) Article 14- born in India
3.Residing in India at
a) Right of equality least for 5 years before
b) Equality before law- negative doctrine commencement of COI.
6) Article 15- Prohibition of discrimination of any citizen

7) Article 16- Equal opportunity in public employment
8) Article 19- 6 fundamental rights of citizen
9) Article 20-
a) Protection from conviction for offences
b) Double jeopardy
c) Protection against self incrimination
10) Article 21- Protection of life and personal liberty to both citizens and
non-citizens
11) Article 22- Protection against arrest and detention
12) Article 23- Right against exploitation
13) Article 24- Prohibition of employment of children
14) Article 25-28- Right to freedom of religion
15) Article 29- Rights of minorities, interest
16) Article 30- Minorities right to establish and administer educational
institution
17) Directive principle of state policy
18) Fundamental duties
19) Ordinance making power of the president of India, governor of state.
20) Legislative powers of parliament and state assembly
21) Important rule-
a) Plenary powers
b) Harmonious construction
c) Doctrine of pith and substance
d) Rule of colourable legislation
22) Freedom of trade, commerce and intercourse
23) Right to constitutional remedies- article 226 and article 32-
a) Habeas corpus
b) Mandamus
c) Writ of prohibition
d) Writ of certiorari
e) Writ of quo- warranto.
1) When Constitution of India came into force on 26th January 1950.
constitution COI adopted on 26th November, 1949.
came into force?
2)Fundamental 1) Freedom of speech and expression- Article 19 (1) (a) -
rights 1) It means right to express convictions and opinions freely by word of
mouth, writing, printing, picture or any other mode.
2) It includes right to make good or bad speech.
3) Freedom of press, peaceful demonstration, dramatic performance and
cinematography is also included.
Exception-
Commercial advertisement does not fall within the protection of Freedom

of speech and expression was the opinion initially but later it formed part
Important Notes with reasonable restriction.
Reasonable restriction imposed on such freedom –
1. Article 15, 16, 19, a) Security of the state
30 are only available b) Friendly relations with foreign states
to Indian Citizens. c) Public order
2. Article 14, 20 - d) Decency or morality
23, 25, 27, 28 are e) Contempt of court
available to every
f) Defamation
person be it citizen
or foreigner in India. g) Sovereignty and integrity of India
3. Article 15, 17, 18, 2) Freedom to assemble peacefully and without harm- Article 19 (1) (b)
20, 24 are absolute 1. Citizens in the democracy have the freedom to call an assembly and
limitation upon put ones views peacefully and without harm.
legislative power. 2. Reasonable restriction that can be imposed in the interest of-
a) Public order
b) Sovereignty and integrity of India
3) Freedom of association- Article 19 (1) (c)
a) Right to form religious association or union except-
b) Sovereignty and integrity of India
c) Public order
d) Morality
4) Freedom of movement- Article 19 (1) (e) (d)
5) Right to reside and settle in any part of the territory of India
except-
a) In the interest of general public
b) For the protection of interest of any scheduled tribe
6) Article 19 (1) (g)
a) All citizens are free to practice any profession or occupation/ trade,
business.
b) However the reasonable restriction in the interest of general public can
be imposed in relation to-
1. Professional and technical qualification necessary OR
2. Any trade/ business/ industry owned and controlled by the state.
3)Definition- State includes-
state 1. Central government
2. State government
Agency/Instrumental 3. Parliament
ity of State: Ajay
4. State legislature
Hasia v. Khalid
Mujib 5. All local and other authorities within the Indian Territory or under the
control of government of India.
Other authorities include all bodies or institutions created by statute or
which are acting as agencies of government.
4)Constitutional Constitutional remedies are remedies available for issuing directions or
remedies orders or writs (applications) for enforcement of fundamental rights-
Article 226- every HC has the power.
Article 32- SC has the power in case of guaranteed fundamental rights
(i.e. article 19).
5)Writ of Habeas 1. Order issued by a court calling upon the person who has detained
Corpus another person to produce before the court on what grounds such person
has been detained.
2. It is available to any person on behalf of the detained person or the
detained person himself.
3. Disobedience of this writ (contempt of court).
6)Writ of Command issued by SC/ HC to any public authority only to perform it’s
Mandamus public duty which is mandatory for it to perform.
It is issued to remove defects in justice.
7)Writ of An order issued by superior court to inferior court forbidding it from
prohibition continuing with the proceedings or a suit on the ground that it is outside
their jurisdiction.
It is issued before the trial of the case or before the completion of
proceedings.
8)Writ of A writ of certiorari can be issued by SC or HC to the inferior court.
certiorari When can it be issued?
(wrong 1. Quasi judicial authority acted under an invalid law
jurisdiction)= 2. Court or authority acted without jurisdiction
means to be 3. Where there is an error of law apparent on the face of the records
certified 4. Inferior court or quasi authority acted against the principle of natural
justice
5. SC can issue writ of certiorari to any HC correcting an erroneous
decision.
9)Writ of Quo- A question is asked to the holder of public office to show to the court
warranto under what authority such person is holding office.
Note-
Such writ can not be issued against a private person or when an
alternative remedy is available to the person.
10)Writ The above 5 writs can be ordered or directed in writing by SC/ HC
against any public authority, government office, inferior court when a
complaint is received.
Power of HC to issue writ is wider than SC.
SC issues writs only for fundamental rights whereas HC issues writs for
any purpose.
11) How many Constitution has 446 8 articles, 12 schedules and 100 precedents (i.e.
articles, judgements) + 2 5 P a r t s E a r l i e r : 3 9 5 A r t i c l e s , 2 2 P a r t s
schedules and All administrative, legislative and judicial & other public authorities derive their
precedents? power from COI and COI derives its power from the people.
12)Preamble It states the objects and purposes of constitution.
It declares India to be –
1. Sovereign = India is Supreme
2. Socialist = P u b l i c I n t e r e s t
3. Secular
4. Democratic = Structure, government of India will be decided by people
5. Republic = s u p r e m e p o w e r i s h e l d b y t h e p e o p l e & e l e c t e d p e o p l e
6.To secure all it’s citizens-
1) Justice = social, economic, political
2) Liberty = thought, expression, belief, faith, worship
3) Equality = status (Article 14), opportunity (Article 16)
4) Fraternity = dignity, unity + INTEGRITY (42nd Amendment)
Adopted, enacted on 26/11/1949.
Notes-
1) The constitution of India has been framed and enacted by the people of
India for the people and of the people of India.
2) Democratic- every citizen ≤ 18 years has a right to vote elections which
will be held in every 5 years.
3) Secular- secularism is a structure of constitution as we have not
adopted any religions but respect all the religions.
4) Justice- every citizen irrespective of poverty, richness, cast, religion,
sex, political power must be treated equally in the eyes of law.
13)Constitution 1. Federal characteristics-

of India is 1) Dual governments + h a v e t o f o l l o w C O I p r o v i s i o n s w h i l e m a k i n g l a w s
basically federal 2) Distribution of powers 7 t h S c h e d u l e
but with certain 3) Authority of courts I n d e p e n d e n t J u d i c i a r y
unitary features 4) Not easy to amend constitution A r t i c l e 3 6 8 : P o w e r t o a m e n d C O I
Quasi - Federal 5) Supremacy of the constitution
6) Written constitution
F e d e r a l f e a t u r e s - - (As held by SC in Kesavananda Bharti v/s state of Kerala).
form basic 2. Unitary characteristics-
structure of COI.
1) President is the constitutional head executive of union and appoints
the governor.
w i t h o t h e r c o u n t r i e s : 2) President appoints and transfers Chief justice and Judges of HC.
Comparison of COI
1. Mode of
Formation of
3) Parliament has supreme rights in legislative matters.
Constitution 4) Parliament can make laws on state list under special circumstances.
2. Position of State
in Federalism 5) Central government can issue directions to state government.
3. Citizenshi, etc
4. Residuary Power
6) State government or states are dependent on centre or central
government for their financial resources.
14)Article 13 a) Doctrine of severability (separation)-
Justifiability of 1) Any existing laws that are inconsistent with the fundamental rights are
Fundamental Rights void and invalid to the extent of inconsistency.
2) Generally invalid part of such law shall be severed and declared
Article 13(1): invalid; if not possible, the entire act will be invalid.
Pre-Constitutional b) Doctrine of eclipse- (Bhikaji Narayan v/s state of MP case)
Laws 1. Existing laws that are inconsistent with the fundamental rights
Article 13(2): become inoperative from the date of commencement of constitution.
Post-Constitutional 2. They remain dormant but if the prohibition or inconsistency is
Laws removed by constitutional amendment, such laws become active. E.g.
pre- constitution law- RBI Act 1934.
3. After the enactment of constitution, any law in contravention of
constitutional provisions shall be void and invalid.
c) Doctrine of waiver of rights-
A person has liberty to waive the enjoyment of his rights of which he has
knowledge and such rights are given to him by the state. Must be voluntary
d) Single person law-
If on account of some special circumstances, law is made applicable to
single individual, it is perfectly valid and such single individual may be
treated as a class by himself.
E.g. Sholapur spinning and weaving co. Ltd (Emergency provisions act
1950).
15)Article 14 Right of equality-

The state shall not deny to any person within the territory of India-
1. Equality before the law OR
Legislative 2. Equal protection of the law.
Classification:
1. Equality before the law-
Article 14 does not
forbid classification  English law
or discrimination  Amongst equal, law should be equal
which rests upon  It is negative concept which means no special privilege in favour of
reasonable grounds any individual.
of distinction. 2. Equal protection of the law-
 American law
Test of Valid/Permissible  It is more positive concept approving equality of treatment under
Classification = 2
conditions
equal circumstances.
Note-
Such clause prevents discrimination only by the state and not by
individual.
16)Article 15 It prohibits the state from discriminating against any citizen on the
grounds of religion, race, caste, sex, place of birth, etc.
It means every citizen shall have access to public places maintained
wholly or partially out of state funds.
Exceptions-
1) Special provision for women and children
2) Special provision for improvement in the standard of living
(BC/SC/ST) and education of backward class, scheduled caste and
scheduled tribes.
Note-
The above provisions are known as protective discrimination.
17)Article 16 All citizens shall have equal opportunity for employment in the office of
state and any discrimination on any grounds shall be prohibited.
Exceptions-
1. Essential qualification is required as per law for employment.
2. Backward class citizens.
Note-
Parliament can reserve certain posts for the residents of the whole state
but can not reserve it for part of the state.
18)Article 20 a) Ex- post facto laws-
No person can be convicted under the law with retrospective effect
declaring an act as an offence which was not an offence prior to the
enactment.
b) Double jeopardy-
No person can be prosecuted and punished for the same offence more
than once.
Such protection against double jeopardy has been introduced to avoid
penalty times for same offence.
The burden of prove is on prosecution and not on accused.
c) Protection against self incrimination-
A person accused can not be compelled to be a witness against himself.
However, the person is not an accused for not a witness when he made
the statement or the statement was made without any force then such
protection against self incrimination is not extended to him.
Every person is presumed to be an innocent before inviction.
19)Article 21 Article 21 – Protection of life and personal liberty

1. No person (i.e. such right is available to both citizens and non-citizens)
shall be deprived of his life or personal liberty except according to the
procedure established by law.
2. Supreme Court in “Gopalan case” –
SC held that protection under article 21 is available only against
arbitrary, executive action and not against arbitrary legislative action.
3. Menka Gandhi case –
SC overruled the judgement in Gopalan case. SC held that protection
under article 21 shall be available against arbitrary, executive and
legislative action also.
4. The Menka Gandhi case gave a new dimension to article 21, in which it
was held that before a person may be deprived of his liberty, there must
be “a valid and reasonable law which prescribes a just, fair and
reasonable procedure”.
5. Right to live is not merely confined (restricted) to physical existence

but includes right to live with human dignity. The following rights though
not mentioned in the constitution, found their origin in the above article
21 –
1) Right to bail
2) Right against use of third degree
3) Right against detention
4) Right to travel abroad.
20)Article 22 Article 22 – Protection against arrest and detention
1. Arrested person can not be detained in custody without informing the
grounds for arrest and shall be given a right to consult a legal practioner
of his choice.
He shall be produced before nearest magistrate within 24 hrs
(excluding the time of journey from the place of arrest to the court) and
shall not be detained beyond 24 hrs without the authority of the
magistrate.
2. Article 22(4) & article 22(5) – A person can be detained without trial
(i.e. preventive detention) not to punish him but to intercept and prevent
him from doing something prohibited by law.
However, such person can not be detained for a longer period than 2
months except the detention is on –
a) Recommendations of advisory board AND
b) It is within the provisions of law AND
c) The person detained must be communicated the reasons AND
d) He shall given opportunity of representation against the order.
21)Article 23 & Article 23 – Right against exploitation
24 1. Traffic in human beings and beggars and other similar forms of forced
labour is prohibited and it is unconstitutional and punishable.
Exception –
State can impose compulsory public service without making any
discrimination. E.g. Defence of country or social service.
Article 24 – Prohibition of employment of children
1. It prohibits employment of children < 14 yrs of age in factories and
hazardous employment.
2. Article 39(e) also ensures that the health and the strength of the
workers, male, women and children are not abused and they are not
forced by economic necessity to enter a vocation unsuited to their age,
strength.
22)Article 25-28 Article 25-28 – Right to freedom of religion

1. Article 25 -All the persons have the freedom of conscience and free
profession, practice and propagation of religion.
However, it is subject to the restrictions imposed by the state as
follows –
a) Public order, morality and health
b) Fundamental rights of constitution (Part III)
c) Law regulating/ restricting any secular activity associated with
religious practice
d) Law providing for social welfare and reforms to all classes and sections
of Hindus.
2. Article 26 -Every religious denomination has a freedom to establish
and maintain religious institutions, manage its affairs, acquire and
administer property subject to public order, morality and health.
3. Article 27 -Every person who is maintaining any religious

denomination can not be compelled to pay tax specifically used for any
other religious denomination.
4. Article 28 -No religious instruction can be provided in any educational
institution wholly maintained out of state funds except when the
educational institution is established under a religious trust.
No person can be forced to take part in any religious instruction or
religious worship conducted in such educational institution or its
premises.
Notes –
1) Secularism is the structure of our constitution.
2) The state has no religion itself and India has not adopted any religion.
23)Article 29 & Article 29- 30 -Rights of minorities
Article 30 1. Article 29 -Minority interest is protected as follows –
a) Any citizen residing in a distinct territory having distinct language,
culture shall have a right to conserve his own language and culture.
b) No citizen can be denied admission in a educational institution
maintained by govt or receiving aid from govt on the grounds of belonging
to any religion, race, caste or language.
2. Article 30 -All minorities have a right to establish and administer
educational institution of their choice and the state shall not discriminate
in granting aid.
24)Power to The power to amend the constitution including fundamental right is
amend contained in Article 368.
constitution Case studies on whether fundamental rights can be amended and
understand the scope and authority of parliament to amend constitution
–
1. Shankari Prasad v/s Union of India –
SC held that parliament has power to amend constitution including
fundamental rights.
2. Golaknath v/s State of Punjab –
SC held that parliament has no power to amend any fundamental right.
3. Kesavanand Bharti v/s State of Kerla –
SC held that parliament can amend any part of the constitution including
fundamental rights that can not alter the basic structure of the
framework of the constitution.
25)Directive 1. Fundamental rights are defined in part III of the constitution.
principles of 2. Directive principles of state policy – part IV of the constitution.
state policy 3. Directive principles are not enforceable by court but there non-
observance doesn’t create any legal consequences provided they confirm
to the fundamental rights (State of Madras v/s Champakam Dorajrajan).
Note –
Thus constitution is bed rock of balance between the directive principles
and fundamental rights and both can co-exist harmoniously.
26)Article 51 A Fundamental duties-
Every citizen of India shall follow the following fundamental duties-
1) Be bound by the constitution and respect the national flag and
national anthem.
2) Follow the noble ideals that inspired our struggle for freedom.
3) To protect the sovereignty, unity and integrity of India.
4) To defend country and render national service whenever called upon.
E.g. NDA, army.
5) To promote harmony and the spirit of common brotherhood amongst
all the people of India and to respect women.
6) To preserve and value the rich heritage of our composite culture.
7) To protect and improve the natural environment and to have

compassion for living creature.
8) To develop the scientific temper, humanism and spirit of inquiry and
reforms.
9) To safeguard public property and avoid violence.
10) To strive towards excellence and to raise national image through
achievement.
27)Article 123 Ordinance making power-
President’s power to promulgate (announce, proclaim) ordinances during
recess of parliament-
1) This power can be used to meet a sudden situation arising in the
country.
2) On the advice of council or minister.
3) Must be laid before the parliament when it reassembles.
4) If not laid before parliament, it shall automatically cease to have effect
on the expiry of 6 weeks from the date of reassembly.
5) If the two houses of the parliament assemble on different dates, 6
weeks to be counted from later date.
28)Article 213 Governor’s powers to promulgate ordinance during the recess of
legislature-
1) Governor can make ordinance when either of the two houses is not in
session.
2) Ordinance can not be made without instructions from the president if
the bill requires previous sanction of the president.
3) Ordinance must be made with aid and advice of council of ministers.
4) Mutatis mutandis as above.
Notes-
1. Governor of a state is appointed by the president.
2. Normally there shall be a governor for each state but same person can
be appointed as governor for two or more states.
29)Legislative 1) Power of parliament to make laws- union list- list I in 7th schedule.
power of union 2) Legislature power to make laws in any state- list II in 7 th schedule.
and state 3) In respect of the matters mentioned in the concurrent list- list III- both
parliament and state legislature shall have power to make laws.
In case of conflict between parliament and state law, the former law shall
prevail over the later law.
Notes-
1. The union list shall always be superior over the state list and
concurrent list.
2. Parliament in exceptional cases can make laws on state list.
3. In case the subject is mentioned in concurrent list and the state wants
to make laws on the same subject, it can do so only with the consent of
the president of India.
4. However parliament can get rid of such law at any time by passing new
law.
5. If any matter not included in any of the 3 lists then the parliament
shall have power to make laws called as residuary power of the
parliament. E.g. wealth tax (UOI v/s H.S.Dhillion).
Schedule VII
List I List II List III

II II
Union List State List Concurrent List
Article 246
Schedule VII
List I List II List III Residuary power
Union list State list Concurrent list Matter not

1. Power of 1. State 1. Both included in any
parliament to legislature has parliament of 3 list than
make law. power to and state parliament
2. Can make law make law. legislature shall have
in state list 2. Conflict have power power to
under between state to make make law.
exceptional and law E.g. wealth tax
cases parliamentary
law - former
law shall
prevail
30)Circumstance 1) Matters in national interest-

s when 1. If Rajyasabha supports by 2/3 rd of it’s members present and voting by
parliament can passing a resolution which shall be valid for the period of 1 year (can be
make laws on renewed by a fresh resolution at the end of every year).
state list 2. If not renewed then such law automatically ceased after 6 months of
the expiry of resolution.
2) During emergency-
Parliament can make laws for whole or any part of the territory of India
for any matter in the state which shall automatically cease on expiry of 6
months when emergency ceases.
3) In case of presidential rule i.e. breakdown of constitutional machinery
in a state.
4) On request of two or more states.
5) On any subject which refers to international agreement.
31)Interpretation 1) Plenary (i.e. widest/ inclusive) powers-

of legislative Words used in constitution must be interpreted with widest amplitude.
lists E.g. 1. Power to collect taxes is granted to legislature, power to not to
collect taxes shall also be presumed to be included within such power.
2. Power to make laws gives the power to make retrospective law or
prospective law.
2) Rule of harmonious construction-
If there is conflict between entries in two different lists then the 2 entries
should be reconciled so that each of them is given effect and conflict is
avoided.
3) Doctrine of pith and substance- (pith – reason/purpose)
When a law in reality and substance falls within an item on which a law
is enacted, then such law shall not become invalid merely because it
touches a matter outside the power of authority making the earlier law.
Thus pith of any substance shall be taken into consideration before
making such law invalid. E.g. List II –Rajasthan govt passed a law
restricting the use of sound amplifiers. However, list I –Post & telegraphs,
telephones, wireless broadcasting –Parliament has power to introduce the
law. SC held that Rajasthan govt has power to prohibit unnecessary
noise affecting public health. Therefore pith & substance was public
health & not broadcasting.
4) Rule of colourable legislature-
It means you can not do indirectly what you can not do directly.
E.g. Parliament has power to make laws on railways as per list I – union
list. Hence if state legislature makes law on railways, it becomes invalid,
called as colourable legislature.
32)Freedom of 1. Article 301-
trade, commerce Trade, commerce and intercourse throughout India shall be free except
and intercourse traffic regulation, licensing of vehicles, permits, etc (lawful TCI).
2. Article 302-
Parliament has the power to impose restrictions on TCI in the public
interest.
3. Article 303-
No such law shall be made either by the parliament or state legislature
which gives preference to one state over another.
4. Article 304 -
Tax on goods imported from other state may be imposed if goods
manufactured in the state are also liable for the tax.
Exception-
Article 305 - Freedom of TCI is not available in case of any trade where
state has monopoly. E.g. Railway.
Constitution of India
Into force – 26th January, 1950

Adopted / enacted – 26th November, 1949
Fundamental Rights
6 fundamentals freedom guaranteed to every citizen of India
Freedom of
Speech & Association Right to reside & settle

Expression anywhere in India
Assemble peacefully & Movement Free to practice any profession /

without harm occpation / Trade / business
1. Freedom to speech and expression
Article 19(1)(a)
Meaning Restriction
 Express conviction & opinions freely  Security of state

by mouth / writing / printing or  Friendly with foreign
other mode  Public order
 Right to make good / bad speech  Decency / morality
 Press, demonstration, drama, movie  Contempt of court
included  Defamation
 Sovereignty & integrity
2. Freedom to assemble peacefully and without harm
Article 19(1)(b)
Meaning Restriction
Every citizen free to call assembly and  Public order

put views peacefully and without  Sovereignty and integrity
harm
3. Freedom of association
Article 19(1)(c)
Meaning Restriction
Right to form religious association or  Sovereignty and integrity

Union  Public order
 Morality
4. Freedom of movement
Article 19(1)(d)
Free to move anywhere in territory of India
5. Right to reside and settle in any part of India
Meaning Restriction
Citizen can reside or settle  Not allowed in interest of general

permanently in any where in India public.
 Protection of scheduled tribe
6. Right to free to practice any profession / occupation / trade / business
Meaning Restriction
Any citizen can do any business  Prof. & technical qualification –

necessary
 Trade / business / industry / owned
/ controlled by state
States
Includes
C.G. S.G. Parliament S. Legislative All local and other

authorities or
under control of
Govt.
Other Authority
Includes
All bodies / institution created Which are acting as agency of

by statute & regulated by Govt Govt.
Exception
1. Stock exchange is not covered in other authorities (H.C.’s order)
2. BCCI also is not covered in other authorities (S.C’s order)
Constitution Remedies
H.C. has wider power to issue writs than S.C.
Remedies for issuing direction / orders / writs for enforcement of fundamental rights
Article 226 Article 32
Every H.C. has power S.C. has power in case of Article 19 (F. Rights)
Writ
Ordered / directed by S.C. / H.C.
Against pub. Authority, Govt., inferior court (when complain received)
1. S.C. – issue writs – on only for fundamental right

2. H.C. – issues writs – for any purpose
Constitution
Articles Schedules Precedents

(Judgments)
446 12
100
Types of Writs
Writ of Habeas Writ of Writ of Writ of Writ of quo -

Corpus Mandamus Prohibition certiorari warranto
To have a body Order / Prevention is Certified in wrong Writ of quo-

command better than jurisdiction warranto
cure
Detain a person
without saying P.A. not perform Question
reason his duty which
Order issued to prohibit Writ issued asked to
is mandatory holder of
to continue proceeding by S.C. / H.C.
or suit that is outside to inferior Public office
their jurisdiction court
That person
himself (or) any
On what
person behalf of
ground he is
him can issue SC / HC issued
holding
writ against it. writ to remove
office.
defects in justice
Writ issued before trial After

or before completion of proceeding are
proceeding complete Note
Writ can not be issued in

matter of discretionary
This writ
power of P.A.
not issued to
pvt. Person
Conditions:
or when
 Acted under invalid law alternative
 Acted without jurisdiction remedy is
 An error of law apparent available to
 Acted against principle of natural a person
justice
 SC can issue writ to H.C.
Preamble of Constitution
States object & purpose
It declares (SSSDR)
Sovereign Socialist Secular Democratic Republic
Supreme For the benefit Not adopted Equal to Of the people

power of society any religion every citizen By the people
For the people
Respect all ≥ 18 years has to right vote in

religion election in every 5 years
To secure all citizens
Justice Liberty Equality Fraternity
Constitution is basically Federal but with certain unitary features
Federal Characteristics Unitary characteristics

Dual Govt. President appoint Governor
Distribution of power President appoint & H’s Chief Justice and judges of
Authority of Court H.C.
Not easy to amend constitution Parliament have legislative supreme power
Supremacy of constitution Parliament can interfere in state laws.
Written constitution C.G. issue direction to S.G.
S.G. depend on C.G. for finance
Article 13
Severability Eclipse Waiver of rights Single Person Law

(Separation) (Shadow)
Existing law in Entire existing law Person has liberty to In special

consist with in consist with use or not his right circumstances
fundamental right fundamental right given by State
Law applicable to
This law is void In operative from State can not force single person
date of him to enjoy his
commencement of rights
Invalid part of such constitution
It is valid to be
law declared / treated as a class by
served invalid E.g. Voting rights himself
Act remain dormant
and if constitution
amended it becomes
E.g. Solapur
active again
spinning & weaving
Ltd.

Q No. 1. The preamble to the Constitution of India sets out the aims and aspirations of the people
of India. Comment.
Q No. 2. The Constitution of India establishes a federation with strong centralizing tendency”.
Discuss. Constitution of India is basically federal but with striking unitary features. Discuss.
Q No. 3. Define the term ‘State’ with reference to the rights guaranteed under Part III of the
Constitution of India.
Q No. 4. Write a short note on: Doctrine of severability
Q No. 5. Explain the doctrine of eclipse.
Q No. 6. Explain the Doctrine of waiver of rights.What do you mean by doctrine of waiver of rights
under the Constitution of India?
Q No. 7. Discuss the principles of ‘equality before the law’ and the ‘equal protection of the laws’
under the Constitution of India.
“Article 14 of the Constitution of India forbids class legislation but does not forbid classification”.
Discuss.
Q No. 8. Critically examine the prohibition under Article 15 of the Constitution of religion, race,
caste, sex or place of birth.
Preferential treatment to certain persons belonging to backward classes in the form of reservation
in education and jobs as provided in Articles 15(4) & 16(4) of the Constitution of India is a mean of
ensuring the canon of equality enshrined in the preamble of the Constitution of India. Evaluate the
statement.
Q No. 9. An Act passed by the Parliament of India provided that preference will be given to the
residents of part of State for appointment in government service in that part of State. Accordingly
Mohan, a resident of another part of same state, was not given appointment in a government office
in that part of State. Mohan wants to challenge the validity of this provision. Advice him.
Q No. 10. Akshay was denied public employment on the ground of place of birth. Discuss the
remedy available to Akshay under the provisions of Constitution of India.
Q No. 11. State six fundamental freedoms guaranteed to the citizen of India under Article 19 of the
Q No. 12. “The freedom of speech and expression guaranteed by the Constitution of India is not
absolute”. Discuss.
“The right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India is
not an absolute right but subject to reasonable restrictions.” Discuss.
"None of the fundamental rights to freedom is absolute." Comment and explain the reasonable
restrictions which can be imposed on the freedom of speech and expression.
Q No. 13. An organization of a business community staged processions, demonstrations and
agitations before the secretariat of the State Government on busy roads to press for their demands.
These caused traffic jams. The State Government imposed a ban on demonstrations and marches
on busy roads on working days. The organization alleged that the ban was an infringement of the
fundamental right of freedom as guaranteed under the Constitution of India and filed a petition in
the High Court. Decide.
Q No. 14. To what extent can the State restrict the fundamental right of a citizen to practice any
profession?
Q No. 15. A foreign national applied for permission to establish an industry for manufacturing
shoes in Delhi. The permission was refused by the competent authority. The foreign national filed a
writ petition challenging the order of refusal on the ground that in India persons are guaranteed
fundamental freedom of trade. Will he succeed?
Q No. 16. Government of Madhya Pradesh passed a law prohibiting the manufacture of bidis in the
villages during the agricultural season. No person residing in the village could employ any other
person nor engage himself in the manufacture of bidis during the agricultural season. The objective
of the provision was to ensure adequate supply of labour for agricultural purposes. A bidi
manufacturer could not even engage labour from outside the State, and so, had to suspend
manufacture of bidis during the agricultural season. Even villagers incapable of engaging in
agriculture, like old persons, women and children, etc., who supplemented their income by
engaging themselves in manufacturing bidis were prohibited without any reason. Decide whether
law passed by Government of Madhya Pradesh is constitutionally valid.
Q No. 17. Protection against ex-post facto laws under Article 20(1) of the Constitution of India.
Explain.
Q No. 18. What do you mean by double jeopardy?
Q No. 19. No person shall be deprived of his life or personal liberty except according to the
procedure established by law. Comment.
Article 21 of the Constitution of India has been so transformed by the judiciary that it now
encompasses all conceivable rights within its ambit. Discuss.
Explain the expression ‘procedure established by law’ in the Article 21 of Constitution of India.
Refer to case law.Explain the scope of the right to protection of life & personal liberty as guaranteed
in Article 21 of Constitution of India.
Q No. 20. Detention of a person without trial being draconian in nature, State the basic safeguards
provided by the Constitution of India against any law providing for preventive detention.
Write a short note on: Safeguards in a law providing for Preventive detention.
Q No. 21. Discuss the right against exploitation as guaranteed under the Constitution of India.
Q No. 22. “India is a secular State.” Explain the provisions of the Constitution of India in this
regard. Discuss the right to freedom to profess and propagate a religion and limitations thereto.
Q No. 23. Examine the amendability of fundamental rights.
Q No. 24. Discuss the relationship between ‘fundamental rights’ and ‘directive principles of the
State policy’.
How far can a law enacted to implement the directive principles of State policy claim immunity from
fundamental rights? Refer in this context to judicial decisions and constitutional amendments?
Q No. 25. Write short notes on: Fundamental duties
Enumerate fundamental duties imposed on citizen of India under Constitution of India.
Q No. 26. Ordinance making power of the President of India under Article 123 of the Constitution of
India. Describe the power of the president of India to promulgate ordinances.
Write short notes on: Ordinance making power of the President of India
Q No. 27. When a Governor cannot issue an ordinance without instructions from the president?
Describe the power of the Governor to promulgate ordinance during recess of legislature.
Q No. 28. Discuss the legislative powers of the Parliament and State Assemblies with respect to
different subjects of legislation as provided under the Constitution of India.
Q No. 29. Are the following laws valid? Give reason in support of your answer:
(1) A law of parliament on a subject matter enumerated in the concurrent list on which the
law of parliament already exists.
A State law on a subject enumerated in the concurrent lists on which the law of parliament already
exists.
Q No. 30. Explain the power of the Parliament to make laws on State list.
When and under what circumstances can the Parliament legislate on matters enumerated in the
State List? Discuss.
Discuss briefly whether the law made by the Parliament with respect to a subject included in the
State List and made applicable to the State is valid.
Q No. 31. Write a short note on: Doctrine of pith & substance
Q No. 32. Discuss in brief the rule of colourable legislation.
Q No. 33. Discuss the provisions of the Constitution of India relating to freedom of inter-State trade,
commerce and intercourse.
Critically examine the provisions of the Constitution of India relating to freedom of trade, commerce
and intercourse.
Mention the provisions relating to freedom of trade, commerce and intercourse in the Constitution
of India.
Q No. 34. Write short notes on: Right to constitutional remedies
Q No. 35. What is writ of habeas corpus? Which courts can issue these writs? Against whom can it
be issued? When it can be issued.
Write short notes on: Writ of Habeas Corpus
What is writ of habeas corpus? When it can be issued.
Q No. 36. Write short notes on: Writ of Mandamus
Explain the writ of mandamus as an extra-ordinary constitutional remedy.
On what grounds and against whom the writ of mandamus can be issued?
Q No. 37. Write short notes on: Writ of Certiorari
On what grounds and against whom can the writ of certiorari be issued?
Q No. 38. Write short notes: Writ of Quo-warranto
When can a writ of quo warrant to be issued?
Q No. 39. What do you understand by a ‘Writ’? When and why whom can writs be issued?
Examine the writ jurisdiction of the Supreme Court and the High Court
“A declaration of fundamental rights is meaningless unless there is an effective judicial remedy for
their enforcement.” Comment on this statement explaining the judicial remedies which the
Constitution of India provides.
Differentiate between the powers of the Supreme Court under Article 32 and powers of High Court
under Article 226 of the Constitution of India.
Q No. 40. In a case, Hamid was terminated from the police service. Hamid filed a writ petition
against termination order on the ground that a reasonable opportunity of being heard was not given
to him by the government. The writ petition was dismissed by the Court as the government proved
that reasonable opportunity of being heard had been given to the petitioner. Afterwards, Hamid
filed another writ petition on the ground that as he was appointed by the Director General of Police,
termination by the order of Deputy Inspector General of Police was in violation of Article 311(1) of
the Constitution of India. Decide the validity of the second writ petition.
Constitution of India 2.21
Chapter
2 Constitution of India
Introduction: The Constitution of India is the mother of all laws of our country. Our Constitution
is the machinery by which other laws are made by the Parliament. Constitution gives us
fundamental rights. It contains Directive Principal of State Policy which provides Justice, Social,
Economic, Political and welfare provision to the people of India. Constitution of India is
lengthiest subject, having 446 Articles, 12 Schedules and hundreds of precedents but only
limited part of Constitution is in syllabus of CS Executive. Constitution of India came into force
on January 26, 1950.
Preamble
PREAMBLE
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Question 1] The preamble to the Constitution of India sets out the aims and aspirations
of the people of India. Comment. CS (Inter) – Dec 2007 (4 Marks)
Ans.: Preamble says briefly the objects, purposes intended to be served by the statue. The
preamble to the Constitution sets out the aims and aspiration of the people of India. It is a part
of the Constitution. The preamble declares India to be a Sovereign, Socialist, Secular,
Democratic Republic and secures to all its citizens Justice, Liberty, Equality and Fraternity. It is
declared that the Constitution has been given by the people to themselves, thereby affirming
the republican character of the polity and the sovereignty of the people. The polity assured to
the people India by the Constitution is described in the preamble as a Sovereign, Socialist,
Secular, and Democratic Republic.
Significance of the Preamble to the Constitution of India
(1) We, the people: The phrase “we, the people” has been taken from the Constitution of USA.
This means, the Constitution of India has been framed and enacted by the people of India
the power to make the Constitution had been achieved by the people of India with great
efforts. It was not derived by any external force.
(2) The principle “Government of the People, by the People and for the people” can be seen in
the Preamble.
(3) Democratic: Ours is the democratic country. Every citizen of India, who is aged 18 years
and above is entitled to vote, irrespective of his caste, religion, race, sex, economic
position. From the village level to parliament level, there will be elections meant for 5 years.
While democracy failed in our surrounding countries, it is very much successful in our
country.
(4) Secular: Secularism is the structure of our Constitution. Our Government respects all
religions. It does not uplift or degrade any particular religion. The State has no religion

itself. While our surrounding countries have adopted particular religions; India has not
adopt any religion.
Example: Pakistan (Islam), Bangladesh (Islam), Nepal (Hinduism), Sri Lanka (Buddhism),
Burma (Buddhism), etc.
(5) Justice: The Preamble intends that the justice must be given to every citizen irrespective of
poverty, richness, caste, religion, sex, power, political power. There are several examples
that our country adhere this principle very strongly. The Supreme Court decision in Indira
Gandhi v Raj Narain, AIR SC 2299, shows that the Prime Minister and ordinary citizens are
equal. Similarly, P. V. Narasimha Rao is being prosecuted for the allegations of bribery,
forgery, etc. It shows the independent judiciary in India.
Structure (Federal or Unitary)
Question 2] The Constitution of India establishes a federation with strong centralizing

tendency”. Discuss. CS (Inter) – Dec 1995 (10 Marks), June 2004 (8 Marks)
Constitution of India is basically federal but with striking unitary features. Discuss.
CS (Inter) – June 2000 (12 Marks), June 2007 (8 Marks)
CS (Executive) – June 2010 (8 Marks)
Ans.: Constitution of India is basically federal but with certain unitary features. The majority of
the Supreme Court judges in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, were
of the view that the federal features form the basic structure of the Indian Constitution.
However, there is some controversy as to whether the Indian Constitution establishes a federal
system or it stipulates a unitary form of Government with some basic federal features. To
decide whether out Constitution is federal, unitary or quasi federal, one has to consider the
contents of our Constitution.
Thus, to decide whether our constitution is federal or unitary, it will be better to have look over
these systems and constitution.
Federal system has the following essential characteristics:
 Dual government – one at center and one each for the States
 Distribution of powers between Central and State Government
 Supremacy of the constitution
 Written constitution
 Not easy to amend constitution
 Authority of Courts
The political system introduced by our Constitution possesses all the aforesaid essentials of a
federal polity as both the Union and the State Governments and their respective organs derive
their authority from the Constitution and it is not competent for the States to secede from the
Union.
There is a division of legislative and executive powers between the Union and the State
Governments. Lastly, the Supreme Court stands at the head of our judiciary to guard against
the violation of the constitutional provisions. The Supreme Court decides disputes between the
Union and the States, or the States inter se and interprets finally the provisions of the
Constitution.
However, Indian constitution does not follow strictly the pure federal system. If we look from
other side, our constitution is mainly central and the Central Government has a large sphere of
action and thus plays a more dominant role than the states.
Unitary Character:
 President of India is the constitutional head. He is executive of Union. Appointments of
Governors are made by him.
 Appointment and transfer of the Chief Justice and Judges of the High Court are made by
the president.
 Parliament has supreme rights in legislative matters.
 Parliament has power to make a law of on State Lists under special circumstances.

 Central Government has power to issue directors to State Government.

 States are dependent on center for aid as their financial resources are inadequate.
Judicial view: The question as to whether the Indian Constitution has a federal form of
Government or a unitary constitution with some federal features came up in various cases
before the Supreme Court. But in most cases, the observations have been made in a particular
context and have to be understood accordingly. The question rests mostly on value judgment
i.e. on one’s own philosophy.
Thus, Constitution of India is federal but with striking unitary features.
Definition of State [Article 12]
Question 3] Define the term ‘State’ with reference to the rights guaranteed under Part III
of the Constitution of India. CS (Inter) – Dec 1996 (12 Marks), Dec 2002 (5 Marks)
Ans.: State [Article 12]: The term ‘State’ includes:

(a) Government and Parliament of India
(b) Government and legislature of each state
(c) All local and other authorities
- within the territory of India
- under the control of the Government of India.
Judicial Views:
 The expression local authorities refers to authorities like Municipalities, District Boards, Panchayat,
Port Trust, Mining, Settlement Boards etc. [Rashid Ahmed v. M. B. Kairana, State of Gujarat Vs
Shantilal Mangaldas]
 The expression ‘other authorities’ includes all authorities created by Constitution or statute. It is not
necessary that such authorities should be engaged in performing governmental or sovereign
functions. [Electricity Board, Rajasthan v. Mohan Lal, AIR 1967 SC 1957]
 The expression ‘other authorities’ includes all those bodies which are acting as agencies or
instrumentalities of the government. [R. D. Shetty v. International Airport Authorities, AIR 1979 SC
1628]
 It has been held that university is an authority. [University of Madras v. Shanta Bai, AIR 1954 Mad.
67]
 President is ‘State’ when making an order under Article 359. [Haroobhai v. Sate of Gujarat, AIR 1967,
Guj. 229]
 Corporations acting as instrumentality or agency of Government would become ‘State’. [Sukhdev
Singh v. Bhagatram, AIR 1975 SC 1331]
 Kerala HC held that since a stock exchange was independent of government control and was not
discharging any public duty, cannot be treated as ‘other authority’ under Article 12. [Satish Nayak v.
Coahin Stock Exchange, (1995 Comp. LJ 35]
 The Supreme Court held that the Board of Control for Cricket in India (BCCI) was not State for
purposes of Article 12 because it was not shown to be financially, functionally or administratively
dominated by or under the control of the Government and control exercised by the Government was
not pervasive but merely regulatory in nature. [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649]
Question 4] What are the various tests for determining whether an entity is an
instrumentality or agency of the State?
Ans.: In 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) Share Capital: 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) Financial Assistance: 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) Monopoly Status: Whether the corporation enjoys a monopoly status which is conferred or
protected by the State.
(4) State control: Existence of deep and pervasive State control may afford an indication that
the corporation is a State agency or an instrumentality.
(5) Functions: 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
instrumentally or agency of government.
(6) Department of government: 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.
Question 5] If a Court makes rules which contravene the fundamental rights of citizens,
the same could be challenged treating the Court as ‘State’ under Article 12 of the
Constitution of India. Comment.
Ans.: As per Article 12 of the Constitution of India, State includes all local and other authorities
under the control of the government of India. Thus, whether judiciary is included within the
definition of ‘State’ as given in Article 12 and judiciary liable to be sued for violation of
fundamental rights was came before court in various cases.
Judiciary although an organ of State like the executive and the legislature, is not specifically
mentioned in Article 12. However, the position is that where the Court performs judicial
functions e.g. determination of scope of fundamental rights visa-vis legislature or executive
action, it will not occasion the infringement of fundamental rights and therefore it will not come
under ‘State’ in such situation. [A.R. Antualay v. R.S. Nayak (1988) 2 SCC 602]
While in exercise of non-judicial functions e.g. in exercise of rule-making powers, where a Court
makes rules which contravene the fundamental rights of citizens, the same could be challenged
treating the Court as ‘State’.
Doctrine of Severability, Eclipse, Waiver, Single person law [Article 13]
Question 6] “Laws inconsistent with or in derogation of the fundamental rights are

void”. Comment.
Ans.: Laws inconsistent with or in derogation of the fundamental rights [Article 13]:
(1) All laws in force in the territory of India immediately before the commencement of
Constitution, in so far as they are inconsistent with the provisions of Part III (Fundamental
Rights), shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by Part
II and any law made in contravention of this clause shall, to the extent of the contravention,
be void.
(3) In this article, unless the context otherwise requires –
(a) ‘Law’ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or
usage having in the territory of India the force of law.
(b) ‘Laws in force’ includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under
Article 368.
Important points relating to Article 13:
 As per the Article 13(1), “existing laws that are inconsistent with fundamental rights are void,
to the extent of inconsistency”.

 As per the Article 13(2), future laws i.e. laws made after the commencement of the
Constitution which takes away or abridges the rights conferred by Part III shall be void to
the extent to which it curtails any fundamental right.
 The State shall not make any law which takes away the Fundamental Rights.
 Any law made in contravention of the provisions of the Constitution shall be void and
invalid.
 The invalid part shall be severed and declared invalid if it is really severable.
 Sometimes the valid and invalid parts of the Act are so mixed up that they cannot be
separated from each other. In such cases, the entire Act will be invalid.
Question 7] Write a short note on: Doctrine of severability

CS (Inter) – Dec 1998 (8 Marks), June 2004 (6 Marks)
Ans.: One thing to be noted in Article 13 is that, it is not the entire law which is affected by the
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. This is known as the rule of
severability.
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 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 necessary to 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,
AIR1950 SC 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.
Question 8] Explain the doctrine of eclipse.

Ans.: As per the Article 13(1) of the Constitution of India, “existing laws that are inconsistent
with fundamental rights are void, to the extent of inconsistency”.
The doctrine of eclipse was originated in Bhikaji Narain v. State of M. P. An existing law
inconsistent with a fundamental right, though becomes inoperative from the date of the
commencement of the constitution, is not dead altogether. It is overshadowed by the
fundamental right and remains dormant, but is not dead.
According to this doctrine, pre-constitution laws 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 become operative and effective again if the prohibition brought about by the
fundamental right is removed by an amendment of the constitution.
In Saghir Ahmed v. State of U.P. a Constitution Bench of the Apex Court unanimously stated
that the Doctrine could not applied to the impugned post Constitutional law. A legislation that
contravened Article 19(1)(g) and was not protected by Clause (6) of the Article 19, when it was
enacted after the commencement of the Constitution, could not be validated even by
subsequent Constitutional Amendment.
Bhikaji Narain v State of Madhya Pradesh AIR 1955 SC 781: In this case provision of C.P. and
Berar Motor Vehicles Amendment Act, 1947 authorized the State Government to make up the entire
motor transport business in the province to the exclusion of motor transport operators. This provision,
though valid when enacted, became void on the be coming into force of the Constitution in 1950 as they
violated Article 19(1)(g) of the Constitution. However, 1951, Clause (6) of Article 19 was amended by the
Constitution First Amendment Act, as so to authorize the Government to monopolies any business. The

Supreme Court held that "the effect of the amendment was to remove the shadow and to make the
impugned Act free from all blemish or infirmity".
It became enforceable against citizens as well as non-citizens after the constitutional impediment was
removed. This law was merely eclipsed for the time being by the fundamental rights. As soon as the
eclipse is removed the law begins to operate from the date of such removal.
Deep Chand v State of Uttar Pradesh: In this case, the Supreme Court held that a post-constitutional
law made under Article 13(2) which contravenes a fundamental right is nullity from its Inception and a
stillborn law. It is void ab initio. The doctrine of eclipse does not apply to post-constitutional laws and
therefore, a subsequent Constitutional Amendment cannot revive it. The Doctrine of eclipse applies only
to pre-constitutional law and not post-constitutional law.
Question 9] Explain the Doctrine of waiver of rights CS (Inter) – June 2008 (4 Marks)
What do you mean by doctrine of waiver of rights under the Constitution of India?
CS (Executive) – Dec 2009 (4 Marks)
Ans.: The doctrine of waiver of rights is based on the premise that a person is his best judge
and that he has the liberty to waive the enjoyment of such rights as are conferred on him by
the State. However, the person must have the knowledge of his rights and that the waiver
should be voluntary.
The doctrine was discussed in Basheshar Nath v. Income Tax Commissioner, AIR 1959 SC 149,
where the majority expressed its view against the waiver of fundamental rights. It was held that
is was not open to citizens to waive any of the fundamental rights.
Basheshar Nath v. Income Tax Commissioner AIR 1959 SC 149: In this a case a reference against
the petitioner was made to the Income Tax Investigation Commission under Section 5(1) of the Taxation
of Income (Investigation Commission) Act, 1947. After the commission had decided upon the amount to
be treated as concealed income, the petitioner agreed for a settlement in 1954 and agreed to pay `3 lakh
as tax and penalty in monthly instalments. In 1955 the Supreme Court declared Section 5(1) of the Act
ultra vires Article 14 of the Constitution. The petitioner filed an appeal before the Supreme Court
challenging the settlement with Investigation Commission. The respondents pleaded that he while
agreeing for the settlement had waived his fundamental rights. The Supreme Court on a majority basis
held that the settlement was invalid.
Question 10] Write a short note on: Single Person Law
Ans.: A law may be constitutional, even though it relates to a single individual, if that single
individual is treated as a class by himself on some peculiar circumstances. In Charanjit Lal
Chowdhary v. Union of India AIR 1951 SC 41, AIR 1951 SC 41, the petitioner was an ordinary
shareholder of the Sholapur Spinning and Weaving Co. Ltd. The company through its directors
has been managing and running a textile mill of the same name. Later, on account of
mismanagement, a situation had arisen that brought about the closing down of the mill, thus
affecting the production of an essential commodity, apart from causing serious unemployment
amongst certain section of the community.
The Central Government issued an Ordinance which was later replaced by an Act, known as
Sholapur Spinning & Weaving Co. (Emergency Provisions) Act, 1950 . With the passing of this Act,
the management and the administration of the assets of the company were placed under the
control of the directors appointed by the Government. As regards the shareholders, the Act
declared that they could neither appoint a new director nor could take proceedings against the
company for winding up. The petitioner filed a writ petition on the ground that the said Act
infringed the rule of equal protection of laws as embodied in Article 14, because a single
company and its shareholders were subjected to disability as compared with other companies
and their shareholders.
The Supreme Court dismissed the petition and held the legislation as valid. The law may be
constitutional even though it applies to a single individual if on account of some special

circumstances or reasons applicable to him only, that single individual may be treated as a
class by himself.
However, in subsequent cases the Court explained that the rule of presumption laid down in
Charanjit Lal’s case is not absolute, but would depend on facts of each case.
For a valid classification there has to be a rational nexus between the classification made by
the law and the object sought to be achieved. For example a provision for district-wise
distribution of seats in State Medical colleges on the basis of population of a district to the
population of the State was held to be void. [P. Rajandran v. State of Mysore, AIR 1968 SC 1012]
Right of Equality [Article 14]
Question 11] Discuss the principles of ‘equality before the law’ and the ‘equal protection
of the laws’ under the Constitution of India.
CS (Inter) – June 1995 (8 Marks), Dec 2001 (12 Marks)
“Article 14 of the Constitution of India forbids class legislation but does not forbid
classification”. Discuss. CS (Inter) – June 1999 (12 Marks), June 2006 (10 Marks)
Ans.: Equality before law [Article 14]: The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.
“Equality before the law” is an expression of English Common Law while "equal protection of
laws" owes its origin to the American Constitution.
The expression ‘equality before the 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.
Equality before the law means that amongst equals the law should be equal. That means like
should be treated alike and among unequal same laws shall not be applicable.
Both the phrases aim to establish what is called the "equality to status and of opportunity" as
embodied in the Preamble of the Constitution. While equality before the law is a somewhat
negative concept implying the absence of any special privilege in favour of any individual and
the equal subjection of all classes to the ordinary law, equal protection of laws is a more
positive concept employing equality of treatment under equal circumstances.
Thus, Article 14 stands for the establishment of a situation under which there is complete
absence of any arbitrary discrimination by the laws themselves or in their administration.
Interpreting the scope of the Article, the Supreme Court of India held that:
(a) Equal protection means equal protection under equal circumstances.
(b) The State can make reasonable classification for purposes of legislation.
(c) Presumption of reasonableness is in favour of legislation.
(d) The burden of proof is on those who challenge the legislation.
Explaining the scope of reasonable classification, the Court held that "even one corporation or a
group of persons can be taken to be a class by itself for the purpose of legislation provided
there is sufficient basis or reason for it. The onus of proving that there were also other
companies similarly situated and this company alone has been discriminated against, was on
the petitioner".
Article 14 prevents discriminatory practices only by the State and not by individuals. For
instance, if a private employer like the owner of a private business concern discriminates in
choosing his employees or treats his employees unequally, the person discriminated against
will have no judicial remedy.
A remarkable example of the application of the principle of equality under the Constitution is the
decision of the Constitution Bench of the Supreme Court in R. K. Garg v. Union of India AIR 1976 SC
1559. The legislation under attack was the Special Bearer Bonds (Immunities and Exemptions) Act,
1981. It permitted investment of black money in the purchase of these Bonds without any questions
being asked as to how this money came into the possession.
In public interest litigation it was contended that Article 14 had been violated, because honest taxpayers

were adversely discriminated against by the Act, which legalized evasion. But the Supreme Court
rejected the challenge, taking note of the magnitude of the problem of black money which had brought
into being a parallel economy.
In Mithu v. State of Punjab, AIR 1983 SC 473, the petitioner challenged the validity of Section 303 of the
Indian Penal Code, 1860. Section 303 laid that if a person under a sentence of life imprisonment in jail
commits a murder he must be awarded sentence of death. Whereas, Section 302 provides that if a
person commits murder he may be punished with death sentence or sentence of life imprisonment. The
Courts have discretionary power to award any of the two punishments in a case of Section 302. This
discretionary power is not given in the case of Section 303. The petitioner contended that classification
between Section 302 & 303 would be arbitrary and not justifiable. Death sentence in Section 303 is
mandatory, while the same is discretionary in Section 302 for the same offence i.e. murder.
The Supreme Court agreed with the arguments of the petitioner and struck down Section 303 of the
Indian Penal Code, 1860.
In Air India v. Nergesh Meerza & Others, 1981 4 SCC 335, Air India crew running the flights consisting of
Pilots, FPs and In-flights Pursers on the one hand the Air Hostesses, Check Air Hostesses, Additional Air
Hostesses and Chief Air Hostesses on the other hand. The modes of appointment, service conditions
were different for Pilots and Air Hostesses. The posts of Air Hostesses were purely reserved for young,
attractive and unmarried ladies from the ages 18 to 25 years. An Air Hostesses should retire from the
service on her attaining the age of 30 years or when she would get marries whichever is earlier. However,
for the male crew, the retirement age was prescribed as 58 years and there was no restriction on
marriage. Air Hostesses filed their grievances. The Supreme Court gave the judgment in favour of the Air
Hostesses opining that too much gender discrimination was shown by the Air India Corporation.
Prohibition of discrimination on grounds of religion etc. [Article 15]
Question 12] Critically examine the prohibition under Article 15 of the Constitution of
religion, race, caste, sex or place of birth.
Preferential treatment to certain persons belonging to backward classes in the form of
reservation in education and jobs as provided in Articles 15(4) & 16(4) of the
Constitution of India is a mean of ensuring the canon of equality enshrined in the
preamble of the Constitution of India. Evaluate the statement.
Ans.: Prohibition of discrimination [Article 15]: This article prohibits the State from
discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or
any of them. Further, no citizen shall be subjected to any disability, restriction or condition
with regard to:
(a) Access to shops, public restaurants, hotels and places of public entertainment; or
(b) The use of wells, tanks, bathing ghats, road and places of public resort, maintained wholly
or partially out of State funds or dedicated to the use of the general public.
Exception: The State can make special provision for women and children. The State can make
special provision for the advancement of:
- Socially and educationally backward classes of citizens
- Scheduled casts and
- Scheduled tribes
Protective discrimination: In the eye of the law, there is no discrimination between man or
woman. So, for a post of a clerk or Prime Minister man or women are competent person. There
is no discrimination between them. But in fact, man is physically stronger than women.
Therefore, keeping the weak physical position of the woman and children, the State is
authorized by the Article 15(3) to make any special provisions for their benefit. It is called
‘protective discrimination’. Similarly for the advancement of the educationally and socially
backward classes of people SC’s and ST’s the State is empowered to make special provisions
protecting them under the Article 15(4).

Equal opportunity in public employment [Article 16]
Question 13] Write a short note on: Equal opportunity in public employment
Ans.: Equality of opportunity [Article 16(1)]: There shall be equality of opportunity for all citizens
in matters relating to employment or appointment to any office under the State.
No discrimination in employment [Article 16(2)]: No citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under the State.
Exception – i.e. when discrimination is valid [Article 16(3) & (4)]:
(1) Parliament can make a law with regard to a class or classes of employment or appointment
to an office under the Government of, or any local or other authority within, a State or
Union territory and may state requirement as to residence within that State or Union
territory prior to such employment or appointment.
(2) Parliament can pass a law from making provision 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.
Question 14] An Act passed by the Parliament of India provided that preference will be
given to the residents of part of State for appointment in government service in that
part of State. Accordingly Mohan, a resident of another part of same state, was not given
appointment in a government office in that part of State. Mohan wants to challenge the
validity of this provision. Advice him. CS (Inter) – Dec 1997 (5 Marks)
Ans.: The facts of the case are similar to the case of Narasimha Rao v. State of Andhra Pradesh.
In this case, an Act of Parliament prescribed residence as qualification for government service
in Telangana area of the State of Andhra Pradesh. The Supreme Court held that Parliament can
reserve certain posts in Andhra Pradesh for the residents of the State, but it cannot reserve
post in Telangana for the residents of Telangana only which is part of State.
The word ‘State’ in Article 16 signifies the whole of the State and not parts of the State, and
therefore, residential qualification can be prescribed for the whole of the State.
Mohan is advised to file writ petition challenging the validity of the provision.
Question 15] Akshay was denied public employment on the ground of place of birth.
Discuss the remedy available to Akshay under the provisions of Constitution of India.
Ans.: If someone is denied public employment of grounds of his cast, religion or place of birth,
he can use Article 16 of the Constitution for opposing such action. Article 16 guarantees to all
citizen equality of opportunity in matters relating to employment of appointment of office under
the State. It also prohibits discrimination against a citizen on the grounds of religion race caste,
sex descent, place of birth or residence. Hence, Akshay can use protection of this article and
seek redressal.
Abolition of untouchability [Article 17]
Question 16] Write a short note on: Abolition of untouchability
Ans.: Abolition of Untouchability [Article 17]: “Untouchability” is abolished and its practice in
any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be
an offence punishable in accordance with law.
In 1955 Parliament enacted the Untouchability (Offences) Act, 1955. In 1976, the Act was
amended and renamed as the “Protection of Civil Rights Act, 1955” making changes in the
existing law namely, all offences to be treated as non-compoundable and offences punishable

up to 3 months to be tried summarily; punishment of offences enhanced; preaching of

untouchability or its justification made an offence; a machinery envisaged for better
administration and enforcement of its provisions.
Abolition of Titles [Article 18]
Question 17] Write a short note on: Abolition of titles
Ans.: Abolition of titles [Article 18]:

(1) No title, not being a military or academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any office of profit or trust
under the State, accept without the consent of the President any title from any foreign
State.
(4) No person holding any office of profit or trust under the State shall, without the consent of
the President, accept any present, emolument, or office of any kind from or under any
foreign State.
Article 18 is more a prohibition rather than a fundamental right. British Government used to confer
titles upon persons who showed special allegiance to them. Many persons were made:
- Sir,
- Raj Bahadur,
- Rai Saheb,
- Knight, etc.
These titles had the effect of creating a class of certain persons which was regarded superior to others
and thus had the effect of perpetuating inequality. To do away with that practice, Article 18 provides for
the abolition of such titles
Rights relating to freedoms [Article 19]
Question 18] State six fundamental freedoms guaranteed to the citizen of India under
Article 19 of the Constitution of India. CS (Inter) – June 1994 (5 Marks)
Ans.: Article 19(1) of the Constitution, guarantees to the citizens of India six freedoms.
Accordingly all citizens shall have the right –
(a) To freedom of speech & expression
(b) To assemble peaceably & without arms
(c) To form association or unions
(d) To move freely throughout the territory of India
(e) To reside and settle in any part of the territory of India
(f) To acquire, hold and dispose of property — [Deleted by 44th Amendment in 1978]
(i) To practice any profession, or to carry on any occupation, trade or business
Reasonable restrictions: These freedoms are basic rights which are recognized as the natural
rights inherent in the status of a citizen. At the same time, none of these freedoms is absolute
but subject to reasonable restrictions. The Constitution under Article 19(2) to 19(6) permits the
imposition of restrictions on these freedoms subject to the following conditions:
 The restriction can be imposed by law and not by a purely executive order.
 The restriction must be reasonable.
 The restriction must be imposed for achieving objects specified Article 19(1)(a) to (g).
The onus of proving to the satisfaction of the Court that the restriction is reasonable is upon
the State.
Question 19] “The freedom of speech and expression guaranteed by the Constitution of
India is not absolute”. Discuss. CS (Inter) – June 1998 (12 Marks)
“The right of freedom of speech and expression under Article 19(1)(a) of the Constitution

of India is not an absolute right but subject to reasonable restrictions.” Discuss.

"None of the fundamental rights to freedom is absolute." Comment and explain the
reasonable restrictions which can be imposed on the freedom of speech and expression.
Ans.: Freedom of speech, considered the basic freedom by most philosophical thinkers, consists
of several facets, including the right to express one’s opinion unhindered, unfettered by the fear
of retribution. It is one of the most basic elements for a healthy, open minded democracy. It
allows people to freely participate in the social and political happenings of their country.
In India, this right is granted by Article 19(1)(a). However, this right of freedom to speech and
expression is not completely unchecked. Article 19(2) allows for reasonable restrictions to be
imposed on all fundamental rights, including that of freedom to speech and expression.
The right to speech and expression includes right to make a good or bad speech and even the
right of not to speak. One may express oneself even by signs. The freedom of speech and
expression means the right to express one’s convictions and opinions freely by word of mouth,
writing, printing, pictures or any other mode.
The Courts have held that this right includes the freedom of press and right to publish one’s
opinion, right to circulation and propagation of one’s ideas, freedom of peaceful demonstration,
dramatic performance and cinematography. It may also include any other mode of expression
on one’s ideas.
The Supreme Court has held that this freedom includes the right to communicate through any
media – print, electronic and audio visual. [Cricket Association of Bengal v. Ministry of information &
Broadcasting, AIR 1995 SC 1236]
This freedom includes the freedom of press as it partakes of the same basic nature and
characteristic. However no special privilege is attached to the press as such, distinct from
ordinary citizens. It was observed that “freedom of speech and of the press lays the foundation
of all democratic organizations, for free political discussion with public education”.
Imposition of pre-censorship on publication is violative of freedom of speech and expression.
The right to freedom of speech is infringed not only by a direct ban on the circulation of a
publication but also by an action of the Government which would adversely affect the
circulation of the paper. [Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305]
Regarding Commercial advertisements it was held in, that they do not fall within the protection
of freedom of speech and expression because such advertisements have an element of trade
and commerce. A commercial advertisement does not aim at the furtherance of the freedom of
speech. [Hamdard Dawakhana v. Union of India, AIR 1960 SC 554]
Later the perception about advertisement changed and it has been held that commercial speech
is a part of freedom of speech and such speech can also be subjected to reasonable restrictions.
[Tata Press Ltd. v. MTNL, AIR 1995 SC 2438]
Dramatic performance is also a form of speech and expression. Censorship of films including
(pre-censorship) is justified but the restrictions must be reasonable. [K. A. Abbas v. Union of India,
AIR 1971 SC 481]
Restriction on freedom of making speech & expression [Article 19(2)]: The State may impose by
law reasonable restrictions on the freedom of speech and expression. Such restrictions may
relate to –
 Security of the State
 Friendly relations with foreign States
 Public order
 Decency or morality
 Contempt of Court
 Defamation
 Sovereignty and integrity of India
Reasonable restrictions under these head can be imposed only by a duly enacted law and not
by executive action. [Express News Papers Pvt. Ltd. v. Union of India, 1986 1 SCC 133]

In Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118, the Supreme Court held invalid the
Central Provinces & Berar Regulation of Manufacture of Bidis (Agricultural Purpose) Act, 1948, because it
totally prohibited the manufacture of bidis during the agricultural season in certain parts of the State.
Question 20] Write a short note on: Freedom of assembly
Ans.: Article 19(1)(b) gives the right to citizens to assemble peacefully and without arms. Calling
an assembly and putting one’s views before it is also intermixed with the right to speech and
expression and in a democracy it is of no less importance than speech. However, apart from the
fact that the assembly must be peaceful and without arms, the State is also authorized to
impose reasonable restrictions on this right in the interests of:
(i) Sovereignty and integrity of India, or
(ii) Public order.
Question 21] An organization of a business community staged processions,

demonstrations and agitations before the secretariat of the State Government on busy
roads to press for their demands. These caused traffic jams. The State Government
imposed a ban on demonstrations and marches on busy roads on working days. The
organization alleged that the ban was an infringement of the fundamental right of
freedom as guaranteed under the Constitution of India and filed a petition in the High
Court. Decide. CS (Inter) – June 1996 (5 Marks)
An organization of some persons belonging to a particular community sat on a dharna
near Jantar Mantar in New Delhi and later on moved towards Parliament House raising
slogans against the Government to press for their demands. This led to traffic jam. The
government had imposed a ban on demonstrations near and at the Parliament House.
The organization filed a petition in the High Court against the ban, pleading
infringement of their fundamental right of freedom. Will the petition be admitted? Give
reasons. CS (Inter) – June 2008 (4 Marks)
Ans.: Article 19(1)(b) gives the right to citizens to assemble peacefully and without arms.
However, apart from the fact that the assembly must be peaceful and without arms, the State is
also authorized to impose reasonable restrictions on this right in the interests of:
(i) Sovereignty & integrity of India, or
(ii) Public order.
As facts given in case, an organization of a business community staged processions,
demonstrations and agitations before the secretariat of the State Government on busy roads to
press for their demands. These caused a traffic jam which is against the public order and State
can definitely impose ban on such demonstrations.
As ban on demonstration is valid, petition will get rejected by the High Court.
Question 22] Write a short note on: Freedom of Association
Ans.: 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. [Article 19(1)(c)] This right is subject to
reasonable restriction which the State may impose in the interests of:
(i) Sovereignty and integrity of India or
(ii) Public order or
(iii) Morality.
Question 23] Write a short note on: Freedom of Movement
Ans.: Article 19(1)(d) guarantees to a citizens the right to reside and settle in any part of the
territory of India. This freedom is said to be intended to remove internal barriers within the
territory of India to enable every citizen to travel freely and settle down in any part of a State of

union territory. This freedom is also subject to reasonable restrictions in the interests of
general public or for the protection of the interests of any Scheduled Tribe under Article 19(5).
Question 24] To what extent can the State restrict the fundamental right of a citizen to
practice any profession? CS (Inter) – June 1997 (8 Marks), June 2001 (12 Marks)
Ans.: Article 19(1)(g) of the constitution guarantees to all citizens freedom to practice any
profession, or to carry any occupation, trade or business. However, such freedom is not
absolute but subject to reasonable restrictions as may be imposed by the State.
Restriction on freedom to practice any profession, trade or business [Article 19(6)]: The State's
power to restrict the enjoyment of these freedoms is limited to the making of any law imposing
reasonable restrictions in the interests of the general public in so far as it relates to:
(a) The prescribing of professional or technical qualifications necessary for practicing any
profession or carrying of any occupation, trade or business or
(b) The carrying on by the State or by a corporation owned or controlled by the State, of any
trade, business, industry or service to the exclusion of others.
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.
The word ‘restriction’ 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.
The vital principle which has to keep in mind is that the restrictive law should strike a proper
balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted
by Article 19(6). The restriction must not be of an excessive nature beyond what is required in
the interests of the public.
Question 25] A foreign national applied for permission to establish an industry for
manufacturing shoes in Delhi. The permission was refused by the competent authority.
The foreign national filed a writ petition challenging the order of refusal on the ground
that in India persons are guaranteed fundamental freedom of trade. Will he succeed?
Ans.: The foreign national will not succeed. The six fundamental freedom guaranteed by Article
19 are available only to the citizen of India. A foreigner is not a citizen of India, and therefore,
cannot have the fundamental freedom of the right to practice any profession or to carry on any
occupation trade or business guaranteed by Article 19(1)(g) of the Constitution of India.
Thus, writ petition filed by the foreign national will be rejected.
Question 26] Government of Madhya Pradesh passed a law prohibiting the manufacture
of bidis in the villages during the agricultural season. No person residing in the village
could employ any other person nor engage himself in the manufacture of bidis during
the agricultural season. The objective of the provision was to ensure adequate supply of
labour for agricultural purposes. A bidi manufacturer could not even engage labour from
outside the State, and so, had to suspend manufacture of bidis during the agricultural
season. Even villagers incapable of engaging in agriculture, like old persons, women and
children, etc., who supplemented their income by engaging themselves in manufacturing
bidis were prohibited without any reason. Decide whether law passed by Government of
Madhya Pradesh is constitutionally valid. CS (Executive) – Dec 2009 (5 Marks)
Ans.: Article 19(1)(g) of the constitution guarantees to all citizens freedom to practice any
profession, or to carry any occupation, trade or business. Such freedom is not absolute but
subject to reasonable restrictions as may be imposed by the State. However, such restriction
must be reasonable and can be imposed only by a duly enacted law and not by executive
action. [Express News Papers Pvt. Ltd. v. Union of India, 1986 1 SCC 133]
The facts of the case are similar to Chintaman Rao v. the State of Madhya Pradesh, AIR 1951 SC
118, wherein the Supreme Court held the Central Provinces & Berar Regulation of Manufacture

of Bidis (Agricultural Purpose) Act, 1948 invalid and un-constitutional because it totally
prohibited the manufacture of bidis during the agricultural season in certain parts of the State.
Thus, law passed by Government of Madhya Pradesh unconstitutionally and invalid.
Protection from convection for offences [Article 20]
Question 27] Protection against ex-post facto laws under Article 20(1) of the
Constitution of India. Explain. CS (Inter) – June 1994 (10 Marks)
Ans.: Protection in respect of conviction for offences [Article 20(1)]: No person shall be convicted
of any offence except for violation of a law in force at the time of offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force the time of the
commission of the offence.
That means, if a particular act was not 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 with retrospective
effect declaring that act as an offence.
For example, what was not an offence in 2015 cannot be declared as offence under a law made
2019 giving effect to such law from a back date, say since 2015.
Not only this, even the penalty for the commission of an offence cannot be increased with
retrospective effect.
For example, suppose for committing dacoity the penalty in 2015 was 10 years imprisonment
and a person commits dacoity in that year. By a law passed after his committing the dacoity
the penalty, for his act cannot be increased from 10 to 11 years or to life imprisonment.
In short, so far as criminal law creates a new offence or increase the penalty, it shall be
applicable only to those offences which are committed after it’s coming into force and cannot
cover those offences which have already been committed in the past.
In Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 S.C. 394, it was clarified that
Article 20(1) prohibited the conviction under an ex post facto law, and that too the substantive
law. This protection is not available with respect to procedural law. Thus, no one has a vested
right in procedure. A law which nullifies the rigour of criminal law is not affected by the rule
against ex post facto law. [Rattan Lal v. State of Punjab, (1964) 7 S.C.R. 676]
Ex-post facto laws are laws which punished what had been lawful when done.
Question 28] What do you mean by double jeopardy? CS (Executive) – Dec 2009 (4 Marks)
Ans.: Double jeopardy means no one should be imprisoned or penalized two times for the same
offence.
Protection against double jeopardy [Article 20(2)]: No person can be prosecuted and punished for
the same offence more than once.
It is, however, to be noted that the conjunction ‘and’ is used between the words “prosecuted
and punished” and therefore, if a person has been let off after prosecution without being
punished, he can be prosecuted again
Question 29] Protection against self-incrimination under Article 20(3) of the

Constitution of India. Explain.
Ans.: Protection against self-incrimination [Article 20(3)]: A person accused of any offence cannot
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:
 He must be accused of an offence.
 There must be a compulsion to be a witness.
 Such compulsion should result in his giving evidence against himself.

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 him, then the protection available under this provision does not extend to
such person or to such statement.
Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1025: In this case, the appellant, a former Chief
Minister of Orissa was directed to appear at Vigilence Police Station, for being examined in connection
to a case registered against her under the Prevention of Corruption Act, 1947 and under S. 161/165
and 120-B and 109 of The Indian Penal Code, 1860. Based on this an investigation was started against
her and she was interrogated with long list of questions given to her in writing. She denied to answer
and claimed protection under Article 20(3). The Supreme Court ruled that the objective of Article 20(3)
is to protect the accused from unnecessary police harassment and hence it extends to the stage of
police investigation apart from the trial procedure.
Mohd. Dastagir v. State of Madras, AIR 1960 SC 756: In this case the appellant went to the
residence of the Deputy Superintendent of Police and handed him an envelope. On opening the
envelope, the DSP found cash in it, which meant that the appellant had come to offer bribe to the
officer. The DSP refused it and asked the appellant to place the envelope and the notes on the table,
and he did as told, after which the cash was seized by the Police. In this case the Supreme Court held
that, the accused wasn’t compelled to produce the currency notes as no duress was applied on him.
Moreover the appellant wasn’t even an accused at the time the currency notes were seized from him.
Hence in this case the scope of Article 20(3) was not applicable.
Protection of life & personal liberty [Article 21]
Question 30] No person shall be deprived of his life or personal liberty except according
to the procedure established by law. Comment.
Article 21 of the Constitution of India has been so transformed by the judiciary that it
now encompasses all conceivable rights within its ambit. Discuss.
CS (Inter) – June 2008 (8 Marks)
Explain the expression ‘procedure established by law’ in the Article 21 of Constitution of
India. Refer to case law. CS (Inter) – Dec 1999 (12 Marks)
Explain the scope of the right to protection of life & personal liberty as guaranteed in
Article 21 of Constitution of India. CS (Inter) – Dec 2000 (8 Marks)
Ans.: Protection of life and personal liberty [Article 21]: It guarantees one of the most important
fundamental rights. It says that, “no person shall be deprived of his life or personal liberty except
according to procedure established by law”.
The right is available to both citizens and non-citizens.
The majority in the case of A.K. Gopalan v. State of Madras, AIR 1950 SC 27, gave a narrow
meaning to the expression ‘personal liberty’ within the subject matter of Articles 20 to 22 by
confining it to the liberty of the person (that is, of the body of a person). The majority of the
judges also took a narrow view of the expression ‘procedure established by law’ in this case.
The expression ‘liberty’ in the 5th and 14th Amendments of the U.S. Constitution has been given
a very wide meaning. The restricted interpretation of the expression ‘personal liberty’ preferred
by the majority judgment in A.K. Gopalan’s case namely, that the expression ‘personal liberty’
means only liberty relating to or concerning the person or body of the individual, has not been
accepted by the Supreme Court in subsequent cases.
That the expression ‘personal liberty’ is not limited to bodily restraint or to confinement to
prison, only is well illustrated in Kharak Singh v. State of U.P, AIR 1963 SC 1295. In that case
the question raised was of the validity of the police regulations authorizing the police to
conduct what are called as domiciliary visits against bad characters and to have surveillance
over them. The court held that such visits were an invasion, on the part of the police, of the
sanctity of a man’s home and an intrusion into his personal security and his right to sleep, and

therefore violative of the personal liberty of the individual, unless authorized by a valid law. As
regards the regulations authorizing surveillance over the movements of an individual the court
was of the view that they were not bad, as no right to privacy has been guaranteed in the
Constitution.
In Satwant Singh Sawhney v. A.P.O., New Delhi, AIR 1967 S.C. 1836, it was held that right to
travel is included within the expression ‘personal liberty’ and, therefore, no person can be
deprived of his right to travel, except according to the procedure established by law. Since a
passport is essential for the enjoyment of that right, the denial of a passport amounts to
deprivation of personal liberty. In the absence of any procedure prescribed by the law of land
sustaining the refusal of passport to a person, it’s refusal amounts to an unauthorized
deprivation of personal liberty guaranteed by Article 21. This decision was accepted by the
Parliament and the infirmity was set right by the enactment of the Passports Act, 1967.
In the Maneka Gandhi’s Case (1973) the Supreme Court overruled its judgment in the Gopalan
Case. It stated that protection under Article 21 should be available not only against arbitrary
executive action but also against arbitrary legislative action by introducing the American
concept of ‘due process of law’. It pronounced the expression ‘Personal Liberty’ is of the widest
amplitude and it covers a wide range of rights that go to constitute the personal liberties of a
man.
A new dimension to Article 21 was given in Maneka Gandhi’s Case, in which it was held that
before a person may be deprived of his liberty there must be:
- A valid law
- The law must provide a procedure
- The procedure must be just, fair and reasonable
- The law must be reasonable.
The Court’s decision in Maneka Gandhi Case has been reaffirmed in the subsequent cases also.
Thus, it was held that the right to live is not merely confined to physical existence but it
includes the right to live with human dignity. This was given rise to many fundamental rights.
All these rights although not enshrined in the constitution but found their root in Article 21.
Some of these rights are:
 Right to bail
 Right against use of third degree methods by police
 Right of detained person to have interview with his lawyer and family members
 Right to travel abroad.
Maneka Gandhi Case: On the 4th of July, 1977, Smt. Maneka Gandhi received a letter from the
Regional Passport Office, Delhi, asking her to submit her passport within 7 days from the day on which
she had received such letter i.e. before 11th July 1977. The letter stated that it had been the decision of
the Government of India to impound her passport under Section 10(3)(c) of the Passport Act, 1967. The
grounds for such an impounding, as told to her was “public interest.”
Smt. Maneka Gandhi immediately sent a letter to the Regional Passport Officer, inquiring about the
grounds on which her passport had been impounded. She also requested him to provide a copy of the
‘Statement of Reasons’ for making of such an order. The reply sent by the Ministry of External Affairs
was that it was the decision of the Government of India to impound the passport in the interest of the
general public. Also, there were orders to not issue her a copy of the Statement of Reasons.
A writ petition was filed by Maneka Gandhi under Article 32 of the Constitution in the Supreme Court
challenging the order of the government of India as violating her fundamental rights guaranteed
under Article 21 of the Constitution
JUDGMENT: It was held that Section 10(3)(c) of the Passport Act confers vague and undefined power on
the passport authorities, it is violative of Article 14 of the Constitution since it doesn’t provide for an
opportunity for the aggrieved party to be heard. It was also held violative of Article 21 since it does not
affirm to the word “procedure” as mentioned in the clause, and the present procedure performed was the
worst possible one.
Right to education [Article 21A]

Question 31] Write a short note on: Right to education
Ans.: Right to education [Article 21A]: The State shall provide free and compulsory education to
all children of the age of 6 to 14 years in such manner as the State may, by law, determine.
The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21A in the Constitution
of India to provide free and compulsory education of all children in the age group of 6 to 14
years as a Fundamental Right in such a manner as the State may, by law, determine.
The Right of Children to Free & Compulsory Education Act, 2009 [RTE Act, 2009], which
represents the consequential legislation envisaged under Article 21A, means that every child
has a right to full time elementary education of satisfactory and equitable quality in a formal
school which satisfies certain essential norms and standards.
Article 21A and the RTE Act, 2009 came into effect on 1st April 2010. The title of the RTE Act,
2009 incorporates the words ‘free and compulsory’. ‘Free education’ means that no child, other
than a child who has been admitted by his or her parents to a school which is not supported by
the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which
may prevent him or her from pursuing and completing elementary education. ‘Compulsory
education’ casts an obligation on the appropriate Government and local authorities to provide
and ensure admission, attendance and completion of elementary education by all children in
the 6-14 age groups. With this, India has moved forward to a rights based framework that casts
a legal obligation on the Central and State Governments to implement this fundamental child
right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of
the RTE Act.
Protection against arrest & detention [Article 22]
Question 32] Detention of a person without trial being draconian in nature, State the
basic safeguards provided by the Constitution of India against any law providing for
preventive detention. CS (Inter) – Dec 2002 (5 Marks)
Write a short note on: Safeguards in a law providing for Preventive detention.
Ans.: Preventive detention means detention of a person without trial. The object of preventive
detention is not to punish a person for having done something but to intercept him before he
does it and to prevent him from doing it. No offence is proved nor any charge formulated and
yet a person is detained because he is likely to commit an act prohibited by law.
Protection against arrest and detention in certain cases [Article 22]:
(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the Magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.
Safeguards against Preventive Detention:
(1) No law providing for preventive detention shall authorize the detention of a person for a
longer period than 3 months unless –
(a) An Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration of the said
period of 3 months that there is in its opinion sufficient cause for such detention.
(b) Such person is detained in accordance with the provisions of any law made by
Parliament.
(2) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be,

communicate to such person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation against the order.
Right against Exploitation [Articles 23& 24]
Question 33] Discuss the right against exploitation as guaranteed under the Constitution
of India. CS (Inter) – Dec 1997 (12 Marks)
Ans.: Right against exploitation [Article 23]: Traffic in human beings and beggar and other
similar forms of forced labour are prohibited and any contravention of this provision shall be an
offence punishable in accordance with law.
As per Article 23, traffic in human beings and beggar and other similar forms of forced labour are
prohibited. 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 this fundamental right.
‘Traffic’ in human beings means to deal in men and women like goods, such as to sell or let or
otherwise dispose of them. ‘Beggar’ 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. [Article 23(2)]
Prohibition of employment of children factories etc. [Article 24]: No child below the age of 14
years shall be employed to work in any factory or mine or engaged in any other hazardous
employment.
Article 39(e) imposes an obligation upon the State to ensure that the health and strength of the
workers, men and women and the tender age of children are not abused and the citizens are
not forced by economic necessity to enter avocations un summed to their age, strength etc.
Accordingly, keeping in view provision of Article 24 read with Article 39(e) following laws have
been enacted or amended suitability:
 Child Labour (Prohibition & Regulations) Act, 1986
 Children (Pledging of Labour) Act, 1933
 Factories Act, 1948
 Mines Act, 1952
 Apprentice Act, 1961
Right to freedom of religion [Article 25 to 28]
Question 34] Write a detailed note on: Right to Freedom of Religion
Ans.: Freedom of conscience and free profession, practice and propagation of religion [Article 25]:
All persons are equally entitled to freedom of conscience and the right freely to profess, practice
and propagate religion. But this freedom is subject to restrictions imposed by the State on the
following grounds:
 Public order, morality and health.
 Other provisions in Part-III of the Constitution.
 Law regulating or restricting any economic, financial political or other secular activity which
may be associated with religious practice, and
 Law providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
The freedom of religion conferred by the Article 25 is not confined to the citizens of Indian but
extends to all persons including aliens and individuals exercising their rights individually or
through institutions. [Ratilal v. State of Bombay (1954) SCR 105, Stanslaus v. State AIR 1975 M. 163]
Freedom to manage religious affairs [Article 26]: Subject to public order, morality and health,
every religious denomination or any section thereof shall have the right:
 To establish and maintain institutions of religious and charitable purposes

 To manage its own affairs in matters of religion

 To own and acquire movable and immovable property
 To administer such property in accordance with few.
Religion is certainly a matter of faith with individuals or communities and it is not necessarily
theistic – There are well-known religions in India like Buddhism and Jainism which do not believe
in God or in any Intelligent First Cause. A religion undoubtedly has its basis in any system of
beliefs or doctrines which are regarded by those who profess that religion as conducive to their
spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or
belief.
A religion may not only lay down a code of ethical rules for its follower to accept, it might
prescribe rituals and observances, ceremonies and modes or worship which are regarded as
integral parts of religion and those forms and observances might extend even to matters of food
and dress.
Freedom as to payment of tax for the promotion of any particular religion [Article 27]: No person
shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in
payment of expenses for the promotion or maintenance of any particular religion or religious
denomination.
Freedom as to attendance at religion at religious instruction or religious worship in educational
institutions [Article 28]: Religious instruction cannot be provided in any educational institution
wholly maintained out of State funds. However, this prohibition does not extend to an
educational institution which is administered by the State but has been established under any
endowment or trust which requires that religious instruction shall be imparted in such
institution.
Person attending an educational institution recognized by the State or receiving and out of
State funds cannot be required –
(a) to take part in any religious instruction that may be imparted in such institution or
(b) to attend any religious worship that may be conducted in such institution or any premises
attached thereto,
unless such person or if such person is a minor, has guardian has given his consent thereto.
Question 35] “India is a secular State.” Explain the provisions of the Constitution of
India in this regard. Discuss the right to freedom to profess and propagate a religion and
limitations thereto. CS (Inter) – June 2002 (12 Marks)
Ans.: Secularism is the structure of our Constitution. Our Government respects all religions. It
does not uplift or degrade any particular religion. The State has no religion itself. While our
surrounding countries have adopted particular religions; India has not adopt any religion.
Example: Pakistan (Islam), Bangladesh (Islam), Nepal (Hinduism), Sri Lanka (Buddhism),
Burma (Buddhism), etc.
The Constitution of India stands for a secular State. The State has no official religion.
Secularism pervades its provisions which give full opportunity to all persons to profess, practice
and propagate the religion of their choice.
The Supreme Court in State of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) 9 SCC 684, held
that secularism means that State should have no religion of its own and each person, whatever
his religion, must get an assurance from the State that he has the protection of law to freely
profess, practice and propagate his religion and freedom of conscience.
Provisions as to secularism are given in Article 25 to 28 of the Constitution of India which
provides as follows:
Article 25 provides that all persons are entitled to freedom of conscience and right freely to
profess practice religion.
Article 26 provides that subject to public order, morality and health, every religious
denomination or any section thereof shall have the right:
 To establish and maintain institutions of religious and charitable purposes
 To manage its own affairs in matters of religion
 To own and acquire movable and immovable property

 To administer such property in accordance with few.

Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which
are specifically appropriated in payment of expenses for the promotion or maintenance of any
particular religion or religious denomination..
Article 28 provides that no religious instruction shall be provided in any educational
institutional wholly maintained out of State funds.
Rights of Minorities [Article 29]
Question 36] What do you understand by the term ‘minority’?
Ans.: The word ‘minority’ has not been defined in the Constitution.
The Supreme Court in DAV College, Jullundur v. State of Punjab, AIR 1971, SC 1737, seems to
have stated the law on the point. It said that minority should be determined in relation to a
particular impugned legislation. The determination of minority should be based on the area of
operation of a particular piece of legislation. If it is a State law, the population of the State
should be kept in mind and if it is a Central Law the population of the whole of India should be
taken into account.
Question 37] Write a detailed note on: Rights of minorities
Ans.: Protection of interests of Minorities [Article 29]: It guarantees two rights:

(1) Any section of the citizens residing in the territory of India or any part having a distinct
language, script or culture of its own has the right of conserve the same. Thus, citizens from
Karnataka or Bengal has the right to conserve their language or culture if they are living in
Delhi in a Hindi speaking area and vice versa.
(2) No citizen can be denied admission into any educational institution maintained by the State
or receiving aid out of State funds on grounds only of religion, race, caste, language, or any
of them.
Right of minorities to establish and administer educational institution [Article 30]: All minorities,
whether based on religion or on language, shall have the right to establish and administer
educational institutions of their choice.
In making any law providing for the compulsory acquisition of any property of an educational
institution established and administered by a minority, the State shall ensure that the amount
fixed by or determined under such law for the acquisition of such property is such as would not
restrict or abrogate the right guaranteed under that clause.
The State shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether
based on religion or language.
In T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, is an eleven Bench decision
dealing with right of minorities to establish and administer educational institutions, the
Supreme Court held that minority includes both linguistic and religious minorities and for
determination of minority status, the unit would be the State and not whole of India. Further,
the right of minorities to establish and administer educational institutions (including
professional education) was not absolute and regulatory measures could be imposed for
ensuring educational standards and maintaining excellence thereof. Right of minorities
included right to determine the procedure and method of admission and selection of students,
which should be fair and transparent and based on merit.
Remedies for enforcement of rights [Article 32]
Question 38] What are the remedies available if rights conferred by Part III of the
Constitution of India are violated?

Ans.: Remedies for enforcement of rights conferred by Part III [Article 32]:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by Part III is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by Part
III.
(3) Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court.
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by the Constitution.
Article 32 guarantees the enforcement of fundamental rights. It is remedial and not substantive in
nature.
Where a fundamental right is also available against private persons such as the right under
Articles 17, 23 and 24, the Supreme Court can always be approached for appropriate remedy
against the violation of such rights by private individuals. [Peoples’ Union for Democratic Rights v.
Union of India, AIR 1982 SC 1473]
A petitioner’s challenge under Article 32 extends not only to the validity of a law but also to an
executive order issued under the authority of the law.
Amendability of Fundamental Rights
Question 39] Examine the amendability of fundamental rights.

Ans.: The elementary question in controversy has been whether Fundamental Rights are
amendable so as to take away the basic rights guaranteed by the Constitution. Another
controversy deals with the extent, scope and authority of Parliament to amend Constitution.
The answer has been given by the Supreme Court from time to time, sometimes under immense
pressure and can be understood in the light of the following cases:
(1) Shankari Prasad v. Union of India, AIR 1951 SC 458: The validity of the First Amendment to
the Constitution was challenged on the ground that it purported to abridge the
fundamental rights. The Supreme Court held that the power to amend the Constitution,
including Fundamental Rights is contained in Article 368. An amendment is not a law
within the meaning of Article 13(2). An amendment is valid even if it abridges any
fundamental Right. This decision was approved by the majority judgment in Sajjan Singh v.
State of Rajasthan, AIR 1965 SC 845.
(2) Golaknath v. State of Punjab, AIR 1967 SC 1643: The Supreme Court prospectively overruled
its decision in Shankari Prasad and Sajjan Singh cases and held Fundamental Rights are
outside the amendatory process if the amendment takes away or abridges any of the rights.
It also added that Article 368 merely lays down the procedure for the purpose of
amendment. Further, The Court said that an amendment is a law under Article 13(2) of the
Constitution of India and if it violates any fundamental right, it may be declared void.
(3) To nullify the effect of Golaknath case, Parliament passed the Constitution (24th
Amendment) Act in 1971 introducing certain changes in Article 13 and Article 368, so to
assert the power of Parliament to amend the Fundamental Rights.
(4) Kesavanand Bharti v. State of Kerala, AIR 1973 SC 1461: The Supreme Court upheld the
validity of 24th Constitutional Amendment holding that Parliament can amend any Part of
the Constitution including the Fundamental Rights. But the Court made it clear that
Parliament cannot alter the basic structure of framework of the Constitution.
(5) To neutralize the effect of this limitation, the Constitution (42nd Amendment) Act, 1976
added two new clauses to Article 368. By new Clause (4), it has been provided that no
amendment of the Constitution made before or after the 42nd Amendment Act shall be
questioned in any Court on any ground. New Clause (5) declares that there shall be

limitation whatever on the Constitutional power of parliament to amend by way of addition,

variation or repeal he provisions of this Constitution made under Article 368.
(6) Minerva Mills v. Union of India, AIR 1980 SC 1789: The Supreme Court unanimously held
that Clauses (4) & (5) of Article 368 and Section 55 of the 42nd Amendment Act as
unconstitutional transgressing the limits of the amending power and damaging or
destroying the basic structure of the Constitution.
(7) Waman Rao v. Union of India, (1981) 2 SCC 362: The Supreme Court held that the
amendments to the Constitution made on or after 24.4.1973 by which 9th Schedule was
amended from time to time by inclusion of various Acts, regulations therein were open to
challenge on the ground that they, or any one or more of them are beyond the
constitutional power of Parliament since they damage the basic or essential features of the
Constitution or its basic structure.
Question 40] Write a short note on: Doctrine of basic Structure
Ans.: The elementary question in controversy has been whether Fundamental Rights are
amendable so as to take away the basic rights guaranteed by the Constitution. Another
controversy deals with the extent, scope and authority of Parliament to amend Constitution.
In Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, the appellant challenged the decision of the
Allahabad High Court who declared her election as invalid on ground of corrupt practices. In
the mean time Parliament enacted the 39th Amendment withdrawing the control of the Supreme
Court over election disputes involving among others, the Prime Minister. The Supreme Court
upheld the challenge and held that democracy was an essential feature forming part of the
basic structure of the Constitution. The exclusion of Judicial review in Election disputes in this
manner damaged the basic structure. The ‘doctrine of basic structure’ placed a limitation on the
powers of the Parliament to introduce substantial alterations or to make a new Constitution.
The doctrine of basic structure provides a touchstone on which validity of the constitutional
amendment Act could be judged. Core constitutional values/overarching principles like
secularism; egalitarian equality etc. fall outside the amendatory power under Article 368 of the
Constitution and Parliament cannot amend the constitution to abrogate these principles so as
to rewrite the constitution. [Glanrock Estate (P) Ltd. v. State of T N (2010) 10 SCC 96]
Directive principle of state policy
Question 41] Discuss the relationship between ‘fundamental rights’ and ‘directive
principles of the State policy’. CS (Inter) – June 1996 (10 Marks), Dec 2004 (6 Marks)
How far can a law enacted to implement the directive principles of State policy claim
immunity from fundamental rights? Refer in this context to judicial decisions and
constitutional amendments? CS (Inter) – Dec 2000 (12 Marks)
Ans.: The Fundamental Rights are defined as the basic human rights of all citizens. These
rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion,
caste, creed or sex. They are enforceable by the Courts.
The Directive Principles of State Policy are guidelines for the framing of laws by the government.
These provisions, set out in Part IV of the Constitution, are not enforceable by the Courts, but
the principles on which they are based are fundamental guidelines for governance that the
State is expected to apply in framing and passing laws.
Since Directive Principles are not enforceable by Court, their non-observance does not create
any legal consequences. But any law implementing Directive Principles has to conform to
Fundamental Rights. In the State of Madras vs. Champakam Dorajrajan, AIR 1951 SC 226,
Supreme Court held that Directive Principles have to conform and run as a subsidiary to
Fundamental Rights because latter are enforceable in courts while former are not. However,
this position was changed latter. Being the part of the same constitution, both Fundamental

Rights and Directive Principles are equally important and neither of them is superior or inferior
to the other. They are in fact complementary and supplementary to each other. Both should be
given effect as far as possible.
Though parliament is competent to amend constitution in order to enable the state to
implement Directive Principles, but it should ensure that the basic structure of the
Constitution is not affected.
Constitution is based on the bedrock of balance between the Directive Principles and
Fundamental Rights and to give absolute primary to one over the other would disturb this
balance. Both can co-exist harmoniously.
Fundamental Duties
Question 42] Write short notes on: Fundamental duties

Enumerate fundamental duties imposed on citizen of India under Constitution of India.
Ans.: Fundamental Duties [Article 51A]: It shall be the duty of every citizen of India –
(1) To abide by the Constitution and respect its ideals and institutions, the National Flag and
the National Anthem;
(2) To cherish and follow the noble ideals which inspired our national struggle for freedom;
(3) To uphold and protect the sovereignty, unity and integrity of India;
(4) To defend the country and render national service when called upon to do so;
(5) To promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women;
(6) To value and preserve the rich heritage of our composite culture;
(7) To protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures;
(8) To develop the scientific temper, humanism and the spirit of inquiry and reform;
(9) To safeguard public property and to abjure violence;
(10) To strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievement;
(11) *Who is a parent or guardian to provide opportunities for education to his child or, as the
case may be, ward between the age of 6 and 14 years.
* [Inserted by the Constitution (86th Amendment) Act, 2002]
Since the duties are imposed upon the citizens and not upon the States, legislation is necessary
for their implementation. Fundamental duties can’t be enforced by writs. [Surya Narain v. Union
of India, AIR 1982 Raj 1]
The Supreme Court in AIIMS Students Union v. AIIMS (2002) SCC 428 has reiterated that
though the fundamental duties are not enforceable by the courts, they provide a valuable guide
and aid to the interpretation of Constitutional and legal issues.
Powers of President & Governors
Question 43] The executive power of the Union shall be vested in the President.
Comment.
Ans.: Article 53 the Constitution lays down that the “executive power of the Union shall be
vested in the President and shall be exercised by him either directly or through officers
subordinate to him in accordance with this Constitution.”
The President of India shall, thus, be the head of the ‘executive power’ of the Union. The
executive power may be defined as the power of “carrying on the business of Government” or
“the administration of the affairs of the State” excepting functions which are vested in any other

authority by the Constitution. The various powers that are included within the comprehensive
expression ‘executive power’ in a modern state have been classified under various heads as
follows:
(1) Administrative power i.e. the execution of the laws and the administration of the
departments of Government.
(2) Military power i.e. the command of the armed forces and the conduct of war.
(3) Legislative power i.e. the summoning, prorogation, etc. of the legislature.
(4) Judicial power i.e. granting of pardons, reprieves etc. to persons convicted of crime.
Question 44] Ordinance making power of the President of India under Article 123 of the
Constitution of India. CS (Inter) – June 1994 (10 Marks)
Describe the power of the president of India to promulgate ordinances.
Write short notes on: Ordinance making power of the President of India
Ans.: Power of President to promulgate Ordinances during recess of Parliament [Article 123]: The
President shall have the power to legislate by ordinances at a time when it is not possible to
have parliamentary enactment on the subject immediately. This power can be used by the
President to meet a sudden situation arising in the country when parliament is not in session
and which it cannot deal with under the ordinary law.
Ordinance making power of the President has following peculiarities:
 An Ordinance promulgated under Article 123 shall have the same force and effect as an Act
of Parliament.
 Such ordinance shall be laid before both Houses of Parliament.
 Such ordinance shall cease to operate at the expiration of 6 weeks from the reassembly of
Parliament or if resolutions disapproving it are passed by both Houses, upon the passing of
the second of those resolutions.
 When two houses of parliament assemble on two different dates, the period of 6 weeks is to
be reckoned from the latter of two dates.
 Such ordinance may be withdrawn by the President at any time.
 Such ordinance making power has to be exercised by the President on the advice of Council
of Ministers.
Question 45] Examining the provisions of the Constitution of India, answer the
following:
(i) With whom executive power of State is vested?
(ii) Who appoints the Governor of the States?
(iii) Can Governor be appointed for period of more than 5 years?
(iv) Can non citizen be appointed as Governor?
Ans.: Executive power of State [Article 154]: The executive power of the State shall be vested in
the Governor and shall be exercised by him either directly or through officers subordinate to
him in accordance with this Constitution.
Appointment of Governor [Article 155]: The Governor of a State shall be appointed by the
President by warrant under his hand and seal.
Normally there shall be a Governor for each State but it may be possible to appoint the same
person as Governor for two or more states.
Term of office of Governor [Article 156]:
(1) The Governor shall hold office during the pleasure of the President.
(2) The Governor may, by writing under his hand addressed to the President, resign his office.
(3) A Governor shall hold office for a term of 5 years from the date on which he enters upon his
office. However, at the expiration of his term he can continue to hold the office until his
successor enters upon his office.
Qualifications for appointment as Governor [Article 157]: No person shall be eligible for
appointment as Governor unless he is a citizen of India and has completed the age of 35 years.

Question 46] When a Governor cannot issue an ordinance without instructions from the
president? CS (Inter) – Dec 1997 (8 Marks)
Describe the power of the Governor to promulgate ordinance during recess of legislature.
Ans.: Power of Governor to promulgate ordinances during recess of Legislature [Article 213]:
The Governor’s power to make Ordinances given in Article 213 is similar to the Ordinance
making power of the President and have the force of an Act of the State Legislature.
Governor can make Ordinance only when the State Legislature or either of the two Houses
(where it is bicameral) is not in session. He must be satisfied that circumstances exist which
render it necessary to take immediate action.
Ordinance making power of the President has following peculiarities:
 An Ordinance promulgated under this article shall have the same force and effect as an Act
of the Legislature of the State assented to by the Governor.
 The Ordinance must be laid before the state legislature (when it reassembles) and shall
automatically cease to have effect at the expiration of 6 weeks from the date of the re-
assembly unless disapproved earlier by that legislature.
 While exercising this power Governor must act with the aid and advise of the Council of
Ministers.
But in following cases the Governor cannot promulgate any Ordinance without instructions
from the President, if –
(a) A Bill containing the same provisions would under this Constitution have required the
previous sanction of the President for the introduction thereof into the Legislature or
(b) He would have deemed it necessary to reserve a Bill containing the same provisions for the
consideration of the President or
(c) An Act of the Legislature of the State containing the same provisions would under this
Constitution have been invalid unless, having been reserved for the consideration of the
President, it had received the assent of the President.
Legislative power of Union & States
Question 47] Discuss the legislative powers of the Parliament and State Assemblies with
respect to different subjects of legislation as provided under the Constitution of India.
Ans.: Analysis of the provisions of the Constitution of India reveals that the entire legislative
sphere has been divided on the basis of:
(a) Territory with respect to which the laws are to be made, and
(b) Subject matter on which laws are to be made.
Subject-matter of laws made by Parliament and by the Legislatures of States [Article 246]:
(1) List-I [Union List]: Parliament has exclusive power to make laws for the matters enumerated
in List-I of the 7th Schedule. As only union Government has power to make laws on subjects
enumerated in List I it is also known as Unit List.
The State Legislature has no power to make laws on these subjects. If by any stretch of
imagination or because of some mistake which is not expected if the same subject is
included in the Union List & the State List, in such a situation that subject shall be read
only in Union List and not in State List. By this principle the superiority of the Union List
over the other two has been recognized.
Those subjects which are of national interest or importance, or which need national control
and uniformity of policy throughout the country have been included in the Union List.
(2) List-II [State List]: The Legislature of any State has exclusive power to make laws for the
matters enumerated in List II in the 7th Schedule. List II is also known as State List as State

Governments have been given power to make laws on various subjects enumerated in this
list. However in few exceptional circumstances Parliament can makes laws on state list also.
The subjects which are of local or regional interest and on which local control is more
expedient, have been assigned to the State List.
(3) List-III [Concurrent List]: With respect to the subjects enumerated in the Concurrent List,
i.e., List III, Parliament and the State Legislatures both have powers to make laws. Thus,
both of them can make a law even with respect to the same subject and both the laws shall
be valid in so far as they are not repugnant to each other.
When there is a conflict between such laws then the law made by Parliament shall prevail
over the law made by the State Legislature and the latter will be valid only to the extent to
which it is not repugnant to the former.
Exception: Any subject enumerated in the Concurrent List and State also wants to make a
law on the same subject then a State can do so provided that law has been reserved for the
consideration of the President of India and has received his assent. Such law shall prevail
in that State over the law of Parliament if there is any conflict between the two. However,
Parliament can get rid of such law at any time by passing a new law and can modify by
amending or repealing the law of the State.
Subjects which ordinarily are of local interest yet need uniformity on national level or at
least with respect to some parts of the country have been allotted to the Concurrent List.
(4) Residuary Power: With respect to all those matters which are not included in any of the
three lists, Parliament has the exclusive power to make laws. It is called the residuary
legislative power of Parliament. The Supreme Court has held that the power to impose
wealth-tax on the total wealth of a person including his agricultural land belongs to
Parliament in its residuary jurisdiction. [Union of India vs. H.S. Dhillion, AIR 1972 SC 1061]
Question 48] Are the following laws valid? Give reason in support of your answer:
(1) A law of parliament on a subject matter enumerated in the concurrent list on which
the law of parliament already exists.
(2) A State law on a subject enumerated in the concurrent lists on which the law of
parliament already exists. CS (Inter) – Dec 1995 (5 Marks)
Ans.:
(1) With respect to the subjects enumerated in the Concurrent List i.e. List III, Parliament and
the State Legislatures both have powers to make laws. Thus, both of them can make a law
even with respect to the same subject and both the laws shall be valid in so far as they are
not repugnant to each other.
When there is a conflict between such laws then the law made by Parliament shall prevail
over the law made by the State Legislature and the latter will be valid only to the extent to
which it is not repugnant to the former.
(2) If there is already a law of Parliament on any subject enumerated in the Concurrent List
and a State also wants to make a law on the same subject then State can do so provided
that law has been reserved for the consideration of the President of India and has received
his assent.
Such law shall prevail in that State over the law of Parliament and if there is any conflict
between the two. However, Parliament can get rid of such law at any time by passing a new
law and can modify by amending or repealing the law of the State.
Question 49] Explain the power of the Parliament to make laws on State list.
When and under what circumstances can the Parliament legislate on matters
enumerated in the State List? Discuss. CS (Executive) – June 2009 (8 Marks)
Discuss briefly whether the law made by the Parliament with respect to a subject
included in the State List and made applicable to the State is valid.

Ans.: State legislature have been given exclusive powers to make laws with respect to subjects
enumerated in the List II i.e. State List. But the Constitution of India makes a few exceptional
circumstances when parliament can makes laws on state list also. The exceptional
circumstances are as follows.
(a) National interest [Article 249]: Parliament can make a law with respect to a matter
enumerated in the State list if Rajya Sabha declares by a resolution supported by 2/3rd of its
members present and voting that is necessary or expedient in the national interest that
parliament should make a law on that matter.
Such resolution shall remain in force for a period not exceeding 1 year. However, a fresh
resolution can be passed at the end of 1 year and that way the law of parliament can be
continued to remain in force for any number of years. The law passed by Parliament under
the provisions ceases to have effect automatically after 6 months of the expiry of the
resolution.
(b) Proclamation of Emergency [Article 250]: While proclamation of emergency is in operation,
Parliament shall have the power to make laws for whole or any part of the territory of India
on any matter in the State. Such a law will have effect only up to expiry of 6 months after
the proclamation ceases to operate.
(c) On request of two or more States [Article 252]: If two or more States are desirous that on any
particular item included in the State List there should be a common legislation then they
can make a request to a Parliament to make a law on such subject. The law so made may
be adopted by other States also by passing resolutions in their legislatures. To take an
example, Parliament passed the Prize Competitions Act, 1955 under these provisions.
(d) To enforce international agreements [Article 253]: Constitution authorizes Parliament to
make law on any subject included in any list to implement:
 Any treaty, agreement or convention with any other country or countries, or
 Any decision made at any international conference, association or other body.
(e) Breakdown of Constitutional Machinery in a State [Articles 356 & 357]: Parliament can make
law with respect to all State matters as regards a State in which there is a breakdown of
constitutional machinery and is under presidential rule.
Question 50] The action of the President under Article 356 is a constitutional function
and the same is subject to judicial review. Explain.
Ans.: Article 356 provides that in case the Governor of a State reports to the President, or he is
otherwise satisfied that the Government of a State cannot be carried on according to the
provisions of the Constitution, then 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 in or exercisable by the Governor or any body or
authority in the State, and declare that the powers of Legislature of that State shall vest in
Parliament.
Parliament can make laws with respect to all State matters as regards the particular State in
which there is a breakdown of constitutional machinery and is under the President’s rule.
Further it is not necessary that the legislature of the concerned State should be suspended or
dissolved before it is brought under the President’s rule, but practically it so happens. It is
important to note that the President cannot, however, assume to himself any of the powers
vested in or exercisable by a High Court or to suspend, either in whole or in part, the operation
of any provision of the Constitution relating to the High Courts.
Under the Constitution of India, the power is really that of the Union Council of Ministers with
the Prime Minister as its head. The satisfaction of the President contemplated by this Article is
subjective in nature. The power conferred by Article 356 upon the President is a conditional
power. It is not an absolute power. The existence of material, which may comprise of, or
include, the report of the Governor is a pre-condition.
The satisfaction must be formed on relevant materials. Though the power of dissolving the
Legislative Assembly can be said to be implicit in Article 356(1), it must be held, having regard
to the overall Constitutional scheme that the President shall exercise it only after the

proclamation is approved by both the Houses of Parliament and not before. Until such
approval, the President can only suspend the Legislative Assembly by suspending the
provisions of the Constitution relating to the Legislative Assembly.
Clause 2 of Article 356 provides that any such proclamation may be revoked or varied by a
subsequent proclamation. It may, however, be noted that the presidential proclamation is valid
only for six months at a time and that also if approved by both the Houses of Parliament within
a period of two months from the date of proclamation. A fresh proclamation can be issued to
extend the life of the existing one for a further period of six months but in no case such
proclamation can remain in force beyond a consecutive period of three years. The Constitution
(Fourty-Second) Amendment Act, 1976 inserted a new clause (2) in Article 357. It provides that
any law made in exercise of the Power of the Legislature of the State by Parliament or the
President or other Authority referred to in Sub-clause (a) of Clause (1) which Parliament or the
President or such other Authority would not, but for the issue of a proclamation under Article
356 have been competent to make shall, after the proclamation has ceased to operate, continue
in force until altered, or repealed or amended by a competent Legislature or other authority.
This means that the laws made during the subsistence of the proclamation shall continue to be
in force unless and until they are altered or repealed by the State Legislature. So an express
negative act is required in order to put an end to the operation of the laws made in respect of
that State by the Union.
The action of the President under Article 356 is a constitutional function and the same is
subject to judicial review. The Supreme Court or High Court can strike down the proclamation
if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. If the Court
strikes down the proclamation, it has the power to restore the dismissed government to office
and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept
under suspension. (see S.R. Bommai's case).
Interpretation of legislative lists
Question 51] Discuss in brief the rule of ‘Plenary Powers’ for interpretation of legislative
list of 7th Schedule of Constitution.
Ans.: It is an elementary cardinal rule of interpretation that the words use in the Constitution
which confers legislative power must receive the most liberal construction and if they are words
of wide amplitude, they must be interpreted so as to give effect to that amplitude. A general
word used in an entry - must be construed to extend to all ancillary or subsidiary matter which
can fairly and reasonably be held to be included in it. [Jagannath Baksh Singh v. State of U.P.,
AIR 1962 SC 1563]
Thus, a legislature to which a power is granted over a particular subject may make law on any
aspect or on all aspects of it. It can make a retrospective law or a prospective law and it can
also make law on all matters ancillary to that matter. For example, if power to collect taxes is
granted to a legislature, the power not to collect taxes or the power to remit taxes shall be
presumed to be included within the power to collect taxes.
Question 52] Discuss in brief the rule of ‘Harmonious Construction’ for interpretation of
legislative list of 7th Schedule of Constitution
Ans.: As per the rule of harmonious construction – when there is a conflict between two or more
provisions of the law they should be followed in such way that maximum benefit can be
obtained and no rule need to be violated in the process of following other one. It is a sound rule
of interpretation that Courts must try to avoid a conflict between the provisions of Statute.
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. It is the duty of the Courts to avoid conflict between two provisions, and whenever it is
possible to do so to construe provisions which appear to conflict so that they harmonize.

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”.
Different entries in the different lists of the 7th Schedule are to be interpreted in such a way
that a conflict between them is avoided and each of them is given effect. It must be accepted
that the Constitution does not want to create conflict and make any entry nugatory. Therefore,
when there appears a conflict between two entries in the two different lists the two entries
should be so interpreted, that each of them is given effect and, for that purpose the scope and
meaning of one may be restricted so as to give meaning to the other also.
Question 53] Write a short note on: Doctrine of pith & substance
Ans.: The rule of pith & 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.
Entry 6 of List II which reads “Public Health and Sanitation”. Rajasthan Legislator passed a law
restricting the use of sound amplifiers. The law was challenged on the ground that it dealt with a matter
which fell in Entry 81 of List I 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.
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)
Question 54] Discuss in brief the rule of colourable legislation.

Ans.: The doctrine of colourable legislation is based upon the maximum that “you cannot do
indirectly what you cannot do directly”. If a legislature has no competence to pass a law on
subject, it cannot pass a law on that subject by merely purporting to within the limits of its
power. Such legislation is called colourable legislation. It applies to delegated legislation and
subordinate legislation also.
Example: Railway is the subject mentioned in the union list. Only the parliament has the power
to make a law on railways. If any State Legislature makes any law pertaining to railway, it
becomes invalid. It is called colourable legislation.
The Bihar Land Reforms Act, 1950 provided that the unpaid rents by the tenants shall vest in the State
and one half of them shall be paid back by the State to the landlord or zamindar as compensation for
acquisition of unpaid rents.
According to the provision in the State List under which the above law was passed, no property should be
acquired without payment of compensation.
The question was whether the taking of the whole unpaid rents and then returning half of them back to
them who were entitled to claim is “a law which provides for compensation”. The Supreme Court found
that this was a colourable exercise of power of acquisition by the State legislature, because “the taking
of the whole unpaid rents and returning half means nothing but the taking half of the unpaid rents
without any compensation.” [Kameshwar Singh v. State of Bihar, AIR 1952 SC 252]
Freedom of trade, commerce & intercourse
Question 55] Discuss the provisions of the Constitution of India relating to freedom of
inter-State trade, commerce and intercourse. CS (Inter) – Dec 1993 (10 Marks)
Critically examine the provisions of the Constitution of India relating to freedom of

trade, commerce and intercourse. CS (Inter) – Dec 1999 (8 Marks)

Mention the provisions relating to freedom of trade, commerce and intercourse in the
Constitution of India. CS (Executive) – June 2005 (6 Marks)
Ans.: The provisions relating to intercourse, trade and commerce are contained in Part XIII:
Article 301 to 305.
Freedom of trade, commerce and intercourse [Article 301]: Trade, commence and intercourse
throughout the territory of India shall be free.
The word free in Article 301 cannot mean an absolute freedom such measures as traffic
regulations, licensing of vehicles etc. are not open to challenge. The Supreme Court held that
gambling is not trade. Similarly, price competition beings of gambling in nature, cannot be
regarded as trade or commerce and as such, is not protected under this Article. [State of
Bombay vs. RMDC, AIR 1957 SC 699]
The Supreme Court in Atiabari Tea Co. v. State of Assam, AIR 1951 SC 232 declared that only
those laws which “directly and immediately” restrict or impede the freedom of trade and
commerce are covered by Article 301.
Power of Parliament to impose restrictions [Article 302]: Parliament may by law impose such
restrictions on the freedom of trade, commerce or intercourse between one state and another or
within any party of territory of India as may be required in the public interest.
Restrictions on the legislative powers [Article 303]: It prevents to Parliament/State Legislature to
make any law giving, any preference to one State over another, or authorizing any
discrimination between one State and another.
Restrictions on trade, commerce and intercourse among States [Article 304]: The legislature of
State may impose a tax on goods imported from other States or union territory to which similar
goods manufactured or produced in that State are subject. However the State should not
discriminate between goods imported from one State with goods of that State. State can also
impose reasonable restrictions on the freedom of trade, commerce or intercourse with or within
that State as may be required in the public interest.
Saving of existing laws and laws providing for State monopolies [Article 305]: The law which
creates State monopoly in any trade is saved from the attack under Article 301.
Article 306: Deleted
Appointment of authority [Article 307]: Parliament may by law appoint such authority as it
considers appropriate for carrying out the purposes of Articles 301 to 304 and confer such
powers and such duties as it thinks necessary.
Constitutional Remedies
Question 56] Write a short note on: Jurisdiction of the Supreme Court
Ans.: The Supreme Court is the highest Court in the country both for matters of ordinary law
and for interpreting the Constitution. Supreme Court is an institution created by the
Constitution.
Before independence, the Privy Council was the highest appellate authority for British India, for
matters arising under ordinary law. But appeals from High Courts in constitutional matters lay
to the Federal Court (created under the Government of India Act, 1935) and then to the Privy
Council. The Supreme Court of India, in this sense, has inherited the jurisdiction of both the
Privy Council and the Federal Court. However, the jurisdiction of the Supreme Court under the
present Constitution is much more extensive than that of its two predecessors mentioned
above.
The Supreme Court, entertains appeals (in civil and criminal and other cases) from High Courts
and certain Tribunals. It has also writ jurisdiction for enforcing Fundamental Rights. It can
advise the President on a reference made by the President on questions of fact and law. It has a
variety of other special jurisdictions.

Question 57] Write a short note on: Jurisdiction of High Courts
Ans.: The High Courts that function under the Constitution were not created for the first time
by the Constitution. Some High Courts existed before the Constitution, although some new
High Courts have been created after 1950. The High Courts in British ruling were established
under the Indian High Courts Act, 1861 (an Act of the UK Parliament). The remaining High
Courts were established or continued under the Constitution or under special Acts. High
Courts for each State have appellate, civil and criminal jurisdiction over lower Courts. High
Courts have writ jurisdiction to enforce fundamental rights and for certain other purposes.
Some High Courts Bombay, Calcutta and Delhi, have ordinary original civil jurisdiction (i.e.
jurisdiction to try regular civil suits) for their respective cities. High Courts can also hear
references made by the Income Tax Appellate Tribunal under the Income Tax Act, 1961 and
other tribunals.
Question 58] Write short notes on: Right to constitutional remedies

Ans.: Under the Constitution by virtue of Article 226, every High Court has the power to issue
directions or orders or writs including writs in the nature of Habeas corpus, Mandamus,
Prohibition, Certiorari and Quo-warranto for the enforcement of fundamental rights or for any
other purpose. The power is exercisable by each High Court throughout the territory in relation
to which it exercises jurisdiction.
The Supreme Court could be moved by appropriate proceedings for the issue of directions or
orders or writs for the enforcement of fundamental rights guaranteed. Article 32 itself being a
fundamental right, the Constitutional remedy of writ is available to anyone whose fundamental
rights are infringed by State action.
Question 59] What is writ of habeas corpus? Which courts can issue these writs? Against
whom can it be issued? When it can be issued. CS (Inter) – June 2002 (8 Marks)
Write short notes on: Writ of Habeas Corpus
What is writ of habeas corpus? When it can be issued.
Ans.: Habeas corpus = to have a body

A writ of Habeas Corpus is in the nature of an order by Court calling upon the person who has
detained another to produce the latter before the Court in order to let the Court know on what
ground he has been confined and set him free if there is not legal justification for the
imprisonment.
Who can make an application: An application of habeas corpus can be made by any person on
behalf of the detained person as well as the detained person himself. If any person is arrested
or kept under unauthorized detention, the friends or relative of that person can approach the
Supreme Court under Article 32 or to High Court under Article 226.
The disobedience to this writ is met with by punishment for contempt of Court under the
Contempt of Courts Act.
Question 60] Write short notes on: Writ of Mandamus CS (Inter) – June 1994 (10 Marks)
Explain the writ of mandamus as an extra-ordinary constitutional remedy.
On what grounds and against whom the writ of mandamus can be issued?
Ans.: Mandamus = the order or command

The writ of mandamus is a command issued by Supreme Court or High Court, to any person,
corporation, inferior court, requiring him or those to do some particular thing therein specified

which pertains to his or their office and is in the nature of public duty. Its purpose is to remove
defects in justice.
Following are some important points relating to writ of mandamus:
(1) Writ of mandamus can be issued against the public authority only. That public authority
must be bound to do that public duty. There must be statutory duty on the public authority.
(2) The petitioner must have a legal right to compel the performance of that legal duty.
(3) The writ of mandamus cannot be issued against a private person.
(4) The writ of mandamus cannot be issued in the matter of discretionary powers of public
authority.
Example: The writ of mandamus cannot be issued against State government to appoint a
Commission of inquiry on any issue, because appointing Commission of inquiry is discretionary
power of government.
Question 61] Write short notes on: Writ of Prohibition
Ans.: The Writ of Prohibition is based on the principle: “Prevention is better than cure”
Writ of Prohibition can be issued by the Superior Court to an inferior Court forbidding it form
continuing with proceeding or a suit on the ground that the proceeding or case is without or
excess of jurisdiction contrary to the laws in force.
In other words, a writ of prohibition is issued to an Inferior Court preventing the latter from
usurping jurisdiction which is not legally vested in it. When a tribunal acts without or in excess
of jurisdiction, or in violation of rules or law, a writ of prohibition can be asked for. It is
generally issued before the trial of the case.
Question 62] Write short notes on: Writ of Certiorari

On what grounds and against whom can the writ of certiorari be issued?
Ans.: Certiorari = to be certified

A Writ of Certiorari can be issued by Supreme Court or High Court, to the inferior Court or any
authority, whenever Court or authority does any acts, viz. excess or abuse of jurisdiction,
violation of principal of natural justice, violation of fundamental rights conferred to the citizens
under Part-III.
When can the Writ of certiorari be issued? The Writ of Certiorari can be issued on the following
circumstances:
 Where the quasi judicial authority acted under an invalid law.
 Where the Court or Authority acted without jurisdiction.
 Where there is an error of law apparent on the face of the record.
 Where the inferior Court or quasi authority acted against the principal of natural justice.
 The Supreme Court can issue a writ of Certiorari to any High Court correcting an erroneous
decision.
Writ of Certiorari & Writ of Prohibition have common features. However, there is one fundamental
distinction between them. Writ of Prohibition can be issued before completion of proceedings,
whereas Writ of Certiorari can be only be issued after the completion of proceedings.
Question 63] Write short notes: Writ of Quo-warranto CS (Inter) – Dec 1997 (4 Marks)
When can a writ of quo warrant to be issued? CS (Inter) – June 2006 (4 Marks)
Ans.: Quo-warranto = What is your authority?

The writ of Quo-warranto is issued to call upon the holder of a public office to show to the
Court that under what authority is be holding the office in question. If it is found on
investigation that he is not entitled to the office, the court may restrain him from acting in the

office and also declare the office to be vacant. All High Courts & Supreme Courts can issue this
writ.
Following are some important points relating to writ of Quo Warranto:
 Writ of Quo Warranto can be issued if the office held is public office.
 Public office must be an independent and substantive character.
 Public office must be statutory or constitutional body.
 Writ may be issued in respect of office of Prime Minister, Chief Minister, Judge of High
Court, President of Zilla Parishad, Speaker of the Parliament or State Legislature, University
officials, etc.
 Writ cannot be issued against a private person or where alternative remedy is available to
person.
Question 64] What do you understand by a ‘Writ’? When and why whom can writs be
issued? CS (Inter) – June 1995 (12 Marks)
Examine the writ jurisdiction of the Supreme Court and the High Court
“A declaration of fundamental rights is meaningless unless there is an effective judicial
remedy for their enforcement.” Comment on this statement explaining the judicial
remedies which the Constitution of India provides.
Differentiate between the powers of the Supreme Court under Article 32 and powers of
High Court under Article 226 of the Constitution of India.
Ans.: Writ means written order or direction of a High Court or Supreme Court to person,
authority, Government office, inferior Court against whom a complaint is received. According to
the Constitution the Supreme Court and various High Courts in different States can issue writs
for the enforcement of fundamental rights.
The five writs are available i.e. Habeas Corpus, Mandamus, Prohibition, Quo-warranto &
Certiorari.
Supreme Court can issue writs under Article 32 while the High Court under Article 226 of the
The power of High Court to issue writs is wider than that of Supreme Court. The Supreme
Court can issue writs only for the enforcement of fundamental rights, where as High Court can
issue writs for any other purpose also.
Res Judicata: Petitions to the Supreme Court and High Court under Article 32 & 226 are
subject to the rule of res judicata. Therefore, if a question has been decided by a Court between
two parties, the same question cannot be reopened between the same parties. However, writ of
habeas corpus is an exception to the rule of Res-Judicata.
Question 65] Distinction between: Writ of Prohibition & Writ of Mandamus
Ans.: Following are the main points of distinction between writ of prohibition & mandamus:
Points Writ of Prohibition Writ of Mandamus
Meaning Writ of Prohibition can be issued by the The writ of Mandamus is a command issued
Superior Court to an inferior Court by Supreme Court or High Court, to any
forbidding it form continuing with proceeding person, corporation, inferior court, requiring
or a suit on the ground that the proceeding him or those to do some particular thing
or case is without or excess of jurisdiction therein specified which pertains to his or
contrary to the laws in force. their office and is in the nature of public
duty. Its purpose is to remove defects in
justice.
Nature Writ of prohibition prevents a judicial body Writ of mandamus compels a judicial body to

from exercising its power in a manner perform a duty which the law clearly and
unauthorized by law. positively requires.
Question 66] In a case, Hamid was terminated from the police service. Hamid filed a writ
petition against termination order on the ground that a reasonable opportunity of being
heard was not given to him by the government. The writ petition was dismissed by the
Court as the government proved that reasonable opportunity of being heard had been
given to the petitioner. Afterwards, Hamid filed another writ petition on the ground that
as he was appointed by the Director General of Police, termination by the order of
Deputy Inspector General of Police was in violation of Article 311(1) of the Constitution
of India. Decide the validity of the second writ petition.
CS (Inter) – June 2006 (6 Marks),
Ans.: According to principle of res-judicata, once a matter is finally decided by a competent

Court, no party can be permitted to reopen it in a subsequent litigation.
In this case, the Court has dismissed the petition as the government proved that reasonable
opportunity of being heard had been given to the petitioner. Thus, matter is heard and finally
decided by Court hence it will be covered by principle of res-judicata and subsequent writ will
be dismissed.
Thus, doctrine of res judicata prevents to take matter again and again for same case on the
basis of different reasons or grounds. Grounds mentioned in second petition that termination
by the order of Deputy Inspector General of Police was in violation of Article 311(1) of the
Constitution of India could have been stated in first petition also along with the ground that he
had not been given opportunity of being heard. But Hamid did not do so and hence his
subsequent petition will be barred by principle of res judicata.
Delegated Legislation
Question 67] Legislation is either supreme or subordinate. Comment.

What is ‘delegated legislation’? What are the limits under which powers of delegated
legislation may be exercised? CS (Inter) – Dec 2004 (6 Marks), June 2008 (4 Marks)
Ans.: Delegated or subordinate legislation means rules of law made under the authority of an
Act of Parliament. Although law making is the function of legislature, it may, by a statute,
delegate its power to other bodies or persons. The statute which delegates such power is known
as Enabling Act. By Enabling Act the legislature, lays down be broad guidelines and detailed
rules are enacted by the delegated authority. Delegated legislation is permitted by the Indian
Constitution. It exists in form of bye rules, regulations, orders, bye laws etc.
Legislation is either supreme or subordinates. The supreme legislation is that which proceeds
from supreme or sovereign power in the State and therefore capable of being repealed, annulled
or controlled by legislative authority. Subordinate legislation is that which proceeds from any
authority other than the sovereign power, and is, therefore, dependent for its continued
existence and validity on some sovereign or supreme authority.
Classification of Subordinate Legislation:
(1) Executive: Though the main function of the executive is to enforce laws, but in certain
cases, the power of making rules is delegated to the various departments of the government,
which is called subordinate delegated legislation. Thus, the rules framed by the Government
under the various Municipal Acts fall under this category.
(2) Judicial: It means rules of procedure made by superior courts for their own guidance under
authority delegated to them for the purpose. In other words the superior courts have the
power of making rules for the regulation of their own procedures. The High Courts are
authorized to frame rules for regulating the procedure to be followed in Courts. Some such

rules have been framed by the High Court under the Guardians of Wards Act, Insolvency
Act and Succession Act etc.
(3) Municipal: Sometimes municipal authorities are provided with the power of establishing
special laws for the districts under their control. They are allowed to make bye-laws for
limited purposes within their areas. These are legislation of local bodies such as municipal
or corporations.
(4) Autonomous: Under this head fall the regulations which autonomous bodies such as
Universities make in respect of matters which concern themselves.
(5) Colonial Legislation: The law made by colonies under the control of some other nation,
which are subject to supreme legislation of the country under whose control they are.
Miscellaneous
Question 68] What is ‘bill’? How you will classify various types of bills?
Ans.: A Bill is a draft statute which becomes law after it is passed by both the Houses of
Parliament and assented to by the President. All legislative proposals are brought before
Parliament in the forms of Bills.
Types of Bills:
(1) Bills may be broadly classified into ‘Government Bills’ and ‘Private Members Bills’
depending upon their initiation in the House by a Minister or a Private Member.
(2) Content wise, Bills are further classified into:
(a) Original Bill: It embodies new proposals, ideas or policies.
(b) Amending Bill: It seeks to modify, amend or revise existing Acts.
(c) Consolidating Bill: It seeks to consolidate existing law on a particular subject.
(d) Expiring Laws (Continuance) Bill: It seek to continue Act which, otherwise, would expire
on a specified date.
(e) Repealing Bill: It repeals existing statue.
(f) Amending Bill: It amends the existing statue.
(g) Validating Bill: It validates certain actions.
(h) Ordinances replacing Bill: It is introduced to replace the Ordinance by new law.
(i) Money Bills: Separately discussed.
(j) Financial Bills: Separately discussed.
(k) Constitution Amendment Bill: It is introduced to make amendments in Constitution.
(3) However, procedurally, the Bills are classified as follows:
 Ordinary Bills
 Money Bills and Financial Bills
 Ordinance Replacing Bills
 Constitution Amendment Bills.
Question 69] Write a short note on: Money Bills
Ans.: A money bill is a bill which contains provisions of imposition or abolition of taxes or
charging expenditure out of Consolidated Fund of India. A Money Bill can only be introduced in
Lok Sabha and that too with prior permission of President. A money bill after being passed in
Lok Sabha is sent to Rajya Sabha. Rajya Sabha can’t amend the money bill, it can only suggest
changes. It is to the discretion of Lok Sabha whether to accept any or all the suggestion or
reject all. Rajya Sabha has to send Money Bill back to Lok Sabha within 14 days, otherwise it is
deemed to be passed by both the houses and sent to President for assent. Speaker of Lok
Sabha has special power that it is his decision when to consider a bill as Money Bill.
Question 70] Write a short note on: Financial Bills
Ans.: Financial Bills can be classified as Financial Bills Categories A and B.

(1) Category-A Bill: Such Bill contain provisions dealing with any of the matters specified in
Article 110(1) (a) to (f) and other matters. It can only be introduced in the Lok Sabha on the
recommendation of the President. However, once it has been passed by the Lok Sabha, it is
like an ordinary Bill and there is no restriction on the powers of the Rajya Sabha on such
Bills.
(2) Category-B Bill: Such Bill involves expenditure from the Consolidated Fund of India. It can
be introduced in either House of Parliament.
Question 71] Write a short note on: Types of Constitution Amendment Bills
Ans.: As per the procedure laid down in the Constitution, Constitution Amendment Bills can be
of three types viz.,
(a) Bill requiring simple majority for their passage in each House.
(b) Bill requiring special majority for their passage in each House i.e., a majority of the total
membership of a House and by a majority of not less than two-thirds of the members of
that House present and voting. [Article 368]
(c) Bill requiring special majority for their passage and ratification by Legislatures of not less
than one half of the States by resolutions to that effect passed by those Legislatures
[Proviso to Article 368(2)].
A Constitution Amendment Bill under Article 368 can be introduced in either House of
Parliament and has to be passed by each House by special majority.
Question 72] Parliamentary Committees are vibrant link between the Parliament, the
Executive and the general public. Explain.
Ans.: The work done by the Parliament in modern times is not only varied in nature, but
considerable in volume.
The work done by the Parliament in modern times is considerable in volume and varied in
nature. The time at its disposal is limited (Remember that our Parliament normally meets only for
3 sessions, that too only for around 100 days each year). It cannot, therefore, give close
consideration to the details of all the legislative and other matters that come up before it. Hence
Parliamentary Committees are necessary for detailed study on specific matters.
Parliamentary Committees play a vital role in the Parliamentary System. They are a vibrant link
between the Parliament, the Executive and the general public.
The need for Committees arises out of two factors, the first one being the need for vigilance on
the part of the Legislature over the actions of the Executive, while the second one is that the
modern Legislature these days is over-burdened with heavy volume of work with limited time at
its disposal. It thus becomes impossible that every matter should be thoroughly and
systematically scrutinized and considered on the floor of the House. If the work is to be done
with reasonable care, naturally some Parliamentary responsibility has to be entrusted to an
agency in which the whole House has confidence. Entrusting certain functions of the House to
the Committees has, therefore, become a normal practice. This has become all the more
necessary as a Committee provides the expertise on a matter which is referred to it. In a
Committee, the matter is deliberated at length, views are expressed freely, the matter is
considered in depth, in a business-like manner and in a calmer atmosphere. In most of the
Committees, public is directly or indirectly associated when memoranda containing suggestions
are received, on-the-spot studies are conducted and oral evidence is taken which helps the
Committees in arriving at the conclusions.
The Committees aid and assist the Legislature in discharging its duties and regulating its
functions effectively, expeditiously and efficiently. Through Committees, Parliament exercises
its control and influence over administration. Parliamentary Committees have a salutary effect
on the Executive. The Committees are not meant to weaken the administration, instead they
prevent misuse of power exercisable by the Executive.
It may, however, be remembered that Parliamentary control in the context of the functioning of
the Committees may mean influence, not direct control; advice, not command; criticism, not

obstruction; scrutiny, not initiative; and accountability, not prior approval. This, in brief, is the
rationale of the Committee System.
The Committees have functioned in a non-partisan manner and their deliberations and
conclusions have been objective. This, in a large measure, accounts for the respect in which the
recommendations of the Parliamentary Committees are held.
Question 73] Write a short note on: Ad hoc and Standing Committees
Ans.: Parliamentary Committees are of two kinds:

 Ad hoc Committees
 Standing Committees.
Ad hoc Committees: Ad hoc Committees are appointed for a specific purpose and they cease to
exist when they finish the task assigned to them and submit a report.
Examples of ad hoc committees:
1. Committees on Bills (Select and Joint).
2. Railway Convention Committee.
3. Committees on the Draft Five Year Plans.
4. Hindi Equivalents Committee.
Standing Committees: Standing Committees are permanent committees. Each House of
Parliament has Standing Committees. Examples of standing committees:
1. Business Advisory Committee.
2. Committee on Petitions.
3. Committee of Privileges.
4. Rules Committee.
Objective Questions
State, with reasons in brief, whether the following statements are correct or incorrect:
(1) Article 53 of the Constitution of India lays down that the executive powers of the Union
shall be vested in the President of India.
(2) The Constitution of India makes a few exceptions in which the Parliament is authorized to
make the laws even on the subjects included in the State List.
(3) Article 174 of the Constitution of India empowers the Governor of the State to dissolve the
State Legislature.
(4) A writ of certiorari is issued to prevent a lower Court from usurping jurisdiction which is
not legally vested in it.
(5) The provisions relating to ‘fundamental rights’ given in the Constitution of India are
subject to amendment.
(6) ‘Traffic’ in human beings means to deal in men and women like goods, such as to sell or let
out or otherwise dispose them off.
(7) The laws passed by Parliament in the national interest cease to have effect automatically
after nine months.
(8) As per Article 14, equality before the law means that amongst equals the law should be
unequal and among unequal same laws shall be applicable.
(9) The right to speech and expression includes right to make a good or bad speech.
(10) The fundamental duties are imposed upon the States and not upon the citizens.
(11) With respect to the subjects enumerated in the Concurrent List, only the Parliament and
not the State Legislature has powers to make laws.
(12) During emergency, the Parliament shall have power to make laws for the whole orany part
of the territory of India with respect to all matters in the State List.
Ans.:

(1) Correct. The executive powers of the Union shall be vested in the President of India subject
to limitation prescribed therein.
(2) Correct. The Legislature of any State has exclusive power to make laws for the matters
enumerated in List II in the Seventh Schedule. However in few exceptional circumstances
when parliament can makes laws on state list also.
(3) Correct. Article 174 of the Constitution of India empowers the Governor of the State to
dissolve the State Legislature. This happen when State Assembly is unable to function
properly.
(4) Incorrect. A Writ of Certiorari can be issued by Supreme Court or High Court, to the
inferior Court or any authority, whenever Court or authority does any acts, viz. excess or
abuse of jurisdiction, violation of principal of natural justice, violation of fundamental
rights conferred to the citizens under Part-III.
A Writ of Prohibition is issued to an Inferior Court preventing the latter from usurping
jurisdiction which is not legally vested in it. It is generally issued before the trial of the
case.
(5) Correct. In Kesavanand Bharti v. State of Keral, AIR 1973 SC 1461, the Supreme Court
held that Parliament can amend any Part of the Constitution including the Fundamental
Rights. But the Court made it clear that Parliament cannot alter the basic structure of
framework of the Constitution.
(6) Correct. Right against exploitation [Article 23]: Traffic in human beings and beggar and
other similar forms of forced labour are prohibited. Any contravention of the prohibition
shall be an offence punishable in accordance with 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 this fundamental right.
(7) Incorrect. Parliament can make a law with respect to a matte enumerated in the state list if
Rajya Sabha declares by a resolution supported by 2/3rd of its members present and voting
that is necessary or expedient in the national interest that parliament should make a law
on that matter. Such resolution shall remain in force for a period not exceeding 1 year.
However, a fresh resolution can be passed at the end of 1 year, and that way the law of
parliament can be continued to remain in force for any number of years.
The law passed by parliament under the provisions ceases to have effect automatically after
6 months of the expiry of the resolution.
(8) Incorrect. As per Article 14, equality before the law means that amongst equals the law
should be equal and among unequal same laws shall not be applicable.
(9) Correct. The right to speech and expression includes right to make a good or bad speech
and even the right of not to speak. One may express oneself even by signs. The freedom of
speech and expression means the right to express one’s convictions and opinions freely by
word of mouth, writing, printing, pictures or any other mode.
(10) Incorrect. The fundamental duties are imposed upon the citizens.
(11) Incorrect. With respect to the subjects enumerated in the Concurrent List, i.e., List III,
Parliament and the State Legislatures both have powers to make laws. Thus, both of them
can make a law even with respect to the same subject and both the laws shall be valid in
so far as they are not repugnant to each other.
(12) Correct. State legislatures have been given exclusive powers to make laws with respect to
subjects enumerated in the List II i.e. State List. But the Constitution of India makes a few
exceptional circumstances when parliament can makes laws on state list also. While
proclamation of emergency is in operation, parliament shall have the power to make laws
for whole or any part of the territory of India on any matter in the State.
Re-write the following sentences after filling-up the blank spaces with appropriate
word(s)/figures(s):
(1) High Court issued an order to the holder of office to show to the court under what
authority he holds the office. This writ is called ………...

(2) The Constitution of India is a comprehensive document containing 395 Articles and ……
Schedules.
(3) One of the fundamental duties given in Article 51A of the Constitution of India is to uphold
and protect the sovereignty, unity and ………….. of India.
(4) The ……………. of rights is based on the premise that a person is his best judge and that
he has the liberty to waive the enjoyment of such rights as are conferred on him by the
State.
(5) A writ issued by the Court to some person or body to compel it to perform a public duty is
called …………..
(6) Article 14 declares that "the State shall not deny to any person ………….. or …………
within the territory of India".
(7) A writ of …………… is issued to an inferior Court preventing the latter from usurping
jurisdiction which is not legally vested in it.
(8) Article 19 (1) (b) gives the right to citizens to assemble peacefully and ………...
(9) …………… means no one should be imprisoned or penalized two times for the same
offence.
(10) No person shall be deprived of his life or personal liability except according to ………….
(11) …………… means detention of a person without trial.
(12) Power of President to promulgate Ordinances during recess of Parliament is to be exercised
on the advice of …………..
Ans.: (1) Quo-warranto (2) 12 (3) integrity (4) doctrine of waiver (5) Mandamus (6) equality
before the law, equal protection of the laws (7) Prohibition (8) without arms (9) Double jeopardy
Double jeopardy (10) procedure established by law (11) Preventive detention (12) Council of
Ministers
* * * * * * * * * * *

Interpretation of Statutes, Deeds and Documents

Points to be studied:
1. Define the term
i) Statues ii) Deeds iii) Documents
2. Distinguish between Interpretation & Construction
3. Explain the primary rules of interpretation

 Rule of literal construction
 Rule of Reasonable construction
 Rule of harmonious construction
 Rule of beneficial construction
 Rule of ejusdem generis
 Rule of exceptional construction
4. Explain the various internal aids to interpretation.

i. Definitional sections clauses
ii. Illustrations
iii. Proviso
iv. Long Title and Short Title
v. Preamble
vi. Headings and Titles of Chapter
vii. Marginal Notes
viii. Explanation
ix. Schedules
x. Reading a statue as a whole
5. Explain the various external aids to interpretation
6. Explain the non- obstante clause & the clause subject to.
7. Distinguish between: Mandatory Provision & Directory provisions
8. Explain the Secondary Rules of Interpretation
Que. 1 Explain the rule of beneficial construction while interpreting the statutes, quoting an
example.
(CA May 1992, 2000, June 2009)
Ans. ■ Beneficial construction is also known as Mischief Rule of Interpretation or Heydon’s rule.
■ Heydon’s rule must be applied in those cases where the word of statute is ambiguous and
out of that more than two meanings can be emerged.
■ This rule can be applied when the law is passed or a previous Act is amended to meet
some specific objective.
■ In such cases, the judge has to find out what was the mischief that the Act or Amended
Act wanted to correct and then interpret the word or sentence accordingly.
■ Strict interpretation may occasionally lead to absurd result, which should be avoided.
■ The steps in this rule are:
■ What was the law before the making of the Act?
■ , What was the mischief and defect for which the law did not provide? •
■ What remedy that the Act had provided?
■ What is true reason of the remedy?
■ Courts should prevent the mischief and advance the remedy according to the true
intentions of makers of Statute. ‘Mischief’ here means ‘wrong’ or ‘harm’.
Corkery vs. Carpenter (1951)
■ Section 12 of the Licensing Act, 1872 provided that a person drunk in charge of a ‘carriage’
on the highway could be arrested without a warrant.
■ The defendant was found drunk in charge of bicycle. Although it could be argued that a
bicycle is not a carriage in the normal meaning of the word, the divisional court of UK held
that bicycle was a carriage for the purpose of Act; mischief here was prevention of drunken
persons on the highway in charge of some form of transportation for the purpose of public
order and safety.
Manchester City Council vs. McCann (1999)
■ Section 118(1 )(a) of the County Courts Act, 1984 provides that county courts may deal
with anyone who ‘wilfully insults the judge... .or any juror or witness, or any officer of the
court’.
■ The Court held that threat was an insult for the purpose of Act; the mischief here was
protection of various participants in civil process.
■ Even though a threat is not necessarily an insult using normal meanings, the ability for
the court to deal with insults but not threats was contrary to Parliament’s intention.
Que. 2 Explain the internal aids in interpretation of statutes (CA November 1992)
Ans. ■ Internal aids means those contained in the Act itself. It includes:
• Title of Act
• Preamble and object of Act
• Heading and title of chapter
• Marginal notes
• Statement of objects
• Explanation
• Proviso
• Illustration
• Schedules to the Act.
Title of Act
■ Title of the Act is part of the Act. Long title must be distinguished with short title. Long
title is an aid to construction while short title is used for the purpose of reference.
■ The short title of the Act is purely for reference only. The short title is merely for
convenience. E.g. the Indian Penal Code, I860.
■ Long title of the Act follows by the preamble.
■ Title may be referred for the purpose of ascertaining its general scope however it could
not override the clear provisions of the statute.
■ In Kerala Education Bill, the Supreme Court held that the policy and purpose may be
deduced from the long title and the preamble.
Examples:
■ Sick Industrial Companies (Special Provisions) Act, 1985. This title clearly indicates that
it contains only special provisions for sick companies.
■ Trade Union Act, 1906- Title indicates ‘an Act to provide for the regulation of trade union
and trade dispute'.
Preamble and object of Act
■ The preamble of the Act can be used to understand the intention of Legislature, if meaning
of the word in the Act is not clear.
■ Preamble is key to open mind of the maker of Act. It is part of Act and can be read with
other portions of the statute to find out the meaning of the words.
■ In older statute, importance of preamble is not considered as significant.
■ Kashi Prasad vs. State, the Court held that even though the preamble cannot be used to
defeat the enacting clauses of a statute, it can be treated as a key for the interpretation of
the statute.
Heading and Title of Chapter
■ Heading and title of chapter in the Act can be used by Court to resolve any doubt regarding
any ambiguous words.
■ According to the present view of Supreme Court - heading prefix to sections cannot control
the plain words of the provisions.
■ If there is any doubt in the interpretation of words in a section, the headings help to
resolve the doubt.
Example:
• Heading - Sections 378-441 of IPC is ‘Offences against property’.
• Headings are prefixed to sections. They are treated as preambles. If there is ambiguity in
the words of a statute, headings can be referred.
■ In Durga Thathera vs. Narain Thathera, the Court held that the headings are like a
preamble which helps as a key to the mind of the Legislature but do not control the
substantive section of the enactment.
Marginal notes
■ Marginal notes means titles to the section.
■ In the original Acts, these are printed in margin and hence ar e called ‘marginal notes’. It
summaries the effect of the sections.
■ Marginal notes or captions are part and parcel of legislative exercise. It is used as an
aid to construction.
■ Marginal note can be used to understand the legislative intent, but cannot limit or
restrict the clear word used in a section.
■ For Example, marginal notes used in the Constitution have been held to be part of the
Constitution.
Statement of Objects and Reasons
■ Statement of Objects and Reasons accompanying the bill, when introduced in

Parliament, can be used for limited purpose of understanding the background and
intent of Legislature when there is confusion.
■ Statement of objects cannot be used for interpreting a statute.
■ It explains the reasons which induced the Legislature to enact a statute.
Explanation
■ Sometimes, an explanation is added to a section to make the provision clear.

Explanation is part and parcel of the Act.
■ An explanation may be added to include something within section or to exclude

something from it.
Example:
• Section 4A (1) of Central Excise Act - Excise duty can be levied on the basis of
‘Maximum Retail Price’ printed on carton. An Explanation to this section states - ‘Where
on any excisable goods more than one retail sale price is declared, the maximum of such
retail sale price shall be considered for purpose of this section’.
■ The object of explanation is to explain the meaning of the Act or to clarify certain
words in the main enactment and to make it consistent with the main object. Therefore,
explanation should be read along with other provisions of Act.
■ Explanation in Act avoids the mischief and advance the object. However, an explanation
cannot take away a statutory right given under the Act.
Proviso
■ The function of a proviso is to except something out of the enactment. Example:
• 'All packages for retail sale should be marked with month and year when the
commodity was packed, provided that such marking is not necessary on milk bottle,
soft drink, bread or ice cream’.
• This means that if the proviso was not there, marking of month and year of packing
would have been compulsory on milk bottle, soft drink, bread or ice-cream.
■ Function of a proviso is to except something out of the enactment or to qualify something

enacted.
■ Proviso removes special cases from the general enactment and provides them separately.
■ Proviso to particular provision of a statute is only applicable pertaining to particular

provision which provide for it.
■ If the portion of section is not clear a proviso appended to it may give an indication as
to its true meaning.
Illustrations
■ Illustration appended to section is part of statute.
■ Even though illustrations given do not form a part of the sections but those are relevant
for constructing the text of sections.
■ Illustration cannot be used to modify the language of section. It can’t override or curtail
the meaning of the section.
■ Illustration is helpful in working and application of Act.
Example:
• Section 29 of Contract Act, 1872 states that agreement void for uncertainty. Agreements,
the meaning of which is not certain, or capable of being made certain, are void.
• The illustration is as follows:
(a) A agrees to sell B 'a hundred tons of oil’. There is nothing whatever to show what kind of
oil was intended. The agreement is void for uncertainty.
(b) A, who is a dealer in coconut-oil only, agrees to sell to B ‘one hundred tons of oil’. The
nature of A’s trade affords an indication of the meaning of the words, and A has entered into
a contract for the sale of one hundred tons of coconut-oil.
Schedules to the Act
■ The schedules form part of an Act. Therefore it must be read together with the Act for all
purposes of construction.
■ However, schedule cannot control or prevail over the express provisions of the Act. If there
is any conflict between the Act and schedules, Act shall prevail.
■ Schedules are provided for drafting convenience.
Que. 3 ‘The preamble of an Act discloses the primary intention of the Legislature, but it can’t
override the provisions of the Act’. Explain
(CA November 1993)
Or
In what way can the following be of help in interpreting a statute: (a) the ‘preamble’ to an
Act, (b) the ‘marginal notes’ appended to a section of the Act?
(CA May 1998)
Or
Explain the usefulness of ‘heading and title of a chapter in an Act and marginal notes of
section’ as internal aids in interpreting the provisions of a statute.
(CA November 2003)
Or
How far title, preamble and marginal notes are in an enactment helpful in interpretation
any of the parts of an enactment?
(CA May 2001)
Ans. Refer answer to question No. 2
Que. 4 The word ‘may’ does not mean ‘shall’, yet the word ‘may’ under certain circumstances mean
‘shall’. Discuss the statement in the context of the interpretation of statutes and point out
the importance of distinction between ‘mandatory’ and ‘directory’ provisions.
(CA November 1994, June 2009)
Ans. ■ Normally, ‘may’ is permissive while ‘must’ is imperative.

■ ‘May’ indicates discretion and ‘shall’ an obligation.
■ The word ‘shall’ does not by itself make provisions of the Act mandatory. It has to be
constructed with reference to the context in which it is used.
■ The word ‘may’ in a statutory provision would not by itself show the provision is directory
in nature. In order to interpret the legal meaning of word ‘may’ various factors have to be
considered e.g. object and scheme of the Act, context or background of the Act against which
words are used, purpose and advantage of the Act sought to be achieved by use of this word
and the like.
■ ‘May’ is understood as ‘shall’ or ‘must’, where it provides positive benefit to general class
of subjects in a utility Act or where court advances remedy and suppress mischief.
■ When statute uses the word ‘shall’ prima facie it is mandatory but it is sometimes not to
interpret if the context or intention otherwise demands. Thus, under certain circumstances
the expression ‘shall’ is construed as ‘may’.
Example : Section 6A(2) of Essential Commodities Act
• If seized commodity is subject to speedy and natural decay, collector ‘may’ dispose of goods
to ensure that seized goods do not deteriorate and lost till adjudication process is complete.
• It was held that ‘may’ has to be read as ‘shall’, and the Collector must dispose of the seized
goods if they are subject to speedy and natural decay.
Que. 5 Explain the rule of ‘Ejusdem Generis’ with regard to interpretation of statutes.
(CA November 1995, 1999, 2002, 2009, May, 2005)

Or
Explain clearly the rule of ‘ejusdem generis’ as applicable in the interpretation of statutes.
Do the courts have discretionary power to apply the rules in a given situation?
(CA November 1997)
Ans. ■ 'Ejusdem generis’ rule of interpretation is useful tool in construction of general words.
■ It is also known as ‘rule of lord tenders on'.
■ Ejusdem Generis means ‘Same kind, Species, class or nature’.
■ This rule suggests that general words following specific words should be construed with
reference to the previous words and its meaning should be narrowed down.
■ However, the specific words must form a distinct genus or category. It is not a universal
rule of law, but is only permissible inference in the absence of any indication to the contrary.
■ General words, such as ‘etc.’, ‘and the like’ following specific words are limited by such
specific words.
Example : AG vs. Brown (1920)
• Where ‘arms, ammunitions, or gunpowder or any other goods’:
• Here, other goods will include any goods similar to arms, ammunitions, or gunpowder.
Example : Royal Hatcheries Pvt. Ltd. vs. State of Andhra Pradesh (1993)
• Where statute uses word such as oxen, bulls, cows, buffaloes, goats, sheep and horses
and then ends with the word ‘etc.’
• Here, general word ‘etc.’ will not include wild animal or cock or hen.
Example:
• Where .‘cars, motor bikes, motor powered vehicles’ are mentioned, the word ‘vehicles’
would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including
airplanes).
Example : Devendra Surti vs. State of Gujarat
• Under section 2(4) of the Bombay Shops and Establishments Act, 1948 the term
commercial establishment means ‘an establishment which carries any trade, business or
profession’.
• Here, the word profession is associated to business or trade and hence a private doctor’s
clinic cannot be included in the above definitions as under the rule of Ejusdem Generis.
Example: Powell vs. Kempton Park Racecourse (1899)
• Does a ‘house, office, room or other place’ include an outdoor betting ring? Since the
specific places are all indoors, and outdoor betting ring is not included.
Example: Wood vs. Commissioner of Police of the Metropolis (1986)
• Is a piece of (accidently broken) glass covered by ‘any gun, pistol, hangar, cutlass,
bludgeon’ or other offensive weapon?
• The list contains items made or adapted for the puiposes of causing harm, so a piece of
accidentally broken glass is not included.
When applicable?
■ The rule applies when:
• The statute contains list of specific words.
• The subjects of list constitute a class or category.
• That class or category is not exhausted by the list.
• The general term follows the list.
• There is no indication of a different legislative intent.
Que. 6 In what ways is ‘usage’ helpful in the interpretation of statute?

(CA May 1996)
Ans. ■ Where meaning of the language in a statute is doubtful, usage - i.e. how that language
has been interpreted and acted upon over long period - may determine its true meaning.
■ Usage is also considered in construing an Act.
Que. 7 In what ways are definitional sections helpful in the interpretation of a statute?
(CA May 1996)
Or
How will you interpret the definitions in a statute if the following words are used: (a) and
includes; (b) means denotes?
(CA May 1995)
Or
While drafting the text of different sections in an Act, it is normally noticed that the section
is supported by certain illustrations, provisos, explanation and schedules. Explain the
relevance of supporting the text of the section by the above.
(CA May 1997)
Ans. ■ Definitions are ‘inclusive’ or ‘exhaustive’.

■ If the definition uses the word ‘means’ it means that it is restrictive and exhaustive.
■ However, if the word ‘includes’ is used it means that the definition is not exhaustive but
it is inclusive. Here there is possibility to expand the meaning.
■ Where the word is defined as ‘means and includes’ the definition would be exhaustive.
Example
■ First Definition of family • Family means wife, sons and unmarried daughters. It suggests
exhaustive definition. Other relatives cannot be included.
■ Second Definition of family - Family includes father and mother. It suggests inclusive
definition.. Other relative may be included.
Que. 8 In the Companies Act, 2013, there are several provisions which start with the words ‘without
prejudice’ and ‘notwithstanding’. Explain (in not more than 10 lines each) the nature and
significance thereof, applying the principles of statutory interpretation.
(CA November 1998)
Ans. ■ The term ‘subject to’ means the provision does not have priority over other provision, while
‘notwithstanding’ means the provision has over-riding effect.
Example: Section 196(5) of Companies Act, 2013
Subject to the provisions of this Act, where an appointment of M.D., W.T.D. or manager is
not approved by the company at a general meeting, any act done by him before such
approval shall be deemed to be invalid.
■ In case of any inconsistency or conflict between non obstante clause and any other
provisions, non obstante clause will prevail. Following table explain the effect in detail:
Example
Clause Effect Example
Notwithstanding Clause override specific section Section 54A - Companies Act,

anything contained in of same Act. 2013
specific section of the
same Act.
Notwithstanding Clause override all provisions Section 192A - Companies Act,

anything contained in appearing before such 1956.
section. provision.
Que. 9 How would you reconcile in case one part of the executed lease deed is in conflict with the
other part?
(CA May 1999)
Ans. ■ Reasonable construction suggests that the words of deeds must be construed so as to lead
to a sensible meaning.
■ Generally the words or phrases of a statute are to be given their ordinary meaning.
■ In case there is a conflict between two or more clauses in the Deed, an effort should be
made to resolve the conflict by interpreting the clauses so that both the clauses are given
effect to.
■ An effort should be made to read both the parts of the deed harmoniously, if possible, if
that is not possible, then the earlier part will prevail over the latter one which should be
disregarded.
It is rule of construction that the same word cannot have two different meanings in the same
document, unless the context compels the adoption of such a course.
Que. Explain the rule of ‘reasonable construction’ while interpreting the statute.
10 (CA May 1999)
Or
Explain the Rule of ‘Reasonable construction under the interpretation of Statute, Deeds etc.’
(CA November 2010)
Ans. ■ The rule states that exclusive reliance on dictionary meaning or literal meaning may not
indicate proper intention of Legislature.
■ Sometime literal meaning gives absurd or inconsistent results.
■ In such cases, the Statute should be construed so as to give sensible meaning that is
rational and fair, for which, some modification to language and modification in grammatical
and ordinary sense of the words may be done.
■ When plain literal interpretation produces absurd result, Court may modify the language
to achieve the intention of the Legislature and produce a rational construction.
Meaning of word ‘coal’
■ Generally it is understood that the term 'coal' means coal used as fuel in its natural,
ordinary or popular meaning, but in the context of Sales Tax Act, coal is constructed as a
mineral product in the context of collar control order.
Meaning of word ‘Profits and gains’
■ In the construction of Income-tax Act, 1961, the words ‘profits and gains’ should be
understood in commercial sense.
■ Likewise borrowed money or capital borrowed has to be interpreted in its ordinary
commercial meaning.
Que. Explain the significance of definition clause in a statute. The definition of a word may be
11 either restrictive or extensive. Elaborate this with particular reference to the following
definition of ‘book and paper’ as contained in the Companies Act, 2013: ‘Book and paper’
include accounts, deeds, vouchers, writings, and documents.
(CA May 2002 Modified)
Ans. ■ Section 2(12) of Companies Act, 2013 - ‘Books and paper’ and ‘book or paper’ include
accounts, deeds, vouchers, writings, documents, minutes and registers maintained on
paper or in electronic form.
■ From the above definition, following points can be concluded and explained:
• It is inclusive and wide definition.
• Apart from deeds, vouchers, writing and documents, other kind of records and papers can
be included. It includes registers, minute book and other books.
Que. Section 102(1) of the Companies Act, 2013 stipulates that in the case of an annual general
12 meeting to transact business of special nature, a statement setting out all material facts
concerning such matter shall be annexed to the notice of the meeting. You are required to
advise as to the scope of the words ‘material facts’ briefly outlining the rules of
interpretation.
(CA November 2002 Modified)
Ans. ■ Section 102(1) of Companies Act, 2013:

'Where any items of business to be transacted at the meeting are deemed to be special as
aforesaid, there shall be annexed to the notice of the meeting a statement setting out all
material facts concerning each such item of business, including in particular, the nature of
the concern or interest, if any, therein, of every director, KMP and manager, if any’.
■ Section 102(1) of Companies Act, 2013 incorporate the provision regarding disclosing all
material facts regarding the special business propose to be passed at the ensuing annual
general meeting to the members of company. From the above provision, it can be understood
that:
• Material facts means all important facts which is affecting and likely to affect the decision
of members of company for taking rational decision for the proposal to be placed before
meeting.
• Material facts mean fact relating to propose business to be passed at meeting. It includes
the disclosure of concern and interest of the directors and management in the proposed
business.
• Material facts should enable shareholders to understand the nature of business proposed
to be passed at meeting.
• It should disclose direct and indirect interest or concern.
• It should disclose financial as well as non-financial interest or concern.
• Provision is mandatory in nature. Non-compliance or omission of proper disclosure leads
to resolution as null and void.
Que. Explain the meaning of the word ‘statute’ and discuss the need for interpretation of statutes.
13 (CA May 2002)
Ans. What is statute?

■ The word ‘Statute’ means Act enacted by the legislative authority.
■ Generally it means the laws and regulations of every kind.
■ It has been defined as the written will of the Legislature.
■ Law includes any ordinance, order, bye-law, regulation, notification.
Need for interpretation
We need interpretation for following reasons:
■ Ambiguity in Words - Some amount of interpretation is always necessary when a case
involves a statute. Sometimes the words of a statute have a plain and straightforward
meaning. But in many cases, there is some ambiguity in the words of the statute that must
be resolved by the judge.
■ Words & Legal Expert not perfect - Statute is drafted by legal expert. It contains rules and
provisions by use of words. But legal expert and words are not perfect. Word convey different
meaning while used in different circumstances and references. Intent of legal expert
(Legislature) has to be gathered not only from words but surrounding circumstances and
various references. To find the meanings of statutes, judges use various methods of
statutory interpretation, including traditional canons of statutory interpretation, legislative

history, and purpose.
■ Uncertainty in Legislation - Legislation may contain uncertainties for a variety of reasons:
• Words are imperfect symbols to communicate intent. They are ambiguous and change in
meaning over time.
• Unf oreseen situations are inevitable, and new technologies and cultures make application
of existing laws difficult.
• Uncertainties may be added to the statute in the course of enactment, such as the need
for compromise or catering to special interest groups.
Que. Explain the importance of ‘Preamble’ and ‘Proviso’ being internal aids to interpretation.
14 (CA November 2011)
Or
Many a time a proviso is added to a section of the enactment. Explain the function of such
a proviso while carrying out the interpretation.
(CA November 2009)
Or
What is effect of a proviso? Does it qualify main provisions of an enactment?
(November 2002, CA May 2007)
Or
What do you understand by the term ‘preamble’ and how does it held in interpretation of
statute?
(CA May 2004)

Or
Explain effects of a proviso the a section in a statute
(CA May 2004)
Or
What are the rules to be followed in the interpretation of a proviso in a statute?
(CA May 1994)
Ans. Refer answer to question No. 2
Que. ‘Associate words should be understood in common sense manner’. Explain the statement
15 in the light of rules of interpretation of statutes.
(CA May 2011)
Ans. ■ The rule states that a word is known by its associate words. Words in statute derive
meaning from the words surrounding them.
■ The meaning of a word is to be judged by the company it keeps. It is a legitimate rule of
construction to construe words in an Act of Parliament with reference to words found in
immediate connection with them.
■ Thus, if two or more words of analogous (Similar) meaning are coupled together, they
should be understood in cognate sense i.e., one derives colour from the other and the
general word is restricted to the less general word. This is called 'Noscitur a sociis’ i.e.
meaning of a word should be gathered from its context.
■ When some articles are grouped together, each word in the entry draws colour from the
other words therein.
Example:
• The word ‘plant’ used in 'plant and machinery’ and same word used in 'plant and flower’
has obviously different meaning.
Example : Tractor and Farm Equipment Ltd. vs. CC
• If the word 'drawing' is used along with the words ‘Work of Art’ in a statute, it indicates
only drawings by artists; and the word 'drawing’ will not include 'Engineering and Technical
Drawings' for purpose of that statute.
Example : Commissioner vs. Savoy Hotel
• Purchase Tax Act - manufacturing beverages including fruit juices and salted waters and
syrups.
• It was held that description 'fruit juice’ used in the provision is constructed to mean that
orange juice unsweated and freshly pressed was not within preview of section.
Example: Pengelly vs. Bell Punch Co. Ltd. (1964)
• The Court has held that ‘floors’ in a statute requiring ‘floors, steps, stairs, and passages
ways’ to be clear did not cover part of floor used for storage.
• The other words in the list all related to passageways.
Que. Briefly explain the meaning and application of the rule of ‘Harmonious Construction’ in the
16 interpretation of statutes.
(CA November 2012)
Ans. ■ This rule states that Statute has to be read as a whole and interpretation consistent with
other provisions in the Act should be adopted.
■ Statute should be read as a whole and different provisions in the same Act should be
consistent with each other. Thus, interpretation which is consistent with other provisions
of Act should be preferred.
■ Efforts should be made to reconcile different provisions of the same Act. It is duty of the
Court to avoid a real clash between two sections of the same Act.
■ Interpretation should be harmonious not only with other provisions in same Statute, but
other laws as well.
■ Where there are in an enactment two or more provisions which cannot be reconciled with
each other, they should be so interpreted, wherever possible, as to give effect to all of them.
■ This is what is known as the Rule of Harmonious Construction.

■ This rule is not to be applied when the words have the clear and one meaning and no
alternative construction is possible.
Smith vs. Hughes- Interpretation of words ‘in a street’ as per Street Offences Act.
■ The Act was made to stop prostitutes from inviting in the street. The question arose
whether the Act can apply to prostitutes who attracted attention of passers by from
balconies.
■ Literally speaking, ‘soliciting from balcony’ do not amount as inviting ‘in the street’. It was,
however held that inviting from balconies will amount to soliciting ‘in the street’.
■ Act was made to enable people to walk in the streets without being harassed and hence
the precise place from which the prostitutes addressed solicitations is irrelevant.
Que. (i) Define Grammatical Interpretation. What are the exceptions to grammatical
17 interpretation?
(ii) What is a Document as per the Indian Evidence Act, 1872?
(CA May 2018)
Ans. (i) When the Court applied only ordinary rules of speech for finding out the meaning of the
words used in statute, it is called as grammatical interpretation. It deals with verbal
expression of the law.
(ii) Section 3 of Indian Evidence Act, 1872 states that document means any matter expressed
or described upon any substance by means of letters, figures or marks or by more than one
of those means, intended to be used, or which may be used, for the purpose of recording
that matter. Following are exceptions to grammatical interpretation:
■ Words or expression used in Act is defective or creating ambiguity, Courts go beyond letter
of laws and use other courses to find out true intention of Legislature. If statutory expression
is defective because of inconsistency, the Court must ascertain the spirit of law.
■ If by going through text leads to result, which is unreasonable, Court must resolve such
issue logically.
Exceptions & saving clauses
The purpose of adding an exception to an enactment is exempting something which would

otherwise fall within the ambit of main provision.
Example: Five exceptions have been provided under Section 300 of the Indian Penal Code,
1860 which deals with those exceptional circumstances when culpable homicide is not
murder.
Similarly, a saving clause is generally appended in cases of repeal and re-enactment of

statute. It is normally appended in the repealing statute and its object is that the right
already created under the repealed enactment is not disturbed.
Interpretation of Statues 3.15
Chapter
3 Interpretation of Statues
Introduction: Interpretation means the art of finding out the true sense of an enactment by
giving the words of the enactment their natural and ordinary meaning. It is the process of
ascertaining the true meaning of the words used in a statute. The Court is not expected to
interpret arbitrarily and therefore there have been certain principles which have evolved out of
the continuous exercise by the Courts. These principles are called ‘rules of interpretation’.
Question 1] Write a short note on: Types of Statutes
Ans.: Statutes are commonly divided into following classes:

(1) Codifying Statutes: It presents and orderly and authoritative statement of the leading rules
of law on a given subject, whether those rules are to be found in statute law or common
law.
(2) Declaratory Statutes: Such statutes do not profess to make any alteration in the existing
law, but merely declare or explain what it is.
(3) Remedial Statutes: These statutes alter the common law or the judge made (non-statutory)
law.
(4) Amending Statutes: It is a Statute which makes and addition to or operates to change the
original law so as to effect an improvement or more effectively carry out the purpose for
which the original law was passed.
(5) Consolidating Statutes: The purpose of consolidating statute is to present the whole body of
statutory law on a subject in complete form repeating the former statute.
(6) Enabling Statutes: These statutes are which enlarges the common law where it is too strict
or narrow. It is a statute which makes it lawful to do something which would not otherwise
be lawful.
(7) Disabling Statutes: These statutes restrict or cut down rights existing at common law.
(8) Penal Statutes: When they impose a penalty or forfeiture.
Primary Rule: Literal Construction
Question 2] Discuss the ‘primary rule’ of interpretation. CS (Inter) – June 1992 (7 Marks)
Write short notes on: Literal interpretation. CS (Inter) – June 1995 (4 Marks)
Ans.: In construing statutes the cardinal rule is to construe its provisions literally and
grammatically giving the words their ordinary and natural meaning. This rule is also known as
the plain meaning rule.
According to the primary rule, the words, phrases and sentences of a statute are to be
understood in their natural, ordinary or popular and grammatical meaning, unless such a
construction leads to an absurdity or the statute suggests a different meaning. The objective
‘natural’, ‘ordinary’ and ‘popular’ are used interchangeably. They mean the grammatical or
literal meaning, except when there are technical words.
Some of the other basic principles of literal construction are:
 Every word in the law should be given meaning as no word is unnecessarily used.
 One should not presume any omissions and if a word is not there in the Statute, it shall not
be given any meaning.
The first and most elementary rule of constructions is that the words and phrases of technical
legislation are used in their technical meaning if they have acquired one, and otherwise in their

ordinary meaning, and the second is that the phrases and sentences are to be construed
according to the grammar rule.
If there is nothing to modify, alter or qualify the language which the statute contains, it must
be construed in the ordinary and natural meaning of the words and sentences. Nothing is to be
added to or taken from a statute unless there are adequate grounds to justify the interference.
In Ramavatar v Assistant Sales Tax Officer, AIR 1961 SC 1325, the question was whether sale of betel
leaves was subject to sales tax. The appellant contended that no such tax could be levied as betel
leaves were vegetables. For this purpose appellant relied on the dictionary meaning of vegetables which
says that a vegetable is that which is pertaining to, comprised or derived, or obtained from plants or
their parts. The SC, while rejecting the contention, held that betel leaves could not be given the
dictionary, technical or botanical meaning when the ordinary and natural meaning is clear and
unambiguous. Being a word of everyday use it must be understood in its popular sense by which the
people are convergent with it as also the meaning which the statue dealing would attribute to it. Its sale
is therefore, liable to sales tax.
In Maqbool Hussain v State of Bombay, the appellant, a citizen of India, on arrival at an airport did not
declare that he brought gold with him. Gold, found in his possession during search in violation of
Government notification, was confiscated u/s 167(8) of the Sea Customs Act, 1878. He was charged
u/s 8 of the Foreign Exchange Regulation Act, 1947. The appellant pleaded that his trial under the Act
was violative of Article 20(2) of the Constitution relating to double jeopardy as he was already punished
for his act by way of confiscation of the gold. It was held by the SC that the sea customs authority is
not a court or a judicial tribunal and the confiscation is not a penalty. Consequently his trial was valid
under the Act of 1947.
In Municipal board v State transport authority, Rajasthan, AIR 1965 SC 458, an application against the
change of location of a bus stand could be made within 30 days of receipt of order of Regional
Transport Authority according to Section 64A of the Motor Vehicles Act, 1939. The application was
moved after 30 days on the contention that statute must be read as “30 days from the knowledge of the
order”. The SC held that literal interpretation must be made and hence rejected the application as
invalid.
Question 3] Discuss the ‘Golden Rule’ for interpretation of statutes

Ans.: The golden rule is a modification of the principal of grammatical interpretation. It says
that ordinarily the Court must find out the intention of the legislature from the words used in
the statute by giving them their natural meaning but if this leads to absurdity, repugnance,
inconvenience, hardship, injustice or evasion, the Court must modify the meaning to such an
extent and no further as would prevent such consequence. On the face of it, this rule solves all
the problem and is, therefore known as ‘Golden Rule’. Further, since the literal meaning is
modified to some extent, this approach is called as the modifying method of interpretation.
In State of Punjab v. Qaiser Jehan Begum, AIR 1963 SC 1604, the respondent made an application u/s
18 of Land Acquisition Act, 1894 for reference to the Civil Court within 6 month from her knowledge
regarding compensation whereas the section says that such reference could be made within 6 month
from the date of award. Holding that the application was within time, the SC held that unless an award
of compensation comes to the knowledge, either actually or constructively, how a reference can be
made against the award. Therefore, justice and fair play required that the counting of the limitation
period must begin from the date of knowledge of the Award.
In Lee v. Knapp, 1967 2 QB 442, interpretation of the word ‘stop’ was involved. Under section 77(1) of
the Road Traffic Act, 1960 a driver causing an accident shall stop after the accident. In this case, a
driver stopped for a moment after causing an accident and then moved away. Applying the golden rule
the Court held that requirement of section had not been fulfilled by the driver as he had not stopped for
a reasonable period requiring interested persons to make necessary inquiries from him about accident.

Mischief Rule
Question 4] Explain the Mischief Rule or Heydon’s Rule of interpretation of statutes.

CS (Executive) – Dec 2008 (4 Marks), June 2010 (6 Marks)
Write a short note on: Purposive rule of interpretation
Ans.: The mischief rule of statutory interpretation is the oldest of the rules. The mischief rule is
a rule of statutory interpretation that attempts to determine the legislator's intention. Its main
aim is to determine the "mischief and defect" of the statute.
The mischief rule was established in Heydon's Case in 1584. It was held that the mischief rule
should only be applied where there is ambiguity in the statute. Under the mischief rule the
Court's role is to suppress the mischief and advance the remedy. The Courts while applying the
principle tries to find out the real intention behind the enactment. This rule thus assists the
court in identifying the proper construction of statutory wording according to the original
intention of the legislators.
When it is not clear whether an act falls within what is prohibited by a particular piece of
legislation, the judges can apply the mischief rule. This means that the Courts can take into
account the reasons why the legislation was passed; what ‘mischief’ the legislation was
designed to cure, and whether the act in question fell within the ‘mischief’. This rule requires
the Court to look to what the law was before the statute was passed in order to discover what
gap or mischief the statute was intended to cover. The Court is then required to interpret the
statute in such a way to ensure that the gap is covered. The rule is contained in Heydon's Case
(1584), where it was said that for the true interpretation of a statute, four things have to be
considered:
(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 Parliament hath resolved and appointed to cure the disease of the
Commonwealth?
(4) The true reason of the remedy.
The mischief 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. [Umed Singh v Raj Singh, AIR 1975 SC 43]
The Supreme Court in Sodra Devi’s case, AIR 1957 SC 832 has expressed the view that the rule
in Heydon’s case is applicable only when the words in question are ambiguous and are
reasonably capable of more than one meaning.
The correct principle is that after the words have been construed in their context and it is
found that the language is capable of bearing only one construction, the rule in Heydon’s case
ceases to be controlling and gives way to the plain meaning rule.
In Smith v. Hughes [1960] 1 WLR 830, the defendants were prostitutes who had been charged under the
Street Offences Act, 1959 which made it an offence to solicit in a public place. The prostitutes were
soliciting from private premises in windows or on balconies so could be seen by the public.
Held: The Court applied the mischief rule holding that the activities of the defendants were within the
mischief the Act was aimed at even though under a literal interpretation they would be in a private
place.
In R.M.D. Chamarbaugwala v. Union of India AIR 1957 SC 628, Parliament enacted the Prize
Competition Act, 1955 in pursuance to the wishes of several States in form of resolution under Article
252. Questioning some of the provisions of the Act and rules made thereunder, the petitioner, who were
engaged in promoting and conducting prize competition in various States, contended that conditions
laid down in Section 4 & 5 and Rule 11 & 12 made thereunder encroached upon fundamental right to
carry on business guaranteed by Article 19(6) of the Constitution.

Further, the phrase ‘prize competition’ as defined in Section 2(d) would include not only competitions in
which success depends on chance but also those in which it would depend to a substantial degree on
skill and therefore, as the impugned law constituted a single in-severable enactments, it must fail in
entirety in respect of both kinds of competitions. Rejecting the contentions, the SC held that Section
2(d) of the Act should be constructed keeping in mind historical background of the Act and that
mischief that was intended to be suppressed. The SC held that the competitions which were sought to
be controlled and regulated by the Act are only those in which success does not depend to any
substantial degree of skill.
In Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881, the appellant was convicted u/s 292 of the
Indian Penal Code, 1860 for selling an obscene book titled Lady Chatertley’s Lover. He contended that
the prosecution had a duty to prove guilty mind against him which in this case is the knowledge that
the book contained obscene material. Further, he argued that when there are very large numbers of
books in a book shop, the shopkeeper is not expected to go through each book to see as to whether
some books contains obscene literature. Rejecting the argument the SC held that there was no
ambiguity in the language of the enactment and that the meaning of Section 292 is clear and precise.
Further, the mischief of sale of obscene literature was sought to be remedied by the provision and
therefore the interpretation given by the appellant was unacceptable.
Rule of Harmonious Construction
Question 5] Discuss the rule of ‘harmonious construction’ in the interpretation of

statutes. CS (Inter) – June 1994 (5 Marks), June 1999 (2 Marks)
CS (Executive) – June 2009 (2 Marks), Dec 2009 (4 Marks)
Ans.: When there is a conflict between two or more provisions of the law they should be followed
in such way that maximum benefit can be obtained and no rule need to be violated in the
process of following other one. It is a sound rule of interpretation that Courts must try to avoid
a conflict between the provisions of Statute. 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. It is the duty of the Courts to a void
conflict between two provisions, and whenever it is possible to do so to construe provisions
which appear to conflict so that they harmonize.
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”.
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.
In Raj Krishna v Binod, AIR 1954 SC 202, the question before the Court was the conflict between
Section 33(2) & 123(8) of the Representation of People Act, 1951.
Section 33(2) empowers a government servant to nominate or second a candidate seeking election
whereas, Section 123(8) says that a government servant is not entitled to assist a candidate in an
election in any manner except by casting his vote.
The Supreme Court held that both these provision should be harmoniously interpreted. Harmony was
possible only if Section 123(8) of the Act is interpreted as conferring power on a government servant of
voting as well as of proposing and seconding a candidature and forbidding him from assisting a
candidate in any other manner.
In M.S.M Sharma v Krishna Sinha, AIR 1959 SC 395, the petitioner, editor of a newspaper, was asked to
show cause as to why should he not be punished for a breach of privilege of the House guaranteed by
Article 194(3) of the Constitution for publishing a speech made in the State Legislature Assembly
without expunging certain remarks as directed by the speaker. In a petition under Article 32 of the
Constitution, he argued that the proposed action against him would be contrary to the freedom of
speech and expression guaranteed by Article 19(1)(a). The SC held that expediency demanded that

Article 19(1)(a) and Article 194(3) had to be harmoniously constructed. To give effect to both the
provisions, it was necessary to hold that fundamental right of freedom of speech and expression under
Article 19(1)(a) was subject to privilege of Houses guaranteed by Article 194(3). The petition was
therefore dismissed.
Rule of Reasonable Construction (Ut Res Magis Valet Quam Pareat)
Question 6] Explain the doctrine of “ut res magis valeat quam pereat”.
Explain the rule of ‘reasonable construction’.
CS (Inter) – June 1998 (10 Marks), CS (Inter) – Dec 2006 (10 Marks)
Ans.: Ut res magis valeat quam pereat means that the thing may rather have effect than be
destroyed.
The “ut res magis valeat quam pereat” (Rule of Reasonable Construction) implies that a statute
must be construed reasonably. A statute or any enacting provision therein must be so
construed as to make if effective and operative. The Court must try as far as possible, to keep
the statute within the competence of legislature concerned.
As per this rule, the Court will reject the construction which will defeat the plain intention of
the legislature even though there may be inexactitude in the language used. Preference should
be given to such construction which affords consistency and certainty, facilitating smooth
working of the legal system. Thus, as far as possible all the words used in statute must be
given meaning as the legislature is not expected to use unnecessary words. Superfluous or
insignificant words are not used by the makers of statute.
In Avatar Singh v State of Punjab, AIR 1965 SC 666, the appellant who was convicted for theft of
electricity under Section 39 of Electricity Act, 1910 argued that his conviction should not be
maintained because the process against him had not started as per direction of Section 50 of the Act.
The respondent on the other hand argued that theft of electricity though not a theft within the meaning
of Section 378 of the Indian Penal Code, 1860, was made so by Section 39 of the Electricity Act, 1910
and thus punishment under Indian penal Code must be imposed. The SC applied the principal “ut res
magis valeat quam pereat” and held that since the crime is against Electricity Act, 1910 and not against
Indian Penal Code, the requirement of Section 50 of Electricity Act, 1910 must have been followed. It
was held that rules framed in contravention of the Electricity Act, 1910 are separate and hence theft of
electricity is not an offence under the IPC.
Rule of Ejusdem Generis
Question 7] What do you understand by the rule of ‘ejusdem generis’ in the

interpretation of statutes? CS (Inter) – June 1996 (8 Marks), Dec 1998 (4 Marks)
Ans.: Ejusdem generis, means “of the same kind or species”. The rule of ‘ejusdem generis’ one of
the primary rules for the interpretation of statutes. It is of great help to the Courts, to find out
the true intention of the legislature.
The rule can be explained as:
When general words follows specific words of a distinct category, the general word may be given a
restricted meaning of the same category. The general word takes its meaning from preceding
expressions.
Example:
(1) If a law uses the words such as ‘oxen, bulls, goat, cows, buffaloes, horses, etc.’, the word
‘etc.’ cannot include wild animal like lion and tiger. Also, all the domestic animal will not be
covered. The illustration given relate to all four legged animals and hence other domestic

animals like dogs, cats can be included but not cock or hen since cock or hen has no
similarity with the illustrations of other domestic animals given.
(2) If a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered
vehicles, "vehicles" would not include airplanes, since the list was of land-based
transportation.
The rule is applicable subject to the following conditions:
 The statute contains the enumeration by specific words.
 The members of the enumeration constitute a class.
 The class is not exhausted by enumeration.
 General term follows enumeration.
 There is a distinct genus which comprises more than one species, and
 There is no clearly manifested intention that the general term be given a broader
meaning than the doctrine requires.
The rule is required to be applied with great caution because it implies a departure from a
natural meaning of words, in order to give effect to supposed intention of legislature.
In Assistant Collector of Central Excise v. Ramdev Tobacoo Company, AIR 1991 SC 506, the question
was the interpretation of Section 40(2) of the Central Excise & Salt Act, 1944 which provided that no
suit, prosecution or other legal proceeding could be instituted for anything done or ordered to be done
under the law after the expiration of 6 months from the accrual of the cause of action. The SC held that
the expression ‘other legal proceedings’ must be read ejusdem generis with the preceding words ‘suit’
and ‘prosecution’ as they constitute a distinct genus. Therefore, the penalty and adjudication
proceedings do not fall within the expression ‘other legal proceedings’ as per Section 40(2). ‘Suit’ or
‘prosecution’ is those judicial or legal proceedings which are lodged in a court of law and before an
executive authority, even if a statutory one.
The Supreme Court in Siddeshwari Cotton Mills (P) Ltd v UOI, AIR 1989 SC 1019, while interpreting the
expression 'any other process' appearing along with the words 'bleaching, mercerizing, dyeing, printing,
water-proofing, rubberizing, shrink-proofing, organic processing in Section 2(f) of the Central Excise &
Salt Act, 1944 with the aid of the principle of ejusdem generis the SC has said that the foregoing words,
which precede the expression 'or any other process' contemplate process, which import a change of a
lasting nature must share one or the other of these incidents.
Where there was prohibition on importation of “arms, ammunition, or gunpowder or any other goods”
the words ‘any other goods’ were construed as referring to goods similar to “arms, ammunition or gun
powder”. [AG vs. Brown (1920), 1 KB 773]
Expressio unis est exclusion alterius
Question 8] Explain the ‘expressio unis est exclusion alterius’ rule of interpretation.
CS (Executive) – Dec 1996 (8 Marks), Dec 2002 (4 Marks)
Ans.: The rule ‘expressio unis est exclusion alterius’ means that, the express mention of one
thing is the exclusion of other.
Where things are specifically included in list and others have been excluded it means that all
others have been excluded. However, sometimes a list in a statute is illustrative, not
exclusionary. This is usually indicated by a word such as "includes" or “such as”. Thus a
statute granting certain rights to "police, fire, and sanitation employees" would be interpreted to
exclude other public employees not enumerated from the legislation. This is based on presumed
legislative intent and where for some reason this intent cannot be reasonably inferred the Court
is free to draw a different conclusion.
The general meaning of “expression of one thing is the exclusion of another” is also known as
the negative implication rule. This rule assumes that the legislature intentionally specified one
set of criteria as opposed to the other. Therefore, if the issue to be decided addresses an item
not specifically named in the statute, it must be assumed the statute does not apply.

The fundamental rights under Article 15, 16 and 19 are available to the citizen of India and hence other
persons, i.e. non citizen are expressly excluded. In Bennett Coleman v. Union of India, AIR 1973 SC 106
and R C Cooper v. Union of India, AIR 1970 SC 564, the Supreme Court interpreted the citizen and
clearly laid down that the freedom under Article 19 cannot be claimed by non citizens nor by legal
persons as they are not citizens.
Contemporanea expositio est optima et fortissima in lege
Question 9] Write a short note on: Rule of contemporanea expositio est optima et
fortissima in lege.
Ans.: The maxim means that a contemporaneous exposition is the best and strongest in law.
The maxim contemporanea expositio as laid down by Lord Coke was applied to construing
ancient statutes, but usually not applied to interpreting statutes which are comparatively
modern. Thus, old statutes should be interpreted as they would have been at the date when they
were passed.
Usages and practice developed under a statute is indicative of the meaning ascribed to its
words by contemporary opinion and in case of an ancient statute, such reference to usage and
practice is admissible.
In National & Grindlays Bank v. Municipal Corporation, Grater Bombay, AIR 1969 SC 1048, question of
interpretation of Section 146(2) of the Bombay Municipal Corporation Act, 1888 was involved according
to which property tax shall be primarily leviable from the lessor if the premises are let. Relying on the
long standing practice followed by the corporation that the land and building constructed over it would
be considered as one single unit and that the owner of the land would be liable to property tax the SC
held that even though the lessee had constructed the building and was its owner, the owner of the land
was liable to the property tax because the land was let out for a period less than one year and such the
case not covered by sub-section (3) under which premises let to for more than one year will fall.
Noscitur a Sociis
Question 10 Write a short note on: Noscitur a Sociis CS (Inter) – Dec 2007 (4 Marks)
Ans.: The ‘Noscitur a Sociis’ i.e. “it is known by its associates”. In other words, meaning of a
word should be known from its accompanying or associating words.
A word in a statutory provision is to be read in collocation with its companion words.
The rule states that where two or more words which are susceptible of analogous meaning are
coupled together, they are understood in their cognate sense. They take colour from each other,
the meaning of more general being restricted to less general. A word may be known by the
company it keeps. Associated words explain and limit each other.
In Pradeep Agarbatti v. State of Punjab, AIR 1998 SC 171, the word ‘perfumery’ had to be interpreted in
Entry 16 of Schedule A of Punjab Sales Tax Act, 1948 which reads: ‘cosmetics, perfumery and toilet
goods, excluding tooth paste, tooth powder, kumkum, and soap’. Applying the noscitur sociis rule the
Supreme Court held that the word could means only such articles as are used as cosmetics and toilet
goods and therefore, this cannot mean ‘doop’ and ‘agarbatti’.
In Devendra M Surti v State of Gujarat, AIR 1969 SC 63, interpretation of word ‘profession’ was in
question. Under Section 2(4) of the Bombay Shops & Establishments Act, 1948 says that, commercial
establishment means “an establishment which carries any trade, business or profession”. The Supreme
Court interpreted the word profession in the light of other associated words ‘business’ and ‘trade’ and
held that a private doctor’s clinic cannot be included in the above definitions.
In Rainbow Steels Ltd. v. Commissioner of Sales Tax, AIR 1981 SC 2101, the question was whether the
thermal power plant which had been used previously and was in perfect running condition at the time
of sale and was sold as such, would be deemed an ‘old’ machinery within the meaning of Entry 15 of
the notification dated May 30, 1975, issued under the UP Sales Tax Act, 1948. The Supreme Court held
that the since the world ‘old’ occurs in Entry 15 in association with the words discarded, unserviceable

and obsolete, the principal of noscitur a sociis is applicable and plant cannot be mean an old machinery
because the word old in such a context means similar in nature to discarded, unserviceable and
obsolete machinery.
Rule of Strict & Liberal Construction
Question 11] What is strict & liberal construction of statutes?

Ans.: Rule of strict & liberal construction of statutes applied for interpretation of penal and
taxing statutes. As per the rule of strict & liberal construction, a statute enacting an offence or
imposing a penalty should be strictly construed.
Construction of penal statute:
 While constructing a provision in penal statute if there appears to be a reasonable doubt or
ambiguity, it shall be resolved in favour of person who would be liable to penalty.
 If a penal provision can reasonably be so interpreted as to avoid the punishment, it must be
so construed.
 If there can be two reasonable construction of a penal provision, the more lenient should be
given effect to.
 Unless the words of a statute clearly make an act criminal, it shall not be construed as
criminal.
 Where certain procedural requirements have been laid down by a statue to be completed,
the Court is duty bound to see that all these requirements have been complied with
sentencing the accused. In case of any doubt, the benefit has to go to the accused.
Construction of taxing statute:
 Statute imposing taxes or monetary burdens are to be strictly construed. The logic behind
this principal is that imposition of taxes is also a kind of imposition of penalty which can be
imposed if the language of the statute so says.
 A person cannot be taxed unless the language of the statute unambiguously imposes the
obligation to pay tax.
 If words in taxing enactment are capable of two interpretations, the interpretation which
favour the person who sought to be taxed has to be accepted.
 A taxing statute has no retrospective operation unless the language unequivocally make it
so.
In W.H. King v. Republic of India, AIR 1952 SC 156, the appellant assigned his tenancy to another after
receiving money in the form of a pugree. On being prosecuted under Bombay Rents, Hotels & Lodging
Houses Rates (Control) Act, 1947, he contended that he could be liable under the Act only when the
prosecution proved that he had relinquished his tenancy on accepting some consideration. The
prosecution argued that relinquishment and assignment were more or less same and that the term
relinquishment had not been used in the act in technical sense. Rejecting the prosecution’s contention,
the SC held that since the Act was a penal statute, it had to be strictly construed in favour of the
subject because relinquishment of the tenancy as required under the Act was not the same as
assignment.
Internal aids in interpretation
Question 12] What are the internal aids in the interpretation of statutes?
Write notes on: Preamble CS (Inter) – Dec 1998 (4 Marks)
Explain: Proviso CS (Executive) – Dec 2009 (4 Marks)
Discuss the significance of the following in the interpretation of statutes:
(i) Long title
(ii) Illustration CS (Inter) – June 1999 (4 Marks)
Explain the role and scope of the following in the interpretation of statutes:

(i) Preamble
(ii) Schedules CS (Inter) – June 2005 (8 Marks)
“Marginal notes appended to the Articles in the Constitution of India furnish some clue
as to the meaning and purpose of the Articles.” Explain. CS (Inter) – June 2008 (4 Marks)
Ans.: Internal aids mean those materials which are available in the statute itself, though they
may not be part of enactment. These internal aids include, long title, preamble, headings,
marginal notes, illustrations, punctuation, proviso, schedule, transitory provisions, etc.
Following are internal aids in the interpretation of statutes:
(1) Short title: The short title is a nickname of statute, such as Indian Evidence Act, 1872,
Indian Penal Code, 1860. It identifies an Act but does not describe it. It only provides
facility of reference. The short title is merely for convenience.
(2) Long title: The long title of the Act may be referred for ascertaining its general scope and
throwing light on its construction. It is a legitimate aid. The long title of the Act is a part of
it and is admissible to construction.
For instance, the long title of the –
Code of Criminal Procedure, 1973 An Act to consolidate and amend the laws relating to
reads as: criminal procedures.
Code of Civil Procedure, 1908 An Act to consolidate and amend the laws relating to the
reads as: procedure of courts of civil judicature.
Prevention of Food Adulteration An Act to make provisions for the prevention of adulteration
Act, 1954, reads as: of food.
(3) Preamble: The main objective and purpose of the Act are found in the Preamble of the
statute. It contains the recitals showing the reason for enactment of the Act. If the
language of the Act is clear the preamble must be ignored.
Example: The preamble of Indian Penal Code, 1860 reads: Whereas it is expedient to
provide a general Penal Code for India.
Like the Long Tile, the Preamble of a statute is a part of the enactment and can
legitimately be used for construing it. However, the Preamble does not override the plain
provision of the Act but if the wording of the statute gives rise to doubts as to its proper
construction, e.g., where the words or phrase has more than one meaning and a doubt
arises as to which of the two meanings is intended in the Act, the Preamble can and ought
to be referred to in order to arrive at the proper construction.
In short, the Preamble to an Act discloses the primary intention of the legislature but can
only be brought in as an aid to construction if the language of the statute is not clear.
However, it cannot override the provisions of the enactment.
(4) Marginal Notes: Marginal notes are those notes which are inserted at the side of the
sections in an Act and express the effect of the sections.
Example: Section 11 of the Indian Contract Act, 1872 reads as: Who are competent to
contract?
Marginal notes appended to the articles of the Constitution have been held to constitute
part of the constitute part of the constitution as passed by the Constituent Assembly.
Therefore, they have been used for construing articles.
(5) Heading & title of a chapter: Headings may be given to group of sections in an Act. These
are generally treated as preamble to the group of sections. Headings prefixed to sections
cannot control the plain words of the provisions. Only in the case of ambiguity or doubt,
heading or sub-heading may be referred to as an aid in construing provision.
Example: The heading before Sections 172 to 190 of the Indian Penal Code, 1860 reads: “Of
the contempts of lawful authority of public servants”
Chapter titles or headings may be referred to as construction of doubtful expressions, but
cannot be used to restrict the plain terms of an enactment.
(6) Definitions/Interpretation clauses: Statutes contain definitions of certain words and
expressions used in an Act. Definition gives the interpretation of certain words or
expressions, they may include or exclude something, may be of restrictive extensive,

ordinary or special kind. When a word or expression has been defined prima facie, such
definition governs that word in the body of an Act everywhere, unless specially excluded.
The object of definitions is to avoid of frequent repetitions in describing the subject matter,
to which the word or expression so defined is intended to apply. A definition is not to be
read in isolation, it must be read in context of its use. Where definition itself is ambiguous,
it has to be interpreted in the light of other provisions of the Act.
The definition of a word or expression in the definition section may either be restricting of
its ordinary meaning or may be extensive of the same. When a word is defined to ‘mean’,
the definition is exhaustive. We must restrict the meaning of the word to that given in the
definition section. But where the word is defined to ‘include’ such and such, the definition
is inclusive. Here the word defined is not restricted to the meaning assigned to it but has
extensive meaning which also includes the meaning assigned to it in the definition section.
We may also find a word being defined as ‘means and includes’ such and such. Here
again the definition would be exhaustive.
Example: Following is the example of exhaustive definition –
Abridged Prospectus [Section 2(1) of the Companies Act, 2013]: Abridged prospectus means a
memorandum containing such salient features of a prospectus as may be specified by the
SEBI by making regulations in this behalf.
Following is the example of inclusive definition –
Book and paper [Section 2(12) of the Companies Act, 2013]: ‘Book and paper’ and ‘book or
paper’ include books of account, deeds, vouchers, writings, documents, minutes and
registers maintained on paper or in electronic form.
(7) Proviso: A clause which is an exception to the main provision is known as proviso. Thus,
proviso is made when a special case is removed from the general clause and a separate
provision is made for it.
The normal function of a proviso is to except something out of the enactment or to qualify
something stated in the enactment which would be within its purview if the proviso were
not there.
(8) Illustrations or explanations: An illustration is appended to a section with the purpose of
illustrating the provision of law explained therein.
Example: 16 illustrations [(a) to (p)] have been appended to Section 378 of Indian Penal
code, 1860 which illustrate various aspects of the offence of theft.
Illustrations appended to sections are part of the statute and they help to furnish some
indication of the presumable intention of the legislature.
An explanation appended to a section is given to explain the meaning of words. It becomes
part and parcel of the enactment. An explanation normally should be read so, as to
harmonies with and clear up any ambiguity in the main section and should not be
construed to widen the ambit of the section.
(9) Exceptions & saving clauses: The purpose of adding an exception to an enactment is
exempting something which would otherwise fall within the ambit of main provision.
Example: Five exceptions have been provided under Section 300 of the Indian Penal Code,
1860 which deals with those exceptional circumstances when culpable homicide is not
murder.
Similarly, a saving clause is generally appended in cases of repeal and re-enactment of
statute. It is normally appended in the repealing statute and its object is that the right
already created under the repealed enactment is not disturbed.
(10) Schedules: The schedules are attached to statue to deal with as to how claims or rights
under it are to be asserted or as to how powers conferred under it are to be exercised.
Example: The Companies Act, 2013 contains 7 Schedules.
Schedules attached to a statute, forms part of it and must be read together with it for all
purposes of construction. But expressions in the schedule cannot control or prevail
against the express enactment.
(11) Punctuations: Commas, semi-colons, full stops etc. are also important in interpretation of
statute.

(12) Non Obstante Clause: Non obstante clause usually starts with the word ‘Notwithstanding
anything contained in…….’. Non obstante clause is employed to give overriding effect to
certain provisions over some contrary provisions that may be found in the same enactment
or some other enactments, which is to say to avoid the operations and effect of all contrary
provisions.
Case law on long title:
In Aswini Kumar v. Arabinda Bose, AIR 1952 SC 369, the petitioner who was an Advocate of the
Calcutta High Court also the Supreme Court filed in the Registry in Original side a warrant of
authority executed in his favour to appear for this client on the ground that under the High Rules
and Orders, Original Side, an Advocate could not act but only plead, the warrant of authority was
returned. The petitioner argued that being an Advocate of the Supreme Court had a right to act
and plead all by himself without any instruction from an Attorney. The SC looked at the long title
of the Supreme Court Advocate (Practice in High Courts) Act, 1951, which said An Act to
authorize Advocates of Supreme Court to practice as of right in any High Court and accepted the
contention of the petitioner.
External aids in interpretation
Question 13] External aids in interpretation of statutes have to be used with great
caution and sparingly too. Comment. CS (Inter) – Dec 2000 (8 Marks)
Briefly mention internal & external aids to interpretation of statute.
Parliamentary history as an external aid in the interpretation of statutes. Comment.
Ans.: To find the true intention of the legislature, there exist many rules, principles and aids in
interpretation of statutes. Apart from the intrinsic aids, such as preamble and purview of the
act, the Court, can consider resources outside the Act, called the extrinsic or external aids.
Where the words of an Act are clear and unambiguous, no recourse to extrinsic matter, even if
it consists of the sources of the codification, is permissible.
Following are external aids used in interpretation of Statute:
(1) Dictionaries: When a word or expression 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. But courts must be careful because it is not necessary that dictionary
meanings of a word may be the true meaning in a particular context.
(2) Historical background: The Courts take recourse of such historical facts and surrounding
circumstance which existed at the time of passing of the Statutes and as may be necessary
to understand the subject matter of the statutes. Like any other external aid, the
inferences from historical facts and surrounding circumstances, must give way to the clear
language employed in the enactment itself.
(3) Parliamentary history: The Supreme Court, enunciated the rule of exclusion of
parliamentary history as in English Courts, but the court used this aid in resolving
questions of construction in many occasions. The court has now changed the view that
legislative history within circumspect limits may be consulted by courts in resolving
ambiguities.
(4) Reference to other statutes: A statute must be read as a whole, as words are to be
understood in their context. Extension of this rule or 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. Viscount Simonds conceived it to be a right and duty to construe every
word of a statute in their context and he used the words in their widest sense including
“other statutes in pari materia”.
The phrase ‘pari materia’ is used in connection with two laws relating to the same subject
matter that must be analyzed with each other.

(5) Reference to reports of committees: The report of a committee on whose report an

enactment is based, can be looked into “so as to see the background against which the
legislation was enacted, the fact cannot be ignored that the Parliament may, and often
does, decide to do something different to cure the mischief”. So we should not be unduly
influenced by the report. When the parliament has enacted a statute as recommended by
the report of a committee and there is ambiguity or uncertainty in any provision of the
statute, the court may have regard to the report for ascertaining the intention behind the
provision.
(6) Use of foreign decisions: Use of foreign decisions of countries following the same system of
jurisprudence as of India and rendered on statutes in pari material, has been permitted by
practice in Indian Courts. The assistance of such decisions is subject to the qualification
that prime importance is always to be given to the language of the relevant Indian Statute,
the circumstances and the setting in which it is enacted and the Indian conditions where it
is to be applied.
(7) Statement of objects and reasons: The statement of objects and reasons as well as the
“Notes on clauses of the Bill” can be made use of in the interpretation of statutes, if the
same have been adopted by the Parliament without any changes in enacting the bill.
In A. K. Gopalan v. State of Madras, the SC while disallowing a speech to be considered as an aid
to interpretation, observed that a speech made in the course of the debate on a Bill be best be
indicative of the subjective intent of the speaker.
In K. P. Vargeshese v. ITO, it was held that speech made by mover of the Bill at the time of
introduction of bill is relevant as it explains reasons for introduction of bill to ascertain the object
and purpose of legislation.
Objective Questions
word(s)/figure(s):
(1) 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 rule
of interpretation is called _________
(2) According to the _________, the words, phrases and sentences of a statute are to be
understood in their natural, ordinary or popular and grammatical meaning, unless such a
construction leads to an absurdity or contents or object of the statute suggests a different
meaning.
(3) According to _________ rule of interpretation of statute, when general words follows specific
words of a distinct category, the general word may be given a restricted meaning of the
same category.
(4) The rule _________ means that, the express mention of one thing is the exclusion of
another.
(5) According to _________ rule of interpretation of statute, meaning of a word should be
known from its accompanying or associating words.
(6) Interpretation of a statute should not be given a meaning which would make other
provisions _________
(7) If there is any appearance of inconsistency between the Schedule and a specific provision
in an enactment, the _________ shall prevail.
Ans.:
(1) Rule of harmonious construction (2) Primary rule (3) ejusdem generis (4) expressio unis est
exclusion alterius (5) Noscitur a Sociis (6) redundant (7) provision
* * * * * * * *

General Clauses Act, 1897

Points to be studied :
1. Object, Purpose & Importance

2. Preamble & example
3. Some Basic Understanding of Legislation
a) Definitions
b) Means And /or Include
4. Importance of the word May and Shall while studying law
5. Definition of
i. Financial year
ii. Immovable Property
iii. Affidavit /oath/Swear – S .3(3) , 3(37) , 3 (62)
iv. Central Act –S.3 (7)
v. Central Government - S.3 (8)
vi. Enactment – S.3(19)
vii. Good faith - S. 3 (22)
6. General Rules of Construction

i. S. 5 : Coming into operation of enactment ( Commencement of Act )
ii. S.6 : Effect of Repeal , Distinction between Repeal & Deletion
iii. S.8 Construction of references to repealed enactments
iv. S.9 Commencement & Termination of Time
v. S.10 Computation of Time
vi. S.13 : Gender & Number
7. Provision as to orders, rules etc. Made under enactments
i. S.20 Construction of Orders etc issued under enactments
ii. S.21 Power to issue, to include power to add to ,amend ,vary or rescind
notifications,orders,rules or bye laws
iii. S.23 Provisions applicable to making of rules or bye-laws after previous
publications”
iv. S.24 Continuation of Orders etc issued under enactments repealed and re-enacted
8. Miscellaneous
S.27: Meaning of Service by Post
Que. 1 X owned a land with fifty tamarind trees. He sold his land and the timber (obtained after
cutting the fifty trees) to Y. X wants to know whether the sale of timber tantamount to sale
of immovable property. Advise him with reference to Provisions of General Clauses Act,
1897.
(CA May 2018)
An s. As per Section 3(26) of General Clauses Act, 1897, immovable property includes:
■ Land,
■ Benefits to arise out of land,
■ Things attached to the earth, or
■ Permanently fastened to anything attached to the earth.
Accordingly, timber is not immovable property because they are not permanently attached
to the earth. Sale of timber does not tantamount to sale of immovable property.
Que. 2 Explain briefly any four effects by repeal of an existing Act by central legislature enumerated
in Section 6 of the General Clauses Act, 1897.
(CA May 2018)
Ans. Repeal means revoke or cancel. Section 6 of General Clauses Act, 1897 explain following
effects of repeal of an existing Act by Central Legislature:
■ Where any Central Act repeals any enactment, the repeal shall not affect:
• any legal proceeding, obligation, liability, penalty, forfeiture or punishment arising out of,
or imposed under the repealed enactment
• any investigation or legal proceeding or remedy in respect of right, privilege.
■ Such investigation, legal proceeding or remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had
not been passed.
■ Repeal of a provision will not affect the continuance of the enactment so repealed and in
operation at the time of repeal unless different intention appears.
■ Section 6 applies when the repeal is of Central Act or Regulation and not of rule. - Kolhapur
Cansugar Works Ltd. vs. UOI.
Que. 3 What is the meaning of service by post as per provision of the General Clauses Act, 1897?
(CA May 2018)
Ans. Service by Post - Section 27

■ Where any Central Act or Regulation provides for serving of any document by post (post
also includes expression like ‘serve’, ‘give’, ‘send’ or ‘any other expression’) then it shall be
served effectively if it is posted by registered post with proper stamp and address.
■ Above rule is not applicable when any Act or regulation expressly provides different
methods for serving notice.
Que 4. As per the provisions of the Companies Act, 2013, a whole time Key Managerial Personnel
(KMP) shall not hold office in more than one company except its subsidiary company at the
same time. Referring to the Section 13 of the General Clauses Act, 1897, examine whether
a whole time KMP can be appointed in more than one subsidiary companies?
Ans. Section 203(3) of the Companies Act, 2013 provides that whole time key managerial
personnel shall not hold office in more than one company except in its subsidiary company
at the same time. With respect to the issue that whether a whole time KMP of holding
company be appointed in more than one subsidiary companies or can be appointed in only
one subsidiary company.
It can be noted that Section 13 of General Clauses Act, 1897 provides that the word
‘singular’ shall include the ‘plural’, unless there is anything repugnant to the subject or the
context. Thus, a whole time key managerial personnel may hold office in more than one
subsidiary company as per the present law
Que 5. Mr. Mike has lent his house property to Mr. Wise at a monthly rent of ₹ . 15,0000 per month.
The yearly rent agreement was due to expire in near future. However, Mr. Mike does not
intend to continue this agreement and he has sent a notice to Mr. Wise for the termination
of the agreement. Mr. Wise on the other hand does not want to vacate the property and
hence has returned the notice with an endorsement of refusal. Now, Mr. Wise has contended
that the no notice was served to him and hence there is no need for him to vacate the
property. As per the provisions of the General Clauses Act, 1897, discuss whether a notice
was served to Mr. Wise.
Ans As per section 27 of the General Clause Act, 1897, where any legislation or regulation
requires any document to be served by post, then unless a different intention appears,
the service shall be deemed to be effected by:
(a) properly addressing
(b) pre-paying, and
(c) posting by registered post.
A letter containing the document to have been effected at the time at which the letter would
be delivered in the ordinary course of post.
Thus, where a notice is sent by the landlord by registered post and the same is returned by
the tenant with an endorsement of refusal, it will be presumed that the notice has been
served.
Hence, in the given situation, a notice was rightfully served to Mr. Wise
Que 6. X Ltd. declared dividend for its shareholder in its Annual General Meeting held on
30/09/2017. Under the provisions of the Companies Act, 2013, company is required to pay
declared dividend within 30 days from the date of declaration. As per the provisions of the
General Clauses Act, 1897, discuss what will be the commencement and termination time
for posting of declared dividend.
Ans As per the provisions of Section 9 of the General Clauses Act, 1897, in any legislation or
regulation, it shall be sufficient, for the purpose of excluding the first in a series of days or
any other period of time to use the word “from” and for the purpose of including the last in
a series of days or any other period of time, to use the word “to”.
Section127 of the Companies Act, 2013 uses the words, ‘thirty days from’. Thus, in the given
situation X Ltd. is required to pay declared dividend within 30 days from the date of
declaration i.e. from 01/10/2017 to 30/10/2017. In this series of 30 days, 30/09/2017 will
be excluded and last 30th day i.e. 30/10/2017 will be included.
Que 7. When does an enactment is said to have come into operation if the Act has not specified
any particular date of its enforcement. Explain with the help of an example as per the
provisions of the General Clauses Act, 1897.
Ans “Coming into operation of enactment”: According to section 5 of the General Clauses
Act, 1897, where any Central Act has not specifically mentioned a particular date to
come into force, it shall be implemented on the day on which it receives the assent of the
Governor General in case of a Central Acts made before the commencement of the Indian
Constitution and/or, of the President in case of an Act of Parliament.
Example: The Companies Act, 2013 received assent of President of India on 29 th August,
2013 and was notified in official gazette on 30th August, 2013 with the enforcement of
section 1 of the Act. Accordingly, the Companies Act, 2013 came into enforcement on the
date of its publication in the Official Gazette.
Que 8. Financial Year and Calendar Year are same. Discuss as per the provisions of the General
Clauses Act, 1897.
Ans According to section 3(21) of the General Clauses Act, 1897, financial year shall mean
the year commencing on the first day of April.
The term Year has been defined under Section 3(66) as a year reckoned according to the
British calendar. Thus as per General Clauses Act, Year means calendar year which
starts from January to December.
Thus, we can see Financial year starts from first day of April but Calendar Year starts
from first day of January.
Hence, Financial year and Calendar year are not same.
Que 9. Mr. Akbar, an advocate has fraudulently deceived his client Mr. Birbal, who was 5
taking his expert advise on taxation matters. Now, Mr. Akbar is liable to a fine for
acting fraudulently both under the Advocates Act, 1961 as well as the Income Tax
Act, 1961. State the provision as to whether his offence is punishable under the
both the Acts, as per the General Clauses Act, 1897.
Ans “Provision as to offence punishable under two or more enactments” [Section 26]:
Where an act or omission constitutes an offence under two or more enactments, then the
offender shall be liable to be prosecuted and punished under either or any of those
enactments, but shall not be punished twice for the same offence.
Thus, Mr. Akbar shall be liable to punished under the Advocates Act, 1961 or the Income
Tax Act, 1961, but shall not be punished twice for the same offence.
Que 10. Explain various provisions applicable to rules or bye laws being made after previous
publications as enumerated in Section 23 of the General Clauses Act, 1897.
Ans Provisions applicable to making rules after previous publication - Section 23

Following provisions are applicable where any Central Act or regulation empower to make
rules or byelaws etc., subject to condition of publication:
• Draft rules or bye-laws shall be published for information of persons likely to be affected
•Publication is made as specified by Central Government
• Draft shall specify date on which it will be taken in to consideration
• Objection and suggestion should be invited and it should be considered.
• Rules or bye-laws should thereafter be finalised and published in Official Gazette.
Que 11. Komal Ltd. declares a dividend for its shareholders in its AGM held on 27th September,
2018. Referring to provisions of the General Clauses Act, 1897 and Companies Act, 2013,
advice:
(i) The dates during which Komal Ltd. is required to pay the dividend?
(ii) The dates during which Komal Ltd. is required to transfer the unpaid or unclaimed
dividend to unpaid account?
Ans (i) As per section 127 of Companies Act, 2013, company shall pay dividend or dispatch
dividend warrant within 30 days from its declaration. Accordingly, when company declare
dividend in its AGM on 27th September, 2018, it should be paid or warrant shall be
dispatched on or before 27th October 2018.
As per section 9 of General Clauses Act, 1897, in computing time, it suggests to exclude
first day and to include last day of series of day. Accordingly, company is required to pay
dividend declared within 30 days from date of declaration Le., from 28th September, 2018
to 27th October, 2018. In this series of 30 days, 27th September, 2018 will be excluded and
last 30th day Le. 27th October, 2018 will be included.
(ii) If dividend is not paid or not claimed within 30 days from date of declaration, the
company must transfer the unclaimed amount to separate bank account within period of 7
days after expiry of 30 days.
Que 12. State the meaning of ‘Affidavit’ as per the provisions of the General Clauses Act, 1897.
Ans As per Section 3(3) of the General Clauses Act, 1897, ‘Affidavit’ shall include affirmation
and declaration in the case of persons by law allowed to affirm or declare instead of
swearing.
There are two important points derived from the above definition:
 Affirmation and declaration.
 In case of persons allowed affirming or declaring instead of swearing.
The above definition is inclusive in nature. It states that Affidavit shall include affirmation
and declarations. This definition does not define affidavit. However, we can understand this
term in general parlance. Affidavit is a written statement confirmed by oath or affirmation
for use as evidence in Court or before any authority.
Que 13. State what do you understand by the term ‘document’ as per the General Clauses Act, 1897?
Discuss which of the following will be treated as document?
(i) Power of attorney

Cheque
Ans Document [Section 2(18)]: "Document" shall include any matter written, expressed or
described upon any substance by means of letters, figures or marks, or by more than one
of those means which is intended to be used, or which may be used, for the purpose of
recording that matter.
Thus, the term “Document” include any substance upon which any matter is written or
expressed by means of letters or figures for recording that matter. For example, book, file,
painting, inscription and even computer files are all documents.
Thus, Power of attorney & ‘cheque’ both are documents within the meaning of Section 2(18)
of the General Clauses Act, 1897.
Que 14. When a thing said to be done in ‘good faith’?
Ans As per Section 3(22) of the General Clauses Act, 1897, a thing shall be deemed to be done
in "good faith" where it is in fact done honestly, whether it is done negligently or not.
The definition of good faith in the General Clauses Act is more liberal than that in the Indian
Penal Code or the Limitation Act. Under the Indian Penal Code, 1860 a thing will not be
deemed to have been done in good faith if it is done negligently, although honestly. Under
Section 2(7) of the Limitation Act, 1963, nothing will be deemed to have been done in good
faith which is not done with due care and attention.
In ordinary parlance good faith is opposed to had faith and not to negligence and so where
it is necessary to depart from the accepted meaning of the term it would be better to make
express provision in that behalf. The General Clauses Act, 1897 lays emphasis on one aspect
only, namely, honestly.
Que 15. Repeal’ of provision is in distinction from ‘deletion’ of provision. ‘
Ans ‘Repeal’ ordinarily brings about complete obliteration of the provision as if it never existed,
thereby affecting all incoherent rights and all causes of action related to the ‘repealed’
provision while ‘deletion’ ordinarily takes effect from the date of legislature affecting the said
deletion, never to effect total effecting or wiping out of the provision as if it never existed.
For the purpose of this section, the above distinction between the two is essential.
Que 16. Explain any four effects of repeal of an existing Act by the Central Legislation enumerated
in Section 6 of the General Clauses Act, 1897?
Ans Effect of repeal [Section 6]: Where this Act, or any Central Act or Regulation made after
the commencement of this Act, repeals any enactment hitherto made or hereafter to be
made, then, unless a different intention appears –
(a) The repeal shall not revive anything not in force or existing at the time at which the
repeal takes effect.
(b) The repeal shall not affect the previous operation of any enactment so repealed or
anything duly done or suffered thereunder.
(c) The repeal shall not affect any right, privilege, obligation or liability acquired, accrued or
incurred under any enactment so repealed.
(d) The repeal shall not affect any penalty, forfeiture or punishment incurred in respect of
any offence committed against any enactment so repealed.
(e) The repeal shall not affect any investigation, legal proceeding or remedy in respect of any
such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
Any investigation, legal proceeding or remedy may be instituted, continued or enforced, and
any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or
Regulation had not been passed.
In State of Uttar Pradesh v. Hirendra Pal Singh, (2011), 5 SCC 305, SC held that whenever
an Act is repealed, it must be considered as if it had never existed. Object of repeal is to
obliterate the Act from statutory books, except for certain purposes as provided under
Section 6 of the Act.
In Kolhapur Canesugar Works Ltd. V, Union of India, AIR 2000, SC 811, Supreme Court held
that Section 6 only applies to repeals and not to omissions and applies when the repeal is
of a Central Act or Regulation and not of a Rule.
General Clauses Act, 1897 4.8
Chapter
4 General Clauses Act, 1897
Introduction: The General Clauses Act, 1897 belongs to the class of Acts which may be called
as ‘Interpretation Acts’. An interpretation Act lays down the basic rules as to how Courts
should interpret the provisions of an Act of Parliament.
It also defines certain words or expressions so that there is no unnecessary repetition of the
definition of those words in other Acts. In other words, an Interpretation Act provides a
standard set of definitions or extended definitions of words and an expression commonly used
in legislation (and is thus an Act of wide application). It also provides a set of rules which
regulate certain aspects of operation of other enactments. In addition there are other provisions
which are not merely definitions or rules of construction but substantive rules of law, such as
the provisions relating to the effect of the repeal of an Act.
The General Clauses Act, 1897 was enacted on 11th March, 1897 to consolidate and extend the
General Clauses Act, 1868 and 1887.
Introduction, Objects & Importance
Que. No. 1] Write a short note on: Objects & importance of the General Clauses Act, 1897
Ans.: The General Clauses Act, 1897, may be described as the draftsman's Act. It is the utmost
importance to him for the purposes of his craft.
Its objects are –
 To shorten the language of statutory enactments.
 To provide for uniformity of expression giving prima facie definitions of a series of terms in
common use
 To state explicitly certain common rules of construction.
 To guard against slips and oversights by incorporating by implication into every Act certain
standard clauses which otherwise would have to be inserted expressly and which might
otherwise have been overlooked.
In short, the value and utility of the General Clauses Act, 1897 is considerable, because it not
only constitutes the reference book of the judge when dealing with statutes, but also serves as
the draftsman's labour-saving device. It lays down rules which would have been tedious to
repeat in every statute, thus shortening the language of legislative enactments.
Que. No. 2] Write a detailed note on: History of the General Clauses Act, 1897
Ans.: History of legislation: The General Clauses Act, 1868 was the earliest Act to be passed in
India with the avowed object of shortening the language of Acts of the Governor-General in
Council. This Act was an adaptation with modifications of Lord Brougham's Act, which was
passed in 1850.
The General Clauses Act, 1887 supplemented the earlier Act by defining a few more words in
common use and laying down certain new rules of construction.
In so far as these two Acts contained statutory definitions, it was obviously expedient that the
legislative dictionary, as it may be called, should be combined in a single enactment and similar
considerations could equally well have applied to the rules of construction also. In the process
of consolidating these two Acts, additions suggested by subsequent experience and the

provisions contained in the Interpretation Act, 1889, of the United Kingdom came to be
incorporated. The General Clauses Act, 1897, was drafted by Sir C. Ilbert and is in effect a
careful revision and extension of the Interpretation Act, 1889. Although the provisions of the
earlier Indian Acts have been incorporated in the General Clauses Act, 1897, they may still be
needed for the interpretation of the enactments of the Central legislative authority passed
before 1897.
Need for further amendment: Later experience suggests the need for a further revision of the
General Clauses Act. For example, the Act could very well include a general provision with
respect to the extent of application of Central Act, thereby eliminating the necessity for extent
clauses except where absolutely necessary. The legal significance of marginal notes,
punctuation marks and the like could very well be defined by legislation instead of being left to
case-law. How far Government is to be regarded as bound by enactments, which it helps to
pass, could also be clarified. The legal effects which follow on the expiration of temporary
statutes could be suitably defined and definitions of a general nature, which are still to be
found in other enactment, (example – "Public Servant" in the Indian Penal Code, 1860) could
very well be transferred to this Act. Other clauses which of late have to be repeated in many
central enactments (for instance, punishment of companies for offences committed by them,
the necessity for, and the consequences flowing from laying before Parliament of rules made by
the Central Government under power given to it by the statute under which they are made)
could also be considered for inclusion in a more comprehensive General Clauses Act. Such an
Act could more appropriately be named the Interpretation and General Clauses Act. The
present Act contains more rules of interpretation then common form clauses, but no change
has so far been attempted in the tide although in other countries the corresponding Act is
generally cited as the Interpretation Act. The Law Commission, however, has not recommended
any change in the tide.
Que. No. 3] Write a short note on: Application of the General Clauses Act, 1897
The General Clauses Act, 1897 is a part of every Central Acts or Regulations. Comment.
Ans.: The General Clauses Act, 1897 does not define any “territorial extent” clause. Its
application is primarily with reference to all Central legislation and also to Rules and
Regulations made under a Central Act. It is in a sense a part of every Central Acts or
Regulations. If a Central Act is extended to any territory, the General Clauses Act would also
deemed to be applicable in that territory and would apply in the construction of that Central
Act.
The provisions of the General Clauses Act are mere rules of interpretation and it applies
automatically in each and every case.
The Supreme Court had observed in the case of Chief Inspector of Mines vs. K. C. Thapar,
“whatever the General Clauses Act says, whether as regards the meanings of words or as
regards legal principles, has to be read into every Act to which it applies.”
The Scope and effect of each section depends upon the text of the particular section.
Example: Section 3 of the General Clauses Act, which deals with the definitional clause, applies
to the General Clauses Act itself and to all Central Acts and Regulations. Similarly, Section 4
which deals with the application of foregoing definitions to previous enactment, applies to
Central Acts and after January 3, 1868 and to regulations made after January 14, 1887.
So there is a difference in the applicability of each section as regards the statutes to which it
applies.
The language of each section of the General Clauses Act has to be referred to ascertain to which
class of instruments or enactment it applies. In certain cases, even if no section of the General
Clauses Act applies to particular case, the Court applies the general principles of the General
Clauses Act.
It may also be noted that though Act does not, in terms apply to State laws, it is evident that
the State General Clauses Acts should conform to the General Clauses Act, 1897, otherwise
divergent rules of construction and interpretation would apply and it may result in confusion.

Que. No. 4] The General Clauses Act, 1897 belongs to the class of Acts which may be
called as ‘Interpretation Act’. Comment.
Ans.: The General Clauses Act, 1897 belongs to the class of Acts which may be called as
interpretation Acts. In many countries, Legislatures similar to the General Clauses Act are called
Interpretation Acts.
An interpretation Act lays down the basic rules as to how courts should interpret the provisions
of an Act of Parliament. It also defines certain words or expressions so that there is no
unnecessary repetition of definition of those words in other Acts. In other words, an
Interpretation Act provides a standard set of definitions or extended definitions of words and
expressions which are commonly used in legislation. It also provides a set of rules which
regulate certain aspects of operation of other enactments. In addition there are other provisions
which are not merely definitions or rules of construction but substantive rules of law.
Definitions as per the General Clauses Act, 1897
Abet [Section 3(1)]: “Abet” with its grammatical variations and cognate expressions, shall have the
same meaning as in the Indian Penal Code, 1860.
Act [Section 3(2)]: “Act”, used with reference to an offence or a civil wrong, shall include a series of
acts, and words which refer to acts done extend also to illegal omissions.
Affidavit [Section 3(3)]: “Affidavit” shall include affirmation and declaration in the case of persons by
law allowed to affirm or declare instead of swearing.
Barrister [Section 3(4)]: "Barrister" shall mean a barrister of England or Ireland, or a member of the
Faculty of Advocates in Scotland.
British India [Section 3(5)]: "British India" shall mean, as respects the period before the
commencement of Part III of Government of India Act, 1935, all territories and places within His
Majesty's dominions which were for the time king governed by His Majesty through the Governor
General of India or through any Governor or Officer subordinate to the Governor General of India, and
as respects any period after that date and before the date of establishment of the Dominion of India
means all territories for the time being comprised within the Governor' Provinces and the Chief
Commissioners' Provinces, except that a reference to British India in an Indian law passed or made
before the commencement of Part III of the Government of India Act, 1935, shall not include a reference
to Bearer.
British Possession [Section 3(6)]: "British Possession" shall mean any part of Her Majesty's dominions
exclusive of the United Kingdom, and where parts of those dominions are under both a Central and a
Local Legislature, all part under the Central Legislature shall, for the purposes of this definition, be
deemed to be one British possession.
Central Act [Section 3(7)]: "Central Act" shall means an Act of Parliament and shall include –
(a) An Act of the Dominion legislature or of the Indian Legislature passed before the commencement of
the Constitution, and
(b) An Act made before such commencement by the Governor General in Council or the Governor
General, acting in a legislative capacity.
Central Government [Section 3(8)]: "Central Government" shall –
(a) In relation to anything done before the commencement of the Constitution, mean the Governor
General or the Governor General in Council, as the case may be; and shall include –
(i) In relation to functions entrusted under Section 124(1) of the Government of India Act, 1935, to
the Government of a Province, the Provincial Government acting within the scope of the
authority given to it under that sub-section; and
(ii) in relation to the administration of a Chief Commissioner’s Province, the Chief Commissioner
acting within the scope of the authority given to him under sub-section (3) of section 94 of the
said Act; and
(b) In relation to anything done or to be done after the commencement of the Constitution, mean the
President; and shall include –
(i) in relation to Functions entrusted under article 258(1) of the Constitution, to the Government of
a State, the State Government acting within the scope of the authority given to it under that

clause;
(ii) In relation to the administration of a Part C State before the Commencement of the Constitution
(Seventh Amendment) Act, 1956, the Chief Commissioner or the Lieutenant-governor or the
Government of a neighboring State or other authority acting within the scope of the authority
acting within the authority given to him or it under Article 239 or Article 243 of the
Constitution, as the case may be; and
(iii) In relation to the administration of a Union territory, the administrator thereof acting within the
scope of the authority given to him under article 239 of the Constitution.
Chapter [Section 3(9)]: "Chapter” shall mean a Chapter of the Act or Regulation in which the word
occurs.
Chief Controlling Revenue Authority [Section 3(10)]: "Chief Controlling Revenue Authority" or "Chief
Revenue Authority" shall mean –
1. In a State where there is a Board of Revenue, that Board;
2. In a State where there is a Revenue Commissioner, that Commissioner;
3. In Punjab, the Financial Commissioner; and
4. elsewhere, such authority as, in relation to matters enumerated in List I in the Seventh Schedule to
the Constitution, the Central Government, and in relation to other matters, the state Government,
may by notification in the Official Gazette, appoint.
Collector [Section 3(11)]: ''Collector" shall mean, in a Presidency-town, the Collector of Calcutta,
Madras or Bombay, as the case may be, and elsewhere the chief officer-in-charge of the revenue-
administration of a district.
Colony [Section 3(12)]: Colony –
(a) In any Central Act passed after the commencement of Part III of the Government of India Act, 1935,
shall mean any part of His Majesty's dominions exclusive of the British Islands, the Dominions of
India and Pakistan (and before the establishment of those Dominions, British India), any Dominions
as defined in the Statute of Westminster, 1931, any Province or State forming part of any of the said
Dominions, and British Burma; and
(b) In any Central Act passed before the commencement of Part III of the said Act, mean any part of His
Majesty's dominions exclusive of the British Islands and of British India and in either case where
parts of those dominions are under both a Central and Local Legislature, all parts under the Central
Legislature shall, for the purposes of this definition, be deemed to be one colony.
Commencement [Section 3(13)]: "Commencement" used with reference to an Act or regulation, shall
mean the day on which the Act or regulation comes into force.
Commissioner [Section 3(14)]: "Commissioner" shall mean the chief officer-in-charge of the revenue
administration of a division;
Constitution [Section 3(15)]: "Constitution" shall mean the Constitution of India.
Consular Officer [Section 3(16)]: "Consular Officer" shall include consul-general, consul, vice-consul,
consular agent, pro-consul and any person for the time being authorized to perform the duties of
consul-general, consul, vice-consul or consular agent.
District Judge [Section 3(17)]: "District Judge" shall mean the Judge of a principal civil court of
original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary
original civil jurisdiction.
Document [Section 3(18)]: "Document" shall include any matter written, expressed or described upon
any substance by means of letters, figures or marks, or by more than one of those means which is
intended to be used, or which may be used, for the purpose of recording that matter.
Enactment [Section 3(19)]: "Enactment" shall include a regulation and any regulation of the Bengal,
Madras or Bombay Code, and shall also include any provision contained in any Act or in any such
regulation as aforesaid.
Father [Section 3(20)]: "Father", in the case of any one whose personal law permits adoption, shall
include an adoptive father.
Financial Year [Section 3(21)]: "Financial Year" shall mean the year commencing on the first day of
April.
Good Faith [Section 3(22)]: A thing shall be deemed to be done in "good faith" where it is in fact done
honestly, whether it is done negligently or not.
Government [Section 3(23)]: "Government" or "the Government" shall include both the Central

Government and any State Government.

Government Securities [Section 3(24)]: "Government securities" shall mean securities of the Central
Government or of any State Government, but in any Act or regulation made before the commencement
of the Constitution shall not include securities of the government of any Part B State.
High Court [Section 3(25)]: "High Court", used with reference to civil proceedings, shall mean the
highest civil court of appeal (not including the Supreme Court) in the part of India in which the Act or
regulation containing the expression operates.
Immovable Property [Section 3(26)]: "Immovable Property" shall include land, benefits to arise out of
land, and things attached to the earth, or permanently fastened to anything attached to the earth.
Imprisonment [Section 3(27)]: "Imprisonment" shall mean imprisonment of either description as
defined in the Indian Penal Code, 1860.
India [Section 3(28)]: "India" shall mean –
(a) as respects any period before the establishment of the Dominion of India, British India together with
all territories of Indian Rulers then under the suzerainty of His Majesty, all territories under the
suzerainty of such an Indian Ruler, and the tribal areas;
(b) as respects any period after the establishment of the Dominion of India and before the
commencement of the Constitution, all territories for the time being included in that Dominion; and
(c) as respects any period after the commencement of the Constitution, all territories for the time being
comprised in the territory of India.
Indian Law [Section 3(29)]: "Indian Law" shall mean any Act, ordinance, regulation, rule, order, bye-
law or other instrument which before the commencement of the Constitution had the force of law in any
Province of India or part thereof, or thereafter has the force of law in any Part A State or Part C State or
Part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council,
rule or other instrument made under such Act.
Indian State [Section 3(30)]: "Indian State" shall mean any territory which the Central Government
recognized as such a State before the commencement of the Constitution, whether described as a State,
an Estate, a Jagir or otherwise.
Local Authority [Section 3(31)]: "Local Authority" shall mean a municipal committee, district board,
body of port commissioners or other authority legally entitled to, or entrusted by the government with
the control or management of a municipal or local fund;
Magistrate [Section 3(32)]: "Magistrate" shall include every person exercising all or any of the powers of
a Magistrate under the Code of Criminal Procedure for the time being in force.
Master [Section 3(33)]: "Master", used with reference to a ship, shall mean, any person (except a pilot
or harbor-master) having for the time being control or charge of the ship.
Merged Territories [Section 3(34)]: "Merged Territories" shall mean the territories which by virtue of an
order made u/s 290A of the Government of India Act, 1935, were immediately before the
commencement of the Constitution being administered as if they formed part of a Governor’s Province or
as if they were a Chief Commissioner's Province.
Month [Section 3(35)]: "Month" shall mean a month reckoned according to the British calendar.
Movable Property [Section 3(36)]: "Movable Property" shall mean property of every description, except
immovable property.
Oath [Section 3(37)]: "Oath" shall include affirmation and declaration in the case of persons by law
allowed to affirm or declare instead of swearing.
Offence [Section 3(38)]: "Offence" shall mean any act or omission made punishable by any law for the
time being in force.
Official Gazette [Section 3(39)]: "Official Gazette" or "Gazette" shall mean the Gazette of India or the
Official Gazette of a State.
Part [Section 3(40)]: "Part" shall mean a part of the Act or regulation in which the word occurs.
Part A State [Section 3(41)]: "Part A State" shall mean a State for the time being specified in Part A of
Schedule I to the Constitution, as in force before the Constitution (7th Amendment) Act, 1956, "Part B
State" shall mean a State for the time being specified in Part B of that Schedule and "Part C State" shall
mean a State for the time being specified in Part C of that Schedule or a territory for the time being
administered by the President under the provisions of Article 243 of the Constitution.
Person [Section 3(42)]: "Person" shall include any company or association or body of individuals,
whether incorporated or not.

Political Agent [Section 3(43)]: "Political Agent" shall mean,-

(a) in relation to any territory outside India, the Principal Officer, by whatever name called, representing
the Central Government in such territory; and
(b) in relation to any territory within India to which the Act or regulation containing the expression does
not extend, any officer appointed by the Central Government to exercise all or any of the powers of a
Political Agent under that Act or regulation.
Presidency-town [Section 3(44)]: "Presidency-town" shall mean the local limits for the time being of the
ordinary original civil jurisdiction of the High Court of Judicature at Calcutta, Madras or Bombay, as the
case may be.
Province [Section 3(45)]: "Province" shall mean a Presidency, a Governor's Province, a Lieutenant
Governor’s Province or a Chief Commissioner’s Province.
Provincial Act [Section 3(46)]: "Provincial Act" shall mean an Act made by the Governor in Council,
Lieutenant Governor in Council or Chief Commissioner in Council of a Province under any of the Indian
Councils Acts or the Government of India Act, 1915, or an Act made by the Local Legislature or the
Governor of a Province under the Government of India Act, or an Act made by the Provincial Legislature
or Governor of a Province or the Coorg Legislative Council under the Government of India Act, 1935.
Provincial Government [Section 3(47)]: "Provincial Government" shall mean, as respects anything
done before the commencement of the Constitution, the authority or person authorized at the relevant
date to administer executive government in the Province in question.
Public nuisance [Section 3(48)]: "Public nuisance" shall mean a public nuisance as defined in the
Registered [Section 3(49)]: "Registered", used with reference to a document, shall mean registered in
India under the law for the time being in force for the registration of documents.
Regulation [Section 3(50)]: "Regulation" shall mean a Regulation made by the President under article
240 of the Constitution and shall include a Regulation made by the President under Article 243 thereof
and a regulation made by the Central Government under the Government of India Act, 1870, or the
Government of India Act, 1915, or the Government of India Act, 1935.
Rule [Section 3(51)]: "Rule" shall mean a rule made in exercise of a power conferred by any enactment,
and shall include a Regulation made as a rule under any enactment.
Schedule [Section 3(52)]: "Schedule" shall mean a schedule to the Act or Regulation in which the word
occurs.
Scheduled District [Section 3(53)]: "Scheduled District" shall mean a "Scheduled District" as defined
in the Scheduled District Act, 1874.
Section [Section 3(54)]: "Section" shall mean a section of the Act or Regulation in which the word
occurs.
Ship [Section 3(55)]: "Ship" shall include every description of vessel used in navigation not exclusively
propelled by oars.
Sign [Section 3(56)]: "Sign", with its grammatical variations and cognate expressions, shall, with
reference to a person who is unable to write his name, include "mark", with its grammatical variations
and cognate expressions.
Son [Section 3(57)]: "Son", in the case of any one whose personal law permits adoption, shall include
an adopted son.
State [Section 3(58)]: "State" –
(a) as respects any period before the commencement of the Constitution (7th Amendment) Act, 1956,
shall mean a Part A State, a Part B State or a Part C State; and
(b) as respects any period after such commencement, shall mean a State specified in Schedule I to the
Constitution and shall include a Union Territory.
State Act [Section 3(59)]: "State Act" shall mean an Act passed by the Legislature of a State established
or continued by the Constitution.
State Government [Section 3(60)]: "State Government" –
(a) As respects anything done before the commencement of the Constitution, shall mean, in a Part A
State, the Provincial Government of the corresponding Province, in a Part B State, the authority or
person authorized at the relevant date to exercise executive government in the corresponding
Acceding State, and in a Part C State, the Central Government;
(b) As respects anything done after the commencement of the Constitution and before the

commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a Part A State,
the Governor in a Part B State, the Rajpramukh, and in a Part C State, the Central Government;
(c) As respects anything done or to be done after the commencement of the Constitution (Seventh
Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union Territory, the Central
Government; and shall, in relation to functions entrusted under Article 258A of the Constitution to
the Government of India, include the Central Government acting within the scope of the authority
given to it under that article.
Sub-section [Section 3(61)]: "Sub-section" shall mean a sub-section of the section in which the word
occurs.
Swear [Section 3(62)]: "Swear", with its grammatical variations and cognate expressions, shall include
affirming and declaring in the case of persons by law allowed to affirm or declare instead of swearing.
Union Territory [Section 3(62A)]: "Union Territory" shall mean any Union Territory specified in
Schedule I to the Constitution and shall include any other territory comprised within the territory of
India but not specified in that Schedule.
Vessel [Section 3(63)]: "Vessel" shall include any ship or boat or any other description of vessel used in
navigation.
Will [Section 3(64)]: "Will" shall include a codicil and every writing making a voluntary posthumous
disposition of property.
writing [Section 3(65)]: Expression referring to "writing" shall be construed as including references to
printing, lithography, photography and other modes of representing or reproducing words in a visible
form.
Year [Section 3(66)]: "Year" shall mean a year reckoned according to the British calendar.
Que. No. 5] State the meaning of ‘Affidavit’ as per the provisions of the General Clauses
Act, 1897.
Ans.: As per Section 3(3) of the General Clauses Act, 1897, ‘Affidavit’ shall include affirmation
and declaration in the case of persons by law allowed to affirm or declare instead of swearing.
There are two important points derived from the above definition:
 Affirmation and declaration.
 In case of persons allowed affirming or declaring instead of swearing.
The above definition is inclusive in nature. It states that Affidavit shall include affirmation and
declarations. This definition does not define affidavit. However, we can understand this term in
general parlance. Affidavit is a written statement confirmed by oath or affirmation for use as
evidence in Court or before any authority.
Que. No. 6] Write short note on: Chief Controlling Revenue Authority
Ans.: Chief Controlling Revenue Authority [Section 3(10)]: "Chief Controlling Revenue Authority"
or "Chief Revenue Authority" shall mean –
5. In a State where there is a Board of Revenue, that Board;
6. In a State where there is a Revenue Commissioner, that Commissioner;
7. In Punjab, the Financial Commissioner; and
elsewhere, such authority as, in relation to matters enumerated in List I in the 7th Schedule to
the Constitution, the Central Government, and in relation to other matters, the State
Government, may by notification in the Official Gazette, appoint.
In some of the older enactments, these expressions were used without definitions or special definitions
were inserted for the purpose. The Government of India (Adaptation of Laws) Order, 1937, inserted a
general definition and this has been continued with further modifications as a result of constitutional
changes.
The power of the Chief Controlling Revenue Authority, say under the Stamp Act, 1899, cannot be
exercised by any other authority as his delegate unless statutory provision exists for such delegation.
In some States Collectors are known as Deputy Commissioners. They are not Courts, although they may
have to take decisions on certain matters.
Although the General Clauses Act was not extended to the State of Mysore by the Part B States (Laws)

Act, 1951, the Supreme Court held that this definition could be applied in the interpretation of the
expression "collector" in the Cotton Cess Act, 1923 and therefore the Deputy Commissioner could
exercise the powers of a collector under section 7 of the Act aforesaid, he being the chief officer in charge
of the revenue administration of the district.
Que. No. 7] State what do you understand by the term ‘document’ as per the General
Clauses Act, 1897? Discuss which of the following will be treated as document?
(i) Power of attorney
(ii) Cheque
Ans.: Document [Section 2(18)]: "Document" shall include any matter written, expressed or
described upon any substance by means of letters, figures or marks, or by more than one of
those means which is intended to be used, or which may be used, for the purpose of recording
that matter.
Thus, the term “Document” include any substance upon which any matter is written or
expressed by means of letters or figures for recording that matter. For example, book, file,
painting, inscription and even computer files are all documents.
Thus, Power of attorney & ‘cheque’ both are documents within the meaning of Section 2(18) of
the General Clauses Act, 1897.
Que. No. 8] Financial Year and Calendar Year are same. Discuss as per the provisions of
the General Clauses Act, 1897.
Ans.: As per Section 3(21) of the General Clauses Act, 1897, financial year shall mean the year
commencing on the first day of April.
As per Section 3(66) of the General Clauses Act, 1897 ‘Year’ shall mean a year reckoned
according to the British calendar. Thus, as per General Clauses Act, 1897, ‘Year’ means
calendar year which starts from January to December.
Thus, we can see ‘financial year’ starts from first day of April but ‘calendar year’ starts from
first day of January. Hence, financial year and calendar year are not same.
Que. No. 9] When a thing said to be done in ‘good faith’?
Ans.: As per Section 3(22) of the General Clauses Act, 1897, a thing shall be deemed to be done
in "good faith" where it is in fact done honestly, whether it is done negligently or not.
The definition of good faith in the General Clauses Act is more liberal than that in the Indian
Penal Code or the Limitation Act. Under the Indian Penal Code, 1860 a thing will not be
deemed to have been done in good faith if it is done negligently, although honestly. Under
Section 2(7) of the Limitation Act, 1963, nothing will be deemed to have been done in good faith
which is not done with due care and attention.
In ordinary parlance good faith is opposed to had faith and not to negligence and so where it is
necessary to depart from the accepted meaning of the term it would be better to make express
provision in that behalf. The General Clauses Act, 1897 lays emphasis on one aspect only,
namely, honestly.
Que. No. 10] What do you understand buy the term ‘immovable property’ under the
General Clauses Act, 1897?
Ans.: As per Section 3(26) of the General Clauses Act, 1897, "Immovable Property" shall include
–
(a) Land,
(b) Benefits to arise out of land,
(c) Things attached to the earth or
(d) Things permanently fastened to anything attached to the earth.

It is an inclusive definition. It contains four elements: land, benefits to arise out of land, things
attached to the earth and things permanently fastened to anything attached to the earth.
Where, in any enactment, the definition of immovable property is in the negative and not
exhaustive, the definition as given in the General Clauses Act, 1897 will apply to the expression
given in that enactment.
Example 1: Trees are immovable property because trees are benefits arise out of the land and
attached to the earth. However, timber is not immovable property as the same are not
permanently attached to the earth. In the same manner, buildings are immovable property.
Example 2: Right of way to access from one place to another may come within the definition of
immovable property whereas to right to drain of water is not immovable property.
Right to catch fish: A claim of the right to catch fish came under the consideration in Ananda Behera
v. State of Orissa, AIR 1956 SC 17. In this case, the petitioners had obtained oral licenses for catching
and appropriating fish from the specified sections of the Chilka Lake from the Raja of Parikud, on
payment of heavy sums. They were prohibited from fishing in specified areas by the enactment of the
Orissa Estates Abolition Act, 1951. They contended that the said Act, which was confined to immovable
property, had no application on them. They claimed that their transactions were of sales of future
goods, namely, the fish. They contended that the fish is a movable property. The Court tended to decide
whether the right to catch or carry fish is a movable or immovable property. It observed that the right
to catch and carry away fish in specific portions of the lake over a specified future period amounts to a
license to enter on the land coupled with a grant to catch and carry away the fish. It was not a right to
purchase of any future goods as claimed by the petitioners. The Court construed the “right to catch or
carry fish” as an immovable property.
Trees & Standing Timber: In Shantabai v. State of Bombay, AIR 1958 SC 532, the Court was
concerned with the question whether the standing timber falls under the category of immovable
property. In the instant case, the Zamindar of Pandharpur has executed an unregistered document in
favour of his wife. The deed gave her the right to enter upon certain areas in the Zamindari in order to
cut and take out the bamboos, fuel wood and teak. In 1950, the State of Madhya Pradesh enacted The
Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950.
According to the Section 3 of the said Act, all the proprietary rights in the land were vested in the State.
Accordingly, she was prevented from cutting the trees. Subsequently, she claimed that her
fundamental right to cut and collect timber in the forests in question has been infringed. In the light of
the definitions of the Section 3(26) of the General Clauses Act, Section 3 of the Transfer of Property Act,
1882 and Section 2(6) of the Registration Act, 1908 the Court pronounced that the ‘trees’ are regarded
as immovable property because they are attached to or rooted in the earth. Therefore, the trees except
the standing timber are immovable property.
Manure: The Court was concerned whether the document under consideration is or is not liable to
stamp duty in Haji Sukhan Beg v. Board of Revenue, AIR 1979 All 310. In the instant case, there was an
agreement between the Municipal Board of Bareilly and the contractor Haji Sukhan Beg. The Municipal
Board granted the right to take out by digging of manure and rubbish accumulated in trenches and
drains within the municipal area of Bareilly for a period of 3 years in lieu of periodical payments. On
taking possession, the contractor found that there was only mud instead of manure in a number of
trenches and drains. Thus he suffered lost. In order to compensate the loss, the board entered into an
agreement to extend the period. But the Board of Revenue considered the instrument as an agreement
of lease of immovable property and required the contractor to pay the stamp duty. The Court observed
that a right to take out by digging manure and rubbish accumulated in specific trenches and drains
and carrying away the same and sell it amounts to a benefit arising out of land and as such it is
immovable property. Thus, the said agreement was construed to be a subject matter relating to
immovable property.
Right to Worship: There came a need for the court to determine whether hereditary office of Shebait
enjoyed by a person is movable or immovable property in Ram Rattan v. Bajrang Lal, AIR 1978 SC
1393. According to the prevalent practice, a person inherits the right to worship by turn for 10 days in
a circuit of 18 months in Kalyanji Maharaj Temple. During the said period, the person is entitled to
officiate as Pujari and receive all the offering made to the deity. In the instant case, Mrs. Acharaj, who
had inherited the said right, transferred it with its ancillary rights to plaintiff Ram Rattan. She, who
died during the case, had executed it by means of a deed. A legal dispute ensued on account of it. The

plaintiff-appellant, who died pending the appeal, sought a declaration to his right of worship by turn.
He had produced the disputed document as his evidence. The defendants raised an objection that
document was not duly stamped and registered. The Court examined whether the right to worship by
turn is immovable property. It can be concluded that the hereditary office of Shebait, which would be
enjoyed by the person by turn, was construed to be immovable property.
Machinery: The nature of the machinery of a groundnut decorticating factory was decided in J.
Kuppanna Chetty, Ambati.v. Collector of Anantapur, AIR 1965 AP 457. Default in payment of income tax
arrears, the groundnut decorticating factory of the plaintiff was locked and sealed under Section 25 the
Madras Revenue Recovery Act. As the machinery was under attachment, the plaintiffs could not be
permitted to carry on the decorticating operations. When they furnished the security in pursuit of the
High Court order, the lease period had expired, and hence the factory was not released. As they
suffered loss, they filed a suit against them for adopting an unlawful procedure. The Court was
concerned with the issue whether the property in question is movable property or immovable property.
As there is no definition of the land or building under the Madras Revenue Recovery Act,1864 the Court
referred to the definitions of Section 3(14) of the Madras General Clauses Act,1867, Section 3 of the
Transfer of Property Act, 1882 and Section 2(6) and 2(9) of the Registration Act, 1908. On a combined
reading of the above provisions and by reference to the judgment of Mohammed Ibrahim v. Northern
Circars Fibre Trading Co.,23 the court held that machinery as immovable property. The Court declared
that the attachment as illegal.
Question 11] X orally grants to Y for `7,00,000 the rights to catch and carry away fish
from his lake. Is the grant valid?
Ans.: The Supreme Court in Ananda Behra v. State of Orissa, AIR 1956 SC 17, held that rights
to catch and carry away fish from his lake is a benefit arising out of immovable property. So,
under the General Clauses Act, 1897 it is immovable property. The sale requires a registered
instrument for its validity. Therefore, the oral grant is invalid and cannot pass away any title in
favour of Y.
Que. No. 12] What do you understand buy the term ‘movable property’ under the General
Clauses Act, 1897?
Write a short note on: Movable Property
Ans.: The movable property has been defined in Section 3(36) of the General Clauses Act, 1897
as “property of every description except immovable property”. The Registration Act, 1908
defines movable property “to include property of every description except immovable property,
but including standing timber, growing crops and grass”.
It has to be mentioned that if the Transfer of Property Act, 1882 applies to the transfer of
immovable property, the Sale of Goods Act applies to the sale of certain movable property, being
goods.
The Section 2(7) of the Sale of Goods Act, 1930 defines ‘goods’ to mean every kind of movable
property. It is wide enough to include all types of movable property other than what is expressly
excluded. If a particular property cannot be termed as goods then the Act does not apply to the
same.
According to the General Clauses Act, 1897, things attached to or forming part of the land are
treated as immovable property. However, the Sale of Goods Act, 1930 states that they have
been agreed to be severed before or under the Contract of sale, and then they become goods.
Live Stock: In K. Srinivasulu v. Deputy Commercial-Tax Officer, (1975) Tax L R.1791, the petitioners,
who were dealers in goats and sheep, were assessed to sales tax by the Commercial Tax Officer on the
basis of their income tax return. They contended that though the live-stock such as goats and sheep
constituted movable property, still it could not be considered to be goods. The thrust of their argument
was on the definition of the clause (12) of Article 366 of the Constitution. The clause included only the
inanimate object but not the live-stock. The Court proceed to determine whether live-stock fall under
"goods" within the meaning of Section 2(h) of the Andhra Pradesh General Sales Tax Act, 1957. It
interpreted the meaning of the expression "movable property” in the light of the Section 3(19) of the

Andhra Pradesh General Clauses Act, 1891. It found the definition of “goods” under Clause (12) Article
366, to be an inclusive one. The learned judge observed that 'All kinds of movable property' is
comprehensive enough to include within its ambit both animate as well as inanimate kinds of movable
properties. Hence, the livestock “goats and sheep” came under the category of movable property.
Question 13] Distinguish between: Movable & Immovable Property

CS (Inter) – June 1989 (7.5 Marks)
Ans.: Following are the main points of difference between movable & immovable property:
Points Movable Property Immovable Property
Definition Movable Property shall mean property of Immovable Property shall include land,
in General every description, except immovable benefits to arise out of land, and things
Clauses property. [Section 3(36)] attached to the earth, or permanently
Act, 1897 fastened to anything attached to the earth.
[Section 3(26)]
Definition The expression ‘movable property’ is not Section 3 of the Transfer of Property Act,
in TP Act, defined by the Transfer of Property Act, 1882 defines the term ‘immovable property’
1882 1882. negatively; it says that immovable property
does not include standing timber, growing
crops or grass.
Example The following have been held to be movable The following have been held to be
property. immovable property.
 Right to worship  Right to collect rents of immovable
 Government promissory notes property
 Royalty  Right to way
 Right to recover maintenance allowance  Right to collect dues from fair on a piece
 Copyright of land
 Decree for sale on a mortgage-deed  Hereditary offices
 Decree for arrears of rent  Equity of redemption
 Machinery which is not permanently  Interest of mortgagee
attached to earth  Right to collect lac from trees
 Standing timber, growing crop and grass  Right of ferry
 Right of fishery
 Right to receive future rents and profits
of land
 Reversion in property leased a factory
Question 14] Which of the following are movable or immovable properties under the
General Clauses Act, 1897:
(1) a right to way
(2) a factory
(3) a right to collect lac from trees
(4) hereditary offices
(5) growing crops
(6) standing timber CS (Inter) – Dec 2006 (6 Marks)
Ans.:
(1) a right to way Immovable
(2) a factory Immovable
(3) a right to collect lac from trees Immovable
(4) hereditary offices Immovable
(5) growing crops Movable
(6) standing timber Movable

Que. No. 15] X owned a land with fifty tamarind trees. He sold his land and the timber
(obtained after cutting the fifty trees) to Y. X wants to know whether the sale of timer
tantamount to sale of immovable property. Advise him with reference to provisions of
the General Clauses Act, 1897. CA (Intermediate) – May 2018 (4 Marks)
Ans.: As per Section 3(26) of the General Clauses Act, 1897, "Immovable Property" shall include
–
(a) Land,
(b) Benefits to arise out of land,
(c) Things attached to the earth, or
(d) Things permanently fastened to anything attached to the earth.
In Shantabai v. State of Bombay, AIR 1958 SC 532, it was held that the ‘trees’ are regarded as
immovable property because they are attached to or rooted in the earth. However, the trees
except the standing timber are immovable property.
Trees are immovable property because trees are benefits arise out of the land and attached to
the earth. However, timber is not immovable property as the same are not permanently
attached to the earth.
Que. No. 16] Whenever law says that offence is punishable with imprisonment then how
the Court should impose such imprisonment – rigorous or simple?
Ans.: As per Section 2(27) of the General Clauses Act, 1897, "Imprisonment" shall mean
imprisonment of either description as defined in the Indian Penal Code, 1860.
As per Section 53 of the Indian Penal Code, 1860, the punishments to which offenders are
liable are imprisonment of two descriptions, namely, rigorous (hard labour) or simple. So, when
an Act provides that an offence is punishable with imprisonment, the Court may, in its
discretion, make the imprisonment rigorous or simple.
Que. No. 17] Define the term ‘month’ as per the General Clauses Act, 1897? Whether
period of 30 days can be treated as month?
Ans.: As per Section 2(34) of the General Clauses Act, 1897, "Month" shall mean a month
reckoned according to the British Calendar.
The expression "Gregorian calendar" would be more accurate than British calendar as this
reform in the calendar was introduced by Pope Gregory XIII in the 16th Century.
This definition does not apply to contracts or to cases where the context shows a different
meaning.
The word "month occurring in Section 271 (l)(a)(i) of the Income Tax Act, 1961, was construed
to mean a period of 30 days and not a month as defined in the General Clauses Act, 1897.
Que. No. 18] Write short note on: Person under the General Clauses Act, 1897
Define the term ‘person’ as per the General Clauses Act, 1897? Discuss which of the
following will be treated as person?
(a) An idol
(b) Public body
(c) A company
Ans.: As per Section 2(42) of the General Clauses Act, 1897, "Person" shall include any company
or association or body of individuals, whether incorporated or not.
Under section 13 words in the singular prima facie include the plural.
An idol is a juridical person. A public body to be a person need not always be set up by statute.
It may be set up by the Government in exercise of its executive functions.
Person will include a juristic person. For example, an idol or Guru Granth Sahib installed in a
public temple or a company.

Que. No. 19] Write short note on: Political Agent
Ans.: Political Agent [Section 3(43)]: "Political Agent" shall mean –

(a) in relation to any territory outside India, the Principal Officer, by whatever name called,
representing the Central Government in such territory; and
(b) in relation to any territory within India to which the Act or regulation containing the
expression does not extend, any officer appointed by the Central Government to exercise all
or any of the powers of a Political Agent under that Act or regulation.
General Rules of Construction
Que. No. 20] When Central Act shall be deemed to be came into force as per the
provisions of the General Clauses Act, 1897, if no particular date is provided for it
coming into operation?
Ans.: Coming into operation of enactment [Section 5]:

(1) Where any Central Act is not expressed to come into operation on particular day, then it
shall come into operation on the day on which it receives the assent –
(a) In the case of a Central Act made before the commencement of the Constitution, of the
Governor-General, and
(b) In the case of an Act of Parliament, of the President.
(2) Unless the contrary is expressed, a Central Act or Regulation shall be construed as coming
into operation immediately on the expiration of the day preceding its commencement.
Example 1: The Companies Act, 2013 received assent of President of India on 29 th August, 2013
and was notified in official gazette on 30th August, 2013 with the enforcement of Section 1 of
the Act. Accordingly, the Companies Act, 2013 came into enforcement on the date of its
publication in the Official Gazette.
Example 2: SEBI (Issue of Capital & Disclosure Requirements) (Fifth Amendment) Regulations,
2015 was issued by SEBI vide Notification dated 14.8.2015 with effect from 1.1.2016. Here, the
regulation shall come into enforcement on 1.1.2016 rather than the date of its notification in
the gazette.
In the case of State of Uttar Pradesh v. Mahesh Narain, AIR 2013 SC 1778, Supreme Court held
that Effective date of Rules would be when the Rules are published vide Gazette notification
and not from date when the Rules were under preparation.
Where an Act provides that it is to come into force on the first day of January, it will come into force as
soon as the clock has struck twelve on the night of the 31st December and it is immaterial if the
President did not give his assent till 3 P.M. on the first January. The Indian Income Tax (Amendment)
Act, 1930, was expressed to come into force on the first April but it received the assent of the Governor-
General on the 4th April. It is, however, clear that once the assent is given, the commencement of the Act
would be the 1st April.
The word "Central Act" in Section 5 does not include an ‘Ordinance’. An Ordinance is promulgated by
the President, and it is generally assumed that it comes into operation on some other date. It will be
noticed that Ordinances promulgated by the President under Article 123 of the Constitution generally
state that they shall come into force at once, presumably, as a measure of caution.
Que. No. 21] When enactment is said to have come into operation if the Act has not
specified any particular date of its enforcement? Explain with the help of an example as
per the provisions of the General Clauses Act, 1897.
Ans.: According to Section 5 of the General Clauses Act, 1897, where any Central Act has not
specifically mentioned a particular date to come into force, it shall be implemented on the day
on which it receives the assent of the Governor General in case of a Central Acts made before
the commencement of the Indian Constitution and/or, of the President in case of an Act of
Parliament.

Que. No. 22] Explain any four effects of repeal of an existing Act by the Central
Legislation enumerated in Section 6 of the General Clauses Act, 1897?
CA (Intermediate) – May 2018 (4 Marks)
Ans.: Effect of repeal [Section 6]: Where this Act, or any Central Act or Regulation made after the
commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then,
unless a different intention appears –
(a) The repeal shall not revive anything not in force or existing at the time at which the repeal
takes effect.
(b) The repeal shall not affect the previous operation of any enactment so repealed or anything
duly done or suffered thereunder.
(c) The repeal shall not affect any right, privilege, obligation or liability acquired, accrued or
incurred under any enactment so repealed.
(d) The repeal shall not affect any penalty, forfeiture or punishment incurred in respect of any
offence committed against any enactment so repealed.
(e) The repeal shall not affect any investigation, legal proceeding or remedy in respect of any
such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
Any investigation, legal proceeding or remedy may be instituted, continued or enforced, and
any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or
Regulation had not been passed.
In State of Uttar Pradesh v. Hirendra Pal Singh, (2011), 5 SCC 305, SC held that whenever an
Act is repealed, it must be considered as if it had never existed. Object of repeal is to obliterate
the Act from statutory books, except for certain purposes as provided under Section 6 of the
Act.
In Kolhapur Canesugar Works Ltd. V, Union of India, AIR 2000, SC 811, Supreme Court held
that Section 6 only applies to repeals and not to omissions and applies when the repeal is of a
Central Act or Regulation and not of a Rule.
In Navrangpura Gam Dharmada Milkat Trust v. Rmtuji Ramaji, AIR 1994 Guj 75: ‘Repeal’ of
provision is in distinction from ‘deletion’ of provision. ‘Repeal’ ordinarily brings about complete
obliteration of the provision as if it never existed, thereby affecting all incoherent rights and all
causes of action related to the ‘repealed’ provision while ‘deletion’ ordinarily takes effect from
the date of legislature affecting the said deletion, never to effect total effecting or wiping out of
the provision as if it never existed. For the purpose of this section, the above distinction
between the two is essential.
When the object is to repeal only a portion of an Act words 'shall be omitted' are normally used. This is
the drafting practice. However, there are observations in cases that omission of a provision is different
from repeal. In General Finance Co. Assistant Commissioner of Income Tax, AIR 2002 SC 3126: (2002) 7
SCC 1, the issue before a Supreme Court was that whether despite the omission of Section 276-DD of
the Income Tax Act 1961, prosecution could be continued or not. The Supreme Court held that neither
the prosecution could be continued nor could punishment be imposed in absence of any saving clause.
Que. No. 23] What is the effect of revival of repealed enactment as per the General
Clauses Act, 1897?
Ans.: Revival of repealed enactment [Section 7]:

(1) In any Central Act or Regulation, it shall be necessary, for the purpose of reviving, either
wholly or partially, any enactment wholly or partially repealed, expressly to state that
purpose.
(2) This section applies also to all Central Acts made after the 3.1.1868 and to all Regulations
made on or after the 14.1.1887.
Que. No. 24] Write a short note on: Construction of references to repealed enactment
Ans.: Construction of references to repealed enactment [Section 8]:

(1) Where any Central Act or Regulation, repeals and re-enacts, with or without modification,
any provision of a former enactment, then references in any other enactment or in any
instrument to the provision so repealed shall, unless a different intention appears, be
construed as references to the provision so re-enacted.
(2) Where before the 15.8.1947, any Act of Parliament of the United Kingdom repealed and re-
enacted, with or without modification, any provision of a former enactment, then references
in any Central Act or in any Regulation or instrument to the provision so repealed shall,
unless a different intention appears, be construed as references to the provision so re-
enacted.
Where an earlier statute is repealed and re-enacted, it is the re-enacted provision that will take the place
of the corresponding provision in the repealed enactment in so far as its incorporation by reference in
other statutes is concerned. Illustrating, the Limitation Act, 1908, has now been replaced by the
Limitation Act, 1963. References in any Act to the Limitation Act of 1908 must therefore be construed as
references to the Limitation Act of 1963.
In Section 115JB of the Income Tax Act, 1961, for calculation of book profits, the Companies Act, 1956
are required to be referred. With the advent of Companies Act, 2013, the corresponding change has not
been made in Section 115 JB of the Income tax Act, 1961. On referring of Section 8 of the General
Clauses Act, book profits to be calculated u/s 115 JB of the Income Tax Act, 1961 will be as per the
Companies Act, 2013.
Que. No. 25] Discuss the provisions relating to commencement and termination of time
under the General Clauses Act, 1897.
Ans.: Commencement and termination of time [Section 9]:

(1) In any Central Act or Regulation, it shall be sufficient, for the purpose of excluding the first
in a series of days or any other period of time to use the word "from", and, for the purpose
of including the last in a series of days or any other period of time, to use the word "to".
(2) This section applies also to all Central Acts made after the 3.1.1868, and to all Regulations
made on or after the 14.1.1887.
Example: If a company declares dividend for its shareholder in its AGM Meeting held on
30.9.2019. Under the provisions of the Companies Act, 2013, company is required to pay
declared dividend within 30 days from the date of declaration i.e. from 1.10.2019 to
30.10.2019. In this series of 30 days, 30.9.2019 will be excluded and last 30th day i.e.
30.10.2016 will be included.
Que. No. 26] Excel Ltd. declared dividend for its shareholder in its AGM held on
30.9.2019. Under the provisions of the Companies Act, 2013, company is required to
pay declared dividend within 30 days from the date of declaration. As per the provisions
of the General Clauses Act, 1897, discuss what will be the commencement and
termination time for posting of declared dividend?
Ans.: As per the provisions of Section 9 of the General Clauses Act, 1897, in any legislation or
regulation, it shall be sufficient, for the purpose of excluding the first in a series of days or any
other period of time to use the word “from” and for the purpose of including the last in a series
of days or any other period of time, to use the word “to”.
Section 127 of the Companies Act, 2013 uses the words, “30 days from”. Thus, in the given
situation Excel Ltd. is required to pay declared dividend within 30 days from the date of
declaration i.e. from 1.10.2019 to 30.10.2019. In this series of 30 days, 30.9.2019 will be
excluded and last 30th day i.e. 30.10.2019 will be included.
Que. No. 27] Discuss the provisions relating to computation of time under the General
Clauses Act, 1897.
Ans.: Computation of time [Section 10]:

(1) Where, by any Central Act or Regulation, any act or proceeding is directed or allowed to be
done or taken in any Court or office on a certain day or within a prescribed period, then, if
the Court or office is closed on that day or the last day of the prescribed period, the act or
proceedings shall be considered as done or taken in due time if it is done or taken on the
next day afterwards on which the Court or office is open. However, nothing in this section
shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies.
(2) This section applies also to all Central Acts or Regulations made on or after the 14.1.1887.
In K. Soosalrathnam v. Div. Engineer, N.H.C. Tirunelveli, it was held by Madras High Court that
since the last date of the prescribed period was subsequent to the date of notification, declared
to be a holiday on the basis of the principles laid down in this section the last date of
prescribed period for obtaining the tender schedules was extended to the next working day.
Que. No. 28] Discuss the provisions relating to measurement of distances under the
General Clauses Act, 1897.
Ans.: Measurement of distances [Section 11]: In the measurement of any distance, for the
purpose of any Central Act or Regulation, that distance shall, unless a different intention
appears, be measured in a straight line on a horizontal plane.
Que. No. 29]
Ans.: Duty to be taken pro rata in enactments [Section 12]: Where, by any enactment now in
force or hereafter to be in force, any duty of customs or excise, or excise, or in the nature
thereof, is leviable on any given quantity, by weight, measure or value of any goods or
merchandise, then a like duty is leviable according to the same rate on any greater or less
quantity.
Que. No. 30] State the provisions of the General Clauses Act, 1897 relating to ‘gender
and number’.
Ans.: Gender and number [Section 13]: In all Central Acts or Regulations, unless there is
anything repugnant in the subject or context –
(1) Words importing the masculine gender shall be taken to include females; and
(2) Words in the singular shall include the plural, and vice versa.
Example: In order to determine residential status the Income Tax Act, 1961 makes the following
provisions:
A person is said to be resident in India, if he fulfils any one of the following conditions:
(1) He is in India for 182 days or more in previous year.
(2) He must be in India for 60 days or more in previous year and 365 days or more in last 4 previous
years.
As per Section 13 of the General Clauses Act, 1897, words importing the masculine gender shall be
taken to include females and thus provisions is applicable to ‘males’ as well as ‘females’ even though the
word used in the Act is “he”.
Que. No. 31] As per the provisions of the Companies Act, 2013, a whole time Key
Managerial Personnel (KMP) shall not hold office in more than one company except its
subsidiary company at the same time. Referring to the Section 13 of the General Clauses
Act, 1897, examine whether a whole time KMP can be appointed in more than one
subsidiary company?
Ans.: Section 203(3) of the Companies Act, 2013 provides that whole time key managerial
personnel shall not hold office in more than one company except in its subsidiary company at
the same time. With respect to the issue that whether a whole time KMP of holding company be
appointed in more than one subsidiary companies or can be appointed in only one subsidiary
company.

It can be noted that Section 13 of General Clauses Act, 1897 provides that the word ‘singular’
shall include the ‘plural’, unless there is anything repugnant to the subject or the context.
Thus, a whole time Key Managerial Personnel (KMP) may hold office in more than one
subsidiary company.
Powers & Functionaries
Que. No. 32] Briefly discuss the provisions relating to “Powers & Functionaries” made
under the General Clauses Act, 1897.
Discuss the provision of the General Clauses Act, 1897 related to substitution of
functionaries.
Ans.: Powers conferred to be exercisable from time to time [Section 14]: Where, by any Central
Act or Regulation, any power is conferred, then unless a different intention appears that power
may be exercised from time to time as occasion requires.
Power to appoint to include power to appoint ex officio [Section 15]: Where, by any Central Act or
Regulation, a power to appoint any person to fill any office or execute any function is conferred,
then, unless it is otherwise expressly provided, any such appointment, if it is made, it may be
made either by name or by virtue of office.
In view of Section 15, there can be no objection if an appointment is made by virtue of office and not by
name. Hence a notification appointing all special land acquisition officers to perform functions of
collectors within their respective jurisdictions would be valid.
Power to appoint to include power to suspend or dismiss [Section 16]: Where, by any Central Act
or Regulation, a power to make any appointment is conferred, then, unless a different intention
appears, the authority having for the time being power to make the appointment shall also have
power to suspend or dismiss any person appointed whether by itself or any other authority in
exercise of that power.
Under the Assam Elementary Education Act, 1962, the Assistant Secretary has to appoint teachers on
the advice of the Board But as he is the appointing authority, he can dismiss those appointed by him
calling in aid Section 18 of the Assam General Clauses Act which is in similar terms.
However, a power to make rules of appointment does not necessarily imply a power to make rules for
dismissal. Such a proposition does not flow either from Section 16 or otherwise.
Substitution of functionaries [Section 17]: In any Central Act or Regulation, it shall be sufficient,
for the purpose of indicating the application of a law to every person or number of persons for
the time being executing the function of an office, to mention the official title of the officer at
present executing the functions, or that of the officer by whom the functions are commonly
executed.
Successors [Section 18]: In any Central Act or Regulation, it shall be sufficient, for the purpose
of indicating the relation of a law to the successors of any functionaries or of corporations
having perpetual succession, to express its relation to the functionaries or corporations.
In KG. Krishnayya v. State, AIR 1959 Andh. 292, it was held that it is not essential that the same
statutory authority that initiated a scheme under the Road Transport Corporation Act, 1950, should
also implement it. It is open to the successor authority to implement or continue the same.
Official chiefs and sub-ordinates [Section 19]: In any Central Act or Regulation, it shall be
sufficient, for the purpose of expressing that a law relative to the chief or superior of an office
shall apply to the deputies or subordinates lawfully performing the duties of that office in the
place of their superior, to prescribe the duty of the superior.
An acting district magistrate can discharge the function of a district magistrate. [KandasamiPillaiv.
Emperor, ILR 2 Mad. 69]
Provisions as to Orders, Rules, etc. made under Enactments
Que. No. 33] Discuss the provision of the General Clauses Act, 1897 related to
construction of notifications.

Ans.: Construction of notifications etc. issued under enactments [Section 20]: Where, by any
Central Act or Regulation, a power to issue any notification, order, scheme, rule, form, or bye-
law is conferred, then expressions used in the notification, order, scheme, rule, form or bye-
law, shall, unless there is anything repugnant in the subject or context, have the same
respective meanings as in the Act or Regulation conferring the power.
Where an Act confers power to make subordinate legislation expressions used in that legislation have,
unless a contrary intention appears, the meanings which they bear in the Act. The term "collector" used
in Rule 4 of the Land Acquisition (Companies) Rules, 1963, will have the same meaning as in Section
3(c) of the Land Acquisition Act, 1894. [A Hussain Tayabaliv. State of Gujarat, AIR 1968 SC]
Que. No. 34] Whether power to issue notification also includes power to vary or rescind
it?
Ans.: Power to issue, to include power to add to, amend, vary or rescind [Section 21]: Where, by
any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is
conferred, then that power includes a power, exercisable in the like manner and subject to the
like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders,
rules or bye-laws so issued.
In Rasid Javed v. State of Uttar Pradesh, AIR 2010 SC 2275, Supreme Court held as per Section 21 of
the General Clauses Act, 1897, an authority which has the power to issue a notification has the
undoubted power to rescind or modify the notification in the like manner.
In Shreesidhbali Steels Ltd. v. State of Uttar Pradesh, AIR 2011 SC 1175, Supreme Court held that
power u/s 21 of the General Clauses Act, 1897 is not so limited as to be exercised only once power can
be exercised from time to time having regard to exigency of time.
Que. No. 35] What is the meaning of service by post as per provisions of the General
Clauses Act, 1897? CA (Intermediate) – May 2018 (2 Marks)
Ans.: Meaning of Service by post [Section 27]: Where any legislation or regulation requires any
document to be served by post, then unless a different intention appears, the service shall be
deemed to be effected by:
1. Properly addressing
2. Pre-paying, and
3. Posting by registered post.
A letter containing the document to have been effected at the time at which the letter would be
delivered in the ordinary course of post.
In United Commercial Bank v. Bhim Sain Makhija, AIR 1994 Del. 181, a notice when required
under the statutory rules to be sent by ‘registered post acknowledgement due’ is instead sent
by ‘registered post’ only, the protection of presumption regarding serving of notice under
‘registered post’ under this section of the Act neither tenable not based upon sound exposition
of law.
In Jagdish Singhv. Natthu Singh, AIR 1992 SC 1604, it was held that where a notice is sent to
the landlord by registered post and the same is returned by the tenant with an endorsement of
refusal, it will be presumed that the notice has been served.
In Smt. Vandana Gulati v. Gurmeet Singh alias Mangal Singh, AIR 2013 All 69, it was held that
where notice sent by registered post to person concerned at proper address is deemed to be
served upon him in due course unless contrary is proved. Endorsement ‘not claimed/not met’
is sufficient to prove deemed service of notice.
Rule of Interpretation
Please refer to Questions & Answers of Chapter 3: Interpretation of Statutes.
* * * * * * * * * * *

ADMINISTRATIVE LAW
1. Scope and need for administrative law
2. Source of Administrative law
3. Administrative Discretion (voluntary power)
a. Judicial control over administrative actions
b. Article 14
c. Article 19
d. Judicial review at the stage of exercise of discretion (Abuse of discretion)
4. Preventive Relief
a. Injunction
b. Declaratory decree
c. Action for damages (declaration) – to hold property in wrong way
5. Principle of natural justice
a. Rule against bias (equal treatment)
b. Rule of audi alteram partem (opportunity to being heard)
c. Exception to rule of natural justice.
6. Government Contract
a. Formation of Government contract
b. Remedies available against breach by the Government to other property.
c. Quasi contractual liability
7. Suit against torts
Vicarious liability of state
8. Liability of public servant and statutory corporation
a. Liability of Public Servant
b. Liability of statutory corporation (SC) OR Public Corporation (PC)
ADMINISTRATIVE LAW
Government Agencies
Organs of the State
Legislative Executive Judiciary
Parliaments/State Govt. Officer Courts

Legislative
Extra Powers
Discretionary
Need for the Administrative Law

1. The states have empowered the executive branch to fill in the gaps of legislature and
judiciary by authorizing the executives, to make policies, administer or adjudicate the law,
issue rules by laws and orders of General nature.
2. To keep a check on the administration, consistency with the efficiency, in such a way that it
does not violate the rights of individual.
3. An administrative law with ensure that the executive do not misuse their powers and shall
exercise their functions according to legal principles and rules.
4. Conclusion: Thus a careful and systematic study and development of administrative law is
necessary as it acts as a control on the exercise of administrative powers.
1. Administrative Law is a court that attempts to control the powers of the government , its
intermediaries & agencies.
2. This law helps to strike a balance between two conflicting forces.
3. Individual rights, public forces.
4. The administrative law deals with the above various organs & functions.
5. This law is subordinate to constitutional law as it is a part of constitutional law.
Sources of Administrative Law
Constitutional Law Act / Statutes Ordinance Judicial Decision

Administrative
direction,
notification &
Primary source Passed by the CG / SG for
circulate
- Union list maintenance of peace and
- State list order, taxes, economic &
- Concurrent list social growth
Administrative Discrition
1. Meaning: Administrative discretion means choosing amongst the various available
alternatives but with reference to rules of reason and justice and not arbitrary use of power.
2. Need of A.D.: The administrative discretion is given to the various authorities in government
to handle complex problems which involve invitation of facts, making of choices, before taking
any action.
Judicial Control over administrative action / discretion:-
In India the modes of judicial control of administrative action can be grouped into following three
needs
Constitution Statutory review Ordinary or equitable

remedies
1. Any act passed by the 1. For any order passed 1. Ordinary court
legislation must be is by judiciary one can exercise the power to
conformity with the prefer an appeal to provide ordinary
constitution. tribunal, high court remedy under
2. It is duty of judicially and supreme court. ordinary law against
to declare the law as 2. These exercisec control administrative
an constitutional void. over the administrative authorities.
If the law pass by action of judiciary. 2. The remedies are
legislation is conflict. called:
a. Preventive relief
 Injunction
 Declaration
decree
 Action for
damages
b. Vicarious liability
of state
Conclusion:
Since the administrative organce have wide discretionary powers the Government has provided
to above modes of Judicial control over the administrative action.
Judicial relief/review at the stage of delegation of discretion (i.e. Executive Action)
Law is itself in a conflict
1) Any law can be challenged on the grounds that it is violation of the constitution &
2) Therefore laws of administrative discretion can be challenged under the constitution as
follows:
Article 14 Article 19(1)(b)
Equality before law 1. Right to assemble peacefully & Without harm.

Article 19 (1) (e)
2. Right to reside & settle in any part of territory of
India.
Judicial Review / Relief at the stage of exercise of Administrative Discretion

(Law is valid but the authority applying law is abusing it)
1) No law can cloth administrative action with a complete finality.

2) The court can always exercise discretion & examine the scope to check whether the action
is in confirmative with the fundamental rights.
3) The courts have developed 2 different ways to contract the exercise of administrative
discretion.
Authority has not exercised it’s discretion Authority is not deemed to have exercised
properly. discretion at all
Abuse of Discretion Non application of mind
1. Malafide motive
2. Irrelevant consideration
3. Leaving out of relevant 1. Acting dictation
consideration. 2. Self restriction
4. Arbitratory purpose 3. Acting without due care
5. Improper Purpose
6. Colourable exercise of power
7. Non compliances with procedural
requirement.
8. Exceeding jurisdictions.
Ordinary Remedies
1. Preventive Relief :Preventing any person from doing any act which he is not authorised to
do
Injunction
Prohibitory Injunction Mandatory Injunction
Temporary / inter loctury Permanent / perpetual It prohibits the defendant

injunction injunction from continuing with a
↓ ↓ wrongful act and also
imposes duty on him to do
It is passed for a specified time or After the completion of full
positive act.
until the further order of court. trial on the merits of the
↓ case, court may pass above
order
Passed by civil court under CPC
1908 ↓
As per specific relief act,
1963
2. Declaratory Decree :-
a. Law relating to DD is contained in Sec 34 & 35 of the Specific Relief Act, 1963.
b. The court may grant a DD in favour of a plaintiff when the plaintiff satisfies the court
i. He has legal right over the property &
ii. The defendant is unnecessarily denying his legal right.
c. A DD is binding only on the parties to the suit & it can not bind the strangers.
d. Eg. X has a property in possession of a certain land in a village. The inhabitation claim a
right of way across the land. When X proves in the court of his legal right the DD issued
by a court in favour of X is binding against the inhabitants of the village.
e. Conclusion :-
Thus, in cases where wrong has been done to a person by an administrative act, DD shall
be appropriate remedy against the administrative authorities.
3. Action For Remedies:-The Govt. is liable for the tort committed by it’s servant in the course
of discharge of his statutory duties if:
a) The act of servant was negligent or without proper care &
b) It is an non-sovereign function of the Govt.(i.e. Commercial Transaction)
Principle Of Natural Justice
1. It is a fundamental principle that no man shall be a judge for his own cause. (Rule against
Bias nemojudex in causa sua)
2. The principle is that a judge is disqualified for determining any case in which he has
conflict or interest.
3. The rule against bias can be of following three types.
Pecuniary Bias Personal Bias Subject matter Bias
Monetary or property Personal relationship When a judge himself

interest in the subject due to friendship, is a party of has some
matters close relative etc. direct connection
Rule of Audi Alteram Partem

(i.e. always hear to other party before taking decision)
1. As a principle of natural justice, every administrative authority adjudicating matter having
civil consequences shall give fare opportunity to the defendant for answering his case
before passing any order again him.
2. The essential ingredients of the rule of fair hearing (OBH)
a. Right to proper notice.
b. Right to present case and evidence
c. Right to submit challengeable evidence by giving right to conduct cross examination
for a full and true disclosure of facts with the help of legal representation
d. Right to disclosure of evidence against him before any decision or order is passed by
the court.
e. Right to receive reasoned decision or speaking orders
Exception to the Rule of Natural Justice
1. The rule of natural justice can be excluded in the following cases.
a. Statutory exclusion: Government restrict / fixed the price of life saving drugs without
giving OBH.
b. Emergency cases: Public safety, public health, public interest, public morality.
c. Interim disciplinary action: Offence done by police officer – suspend him without
giving him OBH.
d. Academic exclusion: At exam centre – roll no. written on every page – suspend that
student without OBH.
e. Impracticability: E.g. MBA entrance exam cancelled – because everyone has copied at
Centre (OBH not given)
Government contract
1. Where a contract is entered with the C.G. or S.G. as per Article 299 of the constitution
complying with all the essentials of Indian contract Act, 1872 it is called a Government
contract.
2. Such contracts shall be executed by the president or by the Governor of State or by any other
person authorized by them.
3. If there is a breach of contract by Government authorities neither president nor the governor
or the authorized person shall be personally liable.
1. Where there is a breach of contract by Govt. authorities a Writ of Mandamus can be filed
against the Govt. where the court may pass an order & asked the Govt. to fulfil it’s obligation
else the Govt. is liable for breach of contract as per Indian Contract Act.
2. However now a days due to increasing cases of negligence on the part of administration
which effects the personal liberty of citizen, Govt is made liable for even in case of sovereign
function, if the Govt. officer after acting within the scope of his authority does any tortious
act.
Liability of Public Servants – Article 300

1. As per Article 300 the Government / state may be sued for the tortuous act of its servant
if the act is committed while discharging its statutory duties and
a. The act of servant was negligent or reckless (careless) and
b. It is non sovereign function of the Government.
E.g. Article 299 – Government – 3rd Party – Contract
Hutch and Vodaphone – breach contract.
Liability of Public Corporation

1. A public corporation is a autonomous unit which his enacted by parliament or state
legislature.
2. Employees of such statutory corporations are not Government servants as it is the
responsibility of the corporation to pay they salaries.
3. Such corporations are not exempt from taxation also as it is not Government department or
government establishment.
Q No. 1. Write a short note on: Preventive relief
Q No. 2. Distinguish between: Temporary Injunction & Perpetual Injunction
Q No. 3. A files a suit against B for declaration that house X belongs to him. He also prays for
delivery of possession of the house to him. The Court passes a declaratory decree in favour of A
and orders that possession of the house be delivered to A. Now, C files suit against A for delivery
of house X to him on the ground that the house belongs to him. A pleads in defense that the
Court has already made a declaration that house X belongs to him. Will the Court accept this
defense?
Q No. 4. Madhav, a Hindu, in a suit to which Urvashi, his wife is the defendant, seeks a
declaration that his marriage was duly solemnized and prays for an order of restitution of
conjugal rights. The Courts makes the declaration and order of restitution of conjugal rights.
Chanchal, a third party, claims that Urvashi is his wife and prays to the Court to annul the
declaration made in favour of Madhav. Decide.
Q No. 5. Write a short note on: Vicarious liability of State/Government
Q No. 6. M, a doctor of a State Government hospital was negligent while conducting an eye
operation for P due to which he became blind. P sues the State Government for damages. Will he
succeed?
Q No. 7. The Municipal Corporation pulls down a building which is declared unfit for human
habitation. An affected tenant wants to sue the Municipal Corporation for damages. Will he
succeed?
Q No. 8. A lady doctor of a government hospital was negligent while conducting operation of
Dinkar’s leg. The lady doctor amputated left leg of Dinkar instead of his right leg by mistake.
Dinkar filed suit against the authority of the government hospital and lady doctor for damages
on the plea of negligence. Will he succeed?
Administrative Law 5.9
Chapter
5 Administrative Law
Introduction: The study of Administrative law involves analysis of the institutions and legal
rules through which governmental decision making is authorized, affected, limited and
reviewed. In order to meet the growing needs of changing social, political and economic
paradigm, this branch of law i.e. Administrative Law is necessary. Administrative law is that
branch of law that deals with powers, functions and responsibilities of various organs of the
state.
Introduction & Need of Administrative Law
Que. No. 1] Explain the meaning of administrative law.

Administrative law is the law relating to the administration. It determines the
organization, powers and duties of administrative authorities. Discuss.
Ans.: Administrative law is that branch of law that deals with powers, functions &
responsibilities of various organs of the State. There is no single universal definition of
‘administrative law’ because it means different things to different theorists.
K. C. Davis defines Administrative Law is the law concerning the powers and procedures of
administrative agencies, including especially the law governing the judicial review of
administrative action.
Administrative law is the branch of the law governing the relationship between the individual
and the executive branch of the government when the latter acts in its administrative capacity.
Ivor Jennings defined administrative law as the law relating to administration. It determines the
organization, powers and duties of administrative authorities.
Administrative law deals with the powers of administrative authorities the manner in which the
powers are exercised and the remedies which are available to the aggrieved persons, when those
powers are abused by these authorities.
The primary function of administrative law is to keep governmental powers within the limits of
law and to protect private rights and individual interests.
Rule-making power (delegated legislation) and an authority to decide (Tribunal/Court) are
described as effective and powerful weapons in the armory of administration.
As Wade observed, all power have two inherent characteristics:
(i) They are not absolute or unfettered.
(ii) They are likely to be abused.
Administrative law attempts to control the power of the government, and its instrumentalities
and agencies. To achieve that objective, administrative law provides an effective mechanism
and adequate protection. It helps to strike between two conflicting force:
(i) Individual rights
(ii) Public interest
Que. No. 2] Write a short note on: Scope of administrative law
Ans.: Administrative law determines the organization, powers and duties of administrative
authorities. The emphasis of Administrative Law is on procedures for formal adjudication based
on the principles of Natural Justice and for rule making.
The concept of Administrative Law is founded on the following principles:
(a) Power is conferred on the administration by law

(b) No power is absolute or uncontrolled howsoever broad the nature of the same might be.
(c) There should be reasonable restrictions on exercise of such powers depending on the
situation.
Though administrative law is as old as administration itself since they cannot exist separately,
in India the early signs/existence of administrative law could be found in the treatises written
during the reign of the Mauryas, Guptas, Mughals as well as East India Company.
It is based on the concept of rule of law that supports Natural Justice i.e. adjudication based on
impartiality, unjustness and the prescribed laws and legal methods instead of arbitrariness and
abuse of official power. Natural justice is basically applied in cases where there are no laws
prescribed, here the individual has to be given an opportunity to be heard and the judgment is
to be taken into consideration the particular facts and cases of the case and the judgement
should be free from bias. It is to prevent violation of people's rights by officials in power.
Administrative law specifies the rights and liabilities of private individuals in their dealings with
public officials and also specifies the procedures by which those rights and liabilities can be
enforced by those private individuals. It provides accountability and responsibility in the
administrative functioning. Also there are specified laws and rules and regulations that guide
and direct the internal administration relations like hierarchy, division of labour etc.
Que. No. 3] Write a short note on: Need for Administrative Law
Ans.: The modern state typically has three organs –

 Legislative
 Executive and
 Judiciary.
Traditionally, the legislature was tasked with the making of laws, the executive with the
implementation of the laws and judiciary with the administration of justice and settlement of
disputes. However, this traditional demarcation of role has been found wanting in meeting the
challenges of present era. The legislature is unable to come up with the required quality and
quantity of legislations because of limitations of time, the technical nature of legislation and the
rigidity of their enactments. The traditional administration of justice through judiciary is
technical, expensive and dilatory. The states have empowered their executive (administrative)
branch to fill in the gaps of legislature and judiciary. This has led to an all pervasive presence
of administration in the life of a modern citizen. In such a context, a study of administrative law
assumes great significance.
The ambit of administration is wide and embraces following elements within its ambit:-
 It makes policies.
 It executes, administers and adjudicates the law.
 It exercises legislative powers and issues rules, bye laws and orders of a general nature.
The ever-increasing administrative functions have created a vast new complex of relations
between the administration and the citizen. The modern administration is present everywhere
in the daily life of an individual and it has assumed a tremendous capacity to affect their rights
and liberties.
Since the whole purpose of bestowing the administration with larger powers is to ensure a
better life for the people, it is necessary to keep a check on the administration, consistent with
the efficiency, in such a way that it does not violate the rights of the individual. There is an age-
old conflict between individual liberty and government control there must be a constant vigil to
ensure that a proper balance be evolved between private interest and government which
represents public interest. It is the demand of prudence that when large powers are conferred
on administrative organs, effective control-mechanism be also evolved so as to ensure that the
officers do not use their powers in an undue manner or for an unwarranted purpose. It is the
task of administrative law to ensure that the governmental functions are exercised according to
law and legal principles and rules of reason and justice.
The goal of administrative law is to ensure that the individual is not at receiving end of state’s
administrative power and in cases where the individual is aggrieved by any action of the
administration, he or she can get it redressed. There is no antithesis between an effective

government and controlling the exercise of administrative powers. Administrative powers are
exercised by thousands of officials and affect millions of people. Administrative efficiency
cannot be the end-all of administrative powers and the interests of people must be at the centre
of any conferment of administrative power. If exercised properly, the vast powers of the
administration may lead to the welfare state; but, if abused, they may lead to administrative
despotism and a totalitarian state.
A careful and systematic study and development of administrative law becomes a desideratum
as administrative law is an instrument of control on the exercise of administrative powers.
Que. No. 4] Distinguish between: Constitutional Law & Administrative Law
Ans.: Following are the main points of distinction between constitutional law & administrative
law:
Points Constitutional Law Administrative Law
Meaning Constitutional law is the body of law that Administrative Law is the law concerning
evolves from a constitution, setting out the the powers and procedures of
fundamental right and duties for its administrative agencies, including
citizens and also the principles according especially the law governing the judicial
to which a State is governed and defining review of administrative action.
the relationship between the various
branches of government within the State.
Class Constitutional law is genus. It is the Administrative law is a species of the
mother of all law of India. Constitutional Law.
Deals with Constitutional law deals with various Administrative law deals with those organs
organs of the State. It also deals with as in motion/function. Thus, it deals with
structure of the State. functions of the State.
Superiority Constitutional law is the supreme and Administrative law is subordinate to
highest law in the country. Constitutional Law.
Type Constitutional law is theoretical one. Administrative law is practical and
functional.
Que. No. 5] Write a short note on: Sources of Administrative Law
Ans.: Administrative law principles and rules are to be found in many sources. The followings
are the main sources of administrative law in India.
(1) The 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. Similar powers are provided to
States under Article 62. Indian Constitution has not recognized the doctrine of separation
of powers in its absolute rigidity. The Constitution also envisages tribunals, public sector
and government liability which are important aspects of administrative law.
(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 in session and therefore
cannot make laws. The 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. In India, we have the
supremacy of Constitution and the Supreme Court is vested with the authority to interpret
it. The courts through their various decisions on the exercise of power by the

administration, the liability of the government in case of breach of contract or tortuous

acts of Governments servants lay down administrative laws which guide their future
conduct.
Administrative Discretion
Que. No. 6] Write a short note on: Administrative Discretion
Ans.: Discretion in layman’s language means choosing from amongst the various available
alternatives without reference to any predetermined criterion, no matter how fanciful that
choice may be.
A person writing his will has such discretion to dispose of his property in any manner, no
matter how arbitrary or fanciful it may be. But the term “discretion” when qualified by the word
"administrative” has somewhat different overtones. ‘Discretion’ in this sense means choosing
from amongst the various available alternatives, but with reference to the rules of reason and
justice and not according to personal whims. Such exercise is not to be arbitrary, vague and
fanciful but legal and regular.
Thus, in short, the decision is taken by the authority not only on the basis of the evidence but
in accordance with policy or expediency and in exercise of discretionary powers conferred on
that authority.
Conferment of discretion: Discretion is conferred in the area of rule-making or delegated
legislation e.g. when the statutory formula says that the government may makes rules which it
thinks expedient to carry out the purposes of the Act. In effect, a broad discretion and choice
are being conferred on the government to make rules. Similarly, discretion is conferred on
adjudicatory and administrative authorities on a liberal basis, that is, the power is given to
apply a vague statutory standards from case to case.
Rarely does the legislature enact a comprehensive legislation complete in all details. More often
the legislation is sketchy or Skelton, leaving many gaps and conferring powers on the
administration to act in a way it deems "necessary" or “reasonable" or if it “is satisfied” or “is of
opinion”.
Need of discretion: Because of the complexity of socio-economic conditions which the
administration in modern times has to contend with, it is realized that a government having
only ministerial duties with no discretionary functions will be extremely rigid and unworkable
and that, too some extent, officials must be allowed a choice as to when, how, and whether they
will act. The reason for this attitude is that, more often than not, the administration is required
to handle intricate problems which involve investigation of facts, making of choices and
exercise of discretion before deciding upon what action to take. Thus, the modern tendency is
to leave a large amount of discretion with various authorities.
In S. Kandaswamy Chettiar v. State of Tamil Nadu, the Maharashtra Vacant Lands (Prohibition of
Unauthorized Occupation & Summary Eviction) Act, 1955, which was passed for prohibiting
unauthorized occupation of vacant lands and for providing summary eviction of unauthorized
occupants, conferred upon the competent authority the discretion to declare a land as vacant land
without laying down any policy as a guidance for the exercise of such discretion. The Act was therefore
held to be violative of Article 14.
Que. No. 7] How the administrative actions are controlled?

Write a short note on: Judicial control over administrative actions
Ans.: Administrative organs have wide powers and their exercise of discretion can be vitiated by
a number of factors. Therefore, the government must also provide for proper redressed
mechanism.
In India the modes of judicial control of administrative action can be conveniently grouped into
following three heads:
(1) Constitutional: The Constitution of India is supreme and all the organs of state derive their
existence from it. Indian Constitution expressly provides for judicial review. Consequently,

an Act passed by the legislature is required to be in conformity with the requirements of

the Constitution and it is for the judiciary to decide whether or not that Act is in
conformity with the Constitutional requirements. If it is found in violation of the
Constitutional provisions the Court has to declare it unconstitutional and therefore, void.
(2) Statutory Review: The method of statutory review can be divided into two parts:
(i) Statutory Appeals: There are some Acts, which provide for an appeal from statutory
tribunal to the High Court on point of law. E.g. Section 30 Employees Compensation
Act, 1923.
(ii) Reference to the High Court or statement of case: There are several statutes, which
provide for a reference or statement of case by an administrative tribunal to the High
Court. Under Section 256 of the Income Tax Act, 1961 where an application is made to
the Tribunal by the assessee and the Tribunal refuses to state the case the assessee
may apply to the High Court. If the High Court is satisfied about the incorrectness of
the decision of the Tribunal, it can require the Tribunal to state the case and refer it to
the High Court.
(3) Ordinary or Equitable: Apart from the remedies as discuss above there are certain ordinary
remedies, which are available to person against the administration, the ordinary courts in
exercise of the power provide the ordinary remedies under the ordinary law against the
administrative authorities. These remedies are also called equitable remedies and include:
(a) Injunction (b) Declaratory Action (c) Action for damages.
Que. No. 8] The biggest check over administrative action is the power of judicial review.
Do you agree? Explain.
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 doctrine of judicial review has been originated and developed by the American Supreme
Court, although there is no express provision in the American Constitution for the judicial
review. The judicial review is not an appeal from a decision but a review of the manner in which
the decision has been made. The judicial review is concerned not with the decision but with the
decision making process.
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 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.
In Mansukhlal Vithaldas Chauhan v. State of Gujarat, AIR 1997 SC 3400, the Supreme Court
held that while exercising the power of judicial review it does sit as a Court of appeal but
merely reviews the manner in which the decision was made, particularly as the Court lacks the
expertise to correct the administrative decision and if a review of the administrative decision is
permitted, it will be substituting its own decision which itself may be fallible. The Court is to
confine itself to the question of legality. Its concern should be:
 Whether a decision making authority exceeding its power?
 Committed an error of law?
 Committed a breach of rules of natural justice?
 Reached a decision which no reasonable tribunal would have reached, or
 Abused its power?

Judicial review is exercised at two stages:

(i) At the stage of delegation of discretion: Any law can be challenged on the ground that it is
violative of the Constitution and therefore laws conferring administrative discretion can
thus also be challenged under the Constitution.
(ii) At the stage of exercise of administrative discretion: No law can clothe administrative action
with a complete finality. The Courts can always examine the ambit and even the mode of its
exercise discretion to check its conformity with fundamental rights. The courts in India
have developed various formulations to control the exercise of administrative discretion,
which can be grouped under two broad heads, as under:
1. Authority has not exercised its discretion properly – ‘abuse of discretion’.
2. Authority is deemed not to have exercised its discretion at all – ‘non-application of mind.
Que. No. 9] Write a short note on: Administrative Discretion and Article 14
Ans.: Equality before law [Article 14]: The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.
Article 14 provides for equality before law. It prevents arbitrary discretion being vested in the
executive. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment. Right to equality affords protection not only against discretionary laws passed by
legislature but also prevents arbitrary discretion being vested in the executive. Often executive
or administrative officer of government is given wide discretionary power.
In a number of cases, the statute has been challenged on the ground that it conferred on an
administrative authority wide discretionary powers of selecting persons or objects
discriminately and therefore, it violated Article 14.
The Court in determining the question of validity of such statute examines whether the statute
has laid down any principle or policy for the guidance of the exercise of discretion by the
government in the matter of selection or classification. The Court will not tolerate the delegation
of uncontrolled power in the hands of Executive to such an extent as to enable it to
discriminate.
In State of West Bengal v. Anwar Ali, AIR 1952 SC 75 it was held that in so far as the Act
empowered the Government to have cases or class of offences tried by Special Courts, it
violated Article 14 of the Constitution. The Court further held the Act invalid as it laid down “no
yardstick or measure for the grouping either of persons or of cases or of offences” so as to
distinguish them from others outside the purview of the Act. Moreover, the necessity of
“speedier trial” was held to be too vague, uncertain and indefinite criterion to form the basis of
a valid and reasonable classification.
Que. No. 10] Write a short note on: Administrative Discretion and Article 19
Ans.: Article 19 guarantees certain freedoms to the citizens of India, but they are not absolute.
Reasonable restrictions can be imposed on these freedoms under the authority of law. The
reasonableness of the restrictions is open to judicial review. These freedoms can also be
afflicted by administrative discretion.
A number of cases have come up involving the question of validity of law conferring discretion
on the executive to restrict the right under Article 19(1)(b) & 19(1)(e) [the right to assemble
peacefully and without arms and the right to reside and settle in any part of the territory of
India]. The government has conferred powers on the executive through a number of laws to
extern a person from a particular area in the interest of peace and safety.
The Supreme Court in H.R. Banthis v. Union of India, 1979 1 SCC 166, declared a licensing
provision invalid as it conferred an uncontrolled and unguided power on the executive. The
Gold (Control) Act, 1968, provided for licensing of dealers in gold ornaments. The Administrator
was empowered under the Act to grant or renew licenses having regard to the matters, inter
alia, the number of dealers existing in a region, anticipated demand, suitability of the applicant
and public interest. The Supreme Court held that all these factors were vague and
unintelligible. The term ‘region’ was nowhere defined in the Act. The expression ‘anticipated

demand’ was vague one. The expression ‘suitability of the applicant and ‘public interest’ did not
contain any objective standards or norms.
Where the Act provides some general principles to guide the exercise of discretion and thus
saves it from being arbitrary and unbridled, the court will uphold it, but where the executive
has been granted unfettered power to interfere with the freedom of property or trade and
business, the Court will strike down such provision of law.
Que. No. 11] Write a short note on: Judicial review at the stage of exercise of discretion
Write a short note on: Abuse of discretion
Ans.: No law can clothe administrative action with a complete finality. The courts in India have
developed various formulations to control the exercise of administrative discretion, which can
be grouped under two broad heads, as under:
1. Authority has not exercised its discretion properly – ‘Abuse of discretion’.
2. Authority is deemed not to have exercised its discretion at all- ‘non-application of mind.
(1) Abuse of discretion
(i) Mala fides (bad faith): If the discretionary power is exercised by the authority with bad
faith or dishonest intention, the action is quashed by the Court.
Mala fide (bad faith) may be taken to mean dishonest intention or corrupt motive. In
relation to the exercise of statutory powers it may be said to comprise dishonesty,
fraud and malice. A power is exercised fraudulently if its repository intends to achieve
an object other than that for which he believes the power to have been conferred. The
intention may be to promote another public interest or private interest.
In Partap Singh v. State of Punjab, AIR 1964 SC 72, the Supreme Court, by a majority
judgment, set aside an order of suspension and departmental proceedings against a Civil
Surgeon on the ground that the order of the Government was made at the instance of Chief
Minister who had grudge against the appellant.
In State of Punjab v. Gurdial Singh, AIR 1980 SC 319, the land acquisition proceedings for
acquiring the land of the petitioner for building a Mandi were challenged on the grounds that
they were mala fide. It was alleged that the proceedings were initiated as a result of the
influence wielded by a minister who was related to the owner of the land which was sought to
be acquired initially and then dropped. In absence of any affidavit by the minister denying the
allegations, thecourt held that proceedings mala fide.
(ii) Irrelevant considerations: If the exercise of a discretionary power has been influenced by
considerations that cannot lawfully be taken into account, or by the disregard of
relevant considerations, a court will normally hold that the power has not been validly
exercised. Thus, a discretionary power must be exercised on relevant and not irrelevant
or extraneous considerations. If the authority concerned pays attention to, or take into
account wholly irrelevant or extraneous circumstances, events or matters then the
administrative action is ultra vires and will be quashed.
In State of M.P. v. Ramshankar AIR 1983 SC 374, services of a teacher were terminated on the
basis of the police report that in the past, he had taken part in RSS and Jan Sangh activities. It
was held that earlier political affinities of a government servant provided no basis for the
government to terminate his services in a democratic republic like
(iii) 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.
(iv) Arbitrary orders: The order made should be based on facts and cogent reasoning and
not on the whims and fancies of the adjudicatory authority.
In Ranjit Singh v. Union of India, AIR 1981, the petitioner had been carrying on the business of
manufacturing guns for a number of years. His quota to manufacture guns was considerably
reduced by the Government. The justification given was that the industrial Policy Resolution of
1956 envisaged a monopoly in the Central Government for manufacturing arms and
ammunitions. The Court said, “any curtailment of quota must necessarily proceed on the basis
of reason and relevance. In determining the quota of a manufacturing unit, the relevant

considerations were the production capacity of the factory, the quality of the guns produced
and the economic viability of the unit on the one hand and the requirements of current
administrative policy pertinent to the maintenance of law and order and internal security on
the other hand. These factors were impliedly read by the court into the statute. Since, the
Government had left out these relevant considerations, its action was held to be arbitrary.
In Tata Cellular v. Union of India, AIR 1996 SC 11, the Supreme Court has held that the right to
refuse the lowest or any other tender is always available to the Government but the principles
laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a
tender. There can be no question of infringement of Article 14 if the Government tries to get the
best person or the best quotation. The right to choose cannot be considered to be an arbitrary
power. Of course, if the said power is exercised for any collateral purpose, the exercise of that
power will be struck down.
(v) 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.
In Sydney Municipal Corporation v. Compbell, (1925) AC 338, the council had statutory power to
compulsory land requisition “for carrying out improvements in or remodeling any portion of the
city.” When the council attempted to use his power to acquire land for the purpose of benefiting
for an anticipated increases in the value of the land, it was restrained.
(vi) Colourable exercise of power: Colourable exercise means that under the “colour" or
“guise” of power conferred for one purpose, the authority is seeking to achieve
something else which it is not authorized to do under the law in question.
(vii) Non-compliance with procedural requirements: 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.
(viii) Exceeding jurisdiction: An administrative authority is required to exercise discretion
within the limits of the statute. An action or decision going beyond what is authorized
by law is ultra-vires.
For example, if the administrative authority is empowered to control the price of bread it
will be in excess of its jurisdiction to control the price of butter or if an officer is
empowered to grant loan of `10,000 in his discretion for a particular purpose and if he
grants a loan of `20,000, he exceeds the power and the entire order is ultra-vires and
void on that ground.
In case of J.K. Chaudhary v. R.K. Datta, AIR 1958 SC 722, the governing body of a college
dismissed the principal, but the university concerned directed to reinstate him. Under the
relevant statute the university could interfere with the decision of the governing body in the
case of a ’’teacher" which term as interpreted by the Supreme Court did not include the
Principal. The university therefore acted without jurisdiction.
Similarly, in Calcutta Electricity Supply Corporation v. Workers Union, AIR 1959 SC 1191, the
relevant regulation empowered the management to award a claim for medical aid of employees,
it will be exceeding in its jurisdiction in granting the said benefit to the family members of the
employees.
(2) Non-application of mind:
(i) Acting under dictation: Where the authority exercises its discretionary power under the
instructions or dictation from superior authority it is taken as non-exercise of power by
the authority and its decision or action is bad. In such condition the authority purports
to act on its own but in substance the power is not exercised by it but by the other
authority. The authority entrusted with the powers does not take action on its own
judgment and does not apply its mind.
In Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 60, the Police Commissioner
empowered to grant license for construction of cinema theatres, granted the license but later
cancelled it on the discretion of the Government. The cancellation order was declared bad as
the Police Commissioner did not apply his mind and acted under the dictation of the
Government

(ii) Self restriction: If the authority imposes fetters on its discretion by announcing rules of
policy to be applied by it rigidly to all cases coming before it for decision, its action or
decision will be bad. The authority entrusted with the discretionary power is required to
exercise it after considering the individual cases and the authority should not imposes
fetters on its discretion by adopting fixed rule of policy to be applied rigidly to all cases
coming before it.
(iii) Acting without due care: Non-application of mind to an issue that requires an exercise of
discretion on the part of the authority will render the decision bad in law.
Preventive Relief
Question 12] Write a short note on: Preventive relief CS (Inter) – June 1995 (5 Marks)
Ans.: Preventive relief means preventing a person from doing such things or act, which he is
under an obligation not to do. It is directed to prevent the violation of negative act and the
therefore it is called as preventive relief. The power upon Courts to prevent and to restrain is
absolutely necessary for effective administration of justice. Preventive relief is granted at the
discretion of the Court by injunctions – temporary or perpetual.
Que. No. 13] What remedies are available against arbitral or abuse of administrative
actions by government or those exercising administrative discretion?
Write a short note on: Injunction
Ans.: The ordinary Courts in exercise of the power provide the ordinary remedies under the
ordinary law against the administrative authorities. These remedies are also called equitable
remedies and include: (a) Injunction (b) Declaratory Action (c) Action for damages. They
discussed as under:
(a) Injunction: Where a person is in breach of his obligation i.e. where he is doing something
which he is under obligation not to do, the Court may by issue of an order, restrain him
from doing it. Such an order of the Court is known as injunction. An injunction is a
preventive remedy. It is a judicial process by which one who has invaded or is threatening
to invade the rights of another is restrained from continuing or commencing such wrongful
act.
Injunction is issued for restraining a person to act contrary to law or in excess of its
statutory powers. An injunction can be issued to both administrative and quasi-judicial
bodies. Injunction is highly useful remedy to prevent a statutory body from doing an ultra
vires act, apart from the cases where it is available against private individuals e.g. to
restrain the commission or torts, or breach of contract or breach of statutory duty.
Injunction may be prohibitory or mandatory.
(i) Prohibitory Injunction: Prohibitory injunction forbids the defendant to do a wrongful
act, which would infringe the right of the plaintiff. A prohibitory injunction may be
interlocutory or temporary injunction or perpetual injunction.
(1) Temporary or Interlocutory injunction: Temporary injunctions are such as to
continue until a specified time or until the further order of the Court. It does not
conclude or determine a right. The purpose of a temporary injunction is to
maintain the status quo and prevent irreparable damage or preserve the subject
matter of the litigation until the trial is over. After the trial, the Court may issue a
permanent injunction or dissolve the temporary injunction. It is a provisional
remedy granted to temporarily curb activity until the court can make a final
decision after trial. Temporary injunction may be granted at any stage of a suit.
Temporary injunctions are regulated by the Code of Civil Procedure, 1908.
(2) Perpetual injunction: A perpetual or permanent injunction is a type of order issued
by a Court after a full trial on the merits of a case has been conducted. A
permanent injunction order is typically issued for the purpose of requiring a
person or entity to permanently stop acting in a certain manner.

(ii) Mandatory injunction: When to prevent the breach of an obligation it is necessary to

compel the performance of certain acts which the Court is capable of enforcing, the
Court may in its discretion grant an injunction to prevent the breach complained of and
also to compel performance of the requisite acts. The mandatory injunction may be
taken as a command to do a particular act to restore things to their former condition or
to undo, that which has been done. It prohibits the defendant from continuing with a
wrongful act and also imposes duty on him to do a positive act.
Example: X threatens to publish statements concerning Y which would be punishable
under the Indian Penal Code, 1860. The Court may grant an injunction to restrain the
publication, even though it may be shown not to be injurious to Y.
(b) Declaratory Action: In some cases where wrong has been done to a person by an
administrative act, declaratory judgments may be the appropriate remedy. Declaration
may be taken as a judicial order issued by the Court declaring rights of the parties without
giving any further relief. Thus, a declaratory decree declares the rights of the parties. In
such a decree there is no sanction, which an ordinary judgment prescribes against the
defendant. By declaring the rights of the parties it removes the existing doubts about the
rights and secures enjoyment of the rights. It is an equitable remedy. It is a discretionary
remedy and cannot be claimed as a matter of right.
Law relating to declaratory decree is contained in Section 34 & 35 of the Specific Relief Act,
1963 which is discussed below:
Discretion of court as to declaration of status or right [Section 34]: The Court may grant a
declaratory decree in favour of plaintiff when the plaintiff satisfies the Court as to the
following:
- That he is entitled to a legal character or right to property.
- He will also have to prove that the defendant is either denying, or interested to deny his
title to such character or right.
The declaration cannot be sought on speculative grounds.
When Court refuses to grant declaratory decree: However, the Court will refuse to grant a
declaratory decree where the plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so.
Instances of legal status are:
 Status of an adopted son
 Priest of a temple
 Legal character by marriage
 Legitimacy or illegitimacy
 Divorce on the ground of impotency
Effect of declaration [Section 35]: A declaration is binding only on:
- The parties to the suit,
- Persons claiming through them respectively, and
- Where any of the parties are trustees, on the persons for whom, if in existence at the
date of the declaration, such parties would be trustees.
Such declaratory decrees are not judgments-in-rem and as such cannot bind strangers.
(c) Action for damages: If any injury is caused to an individual by wrongful or negligent acts of
the Government servant, the aggrieved person can file suit for the recovery of damages
from the Government concerned.
Question 14] Distinguish between: Temporary Injunction & Perpetual Injunction

CS (Inter) – June 2000 (4 Marks), CS (Inter) – Dec 2003 (4 Marks)
Ans.: Following are main points of distinction between temporary and perpetual injunction:
Points Temporary Injunction Perpetual Injunction
Meaning A temporary injunction is a Court Order A perpetual injunction is a type of order
prohibiting an action until there has been issued by a Court after a full trial on the
a trial or other Court action. merits of a case has been conducted.

Nature A temporary injunction is provisional in Perpetual injunction is permanent in

nature as it does not conclude or nature as it determines a right on merits
determine a right. of the suit.
Governing Temporary injunctions also known as Perpetual injunctions are granted under
statue interlocutory and are granted under the Section 38 of the Specific Relief Act,
Civil Procedure Code 1908. 1963.
Stage of It is granted before plaintiff establishing Perpetual injunction can be granted only
granting his case at the trial and continues up to a after hearing the defendant and upon the
specified time. merits of the suit.
Replacement Temporary injunction may be replaced by Perpetual injunction cannot be replaced by
perpetual injunction on merits of the case. temporary injunction.
Question 15] X is property in possession of certain lands. The inhabitants of

neighbouring village claim a right of way across the land. What is the remedy available
to X?
Ans.: Any person entitled any legal character or to any right as to any property may institute a
suit against any person denying or interest in denying his title to such character or right and
the Court may in its discretion make there in declaration that he is so entitled. Thus, X may
sue for a declaration that they inhabitant of neighbouring village are not entitled to the right so
claimed.
Question 16] A files a suit against B for declaration that house X belongs to him. He also
prays for delivery of possession of the house to him. The Court passes a declaratory
decree in favour of A and orders that possession of the house be delivered to A. Now, C
files suit against A for delivery of house X to him on the ground that the house belongs
to him. A pleads in defense that the Court has already made a declaration that house X
belongs to him. Will the Court accept this defense?
Ans.: According to Section 35 of the Specific Relief Act, 1963, a declaratory decree is binding
only on the parties to the suit in which there decree is passed, or on persons claiming through
such parties respectively.
Since, C was not party to the suit in which decree was passed, it is not binding against him.
The Court, therefore, will not accept the defense of A.
Question 17] Madhav, a Hindu, in a suit to which Urvashi, his wife is the defendant,
seeks a declaration that his marriage was duly solemnized and prays for an order of
restitution of conjugal rights. The Courts makes the declaration and order of restitution
of conjugal rights. Chanchal, a third party, claims that Urvashi is his wife and prays to
the Court to annul the declaration made in favour of Madhav. Decide.
Ans.: According to Section 35 of the Specific Relief Act, 1963, a declaratory decree is binding
only on the parties to the suit in which there decree is passed, or on persons claiming through
such parties respectively. Since, Chanchal was not party to the suit in which decree was
passed, it is not binding against him.
Principles of Natural Justice
Que. No. 18] No person should be made a judge in his own cause. Comment.
Ans.: It is a fundamental principle that no man shall be a judge of his own cause. The principle
is that a judge is disqualified from determining any case in which he may, or may fairly be

suspected to have an interest in the subject matter. The underlying principle is that 'justice
should not only be done, but should manifestly and undoubtedly be seen to be done.
In the case of A.K.Kraipak v. Union of India, AIR (1970) SC 150, the facts show that one of the
members of a selection board constituted to make the selection to a Central cadre, was also a
candidate for the interview. After the interview, the name of the candidate appeared at the top
of the list. This was challenged as infringing the principles of natural justice. It was held that as
the member was one of the persons to be considered for selection it was against all canons of
justice to make him judge of his own cause. Though he did not participate in the deliberation of
the committee when his name was considered, his presence in the selection board must have
had its own impact on the decision of the board. It was also held that it was his interest to keep
out his rivals in order to keep his position safe. It follows that the Supreme Court has declared
that there need not be any actual deliberation to make it invalid.
The first requirement is that the Judge should be impartial and natural and must be free from
bias. One cannot act as judge of a cause in which he himself has some interest either
pecuniary or otherwise as it affords the strongest proof against neutrality. One must be in a
position to act judicially and to decide the matter objectively. If the judge is subject to bias in
favour of or against either party to the dispute or is in a position that a bias can be assumed,
he is disqualified to act as a judge and the proceedings will be vitiated. It is a well settled
principle of law that justice should not only be done but manifestly and undoubtedly be seen to
be done.
Que. No. 19] Write a short note on: Rule against bias
Ans.: Rule against bias (nemojudex in causa sua): 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 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:
(a) Pecuniary bias: Pecuniary bias, however slight, will vitiate the decision. This is a case where
the deciding authority has monitory or proprietary interest in the subject matter. The
historical example is the decision of the House of Lords in Dimes v. Grand Junction Canal
Co. (1852) 3 H.L C. 759. There the judgment of Lord Cottonham in a case was set aside
since he held shares in the respondent company. It was observed, "It is of importance that
the maxim that no man is to be a judge in his own cause should be held sacred". It was
rightly stated that a pecuniary interest however slight, will disqualify even though it is not
proved that the decision is in any way affected.
In Visakapatnam Motor Transport Ltd. v. Bangaruraju, A.I.R. (1953) Mad. 709, the Regional Transport
Authority presided over by the District Collector, granted a permit to a co-operative society of which
the Collector was the president. The Court set aside the order on the ground that the order of the
authority was contrary to the principles of natural justice.
In J. Mahopatra & Co. v. State of Qrissa, A.I.R. 1984 SC 1572, some of the members of the
Committee set up for selecting books for educational instructions were themselves authors whose
books were also to be considered for selection. The Supreme Court held that the possibility of bias
cannot be ruled out.
(b) Personal bias: Personal bias may arise owing to friendship, personal animosity or near
relationship. But it is difficult to say when it will vitiate the order. What is required is taking
a decision Personal animosity will vitiate the order. In P. H. Kalyani v. Air France, Culcutta,
AIR (1963) SC 1756, it was held that where an enquiry was conducted by an Officer against
whom the delinquent employee had earlier given evidence In a criminal proceeding was held
incompetent to hold a disciplinary enquiry.
In Cottle v. Cottle (1939) All E. R. 539, the Chairman of the Bench was friend of the wife's family, who
had instituted matrimonial proceedings against her husband and the wife had told the husband
that the Chairman would decide the case in her favour. The order was quashed by the Divisional

Court.
In Meenglass Tea Estate v. Workman, AIR 1963 SC 1719, the manager conducted an enquiry against
a Workman for the allegation that he had beaten the Manager. It was held that the inquiry was
vitiated by personal bias.
(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.
In Baidvanath Mahapatra v. State of Orissa, AIR 1989 SC 2218, Committee recommended for the
Premature retirement of a Government Servant at the age of 50 years. One of the members of the
Review Committee who recommended premature retirement of the Appellant was appointed as the
Chairman of the Tribunal and confirmed the Order of premature retirement. The Supreme Court
held that the Order of the Tribunal was vitiated since the member, "who had administratively taken
a decision against the Appellant, considered the matter judicially as a Chairman of the Tribunal,
thereby he acted as a judge of his own cause".
Que. No. 20] Explain the rule of ‘audi alteram partem’ with the help of decided cases.
Write a short note on: Rule of fair hearing
Write a short note on: Opportunity of being heard
Ans.: The second principle of natural justice is audi alteram partem. Hear the other side is the
essence of the principle.
The authority –
- Must not hear one side in absence of other, or
- Must not make decision without hearing the other side.
Being part of natural justice, it was made applicable even to administrative authority
adjudicating matter having civil consequences. In practice it is more frequently invoked than
the rule against bias. No proposition can be more clearly established than that a man cannot
incur the loss of liberty or property for an offence by a judicial proceeding until he has had a
fair opportunity of answering the case against him.
Essential ingredients of the rule of fair hearing: Following are the ingredients of the rule of fair
hearing:
(a) Right to Notice: Notice is the first limb of a proper hearing. Notice should be definite. It
should specify the authority issuing the notice. The notice must give sufficient time to the
person concerned to prepare his case. Whether the person concerned has been allowed
sufficient time or not depends upon the facts of each case. The notice must be adequate
and reasonable. The notice is required to be clear and unambiguous. If it is ambiguous or
vague, it will not be treated as reasonable or proper notice.
The Courts insist that sufficient time should be given to the person against whom action is
proposed to be taken to prepare his defence. The Court has struck down a notice which
stated that an enquiry would be held in the next morning. Notice need not be reissued if
the concerned party acquires knowledge of the proceeding and appears before the
authority. But if the statute specifically provides for a notice the proceeding may be struck
down for failure to issue the notice.
In R v. University of Cambridge, (1723) 1 Str. 757 8 Mod 143, 93 ER 698, Dr. Bentley was deprived
of his degrees by the Cambridge University on account of his alleged misconduct without giving any
notice or opportunity of hearing. The Court of King's Bench declared the decision as null and void.
In Swadeshi Cotton Mills v. Union of India AIR 1981 SC 818, taking over the management of a
company by the Government without proper notice or hearing was held to be bad and contrary to
law.
(b) Right to present case and evidence: The party against whom proceedings have been initiated
must be given full opportunity to present his or her case and the evidence in support of it.
The reply is usually in the written form and the party is also given an opportunity to
present the case orally.

The question whether hearing to be effective, a personal hearing to be given or only an

opportunity to file an explanation is sufficient deserves attention. Hearing does not
ordinarily include a personal hearing unless the statute expressly or impliedly indicates so.
The Supreme Court spoke in favour of personal hearing in Travancore Rayons v. Union of
India, AIR (1971) SC 862. The Court expressed the view that if personal hearing was given
in cases involving complex and difficult questions, it would conduce to better
administration and more satisfactory disposal of the grievances of citizens.
(c) Right to rebut adverse evidence: Principle of natural justice also requires that every party
shall have the right to present his case or defense by oral or documentary evidence, to
submit rebuttal evidence, and to conduct such cross examination as may be required for a
full and true disclosure of the facts.
For the hearing to be fair the adjudicating authority is not only required to disclose to the
person concerned the evidence or material to be taken against him but also to provide an
opportunity to rebut the evidence or material.
(i) Cross-examination: Examination of a witness by the opposite party is called cross-
examination. The main aim of cross-examination is the detection of falsehood in the
testimony of the witness. The rules of natural justice say that evidence may not be
read against a party unless the same has been subjected to cross-examination or at
least an opportunity has been given for cross examination.
(ii) Legal Representation: Ordinarily the representation through a lawyer in the
administrative adjudication is not considered as an indispensable part of the fair
hearing. However, in certain situations denial of the right to legal representation
amounts to violation of natural justice. Thus, where the case involves a question of
law or matter which is complicated and technical or where the person is illiterate or
expert evidence is on record or the prosecution is conducted by legally trained
persons, the denial of legal representation will amount to violation of natural justice.
In such conditions the party may not be able to meet the case effectively and therefore
he must be given the opportunity to engage professional assistance to make his right
to be heard meaningful.
(d) Disclosure of evidence: A party must be given full opportunity to explain every material that
is sought to be relied upon against him. Unless all the material (e.g. reports, statements,
documents, evidence) on which the proceeding is based is disclosed to the party, he cannot
defend himself properly.
(e) Reasoned Decision or Speaking Orders: Till recently, it was considered that the requirement
to give reasons was not part of the principles of natural justice. In India there is no general
statutory provision which requires the authority to give reasons. But, the Courts have
entrusted the duty on the administrative authorities to give reasons. When a statute
imposes the requirement of giving reasons it is considered to be mandatory.
In Padfield V. Minister of Agriculture, (1968) I ALL E.R. 694, the Minister gave reasons for refusing to
refer the complaint to the Committee and gave detailed reasons for his refusal. It was admitted that
the question of referring the complaint to a committee was within his discretion. When his order
was challenged, it was argued that he was not bound to give reasons and if he had not done so, his
decision could not have been questioned and his giving of reasons could not put him in a worse
position. The House of Lords rejected this argument and held that the Ministers' decision could
have been questioned even if he had not given reasons. It is submitted that the above view is
correct.
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.
Que. No. 21] Briefly explain the exceptions to rule of natural justice.

Ans.: The principles of natural justice have taken deep root in the judicial conscience of our
people. They are now considered so fundamental as to be 'implicit in the concept of ordered
liberty and therefore, implicit in every decision making function, call it judicial, quasi-judicial
or administrative.
Where authority functions under a statute and the statute provides for the observance of the
principles of natural justice in a particular manner, natural justice will have to be observed in
that manner and in no other. No wider right than that provided by statute can be claimed nor
can the right be narrowed. Where the statute is silent about the observance of the principles of
natural justice, such statutory silence is taken to imply compliance with the principles of
natural justice. The implication of natural justice being presumptive it may be excluded by
express words of statute or by necessary intendment. So the principles of natural justice can be
modified and also in exceptional cases they can even be excluded. Some the exceptions are
given 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. However, the principles of natural justice
are not incapable of exclusion. The statute may exclude them. When the statute expressly
or by necessary implication excludes the application of the principles of natural justice the
courts do not ignore the statutory mandate. But one thing may be noted that in India,
Parliament is not supreme and therefore statutory exclusion is not final. The statute must
stand the test of constitutional provision. Even if there is no provision under the statute
for observance of the principle of natural justice, courts may read the requirement of
natural justice for sustaining the law as constitutional.
In Defense of India Act, 1962, Rule 29 & 30 empowers the executive to make orders for externment
for the maintenance of public order. No hearing was necessary for the purpose of making such
Order to direct the removal, detention, externment, interment and the like of any person, if it is
‘satisfied’ that such order was necessary for the defense or efficient conduct of military operations
and maintenance of Public order.
In Union of India v. Cynamide India Ltd. SC held that no principles of Natural Justice had been
violated when the Govt. issued a notification fixing the Prices of certain drugs. The Court reasoned
that since the notification showed from a legislative act and not an administrative one so Principles
of Natural Justice would not applied.
(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.
Emergency or prompt action in case of public interest, public safety or public health was
held to be a reasonable, valid and justifiable ground for exclusion of Principles of Natural
Justice. Thus, the pre-decisional hearing may be excluded where the prompt action is
required to be taken in the interest of the public safety or public morality.
(3) Interim disciplinary action: The rules of natural justice are not attracted in the case of
interim disciplinary action.
Example 1: The order of suspension of an employee pending an inquiry against him is not
final but interim order and the application of the rules of natural justice is not attracted in
case of such order.
Example 2: Interim anti-social behaviour orders made without notice are not unlawful
where it is necessary for the court to act urgently to protect the interests of a third party or
to ensure that the order of the court is effective.
(4) Academic evaluation: Where a student is removed from an educational institution on the
grounds of unsatisfactory academic performance, the requirement of pre-decisional
hearing is excluded. The Supreme Court has made it clear that if the competent academic
authority assess the work of a student over the period of time and thereafter declare his
work unsatisfactory the rule of natural justice may be excluded but this exclusion does not
apply in the case of disciplinary matters.
In Karnataka Public Service Commission v. B.M. Vijay Shanker, when the commission cancelled the

examination of the candidate because, in violation of rules, the candidate wrote his roll number on
every page of the answer-sheet, the Supreme Court held that the principles of natural justice were
not attracted, the Court observed that the rule of hearing be strictly construed in academic
discipline and if this was ignored it would not only be against the public interest but also erode
the social sense of fairness.
(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.
In P. Radhakrishna v. Osmania University, AIR 1974 AP 283, where the entire MBA entrance
examination was cancelled by the University because of mass copying, the Court held that notice
and hearing to all candidates not possible in such a situation, which had assumed national
proportions, Thus the court sanctified the exclusion of the rules of natural justice on the ground
of administrative impracticability.
Que. No. 22] Abhay a student of Dayaram Medical College was debarred from entering
into premises of the college and attending the class till the pendency of a criminal case
against him for stabbing Ranvir, another student of the college. In preliminary enquiry
before the college authority he submitted that he has not stabbed Ranvir and debarring
him from attending the college will cause lot of loss in his studies and such order is
against the principle of natural justice as he has not been given opportunity of being
heard in preliminary enquiry. Decide.
Ans.: The rules of natural justice are not attracted in the case of interim disciplinary action. In
Abhay Kumar v. K. Srinivasan AIR 1981 Delhi 381, an order was passed by the college authority
debarring the student from entering the premises of the college and attending the class till the
pendency of a criminal case against him for stabbing a student. The Court held that the order
was interim and not final. It was preventive in nature. It was passed with the object to maintain
peace in the campus. The rules of natural justice were not applicable in such case.
Thus, keeping in view of above decision it can be concluded that there is no violation of
principle of natural justice. Further only preliminary enquiry is started and on completion of
final proceedings of complaint if college authorities & police do not found Abhay guilty of
charges, he will be allowed to attend the college. Hence, Abhay is advised to cooperate in
enquiry so that proceedings are completed as early as possible to avoid further loss of his
studies.
Government Contract
Que. No. 23] Write a short note on: Government Contract
Ans.: A contract to which the Central Government or a State Government is a party is called a
'Government Contract'. The Indian Contract Act, 1872 does not prescribe any form for entering
into contracts. A contract may be oral or in writing. It may be expressed or be implied from the
circumstances of the case and the conduct of the parties. But the position is different in respect
of Government Contracts. A contract entered into by or with the Central or State Government
has to fulfill certain formalities as prescribed by Article 299 of the Indian Constitution.
It is true that in respect of Government Contracts the provisions of Article 299(1) must be
complied with, but that does not mean that the provisions of the Indian Contract Act have been
superceded.
In the case of State of Bihar v Majeed the Supreme court has held that "it may be noted that
like other contracts, a Government Contract is also governed by the Indian Contract Act, yet it
is distinct a thing apart. In addition to the requirements of the Indian Contract Act such as
offer, acceptance and consideration, a Government Contract has to be complied with the
provisions of Article 299. Thus, subject to the formalities prescribed by Article 299 the
contractual liability of the Central or State Government is the same as that of any individual
under the ordinary law of contract."

As regards the interpretation of contract, there is no distinction between the contracts to which
one of the parties is the Government and between the two private parties.
Though there is hardly any distinction between a contract between private parties and
Government contract so far as enforceability and interpretation are concerned yet some special
privileges are accorded to the Government in the shape of special treatment under statutes of
limitation.
Que. No. 24] Discuss the provisions relating to formation of Government Contract under
the Constitution of India.
Ans.: Formation of Government Contracts: The executive power of the Union of India and the
States to carry on any trade or business, acquire, hold and dispose property and make
contracts is affirmed by Article 298 of the Constitution of India. If the formal requirements
required by Article 299 are complied with, the contract can be enforced against the Union or
the States.
Article 299 provides:
1. All contracts made in the exercise of executive power of the union or a state shall be
expressed to be made by the President or by the Governor of the State as the case may be,
and all such contracts and all assurances of property made in the exercise of that power
shall be executed on behalf of the President or the Governor by such person and in such
manner as he may direct or authorize.
2. Neither the President nor the Governor shall be personally liable in respect of any contract
or assurance made or executed for the purpose of any enactment relating to Government of
India hereto before in force, nor shall any such contract or assurance on behalf of any of
them be personally liable in respect thereof.
Thus, Article 299 lays down three conditions which the contracts made in the exercise of the
executive power of the Center or a State must fulfill to be valid –
(a) The contract must be expressed to be made by the President or the Governor as the case
may be.
(b) These contracts made in the exercise of the executive power are to be executed on behalf of
the President/Governor as the case may be.
(c) The execution must be by such person and in such manner as the President or the
Governor of the case as the case may be, may direct or authorize.
It has been held by the Supreme Court in the case of Bhikaraj Jaipuria vs Union of India, AIR
1962 SC 113, it is clear from the words "expressed to be made" and "executed" that there must
be a formal written contract. The provisions of Article 299(1) are mandatory in character and
any contravention thereof nullify the contract and makes it void.
Where a contract is made by tender and acceptance, the acceptance must be made by a duly
authorized person and on behalf of the President, and a valid contract may result from
correspondence.
Implied Contract with the Government: In view of Article 299(1) there can be no implied contract
between the government and another person, the reason being that if such implied contracts
between the government and another person were allowed, they would in effect make Article
299(1) useless, for then a person who had a contract with the government which was not
executed at all in the manner provided under Article 299(1) could get away by saying that an
implied contract may be inferred on the facts and the circumstances of the particular case.
Que. No. 25] What are the remedies available against breach of contract by the
Government to other party?
Can writ of mandamus be issued against the Government for the enforcement of
contractual obligations?
Ans.: As soon as a contract is executed with the Government in accordance with Article 299,
the whole law of contract as contained in the Indian Contract Act, 1872 comes into operation.
In India the remedy for the breach of a contract with Government is simply a suit for damages.

Earlier the writ of mandamus could not be issued for the enforcement of contractual obligations
but the Supreme Court in its pronouncement in Gujarat State Financial Corporation v. Lotus
Hotels, 1983 3 SCC 379, has taken a new stand and held that the writ of mandamus can be
issued against the Government or its instrumentality for the enforcement of contractual
obligations. The Court ruled that it cannot be contended that the Government can commit
breach of a solemn undertaking on which other side has acted and then contend that the party
suffering by the breach of contract may sue for damages and cannot compel specific
performance of the contract through mandamus.
In the case of Shrilekha Vidyarathi v. State of U.P, 1991 SCC 212, the Supreme Court has made
it clear that the State has to act justly, fairly and reasonably even in contractual field. The
Court has held that the State action is public in nature and therefore it is open to the judicial
review even if it pertains to the contractual field. Thus, the contractual action of the State may
be questioned. It is to be noted that the provisions of Sections 73, 74 & 75 of the Indian
Contract Act, 1872 dealing with the determination of the quantum of damages in the case of
breach of contract also applies in the case of Government contract.
Que. No. 26] Write a short note on: Quasi contractual liability of the Government
Ans.: Obligation of person enjoying benefit of non-gratuitous act [Section 70 of the Indian Contract
Act, 1872]: Where a person lawfully does anything for another person, or delivers anything to
him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the
latter is bound to make compensation to the former in respect of, or to restore, the thing so
done or delivered.
Illustrations: (As given in Indian Contract Act, 1872)
(a) A, a tradesman, leaves goods at B's house by mistake. B treats the goods as his own. He is bound to
pay A for them.
(b) A saves B's property from fire. A is not entitled to compensation from B, if the circumstances show
that he intended to act gratuitously.
If the requirements of Section 70 are fulfilled, even the Government will be liable to pay
compensation for the work actually done or services rendered by the State.
Section 70 is not based on any subsisting contract between the parties but is based on quasi-
contract or restitution. Section 70 enables a person who actually supplies goods or renders
some services not intending to do gratuitously, to claim compensation from the person who
enjoys the benefit of the supply made or services rendered. It is a liability, which arise on
equitable grounds even though express agreement or contract may not be proved.
Suit against State in Torts
Question 27] Write a short note on: Vicarious liability of State/Government

Ans.: Unlike the Crown Proceeding Act, 1947 of England, we have no statutory provision with
respect to the liability of the State in India. 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.
In India Article 300 of the Constitution declares that the Government of India or of a State may
be sued for the tortious acts of its servants in the same manner as the Dominion of India and
the corresponding provinces could have sued or have been sued before the commencement of
the Constitution. This rule is, however, subject to any such law made by the Parliament or the
State Legislature. No law has so far been passed as contemplated by Article 300(1).

Que. No. 28] Whether Government is liable for tort committed by its servant in the
course of the discharge of statutory duties?
Ans.: In Kasturi Lal v. State of U. P., AIR 1965 SC 1039, the Government was not held liable for
the tort committed by its servant because the tort was said to have been committed by him in
the course of the discharge of statutory duties. The statutory functions imposed on the
employee were referable to and ultimately based on the delegation of sovereign powers of the
State. The Court held that the
Government was not liable as the activity involved was a sovereign activity. The Court affirmed
the distinction between sovereign and non-sovereign function.
There are, on the other hand, a good number of cases where the Courts, although have
maintained the distinction between sovereign and non-sovereign functions yet in practice have
transformed their attitude holding most of the functions of the government as non-sovereign.
These cases show that the traditional sovereign functions are the making of law, the
administration of justice, the maintenance of order, the repression of crime, carrying on for
war, the making of treaties of peace and other consequential functions.
Though this list is not exhaustive, it is at least clear that the socio-economic and welfare
activities undertaken by a modern state are not included in the traditional sovereign functions.
Consequently there has been an expansion in the area of governmental liability in torts.
Que. No. 29] The driver of a jeep, owned and maintained by the State of Rajasthan for
the official use of the Collector of the district, drove it rashly and negligently while
taking it back from the workshop to the residence of the Collector after repairs, knocked
down a pedestrian and fatally injured him. Whether State is vicariously liable for
damages caused by the negligence of the driver?
Ans.: In State of Rajasthan v. Vidyawati, AIR 1962 SC 933, the driver of a jeep, owned and
maintained by the State of Rajasthan for the official use of the Collector of the district, drove it
rashly and negligently while taking it back from the workshop to the residence of the Collector
after repairs, knocked down a pedestrian and fatally injured him. The State was sued for
damages. The Supreme Court held that the State was vicariously liable for damages caused by
the negligence of the driver.
The decision of the Supreme Court in above case introduces an important qualification on the
State immunity in tort based on the doctrines of sovereign and non-sovereign functions. It
decided that the immunity for State action can only be claimed if the act in question was done
in the course of the exercise of sovereign functions. Thus, immunity is not available for non-
sovereign functions and State will liable for the damages.
Question 30] M, a doctor of a State Government hospital was negligent while conducting
an eye operation for P due to which he became blind. P sues the State Government for
damages. Will he succeed? CS (Inter) – Dec 1990 (5 Marks)
Ans.: The State Government is vicariously liable for the negligent performance of duties of its
servant due to which P became blind. As the running of hospital services is not to be
considered a sovereign function, the state cannot plead immunity. In view of this, ‘P’ will
succeed.
Question 31] The Municipal Corporation pulls down a building which is declared unfit for
human habitation. An affected tenant wants to sue the Municipal Corporation for
Ans.: In the given case, the affected tenant will not succeed in claiming damages from the
Municipal Corporation. As per the facts of the case, the municipal corporation pulls down the
building which is declared unfit for human habitation, and the action of the municipal

corporation will be considered as an act of necessity which is a defence in an action against

tortuous liability.
Question 32] A lady doctor of a government hospital was negligent while conducting
operation of Dinkar’s leg. The lady doctor amputated left leg of Dinkar instead of his
right leg by mistake. Dinkar filed suit against the authority of the government hospital
and lady doctor for damages on the plea of negligence. Will he succeed?
Ans.: Yes. Dinkar will succeed. Where the relations of master and servant exits, a master is
liable not only for those authorized acts which have been committed by the servants but also
for the acts done by him which not specifically authorized in the course of his employment.
The defence of the government that running of a hospital is a sovereign function and hence it is
not liable will not hold good, as declared in various cases. The extent of liability of lady doctor
would be determined by the rules/conditions of her employment.
Liability of the Public Servant & Statutory Corporations
Que. No. 33] Write a short note on: Liability of the public servant
Ans.: It may happen that a public servant may be negligent in exercise of his duty. It may,
however, be difficult to recover compensation from him. From the point of view of the aggrieved
person, compensation is more important than punishment. Therefore, like all other employers
the State must be made vicariously liable for the wrongful acts of its servants.
The Courts in India are now becoming conscious about increasing cases of excesses and
negligence on the part of the administration resulting in the negation of personal liberty. Hence,
they are coming forward with the pronouncements holding the Government liable for damages
even in those cases where the plea of sovereign function could have negative the governmental
liability. One such pronouncement came in the case of Rudal Shah v. State of Bihar, AIR 1983
SC 1036. Here, the petitioner was detained illegally in the prison for over fourteen years after
his acquittal in a full dressed trail. The Court awarded `30,000 as damages to the petitioner.
In Bhim Singh v. State of J&K, AIR 1986 SC 494, where the petitioner, a member of legislative
Assembly was arrested while he was on his way to Srinagar to attend Legislative Assembly in
gross violation of his constitutional rights under Articles 21 and 22(2) of the Constitution, the
court awarded monetary compensation of `50,000 by way of exemplary costs to the petitioner.
Another landmark case namely, C. Ramkonda Reddy v. State, AIR 1989 AP 235, has been
decided by the Andhra Pradesh, in which State plea of sovereign function was turned down and
damages were awarded despite its being a case of exercise of sovereign function.
In Saheli a Women’s Resource Center v. Commissioner of Police, Delhi, AIR 1990 SC 513, where
the death of 9 years old boy took place on account of unwarranted atrocious beating and
assault by a Police officer in New Delhi, the State Government was directed by the Court to pay
`75,000 as compensation to the mother of victim.
In Lucknow Development Authority v. M.K. Gupta, 1994 1 SCC 245, the Supreme Court observed
that where public servant by mala fide, oppressive and capricious acts in discharging official
duty causes injustice, harassment and agony to common man and renders the State or its
instrumentality liable to pay damages to the person aggrieved from public fund, the State or its
instrumentality is duly bound to recover the amount of compensation so paid from the public
servant concerned.
Liability of the State must be distinguished from the liability of individual officers of the State.
So far as the liability of individual officers is concerned, if they have acted outside the scope of
their powers or have acted illegally, they are liable to same extent as any other private citizen
would be. The ordinary law of contact or torts or criminal law governs that liability. An officer
acting in discharge of his duty without bias or mala fides could not be held personally liable for
the loss caused to other person. However, such acts have to be done in pursuance of his official
duty and they must not be ultra vires his powers. Where a public servant is required to be

protected for acts done in the course of his duty, special statutory provisions are made for
protecting them from liability.
Que. No. 34] Write a short note on: Liability of Public Corporation
What do you understand by the term ‘Statutory Corporations’? Give examples. Also state
their main features.
Ans.: A public corporation is that form of public enterprise which is created as an autonomous
unit, by a Special Act of the Parliament or the State Legislature. Since, a public corporation is
created by a Statute; it is also known as a statutory corporation.
Following are some of the examples of Public Corporations:
 Life Insurance Corporation (LIC)  Central Warehousing Corporation
 Food Corporation of India (FCI)  Damodar Valley Corporation
 Oil and Natural Gas Corporation (ONGC)  National Textile Corporation
 Air India  Industrial Finance Corporation of India (IFCI)
 State Bank of India (SBI)  Tourism Corporation of India
 Reserve Bank of India (RBI)  Minerals and Metals Trading Corporation (MMTC)
 Employees State Insurance Corporation (ESIC)
Features: The main features of statutory corporations are as follows:
(1) Special statute: A public corporation is created by a special Act of the Parliament or the
State Legislature. The Act defines its powers, objectives, functions and relations with the
ministry and the Parliament or State Legislature.
(2) Separate legal entity: A public corporation is a separate legal entity with perpetual
succession and common seal. It has an existence, independent of the Government. It can
own properly; can make contracts and file suits, in its own name.
(3) Capital provided by the Government: The capital of a public corporation is provided by the
Government or by agencies controlled by the government. However, many public
corporations have also begun to raise money from the capital market.
(4) Financial autonomy: A public corporation enjoys financial autonomy. It prepares its own
budget; and has authority to retain and utilize its earnings for its business.
(5) Management by Board of Directors: Its management is vested in a Board of Directors,
appointed or nominated by the Government. But there is no Governmental interference in
the day-to-day working of the corporation.
(6) Own Staff: A publication corporation has its own staff; whose appointment, remuneration
and service conditions are decided by the corporation itself.
(7) Service Motive: The main objective of a public corporation is service-motive; though it is
expected to the self-supporting and earn reasonable profits.
(8) Public Accountability: A public corporation has to submit its annual report on its working.
Its accounts are audited by the Comptroller and Auditor General of India. Annual report
and audited accounts of a public corporation are presented to the Parliament or State
Legislatures, which is entitled to discuss these.
Que. No. 35] Can employees of the ‘Government Company’ claim salary fromm the
‘Government’? Discuss with reference to decided case law.
Ans.: Employees of government companies are not government servants, they have no legal
right to claim that the Government should pay their salary or that the additional expenditure
incurred on account of revision of their pay scales should be met by the Government. It is the
responsibility of the company to pay them the salaries. [A.K. Bindal v. Union of India (2003) 114
Com Cases 590 (SC)]
Que. No. 36] Can ‘Government Company’ is treated as ‘State or Central Government’ for
claiming exemption under the various statutes or Constitution of India?

Ans.: In Andhra Pradesh Road Transport Corporation v. ITO AIR 1964 SC 1486, the Andhra
Pradesh State Road Transport Corporation claimed exemption from taxation by invoking
Articles 289 of the Constitution of India according to which the property and income of the
State are exempted from the Union taxation. The Supreme Court, while rejecting the
Corporation’s claim, held that though it was wholly controlled by the State Government, it had
a separate entity and its income was not the income of the State Government. The Court
observed that the companies which are incorporated under the Companies Act have a corporate
personality of their own, distinct from that of the Government of India. The land and buildings
are vested in and owned by the companies, the Government of India only owns the share
capital.
In Hindustan Steel Works Construction Ltd. v. State of Kerala 1998, 2 Comp LJ 383, it was held
that inspite of all the control of the Government, the company is neither a Government
department nor a Government establishment, it is just an agency of the Government, and
hence not exempt from the purview of Kerala Construction Workers Welfare Funds Act. The
employees of a Government Company are not the employees of the Central or State
Government.
* * * * * * * * * * *

LAWS RELATING TO TORTS

1) 1. Tort occurs where there is a breach of general duty fixed by civil law.
Introduction 2. Passenger injured in road accident, patient injured by a negligent doctor,
citizen wrongfully arrested by police, landlord whose land has been trespassed.
3. Law allows claiming damages.
2) Tort = civil 1. Civil wrong caused by some act or omission done by defendant and which
wrong + legal causes harm to the plaintiff.
right 2. It is neither breach of contract nor breach of trust but gives the aggrieved party
a legal right.
3) Damnum Damnum- Damage in cash/ kind
sine injuria Injuria- Breach of legal right
(Harm Sine- Without
without legal Injuria sine damnum- When a conduct is actionable even though no damage is
wrong) caused. (i.e. legal right without damage).
Notes-
1. Losses caused by lawful business completion are not actionable under tort e.g.
school competition.
2. If damage is caused which does not lead to violation of a legal right then no
action lies under tort law.
3. Hurt to religious feelings had not been recognised as a legal wrong.
4) Rule of 1. ‘’Rylands v/s Fletcher”
strict 2. If a person brings anything from outside and accumulates on his land and
liability/ damage is caused to his neighbours, he will be responsible for the damage.
Absolute However carefully he took precautions to prevent the damage.
liability 3. The 2 conditions necessary for applying above rule are-
1) Damage should be caused.
2) Damage shall arise due to non- natural use of land (i.e. unusual).
4. Exceptions to the rule of strict liability-
1) Damage due to natural use of land
2) There is a consent of plaintiff
3) Act of third party, who is a stranger (i.e. neither a servant nor an agent)
4) Statutory authority taking reasonable care e.g. electricity companies, so
long as they take reasonable care and are not negligent).
5) Act of God
6) Escape due to plaintiff’s own default e.g. Delhi zoo –person was eaten by a
tiger.
5) Vicarious When a person is held liable for torts committed by another, it is known as
liability vicarious liability. E.g.
1. Master- Servant
2. Principal- Agent
Usually there 3. Partner- Co- partners
is principal- 4. Employer- Independent contractor
agent (Generally employer is not liable. However he is liable only if employer authorises
relationship the act or there is a negligence on the part of independent contractor).
Note-
To succeed in case of V.L. for wrongful act of servant-
1. Relationship of master and servant must exist.
2. Wrongful act was done in the course of employment e.g. Person carrying
matchsticks at petrol pump.
6) Vicarious Usually government shall be liable for it’s activities if-
liability of 1. The activities are of commercial nature
state (State 2. There is a negligence in performing the duties
includes CG, Note-
SG, Sovereign function (non- commercial/ public welfare at cost/ public interest)
Parliament, causing torts can not make the state liable e.g. Death of a person in prison, only
Local police can be held liable.
authority)
7) Mens Rea It means guilty mind. Under criminal law, Mens Rea must be proved.
8) Battery Applying force without the other person’s consent OR
Giving lawful justification.
9) Assault When an apprehension (i.e. fear) is created in mind of plaintiff that the defendant
is going to commit battery, it is an Assault.
10) False To prove the false imprisonment, the following elements must be present-
imprisonmen 1) Wilful detention and
t 2) Without consent and
3) Detention was unlawful
11) Malicious To make a person liable for this tort, following elements must be fulfilled-
prosecution 1) Prosecution of the plaintiff
2) Reasonable and probable cause for prosecution
3) Defendant acted maliciously
4) Plaintiff must have suffered damages
5) Prosecution terminated in favour of plaintiff
In malicious prosecution case, a person sues another person with wrongful motive
and without any reason.
12) Nervous It is psychiatric illness or injury by intentional or negligent actions or omissions
shock of another and to claim damages, there must be a close relationship between the
person who suffers nervous shock and the victim.
13) Libel and Libel-
Slander 1. It is in permanent form.
2. E.g. written words, cartoon, cinema films, etc.
Slander-
1. It is a statement of temporary nature.
2. E.g. spoken words/ gestures.
Notes-
1) Defamation= libel/ slander
2) Both libel and slander are torts in criminal law also. However, the tort in
criminal law is stricter than law of torts.
14) Remedies Remedies are as follows-
available to 1. Damages or
plaintiff in 2. Injunction (i.e. stay order) or
action 3. Specific restitution (i.e. Returning back) of property
against tort In some cases, damages and injunction can be claimed together. Two remedies
can be claimed together but all the three remedies can not be claimed together.
Exceptions – (i.e. To resolve ones injuries without going into court)
Following are the cases where no remedies are available in court but it is lawful
to redress one’s injuries by means of self help –
1) Self defence-right of protecting oneself.
2) An occupier of land has a right to prevent trespassers.
3) Wrongfully disposed of own land.
4) Protecting nuisance.
5) Detain any cattle (e.g. Cow, buffalo enters in a farm) which cause any damage
to land and give mental distress.
Q No. 1. Write short note on: Damnum sine injuria
Q No. 2. Write short note on: Injuria sine damno
Q No. 3. In the parliamentary by-election of 2019, Abhishek was qualified voter. The returning
officer wrongfully refused to register the duly tendered vote by Abhishek, No loss was suffered by
Abhishek because the candidate to whom he wanted to vote was declared elected. Yet Abhishek
sued the returning officer for damages. Will Abhishek succeed?
Q No. 4. The defendants, ship owners, engaged to carry tea to China, offered reduced freight
rates to shippers with a view to monopolies the trade and to oust the plaintiff from the trade. The
result was that the plaintiff, a rival trader, was driven out of the trade and suffered heavy losses.
Can the plaintiff get compensation for his losses?
Q No. 5. With a view to ward off the water in an overflowing stream, A, the owner of the land,
constructed bunds on his land. He succeeded in warding off the water from his land, but over
flooded the land of plaintiff B. B files a suit against A for injunction and damages, Will B
succeed?
Q No. 6. A suit is filed by Raju against Chitra Cinema for restraining itself from displaying the
film ‘Santoshi Mata, on the ground that Saraswati, Laxmi and Pravati are shown doing such acts
in the film, which hurt the religious sentiments of the plaintiff, Will the plaintiff succeed in the
suit?
Q No. 7. Atul was running a school at a certain place. Ali started another school near the school
of Atul. As a result of this, most of the students of Atul’s school left his school and joined Ali’s
school. Due to competition, Atul had to reduce the fees by Rs. 40 per student per quarter and
thus he suffered huge monetary loss. Atul filed a suit against Ali in the court for compensation.
Is the suit instituted by Atul maintainable? Give reasons by referring to relevant case law.
Q No. 8. What do you understand by the rule of strict liability? State its exceptions.
The rule of strict liability as laid down in Rylands vs. Fletcher
Describe the exceptions to the rule of strict liability.
Q No. 9. The defendant constructed a reservoir on his land. He took all precautions keeping in
view the expected rains. One year there were extraordinary rains. On account of the flow of
excess water in the reservoir its walls gave way, as a consequence whereof, the water escaped
and causes damage to the plaintiff. He files a suit for claiming damages against the defendant on
the ground that the defendant is liable to pay damages under the rule of strict liability. Will he
succeed?
Q No. 10. A mill owner employed an independent contractor to construct a reservoir on his land
to provide water for his mill. There were old disused mining shafts under the site of the reservoir,
which the contractor failed to observe because they were filled with soil. Therefore, the
contractor did not block them. When water was filled in the reservoir, it burst through the shaft
and flooded the plaintiff’s coal mines on the adjoining land. Is the mill owner liable to
compensate for loss or damage caused to the plaintiff? Give reasons.
Q No. 11. Akrosh planted a poisonous tree in his house. The camel of Bimal, his neighbor,
nibbled the leaves of the tree after entering Akrosh house and died. Decide the liability of Akrosh
under the rule of Rylands Vs. Fletcher.
Q No. 12. Write short note on: Vicarious Liability
Q No. 13. The plaintiff, an old customer went into a restaurant for the purpose of dining. When
he entered the room, a waiter took his coat without being asked, and hung it on a hook behind
him. When the plaintiff rose to leave, the coat was gone. Is the restaurant owner liable for the
loss of coat?
Q No. 14. 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 has done so without the knowledge of his principal. Will the
principal be liable for the fraud committed by his managing clerk?
Q No. 15. Anurag, a child, entered the botanical garden of a municipality and consumed some
attractive looking but poisonous berries. As a result of that, he died. The representatives of the
child sued the municipality for damages. Will they succeed? Give reasons.
Q No. 16. Write a short note on: Vicarious liability of State/Government
Q No. 17. M, a doctor of a State Government hospital was negligent while conducting an eye
operation for P due to which he became blind. P sues the State Government for damages. Will he
succeed?
Q No. 18. The Municipal Corporation pulls down a building which is declared unfit for human
habitation. An affected tenant wants to sue the Municipal Corporation for damages. Will he
succeed?
Q No. 19. A lady doctor of a government hospital was negligent while conducting operation of
Dinkar’s leg. The lady doctor amputated left leg of Dinkar instead of his right leg by mistake.
Dinkar filed suit against the authority of the government hospital and lady doctor for damages
on the plea of negligence. Will he succeed?
Q No. 20. Explain: Mens rea
Q No. 21. Distinguish between: Battery & Assault
Q No. 22. Write a short note on: Malicious prosecution
Q No. 23. What do you understand by defamation?
Distinguish between: Libel & Slander
Q No. 24. A publishes a statement that B has been sentenced to pay a fine of `100 or to undergo
imprisonment for 3 weeks. In fact, B was ordered to undergo alternative imprisonment for only 2
weeks. B files a suit against A for recovery of `5,000 as damages, for injuring his reputation by
publishing an incorrect statement relating to him. Will the Court give a verdict in favour of B?
Law of Torts 6.6
Chapter
6 Law of Torts
Introduction: The law of tort covers a wide range of situations, including diverse claims as those
of a passenger injured in a road accident, a patient injured by a negligent doctor, a citizen
wrongfully arrested by the police and a landowner whose land has been trespassed on. As a
result, it is difficult to pin down a definition of a tort; but, in broad terms, a tort occurs where
there is breach of a general duty fixed by civil law. When a tort is committed, the law allows the
victim to claim damages and other applicable reliefs.
Introduction
Question 1] What do you understand by term ‘tort’?
Ans.: In general, a tort consists of some act or omissions done by defendant (tortfeasor) whereby
he has without a lawful excuse caused some harm to plaintiff.
To constitute a tort, there must be:
- Wrongful act or omissions.
- It must result causing legal damage to another.
- It must give rise to legal remedy.
Tort [Section 2(m) of the Limitation Act, 1963]: “Tort means a civil wrong which is not exclusively
a breach of contract or breach of trust.”
Question 2] Every civil wrong is not a tort. Comment.

Ans.: Salmond defines tort as – “a civil wrong for which the remedy is a common law action for
un-liquidated damages and which is not exclusively the breach of a contract or the breach of a
trust or other merely equitable obligation.”
Fraser describes it as “an infringement of a right in rem of a private individual giving a right of
compensation at the suit of the injured party.”
Winfield says – “tortious liability arises from the breach of duty, primarily fixed by law; this
duty is towardspersons generally and its breach is redressable by an action for un-liquidated
damages”.
Two important elements can be derived from all these definitions, namely:
(i) That a tort is a species of civil injury of wrong as opposed to a criminal wrong, and
(ii) That every civil wrong is not a tort.
Question 3] Write a short note on: General conditions of liability for a tort
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, there must be:
(i) Wrongful act: The act complained of, should under the circumstances, be legally wrongful
as regards the party complaining. 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 eye 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 have been caused.

Law of Torts 6.7
Question 4] Distinguish between: Tort & Crime
Ans.: Following are the main points of distinction between tort & crime:
Points Tort Crime
Meaning A tort consists of some act or omissions Crime means any act or omission made
done by defendant whereby he has without punishable under any law.
a lawful excuse caused some harm to
plaintiff.
Seriousness Less serious wrongs are considered as More serious wrongs have been considered
private wrongs and have been labelled as to be public wrongs and are known as
civil wrong. crimes.
Suit The suit is filed by the injured person The case is brought by the State.
himself.
Compromise Compromise is always possible. Except in certain cases, compromise is not
possible.
Penalty The wrongdoer pays compensation to the The wrongdoer is punished.
injured party.
Damnum Sine Injuria & Injuria Sine Damnum
Question 5] Write short note on: Damnum sine injuria

Ans.: Damnum means damage in the sense of loss of money, comfort, health, service or physical
hurt or the like.
Injuria means breach of a legal right i.e. infringement of a right conferred by law on the plaintiff.
In some cases the act or omission of the defendant may have caused damage to the claimant
but the claimant may have no action as the interest affected may not be one protected by law.
Lawyers refer to this as damnum sine injuria or harm without legal wrong. Therefore, causing
damage however substantial to another person is not actionable in law, unless there is also
violation of legal right of the plaintiff.
Example: A opens a fish & chip shop in the same street as B’s fish & chip shop. A reduces his
prices with the intention of putting B out of business. A has committed no tort as losses caused
by lawful business competition are not actionable in tort.
In the Gloucester Grammar School case there was an established school in the locality. A new school
was set up which charged lower fees on account of which people started patronizing the new school.
The old school filed a case against the latter saying that they had caused them financial loss and
claimed compensation. It was held that no legal right had been violated and as such no compensation
can be granted. Thus if damage is caused which does not lead to violation of a legal right then no
action lies under tort law.
A number of steamship companies combined together and drove the plaintiff company out of the tea-
carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of
action as the defendants had by lawful means acted to protect and extend their trade and increase
their profits. [Mogul Steamship Co. v. McGregor Gow and Co. (1891) AC 25]
The plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting
the film named “Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the
plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were
ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong.
Moreover, no person has a legal right to enforce his religious views on another or to restrain another
from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since
there was no violation of a legal right, request of injunction was rejected. [Ushaben v. Bhagyalaxmi
Chitra Mandir]

Law of Torts 6.8
Question 6] Write short note on: Injuria sine damno

Ans.: There are cases where conduct is actionable even though no damage has been caused.
This is known as injuria sine damno. The maxim ‘injuria sine damno’ means breach of legal
right without damage. In other words, there is an injury without damage or loss. It means
infringement of legal rights not resulting in damages but giving the right to sue, to the plaintiff
as the infringement is an injury in law. This is because there are certain absolute private rights
or interests of an individual, so vital, that the infringement itself would be actionable in tort
even if there is no proof of damages.
Example: If A walks across B’s land without B’s permission then A will commit the tort of
trespass to land, even though he does not cause any damage to the land.
The plaintiff was a qualified voter. The defendant, the returning officer wrongly refused to register a duly
tendered vote at a Parliamentary election. No loss was suffered by the plaintiff by such refusal because
the candidate for whom he wanted to vote was declared elected, but the plaintiff was held entitled to
recover damages from the defendant, even thought the defendant’s act did not cause any real damage to
him. [Ashby v. White (1703) 2 LR 938]
Question 7] In the parliamentary by-election of 2019, Abhishek was qualified voter. The
returning officer wrongfully refused to register the duly tendered vote by Abhishek, No
loss was suffered by Abhishek because the candidate to whom he wanted to vote was
declared elected. Yet Abhishek sued the returning officer for damages. Will Abhishek
succeed? CS (Inter) – June 1989 (5 Marks)
Ans.: There are cases where conduct is actionable even though no damage has been caused.
This is known as injuria sine damno. The maxim ‘injuria sine damno’ means breach of legal
right without damage.
The facts of given case are similar to the English case Ashby v. White.
The legal right of voting of Abhishek was violated even though there is no actual loss and hence
principal of injuria sine damno can be applied.
Thus, Abhishek will succeed in the suit against the returning officer for damages.
Question 8] The defendants, ship owners, engaged to carry tea to China, offered reduced
freight rates to shippers with a view to monopolies the trade and to oust the plaintiff
from the trade. The result was that the plaintiff, a rival trader, was driven out of the
trade and suffered heavy losses. Can the plaintiff get compensation for his losses?
Ans.: The facts given are similar to the facts in the case of Moghul Steam ship Co. v. McGregor
Gow & Co., (1891) AC 25, where in the House of Lords held that the plaintiff had no cause of
action as the defendants had by lawful means acted to protect and extend their trade and
increase their profits. The decision is based on fundamental rule that for an action of tort, there
must be legal injury, or invasion of a legal right. Therefore in the absence of an infringement of
the legal right, an action does not lie.
This is explained by doctrine of “damnum sine injuria”, which means harm without legal wrong.
The plaintiff cannot get any compensation.
Question 9] With a view to ward off the water in an overflowing stream, A, the owner of
the land, constructed bunds on his land. He succeeded in warding off the water from his
land, but over flooded the land of plaintiff B. B files a suit against A for injunction and
damages, Will B succeed? CS (Inter) – Dec 1994 (5 Marks)

Law of Torts 6.9
Ans.: No., B will not succeed in his suit because A had merely exercised his right to protect his
land from the overflowing water.
The maxim ‘damnum sine injuria’ is applicable in this case which stipulates that, if there is no
violation of plaintiff’s legal right, damages or relief cannot be claimed. This means that in a
given case, one may have suffered damage and yet have no action in tort, because such damage
is not an interest protected under the law of torts.
Question 10] A suit is filed by Raju against Chitra Cinema for restraining itself from
displaying the film ‘Santoshi Mata, on the ground that Saraswati, Laxmi and Pravati are
shown doing such acts in the film, which hurt the religious sentiments of the plaintiff,
Will the plaintiff succeed in the suit?
Ans.: No., the plaintiff will not succeed. The facts of the case are similar to the facts of a decided
case Ushaben v Bhagya Laxmi Chitra Mandir.
It was decided in this case that religious sentiment or feeling of a person is not recognized as a
legal right and violation thereof as an actionable civil wrong. It was held in that case that no
legal right of the plaintiff was infringed.
Hurting religious sentiments itself is not a matter which gives rise to a cause of action. Since
there was no violation of any legal right of the plaintiff, the plaintiff was not entitled to get any
relief.
Question 11] Atul was running a school at a certain place. Ali started another school
near the school of Atul. As a result of this, most of the students of Atul’s school left his
school and joined Ali’s school. Due to competition, Atul had to reduce the fees by Rs. 40
per student per quarter and thus he suffered huge monetary loss. Atul filed a suit
against Ali in the court for compensation. Is the suit instituted by Atul maintainable?
Give reasons by referring to relevant case law. CS (Executive) – Dec 2008 (6 Marks)
Ans.: In some cases the act or omission of the defendant may have caused damage to the
claimant but the claimant may have no action as the interest affected may not be one protected
by law. This is explained by doctrine of “damnum sine injuria”, which means harm without legal
wrong.
The maxim ‘damnum sine injuria’ is applicable for the given case.
Ali has committed no tort as losses caused by lawful business competition are not actionable in
tort. Therefore, suit instituted by Atul is not maintainable as per doctrine Damnum sine injuria.
Strict & Vicarious Liability
Question 12] What do you understand by the rule of strict liability? State its exceptions.
The rule of strict liability as laid down in Rylands vs. Fletcher
Describe the exceptions to the rule of strict liability.
Ans.: In some torts, 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. Such cases are
where a man is made by law an insurer of other against the result of his activities.

Law of Torts 6.10
(ii) Liability for inevitable mistake: Such cases are where a person interferes with the property
or reputation of another.
(iii) Vicarious liability for wrongs committed by others: Responsibility in such cases is imputed
by law on grounds of social policy or expediency. These cases involve liability of master for
the acts of his servant.
Rules of strict liability refers that if a person bring anything from outside and accumulates on
his land, which it escapes may cause damage to his neighbours, he does so at his own risk. He
will be responsible for damage, however carefully he might have been and whatever precautions
he might have taken to prevent damage. This principle was laid down in the case of Rylands v.
Fletcher (1868) L.R. 3 H.L. 330.
Fletcher (plaintiff) leased several underground coal mines from land adjacent to that owned by Rylands
(defendant). Rylands owned a mill, and built a reservoir on his land for the purpose of supplying water
to that mill. Rylands employed engineers and contractors to build the reservoir. In the course of building
the reservoir, these employees learned that it was being built on top of abandoned underground coal
mines. This fact was unknown by Rylands. After the reservoir was completed, it broke and flooded
Fletcher’s coal mines. This caused damage to Fletcher’s property, and Fletcher brought suit against
Rylands. Rylands was held strictly liable for damage caused to Fletcher’s property by water from the
broken reservoir.
But, later, it was decided in the case of Read vs. Lyons (1946) 2 All. ER 471 HL, that following
two conditions were necessary for application of the rule decided in the case of Rylands v.
Fletcher.
- Escape of something from the control of defendant, which is likely to do mischief.
- When defendant is making a non-natural use of the land.
If either of these conditions is absent, the rule of strict liability will not apply.
Exceptions to the rule of strict liability:
(a) Damage due to natural use of the land: The rule of strict liability does not apply in the case
where the things are present on a person’s land in the natural form or arise on the land,
even though they are dangerous.
(b) Consent of the plaintiff: The rule of strict liability is not applicable in the cases where the
things which escapes was brought or kept upon defendant’s premises by the defendant with
the consent of the plaintiff.
(c) Act of third party: If the harm has been caused due to the act of a stranger, who is neither
the defendant’s servant nor agent or has no control over him the defendant will not be
liable.
(d) Statutory authority: Public bodies performing a statutory duty such as supply of water,
electricity etc., are exempted from liability, so long as they have taken reasonable care and
are not negligent.
(e) Act of God: The principle of strict liability does not apply for the damage caused due to acts
which are irresistible & beyond human contemplation & caused due to operation of some
superior force which is beyond human control.
(f) Escape due to plaintiffs own default: If the damage is caused due to the plaintiffs own action
or default the defendant is exempted from liability, i.e. if plaintiff suffers damage by his own
intrusion into defendant’s property, he cannot complain for damage so caused.
Question 13] The defendant constructed a reservoir on his land. He took all precautions
keeping in view the expected rains. One year there were extraordinary rains. On account
of the flow of excess water in the reservoir its walls gave way, as a consequence whereof,
the water escaped and causes damage to the plaintiff. He files a suit for claiming
damages against the defendant on the ground that the defendant is liable to pay
damages under the rule of strict liability. Will he succeed?
Ans.: The case is similar to that of a decided case, Nicholas v. Marsland, where it was held that
the defendant is not liable as the loss suffered by the plaintiff was due to excessive rain which
is an extraordinary natural occurrence, said to be an act of God.

Law of Torts 6.11
Hence, the defendant cannot be held liable for loss to the plaintiff irrespective of negligence.
Negligence cannot be attributed to the defendant because he had taken all precautions keeping
in view the expected rainfall.
Question 14] A mill owner employed an independent contractor to construct a reservoir

on his land to provide water for his mill. There were old disused mining shafts under the
site of the reservoir, which the contractor failed to observe because they were filled with
soil. Therefore, the contractor did not block them. When water was filled in the
reservoir, it burst through the shaft and flooded the plaintiff’s coal mines on the
adjoining land. Is the mill owner liable to compensate for loss or damage caused to the
plaintiff? Give reasons. CS (Executive) – Dec 2008 (6 Marks), June 2011 (6 Marks)
Ans.: As per rules of strict liability, if a person brings anything from outside and accumulates
on his land, which it escapes may cause damage to his neighbours; he does so at his own risk.
He will be responsible for damage, however carefully he might have been and whatever
precautions he might have taken to prevent damage. This principle was laid down in the case of
Rylands v. Fletcher (1868) L.R. 3 H.L. 330.
As per the facts given in case an independent contractor employed by mill owner was negligent
as he failed to block the old disused mining shafts under the site of the reservoir and due this
negligence water was filled in the reservoir and it burst through the shaft and flooded the
plaintiff’s coal mines on the adjoining land. Thus, applying the ‘rules of strict liability’ the mill
owner will be liable for damages to the coal mine owner.
Question 15] Akrosh planted a poisonous tree in his house. The camel of Bimal, his
neighbor, nibbled the leaves of the tree after entering Akrosh house and died. Decide the
liability of Akrosh under the rule of Rylands Vs. Fletcher.
Ans.: As per rule of strict liability, if a person brings anything from outside and accumulates on
his land, which it escapes may cause damage to his neighbors; he does so at his own risk.
However, damage by escape due to the plaintiff’s own default was considered to be good defence
in Rylands v. Fletcher itself. Also, if the plaintiff suffers damage by his own intrusion into the
defendant’s property, he cannot complain for the damage so caused. Hence, Akrosh is not
liable.
Question 16] Discuss briefly applicability of the rule in Rylands v. Fletcher in cases of
enterprises engaged in a hazardous or inherently dangerous industry.
Ans.: The Supreme Court in M.C. Mehta v. Union of India & others [(1987) 1 Comp. LJ 99 (SC)]
ruled that an application for compensation in a pollution case can be maintained under Article
32 of the Constitution, for, such application is for the protection of the fundamental rights of
the people and the Court has all incidental and ancillary powers including the power to forge
new remedies and fashion new strategies designed to enforce fundamental rights.
On the question of liability of an enterprise engaged in hazardous activities, the Supreme Court
laid down for the first time a far-reaching ruling, that an enterprise which is engaged in
hazardous or inherently dangerous activity and an industry which poses a potential threat to
the health and safety of the persons working in the factory and of those residing in the
surrounding area owes an absolute and non-delegatable duty to the community to ensure that
no harm results to any one on account of an hazardous or inherently dangerous nature of the
activity which it has undertaken.
The enterprise must be held to be under an obligation to provide that the hazardous or
inherently dangerous activity in which it is engaged, must be conducted with the highest
standards of safety; and if any harm results on account of such activity, the enterprise must be
absolutely liable to compensate for such harm; and it should be no answer to the enterprise to

Law of Torts 6.12
say that it had taken all reasonable care and that the harm occurred without negligence on its
part.
The Court further reiterated that the rule in Rylands v. Fletcher of strict liability would apply in
India but without any exceptions whatsoever recognised in England. The Court also ruled that
the measure of compensation must be correlated to the magnitude and capacity of the
enterprise because such compensation must have a deterrent effect.
Question 17] Write short note on: Vicarious Liability

Ans.: When a person is held liable for the torts committed by another, it is called vicarious
liability. Examples of such liability are –
 A master is held liable for the tort committed by the servant.
 Principal is held liable for the tort committed by his agent.
 Partners are held liable for the tort committed by a co-partner.
The common examples of such liability are:
(1) Principal & Agent: “qui facit alium facit per se” which means, he who acts through another is
deemed to act himself. When an agent commits a tort in the ordinary course of his duties as
an agent, the principal is liable for the same.
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. [Lloyd v. Grace, Smith & Co. (1912) A.C. 716]
(2) Partners: For the torts committed by partners in the ordinary course of the business of the
firm, all the partners are liable therefore to the same extent as the guilty partner.
One of the two partners bribed the plaintiff’s clerk and induced him to divulge secrets relating to
his employers business. It was held that both the partners were liable for the tort committed by
only one of them. [Hamlyn v. Houston & Co. (1903) 1 K.B. 81]
(3) Master & Servant: When a servant commits a tort in the ordinary course of his employment
as an servant, the master is liable for the same.
An act is deemed to be done in the course of employment if it is either:
(i) A wrongful act authorized by the employer, or
(ii) A wrongful and unauthorized mode of doing some act authorized by the employer.
The driver of a petrol lorry, while transferring petrol from the lorry to an underground tank at a
garage, struck a match in order to light a cigarette and then threw it, still alight on the floor. An
explosion and a fire ensued. The House of Lords held his employers liable for the damage caused,
for he did the act in the course of carrying out his task of delivering petrol; it was an unauthorized
way of doing what he was employed to do. [Century Insurance Co. Ltd. v. Northern Ireland Road
Transport Board (1942) A.C. 509]
Similarly, in Bayley v. Manchester, Sheffield and Lincolnshire Rly. Co. (1873) L.R. 7 C.P. 415,
erroneously thinking that the plaintiff was in the wrong train, a porter of the defendants forcibly
removed him. The defendants were held liable.
(4) Employer & Independent Contractor: The employer is generally not liable for the acts of an
independent contractor. However, the employer is liable in following cases for the acts of an
independent contractor:
- When employer authorizes him to commit a tort.
- In torts of strict liability
- Negligence of independent contractor
In Philips v. Britania Hygienic Laundry Co. (1923), the owner of lorry was held not liable when a
third-party’s vehicle was damaged, in consequence of the negligent repair of his lorry by a garage
proprietor.

Law of Torts 6.13
Question 18] Write short note on: Liability for the acts of servants
Ans.: An employer is liable for the torts committed by his servant in the course of his
employment. An act is deemed to be done in the course of employment if it is either:
- Wrongful act authorized by the employer or
- Authorized act done in wrongful and unauthorized manner
Following two conditions has to be satisfied by the plaintiff before he can succeed against the
defendant for fixing vicarious liability for wrongful act done by his servant.
(1) Relationship of master and servant subsisted between defendant and actual wrongdoer.
(2) Wrongful act was done by the servant while he was engaged in the course of employment of
the defendant.
Question 19] The plaintiff, an old customer went into a restaurant for the purpose of
dining. When he entered the room, a waiter took his coat without being asked, and hung
it on a hook behind him. When the plaintiff rose to leave, the coat was gone. Is the
restaurant owner liable for the loss of coat? CS (Inter) – June 1990 (5 Marks)
Ans.: A master is liable for the act of his servant during the course of employment. The civil
liability of master is clear, as he becomes the bailee for the coat. The facts given in this case are
similar to a decided case of Ultzen v. Nicolas, wherein, it was held that the restaurant owner is
liable as a bailee of the coat.
Question 20] 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 has done so without the knowledge
of his principal. Will the principal be liable for the fraud committed by his managing
clerk? CS (Inter) – June 1994 (5 Marks), June 2000 (5 Marks)
Ans.: When a servant commits a tort in the ordinary course of his employment as a servant, the
master is liable for the same. Similarly, the principal is vicariously liable for the fraud
committed by his managing clerk. The facts of the given case are similar to the facts of Lloyd v.
Grace Smith & Co. (1912) A.C. 716.
When a principal appoints an agent to act on his behalf and represent him, he is also liable for
the acts of the agent in the ordinary course of business. Therefore, the principal, in the given
case, is liable for the acts done in the ordinary course by his managing clerk.
Question 21] Anurag, a child, entered the botanical garden of a municipality and
consumed some attractive looking but poisonous berries. As a result of that, he died.
The representatives of the child sued the municipality for damages. Will they succeed?
Give reasons. CS (Executive) – June 2009 (5 Marks)
Ans.: The representatives of the child will not succeed in the case if the plants were properly
categorized and the municipality took due care to warn people of the dangerous nature of the
barriers. If after this anyone consume them, and is harmed by that consumption, it is not the
responsibility of the municipality.
However, if municipality does not take due care to warn people of the dangerous nature of the
barriers and safety measures then municipality can be held liable.
Vicarious Liability of State
Question 22] Write a short note on: Vicarious liability of State/Government


Law of Torts 6.14
Ans.: Unlike the Crown Proceeding Act, 1947 of England, we have no statutory provision with
respect to the liability of the State in India. 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.
In India Article 300 of the Constitution declares that the Government of India or of a State may
be sued for the tortious acts of its servants in the same manner as the Dominion of India and
the corresponding provinces could have sued or have been sued before the commencement of
the Constitution. This rule is, however, subject to any such law made by the Parliament or the
State Legislature. No law has so far been passed as contemplated by Article 300(1).
Que. No. 23] Whether Government is liable for tort committed by its servant in the
course of the discharge of statutory duties?
Ans.: In Kasturi Lal v. State of U. P., AIR 1965 SC 1039, the Government was not held liable for
the tort committed by its servant because the tort was said to have been committed by him in
the course of the discharge of statutory duties. The statutory functions imposed on the
employee were referable to and ultimately based on the delegation of sovereign powers of the
State. The Court held that the
Government was not liable as the activity involved was a sovereign activity. The Court affirmed
the distinction between sovereign and non-sovereign function.
There are, on the other hand, a good number of cases where the Courts, although have
maintained the distinction between sovereign and non-sovereign functions yet in practice have
transformed their attitude holding most of the functions of the government as non-sovereign.
These cases show that the traditional sovereign functions are the making of law, the
administration of justice, the maintenance of order, the repression of crime, carrying on for
war, the making of treaties of peace and other consequential functions.
Though this list is not exhaustive, it is at least clear that the socio-economic and welfare
activities undertaken by a modern state are not included in the traditional sovereign functions.
Consequently there has been an expansion in the area of governmental liability in torts.
Que. No. 24] The driver of a jeep, owned and maintained by the State of Rajasthan for
the official use of the Collector of the district, drove it rashly and negligently while
taking it back from the workshop to the residence of the Collector after repairs, knocked
down a pedestrian and fatally injured him. Whether State is vicariously liable for
damages caused by the negligence of the driver?
Ans.: In State of Rajasthan v. Vidyawati, AIR 1962 SC 933, the driver of a jeep, owned and
maintained by the State of Rajasthan for the official use of the Collector of the district, drove it
rashly and negligently while taking it back from the workshop to the residence of the Collector
after repairs, knocked down a pedestrian and fatally injured him. The State was sued for
damages. The Supreme Court held that the State was vicariously liable for damages caused by
the negligence of the driver.
The decision of the Supreme Court in above case introduces an important qualification on the
State immunity in tort based on the doctrines of sovereign and non sovereign functions. It
decided that the immunity for State action can only be claimed if the act in question was done
in the course of the exercise of sovereign functions. Thus, immunity is not available for non-
sovereign functions and State will liable for the damages.
Question 25] M, a doctor of a State Government hospital was negligent while conducting
an eye operation for P due to which he became blind. P sues the State Government for

Law of Torts 6.15
Ans.: The State Government is vicariously liable for the negligent performance of duties of its
servant due to which P became blind. As the running of hospital services is not to be
considered a sovereign function, the state cannot plead immunity. In view of this, ‘P’ will
succeed.
Question 26] The Municipal Corporation pulls down a building which is declared unfit for
human habitation. An affected tenant wants to sue the Municipal Corporation for
Ans.: In the given case, the affected tenant will not succeed in claiming damages from the
Municipal Corporation. As per the facts of the case, the municipal corporation pulls down the
building which is declared unfit for human habitation, and the action of the municipal
corporation will be considered as an act of necessity which is a defence in an action against
tortuous liability.
Question 27] A lady doctor of a government hospital was negligent while conducting
operation of Dinkar’s leg. The lady doctor amputated left leg of Dinkar instead of his
right leg by mistake. Dinkar filed suit against the authority of the government hospital
and lady doctor for damages on the plea of negligence. Will he succeed?
Ans.: Yes. Dinkar will succeed. Where the relations of master and servant exits, a master is
liable not only for those authorized acts which have been committed by the servants but also
for the acts done by him which not specifically authorized in the course of his employment.
The defence of the government that running of a hospital is a sovereign function and hence it is
not liable will not hold good, as declared in various cases. The extent of liability of lady doctor
would be determined by the rules/conditions of her employment.
Miscellaneous
Question 28] Explain: Mens rea CS (Inter) – Dec 1991 (5 Marks)
Ans.: ‘Mens rea’ literally means a guilty mind. It is well settled in the Criminal Law that mens
rea is an essential ingredient of criminal offences. The General principle lies in the maxim
“actus non facit reum nisi mens sit rea” i.e. the act itself creates no guilt in the absence of a
guilty mind. It does not mean that the act must be done with an evil motive, but simply means
that mind must concur in the act, the act must be done either with wrongful intention or
negligence. Under criminal law, mens rea must be proved.
Question 29] Write a short note on: Battery
Ans.: Any direct application of force to the person without his consent or lawful justification is a
wrong of battery. To constitute a tort of battery, two things are necessary:
- Use of force without the plaintiff’s consent and
- Without any lawful justification.
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.
Example: Jeevan becomes angry with Mohan over the `1,00,000 that Mohan owes him. The two
get into an argument that leads to Jeevan punching Mohan in the face, breaking his nose.
Jeevan has committed tort of battery. Mohan can also sue Jeevan for medical expenses.
Question 30] Write a short note on: Assault

Law of Torts 6.16
Ans.: Assault is any act of the defendant which directly causes the plaintiff immediately to
apprehend a contact with his person. 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.
To point a loaded gun at the plaintiff, or to shake fist 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 a the defendant by his act intends to commit a battery
is an assault.
Question 31] Distinguish between: Battery & Assault

Ans.: Following are the main points of difference between battery & assault:
Points Battery Assault
Meaning Any direct application of force to the person When the defendant by his act creates an
without his consent or lawful justification is apprehension in the mind of the plaintiff
a wrong of battery. that he is going to commit battery against
him, the tort of assault is committed.
Purpose To cause physical harm to other person. To just threaten to other person.
Important Physical contact is mandatory. Threat of violence is enough; no physical
aspect contact is necessary.
Example To throw a stone so that other person gets If person shows a stone to other person and
physical injury. make apprehension that he is going to throw
it on him but actually do not throw a stone.
Question 32] Write a short note on: False imprisonment
Ans.: The illegal confinement of one individual against his or her will by another individual in
such a manner as to violate the confined individual's right to be free from restraint of
movement.
False imprisonment is the unlawful restraint of a person against his or her will by someone
without legal authority or justification. In fact, any person who intentionally restricts another's
freedom of movement without their consent (and without legal justification) may be liable for
false imprisonment.
Elements of a false imprisonment: To prove a false imprisonment claim in a civil lawsuit, the
following elements must be present:
 There must have been a willful detention.
 The detention must have been without consent.
 The detention was unlawful.
Examples of false imprisonment may include:
 A person locking another person in a room without permission.
 A security guard or store owner who detains you for an unreasonable amount of time based
on the way you look or dress
 An employer who detains someone for questioning for an unreasonable amount of time for
suspected theft.
 Nursing home staff who medicates a patient without their consent under physical or
emotional threat.
Question 33] Write a short note on: Malicious prosecution

Ans.: Malicious prosecution is the tort of initiating a criminal prosecution or civil suit against
another party with malice and without probable cause.

Law of Torts 6.17
The following are the essential elements of this tort:

 There must have been a prosecution of the plaintiff by the defendant.
 There must have been want of reasonable and probable cause for that prosecution.
 The defendant must have acted maliciously (i.e. with an improper motive and not to further the
end of justice).
 The plaintiff must have suffered damages as a result of the prosecution.
 The prosecution must have terminated in favour of the plaintiff.
The officer of the respondent corporation found certain articles missing while preparing inventory and
checking up with the stock register. The plaintiff was prosecuted u/s 403 of the IPC but was given the
benefit of doubt and hence acquitted. The plaintiff brought an action for malicious prosecution. The
plaintiff could not prove that he had been harassed by the officers. There was held to be reasonable and
probable case for prosecution of the plaintiff and the fact that plaintiff was not harassed indicated that
there was no malice and hence the charge was not held. [Kamta Prasad v National Buildings
Constructions Corporation Pvt. Ltd., A.I.R. 1992 Delhi 275]
The plaintiff was a practicing advocate at Panna in M.P. he was also a Jan Sangh leader and had started
an agitation on the question of food scarcity in the city and one Jan Sangh worker had gone to a hunger
strike. On Jan 2 1965 Girija Singh a sub-inspector was deputed outside the collectorate to control the
crowd that had collected there to support the agitation. Then there were some bullet shots made from
the revolver of the sub inspector. He stated that while he was grappling with some person who was
assaulting him the revolver got fired mistakenly. On that date Girija Singh had lodged an FIR stating
that he was assaulted by some person and also the plaintiff Uma Shankar Pathak was present at the
scene and was instigating the crowd. The case was investigated and the plaintiff was arrested on 15 th
Jan and released on bail on 18th Jan. He was finally acquitted on June 30th 1965. The plaintiff then
sued 4 persons for malicious prosecution, the sub-inspector Girija Singh who lodged the FIR, the S.H.O.
of that area who entertained the report and two other persons involved with the case.
It was found by the M.P. High Court that the report prepared by Girija Singh was false and at that
relevant time the plaintiff was not present there but was appearing in front of a civil judge Justice
Verma. Eventually Girija Prasad was held for malicious prosecution and others acquitted of the charge
and not held liable for malicious prosecution. [Girija Prasad v Uma Shankar Pathak, AIR 1973 M.P. 79]
Question 34] Write a short note on: Nervous Shock
Ans.: Nervous shock is a term used in English law to denote psychiatric illness or injury
inflicted upon a person by intentional or negligent actions or omissions of another. To amount
in law to "nervous shock", the psychiatric damage suffered by the claimant must extend beyond
grief or emotional distress to a recognized mental illness, such as anxiety neurosis or reactive
depression.
In Hinz v Berry, the plaintiff was out for a drive with her husband and four children. On the way home
they stopped for a picnic in a lay-by. The plaintiff crossed the road with one child to pick bluebells. A car
driven by the defendant was out of control and it crashed into the van where her husband and other
children were making tea. On hearing the crash the plaintiff turned around and saw the accident. Her
husband was very seriously injured and died a short while after and most of the children suffered
injuries. After the shock of witnessing the crash she suffered prolonged morbid depression. The Court
held that she was entitled to recover damages because she had a recognizable psychiatric illness. This
was in part due also to the close relationship between her and some of the parties to the crash.
The plaintiff in this case was the pregnant wife of a publican. The defendants and their servant
negligently drove a pair-horse van into the public-house. The plaintiff was severely shocked, was
subsequently ill and then gave birth to a premature child who was born an idiot. The plaintiff sought
damages and was awarded them by the court. [Dulieu v White (1901) 2 K.B. 669]
Question 35] What do you understand by defamation?

Distinguish between: Libel & Slander CS (Executive) – Dec 2012 (4 Marks)

Law of Torts 6.18
Ans.: Defamation is an attack on the reputation of a person. It means that something is said or
done by a person which affects the reputation of another.
Defamation may be classified into following two heads:
(1) Libel: It is a representation made in some permanent from, e.g. written words, pictures,
caricatures, cinema films, effigy, statue and recorded words. In a cinema films both the
photographic part of it and the speech which is synchronized with it amount to tort.
(2) Slander: It is the publication of a defamatory statement in a transient form, statement of
temporary nature such as spoken words, or gestures.
Defamation is tort as well as a crime in India.
In India both libel and slander are treated as a crime. Section 499 of the IPC recognizes both
libel and slander as an offence. However, torts in criminal law are stricter than in law of torts.
Question 36] A publishes a statement that B has been sentenced to pay a fine of `100 or
to undergo imprisonment for 3 weeks. In fact, B was ordered to undergo alternative
imprisonment for only 2 weeks. B files a suit against A for recovery of `5,000 as
damages, for injuring his reputation by publishing an incorrect statement relating to
him. Will the Court give a verdict in favour of B? CS (Inter) – June 1992 (5 Marks)
Ans.: In an action for defamation, if the statement is substantially true, but inaccurate in minor
points of detail the plaintiff cannot succeed. The given problem is similar to the decided case,
Alexander v. N. E. Railway, wherein it was held in that the defendant was not liable as the
statement had been substantially correct.
The Court will not give the verdict in favour of B, the plaintiff.
Question 37] What are the remedied available to the plaintiff in an action against tort?
Ans.: 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.
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: 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 neighbours trees, but (i) upon giving notice; (ii) by choosing the
least mischievous method; (iii) avoiding unnecessary damage.
(f) Distress damage feasant: An occupier may lawfully seize any cattle or any chattels 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.

Law of Torts 6.19
Objective Questions
word(s)/figures(s):
(1) There are cases where conduct is actionable even though no damage has been caused.
This is known as ________
(2) When a person is held liable for the torts committed by another, it is called ________
(3) Any direct application of force to the person without his consent or lawful justification is a
wrong of ________
(4) ________ is any act of the defendant which directly causes the plaintiff immediately to
apprehend a contact with his person.
(5) Rules of ________ refers that if a person bring anything from outside and accumulates on
his land, which it escapes may cause damage to his neighbours, he does so at his own
risk.
(6) ________ is the unlawful restraint of a person against her will by someone without legal
authority or justification.
(7) ________ is the tort of initiating a criminal prosecution or civil suit against another party
with malice and without probable cause.
(8) ________ is a term used in English law to denote psychiatric illness or injury inflicted upon
a person by intentional or negligent actions or omissions of another.
(9) ________ is an attack on the reputation of a person.
(10) ________ is the publication of a defamatory statement in a transient form, statement of
Ans.:
(1) injuria sine damno (2) vicarious liability (3) battery (4) Assault (5) strict liability (6) False
imprisonment (7) Malicious prosecution (8) Nervous shock (9) Defamation (10) Slander
* * * * * * * * * * *

LIMITATION ACT, 1963

1) Objectives 1. To help bonafide claimants to be prompt in claiming the relief.
of the Act 2. To prevent fraud being practiced by people upon innocent persons by an action
being kept hanging upon them for a long time.
2) Bar of 1. Any suit, appeal or application made beyond the prescribed period of limitation,
limitation it is the duty of the court not to proceed further.
2. Exceptions to the bar of limitation-
(1) Whenever the time limit for any suit, appeal or application expires on a
day when a court is closed, it may be filed on the day when the court reopens.
(2) Any appeal or application may be filed after prescribed time limit if the
appellant gives a sufficient cause to the court for not being able to file appeal or
make application within the prescribed period.
(3) In case of persons suffering from some legal disability (e.g. minority,
insanity, idiot), the period of limitation runs from the cessation of disability.
Notes-
1) If one legal disability is followed by another legal disability, the disabilities are
successive and the limitation period will run when all the legal disabilities are
ceased.
2) If legal disabilities continue till death, then limitation period will run from the
date of death and the right will be on legal heirs who are not legally disabled.
3) If a person under disability dies after the disability ceases but within the period
allowed to him, his legal heirs may file suit or make an application within the same
period as would have been available to the deceased person.
4) Any appeal or application may be admitted after the prescribed period if the
appellant or applicant gives the court a sufficient cause for not filing an appeal or
application within the prescribed period (i.e. not for suit/ plaint).
5) Where one of the several persons entitled to file a suit is under any disability
and suit can be filed without his consent, limitation period will run against all (&
vice versa).
3)Barring 1. The law of limitation is based on the equitable principle that equity helps the
remedy, not diligent (careful) and not the indolent (lazy).
right 2. I.e. Law of limitation bars the remedy but does not extinguish the right after the
limitation period has expired.
3. A creditor whose debts become time barred and who has means of realising and
enforcing the claim by any method except by a suit, the limitation act does not
prevent him for recovering his debt by such means.
4. If a debtor without being aware of a time barred debt pays the debt, he can not
sue the creditor to refund the money paid on the ground that debt is time barred.
4) 1) Time for limitation runs when the cause of action accrues.
Continuous 2) Thus once a period of limitation starts, it can not be stopped.
running on 3) However such continuous running of time is limited to suits and applications
time only and does not apply to appeals.
5) Limitation period –
Computation 1. One year – Suits relating to torts (for false imprisonment, malicious prosecution,
of period of libel, slender).
limitation for 2. Two years – Suits relating to torts by executors, administrators or legal
different representatives.
types of suits, 3. Three years –
appeals, 1) Suit relating to accounts
applications 2) Suit relating to contracts
3) Suit relating to declaration
4) Suit relating to decree & instruments
5) Suit relating to movable property
6) Other suits relating to torts
4. Twelve years –
1) Suit relating to trust and trust property
2) Suit relating to immovable property
5. Thirty years –
1) Suit by a mortgager to redeem or recover the possession of immovable property
mortgaged.
2) Suit by a mortgagee for fore closure.
Notes-
(1) The limitation act does not apply to any proceedings undertaken by an
aggrieved person to approach the SC under article 32 or 226 of constitution of
India.
(2) While computing the period of limitation, the following period is excluded –
1. The day on which the time begins to run.
2. The day on which the judgement was passed and the time required for obtaining
the copy of judgement.
3. When leave to sue or appeal as a pauper (extremely poor person) is applied for
and the application is pending.
4. When any civil proceedings initiated in a court which the court is unable to
entertain due to lack of jurisdiction, such period shall be excluded.
5. Any period of injunction for execution of a decree shall be excluded from the
time for filing suit or application for the execution of decree.
6. Time required for obtaining govt sanction.
7. Time during which defendant has been absent from India.
8. In case of fraud/ mistake, period of limitation shall not begin until the fraud/
mistake is discovered subject to certain exceptions.
6) Effect of A fresh period of limitation shall be computed if –
acknowledge 1. There must be admission/ acknowledgement
ment 2. Of an existing liability
3. In writing and duly signed by the party against whom the claim arises and
4. Such admission/ acknowledgement must be made before the expiry of period
of limitation.
7) Effect of A fresh period of limitation becomes available to the creditor when part payment
payment of of debt is made by debtor before the expiration of the period of limitation.
debt/
interest
Q No. 1. Write a short note on: Doctrine of sufficient cause
Q No. 2. Discuss the law of limitation relating to legally disabled persons?
Q No. 3. While going to the Court for filing a suit, Amar meets with an accident. As a
consequence thereof, Amar remains unconscious for 15 days. The period of limitation for filing
the suit expires during this period. Can Amar claim extension of time?
Q No. 4. On the last day of the limitation, when A was going to the Court to present the plaint,
he met with an accident. Consequently, he remained unconscious for ten days in a hospital.
After discharge from the hospital, A submitted the plaint. He also made a prayer for condonation
of delay on the ground that there was sufficient cause for non-presentation of the plaint within
the period of limitation. Will the court accept his prayer?
Q No. 5. The law of limitation bars the remedy, but does not extinguish the right. Discuss.
Q No. 6. A failed to file a suit within the period of limitation against B for recovery of a loan of
`1,00,000 advanced by A to B. Being ignorant of the fact that the suit has gone time-barred, B
makes payment of the loan amount to A. When B came to know this fact, he started proceedings
for recovery of this money from A on the ground that payment was made by mistake. Will he
succeed?
Q No. 7. “Once a period of limitation starts, it cannot be stopped”. Comment.
Q No. 8. A borrows `500 from B payable on demand. B dies a month after this leaving C, a minor
son, as his heir and legal representative. C sues A for this money within a year of his attaining
majority, but more than five years after the date of the loan. The period of limitation is 3 years
from the date of the loan. Will A succeed?
Heena gave a loan of `30,000 to Suman payable on demand. After 2 years Heena dies leaving
Nakshed, a minor son, as her heir and legal representative. Nakshed sues Suman for recovery of
money within one month of attaining majority, but more than 3 years after the date of loan. Is the
suit maintainable?
Ramesh owed `50,000 to Brijesh on a bond which fell due on 1 st January, 2012. Brijesh died in
an accident on 30th June, 2013 without having brought any suit, and was succeeded by his son
Mohan of 12 years of age. Is Mohan entitled to any extension of time because of his minority?
Q No. 9. Bhuvan owed money to Aman on a bond which fell due in 2009. Aman died in 2010
without having brought any suit and was succeeded by Chaman, his 14 years old son. Is
Chaman entitled to any extension of time on account of his minority?
Q No. 10. Indicate period of limitations for filing a suit in respect of the following:
(1) Wages to a seaman
(2) Wages due to other employees
(3) Price of food or drink sold by the keeper of a hotel, tavern or lodging house
(4) Compensation for false imprisonment
(5) Compensation for malicious prosecution
Q No. 11. What is the limitation period prescribed for the following cases?
(1) For specific performance of a contract
(2) To enforce payment of money secured by a mortgage
(3) For possession of an immovable property
(4) For leave to appear and defend a suit under 10 days summary procedure
Q No. 12. Star Hotel arranged food etc, for a marriage party of Richie consisting of 60 persons on
30th June 2010 at the rate of `200 per person. `10,000 remained unpaid. Advise Star Hotel about
the period of limitation.
Q No. 13. What period is excluded while computing the period of limitation?
The law of limitation bars the remedy in a court of law when the period of limitation has expired.
However, there are certain exclusions in the computation of the period of limitation. Explain.
Computation of period of limitation for an appeal or an application for leave to appeal.
Q No. 14. A custom officer wishes to appeal in the Supreme Court against the judgment of the
High Court. He could obtain certified copy of the judgment of the High Court after a period of 8
months where as time limitation to file such an appeal is 90 days. Is the appeal barred by
limitations? Give reasons.
Q No. 15. An appeal has to be filed in the High Court within the period of limitation which is 90
days from the date of decree. The decree was passed on 6.1.2010. Application for certified copies
of judgment and decree was made on 28.1.2010 and the certified copies were ready for delivery
on 23.2.2010, but the delivery thereof was taken on 26.2.2010. What is the last date of
limitation for filing the appeal?
Q No. 16. Explain: Valid acknowledgement and its effect on the period of limitation
Q No. 17. A advanced a loan of Rs. 10,000 to B. Before the expiry of the period of limitation for
filing a suit for recovery of this loan, B gave a letter duly singed by him to A in which B stated
that he was indebted to A for Rs. 10,000, but that he will not repay this debt. Can this letter be
treated an acknowledgement?
Q No. 18. Before expiry of the period of limitation to pay a debt, debtor Raja in a birthday party
makes a declaration in loud words that he has to repay a loan of Rs. 3,00,000 to Prem. Will Prem
get a fresh period of limitation from the date of this declaration.
Q No. 19. Ashwani has taken `5,000 as a loan from Bhushan and has promised to return the loan
amount within one year. Ashwani failed to return the loan amount within the stipulated period,
but he has written a letter to Bhushan that he would pay the amount within a month. Whether
the period of limitation will start after expiry of one year or from the date when Bhushan received
the letter? Give reasons.
Q No. 20. Write a short note on: Effect of payment of debt or interest
Q No. 21. Ram owes money to Shyam against Bill No. 1657 dated 1st March, 2012; credit period
2 months. He makes only part payment on 6th April, 2014. Shyam wants to file a suit for
recovery of the balance of the amount on 1st April, 2015. Advise Shyam about the limitation
period to file the suit in the present case.
Q No. 22. On 31st December, 2007 Suresh took a loan of Rs. 10,000 from Umesh. He paid Rs.
2,000 to him on 16th June, 2011 towards part-payment. After that, Umesh did not receive any
amount from Suresh. Subsequently, Umesh instituted a suit for recovery of the dues from
Suresh after the expiry of 2 years from the date of last part-payment. Decide whether Umesh will
succeed in his suit.
Q No. 23. Arpit took a debt of Rs. 10,000 from Bharat on January, 1998 and promised to pay by
31st December, 2003. He could not pay such debt within the stipulated time. On 1st December,
2006, Arpit paid Rs. 500 as interest against such debt to Bharat against receipt. Bharat filed a
suit against Arpit to recover such debt on 15th December, 2008. Whether the suit filed by Bharat
is within the period of limitation? Decide with reasons citing relevant provisions of the law.
The Limitation Act, 1963 7.5
Chapter
7 The Limitation Act, 1963
Introduction: It is said that “Justice delayed justice denied.” The Limitation Act, 1963 puts
limitation on suit, appeal & application. Any suit, appeal or application if made beyond the
prescribed period of limitation, it is the duty of the Court not to proceed with such suit, appeal
and application. The Law of limitation is based on equitable principle that equity helps the
diligent and not the indolent. It induces the claimants to be prompt in claiming the relief. The
object of the law is to help bona fide claimants and to prevent fraud being practiced by people
upon innocent persons by action being kept hanging upon them for a long time. The object of the
statute of limitation is preventive and not creative. It interposes a statutory bar after a certain
period. The provisions of the Act should be strictly interpreted and it is always considered
necessary that a litigant, who relies upon it, should bring his cause within the four corners of
the terms of the statute. The Act extends to whole of India except State of Jammu & Kashmir. It
came into force on 1st January 1964.
Bar of Limitation
Question 1] Every suit instituted, appeal preferred and application made after the
prescribed period shall be dismissed. Comment.
Ans.: Bar of Limitation [Section 3]: Any suit, appeal or application if made beyond the prescribed
period of limitation, it is the duty of the Court not to proceed with such suit, appeal and
application. This provision of Section 3 is known as ‘Bar of Limitation’. The provisions of
Section 3 are mandatory.
Exceptions to bar of limitation:
(1) Expiry of period when Court is closed [Section 4]: Where the prescribed period for any suit,
appeal or application expires on a day when the Court is closed, the suit, appeal or
application may be instituted, preferred or made on the day when the Court reopens.
(2) Sufficient cause [Section 5]: Any appeal or any application may be admitted after the
prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient
cause for not preferring the appeal or making the application within such period. This
section only applies to appeals and applications; it does not apply to suits.
(3) Persons under legal disability [Section 6]: The general rule of law is that limitation begins to
run from the date of the cause of action. But in case of persons suffering from some legal
disability (e.g. minority, insanity or idiocy) the period of limitation runs from the cessation
of disability.
Question 2] Write a short note on: Doctrine of sufficient cause

CS (Inter) – Dec 2005 (3 Marks), CS (Executive) – June 2012 (5 Marks)
Ans.: Section 5 allows the extension of prescribed period in certain cases on sufficient cause
being shown for the delay. This is known as doctrine of “sufficient cause”.
Section 5 provides that any appeal or application (not plaint or suit) may be admitted after the
prescribed period if the appellant or the applicant satisfies the Court that he had sufficient
cause for not preferring the appeal or making the application within such period.
Section 5 applies only to appeals or applications. The reason for non-applicability of the Section

to suits is that, the period of limitation allowed in most of the suits extends from 3 to 12 years
whereas in appeals and application it does not exceed 6 months.
Examples of sufficient cause: What is sufficient cause and what is not may be explained by the
following judicial observations:
- Wrong practice of High Court which misled the appellant or his counsel in not filing the
appeal should be regarded as sufficient cause under Section 5.
- In certain cases, mistake of counsel may be taken into consideration in condensation of
delay, but such mistake must be bona fide.
- Wrong advice given by advocate can give rise to sufficient cause in certain cases.
- Mistake of law in establishing or exercising the right given by law may be considered as
sufficient cause. However, ignorance of law is not excuse, not the negligence of the party or
the legal adviser constitutes a sufficient cause.
- Imprisonment of the party or serious illness of the party may be considered for condonation of
delay.
- Time taken for obtaining certified copies of the decree of the judgment necessary to
accompany the appeal or application was considered for condoning the delay.
- Non-availability of the file of the case to the State Counselor Panel Lawyer is no ground for
condonation of inordinate delay.
- Ailment of father during which period the defendant was looking after him has been held to
be a sufficient and genuine cause.
Note: The Quasi-judicial Tribunals, Labour Courts or Executive Authorities have no power to extend the
period under this Section.
Question 3] Discuss the law of limitation relating to legally disabled persons?

Ans.: Legal disability [Section 6]: Law of limitation relating to legally disabled persons is
explained below:
 If a person entitled to institute a suit or make an application is a minor, insane or idiot at
the time of cause of action, the period of limitation to file a suit or to make an application
will start when such disability ceases.
 Where one legal disability is followed by another legal disability, the disabilities are
successive and the limitation period will run when all the legal disabilities are ceased.
 If a legal disability continues up to a death, then period of limitation will run for legal
representative (who is not legally disabled) from the date of death.
 Where a person under disability dies after the disability ceases but within the period allowed
to him under this section, his legal representative may institute the suit or make the
application within the same period after the death, as would otherwise have been available
to that person had he not died.
Disability of one of several persons [Section 7]: Where one of several persons jointly entitled to
institute a suit or make an application for the execution of a decree is under any such
disability, and a discharge can be given without the concurrence of such person, time will run
against them all; but, where no such discharge can be given, time will not run as against any of
them until one of them becomes capable of giving such discharge without the concurrence of
the others or until the disability has cased.
Section 7 is only an application of the principle in Section 6 to a joint-right inherited by a group of
persons wherein some or all of whom are under the disability. The disability of all except one
does not prevent the running of time, if the discharge can be given without the concurrence of the
other. Otherwise the time will run only when the disability is removed.
Special exceptions [Section 8]: In those cases where the application of Section 6 or 7 results in
an extension of the period of limitation, that extension is not to be more than 3 years after the
cessation of the disability.
Question 4] While going to the Court for filing a suit, Amar meets with an accident. As a

consequence thereof, Amar remains unconscious for 15 days. The period of limitation
for filing the suit expires during this period. Can Amar claim extension of time?
Ans.: According to Section 3 of the Limitation Act, 1963, any suit, appeal or application if made
beyond the prescribed period of limitation, it is the duty of the Court not to proceed with such
suit, appeal and application. Section 5 allows extension of prescribed limitation period in
certain cases on sufficient cause being shown for the delay. This is known as doctrine of
sufficient cause. However, this provision applies only to an appeal or an application. It cannot be
invoked in relation to a suit or plaint. Hence, Amar cannot be granted any extension of time.
Question 5] On the last day of the limitation, when A was going to the Court to present
the plaint, he met with an accident. Consequently, he remained unconscious for ten
days in a hospital. After discharge from the hospital, A submitted the plaint. He also
made a prayer for condonation of delay on the ground that there was sufficient cause for
non-presentation of the plaint within the period of limitation. Will the court accept his
prayer? CS (Inter) – Dec 1995 (5 Marks), June 1998 (5 Marks)
Ans.: According to Section 3 of the Limitation Act, 1963, any suit, appeal or application if made
beyond the prescribed period of limitation, it is the duty of the Court not to proceed with such
suit, appeal and application. Section 5 allows extension of prescribed limitation period in
certain cases on sufficient cause being shown for the delay. This is known as doctrine of
sufficient cause. However, this provision applies only to an appeal or an application. It cannot be
invoked in relation to a suit or plaint. Hence, A cannot be granted any extension of time.
Barring Remedy Not Right
Question 6] The law of limitation bars the remedy, but does not extinguish the right.
Discuss. CS (Inter) – June 1992 (8 Marks), June 2001 (8 Marks)
Ans.: The Law of limitation is based on equitable principle that equity helps the diligent and not
the indolent. It induces the claimants to be prompt in claiming the relief.
The law of limitation bars the remedy only after the limitation period has expired, but it does
not extinguish a right on which the suit has to be based. In all personal actions the right
subsists although the remedy is no longer available. If, therefore, a creditor, whose debt
becomes statute barred, has any means of realizing and enforcing claim by any method except
by a suit, the Limitation Act does not prevent him from recovering his debt by such means.
Thus, if a time barred debt is settled outside the Court, it is not illegal. If the debtor without
being aware of bar of time pays debt, he cannot sue the creditor to refund the money paid to
him on the ground of recovery being time barred.
Example: Ram owes Shyam a sum of `2,00,000. The debt is barred because of the law of
limitation. The Court shall dismiss the suit if filed by Shyam for the recovery of the debt after
the period of limitation (i.e. after 3 years). However, if Ram pays Shyam the amount even after
the same has become time barred, the payment would be a valid one.
Question 7] A failed to file a suit within the period of limitation against B for recovery of
a loan of `1,00,000 advanced by A to B. Being ignorant of the fact that the suit has gone
time-barred, B makes payment of the loan amount to A. When B came to know this fact,
he started proceedings for recovery of this money from A on the ground that payment
was made by mistake. Will he succeed? CS (Inter) – Dec 1997 (5 Marks)

Ans.: The Law of limitation is based on equitable principle that equity helps the diligent and not
the indolent. It induces the claimants to be prompt in claiming the relief. The law of limitation
bars the remedy only after the limitation period has expired, but it does not extinguish a right
on which the suit has to be based. Thus, if a time barred debt is settled outside the Court, it is
not illegal. If the debtor without being aware of bar of time pays debt, he cannot sue the
creditor to refund the money paid to him on the ground of recovery being time barred. Hence, if
B pays A the amount after the same has become barred, the payment would be a valid one and
B cannot recover money paid to A on the ground that payment was made by mistake.
Continuous running of time
Question 8] “Once a period of limitation starts, it cannot be stopped”. Comment.

C S (Inter) – June 1997 (8Marks), Dec 2000 (8 Marks)
Ans.: Time for limitation runs when the cause of action accrues. However, certain exceptions
were provided in Section 4 to 8. Section 4 provides that if the period prescribed expires on a day
when the Court is closed, the application etc, may be made on the day, the Court reopens. As
per Section 5 condonation of delay is allowed on sufficient grounds. Sections 6, 7 & 8 allow
extension of time in certain cases of disability.
Continuous running of time [Section 9]: Once a period of limitation starts no subsequent
disability or inability can stop it. The applicability Section 9 is limited to suits and applications
only and does not apply to appeals unless the case fell within any of the exceptions provided in
the Act itself. Section 9 applies when the cause of action or right to move the Court continues
to exist on the date of making the application. Thus, the time runs, when the cause of action
accrues.Thus, once time has begun to run, no subsequent disability or inability stops it.
Question 9] A borrows `500 from B payable on demand. B dies a month after this leaving
C, a minor son, as his heir and legal representative. C sues A for this money within a
year of his attaining majority, but more than five years after the date of the loan. The
period of limitation is 3 years from the date of the loan. Will A succeed?
Heena gave a loan of `30,000 to Suman payable on demand. After 2 years Heena dies
leaving Nakshed, a minor son, as her heir and legal representative. Nakshed sues Suman
for recovery of money within one month of attaining majority, but more than 3 years
after the date of loan. Is the suit maintainable? CS (Inter) –Dec 1999 (5 Marks)
Ramesh owed `50,000 to Brijesh on a bond which fell due on 1st January, 2012. Brijesh
died in an accident on 30th June, 2013 without having brought any suit, and was
succeeded by his son Mohan of 12 years of age. Is Mohan entitled to any extension of
time because of his minority? CS (Inter) – Dec 2004 (5 Marks)
Ans.: Section 9 states that, once time begins to run no subsequent disability or inability can stop
to institute a suit or make an application. In this case, the period of limitation is to run from the
date of loan as loan is payable on demand. There is no disability at that time and time has
begun to run from the date of loan itself. Subsequent disability i.e. the son was minor have no
use. The limitation period in this case will end after 3 years from the date of loan whereas the C
has filed suit after attaining majority i.e. after the end of limitation period. Hence, the suit is
not maintainable.
Question 10] Bhuvan owed money to Aman on a bond which fell due in 2009. Aman died
in 2010 without having brought any suit and was succeeded by Chaman, his 14 years old
son. Is Chaman entitled to any extension of time on account of his minority?

Ans.: Section 9 states that, once time begins to run no subsequent disability or inability can stop
to institute a suit or make an application. In this case, the period of limitation is to run from
2009. There is no disability at that time and time has begun to run from 2009. Subsequent
disability i.e. the son was minor have no use. The limitation period in this case will end after 3
years from 2009 i.e. in year 2012. In the given problem, Chaman is not entitled to any
extension of time on account of his minority.
Computation of period of limitation
Limitation period for different types of suits, appeal and application: Students are advised to see
the Schedule of the Limitation Act, 1963. Summary of limitation period prescribed in the Schedule
is given below:
Cases Limitation
Suits relating to accounts 3 years
Suits relating to contracts 3 years
Suits relating to declarations 3 years
Suits relating to decrees and instruments 3 years
Suit by a mortgagor to redeem or recover the possession of immovable property mortgaged 30 years
Suit by a mortgagee for foreclosure 30 years
Other suits relating to immovable property 12 years
Suits relating to movable property 3 years
Suits relating to tort (i.e. for false imprisonment, malicious prosecution, libel, slander) 1 year
Suits relating to tort (Suit by executors administrators or representatives under the Indian 2 years
Fatal Accidents Act, 1855; Under the Legal Representatives Suits Act, 1855, against an
executor, an administrator or any other representative.)
Other suits relating to tort 3 years
Suits relating to trusts and trust property 12 years
Question 11] What is the limitation period prescribed for the following cases?
(1) For Compensation for libel Suit
(2) For specific performance of a contract to an immovable property
(3) Suits relating to possession immovable property mortgaged
(5) For arrears of rent
(6) By a surety against principal debtors
(7) Suits relating to contract
(8) Suits relating to movable property
(9) Suits for an account and share of profits of a dissolved partnership
Ans.: The limitation period prescribed for the various cases is as follows:
Cases Limitation
For Compensation for libel Suit 1 year
For specific performance of a contract to an immovable property 4 years
Suits relating to possession immovable property mortgaged 12 years
For possession of an immovable property 12 years
For arrears of rent 3 years
By a surety against principal debtors 3 years
Suits relating to contract 3 years
Suits relating to movable property 3 years
Suits for an account and share of profits of a dissolved partnership 3 years
Question 12] Indicate period of limitations for filing a suit in respect of the following:

(1) Wages to a seaman

(2) Wages due to other employees
(3) Price of food or drink sold by the keeper of a hotel, tavern or lodging house
(4) Compensation for false imprisonment
(5) Compensation for malicious prosecution CS (Inter) – Dec 1990 (5 Marks)
Cases Limitation
Wages to a seaman 3 years
Wages due to other employees 3 years
Price of food or drink sold by the keeper of a hotel, tavern or lodging house 3 years
Compensation for false imprisonment 1 year
Compensation for malicious prosecution 1 year
Question 13] What is the limitation period prescribed for the following cases?
(1) For specific performance of a contract
(2) To enforce payment of money secured by a mortgage
(4) For leave to appear and defend a suit under 10 days summary procedure
Cases Limitation
For specific performance of a contract 3 years
To enforce payment of money secured by A mortgage 12 years
For possession of an immovable property 12 years
For leave to appear and defend a suit under summary procedure 10 days
Question 14] Whether the Limitation Act, 1963 apply to a proceeding under Article 32 or
226 of the Constitution?
Ans.: The State cannot place any hindrance by prescribing a period of limitation in the way of
an aggrieved person seeking to approach the Supreme Court of India under Article 32 of the
Constitution. The Limitation Act, 1963 does not in terms apply to a proceeding under Article 32
or Article 226 of the Constitution.
Question 15] Star Hotel arranged food etc, for a marriage party of Richie consisting of 60
persons on 30th June 2010 at the rate of `200 per person. `10,000 remained unpaid.
Advise Star Hotel about the period of limitation. CS (Inter) – June 2003 (6 Marks)
Ans.: The Schedule to the Limitation Act, 1963 specifies the limitation period for filing suits and
also state the date from which limitation period start to run. According First Division Part II
which deals with “Suits relating contracts” limitation period for suits for the price of food or
drink sold by the keeper of a hotel, tavern or lodging-house is 3 years and the limitation period
starts from date when the food or drink is delivered.
If Star Hotel wishes to bring a suit, the limitation period will start from next day i.e. from 1 st
July 2010. Thus, Star Hotel is advised to bring suit within 3 years from 1 st July 2010.
Question 16] What period is excluded while computing the period of limitation?
The law of limitation bars the remedy in a court of law when the period of limitation has
expired. However, there are certain exclusions in the computation of the period of
limitation. Explain. CS (Executive) – June 2011 (4 Marks)
Computation of period of limitation for an appeal or an application for leave to appeal.

Ans.: The Limitation Act, 1963 makes specific provisions for exclusion of certain time in some
cases for computation of the prescribed period. These provisions are follows:
(1) In case of any suit, appeal or application, the period of limitation is to be computed
exclusive of the day on which the time begins to run. [Section 12(1)]
(2) The day on which the judgment complained or was pronounced and the time requisite for
obtaining a copy of the decree, sentence or order appealed from or sought to be revised or
reviewed shall be excluded. [Section 12(2)]
(3) The time required for obtaining a copy of the judgment on which the decree or order is
founded shall also be excluded. [Section 12(3)]
(4) The time required for obtaining a copy of the award shall be excluded. [Section 12(4)]
(5) The time during which the applicant has been prosecuting in good faith, his application for
“leave to sue or appeal as a pauper is applied for”, shall be excluded. [Section 13]
(6) Civil proceeding relating to the matter in issue had been initiated in a Court which is
unable to entertain it, by lack of jurisdiction or by any other like cause shall be excluded.
[Section 14]
(7) Exclusion of time in certain other cases [Section 15 & 16]:
- If suit or application for the execution of a decree had been stayed by an injunction or
order then such period of injunction shall be excluded.
- Time required obtaining the sanction/consent of the Government shall be excluded.
- The time during which the defendant has been absent from India and from the territories
outside India but administered by the Central Government, shall be excluded.
- Where the suit or application is a based upon the fraud or mistake of the defendant or
respondent or his agent or in other cases as mentioned in Section 17, the period of
limitation shall not begin to run until the plaintiff or applicant has discovered fraud or
mistake subject to certain exceptions.
Question 17] A custom officer wishes to appeal in the Supreme Court against the
judgment of the High Court. He could obtain certified copy of the judgment of the High
Court after a period of 8 months where as time limitation to file such an appeal is 90
days. Is the appeal barred by limitations? Give reasons.
Ans.: No. The appeal is not barred by limitation.

In computing the period of limitation for an appeal the time requisite for obtaining a certified
copy of judgement should be excluded. [Section 12(3)]
Keeping in view of above provision time taken by customer officer (i.e. 8 months) should be
excluded while computing the period of limitation. Thus, the limitation period starts, when
certified copy has been obtained by custom officer.
Question 18] An appeal has to be filed in the High Court within the period of limitation
which is 90 days from the date of decree. The decree was passed on 6.1.2010.
Application for certified copies of judgment and decree was made on 28.1.2010 and the
certified copies were ready for delivery on 23.2.2010, but the delivery thereof was taken
on 26.2.2010. What is the last date of limitation for filing the appeal?
Ans.: The following period is excluded in computing the period of limitation prescribed for an
appeal.
 Day on which the period begins to run.
 Day on which judgement was pronounced.
 Time required for obtaining decree/certified copies.

In the given problem, the date of decree is 6.1.2010. Application for certified copies was filed on
28.1.2010 and the certified copies were ready for delivery on 23.2.2010. Thus, appeal may be
filed by 3.5.2010.
Month Explanation Days Cumulative
days
Jan 6th Jan will be excluded as day on which the period begins to 21 21
2010 run shall be excluded. Thus, limitation period counting will
start on 7th Jan. Time required for obtaining decree/certified
copies shall be excluded hence days from 28th Jan to 23rd Feb
will be excluded.
Feb Counting will start when certified copies were ready for 5 26
2010 delivery i.e. from 24.2.2010.
Mar No period will be excluded. 31 57
2010
April No period will be excluded. 30 87
2010
May As 87 days has been completed 90 days will complete on 3rd 3 90
2010 May which will be the last day for filing appeal.
Effect of Acknowledgement
Question 19] Explain: Valid acknowledgement and its effect on the period of limitation
Ans.: Effect of acknowledgement [Section 18]: Following requirements which should be present
for a valid acknowledgement:
(1) There must be admission or acknowledgement.
(2) Such acknowledgement must be of an existing liability in respect of a property or right.
(3) It must be made in writing and signed by the party against whom such property or right is
claimed, and
(4) It must be made before the expiry of period of limitation.
If all the above conditions are satisfied, a fresh period of limitation shall be computed from the
time when the acknowledgement was signed.
Question 20] A advanced a loan of `10,000 to B. Before the expiry of the period of
limitation for filing a suit for recovery of this loan, B gave a letter duly singed by him to
A in which B stated that he was indebted to A for Rs. 10,000, but that he will not repay
this debt. Can this letter be treated an acknowledgement?
Ans.: Section 18 of the Limitation Act, 1963 deals with the effect of acknowledgement of liability
in respect of any property or right on the period of limitation. As per this Section an
acknowledgement must in writing and signed by the person giving acknowledgement. Further it
must be given before expiry of period of limitation. As per the facts mentioned in problem all
the requirement of Section18 has been duly complied, hence the letter written by B to A is a
valid acknowledgement.
Question 21] Before expiry of the period of limitation to pay a debt, debtor Raja in a
birthday party makes a declaration in loud words that he has to repay a loan of
`3,00,000 to Prem. Will Prem get a fresh period of limitation from the date of this
declaration. CS (Inter) – June 1997 (5 Marks)

must be given before expiry of period of limitation.
In the given problem, debtor Raja has made declaration orally and not in writing hence is not a
valid acknowledgement.
Question 22] Ashwani has taken `5,000 as a loan from Bhushan and has promised to
return the loan amount within one year. Ashwani failed to return the loan amount
within the stipulated period, but he has written a letter to Bhushan that he would pay
the amount within a month. Whether the period of limitation will start after expiry of
one year or from the date when Bhushan received the letter? Give reasons.
must be given before expiry of period of limitation.
In given case acknowledgement is given within expiration of limitation period hence, if other
condition such as signing have completed then fresh period of limitation will start from the date
of signing the letter.
Effect of payment of debt or interest
Question 23] Write a short note on: Effect of payment of debt or interest
Ans.: Effect of payment of debt or interest [Section 19]: Where payment on account of a debt or of
interest on a legacy is made before the expiration of the prescribed period by the person liable
to pay the debt or legacy or by his agent duly authorized in this behalf, a fresh period of
limitation shall be computed from the time when the payment was made.
Thus, according to this Section a fresh period of limitation becomes available to the creditor
when part-payment of debt is made by the debtor before the expiration of the period of limitation.
Question 24] Ram owes money to Shyam against Bill No. 1657 dated 1 st March, 2012;
credit period 2 months. He makes only part payment on 6th April, 2014. Shyam wants to
file a suit for recovery of the balance of the amount on 1 st April, 2015. Advise Shyam
about the limitation period to file the suit in the present case.
Ans.: Limitation period for the present case is 3 years from the end of the credit period. Thus,
limitation period of 3 years will start from 1st May 2012 and will end on 30th April 2015.
According to Section 19 of the Limitation Act, 1963 a fresh period of limitation becomes available
to the creditor when part-payment of debt is made by the debtor before the expiration of the
period of limitation.
As per facts given in case Ram has made part payment on 6th April 2014 i.e. before the expiry of
original limitation period hence a fresh period of limitation of 3 years will start from 6th April,
2014. Since Shyam has made application within the one year from the date of 6th April 2014,
the suit is maintainable.
Question 25] On 31st December, 2007 Suresh took a loan of Rs. 10,000 from Umesh. He
paid Rs. 2,000 to him on 16th June, 2011 towards part-payment. After that, Umesh did
not receive any amount from Suresh. Subsequently, Umesh instituted a suit for recovery
of the dues from Suresh after the expiry of 2 years from the date of last part-payment.

Decide whether Umesh will succeed in his suit.

CS (Inter) – Dec 2003 (5 Marks) June 2009 (5 Marks)
Ans.: Limitation period for the present case is 3 years from the date of loan. Thus limitation
period will start from 1.1.2008 and will end on 31.12.2011.
According to Section 19 of the Limitation Act, 1963 a fresh period of limitation becomes available
to the creditor when part-payment of debt is made by the debtor before the expiration of the
period of limitation.
As per facts given in case Suresh has made part payment on 16.6.2011 i.e. before the expiry of
original limitation period hence a fresh period of limitation of 3 years will start from 16.6.2011.
Since, Umesh has made application within the 2 year from the date of 16.6.2011, the suit is
maintainable.
Question 26] Arpit took a debt of Rs. 10,000 from Bharat on January, 1998 and
promised to pay by 31st December, 2003. He could not pay such debt within the
stipulated time. On 1st December, 2006, Arpit paid Rs. 500 as interest against such debt
to Bharat against receipt. Bharat filed a suit against Arpit to recover such debt on 15 th
December, 2008. Whether the suit filed by Bharat is within the period of limitation?
Decide with reasons citing relevant provisions of the law.
Ans.: Limitation period for the present case is 3 years from the end of the credit period. Thus,
limitation period of 3 years will start from 1st Jan 2004 and will end on 31st Dec 2006.
According to this Section 19 of the Limitation Act, 1963 a fresh period of limitation
becomes available to the creditor when part-payment of debt or interest is made by the
debtor before the expiration of the period of limitation.
As per facts given in case Arpit has paid interest on 1st Dec 2006 i.e. before the expiry of
original limitation period hence a fresh period of limitation of 3 years will start from 1st Dec
2006. Since, Bharat has made application within the two years from the date of 1st Dec 2006,
the suit is maintainable.
Objective Questions
word(s)/figures(s):
(1) The law of limitation bars the remedy as well as extinguish the right where ________
(2) The period of limitation for instituting a summary suit is ________ from the date on which
debt become due.
(3) Any suit, appeal or application if made beyond the prescribed period of limitation, it is the
duty of the Court not to proceed with such suit, appeal and application. This provision of
Section 3 is known as ________
(4) ________ may be admitted after the prescribed period, if the appellant or the applicant
satisfies the Court that he had sufficient cause for not preferring the appeal or making the
application within such period.
(5) Section 5 allows the extension of prescribed period in certain cases on sufficient cause
being shown for the delay. This is known as doctrine of ________
(6) If a person entitled to institute a suit or make an application is a ________ at the time of
cause of action, the period of limitation to file a suit or to make an application will start
when such disability ceases.
(7) Where one legal disability is followed by another legal disability, the disabilities are
successive and the limitation period will run when ________
(8) In those cases where the application of Section 6 or 7 results in an extension of the period
of limitation, that extension is not to be more than ________ after the cessation of the
disability.

(9) The Law of limitation is based on equitable principle that equity helps the ________
(10) According to ________, of the Limitation Act, 1963 once the limitation period starts to run
no subsequent disability or inability can stop it.
Ans.: (1) the remedy is extinguished by limitation (2) 3 years (3) Bar of Limitation (4) Any appeal
or any application (5) sufficient cause (6) minor, insane or idiot (7) all the legal disabilities are
ceased (8) 3 years (9) diligent and not the indolent (10) Section 9
* * * * * * * * * * *

CODE OF CIVIL PROCEDURE, 1908

 POINTS TO BE STUDIED
1. Cause of Action
2. Decree, Order and Judgement
3. Structure and Jurisdiction of Civil Courts
4. Appearance of Parties and Consequences of Non-Appearance
5. Important Doctrines- Res judice,Res Judicata,Constructive Res judicata
6. Place of Suing (Territorial)
7. Set-off, Equitable Set-off and Counter Claim
8. Other Important Concepts during Proceeding of a Civil Case-
Appeal,Refernce,Review,Revision
9. Suits by or against Minor
10. Summary Procedure
1) When did the The Act came into force on 15th March 1909.
Act come into
force?
2) Scope of the Act The Act extends to whole of India except the state Jammu & Kashmir,
Nagaland and tribal areas.
3) Cause of action It means-
1. All the essential facts constituting the rights and it’s infringement
(violation/ breach).
2. Every fact which will be necessary for the plaintiff to prove, if
traversed in order to support his right to the judgement.
4) Substantial law Substantial law – It is specific in nature, to be followed by specific
v/s procedural law person to whom it is applied (e.g. FEMA, Indian Motor Act).
Procedural law – It is general in nature, to be followed by everyone (e.g.
Contract Act).
5) Decree – sec 2(2) (1) It means the formal expression of an adjudication which determines
the rights of the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or final.
(2) It deemed to include rejection of a plaint and determination of any
question within sec 144 but shall not include-
1. Any adjudication (judgement) from which an appeal lies as an appeal
from an order OR
2. Any order of dismissal for default.
Explanations-
a) A decree is preliminary when further proceedings have to be taken
before the suit can be completely disposed off
b) It is final when such adjudication completely disposes off the suit, it
may be partly preliminary and final.
Decree holder- sec 2(3) means any person in whose favour decree has
been passed or an order capable of execution has been made.
Essential elements of decree-
1) There must be adjudication (judgement).
2) It must have determined the rights of the parties for all matters in
controversy in the suit.
3) Such determination must be of conclusive nature (i.e. it can not be
challenged in the same court again but appeal can be filed in HC).
4) There must be formal expression of such adjudication.
6) Order – sec It means the formal expression of any decision of a civil court which is
2(14) not a decree.Order is wider than decree.
7) Judgement – sec It means the statement given by the judge on decree or order.
2(9)
8) Appealable According to sec 104, no appeal lies against orders other than what is
orders expressly provided in the code or any other law for the time being in
force.
The appealable orders under the Act are as follows-
1. Section 35A – For compensatory cost in respect of false or vexatious
(fake) claims.
2. Section 91 – Relating to public nuisances and other wrongful acts
affecting the public.
3. Section 92 – Relating to alleged breach of trust created for public
purposes of charitable or religious nature.
4. Section 95 – Compensation for obtaining arrest attachment or
injunction on insufficient cause.
5. An order under any of the provisions of the code imposing a fine or
directing an arrest or detention in the civil prison of any person except
where such arrest or detention is in execution of a decree.
9) Res Sub-judice – It means if the suit is pending in one court, then another court can not
sec 10 take such suit in which matter is the same.
Essential conditions of Res Sub- judice-
1) There must be two suits instituted at different times.
2) The matter in issue of the later suit should be directly and
substantially in the issue of earlier suit.
3) Such earlier suit should be between the same parties.
4) Such earlier suit is still pending either in the same court or in any
other competent court but not before a foreign court.
Important conclusion-
1) Sec 10 “Doctrine of Res Sub- judice” prevents multiple proceedings
for the same matter to avoid contradictory judgement.
2) In case a suit is filed, subsequently no higher or lower court can
accept the suit for which already adjudication is pending.
10) Doctrine of Res In simple words, once a matter is finally decided by the competent
Judicata – sec 11 court, no party can be permitted to reopen it in a subsequent
litigation.
Essential conditions of Res Judicata-
1) The matter must be directly and substantially in issue in two suits.
2) The prior suit should be between the same parties.
3) The parties should have litigated under the same title.
4) The court which determined the earlier suit must be competent to
try the later suit.
5) The same question is directly and substantially in issue in the later
suit.
U/S 11, Doctrine of Res Judicata –
1. Applies to a matter adjudicated judgement once.
2. It prohibits trial of a suit which has been decided in a competent
court earlier.
3. If matter of dispute is not adjudicated but dismissed on technical
grounds then principle of Res Judicata shall not apply OR
4. If any matter in subsequent suit is incidental and collateral to the
matter in previous suit, then also Res Judicata does not apply.
11) Doctrine of Any matter which can become a ground of defence or attack in a earlier
Constructive Res suit shall be considered as a direct question and substantial the same
Judicata issue in later suit.
This doctrine is based on the following grounds-
1. There should be an end to litigation.
2. The parties to the suit should not be harassed to agitate the same
issues or matters already decided between them.
3. The time of court should not be wasted over the matters that ought
to have been and should have been decided in the former suit between
the parties.
4. It is a rule of convenience and not a rule of absolute justice.
12) Place of suing – 1) A suit shall be instituted in the lowest court (sec 15).
sec 15, 16, 17, 18 2) Suit in the respect of immovable property-
1. Where the property is situated in a particular jurisdiction of a court
(sec 16) – Suit shall be filed within the local limits of the court in
whose jurisdiction the property is situated.
2. When the property is situated within the jurisdiction of different
courts (sec 17) – Suit may be filed in any court.
3. Where jurisdiction of courts is uncertain (sec 18) – Suit may be filed
with any of the court under whose local limits the jurisdiction is alleged
(+)
After recording a statement to the effect that the jurisdiction is
uncertain.
13) Suits relating 1) For recovery of movable property attached – Within the jurisdiction
to movable of the court where the property is situated.
property – sec 19 2) For compensation for wrong done to the person or to his movable
property – At the option of the plaintiff in either of the following courts:-
1. In the jurisdiction of the court where the wrong was done or
2. In jurisdiction of the court where the defendant resides or
carries on business or personally works for gain.
14) Other suits – 1) Every other suit shall be instituted in the court where the defendant-
sec 20 a)Actually and voluntarily resides OR
b) Carries on business OR
c) Personally works for gain.
2) When there is more than one defendant – In the courts where any of
the defendants follows criteria given in 1 (+) permission from the
defendants who don’t reside in that jurisdiction of the court and
permission of the court shall be obtained.
3) Suit can also be filed where the cause of action is wholly or in part
arise.
Note-
In case of a corporation, it shall be deemed to carry on business at it’s
principal office in India or at any branch offices where the cause of
action arises.
15) Set off, 1)Set off-
counter claim, a) It is applied in case of definite ascertained sum of money between
equitable set off the plaintiff and the defendant.
b) Usually the defendant claims set off against the plaintiff’s demand
for recovery of money.
c) Set off claim need not arise from the same transaction.
d) The set off claimed should not be time barred.
e) Claim for set off shall be made in writing by the defendant at the 1 st
hearing of the suit unless permitted by the court at any subsequent
hearing.
Note-
Thus set off is possible only when both the parties to the claim are the
same.
2) Counter claim-
a) A claim made by the defendant in a suit against the plaintiff.
b) Such claim need not arise from the same transaction.
c) Counter claim can be for damages also.
d) Such counter claim may exceed the plaintiff’s claim in the cross
action.
The cause of action accrues to the defendant against the plaintiff either
before/ after the suit but before the defendant delivers his defence in
the court.
3) Equitable set off-
a) Such set off is applied in case of uncertain sum of money.
b) It must be originated from the same transactions only.
c) Equitable set off can apply at the courts discretion even in the case
of time barred debts.
16) Mis- joinder of 1) When there are more than one person joint in a suit as a plaintiff or
parties/ mis- defendant against whom or with whom any right to relief does not
joinder of causes arise, it is called misjoinder of parties.
of action 2) However such misjoinder shall be objected at the first hearing
unless the grounds for objection had subsequently arisen.
17) Ex- parte 1) When the plaintiff appears and the defendant does not appear before
decree (order is the court, the court may proceed against the defendant ex- parte,
passed even if only provided that sufficient time is given to the defendant for being present.
one party is 2) When the defendant appears and the plaintiff does not appear, the
present) court may-
1) Dismiss the suit
2) Pass a decree in favour of plaintiff only to the extent of claim
admitted by the defendant
3) When one or more of the several plaintiffs do not appear, the court
may permit a suit to proceed in the same way as if all the plaintiffs
were present and vice a versa.
18) Appeal Important points relating to appeal-
1) Appeals from original decrees may be preferred in SC.
2) An appeal may lie from an original decree passed ex- parte.
Court decree 3) Where the decree has been passed with the consent of the parties.
4) The appeal from original decree lies on the question of law.
5) No appeal lies in any suit of the nature cognizable by courts of small
Appeal to superior causes when the amount or value of the subject matter of original suit
court does not exceed Rs. 10,000.
Second appeal-
Appeal to HC on substantial question of law is second appeal.
(HC, Appellant Appeals to supreme court may lie in the following cases-
Tribunal, SC) 1) Case is certified by the civil court for appeal.
2) Any judgement passed by High court.
3) Any judgement passed on appeal by high court or any other court of
final appellate jurisdiction.
4) With the special permission of supreme court.
19)Appellate 1) When the lower court has refused to admit evidence.

tribunal has 2) The appellate tribunal requires any document to be produced or any
discretion to allow witness to be examined to enable it to pronounce judgement.
additional 3) For any other substantial cause.
evidence in the
given
circumstances
20) Reference, Reference – Whenever before the judgement court refers the case to
review, revision the High Court for it’s opinion, it is Reference.
Review – Whenever an aggrieved party applies to the same court which
passed a decree/ order, it is Review.
Revision – Whenever the High Court calls for the records in any case
decided by the subordinate court, where no appeal lies but it appears
to the High Court that the subordinate court-
1) Has no lawful jurisdiction OR
2) Has acted illegal OR
3) With material irregularity,
It is Revision.
Notes-
1) Review can be applied when appeal lies to the HC but the aggrieved
party has discovered-
1. New or important matters or evidences OR
2. Any other sufficient reason OR
3. A mistake or arrear is visible clearly.
2) Revision is exercised only if-
1. A judgement is already passed by the subordinate court And
2. No appeal lies against such order/ judgement
3. The subordinate court must have acted beyond it’s authority
4. On receiving application by HC or even suo motu by HC.
21) Suits by or Corporations-
against 1) A suit may be signed and verified on behalf of the corporation – by
corporations, secretary / director/ principal officer.
minors 2) Suit against a corporation may be served on the above persons or it’s
registered office or place of business.
Minor-
1) Minor is a person < 18 yrs and in case of a guardian appointed by
court, person < 21 yrs.
2) Every suit on behalf of minor shall be instituted on behalf of a
person who is of sound mind and a major.
3) If the defendant is a minor then the suit shall be instituted on
guardian.
Note-
1) On attaining majority, he may elect to continue the suit or abandon
it.
2) If the minor continues the suit, now the suit will continue in his own
name instead of any other person.
3) If he abandons (i.e. cancels) the suit, then he shall repay all the
costs incurred by defendant.
22) Summary 1) It applies to suits on negotiable instruments (bills of exchange,
procedure promissory note) when the plaintiff within 1 year from the due date
applies to the court to proceed under the order 37 of CPC i.e. Summary
suit.
2) Such rule of summary procedure helps to prevent unreasonable
restriction by defendant.
3) The debt payable by defendant should arise on a written contract or
on an enactment or on guarantee.
4) The defendant gets 10 days to defend from the date of service of
summons.
Beyond 10 days, the court may allow a delay provided there is a
sufficient cause.
Q No. 1. Write a short note on: Cause of actions
Q No. 2. Distinguish between: Decree & Order
Q No. 3. All orders made by Courts are not appealable under the Code of Civil Procedure, 1908.
What are the appealable orders under the Code of Civil Procedure, 1908?
Q No. 4. Distinguish between: Order, Judgment and Decree
Distinguish between Order and Decree’.
Point out the essentials of a judgment, decree & order.
Q No. 5. Comment on the doctrine of res sub judice.
Discuss the doctrine of res sub-judice.
Q No. 6. A filed a suit for partition of some property against C & D in a Civil Court at Rampur on
1.1.2018. C & D also filed a suit against A for partition on the same property of 1.7.2018 in the
district Court at Shyampur. C & D then made a prayer before the Civil Court at Rampur, that
proceeding in that Court can be stayed because it is the Court of lower jurisdiction than the
district Court at Shyampur. Will the Court accept their prayer?
Q No. 7. A suit was instituted by the Plaintiff Company alleging infringement by the Defendant
Company for using trade name of medicine and selling the same in wrapper and carton of
identical designs with same colour combination, etc., as that of Plaintiff Company. A subsequent
suit was instituted in a different Court by the Defendant Company against the Plaintiff Company
with similar allegations. In such a situation, advise the Plaintiff Company the procedure adopted
by the Courts.
Q No. 8. A suit was instituted by Rosy Pvt. Ltd. dealing in cosmetics alleging infringement by
Sunder Pvt. Ltd. by using trade name ‘Monica’ and selling the same in wrappers and cartons of
identical design and colour used by the plaintiff company. A subsequent suit was instituted in
different Court by the defendant company (Sunder Pvt. Ltd.) against the plaintiff company with
the same allegation. Decide, whether the subsequent suit will be allowed to continue. Give
reasons and support your answer with case law.
Q No. 9. Write a short note on res judicata
No one shall be vexed twice for the same cause of action.
Discuss the doctrine of res judicata under Section 11 of Code of Civil Procedure, 1908.
Q No. 10. Discuss the doctrine of stay of suit under the Code of Civil Procedure, 1908. How far is
it different with that of res judicata? Explain.
Distinguish between: Res judicata & Stay of suits
Q No. 11. Raja & Sons, an unregistered partnership firm filed a suit to recover the price of the
goods. This plaint was rejected as the suit was barred under Section 69(2) of the Indian
Partnership Act, 1932 on the ground that the firm was not registered. Thereafter, the firm got
registered and a fresh suit was filed on the same cause of action. Is the subsequent suit barred
by the doctrine of res judicata?
Q No. 12. Amar files a suit against Binod for enhancement of rent. The Court dismisses the suit
holding that the rent is already too high. Binod now files a suit against Amar for reduction of
rent and pleads that the previous decision that the rent is excessive will operate as res judicata.
Is the plea valid?
Q No. 13. Anand filed a tenancy application under Tenancy Act. His earlier suit not maintainable
before the Civil Court in view of bar created under Section 85 of the Tenancy Act. Whether the
decision rendered by the Civil Court would operate as res judicata for deciding tenancy
application under the Tenancy Act?
Q No. 14. Explain the doctrine of constructive res judicata.
Q No. 15. The suit filed by Ram against Sohan for getting House X on the ground that this house
was given to him by the deceased Kumar under his will, is dismissed as Ram failed to prove the
will. Now, he files another suit against Sohan to House X on the ground that he is entitled to get
the house because he is the nearest heir of the deceased Kumar. Will he get success?
Q No. 16. Anil was a trustee of a trust. After Anil’s death, Brij wrongfully takes the possession of
the trust property. Chandan, the son of Anil files a suit for recovery of possession of the property
against Brij as the legal heir of Anil in his individual capacity. But Chandan did not succeed.
Then Chandan files another suit for recovery of trust property against Brij in the capacity of
trustee as he was appointed as trustee after the death of Anil. Whether the second suit is barred
by the doctrine of constructive res judicata? Explain.
Q No. 17. X, Y & Z own a house at Delhi, a shop at Mumbai and a farm at Ganaganagar in
Rajasthan. They made a partition of this property by an agreement at Jaipur. X, being aggrieved
by this partition, files a suit for challenging this partition in a Court at Delhi. Y & Z raised an
objection that the suit should have been filed in a Court at Jaipur. How will the Court decide
this issue?
Q No. 18. Anita, residing in Delhi, publishes in Calcutta statements defamatory of Babita of
Mumbai. Babita wants to sue Anita either in Calcutta. Advice Anita & Babita.
Q No. 19. A who resides at Delhi entered into a contract with B at Mumbai for supply of certain
goods at Kolkata where B resides and carries on business. At the time of entering into contract,
it was agreed upon between A and B that in case of any dispute regarding payment or delivery of
goods arises, the suit will be filed only in Bangalore Court. B failed to make payment of goods. A
filed a suit at Bangalore for recovery of money. B alleges that Bangalore Court has no
jurisdiction to decide the suit. Is the plea of B maintainable?
Q No. 20. Ajeet resides at Bhopal, Baljeet at Indore and Charanjeet at Lucknow. Ajeet, Baljeet
and Charanjeet being together at Kolkata, Baljeet and Charanjeet make a joint promissory note
payable on demand and deliver it to Ajeet. Where can Ajeet sue Baljeet and Charanjeet for the
amount of the promissory note?
Q No. 21. A transport company has its head office at Delhi and branch offices at Chennai, Jaipur
and Mumbai. A dispute cropped up between Sam and the company in respect of a transaction
made through Chennai office. Sam files a suit in respect of this dispute against the company in a
Court at Jaipur. How will the Court decide?
Q No. 22. A cause of action arises between two parties Surendra and Mohendra. The Courts at
Meerut and Ghaziabad are competent to try the suit. But both the parties to the contract agree
to vest the jurisdiction in the Court at Meerut. Is such an agreement valid?
Q No. 23. ABC Ltd. is a pharmaceutical company having its corporate office in Mumbai. XYZ Ltd.,
another pharmaceutical company, is carrying on pharmaceutical business at Nagpur. XYZ Ltd.
published an advertisement at Bangalore constituting infringement of the registered trade mark
of ABC Ltd. ABC Ltd. intends to institute a suit for damages against XYZ Ltd. Advise where ABC
Ltd. should institute the suit.
Q No. 24. Avinash, residing in Delhi, requests his friend Bishnoy, residing in Lucknow, for a loan
of Rs. 10 lakh. Bishnoy asks Avinash to come to Lucknow and collect the cheque for the said
amount. Accordingly, Avinash collects the cheque at Lucknow. Avinash has failed to repay the
loan. Bishnoy wants to institute a suit for the recovery of loan against Avinash. Mention the
place where Bishnoy can file a suit against Avinash. Give reasons in support of your answer.
Q No. 25. What do you know about set off? How it differ from equitable set off?
Differentiate between: 'Set off', 'counter claim' and 'equitable set off' in the context of the Code of Civil
Procedure, 1908.
Q No. 26. Distinguish between: Set-off & Equitable Set-off
Q No. 27. Distinguish between: Set-off & Counter-claim
Q No. 28. Ram and Shyam sell wheat for `10,000 to Sohan and Mohan. Sohan sells cloth worth
`12,000 to Shyam. Sohan files a suit against Shyam for recovery of price of cloth. Shyam claims
set-off of the cost of wheat in this suit. Will he succeed?
Q No. 29. Anubhav owes `10,000 to the partnership firm of Bose and Chander. Bose dies leaving
Chander surviving. Anubhav sues Chander for a debt of `15,000 due in his individual capacity.
Can Chander set-off the debt of `10,000?
Q No. 30. A suit is dismissed on technical ground of mis-joinder of parties. Thereafter, the defect
is remedied and the suit is filled again. Will it be affected by the principle of re judicata?
Q No. 31. What are the consequences of non-appearance of parties on the date of hearing?
Q No. 32. State the remedies available to defendant if an ex-parte decree is passed against him.
Define 'exparte decree' and also mention the time limit and grounds for making an application to
set aside an ex parte decree.
Q No. 33. Discuss briefly the provision relating to reference, review and revision.
Under what circumstances a review of judgment of a court is permissible? How is a review different from
‘revision’ and ‘appeal’.
Differentiate between: 'Reference', 'review' and 'revision' in the context of the Code of Civil Procedure,
1908. CS (Inter) – Dec 2005 (4 Marks)
Distinguish between: Appeal, revision & review.
‘Review’ and ‘revision’ in civil law.
Q No. 34. Distinguish between: Review & Revision in civil law
Q No. 35. Discuss the law relating to suits by or against minors.
Q No. 36. To which classes of suits summary procedure applies? When can defendant apply
leave to defend? On which grounds may the Court grant or reject an application for leave to
defend? What is the period for filing a summary suits?
Q No. 37. A & Co. files a suit under Order XXXVII of the Code of Civil Procedure, 1908 for the
recovery of Rs. 50,000 which were given by it as loan to its employee B against the promissory
note executed by B in the Court of the district judge. B received the summons for judgment in
the suit under Order XXXVII of the Code Civil Procedure, 1908. B files a written statement only
after 20 days of the receipt of the summons in the said suit. The Court of district judge ignores
the written statement of B and outright passes judgment and decree for recovery of Rs.50,000
with costs against B.
The Code of Civil Procedure, 1908 8.11
Chapter
8 The Code of Civil Procedure, 1908
Introduction: The Civil Procedure Code consolidates and amends the law relating to the
procedure of the Courts of Civil jurisdiction. The Code of Civil Procedure is an adjective law it
neither creates nor takes away any right. It is intended to regulate the procedure to be followed
by Civil Courts. It came into force on 15th March, 1909. The Act extends to whole of India except
the State of Jammu & Kashmir; the State of Nagaland & tribal areas .
Important Terms
Question 1] Write a short note on: Cause of actions

Ans.: Cause of action means every fact that it would be necessary for the plaintiff to prove in
order to support his right to the judgment of the Court. It means all the essential facts
constituting the rights and its infringement.
It means every fact which will be necessary for the plaintiff to prove, if traversed in order to
support his right to the judgment.
Question 2] Define the term ‘Decree’ as per the Civil Procedure Code, 1908.
Ans.: Decree [Section 2(2)]: Decree means the formal expression of an adjudication which, so far
as regards the Court expressing it, conclusively determines the rights of the parties with regard
to all or any of the matters in controversy in the suit and may be either preliminary or final. It
shall be deemed to include the rejection of a plaint and the determination of any question
within Section 144, but shall not include:
(a) Any adjudication from which an appeal lies as an appeal from an order, or
(b) Any order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit
can be completely disposed of. It is final when such adjudication completely disposes of the
suit, it may be partly preliminary and partly final.
Decree-holder [Section 2(3)]: Decree-holder means any person in whose favour a decree has been
passed or an order capable of execution has been made.
Essential elements of decree:
 There must be adjudication.
 It must have determined the rights of the parties with regard to all or any of the matters in
controversy in the suit.
 Such determination must be of conclusive of nature.
 There must be formal expression of such adjudication.
On judgment a decree follows. Every endeavour must be made to ensure that decree is drawn
up expeditiously within a period of 15 days from the date on which the judgment is
pronounced. It should contain the:
(i) Number of the suit(s)
(ii) Names and descriptions of the parties and their registered addresses
(iii) Particulars of the claim
(iv) Relief granted or other determination of the suit
(v) Amount of cost incurred and by whom it is to be paid.

Question 3] Define the term ‘Order’ as per the Civil Procedure Code, 1908.
Ans.: Order [Section 2(14)]: Order means the formal expression of any decision of a Civil Court
which is not a decree.
Question 4] Define the term ‘Judgment’ & Judgment-debtor’ as per Civil Procedure Code
1908.
Ans.: Judgment [Section 2(9)]: Judgment means the statement given by the judge on the
grounds of a decree or order.
Thus, a judgment is the decision of a Court of justice upon the respective rights and claims of
the parties to an action in a suit submitted to it for determination.
Judgment-debtor [Section 2(10)]: Judgment-debtor means any person against whom a decree
has been passed or an order capable of execution has been made.
Question 5] Distinguish between: Decree & Order

Ans.: Following are the main points of distinction between decree and order:
Points Decree Order
When Decree can only be passed in a suit Order can be passed in a suit originated
passed originated by the presentation of a plaint. by the presentation of a plaint,
application, or petition.
Determination Decree contains conclusive determination Order may or may not finally determine a
of a right of a right. right.
Preliminary/ Decree may be final, preliminary or partly Order cannot be a preliminary order.
Final preliminary - partly final.
Number In general, there can only be one decree There can be any number of orders in a
or at the most one preliminary and one suit.
final decree in a suit.
Appeal Every decree is appealable unless an Only those orders which are specified as
appeal is expressly barred. appealable in the code are appealable.
Second A second appeal may lie against a decree There is no second appeal for orders.
appeal to a High Court on certain grounds.
Question 6] All orders made by Courts are not appealable under the Code of Civil
Procedure, 1908. What are the appealable orders under the Code of Civil Procedure,
1908? CS (Inter) – June 2008 (4 Marks)
Ans.: Orders from which appeal lies [Section 104]: No appeal lies against orders other than what
is expressly provided in the Code or any other law for the time being in force.
Under the Code appealable orders are:
(a) An order for compensatory costs in respect of false or vexatious claims.
(b) An order relating to public nuisances and other wrongful acts affecting the public.
(c) An order relating to alleged breach of trust created for public purposes of a charitable or
religious nature.
(d) An order of compensation for obtaining arrest attachment or injunction on insufficient
grounds.
(e) An order under any of the provisions of the Code imposing a fine or directing the arrest or
detention in the civil prison of any person except where such arrest or detention is in
execution of a decree.
(f) Any order made under rules from which an appeal is expressly allowed by the rules.

No appeal lies from any order passed in appeal under this section. In the case of other orders,
no appeal lies except where a decree is appealed from, any error, defect or irregularity in any
order affecting the decision of the case which is to be set for the as a ground of objection in the
memorandum of appeal.
Question 7] Distinguish between: Order, Judgment and Decree

Distinguish between Order and Decree’.
Point out the essentials of a judgment, decree & order. CS (Inter) – Dec 1999 (8 Marks)
Ans.: See the Answer of Question No. 2, 3 & 4.
Stay of suits/Res sub judice
Question 8] Comment on the doctrine of res sub judice. CS (Inter) – Dec 1998 (8 Marks)
Discuss the doctrine of res sub-judice. CS (Inter) – Dec 2004 (5 Marks)
Ans.: Stay of suit [Section 10]: 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. The provision of Section 10 popularly known as principal of res sub-judice.
In simple words if suit is pending in one Court then other Court cannot take such suit in which
matter is same i.e. to say two courts cannot deal with the same matter at the same time.
Essential conditions for stay of suits:
 There must be two suits instituted at different times.
 The matter in issue in the later suit should be directly and substantially in issue in the
earlier suit.
 Such earlier suit should be between the same parties.
 Such earlier suit is still pending either in the same Court or in any other competent Court
but not before a foreign Court.
Object of Section 10: The object of Section 10 is to prevent multiplicity of proceedings with
regard to the same subject matter and avoid contradictory judgment being given by the Courts.
A suit was instituted by the plaintiff company alleging infringement by the defendant company by using
trade name of medicine and selling the same in wrapper and carton of identical design with same colour
combination etc., as that of Plaintiff Company. A subsequent suit was instituted in different Court by
the defendant company against the plaintiff company with same allegation. The Court held that
subsequent suit should be stayed as simultaneous trial of the suits in different Courts might result in
conflicting decisions as issue involved in two suits was totally identical. [M/s. Wings Pharmaceuticals (P)
Ltd. & another v. M/s. Swan Pharmaceuticals & other, AIR 1999 Pat. 96 ]
Question 9] A filed a suit for partition of some property against C & D in a Civil Court at
Rampur on 1.1.2018. C & D also filed a suit against A for partition on the same property
of 1.7.2018 in the district Court at Shyampur. C & D then made a prayer before the Civil
Court at Rampur, that proceeding in that Court can be stayed because it is the Court of
lower jurisdiction than the district Court at Shyampur. Will the Court accept their
prayer? CS (Inter) – June 1997 (6 Marks)
Ans.: As per Section 10 of the Civil Procedure Code, 1908, if suit is pending in one Court then
other Court cannot take such suit in which matter is same. The doctrine of res sub-judice is

applicable in this case. The proceedings of the subsequently instituted suit are to be stayed,
irrespective of the fact that the Court in which the suit is instituted subsequently is of higher or
lower jurisdiction than the Court in which the previous suit is pending. Therefore, the Court at
Rampur will not accept the prayer of C & D.
Question 10] A suit was instituted by the Plaintiff Company alleging infringement by the
Defendant Company for using trade name of medicine and selling the same in wrapper
and carton of identical designs with same colour combination, etc., as that of Plaintiff
Company. A subsequent suit was instituted in a different Court by the Defendant
Company against the Plaintiff Company with similar allegations. In such a situation,
advise the Plaintiff Company the procedure adopted by the Courts.
applicable in this case.
In given case, the parties are same in both suits and subject matter of both suits is also same,
the second suit would be barred by application of principal of res sub judice as per Section 10.
Question 11] A suit was instituted by Rosy Pvt. Ltd. dealing in cosmetics alleging
infringement by Sunder Pvt. Ltd. by using trade name ‘Monica’ and selling the same in
wrappers and cartons of identical design and colour used by the plaintiff company. A
subsequent suit was instituted in different Court by the defendant company (Sunder Pvt.
Ltd.) against the plaintiff company with the same allegation. Decide, whether the
subsequent suit will be allowed to continue. Give reasons and support your answer with
case law. CS (Inter) – June 2008 (4 Marks)
applicable in this case.
In given case, the parties are same in both suits and subject matter of both suits is also same,
the second suit would be barred by application of principal of res sub judice as per Section 10.
Thus, subsequent suit will not be allowed to be continued.
Res Judicata
Question 12] Write a short note on res judicata CS (Inter) – Dec 1994 (4 Marks)
No one shall be vexed twice for the same cause of action. CS (Inter) – Dec 2007 (4 Marks)
Discuss the doctrine of res judicata under Section 11 of Code of Civil Procedure, 1908.
Ans.: Res judicata [Section11]: No Court shall try any suit or issue in which the matter directly
and substantially in issue has been directly and substantially in issue in a former suit between
the same parties, in a Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally decided by such Court.
In simple words once a matter is finally decided by a competent Court, no party can be permitted
to reopen it in a subsequent litigation.
Essential conditions of res judicata:
 The matter must be directly and substantially in issue in two suits.
 The prior suit should be between the same parties.
 The parties should have litigated under the same title.
 The Court which determined the earlier suit must be competent to try the latter suit.
 The same question is directly and substantially in issue in the latter suit.

Question 13] Discuss the doctrine of stay of suit under the Code of Civil Procedure,
1908. How far is it different with that of res judicata? Explain.
Distinguish between: Res judicata & Stay of suits
Ans.: Following are the main points of distinction between res sub-judice and res judicta:
Points Res sub-judice Res judicata
When Res sub-judice applies to matter pending Res judicta applies to a matter adjudicated
applies trial. upon.
Bar Res sub-judice bars the trial of a suit of Res judicta bars the trial of a suit or an
pending suit. issue which has been decided in a former
suit.
Section Section 10 of the Civil Procedure Code, Section 11 of the Civil Procedure Code,
1908 incorporates this rule. 1908 incorporates this rule.
Que. No. 14] A files a suit against B to recover money on a promissory note. B contends
that the promissory note was obtained from him by undue influence. The suit is decreed
in spite of this objection. B subsequently wants to challenge the promissory note by a
fresh suit on the ground of fraud and coercion. Is the second suit barred by res
judicata? Give reasons.
Ans.: Yes, the second suit is barred by the doctrine of res judicata. The doctrine of res judicata
is contained in Section 11 which provides that no Court shall try any suit in which the matter
is same in a previously decided suit and has been heard and finally decided by the Court.
Thus, when once a matter has been decided by a Court on merits and a decree has been
obtained, B cannot afterwards sue for rescission of the contract on the ground of fraud and
coercion.
Question 15] Raja & Sons, an unregistered partnership firm filed a suit to recover the
price of the goods. This plaint was rejected as the suit was barred under Section 69(2) of
the Indian Partnership Act, 1932 on the ground that the firm was not registered.
Thereafter, the firm got registered and a fresh suit was filed on the same cause of action.
Is the subsequent suit barred by the doctrine of res judicata?
Ans.: The doctrine of res judicata is contained in Section 11 provides that no Court shall try any
suit in which the matter is same in a previously decided suit and has been heard and finally
decided by Court.
In this case the subsequent suit will not be barred by the principle of res judicata as the matter
of dispute between the parties in previous suit was not finally adjudicated upon. Here, the
issue involved is recovery of price of goods. It was not decided on merit in the former suit, but
dismissed on technical grounds as the firm was not registered. Now, the firm has been
registered, it can certainly file a fresh suit for recovery of price of goods if it is within the period
of limitation.
Question 16] Amar files a suit against Binod for enhancement of rent. The Court
dismisses the suit holding that the rent is already too high. Binod now files a suit
against Amar for reduction of rent and pleads that the previous decision that the rent is
excessive will operate as res judicata. Is the plea valid?

Ans.: The doctrine of res judicata is contained in Section 11 which provides that, no Court shall
try any suit in which the matter is same in a previously decided suit and has been heard and
finally decided by Court.
In this case, the issue whether or not the rent was excess was not raised by a party and was
not denied or admitted expressly or by implication by the other party in the previous suit.
Thus, this matter was only incidentally and collaterally in issue and decision on this issue will
not operate as res judicata.
Question 17] Anand filed a tenancy application under Tenancy Act. His earlier suit not
maintainable before the Civil Court in view of bar created under Section 85 of the
Tenancy Act. Whether the decision rendered by the Civil Court would operate as res
judicata for deciding tenancy application under the Tenancy Act?
Ans.: The doctrine of res judicata is contained in Section 11 provides that no Court shall try
any suit in which the matter is same in a previously decided suit and has been heard and
finally decided by Court.
In this case the subsequent suit will not be barred by the principle of res judicata as the matter
of dispute between the parties in previous suit was not finally adjudicated upon. It was not
decided on merit in the former suit, but dismissed on technical grounds.
Question 18] Explain the doctrine of constructive res judicata.

Ans.: Constructive res judicata [Explanation IV to the Section 11]: Any matter which might and
ought to have been made ground of defence or attack in such former suit shall be deemed to
have been a matter directly and substantially in issue in such suit.
This doctrine is based on the following grounds of public policy:
 There should be an end to litigation.
 The parties to a suit should not be harassed to agitate the same issues or matters already
decided between them.
 The time of Court should not be wasted over the matters that ought to have been and
should have been decided in the former suit between the parties.
 It is a rule of convenience and not a rule of absolute justice.
Question 19] The suit filed by Ram against Sohan for getting House X on the ground that
this house was given to him by the deceased Kumar under his will, is dismissed as Ram
failed to prove the will. Now, he files another suit against Sohan to House X on the
ground that he is entitled to get the house because he is the nearest heir of the
deceased Kumar. Will he get success?
Ans.: As per Explanation IV to Section 11, any matter which might and ought to have been made
ground of defence or attack in such former suit shall be deemed to have been a matter directly
and substantially in issue in such suit.
Accordingly, in the present case, the ground that Ram was entitled to get the estate as the
nearest heir of the deceased Kumar shall be deemed to be a matter directly and substantially in
issue in the former suit, might and ought to have been taken up by Ram in that suit itself
exercising reasonable diligence. Thus, the fresh suit shall be barred by the application of
doctrine of constructive res judicata and therefore Ram will not succeed.
Question 20] Anil was a trustee of a trust. After Anil’s death, Brij wrongfully takes the
possession of the trust property. Chandan, the son of Anil files a suit for recovery of
possession of the property against Brij as the legal heir of Anil in his individual capacity.

But Chandan did not succeed. Then Chandan files another suit for recovery of trust
property against Brij in the capacity of trustee as he was appointed as trustee after the
death of Anil. Whether the second suit is barred by the doctrine of constructive res
judicata? Explain. CS (Executive) – June 2010 (6 Marks)
Ans.: As per Explanation IV to Section 11, any matter which might and ought to have been made
ground of defence or attack in such former suit shall be deemed to have been a matter directly
and substantially in issue in such suit. The doctrine of constructive Res Judicata prevents
further suits being filed for a matter that is at the core of a former suit. In this case, the two
suits are filed by Chandan in two different capacities. Hence, the second suit is not barred.
Place of suing
Question 21] Explain the provision relating to ‘place of suing’ as per Civil Procedure
Code, 1908.
Ans.: Court in which suits to be instituted [Section 15]: Every suit shall be instituted in the Court
of the lowest grade to try it.
Suits to be instituted where subject-matter situate [Section 16]: The following suits relating to
property shall be instituted in the Court within the local limits of whose jurisdiction the
property is situated:
(a) For recovery of immovable property with or without rent or profits;
(b) For partition of immovable property;
(c) For foreclosure of sale or redemption in the case of a mortgage 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 distraint or attachment.
Where immovable property is situated within the jurisdiction of different Courts [Section 17]:
Where immovable property situated within the local limits of jurisdiction of different Courts, the
suit may be instituted in any Court within the local limits of whose jurisdiction the property is
situated wholly or partly.
Where local limits of jurisdiction of Courts are uncertain [Section 18]: Where jurisdiction is
alleged to be uncertain as being within the local limits of the jurisdiction of which of two or
more Courts, any immovable property is situated, then any of the said Courts may proceed to
entertain the suit after having recorded a statement to the effect that it is satisfied that there is
ground for such alleged uncertainty.
Where wrong done to the person or to movable property [Section 19]: Where a suit is for
compensation for wrong done to the person or to movable property, the suit may be instituted
at the option of the plaintiff in either of the following Courts.
- In jurisdiction of Court where the wrong was done
- In jurisdiction of Court where the defendant resides, or carries on business, or personally
works for gain.
Illustrations (As given in the Code of Civil Procedure, 1908)
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in
Calcutta or in Delhi.
Other Suits [Section 20]: Subject to provision of Sections 15 to 19
- Every suit shall be instituted in Court within the local limits of whose jurisdiction the
defendant actually and voluntarily resides, or carries on business, or personally works for
gain.
- If there are more than one defendants suit shall be instituted in Court within the local limits
of whose jurisdiction any of the defendants actually and voluntarily resides, or carries on
business, or personally works for gain. However, in such case the leave of the Court has to

be taken or the defendants who do not reside, or carry on business, or personally work for
gain, acquiesce in such institution.
- Suit can also be instituted where the cause of action, wholly or in part, arises.
Explanation: A corporation shall be deemed to carry on business at its sole or principal office in
India or, in respect of any cause of action arising at any place where it has also a subordinate
office, at such place.
Illustrations (As given in the Code of Civil Procedure, 1908)
(a) A is a tradesman in Calcutta; B carries on business in Delhi. B, by his agent in Calcutta, buys goods
of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods
accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of
action has arisen or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Banaras, B and C
make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at
Banaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at
Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit
cannot proceed without the leave of the Court.
Question 22] Hari enters into an agreement with Bansi to sell his house situated in
Mumbai. Both the parties reside in Delhi, and an agreement is entered at Delhi. Bansi
sues Hari for specific performance of contract in Delhi. Hari claims Delhi Court have no
jurisdiction to entertain such suit. Will he succeed?
Ans.: According to Section 16, a suit for recovery of immovable property can be instituted in the
Court in whose local jurisdiction the property is situated. The section excludes jurisdiction on
residence of the defendant and cause of action as provided in Section 20.
In view of above provisions the suit should have been filed at Mumbai, the place of location of
the property, instead of Delhi. Hari can successfully contest, claiming Delhi Court have no
jurisdiction to entertain such a suit.
Question 23] X, Y & Z own a house at Delhi, a shop at Mumbai and a farm at
Ganaganagar in Rajasthan. They made a partition of this property by an agreement at
Jaipur. X, being aggrieved by this partition, files a suit for challenging this partition in a
Court at Delhi. Y & Z raised an objection that the suit should have been filed in a Court
at Jaipur. How will the Court decide this issue?
Ans.: As per Section 17 of the Civil Procedure Code, 1908, where immovable property situated
within the local limits of jurisdiction of different Courts, the suit may be instituted in any Court
within the local limits of whose jurisdiction the property is situated wholly or partly.
In the given case, the properties sought to be partitioned are situated partly at Delhi, partly at
Mumbai and Ganaganagar. Thus, a suit relating these properties can be filed in a Court at
Delhi, Mumbai or Ganaganagar. Thus, objection of Y and Z that the suit should have been filed
in a Court at Jaipur cannot be upheld by Court.
Question 24] Anita, residing in Delhi, publishes in Calcutta statements defamatory of

Babita of Mumbai. Babita wants to sue Anita either in Calcutta. Advice Anita & Babita.
Ans.: As per Section 19 of the Civil Procedure Code, 1908, where a suit is for compensation for
wrong done to the person or to movable property, the suit may be instituted at the option of the
plaintiff in either of the following Courts.
- In jurisdiction of Court where the wrong was done;
works for gain.

Keeping in view the above provisions Babita can sue Anita in Court of:
- Calcutta, where wrong was done or
- Delhi, where the defendant Anita resides.
Question 25] A who resides at Delhi entered into a contract with B at Mumbai for supply
of certain goods at Kolkata where B resides and carries on business. At the time of
entering into contract, it was agreed upon between A and B that in case of any dispute
regarding payment or delivery of goods arises, the suit will be filed only in Bangalore
Court. B failed to make payment of goods. A filed a suit at Bangalore for recovery of
money. B alleges that Bangalore Court has no jurisdiction to decide the suit. Is the plea
of B maintainable? CS (Inter) – Dec 2001 (6 Marks)
Ans.: As per Section 19 of the Civil Procedure Code, 1908, where a suit is for compensation for
wrong done to the person or to movable property, the suit may be instituted at the option of the
plaintiff in either of the following Courts.
- In jurisdiction of Court where the wrong was done
works for gain.
Accordingly, the suit filed in the Bangalore Court will be dismissed on account of jurisdiction.
The suit ought to have been filed in Court of:
- Mumbai where the cause of action arisen or
- Kolkata where the defendant resides and carries on business.
Question 26] Ajeet resides at Bhopal, Baljeet at Indore and Charanjeet at Lucknow.
Ajeet, Baljeet and Charanjeet being together at Kolkata, Baljeet and Charanjeet make a
joint promissory note payable on demand and deliver it to Ajeet. Where can Ajeet sue
Baljeet and Charanjeet for the amount of the promissory note?
Ans.: As per Section 20 of the Civil Procedure Code, 1908, subject to provision of Sections 15 to
19:
gain.
of whose jurisdiction any of the defendants, at the time of the commencement of the suit
actually and voluntarily resides, or carries on business, or personally works for gain.
However, in such case the leave of the Court has to be taken or the defendants who do not
reside, or carry on business, or personally work for gain, acquiesce in such institution.
Thus,
(1) Ajeet can file that suit at Indore where one of the defendants, i.e., Baljeet resides. But he
can do so either with the consent express or implied, of the other defendant Charanjeet, or
with the prior permission of the Court.
(2) Ajeet can file the suit a Lucknow where one of the defendants, i.e., Charanjeet resides, but
either with the express or implied consent of Baljeet, or with the prior permission of the
Court.
(3) Ajeet can file a suit at Kolkata, where the cause of action arisen i.e. the place where the
joint promissory note was delivered by Baljeet and Charanjeet to Ajeet.
Question 27] A transport company has its head office at Delhi and branch offices at
Chennai, Jaipur and Mumbai. A dispute cropped up between Sam and the company in
respect of a transaction made through Chennai office. Sam files a suit in respect of this
dispute against the company in a Court at Jaipur. How will the Court decide?

19:
gain.
Accordingly, the suit filed in the Jaipur Court will be dismissed on account of jurisdiction.
- Chennai where the cause of action arisen or
- Delhi where corporation has its principal office.
Question 28] A cause of action arises between two parties Surendra and Mohendra. The
Courts at Meerut and Ghaziabad are competent to try the suit. But both the parties to
the contract agree to vest the jurisdiction in the Court at Meerut. Is such an agreement
valid? CS (Inter) – June 2003 (5 Marks)
19:
gain.
The suit ought to have been filed in Court of Meerut or Ghaziabad as both Court are competent
to try the suit. If more than one court is competent to try the suit, then the parties can decide
by mutual agreement upon one Court. This will normally happen when the cause of action lies
in more than one Court’s jurisdiction. Hence, in this case, the agreement of the parties to vest
the jurisdiction in the Court of Meerut is valid.
Question 29] ABC Ltd. is a pharmaceutical company having its corporate office in
Mumbai. XYZ Ltd., another pharmaceutical company, is carrying on pharmaceutical
business at Nagpur. XYZ Ltd. published an advertisement at Bangalore constituting
infringement of the registered trade mark of ABC Ltd. ABC Ltd. intends to institute a
suit for damages against XYZ Ltd. Advise where ABC Ltd. should institute the suit.
19:

gain.
- Bangalore where the cause of action arises or
- Nagpur where the defendant carries on business resides.
Question 30] Avinash, residing in Delhi, requests his friend Bishnoy, residing in
Lucknow, for a loan of Rs. 10 lakh. Bishnoy asks Avinash to come to Lucknow and
collect the cheque for the said amount. Accordingly, Avinash collects the cheque at
Lucknow. Avinash has failed to repay the loan. Bishnoy wants to institute a suit for the
recovery of loan against Avinash. Mention the place where Bishnoy can file a suit
against Avinash. Give reasons in support of your answer.
Ans.: As per Section 20 of the Civil Procedure Code, 1908, subject to provision of Section 15 to
19:
gain.
- Lunknow where the cause of action arises or
- Delhi where the defendant resides .
Set-off, counter claim & equitable set off
Question 31] What do you know about set off? How it differ from equitable set off?
Differentiate between: 'Set off', 'counter claim' and 'equitable set off' in the context of
the Code of Civil Procedure, 1908. CS (Inter) – Dec 2005 (4 Marks)
Ans.: Set-off [Order 8, Rule 6]: Set-off 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 claim.
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 plaintiff and where both

parties fill the same character, 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.
Illustration:
(1) A sues B on a bill of exchange for `500. B holds a judgment against A for `1,000. The two
claims being both definite, pecuniary demands may be set-off.
(2) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B’s goods
and is liable to him in compensation which he claims to set-off. The amount not being
ascertained cannot be set-off.
(3) A and B sue C for `1,000. C cannot set off a debt due to him by A alone.
(4) A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A.
Counter-claim [Order 8, Rule 6A]: A defendant in a suit may, in addition to his right of pleading a
set-off, set up by way of counter-claim 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.
Equitable set-off: Sometimes, the defendant is permitted to claim set-off in respect of an
unascertained sum of money where the claim arises out of the same transaction.
Generally the suits emerge from cross-demands in the same transaction and this doctrine is
intended to save the defendant from having to take recourse to a separate cross-suit.
Example: There is contract between X and Y for the supply of 1,000 Machines within 2 months.
X supply 700 machines within stipulated time of 2 months. X sues Y for the recovery of price of
700 machines. Y claims compensation for loss sustained due to non supply of 300 cars. The
Court may apply principle of equitable set-off and may allow compensation for the non supply
of 300 cars which is unascertained.
Question 32] Distinguish between: Set-off & Equitable Set-off

Ans.: Following are the main points of distinction between set-off & equitable set-off:
Points Set-off Equitable Set-off
Sum Principal of set-off is applied in case of Principal of equitable set-off is applied in
ascertained some of money. case of un-ascertained some of money.
Claim Claim of set-off need not originate from the Claim of equitable set-off must originate
same transaction. from the same transaction.
Court's Legal set off can be claimed as a right by Equitable set-off cannot be claimed as a
discretion the defendant and the Court is bound to right but by Court's discretion.
adjudicate upon the claim.
Limitation In case of set-off amount claimed should Principal of equitable set-off may be applied
not be time barred. even in case of time barred amounts.
Court fee Court fee must be paid on set-off amount. No court fee is required.
Question 33] Distinguish between: Set-off & Counter-claim

Ans.: Following are the main points of distinction between set-off & counter-claim:
Points Set-off Counter-claim
When Set-off is a reciprocal acquittal of debts A claim made by defendant in a suit
passed between the plaintiff and defendant. against plaintiff is called counter-claim.
Nature Set-off is a statutory defence to a plaintiff’s Counter-claim is substantially a cross
action. action.
Transaction Claim of set-off need not originate from the Counter-claim need not arise out of the
same transaction. However, claim of same transaction.

equitable set-off must originate from the

same transaction.
Claim An equitable set-off is a claim by the A counter-claim by the defendant may,
defendant in defence which generally however, exceed the plaintiffs claim being
cannot exceed the plaintiffs claim. in the nature of a cross-action.
Question 34] Ram and Shyam sell wheat for `10,000 to Sohan and Mohan. Sohan sells
cloth worth `12,000 to Shyam. Sohan files a suit against Shyam for recovery of price of
cloth. Shyam claims set-off of the cost of wheat in this suit. Will he succeed?
Ans.: No. As per Order 8, Rule 6, set-off is possible only when the parties to both claims are the
same. So, Shyam claims for set-off will not be allowed by the Court.
Question 35] Anubhav owes `10,000 to the partnership firm of Bose and Chander. Bose
dies leaving Chander surviving. Anubhav sues Chander for a debt of `15,000 due in his
individual capacity. Can Chander set-off the debt of `10,000?
Ans.: Set-off [Order 8, Rule 6]: Set-off 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.
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 plaintiff and where both
parties fill the same character, the defendant may, at the first hearing of the suit, but not after
words unless permitted by the Court, present a written statement containing the particulars of
the debt sought to be set-off.
In this case, after the death of Bose, only Chander survives in the partnership firm, to which
Anubhav owes `10,000. Anubhav later on sues Chander for an individual debt of `15,000.
Since, the situation fulfills all the demands of a valid set-off, it is permissible.
Institution/procedure relating to suit
Question 36] What are the essentials of suit? What are the contents of suits? In which
court civil suits are filed?
Ans.: Suit ordinarily is a civil action started by presenting a plaint in duplicate to the Court
containing concise statement of the material facts, on which the party pleading relies for his
claim or defence. In every plaint the facts must be proved by an affidavit.
Essentials of the suit:
 Opposing parties
 Cause of action
 Subject matter of the suit, and
 Reliefs claimed
Contents of suits: The plaint consists of a heading and title, the body of plaint and the reliefs
claimed.
Filing of suits: Every suit shall be instituted in the Court of the lowest grade competent to try it,
as to be determined with regard to the subject matter being either immovable or movable
property or to the place of abode or of business or the defendant.
Question 37] Write a short note on: Mis-joinder of parties

Ans.: Where more than one person joined in one suit as plaintiffs or defendants in whom or
against whom any right to relief does not arise or against whom separate suits are brought, it is
a case of ‘misjoinder of parties’. To avoid such misjoinder, two factors are essential viz.
(i) The right to relief must arise out of the same act or transaction brought by the plaintiffs or
against the defendants,
(ii) There is a common question of law or fact. The Code does not require that all the questions
of law or of fact should be common to all the parties. It is sufficient that if there is one
common question.
Misjoinder of causes of action: If the plaintiffs are not jointly interested in all the causes of
action there is misijoinder of causes of action.
All objections regarding misjoinder of parties or of cause of action should be taken at the first
hearing of the suit and before the settlement of causes unless the ground for objections had
subsequently arisen.
Question 38] A suit is dismissed on technical ground of mis-joinder of parties.

Thereafter, the defect is remedied and the suit is filled again. Will it be affected by the
principle of re judicata? CS (Inter) – June 1991 (5 Marks)
Ans.: In the given case, the earlier suit was dismissed on technical ground of misjoinder of
parties, and, thereafter, the defect was remedied and the suit was filed again. The suit will not
be affected by the principle of res judicata as the earlier suit was not decided on merits by the
Court.
Question 39] Write a short note on: Important stages in proceedings of a suit
Ans.: Some of the important stages in proceedings of a suit are follows:

 When the suit has been duly instituted, the Court issues an order known as summons to
the defendant to appear and answer the claim and to file the written statement of his
defence if any within a period of 30 days from the date of service of summons.
 No summons is to be issued when the defendant has appeared at the presentation of plaint
and admitted the plaintiffs claim.
 If the defendant fails to file the written statement within the prescribed period of 30 days,
he is allowed to file the same on such other days as specified by the Court for reasons to be
recorded in writing but not later than 90 days from the date of service of summons.
 The defendant may appear in person or by a duly instructed pleader or by a pleader
accompanied by some person to be able to answer all material questions relating to the suit.
 Every summons must be signed by the judge or an authorized officer of the Court and
sealed with the seal of the Court and be accompanied by a copy of the plaint.
 If the requirement of personal appearance of the defendant or plaintiff is felt by the Court,
then it has to make an order for such appearance. The summons must contain a direction
that it is for the settlement of issues only or for the final disposal of the suit.
 Every summons must be accompanied by a copy of the plaint.
 Where no date is fixed for the appearance of the defendant, the Court has no power to
dismiss the suit in default.
 The summons must also state that the defendant is to produce all documents in his
possession or power upon which he intends to rely in support of his case.
 The ordinary mode of service of summons i.e. direct service is by delivery or tendering a
copy of it signed by the judge or competent officer of the Court to the person summoned
either personally or to his agent or any adult male or female member of his family, against
signature obtained in acknowledgement of the services.
Question 40] As a Company Secretary prepare a note for Managing Director of company
explaining provisions relating to delivery of summons as contained in the Civil
Procedure Code, 1908.

Ans.: Delivery of summons by Court [Order 5, Rule 9]:

(1) Where the defendant resides within the jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that jurisdiction who is empowered to accept
the service of the summons, the summons shall, unless the Court otherwise directs, be
delivered or sent either to the proper officer, who may be an officer of a Court other than
that in which the suit is instituted, to be served by him or one of his subordinates or to
such courier services as are approved by the Court.
(2) The services of summons may be made by delivering or transmitting a copy thereof by
registered post acknowledgement due, addressed to the defendant or his agent empowered
to accept the service or by speed post or by such courier services as are approved by the
High Court or by the Court referred to in sub-rule (1) or by any other means to
transmission of documents (including fax message or electronic mail service) provided by
the rules made by the High Court. However, the service of summons shall be made at the
expenses of the plaintiff.
(3) Where the defendant resides outside the jurisdiction of the Court in which the suit is
instituted, and the Court directs that the service of summons on that defendant may be
made by such mode of service of summons as is referred to in sub-rule (3) (except by
registered post acknowledgement due), the provisions of rule 21 shall not apply.
(4) When an acknowledgement or any other receipt purporting to be signed by the defendant
or his agent is received by the Court or postal article containing the summons is received
back by the Court with an endorsement purporting to have been made by a postal
employee or by any person authorized by the courier service to the effect that the
defendant or his agent had refused to take delivery of the postal article containing the
summons or had refused to accept the summons by any other means specified in sub-rule
(3) when tendered or transmitted to him, the Court issuing the summons shall declare that
the summons had been duly served on the defendant. However, where the summons was
properly addressed, pre-paid and duly sent by registered post acknowledgement due, the
declaration shall be made notwithstanding the fact that the acknowledgement having been
lost or mislaid, or for any other reason, has not been received by the Court within thirty
days from the date of issue of summons.
(5) Where the Court is satisfied that there is reason to believe that the person summoned is
keeping out of the way for the purpose of avoiding service or that for any other reason the
summons cannot be served in the ordinary way the Court shall order the service of the
summons to be served by affixing a copy thereof in some conspicuous place in the Court
house and also upon some conspicuous part of the house in which the person summoned
is known to have last resided or carried on business or personally worked for gain, or in
such other manner as the Court thinks fit.
Substituted Service [Order 5, Rule 20]: Where defendant resides in another province, a summons
may be sent for service in another state to such court and in such manner as may be
prescribed by rules in force in that State.
The above provisions shall apply also to summons to witnesses.
In the case of a defendant who is a public officer, servant of railways or local authority, the
Court may, if more convenient, send the summons to the head of the office in which he is
employed.
Service on Corporation [Order 29, Rule 2]: In the case of a suit being instituted against a
corporation, the summons may be served –
(a) on the secretary or on any director, or other principal officer of the corporation or
(b) by leaving it or sending it by post addressed to the corporation at the registered office or if
there is no registered office, then at the place where the corporation carries on business.
Service on Partnership Firm [Order 30, Rule 3]: Where persons are to be sued as partners in the
name of their firm, the summons shall be served either –
(a) upon one or more of the partners or
(b) at the principal place at which the partnership business is carried on within India or upon
any person having the control or management of the partnership business.

Where a partnership has been dissolved the summons shall be served upon every person whom
it is sought to make liable.
Question 41] State the provisions relating to ‘defence’ as contained in Civil Procedure
Code, 1908.
Ans.: Defence: The defendant has to file a written statement of his defence within a period of
thirty days from the date of service of summons. If he fails to file the written statement within
the stipulated time period he is allowed to file the same on such other day as may be specified
by the Court for reasons to be recorded in writing. The time period for filing the written
statement should not exceed 90 days.
Where the defendant bases his defence upon a document or relies upon any document in his
possession in support of his defence or claim for set-off or counter claim, he has to enter such
document in a list and produce it in Court while presenting his written statement and deliver
the document and a copy thereof to be filed within the written statement.
Any document which ought to be produced in the Court but is not so produced, such document
shall not be received in evidence at the time of hearing of the suit without the leave of the
Court.
However, this rule does not apply to documents produced for the cross-examination of the
plaintiff witnesses or handover to a witness merely to refresh his memory.
Besides, particulars of set-off must be given in the written statement. A plea of set-off is set up
when the defendant pleads liability of the plaintiff to pay to him, in defence in a suit by the
plaintiff for recovery of money. Any right of counter claim must be stated. In the written
statement new facts must be specifically pleaded. The defendant must deal specifically with
each allegation of fact of which he does not admit the truth. An evasive denial is not
permissible and all allegations of facts not denied specifically or by necessary implication shall
be taken to be admitted.
Question 42] What are the consequences of non-appearance of parties on the date of
hearing? CS (Inter) – Dec 1995 (6 Marks)
Ans.: Order 9, Rule 3, provides that, where neither party appears before the court, when the suit
it called on for hearing, the court may order that the suit be dismissed.
(1) Where the plaintiff appears and the defendant does not appear before the Court, in spite of
due service of summons: In such case, the Court may proceed against the defendant ex
parte. Where the summons is not duly served, the Court may order a second summons to
be issued and served on defendant. Where sufficient time is not given to the defendant to
appear, the Court shall postpone the hearing for a future date.
Setting aside an ex parte decree: Defendant may file an application for setting aside the
decree passed ex parte. For this he has to file an application for setting decree with
relevant Court. He shall have to prove that either the summons was not served properly or
he has sufficient cause for not being present on the date of hearing. Upon being satisfied
by his explanation, the Court shall set aside the decree and continue with the proceedings.
(2) Where the defendant appears and the plaintiff does not appear: In such case, the Court shall
make an order that the suit it dismissed on account of default of the plaintiff unless the
defendant admits the claim of the plaintiff or part thereof in which case, the Court shall
pass a decree in favour of the plaintiff in accordance with the admission of the defendant
and shall dismiss the suit to the extent of a remainder.
(3) Where one or more of several plaintiffs do not appear: At the instance of plaintiff or plaintiffs,
the Court may permit the suit to proceed in the same way as if all the plaintiffs were
present, or make such order as it thinks fit. Where one or more of several defendants do
not appear, the Court shall proceed with the suit, and at the time of pronouncing
judgment, make such order as it thinks fit with respect to the defendants who do not
appear.

Question 43] State the remedies available to defendant if an ex-parte decree is passed
against him.
Define 'exparte decree' and also mention the time limit and grounds for making an
application to set aside an ex parte decree. CS (Inter) – June 2004 (8 Marks)
Ans.: Where the plaintiff appears and the defendant does not appear before the Court, in spite
of due service of summons, then the Court may proceed against the defendant ex parte.
An 'Ex parte decree' is a decree passed against a defendant in absentia. Despite service of
summons, where on the date of hearing only plaintiff does and a defendant does not appear the
Court may hear the suit ex parte and pass a decree against the defendant.
A defendant has four remedies available if an ex-parte decree is passed against him:
(i) He may file an appeal against the ex-parte decree.
(ii) He may file an application for review of the judgment.
(iii) He may apply for setting aside the ex-parte decree.
(iv) 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.
Question 44] What do you understand by the term ‘Affidavit’? State the circumstance in
which affidavit can be used under the provisions of the Civil Procedure Code, 1908.
Ans.: Affidavit: An affidavit is a written statement of the deponent on oath duly affirmed before
any Court or Magistrate or any Oath Commissioner appointed by the Court or before the Notary
Public. An affidavit can be used in the following cases:
(i) The Court may at any time of its own motion or on application of any party order that any
fact may be proved by affidavits. [Section 30]
(ii) Where it appears to the Court that either party bona fide desires the production of a
witness for cross-examination, and that such witness can be produced, an order shall not
be made authorizing the evidence of such witness to be given by affidavit. [Order 19, Rule
1]
(iii) Upon application by a party, evidence of a witness may be given on affidavit, but the court
may at the instance of either party, order the deponent to attend the court for cross-
examination unless he is exempted from personal appearance. Affidavits are confined to
such facts as the deponent is able of his own knowledge to prove except on interlocutory
applications. [Order 19, Rules 2 & 3]
Question 45] Examining the provisions of the Code of Civil Procedure Code 1908, answer
the following:
(i) What the term ‘judgment’ mean?
(ii) When Court pronounce the judgment?
(iii) Whether the judgment passed after two and a half years after conclusion of
arguments be treated as valid judgment?
Ans.: Judgment [Section 2(9)]: Judgment means the statement given by the judge on the
grounds of a decree or order.
Thus, a judgment is the decision of a Court of justice upon the respective rights and claims of
the parties to an action in a suit submitted to it for determination.
Pronouncement of judgement: The Court after the case has been heard shall pronounce
judgment in an open Court either at once or on some future day as may be fixed by the Court
for that purpose of which due notice shall be given to the parties or their pleaders. The proper
object of a judgement is to support by the most cogent reasons that suggest themselves final
conclusion at which the judge has conscientiously arrived.
If the judgment is not pronounced at once every endeavour shall be made by the Court to
pronounce the judgement within a period of 30 days from the date on which the hearing of the
case was concluded.

However, if it is not practicable to do so on the ground of exceptional and extraordinary

circumstances of the case, the Court must fix a future day which should not be a day beyond
60 days for the pronouncement of the judgement giving due notice of the day so fixed to the
concerned parties. In Kanhaiyalal v. Anup Kumar, AIR 2003 SC 689, where the High Court
pronounced the judgment after 2 years and 6 months, the judgment was set aside by the
Supreme Court observing that it would not be proper for a Court to sit tied over the matter for
such a long period.
Following the decision of the Supreme Court in the above mentioned case, the Gujarat High
Court in Ramkishan Guru Mandir v. Ramavtar Bansraj, AIR 2006 Guj. 34, set aside the
judgment which was passed after two and a half years after conclusion of arguments holding
that where a judgment was delivered after 2 years or more, public at large would have reasons
to say bad about the Court and the judges.
The judgment must be dated and signed by the judge. Once the judgement is signed it cannot
afterwords be altered or added to except as provided u/s 152 or on review.
It is a substantial objection to a judgment that it does not dispose of the question as it was
presented by the parties. [Reghunatha v. Sri Brozo Kishoro, (1876) 3 I.A., 154]
If a judgment in unintelligible, the appellate Court may set it aside and remand the case to the
lower court for the recording of judgement according to law after hearing afresh the arguments
of the pleaders. [Harbhagwan v. Ahmad, AIR 1922 Lah. 122]
Appeal, Reference, Review & Revision
Question 46] Discuss the provisions relating to appeal as per Civil Procedure Code, 1908.
Ans.: Right of appeal is not a natural or inherent right attached to litigation. Such a right is
given by the statute or by rules having the force of statute. There are four kinds of appeals
provided under the Civil Procedure Code, 1908:
(1) Appeals from original decrees
(2) Second appeals
(3) Appeals from orders
(4) Appeals to the Supreme Court.
Following are important points relating to appeal:
 Appeals from original decrees may be preferred in the superior Court.
 An appeal may lie from an original decree passed ex-parte.
 Where the decree has been passed with the consent of parties, no appeal lies.
 The appeal from original decree lies on a question of law.
 No appeal lies in any suit of the nature cognizable by Courts of small causes when the
amount or value of the subject matter of the original suit does not exceed `10,000.
Second Appeal [Section 100]: An appeal lies to the High Court from every decree passed in
appeal by any subordinate Court if the High Court is satisfied that the case involves a
substantial question of law.
The memorandum of appeal must precisely state the substantial question of law involved in the
appeal. If the High Court is satisfied that a substantial question of law is involved, such
question shall be formulated by it and the appeal is to be heard on the question so formulated.
The respondent is allowed to argue that the case does not involve such question. The High
Court is empowered to hear the appeal on any other substantial question of law not formulated
by it if it is satisfied that the case involves such question.
Question 47] Write a short note on: Appeals to the Supreme Court
Ans.: When appeals lie to the Supreme Court [Section 109]: Appeals to the Supreme Court would
lie in the following cases.
(1) Any decree of Civil Court when the case is certified by the Court deciding it to be fit for
appeal to the Supreme Court.

(2) When special leave is granted u/s 112 by the Supreme Court itself.
(3) Any judgment, decree or final order passed on appeal by a High Court or by any other
Court of final appellate jurisdiction,
(4) Any judgment, decree or final orders passed by a High Court in exercise of original civil
jurisdiction
Question 48] Parties to an appeal shall not be entitled to produce additional evidence.
Comment. Are there any exceptions to this rule?
Ans.: The general rule is that the parties to an appeal shall not be entitled to produce additional
evidence whether order or documentary. But the Appellate Court has discretion to allow
additional evidence in the following circumstances:
(i) When the lower Court has refused to admit evidence.
(ii) The appellate court requires any document to be produced or any witness to be examined
to enable it to pronounce judgment.
(iii) For any other substantial cause.
But, in all such cases the Appellate Court shall record its reasons for admission of additional
evidence.
Question 49] Discuss briefly the provision relating to reference, review and revision.
Under what circumstances a review of judgment of a court is permissible? How is a
review different from ‘revision’ and ‘appeal’. CS (Inter) – June 2001 (9 Marks)
Differentiate between: 'Reference', 'review' and 'revision' in the context of the Code of
Civil Procedure, 1908. CS (Inter) – Dec 2005 (4 Marks)
Distinguish between: Appeal, revision & review. CS (Executive) – Dec 2008 (4 Marks)
‘Review’ and ‘revision’ in civil law. CS (Executive) – Dec 2009 (4 Marks)
Ans.: Reference to High Court [Section 113]: At any time before judgment, a Court in which a
suit has been instituted may state a case and refer the same for opinion of the High Court and
the High Court may make such order thereon as it thinks fit.
Review [Section 114]: Any person considering himself aggrieved by a decree or order may apply
for a review of judgment to the Court which passed the decree or order on any of the grounds
as mentioned in Order 47, Rule 1, namely:
- 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.
- On account of some mistake or error apparent on the face of the record, or
- For any other sufficient reason.
Revision [Section 115]: 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 and if such
subordinate Court appears
(a) to have exercise 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.
Question 50] Distinguish between: Review & Revision in civil law

Ans.: Following are the main points of distinction between review & revision:
Points Review Revision
Meaning Any person considering himself aggrieved by The High Court may call for the record of any

a decree or order may apply for a review of case which has been decided by any Court
judgment to the Court which passed the subordinate to such High Court and in which
decree or order on any of the grounds as no appeal lies and in certain cases and may
mentioned in Order 47 Rule 1. make such order as it thinks fit which is
revision.
Court Any Court, which passed the decree or made The High Court can only do revision of any
order, can review the case. case which has been decided by any court
subordinate to it.
By whom The review can be made only on an Revision power can be exercised by the High
application by an aggrieved party. Court on an application or even suo moto.
Appeal Review can be made even when an appeal Revision power can be exercised by the High
lies to the High Court. Court only in a case where no appeal lies to
the High Court.
Grounds The grounds for review are: The conditions for revisions are:
(a) Discovery of new and important matter (a) A case must have been decided;
or evidence; (b) The Court which has decided the case
(b) Mistake or error apparent on the face of must be a Court subordinate to the High
the record; Court;
(c) Any other sufficient reason. (c) The order should not be an appealable
one;
(d) The subordinate court must have - (i)
exercised jurisdiction not 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.
Suits by or against – corporations, minors
Question 51] Write a short note on: Suits by or against corporations
Ans.: Signature or verification of pleading [Order 29, Rule 1]: In suits by or against a corporation,
any pleading may be signed and verified on behalf of the corporation, by the secretary or by any
director or other principal officer of the corporation who is able to depose to the facts of the
case.
Service of summons [Order 29, Rule 2]: Subject to any provision regulating service of process,
where the suit is against a corporation, the summons may be served.
(a) On the secretary or any director or other principal officer of the corporation or
(b) By leaving it or sending it by post addressed to the corporation at the registered office or if
there is no registered office then at the place where the corporation carries on business.
Power of the Court to require personal attendance [Order 29, Rule 3]: The Court may at any stage
of the suit, require the personal appearance of the secretary or any director, or other principal
officer of the corporation who may be able to answer material questions relating to the suit.
Question 52] Discuss the law relating to suits by or against minors.

Ans.: A minor is a person:

(i) who has not completed the age of 18 years and
(ii) for whose person or property a guardian has been appointed by a Court, for whose
property is under a Court of Wards, the age of majority is completed at the age of 21 years.
Important points relating to suits by or against minor:
- 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.
- Interest of next friend is not adverse to that of the minor.
- 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.
- 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.
- 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.
- 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 e suit including proceedings in any appellate or revisional court and any
proceedings in the execution of a decree.
When minor attain 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 applies for an order to dismiss the suit on repayment of the costs
incurred by the defendant or opposite party etc.
Summary Procedure
Question 53] To which classes of suits summary procedure applies? When can defendant
apply leave to defend? On which grounds may the Court grant or reject an application
for leave to defend? What is the period for filing a summary suits?
Ans.: 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 provision of Order 37.
Order 37 provides for a summary procedure to respect of certain suits. The object is to prevent
unreasonable obstruction by a defendant.
The rules for summary procedure are applicable to the following Courts.
(1) High Courts, City Civil Courts and Small Courts;
(2) The High Courts may restrict the operation of Order 37 by issuing a notification in the
Official Gazette.
The debt or liquidated demand in money payable by the defendant should arise on a written
contract or on an enactment or on a guarantee.
Institution of summary suits: Such suit may be instituted by presenting a plaint containing the
following essentials:
 A specific averment to the effect that the suit is filed under this order.
 That no relief which does not fall within the ambit of this rule has been claimed.
 The inscription immediately below the number of the suit in the title of the suit that the suit
is being established under Order 37 of the CPC.
Leave to defend: Order 37 Rule 3 prescribes 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) 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 deposited by him in the Court.

The summary suit must be brought within one year from the date on which the debt becomes
due and payable, whereas the period of limitation for suits for ordinary cases under negotiable
instrument is three years.
Question 54] A Ltd. filled a summary suit against B Ltd. The summons was served on the
defendants on 10th February, 2018 when the Company Secretary of the defendant
company was on medical leave. He appeared on behalf of the defendant on 17th March,
2018, two days after he resumed his duty. State the consequences.
Ans.: As per Order 37, Rule 3 the defendant may at any time within 10 days of the service of the
summons enter an appearance either in person or by a pleader. According to Order 37, Rule
2(3) the defendant shall not defend the suit unless he enters an appearance and in default of
his entering an appearance the allegations in the plaint shall be deemed to be admitted and the
plaintiff shall be entitled to a decree.
In the given case the summons were served on the defendants on 10th February, 2018, when
the company secretary of the defendant’s company was on medical leave and he appeared on
behalf of defendant on 17th March 2018, well beyond the aforesaid limit.
However, if the defendant company shows sufficient cause, the Court may excuse the delay of
the defendant in entering an appearance.
Question 55] A & Co. files a suit under Order XXXVII of the Code of Civil Procedure,
1908 for the recovery of `50,000 which were given by it as loan to its employee B
against the promissory note executed by B in the Court of the district judge. B received
the summons for judgment in the suit under Order XXXVII of the Code Civil Procedure,
1908. B files a written statement only after 20 days of the receipt of the summons in
the said suit. The Court of district judge ignores the written statement of B and outright
passes judgment and decree for recovery of `50,000 with costs against B.
Ans.: In a suit under Order 37, the defendant cannot defend the suit unless he enters his
appearance in the said suit within a period of 10 days from the date of service of summons on
him and obtains leave to defend from the court of District Judge. In the absence thereof the
allegations in the plaintiff shall be deemed to be admitted and A & Co. shall be entitled to a
decree. In view of this, the judgment against B is justified.
Objective Questions
(1) Generally orders passed by the court under the Code of Civil Procedure, 1908 are not
appealable but there are certain exceptions to it.
(2) Decree is a formal expression of adjudication, whereas an order is the decision of the
Court.
(3) On the same cause of action, a fresh suit is barred by law.
(4) The procedure provided under any special or local law is not affected by the procedure
given under the Code of Civil Procedure, 1908.
(5) Where a suit is pending in the jurisdictional civil court, a fresh suit cannot be proceeded
with on the same cause of action between the same parties in another court in India.
(6) Questions arising between the parties and the representatives relating to execution,
satisfaction and discharge of the decree will be decided by the executing Court.
Ans.:
(1) Correct. According to Section 104, no appeal lies against orders other than what is
expressly provided in the Code or any other law for the time being in force. Under the Code
appealable orders are – u/s 35A, 91, 92 & 95.

(2) Correct. Decree means the formal expression of an adjudication which, so far as regards
the Court expressing it, conclusively determines the rights of the parties with regard to all
or any of the matters in controversy in the suit and may be either preliminary or final.
Order means the formal expression of any decision of a Civil Court which is not a decree.
(3) Correct. Res judicata [Section 11]: No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and substantially in issue in a former
suit between the same parties, in a Court competent to try such subsequent suit or the
suit in which such issue has been subsequently raised, and has been heard and finally
decided by such Court.
(4) Correct. The procedure provided under any special or local law is not affected by the
procedure given under the Code of Civil Procedure, 1908 as provided in Section 4.
(5) Correct. Where a suit is pending in the jurisdictional Civil Court, a fresh suit cannot be
proceeded with on the same cause of action between the same parties in another court in
India as provided in Section 10 of the Code of Civil Procedure, 1908.
(6) Correct. Questions arising between the parties and the representatives relating to
execution, satisfaction and discharge of the decree will be decided by the executing Court
as per Section 47 of the Code of Civil Procedure, 1908.
word(s)/figures(s):
(1) Section 6 of the Code of Civil Procedure, 1908 deals with _________
(2) Where the local limits of jurisdiction of Courts are uncertain, the place of institution of suit
shall be decided according to the provision of Section _________
(3) _________ means every fact that it would be necessary for the plaintiff to prove in order to
support his right to the judgment of the Court.
(4) _________ means the statement given by the judge on the grounds of a decree or order.
(5) The provision of Section 10 of the Code of Civil Procedure, 1908 popularly known as
principal of _________
(6) Every suit shall be instituted in the Court of the _________ to try it.
(7) _________ means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with regard to all or
any of the matters in controversy in the suit and may be either preliminary or final
(8) _________ means the formal expression of any decision of a Civil Court which is not a
decree.
(9) _________ 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.
(10) Where the plaintiff appears and the defendant does not appear before the Court, in spite of
due service of summons; in such case, the Court may proceed against the defendant
_________
(11) Temporary injunction is granted under order _________ of the Code of Civil Procedure,
1908.
(12) _________ means any person against whom a decree has been passed or an order capable
of execution has been made.
(13) A fresh suit is barred for the same cause of action under sections _________ of the Code of
Civil Procedure, 1908.
(14) The application of revision under the provisions of the Code of Civil Procedure, 1908 is
made to _________
(15) The doctrine which underlines the general principal that no one shall be vexed twice for
the same cause of action is known as _________
(16) The reference may be made by sub-ordinate Court to the _________ under the provisions of
the Code of Civil Procedure, 1908.
(17) Any person in whose favour a decree has been passed is known as _________
Ans.:

(1) Pecuniary jurisdiction of courts (2) Section 18 (3) Cause of action (4) Judgment (5) res sub-
judice (6) lowest grade (7) Decree (8) Order (9) Set-off (10) ex parte. (11) XXXIX (12) Judgment
debtor (13) Section 11 (14) High Court (15) Res juicata (16) High Court (17) Decree holder.
* * * * * * * * * * *

Indian Penal Code 1860

1. Objective of the act
2. Distinction between criminal wrong and civil wrong
3. Jurisdiction of Indian Penal Code 1860
a. Scope
b. Extension of code to extra territorial offences
c. Exemption from Intra territorial Jurisdiction
4. Elements and Stages of crime
a. Fundamental elements of crime
b. Criminal liability of corporate bodies
c. Four broad categories of crime
5. Criminal conspiracy 120A, 120B
a. Definition 120A
b. Punishment 120B
6. Criminal Misappropriation of property
a. Dishonest misappropriation of property (Section 403)
b. Dishonest misappropriation of property possessed by deceased person. (Section 404)
7. Criminal breach of trust – Section 405 – Section 409
8. Cheating – Section 415 to Section 420
9. Fraudulent deeds and disposition of property (421) – (424)
10. Forgery (463)
11. Defamation (499 – 500) & 501 & 502
a. Libel and Slander
b. Exceptions to Defamation (10 exception)
c. Punishment for defamation
12. General exception – Section 76 to Section 106. But applicable Section 76 – 95
Criminal wrong Civil wrong
1. Criminal wrong is against individual in 1. Civil wrong is against private

a society. individual.
2. It is more serious in nature. 2. It is less serious in nature.
3. Mens rea is relevant 3. Mens rea is not relevant
4. Compensation is not possible. 4. Compensation is possible.
5. Wrong doers are punished.The accused 5. Wrong doers pay compensation or
has to pay fine or jail or both. damage to injured party.
ONLY FACULTY IN PUNE WHO SPECIALISES IN TEACHING 9 LAW SUBJECTS AT ALL LEVELS OF CA,CS ,CMA & COURSES
Q 1. Explain the applicability IPC and its exemptions?
Ans.: The Indian Penal Code 1860 is applicable to whole of India except the State of Jammu and
Kashmir.
Section 2: Intra territory Jurisdiction: Punishment of offences committed within India. Every
person shall be liable to punishment under this code for every actor omission contrary to
provisions thereof, of which he shall be suits within India.
Section 3 Extra territorial jurisdiction: Any person liable, by any Indian Law tob e tried for
an offence committed beyond India shall be dealt with according to the provision of the code for
any act committed beyond India in same manner as if such act has been committed within India.
Section 4 Extension of code to extra territorial water offences: The provision of code apply
also to any offence committed by:
a. Any citizen of India in any place without and beyond India.
b. Any person on any ship or aircraft registered in India wherever it may be.
Section 5 Exemption: Noting in the Indian Penal Code 1860 shall affect the provisions of any
Act for punishing mutiny (revolts) and desertion (abandon) of officer, soldiers, sailors or airmen
in the service of Government of India or the provisions of any special or local law.
Q 2. State fundamental elements of crime?

Ans.: There are four fundamental elements of crime:
1. Human Being
a. The first element requires that the wrongful act must be committed by a human being.
b. In ancient times, when criminal law was largely dominated by idea of retribution.
c. Punishment was given to animals for every injury caused by them.
d. But now if any injury is caused by animal the owner of animal is liable for such injury.
2. Mens Rea
a. Mens rea is also known as ‘evil intent’ or ‘guilty mind’.
b. There can be no crime without mens rea or guilty mind. The three important form of mens
rea are intention, negligence and recklessness.
3. Actus Reus
a. The third essential element of crime is actus reus.
b. In other words, some over (open) act or illegal omission must take place in pursuance of
guilty intention.
c. Actual reus is the manifestation of mens rea in external world.
d. Prof. Kenny was first writer to use term (actus reus).
e. He has defined the term thus – “such result of human conduct as law seeks to prevent.”
4. Injury
a. Injury shall be to another person or to the society at large.
b. The injury should be illegally caused toany person in body, mind, reputation or property.
Q 3. Mens rea is one of most important element of crime state exemption to principle?
Ans.:
1. Mens reas is also known as evil intent or guilty mind.
2. There can be no crime without Mens Rea.
There are three important forms of Mens Rea
a. Intention
Criminal mind does not means only specific intention. It also includes general intention.
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e.g. A 𝑃𝑜𝑖𝑠𝑜𝑛
B , c eats the food & dies
b. Negligence
Negligence is not taking care where it is duty to take care. E.g. If a child is injured due to
negligence of caretaker. Caretaker shall be held guilty.
c. Recklessness (carelessness)
Means to commit certain action despite of knowing its risk. E.g. Person driving car after
drink. Though he not caused injury he shall be held liable as guilty because he was taking
risk of harming someone.
Exemption: There are certain exception where mens rea is not required in criminal law.
1) Statute exclude mens rea
a. Where a statute imposes liability the presence or absence of a guilty mind is irrelevant.
b. Many laws passed in the interest of public safety and social welfare imposes absolute liability.
2) Speedy disposal of case
a. In such case where penalties are petty fine mens rea need not to be proved.
b. In such petty cases, speedy disposal of cases is necessary and proving of mens reas is not
easy.
c. An accused may be fined even without mens – rea.
3) Strict liability
In interest of public safety, strict liability is imposed and whether a public nuisance is caused
with or without any guilty the accused is punished.
4) Ignorance of law
a. If a person does any act against the law due to ignorance of law. The act done by the person
is still prohibited because ignorance of law is not an excuse.
b. Thought person don’t have mens rea he shall be held liable.
Q 4. A company register under Companies Act, 2013 being a body corporate cannot be prosecuted
for criminal offence?
Ans.:
1. Criminal liability pre supposes the existence of mens rea and actus reus (guilty act) – the two
are essential element of an offence under the IPC.
2. According to section 11 of the IPC, the word ‘person’ includes any company or association or
body of persons, whether incorporated or not.
3. Thus, companies are covered under the provisions of IPC.
4. Corporation is virtually in the same position as any individual and may be convicted of common
law as well as a statutory offences including those requiring mens rea.
5. The criminal liability of a corporation would arise when an offence is committed in relation to
the business of the corporation by a person or body of person in control of its affairs.
Q 5. Discuss the four stages of crime.
Ans.: 1st stage Intention
1. Mere intention to commit an offence not followed by any act, cannot constitute an offence.
2. For example, intention to kill anyone is not a crime in itself.
3. However, it is an essential ingredient of crime because without intention to cause harm, there
can be no crime.
4. In some case intention may be crime.
Waging a war against Government is punishable.
5. Mere assemble of persons to commit dacoit is punishable.
2nd stage: Preparation
1. It means to arrange the necessary measures to commit the intended act.
2. Intention alone or intention followed by a preparation, is not enough to constitute an offence.
3. Example: If Arun purchases a pistol and keeps the same in his pocket duly loaded to kill his
bitter enemy bally, but does nothing more. Arun has not committed any offence as still he is at
the stage of preparation and it will be impossible for the prosecution to prove than Arun was
carrying a loaded pistol for purpose of killing ballo.
3rdstage of attempt
1. Attempt is punishable.
2. Attempt is direct movement towards the commission of crime after preparation has been made.
3. There are three essential element to commence an attempt
a. Guilty intention to commit of offence.
b. Some act done towards commission of offence.
c. The act must fall short to commit an offence.
4th stage Accomplishment
1. If the accused succeeds in his attempts to commit the crime, he will be guilty of the complete
offence and if his attempt is unsuccessful he will be guilty for attempt only.
2. For e.g. A fires at B with intention to kill him, of murder and if B is only injured, it will be case
of attempt to murder.
Criminal Conspiracy
(Section 120A)
Two or more person Illegal act or legal act in illegal way Doing the act
Or
Causing it to be
Agreement between the Either expressed

persons Or
Implied or both
Q 6. Define Criminal Conspiracy as per the Indian Penal Code, 1860. Also state the essential
ingredients of the offence of criminal conspiracy as laid down by Supreme Court of India.
Ans.: The ingredients of the offence of criminal conspiracy as laid down by the supreme court are:
(Section 120A)
1. An agreement between two or more parties.
2. An illegal act or a legal act done in an illegal way.
3. The agreement must relate to doing or causing to be done either.
4. The agreement may be express or implied, on in part express and in part implied.
Note 1: Where the accused had never contracted the deceased terrorist on place but had helped
one of the conspirators to flee (run away from a place or situation of danger) to a safer place after
incident was not held guilty as conspirator.
Punishment of Criminal conspiracy (Section 120B)
1. Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
imprisonment of life or rigorous imprisonment for a term of 2 years or upwards, shall, where no
express provision is made for the punishment of such a conspiracy, be punished in the same
manner as if he had a betted such offence.
2. Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description for a
term not exceeding 6 months or fine or both.
Note 2: Neeraj & Ramesh decides to murder Sudhir when he gets down at railway station. And
to commit the act they going to railway station for this purpose but Sudhir does not arrive their
by the evening train in such case both Neeraj and Ramesh are liable for offence as they have
attempts to murder and cause to be done in one of essential ingredient of criminal conspiracy.
Note 3: When 2 accused make a preparation to commit an offence but only one of them attempt
to commit an offence the person who has made an attempt shall be liable for offence and other
person who was involved in mere preparation is not held liable.
Criminal misappropriation of property

Dishonest misappropriation of property : (Section 403)
1. The essential element of Dishonest Misappropriation of property are:
a. Movable property and
b. Dishonestly misappropriation or
c. Conversion of property for own use
2. Punishment – imprisonment upto 2 years or fine or both.
3. It will be dishonest misappropriation even if the misappropriation was for a certain time only.
4. A finder of goods who takes the goods in his possession for the purpose of protecting it or restoring
it to the true owner is not guilty of these offence. However, if the finder puts the goods for his own
use when he knows or has the means of discovering the true owner or if he has used the goods
before making a reasonable search to discover the true owner.
Note 1: If the accused under section 403 is not able to produce any receipt for the purchase of
movable property, movable property seized, he can’t be said to be guilty of such offence.
Note 2: Money paid by a principle to contractor is not money belonging to subcontractor. Hence
if the contractor on receiving the payment doesn’t pay to the sub contractor it is a civil case and
not a criminal complaint.
Dishonest misappropriation of property possessed by deceased person at time of his death
If the person is not legally However if such person was an

entitle to such possession employee / agent of deceased person
Imprisonment upto 3 years Imprisonment may extent

& Fine upto 7 years
(Section 404)
Criminal Breach of Trust (Section 405, 406)

For criminal breach of trust following essentials must be fulfilled:
1. The person accused must be in position of trustee (fiduciary relationship)
2. The accused must exercise dominance over the property both movable / immovable.
3. The accused must dishonestly for his own use or to some unauthorized dues.
Once proved the accused shall be punished with imprisonment upto 3 years or fine or both.
A carrier, wharfinger or warehouse keeper who is entrusted with the property if commits criminal
Breach of Trust in respect of such property. (Section 407)
OR
Then a club or servant commits criminal breach of trust of property of his employer. (Section 408)
Imprisonment upto 7 years and fine
Criminal breach of trust by banker, merchant or agent public service of property or exercises
dominance over the property.
Life imprisonment or imprisonment upto 10 years and fine.
Cheating
Section 415 Section 416 Section 418 Section 420
Deceiving any person by When a person (cheats Cheating with Cheating and
any act or omission someone by pretending knowledge that dishonesty
which causes or is likely to be some other person wrongfully loss inducing delivery of
to cause damage or harm or knowingly may be suffered to property shall be
to that person in or substituting / person to the person whose punished with
property is said to another) it is cheating by interest the imprisonment upto
cheating of such person personation offender is bound 7 years and fine
to protect
Section 417 Punishment u/s 416 Punishment

Punishment for cheating – 419 upto 3 years of Directly harm
– imprisonment upto 1 Imprisonment upto fine or both to property
year or fine or both 3 years or fine or
both
Note 1: Cheating Punishable U/s 417 is simple cheating whereas under section 420 it is cheating
when there is delving or destruction of any property or alteration or destruction of any valuable
security regulating from the act of the person deceiving.
Note 2: The Supreme Court has held that non disclosure of a relevant information amounting to
misrepresentation of facts will be treated deception.
Note 3: When the accused intentionally retain excise duty which the state has power under law to
recover from another person. He is guilty of cheating.
Note 4: Negligence in duty without any dishonest intention does not amount to cheating.
Note 5: Money circulation scheme which was mathematically impossible and proporters knew it, it
is presumed that offence under section 420 is committed.
Note 6: When the execution of false sell deeds where made but the accused had a bonafide belief that
property belong to him and purchaser also believed the same, it was held that accused was not guilty
of cheated.
Note 7: To make a person liable for cheating under section 420 the dishonest intention must be
shown right at the beginning i.e. at the time of entering into agreement. If the representation /
statement made by the accused was subsequent i.e. after entering into contract, the complainant has
right only for damages for breach of contract.
Fraudulent Deeds and Disposition of property
Frauds connected with insolvency Frauds conveyances and Transfers
Section 421 Section 423
Whoever removes, conceals, delivers and Whoever conceals or removes any property
property without. or assist in concealing or removing any
Adequate consideration property which contains false consideration.
To Prevent the distribution of that property For the transfer or charge and the property is
amongst his creditor or the creditors of any an immovable property
other person is said to have acted
dishonestly and fraudulently.
Section 423 is superseded by the prohibition of Benami

Properties Transactions Act, 1988
Section 422: Punishment for offense
u/s 422
Punishment under section 423 same as
under section 422
Forgery
1. Meaning: Forgery means fraudulently making or altering any record, deed, register to the
prejudice (harm) of another persons rights.
2. Essential elements of forgery
a. A false document or false electronic record must have been made.
b. With intend to cause damage or injury or
c. To commit fraud
d. To the public or to any person, so as to
e. Enter into any express or implied contract
3. Section 463: Punishment – same as section 422
Note 1: The Supreme court has held that mere alteration of documents does not make it forge
document unless the alteration is made with dishonest or fraudulent intention i.e. for some gain or
objective.
Defamation (Section 499)
1. Defamation is an attack on the reputation of person either in some permanent form (i.e. in writing),
pictures, cartoons, films, statue 0 (ibel) or a statement of temporary nature such as spoken words
or gestures.
2. Defamation is tart as well as crime in India, when it is done with mensrea.
3. However, in the following exception any statement in writing or oral. I will not amount to
defamation.
Exception
1. When the statement is truth which needs to be informed for the public good (it is a question of
fact) (e.g. OPC small co.)
2. If the statement is made in respect of the conduct of a public servant in the discharge of his public
servant.
3. When the statement is made in goodfaith against the conduct of any person touching any public
question (agriculture – suicide)
4. When a statement is made based on true report of the court proceeding.
5. When the statement is made based on the merits of the case decided in the court or conduct.
6. When the statement is made on the merits of public performance and it is submitted to the
judgement of the public.
7. When a statement is made by a person having authority over another person either by law or by
a contract.
8. A statement made by a person against any person to that person who has lawful authority over
the accused person.
9. When a person makes a statement for protecting his own interest or the interest of any other
person or for the public good.
10. A statement made against a person to convey a caution in good faith to one person against
another.
Section 500: Punishment for offences under section 499 same as section 422.
Section 501: When a person prints or sales any defamatory matter knowing or having good reason
to believe that such matter is defamatory then he shall be punished.
Section 502: With simple imprisonment as per Section 422.
General Exceptions: Mensrea us presumed to be absent on the part of wrong doer.
General Exceptions
Judicial Acts Accident Absence of criminal intention
Mistake of fact Consent Negligible Act (trifling act)
I. Judicial Acts
1. Act of a judge when acting judicially in exercise of any power in “good faith” which is given to him
by law. (Section 77)
2. Act done by a person as per the judgment or order of court not withstanding that the court had
no jurisdiction, provided the act is in good faith. (Section 78)
II. Mistake of fact

1. Nothing is an offence which is done by person in good faith when his is bound by law to do it.
E.g. Soldier – Fires – on order of his superior. (Section 76)
2. Justified by law: Nothing is an offence which his done by any person in good faith which he
believes himself to be justified by law in doing it. E.g. Z sees x committing what appears to be
a murder of Y and confines him and handsover him to the Police authority and later it turns
out that X was acting in self-defense. (Section 79)
III. Accident
1. Any act done without any criminal intention by lawful means and with proper care and caution
if results in an accident is not an offence. (Section 80)
E.g. Australia – opener – cricketer - died
2. Any act done without any criminal intent for preventing harm to a third person / property in
good faith is not an offence. E.g. captain of a vessel runs down a both with 2 passengers to
save a both carrying 100 passengers. (Section 81)
IV. Trifling Act (Negligence)

1. Nothing is an offence done by a child under 7 years of age. (Section 82)
2. Nothing is an offence done by a child above 7 years of age and under 12 years if it is due to
immature understanding. (Section 83)
3. Act of person of unsound mind. (Section 84)
4. Act of person incapable of judgment by reason of intoxication cause against his will. (section
85)
5. Where an act done is not an offence unless it is done with mens rea, any person doing the act
in a state of intoxication must be dealt with as if he had not been intoxicated unless, he was
intoxicated against his will or knowledge. (Section 86)
V. Consent
1. Act not intended and not known to be likely to cause death or heart badly, done by consent of
the person. (e.g. Rafting / paragliding / adventure games – death)
2. Act not intended to cause death, done by consent in good faith.
3. Act done in good faith for benefits of child or insane person with the consent of his guardian.
E.g. Act of parent who gave consent for the child’s surgery with the object to cure the child is
not an offence if the child dies after surgery. (Section 89)
4. Consent known to be given under fear or misconception is Section 90 not a consent if the
person doing the act knows about it. E.g. 14 years child – consent – horror. A child of 14 years
wrongly gives his consent for a horror game show knowing its consequences.
5. Act done in good faith for benefit of a person without his consent. (Section 92)
6. Offences independently of any harm which the person giving the concern will be an offence
and section 87, 88, 89 will not apply. E.g. causing miscarriage is an offence. Unless it is done
to save life of the women)
VI. Absence of criminal intention

1. Communication made in good faith which causes harm to the person to whom it is made is
not an offence. (Section 93)
2. Act to which person is compelled by the threat is not an offence except in case of murder case
and offences against the state punishable with death. If the person acting under threat was
compelled forced to act.
3. Nothing is an offence by reason that it causes a slight harm which no person of ordinary sense
and temper would complain of such harm.
Indian Penal Code, 1860 9.12
Chapter
9 Indian Penal Code, 1860
Introduction: The Indian Penal Code, 1860 is the substantive law of crimes. It defines acts
which constitute an offence and lays down punishment for the same. It lays down certain
principles of criminal law. The procedural law through which the Indian Penal Code is
implemented is the Criminal Procedure Code, 1973.
Indian Penal Code consists of 23 chapters and more than 511 sections. It has two parts-
general principles and defences and specific offences. The objective of the Indian Penal Code is
to provide a general penal code for India.
The IPC which is a colonial legislation which was retained as the main penal law of the country
even after India became independent in 1947.
Introduction
Que. No. 1] Crime is a wrong committed by an individual in a society. Comment.
Ans.: Crime is a social phenomenon. It is a wrong committed by an individual in a society. It

arises first when a STATE is organized, people set up rules, the breaking of which is an act
called crime. Law regulates the social interest, arbitrates conflicting claims and demands. The
security of persons and property which is essential function for State is achieved through the
instrumentality of criminal law. Crime being a relative conception is an act defined by State as
a crime. The concept of crime changes from time to time and as per the society.
For determination of crime there is no fixed rule. Crime is – “what the law says it is”. The
difference between a criminal offence and a civil wrong is that while the former is considered a
wrong against the society because of their grave nature, a civil wrong is a wrong done to an
individual. It is believed that serious crimes threaten the very existence of an orderly society,
and therefore, if such a crime is committed, it is committed against the whole society.
Que. No. 2] Distinguish between: Crime & Civil Wrong
Ans.: Following are the main points of distinction between Crime & Civil Wrong:
Points Crime Civil Wrong
Meaning Crime means any act or omission made Wrongs that affect the interests of a
punishable under any law. particular individual are called civil wrong.
Wrong Crime is a wrong against society. Civil wrong is against a private individual
or individuals.
Seriousness More serious wrongs have been considered Less serious wrongs are considered as
to be public wrongs and are known as private wrongs and have been labelled as
crimes. civil wrong.
Intention In crime intention is essential element. In civil wrong intention is not relevant.
Action In case of crime action is taken by the In case of civil wrong the suit is filed by
State i.e. Government. the aggrieved person himself.
Compromise In case of crime compromise is not In case of civil suit, compromise is always
possible except in certain cases. possible.
Penalty The wrongdoer is punished. The wrongdoer pays compensation or
damages to the injured party.

Que. No. 3] Distinguish between: Crime & Breach of contract
Ans.: Following are the main points of distinction between crime & breach of contract:
Points Crime Breach of Contract
Meaning Crime means any act or omission made Breach of contract means breaking or
punishable under any law. non-fulfillment of obligation under a
contract.
Intention Mens rea (ill intention) is an important In breach of contract, the motive is not an
factor in imposing the Criminal liability essential factor. The defaulting party has
upon the wrongdoer. to pay the pre-settled and actual damages.
Infringement In crime a wrongful act is an infringement In a breach of contract is an infringement
of right of right in rem. The wrongdoer has a of a right in personam i.e. a right
‘duty in rem’ i.e., he should not do harm available only against some determinate
or injury to any person. person or body and for which the
community at large has no concern.
Object The object of the criminal law is to project The object of law on the breach of contract
the peace of the society. is to protect the rights of the parties in a
contract.
Codification The criminal law is completely codified. The law relating to contracts is not
completely codified and considers certain
trade customs.
Damages In crime, victims are not paid any In breach of contract, the party is entitled
damages. The accused is sent to jail or only for damages as directed by the Court.
imposed fine or both. The fine goes to the
State and State may pay a fine to victim.
Que. No. 4] Write a short note on: Types of criminal laws
Ans.: Criminal laws are divided into two classes:

(a) Substantive Law: The class of law which defines and punishes offences. For example,
“Indian Penal Code, 1860” is substantive law.
(b) Procedural Law: The class of law which prescribes procedure for prevention, investigation
and trial. For example, “Code of Criminal Procedure, 1973” is procedure law.
Jurisdiction of the IPC
Que. No. 5] State the applicability of the Indian Penal Code, 1860.
Ans.: Extent of operation of the Code [Section 1]: The Indian Penal Code, 1860 extends to the
whole of India except the State of Jammu & Kashmir.
Punishment of offences committed within India [Section 2]: Every person shall be liable to
punishment under this Code and not otherwise for every act or omission contrary to the
provisions thereof, of which, he shall be guilty within India.
Punishment of offences committed beyond but which by law may be tried within India [Section 3]:
Any person liable, by any Indian law to be tried for an offence committed beyond India shall be
dealt with according to the provisions of the Code for any act committed beyond India in the
same manner as if such act had been committed within India.
An Indian was murdered by another Indian in a foreign country. The local police did not register it. The
High Court ordered the police to register FIR and to inquire into the matter u/s 3 of the Indian Penal
Code, 1860. [Remia vs. Sub-Inspector of Police, Tanur (1993 CrLJ 1098)]
Extension of Code to extra-territorial offences [Section 4]: The provisions of the Code apply also
to any offence committed by –
(1) Any citizen of India in any place without and beyond India;
(2) Any person on any ship or aircraft registered in India wherever it may be.

Explanation: The word "offence" includes every act committed outside India, which, if committed
in India, would be punishable under the Code.
Illustration: A, who is a citizen of India, commits a murder in Uganda. He can be tried and
convicted of murder in any place in India in which he may be found.
Certain laws not to be affected [Section 5]: Nothing in the Indian Penal Code, 1860 shall affect
the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or
airmen in the service of the Government of India or the provisions of any special or local law.
Que. No. 6] Discuss briefly ‘intra territorial jurisdiction’ of the Indian Penal Code, 1860.
Ans.: Intra-territorial Jurisdiction: Section 2 deals with the intra territorial jurisdiction of the
Code. It makes the Code universal in its application to every person in any part of India for
every act or omission contrary to the provisions of the Code.
Where a crime is committed within the territory of India the IPC applies and the Courts can try
and punish irrespective of the fact that the person who had committed the crime is an Indian
national or foreigner. This is called ‘intra-territorial jurisdiction’
‘Every Person’: Every person is made liable to punishment, without distinction of nation, rank,
caste or creed, provided the offence with which he is charged has been committed in some part
of India. The use of the expression ‘every person’ in this section and not ‘any person’ as in
sections 3 and 4(2) is deliberate.
Foreigner: A foreigner who enters the Indian territories and thus accepts the protection of
Indian laws virtually gives an assurance of his fidelity and obedience to them and submits
himself to their operation. A foreign national committing an offence within India can be
punished.
In the famous case of Mobarik Ali v. State of Bombay,(AIR 1957 SC 857), a national of Pakistan
made certain false representations from Karachi by letters, telegrams and telephones to the
complainant at Bombay on the belief of which the complainant paid a certain amount of money
to the agent of the Pakistani at Bombay. The Supreme Court held that the Pakistani national
was subject to the jurisdiction of the Indian Courts for having committed the offence of
cheating and as the appellant had already surrendered to the authorities of India under the
provisions of the Fugitive Offenders Act, 1881 in connection with another case, his conviction
was valid u/s 420 of the Indian Penal Code.
In R v. Esop [(1836) 7 ER 203], a foreigner had committed an unnatural offence on an Indian
ship lying in St. Katherine’s Docks. His defence that he was a foreigner and that in his country
such an act was not an offence was rejected on the ground that the act was an offence under
the Indian Penal Code, 1860 and that it was committed on an Indian ship which was Indian
Territory. A foreigner, who is a guilty of any offence under this Code, shall be punishable under
this Code, if he has committed any offence in India, although the alleged offence might have not
been an offence in his motherland.
In State of Maharashtra v. Mayer Hans George (AIR 1965 SC 722), a German National left
Zurich for Manila by a Swiss Plane with 34 Kilos of gold. He had not declared it in the manifest
for transit. The plane arrived at Bombay. The passenger had remained in the plane. The Indian
custom authorities, on search, recovered the gold carried by him on his person. He was
prosecuted for importing gold into India under the Foreign Exchange Regulation Act, 1973.
Exemption from intra-territorial jurisdiction of IPC:
(1) President & Governor: The President of India and the Governors of the States are exempted
from the jurisdiction of the Criminal Courts, by Article 361 of the Indian Constitution.
(2) Foreign Sovereigns: Foreign Sovereigns are the persons completely exempted from the
jurisdiction of the Indian Criminal Courts.
(3) Ambassadors & Diplomats: Certain immunities and privileges have been granted to
Ambassadors of other countries by the United Nations Organization. Accordingly every
country has passed separate Acts giving immunities and privileges to the Ambassadors. The
Diplomatic Privileges Act, 1964 of England, the United Nations (Privileges and Immunities)
Act, 1947 of India, etc. are examples. Therefore, Ambassadors are exempted from the
jurisdiction of the Indian Criminal Courts.

(4) Foreign Army: The Foreign army personnel entered into the Indian territories with the
permission of the Indian Government is exempted from the jurisdiction of the criminal
courts.
Que. No. 7] Mr. David, a citizen of America had been charged in India for offence under
the Indian Penal Code, 1860. However, he contends that acts for which he is charged
does amount to offence as per law of his country. Examining the provisions of the Indian
Penal Code, 1860 state whether contention of Mr. David is acceptable.
Ans.: As per Section 2 of the Indian Penal Code, 1860, every person shall be liable to
punishment under the Code and not otherwise for every act or omission contrary to the
provisions thereof, of which, he shall be guilty within India.
Foreigners who enters Indian territories and thus accepts the protections of Indian Laws
virtually gives assurance of his fidelity and obedience to them and submit himself to their
operation. It is no defence on behalf of a foreigner that he did not know he was doing wrong,
the act not being an offence in his country.
Thus, contention of Mr. David is not acceptable and he will be punished for the crime as
provided in the Indian Penal Code, 1860
Que. No. 8] Discuss briefly ‘extra territorial jurisdiction’ of the Indian Penal Code, 1860.
Ans.: Extra territorial jurisdiction is the legal ability of a government to exercise authority beyond
its normal boundaries.
Sections 3 and 4 of the IPC provide for the liability of offenders committing offences beyond the
territories of India. Section 3 makes not only Indian citizens liable for offences committed
abroad (even though their acts may not be punishable at the place where they are committed)
but also others who are covered by any special law bringing them under Indian jurisdiction.
Section 4 provides that the provisions of the Code will also apply –
(1) To citizens of India wherever they may be outside India and
(2) To all persons on board any ship or aircraft registered in India.
Section 4(1) lays down the active Nationality principle. Where an offence is committed beyond
the limits of India but the offender is found within its limits, then –
(1) He may be given up for trial in the country where the offence was committed (extradition) or
(2) He may be tried in India (extra territorial jurisdiction).
The rationale behind extension of criminal jurisdiction of the courts in India, even if the offence
is committed beyond or outside India, is based on the contention that every sovereign State can
regulate the conduct of its citizens, wherever they might be for the time being.
The common law doctrine is, that jurisdiction in criminal law is primarily territorial. Crime is
said to be 'extra-territorial' when committed in a country other than it is tried. Sections 375
and 476 of IPC deal with offences committed beyond India, in the same manner as if it is
committed in India. Section 3 enables the Indian Courts to try persons who have committed
offences outside India.
Where any person is liable under any 'Indian' law to be tried for any offence committed outside
India, he shall be dealt with under the provisions of the Code if the act or omission charged
would, if committed in India, have constituted an offence under the Code.
In the case of an 'Indian Citizen' committing an offence outside India he will be liable to be tried
at any place where he may be found in India, 'wherever' he may have committed the offence.
This rule is based on a general principle relating to extra-territorial laws. But in the case of
foreign subjects, such liability to be tried in India will arise only if the offence has been
committed on a ship or aircraft 'registered in India' wherever it may be. If a person is found at
particular place, how he reached there is immaterial.
Section 4 also talks about the applicability of IPC to any offence committed by any person on
any ship or aircraft registered in India wherever it may be.
It is clear from these sections that courts in India have extra-territorial jurisdiction to try
offences committed on land, high seas and air by Indian nationals or other. The procedure with

regard to prosecuting cases of offences committed outside India has been provided in Section
188 CrPC. The jurisdiction of a court over offences committed in high seas is based on the
precept that a ship in the high seas is considered to be a floating island belonging to the nation
whose flag the ship flies. It does not matter where the ship or boat is, whether it is in high seas
or on rivers, whether it is moving or station, having been anchored for the time being. This
jurisdiction called the ‘admiralty jurisdiction’.
Elements & Stages of Crime
Que. No. 9] State the fundamental elements of a crime.
Ans.: Fundamental elements of crime: There are four elements which constitute a crime, these
are as follows:
(1) Human Being: The first element requires that the wrongful act must be committed by a
human being. In ancient times, when criminal law was largely dominated by the idea of
retribution, punishments were inflicted on animals also for the injury caused by them, for
example, a pig was burnt in Paris for having devoured a child, a horse was killed for having
kicked a man. But now, if an animal causes an injury we hold not the animal liable but its
owner liable for such injury. So the first element of crime is a human being who must be
under the legal obligation to act in a particular manner and should be a fit subject for
awarding appropriate punishment. Section 11 provides that word ‘person’ includes a
company or association or body of persons whether incorporated or not. The word ‘person’
includes artificial or juridical persons.
(2) Mens Rea: The second important essential element of a crime is mens rea or evil intent or
guilty mind. There can be no crime of any nature without mens rea or an evil mind. Every
crime requires a mental element and that is considered as the fundamental principle of
criminal liability. The basic requirement of the principle mens rea is that the accused must
have been aware of those elements in his act which make the crime with which he is
charged. There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit
rea” which means that, the guilty intention and guilty act together constitute a crime. It
comes from the maxim that no person can be punished in a proceeding of criminal nature
unless it can be showed that he had a guilty mind.
(3) Actus Reus: The third essential element of a crime is actus reus. In other words, some overt
act or illegal omission must take place in pursuance of the guilty intention. Actus reus is
the manifestation of mens rea in the external world. Prof. Kenny was the first writer to use
the term ‘actus reus’. He has defined the term thus – “such result of human conduct as the
law seeks to prevent”.
(4) Injury: The fourth requirement of a crime is injury to another person or to the society at
large. The injury should be illegally caused to any person in body, mind, reputation or
property. According to Section 44 the injury denotes any harm whatever illegally caused to
any person in body, mind, reputation or property.
Que. No. 10] Distinguish between: Mens Rea & Actus Reus
Ans.: Following are the main points of distinction between mens rea & actus reus:
Points Mens Rea Actus Reus
Meaning Mens rea means bad intention of the Actus reus is some overt act or illegal
person committing crime. omission must take place in pursuance of
the guilty intention.
What it is? Mens rea is the intent a person has behind Actus reus is the action the person takes
committing a crime. to perform the criminal act.
Element of Mens rea is the second important essential Actus reus is the third important essential
crime element of a crime. element of a crime.
Aspect Mens Rea refers to the mental aspect of Actus Reus refers to the physical aspect of
crime. a crime.

Que. No. 11] One of the essential elements of a crime is mens rea. Discuss. Also state
the exceptions to this principle.
Ans.: It is the general principle that, to constitute a crime there must be a guilty mind. If there
is no guilty mind, there is no crime. Mens rea is the mental intention, or the defendant's state
of mind at the time of the offense, sometimes called the guilty mind.
It stems from the ancient maxim of obscure origin, "actus reus non facit reum nisi mens sit reas"
that is "the act is not guilty unless the mind is guilty”. The guilty mind refers to the intention,
knowledge or recklessness of the accused.
In Srinivasamall v. Emperor AIR 1947 PC 135, the accused Srinivasamall was a salt distributor.
His servant infringed a rule without his master’s knowledge. The accused was acquitted on the
ground that he had no guilty intention since act was committed without his knowledge.
Intention, Negligence and recklessness are the important forms of mens rea.
(1) Intention: Intention is defined as ‘the purpose or design with which an act is done’.
Intention indicates the position of mind, condition of someone at particular time of
commission of offence and also will of the accused to see effects of his unlawful conduct.
Criminal intention does not mean only the specific intention but it includes the generic
intention as well.
Example: Anil poisons the food which Barun was supposed to eat with the intention of
killing Barun. Chandan eats that food instead of Barun and is killed. Anil is liable for killing
Chandan although Anil never intended it.
(2) Negligence: Negligence is the second form of mens rea. Negligence is not taking care, where
there is a duty to take care. Negligence or carelessness indicates a state of mind where
there is absence of a desire to cause a particular consequence. The standard of care
established by law is that of a reasonable man in identical circumstances. What amounts to
reasonable care differs from thing to thing depending situation of each case. In criminal
law, the negligent conduct amounts to means rea.
Example: If a child is injured because his or her caretaker failed to perform her duties, she
may be guilty of criminal negligence.
(3) Recklessness: Recklessness is the decision to commit a certain action despite knowing about
associated risks.
Example: If a person causes injury while driving drunk, he can be found guilty of recklessly
causing harm. He did not intend to hurt anyone, and did not expect it to happen, but he
knew he was taking the risk of hurting someone by driving the car after drinking.
Exceptions: There are many exceptional cases where mens rea is not required in criminal law.
Some of them are as follows:
(a) Statute excludes mens rea: Where a statute imposes liability, the presence or absence of a
guilty mind is irrelevant. The classical view of that ‘no mens rea, no crime’ has long been
eroded and several laws in India and abroad, especially regarding economic crimes and
departmental penalties, have created severe punishment even where the offences have
been defined to exclude mens rea. Many laws passed in the interest of public safety and
social welfare imposes absolute liability. This is so in matters concerning public health,
food, drugs, etc. There is absolute liability (mens rea is not essential) in the licensing of
shops, hotels, restaurants and chemists establishments. The same is true of cases under
the Motor Vehicles Act and the Arms Act, offences against the State like waging of war,
sedition etc.
(b) Speedy disposal of case: Where it is difficult to prove mens rea and penalties are petty fines.
In such petty cases, speedy disposal of cases is necessary and the proving of mens rea is
not easy. An accused may be fined even without any proof of mens rea.
(c) Strict liability: In the interest of public safety, strict liability is imposed and whether a
person causes public nuisance with a guilty mind or without guilty mind, he is punished.
(d) Ignorance of the law: If a person violates a law even without the knowledge of the existence
of the law, it can still be said that he has committed an act which is prohibited by law. In
such cases, the fact that he was not aware of the law and hence did not intend to violate it

is no defense and he would be liable as if he was aware of the law. This follows from the
maxim 'ignorance of the law is no excuse'.
Que. No. 12] Write a short note on: Criminal liability of corporate bodies
A Company registered under the Companies Act, 2013 being a body corporate cannot be
prosecuted for criminal offence. Comment.
Ans.: Criminal liability presupposes the existence of mens rea (guilty mind) and actus reus
(guilty act) - the two essential ingredients of an offence under the IPC. Natural persons can be
convicted of an offence as they possess mind. However, when an offence has been committed by
a company (legal person), the question arises as to whether the company can be convicted of a
criminal offence.
According to Section 11 of the IPC, the word ‘person’ includes any Company or Association, or
body of persons, whether incorporated or not. Thus, companies are covered under the
provisions of the IPC. Virtually in all jurisdictions across the world governed by the rule of law,
companies can no longer claim immunity from criminal prosecution on the ground that they
are incapable of possessing the necessary mens rea for the commission of criminal offences.
The criminal intent of the ‘alter ego’ of the company/body corporate, i.e. the person or group of
persons that guide the business of the company, is imputed to the company.
In State of Maharashtra v. M/s Syndicate Transport, AIR 1964 Bom 195, it was held that the
question whether a corporate body should or should not be liable for criminal action resulting
from the acts of some individual must depend on the nature of offence disclosed by the
allegations in the complaint or in the charge sheet, the relative position of the officer or agent
vis-à-vis the corporate body and other relevant facts and circumstances which could show that
the corporate body, as such, meant or intended to commit that act.
In the case of corporate criminal liability, the settled position of law is now that a company is
virtually in the same position as any individual and may be convicted of offences including
those requiring mens rea. Furthermore, a company cannot escape liability for a criminal offence
merely because the punishment prescribed is that of “imprisonment and a fine”.
A corporation did not have a physical body to imprison and therefore could not be sentenced to
imprisonment but it could be fined for offence as provided in law.
A company may in many ways be likened to a human body. They have a brain and a nerve centre which
controls what they do. They also have hands which hold the tools and act in accordance with directions from
the centre. Some of the people in the company are mere servants and agents who are nothing more than
hands to do the work and cannot be said to represent the mind or will. Others are directors and managers
who represent the directing mind and will of the company, and control what they do. The state of mind of
these managers is the state of mind of the company and is treated by the law as such. So you will find that
in cases where the law requires personal fault as a condition of liability in tort or crime, the fault of the
manager or director will be the personal fault of the company."
Thus, a corporation is virtually in the same position as any individual and may be convicted of common law
as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would
arise when an offence is committed in relation to the business of the corporation by a person or body of
persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree
and control of the person or body of persons is so intense that a corporation may be said to think and act
through the person or the body of persons.
Que. No. 13] Discuss in detail various stages of crime.

Attempt has been called as a preliminary crime. Examine. Also discuss four borad
categories of ‘attempt’.
Ans.: In every crime, there is first intention to commit it, secondly, preparation to commit it,
thirdly, attempt to commit it and fourthly the accomplishment. The stages can be explained as
under –
(1) Intention: This is the first stage in commission of a crime. The law does not take notice of
an intention, mere intention to commit an offence not followed by any act, cannot

constitute an offence. The obvious reason for not prosecuting the accused at this stage is
that it is very difficult for the prosecution to prove the guilty mind of a person. This stage is
a significant progress from mere deliberation towards actual commission of the crime. At
this stage, the person has made up his mind to actually implement or execute his devious
plans. There is an intention to cause harm but yet no action taken that manifests
intention. Further, there is no way to prove an intention because even devil can’t read a
human mind. Thus, this is not considered a crime. For example, intention to kill anyone is
not a crime in itself. However, it is an essential ingredient of crime because without
intention to cause harm, there can be no crime.
In some cases intention may be a crime. For example, waging a war against the
Government is punishable. In this case, mere intention to commit is punishable. Similarly,
mere assembly of persons to commit a dacoity is punishable even though there is no
preparation to it.
(2) Preparation: Preparation is the second stage in the commission of a crime. It means to
arrange the necessary measures for the commission of the intended criminal act. Intention
alone or the intention followed by a preparation is not enough to constitute the crime.
Preparation has not been made punishable because in most of the cases the prosecution
has failed to prove that the preparations in the question were made for the commission of
the particular crime.
Example: If Arun purchases a pistol and keeps the same in his pocket duly loaded in order
to kill his bitter enemy Ballu, but does nothing more. Arun has not committed any offence
as still he is at the stage of preparation and it will be impossible for the prosecution to
prove that Arun was carrying the loaded pistol only for the purpose of killing Ballu.
Generally, preparation to commit any offence is not punishable but in some exceptional
cases preparation is punishable, following are some examples of such exceptional
circumstances which are punishable the IPC –
 Preparation to wage war against the Government.
 Preparation to commit depredation on territories of a power at peace with Government
of India.
 Preparation to commit dacoity.
 Preparation for counterfeiting of coins or Government stamps.
 Possessing counterfeit coins, false weights or measurements and forged documents
(3) Attempt: Attempt, which is the third stage in the commission of a crime, is punishable.
Attempt is the direct movement towards the commission of a crime after the preparation is
made. A person may be guilty of an attempt to commit an offence if he does an act which is
more than merely preparatory to the commission of the offence and a person will be guilty
of attempting to commit an offence even though the facts are such that the commission of
the offence is impossible. There are three essentials of an attempt –
 Guilty intention to commit an offence.
 Some act done towards the commission of the offence.
 The act must fall short of the completed offence.
The IPC has dealt with attempt in the following four different ways –
(a) Completed offences and attempts have been dealt with in the same section and same
punishment is prescribed for both.
(b) Secondly, attempts to commit offences and commission of specific offences have been
dealt with separately and separate punishments have been provided for attempt to
commit such offences from those of the offences committed. Examples are –
 Murder is punished u/s 302 and attempt to murder u/s 307.
 Culpable homicide is punished u/s 304 and attempt to commit culpable homicide
u/s 308.
 Robbery is punished u/s 392 and attempt to commit robbery u/s 393.
(c) Thirdly, attempt to commit suicide is punished u/s 309.
(d) Fourthly, all other cases where no specific provisions regarding attempt are made are
covered u/s 511 which provides that the accused shall be punished with one-half of

the longest term of imprisonment provided for the offence or with prescribed fine or
with both.
(4) Accomplishment/Completion: The last stage in the commission of an offence is its
accomplishment or completion. If the accused succeeds in his attempt to commit the
crime, he will be guilty of the complete offence and if his attempt is unsuccessful he will be
guilty of an attempt only. For example, A fires at B with the intention to kill him, if B dies,
A will be guilty for committing the offence of murder and if B is only injured, it will be a
case of attempt to murder.
Que. No. 14] Distinguish between: Motive & Intention
Ans.: Following are the main points of distinction between motive & intention:
Points Motive Intention
Meaning Motive refers to the reason a crime was Intention mean doing any act with one’s
committed. It is often the background of will or desire for some purpose.
the suspect in committing the alleged
crime.
Motive is the reason that drives a person Intention of a person can be determined
to do an act or refrain from acting in a by the use of particular means and the
specific manner. circumstances that resulted in the
criminal offence.
Criminal Motive is insubstantial to determine Intention is substantial to determine
liability criminal liability. criminal liability.
Purpose Motive is hidden or implied purpose. Intention is the expressly defined purpose
of the crime
What is it? Motive is driving force of crime. Intention is first stage of crime.
Example Assume that Y is accused of murdering his Assume that X is caught with 2 kilos of
wife and it turns out that his wife has a heroin in his house. A rational man will
policy of `1 Crore that will come to Y after assume that X cannot be keeping the
the death of his wife. The law will assume heroin at home for private consumption,
that the `1 Crore is a profit that Y will so the normal assumption will be that X
gain by his wife’s death and so mean to sell this heroin (i.e. distribute). So
prosecution will try to establish that since X will be charged with possession with
Y’s wife death is a profit to him of `1 intent to distribute. This means the law
Crore, Y have motive. Thus, Y has a can assume what your intentions are with
reason to commit the crime. respect to a criminal offence.
Que. No. 15] The accused person is innocent till offence is proved beyond reasonable
doubts. Comment.
Ans.: There is a presumption of innocence in favour of any person accused of committing any
crime. It means that in the eyes of the law, the accused person is innocent till it is proven
otherwise by the prosecution. So strong is this presumption that in order to rebut it, the
prosecution must prove it ‘beyond reasonable doubts’ that the crime was committed by the
accused. If the person accused of committing a crime, while defending himself, is able to
introduce any doubt in the case of the prosecution, he will not be held guilty. Had there been
no presumption of innocence in favour of the accused, it would have been very easy for a
person to harass someone by accusing him of committing a crime.
Que. No. 16] Briefly discuss various types of punishments provided under the Indian
Penal Code, 1860.
Ans.: The punishments to which offenders are liable under the provisions of IPC are as follows –
(1) Death/Capital punishment: A death sentence is the harshest of punishments provided in the
IPC, which involves taking the life of the accused as a form of punishment. The Supreme

Court has ruled that death sentence ought to be imposed only in the ‘rarest of rare cases’.
The IPC provides for capital punishment for the following offences:
 Murder
 Dacoity with murder
 Waging War against the Government of India
 Abetting mutiny actually committed. (mutiny means forcible or passive resistance to lawful
authority)
 Giving or fabricating false evidence upon which an innocent person suffers death
 Abetment of a suicide by a minor or insane person
 Attempted murder by a life convict.
The death punishment is also called ‘capital punishment’. The word ‘capital’ means the
head or top of the column. Thus, the capital punishment means ‘removal of head’, ‘death
penalty’ or ‘beheading’. The capital punishment is awarded only in two categories of
offences, namely treason and murder.
(2) Life imprisonment: Imprisonment for life meant rigorous imprisonment, that is, till the last
breath of the convict.
(3) Imprisonment: Imprisonment which is of two descriptions namely (i) rigorous imprisonment,
that is hard labour; (ii) simple imprisonment.
(4) Forfeiture of property: Forfeiture is the divestiture of specific property without compensation
in consequence of some default or act forbidden by law. The Courts may order for forfeiture
of property of the accused in certain occasions. The Courts are empowered to forfeit
property of the guilty person u/s 126 & 127.
(5) Fine: Fine is forfeiture of money by way of penalty. It should be imposed individually and
not collectively.
(6) Default sentence: When court sentences an accused for a punishment, which includes a fine
amount, it can specify that in the event the convict does not pay the fine amount, he would
have to suffer imprisonment for a further period as indicated by the court, which is
generally referred to as default sentence.
Criminal Conspiracy
Que. No. 17] Define ‘criminal conspiracy’ as per the Indian Penal Code, 1860. Also state
the essential ingredients of the offence of criminal conspiracy as laid down by the
Supreme Court of India.
Ans.: Definition of criminal conspiracy [Section 120A]: When two or more persons agree to do, or
cause to be done –
(1) An illegal act or
(2) An act which is not illegal by illegal means,
such an agreement is designated a criminal conspiracy.
However, no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or
is merely incidental to that object.
The ingredients of the offence of criminal conspiracy as laid down by the Supreme Court in R.
Venkatkrishnan v. CBI, (2009) 11 SCC 737, are:
(a) An agreement between two or more persons;
(b) The agreement must relate to doing or causing to be done either:
(i) An illegal act;
(ii) An act which is legal itself but is done by illegal means.
The essence of the offence of conspiracy is the fact of combination by agreement. The
agreement may be express or implied, or in part express and in part implied.
The conspiracy arises and the offence is committed as soon as the agreement is made and the
offence continues to be committed so long as the combination persists, that is until the

conspiratorial agreement is terminated by completion of its performance or by abandonment or

by frustration or however else it may be.
In order to prove a criminal conspiracy there must be direct or circumstantial evidence to show
that there was an agreement between two or more persons to commit an offence. In NCT of
Delhi v. Navjot Sandhu, 2005 CrLJ 3950 (SC) [Parliament attack case], the accused had never
contacted the deceased terrorist on place but had helped one of the conspirators to flee (run
away from a place or situation of danger) to a safer place after incident was not held guilty as
conspirator.
The proviso to Section 120A is important. Having carved out an exception in favour of
agreement to commit offence which is punishable per se without proof of an overt result of
conspiracy or any overt act in pursuance of the agreement, other conspiracies need some acts
besides the mere agreement to render it punishable.
Que. No. 18] What is the punishment for ‘criminal conspiracy’ under the Indian Penal
Code, 1860?
Ans.: Punishment of criminal conspiracy [Section 120B]:

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of 2 years or upwards, shall,
where no express provision is made for the punishment of such a conspiracy, be punished
in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description
for a term not exceeding 6 months, or with fine or with both.
Que. No. 19] Neeraj & Ramesh decides to murder Sudhir when he gets down at railway
station from the evening train. They both go to railway station for this purpose but
Sudhir does not arrive by the evening train. Neeraj & Ramesh came back to home.
Whether any offence is committed by Neeraj & Ramesh under the Indian Penal Code,
1860?
Ans.: As per Section 120A of the Indian Penal Code, 1860, when two or more persons agree to
do, or cause to be done –
Murder is an offence/illegal act under the IPC. As per facts given in case Neeraj & Ramesh
decides to murder Sudhir when he gets down at railway station from the evening train. They
both go to railway station for this purpose which shows that they have agreed to committee
illegal act and hence they both have commit the offence of criminal conspiracy u/s 120A of the
Indian Penal Code, 1860. They are liable to punishment as provided in Section 120B of the
Que. No. 20] Bunty and Babali decides to loot a bank and for that purpose they collect all
necessary implements and weapons. Later on Bunty leaves the city and therefore does
not join Babali. What offence, if any, is committed by Bunty under the Indian Penal
Code, 1860?
Ans.: As per Section 120A of the Indian Penal Code, 1860, when two or more persons agree to
do, or cause to be done –
To decide to loot a bank is the offence of criminal conspiracy u/s 120A. Collection of necessary
implements and weapons is the stage of preparation but preparation to commit robbery is not

punishable under the IPC. Therefore, Bunty is guilty of criminal conspiracy to commit robbery
only and liable to punishment as provided in Section 120B of the Indian Penal Code, 1860.
Criminal Misappropriation of Property
Que. No. 21] State the penalty for dishonest misappropriation of property as provided in
Ans.: Dishonest misappropriation of property [Section 403]: Whoever dishonestly misappropriates

or converts to his own use any movable property, shall be punished with imprisonment of
either description for a term which may extend to 2 years or with fine or with both.
Illustrations (As given in the Indian Penal Code, 1860):
(a) A takes property belonging to Z out of Z’s possession, in good faith, believing, at any time when he
takes it, that the property belongs to himself. A is not guilty of theft; but if A, after discovering his
mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this
section.
(b) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without
Z’s express consent. Here, if A was under the impression that he had Z’s implied consent to take the
book for the purpose of reading it, A has not committed theft. But, if A afterwards sells the book for
his own benefit, he is guilty of an offence under this section.
(c) A and B, being joint owners of a horse, A takes the horse out of B’s possession, intending to use it.
Here, as A has a right to use the horse, he does not dishonestly misappropriate it. But, if A sells the
horse and appropriates the whole proceeds to his own use, he is guilty of an offence under this
section.
Explanation 1: A dishonest misappropriation for a time only is a misappropriation with the
meaning of this section.
Illustration (As given in the Indian Penal Code, 1860):
A finds a Government promissory note belonging to Z, bearing a blank endorsement. A, knowing that the
note belongs to Z, pledges it with a banker as a security for a loan, intending at a future time to restore
it to Z. A has committed an offence under this section.
Explanation 2: A person who finds property not in the possession of any other person, and
takes such property for the purpose of protecting it for, or of restoring it to, the owner does not
take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the
offence above defined, if he appropriates it to his own use, when he knows or has the means of
discovering the owner, or before he has used reasonable means to discover and give notice to
the owner and has kept the property a reasonable time to enable the owner to claim it.
What are reasonable means or what is a reasonable time in such a case, is a question of fact. It
is not necessary that the finder should know who is the owner of the property, or that any
particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not
believe it to be his own property, or in good faith believe that the real owner cannot be found.
(a) A finds a rupee on the high road, not knowing to whom the rupee belongs. A picks up the rupee.
Here A has not committed the offence defined in this section.
(b) A finds a letter on the road, containing a bank note. From the direction and contents of the letter he
learns to whom the note belongs. He appropriates the note. He is guilty of an offence under this
section.
(c) A finds a cheque payable to bearer. He can form no conjecture as to the person who has lost the
cheque. But the name of the person, who has drawn the cheque, appears. A knows that this person
can direct him to the person in whose favour the cheque was drawn. A appropriates the cheque
without attempting to discover the owner. He is guilty of an offence under this section.
(d) A sees Z drop his purse with money in it. A picks up the purse with the intention of restoring it to Z,
but afterwards appropriates it to his own use. A has committed an offence under this section.
(e) A finds a purse with money, not knowing to whom it belongs; he afterwards discovers that it belongs
to Z, and appropriates it to his own use. A is guilty of an offence under this section.
(f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately without attempting to

discover the owner. A is guilty of an offence under this section.
Que. No. 22] X finds a ring on the highway. X retains the same with him. What offence, if
any, has been committed by X as per the provisions of the Indian Penal Code, 1860?
Ans.: As per Section 403 of the Indian Penal Code, 1860, whoever dishonestly misappropriates
Section 403 has following ingredients:
(a) Dishonest misappropriation or conversion of property by a person to his use
(b) Movable property.
When X finds a ring lying on the highway and he retains the same with him it is not dishonest
misappropriation of property. Thus, X has not committed any offence u/s 403 of the Indian
Penal Code, 1860.
Que. No. 23] X and Y an illiterate woman were on the railway platform of Kanupur. X had
ticket form Kanpur to Lucknow and Y had a ticket from Kanpur to Jhansi. Y handed
over her ticket to X in order to ascertain that whether she had a genuine ticket. X under
the pretence of returning Y’s ticket substituted therefore his own ticket and kept Y
ticket. What offence is committed by X under the Indian Penal Code, 1860?
Ans.: As per Section 403 of the Indian Penal Code, 1860, whoever dishonestly misappropriates
(a) Dishonest misappropriation or conversion of property by a person to his use
(b) Movable property.
The facts of the case are similar to the facts of the case Raza Hussain v. Emperor, 1904, 25, All
Weekly Notes 9, in which accused was held guilty of offence of criminal misappropriation of
property u/s 403 of the Indian Penal Code, 1860.
Que. No. 24] Fifteen bundles of electric wire were seized from Rafiq but no one claimed
that wires were stolen property. Some evidence showed that electric wire was purchased
by the Rafiq from scrap seller. However, Rafiq was not able to produce any receipt for
purchase of electric wire. Does Rafiq have committed any offence under the Indian Penal
Code, 1860? Discuss with reference to decided case, if any.
Ans.: In Mohammad Ali v. State, 2006 CrLJ 1368 (MP), fifteen bundles of electric wire were
seized from the appellant but none including electricity department claimed that wires were
stolen property. Evidence on records showed that impugned electric wire was purchased by the
applicant from scrap seller. Merely applicant not having any receipt for purchase of impugned
wire cannot be said to be guilty of offence punishable u/s 403 of the Indian Penal Code, 1860.
Order of framing charge was, therefore, quashed by the Supreme Court and the accused was
not held guilty u/s 403 of the Indian Penal Code, 1860.
Que. No. 25] Deva was appointed as contractor to execute certain work by the State
Government of Jharkhand. To complete the work properly and in time, Deva appointed
Suresh as sub-contractor. On completion of work State Government of Jharkhand paid
the money to main contractor i.e. Deva. However, Deva failed to pay the money to
Suresh a sub-contractor. Thereupon Suresh filed a criminal complaint of
misappropriation of money by the Deva. Referring to decided case, if any, decide
whether Suresh will succeed in his complaint against Deva.
Ans.: The facts of the given case are similar to case of U. Dhar v. State of Jharkhand, (2003) 2
SCC 219. In this case, there were two contracts – one between the principal and contractor and

another between contractor and sub-contractor. On completion of work sub-contractor

demanded money for completion of work and on non-payment filed a criminal complaint
alleging that contractor having received the payment from principal had misappropriated the
money. The Magistrate took cognizance of the case and High Court refused to quash the order
of Magistrate. On appeal to the Supreme Court, it was held that matter was of civil nature and
criminal complaint was not maintainable and was liable to be quashed. The Supreme Court
also observed that money paid by the principal to the contractor was not money belonging to
the complainant, sub-contractor, hence there was no question of misappropriation.
Que. No. 26] Write a short note on: Dishonest misappropriation of property possessed by
deceased person
Ans.: Dishonest misappropriation of property possessed by deceased person at the time of his
death [Section 404]: Whoever dishonestly misappropriates or converts to his own use property,
knowing that such property was in the possession of a deceased person at the time of that
person’s decease, and has not since been in the possession of any person legally entitled to
such possession, shall be punished with imprisonment of either description for a term which
may extend to 3 years, and shall also be liable to fine.
If the offender at the time of such person’s decease was employed by him as a clerk or servant,
the imprisonment may extend to 7 years.
Illustration: Z dies in possession of furniture and money. His servant A, before the money
comes into the possession of any person entitled to such possession, dishonestly
misappropriates it. A has committed the offence defined in this section.
Que. No. 27] An accused was found in possession of some property which a murdered
person was carrying at the time of murder. There was neither eye-witness of the murder
nor did the prosecution succeed in establishing any other incriminating circumstances
against the accused. Of what offence, if any, can the accused be convicted under the
Indian Penal Code, 1860? Give reasons.
Ans.: Since the accused was found in possession of some property which a murdered person
was carrying at the time of murder and there was neither eye-witness of the murder nor did the
prosecution succeed in establishing any other incriminating circumstances against the
accused, the accused cannot be convicted of the offence of murder. However, accused can be
convicted for the offence of dishonest misappropriation of property possessed by the deceased
person at the time of his death under Section 404 of the Indian Penal Code, 1860.
If the offence is proved then such offender shall be liable to punishment of imprisonment of
either description for a term which may extend to 3 years, and shall also be liable to fine. Such
punishment may extend to 7 years if the offender was employee of the deceased person.
Criminal Breach of Trust
Que. No. 28] As a Company Secretary prepare a note for managing director of company
for the criminal breach of trust. Also state the penalty for such offence.
Ans.: Criminal breach of trust [Section 405]: Whoever, being in any manner entrusted with
property, or with any dominion over property, dishonestly misappropriates or converts to his
own use that property, or dishonestly uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust is to be discharged, or of any legal
contract, express or implied, which he has made touching the discharge of such trust, or
willfully suffers any other person so to do, commits "criminal breach of trust".
Explanation 1: A person, being an employer of an establishment whether exempted u/s 17 of
the EPF Act, 1952, or not who deducts the employee’s contribution from the wages payable to
the employee for credit to a Provident Fund or Family Pension Fund established by any law for
the time being in force, shall be deemed to have been entrusted with the amount of the

contribution so deducted by him and if he makes default in the payment of such contribution
to the said Fund in violation of the said law, shall be deemed to have dishonestly used the
amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2: A person, being an employer, who deducts the employees’ contribution from the
wages payable to the employee for credit to the Employees’ State Insurance Fund held and
administered by the Employees State Insurance Corporation established under the ESI Act,
1948, shall be deemed to have been entrusted with the amount of the contribution so deducted
by him and if he makes default in the payment of such contribution to the said Fund in
violation of the said Act, shall be deemed to have dishonestly used the amount of the said
contribution in violation of a direction of law as aforesaid.
(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him
to divide the effects according to the will, and appropriate them to his own use. A has committed
criminal breach of trust.
(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it
shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the
goods. A has committed criminal breach of trust.
(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract
between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z’s direction.
Z remits a lakh of rupees to A, with directions to A to invest the same in Company’s paper. A
dishonestly disobeys the direction and employs the money in his own business. A has committed
criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for
Z’s advantage to hold shares in the Bank of Bengal, disobeys Z’s directions, and buys shares in the
Bank of Bengal, for Z, instead of buying Company’s paper, here, though Z should suffer loss, and
should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted
dishonestly, has not committed criminal breach of trust.
(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a
contract, express or implied, with the Government, to pay into a certain treasury all the public
money which he holds. A dishonestly appropriates the money. A has committed criminal breach of
trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly
misappropriates the property. A has committed criminal breach of trust.
Punishment for criminal breach of trust [Section 406]: Whoever commits criminal breach of trust
shall be punished with imprisonment of either description for a term which may extend to 3
years, or with fine, or with both.
Que. No. 29] What are the essential ingredients of the offence of criminal breach of trust
under Section 405 of the Indian Penal Code, 1860?
Ans.: The essential ingredients of the offence of criminal breach of trust are as under:
(1) The accused must be entrusted with the property or with dominion over it.
(2) The person so entrusted must use that property.
(3) The accused must dishonestly use or dispose of that property or willfully suffer any other
person to do so in violation –
- of any direction of law prescribing the mode in which such trust is to be discharged or
- of any legal contract made touching the discharge of such trust.
The Supreme Court of India in V.R. Dalal v. Yugendra Naranji Thakkar, 2008 (15) SCC 625, has
held that the first ingredient of criminal breach of trust is entrustment and where it is missing,
the same would not constitute a criminal breach of trust. Breach of trust may be held to be a
civil wrong but when mens rea is involved it gives rise to criminal liability also.
In a landmark judgment of Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628, the appellant
alleged that her stridhan property was entrusted to her in–laws which they dishonestly
misappropriated for their own use. She made out a clear, specific and unambiguous case

against in–laws. The accused were held guilty of this offence and she was held entitled to prove
her case and no court would be justified in quashing her complaint.
The Supreme Court in OnkarNath Mishra v. State (NCT of Delhi), 2008 CrLJ 1391 (SC), has held
that in the commission of offence of criminal breach of trust, two distinct parts are involved.
The first consists of the creation an obligation in relation to property over which dominion or
control is acquired by accused. The second is a misappropriation or dealing with property
dishonestly and contrary to the terms of the obligation created. In another case, Suryalakshmi
Cotton Mills Ltd. v. Rajvir Industries Ltd., 2008 (13) SCC 678, it was held that a cheque is
property and if the said property has been misappropriated or has been used for a purpose for
which the same had not been handed over, a case u/s 406 may be found to have been made
out.
After analyzing all the cases we may conclude that for an offence to fall u/s 406 of the IPC all
the four requirements are essential to be fulfilled.
 The person handing over the property must have confidence in the person taking the
property so as to create a fiduciary relationship between them or to put him in position of
trustee.
 The accused must be in such a position where he could exercise his control over the
property i.e. dominion over the property.
 The term property includes both movable as well as immovable property within its ambit.
 It has to be established that the accused has dishonestly put the property to his own use or
to some unauthorized use. Dishonest intention to misappropriate is a crucial fact to be
proved to bring home the charge of criminal breach of trust.
Que. No. 30] Harish instructs Somnath to invest a certain amount of money in
Government securities. Somnath buys shares of XYZ Ltd. instead, believing in good faith
that it would be Harish advantage. The investment results in loss. What offence, if any,
is committed by Somnath under the Indian Penal Code, 1860?
Ans.: The problem is based in Criminal breach of trust as defined in Section 405 of the Indian
Penal Code, 1860.
(a) A person should be entrusted with property or should have control over property.
(b) Such person to whom the property is entrusted should dishonestly misappropriates or
converts to his own use that property or dishonestly uses or disposes of that property in
violation of any direction of law.
As per facts given in case, Harish instructs Somnath to invest a certain amount of money in
Government securities but Somnath invest in shares of XYZ Ltd. instead, believing in good faith
that it would be Harish advantage. Somnath not having acted dishonestly has not committed
criminal breach of trust although he may be liable to civil action.
Que. No. 31] Mrs. Ragini Verma pays advance of `5 lakh by way of demand draft for
supply of goods to the Hi-Fi Ltd. The Company neither supplies the goods nor refunds
the amount to Mrs. Ragini Verma. She files a criminal complaint alleging criminal
breach of trust against the Managing Director of the Hi-Fi Ltd. examining the provisions
of the Indian Penal Code decide whether Mrs. Ragini Verma will succeed in her case?
Ans.: The facts of the given case are similar to S.K. Alagh v. State of UP & others, 2008 (5) SCC
662. In this case demand drafts were drawn in the name of company for supply of goods and
neither the goods were sent by the company nor was the money was returned, the Managing
Director of the company cannot be said to have committed the offence under Section 406 of
Indian Penal Code, 1860. It was pointed out that in absence of any provision laid down under
statute, a director of a company or an employer cannot be held vicariously liable for any offence
committed by company itself.

Thus, keeping in view of decision in above case it can be concluded that Mrs. Ragini Verma will
not succeed in her case. She is advised to file civil case to get back her advance money of `5
lakh.
Que. No. 32] State the punishments for the following offences as provided in the Indian
Penal Code, 1860:
(i) Criminal breach of trust by carrier
(ii) Criminal breach of trust by clerk or servant
Ans.: Criminal breach of trust by carrier etc. [Section 407]: Whoever, being entrusted with
property as a carrier, wharfinger or warehouse keeper, commits criminal breach of trust in
respect of such property, shall be punished with imprisonment of either description for a term
which may extend to 7 years and shall also be liable to fine.
Criminal breach of trust by clerk or servant [Section 408]: Whoever, being a clerk or servant or
employed as a clerk or servant, and being in any manner entrusted in such capacity with
property, or with any dominion over property, commits criminal breach of trust in respect of
that property, shall be punished with imprisonment of either description for a term which may
extend to 7 years and shall also be liable to fine.
Que. No. 33] The act of criminal breach of trust done by strangers is treated less harshly
than acts of criminal breach of trust by public servants. Comment.
Ans.: Criminal breach of trust by public servant, or by banker, merchant or agent [Section 409]:
Whoever, being in any manner entrusted with property, or with any dominion over property in
his capacity of a public servant or in the way of his business as a banker, merchant, factor,
broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be
punished with imprisonment for life, or with imprisonment of either description for a term
which may extend to 10 years, and shall also be liable to fine.
The acts of criminal breach of trust done by strangers is treated less harshly than acts of
criminal breach of trust on part of the persons who enjoy special trust and also in a position to
be privy to a lot of information or authority or on account of the status enjoyed by them, say as
in the case of a public servant. In respect of public servants a much more stringent
punishment of life imprisonment or imprisonment up to 10 years with fine is provided. This is
because of special status and the trust which a public servant enjoys in the eyes of the public
as a representative of the government or government owned enterprises.
The persons having a fiduciary relationship between them have a greater responsibility for
honesty as they have more control over the property entrusted to them due to their special
relationship. Under this section the punishment is severe and the persons of fiduciary
relationship have been classified as public servants, bankers, factors, brokers, attorneys and
agents.
Que. No. 34] Distinguish between: Criminal misappropriation of property & Criminal
breach of trust
Ans.: Following are the main points of distinctions between criminal misappropriation of
property & criminal breach of trust:
Points Criminal misappropriation of property Criminal breach of trust
Meaning Dishonestly misappropriating or converting If a person entrusted with property
property of others for own use or benefit is dishonestly misappropriates or converts it
known as criminal misappropriation of to his own use that property, or
property. dishonestly uses or disposes of property in
violation of any direction of law prescribing
the mode in which such trust is to be
discharged it is known as criminal breach
of trust.

Section of Criminal misappropriation of property is Cheating is explained in dealt by sections

IPC explained in dealt by sections 403 to 404 of 405 to 409 of the Indian Penal Code, 1860.
the Indian Penal Code, 1860.
Property Criminal misappropriation is always Criminal breach of trust may be regarding
regarding movable property. movable and immovable property.
Person Generally, criminal misappropriation is Generally, the criminal breach of trust is
done by near relatives, friends, joint committed by bailee, carrier, executor,
owners etc. agent, employee etc.
Essential Dishonest is the essential element of the In this case, the property is entrusted by
element criminal misappropriation. the owner to offender with good faith and
trust. Thereafter, the wrongdoer
misappropriates it causing breach of trust.
Example A finds a letter on the road, containing a A is a warehouse-keeper. Z going on a
bank note. From the direction and journey, entrusts his furniture to A, under
contents of the letter he learns to whom a contract that it shall be returned on
the note belongs. He appropriates the note. payment of a stipulated sum for warehouse
He is guilty of an offence criminal room. A dishonestly sells the goods. A has
misappropriation. committed criminal breach of trust.
Punishment As per Section 403, for the offence of As per Section 406, for the offence of
criminal misappropriation punishment is criminal breach of trust punishment is
imprisonment of up to 2 years, or with fine, imprisonment of up to 3 years, or with fine,
or with both. or with both.
As per Section 404, for the offence of As per Sections 407 & 408, for the offence
criminal misappropriation punishment is of criminal breach of trust punishment is
imprisonment of up to 7 years. imprisonment of up to 7 years and also
liable to fine.
As per Section 409, for the offence of
criminal breach of trust punishment is
imprisonment of up to 10 years and also
liable to fine.
Que. No. 35] Balwant is working as taxation clerk in the Municipal Committee. He
collects arrears of tax from tax-payer but the sum was not deposited in the funds of the
committee which was deposited after 5 months. He pleads that he had given money to
the cashier but fails to prove the same. Whether any offence is committed by Balwant
under the Indian Penal Code, 1860?
Ans.: The facts of the given case are similar to Bagga Singh v. State of Punjab. In this case, the
appellant was a taxation clerk in the Municipal Committee, Sangrur. He had collected arrears
of tax from tax-payers but the sum was not deposited in the funds of the committee after
collection but was deposited after about 5 months. He pleaded that money was deposited with
the cashier Madan Lal, a co-accused, who had defaulted on the same but the cashier proved
that he had not received any such sum and was acquitted by lower Court. The mere fact that
the co-accused cashier was acquitted was not sufficient to acquit accused in the absence of any
proof that he had discharged the trust expected of him. As such the accused was liable under
Section 409 of Indian Penal Code, 1860.
Considering the decision in above case, Balwant has committed offence of Criminal breach of
trust and will be accordingly punished as provided in Section 409 of the IPC.
Que. No. 36] Bholanath was working as ‘Gram Sachiv’ for eight gram panchayats. He
collected a sum of `648 from some villagers towards the house tax and executed
receipts for the same but failed to remit the same. Does Bholanath have committed any
offence under the Indian Penal Code, 1860?

Ans.: The facts of the given case are similar to Bachchu Singh v. State of Haryana, AIR 1999 SC
2285. In this case, the appellant was working as ‘Gram Sachiv’ for eight gram panchayats. He
collected a sum of `648 from 30 villagers towards the house tax and executed receipts for the
same. As he was a public servant, and in that capacity he had collected money as house tax
but did not remit the same, he was charged u/s 409 of Indian Penal Code, 1860. It was held
that the appellant dishonestly misappropriated or converted the said amount for his own use
and his conviction was upheld by the Supreme Court.
Considering the decision in above case, Bholanath has committed offence of criminal breach of
Que. No. 37] Girish was appointed as clerk in public office by the State Government of
Rajasthan. One of his duty was to record the stationery required for official purpose.
Latter it was found that there is misappropriation of stationery. He wants to prove that
two registers of stationery are maintained and he is not liable for the misappropriation
of stationery. Whether he will be allowed to prove it against the charges of criminal
breach of trust under Section 409 of the Indian Penal Code, 1860?
Ans.: The facts of the given case are similar to Girish Saini v. State of Rajasthan. In this case, a
public servant was accused of neither depositing nor making entries of stationery required for
official purpose. Accused public servant was in-charge of the store in the concerned department
at the time of commission of offence. Hence entrustment was proved. It was held accused could
not take the benefit of misplacing of one of registers of company as he could not prove
maintenance of two registers by department. Therefore, the accused was held guilty of
committing criminal breach of trust.
Considering the decision in above case, Girish has committed offence of Criminal breach of
Cheating
Que. No. 38] Explain the law relating to cheating with suitable examples.
Ans.: Cheating [Section 415]: Whoever, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the person so deceived to do or omit
to do anything which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body, mind, reputation
or property, is said to "cheat".
Explanation: A dishonest concealment of facts is a deception within the meaning of this section.
Illustrations (As given in the Indian Penal Code, 1860)
(i) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly
induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(ii) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article
was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for
the article. A cheats.
(iii) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the
article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the
article. A cheats.
(iv) A, by tendering in payment for an article a bill on a house with which A keeps on money, and by
which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly
induces Z to deliver the article, intending not to pay for it. A cheats.
(v) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and
thereby dishonestly induces Z to lend money. A cheats.
(vi) A intentionally deceives Z into a belief that A means to repay any money that Z may led to him and
thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
(vii) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant

which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the
faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the
indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is
liable only to a civil action for breach of contract.
(viii) A intentionally deceives Z into a belief that A has performed A’s part of a contract made with Z,
which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(ix) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to
the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and
conveyance to B, and receives the purchase or mortgage money for Z. A cheats.
Punishment for cheating [Section 417]: Whoever cheats shall be punished with imprisonment of
either description for a term which may extend to 1 year, or with fine, or with both.
Que. No. 39] Discuss briefly main ingredients of cheating.
Ans.: Cheating – Main Ingredients: The main ingredients of cheating are as under:
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person –
(i) to deliver any property to any person or
(ii) to consent that any person shall retain any property
(b) Intentionally inducing that person to do or omit to do anything which he would not do or
omit if he were not so deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property.
Que. No. 40] A prostitute communicated venereal disease to X who had sexual
intercourse with her, on the strength of her representation that she is free from any
disease. Whether the prostitute is guilty of any offence under the Indian Penal Code,
1860?
Ans.: As per facts given in case, X has sexual intercourse with a prostitute on the strength of
her representation that she is free from any venereal disease but the prostitute communicated
venereal disease to X. The prostitute is guilty of offence of cheating under Section 415 as act of
prostitute caused damage to body and mind of X.
X would not have done sexual intercourse with the prostitute if she had not fraudulently
induced him to do sexual intercourse by representing her free from venereal disease. Thus,
prostitute will be held guilty of offence of cheating u/s 415 and will be punished as per Section
417 of the Indian Penal Code, 1860.
Que. No. 41] X, a Patwari in his capacity as such represented to an agriculturist that
`5,000 were due as land revenue while only 4,000 were due. X realized `5,000 but
deposited only `4,000 in the government treasury and used the excess sum of `1,000
for his personal benefit. What offence has X committed under the Indian Penal Code,
1860?
Ans.: X represented to an agriculturist `5,000 were due as land revenue whereas only `4,000
were due. It was fraudulent or dishonest inducement to deliver `1,000 more to him than the
sum actually due. This amounts to offence of cheating u/s 415 of the Indian Penal Code, 1860.
He will be punished u/s 415 with imprisonment of either description for a term which may to 1
year, or with fine, or with both.
Que. No. 42] Discuss with reference to decided cases, if any, whether following amounts
to offence of cheating:
(i) Non-disclosure of relevant information amounting to misrepresentation of facts.
(ii) Intentionally retaining excise duty which the State is empowered under law to
recover from another person
(iii) Passing a cheque by bank employee after comparing the signature of the drawer

resulting loss to a bank.
Ans.:
(i) The Supreme Court in Iridium India Telecom Ltd. v. Motorola Incorporated and Ors., (2005) 2
SCC 145, has held that deception is necessary ingredient under both parts of section.
Complainant must prove that inducement has been caused by deception exercised by the
accused. It was held that non-disclosure of relevant information would also be treated a
misrepresentation of facts leading to deception.
(ii) The Supreme Court in M.N. Ojha and others v. Alok Kumar Srivastav and anr, (2009) 9 SCC
682, has held that where the intention on the part of the accused is to retain wrongfully
the excise duty which the State is empowered under law to recover from another person
who has removed non-duty paid tobacco from one bonded warehouse to another, they are
held guilty of cheating.
(iii) In T.R. Arya v. State of Punjab, 1987 CrLJ 222, it was held that negligence in duty without
any dishonest intention cannot amount to cheating. A bank employee when on comparison
of signature of drawer passes a cheque there may be negligence resulting in loss to bank,
but it cannot be held to be cheating.
Que. No. 43] Write a short note on: Cheating by personation
Ans.: Cheating by personation [Section 416]: A person is said to "cheat by personation" if he

cheats by pretending to be some other person, or by knowingly substituting one person for
another, or representing that he or any other person is a person other than he or such other
person really is.
Explanation: The offence is committed whether the individual personated is a real or imaginary
person.
(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation.
(b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.
Punishment for cheating by personation [Section 419]: Whoever cheats by personation shall be
punished with imprisonment of either description for a term which may extend to 3 years, or
with fine, or with both.
Example: Renuka receives a Face Book message and friend request that appears to have been
sent from a young and smart boy – Rahul. The information sent by Rahul shows that he is
Government Officer working in Satara and draws attractive salary and also that he is bachelor
and seeking a beautiful girl for marriage. Attracted by the message of Rahul, Renuka meets with
Rahul and they fall in love. Gradually it led to sexual relations. Later Rahul began to ask money
from Renuka for one or other reason. In enquiry, it is discovered that Rahul is not a Government
employee and he has taken education only up to 10th Standard. Rahul has committed offence of
cheating by personation u/s 416 and will be punished u/s 419 of the Indian Penal Code, 1860.
Que. No. 44] State the punishment for cheating with knowledge that wrongful loss may
ensue to person whose interest offender is bound to protect.
Ans.: Cheating with knowledge that wrongful loss may ensue to person whose interest offender is
bound to protect [Section 418]: Whoever cheats with the knowledge that he is likely thereby to
cause wrongful loss to a person whose interest in the transaction to which the cheating relates,
he was bound, either by law, or by a legal contract, to protect, shall be punished with
imprisonment of either description for a term which may extend to 3 years, or with fine, or with
both.
Que. No. 45] State the punishment for cheating and dishonestly inducing delivery of
property as provided in Section 420 of the Indian Penal Code, 1860.

Ans.: Cheating and dishonestly inducing delivery of property [Section 420]: Whoever cheats and
thereby dishonestly induces the person deceived to deliver any property to any person, or to
make, alter or destroy the whole or any part of a valuable security, or anything which is signed
or sealed, and which is capable of being converted into a valuable security, shall be punished
with imprisonment of either description for a term which may extend to 7 years, and shall also
be liable to fine.
Simple cheating is punishable u/s 417. Section 420 comes into operation when there is delivery
or destruction of any property or alteration or destruction of any valuable security resulting from
the act of the person deceiving.
Que. No. 46] State with reference to deicided cases, if any, whether, following amounts
to cheating u/s 420 of the Indian Penal Code, 1860:
(a) Money circulation scheme which is unworkable and false representations were being
made to induce persons to part with their money.
(b) Execution of false sale deeds where the accused had a bona fide belief that the
property belonged to him and purchaser also believed that suit property belongs to
the accused.
(c) Breach of contract where fraudulent or dishonest intention is shown right at the
beginning of transaction.
Ans.:
(a) In Kuriachan Chacko v. State of Kerala, (2004) 12 SCC 269, the money circulation scheme
was allegedly mathematical impossibility and promoters knew fully well that scheme was
unworkable and false representations were being made to induce persons to part with their
money. The Supreme Court held that it could be assumed and presumed that the accused
had committed offence of cheating u/s 420 of the IPC.
(b) In Mohd. Ibrahim and others v. State of Bihar and another, (2009) 3 SCC (Cri) 929, the
accused was alleged to have executed false sale deeds and a complaint was filed by real
owner of property. The accused had a bona fide belief that the property belonged to him and
purchaser also believed that suit property belongs to the accused. It was held that accused
was not guilty of cheating as ingredients of cheating were not present.
(c) In Shruti Enterprises v. State of Bihar and ors, 2006 CrLJ 1961, it was held that mere breach
of contract cannot give rise to criminal prosecution u/s 420 unless fraudulent or dishonest
intention is shown right at the beginning of transaction when the offence is said to have
been committed. If it is established that the intention of the accused was dishonest at the
time of entering into the agreement then liability will be criminal and the accused will be
guilty of offence of cheating. On the other hand, if all that is established is that a
representation made by the accused has subsequently not been kept, criminal liability
cannot be fastened on the accused and the only right which complainant acquires is to a
decree of damages for breach of contract.
Que. No. 47] Distinguish between: Cheating & Criminal Misappropriation of Property
Ans.: Following are the main points of distinctions between cheating & criminal
misappropriation of property:
Points Cheating Criminal Misappropriation of Property
Meaning Dishonest and fraudulent act to gain Dishonestly misappropriating or converting
advantage or causing loss to other is property of others for own use or benefit is
known as cheating. known as criminal misappropriation of
property.
Section of Cheating is explained by sections 415 to Criminal misappropriation of property is
IPC 420 of the Indian Penal Code, 1860. explained by sections 403 to 404 of the
Nature of The wrongdoer induces the owner of the The owner of the property hands over the
offence property to deliver it or any person to do or property to other person in good faith and

to omit to do. such other person misappropriate it.

Person Cheating may be done by any person. Generally, criminal misappropriation is
done by near relatives, friends, joint
owners etc.
Essential Dishonest and fraud are the essential Dishonest is the essential element of the
elements elements of the cheating. criminal misappropriation.
Example A, by falsely pretending to be in the Civil A finds a letter on the road, containing a
Service, intentionally deceives Z, and thus bank note. From the direction and
dishonestly induces Z to let him have on contents of the letter he learns to whom
credit goods for which he does not mean to the note belongs. He appropriates the note.
pay. A cheats. He is guilty of an offence criminal
misappropriation.
cheating punishment is imprisonment of criminal misappropriation punishment is
up to 1 year, or with fine, or with both. imprisonment of up to 2 years, or with fine,
As per Sections 418 & 419, for the offence or with both.
of cheating punishment is imprisonment of As per Section 404, for the offence of
up to 3 years, or with fine, or with both. criminal misappropriation punishment is
As per Section 420, for the offence of imprisonment of up to 7 years.
cheating punishment is imprisonment of
up to 7 years and also liable to fine.
Que. No. 48] Distinguish between: Cheating & Criminal breach of trust
Ans.: Following are the main points of distinctions between cheating & criminal breach of trust:
Points Cheating Criminal breach of trust
Meaning Dishonest and fraudulent act to gain If a person entrusted with property
advantage or causing loss to other is dishonestly misappropriates or converts it
known as cheating. to his own use that property, or
dishonestly uses or disposes of property in
violation of any direction of law prescribing
the mode in which such trust is to be
discharged it is known as criminal breach
of trust.
Section of Cheating is explained by sections 415 to Cheating is explained by sections 405 to
IPC 420 of the Indian Penal Code, 1860. 409 of the Indian Penal Code, 1860.
Nature of The wrongdoer induces the owner of the A person in possession of property
offence property to deliver it or any person to do or dishonestly misappropriates or converts it
to omit to do. to for his own use.
Person Cheating may be done by any person. Generally, the criminal breach of trust is
committed by bailee, carrier, executor,
agent, employee etc.
Property In cheating, property is removed from the In this case, the property is entrusted by
possession of the owner by the cheater. the owner to offender with good faith and
trust. Thereafter, the wrongdoer
misappropriates it causing breach of trust.
Example A, by falsely pretending to be in the Civil A is a warehouse-keeper. Z going on a
Service, intentionally deceives Z, and thus journey, entrusts his furniture to A, under
dishonestly induces Z to let him have on a contract that it shall be returned on
credit goods for which he does not mean to payment of a stipulated sum for warehouse
pay. A cheats. room. A dishonestly sells the goods. A has
committed criminal breach of trust.
cheating punishment is imprisonment of criminal breach of trust punishment is
up to 1 year, or with fine, or with both. imprisonment of up to 3 years, or with fine,

As per Sections 418 & 419, for the offence or with both.
of cheating punishment is imprisonment of As per Sections 407 & 408, for the offence
up to 3 years, or with fine, or with both. of criminal breach of trust punishment is
As per Section 420, for the offence of imprisonment of up to 7 years and also
cheating punishment is imprisonment of liable to fine.
up to 7 years and also liable to fine. As per Section 409, for the offence of
criminal breach of trust punishment is
imprisonment of up to 10 years and also
liable to fine.
Fraudulent Deeds & Dispositions of Property
Que. No. 49] Write a short note on: Frauds connected with insolvency
Ans.: Dishonest or fraudulent removal or concealment of property to prevent distribution among

creditors [Section 421]: Whoever dishonestly or fraudulently removes, conceals or delivers to
any person, or transfers or causes to be transferred to any person, without adequate
consideration, any property, intending thereby to prevent, or knowing it to be likely that he will
thereby prevent, the distribution of that property according to law among his creditors or the
creditors of any other person, shall be punished with imprisonment of either description for a
term which may extend to 2 years, or with fine, or with both.
Guwahati High Court in Ramautar Chaukhany v. Hari Ram Todi & Anr, 1982 CrLJ 2266, held
that an offence under this section has following essential ingredients:
(i) That the accused removed, concealed or delivered the property or that he transferred, it
caused it to be transferred to someone.
(ii) That such a transfer was without adequate consideration.
(iii) That the accused thereby intended to prevent or knew that he was thereby likely to prevent
the distribution of that property according to law among his creditors or creditors of
another person.
(iv) That he acted dishonestly and fraudulently.
This section specifically refers to frauds connected with insolvency. The offence under it
consists in a dishonest disposition of property with intent to cause wrongful loss to the
creditors. It applies to movable as well as immovable properties. In view of this section, the
property of a debtor cannot be distributed according to law except after the provisions of the
relevant enactments have been complied with.
Que. No. 50] Write a short note on: Dishonestly preventing debt being available for
creditors
Ans.: Dishonestly or fraudulently preventing debt being available for creditors [Section 422]:
Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to any
other person from being made available according to law for payment of his debts or the debts
of such other person, shall be punished with imprisonment of either description for a term
which may extend to 2 years, or with fine, or with both.
This section, like the preceding Section 421, is intended to prevent the defrauding of creditors
by masking property.
The expression ‘debt’ has not been defined in the IPC or in the General Clauses Act, 1897 but
there are judicial pronouncements on the same. In Commissioner of Wealth Tax v G.D. Naidu,
AIR 1966 Mad 74, it was held that the essential requisites of debt are – (1) ascertained or
ascertainable, (2) an absolute liability, in present or future and (3) an obligation which has
already accrued and is subsisting. All debts are liabilities but all liabilities are not debt.
The Supreme Court in Mangoo Singh v. Election Tribunal, AIR 1957 SC 871, has laid down that
the word ‘demand’ ordinarily means something more than what is due; it means something
which has been demanded, called for or asked for, but the meaning of the word must take
colour from the context and so ‘demand’ may also mean arrears or dues.

Que. No. 51] Write a short note on: Fraudulent conveyances and transfers
Ans.: Dishonest or fraudulent execution of deed of transfer containing false statement of

consideration [Section 423]: Whoever dishonestly or fraudulently signs, executes or becomes a
party to any deed or instrument which purports to transfer or subject to any charge on
property, or any interest therein, and which contains any false statement relating to the
consideration for such transfer or charge, or relating to the person or persons for whose use or
benefit it is really intended to operate, shall be punished with imprisonment of either
description for a term which may extend to 2 years, or with fine, or with both.
This section deals with fraudulent and fictitious conveyances and transfers. The essential
ingredient of an offence u/s 423 is that the sale deed or a deed subjecting an immovable
property to a charge must contain a false statement relating to the consideration or relating to
the person for whose use or benefit it is intended to operate.
Though dishonest execution of a benami deed is covered under this section, the section stands
superseded by the Prohibition of Benami Properties Transactions Act, 1988 because the latter
covers a wider field, encompassing the field covered by this section.
Que. No. 52] Write a short note on: Fraudulent concealment of property
Ans.: Dishonest or fraudulent removal or concealment of property [Section 424]: Whoever

dishonestly or fraudulently conceals or removes any property of himself or any other person, or
dishonestly or fraudulently assists in the concealment or removal thereof, or dishonestly
releases any demand or claim to which he is entitled, shall be punished with imprisonment of
either description for a term which may extend to 2 years, or with fine, or with both.
The essential ingredients to bring an offence u/s 424 are as follows:
(i) There is a property.
(ii) That the accused concealed or removed the said property or assisted in concealing or
removing the said property.
(iii) That the said concealment or removal or assisting in removal or concealment was done
dishonestly or fraudulently.
Forgery
Que. No. 53] What do you understand by the term ‘forgery’? Also state the punishment
for the offence of forgery as provide under the Indian Penal Code, 1860?
Write a short note on: Forgery
Ans.: Forgery means fraudulently making or alteration of any record, deed, writing, instrument,
register, stamp etc. to the prejudice of another person’s right. It is a false making of written
instrument for the purpose of fraud or deceit; including every alteration of or addition to a true
instrument.
Forgery [Section 463]: Whoever makes any false documents or false electronic record or part of a
document with intent to cause damage or injury, to the public or to any person, or to support
any claim or title, or to cause any person to part with property, or to enter into any express or
implied contract, or with intent to commit fraud or that fraud may be committed, commits
forgery.
Punishment for forgery [Section 465]: Whoever commits forgery shall be punished with
imprisonment of either description for a term which may extend to 2 years, or with fine, or with
both.
The essential elements of forgery u/s 463 are as under:
1. The document or electronic record or the part of it must be false in fact.
2. It must have been made dishonestly or fraudulently.
3. The making of false document or electronic record should be with intent to –
(a) cause danger or injury to public or any person or

(b) support any claim or title or

(c) cause any person to part with property or
(d) enter into any express or implied contract or
(e) commit fraud or that fraud may be committed.
Que. No. 54] State with reason whether alteration of document amounts to offence of
forgery as defined in Section 463 of the Indian Penal Code, 1860?
Ans.: The Supreme Court in Ramchandran v. State, AIR 2010 SC 1922, has held that to
constitute an offence of forgery document must be made with dishonest or fraudulent intention.
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not
otherwise. The Supreme Court in Parminder Kaur v. State of UP, has held that mere alteration
of document does not make it a forged document. Alteration must be made for some gain or for
some objective.
Que. No. 55] Rani, the accused has been charged for the offence of forgery on the ground
that she submitted false certificate declaring that she had experience of working as
teacher in school. However, on enquiry it was found that the school is not a recognized
school. State with reason, whether Rani have committed any offence under the Indian
Penal Code, 1860?
Ans.: In Balbir Kaur v. State of Punjab, 2011 CrLJ 1546 (P&H), the allegation against the
accused was that she furnished a certificate to get employment as ETT teacher which was
found to be bogus and forged in as much as school was not recognized for period given in
certificate. However the certificate did not anywhere say that school was recognized. It was held
that merely indicating teaching experience of the accused, per se, cannot be said to indicate
wrong facts. So the direction which was issued for prosecution is liable to be quashed.
Defamation
Question 56] What do you understand by defamation?

Distinguish between: Libel & Slander CS (Executive) – Dec 2012 (4 Marks)
Defamation may be classified into following two heads:
(1) Libel: It is a representation made in some permanent form, e.g. written words, pictures,
caricatures, cinema films, effigy, statue and recorded words. In a cinema films both the
photographic part of it and the speech which is synchronized with it amount to tort.
(2) Slander: It is the publication of a defamatory statement in a transient form, statement of
Defamation is tort as well as a crime in India.
In India both libel and slander are treated as a crime. Section 499 of the IPC recognizes both
libel and slander as an offence. However, torts in criminal law are stricter than in law of torts.
Que. No. 57] Explain the law relating to defamation with suitable examples.
What are the exceptions to defamation?
Ans.: Defamation [Section 499]: Whoever, by words either spoken or intended to be read, or by
signs or by visible representations, makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter expected, to defame that
person.

Explanation 1: It may amount to defamation to impute anything to a deceased person, if the

imputation would harm the reputation of that person if living, and is intended to be hurtful to
the feelings of his family or other near relatives.
Explanation 2: It may amount to defamation to make an imputation concerning a company or
an association or collection of persons as such.
Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount
to defamation.
Explanation 4: No imputation is said to harm a person’s reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or intellectual character of
that person, or lowers the character of that person in respect of his caste or of his calling, or
lowers the credit of that person, or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgraceful.
(a) A says – "Z is an honest man; he never stole B’s watch"; intending to cause it to be believed that Z
did steal B’s watch. This is defamation, unless it falls within one of the exceptions.
(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that Z stole B’s
watch. This is defamation unless it falls within one of the exceptions.
(c) A draws a picture of Z running away with B’s watch, intending it to be believed that Z stole B’s
watch. This is defamation, unless it falls within one of the exceptions.
1st Exception: Imputation of truth which public good requires to be made or published: It is not
defamation to impute anything which is true concerning any person, if it be for the public good
that the imputation should be made or published. Whether or not it is for the public good is a
question of fact.
2nd Exception: Public conduct of public servants: It is not defamation to express in a good faith
any opinion whatever respecting the conduct of a public servant in the discharge of his public
functions, or respecting his character, so far as his character appears in that conduct, and no
further.
3rd Exception: Conduct of any person touching any public question: It is not defamation to
express in good faith any opinion whatever respecting the conduct of any person touching any
public question, and respecting his character, so far as his character appears in that conduct,
and no further.
Illustration (As given in the Indian Penal Code, 1860)
It is not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in
petitioning Government on a public question, in signing a requisition for a meeting on a public question,
in presiding or attending a such meeting, in forming or joining any society which invites the public
support, in voting or canvassing for a particular candidate for any situation in the efficient discharges of
the duties of which the public is interested.
4th Exception: Publication of reports of proceedings of Courts: It is not defamation to publish
substantially true report of the proceedings of a Court of Justice, or of the result of any such
proceedings.
Explanation: A Justice of the Peace or other officer holding an inquiry in open Court preliminary
to a trial in a Court of Justice, is a Court within the meaning of the above section.
5th Exception: Merits of case decided in Court or conduct of witnesses and others concerned: It is
not defamation to express in good faith any opinion whatever respecting the merits of any case,
civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any
person as a party, witness or agent, in any such case, or respecting the character of such
person, as far as his character appears in that conduct, and no further.
Illustrations (As given in Indian Penal Code, 1860)
(a) A says – "I think Z’s evidence on that trial is so contradictory that he must be stupid or dishonest".
A is within this exception if he says this is in good faith, in as much as the opinion which he
expresses respects Z’s character as it appears in Z’s conduct as a witness, and no further.
(b) But if A says – "I do not believe what Z asserted at that trial because I know him to be a man
without veracity"; A is not within this exception, in as much as the opinion which he express of Z’s
character, is an opinion not founded on Z’s conduct as a witness.

6th Exception: Merits of public performance: It is not defamation to express in good faith any
opinion respecting the merits of any performance which its author has submitted to the
judgment of the public, or respecting the character of the author so far as his character
appears in such performance, and no further.
Explanation: A performance may be substituted to the judgment of the public expressly or by
acts on the part of the author which imply such submission to the judgment of the public.
(a) A person who publishes a book, submits that book to the judgment of the public.
(b) A person who makes a speech in public, submits that speech to the judgment of the public.
(c) An actor or singer who appears on a public stage, submits his acting or signing in the judgment of
the public.
(d) A says of a book published by Z – "Z’s book is foolish; Z must be a weak man. Z’s book is indecent; Z
must be a man of impure mind". A is within the exception, if he says this in good faith, in as much
as the opinion which he expresses of Z respects Z’s character only so far as it appears in Z’s book,
and no further.
(e) But if A says – "I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a
libertine". A is not within this exception, in as much as the opinion which he expresses of Z’s
character is an opinion not founded on Z’s book.
7th Exception: Censure passed in good faith by person having lawful authority over another: It is
not defamation in a person having over another any authority, either conferred by law or
arising out of a lawful contract made with that other, to pass in good faith any censure on the
conduct of that other in matters to which such lawful authority relates.
A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a
department censuring in good faith those who are under his orders; a parent censuring in good faith a
child in the presence of other children; a school-master, whose authority is derived from a parent,
censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good
faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct
of such cashier as such cashier – are within the exception.
8th Exception: Accusation preferred in good faith to authorized person: It is not defamation to
prefer in good faith an accusation against any person to any of those who have lawful authority
over that person with respect to the subject-matter of accusation.
If A in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant,
to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s father – A is within this
exception.
9th Exception: Imputation made in good faith by person for protection of his or other’s interests: It
is not defamation to make an imputation on the character of another provided that the
imputation is made in good faith for the protection of the interests of the person making it, or of
any other person, or for the public good.
(a) A, a shopkeeper, says to B, who manages his business – “Sell nothing to Z unless he pays you ready
money, for I have no opinion of his honesty.” A is within the exception, if he has made this
imputation on Z in good faith for the protection of his own interests.
(b) A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character
of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.
10th Exception: Caution intended for good of person to whom conveyed or for public good: It is not
defamation to convey a caution, in good faith, to one person against another, provided that
such caution be intended for the good of the person to whom it is conveyed, or of some person
in whom that person is interested, or for the public good.
Punishment for defamation [Section 500]: Whoever defames another shall be punished with
simple imprisonment for a term which may extend to 2 years, or with fine, or with both.
Que. No. 58] A is asked who stolen B’s watch. A draws a picture of Z running away with
B’s watch. Whether A has committed offence of defamation?

The facts of the given case are similar to illustration given in Section 499 of the Indian Penal
Code, 1860. If A draws a picture of Z running away with B’s watch, intending it to be believed
that Z stole B’s watch. This is defamation, unless it falls within one of the exceptions.
Que. No. 59] A, a shopkeeper, says to B, who manages his business – “Sell nothing to Z
unless he pays you ready money, for I have no opinion of his honesty.” Z prosecutes A
for defamation. Decide.
Ans.: The facts of the given case are based on Section 499 of the Indian Penal Code, 1860 and
illustration appended 9th Exception.
It is not defamation to make an imputation on the character of another provided that the
imputation is made in good faith for the protection of the interests of the person making it. A is
within the exception, as he has made this imputation on Z in good faith for the protection of his
own interests. Thus, Z will not succeed in his case.
Que. No. 60] The accused published in his newspaper an account of an outrage on a
woman alleged to have perpetrated by two constables within the jurisdiction of certain
Thana in which four constables were stationed. The charges were not made against
particular and identifiable constables. Was the accused guilty of offence of defamation
under Section 499 of the Indian Penal Code, 1860?
Ans.: As per facts given in case, the accused published in his newspaper the outrage on a
woman within the jurisdiction of certain Thana in which four constables were stationed. The
charges were not made against particular and identifiable constables. The publication has been
made not for imputation to any person with the intention to harm or with knowledge to harm
the reputation of that person. The two constables who committed outrage are not particular
and identifiable constables. They may be any constables i.e. those who were not stationed in
that Thana or out of those who were stationed in that Thana. In Government Advocate v. Gop
Bandhu Das (1922) 1 Pat 414, a newspaper published the incident in which two constables out
of four stationed at a Thana has outraged the modesty of a woman, the accused persons were
not held guilty as it was not established that there was intention to impute particular
constables.
Que. No. 61] A was raped. B, the accused and owner of newspaper, published the story of
A. A filed a complaint against B. B filed writ petition to quash the proceedings before the
trial Court seeking the defense of first exception of Section 499 of the Indian Penal
Code, 1860. State with reason whether B can be prosecuted and punished for the offence
of defamation under the Indian Penal Code, 1860?
Ans.: The facts of the given case are similar to A.B.K. Prasad and others v. Union of India and
others, 2002 (3) ALT 332. The A.P. High Court dismissed the write petition and held that “right
to privacy and right to freedom of press have to be balanced”. Therefore, Laxman Rekha has to
be drawn somewhere in public interest. If publication of truth is in public interest it would not
be defamation, but if it has nothing to do with public interest and relates to privacy of an
individual then it would certainly de defamatory.
Keeping in view of above decision, A will succeed in his case against B.
Que. No. 62] write a short note on: Punishment for printing or selling defamatory matter
Ans.: Printing or engraving matter known to be defamatory [Section 501]: Whoever prints or
engraves any matter, knowing or having good reason to believe that such matter is defamatory

of any person, shall be punished with simple imprisonment for a term which may extend to 2
years, or with fine, or with both.
A person printing or engraving defamatory matter abets the offence of defamation and is guilty
u/s 501 of the IPC. Printing or engraving of defamatory material is not sufficient and the court
is required to be satisfied that the accused knew or had good reasons to believe that such a
matter was defamatory before holding a person guilty u/s 501. In Sankaran v. Ramkrishna
Pillai, AIR 1960 Ker 141, the defamatory matter was printed in Malayalam and the accused did
not know the language, his mens rea was absent and he was not guilty.
Sale of printed or engraved substance containing defamatory matter [Section 502]: Whoever sells
or offers for sale any printed or engraved substance containing defamatory matter, knowing
that it contains such matter, shall be punished with simple imprisonment for a term which
may extend to 2 years, or with fine, or with both.
To bring an offence u/s 502, it must be:
 That the published material was defamatory as per Section 499.
 That the published material was either printed or engraved.
 That the accused knew that such matter contained defamatory imputation.
 That the accused sold or offered for sale the defamatory matter.
General Exceptions
Que. No. 63] Explain any five general exception form criminal liability under the Indian
Penal Code, 1860.
Ans.: The Indian Penal Code, 1860 also provides for general exceptions for a person accused of
committing any offence under the Code to plead in his defense. General defences or exceptions
are contained in sections 76 to 106 of the IPC. In general exceptions to criminal liability there
will be absence of mens rea (guilty mind) on the part of the wrong-doer. If there is any general
defense of the accused in a criminal case, the burden of proving lies on him under section 105
of the Indian Evidence Act, 1872. The exceptions strictly speaking came within the following six
categories. (1) Judicial acts (2) Mistake of fact (3) Accident (4) Trifling Act (5) Consent (6)
Absence of Criminal Intention.
Mistake of fact – believing bound by law [Section 76]: Nothing is an offence, which is done by a
person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in
good faith believes himself to be, bound by law to do it.
Illustrations:
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of
the law. A has committed no offence.
(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry,
believing Z to be Y, arrests Z. A has committed no offence.
Act of Judge when acting judicially [Section 77]: Nothing is an offence which is done by a Judge
when acting judicially in the exercise of any power which is, or which in good faith he believes
to be, given to him by law.
Act done pursuant to the judgment or order of Court [Section 78]: Nothing which is done in
pursuance of, or which is warranted by the judgment or order of, a Court of Justice; if done
whilst such judgment or order remains in force, is an offence, notwithstanding the Court may
have had no jurisdiction to pass such judgment or order, provided the person doing the act in
good faith believes that the Court had such jurisdiction.
Mistake of fact – justified by law [Section 79]: Nothing is an offence which is done by any person
who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of
law in good faith, believes himself to be justified by law, in doing it.
Illustration:
A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment
exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the
fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it
may turn out that Z was acting in self-defence.

Accident in doing a lawful act [Section 80]: Nothing is an offence, which is done by accident or
misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a
lawful manner by lawful means and with proper care and caution.
The protection under this section will apply only if the act is a result of an accident or a
misfortune.
The word ‘accident’ is derived from the Latin word ‘accidere’ signifying ‘fall upon, befall,
happen, chamnce. It rather means an unintentional, an unexpected act. Thus, injuries caused
due to accidents in games and sports are all covered by this section.
Illustration:
A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no
want of proper caution on the part of A, his act is excusable and not an offence.
Act likely to cause harm, but done without criminal intent, and to prevent other harm [Section 81]:
Any act done by anyone without any criminal intent for saving or preventing harm to third
person or property in good faith is no offence.
Explanation: It is question of fact in such a case whether the harm to be prevented or avoided
was of such a nature and so imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.
Illustrations:
(a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds
himself in such a position that, before he can stop his vessel, he must inevitably run down to boat
B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that,
by changing his course, he must incur risk of running down a boat C with only two passengers on
board, which he may possibly clear. Here, if A alters his course without any intention to run down
the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B,
he is not guilty of an offence, though he may run down the boat C by doing an act which he knew
was likely to cause that effect, if it be found as a matter of fact that the danger which he intended
to avoid was such as to excuse him in incurring the risk of running down the boat C.
(b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does
this with the intention in good faith of saving human life or property. Here, if it be found that the
harm to be prevented was of such a nature and so imminent as to excuse A’s act. A is not guilty of
the offence.
Act of a child under 7 years of age [Section 82]: Nothing is an offence which is done by a child
under 7 years of age.
Act of a child above seven and under twelve of immature understanding [Section 83]: Nothing is an
offence which is done by a child above 7 years of age and under 12, who has not attained
sufficient maturity of understanding to judge of the nature and consequences of his conduct on
that occasion.
Act of a person of unsound mind [Section 84]: Nothing is an offence which is done by a person
who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the
nature of the act, or that he is doing what is either wrong or contrary to law.
Act of a person incapable of judgment by reason of intoxication caused against his will [Section 85]:
Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of
intoxication, incapable of knowing the nature of the act, or that he is doing what is either
wrong, or contrary to law; provided that the thing which intoxicated him was administered to
him without his knowledge or against his will.
Offence requiring a particular intent or knowledge committed by one who is intoxicated [Section
86]: In cases where an act done is not an offence unless done with a particular knowledge or
intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if
he had the same knowledge as he would have had if he had not been intoxicated, unless the
thing which intoxicated him was administered to him without his knowledge or against his will.
Act not intended and not known to be likely to cause death or grievous hurt, done by consent
[Section 87]: Nothing which is not intended to cause death, or grievous hurt, and which is not
known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any
harm which it may cause, or be intended by the doer to cause, to any person, above 18 years of
age, who has given consent, whether express or implied, to suffer that harm; or by reason of

any harm which it may be known by the doer to be likely to cause to any such person who has
consented to take the risk of that harm.
This section is based on the principle of ‘volenti-non-fit injuria’ which means he who consents
suffers no injury. The policy behind this section is that everyone is the best judge of his own
interest and no one consents to that which he considers injurious to his own interest.
Illustration:
A and Z agrees to fence with each other for amusement. This agreement implies the consent of each to
suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while
playing fairly, hurts Z, A commits no offence.
Act not intended to cause death, done by consent in good faith for person’s benefit [Section 88]:
Nothing which is not intended to cause death, is an offence by reason of any harm which it may
cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to
any person for whose benefit it is done in good faith, and who has given a consent, whether
express or implied, to suffer that harm, or to take the risk of that harm.
Illustration:
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a
painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit
performs that operation on Z, with Z’s consent. A has committed no offence.
Act done in good faith for benefit of child or insane person, by or by consent of guardian [Section
89]: Nothing which is done in good faith for the benefit of a person under twelve years of age, or
of unsound mind, by or by consent, either express or implied, of the guardian or other person
having lawful charge of that person, is an offence by reason of any harm which it may cause, or
be intended by the doer to cause or be known by the doer to be likely to cause to that person.
However, above exception shall not extend in following cases:
- Intentional causing of death or attempting to cause death.
- Doing of anything which the person doing it knows to be likely to cause death, for any
purpose other than the preventing of death or grievous hurt, or the curing of any grievous
disease or infirmity.
- Voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be
for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or
infirmity.
- To the abetment of any offence.
Illustration:
A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone by a
surgeon, knowing it to be likely that the operation will cause the child’s death, but not intending to
cause the child’s death. A is within the exception in as much as his object was the cure of the child.
Consent known to be given under fear or misconception [Section 90]: A consent is not such a
consent as it intended by any section of this Code, if the consent is given by a person under
fear of injury, or under a misconception of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in consequence of such fear or misconception; or
Consent of insane person: If the consent is given by a person who, from unsoundness of mind,
or intoxication, is unable to understand the nature and consequence of that to which he gives
his consent; or
Consent of child: Unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.
Exclusion of acts which are offences independently of harm caused [Section 91]: The exceptions in
sections 87, 88 & 89 do not extend to acts which are offences independently of any harm which
they may cause, or be intended to cause, or be known to be likely to cause, to the person giving
the consent, or on whose behalf the consent is given.
Illustration:
Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an
offence independently of any harm which it may cause or be intended to cause to the woman.
Therefore, it is not an offence "by reason of such harm" and the consent of the woman or of her
guardian to the causing of such miscarriage does not justify the act.

Act done in good faith for benefit of a person without consent [Section 92]: Nothing is an offence
by reason of any harm which it may cause to a person for whose benefit it is done in good faith,
even without that person’s consent, if the circumstances are such that it is impossible for that
person to signify consent, or if that person is incapable of giving consent, and has no guardian
or other person in lawful charge of him from whom it is possible to obtain consent in time for
the thing to be done with benefit.
However, above exception shall not extend in following cases:
- Intentional causing of death or attempting to cause death.
- Doing of anything which the person doing it knows to be likely to cause death, for any
purpose other than the preventing of death or grievous hurt, or the curing of any grievous
disease or infirmity.
- Voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be
for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or
infirmity.
- To the abetment of any offence.
Illustrations:
(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A,
not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his
power of judging for himself. A has committed no offence.
(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not
intending to kill Z, and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound. A has
committed no offence.
(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be
immediately performed. There is no time to apply to the child’s guardian. A performs the operation
in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed
no offence.
(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child
from the housetop, knowing it to be likely that the fall may kill the child, but not intending to kill
the child, and intending, in good faith, the child’s benefit. Here, even if the child is killed by the fall,
A has committed no offence.
Explanation: Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 & 92.
Communication made in good faith [Section 93]: No communication made in good faith is an
offence by reason of any harm to the person to whom it is made, if it is made for the benefit of
that person.
Illustration:
A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies
in consequence of the shock. A has committed no offence, though he knew it to be likely that the
communication might cause the patient’s death.
Act to which a person is compelled by threats [Section 94]: Except murder, and offences against
the State punishable with death, nothing is an offence which is done by a person who is
compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension
that instant death to that person will otherwise be the consequence. For this defense to be valid
the person acting under threat should not have himself put under such a situation.
Explanation 1: A person who, of his own accord, or by reason of a threat of being beaten, joins a
gang of dacoits, knowing their character, is not entitled to the benefit of this exception, on the
ground of his having been compelled by his associates to do anything that is an offence by law.
Explanation 2: A person seized by a gang of dacoits, and forced, by threat of instant death, to
do a thing which is an offence by law; for example, a smith compelled to take his tools and to
force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this
exception.
Act causing slight harm [Section 95]: Nothing is an offence by reason that it causes, or that it is
intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight
that no person of ordinary sense and temper would complain of such harm.
Que. No. 64] Anuragh has licensed gun. He goes in the jungle for shooting birds. He

shoots at owl sitting on a bush with intent to kill it but kills Rohan who was behind the
bush. Whether Anuragh is punishable for his act of killing Rohan under the Indian Penal
Code, 1860?
Ans.: As per Section 80 of the Indian Penal Code, 1860, nothing is an offence, which is done by
accident or misfortune, and without any criminal intention or knowledge in the doing of a
lawful act in a lawful manner by lawful means and with proper care and caution.
Thus, in the act of Anuragh there is no want of proper caution, his act is excusable. Form the
facts of the case it can be observed that Anuragh accidently killed Rohan without any criminal
intention and hence he is not liable for any punishment under the Indian Penal Code, 1860.
Que. No. 65] Ramesh under influence of madness attempt to kill Varun. What offence, if
any, is committed by Ramesh under the Indian Penal Code, 1860?
Ans.: As per Section 84 of the Indian Penal Code, 1860, nothing is an offence which is done by a
person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing
the nature of the act, or that he is doing what is either wrong or contrary to law.
The time when offence committed is important because madness must be present at that time.
Ramesh under influence of madness attempts to kill Varun. He is protected by the exception
provided in Section 84 of the Indian Penal Code, 1860 and he has not committed any offence.
Que. No. 66] Dr. Shreeram Nene is well known surgeon in his locality. Bandu comes to
his hospital for check-up. Dr. Shreeram Nene in good faith, communicates to Bandu his
opinion that he cannot live more than 6 months. Bandu dies in consequence of the
shock. Whether any offence is committed by Dr. Shreeram Nene under the Indian Penal
Code, 1860?
Ans.: As per Section 93 of the Indian Penal Code, 1860, no communication made in good faith is
an offence by reason of any harm to the person to whom it is made, if it is made for the benefit
of that person.
Dr. Shreeram Nene, in good faith, communicates to a patient his opinion that he cannot live.
The patient dies in consequence of the shock. Dr. Shreeram Nene has committed no offence,
though he knew it to be likely that the communication might cause the patient’s death.
* * * * * * * * * * *

CODE OF CRIMINAL PROCEDURES, 1973

Points to be 1) Important terms-
studied 1. Offence
2. Mens Rea
3. Complaint
4. Inquiry, investigation, trial
5. Bailable offence
6. Non- bailable offence
7. Cognizable offence, non- cognizable offence
8. Warrant, summons
2) Power of court to pass sentence
3) Cases in which a police officer may arrest a person without order from
magistrate and without warrant
4) Manner in which an arrest is to be made
5) Security for peace and good behaviour
6) Maintenance of public order and tranquillity
7) Preventive action of police
8) Information to police (FIR) and power to investigate
9) Limitation period for taking cognizance of an offence
10) Anticipatory bail
11) Summary trial
1) Scope of The Act came into force on 1 st April 1974. It extends to whole of India except
the Act Jammu & Kashmir.
2) Offence – Any act or omission made punishable by any law for the time being in force and
sec 2(n) includes any act in respect of which a complaint may be made U/S 20 of Cattle
Trespass Act, 1871 where -
1. Any person does a particular act which is specifically punishable under any
duly passed law.
2.Omit to do a particular thing or procedure or act
3) Mens Rea 1) Unless the act is done with a bad intention (Mens Rea), it will not be criminally
punishable.
2) It is derived from Latin maxim “acts non facit reum nisi mens sit rea”, the
literal meaning of which is “the act does not make a person guilty unless the
mind is also guilty”.
3) Thus Mens Rea is an essential ingredient in every criminal offence.
4) Complaint 1) It means allegation made orally or in writing to a Magistrate, with a view to
– sec 2(d) taking his action under the code, that some person, whether known or
unknown, has committed an offence.
2) Complaint does not include a police report but if a report is made by police
officer in a case which discloses after investigation the commission of non-
cognizable offence (i.e. a person can be arrested only with warrant), it is deemed
to be a complaint and the police officer is complainant.
3) Only allegation made orally or in writing would constitute a complaint if
following conditions are satisfied-
1. It must be made to Magistrate and not to a Judge.
2. It must be made with a view that a Magistrate may take action on it.
3. Such action must be under this code.
4 It must allege the commission of an offence. : Mens Rea – Offence- Complaint-
Inquiry- Investigation – Trial - Cognizable/Non cognizable- Bailable/Non
bailable-HC
5) Inquiry, Inquiry – sec 2(g)
investigation, 1. It begins with the interrogation.
trial 2. It may be conducted by the police officer or authorised officer or magistrate
himself or by court of law.
Investigation – sec 2(h)
1. All the proceedings by the police officer for the collection of evidence or by any
other person authorised by magistrate is investigation.
2. It may be conducted by police officer or an authorised officer.
Trial –
1. When a charge sheet is framed against a person then the magistrate himself
or session court or HC may take the case for trial.
2. If no prima facie evidence is found in the inquiry/ investigation, the complaint
is dismissed and hence no trial is conducted in the court.
6) Bailable 1) It is an offence shown in the 1 st schedule to CRPC.
offence 2) It is less serious and is generally non- cognizable in nature (i.e. no arrest
without warrant= arrest with warrant).
3) It is punishable with imprisonment < 3 yrs or fine only.
4) Only police officer is authorised to arrest with arrest with warrant.
E.g. Rioting, bribery.
7) Non- 1) An offence specified other than 1 st schedule is non- bailable.
bailable 2) It is more serious and cognizable in nature.
offence 3) It is punishable with death penalty OR life imprisonment ≥ 3 yrs.
4) Police officer is authorised to arrest without warrant.
E.g. Murder, counter fetching coins.
8) Summons 1) Offences which are generally less serious in nature, summons is issue against
accused.
2) If complainant does not appear in the court then the accused may be released
by the magistrate.
3) On pleading guilty, a summons case can be converted into warrant case.
Notes-
1. It shall be served by officer of court/ public servant.
2. It must be in writing (+) issued in duplicate (+) signed by the presiding officer
of the court with seal.
9) Warrant 1) A case of an offence punishable with death penalty, life imprisonment or
imprisonment exceeding 2 yrs is a case of warrant.
2) It is an order to the police officer or any other authorised person to arrest the
person.
3) If a person disobeys a summons or wilfully avoid receipt of summons then
warrant is justified.
4) If complainant does not appear in the court, Magistrate can not discharge the
accused.
Notes-
1) Warrant must be in writing (+) name & designation of the executor and the
accused (+) offence charged (+) signed by presiding officer and must be sealed.
2) Person accused shall be presented before the court within 24 hrs of his arrest
excluding the journey time from place of arrest to magistrate court.
10) 1) Summons on a corporation may be served on the secretary/ local manager/
Miscellaneous principal officer.
provisions of 2) If a person is not found then it may be served in duplicate with an adult male
summons member of the family duly acknowledged (i.e. not a servant).
3) If summons can not be served then it must be affixed in duplicate on the
conspicuous part of the house where the person ordinarily resides.
Notes-
1) In case of cognizable offence case, summons would be enough if only one
offence is cognizable and other non- cognizable to treat it as cognizable case.
2) A search warrant can be issued against a person when the court believes that
such person will not produce document or things which court finds necessary
for any inquiry or trial.
11) Cases in 1. Any cognizable offence
which police 2. For house breaking
officer may 3. For obstructing police officer on duty
arrest person 4. A deserter of armed forces
without 5. When a non- cognizable offence is committed in presence of a police officer
warrant or but the person committing the offence refuses to give his name and address OR
without an the given name and address is false
order from 6. Police officer of another police station can arrest a person without warrant
Magistrate only when it is a cognizable offence.
Note-
Any person can arrest a person who has committed a cognizable offence in his
presence.
12) Arrest by Magistrate can arrest-
Magistrate 1. Any person who has committed an offence in his presence.
2. Nearest Magistrate can order custody for max 15 days.
3. Magistrate of original jurisdiction can order custody > 15 days ≤ 60 days.
4. Arrest can be made by actually touching or confining the body of persons.
Notes-
1) Person arrested to be taken before Magistrate/ police officer within 24 hrs.
2) Nearest Magistrate can order custody of maximum 15 days.
3) Magistrate can remand custody for maximum 60 days.
13) Power of Following are the powers of court to pass sentence -
court to pass Magistrate of 2 nd class Imprisonment up to 1 yr OR
sentence Fine up to Rs. 5,000 OR
Both
Magistrate of 1 st class Imprisonment

up to 3 yrs OR Chief
Fine up to Rs. 10,000 OR
Both Metropolitan
Magistrate
Chief Judicial Magistrate Imprisonment up to 7 yrs
Assistant Session Judge Imprisonment up to 10 yrs
Session Judge/
Additional Session Judge Can pass any sentence authorised by law
authorised by law however death
sentence has to be confirmed by HC
HC Can pass any sentence authorised by

law
Notes -
1) Chief Metropolitan Magistrate shall have all the powers of Chief Judicial
Magistrate, Magistrate of 1 st class and Magistrate of 2 nd class.
2) Sec 28 laid down powers of HC, Session Judge or Additional Session Judge,
Assistant Session Judge to pass sentence.
3) Sec 29 laid down powers of Chief Judicial Magistrate, Magistrate of 1 st class
and Magistrate of 2 nd class.
4) Sec 30: The court of a Magistrate may award additional imprisonment in
default of payment of fine. However, the term of imprisonment shall not exceed
1/4th of the term of imprisonment is competent to levy as punishment for the
offence.
14) Security Security may be ordered from any person convicted of any offence or is likely to
for peace & breach peace or disturb public tranquillity by the following courts –
good 1) Session court/ Magistrate of 1 st class – shall order to execute a bond as given
behaviour above up to 3 yrs from the expiry of sentence.
2) By executive Magistrate for keeping peace as given above for the period of 1
yr from the date of order.
15) 1) Any unlawful assembly or assembly of at least 5 persons which is likely cause
Maintenance disturbance of public peace, the executive Magistrate or officer in charge of the
of public police station or sub- inspector may disperse such assembly by force (sec 129)
order & OR
tranquillity If can not be done so, the armed forces shall be given power to disperse the
(i.e. peace) assembly (sec 130)
2) Public nuisances can be prevented by the Magistrate if –
(1) Unlawful obstruction of any public place e.g. riots in Ganesh pandal
(2) Any trade/ occupation injurious to the health of community e.g. drugs
(3) Construction of any building or disposal of any substance which is highly
inflammable e.g. mine
(4) Building, tent, structure near a public place e.g. no tent up to 2 kms of Taj
Mahal
(5) Dangerous animal requiring destroying, confining or disposal e.g. rabid dog.
Note-
In urgent cases of nuisance or apprehended danger (something wrong), an ex-
parte order may be passed against a person abstaining him from the certain act
for at least 2 months but can be extended up to 6 months by the SG in case of
danger to public property.
3) Every police officer may intervene for preventing a cognizable offence.OR
He may report the same to his superior authority or such officer whose duty is
to prevent the same.
16) FIR (First 1) It is given in writing or orally to a police officer by any person.
Information 2) It shall be signed by the person giving the information (not compulsory).
Report) 3) If the police officer refuses to record such information –
The aggrieved person may send the information in writing by post to the
Superintendent of Police OR
The aggrieved person may make a complaint of such offence before the
Magistrate.
Superintendant of Police on being satisfied that the offence is cognizable either
investigates case himself or directs his subordinate to investigate.
Information as to non- cognizable cases and investigation of such cases –
1) FIR given to police officer for a non- cognizable case can not be investigated
without the order of Magistrate.
2) In case of two or more offences of which at least one is cognizable, the case
shall be deemed as cognizable case.
Notes-
1)If the police officer based on the FIR has a reason to suspect commission of
an offence –
He shall immediately send the report of the same through superior officer to
police to a Magistrate.
2) It is the duty of Magistrate to call the complainant to produce all his witnesses
for inquiry purpose (Magistrate asks the complainant to produce all the grounds
of the complaint and if person lodging the case (complainant) has witnesses as
it can not be added once the case stands in the court).
17) As per sec 438, except otherwise provided, following are the limitation period for
Limitation offence –
period for 1) If the offence is punishable with fine only – 6 months
taking 2) If the offence is punishable with imprisonment up to 1 year – 1 Year
cognizance 3) If the offence is punishable with imprisonment > 1 year but ≤ 3 yrs – 3 yrs.
As per sec 439, period of limitation commences –
a) On the day of offence OR On 1 st day when such offence comes to the
knowledge of person or police officer [OR]
c) When identity of offender is not known, the 1 st day on which the identity is
known
“Whichever is earlier”.
Notes-
1) Following period shall be excluded from the limitation period –
1. Day from which such period commences
2. Defect in the jurisdiction
3. Period of injunction
4. Period when notice was sent
5. Time required for obtaining consent/ sanction of govt for filing a suit (in
exceptional cases)
6. Period when the offender has been outside India or was absconded.
7. If the limitation period expires when the court is closed then the suit may be
filed on the day the court reopens.
2) In case of continuing offence, fresh limitation period begins to run at every
moment of the time during which the offence continues (sec 472).
3) Court may accept application after the limitation period also if there is a
sufficient cause for the delay or it is in the interest of justice.
18) 1) When court directs release of a person prior to his arrest, it is known as
Anticipatory Anticipatory Bail. If any person has a reason to believe that he may accuse of
bail having committed a non-bailable offence.
2) Application for Anticipatory Bail shall be filed in case of non- bailable offence
only to HC or session court.
3) Bail will be granted by the court if the person promises-
a) To make himself available for interrogation
b) Not to induce, threaten directly or indirectly any of the parties to the case
c) Shall not leave India without the permission of court.
19) Summary 1) Purpose-
trial- sec 260 Speedy disposal of simple cases not punishable with imprisonment > 2 yrs. E.g.
to sec 265 vehicle, mangalsutra theft
2) Offences that can be dealt with summary trial –
a) Not punishable with death penalty/ life imprisonment, imprisonment > 2 yrs
b) Theft value ≤ Rs. 2,000
c) Suit filed against a person provoking breach of peace
d) Above offences assisted by any person or person attempted to commit any of
the above offence
e) Offence under Cattle Trespass Act, 1871
3) Penalty & fine –
Imprisonment up to 3 months or any fine as the court may deem fit (no limit for
fine).
Q No. 1. Explain the term ‘offence’ under the Code of Criminal Procedure, 1973.
Q No. 2. “Mens rea is generally necessary for liability in criminal law.” Discuss.
Q No. 3. A alleges that B has committed some offences. The majority of them are non-cognizable.
The station house officer of the police station wants to treat the case as cognizable. Can this be
challenged?
Q No. 4. Explain the terms ‘investigation’, & ‘inquiry’ and ‘trial’ in a criminal case under the Code
of Criminal Procedure, 1973.
Q No. 5. Distinguish between: Investigation & Inquiry
Q No. 6. Distinguish between: Pleader and Public Prosecutor
Q No. 7. Distinguish between: Bailable offence & non-bailable offence.
Q No. 8. Distinguish between: Cognizable Offence & Non-Cognizable Offence
Q No. 9. Distinguish between: Warrant Case & Summons Case
Q No. 10. Write a note on: Power of court to pass sentence.
Discuss the powers of various courts under the Code of Criminal Procedure, 1973.
Q No. 11. Angad is charged for murder of Binod. The charge sheet is filed in the Court of Chief
Judicial Magistrate, who passed an order of sentence of imprisonment for life. Angad engages
you as an advocate. Advise the course of action to Angad giving reasons.
Q No. 12. A Magistrate of the First Class passes a sentence of imprisonment for a term of 3 years
with a fine of `10,000, and in case of failure to pay the fine, to serve an additional imprisonment
for another 1 year. The convict feels aggrieved by the sentence. Can he prefer an appeal against
the judgment?
Q No. 13. A Magistrate of the First Class passes a sentence of imprisonment for a term of 3 years
with a fine of `10,000 and in lieu of non-payment thereof, an additional imprisonment for
another 1 year. The convict feels aggrieved by the sentence.
(i) Has the convict any right to appeal against this sentence?
(ii) Will the situation change, if the sentence is passed by the Court of a Chief Judicial Magistrate?
Give reasons in support of your answer.
Q No. 14. Describe various categories of cases in which a police officer may arrest a person
without an order from a magistrate and without warrant.
Q No. 15. A requisition was received by the sub-inspector of a police station from another police
station to arrest Sameer in connection with the commission of a non-cognizable offence. Can the
sub-inspector arrest Sameer?
Q No. 16. Distinguish between: Summons & Warrants
Q No. 17. An Executive Magistrate receives information that Chanchal is likely to do a wrongful
act that may probably occasion a breach of peace or disturb the public tranquility. Whether he
can require Chanchal to show cause why he should not be ordered to execute a bond for keeping
the peace for a period of 3 years.
Q No. 18. A is awarded punishment of rigorous imprisonment for 2 years by a Judicial
Magistrate. A is also asked to execute security bond for keeping peace for 2 years. After
undergoing this sentence. A submits an application of prayer for his release on the ground that
he has already suffered imprisonment for 2 years. Will A succeed?
Q No. 19. A tenant had abandoned the disputed house before his death but possession of the said
house was not handed over to the landlord. The heirs of the deceased tenant had not paid rent
but they had locked the house. The Sub-Divisional Magistrate issued an order under Section
144 of the Code of Criminal Procedure, 1973 to unlock the house. The heirs of the deceased
tenant resist the order of the Sub-Divisional Magistrate. Will they succeed? What will be your
answer, if the said house is in a dilapidated condition and is likely to endanger human life,
health or safety?
Q No. 20. The Sub-Divisional Magistrate at the instance of officer in-charge of police station
passed an order under Section 144 of the Code of Criminal Procedure, 1973 by which
petitioner’s Puja Committee and others were prohibited from taking out immersion procession of
statue of Goddess Durga and passing in front of two Mosques in the village concerned playing
music on Vijayadashmi day. Members of Hindu community agitate the order as such order
amounts to interference in their legal exercise of customary and religious right. Whether the
order passed by the Sub Divisional Magistrate is valid? Give reasons in support of your answer.
Q No. 21. What preventive measures can taken by the police under the Code of Criminal
Procedure, 1973?
Q No. 22. A police officer has come to know that certain persons sitting in a house equipped with
arms are planning to commit a dacoity. The police officer approaches the house and arrests all
the persons without getting any order from the Magistrate and without any warrant. Examine
the validity of their arrest.
Q No. 23. Sumesh, a sub-inspector of police, comes to know from a secret source that 5 persons,
staying in a house with deadly weapons in Kanpur, are planning to commit murder of Gabbar, a
resident of a nearby house. Sumesh apprehends that those 5 persons will commit the crime at
any moment. Sumesh, sub-inspector of police, goes to that house where those 5 persons were
staying and arrests them along with weapons in their possession, without any warrant or order
from the Magistrate. Is the arrest of all the 5 persons valid? Give reasons.
Q No. 24. Distinguish between: Complaint & FIR
Q No. 25. Ajit went to a police station to lodge a First Information Report (FIR) against Birsa for
cognizable offence but the officer in-charge of police station refuses to record the FIR. What is
your advice to Ajit for further action?
Q No. 26. Mr. Aanand goes to the police station and informs about the commission of a
cognizable offence. What would be the duties of a police officer?
Q No. 27. A first information report is lodged against Krook for committing one cognizable and
three non-cognizable offences. Can the police conduct investigation in respect of all the four
offences without an order from the Magistrate?
Q No. 28. A ‘First Information Report’ (FIR) was lodged against Murari. It was alleged that he
committed five offence – four non-cognizable and one cognizable. The police registered the case
and started investigation. Can Murari challenge the validity of the investigation?
Q No. 29. An information is given to the in-charge of police station against Rahul, a small trader,
that he has committed a non-cognizable offence of fraudulent use of false weights and measures.
The in-charge of police station, after entering the substance of the information in the Daily Diary
kept at the police station, commences investigation without the order of the Magistrate. Rahul
objects to this action of the police. Will the objection of Rahul be sustained?
Q No. 30. A files a complaint against B in respect of an offence triable by a Court of Sessions. For
the purpose of inquiry, the Magistrate directed the complainant to produce all his witnesses. A
submitted an application that he may be permitted to produce only important witnesses at the
stage on inquiry. Whether the magistrate should allow the application.
Q No. 31. Discuss in brief, the provisions relating to limitation for taking cognizance as given in
the Code Criminal Procedure, 1973?
Q No. 32. X commits an offence by causing injury to Y, punishable under Section 323 of the
Indian Penal Code, for a term of 1 year or with a fine of `1,000. Y makes a complaint to the Court
of the Metropolitan Magistrate against X after 10 months of the commission of the offence. Can
the said Court take cognizance of that offence?
Q No. 33. A commits an offence punishable with imprisonment which may extend to 3 years in
2012. Soon thereafter, A went to America. On his return in 2018, prosecution was started
against A in respect of the above offence. A raised an objection that the Court cannot take
cognizance of the offence because a period of more than 3 years has elapsed after the
commission of the offence. Will the Court allow this objection?
Q No. 34. What is ‘anticipatory bail’? Which Courts can grant anticipatory bail?
Q No. 35. Raman moves an application for anticipatory bail before a Judicial Magistrate of First
Class of the area, for bailable offence. Can A get anticipatory bail?
Q No. 36. Discuss the procedure for summary trial under the Code of Criminal Procedure, 1973
Q No. 37. A commits the offence of theft by stealing property of B worth `5,000. Can this offence
be tried summarily by the Chief Judicial Magistrate?
Q No. 38. Sohan is tried summarily by the Chief Judicial Magistrate on the charge of committing
theft and is sentenced to undergo rigorous imprisonment for 6 months. Sohan wants to
challenge this decision. Can he do so? Discuss.
Code of Criminal Procedure, 1973 10.10
Chapter
10 Code of Criminal Procedure, 1973
Introduction: The Code of Criminal Procedure, 1973 creates the necessary machinery for
apprehending the criminals, investigating the criminal cases, their trials before the Criminal
Courts and imposition of proper punishment on the guilty person.
The Code enumerates the hierarchy of criminal courts in which different offences can be tried
and then it spells out the limits of sentences which such Courts are authorized to pass.
The Code of Criminal Procedure, 1973 is applicable to all criminal proceedings. It came into force
on 1st April, 1974. The Act extends to whole of India except State of Jammu & Kashmir.
Definitions
Question 1] Explain the term ‘offence’ under the Code of Criminal Procedure, 1973.
Ans.: Offence [Section 2(n)]: Offence means any act or omission made punishable by any law for
the time being in force and includes any act in respect of which a compliant may made under
Section 20 of Cattle Trespass Act, 1871.
The proper analysis of definition derives that if any person does a particular act which is
specifically punishable under any duly passed law it is said to be an offence. Further, if any
person omits to do a particular thing or procedure or act, then also he had said to be
committed an offence.
In second category compliant made u/s 20 of Cattle Trespass Act, 1871, forms an offence.
However, the term is more elaborately defined in Section 40 of the Indian Penal Code, 1860
which states that "offence" denotes a thing made punishable by the Code.
An offence is what the legislature classes as punishable.
Mens Rea (bad intention or guilt) is an essential ingredient in every offence.
Question 2] “Mens rea is generally necessary for liability in criminal law.” Discuss.
Ans.: Mens rea (bad intention/guilty mind) is an essential ingredient in every offence. Thus,
unless an act is done with a bad intention, it will not be criminally punishable. It is derived
from Latin maxim ‘acts non facit reum nisi mens sit rea’, the literal meaning of which is ‘the act
does not make a person guilty unless the mind is also guilty’. Thus mens rea is an essential
ingredient in every criminal offence.
Question 3] Define the term ‘Bailable Offence’ as per the Code of Criminal Procedure,
1973.
Ans.: Bailable Offence [Section 2(a)]: Bailable offence means an offence which is –
- shown as bailable in the First Schedule or
- made bailable by any other law for the time being in force.
Non-bailable offence means any offence other than bailable offence.
Bail means the release of the accused from the custody of the officers of law and entrusting him to the
private custody of persons who are sureties to produce the accused to answer the charge at the
stipulated time or date.

Question 4] Define the term ‘Cognizable Offence’ as per Code of Criminal Procedure,
1973.
Ans.: Cognizable Offence [Section 2(c)]: Cognizable offence means an offence for which a police
officer may arrest without warrant –
- In accordance with the First Schedule or
- Under any other law for the time being in force.
Non-Cognizable Offence [Section 2(l)]: Non-cognizable offence means an offence for which a police
officer has authority to arrest with warrant.
Question 5] A alleges that B has committed some offences. The majority of them are
non-cognizable. The station house officer of the police station wants to treat the case as
cognizable. Can this be challenged? CS (Inter) – Dec 1990 (5 Marks)
Ans.: In order to be a cognizable case it would be enough if one or more (not ordinarily all of the
offences) are cognizable offence. As facts given in case majority offences are non-cognizable;
that means other offences are cognizable. Hence such case will be treated as cognizable case.
Thus, the station house officer’s stand is correct and cannot be challenged.
Question 6] Write a short note on: Complaint
Ans.: Complaint [Section 2(d)]: Complaint means any allegation made orally or in writing to a
Magistrate, with a view to taking his action under the Code, that some person, whether known
or unknown, has committed an offence. However, a complaint does not include a police report.
Explanation: If a report is made by a police officer in a case which discloses after investigation
the commission of a non-cognizable offence, the same is deemed to be a complaint and the
police officer by whom such a report is made is deemed to be the complaint.
A complaint in a criminal case is what a plaint is in a civil case.
Only allegation made orally or in writing would constitute a complaint, if the following four
conditions are satisfied.
 It must be made to Magistrate (and not to a Judge)
 It must be made with a view that a Magistrate may take action on it.
 Such action must be under this code.
 It must allege the commission of an offence.
There is no particular format of a complaint. A petition addressed to the Magistrate containing an
allegation that an offence has been committed, and ending with a prayer that the culprit be suitably
dealt with is a complaint. [Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC 705]
Question 7] Explain the terms ‘investigation’, & ‘inquiry’ and ‘trial’ in a criminal case
under the Code of Criminal Procedure, 1973. CS (Inter) – Dec 2003 (6 Marks)
Ans.: Investigation [Section 2(h)]: Investigation includes all the proceedings for the collection of
evidence, conducted by a police officer or by any person who is authorized by a Magistrate in
this behalf.
Inquiry [Section 2(g)]: Inquiry means every inquiry, other than a trial conducted by a Magistrate
or a Court.
The three terms ‘Investigation’, ‘Inquiry’, and ‘Trial’ ordinarily denote three different stages of a
criminal trial.
(1) The first stage is reached when a police officer investigate into a case. If he forms an opinion
that an offence has been committed. He sends the case to a Magistrate.
(2) In second stage, the Magistrate inquires into the case. If prima facie no case is made out, he
dismisses the complaint or discharges the accused. If the Magistrate is of a contrary
opinion, he frames a charge, and calls upon the accused to plead to the same.
(3) Final stage is reached when the charge is framed. The Magistrate may then try the case
himself, or commit it for trial to the Court of Session or the High Court, as the case may be.

Question 8] Distinguish between: Investigation & Inquiry

Ans.: Following are main points of distinction between investigation & inquiry.
Points Investigation Inquiry
By whom Investigation includes all the proceedings Inquiry means every inquiry, other than a
for the collection of evidence, conducted by trial conducted by a Magistrate or a Court.
a police officer or by any person who is
authorized by a magistrate in this behalf.
What is Investigation represents an attempt to Inquiry beings with interrogation.
done collect of evidence.
Aim The main aim of Investigation is to collect An inquiry aims at determining the truth
evidence. or falsify of certain facts.
Judicial/ An investigation is never judicial. An inquiry may be judicial or non-judicial.
non-judicial
Question 9] Define the term ‘judicial proceeding’ as per the Code of Criminal Procedure,
1973.
Ans.: Judicial Proceeding [Section 2(i)]: Judicial proceeding includes any proceeding in the
course of which evidence is or may be legally taken on oath.
Question 10] Distinguish between: Pleader and Public Prosecutor

Ans.: Pleader [Section 2 (q)]: With reference to any proceedings in any Court, it means a person
authorized by or under any law for the time being in force, to practice in such Court and
includes any other person appointed with the permission of the Court to act in such
proceeding.
It is an inclusive definition and a non-legal person appointed with the permission of the Court
will also be included.
Public Prosecutor [Section 2 (u)]: A public prosecutor means any person appointed u/s 24, and
includes any person acting under the directions of a Public Prosecutor.
Public prosecutor, though an executive officer is, in a larger sense, also an officer of the Court
and he is bound to assist the Court with his fair views and fair exercise of his functions.
Question 11] Define the terms ‘Summons Case’ & ‘Warrant Case’ as per the Code of
Criminal Procedure, 1973.
Ans.: Summons Case [Section 2(w)]: Summons-case means a case relating to an offence, and not
being a warrant-case.
Warrant Case [Section 2(x)]: Warrant-case means a case relating to an offence punishable with –
- death,
- imprisonment for life or
- imprisonment for a term exceeding 2 years.
Question 12] Distinguish between: Bailable offence & non-bailable offence.

CS (Inter) – Dec 1991 (5 Marks), CS (Executive) – June 2010 (4 Marks)
Ans.: Following are the main points of difference between bailable & non-bailable offence:
Points Bailable Offence Non-bailable Offence
Meaning A bailable offence is an offence which is A non-bailable offence means offence other
shown as bailable in First Schedule to the than bailable offence.

Code or which is made bailable by any

other law.
Example The First Schedule to the Code of Criminal The examples of non-bailable offence are:
Procedure gives a list of bailable offense, - Murder,
as for instance: - Culpable homicide,
- Rioting, - Counter feting coins etc.
- Being a member of an un-lawful
assembly,
- Bribery so on.
Seriousness Bailable offences are less serious. Non-bailable offences are more serious.
Cognizable/ Bailable offences are generally non- Non-bailable offences are generally
Non- cognizable. cognizable.
Cognizable
IPC If an offence which is punishable with A Non-Bailable offence is one which is
imprisonment for less than 3 years or punishable with a death penalty or life
with fine only, it is bailable. imprisonment for 3 years or more.
Arrest Police officer is authorized to arrest with Police officer is authorized arrest without
warrant. warrant.
Question 13] Distinguish between: Cognizable Offence & Non-Cognizable Offence

Ans.: Following are the main points of difference between cognizable & non-cognizable offences:
Points Non-cognizable offence Cognizable offence
Meaning Non-cognizable offence means an offence Cognizable offence means an offence for
for which a police officer can make arrest which a police officer may arrest without
with warrant. warrant.
Cognizable/ Non-cognizable offences are generally Cognizable offences are generally non-
Non- bailable. bailable.
Cognizable
Seriousness Non-cognizable offences are less serious. Cognizable offences are more serious.
Arrest by Police officer is authorized to arrest with Police officer is authorized arrest without
Police warrant. warrant.
Officer
Question 14] Distinguish between: Warrant Case & Summons Case

Ans.: Following are main points of difference between warrant case & summons case.
Points Warrant Case Summons Case
Meaning Warrant-case means a case relating to an Summons case means relating to an
offence punishable with offence, and not being a warrant-case.
- death,
- imprisonment for life or
- imprisonment for a term exceeding 2
years.
Framing of Charge is to be framed. No charge need be framed.
charge
Conviction After the charge is framed, if the accused Magistrate has discretion to convict an
pleads guilty, the Magistrate may Convict accused, if he pleads guilty.

him.
Discharge/ Magistrate cannot discharge the accused Accused may be released if the
release if the complainant does not appear. complainant does not appear.
Consent for With the consent of the Court, the With the permission of the Magistrate, the
withdrawn compliant can withdraw the remaining compliant can withdraw his compliant.
charges if the accused is convicted on one
or more charges.
Conversion A warrant case cannot be converted into a A summons case can be converted into a
summons case. warrant case.
Power of Courts to pass sentence
Question 15] Write a note on: Power of court to pass sentence.

Discuss the powers of various courts under the Code of Criminal Procedure, 1973.
Ans.: Following are the powers of Court to pass sentence:

Section Court/Magistrate Sentence that can be passed
Section 28 High Court Can pass any sentence authorized by law.
Session Judge or Can pass any sentence authorized by law.
Additional Session Judge However death sentence has to be confirmed by High Court.
Assistant Session Judge Can pass sentence for term up to 10 years imprisonment.
Section 29 Chief Judicial Magistrate Can pass sentence for term up to 7 years imprisonment.
Magistrate of First Class  Can pass sentence for term up to 3 years imprisonment or
 Fine up to `10,000 or
 Both
Magistrate of Second Class  Can pass sentence for term up to 1 year imprisonment or
 Both
Chief Metropolitan Shall have all the powers of Chief Judicial Magistrate,
Magistrate Magistrate of First Class and Magistrate of Second Class.
Question 16] Angad is charged for murder of Binod. The charge sheet is filed in the
Court of Chief Judicial Magistrate, who passed an order of sentence of imprisonment for
life. Angad engages you as an advocate. Advise the course of action to Angad giving
reasons. CS (Inter) – June 2008 (4 Marks)
Ans.: According to Section 29 of the Code of Criminal Procedure, 1973, Chief Judicial
Magistrate is competent to pass sentence for term up to 7 years imprisonment. Hence, Angad
can file appeal against the order of the Chief Judicial Magistrate.
Question 17] Can Magistrate award imprisonment in default of payment of fine under
the Code of Criminal Procedure, 1973?
Ans.: Sentence of imprisonment in default of fine [Section 30]: The Court of a Magistrate may
award additional imprisonment in default of payment of fine. However the term of
imprisonment shall not exceed 1/4th of the term of imprisonment which the Magistrate is
competent to inflict as punishment for the offence.
The imprisonment awarded under this section may be in addition to a substantive sentence of
imprisonment for the maximum term awardable by the Magistrate u/s 29.
Question 18] A Magistrate of the First Class passes a sentence of imprisonment for a
term of 3 years with a fine of `10,000, and in case of failure to pay the fine, to serve an

additional imprisonment for another 1 year. The convict feels aggrieved by the sentence.
Can he prefer an appeal against the judgment?
Ans.: As Section 29 of the Code of Criminal Procedure, 1973, Magistrate of 1st Class:
 Can pass sentence for term up to 3 years imprisonment or
 Both
As per Section 30 of the Code of Criminal Procedure, 1973, the Court of a Magistrate may
imprisonment shall not exceed 1/4th of the term of imprisonment which the Magistrate is
In present case, the Judicial Magistrate of the First Class can inflict sentence of imprisonment
which may extend to 3 years as punishment for the offence of theft. Therefore, the term of
additional imprisonment which can be awarded in default of payment of fine cannot be more
than 1/4th of 3 years. In other words, the term of additional imprisonment in default of
payment fine cannot exceed 9 months. [36 month × 1/4 = 9 months]
The accused is advised to challenge the validity of the sentence accordingly.
Question 19] A Magistrate of the First Class passes a sentence of imprisonment for a
term of 3 years with a fine of `10,000 and in lieu of non-payment thereof, an additional
imprisonment for another 1 year. The convict feels aggrieved by the sentence.
(i) Has the convict any right to appeal against this sentence?
(ii) Will the situation change, if the sentence is passed by the Court of a Chief Judicial
Magistrate?
Give reasons in support of your answer. CS (Inter) – Dec 2006 (5 Marks)
Ans.: As Section 29 of the Code of Criminal Procedure, 1973, Magistrate of First Class:
 Can pass sentence for term up to 3 years imprisonment or
 Both
As per Section 30 of the Code of Criminal Procedure, 1973, the Court of a Magistrate may
imprisonment shall not exceed ¼th of the term of imprisonment which the Magistrate is
Considering above provisions, answer to question are as follows:
(i) Order of Magistrate is not valid because the term of sentence in default of payment of fine
should not exceed 1/4th of 3 years, i.e. 9 months and hence appeal can be filed.
(ii) Yes, situation will change, if the sentence is passed by the Court of a Chief Judicial
Magistrate, order will be valid because the term of sentence in default of payment of fine
should not exceed 1/4th of 7 years, i.e. 21 months.
Question 20] Describe various categories of cases in which a police officer may arrest a
person without an order from a magistrate and without warrant.
Ans.: When police may arrest without warrant [Section 41]: Any police officer may without an
order from a Magistrate and without a warrant, arrest any person –
(a) Who has been concerned in any cognizable offence or against whom a reasonable
complaint has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned.
(b) Who has in possession, without any lawful excuse an implement of house-breaking.
(c) Who has been proclaimed as an offender, either under the Criminal Procedure Code or by
any order of the State Government.

(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.
(e) Who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody.
(f) Who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union.
(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.
(h) Who, being a released convict, commits a breach of any rule made u/s 356(5).
(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 cause 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 issued the
requisition.
Arrest on refusal to give name and residence [Section 42]: When any person who, in the presence
of a police officer, has committed or has been accused of committing a non-cognizable offence
(bailable offence) refuses, on demand of such officer, to give his name and residence or gives a
name or residence which such officer has reason to believe to be false, he may be arrested by
such officer in order that his name or residence may be ascertained.
Question 21] A requisition was received by the sub-inspector of a police station from
another police station to arrest Sameer in connection with the commission of a non-
cognizable offence. Can the sub-inspector arrest Sameer?
Ans.: According to Section 41 of the Code of Criminal Procedure, 1973, the police officer can
arrest a person without warrant for whose arrest a requisition is received from another police
station only when the offence in connection with which arrest is required to be made is such for
which that person can be lawfully arrested without a warrant.
In this case, arrest is required to be made in connection with a non-cognizable (i.e. bailable)
offence for which warrant is necessary. Hence, Sameer cannot be lawfully arrested without a
warrant. Therefore, the sub-inspector cannot arrest Sameer as per the requisition alone.
Question 22] Discuss in brief, the provisions relating to arrest by private persons.
Ans.: Arrest by a private person and procedure on such arrest [Section 43]: Any private person can
arrest any person who has in his presence, committed a non-bailable or cognizable offence, or
any person who is proclaimed offender.
Any person so arrested must, without unnecessary delay, be handed over to a police officer or
to the nearest police station.
If, however, there is a reason to believe that he has committed a non-cognizable (bailable)
offence, and if refuses to give hs name and address to the police officer or if he gives name and
address which appears to be false such a person is to be dealt with section 42; but if there is no
sufficient reason to believe that he has committed any offence, he shall be at once released..
Question 23] Write short notes on: Arrest by Magistrate
Ans.: Arrest by Magistrate [Section 44]: The Magistrate has power to arrest a person who has
committed an offence in his presence and commit the offender to custody.
The Magistrate has power to arrest a person for which he is competent and has also been
authorized to issue a warrant.

Question 24] Discuss briefly how arrest can be made under the provisions of the Code of
Criminal Procedure, 1973.
Ans.: Arrest how made [Section 46]: In making an arrest the police officer or other person making
the same shall actually touch or confine the body of the person to be arrested, unless there be
a submission to the custody by word or action.
If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means necessary to effect the arrest.
The Section does not give a right to cause the death of a person who is not accused of an
offence punishable with death sentence or life imprisonment.
Other important points relating to arrest:
 Person arrested is to be taken before the Magistrate or officer-in-charge of a police station
without unnecessary delay and subject to the provisions relating to bail, Article 22(2) of the
Constitution of India also provides for producing the arrested person before the Magistrate
within 24 hours.
 When a person is arrested under a warrant, he can be kept into custody for a period not
exceeding 24 hours, and before the expiry of that period he is to be produced before the
nearest Magistrate, who can order his detention for a term not exceeding 15 days, or he can
be taken to a Magistrate, under whose jurisdiction he is to be tried, and such Magistrate
can remand him to custody for a term which may exceed 15 days but not more than 60
days.
 Officers in-charge of the concerned police stations shall report to the Magistrate the cases of
all persons arrested without warrant, within the limits of their respective police stations
whether such persons have been admitted to bail or otherwise. [Section 58]
 A person arrested by a police officer shall be discharged only on his own bond or on bail or
under the special order of a Magistrate. [Section 59]
 If a person in lawful custody escapes or is rescued, the person, from whose custody he
escaped or was rescued, is empowered to pursue and arrest him in any place in India and
although the person making such arrest is not acting under a warrant and is not a police
officer having authority to arrest, nevertheless, the provisions of Section 47 are applicable
which stipulates provisions relating to search of a place entered by the person sought to be
arrested.
Summon & Warrant

Question 25] Write short notes on: Summons
Ans.: A Summons is a form of process issued by a Court, calling upon a person to appear before
Magistrate, or to produce a document or thing.
Requirements [Section 61]:
 It must be in writing.
 It must be in duplicate.
 It must be signed by the presiding officer of Court.
 It must have seal of the Court.
If any summons does not comply with all these requirements it is invalid and it can be objected
to and be disregarded by the person to whom it is addressed.
It is to be noted that a Summons should be clear and specific in its terms, as to the description
of the Court, the place, date and time at which the person Summoned is to attend.
(1) Service of summons [Section 62]: The summons shall be served by a Police Officer or by an
officer of the Court or other public servant. If so required by the Serving Officer, the person
on whom the summons is served must sign a receipt on the other copy.
(2) Service of summons on corporate bodies and societies [Section 63]: The service of summons
on a corporation may be effected by serving it on the secretary, local manager or other
principal officer of the corporation, or by letter sent by registered post, addressed to the
Chief Officer of the corporation in India, in which case the service shall be deemed to have

been effected when the letter would arrive in ordinary course of post.
Explanation: “Corporation” means an incorporated company or other body corporate and
includes a society registered under the Societies Registration Act, 1860.
(3) Service of summons when person doesn’t found [Section 64]: When the person who is
summoned is not found after due diligence, the summons may be served leaving a duplicate
thereof with an adult male member of his family residing with him, who must, if so required
give a receipt for it. However, it may be noted that a servant cannot be said to be a member
of the family for the purpose of acceptance of summons.
(4) Substituted service [Section 65]: In case the service cannot be effected by the exercise of due
diligence, the serving officer can perform substituted service by affixing one of the
duplicates to some conspicuous part of the house of homestead in which person summoned
ordinarily resides. In such a case, the Court, after making the necessary enquiries may
either declare that the summons has been properly served, or it may order fresh service of
the summons in such manner as it may consider proper.
(5) Service on Government [Section 66]: Where the person summoned is in the active service of
the Government, the Court issuing the summons shall ordinarily sent it in duplicate to the
head of the office in which such person is employed. Such head of the office shall thereupon
cause the summons to be served in the manner provided by Section 62, and shall return it
to the Court under his signature with the endorsement required by that section. Such
signature shall be evidence of due service.
Question 26] Write short note on: Warrant of arrest
Ans.: The issue of a warrant is a more drastic step than the issue of a summons. Ordinarily, a
warrant is issued only in serious cases and after a duly served summons is disobeyed or if the
accused has willfully avoided the service of summons.
A warrant is an order to a police officer or other person to arrest a person.
Requirements [Section 70]:
 It must be in writing.
 It must bear the name and designation of the person who is to execute it.
 It must give full name and description of the person to be arrested.
 It must state the offence charged.
 It must be signed by the presiding officer; and
 It must be sealed.
The Court issuing a warrant for the arrest of a person may, in its direction make an
endorsement on the warrant that if person named in warrant execute a bond with sufficient
sureties for his attendance before the Court at specified times, the officer executing the warrant
can take such a Security and release the person from custody.
Person arrested to be brought before Court without delay [Section 76]: The police officer or other
person executing the warrant of arrest shall bring the person arrested before the Court
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.
Question 27] Distinguish between: Summons & Warrants

CS (Inter) – Dec 1990 (5 Marks), Dec 1991 (5 marks)
Ans.: Following are main points of difference between summons and warrants.
Points Summons Warrants
Meaning A Summons is a form of process issued by A warrant is an order to a police officer or
a Court, calling upon a person to appear other person to arrest a person.
before Magistrate, or to produce a
document or thing.
Absconding Absconding to evade service of a Absconding to evade service of a warrant is
to evade summons is not punishable. punishable under the Indian Penal Code,

service 1860.
Substituted Substituted service is available for Substituted service is not available for
service summons. warrant.
Step The issue of a warrant is a more drastic A warrant is justified, if summon, which is
step than the issue of a summons. duly served is disobeyed or if the accused
willfully avoids service of the summons.
Question 28] What are the remedies provided under the Code of Criminal Procedure,
1973 when a warrant remains unexecuted?
Ans.: Where a warrant remains unexecuted, the Code of Criminal Procedure, 1973 provides
following two remedies:
(1) Proclamation for person absconding [Section 82]: If any Court has reason to believe (whether
after taking evidence or not) 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, such
Court may public a 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.
(2) Attachment of property of person absconding [Section 83]: The Court issuing a proclamation
u/s 82 may, for reasons to be recorded in writing, at any time after the issue of the
proclamation, order the attachment of any property, movable or immovable, or both,
belonging to the proclaimed person. The object of attaching property is not to punish him but
to compel his appearance.
Question 29] Write short note on: Search Warrant
Ans.: Sometimes it is necessary that a person should produce a document or other thing which
may be in his possession or power for the purposes of any investigation or inquiry under this
Code. This can be compelled to be produced by issuing summons [Sections 91 & 92] or a
warrant [Sections 93 to 98].
When search-warrant may be issued [Section 93]: A search warrant can be issued in the following
three cases:
(1) Where the Court has reason to believe that the person to whom a Summons or order is
addressed will not produce document or thing as required by summons or requisition.
(2) Where document or thing is not known to the Court to be in the possession of any person.
(3) Where general search or inspection is necessary.
The person to whom such warrant is directed may search or inspect in accordance with search
warrant.
A search warrant shall not be issued for searching a document, parcel or other thing in the
custody of the postal or telegraph authority by a Magistrate other than a District Magistrate or
Chief Judicial Magistrate.
Similarly, Search Warrant also cannot be issued so as to affect Sections 123 & 124 of the
Indian Evidence Act, 1872 or the Bankers Books Evidence Act, 1981.
Question 30] Write a short note on: Search for persons wrongfully confined
Ans.: Search for persons wrongfully confined [Section 97]: If any District Magistrate, Sub-
divisional Magistrate or Magistrate of the First Class has reason to believe that any person is
confined under such circumstances that the confinement amounts to an offence, he may issue
a search-warrant, and the person to whom such warrant is directed may search for the person
so confined.
The person, if found, shall be immediately taken before a Magistrate, who shall make such
order as in the circumstances of the case seems proper.
Security for peace & good behaviour

Question 31] What are the provisions under the Code of Criminal Procedure, 1973 for
keeping the peace and good behaviour?
Ans.: Security for keeping the peace: The provisions of Chapter VIII of the Criminal Procedure
Code, 1973 are aimed at persons who are a danger to the public by reason of the commission of
certain offences by them. The object of this chapter is prevention of crimes and disturbances of
public tranquility and breach of the peace.
Security for keeping the peace on conviction [Section 106(1)]: When a Court of Session or Court
of a Magistrate of First Class convicts a person of any of the specified offences or of abetting
any such offence and is of opinion that it is necessary to take security from such person for
keeping the peace, the Court may, at the time of passing sentence on such person, order him to
execute a bond, with or without sureties, for keeping the peace for such period , not exceeding
3 years, as it thinks fit.
Specified Offences [Section 106(2)]: The offences specified are as follows:
(a) Any offence punishable under Chapter VIII of the India Penal Code 1860.
(b) Any offence which consists of or includes, assault or using criminal force or committing
mischief.
(c) Any offence of criminal intimidation.
(d) Any other offence which cause, or was intended or known to be likely to cause a breach of
the peace.
If the conviction is set aside on appeal or otherwise, the bond so executed shall become void.
[Section 106(3)]
Security for keeping the peace in other cases [Section 107]: When an Executive Magistrate
receives information that any person is likely to:
- Commit a breach of peace or
- Disturb the public tranquility or
- Do any wrongful act that may probably occasion a breach of the peace, or disturb the public
tranquility
he may require such person to show cause why he should not be ordered to execute a bond for
keeping the peace for a period not exceeding 1 year as the Magistrate deem fit.
Question 32] An Executive Magistrate receives information that Chanchal is likely to do

a wrongful act that may probably occasion a breach of peace or disturb the public
tranquility. Whether he can require Chanchal to show cause why he should not be
ordered to execute a bond for keeping the peace for a period of 3 years.
Ans.: As per Section 107 of the Code of Criminal Procedure, 1973, when an Executive
Magistrate receives information that any person is likely to:
(a) Commit a breach of offence
(b) Disturb the public tranquility
(c) Do any wrongful act that may probably occasion the peace; or disturb the public tranquility
he may require such person to show cause why he should not be ordered to execute a bond for
keeping peace for a period not exceeding 1 year, as the Magistrate deem fit. In the present
problem, time-period is 3 years, as such, requisition order cannot be made.
Question 33] A is awarded punishment of rigorous imprisonment for 2 years by a

Judicial Magistrate. A is also asked to execute security bond for keeping peace for 2
years. After undergoing this sentence. A submits an application of prayer for his release
on the ground that he has already suffered imprisonment for 2 years. Will A succeed?
Ans.: Commencement of period for which security is required [Section 119]: If any person, in
respect of whom an order requiring security is made u/s 106 or 117, is at the time such order

is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such
security is required shall commence on the expiration of such sentence.
In other cases such period shall commence on the date of such order unless the Magistrate, for
sufficient reason, fixes a later date.
As per facts given in case, the period of security shall commence on the day the sentence
expires and hence A will not succeed.
Maintenance of public order and tranquility
Question 34] What are the provisions of the Code of Criminal Procedure, 1973 for
‘dispersal of assembly’?
Ans.: Dispersal of assembly by use of civil force [Section 129]: Any Executive Magistrate or office
in-charge of a police station or any other officer not below the rank of sub-inspector may
command any unlawful assembly or any assembly of 5 or more persons likely to cause a
disturbance of the public peace, to disperse and it shall be thereupon the duty of the members
of such assembly to disperse accordingly.
If any such assembly does not disperse necessary steps can be taken to disperse such
assembly by force.
Use of armed forces to disperse assembly [Section 130]: If any such assembly cannot be otherwise
dispersed, the Executive Magistrate of the highest rank who is present may cause it to be
dispersed by the armed forces and to arrest and confine such persons in order to disperse the
assembly or to have them punished.
Protection against prosecution for acts done u/s 129 or 130 [Section 132]: No prosecution shall be
instituted against any persons for any act purporting to be done u/s 129 or 130 in any criminal
Court except with the sanction of Central Government, if the person is an officer or member of
the armed forces or with the sanction of State Government in any other case.
Question 35] What are the provisions of the Code of Criminal Procedure, 1973 relating to
‘public nuisances’?
Ans.: Conditional order for removal of nuisance [Section 133]: The following public nuisances
which can be proceeded against:
(1) The unlawful obstruction or nuisance should be removed from any public place or from any
way, river or channel which is or may be lawfully used by the public; or
(2) Carrying on any trade or occupation, or keeping of any goods or merchandise, injurious to
the health of the community; or
(3) The construction of any building or the disposal of any substance, as is likely to cause
conflagration or explosion; etc.
(4) The building, tent or structure near a public place.
(5) The dangerous animal requiring destroying, confining or disposal.
For initiating such prevention the Magistrate should keep in mind that he is acting purely in
the public interest. For the applicability of Clause (1), the public must have the right of way
which is being obstructed.
No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Power to issue order in urgent cases of nuisance or apprehended danger [Section 144]: Where in
the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive
Magistrate specially empowered by the State Government, there is sufficient ground and
immediate prevention or speedy remedy is desirable, in such cases the Magistrate may by a
written order 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 of
injury to any person lawfully employed, or danger to human life, health or safety or a
disturbance of the public tranquility, 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. An order under this Section can remain in force for two months,
and may be extended further for a period not exceeding 6 months by the State Government if it
considers necessary.
Affray = An instance of group fighting in a public place that disturbs the peace.
Question 36] Some persons are carrying trade of auctioning of vegetables in a private
house. The persons who brought vegetables for sale kept their carts in public road where
they caused obstruction to traffic. The noise caused by auctioning caused discomfort to
the person living in the locality. An order was passed under section 133 of the Code of
Criminal Procedure, 1973 restraining auctions of vegetables in their private house. Is
order justified? Answer giving reasons.
Ans.: The given case is based on Section 133 of the Code of Criminal Procedure, 1973. As per
this section Magistrate can pass appropriate order for removal of nuisance.
The facts of the given case are similar to Ram Avatar v State of U. P., AIR 1962 SC 1794 in
which Supreme Court held that keeping of carts on a road in front of shop was not obstruction.
As regards the noise caused by auctioning of vegetables which caused discomfort to the
persons living in locality, the order of Magistrate restraining auctions of vegetables was not
valid. In a trade like auctioning of vegetables being carried on for the well being of the
community, some amount of noise had to be borne by the public.
Thus, order was passed by the Magistrate u/s 133 of the Code of Criminal Procedure, 1973
restraining auctions of vegetables in their private house is not valid.
Question 37] A temple is located in City X. Large number of pilgrims are visiting to
temple. A Magistrate passed an order under Section 144 of the Code of Criminal
Procedure, 1973 to widen and heighten the doorway of a temple with a view to prevent
the dangers arising from overcrowding. Is order justified? Answer giving reasons.
Ans.: As per Section 144 of the Code of Criminal Procedure, 1973, Magistrate can issue order if
there is sufficient ground for immediate prevention or speedy remedy.
In the given case temple is visited by a large number of pilgrims. The Magistrate with a view to
prevent the dangers arising from overcrowding passed an order to widen and heighten the
doorway of a temple is correct and as per the provisions of the Section 144 of the Code of
Criminal Procedure, 1973 and therefore the order of Magistrate is valid.
Question 38] A tenant had abandoned the disputed house before his death but
possession of the said house was not handed over to the landlord. The heirs of the
deceased tenant had not paid rent but they had locked the house. The Sub-Divisional
Magistrate issued an order under Section 144 of the Code of Criminal Procedure, 1973
to unlock the house. The heirs of the deceased tenant resist the order of the Sub-
Divisional Magistrate. Will they succeed? What will be your answer, if the said house is
in a dilapidated condition and is likely to endanger human life, health or safety?
there is sufficient ground for immediate prevention or speedy remedy. Magistrate may direct
any person to abstain from a certain act, to prevent, obstruction, annoyance of injury or danger
to human life, health or safety or a disturbance of the public tranquility, or an affray.
Hence, in this case the Sub-Divisional Magistrate can pass order only if the house is in such a
dilapidated condition as to be potential danger to human life, and not otherwise. The heirs will
succeed in resisting the order only if the house is not in danger to public.
Question 39] The Sub-Divisional Magistrate at the instance of officer in-charge of police

station passed an order under Section 144 of the Code of Criminal Procedure, 1973 by
which petitioner’s Puja Committee and others were prohibited from taking out
immersion procession of statue of Goddess Durga and passing in front of two Mosques in
the village concerned playing music on Vijayadashmi day. Members of Hindu community
agitate the order as such order amounts to interference in their legal exercise of
customary and religious right. Whether the order passed by the Sub Divisional
Magistrate is valid? Give reasons in support of your answer.
there is sufficient ground for immediate prevention or speedy remedy. Magistrate may direct
any person to abstain from a certain act, to prevent, obstruction, annoyance of injury or danger
to human life, health or safety or a disturbance of the public tranquility, or an affray.
In this case, The Sub-Divisional Magistrate issues an order by which petitioner’s Puja
Committee and others were prohibited from taking out immersion procession of statue of
Goddess Durga and passing in front of two mosques in the village. This order is valid as it is an
imminent danger to the peace and tranquility. Moverover, taking out the procession itself is not
to be barred; it should be ordered that the procession should not cause any harm or
disturbance to public, especially public coming to the mosques.
Preventive actions of police
Question 40] What preventive measures can taken by the police under the Code of
Criminal Procedure, 1973? CS (Inter) – June 1994 (7 Marks)
Ans.: Sections 149 to 152 of the Code of Criminal Procedure, 1973 deals with the powers of the
police to take preventive action.
Police to prevent cognizable offence [Section 149]: Every police officer may interpose for the
purpose of prevention of any cognizable offence (i.e. non-bailable).
Information of design to commit cognizable offence [Section 150]: Whenever a police officer
receives information about any design to commit any cognizable offence, he should immediately
pass on the same to his superior authority or any officer whose duty is to prevent the same.
Arrest to prevent the commission of cognizable offence [Section 151]: A police officer can arrest
any person designing to commit cognizance offence without a warrant. Any one so arrested
cannot be detained beyond 24 hours, unless specifically authorized for a longer period of
detention under any law.
Prevention of injury to public property [Section 152]: A police officer, on his own, can interpose to
prevent any injury to public property when it is attempted in his view.
Question 41] Baman comes to know that Anil intends to shoot Charan next day in a
public garden at 8 a.m. Thereupon Baman informs police about it. The following day Anil
is arrested by the police in the same public garden a few minutes before 8 a.m. and on
being searched a full loaded pistol is found in his possession. Discuss the legality of
arrest of Anil by the police.
Ans.: As per Section 149 of the Code of Criminal Procedure, 1973, every police officer may
interpose for the purpose of prevention of any cognizable offence (i.e. non-bailable).
Section 151 empowers a police officer to prevent the commission of any cognizable offence (i.e.
non-bailable).
As per facts of the given case, the police have information that Anil intends to shoot Charan in
a public garden at 8 a.m. Police officer arrested Anil in the garden few minutes before the 8
a.m. a full loaded pistol is also recovered from Anil. It is evident that information received by
the police officer was reliable and the action of arrest without order from Magistrate or without
warrant is legal.

Question 42] A police officer has come to know that certain persons sitting in a house
equipped with arms are planning to commit a dacoity. The police officer approaches the
house and arrests all the persons without getting any order from the Magistrate and
without any warrant. Examine the validity of their arrest.
Ans.: Normally no person can be arrested without order of the Court or warrant. However,
Section 151 of the Code of Criminal Procedure, 1973 empowers a police officer to prevent the
commission of any cognizable offence (i.e. non-bailable).
A police officer can arrest any person designing to commit cognizance offence without a warrant
if it appears to him that the commission of offence cannot be otherwise prevented. The person
so arrested by the police officer cannot be detained in custody for a period exceeding 24 hours.
In view of the provisions of Section 151 the arrest of all the persons planning for dacoity is
valid.
Question 43] Sumesh, a sub-inspector of police, comes to know from a secret source that
5 persons, staying in a house with deadly weapons in Kanpur, are planning to commit
murder of Gabbar, a resident of a nearby house. Sumesh apprehends that those 5
persons will commit the crime at any moment. Sumesh, sub-inspector of police, goes to
that house where those 5 persons were staying and arrests them along with weapons in
their possession, without any warrant or order from the Magistrate. Is the arrest of all
the 5 persons valid? Give reasons. CS (Inter) – Dec 2006 (5 Marks)
Ans.: Normally no person can be arrested without order of the Court or warrant. However,
Section 151 of the Code of Criminal Procedure, 1973 empowers a police officer to prevent the
commission of any cognizable offence (i.e. non-bailable).
A police officer can arrest any person designing to commit cognizance offence without a warrant
if it appears to him that the commission of offence cannot be otherwise prevented. The person
so arrested by the police officer cannot be detained in custody for a period exceeding 24 hours.
Hence, act of sub-inspector of police to arrest 5 persons designing to commit cognizable offence
is valid if he had intimated his superior or the person whose duty it was to take cognizance of
such offence.
Information to police & their power to investigate
Question 44] What is First Information Report (FIR)? What is its object & importance at
the trial?
Ans.: Section 154 deals with what is commonly known as a First Information Report (FIR).
First Information Report means the information given to office-in-charge of a police station
relating to the commission is cognizable offence and which is entered in the book which is to be
kept by such officer. FIR is information given to police which sets criminal law in motion.
 If information is orally given then officer-in-charge must reduce it in writing.
 Information should be signed by the person giving it. But it should be noted that failure to
observe the signing procedure does not make the information in admissible which is
reduced into writing.
 If the officer-in-charge of the police station refuses to record such information, the aggrieved
person may send the same by post to the superintendent of police.
Object of FIR: The object is to obtain early information of alleged criminal activity and to record
the circumstances before there is time for them to be forgotten or embellished.
Importance: The FIR can be put in evidence when information is examined.
Refusal of FIR by Police Officer [Section 154(3)]: Any person aggrieved by a refusal on the part of
an officer in charge 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. If

Superintendent satisfies that such information discloses the commission of a cognizable

offence, he shall either investigate the case himself or direct an investigation to be made by any
police officer subordinate to him.
Secondly, aggrieved person may make a complaint of such offence before the Magistrate u/s
200.
Question 45] Distinguish between: Complaint & FIR CS (Inter) – Dec 2000 (4 Marks)
Ans.: Following are the main points of difference between complaint and FIR:
Points Complaint First Information Report
Meaning A compliant is an allegation made orally or The first information is given in writing or
in writing to a Magistrate. orally to a police officer.
Cognizance The Magistrate can take cognizance of an The Magistrate cannot take cognizance of
offence on a complaint. an offence on FIR.
Who can A compliant can be given only by a person Any person can give the first information.
authorized under law under certain
circumstances.
Question 46] Ajit went to a police station to lodge a First Information Report (FIR)
against Birsa for cognizable offence but the officer in-charge of police station refuses to
record the FIR. What is your advice to Ajit for further action?
Ans.: As per Section 154(3) of the Code of Criminal Procedure, 1973, any person aggrieved by a
refusal on the part of an officer in-charge 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.
Thus, Ajit is advised to send information or the substance of information relating to cognizable
offence in writing and by post to the Superintendent of Police concerned. If Superintendent
satisfies that such information discloses the commission of a cognizable offence, he shall either
investigate the case himself or direct an investigation to be made by any police officer
subordinate to him in the prescribed manner. It will also be treated as FIR.
Secondly, Ajit may make a complaint of such offence before the Magistrate u/s 200.
Question 47] Mr. Aanand goes to the police station and informs about the commission of
a cognizable offence. What would be the duties of a police officer?
CS (Inter) – June 1991, June 1994 (5 Marks)
Ans.: Sections 154 and 157, deals with the duties of a police officer with regard to information
about the commission of a cognizable offence.
Information in cognizable cases [Section 154]:
(1) Every information relating to the commission of a cognizable offence given shall be reduced
to writing by officer in charge of a police station. It shall be read over to the informants. It
shall be signed by the person giving it. The substance of such information shall be entered
in a prescribe book.
(2) A copy of the information shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge 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. If Superintendent satisfies that such information
discloses the commission of a cognizable offence, he shall either investigate the case
himself or direct an investigation to be made by any police officer subordinate to him in the
prescribed manner.
Information as to non-cognizable cases and investigation of such cases [Section 155]:

(1) When information is given to police officer of the commission of a non-cognizable offence,
he shall enter the substance of the information in a book and refer the informant to the
Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate
having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the
investigation (except the power to arrest without warrant) as an officer in charge of a police
station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case
shall be deemed to be a cognizable case.
Police officer's power to investigate cognizable cases [Section 156]:
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate
any cognizable case.
(2) No proceeding of a police officer in any such case shall at any stage be called in question
on the ground that the case was one, which such officer was not empowered under this
section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above
mentioned.
Procedure for investigations [Section 157]: If, from information received or otherwise, an officer
in charge of a police station has reason to suspect the commission of an offence, he shall
forthwith send a report of the same to a Magistrate and shall proceed in person, or shall depute
one of his subordinate officers, to proceed, to the spot, to investigate circumstances of the case,
and, if necessary to take measures for the discovery of the offender.
Report how submitted [Section 158]:
(1) Every report sent to a Magistrate shall be submitted through superior officer of police.
(2) Such superior officer may give instructions to the officer and shall after recording
instructions on report, transmit the same without delay to the Magistrate.
Question 48] A first information report is lodged against Krook for committing one
cognizable and three non-cognizable offences. Can the police conduct investigation in
respect of all the four offences without an order from the Magistrate?
A ‘First Information Report’ (FIR) was lodged against Murari. It was alleged that he
committed five offence – four non-cognizable and one cognizable. The police registered
the case and started investigation. Can Murari challenge the validity of the
investigation? CS (Inter) – June 1996 (5 Marks)
Ans.: Where a case relating to two or more offence of which at least one is cognizable, the case
shall be deemed to be a cognizable case, irrespective of the fact that the other offences are non-
cognizable. Accordingly, the referred case will be treated as a cognizable case; and hence, the
police can conduct investigation in respect of all the offences without the order of a Magistrate.
Question 49] An information is given to the in-charge of police station against Rahul, a
small trader, that he has committed a non-cognizable offence of fraudulent use of false
weights and measures. The in-charge of police station, after entering the substance of
the information in the Daily Diary kept at the police station, commences investigation
without the order of the Magistrate. Rahul objects to this action of the police. Will the
objection of Rahul be sustained? CS (Inter) – June 2004 (6 Marks)
Ans.: As per Section 155(1) of the Code of Criminal Procedure, 1973, when information is given
to police officer of the commission of a non-cognizable offence, he shall enter the substance of
the information in a book and refer the informant to the Magistrate. Further as per Section
155(2), no police officer shall investigate a non-cognizable case without the order of a
Magistrate. Hence, objection of Rahul will sustain.

Power of Magistrate
Question 50] Write a short note on: Cognizance of offences by Magistrates
Ans.: Cognizance of offences by Magistrates [Section 190]: Any Magistrate of the First Class, and
any Magistrate of the Second Class specially empowered in this behalf, may take cognizance of
any offence –
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.
The Chief Judicial Magistrate may empower any Magistrate of the second class to take
cognizance of such offences as are within his competence to inquire into or try.
Question 51] Write a short note on: Cognizance of offences by Courts of Session
Ans.: Cognizance of offences by Courts of Session [Section 193]: Except as otherwise expressly
provided by this Code or by any other law for the time being in force, no Court of Session shall
take cognizance of any offence as a Court of original jurisdiction unless the case has been
committed to it by a Magistrate under the Code.
Question 52] A files a complaint against B in respect of an offence triable by a Court of

Sessions. For the purpose of inquiry, the Magistrate directed the complainant to
produce all his witnesses. A submitted an application that he may be permitted to
produce only important witnesses at the stage on inquiry. Whether the magistrate
should allow the application. CS (Inter) – Dec 1996 (6 Marks)
Ans.: As per Section 202(2) of the Code of Criminal Procedure, 1973, where a complaint made to
a Magistrate is in respect of an offence triable by the Court of Sessions, it is obligatory for the
Magistrate to call upon the complainant to produce all his witnesses. Hence, the Magistrate
should not allow the application of complainant to produce only important witnesses at the
stage on inquiry.
Limitation period for taking cognizance
Question 53] Discuss in brief, the provisions relating to limitation for taking cognizance
as given in the Code Criminal Procedure, 1973?
Ans.: Bar to taking cognizance after lapse of the period of limitation [Section 468]: Except as
otherwise specifically provided no Court shall take cognizance of an offence after the expiry of
the period of limitation as set out below:
Period of
Types of offence
limitation
If the offence is punishable with fine only. 6 months
If the offence is punishable with imprisonment up to 1 year. 1 year
If the offence is punishable with imprisonment exceeding 1 year but not
3 years
exceeding 3 years.
Commencement of the period of limitation [Section 469]: In relating to any offender, the period of
limitation commences:
(a) On the date of the offence, or
(b) When the commission of the offence was not known to the aggrieved person or to any
police officer, on the first day on which such offence comes to the knowledge of such
person or to any police officer, whichever is earlier; or

(c) When it is not known by whom the offence was committed on the first day on which the
identity of the offender is known to the aggrieved person or the police officer investigating
into the offence, whichever is earlier.
Exclusion of time in certain cases [Section 470 & 471]: The following will be excluded in
computing the period of limitation:
(1) The day from which such period has to be computed.
(2) Due to defect of jurisdiction.
(3) Where the institution of the prosecution has been stayed the period of the continuances of
the injunction or order.
(4) Where notice of prosecution for the offence has been given, the period of such notice.
(5) Where under any law the previous consent or sanction of the Government or any other
authority is required for the institution of the prosecution, the time required for obtaining
such consent or sanction.
(6) In time during which the offender has been absent from India, or any territory outside
India which is under the administration of the Central Government.
(7) The time during which the offender has avoided arrest by absconding or concealing
himself.
(8) Where the period of limitation expires on a day when the Court is closed, the cognizance
may be taken on the day on which the Court reopens.
Continuing Offences [Section 472]: In the case of a continuing offence, a fresh period of
limitation begins to run at every moment during which the offence continues.
Example of continuing offence: Non-payment of employer’s contribution before due date is a
continuing offence so a fresh period of limitation shall begin to run at every moment of time
during which the offence continues.
Extension of period of limitation [Section 473]: Despite all the above provisions, any Court can
take cognizance of an offence even after the expiry of the period of limitation, if it is satisfied on
the facts of and in the circumstances of the case –
(a) that the delay has been properly explained or
(b) that it is necessary to do so in the interest of justice.
Question 54] X commits an offence by causing injury to Y, punishable under Section 323
of the Indian Penal Code, for a term of 1 year or with a fine of `1,000. Y makes a
complaint to the Court of the Metropolitan Magistrate against X after 10 months of the
commission of the offence. Can the said Court take cognizance of that offence?
Ans.: The Court can take cognizance of the offence under Section 468, which provides limitation
for taking cognizance of certain offences by the Courts. The period of limitation shall be:
(a) 6 months, if the offence is punishable with fine only.
(b) 1 year, if the offence is punishable with imprisonment for a term not exceeding 1 year.
(c) 3 years, if the offence is punishable with imprisonment for a term exceeding 1 year but not
exceeding 3 years.
In the given case, the offence is punishable with imprisonment not exceeding 1 year. It comes
under category (b) above, and therefore, the limitation period prescribed for taking cognizance
of the offence is 1 year. As Y made complaint after 10 months to the Court, which is well within
the limitation period, the Court will take cognizance of the offence.
Question 55] A commits an offence punishable with imprisonment which may extend to
3 years in 2012. Soon thereafter, A went to America. On his return in 2018, prosecution
was started against A in respect of the above offence. A raised an objection that the
Court cannot take cognizance of the offence because a period of more than 3 years has
elapsed after the commission of the offence. Will the Court allow this objection?

Ans.: In the given problem, A has committed an offence punishable with imprisonment up to 3
years. Hence, cognizance can be taken before expiry of a period of 3 years. But in computing
the period of limitation the time during which the offender has been out of India or from any
territory outside India shall be excluded.
Hence, the Magistrate can taken cognizance because, the span of time from 2012 to 2018 will
not be included in computation to period of limitation, as during this period A was absent from
India.
Maintain
Anticipatory Bail & Summary Trials
Question 56] What is ‘anticipatory bail’? Which Courts can grant anticipatory bail?
Ans.: Section 438 of the Code of Criminal Procedure, 1973 contains a provision enabling Courts
to direct the release of a person on bail prior to his arrest, which is commonly known as
anticipatory bail.
When granting anticipatory bail, the Court must strike a balance, so that, on the one hand, a
person is protected from unnecessary humiliation, and on the other, the faith of the public and
of the society in the administration of justice is not shaken.
Direction for grant of bail to person apprehending arrest [Section 438]: When any person has
reason to believe that he may be arrested on an accusation of having committed a non-bailable
offence, he may apply to the High Court or to the Court of Session for anticipatory bail. If such
a bail is granted, it may include such conditions as the Court thinks fit, including the following.
(1) A condition that the person should make himself available for interrogation by a police
officer as and when required.
(2) A condition that the person shall not, directly or indirectly, make 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 any police officer.
(3) A condition that the person shall not leave India without the previous permission of the
Court.
(4) Such other condition imposed u/s 437(3) as if the bail were granted under that section.
Question 57] Raman moves an application for anticipatory bail before a Judicial
Magistrate of First Class of the area, for bailable offence. Can A get anticipatory bail?
Ans.: As per Section 438 of the Code of Criminal Procedure, 1973, anticipatory bail can be
granted in a non-bailable offence only by the High Court or the Court of Session. Judicial
Magistrate of First Class has got no power to grant anticipatory bail. Further anticipatory bail
cannot be granted for bailable offence.
Question 58] Distinguish between: Bail & Anticipatory Bail
Ans.: Following are the main points of difference between bail and anticipatory bail:
Points Bail Anticipatory Bail
Meaning Bail means release of arrested person on Anticipatory bail means release of a person
certain conditions and on furnishing of on bail prior to his arrest.
security.
Offence Bail is granted for bailable offence. Anticipatory bail is granted for non bailable
offence.
When Bail is granted by the Court when the Anticipatory bail is granted in anticipation
granted accused appears or is brought before the of a person being arrested.
Court.
Who Bail is granted by the officer of police Anticipatory bail is granted by the Session

grants station, Magistrate, Session Judge or High Judge or the High Court.
Court.
Question 59] Discuss the procedure for summary trial under the Code of Criminal
Procedure, 1973. CS (Inter) – Dec 1999 (8 Marks)
Ans.: Section 260 to Section 265 deals with the various provisions relating to summary trials.
Meaning: A summary trial implies speedy disposal. A summary case is thus which can be tried
and disposed at once. Thus, the summary procedure is not applicable contentious and
complicated case which requires a full and lengthy inquiry. Generally, it will apply to such
offences not punishable with imprisonment for a term exceeding two years.
Procedure: In a summary trial, all cases should be tried by the summons procedure whether the
case is a summons case or warrant case.
Offences that can be dealt with summary trial:
(1) Offences not punishable with death, imprisonment for life, or imprisonment for a term
exceeding 2 years.
(2) Theft of value of property up to `2,000 u/s 379, 380, 381 of IPC, 1860.
(3) Assisting in the concealment or disposal of stolen property up to `2,000 u/s 414 of IPC.
(4) Receiving or retaining stolen property up to `2,000 under Section 411 of IPC.
(5) Offences under Sections 454 & 456 of IPC. (lurking house, trespass etc.)
(6) In suit with intend to provoke breach of peace under Section 504 and Criminal Intimidation
u/s 506 of IPC.
(7) Abetment of any foregoing offences.
(8) An attempt to commit any forgoing offence, when such attempt also is an offence.
(9) Any offence constituted by an act in respect of which a compliant may be made u/s 20 of
the Cattle Trespass Act, 1871.
Procedure for summary trials [Section 262]: In all summary trials the summons case procedure
should be followed irrespective of the nature of the case i.e. whether it is a summons case or a
warrant case.
No sentence of imprisonment for a term exceeding 3 months shall be passed in any conviction
in summary trials. No limit for fine.
Judgment in summary trials: In every case tried summarily in which the accused does not plead
guilty, the Magistrate shall record the substance of the evidence and a judgment containing a
brief statement of the reason for the finding. The concerned Magistrate must sign such record
and judgment.
Question 60] A commits the offence of theft by stealing property of B worth `5,000. Can
this offence be tried summarily by the Chief Judicial Magistrate?
Ans.: No, the offence of theft of a property worth `5,000 cannot be tried summarily by the Chief
Judicial Magistrate.
According to Section 260 the offence of theft can be tried summarily, where the value of property
stolen does not exceed `2,000.
Question 61] Sohan is tried summarily by the Chief Judicial Magistrate on the charge of
committing theft and is sentenced to undergo rigorous imprisonment for 6 months.
Sohan wants to challenge this decision. Can he do so? Discuss.
Ans.: According to Section 262 of the Code of Criminal Procedure, 1973, no sentence of
imprisonment for a term exceeding 3 months can be passed in case of conviction in a summary
trial. Thus, the sentence of 6 months imprisonment could not have been legally awarded in the

given case by Chief Judicial Magistrate. Sohan should, therefore, file an appeal before the
appropriate Court challenging the quantum of punishment.
Question 62] Write a short note on: Records in summary trial.
Ans.: The Magistrate shall enter in the prescribed form the following particulars in every case
tried summarily:
 Serial number of the case.
 Date of the commission of the offence.
 Date of the report or complaint.
 Name of the complainant, if any.
 Name, parentage and residence of the accused.
 Offence complained of and the offence proved, and the value of the property in respect of
which the offence has been committed.
 Plea of the accused and his examination, if any.
 Findings.
 Sentence or other final order.
 Date on which proceedings terminated.
The register containing the particulars mentioned above forms the record in a summary trial.
Objective Questions
(1) Summons or warrant cannot be issued against the accused unless and until the list of
prosecution witnesses has been filed.
(2) If a case relates to two or more offences and one of the offences is a cognizable offence, the
case will be treated as a non-cognizable case.
(3) In a non-cognizable case, a police officer can arrest a person without a warrant.
(4) If an offence which is punishable with imprisonment for less than 3 years or with fine only,
it is non-bailable.
(5) A warrant case can be converted into a summons case.
Ans.:
(1) Correct.
(2) Incorrect. If a case relates to two or more offences and one of the offences is a cognizable
offence, the case will be treated as a cognizable case.
(3) Incorrect. Non-cognizable offence means an offence for which a police officer can make
arrest with warrant.
(4) Incorrect. If an offence which is punishable with imprisonment for less than 3 years or
with fine only, it is bailable.
(5) Incorrect. A warrant case cannot be converted into a summons case.
word(s)/figures(s):
(1) Summary trial is conducted in those offences which are not punishable with imprisonment
for a term exceeding ________
(2) Section 2 (n) defines offence as, “any act or omission made punishable by any law for the
time being in force and includes any act in respect of which a complaint may made under
________
(3) A bailable offence is an offence which is shown as bailable in ________ to the Code of which
is made bailable by any other law.
(4) No Court shall take cognizance of an offence after the expiry of ________, if the offence is
punishable with fine only.
(5) Anticipatory bail can be granted by High Court or Court of Session under Section ________

(6) The arrested person can be detained in custody only for ________ unless his further
detention is required under any provisions of Code of Criminal Procedure Code, 1973 or of
any other law.
(7) A summon is issued either for appearance or for producing a document or thing which
may be issued to ________
(8) A private person may arrest or cause to be arrested any person who in his presence
commits ________ or who is a proclaimed offender.
(9) A ________ means a case relating to an offence punishable with death, imprisonment for life
or imprisonment for a term exceeding two years.
(10) ________ includes all the proceedings under this Code for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is authorized
by a Magistrate in this behalf.
Ans.: (1) two years (2) Section 20 of Cattle Trespass Act, 1871 (3) First Schedule (4) six months
(5) 438 (6) 24 hours (7) an accused person or witness (8) a non-bailable and cognizable offence
(9) warrant case (10) Investigation.
* * * * * * * * * * *

INDIAN EVIDENCE ACT, 1872

1. Meanings
a. Evidence
b. Fact
c. Affidavit :(declaration sworn/ affirmed + before a judicial authority ,by oath)
d. Facts in issue
e. Relevant facts
2. Relevancy of facts connected with fact to be proved.
a. Section 6 – Rule of Res Gestae
b. Section 7 – Facts which are the occasion or cause or effect of facts in issue.
c. Section 8 – Motive, Preparations & previous or subsequent conduct for any fact in issue.
d. Section 9 – Facts necessary to explain or introduce relevant facts.
3. Admission and confession – Section 17 to Section 38
4. Opinion of experts / Third person – Section 45 to Section 51
5. Oral evidence
6. Hearsay Evidence
7. Documentary evidence
8. Primary & secondary Evidence
9. Circumstantial evidence
10. Facts of which evidence can’t be given.
11. Principle of estoppel
1. Meaning 1. The Act came into force on 1st September, 1872. It extends to whole of India
except J & K.
2. All the statements which are permitted by the court to be made by the witness
or all the documents produced for inspection before the court.
I.e. evidence= oral evidence + documentary evidence.
2) Relevant One fact is said to be relevant to another When the one fact is connected with
facts – the other in any of the ways as referred in Indian evidence act relating to
relevancy of facts.
3) Facts in Any fact from which or which in connection with other fact helps in deciding the
issue. existence , non- existence, nature of any right, liability in any suit or proceeding.
Notes-
1) Every fact legally relevant will be found to be logically relevant.
2) However some facts though logically relevant are not legally relevant.
3) All Facts are not evidence but all evidences are facts in some way or the
others.
Facts Evidence
Meaning
Fact means and includes: Evidence means and includes:
1. Anything, state of things, or relation 1. All statement which the court
of things, capable of being perceived permits or requires to be made before
by senses. it by witness in relation to matter of
2. Any mental condition of which any fact under enquiry.(oral)
person is conscious. 2. All documents(documentary)
What it is
Facts are those things which are in Evidence are those means( witness or
existence of which man is conscious. documents) by which relevant facts are
brought before court.
Nature
Facts can be positive or negative. Evidence can be oral or documentary.
Physical
Physical / psychological Expressed facts
4) Section 6 – When certain facts which though not in issue are so connected with a fact in
Rule of res issue as to form part of the same transaction, it is known as res gestae (rule of
gestae admission of evidence).
E.g. A is accused of murder of B by beating him, whatever was said or done by A
or B which the bystanders at the beating explained to the court is a relevant fact.
5) Section 7 – Facts constituting the occasion, effect of or opportunity or state of things for the
Admissibility occurrence of the fact to be proved whether it be a fact or another relevant fact.
of facts E.g. The question whether A murdered B. Marks on the ground produced by the
constituting
struggle at or near the place where murder was committed is relevant fact.
the occasion
for the facts to In the above case though marks on the grounds do not form part of murder, they
be proved shall be relevant if they are at occasion as facts of an issue.
6) Section 8 – Any fact is relevant which shows or constitute a motive or preparation for any
Admissibility fact in issue or relevant fact.
of fact E.g. when X trial for murdering Y by a sharp weapon and it was found that X
constituting
has purchased a similar weapon few days before the murder is relevant fact used
motive,
preparation & as evidence.
previous or
subsequent
conduct to be
proved
7) Section11 Facts not otherwise relevant are relevant if-
a) They are inconsistent with any fact in issue or relevant fact.
b) By themselves or in connection with other facts they make existence or non-
existence of any fact in issue or relevant fact highly impossible or possible.
E.g. when Mr. P prosecuted for a murder trial and the fact that Mr. P on the day
of murder was in another city is relevant, the above fact though not otherwise
relevant becomes relevant since it is highly impossible with the facts in issue or
relevant fact.
8) Hearsay 1. Except contents of document, all other facts may be proved by oral evidence
evidence (Sec thus oral evidence must not be indirect or hearsay i.e. by a person not called as
59 & 60) witness.
2. Reasons for rejection of hearsay evidence –
1) Irresponsible
2) Chances of fraud
3) May waste time of the court
4) Depreciation of truth
Note –
Thus hearsay evidence is not ordinarily accepted when the object is to establish
truth of one’s statement; however, it can be used to establish the fact that one
did make a statement.
9) Confession Confession- Section 24 to 27
1) Sec 24 to 30  1. A confession by inducement, threat or promise shall be irrelevant against
an accused in criminal proceedings.
 2. Confession to a police officer shall not be proved as against the person
accused in any offence.
 3. Confession by accused while in custody of police can not be proved
against him unless it is made in immediate presence of a magistrate.
 4. When any fact is declared to have been discovered in consequence of
information received by accused in the custody of police officer, such
information which relates clearly to the fact declared may be proved.
10) Section 28 Any confession made after removal of impression caused by inducement
(influence), threat or promise is relevant evidence.
11) Section 29 A confession otherwise relevant will not become irrelevant because it was made
under-
a. 1) Promise of secrecy
b. 2) A deceptive practice was used for obtaining it
c. 3) The accused was drunken
d. 4) The confession was made in answer to the question which the accused
may not have answered.
12) Section 30 When two or more persons try jointly for the same offence, confession made by
one such person affecting everyone shall be taken into consideration as evidence
against all.
Note-
A statement by accused as confession shall be accepted in total only i.e. court
can not partly accept and partly reject confessions.
13) Section 32 Any statement, written or verbal of relevant fact made by a person who is dead
or missing or incapable of giving evidence which under the circumstances of case
appears to the court as unreasonable are themselves relevant fact and
considered as dying declaration.
Cases in which statement of relevant fact by person who is dead or cannot be

found (missing) is relevant.
a. When statement related to cause of death.
b. When statement is made in ordinary course of business or in discharge of
professional duty. (policy)
c. When statement is against pecuniary or proprietary interest of person making
it.
d. When statement gives option as to public right / custom or matter of general
interest.
e. When statement relates to existence of relationship between persons.
f. When statement is made in will or deed relating to family affairs.
g. When statement is contained in a document relating to transaction.
h. When statement is made by several persons and expresses feelings relevant to
matter of question.
E.g. Mr. X who told his wife Y that he is going to another city for receiving
payment from Mr. Z who is who has asked him to come and receive payment . If
later Mr. X’s body was found near Mr. Z’s house , the statement by Mr. X to his
wife Y shall be expected as dying declaration as it throws light upon the probable
cause of his death or took any of the circumstances which resulted in his death.
14)Expert Whenever court has to form opinion on foreign law or of science or art or identify
opinions handwriting or finger impression, expert opinions are considered as relevant fact
(indirect circumstantial evidence).
15) Any oral Any oral evidence must be a direct evidence as follows-
evidence must a) 1)Anything seen = evidence of witness who says he saw it
be a direct b) 2)Anything heard= evidence of witness who says he heard it
evidence c) 3) Anything perceived (thought) = evidence of witness who say he perceived
it.
d) 4) It must be the evidence of the person who holds opinion on those grounds.
16) Any substance by means of letters, figures or marks intended to be used for the
Documentary purpose of recording that matter is a document.Documents produced for
evidence inspection of the court is called documentary evidence .
The contents of documents may be proved either by primary evidence or

secondary evidence.
Primary evidence= Original Document itself is produced
Secondary evidence= certified photocopy or copies made from or compared with
the original
17) 1. Circumstances evidence – Evidence strongly suggests something+but does not
Circumstantial exactly prove it.
evidence 2. Draws inferences about fact or the events that took place.
3. Weak and ineffective – used in conjunction with direct evidence in both
criminal and civil and cases.
4. Circumstantial evidence – indirect+ presumptive evidence.
5. Court accept them only when they are fully satisfied.
Any circumstantial evidence shall be considered as evidence only when it is

satisfactorily proved to the court to bring the accused liable for guilt. E.g. finger
print impression, handwriting.
18) Admission  1. Admission is a statement made by any person under usually in civil
proceedings (may be used in criminal proceedings).
 2. Admission in a criminal case is not a confession but can be used on behalf
of the person making it against the accused.
1. Section 17 – Definition – An admission is a statement, oral or documentary

or contained in electronic form, which suggests any inference as to any fact in
issue or relevant facts, and which is made by any of persons, and under specified
circumstances.
Following statements are regarded as admissions:

2. Section 18 – Statements made by party to proceeding or his agent are
Admissions.
3. Statements made by party interested in subject matter or by person from
whom interest derived.
4. Admission by person whose position must be proved as against party to suit
(Section 19)
5. Section 20 – Statements by persons expressly referred to by party to suit.
6. Section 21 – Proof of admission against person making them, and by or on
their behalf.: Admissions are relevant and except in certain cases ,it must be
proved by the person making it or his representative.
19) Facts of a) Section 121 – Privilege of judge/ magistrate
which evidence No judge or magistrate can be compared to answer any question as to his own
can not be conduct in court except on a special order of SC.
given though b) Section 122 – Communications during marriage
they are 1) No married person can be compelled to disclose any communication made to
relevant him during marriage except the other person or his representative gives consent
(section 121 to to disclose such communication.
127) 2) Prohibition on disclosure of privileged communication continues even after
marriage.
Exception-
Suits between married persons in which one is prosecuted for any crime against
the other- disclosures of communication will be allowed.
c) Section 123 – Other evidence as to affairs of state
No person shall be permitted to give any evidence derived from unpublished
official records except with the permission of HOD (Head Of Department) of such
unpublished official records relating to officers of state.
It is only for matters affecting public or sovereign integrity of India.
d) Section 124 – Official communication
No public officer can be compelled to disclose communication made to him in
official confidence.
e) Section 125 – Information as to commission of offences
No magistrate or police officer shall be compelled to say from whom he got any
information as to commission of any offence.
f) Section 126 –127 – Professional communication
No lawyer or leader shall be permitted to disclose any communication made to
him by his client except with the consent of client.
Obligation not to disclose communication continues even after the employment
ceases.
Exception to sec 126 -
 Communication of any illegal motive or any crime or fraud has been
committed after his appointment as lawyer.
20) Principle of When a person by his declaration, act, admission permits another person to
estoppels believe a thing to be true and to act upon it, he shall not be allowed to deny the
truth of that thing.
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Distinctions :
Admission Confession
1. A statement which suggest inference of any 1. A statement made by an accused admitted
“Fact in issue” or “relevant fact”. that he had committed the offence.
2. By any person. 2. By accused.
3. Less serious 3. More serious
4. Admitted facts need not be proved. 4. Confession have been proved.
5. Admission is not made under any promise, 5. Made under promise, thert, undue
threat undue influence. influence is not admissible under evidence.
6. Admission may be used on behalf of person 6. Confession always goes against person
making it. making it.
Direct Evidence Hearsay Evidence

1. Evidence which is given by witness of his Evidence i.e. derived by person from another
own perception person.
2. Admissible in court. Not admissible in court.
3. Authenticity of direct evidence is on person Person giving that evidence does not take
who is giving it. authencity of statement made.
4. Such person can be crossed examine. Person giving hearsacy evidence cannot be
cross examined as it is not admissible only.
Primary Evidence (Section 62) Secondary Evidence (Section 63)

1. When the original document itself is Generally it is produced in the form of certified
produced for the inspection of court. copy or photo copies.
2. It is best evidence in all circumstances. It is admitted only in exceptional
circumstances i.e. when there is no primary
evidence.
3. No notice is required before giving primary Notice is required to be given before giving
evidence. secondary evidence.
Q No. 1. Courts are concerned with legal relevancy and not logical relevancy of the facts.
Q No. 2. Write a short note on: Rule of res gestae
Q No. 3. Ratan is charged with forging a particular document. The prosecution produces in
evidence a number of documents apparently forged, found in possession of the accused. Are
these documents admissible in evidence?
Q No. 4. Ajoy, after learning that Chander had been murdered by Bijoy, went to the spot and
found that the body of Chander was being taken to the house of Chander by four persons who
told him that Bijoy had murdered Chander and he had run away. Is the statement of Ajoy that
he was told by four persons that Bijoy had murdered Chander and run away admissible as
evidence?
Q No. 5. A files a suit against B for recovery of money on the basis of a pro-note. B denies
execution of the pro-note, as also taking of the loan. A wants to prove that at the time when the
loan was advanced B was in need of money in connection with the marriage of his daughter. Will
A be allowed to do so under the Indian Evidence Act, 1872?
Q No. 6. Ajay is tried for alleged killing of Bijay by administering him a dangerous substance.
Whether the fact that before the death of Bijoy, Ajay procured the same substance which was
administered to Bijay is relevant in evidence.
Q No. 7. Satyam is facing trial for the charge of committing murder of Raja at Pune at 5.00 p.m.
on 5th November, 2019. Satyam wants to prove that he had a telephonic conversation with Nalin,
from Delhi on 5th November, 2019 at about 3.30 p.m. Will he be permitted to do so?
Q No. 8. Distinguish between: Confession & Admission
Q No. 9. Every confession is admission but every admission is not confession. Comment.
Q No. 10. Discuss the important provisions relating to confessions under Indian Evidence Act,
1860.
No confession made to a police officer shall be proved as against a person accused of any offence.
Q No. 11. A given consent to be a prosecution witness in a bribery case before a police office. The
police officer assures A that if he states the facts of the crime as explained in police post he will
not be prosecuted in the Court. A agrees to abide. When A was produced before the Magistrate
as witness, A refuses to be an approver in the case. Can the police officer produce tape-recorded
consent of A which he gave at the police post to prove the crime of bribery against B before the
Magistrate to hold B responsible for the crime of bribery and to punish him.
Q No. 12. Ramesh, a travelling auditor in the service of the railway company detected
defalcations in the accounts of accused Suresh, a booking clerk of company. Upon detection of
defalcation, Ramesh said to Suresh, “You better pay the amount defalcated rather than going to
jail and it will be better for you to tell the truth.” After all this, Suresh, the accused was brought
before Traffic Manager in whose presence he signed a receipt for and admitted having defalcated
a sum `1,500. Suresh, the accused, was subsequently put on trial for criminal breach of trust as
servant in respect of this and other sums. Is the receipt signed by Suresh, the accused,
admissible in evidence? Also give reasons.
Q No. 13. A confession made by an accused on the faith of a promise made by the police officer
making the investigation that he would get off if he made a disclosure of the offence committed
by him or would get pardon. Whether such a confession made by the accused is admissible in
evidence? Answer citing the relevant provisions of law.
Q No. 14. A murder is committed on a dark night. Nobody is named as the murderer. The sub-
inspector of police goes to the locality to investigate. While he is investigating, one B comes to
him and says it was he who committed the murder. After that B is arrested and becomes the
accused in the case and is tried for the offence of murder. Discuss the validity of the aforesaid
statement of B.
Q No. 15. An accused person makes a confessional statement to the police officer in the hearing
and presence of a private person. Can the private person give evidence of the confessional
statement made by the accused person so as to be proved against the accused?
Q No. 16. A Police officer overhears a confession made by Raman to his friend Sanjay while they
were conversing in a park. Can the police officer be permitted to give evidence of this confession?
Q No. 17. A, an accused charged with the offence of murder of B, while in police custody made a
confession before a Civil Judge. Is this confession relevant and admissible?
Q No. 18. At the trial of A for the murder of C the prosecution put as evidence the statement of A:
“I will produce the two knives concealed in a room of B’s house with which B and I stabbed C.”
This statement had been made by A while he was in the custody of a police officer and did lead
to the discovery of the knives. Discuss with reference to the law of evidence whether the
statement of A is admissible.
Q No. 19. A is charged with the murder of B. He is arrested and taken into custody of the sub-
inspector of police in charge of the investigation. A stated before the said sub-inspector of police
and he goes to the well with some independent witnesses and takes out the dead body of B at
the instance of A. Whether A’s statement can be proved against him?
Q No. 20. A was tried for the murder of B whose body was found in a well and the ornaments
that B was wearing were missing from his body. A, while in police custody, during investigation
said that he had removed the ornaments, pushed B into the well and had pledged the ornaments
with C. In consequence of this statement the ornaments were recovered from C. Discuss the
admissibility of A’s statement.
Q No. 21. Anuj was tried for the murder of Barkha whose body was found in a well and the
ornaments that Barkha was wearing were missing from his body. Anuj, while in police custody,
during investigation said that he had removed the ornaments, pushed Barkha into the well and
had pledged the ornaments with Chandan. In consequence of this statement the ornaments were
recovered from Chandan. Discuss the admissibility of Anuj’s statement.
Q No. 22. A and B committed murder of C. Trial started. A made a confession before magistrate.
Thereafter, A was convicted, while B was absconding. Subsequently B was arrested and trial was
started against B. The prosecution wants to use the confession of A against B. Will the
prosecution succeed?
Q No. 23. A is on his trial for the murder of C. There is evidence to show that C was murdered by
A and B, and that B said – “A and I murdered C"
Q No. 24. Antony and Tony are co-accused of the crime of kidnapping and murdering a child.
Antony denies the charges but Tony confesses that he along with Anthony has committed the
crime. How far is the statement made by Tony relevant against Anthony?
Q No. 25. Anand is on his trial for the murder of Chanchal. There is evidence to show that
Chanchal was murdered by Anand and Birender and that Birender said, “Anand and I murdered
Chanchal.” Can the Court take into consideration this statement against Anand? Will your reply
be different in case there is joint trial against Anand and Birender? Give reasons.
Q No. 26. Amar and Bimal are jointly tried for the murder of Roshan. It is proved that Amar said,
"Bimal and I murdered Roshan". Can the Court consider the effect of this confession as against
Bimal? Give reasons.
Q No. 27. The charge against A is that she, with the help of her paramour B, has committed
murder of her husband by administering poison to him. A makes a confession. In its first part,
she states that bottles containing poison and medicine for her ailing husband were lying in the
same almirah, and that she by mistake administered poison in place of medicine to her
husband. In the other part, she narrates how she and B threw the dead body in a well in order to
destroy evidence. Can the court reject the first part as not true, and accept the other treating it
as correct?
Q No. 28. Explain the law relating to admissibility in evidence of a dying declaration. If the
person making a dying declaration survives, is it admissible in evidence?
Q No. 29. On 20th March, Kamal told his wife that he was going to Berhmpore, as Pankaj’s wife
has written a letter and asked him to come and receive payments due to him. On 21st March,
Kamal left his house in time to catch a train for Berhmpore, where Pankaj lived with his wife. On
23rd March, Kamal’s dismembered body was found in a box which had been purchased for
Pankaj. Decide whether on the trial of Pankaj for the murder of Kamal, the statement made by
Kamal to his wife was admissible in evidence. If so, on what grounds?
Q No. 30. Write a short note on: Expert opinion
Q No. 31. “Oral evidence in all cases must be direct”. Discuss.
Q No. 32. “Hearsay evidence is no evidence”. Explain this rule of law. Is hearsay evidence ever
admissible?
Q No. 33. Explain primary and secondary evidence of documents. When may secondary evidence
be given?
Distinguish between: Primary Evidence & Secondary Evidence
Q No. 34. Write a short note on: Circumstantial Evidence
Q No. 35. Discuss the various facts of which evidence cannot be given under Indian Evidence
Act, 1860.
State the facts of which evidence cannot be given.
Q No. 36. A and B were married in 2007. They lived as husband and wife up to January 10,
2017 when their marriage was dissolved by a decree of divorce passed by a Court of competent
jurisdiction. In 2008, A told B that he had committed theft of ornaments of C. In 2018, trial
commences against A for the theft of ornaments of C. Can B appear as a witness against A and
state before the Court that A had intimated to her in 2015 that he committed theft of ornaments
of C?
Q No. 37. Rani informed Shyam in the year 2014 that she had committed theft of the ornaments
of her neighbour. Thereafter, Rani and Shyam were married in 2015. In the year 2018,
prosecution was started against Rani in respect of the theft of ornaments. Shyam is called to give
evidence in this case. Can Shyam disclose the communication made to him by Rani?
Q No. 38. A, a client, says to B, an advocate, “I have committed a murder and I want you to
defend me”. Whether the advocate can disclose the aforesaid communication to the court or to
the police?
Q No. 39. What is the principle of estoppel under the Indian Evidence Act, 1872?
The principle of estoppel says that a man shall not say one thing at one time and later on say a
different thing. Comment
Indian Evidence Act, 1872 11.11
Chapter
11 Indian Evidence Act, 1872
Introduction: The "Law of Evidence" may be defined as a system of rules for ascertaining
questions of fact in judicial inquiries. This system of ascertaining the facts, which are the
essential elements of a right or liability and is the primary and perhaps the most difficult
function of the Court, is regulated by a set of rules and principles known as “Law of Evidence”.
The Indian Evidence Act, 1872 is an Act to consolidate, define and amend the Law of Evidence.
The Indian Evidence Act, 1872 is an Act to consolidate, define and amend the law of evidence.
The Act extends to the whole of India except the State of Jammu & Kashmir. It came into force
on 1st September, 1872.
Fact in issue & relevant facts
Question 1] What do you understand by ‘affidavit’? Can it be used as evidence in Court?
Ans.: An affidavit is a declaration sworn or affirmed before a person competent to administer an

oath. Thus, an affidavit per se does not become evidence in the suits but it can become
evidence only by consent of the party or if specifically authorized by any provision of the law.
They can be used as evidence only under Order XIX of the Code of Civil Procedure, 1908.
Question 2] Write a short note on: Evidence
Ans.: Evidence [Section 3]: Evidence means and includes:

(1) All statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; (i.e. oral evidence)
(2) All documents including electronic records produced for the inspection of the Court. (i.e.
documentary evidence)
Evidence may be either oral or personal i.e. all statements which the Court permits or requires
to be made before it by witnesses, and documentary, which may be adduced in order to prove a
certain fact which is in issue.
Question 3] What do you understand by the term ‘fact’?
Ans.: Fact [Section 3]: Fact means and includes –

(1) Anything, state of things, or relation of things, capable of being perceived by the senses;
(2) Any mental condition of which any person is conscious.
Illustrations: (As given in the Indian Evidence Act, 1872)
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or
uses a particular word in a particular sense, or is or was at a specified time conscious of a particular
sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
Illustrations (a), (b) and (c), are the examples of physical facts whereas the illustrations (d) and (e) are the
examples of psychological bids.

Question 4] Distinguish between: Facts & Evidence
Ans.: Following are the main points of distinction between facts & evidence:
Points Facts Evidence
Meaning Fact means and includes – Evidence means and includes:
(1) Anything, state of things, or relation (1) All statements which the Court
of things, capable of being perceived permits or requires to be made before
by the senses; it by witnesses, in relation to matters
(2) Any mental condition of which any of fact under inquiry; (i.e. oral
person is conscious. evidence)
(2) All documents including electronic
records produced for the inspection of
the Court. (i.e. documentary evidence)
What it is Facts are those things which are in Evidences are those means (witness or
existence of which a man is conscious. documents) by which the relevant facts
are brought before Court.
Nature Facts can be positive or negative. Evidence can be oral or documentary.
Physical or Facts can be physical or psychological. Evidences are only expressed facts.
psychological Psychological facts are evidence only
when they are expressed by means of
expression.
Dependability All facts are not evidence. All evidences are facts in some way or the
others.
Question 5] What do you understand by the term ‘Relevant Fact’?
Ans.: Relevant Fact [Section 3]: One fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in the provisions of this Act relating to
the relevancy of facts.
Where in a case direct evidence is not available to prove a fact in issue then it may be proved by
any circumstantial evidence and in such a case every piece of circumstantial evidence would be
an instance of a “relevant fact”.
Sections 6 to 55 of the Indian Evidence Act, 1872 deal with relevancy of facts. A fact is also
known as factum prolans or a fact that proves.
Question 6] What do you understand by ‘Facts in issue’?
Ans.: Facts in issue [Section 3]: Facts in issue means and includes any fact from which, either
by itself or in connection with other facts, the existence, non-existence, nature or extent of any
right, liability, or disability, asserted or denied in any suit or proceedings, necessarily follows.
Explanation: Whenever, under the provisions of the law for the time being in force relating to
Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the
answer to such issue is a fact in issue.
Illustrations (As given in the Indian Evidence Act, 1872)
A is accused of the murder of B. At his trial the following facts may be in issue: ––
- That A caused B’s death;
- That A intended to cause B’s death;
- That A had received grave and sudden provocation from B;
- That A, at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind,
incapable of knowing its nature.
Question 7] Which types of evidence can be given under the Indian Evidence Act, 1872?

Ans.: Evidence may be given of facts in issue and relevant facts [Section 5]: Evidence may be given
in any suit or proceeding of the existence of non-existence of every fact in issue and of such
other facts as are hereinafter declared to be relevant, and of no others.
Thus, evidence may be given of ‘facts in issue’ and ‘relevant facts’.
Explanation: This section shall not enable any person to give evidence of a fact which he is
disentitled to prove by any provision of the law for the time being in force relating to Civil
Procedure.
(a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A’s
trial the following facts are in issue:
- A’s beating B with the club;
- A’s causing B’s death by such beating;
- A’s intention to cause B’s death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case,
a bond on which he relies. This section does not enable him to produce the bond or prove its contents
at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed
by the Code of Civil Procedure.
Question 8] Courts are concerned with legal relevancy and not logical relevancy of the
facts. CS (Inter) – Dec 2007 (4 Marks)
Ans.: One fact is said to be relevant to another when the one is connected with the other in any
of the ways referred to in the provisions of the Act relating to the relevancy of facts. Sections 6
to 55 deals with relevancy of facts. Every fact legally relevant will be found to be logically
relevant. But there are some facts which though logically relevant but legally not relevant as
common sense or logical relevancy is wider than legal relevancy.
Legal relevancy and admissibility: Relevancy and admissibility are not co-extensive or
interchangeable terms. A fact may be legally relevant, yet its reception in evidence may be
prohibited on the grounds of public policy, or on some other ground. Similarly every admissible
fact is not necessarily relevant. The tenth Chapter of the Act makes a number of facts
receivable in evidence, but these facts are not “relevant” under the second Chapter, which alone
defines relevancy.
Relevancy of facts connected with the fact to be proved
Question 9] Write a short note on: Rule of res gestae

Ans.: There are certain facts which though not in issue, are so connected with a fact in issue as
to form part of the same transaction. This is known as rule of res gestae.
Section 6 embodies the rule of admission of evidence relating to what is commonly known as
res gestae.
Relevancy of facts forming part of same transaction [Section 6]: Facts which, though not in issue
are so connected with the fact in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at different time and place.
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-
standers at the beating, or so shortly before or after is as to form part of the transaction, is a
relevant fact.
(b) A is accused of waging war against the Government of India by taking part in an armed insurrection
in which property is destroyed, troops are attacked and goals are broken open. The occurrence of
these facts is relevant, as forming part of the general transaction, though A may not have been
present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the

parties relating to the subject out of which the libel arose, and forming part of the correspondence in
which it is contained, are relevant facts, though they do not contain the libel itself.
(d) The question is whether certain goods ordered from B were delivered to A. The goods were delivered
to several intermediate persons successively. Each delivery is a relevant fact.
The above section lays down the rule which in English text books is treated under the head of
res gestae. It may be broadly defined as matter incidental to the main fact and explanatory of it,
including acts and words which are so closely connected therewith as to constitute a part of the
same transaction.
The essence of the doctrine of res gestae is that the facts which, though not in issue are so
connected with the fact in issue as to form part of the same transaction and thereby become
relevant like fact in issue.
Question 10] Ratan is charged with forging a particular document. The prosecution
produces in evidence a number of documents apparently forged, found in possession of
the accused. Are these documents admissible in evidence?
Ans.: As per Section 6 of the Indian Evidence Act, 1872, facts which, though not in issue are so
connected with the fact in issue as to form part of the same transaction, are relevant, whether
they occurred at the same time and place or at different time and place.
In the present case, the facts that a number of documents forged and found in the possession
of the defendant, is not so connected as to form part of the transaction of forgery of a particular
document for which defendant was charged. Hence, these documents are not admissible in
evidence against the accused.
Question 11] Ajoy, after learning that Chander had been murdered by Bijoy, went to the
spot and found that the body of Chander was being taken to the house of Chander by
four persons who told him that Bijoy had murdered Chander and he had run away. Is the
statement of Ajoy that he was told by four persons that Bijoy had murdered Chander and
run away admissible as evidence? CS (Inter) – Dec 2004 (6 Marks)
Ans.: As per Section 6 of the Indian Evidence Act, 1872, facts which, though not in issue are so
connected with the fact in issue as to form part of the same transaction, are relevant, whether
they occurred at the same time and place or at different time and place.
In this case, Ajoy is bystander he was told by other bystander that Bijoy had murdered
Chander and run away. Hence, this is not admissible as evidence as it will be considered as
hearsay.
Question 12] Write a short note on: Admissibility of facts which are the occasion, cause
or effect of facts in issue
Ans.: Facts which are the occasion, cause or effect of facts in issue [Section 7]: Facts which are
the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or
which constitute the state of things under which they happened, or which afforded an
opportunity for their occurrence or transaction, are relevant.
(a) The question is, whether A robbed B.
The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he
showed it, or mentioned the fact that he had it, to third persons, are relevant.
(b) The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place whether the murder was
committed, are relevant facts.
(c) The question is, whether A poisoned B.
The state of B’s health before the symptoms ascribed to poison, and habits of B known to A, which

afforded an opportunity for the administration of poison, are relevant facts.

The above transaction provides that, though they are not part of the same transaction is
relevant if they are the occasions, caused or effects of facts of an issue.
Question 13] Write a short note on: Admissibility of facts to be proved constituting
motive, preparation and previous or subsequent conduct.
Ans.: Motive, preparation and previous or subsequent conduct [Section 8]: Any fact is relevant
which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to
such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact in issue or relevant fact, and whether it
was previous or subsequent thereto.
Motive means which moves a person to act in a particular way. Motive is psychological fact and
the accused’s motive, will have to be proved by circumstantial evidence. When the question is
as to whether a person did a particular act, the fact that he made preparations to do it, would
certainly be relevant for the purpose of showing that he did it.
(a) A is tried for the murder of B.
The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort
money from A by threatening to make his knowledge public, are relevant.
(b) A sues B upon a bond for the payment of money, B denies the making of the bond.
The fact that, at the time when the bond was alleged to be made, B required money for a particular
purpose, is relevant.
(c) A is tried for the murder of B by poison.
The fact that, before the death of B, A procured poison similar to that which was administered to B,
is relevant.
(d) The question is, whether a certain document is the will of A.
The facts that, not long before, the date of the alleged will, A made inquiry into matters to which the
provisions of the alleged will relate; that he consulted vakils in reference to making the will, and that
he caused drafts of other wills to be prepared, of which he did not approve, are relevant.
(e) A is accused of a crime.
The facts that, either before, or at the time of, or after the alleged crime, A provided evidence which
would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed
or concealed evidence, or prevented the presence or procured the absence of persons who might
have been witnesses, or suborned persons to give false evidence respecting it, are relevant.
(f) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A’s presence ― “the police are coming to look for the
man who robbed B” and that immediately afterwards A ran away, are relevant.
(g) The question is, whether A owes B `10,000. The facts that A asked C to lend him money, and that D
said to C in A’s presence and hearing ― “I advise you not to trust A, for he owes B `10,000” and that
A went away without making any answer, are relevant facts.
(h) The question is, whether A committed a crime.
The fact that A absconded, after receiving a letter warning him that inquiry was being made for the
criminal, and the contents of the letter, are relevant.
(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession of
property or the proceeds of property acquired by the crime, or attempted to conceal things which
were or might have been used in committing it, are relevant.
(j) The question is, whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the
circumstances under which, and the terms in which, the complaint was made, are relevant. The fact
that, without making a complaint, she said that she had been ravished is not relevant as conduct

under this section, though it may be relevant as a dying declaration u/s 32(1) or as corroborative
evidence u/s 157.
(k) The question is, whether A was robbed.
The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the
circumstances under which, and the terms in which, the complaint was made, are relevant.
The fact that he said he had been robbed, without making any complaint, is not relevant as conduct
under this section, though it may be relevant as a dying declaration u/s 32(1) or as corroborative
evidence u/s 157.
Question 14] A files a suit against B for recovery of money on the basis of a pro-note. B
denies execution of the pro-note, as also taking of the loan. A wants to prove that at the
time when the loan was advanced B was in need of money in connection with the
marriage of his daughter. Will A be allowed to do so under the Indian Evidence Act,
1872? CS (Inter) – Dec 1996 (6 Marks)
Ans.: According to Section 8 of the Indian Evidence Act, 1872, any fact is relevant which shows
or constitutes a motive or preparation for any fact in issue or relevant fact.
In the given problem the fact that B required money in connection with the marriage of his
daughter shows that he had a motive to take a loan from A on the basis of a pro-note. Hence, A
will be allowed to prove the fact that B was in need of money for the marriage of his daughter is
a relevant to the fact in issue.
Question 15] Ajay is tried for alleged killing of Bijay by administering him a dangerous
substance. Whether the fact that before the death of Bijoy, Ajay procured the same
substance which was administered to Bijay is relevant in evidence.
Ans.: According to Section 8 of the Indian Evidence Act, 1872, any fact is relevant which shows
or constitutes a motive or preparation for any fact in issue or relevant fact. Hence, Ajay
procured the same substance which was administered to Bijay is relevant in evidence.
Question 16] Facts necessary to explain or introduce relevant facts are admissible as
evidence under the Indian Evidence Act, 1872. Comment.
Ans.: Facts necessary to explain or introduce relevant facts [Section 9]: Facts necessary to explain
or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested
by a fact in issue or relevant fact, or which establish the identity of anything or person whose
identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened,
or which show the relation of parties by whom any such fact was transacted, are relevant in so
far as they are necessary for that purpose.
(a) The question is, whether a given document is the will of A. The state of A’s property and of his family
at the date of the alleged will may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be
libellous is true.
The position and relations of the parties at the time when the libel was published may be relevant
facts as introductory to the facts in issue.
The particulars of a dispute between A and B about a matter unconnected with the alleged libel are
irrelevant, though the fact that there was a dispute may be relevant if it affected the relations
between A and B.
(c) A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from his house, is relevant,
under section 8, as conduct subsequent to and affected by facts in issue.
The fact that, at the time when he left home, he had sudden and urgent business at the place to

which he went, is relevant, as tending to explain the fact that he left home suddenly.
The details of the business on which he left are not relevant, except in so far as they are necessary
to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with A, C, on leaving A’s service,
says to A ― “I am leaving you because B has made me a better offer”. This statement is a relevant
fact as explanatory of C’s conduct, which is relevant as a fact in issue.
(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A’s wife. B says
as he delivers it ― “A says you are to hide this”. B’s statement is relevant as explanatory of a fact
which is part of the transaction.
(f) A is tried for a riot and is proved to have marched at the head of a mob.
The cries of the mob are relevant as explanatory of the nature of the transaction.
Question 17] Write a short note on: When facts not otherwise relevant become relevant
Ans.: When facts not otherwise relevant become relevant [Section 11]: Facts not otherwise
relevant, are relevant:
(1) If they are inconsistent with any fact in issue or relevant fact;
(2) If by themselves or in connection with other facts they make the existence or non-existence
of any fact in issue or relevant fact highly probable or improbable.
(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that
day, A was at Lahore, is relevant. The fact that, near the time when the crime was committed, A was
at a distance from the place where it was committed, which would render it highly improbable,
though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances are such that the crime must
have been committed either by A, B, C or D. Every fact which shows that the crime could have been
committed by no one else and that it was not committed by either B, C or D is relevant.
Question 18] Satyam is facing trial for the charge of committing murder of Raja at Pune
at 5.00 p.m. on 5th November, 2019. Satyam wants to prove that he had a telephonic
conversation with Nalin, from Delhi on 5th November, 2019 at about 3.30 p.m. Will he be
permitted to do so? CS (Inter) – June 1995 (5 Marks), June 2000 (5 Marks)
Ans.: As per Section 11 of the Indian Evidence Act, 1872, a fact which is inconsistent with fact
in issue, is relevant fact. The fact that Satyam had a telephonic conversation with Nalin from
Delhi on 5th November, 2019 at about 3.30 p.m. is inconsistent with the fact that he was
present on the date of murder i.e. 5th November, 2019 in Pune at 5.00 p.m.
Admission & Confessions
Question 19] What do you understand by ‘admission’ as defined in Indian Evidence Act,
1872? Also state the rules as to when and under which circumstance such admission are
relevant/acceptable.
Ans.: Admission defined [Section 17]: An admission is a statement, oral or documentary or

contained in electronic form, which suggests any inference as to any fact in issue or relevant
fact, and which is made by any of the persons, and under the specified circumstances.
Admission – by party to proceeding or his agent [Section 18]: Statements made by a party to the
proceeding, or by an agent to any such party, whom the Court regards, under the
circumstances of the case, as expressly or impliedly authorized by him to make them, are
admissions.
Admission – by suitor in representative character: Statements made by parties to suits suing or
sued in a representative character, are not admissions, unless they were made while the party
making them held that character. Statements made by –

(1) by party interested in subject matter – persons who have any proprietary or pecuniary
interest in the subject-matter of the proceeding, and who make the statement in their
character of persons so interested, or
(2) by person from whom interest derived – persons from whom the parties to the suit have
derived their interest in the subject-matter of the suit,
are admissions, if they are made during the continuance of the interest of the persons making
the statements.
Admissions by persons whose position must be proved as against party to suit [Section 19]:
Statements made by persons whose position or liability, it is necessary to prove as against any
party to the suit, are admissions if such statements would be relevant as against such persons
in relation to such position or liability in a suit brought by or against them, and they are made
whilst the person making them occupies such position or is subject to such liability.
Illustration: (As given in Indian Evidence Act, 1872)
A undertakes to collect rents for B.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
A statement by C that he owed B rent is an admission, and is relevant fact as against A, if A denies that
C did owe rent to B.
Admissions by persons expressly referred to by party to suit [Section 20]: Statements made by
persons to whom a party to the suit has expressly referred for information in reference to a
matter in dispute are admissions.
The question is, whether a horse sold by A to B is sound.
A says to B ― “Go and ask C, C knows all about it”. C’s statement is an admission.
Proof of admissions against persons making them, and by or on their behalf [Section 21]:
Admissions are relevant and may be proved as against the person who makes them or his
representative in interest; but they cannot be proved by or on behalf of the person who makes
them or by his representative in interest, except in the following cases:
(1) An admission may be proved by or on behalf of the person making it, when it is of such a
nature that, if the person making it were dead, it would be relevant as between third
persons u/s 32.
(2) An admission may be proved by or on behalf of the person making it, when it consists of a
statement of the existence of any state of mind or body, relevant or in issue, made at or
about the time when such state of mind or body existed, and is accompanied by conduct
rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is relevant
otherwise than as an admission.
(a) The question between A and B is whether a certain deed is or is not forged. A affirms that it is
genuine, B that it is forged.
A may prove a statement by B that the deed is genuine, and B may prove a statement by A that deed
is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a
statement by himself that the deed is forged.
(b) A, the captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her proper course. A produces a book kept
by him in the ordinary course of his business showing observations alleged to have been taken by
him from day to day, and indicating that the ship was not taken out of her proper course. A may
prove these statements, because they would be admissible between third parties, if he were dead,
u/s 32(2).
(c) A is accused of a crime committed by him at Calcutta.
He produces a letter written by him and dated at Lahore on that day, and bearing the Lahore post-
mark of that day. The statement in the date of the letter is admissible, because, if A were dead, it
would be admissible u/s 32(2).
(d) A is accused of receiving stolen goods knowing them to be stolen.

He offers to prove that he refused to sell them below their value. A may prove these statements,
though they are admissions, because they are explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be
counterfeit.
He offers to prove that he asked a skilful person to examine the coin as he doubted whether it was
counterfeit or not, and that that person did examine it and told him it was genuine. A may prove
these facts for the reasons stated in the last preceding illustration.
When oral admissions as to contents of documents are relevant [Section 22]: Oral admissions as
to the contents of a document are not relevant, unless and until the party proposing to prove
them shows that he is entitled to give secondary evidence of the contents of such document
under the rules hereinafter contained, or unless the genuineness of a document produced is in
question.
When oral admissions as to contents of electronic records are relevant [Section 22A]: Oral
admissions as to the contents of electronic records are not relevant, unless the genuineness of
the electronic record produced is in question.
Admissions in civil cases when relevant [Section 23]: In civil cases no admission is relevant, if it
is made either upon an express condition that evidence of it is not to be given, or under
circumstances from which the Court can infer that the parties agreed together that evidence of
it should not be given.
Explanation: Nothing in this section shall be taken to exempt any barrister, pleader, attorney or
vakil from giving evidence of any matter of which he may be compelled to give evidence u/s
126.
Question 20] Write a short note on: Confession
Ans.: A confession is received in evidence for the same reason as an admission, and like an
admission it must be considered as a whole. Further there can be an admission either in a civil
or a criminal proceedings, whereas there can be a confession only in criminal proceedings. An
admission need not be voluntary to be relevant, though it may affect its weight; but a
confession to be relevant, must be voluntary.
There can be relevant admission made by an agent or even a stranger, but, a confession to be
relevant must be made by the accused himself. A confession of a co-accused is not strictly
relevant, though it may be taken into consideration, under Section 30 in special circumstances.
Confessions are classified as: (a) judicial, and (b) extra-judicial.
Judicial confessions are those made before a Court or recorded by a Magistrate u/s 164 of the
Code Criminal Procedure, 1973 after following the prescribed procedure such as warning the
accused that he need not to make the confession and that if he made it, it would be used
against him. Extra-judicial confessions are those which are made either to the police or to any
person other than Judges and Magistrates as such.
An extra-judicial confession, if voluntary, can be relied upon by the Court along with other
evidence. It will have to be proved just like any other fact. The value of the evidence depends
upon the truthfulness of the witness to whom it is made.
It was held by the Supreme Court that where an extra-judicial confession was made before a
witness who was a close relative of the accused and the testimony of said witness was reliable
and truthful, the conviction on the basis of extra judicial confession is proper. [Ram Khilari v.
State of Rajasthan, AIR 1999 SC 1002]
In another case, the Supreme Court has further held that the law does not require that the
evidence of an extra-judicial confession should be corroborated in all cases. When such
confession was proved by an independent witness who was a responsible officer and one who
bore no animus against the accused, there is hardly any justification to disbelieve it. Also,
where the Court finds that the confession made by the accused to his friend was unambiguous
and unmistakably conveyed that the accused was the perpetrator of the crime and the
testimony of the friend was truthful, reliable and trustworthy, a conviction based on such
extra-judicial confession is proper and no corroboration is necessary. Much importance could

not be given to minor discrepancies and technical errors. [Vinayak Shivajirao Pol v. State of
Maharashtra, 1998 (1) Scale 159]
Question 21] Distinguish between: Confession & Admission

Every confession is admission but every admission is not confession. Comment.
Ans.: Following are main points of distinction between confession & admission:
Points Confession Admission
Meaning A confession is a statement made by an An admission is a statement which
accused person admitting that he has suggests any inference as to any ‘fact in
committed an offence. issue’ or ‘relevant fact’.
Who makes A confession is made by an accused. Admissions can be made by other persons
also.
Proceedings Confession finds place in criminal Admissions are generally used in civil
proceedings. proceedings, yet they may be used in
criminal proceedings.
Treatment Every confession is an admission. Every admission in a criminal case is not a
confession.
Culpatory Confession statement is culpatory. Admission is exculpatory.
Proved Confession is proved only for purposes Admitted facts need not be proved.
mentioned in the Indian Evidence Act,
1872.
Where A confession is inadmissible in evidence No such conditions are applicable to an
inadmissible if it has been made under promise, admission.
threat or due to inducement.
Effect A confession always goes against the An admission, on the contrary, may be
person making it. used on behalf of the person making it
under the exception provided in Section
21.
Question 22] Discuss the important provisions relating to confessions under Indian
Evidence Act, 1860.
No confession made to a police officer shall be proved as against a person accused of any
offence. CS (Inter) – June 1999 (8 Marks)
Ans.: Sections 24 to 26 deals with various types are confession, which are not admissible:
(1) Confession caused by inducement, threat or promise when irrelevant in criminal proceedings
[Section 24]: A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the Court to have been caused by
any inducement, threat or promise having reference to the charge against the accused
person, proceeding from a person in authority and sufficient, in the opinion of the Court,
to give the accused person grounds which would appear to him reasonable for supposing
that by making it he would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.
(2) Confession to police officer not to be proved [Section 25]: No confession made to a police
officer shall be proved as against a person accused of any offence.
(3) Confession by accused while in custody of police not to be proved against him [Section 26]: No
confession made by any person whilst he is in the custody of a police officer, unless it be
made in the immediate presence of a Magistrate, shall be proved as against such person.

(4) How much of information received from accused may be proved [Section 27]: When any fact is
deposed to as discovered in consequences of information received from a person accused of
any offence, in the custody of a police officer, so much of such information, whether if
amounts to a confessions or not, as relates distinctly to the fact thereby discovered, may
be proved.
(5) Confession made after removal of impression caused by inducement, threat or promise,
relevant [Section 28]: If a confession as is referred to in Section 24 is made after the
impression caused by any such inducement, threat or promise has, in the opinion of the
Court, been fully removed, it is relevant.
(6) Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.
[Section 29]: If a confession is otherwise relevant, it does not become irrelevant merely
because it was made under a promise of secrecy, or in consequence of a deception
practiced on the accused person for the purpose of obtaining, it, or when he was drunk, or
because it was made in answer to questions which he need not have answered, whatever
may have been the form of those questions, or because he was not warned that he was not
bound to make such confession, and that evidence of it might be given against him.
(7) Consideration of proved confession affecting person making it and others jointly under trial
for same offence [Section 30]: When more persons than one are being tried jointly for the
same offence, and a confession made by one of such persons affecting himself and some
other of such persons is proved, the Court may take into consideration such confession as
against such other person as well as against the person who makes such confession.
Illustrations: (as given in The Indian Evidence Act, 1872)
(a) A and B are jointly tried for the murder of C. It is proved that A said – “B and I murdered C”.
The Court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and
B, and that B said – “A and I murdered C". This statement may not be taken into
consideration by the Court against A, as B is not being jointly tried.
Question 23] Raman, the accused, a post office clerk, under suspicion for
misappropriating money, fell at his departmental inspector’s feet begging to be saved if
he disclosed everything and the inspector replied that he would try his utmost to save
him if he told the truth. Thereafter, the accused, Raman told everything. Is this
admissible as confession?
Ans.: As per Section 24 of the Indian Evidence Act, 1872, a confession is irrelevant as an
admission if it is made to a person in authority in consequence of some inducement, threat or
promise held out by him in reference to the charge against the accused.
In given problem, departmental officer is a person in authority and the accused Raman makes
confession to inspector due his promise that he will try his best to save Raman if he tells the
truth and hence confession made to inspector is inadmissible.
Question 24] A given consent to be a prosecution witness in a bribery case before a

police office. The police officer assures A that if he states the facts of the crime as
explained in police post he will not be prosecuted in the Court. A agrees to abide. When
A was produced before the Magistrate as witness, A refuses to be an approver in the case.
Can the police officer produce tape-recorded consent of A which he gave at the police
post to prove the crime of bribery against B before the Magistrate to hold B responsible
for the crime of bribery and to punish him. CS (Inter) – June 1997 (5 Marks)
The Police officer cannot produce the tape recorded consent of A for becoming approver to prove
the crime of bribery against B. The Magistrate will reject the tape recorded consent of A because
the consent was obtained by inducement/promise made by the police officer.

Question 25] Ramesh, a travelling auditor in the service of the railway company
detected defalcations in the accounts of accused Suresh, a booking clerk of company.
Upon detection of defalcation, Ramesh said to Suresh, “You better pay the amount
defalcated rather than going to jail and it will be better for you to tell the truth.” After
all this, Suresh, the accused was brought before Traffic Manager in whose presence he
signed a receipt for and admitted having defalcated a sum `1,500. Suresh, the accused,
was subsequently put on trial for criminal breach of trust as servant in respect of this
and other sums. Is the receipt signed by Suresh, the accused, admissible in evidence?
Also give reasons. CS (Inter) – Dec 2002 (6 Marks)
In given case, travelling auditor and traffic manager are person in authority and the accused
Suresh makes confession due to inducement/promise by them that they will send him to jail if
he does not tell the truth and hence confession is inadmissible.
Question 26] A confession made by an accused on the faith of a promise made by the
police officer making the investigation that he would get off if he made a disclosure of
the offence committed by him or would get pardon. Whether such a confession made by
the accused is admissible in evidence? Answer citing the relevant provisions of law.
promise held out by him in reference to the charge against the accused. Further Section 25
provides that confession made to a police officer shall not be proved against a person accused
of any offence. Hence, confession made by accused person to police officer is inadmissible in
evidence.
Question 27] A murder is committed on a dark night. Nobody is named as the murderer.
The sub-inspector of police goes to the locality to investigate. While he is investigating,
one B comes to him and says it was he who committed the murder. After that B is
arrested and becomes the accused in the case and is tried for the offence of murder.
Discuss the validity of the aforesaid statement of B. CS (Inter) – June 1998 (5 Marks)
Ans.: As per Section 25 of the Indian Evidence Act, 1872, no confession made to a police officer
shall be proved as against a person accused of any offence. Hence B’s confession will not be
admissible at the trial because at the time of proving the confession, B had become an accused
and the confession was made to police officer.
Question 28] An accused person makes a confessional statement to the police officer in
the hearing and presence of a private person. Can the private person give evidence of
the confessional statement made by the accused person so as to be proved against the
accused? CS (Inter) – June 2006 (5 Marks)
Ans.: As per Section 25 of the Indian Evidence Act, 1872, no confession made to a police
officer shall be proved as against a person accused of any offence.
As per Section 26, no confession made by any person whilst he is in the custody of a police
officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against
such person.
In given case, there is no Magistrate present; hence, the private person cannot give evidence of
the confessional statement of the accused so that it can be proved against the accused.

Question 29] A, an unmarried girl, was accused of the murder of her newly-born child.
She was sent in the custody of police constables, to a doctor for examination. When
being examined, she made a confession to the doctor. The police constable was standing
outside the room in which A was being examined by the doctor. Is the confession
admissible in evidence against A?
Ans.: As per Section 26 of the Indian Evidence Act, 1872, no confession made by any person
whilst he is in the custody of a police officer, unless it be made in the immediate presence of a
Magistrate, shall be proved as against such person.
In given problem confession made by A to the doctor when police constable was present in
outside the room is inadmissible, because temporary separation of the accused from the police
officer does not amount to severance of the custody.
Question 30] A Police officer overhears a confession made by Raman to his friend Sanjay
while they were conversing in a park. Can the police officer be permitted to give
evidence of this confession? CS (Inter) – June 1995 (5 Marks)
Ans.: As per Section 26 of the Indian Evidence Act, 1872, no confession made by any person
whilst he is in the custody of a police officer, unless it be made in the immediate presence of a
Magistrate, shall be proved as against such person.
In the given case, the accused Raman has not made any confession to the police officer directly
nor was he in the police custody when the police officer overheard the confession. Therefore, it
is not a confession made to police officer and as such, the bar of admissibility of evidence of
confession contained in Section 26, is not applicable.
Therefore, the police officer will be permitted to give evidence of the confession made by Raman,
the accused, to his friend Sanjay.
Question 31] A, an accused charged with the offence of murder of B, while in police
custody made a confession before a Civil Judge. Is this confession relevant and
admissible? CS (Inter) – Dec 1996 (5 Marks)
Ans.: According to Section 26 of the Indian Evidence Act, 1872, no confession made by any
person while he is in the custody of police officer, shall be proved against such person. The only
exception to this rule is that if such a confession was made in the immediate presence of a
Magistrate, it shall be proved against its maker.
In the given problem the confession is made in the immediate presence of a Civil Judge and not
that of a Magistrate. Hence, the confession is not admissible.
Question 32] At the trial of A for the murder of C the prosecution put as evidence the
statement of A: “I will produce the two knives concealed in a room of B’s house with
which B and I stabbed C.” This statement had been made by A while he was in the
custody of a police officer and did lead to the discovery of the knives. Discuss with
reference to the law of evidence whether the statement of A is admissible.
Ans.: Section 26 of the Indian Evidence Act, 1872 lay down that a confession by the accused
while in police custody is not to be proved against him. However, Section 27 is the exception to
the rule. In this section, it is provided that, any fact, deposed to be discovered in consequence
of information received from a person accused of any offence in the custody of a police officer,
so much of such information, whether it amounts to a confession or not, may be proved.
As per the facts given in case, statement was made by A in police custody and did lead to the
discovery of the knives; hence statement of A (accused) is admissible as per the law of evidence.
Question 33] A is charged with the murder of B. He is arrested and taken into custody of
the sub-inspector of police in charge of the investigation. A stated before the said sub-

inspector of police and he goes to the well with some independent witnesses and takes
out the dead body of B at the instance of A. Whether A’s statement can be proved
against him? CS (Inter) – June 1991 (5 Marks)
Ans.: As per Section 27 of the Indian Evidence Act, 1872, when any fact is deposed to as
discovered in consequences of information received from a person accused of any offence, in the
custody of a police officer, so much of such information, whether if amounts to a confessions or
not, as relates distinctly to the fact thereby discovered, may be proved.
In given case A is charged with the murder of B. He is arrested and taken into custody and he
stated before the police officer that he killed B and threw his dead body in a well. Consequently,
the police officer goes to the well and takes out the body. The facts stated in the problem satisfy
all the conditions laid down in Section 27 in order to prove the statement of A against him.
Therefore, A’s statement can be proved against him.
Question 34] A was tried for the murder of B whose body was found in a well and the
ornaments that B was wearing were missing from his body. A, while in police custody,
during investigation said that he had removed the ornaments, pushed B into the well
and had pledged the ornaments with C. In consequence of this statement the ornaments
were recovered from C. Discuss the admissibility of A’s statement.
Anuj was tried for the murder of Barkha whose body was found in a well and the
ornaments that Barkha was wearing were missing from his body. Anuj, while in police
custody, during investigation said that he had removed the ornaments, pushed Barkha
into the well and had pledged the ornaments with Chandan. In consequence of this
statement the ornaments were recovered from Chandan. Discuss the admissibility of
Anuj’s statement. CS (Inter) – June 2002 (5 Marks)
Ans.: As per Section 27 of the Indian Evidence Act, 1872, when any fact is deposed to as
discovered in consequences of information received from a person accused of any offence, in the
custody of a police officer, so much of such information, whether if amounts to a confessions or
not, as relates distinctly to the fact thereby discovered, may be proved. The effect is that so
much of the information as relates distinctly to the fact thereby discovered is admissible in
evidence.
In given case, A had given three information’s, namely –
- He had removed the ornaments,
- He pushed B into the well and
- He pledged the ornaments with C.
In consequence of the statement of A, the ornaments were recovered from C. However, only the
last information that he pledged the ornaments with C is discovered and hence, it can be
proved by A’s admission. The other two information’s do not distinctly relate to the recovery of
ornaments from C. Hence, they cannot be proved by A’s admission.
Question 35] A and B committed murder of C. Trial started. A made a confession before
magistrate. Thereafter, A was convicted, while B was absconding. Subsequently B was
arrested and trial was started against B. The prosecution wants to use the confession of
A against B. Will the prosecution succeed? CS (Inter) – Dec 1998 (5 Marks)
Ans.: According to Section 30 of the Indian Evidence Act, 1872, when more persons than one
are being tried jointly for the same offence, and a confession made by one of such persons
affecting himself and some other of such persons is proved, the Court may take into
consideration such confession as against such other person as well as against the person
makes such confession.
In given case, A and B are not jointly tried hence confession of A cannot be used against B.
Question 36] A is on his trial for the murder of C. There is evidence to show that C was

murdered by A and B, and that B said – “A and I murdered C".

consideration such confession as against such other person as well as against the person who
Facts of given case are same to one of the illustration given in Section 30 of the Indian Evidence
Act, 1872.
A is on his trial for the murder of C, There is evidence to show that C was murdered by A and
B, and that B said – “A and I murdered C". This statement may not be taken into consideration
by the Court against A, as B is not being jointly tried.
Question 37] Antony and Tony are co-accused of the crime of kidnapping and murdering
a child. Antony denies the charges but Tony confesses that he along with Anthony has
committed the crime. How far is the statement made by Tony relevant against Anthony?
In given case Antony and Tony are co-accused of the crime and if they are jointly tried then
confession of Tony may be taken into consideration against Tony as well as against the Antony.
Question 38] Anand is on his trial for the murder of Chanchal. There is evidence to show
that Chanchal was murdered by Anand and Birender and that Birender said, “Anand and
I murdered Chanchal.” Can the Court take into consideration this statement against
Anand? Will your reply be different in case there is joint trial against Anand and
Birender? Give reasons. CS (Inter) – June 2005 (6 Marks)
In given case Anand and Birender are not jointly tried hence Court cannot take into
consideration this statement given by Birender against Anand.
If they are jointly tried then Court may take into consideration confession of Birender as
against Anand as well as Birender.
Question 39] Amar and Bimal are jointly tried for the murder of Roshan. It is proved that
Amar said, "Bimal and I murdered Roshan". Can the Court consider the effect of this
confession as against Bimal? Give reasons. CS (Inter) – Dec 2005 (5 Marks)
In given case Amar and Bimal are co-accused and are jointly tried; hence Court can take into
consideration statement given by Amar against Bimal.

Question 40] The charge against A is that she, with the help of her paramour B, has
committed murder of her husband by administering poison to him. A makes a
confession. In its first part, she states that bottles containing poison and medicine for
her ailing husband were lying in the same almirah, and that she by mistake
administered poison in place of medicine to her husband. In the other part, she narrates
how she and B threw the dead body in a well in order to destroy evidence. Can the court
reject the first part as not true, and accept the other treating it as correct?
Ans.: The statement of A is a self-exculpatory statement which does not amount to a confession
as decided in Pakala Narayanaswami’s case. Therefore, this part of the alleged confession is not a
confession at all.
A confession can be accepted in total. It is not permissible for the Court to reject the
exculpatory part of the confession as untrue and to accept the inculpatory part of it as true
one. Hence, the Court cannot partly accept and partly reject the confession of A.
Question 41] Explain the law relating to admissibility in evidence of a dying declaration.
If the person making a dying declaration survives, is it admissible in evidence?
Ans.: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is
relevant [Section 32]: Statements, written or verbal, of relevant facts made by a person who is
dead, or who cannot be found, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense which, under the
circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in
the following cases:
(1) When statement relates to cause of death: When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in
his death, in cases in which the cause of that person’s death comes into question. Such
statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
(2) When statement is made in course of business: When the statement was made by such
person in the ordinary course of business, and in particular when it consists of any entry or
memorandum made by him in books kept in the ordinary course of business, or in the
discharge of professional duty; or of an acknowledgement written or signed by him of the
receipt of money, goods, securities or property of any kind; or of a document used in
commerce written or signed by him; or of the date of a letter or other document usually
dated, written or signed by him.
(3) When the statement is against interest of maker: When the statement is against the
pecuniary or proprietary interest of the person making it, or when, if true, it would expose
him or would have exposed him to a criminal prosecution or to a suit for damages.
(4) When the statement gives opinion as to public right or custom, or matters of general interest:
When the statement gives the opinion of any such person, as to the existence of any public
right or custom or matter of public or general interest, of the existence of which, if it
existed, he would have been likely to be aware, and when such statement was made before
any controversy as to such right, custom or matter had arisen.
(5) When the statement relates to existence of relationship: When the statement relates to the
existence of any relationship by blood, marriage or adoption between persons as to whose
relationship by blood, marriage or adoption the person making the statement had special
means of knowledge, and when the statement was made before the question in dispute was
raised.
(6) When the statement is made in will or deed relating to family affairs: When the statement
relates to the existence of any relationship by blood, marriage or adoption between persons
deceased, and is made in any will or deed relating to the affairs of the family to which any

such deceased person belonged, or in any family pedigree, or upon any tombstone, family
portrait or other thing on which such statements are usually made, and when such
statement was made before the question in dispute was raised.
(7) When the statement is contained in document relating to transaction mentioned in Section
13(a): When the statement is contained in any deed, will or other document which relates to
any such transaction as is mentioned in Section 13(a).
(8) When the statement is made by several persons and expresses feelings relevant to matter in
question: When the statement was made by a number of persons, and expressed feelings or
impressions on their part relevant to the matter in question.
Illustrations: (As given in Indian Evidence Act, 1872)
(a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the
course of which she was ravished. The question is whether she was ravished by B; or the question
is, whether A was killed by B under such circumstances that a suit would lie against B by A’s
widow. Statements made by A as to the cause of his or her death, referring respectively to the
murder, the rape and the actionable wrong under consideration, are relevant facts.
(b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon regularly
kept in the course of business, stating that, on a given day he attended A’s mother and delivered
her of a son, is a relevant fact.
(c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased
solicitor, regularly kept in the course of business that on a given day the solicitor attended A at a
place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a
relevant fact.
(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a
deceased member of a merchant’s firm by which she was chartered to their correspondents in
London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay
harbour, is a relevant fact.
(e) The question is, whether rent was paid to A for certain land. A letter from A’s deceased agent to A,
saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact.
(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that
he married them under such circumstances that the celebration would be a crime, is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact
that a letter written by him is dated on that day is relevant.
(h) The question is, what was the cause of the wreck of a ship? A protest made by the Captain, whose
attendance cannot be procured, is a relevant fact.
(i) The question is, whether a given road is a public way. A statement by A, a deceased headman of
the village, that the road was public, is a relevant fact.
(j) The question is, what was the price of grain on a certain day in a particular market? A statement of
the price, made by a deceased banya in the ordinary course of his business, is a relevant fact.
(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son,
is a relevant fact.
(l) The question is, what was the date of the birth of A? A letter from A’s deceased father to a friend,
announcing the birth of A on a given day, is a relevant fact.
(m) The question is, whether, and when, A and B were married. An entry in a memorandum book by C,
the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.
(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as
to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators
on these points may be proved.
Question 42] On 20th March, Kamal told his wife that he was going to Berhmpore, as
Pankaj’s wife has written a letter and asked him to come and receive payments due to
him. On 21st March, Kamal left his house in time to catch a train for Berhmpore, where
Pankaj lived with his wife. On 23rd March, Kamal’s dismembered body was found in a box
which had been purchased for Pankaj. Decide whether on the trial of Pankaj for the
murder of Kamal, the statement made by Kamal to his wife was admissible in evidence.
If so, on what grounds? CS (Inter) – June 1997 (5 Marks)

Ans.: In Indian law, for admissibility of a statement as dying declaration it is not necessary that,
at the time when the deceased made the statement there must be danger to his death and he
must also entertain a reasonable apprehension of his death.
The statement of Kamal is admissible in evidence as his dying declaration as per Section 32 of
the Indian Evidence Act, 1872 because it throws light upon the probable cause of his death or
as to any of the circumstances of the transaction which resulted in his death.
Therefore, although at the time Kamal made the statement, there was no danger to his life, yet
this statement can be accepted in evidence as the dying declaration of Kamal.
Question 43] Statements made under special circumstances are relevant and admissible
as evidence. Discuss.
Ans.: Entries in books of account when relevant [Section 34]: Entries in books of account,
including those maintained in an electronic from, regularly kept in the course of business, are
relevant whenever they refer to a matter into which the Court has to inquire, but such
statements shall not alone be sufficient evidence to charge any person with liability.
A sues B for `1,00,000, and shows entries in his account books showing B to be indebted to him to
this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.
Relevancy of entry in public record made in performance of duty [Section 35]: An entry in any
public or other official book, register or record or an electronic record, stating a fact in issue or
relevant fact, and made by a public servant in the discharge of his official duty, or by any other
person in performances of a duty specially enjoined by the law of the country in which such
book, register or record or an electronic record, is kept, is itself a relevant fact.
Relevancy of statements in maps, charts and plans [Section 36]: Statements of facts in issue or
relevant facts, made in published maps or charts generally offered for public sale, or in maps or
plans made under the authority of the Central Government or any State Government, as to
matters usually represented or stated in such maps, charts or plans, are themselves relevant
facts.
Relevancy of statement as to fact of public nature contained in certain Acts or notifications
[Section 37]: When the Court has to form an opinion as to the existence of any fact of a public
nature, any statement of it, made in a recital contained in any Act of Parliament of the United
Kingdom or in any Central Act, Provincial Act or a State Act or in a Government notification or
notification by the Crown Representative appearing in the Official Gazette or in any printed
paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony
or possession of his Majesty is a relevant fact.
Relevancy of statements as to any law contained in law-books [Section 38]: When the Court has to
form an opinion as to a law of any country, any statement of such law contained in a book
purporting to be printed or published under the authority of the Government of such country
and to contain any such law, and any report of a ruling of the Courts of such country contained
in a book purporting to be a report of such rulings, is relevant.
Opinion of Experts/Third persons
Question 44] Write a short note on: Expert opinion CS (Executive) – June 2009 (4 Marks)
Ans.: Opinion of experts [Section 45]: When the Court has to form and opinion upon a point of
foreign law or of science or art, or as to identity of handwriting or finger impressions, the
opinions upon that point of persons specially skilled in such foreign law, science or art, or in
questions as to identity of handwriting or finger impressions are relevant facts.
Such persons are called experts.

(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have
died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of
mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or
contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show
unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable
of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or
contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced
which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same
person or by different persons, are relevant.
Opinion of examiner of electronic evidence [Section 45A]: When in a proceeding, the Court has to
form an opinion on any matter relating to any information transmitted or stored in any
computer resource or any other electronic or digital form, the opinion of the Examiner of
Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000, is a
relevant fact.
Explanation: For the purposes of this section, an Examiner of Electronic Evidence shall be an
expert.
Facts bearing upon opinions of experts [Section 46]: Facts, not otherwise relevant, are relevant if
they support or are inconsistent with the opinions of experts, when such opinions are relevant.
(a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were
poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the
symptoms of that poison, is relevant.
(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that
other harbours similarly situated in other respects, but where there were no such sea-walls, began
to be obstructed at about the same time, is relevant.
Question 45] Statement or opinion given by thirds person are also relevant. Explain this
with reference to provisions of the Indian Evidence Act, 1872.
Ans.: Opinion as to hand-writing, when relevant [Section 47]: When the Court has to form an
opinion as to the person by whom any document was written or signed, the opinion of any
person acquainted with the handwriting of the person by whom it is supposed to be written or
signed that it was or was not written or signed by that person, is a relevant fact.
Explanation: A person is said to be acquainted with the handwriting of another person when he
has seen that person write, or when he has received documents purporting to be written by
that person in answer to documents written by himself or under his authority and addressed to
that person, or when, in the ordinary course of business, documents purporting to be written
by that person have been habitually submitted to him.
The question is, whether a given letter is in the handwriting of A, a merchant in London. B is a
merchant in Calcutta, who has written letters addressed to A and received letters purporting to be
written by him. C, is B’s clerk whose duty to was to examine and file B’s correspondence. D is B’s
broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of
advising with him thereon. The opinions of B, C and D on the question whether the letter is in the
handwriting of A are relevant, though neither B, C nor D ever saw A write.
Opinion as to digital signature, when relevant [Section 47A]: When the Court has to form an
opinion as to the electronic signature of any person, the opinion of the Certifying Authority
which has issued the electronic Signature Certificate, is a relevant fact.

Opinion as to existence of right or custom, when relevant [Section 48]: When the Court has to
form an opinion as to the existence of any general custom or right, the opinions, as to the
existence of such custom or right, of persons who would be likely to know of its existence if it
existed, are relevant.
Explanation: The expression general custom or right‖ includes customs or rights common to
any considerable class of persons.
The right of the villagers of a particular village to use the water of a particular well is a general right
within the meaning of this section.
Opinion as to usages, tenets etc. when relevant [Section 49]: When the Court has to form an
opinion as to –
- the usages and tenets of any body of men or family,
- the constitution and government of any religious or charitable foundation, or
- the meaning of words or terms used in particular districts or by particular classes of people,
the opinion of persons having special means of knowledge thereon are, relevant facts.
Opinion on relationship, when relevant [Section 50]: When the Court has to form an opinion as to
the relationship of one person to another, the opinion, expressed by conduct, as to the
existence of such relationship, of any person who, as a member of the family or otherwise, has
special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall
not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869, or in
prosecutions under sections 494, 495, 497 and 498 of the Indian Penal Code.
(a) The question is, whether A and B, were married. The fact that they were usually received and
treated by their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such
by members of the family, is relevant.
Grounds of opinion, when relevant [Section 51]: Whenever the opinion of any living person is
relevant, the grounds on which such opinion is based are also relevant.
An expert may give an account of experiments performed by him for the purpose of forming his opinion.
Question 46] A files a suit against B for recovering `40,000 from B for breach of an
agreement for the sale of 20 bales of cloth. At the hearing A wants to tender in evidence,
a letter mentioning some of the material terms of the agreement, written by C, a clerk,
in his office, to B. Is the letter admissible in evidence without C being called as a
witness.
Ans.: As per Section 47 of the Indian Evidence Act, 1872, when the Court has to form an
opinion as to the person by whom any document was written or signed, the opinion of any
person acquainted with the handwriting of the person by whom it is supposed to be written or
signed that it was or was not written or signed by that person, is a relevant fact.
Thus, the letter is admissible in evidence without C being called as a witness u/s 47 of the
Indian Evidence Act, 1872. Evidence of a person acquainted with the handwriting of the writer
is admissible in evidence. C is a clerk in the office of A, and A would naturally, therefore, be
acquainted with the writing of C.
Oral, documentary & circumstantial evidence
Question 47] “Oral evidence in all cases must be direct”. Discuss.

Ans.: Proof of facts by oral evidence [Section 59]: All facts, except the contents of documents or
electronic records, may be proved by oral evidence.

Oral evidence must be direct [Section 60]: Oral evidence must, in all cases whatever, be direct;
that is to say:
- if it refers to a fact which could be seen, it must be the evidence of a witness who says who
says he saw it;
- if it refers to a fact which could be heard, it must be the evidence of a witness who says he
heard it;
- if it refers to a fact which could be perceived by any other sense or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense or in that manner;
- if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds:
If oral evidence refers to the existence or condition of any material thing other than a
document, the Court may, if it thinks fit, require the production of such material thing for its
inspection.
Question 48] “Hearsay evidence is no evidence”. Explain this rule of law. Is hearsay
evidence ever admissible? CS (Inter) – June 1995 (8 Marks), Dec 2000 (8 Marks)
Ans.: Section 59 of the Indian Evidence Act, 1872 provides that, except contents of document,
all other facts may be proved by oral evidence.
Section 60 enacts that, oral evidence must not be indirect or hearsay. The term ‘hearsay’ is not
mentioned in the legislation, it is in constant use in the Court of law. In a larger context, it can
be termed as statements oral or written reported to have been made by persons, not called
witnesses.
Example: Amar gives the evidence in the Court that he had seen Baban while making murder of
Chirag. It is direct evidence and is admissible.
However, if Amar gives the evidence that he has heard from some person that Baban murdered
Chirag is hearsay evidence and is not admissible.
Reasons for rejection of hearsay evidence: There are many reasons for rejection of hearsay
evidence, among them being:
 The irresponsibility of the original declarant.
 The depreciation of truth in the process of repetition.
 The chances for fraud on its admission.
 The waste of time involved in listening to idle rumour etc.
Hearsay evidence is therefore not ordinarily accepted in line with the principle that best
available evidence should be brought before the Court. Section 60 puts an embargo on
reception of hearsay evidence. However, it does not apply when the object is not to establish the
truth of one’s statement but only to establish the fact that one did make a statement.
Question 49] Distinguish between: Direct Evidence & Hearsay Evidence
Ans.: Following are the main points of distinction between direct evidence & hearsay evidence:
Points Direct Evidence Hearsay Evidence
Meaning Direct evidence is that evidence which the Hearsay evidence is that which has
witness is giving of his own perception. derived by other person.
Source Source of direct evidence is the person In case of hearsay evidence the person
who gives it. giving hearsay evidence is not original
source.
Admissibility Direct evidence is relevant and admissible. Hearsay evidences are not admissible.
Liability of The liability of veracity of direct evidence is In case of hearsay evidence the person
person on person who is giving it. giving evidence does not take the
giving responsibility of its veracity.
evidence
Cross The person giving direct evidence is The person giving hearsay evidence cannot
examination available for cross examination for testing be cross examined as such evidences are

its veracity. not admissible.
Question 50] Write a short note on: Documentary evidence
Ans.: A “document” means any matter expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those means, intended to be used, or which
may be used for the purpose of recording that matter. Documents produced for the inspection
of the Court is called documentary evidence.
Proof of contents of documents [Section 61]: The contents of documents may be proved either by
primary or by secondary evidence.
Question 51] Explain primary and secondary evidence of documents. When may
secondary evidence be given? CS (Inter) – Dec 2006 (5 Marks)
Distinguish between: Primary Evidence & Secondary Evidence
CS (Executive) – June 2010 (4 Marks), June 2011 (4 Marks)
Ans.: Primary Evidence [Section 62]: Primary evidence means the document itself produced for
the inspection of the Court.
Secondary Evidence [Section 63]: Secondary evidence is generally in the form of compared
copies, certified copies or copies made by such mechanical processes as in themselves ensure
accuracy.
Secondary evidence means and includes –
(1) certified copies;
(2) copies made from the original by mechanical processes which in themselves insure the
accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
(a) A photograph of an original is secondary evidence of its contents, though the two have not been
compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the
contents of the letter, if it is shown that the copy made by the copying machine was made from the
original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence;
but the copy not so compared is not secondary evidence of the original, although the copy from
which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph
or machine-copy of the original, is secondary evidence of the original.
Proof of documents [Section 64]: Documents must be proved by primary evidence.
Question 52] Distinguish between: Primary Evidence & Secondary Evidence
Ans.: Following are the main points of distinction between primary evidence & secondary
evidence:
Points Primary Evidence Secondary Evidence
Meaning Primary evidence means the document Secondary evidence is generally in the
itself produced for the inspection of the form of compared copies, certified copies
Court. or copies made by such mechanical
processes as in themselves ensure
accuracy.
Section It is governed by Section 62 of the Indian It is governed by Section 63 of the Indian
Evidence Act, 1872. Evidence Act, 1872.
Superiority Primary evidence is the best evidence in Secondary evidence is not best evidence

all circumstances. but is evidence of secondary nature and is

admitted in exceptional circumstances
mentioned in Section 63.
Notice No notice is required before giving primary Notice is required to be given before giving
evidence. secondary evidence.
Value The value of primary evidence is highest. The value of secondary evidence is not as
that of primary evidence.
Question 53] Write a short note on: Admissibility of electronic records as evidence under
the Indian Evidence Act, 1872
Ans.: Special provisions as to evidence relating to electronic record [Section 65A]: The contents of
electronic records may be proved in accordance with the provisions of Section 65B.
Admissibility of electronic records [Section 65B]: Any information contained in an electronic
record which is printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer (i.e. computer output) shall be deemed to be also a document, if the
specified conditions are satisfied in relation to the information and computer in question and
shall be admissible in any proceedings, without further proof or production of the original, as
evidence or any contents of the original or of any fact stated therein of which direct evidence
would be admissible.
Question 54] Write a short note on: Circumstantial Evidence

Ans.: Circumstantial evidence is evidence which strongly suggests something, but does not
exactly prove it. Circumstantial evidence simply helps people draw inferences about a fact, or
the events that took place. This type of evidence is, on its own, considered to be weak or
ineffective, so it is used in conjunction with direct evidence in both criminal and civil cases.
Whether or not the Court makes the intended inference has a major impact on the outcome of
the case.
Example: Meena testifies in Court that she saw Rohan standing over a man with a bloody knife
in his hand. Menna did not see Rohan stab the victim, so she can only testify and describe
what she saw. This circumstantial evidence is likely not enough by itself to convict Rohan, so
the prosecution provides other evidence which, when added to Meena’s testimony, leads the
Court to the conclusion that Rohan stabbed the victim.
Facts of which evidence cannot be given
Question 55] Discuss the various facts of which evidence cannot be given under Indian
Evidence Act, 1860.
State the facts of which evidence cannot be given.
Ans.: There are some facts of which evidence cannot be given though they are relevant, such as
facts coming under Sections 121 to 127, where evidence is prohibited under those sections.
They are discussed as follows:
(1) Privilege of Judge or Magistrate [Section 121]: No Judge or Magistrate shall be compelled to
answer any question as to his own conduct in Court or as to anything that has come to his
knowledge in Court as a Judge or Magistrate. But he can be compelled to give evidence on
a special order of Superior Court. Further, he can be examined as to other matters which
occurred in his presence whilst he was so acting.
(2) Communications during marriage [Section 122]: No person who is or has been married shall
be compelled to disclose any communication made to him during marriage by any person

to whom he is or has been married. No such person shall he be permitted to disclose any
such communication, unless the person, who made it, or his representative, consents.
However in suits between married persons or proceedings in which one married person is
prosecuted for any crime committed against the other disclosure of communication will be
allowed.
(3) Evidence as to affairs of State [Section 123]: No one shall be permitted to give any evidence
derived from unpublished official records relating to any affairs of State. However, with the
permission of the officer at the head of the department evidence as to unpublished official
records can be given.
(4) Official communications [Section 124]: No public officer shall be compelled to disclose
communications made to him in official confidence, when he considers that the public
interests would suffer by the disclosure.
(5) Information as to commission of offences [Section 125]: No Magistrate or Police Officer shall
be compelled to say when he got any information as to the commission of any offence, and
no Revenue-Officer shall be compelled to say when he got any information as to the
commission of any offence against the public revenue.
(6) Professional communication [Section 126]: No barrister, attorney, pleader or vakil shall at
any time be permitted, to disclose any communication made to him in the course and for
the purpose of his employment. However, disclosure is permitted with his client’s express
consent.
However, nothing in this section shall protect from disclosure –
(1) Any such communication made in furtherance of any illegal purpose.
(2) Any fact observed showing that any crime or fraud has been committed since the
commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or
was not directed to such fact by or on behalf on his client.
Illustrations: (as given in The Indian Evidence Act, 1872)
(a) A, a client says to B, an attorney - "I have committed forgery and I wish you to defend me". As the
defence of a man known to be guilty is not a criminal purpose, this communication is protected from
disclosure.
(b) A, a client, says to, B, an attorney - "I wish to obtain possession of property by the use of forged deed
on which I request you to sue". This communication, being made in furtherance of a criminal
purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the
proceedings B observes that an entry has been made in A’s account book, charging A with the sum
said to have been embezzled, which entry was not in the book at the commencement of his
employment. This being a fact observed by B in the course of his employment, showing that a fraud
has been committed since the commencement of the proceedings, it is not protected from disclosure
Question 56] A and B were married in 2007. They lived as husband and wife up to
January 10, 2017 when their marriage was dissolved by a decree of divorce passed by a
Court of competent jurisdiction. In 2008, A told B that he had committed theft of
ornaments of C. In 2018, trial commences against A for the theft of ornaments of C. Can
B appear as a witness against A and state before the Court that A had intimated to her in
2015 that he committed theft of ornaments of C?
Ans.: As per Section 122 of the Indian Evidence Act, 1872, no person who is or has been
married shall be compelled to disclose any communication made to him during marriage by any
person to whom he is or has been married. No such person shall he be permitted to disclose
any such communication, unless the person, who made it, or his representative, consents.
Thus, the communication made by A or B during married life is a privileged one and B cannot
be compelled or permitted to disclose the same in the capacity of a witness. The fact that the
marriage between A and B has already been dissolved is of no consequence, because the

prohibition on disclosure of privileged communication continues even after the dissolution of

marriage.
Question 57] Rani informed Shyam in the year 2014 that she had committed theft of the
ornaments of her neighbour. Thereafter, Rani and Shyam were married in 2015. In the
year 2018, prosecution was started against Rani in respect of the theft of ornaments.
Shyam is called to give evidence in this case. Can Shyam disclose the communication
made to him by Rani? CS (Inter) – Dec 1997 (6 Marks), June 2014 (6 Marks)
Ans.: As per Section 122 of the Indian Evidence Act, 1872, no person who is or has been
married shall be compelled to disclose any communication made to him during marriage by any
person to whom he is or has been married. No such person shall he be permitted to disclose
any such communication, unless the person, who made it, or his representative, consents.
Thus, the communication made by Rani or Shyam during married life is a privileged one and
Shyam cannot be compelled or permitted to disclose the same in the capacity of a witness.
In this case, Rani gave the information to Shyam in 2014, but they got married in 2015. Thus,
communication is made ‘before marriage’ and not ‘during the marriage’. Hence, Shyam can give
evidence and disclose the communication made to him by Rani because Rani communicated
with Shyam before her marriage with Shyam.
Question 58] A, a client, says to B, an advocate, “I have committed a murder and I want
you to defend me”. Whether the advocate can disclose the aforesaid communication to
the court or to the police? CS (Inter) – Dec 1993 (5 Marks)
Ans.: As per Section 126 of the Indian Evidence Act, 1872, no barrister, attorney, pleader or
vakil shall at any time be permitted, to disclose any communication made to him in the course
and for the purpose of his employment. However, disclosure is permitted with his client’s
express consent.
Accordingly, in the given case the communication of A to B cannot be disclosed by B.
Question 59] A lawyer, in the course, and for the purpose, of his employment as legal
adviser receives certain instructions from his client. The employment ceases and the
client dies. The lawyer is subsequently called to give evidence and disclose the said
instructions, can he permitted to do so?
Ans.: As per Section 126 of the Indian Evidence Act, 1872, no barrister, attorney, pleader or
vakil shall at any time be permitted, to disclose any communication made to him in the course
and for the purpose of his employment. However, disclosure is permitted with his client’s
express consent. A lawyer is under an obligation not to disclose communications which have
been made to him in him in the course and for the purpose of his employment. The obligation
of ‘not to disclose professional communications’ continues even after employment ceases.
Hence, lawyer cannot be subsequently called to give evidence and disclose the instructions
given by his client.
Presumption & Estoppel
Question 60] Whether Courts in India are entitled to presume certain facts?
Ans.: Court may presume existence of certain facts [Section 114]: The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private business, in their relation to
the facts of the particular case.
Presumptions are inferences which are drawn by the court with respect to the existence of

certain facts. When certain facts are presumed to be in existence the party in whose favour they
are presumed to exist need not discharge the burden of proof with respect to it. This is an
exception to the general rule that the party which alleges the existence of certain facts has the
initial burden of proof but presumptions do away with this requirement.
Presumptions can be defined as an affirmative or negative inference drawn about the truth or
falsehood of a fact by using a process of probable reasoning from what is taken to be granted. A
presumption is said to operate where certain fact are taken to be in existence even there is no
complete proof. A presumption is a rule where if one fact which is known as the primary fact is
proved by a party then another fact which is known as the presumed fact is taken as proved if
there is no contrary evidence of the same. It is a standard practice where certain facts are
treated in a uniform manner with regard to their effect as proof of certain other facts. It is an
inference drawn from facts which are known and proved. Presumption is a rule which is used
by judges and courts to draw inference from a particular fact or evidence unless such an
inference is said to be disproved.
Presumptions can be classified into certain categories:
 Presumptions of fact  Presumptions of law  Mixed Presumptions
Presumptions of fact: Presumptions of fact are those inferences which are naturally and logically
derived on the basis of experience and observations in the course of nature or the constitution
of the human mind or springs out of human actions. These are also called as material or
natural presumptions. These presumptions are in general rebuttable presumptions.
Presumptions of law: Presumptions of law are those inferences which are said to be established
by law. It can be sub-divided into rebuttable presumptions of law and irrebuttable
presumptions of law. Rebuttable Presumptions of law are those presumptions of law which hold
good until they are disproved by evidence to the contrary. Irrebuttable Presumptions of law are
those presumptions of law which are held to be conclusive in nature. They cannot be
overturned by any sort of contrary evidence however strong it is.
Mixed Presumptions: Mixed Presumptions are certain inferences which can be considered as
observations of law due to their strength or importance. These are also known as presumptions
of mixed law and fact and presumptions of fact recognized by law.
Question 61] What is the principle of estoppel under the Indian Evidence Act, 1872?
The principle of estoppel says that a man shall not say one thing at one time and later
on say a different thing. Comment. CS (Executive) – Dec 2012 (4 Marks)
Ans.: Estoppel [Section 115]: When one person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be true and to act upon
such belief, neither he nor his representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny the truth of that thing.
Example: A intentionally and falsely leads B to believe that certain land belongs to A, and
thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A
seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must
not be allowed to prove his want of title.
Principle of Estoppel is based on the maxim ‘allegans contratia non est audiendus’ i.e. a person
alleging contrary facts should not be heard. It says that man cannot approbate and reprobate, or
that a man cannot blow hot and cold, or that a man shall not say one thing at one time and
later on say a different thing.
In Biju Patnaik University of Tech. Orissa v. Sairam College, AIR 2010 (NOC) 691 (Orissa), one private
university permitted to conduct special examination of students prosecuting studies under one time
approval policy. After inspection, 67 students were permitted to appear in the examination and their
results declared. However, university declined to issue degree certificates to the students on the ground
that they had to appear for further examination for another condensed course as per syllabus of
university. It was held that once students appeared in an examination and their results declared, the
university is estopped from taking decision withholding degree certificate after declaration of results.

Objective Questions
(1) Confession made before the Magistrate by a co-accused against another co-accused, who is
not jointly tried with him for an offence, is admissible as evidence.
(2) Facts which though not in issue, are so connected with a fact in issue as to form part of
the same transaction are admissible as evidence if Court permit the same.
(3) Any fact is relevant, which shows or constitutes a motive or preparation for any fact in
issue or relevant fact.
(4) Facts inconsistent with fact in issue are not relevant facts.
(5) Admissions are used only in civil proceedings.
(6) Admitted facts need not be proved.
(7) Admission is culpatory.
(8) A confession do not always goes against the person making it.
(9) Confession made to a police officer shall be admissible as evidence against a person
accused of any offence.
(10) It is permissible for the Court to reject the exculpatory part of the confession as untrue
and to accept the inculpatory part of it as true one.
Ans.:
(1) Incorrect. When more persons than one are being tried jointly for the same offence, and a
confession made by one of such persons affecting himself and some other of such persons
is proved, the Court may take into consideration such confession as against such other
person as well as against the person makes such confession. [Section 30]
(2) Incorrect. Facts which though not in issue, are so connected with a fact in issue as to form
part of the same transaction are admissible as evidence.
(3) Correct.
(4) Incorrect. As per Section 11 of the Indian Evidence Act, 1872, facts inconsistent with any
fact in issue are relevant facts.
(5) Incorrect. Admissions are generally used in civil proceedings, yet they may be used in
criminal proceedings.
(6) Correct. Admitted facts need not be proved. Facts which are not admitted by other party
are required to be proved.
(7) Incorrect. Admission is exculpatory. Confession statement is culpatory.
(8) Incorrect. A confession always goes against the person making it.
(9) Incorrect. No confession made to a police officer shall be proved as against a person
accused of any offence. [Section 25]
(10) Incorrect. It is not permissible for the Court to reject the exculpatory part of the confession
as untrue and to accept the inculpatory part of it as true one.
word(s)/figures(s):
(1) According to Section 59 of the Indian Evidence Act, 1872, except contents of document, all
other facts may be proved by ________
(2) Oral evidence must, in all cases whatever, be ________
(3) ________ means the document itself produced for the inspection of the Court.
(4) ________ is generally in the form of compared copies, certified copies or copies made by
such mechanical processes as in themselves ensure accuracy. Section 63 defines the kind
of secondary evidence permitted by the Act.
(5) Documents produced for the inspection of the Court is called ________
Answers to fill in the blanks:

(1) oral evidence (2) direct (3) Primary evidence (4) Secondary evidence (5) documentary
evidence
* * * * * * * * * * *

Special Courts, Tribunals Under The Companies Act &

Other Legislation
1. Difference between a court and tribunal.
2. Power of NCLT regarding winding up of company under Companies Act, 2013.
3. Appeal from orders of NCLT to NCLAT.
4. Procedure of Appeal before NCLAT
5. Special court and offences triable by special courts
Difference between Court and Tribunal

Court Tribunal
Meaning
Court refers to a part of legal system which Tribunals can be described as minor
is established to give their decision on civil courts that adjust disputes arising in
and criminal cases. special cases.
Decision
Decision of court can be dividend in three Decision of tribunal may in form of order
parts order, decree and judgement or Award
Deals with
Court deals with Criminal and civil cases. Tribunals deals with special cases.
Headed by
Courts are headed by judge, panel of Tribunal normally consist of single
judges or magistrate member. In some cases tribunal may
consists of chairperson and other judicial
and technical.
Procedure
Civil court has to follow procedure as laid Tribunals are not required to follow strict
down in the CPC, 1908 while criminal court procedures. The strict rules relating
court has to follow the procedure as laid to the evidence pleading and procedure,
down in CRPC, 1973 which apply in the court are not binding in
the tribunals proceedings in many cases.
Appearance
Normally advocate appears on behalf of In addition to advocates other
client before the court. professionals like company secretary or
chartered accountant can also appears
before tribunal.
Constitution of NCLT and Qualification of President and members of NCLT

The CG shall by notification in OG specify a tribunal and constitute it by the name national
company law tribunal for hearing on all matters under companies Act, 2013.
Tribunal shall consist of a president and Judicial / Technical members.
President Members
1. Any person who is or has been Judicial Member Technical Members

a judge of HC for 5 years
2. Term – 5 years and shall be
eligible for reappointment
until he attains 67 years of age.
1. Any member who is or has been a judge of a 1. Any person who has 15 years of
HC / District court judge for at least 5 years experience as a member of Indian
/ advocate for at least 10 years. corporate law service / Indian legal
2. Term of office – 5 years shall be eligible for service / holding a rank of secretary or
reappointment upto the age of 65 years but additional secretary to the Government
must be of at least 50 years of age. of India.
2. CA / CS / CMA in practice for at least 15
years.
3. Person of ability integrity and standing
having special knowledge and
professional expresence of 15 years.
4. Presiding officer as per Industrial
dispute act for at least 5 years.
5. Term of office – Mutatis Mutandis
Constitution of NCLAT
1. The AT shall consist of a chairperson and II Judicial / Technical member.
2. It shall hear the appeal against the order of NCLT and any direction, decision or order under
competition act, 2002 (OR) of NFRA.
NFRA – National Financial Regulatory Authority
3. Qualification of chairperson and members of AT
a. Chairperson shall be a person who is or has been a judge of Supreme Court or chief justice
of HC.
b. Judicial member shall be a person who is or has been a judge of a HC or is a judicial
member of tribunal for 5 years.
c. Judicial Technical member shall be a person of ability, integrity and standing having special
knowledge and professional experience of at least 25 years.
Powers of NCLT to be exercised by Judicial /Technical Member :
1. The powers of NCLT shall be exercised by benches consisting of two members out of whom one
shall Judicial member and other shall be Technical member.
2. Te principle bench shall be at New Delhi which shall be presided over by the president.
3. A single Judicial member bench may also exercise powers of tribunals in certain cases.
4. The CG shall establish such number of benches as it may consider necessary to exercise the
jurisdiction, powers and authority as per IBC 2016.
5. Order of tribunal: Tribunal may pass such order as it deems fit and within 2 years from the
date of order it has power to review it’s own order for any rectification of any mistake.
6. Appeal from orders of tribunals: To the NCLAT within 45 days from the date on which copy of
tribunal order is made available + further extention upto 45 days if there is a sufficient cause.
7. The tribunal / AT shall dispose of any matter within 3 months from the date of application +
the president / chairperson may extend it to further 90 days if he considers necessary.
8. Any person aggrieved the order of NCLAT may appeal to the Supreme Court within 60 days
from the date of receipt of order + further 60 days if there is a sufficient cause.
Powers of NCLT / NCLAT

1. They have power to regulate their own procedure and not bound by CPC 1908 but must follow
the provisions of Companies Act, 2013 or IBC 2016.
2. They shall have all the powers of civil code.
3. They shall have power to punish for contempt of court.
4. They shall have power to authorize any person by General or special order to enquire and report
any matter connected with any proceeding or appeal before it.
5. In any proceedings for winding up of a company under Companies Act, 2013 and or IBC 2016.
The tribunal may in order to take into custody or under its control all property, books of
accounts or other documents request in writing the chief metropolitan magistrate, chief
Judicial Magistrate or the district collector to take possession thereof.
Note: No civil court shall has to entertain any suit or proceeding in respect of any matter which
the tribunal or appellate tribunal is empowered to decide.
Procedure for filing Appeal/Petition/Application to NCLT – Make list of Bullet Points from
Taxmann’s book page 262
Procedure for filing Appeal/Petition/Application to NCLAT – Make list of Bullet Points from
Taxmann’s book page 266
Special Courts:
1. The CG may for providing speedy trial of offences under the act establish special court in
consultation with the chief justice of the high court within whose jurisdiction the judge to be
appointed is working.
2. The special court shall consist of:
a. A single judge holding office as session judge or additional session judge. In case of offences
punishable with imprisonment of at least 2 years.
b. A metropolitan magistrate or a judicial magistrate of 1st class:
In case of other offences
3. All offences against a company shall be tried only in that special court in whose area R.O of
Company is situated.In case of more than one special courts,High court shall specify the special
court.
4. When a person is accused of an offence under CRPC, the judicial magistrate may detain such
person in custody for a period upto 15 days in whole and 7 days in whole in case of executive
magistrate. However if magistrate is of the opinion that detention is not necessary it may refer
such case to the special court having jurisdiction.
5. The special court may if it deems fit try in a summary way any offence which is punishable
with imprisonment up to 3 years and on being convicted no sentence of imprisonment for a
term exceeding 1 year shall be passed.
6. However if special court feels that imprisonment for more than 1 year may be passed or it is
undesirable to try the case summarily, it may proceed for regular trial.
Q No. 1. What do you understand by the term ‘Tribunal’?
Q No. 2. Write a short note on: Advantages of Tribunals
Q No. 3. Distinguish between: Court & Tribunal
Q No. 4. Whether the setting up of the Tribunals and excluding the jurisdiction of the High
Court is constitutional? Discuss with reference to decided case, if any.
Q No. 5. Write a short note on: Constitution of National Company Law Tribunal (NCLT)
Q No. 6. State the qualifications of President and Members of National Company Law Tribunal
(NCLT).
Q No. 7. Write a short note on: Constitution of National Company Law Appellate Tribunal
(NCLAT)
Q No. 8. State the qualifications of Chairperson and Members of National Company Law
Appellate Tribunal (NCLAT).
Q No. 9. Explain the provisions relating to term of office of President, Chairperson and Other
Members of the Tribunal and Appellate Tribunal.
Q No. 10. Hon’ble Justice Mr. HCJ, a retired High Court Judge, attained the age of 62 years on
31.12.2018. The Central Government appointed him as the President of the National Company
Law Tribunal with effect from 1.1.2019. You are required to state, with reference to the
provisions of the Companies Act, 2013, the term for which he may be appointed as President of
the National Company Law Tribunal. Whether he can be reappointed as Chairperson of the
National Company Law Tribunal?
Q No. 11. Write a short note on: Remuneration of Members of the Tribunal & Appellate Tribunal
Q No. 12. Mr. PK, a retired High Court Judge was appointed as president of NCLT on 1.1.2019.
However, he was on leave on health ground for 2 months from 1.6.2019 to 31.7.2019.
Examining the provisions of the Companies Act, 2013, state who will act the President or the
Chairperson of the Tribunal until the date on which the Mr. PK resumes his duties?
Q No. 13. State the procedure for resignation by the Members of the Tribunal.
Q No. 14. State the grounds on which members of the Tribunal may be removed from the office?
Also state whether Members including President of the Tribunal be removed on the ground of
misbehaviour or incapacity?
Q No. 15. Examining the provisions of the Companies Act, 2013, answer the following:
(i) How the powers of Tribunal will be exercised by the Judicial/Technical Member?
(ii) Which type of cases can be heard by the bench of the Tribunal consisting of a single Judicial
Member?
How the case will be decided when Members are equally divided in their opinion?
Q No. 16. Write a short note on: Orders of the Tribunal
Q No. 17. While going through one of the order of the Tribunal in respect of case of XYZ Ltd. one
of the director of the company has noticed some mistake apparent from the records. As a
Company Secretary of the company advise the director regarding rectifying such mistake under
the provisions of the Companies Act, 2013.
Q No. 18. XYZ Ltd. is aggrieved by the order passed by the National Company Law Tribunal. As a
practicing Company Secretary advise the directors of the XYZ Ltd. relating to the provisions of
the Companies Act, 2013 regarding filing of appeal.
Q No. 19. Is there any time specified for disposing of application or petition filed before Tribunal
or Appellate Tribunal under the Companies Act, 2013?
Q No. 20. On what grounds appeal to Supreme Court can be filed against the order of the
Appellate Tribunal? What is the time limit for filing such appeal?
Q No. 21. Discuss briefly following powers of the Tribunal/Appellate Tribunal under the
provisions of the Companies Act, 2013:
(i) Power of Tribunal to regulate its own procedure
(ii) Power of Civil Court exercisable by the Tribunal
Execution of order of Tribunal
Q No. 22. What action can be taken by the Tribunal under the Companies Act, 2013 for non
compliance of any orders issued by it?
Q No. 23. Does Tribunal have power to authorize any person to conduct inquiry in respect of any
matter connected with any proceeding before it?
Q No. 24. State the power of Tribunal to seek assistance of Chief Metropolitan Magistrate under
the Companies Act, 2013.
Q No. 25. Whether Civil Court have a jurisdiction to entertain any suit or proceeding in respect
of any matter which the Tribunal is empowered to determine under the Companies Act, 2013?
Q No. 26. Only Advocate can appear before the Tribunal or Appellate Tribunal constituted under
the Companies Act, 2013. Comment.
Q No. 27. Whether provisions of the Limitation Act, 1963 applies to any proceedings or appeals
before the Tribunal or the Appellate Tribunal?
Q No. 28. Discuss briefly provision and procedure relating to filing of appeal/petition/
application under the National Company Law Tribunal Rules, 2016.
Q No. 29. Discuss briefly provision and procedure relating to filing of appeal/petition/
application under the National Company Law Appellate Tribunal Rules, 2016.
Q No. 30. State the provisions relating to establishment of Special Courts under the Companies
Act, 2013.
Q No. 31. Discuss briefly offence triable by Special Court.
Q No. 32. How the proceedings of the special Courts are conducted?
Special Courts, Tribunals under the Companies Act & Other Legislations 12.7
Chapter
Special Courts, Tribunals under
12 the Companies Act & Other Legislations
Que. No. 1] What do you understand by the term ‘Tribunal’?
Ans.: The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the
Classical Roman Republic’. Tribunal is referred to as the office of the ‘Tribunes’ i.e. a Roman
official under the monarchy and the republic with the function of protecting the plebeian citizen
from arbitrary action by the patrician magistrates.
Meaning: A Tribunal, generally, is any person or institution having an authority to judge,
adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal in its
title. ‘Tribunal’ is an administrative body established for the purpose of discharging quasi-
judicial duties.
Que. No. 2] Write a short note on: Advantages of Tribunals
Ans.: Tribunals have certain characteristics which often given advantages over the Courts.
Some of the advantages of the tribunals are discussed below:
1. Speedy: The Tribunals are much quicker than that of Courts in hearing and deciding a case.
A related advantage of the tribunal system is that it will heard a case on a specified date
and it will decide a case within a specific period of time.
Example:
(a) Section 254 of the Income Tax Act, 1961 provides that – In every appeal, the Appellate
Tribunal, where it is possible, may hear and decide such appeal within a period of four
years from the end of the financial year in which such appeal.
(b) As per Section 18 of the National Green Tribunal Act, 2010, the application or appeal
filed before the Tribunal shall be dealt with by it as expeditiously as possible and
endeavour shall be made by it to dispose of the application or appeal, finally within 6
months from the date of filing the same.
2. Cost: Tribunals are much cheaper way of deciding cases than taking recourse to the regular
procedure of the Court.
3. Informality: Tribunals are not required to follows strict court procedures. The strict rules
relating to the evidence pleading and procedure, which apply in the Courts, are not binding
in the tribunal’s proceedings in many cases. Tribunals observe principles of natural justice
and fair play.
4. Expertise: In the ordinary Court, the judges may not be well acquainted with the cases or a
judge may not feel comfortable to hear particular categories of cases because he does not
have sufficient knowledge on that issue. Tribunals are free from such problem because the
judges of the tribunals are well versed with the issue for which the tribunals were set up.
Example: Special cases arising out of pollution control are heard by National Green
Tribunal. Similarly special cases in income tax are heard by Income Tax Appellate Tribunal.
5. Accessibility: The aim of the tribunals is to provide individuals with a readily accessible
forum in which they can refer their grievances. In tribunal system, all persons concerned
know the forum and thus the tribunals are easily accessible.
Que. No. 3] Distinguish between: Court & Tribunal
Ans.: Following are the main points of distinction between Court and Tribunal:

Points Court Tribunal

Meaning Court refers to a part of legal system which Tribunals can be described as minor courts
is established to give their decisions on civil that adjudicate disputes arising in special
and criminal cases. cases.
Decision Decision of Court can be dividend in three Decision of tribunal may in form of order or
parts – Order, Decree & Judgment. Award.
Deals with Court deals with criminal and civil cases. Tribunal deals with special cases.
Headed by Courts are headed by Judge, panel of Tribunal normally consists of single
Judges or Magistrate. member. [Section 7A of the Industrial
Dispute Act, 1947 provides that a Tribunal
shall consist of one person only to be
appointed by the appropriate Government]
In some cases Tribunal may consists of
Chairperson and other judicial & technical
members. [As per Section 53C of the
Competition Act, 2002, the Appellate
Tribunal shall consist of a Chairperson and
not more than two other members to be
appointed by the Central Government]
Procedure Civil Court has to follow procedure as laid Tribunals are not required to follows strict
down in the Code of Civil Procedure, 1908 court procedures. The strict rules relating
while Criminal Court has to follow the to the evidence pleading and procedure,
procedure as laid down in the Code of which apply in the Courts, are not binding
Criminal Procedure, 1973. in the tribunal’s proceedings in many cases.
Appearance Normally Advocate appears on behalf of In additions to Advocates other
client before the Court. professionals like Company Secretary or
Chartered Accountant can also appear
before Tribunal. [As per Section 53C of the
Competition Act, 2002, a person preferring
an appeal to the Appellate Tribunal may
either appear in person or authorize one or
more Chartered Accountants or Company
Secretaries or Cost Accountants or legal
practitioners or any of its officers to present
his or its case before the Appellate Tribunal]
Que. No. 4] Whether the setting up of the Tribunals and excluding the jurisdiction of the
High Court is constitutional? Discuss with reference to decided case, if any.
Ans.: In L. Chandrakumar v. Union of India A.I.R. 1997 SC 1125, a question was raised as to
whether the setting up of the Tribunals and excluding the jurisdiction of the High Court was
constitutional? A ruling was made by the seven-judge bench of the Supreme Court that the
power of ‘judicial analysis’ of the High Court under Article 226 of the Constitution cannot be
eliminated by the Parliament.
The Supreme Court under Article 32 and High Court under Article 226 form the basic structure
of the Constitution of India. The jurisdiction of the High Court cannot be exiled, and on the
other hand, the Tribunals may function as the supplemental part of the judiciary system.
The Tribunals may continue to act like courts of first instance in respect of the areas of law for
which they have been constituted.
It was further recommended in L .Chandrakumar’s case that the Tribunals were playing vital
part of our Judiciary system, and it is necessary to ensure that a Tribunal is a setup to deal
with those cases under special laws as may be applicable therein, thus providing specialized
adjudications. Further, the Tribunals cannot decide those disputes which are basically criminal
in nature.

Likewise, where the case involves substantial question of law, it cannot be decided by tribunals
as this comes under the purview of the higher judiciary.
Que. No. 5] Write a short note on: Constitution of National Company Law Tribunal (NCLT)
Ans.: Constitution of National Company Law Tribunal [Section 408]: The Central Government
shall, by notification, constitute, with effect from such date as may be specified therein, a
Tribunal to be known as the National Company Law Tribunal (NCLT).
The tribunal shall consist of a President and Judicial/Technical members, as the Central
Government may deem necessary.
Members of the tribunal exercise and discharge powers and functions conferred on it by under
the Companies Act, 2013 or any other law for the time being in force.
In the first phase the Ministry of Corporate Affairs have set up 11 Benches, one Principal Bench at New
Delhi and one each Regional Benches at New Delhi, Ahmadabad, Allahabad, Bangalore, Chandigarh,
Chennai, Guahati, Hyderabad, Kolkata and Mumbai.
Que. No. ] State the qualifications of President and Members of National Company Law
Tribunal (NCLT).
Ans.: Qualification of President and Members of Tribunal [Section 409]:

Qualification of President [Section 409(1)]: The President shall be a person who is or has been a
Judge of a High Court for 5 years.
Qualification for Judicial Member [Section 409(2)]: A person shall not be qualified for
appointment as a Judicial Member unless –
(a) he is, or has been, a judge of a High Court or
(b) he is, or has been, a District Judge for at least 5 years or
(c) he has, for at least 10 years been an advocate of a Court.
Explanation: For the purposes of computing the period during which a person has been an
advocate of a Court, there shall be included any period during which the person has held
judicial office or the office of a member of a tribunal or any post, under the Union or a State,
requiring special knowledge of law after he become an advocate.
Qualification for Technical Member [Section 409(3)]: A person shall not be qualified for
appointment as a Technical Member unless –
(a) He has 15 years experience as a member of the Indian Corporate Law Service or Indian
Legal Service and was holding the rank of Secretary or Additional Secretary to the
Government of India.
(b) He has been in practice as a Chartered Accountant for at least 15 years. or
(c) He has been in practice as a Cost Accountant for at least 15 years.
(d) He has been in practice as a Company Secretary for at least 15 years.
(e) He is a person of proven ability, integrity and standing having special knowledge and
professional experience of not less than 15 years in industrial finance, industrial
management, industrial reconstruction, investment and accountancy.
(f) He was presiding officer of a Labour Court, Tribunal or National Tribunal constituted
under the Industrial Disputes Act, 1947 for at least 5 years.
Que. No. 6] Write a short note on: Constitution of National Company Law Appellate
Tribunal (NCLAT)
Ans.: Constitution of Appellate Tribunal [Section 410]: The Central Government shall, by
notification, constitute, an Appellate Tribunal to be known as the National Company Law
Appellate Tribunal (NCLAT).
An Appellate Tribunal shall consist of a chairperson and 11 Judicial/Technical Members.
An Appellate Tribunal will hear the appeals against –
(a) The order of the NCLT and

(b) Any direction, decision or order referred to in Section 53N of the Competition Act, 2002 in
accordance with the provisions of that Act or of the NFRA.
Que. No. 7] State the qualifications of Chairperson and Members of National Company
Law Appellate Tribunal (NCLAT).
Ans.: Qualifications of Chairperson and Members of Appellate Tribunal [Section 411]:

(1) The chairperson shall be a person who is or has been a Judge of –
- The Supreme Court or
- The Chief Justice of a High Court.
(2) A Judicial Member shall be a person who is or has been a Judge of a High Court or is a
Judicial Member of the Tribunal for 5 years.
(3) A technical member shall be a person of proven ability, integrity and standing having
special knowledge and professional experience of not less than 25 years in industrial
finance, industrial management, industrial reconstruction, investment and accountancy.
Que. No. 8] Explain the provisions relating to term of office of President, Chairperson
and Other Members of the Tribunal and Appellate Tribunal.
Ans.: Term of Office of President, Chairperson and Other Members [Section 413]:
(1) The President and every other Member of the Tribunal shall hold office as such for a term of
5 years from the date on which he enters upon his office, but shall be eligible for re-
appointment for another term of 5 years.
(2) A Member of the Tribunal shall hold office as such until he attains –
(a) in the case of the President, the age of 67 years;
(b) in the case of any other Member, the age of 65 years.
However, a person who has not completed 50 years of age shall not be eligible for
appointment as Member.
(3) The chairperson or a Member of the Appellate Tribunal shall hold office as such for a term
of 5 years from the date on which he enters upon his office, but shall be eligible for re-
appointment for another term of 5 years.
(4) A Member of the Appellate Tribunal shall hold office as such until he attains –
(a) in the case of the Chairperson, the age of 70 years;
However, at a person who has not completed 50 years of age shall not be eligible for
appointment as Member:
Term of Office of President, Chairperson and Other Members [Section 417A]: The qualifications,
appointment, term of office, salaries and allowances, resignation, removal and other terms and
conditions of service of the Chairperson and other Members of the Appellate Tribunal appointed
shall be governed by the provisions of Section 184 of Finance Act, 2017.
Que. No. 9] Hon’ble Justice Mr. HCJ, a retired High Court Judge, attained the age of 62
years on 31.12.2018. The Central Government appointed him as the President of the
National Company Law Tribunal with effect from 1.1.2019. You are required to state,
with reference to the provisions of the Companies Act, 2013, the term for which he may
be appointed as President of the National Company Law Tribunal. Whether he can be
reappointed as Chairperson of the National Company Law Tribunal?
Ans.: As per Section 413 of the Companies Act, 2013, the President and every other Member of
the Tribunal shall hold office as such for a term of 5 years from the date on which he enters
upon his office, but shall be eligible for re-appointment for another term of 5 years.
A Member of the Tribunal shall hold office as such until he attains –
(a) in the case of the President, the age of 67 years;

Keeping in view above provisions, Mr. HCJ can be appointed as President since at the date of
appointment he has attained age of 62 years. However, on attainment of age of 67 years, Mr.
HCJ shall have to vacate the office of chairperson and he shall not be reappointed as
chairperson.
Que. No. 10] Write a short note on: Remuneration of Members of the Tribunal &
Appellate Tribunal
Ans.: Salary, allowances and other terms and conditions of service of Members [Section 414]: The
salary, allowances and other terms and conditions of service of the Members of the Tribunal
and the Appellate Tribunal shall be such as may be prescribed.
However, neither the salary and allowances nor the other terms and conditions of service of the
Members shall be varied to their disadvantage after their appointment.
Que. No. 11] Mr. PK, a retired High Court Judge was appointed as president of NCLT on
1.1.2019. However, he was on leave on health ground for 2 months from 1.6.2019 to
31.7.2019. Examining the provisions of the Companies Act, 2013, state who will act the
President or the Chairperson of the Tribunal until the date on which the Mr. PK resumes
his duties?
Ans.: Acting President and Chairperson of Tribunal or Appellate Tribunal [Section 415]: In the
event of the occurrence of any vacancy in the office of the President or the Chairperson by
reason of his death, resignation or otherwise, the senior-most Member shall act as the
President or the Chairperson, as the case may be, until the date on which a new President or
Chairperson appointed in accordance with the provisions of the Act to fill such vacancy enters
upon his office.
When the President or the Chairperson is unable to discharge his functions owing to absence,
illness or any other cause, the senior-most Member shall discharge the functions of the
President or the Chairperson, as the case may be, until the date on which the President or the
Chairperson resumes his duties.
Que. No. 12] State the procedure for resignation by the Members of the Tribunal.
Ans.: Resignation of Members [Section 416]: The President, the Chairperson or any Member may,
by notice in writing under his hand addressed to the Central Government, resign from his
office.
However, the President, the Chairperson, or the Member shall continue to hold office until the
expiry of 3 months from the date of receipt of such notice by the Central Government or until a
person duly appointed as his successor enters upon his office or until the expiry of his term of
office, whichever is earliest.
Que. No. 13] State the grounds on which members of the Tribunal may be removed from
the office? Also state whether Members including President of the Tribunal be removed
on the ground of misbehaviour or incapacity?
Ans.: Removal of Members [Section 417]:

(1) The Central Government may, after consultation with the Chief Justice of India, remove
from office the President, Chairperson or any Member –
(a) Who has been adjudged an insolvent.
(b) Who has been convicted of an offence which, in the opinion of the Central Government,
involves moral turpitude.
(c) Who has become physically or mentally incapable of acting as such President, the
Chairperson, or Member.
(d) who has acquired such financial or other interest as is likely to affect prejudicially his
functions as such President, the Chairperson or Member or

(e) Who has so abused his position as to render his continuance in office prejudicial to the
public interest.
Reasonable opportunity of being heard to be given before removal: The President, the
Chairperson or the Member shall not be removed on any of the grounds specified above
without giving a reasonable opportunity of being heard.
(2) The President, the Chairperson or the Member shall not be removed from his office except
by an order made by the Central Government on the ground of proved misbehaviour or
incapacity after an inquiry made by a Judge of the Supreme Court nominated by the Chief
Justice of India on a reference made to him by the Central Government in which such
President, the Chairperson or Member had been informed of the charges against him and
given a reasonable opportunity of being heard.
(3) The Central Government may, with the concurrence of the Chief Justice of India, suspend
from office, the President, the Chairperson or Member in respect of whom reference has
been made to the Judge of the Supreme Court until the Central Government has passed
orders on receipt of the report of the Judge of the Supreme Court on such reference.
(4) The Central Government shall, after consultation with the Supreme Court, make rules to
regulate the procedure for the inquiry on the ground of proved misbehaviour or incapacity.
Que. No. 14] Examining the provisions of the Companies Act, 2013, answer the
following:
(i) How the powers of Tribunal will be exercised by the Judicial/Technical Member?
(ii) Which type of cases can be heard by the bench of the Tribunal consisting of a single
Judicial Member?
(iii) How the case will be decided when Members are equally divided in their opinion?
Ans.: Benches of Tribunal [Section 419]:

(1) There shall be constituted such number of Benches of the Tribunal, as may, by notification,
be specified by the Central Government.
(2) The Principal Bench of the Tribunal shall be at New Delhi which shall be presided over by
the President of the Tribunal.
(3) The powers of the Tribunal shall be exercisable by Benches consisting of 2 Members out of
whom one shall be a Judicial Member and the other shall be a Technical Member.
However, it shall be competent for the Members of the Tribunal to function as a Bench
consisting of a single Judicial Member and exercise the powers of the Tribunal in respect of
such class of cases or such matters pertaining to such class of cases, as the President may
specify by general or special order.
If at any stage of the hearing of, it appears to the Member that the case or matter is of such
a nature that it ought to be heard by a Bench consisting of 2 Members, the case or matter
may be transferred by the President to such Bench.
(4) The Central Government shall, by notification, establish such number of benches of the
Tribunal, as it may consider necessary, to exercise the jurisdiction, powers and authority of
the Adjudicating Authority conferred on such Tribunal by or under Part II of the Insolvency
& Bankruptcy Code, 2016.
(5) If the Members of a Bench differ in opinion on any point or points, it shall be decided
according to the majority, if there is a majority, but if the Members are equally divided, they
shall state the point or points on which they differ, and the case shall be referred by the
President for hearing on such point or points by one or more of the other Members of the
Tribunal and such point or points shall be decided according to the opinion of the majority
of Members who have heard the case, including those who first heard it.
Que. No. 15] Write a short note on: Orders of the Tribunal
Ans.: Orders of Tribunal [Section 420]:

(1) The Tribunal may, after giving the parties to any proceeding before it, a reasonable
opportunity of being heard, pass such orders thereon as it thinks fit.

(2) The Tribunal may, at any time within 2 years from the date of the order, with a view to
rectifying any mistake apparent from the record, amend any order passed by it, and shall
make such amendment, if the mistake is brought to its notice by the parties. However, no
such amendment shall be made in respect of any order against which an appeal has been
preferred under the Act.
(3) The Tribunal shall send a copy of every order passed by it to all the parties concerned.
Que. No. 16] While going through one of the order of the Tribunal in respect of case of
XYZ Ltd. one of the director of the company has noticed some mistake apparent from
the records. As a Company Secretary of the company advise the director regarding
rectifying such mistake under the provisions of the Companies Act, 2013.
Ans.: As per Section 420 of the Companies Act, 2013, the Tribunal may, at any time within 2
years from the date of the order, with a view to rectifying any mistake apparent from the record,
amend any order passed by it, and shall make such amendment, if the mistake is brought to its
notice by the parties. However, no such amendment shall be made in respect of any order
against which an appeal has been preferred under the Act.
As per Rule 154 of the National Company Law Tribunal Rules, 2016, any clerical or arithmetical
mistakes in any order of the Tribunal or error therein arising from any accidental slip or
omission may at any time, be corrected by the Tribunal on its own motion or on application of
any party by way of rectification.
An application for rectification of mistake may be made in Form No. NCLT-9 within 2 years from
the date of the final order for rectification of the final order not being an interlocutory order.
Keeping in view above provisions, the XYZ Ltd. is advised to apply the Tribunal in Form No.
NCLT-9 within period of 2 years from the date of the order.
Que. No. 17] XYZ Ltd. is aggrieved by the order passed by the National Company Law
Tribunal. As a practicing Company Secretary advise the directors of the XYZ Ltd.
relating to the provisions of the Companies Act, 2013 regarding filing of appeal.
Ans.: Appeal from Orders of Tribunal [Section 421]:

(1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate
Tribunal.
(2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the
consent of parties.
(3) Every appeal shall be filed within a period of 45 days from the date on which a copy of the
order of the Tribunal is made available to the person aggrieved and shall be in such form,
and shall be accompanied by prescribed fees. However, the Appellate Tribunal may
entertain an appeal after the expiry of the said period of 45 days from the date aforesaid,
but within a further period not exceeding 45 days, if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal within that period.
(4) On the receipt of an appeal, the Appellate Tribunal shall, after giving the parties to the
appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit,
confirming, modifying or setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the Tribunal and the
parties to appeal.
Que. No. 18] Is there any time specified for disposing of application or petition filed
before Tribunal or Appellate Tribunal under the Companies Act, 2013?
Ans.: Expeditious disposal by Tribunal and Appellate Tribunal [Section 422]: Every application or
petition presented before the Tribunal and every appeal filed before the Appellate Tribunal shall
be dealt with and disposed of by it as expeditiously as possible and every endeavour shall be
made by the Tribunal or the Appellate Tribunal, as the case may be, for the disposal of such
application or petition or appeal within 3 months from the date of its presentation before the

Tribunal or the filing of the appeal before the Appellate Tribunal.

Where any application or petition or appeal is not disposed of within the period of 3 months,
the Tribunal or the Appellate Tribunal, shall record the reasons for not disposing of the
application or petition or the appeal as the case may be, within the period so specified.
The President or the Chairperson, may, after taking into account the reasons so recorded,
extend the period of 3 months by such period not exceeding 90 days as he may consider
necessary.
Que. No. 19] On what grounds appeal to Supreme Court can be filed against the order of
the Appellate Tribunal? What is the time limit for filing such appeal?
Ans.: Appeal to Supreme Court [Section 423]: Any person aggrieved by any order of the Appellate
Tribunal may file an appeal to the Supreme Court within 60 days from the date of receipt of the
order of the Appellate Tribunal to him on any question of law arising out of such order.
Extension of time filing the appeal: The Supreme Court may, if it is satisfied that the appellant
was prevented by sufficient cause from filing the appeal within the said period, allow it to be
filed within a further period not exceeding 60 days.
Que. No. 20] Discuss briefly following powers of the Tribunal/Appellate Tribunal under
the provisions of the Companies Act, 2013:
(i) Power of Tribunal to regulate its own procedure
(ii) Power of Civil Court exercisable by the Tribunal
(iii) Execution of order of Tribunal
Ans.: Procedure before Tribunal and Appellate Tribunal [Section 424]:

Power of Tribunal to regulate its own procedure [Section 424(1)]: The Tribunal and the Appellate
Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908
while disposing of any proceeding before it.
The Tribunal and the Appellate Tribunal shall be guided by the principles of natural justice
subject to the other provisions of the Companies Act, 2013 or the Insolvency & Bankruptcy
Code, 2016 and of any rules made thereunder.
The Tribunal and the Appellate Tribunal shall have power to regulate their own procedure.
Power of Civil Court exercisable by the Tribunal [Section 424(2)]: The Tribunal and the Appellate
Tribunal shall have, for the purposes of discharging their functions under the Act or under the
Insolvency and Bankruptcy Code, 2016, the same powers as are vested in a Civil Court under
the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:
(a) Summoning and enforcing the attendance of any person and examining him on oath.
(b) Requiring the discovery and production of documents.
(c) Receiving evidence on affidavits.
(d) Requisitioning any public record or document or a copy of such record or document from
any office subject to the provisions of sections 123 & 124 of the Indian Evidence Act, 1872.
(e) Issuing commissions for the examination of witnesses or documents.
(f) Dismissing a representation for default or deciding it ex parte.
(g) Setting aside any order of dismissal of any representation for default or any order passed
by it ex parte.
(h) Any other matter which may be prescribed.
Execution of order of Tribunal [Section 424(3)]: Any order made by the Tribunal or the Appellate
Tribunal may be enforced in the same manner as if it were a decree made by a Court in a suit
pending.
It shall be lawful for the Tribunal or the Appellate Tribunal to send for execution of its orders to
the Court within the local limits of whose jurisdiction –
(a) The registered office of the company is situating. (In the case of an order against a company)
(b) The person concerned voluntarily resides or carries on business or personally works for
gain. (In the case of an order against any other person)

Proceedings before the Tribunal are deemed to be judicial proceedings [Section 424(4)]: All
proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial
proceedings within the meaning of Sections 193 and 228, and for the purposes of Section 196
of the Indian Penal Code, and the Tribunal and the Appellate Tribunal shall be deemed to be
Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973.
Que. No. 21] What action can be taken by the Tribunal under the Companies Act, 2013
for non compliance of any orders issued by it?
Ans.: Power to punish for contempt [Section 425]: The Tribunal and the Appellate Tribunal shall
have the same jurisdiction, powers and authority in respect of contempt of themselves as the
High Court has and may exercise, the powers under the provisions of the Contempt of Courts
Act, 1971, which shall have the effect subject to modifications that –
(a) The reference therein to a High Court shall be construed as including a reference to the
Tribunal and the Appellate Tribunal; and
(b) The reference to Advocate-General in section 15 of the said Act shall be construed as a
reference to such Law Officers as the Central Government may, specify in this behalf.
Que. No. 22] Does Tribunal have power to authorize any person to conduct inquiry in
respect of any matter connected with any proceeding before it?
Ans.: Delegation of Powers [Section 426]: The Tribunal or the Appellate Tribunal may authorize
any person by general or special order to inquire and report in respect of any matter connected
with any proceeding or appeal before it.
Such authorized person should conduct inquiry subject to such conditions as may be specified
in the order by the Tribunal or the Appellate Tribunal
Que. No. 23] State the power of Tribunal to seek assistance of Chief Metropolitan
Magistrate under the Companies Act, 2013.
Ans.: Power to seek assistance of Chief Metropolitan Magistrate [Section 429]:

(1) The Tribunal may, in any proceedings for winding up of a company under the Act or in any
proceedings under the Insolvency & Bankruptcy Code, 2016, in order to take into custody
or under its control all property, books of account or other documents, request, in writing,
the Chief Metropolitan Magistrate, Chief Judicial Magistrate or the District Collector within
whose jurisdiction any such property, books of account or other documents of such
company under the Act or of corporate persons under the said Code, are situated or found,
to take possession thereof, and the Chief Metropolitan Magistrate, Chief Judicial Magistrate
or the District Collector, as the case may be, shall, on such request being made to him –
(a) Take possession of such property, books of account or other documents; and
(b) Cause the same to be entrusted to the Tribunal or other persons authorized by it.
(2) The Chief Metropolitan Magistrate, Chief Judicial Magistrate or the District Collector may
take or cause to be taken such steps and use or cause to be used such force as may, in his
opinion, be necessary.
(3) No act of the Chief Metropolitan Magistrate, Chief Judicial Magistrate or the District
Collector shall be called in question in any court or before any authority on any ground
whatsoever.
Que. No. 24] Whether Civil Court have a jurisdiction to entertain any suit or proceeding
in respect of any matter which the Tribunal is empowered to determine under the
Companies Act, 2013?
Ans.: Civil Court not to have jurisdiction [Section 430]: No Civil Court shall have jurisdiction to
entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate

Tribunal is empowered to determine by or under the Act or any other law for the time being in
force.
No injunction shall be granted by any Court or other authority in respect of any action taken or
to be taken by the Tribunal or the Appellate Tribunal.
Que. No. 25] Only Advocate can appear before the Tribunal or Appellate Tribunal
constituted under the Companies Act, 2013. Comment.
Ans.: Right to legal representation [Section 432]: A party to any proceeding or appeal before the
Tribunal or the Appellate Tribunal, may either appear in person or authorize one or more
Chartered Accountants or Company Secretaries or Cost Accountants or legal practitioners or
any other person to present his case before the Tribunal or the Appellate Tribunal, as the case
may be.
The authorized representative shall make an appearance through the filing of Vakalatnama or
Memorandum of Appearance in Form No. NCLT-12 representing the respective parties to the
proceedings. [Rule 45 of the NCLT Rules, 2016]
Thus, statement that “only advocate can appear before the Tribunal or Appellate Tribunal” is
incorrect.
Que. No. 26] Whether provisions of the Limitation Act, 1963 applies to any proceedings
or appeals before the Tribunal or the Appellate Tribunal?
Ans.: Limitation [Section 433]: The provisions of the Limitation Act, 1963 shall, as far as may be,
apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may
be.
Institution of Proceedings, Petition, Appeals etc. before NCLT
Que. No. 27] Discuss briefly provision and procedure relating to filing of appeal/petition/
application under the National Company Law Tribunal Rules, 2016.
Ans.: Provision and procedure relating to filing of appeal/petition/application under the

National Company Law Tribunal Rules, 2016 is as follows:
Procedure of Appeal [Rule 20]:
(1) Every appeal or petition or application or caveat petition or objection or counter presented
to the Tribunal shall be in English and in case it is in some other Indian language, it shall
be accompanied by a copy translated in English and shall be fairly and legibly type written,
lithographed or printed in double spacing on one side of standard petition paper with an
inner margin of about four centimeter width on top and with a right margin of 2.5. cm, and
left margin of 5 cm, duly paginated, indexed and stitched together in paper book form.
(2) The cause title shall state "Before the National Company Law Tribunal" and shall specify the
Bench to which it is presented and also set out the proceedings or order of the authority
against which it is preferred.
(3) Appeal or petition or application or counter or objections shall be divided into paragraphs
and shall be numbered consecutively and each paragraph shall contain as nearly as may
be, a separate fact or allegation or point.
(4) Where Saka or other dates are used, corresponding dates of Gregorian Calendar shall also
be given.
(5) Full name, parentage, age, description of each party and address and in case a party sues
or being sued in a representative character, shall also be set out at the beginning of the
appeal or petition or application and need not be repeated in the subsequent proceedings in
the same appeal or petition or application.
(6) The names of parties shall be numbered consecutively and a separate line should be
allotted to the name and description of each party.

(7) These numbers shall not be changed and in the event of the death of a party during the
pendency of the appeal or petition or matter, his Legal heirs or representative, as the case
may be, if more than one shall be shown by sub-numbers.
(8) Where fresh parties are brought in, they may be numbered consecutively in the particular
category, in which they are brought in.
(9) Every proceeding shall state immediately after the cause title the provision of law under
which it is preferred.
Particulars to be set out in the address for service [Rule 21]: The address for service of summons
shall be filed with every appeal or petition or application or caveat on behalf of a party and shall
as far as possible contain the following items namely –
(a) The name of the road, street, lane and Municipal Division or Ward, Municipal Door and
other number of the house.
(b) The name of the town or village.
(c) The post office, postal district and PIN Code.
(d) Any other particulars necessary to locate and identify the addressee such as fax number,
mobile number, valid e-mail address, if any.
Initialling Alteration [Rule 22]: Every interlineations, eraser or correction or deletion in any
appeal or petition or application or document shall be initialled by the party or his authorized
representative presenting it.
Presentation of petition or appeal [Rule 23]:
(1) Every petition, application, caveat, interlocutory application, documents and appeal shall be
presented in triplicate by the appellant or applicant or petitioner or respondent, as the case
may be, in person or by his duly authorized representative or by an advocate duly
appointed in this behalf in the prescribed form with stipulated fee at the filing counter and
non-compliance of this may constitute a valid ground to refuse to entertain the same.
(2) Every petition or application or appeal may be accompanied by documents duly
certified by the authorized representative or advocate filing the petition or application or
appeal duly verified from the originals.
(3) All the documents filed in the Tribunal shall be accompanied by an index in triplicate
containing their details and the amount of fee paid thereon.
(4) Sufficient number of copies of the appeal or petition or application shall also be filed for
service on the opposite party as prescribed under these rules.
(5) In the pending matters, all applications shall be presented after serving copies thereof in
advance on the opposite side or his authorized representative.
(6) The processing fee prescribed by these rules, with required number of envelopes of
sufficient size and notice forms shall be filled along with memorandum or appeal.
Presentation of joint petition [Rule 23A]: The Bench may permit more than one person to join
together and present a single petition if it is satisfied, having regard to the cause of action and
the nature of relief prayed for, that they have a common interest in the matter.
Such permission shall be granted where the joining of the petitioners by a single petition is
specifically permitted by the Act.
Number of copies to be filed [Rule 24]: The appellant or petitioner or applicant or respondent
shall file three authenticated copies of appeal or petition or application or counter or objections,
as the case may be, and shall deliver one copy to each of the opposite party.
Lodging of caveat [Rule 25]: Any person may lodge a caveat in triplicate in any appeal or petition
or application that may be instituted before this Tribunal by paying the prescribed fee after
forwarding a copy by registered post or serving the same on the expected petitioner or appellant
and the caveat shall be in the Form No. NCLT-3C and contain such details and particulars or
orders or directions, details of authority against whose orders or directions the appeal or
petition or application is being instituted by the expected appellant or petitioner or applicant
which full address for service on other side, so that the appeal or petition or application could
be served before the appeal or petition or interim application is taken up.
However, the Tribunal may pass interim orders in case of urgency.
The caveat shall remain valid for a period of 90 days from the date of its filing.

Endorsement & Verification [Rule 26]: At the foot of every petition or appeal or pleading there
shall appear the name and signature of the authorized representative.
Every petition or appeal shall be signed and verified by the party concerned in the manner
provided by these rules.
Translation of document [Rule 27]: A document other than English language intended to be
used in any proceeding before the Tribunal shall be received by the Registry accompanied by a
copy in English, which is agreed to by both the parties or certified to be a true translated copy
by authorized representative engaged on behalf of parties in the case or if the authorized
representative engaged in the case authenticates such certificate or prepared by a translator
approved for the purpose by the Registrar on payment of such charges as he may order.
Appeal or petition or other proceeding shall not be set down for hearing until and unless all
parties confirm that all the documents filed on which they intend to rely are in English or have
been translated into English and required numbers of copies are filed into Tribunal.
Registration of proceedings admitted [Rule 29]: On admission of appeal or petition or caveat or
application, the same shall be numbered and registered in the appropriate register maintained
in this behalf and its number shall be entered therein.
Calling for records [Rule 30]: On the admission of appeal or petition or application the Registrar
shall, if so directed by the Tribunal, call for the records relating to the proceedings from any
adjudicating authority and retransmit the same.
Production of authorization for and on behalf of an association [Rule 31]: Where an appeal or
application or petition or other proceeding purported to be instituted by or on behalf of an
association, the person or persons who signs or verifies the same shall produce along with such
application, for verification by the Registry, a true copy of the resolution of the association
empowering such persons to do so.
However, Registrar may at any time call upon the party to produce such further materials as he
deems fit for satisfying himself about due authorization.
Interlocutory applications [Rule 32]: Every Interlocutory application for stay, direction,
condonation of delay, exemption from production of copy of order appealed against or extension
of time prayed for in pending matters shall be in prescribed form and the requirements
prescribed in that behalf shall be complied with by the applicant, besides filing an affidavit
supporting the application.
Notice to Opposite Party [Rule 37]:
(1) The Tribunal shall issue notice to the respondent to show cause against the application or
petition on a date of hearing to be specified in the Notice. Such notice in Form No. NCLT-5
shall be accompanied by a copy of the application with supporting documents.
(2) If the respondent does not appear on the date specified in the notice in Form No. NCLT-5,
the Tribunal, after according reasonable opportunity to the respondent, shall forthwith
proceed ex-parte to dispose of the application.
(3) If the respondent contests to the notice received, it may either in person or through an
authorized representative, file a reply accompanied with an affidavit and along with copies
of such documents on which it relies, with an advance service to the petitioner or applicant,
to the Registry before the date of hearing and such reply and copies of documents shall
form part of the record.
Production of evidence by affidavit [Rule 39]: The Tribunal may direct the parties to give
evidence, if any, by affidavit. Where the Tribunal considers it necessary in the interest of
natural justice, it may order cross-examination of any deponent on the points of conflict either
through information and communication technology facilities such as video conferencing or
otherwise as may be decided by the Tribunal, on an application moved by any party.
Every affidavit to be filed before the Tribunal shall be in Form No. NCLT-7.
Power of the Bench to call for further information or evidence [Rule 43]: The Bench may before
passing orders on the petition or application, require the parties or any one or more of them, to
produce such further documentary or other evidence as it may consider necessary –
(a) for the purpose of satisfying itself as to the truth of the allegations made in the petition or
application; or

(b) for ascertaining any information which, in the opinion of the Bench, is necessary for the
purpose of enabling it to pass orders in the petition or application.
The Bench may, for the purpose of inquiry or investigation, as the case may be, admit such
documentary and other mode of recordings in electronic form including e-mails, books of
accounts, book or paper, written communications, statements, contracts, electronic certificates
and such other similar mode of transactions as may legally be permitted to take into account of
those as admissible as evidence under the relevant laws.
Where any party preferring or contesting a petition of oppression and mismanagement raises
the issue of forgery or fabrication of any statutory records, then it shall be at liberty to move an
appropriate application for forensic examination and the Bench hearing the matter may, for
reasons to be recorded, either allow the application and send the disputed records for opinion
of Central Forensic Science Laboratory at the cost of the party alleging fabrication of records, or
dismiss such application.
Hearing of petition or applications [Rule 44]: The Tribunal shall notify to the parties the date and
place of hearing of the petition or application in such manner as the President or a Member
may, by general or special order, direct.
Where at any stage prior to the hearing of the petition or application, the applicant desires to
withdraw his petition or application, he shall make an application to that effect to the Tribunal,
and the Tribunal on hearing the applicant and if necessary, such other party arrayed as
opposite parties in the petition or the application or otherwise, may permit such withdrawal
upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the
justice.
Rights of a party to appear before the Tribunal [Rule 45]:
(1) Every party may appear before a Tribunal in person or through an authorized
representative, duly authorized in writing in this behalf.
(2) The authorized representative shall make an appearance through the filing of Vakalatnama
or Memorandum of Appearance in Form No. NCLT 12 representing the respective parties to
the proceedings.
(3) The Central Government, the Regional Director or the Registrar of Companies or Official
Liquidator may authorize an officer or an Advocate to represent in the proceedings before
the Tribunal.
(4) The officer authorized by the Central Government or the Regional Director or the Registrar
of Companies or the Official Liquidator shall be an officer not below the rank of Junior Time
Scale or company prosecutor.
(5) During any proceedings before the Tribunal, it may for the purpose of its knowledge, call
upon the Registrar of Companies to submit information on the affairs of the company on
the basis of information available in the MCA-21 portal, Reasons for such directions shall
be recorded in writing.
(6) There shall be no audio or video recording of the Bench proceedings by the parties or their
authorized representatives.
Oath to the witness [Rule 47]: The Bench Officer or the Court Officer, as the case may be, shall
administer the following oath to a witness –
“I do swear in the name of God/solemnly affirm that what I shall state shall be the truth and
nothing but the truth”.
Consequence of non-appearance of applicant [Rule 48]: Where on the date fixed for hearing of the
petition or application or on any other date to which such hearing may be adjourned, the
applicant does not appear when the petition or the application is called for hearing, the
Tribunal may, in its discretion, either dismiss the application for default or hear and decide it
on merit.
Where the petition or application has been dismissed for default and the applicant files an
application within thirty days from the date of dismissal and satisfies the Tribunal that there
was sufficient cause for his non-appearance when the petition or the application was called for
hearing, the Tribunal shall make an order restoring the same.
However, where the case was disposed of on merits the decision shall not be re-opened.
Ex parte Hearing and disposal [Rule 49]:

(1) Where on the date fixed for hearing the petition or application or on any other date to which
such hearing may be adjourned, the applicant appears and the respondent does not appear
when the petition or the application is called for hearing, the Tribunal may adjourn the
hearing or hear and decide the petition or the application ex parte.
(2) Where a petition or an application has been heard ex parte against a respondent or
respondents, such respondent or respondents may apply to the Tribunal for an order to set
it aside and if such respondent or respondents satisfies the Tribunal that the notice was not
duly served, or that he or they were prevented by any sufficient cause from appearing when
the petition or the application was called) for hearing, the Tribunal may make an order
setting aside the ex parte hearing as against him or them upon such terms as it thinks fit.
however, where the ex parte hearing of the petition or application is of such nature that it
cannot be set aside as against one respondent only it may be set aside as against all or any
of the other respondents also.
Que. No. 28] Discuss briefly provision and procedure relating to filing of appeal/petition/
application under the National Company Law Appellate Tribunal Rules, 2016.
Ans.: Provision and procedure relating to filing of appeal/petition/application under the

National Company Law Appellate Tribunal Rules, 2016 is as follows:
Procedure for proceedings [Rule 19]:
(1) Every appeal to the Appellate Tribunal shall be in English and in case it is in some other
Indian language, it shall be accompanied by a copy translated in English and shall be fairly
and legibly type-written or printed in double spacing on one side of standard paper with an
inner margin of about four centimeters width on top and with a right margin of 2.5 cm, and
left margin of 5 cm, duly paginated, indexed and stitched together in paper book form.
(2) The cause title shall state "In the National Company Law Appellate Tribunal" and also set
out the proceedings or order of the authority against which it is preferred.
(3) Appeal shall be divided into paragraphs and shall be numbered consecutively and each
paragraph shall contain as nearly as may be, a separate fact or allegation or point.
(4) Where Saka or other dates are used, corresponding dates of Gregorian calendar shall also
be given.
(5) Full name, parentage, description of each party and address and in case a party sue or
being sued in a representative character, shall also be set out at the beginning of the appeal
and need not be repeated in the subsequent proceedings in the same appeal.
(6) The names of parties shall be numbered consecutively and a separate line should be
allotted to the name and description of each party and these numbers shall not be changed
and in the event of the death of a party during the pendency of the appeal, his legal heirs or
representative, as the case may be, if more than one shall be shown by sub-numbers.
(7) Where fresh parties are brought in, they may be numbered consecutively in the particular
category, in which they are brought in.
(8) Every proceeding shall state immediately after the cause title and the provision of law under
which it is referred.
Particulars to be set out in the address for service [Rule 20]: The address for service of summons
shall be filed with every appeal on behalf of a party and shall as far as possible contain the
following items namely:
(a) The name of the road, street, lane and Municipal Division or Ward, Municipal Door and
other number of the house.
(b) The name of the town or village.
(c) The post office, postal district and PIN Code.
(d) Any other particular necessary to identify the addressee such as fax number, mobile
number and e-mail address, if any.
Initialling alteration [Rule 21]: Every interlineation, eraser or correction or deletion in any appeal
shall be initialled by the party or his authorized representative.
Presentation of appeal [Rule 22]:

(1) Every appeal shall be presented in Form No. NCLAT-1 in triplicate by the appellant or
petitioner or applicant or respondent, as the case may be, in person or by his duly
authorized representative duly appointed in this behalf in the prescribed form with
stipulated fee at the filing counter and non-compliance of this may constitute a valid
ground to refuse to entertain the same.
(2) Every appeal shall be accompanied by a certified copy of the impugned order.
(3) All documents filed in the Appellate Tribunal shall be accompanied by an index in triplicate
containing their details and the amount of fee paid thereon.
(4) Sufficient number of copies of the appeal or petition or application shall also be filed for
service on the opposite party as prescribed.
(5) In the pending matters, all other applications shall be presented after serving copies thereof
in advance on the opposite side or his advocate or authorized representative.
(6) The processing fee prescribed by the rules, with required number of envelopes of sufficient
size and notice forms as prescribed shall be filled along with memorandum of appeal.
Number of copies to be filed [Rule 23]: The appellant or petitioner or applicant or respondent
shall file three authenticated copies of appeal or counter or objections, as the case may be, and
shall deliver one copy to each of the opposite party.
Endorsement and verification [Rule 24]: At the foot of every appeal or pleading there shall appear
the name and signature of the authorized representative and every appeal or pleadings shall be
signed and verified by the party concerned in the manner provided by these rules.
Translation of document [Rule 25]:
(1) A document other than English language intended to be used in any proceeding before the
Appellate Tribunal shall be received by the Registry accompanied by a copy in English,
which is agreed to by both the parties or certified to be a true translated copy by the
authorized representative engaged on behalf of parties in the case.
(2) The Registrar may order translation, certification and authentication by a person approved
by him for the purpose on payment of such fee to the person, as specified by the
Chairperson.
(3) Appeal or other proceeding shall not be set down for hearing until and unless all parties
confirm that all the documents filed on which they intend to rely are in English or have
been translated into English and required numbers of copies are filed with the Appellate
Tribunal.
Appearance of authorized representative [Rule 63]:
(1) Subject to provisions of section 432, a party to any proceedings or appeal before the
Appellate Tribunal may either appear in person or authorize one or more Chartered
Accountants or Company Secretaries or Cost Accountants or legal practitioners or any
other person to present his case before the Appellate Tribunal.
(2) The Central Government, the Regional Director or the Registrar of Companies or Official
Liquidator may authorize an officer or an Advocate to represent in the proceedings before
the Appellate Tribunal.
(3) The officer authorized by the Central Government or the Regional Director or the Registrar
of Companies or the Official Liquidator shall be an officer not below the rank of Junior Time
Scale or company prosecutor.
Special Courts
Que. No. 29] State the provisions relating to establishment of Special Courts under the
Companies Act, 2013.
Ans.: Establishment of Special [Section 435]: The Central Government may, for the purpose of
providing speedy trial of offences under the Act, by notification, establish or designate as many
Special Courts as may be necessary.
A Special Court shall consist of –
(a) A single Judge holding office as Session Judge or Additional Session Judge, in case of
offences punishable under this Act with imprisonment of 2 years or more and

(b) A Metropolitan Magistrate or a Judicial Magistrate of the First Class, in the case of other
offences,
who shall be appointed by the Central Government with the concurrence of the Chief Justice of
the High Court within whose jurisdiction the judge to be appointed is working.
In a step towards speedy justice, the Centre has designated eight courts as special courts across the
country to deal with cases arising out of violations under the Companies Act, 2013.
The eight courts were designated after receiving due concurrence of the respective High Court Chief
Justices of Chhattisgarh, Rajasthan, Punjab and Haryana, Madras and Manipur.
A notification issued by the Ministry of Corporate Affairs in this regard stated that the Courts will try
offences punishable with imprisonment of two years or more under the Companies Act, 2013.
Que. No. 30] Discuss briefly offence triable by Special Court.
Ans.: Offences triable by Special Courts [Section 436]:

(a) All offences specified in Section 435(1) shall be triable only by the Special Court established
for the area in which the registered office of the company in relation to which the offence is
committed. Where there are more than one Special Courts offence shall be triable by such
one of them as may be specified in this behalf by the High Court.
(b) Where a person accused of, or suspected of the commission of, an offence under the Act is
forwarded to a Magistrate under Section 167(2) or (2A) of the Code of Criminal Procedure,
1973, such Magistrate may authorize the detention of such person in such custody as he
thinks fit for a period not exceeding 15 days in the whole where such Magistrate is a
Judicial Magistrate and 7 days in the whole where such Magistrate is an Executive
Magistrate.
However, where such Magistrate considers that the detention of such person upon or before
the expiry of the period of detention is unnecessary, he shall order such person to be
forwarded to the Special Court having jurisdiction.
(c) The Special Court may exercise, in relation to the person forwarded to it, the same power
which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the
Code of Criminal Procedure, 1973.
(d) A Special Court may, upon perusal of the police report of the facts constituting an offence
or upon a complaint in that behalf, take cognizance of that offence without the accused
being committed to it for trial.
When trying an offence, a Special Court may also try an offence other than an offence under
the Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged
at the same trial.
The Special Court may, if it thinks fit, try in a summary way any offence which is punishable
with imprisonment for a term not exceeding 3 years. However, in the case of any conviction in a
summary trial, no sentence of imprisonment for a term exceeding 1 year shall be passed.
When at the commencement of, or in the course of, a summary trial, it appears to the Special
Court that the nature of the case is such that the sentence of imprisonment for a term
exceeding one year may have to be passed or that it is, for any other reason, undesirable to try
the case summarily, the Special Court shall, after hearing the parties, record an order to that
effect and thereafter recall any witnesses who may have been examined and proceed to hear or
rehear the case in accordance with the procedure for the regular trial.
Appeal and Revision [Section 437]: The High Court may exercise, so far as may be applicable, all
the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 on a
High Court, as if a Special Court within the local limits of the jurisdiction of the High Court
were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.
Que. No. 31] How the proceedings of the special Courts are conducted?
Ans.: Application of Code to proceedings before Special Court [Section 438]: The provisions of the
Code of Criminal Procedure, 1973 shall apply to the proceedings before a Special Court and for

the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session
or the Court of Metropolitan Magistrate or a Judicial Magistrate of the First Class, as the case
may be and the person conducting a prosecution before a Special Court shall be deemed to be a
Public Prosecutor.
Powers exercise by NCLT under the Companies Act, 2013
Following powers are exercisable by the NCLT under the provisions of the Companies Act,
2013:
Section Powers of NCLT
Chapter I: Preliminary
Section 2(41) To allow certain companies or body corporate to have a different financial year
Chapter II: Incorporation of Company and matters incidental thereto
Section 7(7) In case a company has got incorporated by furnishing any false or incorrect
information or by suppression of any material fact or information, NCLT can pass
such orders as it thinks fit.
Section 8(9) Any assets remaining on wind-up of Section 8 company may be transferred to
another company having similar objects with the approval of Tribunal or transferred
to the Rehabilitation & Insolvency Fund u/s 269.
Proviso to Conversion of a public company into a private company requires the approval of
Section 14(1) NCLT.
Chapter IV: Share Capital and Debentures
Section 48(2) Not less than 10% of the issued shares of a class, who did not consent to a variation,
may apply to the Tribunal for cancelling the variation.
Section 55(3) NCLT can approve issue of further redeemable preference shares when a company is
unable to redeem its existing unredeemed preference shares or to pay dividend
thereon.
Proviso to NCLT can order forthwith redemption of such preference shares the holder of which
Section 55(3) have not consented to the issue of further redeemable preference shares.
Section 56(4) To make an order imposing prohibition on delivery of certificates for the securities
issued by a company.
Section 58(3) The transferee of shares in a private company may appeal to the NCLT within one
month from the receipt of notice of refusal or within 60 days from the date on which
the instrument of transfer or intimation of transmission was delivered to the
company.
Section 58(4) The transferee in a public company within sixty days of refusal to register transfer or
transmission, or within 90 days of delivery of instrument of transfer or of intimation
of transmission may apply to the NCLT for relief.
Section 58(5) To dismiss appeal against refusal to register transfer and transmission of shares OR
to direct rectification of register and payment of damages by company.
Section 59(2) To order rectification of register of members on transfer or transmission of shares.
Section 59(4) To direct a Company or depository to set right a contravention of SCRA or SEBI Act,
1992 or any other law, resulting by transfer of securities and to rectify concerned
registers and records held by the Company or depository.
Proviso to To approve Consolidation and division of share capital resulting in change in voting
Section 61(1)(b) percentage of shareholders.
Proviso to Where the terms of conversion of debentures into shares of a company ordered by
Section 62(4) the Government are not acceptable to the company, the company may appeal to the
Tribunal for making such order as it may deem fit.
Section 66(1) Confirmation by NCLT for reduction of capital in a company limited by shares or
guarantee and having share capital.
Section 71(9) Where the assets of a company are insufficient to discharge the debentures, the
debenture trustee may apply to the NCLT.
Section 71(10) NCLT to order redemption of debentures forthwith by payment of principal and

interest due thereon.

Chapter V: Acceptance of Deposits by Companies
Section 73(4) To direct the company to make repayment of the matured deposits or for any loss or
damage incurred by him as a result of non-payment.
Section 74(2) On an application by the company, NCLT may allow further time to the company to
repay the amount of deposit or part thereof and the interest payable.
Chapter VII: Management & Administration
Section 97(1) On the application of a member, the Tribunal may call or direct the calling of AGM if
default is made in holding the AGM.
Section 98(1) In case it is impracticable to call a meeting, the Tribunal may either suo motu, or on
application of a director or member of the company who is entitled to vote at the
meeting, order to call EGM and give such directions as may be necessary.
Section 119(4) The Tribunal may direct that inspection of minute book of general meeting be given
to a member.
Chapter VIII: Declaration & Payment of Dividend
Section 125(3)(d) To sanction utilization of IEPF for reimbursement of legal expenses incurred on class
action suits by members, debentures or depositors.
Chapter IX: Accounts of Companies
Section 130(1) The Tribunal may allow a company to recast its financial statements.
Section 131(1) With the approval of NCLT, company may prepare revised financial statement for any
of the 3 preceding financial years.
Chapter X: Audit & Auditors
Section 140(4) To restrict copies of representation of the auditor to be removed to be sent out.
Second proviso The Tribunal may, on the application of the company or any aggrieved person, order
to Section that copy of representation by the Auditor need not be sent to members nor read at
140(4)(iii)(b) the meeting.
Section 140(5) Where NCLT is satisfied that the Auditor has acted in a fraudulent manner, it may
order that the Auditor may be changed
Chapter XI: Appointment & Qualifications of Directors
proviso to Regarding removal of director, NCLT may order that representation from the director
Section 169(4)(b) need not be sent to the members and nor read at the meeting.
Chapter XIV: Inspection, Inquiry & Investigation
Section 210(2) To order investigation of the affairs of the company.
Section 213 The Tribunal may ask the Central Government to investigate into the affairs of the
company in other cases on application where the business of the company is being
conducted with intent to defraud creditors, persons concerned in the formation of
the company or management of its affairs have been guilty of fraud, misfeasance or
other misconduct and members have not been given all the information with respect
to the affairs of the Company.
Section 216 (2) To order investigation of ownership of Company.
Section 218(1) NCLT may pass suitable orders for the protection of the employees in respect of
investigation under section 210, 212, 213 or 219.
Section 218(1) To order freezing of assets of company on inquiry and investigation in case of
complaint made by its members, for a period of 3 years.
Section 222(1) To impose restrictions in connection with securities.
Section 224(2) To entertain petition for winding up of a Company or Body Corporate in pursuance of
Inspector’s report.
Section 224(2) To hear petition for winding up of a Company presented by Central Govt.
Section 224(5) NCLT may, on application of Central Government, pass order for disgorgement of
assets and other matters.
Proviso to To pass orders after inspector’s intimation of pendency in investigation proceedings.
Section 226
Chapter XV: Compromises, Arrangements & Amalgamations
Section 230(1) With reference to compromise or arrangements between the company and its

creditors and members, Tribunal may order a meeting of creditors or class of

creditors or members of the company.
Section 230 (6) To sanction compromise or arrangement agreed to at the meeting of
creditors/members ordered by the Tribunal.
Section 230(9) To dispense with calling of meeting of members/ creditors for approving compromise
or arrangement.
Section 230(12) To pass orders on an application on grievance in respect of takeover offer of
companies other than listed companies.
Section 231(1) To enforce compromise and arrangement as sanctioned under Section 230.
Section 231(2) If the Tribunal is satisfied that the compromise or arrangement sanctioned under
Section 230 cannot be implemented satisfactorily with or without modifications, and
the company is unable to pay its debts as per the scheme, it may make an order for
winding up the company.
Section 232(1) To sanction the scheme of merger and amalgamation.
Section 232 (2) To call meeting of creditors or members for facilitating merger and amalgamation of
companies.
Section 233(5) If the Central Government is of the opinion that the scheme filed under section 233
is not in public interest, it may file an application before the Tribunal within 60 days
of receipt of the scheme.
Section 235(2) To entertain the application made by the dissenting shareholders of the scheme
approved by the majority.
Section 237(4) Any aggrieved person in respect of compensation made by the prescribed authority
may make appeal to the Tribunal within 30 days.
Section 238(2) Appeal to the tribunal against the refusal of the Registrar to register the circular.
Chapter XVI: Prevention of Oppression & Mismanagement
Section 241(1) Complaints of oppression and mismanagement will be heard by the Tribunal.
Section 242(1)(a) Where the company’s affairs have been or are being conducted in a manner
prejudicial or oppressive to any member or members or prejudicial to public interest
or in a manner prejudicial to the interests of the company, Tribunal may pass
necessary orders.
Section 242(1)(b) To make an order where winding up the company would unfairly prejudice such
member or members, but that otherwise the facts would justify the making of a
winding up order on the ground that it was just and equitable that the Company
should be wound up.
Section 242(2)(a) Tribunal may pass orders for regulation of conduct of affairs of the company in
future.
Section 242(2)(b) To make an order for purchase of shares or interests of any members of the company
by other members thereof or by the company.
Section 242(2)(c) To make an order for reduction of share capital consequent to purchase of shares of
the company in the manner envisaged under Section 242(2)(b)
Section 242(2)(d) The Tribunal can restrict on the transfer or allotment of the shares of the company.
Section 242(2)(e) To terminate, set aside or modify any agreement, arrived at, between the company
and the managing director, any other director or manager, upon such terms and
conditions as may, in the opinion of the NCLT, be just and equitable in the
circumstances of the case.
Section 242(2)(f) To terminate, set aside or modify any agreement between the company and any
person other than the managing director, any other director or manager.
Section 242(2)(g) To set aside any transfer, delivery of goods, payment, execution or other act relating
to property made or done by or against the company within 3 months before the date
of the application made pursuant to section 241, which would, if made or done by or
against an individual, be deemed in his insolvency to be a fraudulent preference.
Section 242(2)(h) Removal of the managing director, manager or any of the directors of the company.
Section 242(2)(i) Recovery of undue gains made by any managing director, manager or director during
the period of his appointment as such and the manner of utilization of the recovery

including transfer to Investor Education and Protection Fund or repayment to

identifiable victims.
Section 242(2)(j) Manner in which the managing director or manager of the company may be
appointed subsequent to an order removing the existing managing director or
manager of the company made.
Section 242(2)(k) Appointment of such number of persons as directors, who may be required by the
NCLT to report to be NCLT on such matters as the NCLT may direct.
Section 242(2)(l) Imposition of costs as may be deemed fit by the NCLT.
Section 242(2)(m) Any other matter for which, in the opinion of the NCLT, it is just and equitable that
provision should be made.
Section 243(1) In case of termination or modification of certain agreements by the Company with
managing directors or other directors, leave be granted by the NCLT.
Section 245(1) To pass specified order in receipt of application by members or depositors or any
class of them in case if they are of the opinion that the management or conduct of
the affairs of the company is being conducted in a manner prejudicial to the interests
of the company or its members or depositors.
Section 246 To punish for the contempt of the Tribunal in cases where a fraudulent application is
made u/s 241 (in case of Oppression & Mismanagement) and u/s 245 (in case of
Class Action Suits). This power shall apply for Sections 337 to 341.
Chapter XVIII: Removal of name of companies from the Register of Companies
Section 248(8) To wind up a company the name of which has been struck off by registrar from
Register of Companies.
Section 252(1) Tribunal may order restoration of the name of a company to the Register of
companies in case of an appeal made to the tribunal within 3 years of the order of
the Registrar.
Section 253(1) To entertain the application made by secured creditors of a company representing
50% or more of its outstanding amount of debt and the company has failed to pay
the debt within a period of 30 days of the service of the notice of demand.
Section 254(1) & NCLT may appoint an interim administrator within 7 days of receipt of application
(3) under Section 256.
Section 258 NCLT may appoint interim administrator to be the company administrator in case of
an application made by the creditors that the company can be revived.
Section 260 NCLT can delineate or direct the functions and duties of the Company administrator.
Section 262 To sanction the scheme of revival and rehabilitation of sick industrial companies as
prepared in Section 261, Companies Act, 2013.
Section 264 To implement the scheme of revival and rehabilitation of sick industrial companies.
Section 265 Where the scheme is not approved by the creditors, NCLT may issue orders for the
winding up of the sick company.
Section 266 To assess damages against the delinquent Directors in the course of the scrutiny or
implementation of any scheme or proposal and pass suitable orders.
Section 267 To punish in case of making a false or incorrect evidence to the NCLT or the NCLAT.
Chapter XX: Winding-up
Section 270(1) To pass order of winding up of the company.
Section 271(1) To wind up companies under various circumstances.
Section 271(2)(c) To decide about the inability of the company to pay its debts.
Section 272(6) To grant leave to prospective creditor for filing petition of winding-up.
Section 273(1) On receipt of petition for winding up, NCLT may either dismiss the petition with or
without costs; make any interim order as it thinks fit; appoint a provisional
liquidator of the company till the making of a winding up order, make an order for
the winding-up of the company with or without costs; or any other order as the NCLT
thinks fit.
Section 274 NCLT may ask the company to file its objections, if any, along with a statement of its
affairs within 30 days of the order in the manner prescribed.
Section 275(1) NCLT shall appoint Official Liquidator from the panel maintained by the Central

Government, as the Company Liquidator.

Section 275(3) To limit and restrict the powers of the Official Liquidator or Provisional Liquidator as
the case may be.
Section 276(1) It can remove the Provisional Liquidator or the Company Liquidator as the Liquidator
of the company on specified grounds.
Section 276(3) Where loss or damage is caused due to fraud or misfeasance or where liquidator fails
to exercise due care or diligence in the performance of its powers, NCLT can pass
orders to recover loss or damage from the liquidator.
Section 277(1) To give intimation of order for winding up to Company Liquidator, Provisional
Liquidator and Registrar of Companies.
Section 277(4) On application of company liquidator, NCLT to constitute winding-up committee.
Section 279(1) To put stay on suits or other legal proceedings on winding-up order.
Section 282(1) To give directions on report of Company Liquidator.
Section 283(1) During liquidation, the custody of companies’ property passes to the NCLT.
Section 285(1) The list of contributories and application of assets in all cases where rectification is
required will be settled by the Tribunal.
Section 287(1) To constitute an advisory committee to advise the Company Liquidator and to report
to the NCLT.
Section 290 To issue directions and to exercise control on the powers of the Company liquidator.
Section 290(1) To issue directions and to exercise overall control on the powers of the liquidator.
Section 291(1) To sanction the appointment of professionals (CA, CS, CWA or Legal Practitioners) for
assistance to Company Liquidator in the performance of his functions and duties.
Section 292(4) To Confirm, reverse or modify the act or decision complained of for the company
liquidator.
Section 294(1) For better accountability in company’s winding up, NCLT to order the audit of
accounts of Company Liquidator.
Section 293(2) To exercise control on inspection of books by creditor or contributory.
Section 294(3) To cause accounts of the company liquidator to be audited.
Section 295(1) To pass an order requiring any contributory for the time being on the list of
contributories to pay any money due to the company, from him or from the estate of
the person whom he represents, exclusive of any money payable by him or the estate
by virtue of any call.
Section 296 To make calls on the contributories on the list for payment of money to satisfy the
debts and liabilities of the company, and the costs, charges and expenses of winding
up, and for the adjustment of the rights of the contributories among themselves.
Section 297 To adjust the rights of the contributories among themselves and distribute any
surplus among the persons entitled thereto.
Section 298 To make an order for the payment out of the assets, of the costs, charges and
expenses incurred in the winding-up.
Section 299 To summon persons suspected of having property of company in case the person is
capable of giving information concerning the promotion, formation, trade, dealings,
property, books or papers, of affairs of the company.
Section 300 To order examination of promoters, directors in case the Company Liquidator is of
the opinion that a fraud has been committed by any person in the promotion,
formation, business or conduct of affairs of the company since its formation.
Section 301 In case a person is having property, accounts or papers of the company in his
possession and is trying to leave India or abscond NCLT to order detention and
arrest of such person.
Section 302 NCLT, after considering the report of the company liquidator, shall pass order
dissolving the company.
Section 331 (3) To determine liabilities and rights of certain fraudulently preferred persons who
acted as surety or guarantor or creditor to the company.
Section 333 To grant leave to disclaim the onerous property in case of a company likely to be
wound-up.

Section 334 (2) To pass orders against avoidance of transfers including actionable claims or
alteration in the status of members of company etc., after commencement of
winding-up.
Section 335(1) To grant permission to enforce any attachment, distress or execution after the
commencement of winding-up.
Section 339(1) To direct liability for fraudulent conduct of business to any person on application of
Company Liquidator.
Section 340 To assess damages against delinquent directors, manager, liquidator or officer of the
Company for misapplication, retainer, misfeasance or breach of trust.
Section 341 Where a declaration u/s 339 or an order u/s 340 is made in respect of a firm or body
corporate, the Tribunal shall also have power to make a declaration u/s 339, or pass
an order u/s 340, as the case may be, in respect of any person who was at the
relevant time a partner in that firm or a director of that body corporate.
Section 342 The delinquent officers and members of the Company who are found to be guilty of
any offence in relation to the company are liable to be prosecuted by the NCLT.
Section 343 (1) To sanction powers to be exercised by liquidator for payment to creditors in full etc.
Section 347(1)(a) To direct the manner for disposal of books and papers of company after the complete
winding-up of the company or of the company likely to be dissolved.
Proviso to To permit company liquidator to open account in a bank other than scheduled bank
Section 350(1) for the deposit of the monies received.
Section 352(8)(c) To disallow the payment of remuneration in part or in full to the liquidator in case
money is required to be deposited in Company Liquidation Account and
Undistributed assets Account is not deposited by the liquidator.
Section 353 To pass order to make the default good by filing the returns etc to the company
liquidator on request of any creditor or contributory or the Registrar.
Section 354 To ascertain the wishes of creditors or contributors by calling their meetings in all
matters relating to winding-up of the company.
Section 356 To declare dissolution of company void on an application made by the Company
Liquidator of the Company or by any other person at any time within 2 years from
the date of dissolution.
* * * * * * * * * * *

ARBITRATION & CONCILIATION ACT, 1996
Dispute
Conciliation Conciliator
Any agreement wherein

Arbitration Arbitrator
dispute has been decided
to be settled as per this
Act Court Judge
(Only certain matters of arbitration
can be challenged by courts)
Objectives of the Act –
Neutral procedure Cover National Establishment of Helpline

for settlement of & international a qualified enforcement of
disputes dispute Arbitral Tribunal foreign awards
POINTS TO BE STUDIED –
1) Important terms –
(1) Court
(2) Ad hoc arbitration
(3) Arbitral Tribunal
(4) Award
(5) Arbitration agreement
(6) Arbitration
(7) Conciliation
(8) Legal representative
2) Short notes on –
1. Alternate Dispute Resolution (ADR)
2. Arbitration agreement and essentials of a valid arbitration agreement
3. Matters which can not be referred to arbitration
4. Essentials of arbitral award
5. International Commercial Arbitration
6. Procedure for appointment of arbitrators
7. Procedure to challenge appointment of arbitrator/ tribunal
8. Jurisdiction of arbitral tribunal
9. Arbitral proceedings
10. Finalisation of arbitral award
11. Interpretation and correction of award
12. Grounds on which court may set aside the award ( vvvvvimp )
13. Settlement agreement
14. Distinction between Arbitration & Conciliation.
15.Time Limit for arbitration (imp)
16.Fast track court( imp )
1. Definitions -
Court
Court
In case of arbitration other than In case of international

international commercial commercial arbitration
arbitration
1. The High Court in exercise of its

1. The principal civil court of original ordinary original civil jurisdiction.
jurisdiction in a district
2. The High Court in exercise of its
ordinary original civil jurisdiction.
3. But does not include:
a. Any civil court of grade inferior to
such principal civil court.
b. Any court of small causes e.g.
property dispute, municipality
taxes, disputes
Note: The high court also has power to hear appeals from decrees of courts subordinate to that of
high court.
Legal Representative
1. A person who represent the estate of a deceased person by law.
2. Any person who intermeddles with the estate of a decease person.
Intermeddles – when a person interfere in something that is not ones concerned.
3. Where party acts in a representative character, the person on whom the estate devolves on the
death of the party so acting.
Ad hoc Arbitration –
1) Parties to make their own arrangements for selection of arbitrators.
2) Parties are under discretion to choose designation of rules, applicable laws, procedure and
administrative support.
3) Proceedings are more flexible, cheaper and faster.
4) Absence of administrative fees alone makes ad hoc arbitration a popular choice.
2. Objectives of the Act –
1) To provide for fair and neutral procedure for settlement of disputes.
2) To cover areas of national and international commercial arbitration and conciliation.
3) To provide the procedure regarding selection and functioning of Arbitral Tribunal.
4) To define work area for Arbitral Tribunal and Conciliator.
5) Enforcement of foreign award.
3. Alternate Dispute Resolution (ADR) –

In arbitration, two parties in disputes appoint third person to solve their dispute. Dispute doesn’t
get solved out of Court and hence it is known as Alternate Dispute Resolution.
(1) Courts need not bear the entire burden of justice system.
(2) ADR process provides –
i) Procedural flexibility
ii) Save valuable time
iii) Money
iv)Avoid the stress of conventional trials
(3) At present, ADR services are offered in India in a very rudimentary form.
(4) The International Centre for Alternative Dispute Resolution (ICADR) is a unique centre in this
part of the world that makes provision for –
a) Promoting teaching and research in the field of ADR
b) Offering ADR services to parties not only in India but all over the world
(5) Areas in which ADR works –
a) Commercial, civil labour and family disputes
b) Disputes involving joint ventures, construction projects, partnership differences, intellectual
property, personal injury, product liability, professional liability, real estate, securities, contract
interpretation, performance & insurance coverage.
4. Procedure for the appointment of Arbitrator –
If parties agree for appointing If parties fail to agree
three arbitrators
(1) Each party shall appoint one arbitrator
The arbitrators appointed shall (2) The two arbitrators appoint 3rd arbitrator as presiding
accept it arbitrator
(3) Failure of (1) or (2) within 30 days, then parties shall
request SC/HC to appoint the arbitrator
(4) SC/HC can authorise any person or institution
(Council/ Society) to appoint arbitrator.
Note – If parties fail to determine the no. of arbitrators, then Arbitral Tribunal shall consist of sole
arbitrator.
5. Grounds on which authority of an Arbitrator be challenged –
If parties agree on a procedure If parties fail to agree on a procedure
(1) Authority of an arbitrator can Then also the parties can challenge
be challenged on the agreed the authority of an arbitrator
grounds such as –
A doubt exists as to his Within 15 days after becoming
independence/ impartiality, aware of the constitution of
he does not possess the Arbitral Tribunal
qualification
(2) If challenge fails –
The Arbitral Tribunal shall
continue the tribunal
proceedings
Notes –
Once an arbitrator is appointed, he can not be removed from his office by any party or both the
parties with the mutual consent. He can be removed only on the grounds given above.
6. International Commercial Arbitration –
Arbitration relating to –
Dispute arising out of legal Where atleast 1 of the

relationship considered as parties is -
commercial under the law
enforced in India
An individual Any body corporate A company or The Govt of

who is resident other than in India association or foreign
in any country body of individuals country
other than India in any country other
than India
7. Essential ingredients of an Arbitral Award –
1) In writing 2) Signed by - 3) Recording the reasons - 4) Date

majority of the Exceptions-
members of the There are 2 exceptions
Tribunal where the award
without reason is valid
The arbitration agreement Where the parties settle the

expressly provide dispute and the AT has
recorded the settlement
5) Place of 6) Compensation & 7) Cost of the 8) Delivery of

arbitration interest arbitration arbitral award
Jurisdiction of the court of

a particular city or state
8. Jurisdiction of Arbitral Tribunal – (Sec 16)
Jurisdiction is decided based on- Jurisdiction can be challenged

1) Arbitration clause
2) Independent agreement 1) By any party before submission
of statement of defence
2) Even though it was a party in appointing
the arbitrator
3) During arbitral proceedings
Notes – (1) If plea about the jurisdiction of AT is registered then also it can continue arbitral
proceedings and make an arbitral award.AT is having power to decide its own jurisdiction and
validity of arbitration agreement.
(2) An arbitration clause is considered as independent to the terms and conditions of contract.
Hence, if AT decides that contract is “null & void”, thus it shall not affect the validity of arbitration
clause.
9. Matters which can not be referred to Arbitration –
1) Matrimonial matters
2) Insolvency matters
3) Matters of charities & charitable trusts
4) Criminal matters
5) Matters relating to validity of will
10. Conduct of Arbitral Proceedings – Provisions

1) Treatment – Parties shall be treated equally.
2) Procedure – Arbitral Tribunal shall conduct the proceedings in the manner it considers
appropriate.
3) Place of arbitration – Parties are free to agree on the place. Failing to any agreement, place of
arbitration may be determined by the Arbitral Tribunal.
4) Commencement of proceedings – Arbitral proceedings commences on the date on which a
request for dispute is received by the respondent.
5) Language – Parties are free to agree upon the language. Failing to any agreement, the Arbitral
tribunal shall determine (usually English).
6) Statement of claim & defence –
a) Claimant shall state the facts.
b) Respondent shall also state his defence.
They are allowed to amend or supplement the claim or defence.
7) Hearing
8) Failing to communicate –
Failure to communicate within the time limit –
Claim by claimant Defence by respondent
AT shall terminate the proceedings AT can continue the proceedings

unless there is a sufficient cause and pass ex-parte order
Note –
AT can in its arbitral proceedings take the help of an expert or court.
9) Appearance of parties
10) Appointment of an expert
11) Court’s assistance.
11. Challenge on the appointment of Arbitrator –
Once the arbitrator has been appointed, he can not be removed by any party or even by mutual
consent of both the parties.
An appointment of arbitrator may be challenged only if –
(1) Independency
(2) Qualification
(3) Impartiality
12. Failure or impossibilities to act as an Arbitrator –
If he becomes Fails to act without If he withdraws Parties agreed to

dejure or defacto undue delay due to from his office the termination
unable to perform some other reasons of his mandate
his functions
Except –
Withdrawal by arbitrator on his own or by agreement between the parties does not constitute
acceptance on the ground of challenge.
13. Time Limit for Arbitral Award (Section 29A)

1. The AT shall ensure speedy completion of Arbitration proceedings and passed the award within
12 months when the AT enters upon the reference. (i.e. the date on which the AT received
notice of their appoint)
2. The parties may extend such period further upto 6 months, provided additional fees is paid to
the AT.
3. If award is not pass within 12 months or 18 months (12 + 6) then the mandate of the arbitrator
shall be terminated unless the court grants extension in time limit.
Note:
a. If the delay in award is due to the AT, court may order reduction of fees upto 5% for each
month of the delay.
b. Ant application for extension in time limit filed in the court shall be disposed by the court
within 60 days from the date of service of notice on the opposite party.
14. Fast Track Procedure (Section 29(B))
1. To conduct fast track procedure for arbitral proceedings the following essential element must
be satisfied:
a. Mutual agreement between the parties.
b. Appointment of a sole arbitrator
c. Arbitrator to decide dispute on the basis of written documents and submission only (i.e.
no oral hearing)
d. The award shall be passed within 6 months from the date on which the arbitrator receives
notice of his appointment.
Note:
1. If parties request or the arbitrator finds it necessary, oral hearing may be held.
2. If award is not passed within 6 months,:
a. The parties may by mutual consent extend the period upto 6 months.
b. If expiry of the extended period award is not passed, court may terminate the award
passed so far (i.e. mandate) or grant extension is there is a sufficient cause.
15. Interest Payment on the Arbitral Award
If the sum directed to be paid is not paid, interest @ current rate of interest + 2% shall be payable
from the date of passing of award.
16. Correction & Interpretation of Award

1. After receiving the AA if any party feels there is a mistake in the award or requires
interpretation, he may apply to the AT within 30 days from the receipt of AA either to rectify
the award or give interpretation of the award.
2. The AT shall rectify or provide interpretation within 30 days from the receipt of request.
Note: Any party may also request the AT to pass an additional award regarding his claim and
the AT may consider the request and if it thinks fit passed additional award within 60 days
from the date of receipt of request.
17. Setting Aside an award (Section 34)

An Arbitral Award may be set aside by the court.
On the application of any party On its own suo motoo
1. The party was under some 1. When the court finds that the
incapacity (i.e. unsound mind, arbitral award is in conflict with the
minor) Public policy of India (i.e. fraud /
2. A. Agr is not valid. corruption principles of natural
3. No proper notice was given to the justice / morality)
party. 2. When the court finds that the
4. The arbitral award delt with a subject matter of dispute is not
dispute which was beyond the scope capable of settlement by arbitration
of arbitration.
5. The composition of Arbitral Tribunal
was in conflict with the Agreement
between parties
Note:
1. An application for setting aside award shall be made within 3 months from the date of receipt
of award.
2. The court extent the above period by further 30 days if it is satisfied that the applicant was
prevented by sufficient cause.
3. Any application under section 34 given above shall be filed by a party only after issuing a prior
notice to the other party and the application shall be accompanied by affidavit.
4. The court shall on receiving application disposed off such application within a period of 1 year
from the date when notice is served upon the other party.
18. Conciliation / conciliator / settlement Agreement
1. Unless parties agree for 2/3 conciliators, there shall be only one conciliators.
2. Appointment of conciliator:
a. The parties themselves may agree on one conciliator.
b. Failure to agree, each party may appoint one conciliator.
c. In case conciliation proceedings is with 3 conciliators, each party may appoint one
conciliator and the parties themselves will agree on the name of third conciliator as
preceding conciliator.
3. Conciliation: When dispute between parties is settled in a friendly manner it is known as
conciliation.
Settlement agreement (Conciliator) –

1) Conciliator shall formulate the term of possible settlement and submit them to the parties for
their observation.
2) If the parties reach agreement, they may draw up and sign a written settlement agreement.
3) When the parties sign the settlement, it shall be final and binding on the parties.
4) The Conciliator shall authenticate, furnish a copy thereof to each of the parties.
5) The settlement agreement has the same status effect as if it is an arbitral award.
19. Distinguish between Arbitration and Conciliation –
Arbitration Conciliation
1) Formal process. Informal process.
2) Arbitral award – final & binding. Conciliator does not have the power to
pass a judgement.
3) Arbitrator should be in odd numbers. Conciliators should be in even numbers.
4) Both the parties are required to One party can also terminate the
terminate the proceedings. proceedings.
5) Arbitrator can be appointed even Conciliator can be appointed only after

before the dispute arises. the dispute has arisen.
Q No. 1. Write a short note on: Alternative Dispute Resolution (ADR)
What is meant by alternative dispute resolution (ADR)? Which are the areas in which ADR works?
Q No. 2. Outline the objectives of the Arbitration and Conciliation Act, 1996
Q No. 3. What is ad hoc arbitration?
Q No. 4. Which type of the disputes cannot be referred for settlement to arbitration?
Q No. 5. Raman & Raheem entered into an agreement to refer a dispute relating to geniuses of a
will to arbitrator. In spite of this Raheem commenced proceeding relating to the dispute in the
district Court of competent jurisdiction. Raman, therefore, submits an application for stay of
legal proceedings under the Arbitration Act, will be succeed?
Q No. 6. Define ‘arbitration agreement’. What are the essentials for a valid arbitration
agreement?
Q No. 7. State the nature and utility of arbitration agreement. State the essentials of an
arbitration agreement.
Q No. 8. What do you understand by arbitration agreement? What are the usual content of such
agreement?
Q No. 9. Enumerate the salient features of an ‘arbitration agreement’ under the Arbitration and
Conciliation Act, 1996.
Q No. 10. What is meant by ‘arbitration agreement’ under the Arbitration and Conciliation Act,
1996? Should the arbitration agreement be in writing and whether jurisdiction of Civil Court is
barred?
Q No. 11. Ajoy and Bijoy make an agreement in writing to refer a dispute between them to an
arbitrator for determination. In spite of this agreement, Ajoy files a suit against Bijoy relating to
that dispute in a Court. Advice Bijoy.
Q No. 12. Discuss the essential ingredients of an arbitral award.
Q No. 13. What are the essentials of an arbitral award?
Q No. 14. Explain: International Commercial Arbitration
Q No. 15. How has the 'Court' been defined under the Arbitration and Conciliation Act, 1996?
Q No. 16. Define 'legal representative' under the Arbitration and Conciliation Act, 1996.
Q No. 17. A and B enter to arbitration agreement under which a sole arbitrator is to be appointed
by consent of both the parties. When B refuses to concur in the appointment of the arbitrator,
what course is available to A?
Q No. 18. Anand and Bikram enter into an agreement to refer a dispute to arbitration.
Thereafter, Bikram files a civil suit in a Court in respect of that dispute. Anand makes an
application before the Court for stay for proceedings, Bikram challenges the validity of the
agreement on the ground that arbitrator is not named in it. Will Bikram succeed?
Q No. 19. On what grounds can the authority of an arbitrator be challenged? What is the
challenge procedure?
Describe the grounds and procedure to challenge the appointment of an arbitral tribunal under
the Arbitration and Conciliation Act, 1996.
Q No. 20. Ram and Shyam appointed Mohan as an arbitrator by their mutual consent.
Thereafter, Ram makes a declaration that he revokes the authority of Mohan to act as an
arbitrator. Can he legally to do so?
Q No. 21. Under the terms of an arbitration agreement, the court appointed Anurag, chairman of
the arbitral tribunal, as the arbitrator. During the pendency of the arbitration, Anurag was
demoted and ceased to be the chairman of arbitral tribunal. The parties to the dispute objected
to his continuance as arbitrator on the ground that he had now become disqualified. Is he
entitled to continue as the arbitrator? Decide.
Q No. 22. Write a short note on: Jurisdiction of Arbitral Tribunal
Q No. 23. Describe the provisions relating to ‘conduct of arbitral proceedings’.

Discuss the procedure to be followed for arbitral proceedings by an arbitral tribunal under the
Arbitration and Conciliation Act, 1996.
Q No. 24. Write a short note on: Appointment of expert by an arbitral tribunal
Q No. 25. What are essentials of arbitral award?
Q No. 26. Discuss the provision relating to correction and interpretation of an award under the
Arbitration and conciliation Act, 1996.
Q No. 27. Making of additional award by arbitral tribunal. Comment.
Q No. 28. Write a short note on: Setting aside an arbitral award
Q No. 29. What are the grounds for setting aside an arbitral award under the Arbitration and
Conciliation Act, 1996?
Q No. 30. Arbitrator refuses to adjourn the hearing in an arbitration matter before him to the
respondent on the ground that he has to decide the dispute within four months. What will be the
effect of such refusal?
Q No. 31. Madhav moves an application for setting aside the arbitral award on the ground that
he was not given a proper notice of the arbitral proceedings and thereby not being able to
present his case. He furnishes sufficient proof and pleads before the court that he received the
arbitral award just 15 days back. Decide with reasons:
(i) Whether Madhav will succeed in his prayer and
Whether the law of limitation will not be a bar in his case.
Q No. 32. Write a note on: Finality of arbitral award
Q No. 33. A obtains an award against B in respect of an arbitration agreement entered into by A
and B. B takes the plea that the award is not binding upon him because a condition to this effect
was not incorporated in the arbitration agreement. Will B succeed?
Q No. 34. After the completion of arbitration proceedings, the arbitrator gave a notice to the
parties of the making and signing of award and of the amount of fees and charges in respect of
the arbitration and award. The parties failed to pay the fees and charges and hence, the
arbitrator refused to deliver award. A party, aggrieved by the conduct of the arbitrator, submitted
an application to the Court to direct the arbitrator to deliver the award in the court. How the
matter will be solved?
Q No. 35. Explain briefly the terms 'conciliation' and 'mediation'.
Q No. 36. What do you understand by conciliation? When do conciliation proceedings begin? Can
all disputes be submitted to conciliation?
Conciliation is informal process in which the conciliator, the third party, tries to bring the
disputants to agreement. Comment.
Q No. 37. Who is a conciliator? What can be the number of conciliators? Who appoints them?
What do you understand by conciliation? How are the conciliators appointed? Discuss their role
in arriving at a settlement agreement.
Q No. 38. Distinguish between: Arbitration & Conciliation
The Arbitration & Conciliation Act, 1996 13.14
Chapter
13 Arbitration & Conciliation Act, 1996
Introduction: An Uttar Pradesh based postman Umakant Mishra, who allegedly stolen a money
order worth `57.60 in 1984, has been declared innocent in the case after 29 years. The case is
not relevant for our current discussion on arbitration, but one must observe from this case is
that 29 years is not a small period and hence it is rightly said that justice delayed is justice
denied. This should not happen in commercial disputes. A quick remedy and decision is very
important for the growth of trade and commerce and here comes the importance of arbitration
which is alternative to Court procedure. In arbitration, with the consent of both the parties a
private judge is appointed. Such a person is known as arbitrator or if more than one persons are
appointed they are known as Arbitral Tribunal. Arbitrator is not expected to follow technical
formalities of the Court and hence decision will be fast.
Conciliation is the amicable settlement of dispute between the parties, with the help of a
conciliator. In arbitration, there is a decision (called award) of arbitral tribunal, while in
conciliation, it is the decision of the parties. The advantage of conciliation is that in arbitration,
there is ‘win-lose’ situation, as one of the parties is bound to lose and feel frustrated. In
conciliation, there is ‘win-win’ situation, as both parties agree to discuss among themselves and
arrive at a mutually agreed compromise.
In the past, statutory provisions on arbitration were contained in three different enactments,
namely, The Arbitration Act, 1940, The Arbitration (Protocol & Convention) Act, 1937 and The
Foreign Awards (Recognition & Enforcement) Act, 1961. The Arbitration Act laid down the
framework within which domestic arbitration was conducted in India, while the other two Acts
dealt with foreign awards. The Arbitration & Conciliation Act, 1996 has repealed the Arbitration
Act, 1940 and also the Acts of 1937 and 1961, consolidated and amended the law relating to
domestic arbitration, international commercial arbitration and enforcement of foreign arbitral
awards and also defines the law relating to conciliation, providing for matters connected
therewith.
The Arbitration & Conciliation Act, 1996 is based on the 1985 UNICITRAL Model Law on
International Commercial Arbitration and the UNCITRAL Arbitration Rules, 1976. The Statement
of Objects and Reasons of the Act recognizes that India's economic reforms will become effective
only if the nation's dispute resolution provisions are in tune with international regime.

Question 1] Write a short note on: Alternative Dispute Resolution (ADR)

What is meant by alternative dispute resolution (ADR)? Which are the areas in which
ADR works? CS (Executive) – June 2016 (5 Marks)
Ans.: Alternative Dispute Resolution (ADR) refers to any means of settling disputes outside the
courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation,
and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue
to plague litigants, more states have begun experimenting with ADR programs. Some of these
programs are voluntary; others are mandatory.
While the two most common forms of ADR are arbitration and mediation, negotiation is almost
always attempted first to resolve a dispute. It is the pre-eminent mode of dispute resolution.
Negotiation allows the parties to meet in order to settle a dispute. The main advantage of this
form of dispute settlement is that it allows the parties themselves to control the process and the
solution.
In India we have system of ‘Panchyat’ where senior people from village would resolve dispute
between people. Similarly in Arbitration two parties in dispute appoint third person to solve
their dispute. Thus, dispute gets solved out of Court and hence it is known as Alternate
Dispute Resolution (ADR).
The International Centre for Alternative Dispute Resolution (ICADR) is a unique centre in this
part of the world that makes provision for promoting teaching and research in the field of ADR
as also for offering ADR services to parties not only in India but also to parties all over the
world. The ICADR is a Society registered under Societies Registration Act, 1860; it is an
independent non-profit making organization. It maintains panels of independent experts in the
implementation of ADR processes.
Areas in which ADR works: Almost all disputes including commercial, civil labour and family
disputes, in respect of which the parties are entitled to conclude a settlement, can be settled by
an ADR procedure. ADR techniques have been proven to work in the business environment,
especially in respect of disputes. Involving joint ventures, construction projects, partnership
differences, intellectual property, personal injury, product liability, professional liability, real
estate, securities, contract interpretation and performance and insurance coverage.
Question 2] Outline the objectives of the Arbitration and Conciliation Act, 1996.
Ans.: The Arbitration & Conciliation Act, 1996 has been enacted keeping in view following
objectives:
 To provide for fair and neutral procedure for settlement of dispute.
 To comprehensively cover international commercial arbitration and conciliation as also
domestic arbitration and conciliation.
 To provide for procedure regarding selection and functioning of arbitral tribunal.
 To provide well defined work area for arbitral tribunal and conciliator.
 To minimize the supervisory role of courts in the arbitral process.
 To permit an Arbitral Tribunal to use mediation conciliation or other procedure during the
arbitral proceedings to encourage the settlement of disputes.
 To provide that every final arbitral award is enforced in the same manner as if it were the
decree of the Court.
 To provide that a settlement agreement reached by the parties as a result of conciliation
proceedings will have the same status and effect as an arbitral award on agreed terms on
the substance of the dispute rendered by an Arbitral Tribunal; and
 To cover areas of national and international commercial arbitration and conciliation.
 To help in enforcement of foreign awards.
Question 3] What is ad hoc arbitration?


Ans.: An ad hoc arbitration is one which is not administered by an institution and therefore, the
parties are required to determine all aspects of the arbitration like the number of arbitrators,
manner of their appointment, procedure for conducting the arbitration, etc.
Ad hoc arbitration is a proceeding that is not administered by others and requires the parties to
make their own arrangements for selection of arbitrators and for designation of rules,
applicable law, procedures and administrative support, provided the parties approach the
arbitration in a spirit of cooperation. Ad hoc proceedings can be more flexible, cheaper and
faster than an administered proceeding. The absence of administrative fees alone makes this a
popular choice.
Question 4] Which type of the disputes cannot be referred for settlement to arbitration?
Ans.: All matters in dispute between parties relating to private rights or obligations which Civil
Courts may take cognizance under Section 9 of CPC, 1908 may be referred to arbitration,
unless a reference is forbidden by a statute or is opposed to public policy.
What disputes can be settled by Arbitration?
 Basically all disputes of Civil or Quasi Civil nature involving Civil Rights fall within the
jurisdiction of Arbitration.
 Almost all disputes – commercial, civil, labour and family disputes in respect of which the
parties are entitled to conclude a settlement – can be settled by ADA procedures.
 Disputes involving joint ventures, construction projects, partnership differences,
intellectual property rights, personal injury, product liabilities, professional liability, real
estate securities, contract interpretation and performance, insurance claim and Banking &
non-Banking transaction disputes fall within the jurisdiction of Arbitration.
 It is expanding to the areas or construction health care, telecommunication, entertainment
and technology based industries
Matters which cannot be referred to arbitration?
 In any case dispute involving criminal offences are fully beyond jurisdiction of arbitration.
 Even in case of civil rights following matter cannot be referred to arbitration:
- Matrimonial matters and matters connected with conjugal rights.
- Industrial Disputes and Revenue matters (Income Tax & other Tax matters).
- Testamentary matters under Succession Act.
- Motor Vehicle Accident cases.
- Matters under Indian Trust Act, Trusteeship of Charitable Institutions, Public charity
matters failing within the purview of Monopolies and Restrictive Trade Practices Act.
- Determination guardianship or wards.
- As per Section 24 of Indian Contract Act, 1872 matters relating to unlawful
consideration are void hence these matters cannot be referred for arbitration.
Question 5] Raman & Raheem entered into an agreement to refer a dispute relating to
geniuses of a will to arbitrator. In spite of this Raheem commenced proceeding relating
to the dispute in the district Court of competent jurisdiction. Raman, therefore, submits
an application for stay of legal proceedings under the Arbitration Act, will be succeed?
Ans.: No., Raman will not succeed. Section 2(3) of the Arbitration and Conciliation Act, 1996
provides that certain disputes relating to testamentary matters like validity of a will cannot be
referred to the arbitration.
Where some special and specific law is enacted for the purpose of determination of a matter,
such matter cannot be referred to arbitration. The question to the geniuses of a will can only
decided in accordance with law dealing with probate as given in the India Succession Act.
Hence, such a dispute cannot be referred to arbitration. In this view of the matter, the
arbitration agreement, the Court cannot grant the remedy of stay of legal proceeding to Raman.

Definitions & Applicability
Question 6] Define ‘arbitration agreement’. What are the essentials for a valid arbitration
agreement? CS (Inter) – Dec 2004 (5 Marks)
State the nature and utility of arbitration agreement. State the essentials of an
arbitration agreement. CS (Inter) – Dec 1996 (8 Marks)
What do you understand by arbitration agreement? What are the usual content of such
agreement? CS (Inter) – Dec 1999 (8 Marks)
Enumerate the salient features of an ‘arbitration agreement’ under the Arbitration and
Conciliation Act, 1996. CS (Inter) – June 2005 (6 Marks)
Ans.: “Arbitration agreement” means an agreement referred to in Section 7 [Section 2(1)(b)].

Arbitration Agreement [Section 7]: Arbitration agreement means an agreement by the parties
submit to arbitration all or certain dispute which have arisen or which may arise between them
in respect of defined legal relationship whether contractual or not.
 The person who is appointed to determine differences and dispute is called the Arbitrator
or Arbitral Tribunal,
 Proceeding before him is called Arbitration Proceedings and
 His decision is called an Award.
Essential Elements of an Arbitration Agreement:
(1) Writing: An arbitration agreement must be in writing.
An arbitration agreement is in writing if it is contained in
- a document signed by the parties
- An exchange of letters, telex, telegram or other means of telecommunication including
communication through electronic means which provide a record of the agreement or
- An exchange of statements of claim and defense in which the existence of the agreement
is alleged by one party and not denied by the other.
(2) Valid Contract: It must have all the essential element of a valid contract and the parties
must be ad idem.(agree on same thing & in same sense)
(3) Dispute: It must be to refer a dispute present or future.
(4) Form: It may be in form of an arbitration clause in a contract or in the form of a separate
agreement. Thus, arbitration agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement. The arbitration agreement can be by
exchange of letters, documents, telex, telegram etc.
Question 7] What is meant by ‘arbitration agreement’ under the Arbitration and

Conciliation Act, 1996? Should the arbitration agreement be in writing and whether
jurisdiction of Civil Court is barred? CS (Executive) – Dec 2015 (5 Marks)
Ans.: “Arbitration agreement” means an agreement referred to in Section 7.

As per Section 7, arbitration agreement means an agreement by the parties submit to
arbitration all or certain dispute which have arisen or which may arise between them in respect
of defined legal relationship whether contractual or not.
An arbitration agreement must be in writing.
Jurisdiction of Civil Court is not barred due to arbitration agreement. However, Section 8(1)
provides that if a party approaches Court despite the arbitration agreement, the other party can
raise objection to Court along with certified copy of arbitration agreement. If Court is satisfied
that dispute is subject to arbitration it must refuse to admit case and refer back for arbitration.
Further as per Section 8 (3) an application has been made as above and that the issue is
pending before the Judicial Authority, an arbitration may be commenced or continued and
arbitral award is made.
Question 8] In spite of arbitration agreement, if one the party refers the case to Judicial
Authority, then can such Judicial Authority has power to refer back parties to

arbitration?
Ans.: Power to refer parties to arbitration where there is an arbitration agreement [Section 8(1)]: If
a party approaches Court despite the arbitration agreement, the party can raise objection to
Court along with certified copy of arbitration agreement. If Court is satisfied that dispute is
subject to arbitration it must refuse to admit case and refer back for arbitration
Application to be accompanied by the original arbitration agreement [Section 8(2)]: The application
referred to in Section 8(1) shall not be entertained unless it is accompanied by the original
arbitration agreement or a duly certified copy thereof.
However, where the original arbitration agreement or a certified copy thereof is not available
with the party applying for reference to arbitration and the said agreement or certified copy is
retained by the other party, then, the party so applying shall file such application along with a
copy of the arbitration agreement and a petition praying the Court to call upon the other party
to produce the original arbitration agreement or its duly certified copy before that Court.
An arbitration may be commenced or continued even though application is pending u/s 8(1)
[Section 8(3)]: An application has been made as above and that the issue is pending before the
Judicial Authority, an arbitration may be commenced or continued and arbitral award is made.
Question 9] Ajoy and Bijoy make an agreement in writing to refer a dispute between
them to an arbitrator for determination. In spite of this agreement, Ajoy files a suit
against Bijoy relating to that dispute in a Court. Advice Bijoy.
Ans.: Bijoy can invoke Section 8, envisaging power to refer parties to arbitration when there is
an arbitration agreement.
If a party approaches Court despite the arbitration agreement, the party can raise objection to
Court along with certified copy of arbitration agreement. If Court is satisfied that dispute is
subject to arbitration it must refuse to admit case and refer back for arbitration
Further as per Section 8(3) an application has been made as above and that the issue is
pending before the judicial authority, an arbitration may be commenced or continued and
arbitral award is made.
Therefore, Bijoy can object to the suit and plead for arbitration proceedings as per agreement.
Question 10] Discuss the essential ingredients of an arbitral award.

What are the essentials of an arbitral award? CS (Executive) – Dec 2008 (4 Marks)
Ans.: Arbitral Award [Section 2 (1) (c)]: Arbitral award includes an interim award. The definition
does not give much detail of the ingredients of an arbitral award. However, taking into account
other provisions of the Act, the following features are noticed:
Following are essentials of arbitral award:
(1) Written: An arbitration agreement is required to be in writing. Similarly, a reference to
arbitration an award is also required to be made in writing. The arbitral award is required
to be made on stamp paper of prescribed value and in writing. An oral decision is not an
award under the law.
(2) Signing: The award is to be signed by the members of the arbitral tribunal. However, the
signature of majority of the members of the tribunal is sufficient if the reason for any
omitted signature is stated.
(3) Recording the reasons: The award should contain reasons. However, there are two
exceptions where an award without reasons is valid i.e.
(a) Where the arbitration agreement expressly provides that no reasons are to be given, or
(b) Where the award has been made u/s 30 i.e. where the parties settled the dispute and
the arbitral tribunal has recorded the settlement in the form of an arbitral award on
agreed terms.

(4) Date: The award should be dated i.e. the date of making of the award should be mentioned
in the award.
(5) Place of arbitration: Place of arbitration is important for the determination of rules
applicable to substance of dispute, and recourse against the award. The arbitral tribunal is
under obligation to state the place of arbitration as determined in accordance with Section
20. Place of arbitration refers to the jurisdiction of the Court of a particular city or State.
(6) Compensation & interest: The arbitral tribunal may include in the sum for which award is
made interest up to the date of award and also a direction regarding future interest.
(7) Cost of the arbitration: The award may also include decisions and directions of the
arbitrator regarding the cost of the arbitration.
(8) Delivery of arbitral award: After the award is made, a signed copy should be delivered to
each party for appropriate action like implementation or recourse against arbitral award.
Question 11] Explain: International Commercial Arbitration

Ans.: International Commercial Arbitration [Section 2(f)]: International commercial arbitration

means an arbitration relating to disputes arising out of legal relationships, whether contractual
or not, considered as commercial under the law in force in India and where at least one of the
parties is:
(i) an individual who is a national of, or habitually resident in, any country other than India
or
(ii) a body corporate which is incorporated in any country other than India or
(iii) an association or a body of individuals whose central management and control is exercised
in any country other than India; or
(iv) the Government of a foreign country
Question 12] How has the 'Court' been defined under the Arbitration and Conciliation
Act, 1996? CS (Executive) – Dec 2014 (5 Marks)
Ans.: Court [Section 2(1)(e)]: “Court” means –

(i) In the case of an arbitration other than international commercial arbitration, the principal
Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its
ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the
subject-matter of the arbitration if the same had been the subject-matter of a suit, but does
not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of
Small Causes;
(ii) In the case of international commercial arbitration, the High Court in exercise of its
ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the
subject-matter of the arbitration if the same had been the subject-matter of a suit, and in
other cases, a High Court having jurisdiction to hear appeals from decrees of courts
subordinate to that High Court.
Question 13] Define 'legal representative' under the Arbitration and Conciliation Act,
1996. CS (Executive) – Dec 2014 (3 Marks)
Ans.: Legal Representative [Section 2(1)(g)]: The definition of “legal representative” given under
Section 2(1)(g) has been taken verbatim from the definition in Section 2(11) of the Code of Civil
Procedure.
The following are the persons who are legal representatives:
(a) A person who in law represents the estate of a deceased person.
(b) A person who intermeddles with the estate of the deceased.
(c) A person on whom the estate of a deceased person devolves on the death of the party acting
in a representatives capacity.
The following persons are generally included in the list of legal representatives:

(i) Executors and administrators properly appointed.

(ii) Person who has taken on himself duties and responsibilities which belong to the executor
or administrator though only in respect of a part of the estate.
(iii) Heirs-at-law whether they take succession or by survivorship.
(iv) Revisioners when the action has been brought by or against the widow representing her
husband’s estate.
(v) Universal legatee.
The following are the illustrations of those who do not come within the meaning of legal
representative, so far as the Act is concerned:
(1) An assignee from a deceased zamindar or to whom the holding reverts on the death of a
tenant.
(2) A trespasser or a person who claims adversely the estate of the deceased.
(3) A new trustee appointed or elected on the death of the deceased trustee.
Appointment of Arbitrators
Question 14] What is the procedure for the appointment of arbitrators?
Ans.: A person who is appointed to determine difference and disputes between two or more
parties by their mutual consent is called an arbitrator. The parties may appoint whomsoever
they please to arbitrate on their dispute. However, his appointment is not complete till he has
accepted the reference.
Number of Arbitrators [Section 10]: The parties are free to determine the number of arbitrators
provided that such number shall not be an even number. Thus, the Arbitral Tribunal can consist
of 1, 3, 5, 7 or any number of persons, provided that number of arbitrators must be an odd
number.
If the parties fail to make the determination, the arbitral tribunal shall consist of a sole
arbitrator (i.e. only one).
Appointment of Arbitrators [Section 11]:
 A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
 The parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
 If they are unable to agree in arbitration with three arbitrators each party shall appoint one
arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act
as the presiding arbitrator.
 If a party fails to appoint an arbitrator within 30 days or if two appointed arbitrators fail to
agree on the third arbitrator within 30 days, the party can request the Supreme Court or as
the case may be, the High Court or the person or institution designated by that Court for the
appointment of arbitrator.
 The Supreme Court or High Court can authorize any person or institution to appoint an
arbitrator e.g. India Council for Arbitration or Indian Society of Arbitrators etc.
 Decision on appointment of arbitrators by the Supreme Court or High Court or the person or
institution designated by that Court, is final.
 The Supreme Court or High Court or the person or institution designated by that Court
would have due regard to qualifications of arbitrators agreed between the parties, and
considerations likely to secure an independent and impartial arbitrator.
Question 15] A and B enter to arbitration agreement under which a sole arbitrator is to
be appointed by consent of both the parties. When B refuses to concur in the
appointment of the arbitrator, what course is available to A?
Ans.: As per Section 11 of the Arbitration and Conciliation Act, 1996, if a party fails to appoint
an arbitrator within 30 days in case of arbitration with one arbitrator, or if two appointed
arbitrators fail to agree on the third arbitrator within 30 days in case of arbitration with three

arbitrator, the party can request the Supreme Court or High Court or the person or institution
designated by that Court to appoint arbitrator.
The Supreme Court or High Court can authorize any person or institution to appoint an
arbitrator e.g. India Council for Arbitration or Indian Society of Arbitrators etc.
Thus, A has to approach to Supreme Court or High Court or the person or institution
designated by that Court for appointment of an arbitrator.
Question 16] Anand and Bikram enter into an agreement to refer a dispute to
arbitration. Thereafter, Bikram files a civil suit in a Court in respect of that dispute.
Anand makes an application before the Court for stay for proceedings, Bikram
challenges the validity of the agreement on the ground that arbitrator is not named in
it. Will Bikram succeed? CS (Inter) – June 1994 (5 Marks)
Ans.: By the very definition of Arbitration Agreement it is clear that arbitrator need not be
named in the agreement itself. The parties may appoint whomsoever they please to arbitrate on
their dispute. If parties are agree on appointment of arbitrator then provisions of Section 11
has to be observed for appointment of arbitrator.
If a party approaches Court despite the arbitration agreement, the other party can raise
objection to Court along with certified copy of arbitration agreement. If Court is satisfied that
dispute is subject to arbitration it must refuse to admit case and refer back for arbitration.
Hence, Bikram will not succeed.
Anand can object to the suit and plead for arbitration proceedings as per agreement.
Question 17] On what grounds can the authority of an arbitrator be challenged? What is
the challenge procedure?
Describe the grounds and procedure to challenge the appointment of an arbitral tribunal
under the Arbitration and Conciliation Act, 1996. CS (Inter) – June 2004 (8 Marks)
Ans.: Grounds for Challenge for appointment of Arbitrator [Section 12]: The person intended to be
appointed as arbitrator must be independent and impartial.
When a person is approached in connection with his possible appointment as an arbitrator, he
shall disclose in writing any circumstances —
(a) Such as the existence either direct or indirect, of any past or present relationship with or
interest in any of the parties or in relation to the subject-matter in dispute, whether
financial, business, professional or other kind, which is likely to give rise to justifiable
doubts as to his independence or impartiality; and
(b) Which are likely to affect his ability to devote sufficient time to the arbitration and in
particular his ability to complete the entire arbitration within a period of 12 months.
Further an arbitrator, from the time of his appointment and throughout the arbitral
proceedings shall, without delay, disclose to the parties in writing any circumstances likely to
affect independence or impartiality.
An appointment of arbitrator may be challenged only if:
- Circumstances exist that give rise to justifiable doubts as to his independence or impartiality,
or
- He does not possess the qualification agreed to by the parties.
Challenge Procedure [Section 13]:
 The parties are free to agree on a procedure for challenging an arbitrator.
 If parties are agreed upon a procedure and if challenge fails, then the arbitral tribunal shall
continue the arbitral proceeding and make an arbitral award.
 Where an arbitral award is made, the party challenging the arbitrator may make an
application for setting aside such an arbitral award in accordance with Section 34.
 Sometimes parties may fails to agree upon the challenge procedure. Then also party is
entitled to challenge an arbitrator, within 15 days after becoming aware of the constitution of
the arbitral tribunal.

Question 18] Ram and Shyam appointed Mohan as an arbitrator by their mutual consent.
Thereafter, Ram makes a declaration that he revokes the authority of Mohan to act as
an arbitrator. Can he legally to do so? CS (Inter) – June 1997 (5 Marks)
Ans.: Once an arbitrator has been appointed, he cannot be removed by any party, or even by
both parties mutual consent.
As per Section 12 of the Arbitration & Conciliation Act, 1996, an appointment of arbitrator may
be challenged only if:
- Circumstances exist that give rise to justifiable doubts as to his independence or impartiality,
or
- He does not possess the qualification agreed to by the parties.
- The parties are free to agree on a procedure for challenging an arbitrator.
- If parties are agreed upon a procedure and if challenge fails, then the arbitral tribunal shall
continue the arbitral proceeding and make an arbitral award.
Where an arbitral award is made, the party challenging the arbitrator may make an application
for setting aside such an arbitral award only in accordance with Section 34.
Question 19] Write a short note on: Failure or impossibility to act as an arbitrator
Ans.: Failure or impossibility to act [Section 14]: The mandate of an arbitrator shall terminate, if
he becomes de jure or de facto unable to perform his function, or fails to act without undue
delay due to some other reasons. Mandate is also terminated, if he withdraws from his office, or
the parties agree to the termination of his mandate.
Further, if there is controversy about an arbitrator’s inability to function or occurrence of
undue delay, a party may seek intervention of the Court.
However, withdrawal by arbitrator on his own or by agreement between the parties does not
constitute acceptance of the grounds of challenge.
It is considered that the procedure for challenge to the appointment of an arbitrator need not
be a matter of agreement by parties. The procedure in Section 13 should apply in all cases.
dejure = rightfully, legally; defacto = in fact
Question 20] Under the terms of an arbitration agreement, the court appointed Anurag,
chairman of the arbitral tribunal, as the arbitrator. During the pendency of the
arbitration, Anurag was demoted and ceased to be the chairman of arbitral tribunal. The
parties to the dispute objected to his continuance as arbitrator on the ground that he
had now become disqualified. Is he entitled to continue as the arbitrator? Decide.
Ans.: As per Section 14 of the Arbitration and Conciliation Act, 1996, the mandate of an
arbitrator shall terminate, if he becomes de jure or de facto unable to perform his function, or
fails to act without undue delay due to some other reasons. Mandate is also terminated, if he
withdraws from his office, or the parties agree to the termination of his mandate.
In given case even though Mr. Anurag has been removed from the post of chairman of the
tribunal, he is still an arbitrator. His removal as such will not endanger his working as an
arbitrator, hence he may continue to be arbitrator.
Question 21] Write a short note on: Substitution of Arbitrator
Ans.: Substitution of Arbitrator [Section 15]:

(1) In addition to the circumstances referred to in Section 13 or 14, the mandate of an
arbitrator shall terminate -
(a) where he withdraws from office for any reasons; or
(b) by or pursuant to agreement of the parties.
(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed.

(3) Where an arbitrator is replaced, any hearings previously held may be repeated at the
discretion of the arbitral tribunal.
(4) An order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator
shall not be invalid because there has been a change in the composition of the arbitral
tribunal.
Question 22] Write a short note on: Jurisdiction of Arbitral Tribunal

Ans.: Jurisdiction of arbitral tribunals [Section 16]: The arbitral tribunal is empowered to rule its
own jurisdiction including any objections in relation to existence and validity of the arbitration
agreements and for that purpose:
(1) An arbitration clause which forms part of a contract shall be treated as an agreement
independent of other terms of the contract and
(2) A decision by the arbitral tribunal that the contract is null and void shall not entail ipso
jure the invalidity of the arbitration clause.
A plea that arbitral tribunal does not have jurisdiction can be raised before the submission of
the statement of defense.
A party shall not be precluded from raising such a plea merely because he has appointment or
participated in the appointment of an arbitrator.
A plea that the arbitral tribunal is exceeding the scope of its authority, could be raised by the
party during the arbitral proceedings.
The arbitral tribunal shall decide on a plea referred as above and where the tribunal takes a
decision rejecting the plea, it shall continue with the arbitral proceedings and make an arbitral
award.
ipso jure = by the law itself; by operation of law
Arbitral Proceedings
Question 23] Describe the provisions relating to ‘conduct of arbitral proceedings’.

Discuss the procedure to be followed for arbitral proceedings by an arbitral tribunal
under the Arbitration and Conciliation Act, 1996.
Write a short note on: Appointment of expert by an arbitral tribunal
Ans.: Provisions relating to conduct of arbitral proceedings are as follows:

(1) Equal treatment of parties [Section 18]: The parties shall be treated equally and each party
shall be given a full opportunity to present his case.
(2) Determination of rules of procedure [Section 19]: The arbitral tribunal shall not be bound by
the CPC 1908 or Indian Evidence Act, 1872. (That mean to say that they are not required to
follow formalities & procedure which is followed by Court)
 The parties are also free to agree on the procedure to be followed by the arbitral tribunal
in conducting its proceedings.
 If parties fail to agree upon the procedure to be followed by the arbitral tribunal then the
arbitral tribunal may conduct the proceedings in the manner it consider appropriate.
(3) Place of arbitration [Section 20]: The parties are free to agree on the place of arbitration.
Failing to any agreement, the place of arbitration may be determined by the arbitral
tribunal having regard to the circumstances of the case and the convenience of the parties.
(4) Commencement of arbitral proceeding [Section 21]: The arbitral proceeding in respect of a
particular dispute commences on the date on which a request for dispute to be referred to
arbitration is received by the respondent.
(5) Language [Section 22]: The parties are free to agree upon the language to be used in the
arbitral proceedings. Failing to any agreement, the arbitral tribunal shall determine the

language to be used in the arbitral proceedings. The arbitral tribunal may order to
translate any documentary evidence into language agreed upon by the parties or
determined by the arbitral tribunals.
(6) Statement of claim & defense [Section 23]:
 The claimant shall state the facts supporting his claim and relief or remedy sought to
arbitral tribunal within the period of time agreed upon by the parties or determined by
arbitral tribunal.
 Respondent shall also state his defense within the period of time agreed upon by the
parties or determined by the arbitral tribunal. Respondent in support of his case, may
also submit a counterclaim or plead a set-off, which shall be adjudicated upon by the
arbitral tribunal, if such counterclaim or set-off falls within the scope of the arbitration
agreement.
 Unless otherwise agreed by the parties, they are allowed to amend or supplement the
claim or defense during the course of the arbitral proceedings.
(7) Hearing [Section 24]: The arbitral tribunal shall decide whether hold oral hearing or written
proceeding at appropriate stage. The arbitral tribunal shall, as far as possible, hold oral
hearings for the presentation of evidence or for oral argument on day-to-day basis. It shall
not grant any adjournments unless sufficient cause is made out. It may also impose costs
including exemplary costs on the party seeking adjournment without any sufficient cause.
(8) Proceedings [Section 25]: If claimant fails to communicate his claim within time then
arbitral tribunal shall terminate the proceeding. But if claimant shows a sufficient cause,
proceedings cannot be terminated.
(9) Statement of defense: If the respondent fails to communicate his statement of defense
within time limit, tribunal can continue the proceeding.
(10) Appearance of parties: If any party fails to appear at oral hearing or to produce
documentary evidence, the arbitral tribunal may continue the proceedings and make the
arbitral award on evidence before it.
(11) Appointment of expert [Section 26]: The arbitral tribunal may appoint one or more experts
to report to it on specific issues to be determined by the arbitral tribunal. The arbitral
tribunal may require a party to give relevant information or to produce, or to provide
access to, any relevant documents, goods or other property for inspection of expert.
If any party request, the expert may participate in oral hearings.
On request of any party, the expert shall make available all documents, goods or other
property in his possession.
(12) Courts Assistance [Section 27]: The arbitral tribunal or any party may apply to the Court for
assistance in taking evidence. The Court may ask the parties to that instead of giving
evidence to it be directly given to arbitral tribunal.
Question 24] If there are more than one arbitrator is appointed then how decisions are
made by arbitral tribunal?
Ans.: Decision making by panel of arbitrators [Section 29]: Unless otherwise agreed by the
parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral
tribunal shall be made by a majority of all its members.
However, if authorized by the parties or all the members of the arbitral tribunal, questions of
procedure may be decided by the presiding arbitrator.
Question 25] Write a short note on: Time limit for arbitral award
Ans.: Time limit for arbitral award [Section 29A]:

(1) The award shall be made within a period of 12 months from the date the arbitral tribunal
enters upon the reference.
Explanation: For this purpose, an arbitral tribunal shall be deemed to have entered upon
the reference on the date on which the arbitrator or all the arbitrators, as the case may be,
have received notice, in writing, of their appointment.

(2) If the award is made within a period of 6 months from the date the arbitral tribunal enters
upon the reference, the arbitral tribunal shall be entitled to receive such amount of
additional fees as the parties may agree.
(3) The parties may, by consent, extend the period specified in clause (1) for making award for
a further period not exceeding 6 months.
(4) If the award is not made within the period specified or the extended period, the mandate of
the arbitrators shall terminate unless the Court has, either prior to or after the expiry of the
period so specified, extended the period. However, while extending the period, if the Court
finds that the proceedings have been delayed for the reasons attributable to the arbitral
tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding 5% for each
month of such delay.
(5) The extension of period referred to in clause (4) may be on the application of any of the
parties and may be granted only for sufficient cause and on such terms and conditions as
may be imposed by the Court.
(6) While extending the period, it shall be open to the Court to substitute one or all of the
arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall
continue from the stage already reached and on the basis of the evidence and material
already on record, and the arbitrators appointed under this section shall be deemed to have
received the said evidence and material.
(7) In the event of arbitrators being appointed under this section, the arbitral tribunal thus
reconstituted shall be deemed to be in continuation of the previously appointed arbitral
tribunal.
(8) It shall be open to the Court to impose actual or exemplary costs upon any of the parties
under this section.
(9) An application filed clause (5) shall be disposed of by the Court as expeditiously as possible
and endeavour shall be made to dispose of the matter within a period of 60 days from the
date of service of notice on the opposite party.
Question 26] Briefly discuss the provisions relating to resolution of dispute by “Fast
Track Procedure” under the Arbitration and Conciliation Act, 1996?
Ans.: Fast track procedure [Section 29B]:

(1) The parties to an arbitration agreement, may, at any stage either before or at the time of
appointment of the arbitral tribunal, agree in writing to have their dispute resolved by
fast track procedure.
(2) The parties to the arbitration agreement, while agreeing for resolution of dispute by fast
track procedure, may agree that the arbitral tribunal shall consist of a sole arbitrator
who shall be chosen by the parties.
(3) The arbitral tribunal shall follow the following procedure while conducting arbitration
proceedings by fast track procedure:
(a) The arbitral tribunal shall decide the dispute on the basis of written pleadings,
documents and submissions filed by the parties without any oral hearing.
(b) The arbitral tribunal shall have power to call for any further information or clarification
from the parties in addition to the pleadings and documents filed by them.
(c) An oral hearing may be held only, if, all the parties make a request or if the arbitral
tribunal considers it necessary to have oral hearing for clarifying certain issues.
(d) The arbitral tribunal may dispense with any technical formalities, if an oral hearing is
held, and adopt such procedure as deemed appropriate for expeditious disposal of the
case.
(4) The award under fast track procedure shall be made within a period of 6 months from
the date the arbitral tribunal enters upon the reference.
(5) If the award is not made within the period specified, the provisions of Section 29A(3) to
(9) shall apply to the proceedings.
(6) The fees payable to the arbitrator and the manner of payment of the fees shall be such
as may be agreed between the arbitrator and the parties.

Question 27] Can arbitral tribunal encourage the parties for settlement of dispute
through use of mediation, conciliation or other procedures?
Ans.: Settlement [Section 30]: An arbitral tribunal can encourage the parties for settlement of
the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation,
conciliation or other procedures at any time during the arbitral proceedings to encourage
settlement.
If during arbitral proceedings the parties settle the dispute the arbitral tribunal shall terminate
the proceedings and record the settlement in the form of an arbitral award on agreed terms.
An arbitral award on agreed terms shall be made in accordance with Section 31 and shall state
that it is an arbitral award.
An arbitral award on agreed terms shall have the same status and effect as any other arbitral
award on the substance of the dispute.
Question 28] What are essentials of arbitral award? CS (Executive) – Dec 2008 (4 Marks)
Ans.: Form and contents of arbitral award [Section 31]:

(1) Writing: An arbitral award shall be made in writing.
(2) Singing: An arbitral award shall be signed by the members of the arbitral tribunal. In
arbitral proceedings with more than one arbitrator, the signatures of the majority
members shall be sufficient so long as the reason for any omitted signature is stated.
(3) Reasons: The arbitral award shall state the reasons upon which it is based, unless-
(a) The parties have agreed that no reasons are to be given, or
(b) The award is an arbitral award on agreed terms u/s 30.
(4) Date & place of award: The arbitral award shall state its date and the place of arbitration
and the award shall be deemed to have been made at that place.
(5) Delivery of copy: After the arbitral award is made, a signed copy shall be delivered to each
party.
(6) Interim arbitral award: At any time during the arbitral proceedings, arbitral tribunal may
make an interim arbitral award on any matter with respect to which it may make a final
arbitral award.
(7) Interest: If an arbitral award is for the payment of money, the arbitral tribunal may include
interest in its award at such rate as it deems reasonable. Sum directed to be paid by an
arbitral award shall, unless the award otherwise directs, carry interest at the rate of 2%
higher than the current rate of interest prevalent on the date of award, from the date of
award to the date of payment.
Explanation: The expression “current rate of interest” shall have the same meaning as
assigned to it u/s 2(b) of the Interest Act, 1978.
(8) Interest: If an arbitral award is for the payment of money, the arbitral tribunal may include
interest in its award at such rate as it deems reasonable. A sum directed to be paid by an
arbitral award may carry interest up to 18% p.a. from the date of the award to the date of
payment.
(9) Costs of arbitration: Unless otherwise agreed by the parties the costs of an arbitration shall
be fixed by the arbitral tribunal.
Question 29] What are the provisions under the Arbitration and Conciliation Act, 1996
relating to “payment of cost, legal fees and expenses”?
Ans.: Regime for costs [Section 31A]:

(1) In relation to any arbitration proceeding, the Court or arbitral tribunal, shall have the
discretion to determine —
(a) Whether costs are payable by one party to another;
(b) The amount of such costs; and
(c) When such costs are to be paid.
Explanation: For this purpose, “costs” means reasonable costs relating to —

(i) the fees and expenses of the arbitrators, Courts and witnesses;
(ii) legal fees and expenses;
(iii)any administration fees of the institution supervising the arbitration; and
(iv) any other expenses incurred in connection with the arbitral or Court proceedings and
the arbitral award.
(2) If the Court or arbitral tribunal decides to make an order as to payment of costs —
(a) The general rule is that the unsuccessful party shall be ordered to pay the costs of the
successful party; or
(b) The Court or arbitral tribunal may make a different order for reasons to be recorded in
writing.
(3) In determining the costs, the Court or arbitral tribunal shall have regard to all the
circumstances, including —
(a) the conduct of all the parties;
(b) whether a party has succeeded partly in the case;
(c) whether the party had made a frivolous counter claim leading to delay in the disposal of
the arbitral proceedings; and
(d) whether any reasonable offer to settle the dispute is made by a party and refused by the
other party.
(4) The Court or arbitral tribunal may make any order under this section including the order
that a party shall pay —
(a) a proportion of another party’s costs;
(b) a stated amount in respect of another party’s costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date.
(5) An agreement which has the effect that a party is to pay the whole or part of the costs of the
arbitration in any event shall be only valid if such agreement is made after the dispute in
question has arisen.
Question 30] Under what circumstances do arbitral proceedings terminate?
Ans.: Termination of proceedings [Section 32]: Arbitration proceedings terminated in following

cases:
(1) When arbitral gives final award.
(2) By an order of the arbitral tribunal. The arbitral tribunal may issue an order for the
termination of the arbitral proceedings where
- Claimant withdraws his claim.
- The parties agrees that the continuation of the proceeding has become unnecessary or
impossible.
The mandate of the arbitral tribunal shall terminate with the termination of the arbitral
proceedings.
Correction & Interpretation of Award
Question 31] Discuss the provision relating to correction and interpretation of an award
under the Arbitration and conciliation Act, 1996.
Making of additional award by arbitral tribunal. Comment.
Ans.: Correction and interpretation of award & additional award [Section 33]: After issuing the
arbitral award, if any party feels that there is mistake in award or they require the
interpretation on any matter, they may within 30 days from the receipt of arbitral ward:

- Apply to arbitral tribunal to correct any computation error, any clerical or typographical error
or any other errors of similar nature by giving to notice to other party.
- Apply to arbitral tribunal to give interpretation of specific point or part of the award.
If the arbitral tribunal think fit it shall correct the award or give the interpretation within 30
days from the receipt of request.
The arbitral tribunal may correct any above type of error within 30 days from the date of the
arbitral award.
Additional Award: A party may also request the arbitral tribunal to make an additional award
regarding the any claim presented in the proceeding but same is omitted from the arbitral
award.
If the arbitral tribunal considers the above request and if it thinks fit, it may give additional
award within 60 days from the receipt of request.
Setting aside an Award
Question 32] Write a short note on: Setting aside an arbitral award
What are the grounds for setting aside an arbitral award under the Arbitration and
Conciliation Act, 1996? CS (Inter) – Dec 2002 (8 Marks), Dec 2005 (4 Marks)
Ans.: Application for setting aside arbitral award [Section 34]: When the party making the
application furnishes proof to the Court regarding following circumstances, Court may set aside
the award:
(1) A party was under some incapacity.
(2) Arbitration agreement is not valid under the law to which the parties have subjected it.
(invalidity of Arbitration agreement)
(3) Party making the application was not given proper notice of the application of an arbitrator
or of the arbitral proceedings.
(4) Award is not in accordance with the term of submission.
(5) Arbitral tribunal was not properly constituted or the arbitral procedure was not in
accordance with the agreement of the parties.
(6) Subject matter of the dispute is not capable of settlement by arbitration under the law for
the time being in force.
(7) Arbitral award is in conflict with the public policy of India.
An application for setting aside award should be made within 3 months from the date of receipt
of arbitral award.
The period of 3 months could be extended to a maximum of 30 days by the Court if it is satisfied
that the applicant was prevented by sufficient cause from making the application within the
above period.
An arbitral award arising out of arbitrations other than international commercial arbitrations,
may also be set aside by the Court, if the Court finds that the award is vitiated by patent
illegality appearing on the face of the award. However, an award shall not be set aside merely
on the ground of an erroneous application of the law or by re-appreciation of evidence.
Question 33] Arbitrator refuses to adjourn the hearing in an arbitration matter before
him to the respondent on the ground that he has to decide the dispute within four
months. What will be the effect of such refusal? CS (Inter) – Dec 1991 (5 Marks)
Ans.: Arbitrator cannot refuse to adjourn the hearing on the ground that he has to decide the
dispute within four months. This against the principal of natural justice. An aggrieved party
can apply to set aside an arbitral award as Section 34.
Question 34] Madhav moves an application for setting aside the arbitral award on the
ground that he was not given a proper notice of the arbitral proceedings and thereby not

being able to present his case. He furnishes sufficient proof and pleads before the court
that he received the arbitral award just 15 days back. Decide with reasons:
(i) Whether Madhav will succeed in his prayer and
(ii) Whether the law of limitation will not be a bar in his case.
Ans.: Section 34 of the Arbitration and Conciliation Act, 1996 provides various grounds on
which an arbitral award may be set aside. If party making the application was not given proper
notice of the application of an arbitrator or of the arbitral proceedings then it is valid ground for
setting arbitral award and hence Madhav will succeed.
An application for setting aside award should be made within 3 months from the date of receipt
of arbitral award by the party making application. Madhav has made application within time.
Hence, the law of limitation will not be a bar in his case.
Question 35] Write a note on: Finality of arbitral award CS (Inter) – Dec 2007 (4 Marks)
Ans.: Section 35 of the Arbitration and Conciliation Act, 1996corresponds to the Article 35(1) of
UNCITRAL (Model Law). It provides that subject to the provisions of Part-I of the Act the award
shall be final and binding on the parties and persons claiming under it.
In other words an arbitral award is final and binding on the parties and the persons claiming
under the same, subject to time limit prescribed under Sections 33 and 34 of the Act.
Question 36] A obtains an award against B in respect of an arbitration agreement

entered into by A and B. B takes the plea that the award is not binding upon him
because a condition to this effect was not incorporated in the arbitration agreement.
Will B succeed? CS (Inter) – June 1992 (8 Marks)
Ans.: As per Section 35 of the Arbitration and Conciliation Act, 1996the award shall be final and
binding on the parties and persons claiming under it. Hence, the plea of B that there is no
specific stipulation in the arbitration agreement, that the award will be binding upon the
parties (including B) is not tenable.
However, B can apply to set aside the award on the basis of various grounds mentioned in
Section 34.
Miscellaneous
Question 37] Can arbitral tribunal exercise lien on unpaid costs of the arbitration?
Ans.: Lien on arbitral award and deposits as to costs [Section 39]: The arbitral tribunal shall have
a lien on the arbitral award for any unpaid costs of the arbitration.
An arbitral tribunal can refuse to deliver its award if parties fail to pay the fees and charges. In
such case parties can apply to Court. The Court will ask the parties to deposit sum demanded
by arbitral tribunal in Court. After inquiry Court may order to pay reasonable sum to the
arbitral tribunal by way of costs and that the balance of the money, if any, shall be refunded to
the applicant.
Question 38] After the completion of arbitration proceedings, the arbitrator gave a
notice to the parties of the making and signing of award and of the amount of fees and
charges in respect of the arbitration and award. The parties failed to pay the fees and
charges and hence, the arbitrator refused to deliver award. A party, aggrieved by the
conduct of the arbitrator, submitted an application to the Court to direct the arbitrator
to deliver the award in the court. How the matter will be solved?

Ans.: As per Section 39 of the Arbitration and Conciliation Act, 1996, the arbitral tribunal shall
have a lien on the arbitral award for any unpaid costs of the arbitration. Cost of arbitration
means reasonable cost relating fees and expenses of arbitrators and witnesses.
If parties refuse to pay the costs, the Arbitral Tribunal may refuse to deliverer its award. In
such a case, any party can approach court. The court will ask to deposit from the parties and
on such deposit, the court will decide the cost of arbitration & fees payable to arbitrator and
balance remaining in amount deposited will be refunded to the parties.
Conciliation
Question 39] Explain briefly the terms 'conciliation' and 'mediation'.

Ans.: Conciliation is the amicable settlement of dispute between the parties, with the help of a
conciliator. In conciliation, there is ‘win-win’ situation, as both parties agree to discuss among
themselves and arrive at a mutually agreed compromise.
Mediation is a structured process in which the mediator assists the disputants to reach a
negotiated settlement of their differences. Mediation is usually a voluntary process that results
in a signed agreement which defines the future behaviour of the parties. The mediator uses a
variety of skills and techniques to help the parties reach the settlement, but is not empowered
to render a decision.
These processes can be successful only if the personality of the conciliator/mediator is such
that he is able to induce the parties to come to a settlement. The Act gives a formal recognition
to conciliation in India. Conciliation forces earlier and greater hold of the case. It can succeed
only if the parties are willing to re-adjust. According to current thinking conciliation is not an
alternative to arbitration or litigation, but rather complements arbitration or litigation.
Question 40] What do you understand by conciliation? When do conciliation proceedings

begin? Can all disputes be submitted to conciliation?
Conciliation is informal process in which the conciliator, the third party, tries to bring
the disputants to agreement. Comment. CS (Executive) – June 2007 (4 Marks)
Ans.: If the dispute between parties is settled by means of mediation or in a friendly manner
and through use of goodwill, then it is known as conciliation. It should be noted that a
settlement agreement reached by the parties as a result of conciliation proceedings shall have
the same status and effect as an arbitral award.
The conciliation procedure can be applied to the dispute which arises out of legal relationship,
whether contractual or not.
Conciliation procedure cannot be applied [Section 61]:
 Where any law for the time being in force provides the method and manner in which
conciliation proceeding should be dealt. e.g. Industrial Dispute Act, 1947.
 By virtue of any law for the time being in force certain dispute may not be submitted to
conciliation e.g. crime.
Commencement of conciliation proceedings [Section 62]:
(1) The party initiating conciliation shall send to the other party a written invitation to
conciliate under this Part, briefly identifying the subject of the dispute.
(2) Conciliation proceedings shall commence when the other party accepts in writing the
invitation to conciliate.
(3) If the other party rejects the invitation there will be no conciliation proceedings.
(4) If the party initiating conciliation does not receive a reply within 30 days from the date on
which he sends the invitation, or within such other period of time as specified in the
invitation he may elect to treat this as a rejection of the invitation to conciliate and if he so
elects, he shall inform in writing the other party accordingly.

Question 41] Who is a conciliator? What can be the number of conciliators? Who
appoints them?
What do you understand by conciliation? How are the conciliators appointed? Discuss
their role in arriving at a settlement agreement. CS (Inter) – Dec 2003 (8 Marks)
Ans.: Number of conciliators [Section 63]: There shall be 1 conciliator unless the parties agree
that there shall be 2 or 3 conciliators.
Appointment of Conciliator [Section 64]: In conciliation proceedings with one conciliator, the
parties may agree on name of sole conciliator. In conciliation with two conciliators, each party
may appoint one conciliator. In conciliation proceeding with 3 conciliators, each party may
appoint one conciliator and the parties may agree on the name of the third conciliator who shall
all as presiding conciliator.
The parties can also take the help of suitable institution or person in connection with the
appointment of conciliators.
A party may request such an institution or person to recommend the names of suitable
individuals to out as conciliators or
The parties may agree that the appointment of one or more conciliators be made directly by
such an institution or person.
Settlement Agreement [Section 73]:
 When it appears to the conciliator that there exit elements of settlement which may be
acceptable to the parties, he shall formulate the term of possible settlement and submit
them to the parties for their observation.
 If the parties reach agreement on a settlement of the dispute, they may draw up and sign a
written settlement agreement.
 When the parties sign the settlement, it shall be final and binding on the parties.
 The conciliator shall authenticate the settlement agreement and furnish a copy thereof to
each of the parties.
As per Section 74, the settlement agreement shall have the same status effect as if it is an
arbitral award.
Question 42] State the Functions/Role of conciliator
Ans.: Role of Conciliator [Section 67]:

(1) The conciliator shall assist the parties in an independent and impartial manner to reach
an amicable settlement of their dispute.
(2) The conciliator shall be guided by principles of objectivity, fairness and justice. He shall
take into consideration the right and obligation of the parties the usage of the trade
concerned and the circumstances surrounding the dispute.
(3) The conciliator may conduct the conciliation proceeding in such manner as he considers
appropriate but after taking into consideration the request of the parties, if any.
(4) The conciliator may, at any stage of the conciliation make proposals for a settlement of the
dispute. Such proposal need not be in writing.
Functions of Conciliator:
Administrative Assistant [Section 68]: The conciliator may arrange administrative assistance by
a suitable institution or person.
Communication between conciliator and parties [Section 69]:
 The conciliator may invite the parties to him.
 He may communicate with them orally or in writing.
 He can meet the parties together or separately.
 If parties are not already agreed regarding the place of meeting, conciliator can determine
such place after consultation with the parties.
To disclosure of information: When conciliator receives any information from a party he shall
disclose that information to other party, so that such party may have opportunity to present
any explanation which he considers.

Question 43] When do conciliation proceedings terminate?
Ans.: Termination of conciliation proceedings [Section 76]: The conciliation proceeding shall be
terminated:
 By the signing of the settlement agreement by the parties on the date of the agreement.
 By the written declaration of the conciliator, when he thinks that further effort at
conciliation are no longer justified; on the date of declaration.
 By a written declaration of the parties addressed to the conciliator; on the date of
declaration.
 By a written declaration of a party to the other party and conciliator; on the date of
declaration.
Question 44] Distinguish between: Arbitration & Conciliation

Ans.: Following are the main points of difference between arbitration & conciliation:
Points Arbitration Conciliation
Meaning Arbitration is an agreement by the parties If the dispute between parties is settled by
to submit to arbitration all or certain means of mediation or in a friendly
dispute which have arisen or which may manner and through use of goodwill, then
arise between them in respect of defined it is known as conciliation.
legal relationship whether contractual or
not.
Decision In arbitration, the decision is known as While under conciliation, it is known as
arbitral award and is signed by the arbitral settlement and is signed by the parties
tribunal members. concerned.
Number In arbitration, parties cannot appoint even In conciliation, the number of conciliators
number of arbitrators. can be even.
Appointment Arbitrators can be appointed even before A conciliator is appointed only after the
the dispute arises. dispute has arisen.
Evidence & An arbitrator has right to seek evidence or A conciliator does not have such rights.
examination call witnesses.
of witnesses
* * * * * * * * * * *

INDIAN STAMP ACT, 1899
Immovable property Sale
Transfer of Property Act Agreement
State Govt Indian Stamp Act Stamp duty
Indian Registration Act, 1908 Register in the name of

Purchaser
1) Sec 3 – Instruments chargeable with stamp duty -Exceptions
2) Sec 4 – Several instruments in single transactions
3) Sec 5 – Instruments relating to several transactions, distinct in nature
4) Sec 6 – Instruments coming under several descriptions
5) Mode of payment of stamp duty –
a) Sec 11 – Adhesive stamps
b) Sec 12 – Cancellation of adhesive stamps
c) Sec 13 – Impressed stamps
6) Time of stamping – Sec 17, 18, 19
7) Valuation for stamp duty –
a) Adjudication as to stamp duty payable
b) On foreign securities transferred in India
c) Calculation in case of annuity payments
d) When value of subject matter is indeterminable
8) Sec 27 – Undervaluation of stamp duty
9) Sec 28 – Documents to be executed in parts
10) Who should pay the stamp duty?
11) Power to reduce the stamp duty
12) Consequences if stamp duty is not properly paid
13) Non-payment or short payment of stamp duty is allowed in some cases
14) Important miscellaneous provisions and cases
The law relating to stamps is a fiscal legislation (financial law) in which stamp duty is levied
on certain instruments.There are 8 chapters and schedule 1 which contains the rates of
stamp duties on various instruments.
1) Power to levy stamp duty –
Union list State list
On instruments that are commercial On other instruments

in nature (i.e. Transfers, Lease deed s,
etc.)
E.g. Bills of exchange, Cheques, Promissory

Notes, Bills of lading, Letters of credit,
Insurance policies, Share transfers, Proxies &
Receipts
2) Instruments chargeable with stamp duty –

(1) Instruments mentioned in the 1st schedule
(2) Bills of exchange (otherwise than payable on demand) & promissory notes
(3) Instruments executed outside India but relating to property in India
Note – However, stamp duty is not chargeable whenever any instrument is –
a) Exceuted by and in favour of government
b) Relates to sale or dispossession of a ship/ vessel is made.
3) Schedule 1 –
It includes the following transfers –
(1) Composition/ settlement deed
(2) Exchange of property
(3) Gifts
(4) Leases
(5) Mortgage
(6) Declaration of trust, etc.
4) Conveyance –
(1) The term conveyance includes a conveyance on sale and every instrument by which property
is transferred inter vivos (between 2 living persons).
(2) It does not include will and exclude which are not otherwise specially provided for by the
schedule.
(3) Schedule I includes following transfers –
Composition deed, Exchange of property, Gift, Lease, Mortgage, Re-conveyance, Release,
Settlement, Transfer, Transfer of lease, Declaration of trust.
5) Instrument –
Every document, by which any right or liability is created, transferred, limited, extended,
extinguished or recorded.
Includes Does not include
Conveyance, leases, mortgages, P/N & wills Ordinary letters, memoranda or

accounts
Notes –
1. An unsigned draft document – not an instrument.
2. Entry in register of hiring of machinery – is an instrument if it is authenticated by thumb
impression of hirer.
3. A letter which acknowledges receipt of certain sum – is an instrument.
6) Impressed stamp –
Impressed stamp = Labels/ special adhesive stamps affixed and impressed by collector/ proper
officer (+) Stamp is embossed / engraved on stamp paper.
Note –
If instrument is duly stamped and later the stamp is removed or lost, it is valid instrument (i.e.
can be admitted in advance) if the duly stamped instrument is there at the time of execution.
7) Sec 4 – Several instruments in single transaction

If for effecting a single transaction, many instruments are executed then – the stamp duty will be
paid only on the principle instrument and the remaining instruments will be chargeable with duty
of Rs. 1.
Principle instrument = instrument on which highest stamp duty is payable.

Example –
Executed
A Immovable property B
On same deed, A’s cousin who had share in the immovable property, endorsed his consent to sale.
It was held that conveyance was the principle instrument and consent of A’s cousin to A was the
second instrument chargeable with duty of Rs. 1.
Exceptions –
(1) Lease instrument which is registered but later the terms of the lease are altered then stamp
duty is again paid on the altered lease instrument.
(2) Purchaser of land executes a mortgage of land in favour of the vendor for a portion of the
purchased money.
Mortgage is liable to full duty as a separate instrument.
Example –
Purchaser Seller
Land
A B
Mortgage
C
Sec 16 - Denoting duty (Sec 4)

Denoting of an instrument will help the instrument exempted or on which Rs. 1 stamp duty is
paid to be produced in evidence in the court of law without the need of producing the principle
instrument.
When stamp duty is paid on a particular document or exemption of such documents fully depends
upon some other document instrument.
Then both instruments are produced before collector.
He can denote and certify that proper stamp duty is paid or no duty is required to be paid.
Conclusion – Thus, to get a relief from carrying the principle instrument every time, an application
can be made to the collector to issue a certificate for the payment of stamp duty on other
instrument and for this purpose, a stamp duty is required to be paid to the collector known as
‘Denoting duty’.
8) Sec 5 – Instruments relating to several distinct matters
When in a single instrument, many transactions are mentioned, the instrument will be charged
with separate duty for each transaction and sum of all the duties for each transaction will be paid
as stamp duty.
Example –
Seller House Rs. 5 lacs Buyer
A B
House Rs. 15 lacs

A sells house to B for Rs. 5 lacs and in the same instrument, B sells his house to A for Rs. 15 lacs,
the duty on instruments will be on total Rs. 20 lacs. Separate duty is to be paid on each
transaction.
9) Sec 6 – Instruments coming under several descriptions

If a single instrument falls within 2 different descriptions in schedule I, then such instruments
will be chargeable with highest duty given in the schedule I.
E.g. A document falls within both bond and promissory note – It was decided by the court that
highest duty payable on promissory note or bond shall be paid.
10) Mode of payment of stamp duty –
Adhesive stamps Impressed stamps
Use - May be stamped Cancellation of 1. Every written

adhesive stamps instrument
Instruments chargeable 1) By writing on or crossing 2.Stamp shall be
with duty ≤ 10 paise the stamp (i.e. Name/ initials) on the face of
Except – 2) Drawing a single line across instrument

1. Bills of Exchange (on demand) the stamp 3.Nothing should
2. B/E, Promissory notes drawn or 3) Drawing diagonal lines be written over
made out of India across the stamp the impressed
3. Instruments relating to entry stamps
as an advocate
4. Notarial acts
5. Transfer of shares
Notes –
1. Use of adhesive stamp is optional because the same instruments can be transferred by writing
on impressed stamps.
2. Any instrument bearing an adhesive stamp but not cancelled, shall be deemed to be unstamped.
3. Impressed stamps are used for following transactions –
(1) Agreement related to immovable property like sale, lease, mortgage, special power of attorney,
registration of immovable property
(2) Will
(3) Joint venture agreement
(4) Partnership agreement
(5) Affidavit, etc.
11) Timing of stamping –
Instruments executed Instruments executed B/E, Promissory notes

in India outside India made outside India
(Sec 17) (Sec 18) (Sec
19)
Before the execution Within 3 months after By the 1 st holder in India

date OR it is received in India
At the time of execution Before he presents it for
payment or endorse it in
India
12) Valuation for stamp duty –
Stamp duty is payable on “ad valorem basis”.
I.e. on the basis of value of property decided “on prescribed basis”.
13) Adjudication of stamp duty payable –

To determine the duty payable
Normal instruments Complex instruments
Person paying the duty may decide (1) Apply to collector for his
SD payable & pay accordingly opinion
(2) Attach the document &
pay fees on application
(3) Collector shall
thereafter
decide the SD payable &
pass the judgement
14) Valuation of stamp duty –
1. In the case of foreign instrument drawn in foreign currency –
Value of foreign currency is converted into Indian value at the rate of exchange “on the date of
instruments”.
E.g. X has 15 shares of Microsoft and the rate per share is $ 100. Now X transfers the shares to Y
when currency exchange rate is Rs. 60 per dollar.
Stamp duty will be paid in Indian rupees on (15× 100 × 60) = 90,000
2. In respect of tradable securities –
Average price on the date of instruments
If listed If not listed If “no private transaction”
Stock market price Avg of latest Value should be taken

private transactions at par
3. If property is transferred in satisfaction of debt due, then the debt amount will be considered in
valuation purpose.
E.g. A owes Rs. 1,000 to B. Now A sales his property for Rs. 600 and satisfaction of debt Rs. 1,000.
Value of stamp duty = 1,000 + 600 = 1,600.
4. In case of transfer of property where agreement provides for payment of annuity or periodic
payment and not lump sum payment
If period of annuity is If period of annuity If payment of annuity

definite is indefinite is subject to living or
death of a person
The total amount Total amount payable Total amount payable

payable during the within 20 yrs within 12 yrs
period
Shall be considered for valuation

5. If value can’t be determined
Stamp duty shall be fixed on estimated valuation.
6. If full disclosures of value is not made while paying the stamp duty
It is contravention of the provisions of the Act and the collector can prosecute the person if non-
disclosure is intentional.
However, the instrument is admissible in evidence and is not liable to be impounded.
7. Stamp duty when conveyances executed in parts
When the property has been When two or more documents

sold for one consideration by are executed for one property
document executed in separate
parts
The total consideration shall be Consideration can be apportioned

apportioned in different documents as parties may think fit
as parties think fit
Notes –
(1) If a person purchases a property and immediately sells it to some other person
Then such sale price is to be taken into account by him for payment of stamp duty on his
purchases.
Example –
Rs. 50 lacs
Seller But for SD Rs. 75 lacs Purchaser/ seller 2
A Land & building B
A B Rs. 75 lacs
Stamp duty Rs.5
Purchaser 2
(2) If the 1st transaction of conveyance based on which stamp dutyC is paid is based on value of 2 nd
transaction, then the 2nd transaction of conveyance deed is liableCto pay Rs. 5 stamp duty.
(3) If the conveyance is executed directly by owner to sub-purchaser
C
Stamp duty is payable on the consideration paid by such purchaser
AND
The original purchaser shall be charged with the duty of maximum Rs. 5 for the consideration
received by him.
Example –
50 lacs B 75 lacs C
A L&B L&B
A 75 lacs
On consideration received by B, stamp duty is paid Rs. 5

15) Power to reduce stamp duty –
In respect of stamp duty on commercial instruments (i.e. bills of exchange, cheques, promissory
notes, shares transfer, insurance policies, proxies)
AND
In case of stamp duty on other documents: The CG/ SG has a power to reduce or remit (i.e. forgive)
whole or part of the duty payable in respect of a particular class of persons or in respect of whole
or part of territories.
16) What is ‘Bill of Lading’?

(1) Bill of lading is a receipt by the master of ship for the goods delivered to him for delivery to
another person or his assignee.
(2) Three copies are made, each signed by the master of the ship –
1 copy is kept by consignor of goods
1 copy is kept by master of a ship
And remaining 1 copy is forwarded to another person (consignee).
(3) Thus, bill of lading is a written evidence of a contract for the carriage and delivery of goods by
sea for certain freight.
17) Allowances/ refund for stamps –
Instrument B/E or P/N (signed but not

accepted or endorsed)
Within 6 months
Not executed Executed
Within 6 months apply (1) Void

for refund (2) Unfit (shouldn’t be executed)
(3) Not signed
(4) Purpose fails
(5) Deficit in value
(6) Inadvertently spoiled (shouldn’t be
executed)
Within 2 months apply for refund
18) Executed/ Execution –
Signed Signature
An instrument which is chargeable with stamp duty only on being ‘executed’ is not liable to stamp
duty until it is signed.
19) Duly stamped –

Instrument having proper amount of stamp and such stamp has been offered in accordance with
the law.
If instrument is not duly stamped (Sec 33) –
(1) It is a loss of revenue to the government.
(2) Hence it can be impounded by the arbitrator/ court/ public officer.
Notes –
1) However, once a document is admitted in evidence (whether rightly or wrongly), it is not
permissible to the court to question the instrument but the State Govt can make provisions for
payment of differential duty with penalty and once paid, the document will be deemed to be duly
stamped.
2) Any document/ instrument impounded by the court U/S 33 will be charged by penalty and
after recovering it, the court shall forward the instrument and the amount of penalty recovered to
the collector.
Consequences of an instrument not properly stamped –
Such instruments – However such instruments not duly
stamped –
(1) Can not be accepted as evidence in
civil courts or by arbitrators. (1) Can be accepted in criminal courts as
evidence.
(2) Parties to the instrument need not act
upon it. (2) Shall be admissible if executed by
government.
(3) Can not be registered under
Registration Act, 1908. (3) Can be admissible if collector has
given a certificate that document is duly
(4) It can not be authenticated as duly/ stamped.
properly stamped by the public officer.
Notes –
1) In instrument not duly stamped is inadmissible as evidence but it does not become void. It
becomes valid if proper duty and penalty is paid.
2) If a person, on his own presents an instrument not properly stamped by accident or mistake or
urgent necessity within a period of 1 year before the collector, the collector may receive the
differential duty and validate it.
However, after one year such instruments will be impounded and penalty along with duty will
be recovered.
20) Person liable to pay duty –
Instrument/ deed/ document Person liable to pay stamp duty
1. Instrument listed in sec 29(a) A person drawing, making or executing

such instrument
2. Policy of fire insurance Insurance company
3. Policy other than fire insurance Person taking policy
4. Conveyance or re-conveyance Grantee (purchaser/ beneficiary)
5. Lease Lessee
6. Counter part of lease Lessor
7. Instrument of exchange Parties in equal shares
8. Certificate of sale Purchaser
9. Instrument of partition Parties in their proportion (unless

otherwise agreed)
Q No. 1. Define the term ‘bill of lading’ under the Indian Stamp Act, 1899.
Q No. 2. Define the term ‘Instrument’ as per Indian Stamp Act, 1899.
Q No. 3. Are the following 'instruments' under the Indian Stamp Act, 1899:
(i) A letter which acknowledges receipt of a certain sum as having been borrowed at a particular
rate of interest and for a particular period of time and that it will be repaid with interest on
the due date?
An unsigned draft document?
Q No. 4. What do you mean by ‘promissory note’? State the requisites of a promissory note with
the help of some illustrations.
Q No. 5. Describe the instruments chargeable with duty under the Indian Stamp Act, 1899 and
the exceptions thereto?
Q No. 6. List any ten instruments which are chargeable with duty under the Indian Stamp Act,
1899.
Q No. 7. Abhay’s agricultural land was purchased by the government for the purpose of
construction of a factory but no duty was paid for this transfer by the government. Abhay
wanted to take back his land on the ground that government has not paid the duty and,
therefore, no sale deed was executed. Will Abhay succeed? Give reasons.
Q No. 8. How duty is payable in case of several documents?
Explain the term ‘distinct matters’ relating to instruments liable for payment of duty under the
Indian Stamp Act, 1899.
Q No. 9. Ronie executed a document in favour of his friend Wellwisher on a stamp paper of `100
conveying him certain immovable property absolutely for a consideration of `10,000. On the
same deed of sale, the nephew of the executant, belonging to the undivided family, endorsed his
consent to the sale. No separate stamp was affixed to such consent. Is this valid?
Q No. 10. Subsequent to the sale of a house, the seller executed a declaration that the sale was
subject to an equitable mortgage created by him. What is the stamp duty payable on the
instrument of declaration?
Q No. 11. Ram executed a gift deed of certain immovable properties in favour of his brother
Shyam. By another deed, Shyam made provision for the living expenses of Ram and created a
charge in his favour on some properties included in the above mentioned gift deed in order to
secure the payment of these living expenses. The government authority insists that deed
executed by Shyam is liable to full duty. Decide with reasons.
Q No. 12. Arjun executed a power of attorney both in his personal capacity and in his capacity
as an executor, trustee, manager and liquidator in favour of Bheem. Decide the liability of duty
payable on the instrument.
Q No. 13. Are securities dealt in depository liable to stamp duty under the provisions of Indian
Stamp Act, 1899?
Q No. 14. Explain the methods of stamping under the Indian Stamp Act, 1899.
Q No. 15. On which type of instruments adhesive stamp can be used
Bills of exchange and promissory notes drawn or made out of India may be stamped with adhesive
stamp.
Q No. 16. What are the modes of cancellation of adhesive stamps?
Q No. 17. Any instrument bearing an adhesive stamp which has not been cancelled be deemed
to be unstamped. Discuss this statement quoting relevant case laws.
Q No. 18. Four adhesive stamps were used on an instrument. First adhesive stamp had a
single line drawn across the face of the stamp. On the second stamp, there were two parallel
lines. The third stamp had three parallel lines, and the fourth stamp had two lines crossing each
other. What are the provisions for cancellation of adhesive stamps and which adhesive stamps
referred to above will be considered to have been properly cancelled?
Q No. 19. ‘Denoting’ is a concept primarily to help the Government in collection of stamp duty
state briefly whether it is true?
Q No. 20. Write a short note on: Denoting Duty
Q No. 21. `State the provisions of Indian Stamp Act, 1899 relating to ‘timing of stamping the
instrument’.At what point of time stamping be done for instruments executed inside India.
Q No. 22. In respect of foreign instruments, other than bills and notes received in India, what is
the time limit prescribed for stamping those instruments?
Q No. 23. Whether a receipt stamped subsequent to its execution but before being produced in
the Court is admissible in the evidence?
Q No. 24. How is ad valorem duty calculated in respect of marketable security under the Indian
Stamp Act, 1899?
Q No. 25. Discuss provisions relating to valuation of instruments for levy of duty under the
Q No. 26. Discuss the provisions relating to valuation of instruments chargeable with ad
valorem duty in cases where the value of the subject matter is indeterminate under the Indian
Stamp Act, 1899.
Q No. 27. Rajesh mortgages a building of the value of `70,000 to Suresh for `50,000. Rajesh,
subsequently, sells the building to Suresh. An unpaid amount of `5,000 against interest is also
outstanding at the time of sale. Determine the value on which the stamp duty is payable in this
transfer of property.
Q No. 28. What are the provisions regarding regulating the under valuation of property in a
conveyance deed, under the Indian Stamp Act, 1899 for the purpose of stamp duty?
Q No. 29. What are the consequences, if full disclosure regarding a main of duty with
instrument is chargeable is not made?
Q No. 30. Who are the persons liable to pay the stamp duty under Indian Stamp Act, 1899?
Q No. 31. Which party is responsible for payment of duty on different kinds of instruments
under the Indian Stamp Act, 1899?
Q No. 32. Who are the persons liable to pay the stamp duty under Indian Stamp Act, 1899 in
following cases?
(i) Mortgage deed
(ii) Policy of insurance other than fire Insurance
Transfer of shares in company
Q No. 33. You are Company Secretary of Dowell Industries (India) Ltd. You are about to execute
an agreement with third party on behalf of the company. However you are not sure as to correct
stamp duty payable. State how will you go about to determine as to correct stamp duty with
which the agreement is chargeable.
Q No. 34. Enumerate the provisions of Section 32 of the Indian Stamp Act, 1899 with regard to
certification of the instrument whether chargeable or not chargeable with duty by the collector of
stamps.
Q No. 35. Discuss in brief the various provisions of Indian Stamp Act, 1899 relating to
impounding of instruments.
Discuss the evidentiary value of an instrument not duly stamped under the Indian Stamp Act,
1899.
Q No. 36. State the legal remedies available to the officer concerned for an unstamped receipt
under the Indian Stamp Act, 1899.
Q No. 37. State the law of inadmissibility in evidence of an instrument not duly stamped.
Q No. 38. Explain the Collector's power to stamp an instrument which is impounded.
Q No. 39. What are the shortcomings of an instrument not duly stamped?
Q No. 40. Discuss the evidentiary value of an instrument not duly stamped under the Indian
Stamp Act, 1899.
Q No. 41. "If once the 'instrument' has been admitted in evidence, it shall not be questioned
later on in the same suit on the ground that it does not bear the adequate stamp duty or no
stamp."
Q No. 42. Achal gives an instrument to Basu which is unstamped. This instrument is also not
registered
(i) Will the instrument be admitted in evidence?
(ii) Will the situation change if the instrument is stamped but not registered before passing to
Basu and Basu get it registered subsequently?
Q No. 43. A document, which is apparently an agreement granting a franchise, is produced in
the Court, but is not stamped.
Examine whether:
(i) the document is void
(ii) the document can be admitted on payment of penalty and
the parties are liable to be prosecuted.
Q No. 44. An instrument bears a stamp of sufficient amount, but of improper description. Can
be certified as duly stamped? How the instrument can be rectified and what would be date of
execution?
Q No. 45. Enumerate the Collectors power to refund the penalty recovered by a Court on
impounding a document not duly stamped when produced before it and to stamp an instrument
impounded under the Indian Stamp Act, 1899.
Q No. 46. Write a short note on: Instrument unduly stamped by accident or mistake.
An instrument has not been duly stamped by accident or mistake or due to urgent necessity, but
the same had to be validated u/s 41 of the Indian Stamp Act, 1899 after a lapse of 1 year from the
date of execution. Examine validity.
Q No. 47. Whether the Collector of stamps is bound to stamp the instruments when those are
brought before him after expiry of the prescribed period?
Q No. 48. When can a person paying duty or penalty recover the same under the provisions of
Indian Stamp Act, 1899
Q No. 49. Refund/Allowance where stamp paper gets spoiled and where it is executed but not
used.
Ramesh & Prem wanted to execute a document, keeping that in mind, the documents were duly
stamped. Now, that a dispute has arisen and they do not wants to go ahead with the document.
Accordingly documents remained unexecuted (i.e. unsigned). Explain the time limit for making
application for refund u/s 49 of the Indian Stamp Act, 1899. Also explain the time limit for the
application for relief and refund, if the document are executed by any of the parties.
Q No. 50. Mention the circumstances under which refund of stamp duty or penalty may be
made by the revenue authorities.
Q No. 51. What is 'e-stamping'? Also, discuss its benefits.
Indian Stamps Act, 1899 14.14
Chapter
14 Indian Stamp Act, 1899
Introduction: The Indian Stamp Act, 1899 is the law relating to stamps which consolidates and
amends the law relating to stamp duty. It is a fiscal legislation envisaging levy of stamp duty on
certain instruments. The purpose of enacting such an Act is to raise revenue for the government.
Additionally, payment of stamp duty imparts legality to the document and this can be submitted
as an authentic document in Courts. It is a tax, similar to sales tax (VAT) and income tax
collected by the Government. Stamp Duty is payable u/s 3 of the Indian Stamp Act, 1899. Rates
of Stamp Duty payable for different types of documents are as per Schedule I. Stamp Duty must
be paid in full and on time. If there is a delay in payment of stamp duty, it attracts penalty. A
stamp duty paid document gets evidentiary value and is admitted as evidence in Court.
Document not properly stamped, is not admitted as evidence by the Court.
Union List, Entry 91 gives power to the Union Legislature to levy stamp duty with regard to
certain instruments (mostly of a commercial character). They are bill of exchange, cheques,
promissory notes, bill of lading, letters of credit, policies of insurance, transfer of shares,
debentures, proxies and receipt. The power to reduce or remit duties on these instruments is
vested in the Union Government as per Section 9 of the Act.
State List, entry 63 confers on the States power to prescribe the rates of stamp duties on other
instruments. As per “Principles” for levy of duty fall in the Concurrent List, Entry 44.
The Indian Stamp Act, 1899 extends to the whole of India except the State of Jammu and
Kashmir. It came into force on the 1.7.1899.
Definitions
Question 1] Define the term ‘Bill of Exchange’ under the Indian Stamp Act, 1899. Does it
include Hundi?
Ans.: Bill of Exchange [Section 2(2)]: “Bill of exchange” means a bill of exchange as defined in the
Negotiable Instruments Act, 1881 and includes also a Hundi and any other document entitling
or purporting to entitle any person, whether named therein or not, to payment by any other
person of, or to draw upon any other person for, any sum of money.
The Negotiable Instruments Act, 1881 defines a “bill of exchange” as an instrument in writing,
containing an unconditional order signed by the maker, directing a certain person to pay a certain
sum of money only to, or to the order of, a certain person or to the bearer of the instrument.
Question 2] Define the term ‘Bill of exchange payable on demand’ under the Indian
Stamp Act, 1899. Does it include a letter of credit?
Ans.: Bill of exchange payable on demand [Section 2(3)]: A “bill of exchange on demand” includes:
(a) An order for the payment of any sum of money by a bill of exchange or promissory note or
for the delivery of any bill of exchange or promissory note in satisfaction of any sum of
money, or in the payment of any sum of money out of any particular fund which may or
may not be available, or upon any condition or contingency which may or may not be
performed or happen.
(b) An order for the payment of any sum of money weekly, monthly or at any other said period.

(c) A letter of credit, that is to say, any instrument by which one person authorizes any other
person to give credit to the person in whose favour it is drawn.
It may be noted that a bill of exchange payable on demand includes even a letter of credit, as
per above definition.
Thus, the definition in the Stamp Act includes many instruments which could not be classed as
‘bills of exchange’ within the definition given by the Negotiable Instruments Act, 1881.
Question 3] Define the term ‘bill of lading’ under the Indian Stamp Act, 1899.
Ans.: Bill of Lading [Section 2(4)]: Bill of Lading includes a “through bill lading” but does not
include a mate’s receipt.
A bill of lading is a receipt by the master of a ship for goods delivered to him for delivery to X (a
person) or his assigns. Three copies are made, each signed by the master. One is kept by the
consignor of the goods, one by the master of the ship and one is forwarded to X, the consignee,
who, on receipt of it, acquires property in the goods. It is a written evidence of a contract for the
carriage and delivery of goods by sea, for certain freight.
When goods are delivered on board a ship, the receipt is given by the person in-charge. This
receipt is known as the mate’s receipt. The shipper of the goods returns this receipt to the
master before the ship leaves and receives from him bill of lading for the goods, signed by the
master.
Question 4] Define the term ‘bond’ under the Indian Stamp Act, 1899.
Ans.: Bond [Section 2(5)]: A “bond” includes –

(a) Any instrument whereby a person obliges himself to pay money to another on condition
that the obligation shall be void if a specified act is performed, or is not performed, as the
case may be.
(b) Any instrument attested by a witness not payable to order or bearer, whereby a person
obliges himself to pay money to another.
(c) Any instrument so attested, whereby a person obliges himself to deliver grain or other
agricultural produce to another.
The word “oblige” has been used in all sub-clauses in the definition. Therefore, no document
can be a bond unless it is one which, by itself, creates the obligation to pay the money. The
words “obliges himself to pay money” make it very clear, that the obligation is not a pre-existing
one. Where the liability already exists it cannot be said that under a subsequent document
(merely reproducing the nature of the obligation) an obligation has been created.
Question 5] Define the term ‘Chargeable’ as per Indian Stamp Act, 1899.
Ans.: Chargeable [Section 2(6)]: Chargeable as applied to an instrument executed or first

executed after the commencement of the Act means chargeable under the Act and as applied to
any other instrument, chargeable under the law in force in India when such instrument was
executed or where several persons executed the instrument at different times, first executed .
Question 6] Define the term ‘Cheque’ under the Indian Stamp Act, 1899. Also State
whether cheque are liable to stamp duty.
Ans.: Cheque [Section 2(7)]: “Cheque” means a bill of exchange drawn on specified banker, not
expressed to be payable otherwise than on demand. This definition follows the definition given
in the Negotiable Instruments Act, 1881.
It should be mentioned that in India, cheques are no longer subject to stamp duty. Entry 21 in
the Schedule levying duty on cheque has been deleted.
Question 7] Define the term ‘Conveyance’ as per Indian Stamp Act, 1899.

Ans.: Conveyance [Section 2(10)]: The term conveyance includes a conveyance on sale and every
instrument by which property, whether movable or immovable is transferred inter vivos and
which is not otherwise specifically provided for by Schedule I.
It does not include a will.
Thus, all transfers of property whether movable or immovable, on sale are chargeable as
conveyances. (excluding which are not otherwise specially provided for by the Schedule)
Transfer provided in Schedule I: Composition deed, exchange of property, gift, lease, mortgage,
re-conveyance, release, settlements, transfer of lease and declaration of trust.
Question 8] Define the term ‘Executed/Execution’ as per Indian Stamp Act, 1899. Also
state whether mark by illiterate person can be treated as signature.
Ans.: Executed/Execution [Section 2(12)]: The words “executed” and “execution” used with
reference to instruments mean “signed’ and “signature” respectively.
Signature includes mark by an illiterate person. [Section 3(52), General Clauses Act, 1897]
An instrument which is chargeable with stamp duty only on being “executed” is not liable to
stamp duty until it is signed.
Question 9] Define the term ‘Impressed Stamp’ as per Indian Stamp Act, 1899.
Ans.: Impressed Stamp [Section 2(13)]: Impressed stamp includes:

(a) Labels affixed and impressed by the proper officer and
(b) Stamps embossed or engraved on stamp paper.
The rules framed under the Act prescribe to what documents impressed stamps are to be used.
The term includes both a stamp impressed by the Collector and also a stamp embossed on
stamp paper. Special adhesive stamps are labels.
Judicial view:
It was held that the instrument is duly stamped if it has been duly stamped at the time of execution
and is admissible in evidence, though the stamp is subsequently removed or lost. [Mt. Mewa Kunwari v.
Bourey, AIR 1934 All. 388]
Question 10] Define the term ‘Duly Stamped’ as per Indian Stamp Act, 1899.
Ans.: Duly Stamped [Section 2(11)]: Duly stamped in relation to instrument means instrument
having proper amount of stamp and such stamps has been affixed or used in accordance with
the law for the time being in force.
Question 11] Define the term ‘Instrument’ as per Indian Stamp Act, 1899.
Ans.: Instrument [Section 2(14)]: Instrument includes every document by which any right or
liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded.
The definition is an inclusive definition and is not necessarily restricted to those documents
which are specifically mentioned in the definition.
Briefly stated, an instrument includes conveyances, leases, mortgages, promissory notes and
wills, but not ordinary letters or memoranda or accounts.
Any instrument mentioned in Schedule I is chargeable to duty as prescribed in that Schedule.
Thus, if instrument is not specified in Schedule, no stamp duty is payable.
Judicial Views:
 An unsigned draft document is not an instrument.
 An entry in a register, containing the terms of hiring of machinery is an instrument, where it is
authenticated by the thumb impression of the hirer.
 A letter which acknowledges receipt of a certain sum as having been borrowed at a particular rate of
interest and for a particular period and that it will be repaid with interest on the due date is an

instrument.
 Photocopy of an agreement is not an instrument. [Ashok Kalam Capital Builders v. State & Anr., AIR
2010 (NOC) 736 (Del)]
Question 12] Are the following 'instruments' under the Indian Stamp Act, 1899:
(i) A letter which acknowledges receipt of a certain sum as having been borrowed at a
particular rate of interest and for a particular period of time and that it will be
repaid with interest on the due date?
(ii) An unsigned draft document? CS (Inter) – June 2004 (2 × 2 = 4 Marks)
Ans.:
(i) A letter which acknowledges receipt of a certain sum as having been borrowed at a
particular rate of interest and for a particular period of time and that it will be repaid with
interest on the due date is an ‘instrument’ as defined in Section 2(14) and liable to stamp
duty as prescribed in Schedule I.
(ii) An unsigned draft document is not an instrument; because it does not create or purport to
create any right and hence not liable to stamp duty.
Question 13] Define the term: ‘Lease’ as per Indian Stamp Act, 1899
Ans.: Lease [Section 2(16)]: Lease means a lease of immovable property and also includes:
(a) a patta;
(b) a kabuliyat or other undertaking in writing, not being a counterpart of a lease to cultivate,
occupy or pay or deliver rent for, immovable property;
(c) any instrument by which tolls of any description are let;
(d) any writing on an application for a lease intended to signify that the application is granted.
A patta is an instrument given by the Collector of District or any other receiver of the revenue, to the
cultivator, specifying the condition or conditions upon which the lands are to be held and the value or
proportion of the produce to be paid therefore.
A Kabuliyat is executed by the lessee, accepting the terms of the lease and undertaking to abide by
them. Although, it is not a lease u/s 105 of the Transfer of Property Act, it is expressly included in the
definition for the purposes of the Stamp Act.
Toll is a tax paid for some liberty or privilege, such as for passage over a bridge, ferry, along a highway
or for the sale of articles in a market or fair or the like. It does not include octroi or chungi.
Question 14] Define the term: ‘Marketable Security’ as per Indian Stamp Act, 1899
Ans.: Marketable Security [Section 2(16A)]: Marketable security means a security of such a
description as to be capable of being sold in stock market in India or in the United Kingdom.
Question 15] What do you mean by ‘promissory note’? State the requisites of a
promissory note with the help of some illustrations.
Ans.: Promissory Note [Section 2(22)]: Promissory note is an instrument in writing (not being a
bank note or a currency note) containing an unconditional undertaking, signed by the maker, to
pay a certain sum of money only to or to the order of a certain person or to the bearer of the
instrument.
Requisites of a promissory note:
(1) A promissory note must be in writing, duly signed by its maker and properly stamped as
per Indian Stamp Act.
(2) It must contain an unconditional undertaking or promise to pay. Mere acknowledgement of
indebtedness is not enough.

Example 1: If someone writes ‘I owe Rs. 5,000 to Satya Prakash’, it is not a promissory
note.
Example 2: If it is written ‘I promise to pay Suresh Rs. 5,000 after my sister’s marriage’, is
not a promissory note.
(3) It must contain a promise to pay money only.
Example: If someone writes ‘I promise to give Suresh a Maruti car’ it is not a promissory
note.
(4) The parties (i.e. maker & payee) to a promissory note must be certain.
(5) A promissory note may be payable on demand or after a certain date.
Example: If it is written ‘three months after date I promise to pay Satinder or order a sum
of rupees Five Thousand only’ it is a promissory note.
The sum payable mentioned must be certain or capable of being made certain.
Question 16] Define the term: ‘Receipt’ as per Indian Stamp Act, 1899
Ans.: Receipt [Section 2(23)]: Receipt includes any note, memorandum or writing:
(a) Whereby any money or any bill of exchange, cheque or promissory note is acknowledged to
have been received; or
(b) Whereby any other movable property is acknowledged to have been received in satisfaction
of a debt; or
(c) Whereby any debt or demand, or any part of a debt or demand is acknowledged to have
been satisfied or discharged; or
(d) Which signifies or imports any such acknowledgement, and whether the same is or is not
signed with the name of any person.
Some of the important points relating to ‘receipt’ are as follows:
 A mere acknowledgement in writing of the receipt of immovable property will not attract
clause (b).
 Under clause (c), any acknowledgement in satisfaction or discharge of any debt or demand
or any part thereof is covered; for instance, a receipt given by the secretary or other
manager of a club acknowledging payment of the club dues comes within the sub-clause.
 An ordinary cash memo issued by a shopkeeper or another person selling the goods or
other merchandise is not a receipt, unless it contains an acknowledgement of receipt of the
money.
 A letter acknowledging the receipt of money or cheque is a receipt.
 A document merely saying that the signatory has received a sum of `500 is a receipt.
Stamp duty on receipt is `1 for receipt above `5,000. [Section 30]
Question 17] Define the term ‘Settlement’ under the Indian Stamp Act, 1899. Also state
whether the term settlement includes ‘will’.
Ans.: Settlement [Section 2(24)]: Settlement means any non-testamentary disposition, in writing,
of movable or immovable property made:
(a) in consideration of marriage;
(b) for the purpose of distributing property of the settler among his family or those for whom he
desires to provide, or for the purpose of providing for some person dependent on him; or
(c) for any religious or charitable purpose and includes an agreement in writing to make such
disposition.
The definition of “settlement” excludes a will. A will is intended to operate only on death, while
a settlement operates immediately.
Question 18] Define the term: ‘Stamp’ as per Indian Stamp Act, 1899

Ans.: Stamp [Section 2(26)]: Stamp means any mark, seal or endorsement by any agency or
person duly authorized by the State Government and includes an adhesive or impressed stamp
for the purposes of duty chargeable under the Act.
Instrument chargeable with duty
Question 19] Describe the instruments chargeable with duty under the Indian Stamp
Act, 1899 and the exceptions thereto? CS (Final) – Dec 1998 (8 Marks)
Ans.: Instruments chargeable with duty [Section 3]: Subject to the provisions of the Act and the
exceptions contained in Schedule I, the following instruments shall be chargeable with a duty of
the amount indicated in that schedule as the proper duty, namely:
(a) Instrument mentioned in 1st Schedule executed in India.
(b) Bill of exchange (except payable on demand) and promissory note.
(c) Every instrument executed out of India but related to property in India.
However, no duty shall be chargeable in respect of:
(a) Instrument executed by and in favour of Government.
(b) Instrument related to sale or deposition of ship or vessels registered under Merchant
Shipping Act, 1894 or the Indian Registration of Ships Act, 1841.
(c) Any instrument executed by, or, on behalf of, or in favour of, the Developer or Unit or in
connection with the carrying out of purposes of the Special Economic Zone.
Judicial View:
If a contract of purchase and sale or a conveyance by way of purchase and sale, can be, or is carried
out without an instrument the case is not within the Section 3 and no tax is imposed. It is not the
transaction of purchase and sale which is struck at; it is the instrument whereby the purchase and
sale are effected which is struck at. If anyone carries through a purchase and sale without an
instrument, then the Legislature has not reached that transaction. [Commissioners of Inland Revenue v.
G. Angus, 1889) 23 QBD 579, followed in Re. Swadeshi Cotton Mills, AIR 1932 All 291]
Question 20] List any ten instruments which are chargeable with duty under the Indian
Stamp Act, 1899. CS (Executive) – Dec 2010 (4 Marks)
Ans.: Some of the instruments which are chargeable with duty under Schedule I of the Indian
Stamp Act, 1899 are as follows:
- Administration Bond - Indemnity-bond
- Agreement relating to Deposit of - Mortgage-deed
Title-deeds, Pawn or Pledge - Promissory-note
- Bill of Exchange - Release
- Bond - Security Bond or Mortgage-deed
- Debenture - Settlement
Question 21] Abhay’s agricultural land was purchased by the government for the purpose
of construction of a factory but no duty was paid for this transfer by the government.
Abhay wanted to take back his land on the ground that government has not paid the
duty and, therefore, no sale deed was executed. Will Abhay succeed? Give reasons.
Ans.: As per Section 3 of the Indian Stamp Act, 1899, no duty shall be chargeable in respect of
instrument executed by and in favour of Government. Since, Abhay’s agricultural land was
purchased by the government no stamp duty is required to paid on it and instrument of
transfer is valid. Thus, Abhay cannot take back his land on the ground that government has
not paid the duty.

Extent of liability of instruments to duty
Question 22] How duty is payable in case of several documents?

Explain the term ‘distinct matters’ relating to instruments liable for payment of duty
under the Indian Stamp Act, 1899. CS (Inter) – Dec 2003 (5 Marks)
Ans.:
(1) Several instruments used in single transaction of sale, mortgage or settlement [Section 4]: In
case of sale, mortgage or settlement, if there are several instrument for one transaction,
stamp duty is payable only on one instrument and on other instrument nominal stamp
duty of `1 is payable.
(2) Instruments relating to several distinct matters [Section 5]: If one instrument relates to
several distinct matters, stamp duty payable is aggregate amount of stamp duty payable
on separate instrument.
(3) Instruments coming within several descriptions in Schedule I [Section 6]: If a particular
instrument which cover only one matter but comes under more than one description as
per Schedule to Stamp Act, then highest rate of duty will be the duty payable.
Example:
- Where a deed contains a stipulation binding the executants to deliver his sugarcane
crop to the obligee and also provides that the sugarcane crop is hypothecated as
security for payment of money advanced by the obligee, the deed fulfils the dual
character of the mortgage and a bond and is therefore chargeable to the highest of the
duties by virtue of Section 6.
- Where an attested instrument, containing an undertaking to pay money, evidences also
a pledge of immovable property as security for the money due, the higher of the stamp
duty payable on its character as a bond and on its character as a pledge, was held
leviable.
- An instrument which can be treated both as dissolution of partnership and as an
instrument of partition has to be charged to the duty prescribed for partition deed,
which is the higher of the two.
Judicial Views: [Section 4]
 P executed a conveyance of immovable property. On the same deed his nephew (undivided in status)
endorsed his consent to the sale, as such consent was considered to be necessary. It was held that
the conveyance was the principal instrument. The consent was chargeable with only `1. [ILR 13 Bom
281]
 Subsequent to a sale of immovable property, two declarations were executed reciting that the sale
was subject to an equitable mortgage created by the vendor. These declarations were held to be
chargeable, together with the sale deed, as having completed the conveyance. The two declarations
come within the provisions of Section 4 and the duty is Re. 1 in each case. [Somaiya Organics Ltd. v.
Chief Controlling Revenue Authority, AIR 1972 All 252]
 Brother X executed in favour of brother Y a gift of all his property. By another deed, brother Y made
provision for the living expenses of brother X and hypothecating in favour of brother X a part of the
property included in the above mentioned gift deed, in order to secure the payment of the living
expenses. It was held that the two documents were part of the same transaction. They amounted to a
settlement and Section 4 applied. [Maharaj Someshar Dutt, ILR 37 All 264]
 B conveyed the whole of his property to three persons who undertook to provide for him and to
perform his obsequies. By another document, the three donees agreed to provide for B. This was
mentioned in the deed executed by A also. It was held that the two documents had to be construed as
part of the same act; the first was liable to duty as a conveyance while the second was liable to a duty
of Re. 1 only. [Dadoba v. Krishna, ILR 7 Bom. 34]
 A company executed, first a deed of trust and mortgage stating that the company was to issue notes
for raising loans secured by the sale deed. It was held as under:
(1) The deed was principal or primary security (and not a collateral security). It was chargeable as
mortgage under Article 14.
(2) The notes issued subsequently were debentures and not principal instruments. [Madras Refinery

Ltd. v. Chief Controlling Revenue Authority, Madras, AIR 1977 SC 500]

 The Rangoon Gymkhana executed a duly stamped trust deed, mortgaging its assets as security for
the repayment of the debenture stock issued by it. In addition, it had issued certificates of debenture
stock to the subscribers, but these did not contain any promise to repay any need, but merely stated
the amount standing in each shock holder’s name. It was held that the certificates were not
debentures, but were instruments employed to complete the mortgage. [Rangoon Gymkhana In re, AIR
1927 Rang. 37 (Section 4 applied)]
 A lease is executed and got registered. A second document is executed altering the terms of the first
document. The second document has to be stamped as a lease. Section 4 does not apply.
 A purchaser of land executes a mortgage of the land in favour of the vendor for a portion of the
purchase money. The mortgage is liable to full duty as a separate instrument. Section 4 does not
apply.
Judicial Views: [Section 5]
 A document containing both an agreement for the dissolution of a partnership and a bond, is
chargeable with the aggregate of the duties with which two such separate instruments would be
chargeable. The two are distinct matters and hence Section 5 will be applied. [Chinmoyee Basu v.
Sankare Prasad Singh, AIR 1955 Cal. 561]
 An agreement containing two covenants making certain properties chargeable in the first instance
and creating a charge over certain properties if the first mentioned properties are found insufficient
does not fall within Section 5. [Tek Ram v. Maqbul Shah, AIR 1928 Lah. 370]
 A grant of annuity by several persons requires only one stamp because there is only one transaction.
 A lease to joint tenants requires only one stamp.
 A conveyance by several persons jointly relating to their separate interest in certain shares in an
incorporated company requires only one stamp.
 Where a person having a representative capacity (as a trustee) and a personal capacity delegates his
powers in both the capacities, Section 5 applies and hence stamp duty is aggregate as if two separate
documents are executed even if it executed by one document. In law, a person acting as a trustee is a
different entity from the same person acting in his personal capacity.
 The position is the same where a person is an executive or administrator and signs an instrument
containing a disposition by him in his personal capacity and also a disposition as executor. The two
capacities are different, Section 5 applies and hence stamp duty is aggregate as if two separate
documents are executed even if it executed by one document. [Member, Board of Revenue v. Archur
Paul Benthall, AIR 1956 SC 35]
 A power of attorney executed by several persons authorising the agent to do similar acts for them in
relation to different subject matter is chargeable u/s 5, where they have no common interest as there
is one instrument which relates to several distinct matters and hence stamp duty payable is
aggregate amount of stamp duty payable as if separate instruments are executed.
Question 23] Ronie executed a document in favour of his friend Wellwisher on a stamp
paper of `100 conveying him certain immovable property absolutely for a consideration
of `10,000. On the same deed of sale, the nephew of the executant, belonging to the
undivided family, endorsed his consent to the sale. No separate stamp was affixed to
such consent. Is this valid? CS (Final) – June 2002 (6 Marks)
Ans.: According to Section 4 of the Indian Stamp Act, 1899, if there are several instrument for
one transaction, stamp duty is payable only on one instrument and on other instrument
nominal stamp duty of `1 is payable.
As per the facts given in case, instrument conveying immovable executed by Ronie will require
full stamp duty and consent of nephew will require nominal stamp duty of `1 as case clearly
falls u/s 4, reason being there are several instrument for one transaction of sale.
Question 24] Subsequent to the sale of a house, the seller executed a declaration that
the sale was subject to an equitable mortgage created by him. What is the stamp duty
payable on the instrument of declaration? CS (Final) – June 2001 (4 Marks)

nominal stamp duty of `1 is payable.
The facts of the given case are similar to Somaiya Organics Ltd. v. Chief Controlling Revenue
Authority, AIR 1972 All 252, wherein it was held that if subsequent to a sale of immovable
property, two declarations were executed reciting that the sale was subject to an equitable
mortgage created by the vendor, then these declarations were held to be chargeable, together
with the sale deed, as having completed the conveyance. The two declarations come within the
provisions of Section 4 and the duty is Re. 1 is payable on declaration.
Question 25] Ram executed a gift deed of certain immovable properties in favour of his
brother Shyam. By another deed, Shyam made provision for the living expenses of Ram
and created a charge in his favour on some properties included in the above mentioned
gift deed in order to secure the payment of these living expenses. The government
authority insists that deed executed by Shyam is liable to full duty. Decide with reasons.
nominal stamp duty of Re. 1 is payable.
Facts of the case are similar to Maharaj Someshar Dutt, ILR 37 All 264, wherein it was held
that, when two deeds (documents) are executed by 2 brother, one document transferred all the
property by way of gift and was stamped to it is full value, second document provided expenses
during the life time of transferor, the two documents were part of the same transaction. They
amounted to a settlement and Section 4 applied and hence on second document nominal
stamp duty of `1 is payable.
Question 26] Arjun executed a power of attorney both in his personal capacity and in his
capacity as an executor, trustee, manager and liquidator in favour of Bheem. Decide the
liability of duty payable on the instrument. CS (Inter) – Dec 2005 (5 Marks)
Ans.: According to Section 5 of the Indian Stamp Act, 1899, if one instrument relates to several
distinct matters, stamp duty payable is aggregate amount of stamp duty payable on separate
instrument.
Where a person possessing a ‘representative capacity’ such as trustee and a personal capacity
and if he delegates his powers under both the categories then Section 5 is attracted and stamp
duty payable is aggregate amount of stamp duty payable on separate instrument.
Question 27] What are the provisions of Indian Stamp Act, 1899 regarding chargeability
of duty when of bond, debenture are issued by Local Authorities?
Ans.: Bonds, debentures or other securities issued on loans under Local Authorities Loan Act, 1879
[Section 8]: When local authority issues bond, debenture or other securities as per the
provisions of Local Authorities Loan Act, 1879 then such local authority is chargeable with a
stamp duty of 1% of total amount. Such securities need not to be stamped. Further no stamp
duty is payable on renewal, consolidation, sub-division or otherwise.
Question 28] Are securities dealt in depository liable to stamp duty under the provisions
of Indian Stamp Act, 1899? CS (Executive) – June 2017 (5 Marks)
Ans.: After the Depositories Act, 1996 came into existence, Section 8A was inserted in the Indian
Stamp Act, 1889. Accordingly, securities issued in electronic form need not be stamped provided
the issuer pays consolidated stamp duty on the total amount of securities issued. Also transfer of
registered ownership of share from a person to a depository or from a depository to a beneficial

owner shall not be liable to any stamp duty. Similarly transfer of beneficial ownership dealt by
Depository shall not be liable for stamp duty.
Securities dealt in depository not liable to stamp duty [Section 8A]: If the company issue of
securities to one or more depositories, it will have to pay stamp duty on total amount of
security issued by it and such securities need not be stamped.
If investor opts out of depository scheme, the securities surrendered to depository will be issued
to him in form of share certificate. Such share certificate should be stamped as if a ‘duplicate
certificate’ has been issue.
The following transfer shall not be liable to stamp duty under the Depositaries Act, 1996 or any
other law for the time being in force of –
(i) Registered ownership of securities from a person to a depository or from a depository to a
beneficial owner;
(ii) Beneficial ownership of securities, dealt with by a depository;
(iii) Beneficial ownership of units, such units being units of a Mutual Fund including units of
the Unit Trust of India, dealt with by a depository.
Thus, if securities are purchased and sold under depository scheme, no stamp duty is payable.
Question 29] Corporatization and demutualization schemes of stock exchanges are liable
to stamp duty. Comment.
Ans.: Corporatization and demutualization schemes and related instruments not liable to duty
[Section 8B]: Following are not liable to stamp duty –
(a) A scheme for corporatization or demutualization, or both of a recognized stock exchange. or
(b) Any instrument, including an instrument of, or relating to, transfer of any property,
business, asset whether movable or immovable, contract, right, liability and obligation, for
the purpose of, or in connection with, the corporatization or demutualization, or both of a
recognized stock exchange.
However, the scheme for corporatization or demutualization which is approved by the SEBI u/s
4B(2) of the Securities Contracts (Regulation) Act, 1956 is not liable for stamp duty.
Historically, most of the stock exchanges, except NSE & OTCEI were formed as ‘mutual organization’ i.e.
formed by trading members for their common benefit. The disadvantage of such organization is that they
primarily work for interest of members and those of investors. The office bearers will have access to
inside information, which can be misused by them. There is no transparency and no professional
approach. Moreover, they cannot raise large funds for modernization or up-gradation by offering equity
shares to others.
In view of above shortcomings of ‘mutual stock exchanges’, a policy decision was taken by the
Government of India for corporatization of stock exchange. Corporatization means stock exchange should
be organized as a company.
Thus, the process of converting ‘mutual stock exchanges’ into company form of organization is known as
‘Demutualization of Stock Exchanges’.
Reduction, Remission & Compounding of stamp duty
Question 30] What are the provisions of reduction, remission & compounding of duties
by Government under Indian Stamps Act, 1889?
Ans.: Power to reduce, remit or compound duties [Section 9]: This Section empowers the
government to reduce or remit whole or part of duties payable. Such reduction or remission can
be in respect of whole or part of territories and also can be for particular class of persons.
Government can also compound or consolidate duties in case of issue of shares or debenture
by companies.
‘Government’ means Central Government in respect of stamp duties on bills of exchange,
cheque, receipts etc. and ‘State Government’ in case of stamp duties on other documents.

Methods of Stamping & Cancellation
Question 31] Explain the methods of stamping under the Indian Stamp Act, 1899.
Ans.: Duties how to be paid [Section 10]: All duties with which any instrument is chargeable
shall be paid, and such payment shall be indicated on such instrument, by means of stamps
according to the provisions contained in the Act, or when no such provision is applicable
thereto, as the State Government concerned may by rule, direct.
The rules may provide following matters:
In the case of each kind of instrument. The description of stamps which may be used.
In the case of instruments stamped The number of stamps which may be used.
with impressed stamps.
In the case of bills of exchange or The size of the paper on which they are written.
promissory notes.
There are two types of stamping, namely:
(1) Adhesive stamping and
(2) Impressed stamping.
Question 32] On which type of instruments adhesive stamp can be used

Bills of exchange and promissory notes drawn or made out of India may be stamped with
adhesive stamp. CS (Inter) – Dec 2013 (2 Marks)
Ans.: Use of adhesive stamps [Section 11]: The following instrument may be stamped with
adhesive stamp.
 Instrument chargeable with duty up to 10 naya paise. (except parts of bills of exchange
payable otherwise than on demand and drawn in set)
 Bill of exchange & promissory note.
 Entry as Advocate or Vakil on the roll of High Court.
 Notorial act.
 Transfer instrument of shares.
Question 33] What are the modes of cancellation of adhesive stamps?

Any instrument bearing an adhesive stamp which has not been cancelled be deemed to
be unstamped. Discuss this statement quoting relevant case laws.
CS (Final) – June 1996 (10 Marks)
Ans.: Cancellation of adhesive stamps [Section 12(1)]: Any person affixing any adhesive stamp
has to cancel it. If it is not cancelled as above then it should be cancelled by person executing
it. A stamp has to cancelled in such manner that it cannot be used again.
Effect of not cancelling the stamps [Section 12(2)]: If stamps are not cancelled then instrument is
treated as deemed to be unstamped.
Mode of cancellation of adhesive stamp [Section 12(3)]: Cancellation of an adhesive stamp may be
done by the person by writing.
 His name or initial or
 Name or initial his firm or
 Any other effectual manner.
Penalty for failure to cancel adhesive stamp [Section 63]: Any person required by Section 12 to
cancel an adhesive stamp, and failing to cancel such stamp in manner prescribed by that
section, shall be punishable with fine which may extend to `100.
Judicial Views:
 Stamps may be effectively cancelled by drawing a line across it. [Mahadeo vs. Sheroji Ram Teli, ILR
41 All 169; AIR 1919 All 196]
 If stamp is possible to use second time it is not effectual cancellation. [Hafiz Allah Baksh vs. Dost

Mohammed, AIR 1935 Lah. 716]

 Drawing a diagonal line across the stamp is effectual cancellation. [Melaram Vs. Brijlal, AIR 1920
Lah. 374]
 Putting a date subsequent to the date of drawing bill is not effectual cancellation. [Daya Ram vs.
Chandulal, AIR 1925 Bom. 520]
 Cross mark by illiterate person is effectual cancellation. [Kolai Sai vs. Balai Jajam, AIR 1925 Rang.
209]
 Putting two lines crossing each other is effective cancellation. [AIR 1961 Raj. 43]
Question 34] Four adhesive stamps were used on an instrument. First adhesive stamp
had a single line drawn across the face of the stamp. On the second stamp, there were
two parallel lines. The third stamp had three parallel lines, and the fourth stamp had two
lines crossing each other. What are the provisions for cancellation of adhesive stamps
and which adhesive stamps referred to above will be considered to have been properly
cancelled? CS (Executive) – Dec 2009 (6 Marks)
Ans.: As per Section 12(3) of the Indian Stamp Act, 1899, cancellation of an adhesive stamp
may be done by the person by writing:
 His name or initial or
 Name or initial his firm or
 Any other effectual manner.
Stamps may be effectively cancelled by drawing a line across it. [Mahadeo vs. Sheroji Ram Teli, ILR
41 All 169; AIR 1919 All 196]
Drawing a diagonal line across the stamp is effectual cancellation. [Melaram vs. Brijlal, AIR 1920
Lah. 374]
Where one of the four stamps used on an instrument had a single line drawn across the face of
the stamp, the second had two parallel lines, the third three parallel lines and the fourth two
lines crossing each other, it was held that the stamps must be regarded as having been
cancelled in manner so that they could not be used again. [In re Tata Iron Steel Company, AIR 1928
Bom. 80]
Thus keeping in view above, all the four stamps are effectively cancelled.
Question 35] How instruments stamped with impressed stamps to has to be written?
Ans.: Instruments stamped with impressed stamps how to be written [Section 13]: Every
instrument written upon paper stamped with an impressed stamp shall be written in such
manner that the stamp may appear on the face of the instrument and cannot be used for or
applied to any other instrument.
Only one instrument to be on same stamp [Section 14]: Only one instrument chargeable to duty
shall be written on stamp paper. However, endorsement of duly stamped instrument is
permitted.
Instrument written in contrary to Sections 13 & 14 shall be deemed to be unstamped. [Section 15]
Denoting Duty
Question 36] ‘Denoting’ is a concept primarily to help the Government in collection of

stamp duty state briefly whether it is true? CS (Final) – June 2002 (6 Marks)
Write a short note on: Denoting Duty CS (Inter) – June 2008 (4 Marks)
Ans.: Denoting Duty [Section 16]: Where the stamp duty to be paid on particular instrument or
exemption of such instrument from duty depends upon another instrument, then if both are
produced before Collector of Stamps he can denote & certify on first instrument that proper
stamp duty is paid or no duty is required to be paid.
Time of stamping instruments

Question 37] State the provisions of Indian Stamp Act, 1899 relating to ‘timing of
stamping the instrument’.
At what point of time stamping be done for instruments executed inside India.
CS (Final) – Dec 2000 (2 Marks)
Ans.: Sections 17, 18, 19 deals with timing of stamping instrument.

(1) Instruments executed in India [Section 17]: Instruments chargeable with duty and executed
by any person in India shall be stamped before or at the time of execution.
(2) Instruments executed out of India [Section 18]: Instrument executed out of India may be
stamped within 3 months after it is 1st received in India.
(3) Bills & Notes drawn out of India [Section 19]: It should be stamped by 1st holder in India
before he presents for payment or endorses or negotiates in India.
Question 38] In respect of foreign instruments, other than bills and notes received in
India, what is the time limit prescribed for stamping those instruments?
Ans.: As per Section 18, instrument executed out of India may be stamped within 3 months
after it is 1st received in India.
Question 39] Whether a receipt stamped subsequent to its execution but before being
produced in the Court is admissible in the evidence? CS (Final) – Dec 2000 (2 Marks)
Ans.: A receipt stamped subsequent to its execution but before being produced in the Court was
held not to have stamped in time and accordingly not admissible in the evidence under the
provision of Indian Stamp Act, 1899.
Valuation of duty
Question 40] How is ad valorem duty calculated in respect of marketable security under
the Indian Stamp Act, 1899? CS (Final) – Dec 2001 (4 Marks)
Discuss provisions relating to valuation of instruments for levy of duty under the Indian
Stamp Act, 1899. CS (Inter) – June 2003 (8 Marks)
Discuss the provisions relating to valuation of instruments chargeable with ad valorem
duty in cases where the value of the subject matter is indeterminate under the Indian
Ans.: Chapter II Sections 20 to 28 deals with various provisions relating to ‘valuation for duty’.
(1) Conversion of amount expressed in foreign currencies [Section 20]: When an instrument is
chargeable with ad valorem duty then foreign currency value should be converted into
Indian value at rate of exchange on date of instrument.
(2) Stock and marketable securities how to be valued [Section 21]: Value of marketable securities
should be as per average price on the date of instrument.
 If shares are quoted on stock exchange, price in stock market can be taken for
calculating average price.
 If shares are not quoted on stock exchange, price will be average of latest private
transaction.
 If there are no private transactions also, then value should be taken at par.
(3) Effect of statement of rate of exchange or average price [Section 22]: If instrument states
current market value or rate, it will be presumed that instrument is properly stamped
(4) Instruments reserving interest [Section 23]: If document mentions interest to be charged,
valuation will be done without considering interest portion.

For instance, a promissory note for `10,000 is drawn with the recital of interest at the rate
of 18% p.a., payable by the maker of promissory note; stamp is leviable on the basis that
the instrument is for `10,000 only.
(5) How transfer in consideration of debt, or subject to future payment, etc., to be charged
[Section 24]: If property is transferred in satisfaction of debt due, then it will be considered
in valuation purpose.
Explanation: In the case of a sale of property subject to a mortgage or other encumbrance,
any unpaid mortgage with the interest due, shall be deemed to be part of the consideration
for the sale.
However where property is subject to a mortgage is transferred to the mortgagee, he shall
be entitled to deduct from the duty payable on the transfer the amount of any duty already
paid in respect of the mortgage.
Illustrations (As given in Indian Stamp Act, 1899):
- A owes B `1,000. A sells a property to B, the consideration being `500 and the release of the
previous debt of `1,000. Stamp duty is payable on `1,500.
- A sells property to B for `500 which is subject to a mortgage to C for `1,000 and unpaid interest
`200. Stamp duty is payable on `1,700.
- A mortgage a house of the value of `10,000 to B for `6,000. B afterwards buys the house from
A. Stamp duty is payable on `10,000 less the amount of stamp duty already paid for the
mortgage. Thus, stamp duty is payable on `4,000.
(6) Valuation in case of annuity [Section 25]: Some agreement provides for payment of annuity
or periodic payment and not lumpsum payment. In such case valuation is done as follows:
 If period of annuity is definite: Total amount payable during that period will be
considered.
 If annuity is payable perpetually/indefinite time: Total amount payable within 20 years
from the date of 1st payment due will be considered for valuation.
Example: By a document, ‘A’ binds himself and his posterity on the security of some
immovable property for the annual payment to a temple of `2,500. It is a mortgage
deed, chargeable with duty calculated on 20 years payment.
 If payment of annuity is subject to living or death of a person: Total amount payable
within first 12 years will be considered.
(7) Stamp where value of subject matter is indeterminate [Section 26]: When value of subject
matter cannot be ascertained precisely on the date of execution, stamp should be fixed on
estimated basis of valuation. However, in such case, the maximum amount that can be
claimed on such instrument will be only the value on which stamp duty has been paid, and
nothing more.
Question 41] Rajesh mortgages a building of the value of `70,000 to Suresh for `50,000.
Rajesh, subsequently, sells the building to Suresh. An unpaid amount of `5,000 against
interest is also outstanding at the time of sale. Determine the value on which the stamp
duty is payable in this transfer of property. CS (Inter) – Dec 2004 (5 Marks)
Ans.: According to Section 24 of the Indian Stamp Act, 1899, if property is transferred in
satisfaction of debt due, then it will be considered in valuation purpose. However, as the
Explanation to Section 24, where property is subject to a mortgage is transferred to the
mortgagee, he shall be entitled to deduct from the duty payable on the transfer, the amount of
any duty already paid in respect of the mortgage.
Considering above provision duty payable will be calculated as follows:
Sale price of building 70,000
Add: Interest accrued on loan 5,000
75,000
Mortgage loan amount (50,000)
Amount on which duty is payable 25,000
Question 42] What are the provisions regarding regulating the under valuation of

property in a conveyance deed, under the Indian Stamp Act, 1899 for the purpose of
stamp duty? CS (Final) – June 1995 (5 Marks)
What are the consequences, if full disclosure regarding a main of duty with instrument is
chargeable is not made?
Ans.: Facts affecting duty to be set forth in instrument [Section 27]: Consideration and all other
facts affecting the chargeability of any instrument with duty and amount of duty shall be fully
and truly set forth in the instrument. Thus, when above facts are not stated there is
contravention of Section 27 and Collector can direct the prosecution of a person u/s 64.
But contravention of Section 27 does not render the document inadmissible or liable to be
impounded u/s 33 as held in Vinayak Dattartaya vs. Hasan Ali, AIR 1961 MP 6.
Question 43] Discuss the rule for apportionment of the consideration in cases of certain
conveyances arising out of property being contracted to be sold to one party and
thereafter conveyed in parts to different parties under Section 28 of the Indian Stamp
Act, 1899.
Ans.: Stamp duty when conveyances executed in parts [Section 28(1)]: Where property has been
sold for one consideration by document executed to purchaser in separate parts, total
consideration shall be apportioned in different documents as the parties think fit.
When two are more document are executed for one property in such case parties can apportion
the consideration as they think fit.
Similar provision is applicable when property is sold to two or more person in parts. [Section 28
(2)]
When person purchase a property and immediately sales it to some other person then sale
price to such other person has to be taken in to account for stamp duty purpose in case of his
purchase. [Section 28 (3)]
Example: N purchase some property from K and sold it to P before executing conveyance
between N & K. In such case consideration payable by P to N will the value for stamp duty for
transaction between N & K.
K N P
Similar procedure has to be applied of property is sold by purchaser to other person in parts
and documents are executed by original seller in favour of different persons in parts. [Section
28 (4)]
If N sales property to P and conveyance deed is first excused between N & P and stamp duty is
paid on the basis of consideration paid by P to N. In such case, when conveyance is executed
between K & P, stamp duty of Rs. 5 is payable. [Section 28 (5)]
Person liable to pay duty
Question 44] Who are the persons liable to pay the stamp duty under Indian Stamp Act,
1899? CS (Final) – June 2003 (5 Marks)
Which party is responsible for payment of duty on different kinds of instruments under
the Indian Stamp Act, 1899? CS (Inter) – Dec 2004 (5 Marks)
Ans.: Duties by whom payable [Section 29]:

Instrument/deed/document Person liable to pay stamp duty

Instrument listed in Section 29(a) A person drawing, making/executing such

- Administration Bond instrument
- Agreement relating to Deposit of Title-deeds,
Pawn or Pledge
- Bill of Exchange
- Bond
- Bottomry Bond
- Customs Bond
- Debenture
- Further Charge
- Indemnity-bond
- Mortgage-deed
- Promissory-note
- Release
- Respondentia Bond
- Security Bond or Mortgage-deed
- Settlement
- Transfer of shares, in an incorporated
company or other body corporate
- Transfer of debentures, being marketable
securities, whether the debenture is liable to
duty or not, except debentures provided for
by Section 8
- Transfer of any interest secured by a bond,
mortgage-deed of policy of insurance
Policy of fire insurance Insurance company
Policy other than fire insurance Person taking the policy
Conveyance or re-conveyance Grantee (grantee means purchaser or
beneficiary)
Lease Lessee
Counter part of lease Lessor
Instrument of exchange Parties in equal shares
Certificate of sale Purchaser
Instrument of partition Parties in there proportion
Question 45] Who are the persons liable to pay the stamp duty under Indian Stamp Act,
1899 in following cases?
(i) Mortgage deed
(ii) Policy of insurance other than fire Insurance
(iii) Transfer of shares in company CS (Final) – June 2003 (5 Marks)
Ans.: Duties by whom payable [Section 29]:

Instrument/deed/document Person liable to pay stamp duty
Mortgage-deed A person drawing, making/executing such instrument
Policy of insurance other than fire Person taking the policy
Insurance
Transfer of shares in company A person drawing, making/executing such instrument
Adjudication as to stamps
Question 46] You are Company Secretary of Dowell Industries (India) Ltd. You are about
to execute an agreement with third party on behalf of the company. However you are
not sure as to correct stamp duty payable. State how will you go about to determine as
to correct stamp duty with which the agreement is chargeable.

Ans.: Adjudication as to proper stamp [Section 31]: If any person is not sure about the duty
payable on any instrument, then he can apply to the Collector of stamps for his opinion
regarding duty payable.
Fee: Such application has to be made with a fee of `5
Documents to be attached: While making application to the collector following documents
should be attached:
- Abstract of the instrument
- Affidavit
- Other evidences as may be required by Collector
- Fee.
Question 47] Enumerate the provisions of Section 32 of the Indian Stamp Act, 1899 with
regard to certification of the instrument whether chargeable or not chargeable with duty
by the collector of stamps. CS (Final) – Dec 2000 (7 Marks)
Ans.: Certificate by Collector [Section 32]: A person who has paid stamp duty and has executed
an instrument can apply to Collector of stamps to take his opinion, whether proper duty is paid
or not.
- On receiving such application Collector may certify by an endorsement that fully duty is
paid or
- He may certify that no duty required to be paid.
Time limit for giving certificate by Collector:
Instrument executed in India 1 month
Instrument executed outside India 3 months
Bill of exchange or promissory note Before drawing or executing
If instrument, bill of exchange or promissory note brought after above mentioned period are not
eligible to take opinion of Collector u/s 32.
Instruments not duly stamped – treatment & consequences
Question 48] Discuss in brief the various provisions of Indian Stamp Act, 1899 relating
to impounding of instruments.
Discuss the evidentiary value of an instrument not duly stamped under the Indian
State the legal remedies available to the officer concerned for an unstamped receipt
under the Indian Stamp Act, 1899. CS (Inter) – June 2008 (4 Marks)
State the law of inadmissibility in evidence of an instrument not duly stamped.
Explain the Collector's power to stamp an instrument which is impounded.
Ans.: Following are the various provisions relating to impounding of instruments:

(1) Impounding of instrument not duly stamped [Section 33]: If any instrument is not duly
stamped then it can be impounded under this section by:
- Arbitrator
- Court
- Public officer (Police officer is excluded i.e. to say he cannot impound the instrument.
Object: The object of this section is to protect the revenue.
When to be impounded: Such instrument has to be impounded before it is accepted as
evidence.
Judicial Views:
 Court cannot impound the instrument where instrument not relating to case and which the
witness had not been asked to produce, has been produced. [Nathuram vs Narayandas, ILR
1943 Nag. 520; AIR 1943 Nag. 97]

 Court before which a copy of a document (i.e. Xerox copy) has been produced cannot compel
the party to produce the original document with a view to impounding it. In such case party
can refuse to obey the court order. [Uttam Chand vs Permanad, AIR 1942 Lah. 265]
 Unstamped document found during search & produced before Court can be impounded.
[Emperor vs Balu Kuppayyan, ILR 25 Mad. 525]
(2) Impounding of unstamped receipt [Section 34]: Unstamped receipts can be impounded by
public accountant or he may require the receipt to be stamped.
(3) Instruments not duly stamped inadmissible in evidence [Section 35]: Separately discussed.
(4) Admission of instrument – where not be questioned [Section 36]: Once a document is
admitted in evidence (whether rightly or wrongly) it not permissible to the Court whether it
is Court of appeal, revision or of first instance to go behind that order.
Judicial Views:
 Where an instrument has been admitted in evidence, such an admission shall not be called in
question at any stage of the same suit or proceeding on the ground that the instrument has
not been duly stamped. Section 36 is mandatory. [Guni Ram v. Kodar, AIR 1971 All 434, 437]
 If notwithstanding any objection, the trial Court admits the document, the matter ends there
and the Court cannot subsequently order the deficiency to be made and levy penalty. [Bhupathi
Nath v. Basanta Kumar, AIR 1936 Cal. 556; AIR 1933 Lah. 240]
(5) Admission of improperly stamped instrument [Section 37]: The State Government may make
rules for instrument which bears a stamp of sufficient amount but of improper description
and on payment of stamp duty of proper description any instrument so certified shall be
deemed to have been duly stamped as from the date of its execution.
(6) Dealing of instrument impounded [Section 38]: The Court impounding the instrument and
realizing the penalty has to forward an authenticated copy of the instrument and the
amount of penalty recovered to the Collector of stamps or to other authorized person.
(7) Collector's power to refund penalty paid u/s 38 [Section 39]: Collector has powers to refund
penalty paid.
- If instrument is written in contravention of Section 13/14, he can refund whole duty
and
- In any other case, he can refund any penalty in excess of `5
(8) Collector's power to stamp instruments impounded [Section 40]: When the Collector
impounds any instrument u/s 33, or receives any instrument sent to him u/s 38 he shall
adopt the following procedure:
(a) If he is of opinion that such instrument is duly stamped, or is not chargeable with
duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not
so chargeable, as the case may be.
(b) If he is of opinion that such instrument is chargeable with duty and is not duly
stamped, he shall require the payment of the proper duty together with a penalty of
Rs. 5; or an amount up to 10 times of the proper duty or of the deficient portion of
duty.
When such instrument has been impounded only because it has been written in
contravention of Section 13 or 14; the Collector may remit the whole penalty.
Question 49] What are the shortcomings of an instrument not duly stamped?
Discuss the evidentiary value of an instrument not duly stamped under the Indian
Stamp Act, 1899. CS (Executive) – June 2013 (3 Marks)
"If once the 'instrument' has been admitted in evidence, it shall not be questioned later
on in the same suit on the ground that it does not bear the adequate stamp duty or no
stamp." CS (Executive) – June 2016 (5 Marks)
Ans.: Instruments not duly stamped inadmissible in evidence [Section 35]: Shortcomings of the
instrument not duly stamped are as follows:
 Such instrument cannot be accepted as evidence by Civil Court or Arbitrators.
 No one can act upon it.
 It cannot be registered.
 Such instrument cannot be authenticated by public officer or public authorities.

However, if proper stamp duty & penalty is paid then above mentioned shortcomings go and it
becomes valid.
An insufficiently stamped instrument is not invalid and it can be admitted in evidence on
payment of penalty as follows:
(a) Instrument chargeable to duty exceeding 10 naya paisa can be admitted in evidence on
payment of regular duty (+) penalty. (Such penalty can be `5 or 10 times of proper duty
whichever is more)
(b) A receipt which is not duly stamped can be accepted as evidence on paying penalty of `1.
If contract or agreement is effected by more than one letter then contract will be treated as ‘duly
stamped’ if any one of the letters bears proper duty.
Instrument not duly stamped can be accepted as evidence in Criminal Court.
Instrument not duly stamped is also admissible if it is executed by government or in respect of
which certificate of collector is given u/s 32.
Question 50] Achal gives an instrument to Basu which is unstamped. This instrument is
also not registered —
(i) Will the instrument be admitted in evidence?
(ii) Will the situation change if the instrument is stamped but not registered before
passing to Basu and Basu get it registered subsequently?
Ans.: Instruments not duly stamped inadmissible in evidence [Section 35]: Shortcomings of the
instrument not duly stamped are as follows:
 Such instrument cannot be accepted as evidence by Civil Court or Arbitrators.
 No one can act upon it.
 It cannot be registered.
 Such instrument cannot be authenticated by public officer or public authorities.
However, if proper stamp duty & penalty is paid then above mentioned shortcomings go and it
becomes valid.
Keeping in view the above provisions answer to given case is as follows:
(i) Instrument cannot be admitted in evidence since it is not stamped.
(ii) If instrument is stamped before registration then it can be registered subsequently.
Question 51] A document, which is apparently an agreement granting a franchise, is

produced in the Court, but is not stamped.
Examine whether:
(i) the document is void
(ii) the document can be admitted on payment of penalty and
(iii) the parties are liable to be prosecuted.
Ans.: As per Section 35 of the Indian Stamp Act, 1899, an instrument not duly stamped is
inadmissible as evidence.
(1) However, it does not become void.
(2) Upon payment of duty with penalty, the unstamped instrument becomes valid and
admissible as evidence.
(3) As per Section 43 of the Indian Stamp Act, 1899, a party responsible for improperly or
unstamped instrument will be liable to be prosecuted only if Collector of Stamps is of the
opinion that if it has done so with intent to evade proper amount of stamp duty.
Question 52] An instrument bears a stamp of sufficient amount, but of improper

description. Can be certified as duly stamped? How the instrument can be rectified and
what would be date of execution? CS (Executive) – June 2013 (5 Marks)
Ans.: Admission of improperly stamped instrument [Section 37]: Opportunity is given under this
section to a party for getting a mistake rectified when a stamp of proper amount, but of

improper description has been used.

The State Government may make rules for instrument which bears a stamp of sufficient
amount but of improper description. On payment of stamp duty of proper description any
instrument so certified shall be deemed to have been duly stamped as from the date of its
execution.
Question 53] Enumerate the Collectors power to refund the penalty recovered by a Court
on impounding a document not duly stamped when produced before it and to stamp an
instrument impounded under the Indian Stamp Act, 1899.
Ans.: Under Section 38 of the Indian Stamp Act, 1899, the Court or authority impounding the
instrument and realizing the penalty has to forward an authenticated copy of the instrument
and the amount of penalty recovered to the Collector of stamps.
According to Section 39, Collector of stamps has powers to refund penalty paid.
- If instrument is written in contravention of Section 13 or 14 he can refund whole duty and
- In any other case be can refund any penalty in excess of Rs. 5
Question 54] Write a short note on: Instrument unduly stamped by accident or mistake.
An instrument has not been duly stamped by accident or mistake or due to urgent
necessity, but the same had to be validated u/s 41 of the Indian Stamp Act, 1899 after a
lapse of 1 year from the date of execution. Examine validity.
Whether the Collector of stamps is bound to stamp the instruments when those are
brought before him after expiry of the prescribed period?
Ans.: Instruments unduly stamped by accident [Section 41]: If a person on his own motion brings
an instrument before Collector of stamps on which proper stamp duty is not paid by accident,
mistake or urgent necessity within a period of 1 year, then Collector a may receive the
short/deficient amount and validate it.
If such instrument is brought after a period of 1 year then Collector may impound it u/s 33 &
recover duty and penalty as per Section 40.
Where the instrument having been brought to the notice of the Collector within the period of 1
year, the Collector may refer the case to the Chief Controlling Revenue Authority in case he has
doubt and proceed in accordance with the decision of such authority. However, where no such
reference is made by the Collector, the Collector’s decision would be final, and the Chief
Controlling Revenue Authority cannot interfere with his decision.
Question 55] Can prosecution be taken against person for offence under Indian Stamp
Act, 1899?
Ans.: Prosecution for offence against Stamp law [Section 43]: A party responsible for improperly or
unstamped instrument will be liable to be prosecuted only if Collector of Stamps is of the
opinion that if it has done so with intent to evade proper amount of stamp duty.
Question 56] When can a person paying duty or penalty recover the same under the
provisions of Indian Stamp Act, 1899 CS (Final) – Dec 1997 (5 marks)
Ans.: Persons paying duty or penalty may recover same in certain cases [Section 44]: If any person
has paid any penalty u/s 29, 35, 31, 40 or 41 but was not bound to bear the expenses of
providing the same. In such cases he can recover the duty paid or penalty paid from the person
who was required to bear it.
Question 57] Can penalty paid u/s 35 or 40 be refunded? By whom? How much? What is

the time limit for making application for refund of such penalty?
Ans.: Power to Revenue Authority to refund penalty or excess duty [Section 45]:
(1) Where any penalty is paid u/s 35 or 40, the Chief Controlling Revenue Authority may,
upon application in writing made within 1 year from the date of the payment, refund such
penalty wholly or in part.
(2) Where, it is opinion of the Chief Controlling Revenue Authority that excess stamp duty is
charged and paid u/s 35 or 40, such authority may, upon application in writing made
within 3 months of the order charging the same, refund the excess.
Question 58] Can person sending the impounded instrument to Collector incurs any
liability for loss or damage of instrument during the course of transmission?
Ans.: Non-liability for loss of instruments sent u/s 38 [Section 46]: If any instrument sent to the
Collector u/s 38 is lost, destroyed or damaged during transmission, the person sending the
same shall not be liable for such loss, destruction or damage.
When any instrument is about to be so sent, the person from whose possession it came into the
hands of the person impounding the same, may require a copy to be made at the expense of
such first mentioned person and authenticated by the person impounding such instrument.
Question 59] What are the provisions of Indian Stamp Act, 1899 regarding unstamped
bills and promissory notes?
Ans.: Power of payer to stamp bills and promissory notes received by him unstamped [Section 47]:
If unstamped bill of exchange or promissory note is presented for payment, the person to whom
it is so presented may affix the necessary adhesive stamp and can cancel such stamps. On
cancellation he can deduct amount equal to stamp affixed by him from the sum payable on
such bill of exchange or promissory.
However, nothing contained in this section shall relieve any person from any penalty or
proceeding to which he may be liable in relation to such bill or note.
Question 60] State the provisions of Indian Stamps Act, 1899 relating to recovery of
duties and penalties.
Ans.: Recovery of duties & penalties [Section 48]: All duties, penalties, and other sums required
to be paid under Chapter IV (Sections 33 to 48) may be recovered by the Collector by distress
and sale of the movable property of the person from whom the same are due, or by any other
process for the time being in force for the recovery of arrears of land-revenue.
Allowances & refunds for stamps in certain cases
Question 61] Refund/Allowance where stamp paper gets spoiled and where it is executed
but not used.
Ramesh & Prem wanted to execute a document, keeping that in mind, the documents
were duly stamped. Now, that a dispute has arisen and they do not wants to go ahead
with the document. Accordingly documents remained unexecuted (i.e. unsigned).
Explain the time limit for making application for refund u/s 49 of the Indian Stamp Act,
1899. Also explain the time limit for the application for relief and refund, if the
document are executed by any of the parties. CS (Final) – Dec 2003 (5 marks)
Ans.: Allowance for spoiled stamps before document is executed [Section 49(a) to (c)]: If after
purchase of stamp paper it becomes unfit because of it is spoiled, obliterated or there is error
while writing on it, then application can be made for refund. However, such stamp paper
should not be executed (i.e. signed).

Allowance for spoiled stamps after document is executed [Section 49(d)]: If bill of exchange (not
payable on demand) or promissory note is signed but has not been accepted or made use in
any manner and have not been delivered to any person, allowances for impressed stamp can be
claimed.
If stamp paper is purchased and executed (i.e. signed) after writing, refund can be claimed in
following circumstance.
(1) Document was found void under any law.
(2) Document found unfit for the purpose for which it is purchased.
(3) One of the party refuses to sign.
(4) Purpose fails as one of the party refuses to act on the same.
(5) If it is deficient in value.
(6) If it is inadvertently spoiled.
Time limit for making application [Section 50]: The application for relief u/s 49 shall be made
within the following periods:
In the cases mentioned in 49(d)(5) Within 2 months of the date of the
instrument
In the case of a stamped paper on which no Within 6 months after the stamp has
instrument has been executed by any of the been spoiled
parties
In the case of a stamped paper in which an Within 6 months after the date of the
instrument has been executed by any of the instrument, or
parties If it is not dated, within 6 months after
the execution by the person by whom it
was first or alone executed.
When the spoiled instrument has been sent out Within 6 months after it has been
of India, the application may be made received back in India
When from unavoidable circumstances, any Within 6 months after the date of
instrument for which another instrument has execution of the substituted instrument.
been substituted cannot be given up to be
cancelled within the aforesaid period; the
application may be made
Question 62] Write a short note on: Allowances for printed form
Your company use printed forms on stamp papers. However, now it is felt that they will
not required in near future. As a Company Secretary advice regarding cancelling such
stamp paper and getting the amount refunded as per Section 51 of Indian Stamp Act,
1899.
Ans.: Allowance in case of printed forms no longer required by corporations [Section 51]: If some
companies, banks or incorporated bodies purchase stamp papers and print their forms on such
paper and if there are unable to use the same for any reason, they can claim refund.
Time limit: No time limit has been prescribed.
Who can allow such refund?
- Chief Controlling Revenue Authority [CCRA]
- Collector, if authorized by Chief Controlling Revenue Authority.
Question 63] Write a short note on: Allowance for misused stamps
Your company has purchase some stamps but latter on it was found that stamp paper
purchased are higher value than required. As a Company Secretary advise to M.D.
Ans.: Allowance for misused stamps [Section 52]: If wrong types of stamps are inadvertently used
or in advertently higher duty stamps are used, then refund/allowance can be claimed.
Procedure: Application has to be made to Collector within 6 months from the date of purchase.
Allowance for spoiled or misused stamps how to be made [Section 53]: In any case in which allowance
is made for spoiled or misused stamps, any one of following course may be adopted by Collector.

(1) Collector may give other stamps of the same description and value.
(2) Collector may give stamps of any other description to the same amount in value.
(3) Collector may give same value in money, deducting 10 naya paisa for each rupee or
fraction of a rupee. (i.e. Money will be given after deducting 10% of value of stamps)
Question 64] Write a short note on: Allowance for stamps not required for use
You have purchased some stamp, but soon after purchase find that they have no
immediate use. You want to get the refund the amount paid for stamp? Is this possible?
What is the procedure? How much you can get refund?
Ans.: Allowance for stamps not required for use [Section 54]: If a person does not need stamps
brought by him for immediate use, he can claim allowance/refund.
Conditions: Stamps should not be spoiled or rendered unfit.
Procedure: Application has to be made to Collector within 6 months from the date of purchase.
How much amount is refunded: Collector can repay to the person applied the value of such
stamp deducting 10 naya paisa for each rupee or portion of rupee. (Thus, effectively 90%
amount can be refunded).
Where the person is a licensed vendor of stamps, the Collector may refund whole amount.
Question 65] Mention the circumstances under which refund of stamp duty or penalty
may be made by the revenue authorities. CS (Executive) – June 2011 (4 Marks)
Ans.: As per the provisions of Sections 49 to 54 depending upon circumstances stamp duty can
be refunded in following cases:
(1) Spoiled stamps [Section 49]
(2) Printed forms no longer required by corporations [Section 51]
(3) Misused stamps [Section 52 & 53]
(4) Stamps not required for use [Section 54]
Question 66] Write a short note on: Allowances on renewal of certain debenture.
Your company wants to renew the old debenture. Explain with reference to provision of
Ans.: Allowance on renewal of certain debentures [Section 55]: If old debenture is renewed and on
both stamp duty is paid then stamp duty on old debenture is refundable.
Condition: Old debenture should be produced before cancellation to Collector.
Explanation to Section 55 says that provisions are also applicable in following cases:
 Issue of 2 or more debenture in place 1 old debenture. (Sub-division)
 Issue of 1 new debenture in place 2 or more old debenture. (Consolidation)
 Substitution of the name of the holder at the time of renewal for the name of the original
holder.
 Alteration of rate of interest or the dates of payment.
Question 67] Write a short note on: Reference and Revision under the Indian Stamp Act,
1899.
Ans.: Reference by Collector to CCRA [Section 56]: Collector of stamps is main authority under
the Act. His powers are subject to control of Chief Controlling Revenue Authority (CCRA). If
Collector feels doubt as to the amount of duty with which any instrument is chargeable, he may
refer it for the decision of CCRA. The CCRA shall consider the case and send a copy of its
decision to the Collector who shall proceed to assess and charge the duty in conformity with
such decision.
Reference by CCRA to High Court [Section 57]: If CCRA cannot decide a case then it may refer
such case to High Court. Similarly, if any other Court feels doubt about the amount of duty
payable, can make a reference to High Court.

Question 68] What is 'e-stamping'? Also, discuss its benefits.

Ans.: E-Stamping is a computer based application and a secured way of paying Non-Judicial
stamp duty to the Government. E-Stamping is currently operational in some States. The
prevailing system of physical stamp paper/franking is being replaced by E-stamping system.
Stock Holding Corporation of India Limited (SHCIL) is the only Central Record Keeping Agency
(CRKA) appointed by the Government of India. The CRKA is responsible for User Registration,
Imprest Balance Administration and overall E-Stamping application operations and
maintenance.
Benefits of E-Stamping:
 E-Stamp Certificate can be generated within minutes
 E-Stamp Certificate generated is tamper proof
 Authenticity of the e-Stamp certificate can be checked through the inquiry module
 E-Stamp Certificate generated has a Unique Identification Number
 Specific denomination is not required.
 E-stamp certificate can be checked by any person through recommended site.


REGISTRATION ACT, 1908

Property Assets
Transaction – Buy/ sell

Agreement to sale Govt charges, duty Registrar
TOPA Indian Stamp Act Registration
1) Documents that require registration – Sec 17
2) Documents that do not require registration – Sec 17(2)
3) Documents for which registration is optional – Sec 18
4) Registration of gift
5) Time limit for registration –
(a) For documents executed in India
(b) For documents executed outside India
6) Re-registration of documents
7) Place of registration
8) Presenting documents for registration
9) Wills
10) Effect of registration & non-registration
11) Misc. Provisions –
(1) Duties & powers of registering office
(2) Types of books to be maintained at the registering office
(3) Reasons when the registration may be refused
(4) Remedies available –
- Against sub-registrar & registrar
When they refuse registration
1. Registrable documents -
Compulsory registration of documents
1) Leases of immovable 2) Gift of immovable 3) Instrument which have

property from year to property effect of transfer of
year or greater than 1 immovable property of
year or reserving yearly value ≥ Rs. 100
rent
4) Instrument that acknowledges the 5) Any decree or order of

receipt/ payment of any consideration court or award -immovable
-Movable property property
2. Documents not requiring registration –
Composition/ Share transfer Debenture Transfer/

Settlement deed issue endowment
of debenture
Any document Any decree/ order Any grant of Partition of HUF -

where merely of court –Movable immovable loan/ securities
a right is transfer property property by govt
E.g. 1) Assignment
2) Declaration
Any loan/ Transfer of property Any endorsement Any certificate

instrument of to a treasurer as per on mortgage deed of sale granted
collateral Charitable Endowment acknowledging to purchaser of
security under Act payment of money any property
Land Improvement sold by public
Act/ Agriculturist’s auction by
Loan Act civil/ revenue
officer
3. Documents for which registration is optional –
1) Instruments 2) Instruments 3) Leases of 4) Decree or

(other than acknowledging immovable property order of court
gifts & wills) of the receipt/ ≤ 1 year or award in
value < Rs. 100 payment of any respect of
relating to right, title or any instrument
immovable interest of value ≤ Rs. 10
property of
immovable
property
5) Instrument that 6) Instrument titled wills 7) Other documents

create any right, title U/S 17(2)
or interest in
immovable property
4. Registration of gifts –
Donor Donee
Transfer
Valid transfer/ gift
A gift deed can be registered if the following essential elements are satisfied –
(1) The instrument is duly executed (i.e. signed by donor & donee – gift deed – with 2 witnesses
each).
(2) The instrument of gift has been handed over by donor to donee.
(3) Donee must accept the gift i.e. possession.
(4) The donee has presented the instrument of gift for registration within 4 months of execution
(further 4 months in case of urgent necessity and payment of fine can be condoned).
Notes –
1) Thus, while registration is necessary requirement (solemnity) for enforcement of a gift of
immovable property, it does not suspend the gift until the registration actually takes place.
2) Neither death nor the express revocation by the donor is a ground for refusing registration if
all the essential elements given above are complied with.
E.g.
Agreement
A
B
Donor Gift Donee
A dies before the transfer.

A’s legal heirs refuse to transfer the ownership of property as it was not a registered gift.
If donee presents the gift agreement for registration within a reasonable time, then the legal heirs
can’t refuse to transfer the gift.
And the gift deed is valid and binding.
5. Time limit for registration of documents –
Documents executed in India Documents executed outside India
To be presented for registration To be presented for registration

within 4 months from the date within 4 months after its arrival
of execution in India
However if there is a sufficient It must be registered in India to

cause, then registrar may give be a valid document
extra time of further 4 months
provided fine upto 10 times of
normal fees is paid
Note –
For any document of will – It can be presented for registration at any time.
If document is executed by several persons, it can be registered within 4 months from the date of
each execution.
6. Place of registration of document –
Documents relating to immovable property Other documents
Shall be registered in the office of registrar/ Shall be registered in the office of

sub-registrar registrar/ sub-registrar
Under whose jurisdiction the property is Where the person executing the
situated document desire to do so
Notes –
(1) Registrar – District area Sub-registrar – Sub-district area (villages, towns)
(2) If a movable property is situated under two or more jurisdictions, then registration of
documents can be made with any one registrar or sub-registrar where the parties decide to do
so.
7. Effect of registration of documents relating to immovable property –
Date of execution Oral agreement Effect of registration
Registered document If registered document On registration of a

Is valid from date of document, it will have
Execution & not from Then it will have priority priority over the
date of registration against oral unregistered document
of same property
(Refer note 1) (Refer note 2)
Notes –
(1) If there are two registered documents executed by same person in respect of same property to
different persons at two different times
The one executed first get priority over the other, even though it is registered subsequently.
(2) However in case of oral agreement, if possession is delivered or transferred, then the oral
agreement shall be a valid transfer.
8. Presenting document for registration –
(1) Person executing
(2) Person claiming under decree/ order
(3) Representative/ assignee
- Special power of attorney is required
- If it is presented for registration by a person other than mentioned, such presentation is
inoperative and registration of such document is void.
9. Effect of non-registration –
If a document is not registered Exceptions

-Does not affect the immovable property (1) However it can be received as
-does not confer any power on transferee evidence in suit for
-can not be received as evidence in court specific performance
of law (2) It can be received in evidence
in court U/S 53(A) of “TOPA”,Doctrine of part performance
10. Remedies available against refusal of registration –
- The aggrieved party can appeal to the registrar within 30 days against the order of sub-
registrar, on receiving such appeal; registrar can also refuse or order the sub-registrar to get the
document registered.
- Appeal to civil court can be made against the order of registrar, within 30 days of the order.
11. When may registrar refuse to register a document under Registration Act, 1908 –
(1) Description of property not sufficient to identify the same (Sec 21 & 22)
(2) Presentation of document out of time (Sec 23)
(3) Failure to pay fine (Sec 25)
(4) Presentation of documents in wrong registration office (Sec 28)
(5) Failure to pay registration fees
(6) Presentation of documents to proper person (Sec 32)
(7) Non-appearances of an executing party within time (Sec 34)
(8) Executants appearing to the registration office to be a minor, idiot or lunatic
(9) Failure to summon heirs of deceased executants U/S 36.
12. Wills (Sec 40-43) –
1) Registration of will is optional.
2) However, it can be presented for registration by the testator (person who makes the will)
himself or any person claiming under the will or the executor of the will.
3) Procedure –
a) Usually the will is deposited with the registrar in a sealed cover.
b) The registrar will make suitable entries and keep it in the fireproof box.
c) After the death of testator, application can be made to registrar to open the sealed cover.
Q No. 1. State the documents of which registration is compulsory under the Registration Act,
1908.
Q No. 2. State the documents of which registration is not compulsory under the Registration Act,
1908?
Q No. 3. Enumerate the documents, registration of which is optional under the provisions of the
Registration Act, 1908.
Q No. 4. State whether the following are compulsorily registerable or not under the Registration
Act, 1908;
(1) Lease agreement for tenancy of a residential flat for one year only.
(2) Lease agreement for one year containing an option to the tenant to renew it for a further period
of one year or any other term.
(3) Lease agreement exceeding one year.
(4) Lease agreement from year to year.
(5) Lease agreement for one year with an annual reserved rent.
Will.
Q No. 5. By an agreement, Anamika transferred to Bipasha a decree of a Court by which she was
entitled to possess 500 bighas of land. Is it necessary to register such a transfer under the
Registration Act, 1908?
Q No. 6. State whether the registration of a gift against donor’s wishes during his life time or after
his life time or after his death is effective.
Q No. 7. Amrit executed a gift deed in his life time in favour of Bhanu. The gift deed was not
registered during the life time of Amrit. Bhanu, after death of Amrit, presented the gift deed
before the Registrar for its registration. Rakshit, brother of Amrit raised an objection for the
registration of gift deed on the ground of fake signatures of Amrit. But the witnesses to the gift
deed contended that the signatures were made before them by the donor at the time of execution
of gift deed. Whether the gift deed will be treated valid for registration under the Registration Act,
1908?
Q No. 8. Tom has donated a piece of immovable property to his major son Wise. Before the
instrument could be registered, Tom died. By virtue of the will in favour of Mrs. Tom, she desires
to revoke the gift to Wise, as the instrument is still not registered under the Registration Act,
1908? Will Wise succeed in retaining the gift received from Tom?
Q No. 9. What is the time limit for registration of documents?
Q No. 10. What are the provisions relating to registration of documents executed out of India?
Q No. 11. A document executed on 2nd January 2015 was presented for registration under the
Registration Act, 1908 on 31st August 2015. The registering authorities refused to accept the
document for registering on the ground that it was time-barred. Decide.
Q No. 12. Ankur has made a gift of a house to Bhaskar. Ankur has signed on the gift deed and
handed over the possession of the house to Bhaskar. Ankur did not want gift deed to be
registered. After sometime, Ankur dies. There was a long delay in the registration of the gift deed.
Whether the period of delay may be condoned by the Registrar for the registration of gift deed
even after the death of the donor under the Registration Act, 1908.
Q No. 13. Mr. Rajan had executed a sale document outside India on 2nd January 2017. He came
to India on 6th June 2018 and presented the document for registration. Would the registrar
accept the document? Would the document be valid if not registered in India?
Q No. 14. A document was executed outside India and it was presented for registration after a
lapse of four months from the date of its arrival in India. Whether the document may be accepted
for registration by the Registrar? Decide.
Q No. 15. Explain the provisions regarding re-registration of certain documents under Section
23A of Registration Act, 1908.
Q No. 16. A document was executed by several person at different times. The person in whose
favour such execution was made, presented the documents for re-registration after expiry of 3
months. Whether such documents can be registered and if yes, within what period?
Q No. 17. What are the provisions relating to place of registration in regard to documents of land
and other document?
Q No. 18. State the places where documents effecting immovable property may be presented for
registration under the Registration Act, 1908
Q No. 19. Rohit executes a sale deed of a house in favour of Prem. The house is situated at
NOIDA, but the transferor and transferee want the sale deed to be registered at Lucknow, which
is the capital of the State. Can they do so?
Q No. 20. Who can present the document for registration?
Q No. 21. What are the consequences in case a document for registration is presented by a
person other than the party entitled to present it?
Q No. 22. Bijoy executed a contract for purchasing a piece of land in Delhi from Ajoy. Just after
the execution of contract, Bijoy proceeded to England and he is not expected to return to India
before six months. Chirag, a good friend of Ajoy who has general power of attorney to act on
behalf of Bijoy, gets the said sale deed registered. Is this registration valid?
Q No. 23. Write a short note on: Registration of wills
Is the registration of a will optional under the Registration Act, 1908? Explain the manner in which
it may be presented for registration.
Q No. 24. Explain the effect of registration of documents relating to immovable property?
Q No. 25. Registration of documents relates back to the date of their execution. Comment.
Q No. 26. There are two registered documents executed by same persons in respect of the same
property to two different persons at two different times. One document was executed on 1st
October, 2018 where as the other document was executed on 20th October, 2018. However, the
document executed on 1st October, 2018 was registered subsequent to the registration of the
other document. State which documents gets priority over the other under the provisions of the
Registration Act, 1908.
Q No. 27. What is the effect of non-registration of documents requiring compulsory registration
under the Registration Act, 1908?
Q No. 28. Ashok sells a house to Vinay by a written document and delivers possession to Vinay,
but the document is not registered. After one year, Ashok sues Vinay to take back the possession
of the property on the ground that non-registration of a document has no validity. Will Ashok
succeed? Which doctrine of law can be invoked by Vinay in his defence?
Q No. 29. Discuss the remedies available to a person who has been refused to register a
document by a Sub-Registrar. Can registration of documents be refused on the ground of under
valuation for stamp duty?
Q No. 30. Gopal has filed a document regarding purchase of a piece of land for registration in
his name. The Sub-Registrar has refused to register the document without stating any reason for
such refusal. Explain the powers of the Registrar to refuse registration and the steps that Gopal
has to take in the circumstances.
Registration Act, 1908 15.10
Chapter
15 Registration Act, 1908
Introduction: The main purpose of registration of documents is to provide a method of public

registration of documents so as to give information to people regarding legal rights and
obligations arising or affecting a particular property and to perpetuate documents which may
afterwards be of legal importance, and also to prevent fraud. Registration ensures and
safeguards the interest of an intending purchaser.
Thus, the Registration Act, 1908 was designed to ensure that correct land records could be
maintained. The Act is also used for proper recording of transactions relating to other immovable
property. The Act provides for registration of other documents also, which can give these
documents more authenticity. Registering authorities have been provided in all the districts for
this purpose. The Registration Act, 1908 extends to the whole of India except the State of
Jammu and Kashmir. It came in force on 1st January, 1909.
Registrable Documents
Question 1] State the documents of which registration is compulsory under the

Registration Act, 1908. CS (Executive) – June 2010 (4 Marks), Dec 2011 (4 Marks)
Ans.: Documents of which registration is compulsory [Section 17(1)]: The following documents
shall be registered namely:
(a) Instruments of gift of immovable property
(b) Other non-testamentary instruments which purport or operate to create, declare, assign,
limit or extinguish, whether in present or in future, any right, title or interest, whether
vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable
property
(c) Non-testamentary instruments which acknowledge the receipt or payment of any
consideration on account of the creation, declaration, assignment, limitation or extinction
of any such right, title or interest
(d) Leases of immovable property from year to year, or for any term exceeding one year, or
reserving a yearly rent
(e) Non-testamentary instruments transferring or assigning any decree or order of a court or
any award when such decree or order or award purports or operates to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of `100 and upwards, to or in immovable
property
Provided that the State Government may by order published in the Official Gazette exempt from
registration any leases, the terms granted by which do not exceed 5 years and the annual rent
reserved by which do not exceed `50.
What is a non-testamentary document?
A testamentary document is a Last Will and testament or some other document that meets the
statutory requirements of a Will. Non-testamentary documents would be documents that are not
related to a Last Will and testament.
It was held by the Privy Council, that while registration is a necessary solemnity for the enforcement of
a gift of immovable property, it does not suspend the gift until registration actually takes place, when

the instrument of gift has been handed over by the donor to the donee and accepted by him, the former
has done everything in his power to complete the donation and to make it effective and if it is presented
by a person having necessary interest within the prescribed period the Registrar must register it.
Neither death nor the express revocation by the donor, is a ground for refusing registration, provided
other conditions are complied with. [Kalyan Sundaram Pillai vs. Karuppa Mopanar, AIR 1927 PC 42]
Delay in registration of a gift does not postpone its operation. Section 123, Transfer of Property Act,
1882 merely requires that donor should have signed the deed of gift. Hence a gift deed can be
registered even if the donor does not agree to its registration. [Kalyan Sundaram Pillai vs. Karuppa
Mopanar, AIR 1927 PC 42]; [Venkata Rama Reddy v. Pillai Rama Reddy, AIR 1923 Mad. 282]
Question 2] State the documents of which registration is not compulsory under the
Registration Act, 1908? CS (Inter) – Dec 2004 (5 Marks), June 2008 (4 Marks)
Ans.: Documents not requiring registration [Section 17(2)]: Section 17(1)(b) & (c) provides that the
non-testamentary documents therein must be registered but subject to the exceptions as
provided under Section 17(2). These are as follows:
(a) Any composition deed i.e. every deed the essence of which is composition or
(b) Any instrument relating to share in joint stock company or
(c) Any debenture issued by any company or
(d) Any endorsement upon or transfer of any debenture or
(e) Any document other than document specified in Section 17(1A) creating merely a right to
obtain another document which will, when executed create declare, assign, limit or
extinguish any such right, title or interest; or
(f) Any decree or order of a Court or
(g) Any grant of immovable property by the Government or
(h) Any instrument of partition made by Revenue-officer or
(i) Any order granting a loan or instrument of collateral security granted under the Land
Improvement Act, 1871, or the Land Improvement Loans Act, 1883 or
(j) Any order granting loan made under the Agriculturists Loans Act, 1884 or instrument for
securing the repayment of a loan made under that Act or
(k) Any order made under the Charitable Endowments Act, vesting any property in a Treasurer
of a charitable endowments or diverting any such Treasurer of any property or
(l) Any endorsement on a mortgage deed acknowledging the payment of the whole or any part
of the mortgage money, and any other receipt for payment of money, due under a mortgage
when the receipt does not purport to extinguish the mortgage or
(m) Any certificate of sale granted to the purchaser of any property sold by public auction by
Civil or Revenue Officer.
Question 3] Enumerate the documents, registration of which is optional under the

provisions of the Registration Act, 1908.
Ans.: Documents of which registration is optional [Section 18]: Any of the following documents
may be registered, namely:
(i) Instruments (other than instruments of gift and wills) which purport or operate to create,
declare, assign, limit or extinguish, whether in present or in future, any right, title or
interest, whether vested or contingent, of a value less than `100, to or in immovable
property.
(ii) Instruments acknowledging the receipt or payment of any consideration on account of the
creation, declaration, assignment, limitation or extinction of any such right, title or
interest.
(iii) Leases of immovable property for any term not exceeding one year, and leases exempted
u/s 17.

(iv) Instruments transferring or assigning any decree or order of a court or any award when
such decree or order or award purports or operates to create, declare, assign, limit or
extinguish, whether in present or in future, any right, title or interest, whether vested or
contingent, of a value less than one hundred rupees, to or in immovable property.
(v) Instruments (other than wills) which purport or operate to create, declare, assign, limit or
extinguish any right, title or interest to or in movable property.
(vi) Wills
(vii) All other documents not required by Section 17 to be registered.
Question 4] State whether the following are compulsorily registerable or not under the
Registration Act, 1908;
(1) Lease agreement for tenancy of a residential flat for one year only.
(2) Lease agreement for one year containing an option to the tenant to renew it for a
further period of one year or any other term.
(3) Lease agreement exceeding one year.
(4) Lease agreement from year to year.
(5) Lease agreement for one year with an annual reserved rent.
(6) Will. CS (Final) – June 1998 (6 Marks)
Ans.:
(1) Registration of document relating to lease agreement for tenancy of a residential flat for one
year is not compulsory.
(2) Not compulsory as it is not a lease for a term exceeding one year.
(3) Compulsorily registerable however small the rent may be.
(4) Compulsorily registerable irrespective of the rental value.
(5) Registration of lease agreement for one year with an annual reserve rent is not compulsory.
A lease of one year or reserving a yearly rent can be made only by a registered instrument.
But where the lease is only for one year with a reserved rent for the period for which it has
been granted, viz. one year, it does not require registration.
(6) Registration of will is optional.
Question 5] By an agreement, Anamika transferred to Bipasha a decree of a Court by

which she was entitled to possess 500 bighas of land. Is it necessary to register such a
transfer under the Registration Act, 1908? CS (Inter) – June 2006 (5 Marks)
Ans.: The documents of which registration is compulsory are enumerated in Section 17 of the
Registration Act, 1908. As per Section 17(1)(e) non-testamentary instruments transferring or
assigning any decree or order of a Court or any award to create interests are required to be
compulsorily registered.
Hence, transfer of decree of a Court by Anamika to Bipasha will have to be compulsorily
registered.
Question 6] State whether the registration of a gift against donor’s wishes during his life
time or after his life time or after his death is effective.
Whether a donor can revoke the gift on the ground that the gift is not complete until the
deed is registered?
Ans.: It was held by the Privy Council in Kalyana Sundram v. Karuppa, AIR 1927 PC 42, that
while registration is a necessary solemnity for the enforcement of a gift of immovable property,
it does not suspend the gift until registration actually takes place, when the instrument of gift
has been handed over by the donor to the donee and accepted by him, the former has done
everything in his power to complete the donation and to make it effective and if it is presented
by a person having necessary interest within the prescribed period the Registrar must register

it. Neither death nor the express revocation by the donor, is a ground for refusing registration,
provided other conditions are complied with.
Question 7] Amrit executed a gift deed in his life time in favour of Bhanu. The gift deed
was not registered during the life time of Amrit. Bhanu, after death of Amrit, presented
the gift deed before the Registrar for its registration. Rakshit, brother of Amrit raised an
objection for the registration of gift deed on the ground of fake signatures of Amrit. But
the witnesses to the gift deed contended that the signatures were made before them by
the donor at the time of execution of gift deed. Whether the gift deed will be treated
valid for registration under the Registration Act, 1908?
Ans.: In the case the donor dies before registration of a document, the document may be
presented for registration after his death and if registered will have the same effect as it was
registered in his life time.
It was held by the Privy Council in Kalyana Sundram v. Karuppa, AIR 1927 PC 42, that while
registration is a necessary solemnity for the enforcement of a gift of immovable property, it does
not suspend the gift until registration actually takes place, when the instrument of gift has
been handed over by the donor to the donee and accepted by him, the former has done
provided other conditions are complied with.
Question 8] Tom has donated a piece of immovable property to his major son Wise.
Before the instrument could be registered, Tom died. By virtue of the will in favour of
Mrs. Tom, she desires to revoke the gift to Wise, as the instrument is still not registered
under the Registration Act, 1908? Will Wise succeed in retaining the gift received from
Tom? CS (Final) – June 2002 (6 Marks)
It was held by the Privy Council in Kalyana Sundram v. Karuppa, AIR 1927 PC 42, that while
registration is a necessary solemnity for the enforcement of a gift of immovable property, it does
not suspend the gift until registration actually takes place, when the instrument of gift has
been handed over by the donor to the donee and accepted by him, the former has done
provided other conditions are complied with. Hence, Wise will succeed in retaining the gift.
Time of Presentation
Question 9] What is the time limit for registration of documents?

What are the provisions relating to registration of documents executed out of India?
Ans.: Provisions relating to time limit for registration of documents are as follows:
(1) Time for presenting documents [Section 23]: Document other than a will shall be accepted
for registration within 4 months from the date of its execution.
A copy of a decree or order may be presented within 4 months from the date on which the

decree or order was made. If such decree or order is appealable then it can be presented for
registration within 4 months from the day on which it becomes final.
(2) Documents executed by several persons at different times [Section 24]: Where there are
several persons executing a document at different times, such document may be presented
for registration and re-registration within 4 months from the date of each execution.
(3) Provision where delay in presentation is unavoidable [Section 25]: If, owing to urgent
necessity or unavoidable accident, any document executed, or copy of a decree or order
made, in India is not presented for registration within 4 months, the Registrar may register
the documents in next 4 months on payment of a fine not exceeding 10 times the amount of
the proper registration-fee.
(4) Documents executed out of India [Section 26]: When a document have been executed out of
India is not presented for registration within 4 months from the date of execution then
registering officer may register within 4 months after its arrival in India on payment of the
proper registration fee.
A document executed outside India is not valid unless it is registered in India. [Nainsukhdas
v. Gowardhandas, AIR 1948 Nag. 110]
(5) Section 27 deals with presentation of will. Wills can be presented for registration at any
time.
Question 10] A document executed on 2nd January 2015 was presented for registration
under the Registration Act, 1908 on 31st August 2015. The registering authorities
refused to accept the document for registering on the ground that it was time-barred.
Decide. CS (Final) – Dec 2001 (2 Marks)
Ans.: Section 24 of the Registration Act, 1908 provides a time limit of 4 months for registration
of documents. Section 25 provides a further period of 4 months in cases of urgent necessity and
unavoidable accident on payment of a fine up to 10 time of normal fee. Thus, a maximum
period for presenting a document for registration is 8 months under Section 23 read with
Section 25. Therefore, in the instant case, if the grounds provided under Section 25 are pressed
and accepted, the Registering Authorities cannot refuse to accept the document for registration.
Question 11] Ankur has made a gift of a house to Bhaskar. Ankur has signed on the gift
deed and handed over the possession of the house to Bhaskar. Ankur did not want gift
deed to be registered. After sometime, Ankur dies. There was a long delay in the
registration of the gift deed. Whether the period of delay may be condoned by the
Registrar for the registration of gift deed even after the death of the donor under the
Registration Act, 1908. CS (Inter) – Dec 2007 (5 Marks)
As per Section 23 of the Registration Act, 1908, document other than a will shall be accepted
for registration within 4 months from the date of its execution. Section 25 provides a further
period of 4 months in cases of urgent necessity and unavoidable accident on payment of a fine
up to 10 time of normal fee. Thus, a maximum period for presenting a document for
registration is 8 months under Section 23 read with Section 25.
Hence, in this case the period of delay can be condoned by the Registrar on sufficient cause,
but up to only 8 months and upon payment of fine.
Question 12] Mr. Rajan had executed a sale document outside India on 2 nd January
2017. He came to India on 6th June 2018 and presented the document for registration.
Would the registrar accept the document? Would the document be valid if not registered
in India? CS (Final) – June 1995 (5 Marks)

Ans.: When a document have been executed out of India is not presented for registration within
4 months from the date of execution then registering officer may register within 4 months after
its arrival in India on payment of the proper registration fee.
A document executed outside India is not valid unless it is registered in India. [Nainsukhdas v.
Gowardhandas, AIR 1948 Nag. 110]
Thus, if Rajan has presents the document within 4 months from the 6th June 2018, the
Registrar has to register document.
Question 13] A document was executed outside India and it was presented for
registration after a lapse of four months from the date of its arrival in India. Whether
the document may be accepted for registration by the Registrar? Decide.
CS (executive) – June 2010 (6 Marks)
Ans.: As per Section 26 of the Registration Act, 1908, when a document have been executed out
of India is not presented for registration within 4 months from the date of execution then
registering officer may register within 4 months after its arrival in India on payment of the
proper registration fee.
Section 25, gives the power to Registrar to give extra time for 4 months for a fine up to 10 times
the normal registration fee. This provision is not applicable for documents executed outside
India. Thus, the Registrar has the right to refuse registration of document presented for
registration after a lapse of four months from the date of its arrival in India.
Question 14] Explain the provisions regarding re-registration of certain documents

under Section 23A of Registration Act, 1908.
CS (Final) – Dec 1996 (6 Marks), Dec 1999 (6 Marks)
Ans.: Re-registration of certain documents [Section 23A]: If any person finds that, a document
has been filled for registration by a person who is not empowered to do so, such person can
present the document for re-registration within 4 months from the date be become aware of the
fact that registration of document is invalid.
Question 15] A document was executed by several person at different times. The person
in whose favour such execution was made, presented the documents for re-registration
after expiry of 3 months. Whether such documents can be registered and if yes, within
what period? CS (Executive) – Dec 2008 (5 Marks), June 2011 (5 Marks)
Ans.: As per Section 23 of the Registration Act, 1908, document other than a will shall be
accepted for registration within 4 months from the date of its execution. Section 25 provides a
further period of 4 months in cases of urgent necessity and unavoidable accident on payment
of a fine up to 10 time of normal fee. Thus, a maximum period for presenting a document for
registration is 8 months under Section 23 read with Section 25.
As per Section 23A, if any person finds that, a document has been filled for registration by a
person who is not empowered to do so, then such person can present the document for re-
registration within 4 months from the date he become aware of the fact that registration of
document is invalid.
In given case, the document was executed by several persons at different times. The person in
whose favour such execution was made presented the document for re-registration after the
expiry of 3 months. Thus, period of 4 months has not been expired from the date he become
aware of the fact that registration of document is invalid. Hence, document is presented within
statutory time limit and hence can be registered by Registrar on payment of normal fees.
Place of Registration
Question 16] What are the provisions relating to place of registration in regard to

documents of land and other document? CS (Final) – June 1999 (6 Marks)

State the places where documents effecting immovable property may be presented for
registration under the Registration Act, 1908. CS (Inter) – June 2006 (6 Marks)
Ans.: Place for registering documents relating to land [Section 28]: Document relating to
immovable property should be registered in the office of Sub-registrar of Sub-district under
whose jurisdiction whole or some property is situated.
Place for registering other documents [Section 29]: Other document can be registered in the office
of such sub-registrar, where all the persons executing the document desire it to be registered.
Question 17] Rohit executes a sale deed of a house in favour of Prem. The house is
situated at NOIDA, but the transferor and transferee want the sale deed to be registered
at Lucknow, which is the capital of the State. Can they do so?
Ans.: As per Section 28 of the Registration Act, 1908, document relating to immovable property
should be registered in the office of Sub-registrar of Sub-district under whose jurisdiction
whole or some property is situated. In a given case house is situated at Noida, hence
documents can be registered at Noida and not at Locknow.
Presenting documents for registration
Question 18] Who can present the document for registration?

What are the consequences in case a document for registration is presented by a person
other than the party entitled to present it?
CS (Final) – Dec 1997 (5 Marks), June 2000 (8 Marks)
Ans.: Persons to present documents for registration [Section 32]: Every document to be registered
shall be presented at the proper registration office:
(a) By some person executing or claiming under the same, or, in the case of a copy of a decree
or order, claiming under the decree or order, or
(b) By the representative or assignee of such a person, or
(c) By the agent of such a person duly authorized by power-of-attorney.
It is to be noted that, for the purpose of Section 32 special power of attorney is required, a
general power of attorney will not do.
It is immaterial whether the registration is compulsory or optional but if document is presented
for registration by a person other than a party mentioned in Section 32, such presentation is
wholly inoperative and the registration of such a document is void. [Kishore Chandra Singh v.
Ganesh Prashad Singh, AIR 1954 SC 316]
Question 19] Bijoy executed a contract for purchasing a piece of land in Delhi from Ajoy.
Just after the execution of contract, Bijoy proceeded to England and he is not expected
to return to India before six months. Chirag, a good friend of Ajoy who has general power
of attorney to act on behalf of Bijoy, gets the said sale deed registered. Is this
registration valid? CS (Inter) – June 2007 (5 Marks)
Ans.: As per Section 32 of the Registration Act, 1908, document for registration can be
presented at the proper registration office by the agent duly authorized by power-of-attorney of
a person executing document. It is to be noted that, for the purpose of Section 32 special power

of attorney is required, a general power of attorney will not do. As per facts given in case Ajoy
has general power of attorney to act on behalf of Bijoy and hence registration effected by Ajoy is
not valid.
Wills
Question 20] Write a short note on: Registration of wills

Is the registration of a will optional under the Registration Act, 1908? Explain the
manner in which it may be presented for registration. CS (Inter) – June 2003 (5 Marks)
Ans.: As per Section 18, registration of will is optional. In Celestine Silva Bai v. Josphin Noronh
Bai Madras HC held that the mere fact that a will is not registered is not much a circumstances
as must ispo facto fell against its genuineness. For non-registration may be due to a dislike for
publicity of the agreement that one may make or to avoid expense and trouble. Hence, the
registration of will is optional.
Persons entitled to present Wills and authorities to adopt [Section 40]:
(1) The testator, or after his death executor may present it for registration.
(2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may
present it to for registration.
Registration of Wills and authorities to adopt [Section 41]:
(a) A will or an authority to adopt may be registered in the same manner as any other
document.
(b) A will or authority to adopt presented for registration by any other person it shall be
registered if the registering officer is satisfied that:
(i) The will or authority was executed by the testator or donor
(ii) The testator or donor is dead and
(iii) The person presenting the will or authority is entitled to present the same.
Question 21] Explain the provisions of the Registration Act, 1908 relating to “Deposit of
will”.
Ans.:
(1) Deposit of Wills [Section 42]: Any testator may, either personally or by duly authorized
agent, deposit with any Registrar his will in a sealed cover.
(2) Procedure on deposit of Wills [Section 43]: On receiving such cover, the Registrar, shall
transcribe in his Book No. 5 the superscription appearing on the sealed envelope. The
Registrar shall then place and retain the sealed cover in his fireproof box.
(3) Withdrawal of sealed cover deposited [Section 44]: The testator can withdraw sealed cover
either personally or by duly authorized agent. If Registrar is satisfied that the applicant is
actually the testator or his agent, shall deliver the cover accordingly.
(4) Proceedings on death of depositor [Section 45]: On the death of a testator application can be
made to the Registrar to open the same. If the Registrar is satisfied that the testator is
dead, he shall open the cover at applicant's presence and will make suitable entries in his
Book No. 3. When such copy has been made, the Registrar shall re-deposit the original will.
Effect of Registration & Non-registration
Question 22] Explain the effect of registration of documents relating to immovable

property? CS (Final) – Dec 2000 (6 Marks)
Registration of documents relates back to the date of their execution. Comment.
Ans.: Time from which registered document operates [Section 47]: A document when registered
takes effect from the date of execution and not from the time of its registration.
Example: Ram executes the document on 24.6.2015 and the same is registered on 18.7.2015.

Thus, on registration document takes effect from the date of execution i.e. 24.6.2015 and not
from 18.7.2015 i.e. date of registration.
As between two registered documents, the date of execution determines the priority. Of the two
registered documents, executed by same persons in respect of the same property to two
different persons at two different times, the one which is executed first gets priority over the
other, although the former deed is registered subsequently to the later one. [K.J. Nathan v. S.V.
Maruthi Rai, AIR 1965 SC 430]
Question 23] There are two registered documents executed by same persons in respect
of the same property to two different persons at two different times. One document was
executed on 1st October, 2018 where as the other document was executed on 20 th
October, 2018. However, the document executed on 1 st October, 2018 was registered
subsequent to the registration of the other document. State which documents gets
priority over the other under the provisions of the Registration Act, 1908.
Ans.: Effect of registration can be stated as follows:

(1) A registered document has priority over unregistered document.
(2) A document when registered takes effect from the date of execution and not from the time
of its registration. [Section 47]
As between two registered documents, the date of execution determines the priority of the two
registered documents executed by same persons in respect of the same property to two different
persons at two different times, the one which is executed first under Section 47 gets priority
over the other. This is the position even though the former deed is registered subsequently to
the later one [K.J. Nathan v. S.V. Maruthi Rai, AIR 1965 SC 430]
Therefore, the document executed on 1.10.2015 gets priority over the document executed on
20.10.2015 even though the first document was registered subsequently.
Question 24] What is the effect of non-registration of documents requiring compulsory

registration under the Registration Act, 1908?
Ans.: Effect of non-registration of documents [Section 49]: Documents not registered u/s 17 or
under the Transfer of Property Act, 1882 –
(a) Does not affect any immovable property comprised therein, or
(b) Does not confer any power to adopt (a son), or
(c) Cannot be received as evidence of any transaction affecting such property or conferring
such power.
Exception (i.e. cases in which unregistered document can be received as evidence): An
unregistered document affecting immovable property may be received
- As evidence in a suit for specific performance under the Specific Relief Act, 1877, or
- As evidence of part performance of a contract for the purposes of Section 53A of the
Transfer of Property Act, 1882, or
- As evidence of any collateral transaction.
It has been held that, it is settled legal principle that an unstamped instrument is not at all admissible
in evidence even for collateral purpose. But an unregistered instrument originally unstamped, if duly
stamped subsequently can be admitted in evidence even though it continues to be unregistered for
collateral purpose but actual terms of transaction cannot be looked into. In instant case, however
settlement deed in question produced by defendant was not only unregistered but also insufficiently
stamped. That apart on an objection raised by plaintiff, Court had already passed an order directing
impounding of document, which was never complied with by defendant. In such circumstances,
document in question, which still remained insufficiently stamped could not be admitted in evidence
even for collateral purpose. Application filed by defendant seeking to admit said document for collateral

purpose is liable to be dismissed. [K. Narasimha Rao v. Sai Vishnu, AIR 2006 NOC (A.P.) p. 80]
Question 25] Ashok sells a house to Vinay by a written document and delivers
possession to Vinay, but the document is not registered. After one year, Ashok sues
Vinay to take back the possession of the property on the ground that non-registration of
a document has no validity. Will Ashok succeed? Which doctrine of law can be invoked
by Vinay in his defence? CS (Inter) – Dec 2004 (5 Marks)
Ans.: As per Section 49 of the Registration Act, 1908, documents not registered does not affect
any immovable property comprised therein, or cannot be received as evidence of any
transaction affecting such property. However, an unregistered document affecting immovable
property may be received as evidence of part performance of a contract for the purposes of
Section 53A of the Transfer of Property Act, 1882 or as evidence of any collateral transaction.
As per the facts given in case, Vinay has possession of the a house which has been taken from
Ashok through written agreement and if Vinay has paid consideration to Asohk or ready to
perform his part then case falls under Section 53A of the Transfer of Property Act, 1882 and
even though document not registered it can be received as evidence as per Section 49 of the
Registration Act, 1908. Hence, Ashok will not succeed.
Duties & Powers of Registering Officers
Question 26] Which types of books are maintained at Registrars office?

Discuss the duties of Registrar in relation to documents presented for registration.
Ans.: Register books to be kept in the several offices [Section 51]: The following books are kept at
registering office:
A At All Registration Office
Book 1 Register of Non-testamentary document relating to immovable property
Book 2 Records of reasons for refusal to register
Book 3 Register of wills & authorities to adopt
Book 4 Register – for optional document u/18
B At office of Registrar
Book 5 Register of deposit of wills
Duties of registering officers when document presented [Section 52]: The day, hour and place of
presentation, and the signature of every person presenting a document for registration, shall be
endorsed on every document at the time of presenting it:
(a) A receipt for such document shall be given by the registering officer to the person
presenting the same and
(b) Every document admitted to registration shall without unnecessary delay be copied in the
appropriate book.
All such books shall be authenticated from time to time as prescribed by Inspector General.
Entries to be numbered consecutively [Section 53]: All entries in each book shall be numbered in
a consecutive series, which shall commence and terminate with the year, a fresh series being
commenced at the beginning of each year.
The registering officer should enter the registration in the proper book. However, if by mistake
and in good faith, the registration was entered in wrong book, it will not make the registration
invalid.
Certificate of registration [Section 60]: If all the provisions relating to registration has been
complied with, the registering officer shall endorse thereon a certificate containing the word
"registered ", together with the number and page of the book in which the document has been
copied.

Such certificate shall be signed, sealed and dated by the registering officer, and shall then be
admissible for the purpose of proving that the document has been duly registered in manner
provided by the Act.
Question 27] Discuss the remedies available to a person who has been refused to register
a document by a Sub-Registrar. Can registration of documents be refused on the ground
of under valuation for stamp duty? CS (Inter) – June 2007 (6 Marks)
Ans.:
(1) Reasons for refusal to register to be recorded [Section 71]: When Sub-Registrar refuses to
register a document then he has to record the reason for refusing in Book No. 2. He also
has to endorse the words ‘Registration Refused’ on documents. If party makes application
for getting the reasons of refusal, the Sub-Registrar has to give it without payment.
(2) Appeal to Registrar from orders of Sub-Registrar refusing registration [Section 72]: Appeal can
be made to Registrar within 30 days against the order of Sub-Registrar and on receiving
such appeal Registrar can also refuse or order the Sub-Registrar to get the document
registered.
If the Registrar finds that the document has been executed and that the said requirements
have been complied with, he shall order the document to be registered. [Section 75]
(3) Suit in case of order of refusal by Registrar [Section 77]: If Registrar also refuses to register
the document then appeal can be filed in Civil Court within 30 days from the date of refusal
by Registrar.
Under valuation of stamp duty is not a valid ground for refusing registration of documents. If Sub-
Registrar is doubtful as to proper value of stamps affixed, he can refer the case to Collector to be
adjudicated.
Question 28] Gopal has filed a document regarding purchase of a piece of land for
registration in his name. The Sub-Registrar has refused to register the document
without stating any reason for such refusal. Explain the powers of the Registrar to refuse
registration and the steps that Gopal has to take in the circumstances.
CS (Final) – Dec 2001 (6 Marks), June 2002 (6 Marks)
Ans.: Section 71 requires every Sub-Registrar to record reasons for refusal to register a
document except where the property is not situated in his sub-district. Therefore, Sub-
Registrar refusal to register the document without stating any reason for such refusal is not in
accordance with the provisions of Section 71 of the Registration Act, 1908.
Thus, in terms of Section 72(1) of the Act, Mr. Gopal has right to file an appeal to the Registrar
to whom such Sub-Registrar is subordinate, within 30 days of the order of the Sub-Registrar.
The Registrar after examining the case may reverse or alter the order of Sub-Registrar.
* * * * * * * * * * *

RIGHT TO INFORMATION ACT, 2005

1)Scope of the act The act came into force on 12 th October, 2005. It extends to whole of India except
Jammu and Kashmir.
1. SC – In case of State of Rajasthan v/s Raj Narain
Observed that “in a govt of responsibility like ours, the agent of public must be
responsible for their conduct to the people of this country”.
2. Article 19(1)(a) of the constitution guarantees to all citizens freedom of speech
and expression.
3. RTI Act, 2005 received the President assent on June 15, 2005.
2)Objectives To bring transparency and accountability in the working of every public authority.
Obligation of public authority- sec 4
1. To maintain records and publish manuals, rules, regulations etc.
2. To publish the information about various particulars within 120 days of the
enactment.
3)Features of the 1. Act applies to public authorities.
act 2. All citizens shall have right to information, subject to the other provisions of act.
3. PIO (Public Information Officer) – responsible - to deal with request for
information and also assist persons seeking information.
4. Fees- payable by applicant depending on the nature of information sought.
5. Specified category of information is exempted from disclosure as per section 8 &
section 9 of the act.
6. To provide transparency in public offices working & accountability.
4)Definitions 1. Public Authority- sec 2(h)
Means any authority or body or institution of self government established or
constituted by or under-
a. The constitution
b. Law made by parliament
c. Law made by state legislature
d. Notification issued or order made by appropriate government.
2. Record- sec 2(i)
It includes-
a. Any document, manuscript (handwritten) & file
b. Microfilm, microfiche & fax copy of documents
c. Reproduction of image or images embodied in such microfilm
d. Other material produced by a computer or any other device.
2. Information-
It means any material in any form including records, documents, memos, emails,
opinions, advices, press releases, circulars, orders, logbooks, contracts, reports,
samples, model data, material held in any electronic form.
3. Right to information-
It means the RTI accessible under this act, held by or under the control of any
public authority and includes right to-
1) Take notes, extracts or certified copies of documents and records
2) Inspect work, documents, records

3) Take certified samples of material
4) Obtain information in the form of disks, floppies, tapes, video cassettes or in any
other electronic mode, where such information is stored in a computer or in any
other devices.
4. Third party-
Person other than citizen making a request for information and includes public
authority.
5)Obligation of 1) Info of organisation, functions and duties
public authority to 2) Powers and duties of it’s officers and employees
publish 3) Procedure followed in it’s decision making process including channels of
supervision and accountability
4) Norms- discharge of it’s functions
5) Rules, regulations- used by employees for discharging their functions
6) Statement of categories of document held by it or under it’s control
7) Directory of officers and employees
8) Names, designations and other particulars of PIO (Public Information Officer)
9) Any other info as may be required by the act.
6)Designation Public authority appoints-
(appointment) of 1. PIO- To provide info to person making request for info in all the offices.
Public Information 2. Central or State Assistant- PIO (at each level i.e. sub- divisional level or sub-
Officers (PIO)- sec 5 district level)- To receive the applications for info or appeals for forwarding the
same to the Central or State PIO.
7)Request for Request can be made written or electronically by submitting application with
obtaining info- sec prescribed fees to-
6
PIO Assistant PIO Third party
35 days 40 days
30 days
48 hrs
“Life & Liberty

Involved”
Notes-
1. Time taken for calculation and intimation of fees excluded from the time frame.
2. If no action is taken by any authority within 30 days, then it is deemed to be
refusal to give information.
8)Duties of PIO 1) Provide necessary help to person in making application.
2) Info requested- held by any other P.A ( third party) - PIO transfers it- within 5
days to such authority and inform applicant. Third party must be given a chance to
make a representation before PIO within 10 days from the receipt of such notice.
3) PIO- seek assistance- any other officer- for proper discharge- PIO within 30 days
of receipt of request, either provide for info or reject.
4) PIO shall provide info in the form in which it is sought unless it is contrary to the
provisions of the act or detrimental to the safety.
5) If PIO allows partial access to info, he should communicate the same to the
applicant.
6) If the request has been rejected, PIO shall intimate to applicant- reasons for
rejection, period- appeal, authority.
9)Exemptions from 1. Info which prejudicially affects sovereignty and integrity of India e.g. armed
disclosure – force info.
sec 8 2. Info forbidden by court e.g. SC- black money list.
3. Breach of privilege of Parliament (Personal privilege) e.g. where did Rahul
Gandhi go for 50 days? – Disclosure would cause breach of privilege of Parliament
or State legislature.
4. Info of commercial confidence e.g. Barak Obama is coming to India.
5. Info of foreign govt. e.g. Germany gave info about black money in Swiss bank.
6. Info which endangers life or physical safety or identifies confidential source of
info or assistance e.g. Obama’s security persons.
7. Process of investigation e.g. journalist asked police about investigation info.
8. Cabinet papers.
Notes-
1) Rejection of request- PIO- infringement (violation/ contravention/ breach) of
copyright- subsisting in person would be involved (Sec 9)Eg: ISRO.
2) Partial disclosure is allowed- sec 10.
3) Exclusion from disclosures of info-
Central intelligence and security agencies e.g. CBI, CID are excluded but they are
not in absolute exclusion, it is their obligation to provide info pertaining to
allegations of corruption and human rights violations.
10)Information
commissions Central info commission State info commission
(CIC) (SIC)
1.Constituted by Central Government State Government
2.Consists of Chief Info Commissioner & 1 State Chief Info
Central Info Commissioner Commissioner & ≤ 10 State
≤ 10 (i.e. Total max 11) Info Commissioner (i.e.
Total max 11)
3.Appointed by President of India on Governor on
recommendations of recommendation of
committee consisting of PM committee Chairman of
(Chairman of committee), committee (CM), leader of
leader of opposition in opposition in legislative
legislative assembly and assembly and 1 Cabinet
Union Cabinet Minister Minister nominated by
nominated by PM Chief Minister
4.Qualification 1) Eminence (reputed) in Same as Central Info
public life with wide Commission
knowledge and experience
in law, technology, science.
2) Shall not be member of
parliament or member of
legislature of any state or

union territory.
3) Does not hold any office
of profit or connected with
any political party or
carrying on any business or
pursuing any profession.
5.Mgt of affairs The general Same as Central Info
superintendence, direction Commission
& mgt of affairs of
commission vests in Chief
Info Commissioner who
shall be assisted by Info
Commissioners
6.Headquarters At Delhi At such place as SG may
specify
7.Offices Established with approval of Established in other parts
CG of state with approval of
SG
8.Term Appointed for 5 yrs or max Same
65 yrs of age, whichever is
earlier and shall not be
eligible for reappointment.
9.Salary Same as that of Chief Salary of Chief Info
Election Commissioner. Commissioner- Election
Commissioner.
Salary of Info
Commissioner- Chief
Secretary of SG.
11)Powers of Info Duty of CIC/ SIC – to receive complaints – person
Commission
1. No PIO appointed- unable to submit request
2. Refused info
3. Received no response within specified time limits
4. Fees charged are unreasonable
5. Incomplete/ false/ misleading info
6. Matter- obtaining info under this law
Note-
CIC/ SIC during the enquiry of any complaint under this act may examine any
record which is under the control of public authority and no such record may be
withheld from it on any grounds (sec 18).
12) Appellate Person not receiving decision within specified time OR is aggrieved by the decision
Authorities of PIO may file an appeal
First appeal Second appeal Third party appeal
Officer senior in CIC/ SIC Against PIO’s decision

rank to PIO
Within 30 days Within 90 days Within 30 days
From expiry of prescribed From date on which Before first

time limit or from receipt the decision was given Appellate
of decision or should have been Authority
made by the first
Appellate Authority
Within 90 days
Before Second A.A. – CIC/ SIC
The 1st appeal shall be disposed of within 30 days from the date of its receipt or it
can be extended by further 15 days (i.e. 45 days), if reasons for extension are
recorded in writing.
13) Penalties 1. Sec 20 – Stringent penalty on PIO
2. Fine – Rs. 250 per day but max 25,000 for-
a) Not accepting application
b) Delay in releasing the info
c) Malafidely denying info
d) Knowingly giving incomplete, incorrect or misleading info
e) Destroying requested info
f) Obstructing furnishing of info
3. SIC/ CIC – Power to impose penalty
4. Disciplinary action for violation of law against PIO for persistently failing to
provide info without any reasonable cause within the specified period.
14) Jurisdiction of Sec 23 – Lower courts are barred.
court
15) Role of SG/ CG- 1. Develop and organise educational programmes
sec 26 2. Encourage public authorities to participate in development
3. Promote timely and effective dissemination
4. Train officers and develop training materials
5. Compile user guide
6. Publish details of PIO and other info.

Q No. 1. State the applicability of the Right to Information Act, 2005?
Q No. 2. State the objectives of the Right to Information Act, 2005.
Q No. 3. State the salient features of the Right to Information Act, 2005.
Q No. 4. Define the term ‘information’ as per the Right to Information Act, 2005.
Q No. 5. Define the term ‘Public Authority’ as per the Right to Information Act, 2005.
Q No. 6. Define the term ‘Record’ as per the Right to Information Act, 2005.
Q No. 7. Define the term ‘right to information’ as per the Right to Information Act, 2005.
Q No. 8. Define the term ‘third party’ as per the Right to Information Act, 2005.
Q No. 9. Who has right to information under the Right to Information Act, 2005?
Q No. 10. What are the obligations of public authorities under the Right to Information Act, 2005?
Q No. 11. Referring the provisions of the Right to Information Act, 2005, answer the following:
(i) Whether it is necessary to make request in writing to obtain information under the Act?
(ii) Whether it is necessary to give reason for which information is required to public authorities
while making application to sought information under the Act?
When information required from one public authority is also closely connected with the functions of
another public authority then what procedure is adopted to obtain such information?
Q No. 12. Raman, RTI Activist, applied in writing under the Right to Information Act, 2005 to obtain
certain information to the office of public authorities coming under the jurisdiction of the Central
Government. In his application he has given details of his address and phone number to
communicate with him when the information is ready to supply. However, Public Information
Officer (PIO) refused to supply any such information as per the application on the ground that
Raman has not given any reason for which the information is required. Decide, whether the action
of Public Information Officer is justified?
Q No. 13. What is the time limit for supply of information? Also state the consequence of not
supplying the required information to applicant by the Public Information Officer under the Right to
Information Act, 2005.
Q No. 14. State at least five type of information that are exempted i.e. not required to be provided
under Section 8 of the Right to Information Act, 2005.
Q No. 15. Mr. X applies to public authority to supply such information in which copyright Mr. Y
subsists. The public authority refused to supply the said information. State with reason whether
the action of refusing is tenable under the provisions of the Right to Information Act, 2005?
Q No. 16. Varun made a request for access to information which is rejected on the ground that it is
in relation to information which is exempt from disclosure under the RTI Act, 2005. Varun ask you
can access be provided to that part of the record which does not contain any information which is
exempt from disclosure?
Q No. 17. Write a short note on: Central Information Commission
Referring to the provisions of the Right to Information Act, 2005, answer the following:
(a) Who has power to constitute Central Information Commission?
(b) State the composition of the Central Information Commission.
(c) Who appoints the Chief Information Commissioner and Information Commissioners?
What qualification or experience is required to be possessed by the Chief Information Commissioner
and Information Commissioners?
Q No. 18. Explain the provisions relating to term of office, conditions of service, resignation and
salaries and allowances of Chief Information Commissioner.
Q No. 19. Mr. LMN attained the age of 62 years on 31.1.2019. The President of India appointed him
as Chief Information Commissioner with effect from 1.2.2020. You are required to state with
reference to the provisions of Right to Information Act, 2005, the term for which he may be
appointed as Chief Information Commissioner. Whether he can be reappointed as Chief Information

Commissioner?
Q No. 20. State the provisions relating to removal and suspension of Chief Information
Commissioner and Information Commissioner under the Right to Information Act, 2005.
Q No. 21. Mr. X, a Chief Information Commissioner was removed by the President on the grounds
that he had acquired financial interest likely to affect prejudicially his functions as a Chief
Information Commissioner. Mr. X challenged his removal by the President claiming that the
President had no authority to pass order for removal. Clarify whether Mr. X’s contention is right as
per the provisions under the Right to Information Act, 2005.
Q No. 22. Write a short note on: State Information Commission
Q No. 23. Discuss briefly powers and functions of Central and State Information Commission under
the Right to Information Act, 2005.
Q No. 24. Discuss the provisions relating to appeal under the Right to Information Act, 2005.
Q No. 25. Dinesh made an application to get certain information under the Right to Information
Act, 2005. However, Central Public Information Officer refused to provide such information.
Aggrieved by the decision of the Central Public Information Officer Dinesh wants to file an appeal
against such decision. Advice Dinesh with whom and in what time such appeal can be filed the
under the Right to Information Act, 2005.
Q No. 26. Write a short note on: Penalties under the Right to Information Act, 2005
Q No. 27. State the role of Central and State Government under the Right to Information Act, 2005.
Right to Information Act, 2005 16.8
Chapter
16 Right to Information Act, 2005
Introduction: The right to information is implicitly guaranteed by the Constitution. However,

with a view to set out a practical regime for securing information, the Indian Parliament enacted
the Right to Information Act, 2005 and thus gave a powerful tool to the citizens to get
information from the Government as a matter of right. This law is very comprehensive and
covers almost all matters of governance and has the widest possible reach, being applicable to
Government at all levels – Union, State and Local as well as recipients of government grants.
A citizen has a right to seek such information from a public authority which is held by the public
authority or which is held under its control. This right includes inspection of work, documents
and records; taking notes, extracts or certified copies of documents or records; and taking
certified samples of material held by the public authority or held under the control of the public
authority. It is important to note that only such information can be supplied under the Act which
already exists and is held by the public authority or held under the control of the public
authority. The Public Information Officer (PIO) is not supposed to create information; or to
interpret information; or to solve the problems raised by the applicants; or to furnish replies to
hypothetical questions.
Right to Information
Que. No. 1] State the applicability of the Right to Information Act, 2005?
Ans.: Extent & applicability [Section 1]: The Right to Information Act, 2005 extends to the whole
of India except the State of Jammu & Kashmir.
The Act provides for setting out the practical regime of right to information for citizens to secure
access to information held by public authorities to promote transparency and accountability in
the working of every public authority.
Act to have overriding effect [Section 22]: The RTI Act has over-riding effect vis-a-vis other laws
inasmuch as the provisions of the RTI Act would have effect notwithstanding anything
inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the
time being in force or in any instrument having effect by virtue of any law.
Act not to apply in certain organizations established by the Central Government [Section 24(1)]:
The Act shall not apply to the intelligence and security organizations specified in the 2nd
Schedule, being organizations established by the Central Government or any information
furnished by such organizations to that Government.
However, exclusion is not absolute and these organizations have to provide information
pertaining to the allegations of corruption and human rights violations.
In case of information sought for is in respect of allegations of violation of human rights, the
information shall only be provided after the approval of the Central Information Commission,
and such information shall be provided within 45 days from the date of the receipt of request.
Amendment of 2nd Schedule [Section 24(2) & (3)]: The Central Government may, by notification in
the Official Gazette, amend the Schedule by including therein any other intelligence or security
organization established by that Government or omitting therefrom any organization already
specified therein and on the publication of such notification, such organization shall be deemed
to be included in or, as the case may be, omitted from the Schedule.
Every notification issued as stated above shall be laid before each House of Parliament.

Act not to apply in certain organizations established by the State Government [Section 24(4)]: The
Act shall not apply to such intelligence and security organization being organizations
established by the State Government, as that Government may, from time to time, by
notification in the Official Gazette, specify.
However, the information pertaining to the allegations of corruption and human rights
violations shall not be excluded under this sub-section.
THE SECOND SCHEDULE
(Section 24)
Intelligence and Security Organization established by the Central Government
1. Intelligence Bureau
2. Research and Analysis Wing of the Cabinet Secretariat
3. Directorate of Revenue Intelligence
4. Central Economic Intelligence Bureau
5. Directorate of Enforcement
6. Narcotics Control Bureau
7. Aviation Research Centre
8. Special Frontier Force
9. Border Security Force
10. Central Reserve Police Force
11. Indo-Tibetan Border Police
12. Central Industrial Security Force
13. National Security Guards
14. Assam Rifles
15. Sashtra Seema Bal
16. Special Branch (CID), Andaman and Nicobar
17. The Crime Branch – CID – CB, Dadra and Nagar Haveli
18. Special Branch, Lakshadweep Police
19. Special Protection Group
20. Defence Research and Development Board
21. Border Road Development Board
22. Financial Intelligence Unit, India
Que. No. 2] State the objectives of the Right to Information Act, 2005.
Ans.: The Government of India has enacted the Right to Information Act, 2005 to provide for
setting out the practical regime of right to information for citizens to secure access to
information under the control of Public Authorities.
The basic objective of the Right to Information Act is –
 To empower the citizens
 To promote transparency and accountability in the working of the Public Authorities
 To contain corruption
 To our democracy work for the people in real sense.
The Act goes without saying that an informed citizen is better equipped to keep necessary vigil
on the instruments of governance and make the Government more accountable towards its
activities. The Act is a big step towards making the citizens informed about the activities of the
Government.
Que. No. 3] State the salient features of the Right to Information Act, 2005.
Ans.: Salient features of the Right to Information Act, 2005 are as under:
 Any citizen may request information from a ‘public authority’ which is required to reply
expeditiously or within 30 days.
 Citizens have a right to – request any information (as defined); take copies of documents;
inspect documents, works and records; take certified samples of materials of work; and

obtain information in the form of printouts, diskettes, floppies, tapes, video cassettes or in
any other electronic mode.
 The Act relaxes the Official Secrets Act, 1889 and various other special laws that restricted
information disclosure in India. In other words, the Act explicitly overrides the Official
Secrets Act and other laws to the extent of any inconsistency.
 Applicant can obtain Information within 30 days from the date of request in a normal case.
In matter of life or liberty of a person, information can be obtained within 48 hours from
time of request.
 The Act also requires every public authority to computerize their records for wide
dissemination and to proactively publish certain categories of information so that the
citizens need minimum recourse to request for information formally.
 The Act, in particular, requires every public authority to publish 16 categories of
information. This includes the particulars of its organization, functions and duties; powers
and duties of its officers and employees; procedure followed in the decision making process;
norms set for discharge of its functions; rules, regulations, instructions, manuals and
records, held by it or under its control or used by its employees for discharging its functions;
etc.
 The Act enumerates the types of information that are exempted from disclosure. However,
these exempted information or those exempted under the Official Secrets Act can be
disclosed if public interest in disclosure overweighs the harm to the protected interest. Also,
the exempted information(s) would cease to be exempted if 20 years have lapsed after
occurrence of the incident to which the information relates.
 Penalty for refusal to receive an application for information or for not providing information
is `250 per day but the total amount of penalty should not exceed `25,000.
 If an applicant is not supplied information within the prescribed time of 30 days or 48 hours,
as the case may be, or is not satisfied with the information furnished to him, he may prefer
an appeal to the first appellate authority who is an officer senior in rank to the PIO. If still
not satisfied the applicant may prefer a second appeal with the Central Information
Commission/State Information Commission within 90 days from the date on which the
decision should have been made by the first appellate authority or was actually received by
the appellant.
Que. No. 4] Define the term ‘information’ as per the Right to Information Act, 2005.
Ans.: Information [Section 2(f)]: Information means any material in any form, including records,
documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks,
contracts, reports, papers, samples, models, data material held in any electronic form and
information relating to any private body which can be accessed by a public authority under any
other law for the time being in force;
Que. No. 5] Define the term ‘Public Authority’ as per the Right to Information Act, 2005.
Ans.: Public Authority [Section 2(h)]: Public authority means any authority or body or institution
of self-government established or constituted –
(a) by or under the Constitution
(b) by any other law made by Parliament
(c) by any other law made by State Legislature
(d) by notification issued or order made by the appropriate Government, and includes any –
(i) body owned, controlled or substantially financed
(ii) non-Government organization substantially financed, directly or indirectly by funds
provided by the appropriate Government.
Que. No. 6] Define the term ‘Record’ as per the Right to Information Act, 2005.
Ans.: Record [Section 2(i)]: Record includes –

(a) Any document, manuscript and file;

(b) Any microfilm, microfiche and facsimile copy of a document;
(c) Any reproduction of image or images embodied in such microfilm (whether enlarged or not)
and
(d) Any other material produced by a computer or any other device.
Que. No. 7] Define the term ‘right to information’ as per the Right to Information Act,
2005.
Ans.: Right to Information [Section 2(j)]: Right to information means the right to information
accessible under the Act which is held by or under the control of any public authority and
includes the right to –
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any
other electronic mode or through printouts where such information is stored in a computer
or in any other device.
Que. No. 8] Define the term ‘third party’ as per the Right to Information Act, 2005.
Ans.: Third Party [Section 2(n)]: Third party means a person other than the citizen making a
request for information and includes a public authority.
Que. No. 9] Who has right to information under the Right to Information Act, 2005?
Ans.: Right to information [Section 3]: Subject to the provisions of the Act, all citizens shall have
the right to information.
A citizen has a right to seek such information from a public authority which is held by the
public authority or which is held under its control.
This right includes –
 Inspection of work, documents and records;
 Taking notes, extracts or certified copies of documents or records;
 Taking certified samples of material held by the public authority or held under the control of
the public authority.
It is important to note that only such information can be supplied which already exists and is held
by the public authority or held under the control of the public authority. The Public Information
Officer (PIO) is not supposed to create information or to interpret information or to solve the
problems raised by the applicants or to furnish replies to hypothetical questions.
Que. No. 10] What are the obligations of public authorities under the Right to
Information Act, 2005?
Ans.: Obligations of public authorities [Section 4]: Every public authority shall –
(a) Maintain all its records duly catalogued and indexed in a manner and the form which
facilitates the right to information and ensure that all records that are appropriate to be
computerized are, within a reasonable time and subject to availability of resources,
computerized and connected through a network all over the country on different systems so
that access to such records is facilitated.
(b) Publish within 120 days from the enactment of the Act –
 The particulars of its organization, functions and duties.
 The powers and duties of its officers and employees.
 The procedure followed in the decision making process, including channels of
supervision and accountability.
 The norms set by it for the discharge of its functions.

 The rules, regulations, instructions, manuals and records, held by it or under its control
or used by its employees for discharging its functions.
 A statement of the categories of documents that are held by it or under its control.
 The particulars of any arrangement that exists for consultation with, or representation
by, the members of the public in relation to the formulation of its policy or
implementation thereof.
 A statement of the boards, councils, committees and other bodies consisting of two or
more persons constituted as its part or for the purpose of its advice, and as to whether
meetings of those boards, councils, committees and other bodies are open to the public,
or the minutes of such meetings are accessible for public.
 A directory of its officers and employees.
 The monthly remuneration received by each of its officers and employees, including the
system of compensation as provided in its regulations.
 The budget allocated to each of its agency, indicating the particulars of all plans,
proposed expenditures and reports on disbursements made.
 The manner of execution of subsidy programmes, including the amounts allocated and
the details of beneficiaries of such programmes.
 Particulars of recipients of concessions, permits or authorizations granted by it.
 Details in respect of the information, available to or held by it, reduced in an electronic
form.
 The particulars of facilities available to citizens for obtaining information, including the
working hours of a library or reading room, if maintained for public use.
 The names, designations and other particulars of the Public Information Officers.
 Such other information as may be prescribed and thereafter update these publications
every year.
(c) Publish all relevant facts while formulating important policies or announcing the decisions
which affect public.
(d) Provide reasons for its administrative or quasi-judicial decisions to affected persons.
Obligation to provide information suo motu on internet [Section 4(2) & (3)]: It shall be a constant
endeavour of every public authority to take steps to provide as much information suo motu to
the public at regular intervals through various means of communications, including internet,
so that the public have minimum resort to the use of the Act to obtain information.
Every such information shall be disseminated widely and in such form and manner which is
easily accessible to the public.
Obligation to make available information at minimum cost [Section 4(5)]: All materials shall be
disseminated taking into consideration the cost effectiveness, local language and the most
effective method of communication in that local area and the information should be easily
accessible, to the extent possible in electronic format with the Central Public Information
Officer or State Public Information Officer, as the case may be, available free or at such cost of
the medium or the print cost price as may be prescribed.
Explanation: "Disseminated" means making known or communicated the information to the
public through notice boards, newspapers, public announcements, media broadcasts, the
internet or any other means, including inspection of offices of any public authority.
Que. No. 11] Referring the provisions of the Right to Information Act, 2005, answer the
following:
(i) Whether it is necessary to make request in writing to obtain information under the
Act?
(ii) Whether it is necessary to give reason for which information is required to public
authorities while making application to sought information under the Act?
(iii) When information required from one public authority is also closely connected with
the functions of another public authority then what procedure is adopted to obtain
such information?

Ans.: Request for information [Section 6(1)]: A person, who desires to obtain any information
shall make a request in writing or through electronic means in English or Hindi or in the official
language of the area in which the application is being made, accompanying such fee as may be
prescribed, to –
(a) The Central PIO or State PIO of the concerned public authority;
(b) The Central Assistant PIO or State Assistant PIO specifying the particulars of the
information sought.
However, where such request cannot be made in writing, the Central Public Information Officer
(PIO) or State PIO, as the case may be, shall render all reasonable assistance to the person
making the request orally to reduce the same in writing.
Reason for obtaining information is not required to be given [Section 6(2)]: An applicant making
request for information shall not be required to give any reason for requesting the information
or any other personal details except those that may be necessary for contacting him.
Procedure for obtaining information held by two or more public authorities [Section 6(3)]: Where
an application is made to a public authority requesting for an information –
(i) which is held by another public authority or
(ii) the subject matter of which is more closely connected with the functions of another public
authority
the public authority, to which such application is made shall transfer the application and
inform the applicant immediately about such transfer.
The transfer of an application shall be made as soon as practicable but in no case later than 5
days from the date of receipt of the application.
Que. No. 12] Raman, RTI Activist, applied in writing under the Right to Information Act,
2005 to obtain certain information to the office of public authorities coming under the
jurisdiction of the Central Government. In his application he has given details of his
address and phone number to communicate with him when the information is ready to
supply. However, Public Information Officer (PIO) refused to supply any such information
as per the application on the ground that Raman has not given any reason for which the
information is required. Decide, whether the action of Public Information Officer is
justified?
Ans.: As per Section 6(2) of the Right to Information Act, 2005, an applicant making request for
information shall not be required to give any reason for requesting the information or any other
personal details except those that may be necessary for contacting him.
Thus, the Public Information Officer (PIO) cannot refuse to supply information on the ground
that Raman has not given any reason for which the information is required.
Que. No. 13] What is the time limit for supply of information? Also state the
consequence of not supplying the required information to applicant by the Public
Information Officer under the Right to Information Act, 2005.
Ans.: Disposal of request [Section 7(1)]: The Central PIO or State PIO on receipt of a request to
supply information, as expeditiously as possible, and in any case within 30 days of the receipt
of the request:
- Provide the information on payment of prescribed fee or
- Reject the request for any of the reasons specified in sections 8 & 9.
However, where the information sought for concerns the life or liberty of a person, the same
shall be provided within 48 hours of the receipt of the request.
Non-supply of information – deemed to be refusal [Section 7(2)]: If the Central or State PIO fails to
give decision on the request for information within 30 days, the request shall be deemed to
have been refused.
Further fee can be charged towards cost of providing information [Section 7(3)]: Where a decision
is taken to provide the information on payment of any further fee representing the cost of

providing the information, the Central or State PIO shall send intimation to the person making
the request, giving –
(a) The details of further fees representing the cost of providing the information as determined
by him, together with the calculations made to arrive at the amount in accordance with
prescribed fee, requesting him to deposit that fees, and the period intervening between the
dispatch of the said intimation and payment of fees shall be excluded for the purpose of
calculating the period of 30 days.
(b) Information concerning his or her right with respect to review the decision as to the amount
of fees charged or the form of access provided, including the particulars of the appellate
authority, time limit, process and any other forms.
Duty of PIO to provide assistance to the person seeking information [Section 7(4)]: Where access
to the record or a part thereof is required to be provided and the person to whom access is to be
provided is sensorily disabled, the Central or State PIO shall provide assistance to enable
access to the information, including providing such assistance as may be appropriate for the
inspection.
Fees for supplying information [Section 7(5)]: Where access to information is to be provided in
the printed or in any electronic format, the applicant shall pay such prescribed fee.
However, the fee prescribed shall be reasonable and no such fee shall be charged from the
persons who are of below poverty line as may be determined by the Appropriate Government.
Information to be provided free of cost if required information is not supplied within prescribed
period [Section 7(6)]: The person making request for the information shall be provided the
information free of charge where a public authority fails supply the information with period of
30 days or 48 hours as the case may be.
Consideration of representation by third party [Section 7(7)]: Before taking any decision to supply
or refuse to supply the information, the Central or State PIO shall take into consideration the
representation made by a third party u/s 11.
Procedure on refusal to supply required information [Section 7(8)]: Where a request has been
rejected, the Central or State PIO shall communicate to the person making the request –
(i) The reasons for such rejection.
(ii) The period within which an appeal against such rejection may be preferred.
(iii) The particulars of the appellate authority.
How information to be supplied [Section 7(9)]: The required information shall ordinarily be
provided in the form in which it is sought unless it would disproportionately divert the
resources of the public authority or would be detrimental to the safety or preservation of the
record in question.
Que. No. 14] State at least five type of information that are exempted i.e. not required to
be provided under Section 8 of the Right to Information Act, 2005.
Ans.: Exemption from disclosure of information [Section 8]: Notwithstanding anything contained
in the Act, there shall be no obligation to give any citizen –
(1) Information, disclosure of which would prejudicially affect the sovereignty and integrity of
India, the security, strategic, scientific or economic interests of the State, relation with
foreign State or lead to incitement of an offence.
(2) Information which has been expressly forbidden to be published by any court of law or
tribunal or the disclosure of which may constitute contempt of court.
(3) Information, the disclosure of which would cause a breach of privilege of Parliament or the
State Legislature.
(4) Information including commercial confidence, trade secrets or intellectual property, the
disclosure of which would harm the competitive position of a third party, unless the
competent authority is satisfied that larger public interest warrants the disclosure of such
information.
(5) Information available to a person in his fiduciary relationship, unless the competent
authority is satisfied that the larger public interest warrants the disclosure of such
information.

(6) Information received in confidence from foreign Government.

(7) Information, the disclosure of which would endanger the life or physical safety of any
person or identify the source of information or assistance given in confidence for law
enforcement or security purposes.
(8) Information which would impede the process of investigation or apprehension or
prosecution of offenders.
(9) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries
and other officers. However, the decisions of Council of Ministers, the reasons thereof, and
the material on the basis of which the decisions were taken shall be made public after the
decision has been taken, and the matter is complete, or over. Those matters which come
under the exemptions specified in this section shall not be disclosed.
(10) Information which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted invasion
of the privacy of the individual unless the Central or State PIO or the appellate authority is
satisfied that the larger public interest justifies the disclosure of such information.
However, the information which cannot be denied to the Parliament or a State Legislature
shall not be denied to any person.
When exempted information can be disclosed [Section 8(2)]: Information exempted Section 8(1) or
exempted under the Official Secrets Act, 1923 can be disclosed if public interest in disclosure
outweighs the harm to the protected interest.
Exemption of not providing information ceases after 20 years subject to certain exceptions
[Section 8(3)]: The information which, in normal course, is exempt from disclosure Section 8(1),
would cease to be exempted if 20 years have lapsed after occurrence of the incident to which
the information relates. However, the following types of information would continue to be
exempt and there would be no obligation, even after lapse of 20 years, to give any citizen –
(i) Information disclosure of which would prejudicially affect the sovereignty and integrity of
India, the security, strategic, scientific or economic interest of the State, relation with
foreign state or lead to incitement of an offence.
(ii) Information the disclosure of which would cause a breach of privilege of Parliament or State
Legislature.
(iii) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries
and other Officers.
Que. No. 15] Mr. X applies to public authority to supply such information in which
copyright Mr. Y subsists. The public authority refused to supply the said information.
State with reason whether the action of refusing is tenable under the provisions of the
Right to Information Act, 2005?
Ans.: Grounds for rejection to access in certain cases [Section 9]: A Central or State PIO may
reject a request for information where such a request for providing access would involve an
infringement of copyright subsisting in a person other than the State.
Thus, keeping in view specific provisions of the Section 9 of the Right to Information Act, 2005,
action of refusing is tenable.
Que. No. 16] Varun made a request for access to information which is rejected on the
ground that it is in relation to information which is exempt from disclosure under the
RTI Act, 2005. Varun ask you can access be provided to that part of the record which
does not contain any information which is exempt from disclosure?
Ans.: Severability [Section 10]: Where a request for access to information is rejected on the
ground that it is in relation to information which is exempt from disclosure, then access may be
provided to that part of the record which does not contain any information which is exempt
from disclosure and which can reasonably be severed from any part that contains exempt
information.

Notice to applicant informing procedure for part disclosure of information [Section 10(2)]: Where
access is granted to a part of the record, the Central or State PIO shall give a notice to the
applicant, informing –
(a) That only part of the record requested, after severance of the record containing information
which is exempt from disclosure, is being provided.
(b) The reasons for the decision, including any findings on any material question of fact,
referring to the material on which those findings were based.
(c) The name and designation of the person giving the decision.
(d) Details of the fees and the amount of fee which the applicant is required to deposit.
(e) His or her rights with respect to review of the decision regarding non-disclosure of part of
the information, the amount of fee charged or the form of access provided, including the
particulars of the senior officer or the Central Information Commission or the State
Information Commission, time limit, process and any other form of access.
Central Information Commission
Que. No. 17] Write a short note on: Central Information Commission
Referring to the provisions of the Right to Information Act, 2005, answer the following:
(a) Who has power to constitute Central Information Commission?
(b) State the composition of the Central Information Commission.
(c) Who appoints the Chief Information Commissioner and Information Commissioners?
(d) What qualification or experience is required to be possessed by the Chief
Information Commissioner and Information Commissioners?
Ans.: Constitution of Central Information Commission (CIS) [Section 12(1)]: The Central
Government shall, by notification in the Official Gazette constitute a body to be known as the
Central Information Commission (CIS) to exercise the powers conferred on, and to perform the
functions assigned to, it under this Act.
Composition of Central Information Commission [Section 12(2)]: The CIS shall consist of –
(a) The Chief Information Commissioner.
(b) Such number of Central Information Commissioners, not exceeding 10, as may be deemed
necessary.
Appointment [Section 12(3)]: The Chief Information Commissioner & Information Commissioners
shall be appointed by the President on the recommendation of a committee consisting of –
(i) The Prime Minister, who shall be the Chairperson of the committee.
(ii) The Leader of Opposition in the Lok Sabha.
(iii) A Union Cabinet Minister to be nominated by the Prime Minister.
Explanation: Where the Leader of Opposition in the House of the People has not been recognized
as such, the Leader of the single largest group in opposition of the Government in the House of
the People shall be deemed to be the Leader of Opposition.
Powers [Section 12(4)]: The general superintendence, direction and management of the affairs of
the CIS shall vest in the Chief Information Commissioner who shall be assisted by the
Information Commissioners and may exercise all such powers and do all such acts and things
which may be exercised or done by the CIS autonomously without being subjected to directions
by any other authority under the Act.
Qualification [Section 12(5)]: The Chief Information Commissioner & Information Commissioners
shall be persons of eminence in public life with wide knowledge and experience in law, science
and technology, social service, management, journalism, mass media or administration and
governance.
Disqualification [Section 12(6)]: The Chief Information Commissioner or an Information
Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or
Union territory, as the case may be, or hold any other office of profit or connected with any
political party or carrying on any business or pursuing any profession.
Headquarters and other offices [Section 12(7)]: The headquarters of the Central Intimation
Commission shall be at Delhi and the Central Information Commission may establish offices at

other places in India with the previous approval of the Central Government.
Que. No. 18] Explain the provisions relating to term of office, conditions of service,
resignation and salaries and allowances of Chief Information Commissioner.
Ans.: Term of office & conditions of service of the Chief Information Commissioner [Section 13(1)]:
The Chief Information Commissioner shall hold office for a term of 5 years from the date on
which he enters upon his office and shall not be eligible for reappointment.
However, no Chief Information Commissioner shall hold office as such after he has attained the
age of 65 years.
Term of office & conditions of service of the Information Commissioner [Section 13(2)]: Every
Information Commissioner shall hold office for a term of 5 years from the date on which he
enters upon his office or till he attains the age of 65 years, whichever is earlier, and shall not be
eligible for reappointment as such Information Commissioner.
However, every Information Commissioner shall be eligible for appointment as the Chief
Information Commissioner on vacating his office.
Where the Information Commissioner is appointed as the Chief Information Commissioner, his
term of office shall not be more than 5 years in aggregate as the Information Commissioner and
the Chief Information Commissioner.
Oath by Chief Information Commissioner & Information Commissioner [Section 13(3)]: The Chief
Information Commissioner or an Information Commissioner shall before he enters upon his
office make and subscribe before the President or some other person appointed by him in that
behalf, an oath or affirmation according to the form set out for the purpose in the First
Schedule.
Resignation [Section 13(4)]: The Chief Information Commissioner or an Information
Commissioner may, at any time, by writing under his hand addressed to the President, resign
from his office. However, they may be removed in the manner specified in Section 14.
Salaries and allowances [Section 13(5)]: The salaries and allowances payable to and other terms
and conditions of service of –
(a) The Chief Information Commissioner shall be the same as that of the Chief Election
Commissioner;
(b) An Information Commissioner shall be the same as that of an Election Commissioner.
It is also provided that salaries and allowances will not be varied to the disadvantage of the CIC
during service.
Que. No. 19] Mr. LMN attained the age of 62 years on 31.1.2019. The President of India
appointed him as Chief Information Commissioner with effect from 1.2.2020. You are
required to state with reference to the provisions of Right to Information Act, 2005, the
term for which he may be appointed as Chief Information Commissioner. Whether he
can be reappointed as Chief Information Commissioner?
Ans.: As per Section 13(1) of the Right to Information Act, 2005, the Chief Information
Commissioner shall hold office for a term of 5 years from the date on which he enters upon his
office and shall not be eligible for reappointment. However, no Chief Information Commissioner
shall hold office as such after he has attained the age of 65 years.
Keeping in view above provisions, Mr. LMN can be appointed as Chief Information
Commissioner. Since at the date of appointment he has attained age of 62 years, he can be
appointed for 3 years only. However, on attainment of age of 65 years, Mr. HCJ shall have to
vacate the office of Chief Information Commissioner and he cannot be reappointed as Chief
Information Commissioner.
Que. No. 20] State the provisions relating to removal and suspension of Chief
Information Commissioner and Information Commissioner under the Right to

Ans.: Removal of Chief Information Commissioner or Information Commissioner [Section 14(1)]:

Chief Information Commissioner or any Information Commissioner shall be removed from his
office only by order of the President.
However, they shall be removed from the office only if following procedure is adopted:
- The President makes a reference to the Supreme Court.
- The enquiry is held in accordance with the procedure prescribed by the Supreme Court.
- The Supreme Court makes an order that the Chief Information Commissioner or Information
Commissioner ought to be removed.
Suspension Chief Information Commissioner or Information Commissioner [Section 14(2)]: The
President may suspend from office, and if deem necessary prohibit also from attending the
office during inquiry, the Chief Information Commissioner or Information Commissioner in
respect of whom a reference has been made to the Supreme Court under until the President
has passed orders on receipt of the report of the Supreme Court on such reference.
Removal on the basis of certain grounds by the President [Section 14(3)]: The President may by
order remove from office the Chief Information Commissioner or any Information Commissioner
if the Chief Information Commissioner or a Information Commissioner –
(a) is adjudged an insolvent or
(b) has been convicted of an offence which, in the opinion of the President, involves moral
turpitude or
(c) engages during his term of office in any paid employment outside the duties of his office or
(d) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind
or body or
(e) has acquired such financial or other interest as is likely to affect prejudicially his functions
as the Chief Information Commissioner or a Information Commissioner.
If the Chief Information Commissioner or a Information Commissioner in any way, concerned
or interested in any contract or agreement made by or on behalf of the Government of India or
participates in any way in the profit thereof or in any benefit or emolument arising therefrom
otherwise than as a member and in common with the other members of an incorporated
company, he shall be deemed to be guilty of mis-behaviour.
Que. No. 21] Mr. X, a Chief Information Commissioner was removed by the President on
the grounds that he had acquired financial interest likely to affect prejudicially his
functions as a Chief Information Commissioner. Mr. X challenged his removal by the
President claiming that the President had no authority to pass order for removal. Clarify
whether Mr. X’s contention is right as per the provisions under the Right to Information
Act, 2005.
Ans.: As per Section 14(1) of the Right to Information Act, 2005, Chief Information
Commissioner or any Information Commissioner shall be removed from his office only by order
of the President.
However, they shall be removed from the office only if following procedure is adopted:
- The President makes a reference to the Supreme Court.
- The enquiry is held in accordance with the procedure prescribed by the Supreme Court.
- The Supreme Court makes an order that the Chief Information Commissioner or Information
Commissioner ought to be removed.
Thus, the President can remove Chief Information Commissioner from his office by following
the above procedure. So, contention of Mr. X is incorrect with respect to his removal by the
President.
Que. No. 22] Write a short note on: State Information Commission
Ans.: Constitution of State Information Commission [Section 15(1)]: Every State Government
shall, by notification in the Official Gazette, constitute a body to be known as the State
Information Commission to exercise the powers conferred on, and to perform the functions
assigned to, it under the Act.

Composition of State Information Commission [Section 15(2)]: The State Information Commission
shall consist of –
(a) The State Chief Information Commissioner and
(b) Such number of State Information Commissioners, not exceeding 10, as may be deemed
necessary.
Appointment [Section 15(3)]: The State Chief Information Commissioner and the State
Information Commissioners shall be appointed by the Governor on the recommendation of a
committee consisting of –
(i) The Chief Minister, who shall be the Chairperson of the committee.
(ii) The Leader of Opposition in the Legislative Assembly.
(iii) A Cabinet Minister to be nominated by the Chief Minister.
Explanation: The Leader of Opposition in the Legislative Assembly has not been recognized as
such, the Leader of the single largest group in opposition of the Government in the Legislative
Assembly shall be deemed to be the Leader of Opposition.
Power & functions [Section 15(4)]: The general superintendence, direction and management of
the affairs of the State Information Commission shall vest in the State Chief Information
Commissioner who shall be assisted by the State Information Commissioners and may exercise
all such powers and do all such acts and things which may be exercised or done by the State
Information Commission autonomously without being subjected to directions by any other
authority under this Act.
Qualification and experience [Section 15(5)]: State Chief Information Commissioner and the State
Information Commissioners shall be persons of eminence in public life with wide knowledge
and experience in law, science and technology, social service, management, journalism, mass
media or administration and governance.
Disqualification [Section 15(6)]: State Chief Information Commissioner or a State Information
Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or
Union territory or hold any other office of profit or connected with any political party or carrying
on any business or pursuing any profession.
Headquarters & other offices [Section 12(7)]: The headquarters of the State Information
Commission shall be at such place in the State as the State Government may specify by
notification in the Official Gazette. The State Information Commission may establish offices at
other places in the State with the previous approval of the State Government.
Powers & Functions of the Information Commissions, Appeal & Penalties
Que. No. 23] Discuss briefly powers and functions of Central and State Information
Commission under the Right to Information Act, 2005.
Ans.: Powers and functions of Information Commissions [Section 18]:

Duty of the Central or State Information Commission [Section 18(1)]: It shall be the duty of the
Central or State Information Commission to receive inquire into a complaint from any person –
(a) Who has been unable to submit a request either by reason that no such officer has been
appointed under the Act, or because the Central or State Assistant Public Information
Officer has refused to accept his application for information or appeal under the Act.
(b) Who has been refused access to any information requested under the Act.
(c) Who has not been given a response to a request for information or access to information
within the time limit specified under the Act.
(d) Who has been required to pay an amount of fee which he or she considers unreasonable.
(e) Who believes that he or she has been given incomplete, misleading or false information
under this Act; and
(f) In respect of any other matter relating to requesting or obtaining access to records under
the Act.
Power to make inquiry [Section 18(2)]: Where the Central or State Information Commission is
satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry
in respect thereof.

Powers of Civil Court [Section 18(3)]: The Central or State Information Commission while
inquiring into any matter shall have the same powers as are vested in a civil court while trying
a suit under the Code of Civil Procedure, 1908 in respect of the following matters:
(a) Summoning and enforcing the attendance of persons and compel them to give oral or
written evidence on oath and to produce the documents or things.
(b) Requiring the discovery and inspection of documents.
(c) Receiving evidence on affidavit.
(d) Requisitioning any public record or copies thereof from any court or office.
(e) Issuing summons for examination of witnesses or documents.
(f) Any other matter which may be prescribed.
Power to examine the records [Section 18(4)]: The Central or State Information Commission may
examine any record to which the Act applies which is under the control of the public authority
and no such record may be withheld from it on any grounds.
Que. No. 24] Discuss the provisions relating to appeal under the Right to Information
Act, 2005.
Ans.: Who can Appeal [Section 19(1)]: Any person who, does not receive a decision within the
time specified in Section 7, or is aggrieved by a decision of the Central or State Public
Information Officer may within 30 days from the expiry of such period or from the receipt of
such a decision prefer an appeal to such officer who is senior in rank to the Central or State
Public Information Officer in each public authority.
However, such officer may admit the appeal after the expiry of the period of 30 days if he is
satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
Appeal by third party [Section 19(2)]: Where an appeal is preferred against an order made by a
Central or State Public Information Officer u/s 11 to disclose third party information, the
appeal by the concerned third party shall be made within 30 days from the date of the order.
Second Appeal [Section 19(3)]: A second appeal against the decision shall lie within 90 days from
the date on which the decision should have been made or was actually received, with the
Central or State Information Commission.
However, the Central or State Information Commission may admit the appeal after the expiry of
the period of 90 days if it is satisfied that the appellant was prevented by sufficient cause from
filing the appeal in time.
Opportunity of being heard to third party [Section 19(4)]: If the decision of the Central or State
Public Information Officer, against which an appeal is preferred relates to information of a third
party, the Central or State Information Commission shall give a reasonable opportunity of being
heard to that third party.
Burden of proof [Section 19(5)]: In any appeal proceedings, the onus to prove that a denial of a
request was justified shall be on the Central or State Public Information Officer, who denied the
request.
Time limit for disposal of appeal [Section 19(6)]: An appeal shall be disposed of within 30 days of
the receipt of the appeal or within such extended period not exceeding a total of 45 days from
the date of filing thereof, as the case may be, for reasons to be recorded in writing.
Decision [Section 19(7)]: The decision of the Central or State Information Commission shall be
binding.
Bar of jurisdiction of Courts [Section 23]: No Court shall entertain any suit, application or other
proceeding in respect of any order made under the Act and no such order shall be called in
question otherwise than by way of an appeal under the Act.
Que. No. 25] Dinesh made an application to get certain information under the Right to
Information Act, 2005. However, Central Public Information Officer refused to provide
such information. Aggrieved by the decision of the Central Public Information Officer
Dinesh wants to file an appeal against such decision. Advice Dinesh with whom and in
what time such appeal can be filed the under the Right to Information Act, 2005.

Ans.: As per Section 19(1) of the Right to Information Act, 2005, any person who, does not
receive a decision within the time specified in Section 7, or is aggrieved by a decision of the
Central or State Public Information Officer may within 30 days from the expiry of such period or
from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the
Central or State Public Information Officer in each public authority.
However, such officer may admit the appeal after the expiry of the period of 30 days if he is
satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
Thus, Dinesh is advised to file an appeal with officer who is senior in rank to the Central Public
Information Officer within 30 days of refusal to provide information. Dinesh can also file appeal
even after 30 days if shows sufficient cause to officer with whom he is filing appeal.
Que. No. 26] Write a short note on: Penalties under the Right to Information Act, 2005
Ans.: Penalty [Section 20]: The RTI Act imposes stringent penalty on a Public Information Officer
(PIO) for failing to provide information. Every PIO will be liable for fine of `250 per day, up to a
maximum of `25,000 for –
 Not accepting an application.
 Delaying information release without reasonable cause.
 Malafidely denying information.
 Knowingly giving incomplete, incorrect, misleading information.
 Destroying information that has been requested.
 Obstructing furnishing of information in any manner.
The Central or State Information Commission will have the power to impose this penalty. They
can also recommend disciplinary action for violation of the law against the PIO for persistently
failing to provide information without any reasonable cause within the specified period.
Que. No. 27] State the role of Central and State Government under the Right to
Ans.: Appropriate Government to prepare programmes [Section 26]:

(1) The appropriate Government may, to the extent of availability of financial and other
resources –
(a) Develop and organize educational programmes to advance the understanding of the
public, in particular of disadvantaged communities as to how to exercise the rights
contemplated under this Act.
(b) Encourage public 'authorities to participate in the development and organization of
programmes and to undertake such programmes themselves.
(c) Promote timely and effective dissemination of accurate information by public authorities
about their activities.
(d) Train Central or State Public Information Officers of public authorities and produce
relevant training materials for use by the public authorities themselves.
(2) The Appropriate Government shall compile in its official language a guide containing such
information, in an easily comprehensible form and manner, as may reasonably be required
by a person who wishes to exercise any right specified in the Act.
(3) The Appropriate Government shall update and publish the guidelines at regular intervals
which shall include –
(a) The objects of the Act.
(b) The postal and street address, the phone and fax number and, if available, electronic
mail address of the Central or State Public Information Officer of every public authority
appointed.
(c) The manner and the form in which request for access to an information shall be made
to a Central or State Public Information Officer.
(d) The assistance available from and the duties of the Central or State Public Information
Officer of a public authority under the Act.
(e) The assistance available from the Central or State Information Commission

(f) All remedies in law available regarding an act or failure to act in respect of a right or
duty conferred or imposed by the Act including the manner of filing an appeal to the
Commission.
(g) The provisions providing for the voluntary disclosure of categories of records in
accordance with Section 4.
(h) The notices regarding fees to be paid in relation to requests for access to information.
(i) Any additional regulations or circulars made or issued in relation to obtaining access to
information in accordance with the Act.
(4) The appropriate Government must update and publish the guidelines at regular intervals.
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INFORMATION TECHNOLOGY ACT, 2000

 POINTS TO BE STUDIED
1. Introduction
2. Object of the Act
3. Applicability
4. Important Definitions
5. Digital Signature
6. Electronic Signature
7. Electronic Governance
8. Certifying Authorities
9. Secure Electronic Records
10. Compensation for failure to protect data
11. Appellate Tribunal
12. Liability of Network Service Providers
13. Offences and Penalties
INTRODUCTION
Information technology (IT) is the use of any computers, storage, networking and other physical
devices, infrastructure and processes to create, process, store, secure and exchange all forms of
electronic data.
It is like a boon for the world which provides easy access/transfer of information from one person
to another including other benefits. Since, it carries so much benefits, it also has some negative
consequence like people may also misuse the wonders of information technology.
With an intent to reduce the negative impact of the misuse, the Information Technology Act was
enacted effective from October 17, 2000. It extends to whole of India. Unless otherwise provided
in this Act, Information Technology Act, 2000 also applies to any offence or contravention
hereunder committed outside India by any person.
Information Technology Act, 2000 is the primary law in India dealing with cybercrime and
electronic commerce.
Information Technology Act, 2000
Recognises Electronic Recognises

Recognises documents as evidence electronic filing
electronic under various laws like IPC, of documents
transactions/ Indian Evidence Act, RBI with Govt.
Records including Act & Banker’s Book Authorities
use of Internet Evidence Act
IT Act, 2000 also recognises electronic/computers

related offences like tempering of computers source
documents, hacking electronic data, cybercrime,
violation of privacy & identifications of theft etc.
Penalties & Prosecution for all offences under IT Act,

2000
OBJECT OF THE ACT

• IT Act, 2000 provides legal recognition for electronic transactions carried out means of electronic
data interchange and other means of electronic communication like e-commerce.
• Legal recognition to electronic filing of e-documents with various departments of Government.
• Legal recognition of digital signature, to enable entering into contracts through computers.
• To provide legal recognition for storing data in electronic format.
• To give legal recognition for keeping books of accounts by bankers and other companies in
electronic form.
• Facilitating Electronic fund transfer.
• To stop computer crime and protect privacy of internet users including data theft.
APPLICABILITY
This Act applies to whole of India including the offences committed outside India by any person
irrespective of his nationality, if the computer or computer network used in committing the offence
is located in India.
IT Act doesn't apply to:
(a) Negotiable instruments (other than a cheque) like promissory notes, bill of exchange etc.
(b)Power of Attorney: It is a document through which one person can delegate its Powers to Others.
(c) Trust as defined under the Trusts Act, 1882.
(d)Will (a document through which a person can transfer the ownership post his death)
(e) Others: Any contract for the sale or conveyance of immovable property or any interest in such
property.
IMPORTANT DEFINITIONS
1. Access [Section 2(l)(a)] means gaining entry into, instructing or communicating with the
logical, arithmetical, or memory function resources of a computer, computer system or computer
network;
2. Addressee [Section 2(l)(b)l means a person who is intended by the originator to receive the
electronic record but does not include any intermediary;
In simple words, Addressee is a person to whom originator wants to send some electronic record,
but intermediary will not be an addressee.
3. Affixing digital signature [Section 2(l)(d)] means adoption of any methodology or procedure
by a person for the purpose of authenticating an electronic record by means of digital signature;
In simple words, any method or procedure through which a Digital signature is used to
authenticate a document is termed as affixing Digital Signature.
4. Asymmetric crypto system [Section 2(l)(f)] means a system of a secure key pair consisting of
a Private Key for creating a digital signature and a Public Key to verify the digital signature;
5. Computer [Section 2(l)(i)] means any electronic magnetic, optical or other high-speed data
processing device or system which performs logical, arithmetic, and memory functions by
manipulations of electronic, magnetic or optical impulses, and includes all input, output,
processing, storage, computer software, or communication facilities which are connected or related
to the computer in a computer system or computer network;
6. Computer network [Section 2(l)(j)] means the interconnection of one or more computers
through
(a) The use of satellite, microwave, terrestrial line or other communication media; and
(b)Terminals or a complex consisting of two or more interconnected computers whether or not the
interconnection is continuously maintained.
7. Computer Resource [Section 2(l)(k)] means Computer, Computer System, Computer Network,
data, computer database or software.
8. Computer system [Section 2(1)0)] means a device or collection of devices, including input and
output support devices and excluding calculators which are not programmable and capable of
being used in conjunction with external files, which contain computer programmes, electronic
instructions, input data and output data, that performs logic, arithmetic, data storage and
retrieval, communication control and other functions;
9. Data [Section 2(l)(o)l means a representation of information, knowledge, facts, concepts or
instructions which are being prepared or have been prepared in a formalized manner, and is
intended to be processed, is being processed or has been processed in a computer system or
computer network, and may be in any form (including computer printouts magnetic or optical
storage media, punched cards, punched tapes) or stored internally in the memory of the computer;
10.Electronic form [Section 2(l)(r)l with reference to information means any information
generated, sent, received or stored in media, magnetic, optical, computer memory, micro film,
computer generated micro fiche or similar device;
11.Electronic record [Section 2(l)(t)] means data, record or data generated, image or sound
stored, received or sent in an electronic form or micro film or computer generated micro fiche;
12.Information [Section 2(l)(v)l includes data, text, images, sound, voice, codes, computer
programmes, software and databases or micro film or computer generated micro fiche:
13.Intermediary [Section 2(l)(w)] with respect to any particular electronic message means any
person who on behalf of another person receives, stores or transmits that message or provides any
service with respect to that message;
14.Key pair [Section 2(l)(x)] key pair, in an asymmetric crypto system, means a private key and
its mathematically related public key, which are so related that the public key can verify a digital
signature created by the private key;
15.Originator [Section 2(l)(za)] means a person who sends, generates, stores or transmits any
electronic message or causes any electronic message to be sent, generated, stored or transmitted
to any other person but does not include an intermediary;
16. Private Key [Section 2(l)(zc)l means the key of a key pair used to create a digital signature;
17. Public Key [Section 2(l)(zd)l means the key of a key pair used to verify a digital signature and
listed in the Digital Signature Certificate;
18.Secure system [Section 2(l)(ze)] means computer hardware, software, and procedure that-
(a) Are reasonably secure from unauthorized access and misuse;
(b)Provide a reasonable level of reliability and correct operation;
(c) Are reasonably suited to performing the intended functions; and
(d)Adhere to generally accepted security procedures;
19.Verify [Section 2(l)(zh)] in relation to a digital signature, electronic record or public key, with
its grammatical variations and cognate expressions means to determine whether-
(a) The initial electronic record was affixed with the digital signature by the use of private key
corresponding to the public key of the subscriber;
(b)The initial electronic record is retained intact or has been altered since such electronic record
was so affixed with the digital signature.
DIGITAL SIGNATURE (Section 3)
Any subscriber may authenticate an electronic record by affixing his digital signature. The
Authentication of electronic records shall be effected by the use of asymmetric crypto system and
hash function.
Digital signature means authentication of any electronic record by a subscriber by means of an
electronic method or procedure (Section 2(l)(q). A Digital signature takes the concept of traditional
paper-based signing to another level. It is an electronic coded message. The digital signature
ensures the authenticity of the signer as well as the document.
Any changes made to the document after it is signed invalidate the signature. This helps to protect
the information and document from forgery and tampering. Therefore, Digital signatures help to
intact the authenticity and integrity of the document.
Digital Signature has received legal recognition in India. The Companies Act requires the directors
of the company to sign the electronic forms digitally. Similarly, under Income Tax Act and GST
laws, the assessee can sign the returns and documents electronically by attaching digital
signature.
ELECTRONIC SIGNATURE (Section 3A)
As per Section 3A, electronic signature means authentication of an electronic record by a
subscriber by any means of electronic authentication techniques.
The following are the requirements of an electronic signature:
• It should be reliable.
• The Central Government may notify it in the Official Gazette or specify in the Second Schedule
of the IT Act, 2000.
An electronic Signature or electronic authentication technique shall be considered as reliable
subject to the following conditions:
(a) The technique should be such that it can be linked to the creator of the message.
(b)The technique of electronic signature must be under the control of the maker of the signature.
(c) Any change or alteration to the electronic signature after affixation must be detectable.
(d) Any change or alteration of data after affixing electronic signature must be detectable.
ELECTRONIC GOVERNANCE (Section 4)
Legal Recognition of Electronic Records
Law recognizes electronic records provided that information or any other matter shall be
(a) in writing or
(b)in the typewritten or
(c) printed form, then, such requirement shall be satisfied if such information or matter is:
• rendered or made available in an electronic form; and
• accessible so as to be usable for a subsequent reference.
In simple words, if any law requires that the information or data be provided in a type written or
printed form then even the data provided in electronic form and a form which can be referred
subsequently will be treated as sufficient.
Legal Recognition of Digital Signature (Section 5)
Section 5 provides that where any law requires that any information or matter should be
authenticated by affixing the signature of any person, then such requirement shall be satisfied if
it is authenticated by means of Digital Signatures affixed in such manner as may be prescribed by
Central Government.
In simple words, if any law requires that any signature be affixed on any electronic document,
then affixing of a digital signature will be sufficient.
Use of Electronic Records (Section 6)
Filing of any form, application or other documents, creation, retention or preservation of records,
issue or grant of any license or permit or receipt or payment in Government offices and its agencies
may be done through the means of electronic form.
Retention of Electronic Records (Section 7)
Where any law provides that documents, records or information shall be retained for any specific
period, then, that requirement shall be deemed to have been satisfied if such documents, records
or information are retained in the electronic form, the following conditions are to be satisfied:
• The information contained therein remains reasonably accessible for a subsequent reference;
• The electronic record is retained in the format in which it was originally generated, sent or
received;
• The details which will facilitate the identification of the origin, destination, date and time of
dispatch or receipt of such electronic record are available in the electronic record.
Audit of documents maintained in electronic form (Section 7A)
Any records or information maintained in electronic form can be audited just like physical records.
Electronic Contract
Where in a contract formation, the communication of proposals, the acceptance of proposals, the
revocation of proposals and acceptances, as the case may be, are expressed in electronic form or
by means of an electronic record, such contract shall not be deemed to be unenforceable solely on
the ground that electronic form or means was used for that purpose.
In simple words, a contract formed through electronic mode will be treated as a valid contract.
Attribution of Electronic Records (Section 11)
As per section 11, an electronic record shall be attributed to the originator if it was sent by the
originator himself,-
• any authorized person on his behalf,
• automated Information System of originator.
In simple words, if an electronic record is sent by originator, his authorized person or any
automated system of the originator, the message will be deemed to be sent by the originator.
Time and place of dispatch and receipt of electronic record (Section 13)
Time of dispatch
The time and place of dispatch should be
• As per agreement between the originator and addressee.
• But if no such agreement exists then the dispatch of an electronic record deems to occur when
e-record enters a computer resource outside the control of the originator.
Time of Receipt
The time of receipt of an electronic record is deemed to occur if the electronic records enter the
computer resource of the addressee or the computer resource designated by the addressee.
CERTIFYING AUTHORITIES
A Certifying Authority is a trusted body whose central responsibility is to issue, revoke, renew and
provide directorie of Electronic Certificates.
As per IT Act, 2000 as amended, Certifying Authority also means a person who has been granted
a license to issue Electronic Signature Certificate.
SECURE ELECTRONIC RECORDS
The Central Government is required, by the Act, to prescribe the security procedure for electronic
records, having regard to the commercial circumstances prevailing at the time when the procedure
is used (Section 16).
When the procedure has been applied to an electronic record at a specific point of time, then such
record is deemed to be a secure electronic record, from such point of time to the time of verification.
(Section 14)
An electronic signature shall be deemed to be a secure electronic signature if—
• the signature creation data, at the time of affixing signature, was under the exclusive control of
signatory and no other person; and
• the signature creation data was stored and affixed in such exclusive manner as may be
prescribed. (Section 15)
COMPENSATION FOR FAILURE TO PROTECT DATA (Section 43A)
Where a body corporate, possessing, dealing or handling any sensitive personal data or
information in a computer resource which it owns, controls or operates, is negligent in
implementing and maintaining reasonable security practices and procedures and thereby causes
wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages
by way of compensation to the person so affected.
It may be noted that-
> "Body corporate" means any company and includes a firm, sole proprietorship or other
Association of individuals engaged in commercial or professional activities;
> "Reasonable security practices and procedures" means security practices and procedure
Designed to protect such information from unauthorised access, damage, use, modification,
disclosure or impairment, as may be specified in an agreement between the parties or as may be
specified in any law for the time being in force and in the absence of such agreement or any law,
such reasonable security practices and procedures, as may be prescribed by the Central
Government in consultation with such professional bodies or associations as it may deem fit;
> "Sensitive personal data or information" means such personal information as may be prescribed
by the Central Government in consultation with such professional bodies or associations as it may
deem fit.
A person failing to provide information or failing to file a return etc., has to pay a penalty not
exceeding Rs. 10,000/- for every day during which the failure continues. Contravention of a rule
or regulation attracts liability to pay compensation upto Rs. 25,000, to the person affected by such
contravention or to pay penalty upto that amount.
APPELLATE TRIBUNAL
Chapter X of the Act provides for the establishment of Appellate Tribunal. (Sections 48-
62).The Telecom Disputes Settlement and Appellate Tribunal established under section 14 of the
Telecom Regulatory Authority of India Act, 1997, shall, on and from the commencement of Part
XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), be the Appellate Tribunal for the purposes
of this Act and the said Appellate Tribunal shall exercise the jurisdiction, powers and authority
conferred on it by or under this Act.
The Central Government shall specify, by notification the matters and places in relation to which
the Appellate Tribunal may exercise jurisdiction. In the same Chapter, there are provisions
regarding the compounding of offences and recovery of penalties.
Any person aggrieved by an order of the Controller of Certifying Authorities or of the adjudicator
can appeal to the Appellate Tribunal, within 45 days. (Section 57)
Any person aggrieved by "any decision or order" of the Appellate Tribunal may appeal to the High
Court, within 60 days. Jurisdiction of Civil Courts is barred, in respect of any matter which an
adjudicating officer or the Appellate Tribunal has power to determine.
Extra territorial operation (Section 75)
Extra-territorial operation of the Act is provided for, by enacting that the provisions of the Act
apply to any offence or contravention committed outside India by any person, irrespective of his
nationality, if the act or conduct in question involves a computer, computer system or computer
network located in India.
LIABILITY OF NETWORK SERVICE PROVIDERS
The Internet system depends, for its working, on network service providers- i.e. intermediaries
(example - Companies like Airtels & Vodafone etc). An "intermediary", with respect to any
particular electronic records, means any person who on behalf of another person receives, stores
or transmits that record or provides any service with respect to that record and includes telecom
service providers, network service providers, internet service providers, web-hosting service
providers, search engines, online payment sites, online-auction sites, online-market places and
cyber cafes.
In the capacity as an intermediary, a network service provider may have to handle matter which
may contravene the Act. To avoid such a consequence, the Act declares that no network service
provider shall be liable "under this Act, rule or regulation made thereunder", for any third party
information or data made available by him, if he proves that the offence or contravention was
committed without his knowledge or that he had exercised all due diligence to prevent the
commission of such offence or contravention.
OFFENCES AND PENALTIES
Offences Penalties and Prosecution
Tampering with computer Whoever knowingly or intentionally conceals, destroys or alters or

source documents intentionally or knowingly causes another to conceal, destroy, or alter
any computer source code used for a computer, computer
programme, computer system or computer network, when the
computer source code is required to be kept or maintained by law for
the time being in force, shall be punishable with imprisonment up to
3 years, or with fine which may extend up to Rs. 2 lakh, or with both.
It may be noted that "computer source code" means the listing of
programmes, computer commands, design and layout and
programme analysis of computer resource in any form.
Computer related offences Computer related offences: If any person, dishonestly or fraudulently,
like does any act, he shall be punishable with imprisonment for a term
• Identity theft which may extend to 3 years or with fine which may extend to Rs. 5
lakh or with both.
• Cheating by personation
by using computer
resource
• Violation of privacy
• Cyber terrorism
• Publishing or
transmitting of material
containing sexually explicit
act, etc., in electronic form
• Publishing or
transmitting of material
depicting children in
sexually explicit act, etc., in
electronic form
• Misrepresentation
• Breach of confidentiality
and privacy
• Disclosure of
information in breach of
lawful contract
• Publishing electronic
signature Certificate false
in certain particulars
• Publication for
fraudulent purpose.
Quick Summary OF Information Technology Act, 2000

Central Government
Controller If any issue with controller

↓
Adjudicating authority
Certifying Authority (TCS)
Subscriber
IT Act
Objective & Scope & Controller & Appellate Offences

out of scope & certifying authority Tribunal
definitions
Digital signature & Penalties

electronic signature
Objective / Scope / Definition

Objective Scope Definition
(Legal recognition) Across India 1. Digital signature
2. Private key – create
↓ To person outside India if
3. Public key
1. E – commerce computer system is located
4. Key pair – a systematic
2. Digital signature in India.
crypto system (different)
3. Government (ele. Filing)
5. Asymmetric crypto
4. Storage of data in ele –
system
form
5. Electronic fund transfer
(eft)
6. Books of accounts in
electronic form.
Out of Scope
IT act is not applicable (It should be in physical signature)
Negotiable Instrument Trust Agreement of immovable

except cheque property
Power of Attorney Will
Definitions
2. Originator – Jisne message banaya (sender) intermediary - who receives message. Addressee –
(Receiver)
Basic input output device is computer.
Computer system Computer network
Group of computers (includes input device, Group of computer system or computer
output devices, processing and storage) also but they are used for connecting each
which is used to processing and analysis other.
data.
4. Electronic records – Data / records, image or sound – (send, receive and store – out of these)
which is received, stored, send in electronic form are electronic records.
5. Access: Gaining an entry into arithmetic unit logic unit and memory unit.
6. Secure system:
a. No unauthorized access
b. Reliable system
c. Intended function
d. Security procedure
Digital Signature / Electronic Signature
Electronic record Electronic Governance Time, place and

authentication (short note) acknowledgement of
receipt (addressee /
Digital / electronic Attribution of receiver)
signature reliable electronic records
(originator / sender)
1. Electronic Record Authentication
a. Use of digital signature
b. A symmetric crypto system
c. Public key is used to verify
d. Private and public keys are unique
2. DS / ES Reliable
a. Private key – signature creation data should be with originator
b. Signature creation data is with authenticators (or person authorized by him)
c. Signature creation data at the time of signing (should e with authenticator)
d. Alteration detectable
e. Alteration – Authenticate – detectable
f. Any other condition specified
3. Electronic records: Governance
a. Legal recognition of electronic records (Section 4 – current data)
b. Use of digitial signature and electronic record – Government (Section 6)
c. Retention of electronic records (Section 7) Past data – valid (unmodified form)
d. Audit of electronic records (Section 7(A))
e. Publication of rule in official Gazattee (Section 8)
4. Attribution of electronic records: The attribution of electronic records.
a. Sent by originatory
b. Authorized person
c. Information system on behalf of originator
e.g. Agrawal classes – AT authorized person
5. Time, place and acknowledgements: Time – job acknowledgement kiya place – system of
intermediary (automated message)
Attribution of electronic records: It shall be attributed to originator if:

a. Send by originator OR
b. Some other person who is authorized OR
c. Information system by originator.
Time, place and acknowledgement:

Time – the time when message is received by computer system and acknowledgement is sent.
Place – where addressee is using computer system.
OR
If message is stored on computer network of intermediary.
Acknowledgement – can be in any form / method required by originator.
Procedure for applying digital signature OR electronic signature

Certificate practice statement
Duties of certifying authority

1. His hardware, software, procedure – should not be misused.
2. Reliable
3. Adhere to security procedure – follow.
4. He should be repository of ESC. (Electronic signature certificate)
5. Comply to standards
Functions of controller
1. Supervision CA
2. Standards check CA
3. Content – advertise
4. DS certificate – content
5. Terms and conditions
6. Books of Accounts
7. Audit
8. Conflict of CA and subscriber
9. Duties of CA
Appointment of certifying authority is done by controller.

Central Government appoints controller.
Certifying authority appoints subscriber.
Criteria before issuance of digital signature (DS)

1. Submission of document
2. Compliance
3. Pvt. Key – security with subscriber
4. Pub. Key – addressee
5. Document given – accurate
Cases of suspension of digital signature

1. If subscriber tells to suspend it.
2. Use of digital signature is not in public interest – opportunity of being heard – 15 days.
Revocation of digital signature

1. Death
2. Dissolution / winding up of partnership firm
3. If subscriber not disclose the material fact
4. When systems of certifying authority is compromised (hacked)
Certifying authority / controller
Procedure Duties CA Functions Conditions
1. Application CA 1. Hardware, software, 1. Supervision

2. Application fee should procedure should be 2. Standards
not exceed Rs.25,000 secured from misuse 3. Qualification
3. Application shall and intrusion 4. Content for
include CPS (certificate 2. Adhere to security advertisement
practice statement) procedure 5. Content for DSC
4. CA may consider or may 3. Provide reasonable 6. Term & Condition
not consider CPS. level of reliability 7. Books of Account
4. Repository of DSC / ESC 8. Audit
5. Observe such other 9. Resolving conflicts
standard 10. Duties of CA.
Issue Suspension Revocation
1. The documentation 1. Request from subscriber 1. Death of subscriber

2. Compliance 2. Authorized person on behalf 2. Winding up / dissolution of
3. Pvt. Key (holding) of subscriber. co. or partnership firm
4. Public key (verifying) 3. It is of opinion that DS should 3. Compromised of CA’s system
5. Accuracy be suspended in public 4. If material fact represented is
interest false / concealed.
Offences under IT Act
Section 65
Tempering with source document
(Source code)
3 years imprisonment 2 lakhs Both
Section 66
Section 43
3 years 5 lakhs Both
Section 66A
Offensive message from your communication device
3 years Fine
Section 66B
You are receiver of stolen (dishonestly) device – Computer source,
computer device
Section 66 D
Cheating by personation
Section 66E
Privacy (capture, store transmit) (private area)
Section 66F – Cyber terrorism – life imprisonment.
Section 67
Transfer of absence material (General)
5 lakhs 3 years
Section 67A
Material – sexually explicit act (Publish / transmit)
5 years 10 lakhs
Section 67B
Child – sexually exploited
5 years 10 lakhs
Section 71
Penalty for misrepresentative – CA & controller
2 years 1 lakhs
Computer system / computer damage
Section 43
Access, download, virus, damage, disrupt, destroy, steal, denial of service (denial of access)
If these offences are done the section 66 is applicable.
Section 43A: Sensitive personal data information (SPDI)

(e.g. Address, mob. No.) – corporate body who revealed information liable.
Appeal – Within 45 days of conviction.

Appeal can be done by convict person.
QUESTIONS FOR PRACTICE

1. Summaries the main provisions contained in the Information Technology Act, 2000.
2. What is the significance of electronic records under the Information Technology Act, 2000?
3. State very briefly the gist of the concepts of “computer network”, “electronic form” and “key pair”, under the
Information Technology Act, 2000.
4. What are the offences provided in the Information Technology Act, 2000, for various kinds of misuse of
computer?
5. State, in brief, about the Appellate Tribunal, under the Information Technology Act, 2000.
Information Technology Act, 2000 13.19
Chapter
13 Information Technology Act, 2000
Introduction: The Information Technology Act, 2000 (Cyber law) aims to provide the legal
infrastructure for e-commerce in India and would have a major impact for e-businesses and the
new economy in India. Therefore, it is important to understand, what are the various
perspectives of the Information Technology Act, 2000 and what it offers?
The Information Technology Act, 2000 also aims to provide the legal framework under which
legal sanctity is accorded to all electronic records and other activities carried out by electronic
means. The Act states that unless otherwise agreed, an acceptance of contract may be
expressed by electronic means of communication and the same shall have legal validity and
enforceability.
Objectives & Definitions
Question 1] What are the objectives of enacting the Information Technology Act, 2000?
Ans.: The Information Technology Act, 2000 was enacted to provide legal recognition for
transactions carried out by means of electronic data interchange and other means of electronic
communication, commonly referred to as "electronic commerce", which involve the use of
alternatives to paper-based methods of communication and storage of information, to facilitate
electronic filing of documents with the various authorities.
Objectives: The objectives of the Information Technology Act, 2000 are as follows:
 To grant legal recognition for electronic data interchange and other means of electronic
communication commonly referred to as E-commerce in place of paper based methods of
communication.
 To give legal recognition to digital signatures.
 To facilitate electronic filing of documents with Government.
 To facilitate electronic storage of data.
 To facilitate and give legal sanction to electronic fund transfers.
 To give legal recognition for keeping of books of account by banker’s in electronic form.
 To amend:
- Indian Penal Code, 1860
- Indian Evidence Act, 1872,
- Banker’s Book Evidence Act, 1891
- Reserve Bank of India Act, 1934.
Question 2] State the scope of the Information Technology Act, 2000.

“The Information Technology Act, 2000 is does not apply to certain documents or
transactions”. Explain. CS (Professional) – Dec 2015 (4 Marks), June 2016 (4 Marks)
Ans.: Applicability [Section 1(2)]: The Information Technology Act, 2000 extends to the whole of
India and it applies also to any offence or contravention thereunder committed outside India by
any person.
Non applicability [Section 1(4)]: Noting in the Act shall apply to documents or transactions
specified in First Schedule. Following documents/transactions are specified in First Schedule
to the Act:

(a) A negotiable instrument (other than a cheque) as defined in Section 13 of the Negotiable
Instruments Act, 1881.
(b) A power of attorney as defined in Section 1-A of the Powers of Attorney Act, 1882.
(c) A trust as defined in Section 3 of the Indian Trusts Act, 1882.
(d) A will as defined in Section 2(h) of the Indian Succession Act, 1925 including any other
testamentary disposition by whatever name called.
(e) Any contract for the sale or conveyance of immovable property or any interest in such
property.
Act to apply for offence or contraventions committed outside India [Section 75]: The provisions of
the Act shall apply also to any offence or contravention committed outside India by any person
irrespective of his nationality if it involves computer system or network located in India.
Question 3] Explain the following terms under the Information Technology Act, 2000:
(i) Digital Signature
(ii) Originator
(iii) Asymmetric Crypto System CS (Inter) – Dec 2003 (3 × 2 = 6 Marks)
Ans.: Digital Signature [Section 2(p)]: Digital Signature means authentication of any electronic
record by a subscriber by means of an electronic method or procedure in accordance with the
provisions of Section 3.
Originator [Section 2(za)]: Originator means a person who sends, generates, stores or transmits
any electronic message or causes any electronic message to be sent, generated, stored or
transmitted to any other person but does not include an intermediary.
Asymmetric Crypto System [Section 2(f)]: Asymmetric crypto system means a system of a secure
key pair consisting of –
- A private key for creating a digital signature and
- A public key to verify the digital signature.
Question 4] Explain the term ‘Computer Network’ under the Information Technology
Act, 2000. CS (Inter) – June 2005 (4 Marks)
CS (Professional) – Dec 2014 (2 Marks)
Ans.: Computer Network [Section 2(j)]: Computer network means the interconnection of one or
more computers through –
(i) the use of satellite, microwave, terrestrial line, wire, wireless or other communication media
and
(ii) terminals or a complex consisting of two or more interconnected computers whether or not
the interconnection is continuously maintained.
Question 5] Define the following under the Information Technology Act, 2000:
(i) Computer Network
(ii) Intermediary CS (Inter) – Dec 2006 (2 × 3 = 6 Marks)
Ans.: Computer Network [Section 2(j)]: See the answer to previous question.
Intermediary [Section 2(w)]: Intermediary with respect to any particular electronic message
means any person who on behalf of another person receives, stores or transmits that message
or provides any service with respect to that message.
Question 6] Distinguish between: Computer Network & Computer System

Ans.: Following are the main point of distinctions between computer network & computer
system:

Points Computer Network Computer System

Meaning Computer network means the Computer system means a device or
interconnection of one or more computers collection of devices, including input and
through – output support devices and excluding
(i) the use of satellite, microwave, terrestrial calculators which are not programmable
line, wire, wireless or other and capable of being used in conjunction
communication media and with external files, which contain computer
(ii) terminals or a complex consisting of two programmes, electronic instructions, input
or more interconnected computers data and output data, that performs logic,
whether or not the interconnection is arithmetic, data storage and retrieval,
continuously maintained. communication control and other
functions.
What it is Computer network is the interconnection of Computer system means a device or
one or more computers. collection of devices including input and
output support devices.
What it Computer network helps to connect with Computer system helps to process and
does other computer or computer systems. analyze data with its input and output
device.
Example Internet, intranet and extranet are the Desktop computer, laptop and other
examples of computer network. devices connected with it like keyboard,
speakers, printer is together is known as
computer system.
Question 7] Define the following terms under the Information Technology Act, 2000:
(i) Digital signature
(ii) Private key
(iii) Public key
(iv) Key Pair
Distinguish between: ‘Public key’ and ‘Private key’
Ans.: Digital Signature [Section 2(p)]: Digital signature means authentication of any electronic
Private Key [Section 2(zc)]: Private key means the key of a key pair used to create a digital
signature.
Public Key [Section 2(zc)]: Public key means the key of a key pair used to verify a digital
signature and listed in the Digital Signature Certificate.
Key Pair [Section 2(x)]: Key pair, in an asymmetric crypto system, means a private key and its
mathematically related public key, which are so related that the public key can verify a digital
signature created by the private key.
Question 8] Define the various terms as defined in the Information Technology Act,
2000.
Ans.: Access [Section 2(a)]: Access with its grammatical variations and cognate expressions
means gaining entry into, instructing or communicating with the logical, arithmetical, or
memory function resources of a computer, computer system or computer network.
Addressee [Section 2(b)]: Addressee means a person who is intended by the originator to receive
the electronic record but does not include any intermediary.
Affixing Electronic Signature [Section 2(c)]: Affixing electronic signature with its grammatical
variations and cognate expressions means adoption of any methodology or procedure by a
person for the purpose of authenticating an electronic record by means of digital signature.

Computer [Section 2(i)]: Computer means any electronic magnetic, optical or other high-speed
data processing device or system which performs logical, arithmetic, and memory functions by
manipulations of electronic, magnetic or optical impulses, and includes all input, output,
processing, storage, computer software, or communication facilities which are connected or
related to the computer in a computer system or computer network.
Computer Resource [Section 2(k)]: Computer resource means computer, computer system,
computer network, data, computer data base or software.
Computer System [Section 2(l)]: Computer system means a device or collection of devices,
including input and output support devices and excluding calculators which are not
programmable and capable of being used in conjunction with external files, which contain
computer programmes, electronic instructions, input data and output data, that performs logic,
arithmetic, data storage and retrieval, communication control and other functions.
Data [Section 2(o)]: Data means a representation of information, knowledge, facts, concepts or
instructions which are being prepared or have been prepared in a formalized manner, and is
intended to be processed, is being processed or has been processed in a computer system or
computer network, and may be in any form (including computer printouts magnetic or optical
storage media, punched cards, punched tapes) or stored internally in the memory of the
computer.
Electronic Record [Section 2(t)]: Electronic record means data, record or data generated, image
or sound stored, received or sent in an electronic form or micro film or computer generated
micro fiche.
Information [Section 2(v)]: Information includes data, message, text, images, sound, voice,
codes, computer programmes, software and databases or micro film or computer generated
micro fiche.
Intermediary [Section 2(w)]: Intermediary with respect to any particular electronic record means
any person who on behalf another person receives, stores or transmits that that record or
provides any service with respect to that record and includes telecom services providers,
network service providers, internet services providers, web-hosting service providers, search
engine, online payment sites, online auction sites, online market places and cyber cafes.
Secure System [Section 2(ze)]: Secure system means computer hardware, software, and
procedure that –
(a) Are reasonably secure from unauthorized access and misuse;
(b) provide a reasonable level of reliability and correct operation;
(c) Are reasonably suited to performing the intended functions; and
(d) Adhere to generally accepted security procedures
Verify [Section 2(zh)]: Verify in relation to a digital signature, electronic record or public key,
with its grammatical variations and cognate expressions means to determine whether –
(a) the initial electronic record was affixed with the digital signature by the use of private key
corresponding to the public key of the subscriber;
(b) the initial electronic record is retained intact or has been altered since such electronic
record was so affixed with the digital signature.
Question 9] Distinguish between: ‘Electronic form’ and ‘Electronic record’

Ans.: Electronic Form [Section 2(r)]: Electronic form with reference to information means any
information generated, sent, received or stored in media, magnetic, optical, computer memory,
micro film, computer generated micro fiche or similar device.
Electronic Record [Section 2(t)]: Electronic record means data, record or data generated, image
or sound stored, received or sent in an electronic form or micro film or computer generated
micro fiche.

Digital/Electronic Signature & Electronic Governance
Question 10] Write a short note on: Legal recognition to electronic records
What is ‘electronic record’? Discuss the relevant provisions of the Information
Technology Act, 2000 about the authentication of electronic records.
CS (Professional) – June 2014 (4 Marks)
Ans.: Electronic Record [Section 2(t)]: Electronic record means data, record or data generated,
image or sound stored, received or sent in an electronic form or micro film or computer
generated micro fiche.
Authentication of electronic records [Section 3]:
(1) Any subscriber may authenticate an electronic record by affixing his digital signature.
(2) The authentication of the electronic record shall be effected by the use of asymmetric
crypto system and hash function which envelop and transform the initial electronic record
into another electronic record.
(3) Any person by the use of a public key of the subscriber can verify the electronic record.
(4) The private key and the public key are unique to the subscriber and constitute a
functioning key pair.
Question 11] Write a short note on: Electronic Signature
Ans.: Electronic Signature [Section 3A(1)]: A subscriber may authenticate any electronic record
by such electronic signature or electronic authentication technique which –
(a) is considered reliable and
(b) may be specified in the Second Schedule.
When electronic signature be treated as reliable [Section 3A(2)]: Any electronic signature or
electronic authentication technique shall be considered reliable if –
(a) The signature creation data or the authentication data are, within the context in which they
are used, linked to the signatory or, as the case may be, the authenticator and of no other
person.
(b) The signature creation data or the authentication data were, at the time of signing, under
the control of the signatory or, as the case may be, the authenticator and of no other
person.
(c) Any alteration to the electronic signature made after affixing such signature is detectable.
(d) Any alteration to the information made after its authentication by electronic signature is
detectable.
(e) It fulfills such other conditions which may be prescribed.
Authentication & Procedure [Section 3A(3) & (4)]: The Central Government may prescribe the
procedure for the purpose of ascertaining whether electronic signature is that of the person by
whom it is purported to have been affixed or authenticated.
The Central Government may, by notification in the Official Gazette, add to or omit any
electronic signature or electronic authentication technique and the procedure for affixing such
signature from the second schedule.
However, no electronic signature or authentication technique shall be specified in the Second
Schedule unless such signature or technique is reliable
Notification to be laid before Parliament [Section 3A(5)]: Every notification issued under Section
3A(4) shall be laid before each House of Parliament.
Digital signature is a sub set of electronic signature. The Information Technology (Amendment) Act,
2008, in order to maintain continuity with the regime of the digital signature has introduced the
concept of ‘electronic signature’. Examples of electronic signatures may include biometric signatures,
passwords, PINs, encryption applications etc.

Question 12] Write a short note on: Digital Signature

Describe the meaning and content of digital signatures. Who issues digital signatures?
CS (Professional) – Dec 2014 (2 Marks), Dec 2015 (2 Marks)
Legal recognition of digital signatures [Section 5]: Where any law provides that information or
any other matter shall be authenticated by affixing the signature or any document shall be
signed or bear the signature of any person then, notwithstanding anything contained in such
law, such requirement shall be deemed to have been satisfied, if such information or matter is
authenticated by means of digital signature affixed in such manner as may be prescribed by
the Central Government.
A digital signature is a digital code that can be attached to an electronically transmitted message that
uniquely identifies the sender. Like a written signature, the purpose of a digital signature is to guarantee
that the individual sending the message really is who he or she claims to be. Digital signatures are
especially important for electronic commerce and are a key component of most authentication schemes.
Question 13] Write a short note on: Electronic Governance

Explain the retention of electronic records as per Section 7 of the Information
Technology Act, 2000. CS (Professional) – Dec 2016 (4 Marks)
Ans.: Legal recognition of electronic records [Section 4]: Where any law provides that information
or any other matter shall be in writing or in the typewritten or printed form, then,
notwithstanding anything contained in such law, such requirement shall be deemed to have
been satisfied if such information or matter is –
(a) rendered or made available in an electronic form and
(b) accessible so as to be usable for a subsequent reference.
Use of electronic records and digital signatures in Government and its agencies [Section 6]: Where
any law provides for –
(a) The filing of any form, application or any other document with any office, authority, body or
agency owned or controlled by the appropriate Government in a particular manner;
(b) The issue or grant of any licence, permit, sanction or approval by whatever name called in a
particular manner;
(c) The receipt or payment of money in a particular manner,
then, such requirement shall be deemed to have been satisfied if such filing, issue, grant,
receipt or payment, as the case may be, is effected by means of such electronic form as may be
prescribed by the appropriate Government.
The appropriate Government may by rules prescribe –
(a) The manner and format in which such electronic records shall be filed, created or issued;
(b) The manner or method of payment of any fee or charges for filing, creation or issue any
electronic record under clause (a).
In simple words Section 6 states that – where any form or application is required to be filed with any
authority then such form and application can be filed electronically.
For example, Income Tax Act, 1961 provides that every assessee having income more than basic exemption
limit has to file return of income. Thus, if any person files his return electronically then it is equivalent to
filing of physical return with the income tax department.
Retention of electronic records [Section 7]: Where any law provides that documents, records or
information shall be retained for any specific period, then, that requirement shall be deemed to
have been satisfied if such documents, records or information are retained in the electronic
form, if –

(a) The information contained therein remains accessible so as to be usable for a subsequent
reference.
(b) The electronic record is retained in the format in which it was originally generated, sent or
received or in a format which can be demonstrated to represent accurately the information
originally generated, sent or received.
(c) The details which will facilitate the identification of the origin, destination, date and time of
dispatch or receipt of such electronic record are available in the electronic record. Provided
that this clause does not apply to any information which is automatically generated solely
for the purpose of enabling an electronic record to be dispatched or received.
This section does not apply to any law that expressly provides for the retention of documents,
records or information in the form of electronic records.
In simple words due to provisions of the Section 7, electronic records can be kept unless some specific
contrary provisions exist in any other law.
For example, every company is required to keep books of account, records and register under the Companies
Act, 2013; if such books or records are kept in electronic form then it is equivalent to keeping of record in
physical form.
Audit of documents maintained in electronic form [Section 7A]: Where in any law for the time
being in force, there is a provision for audit of documents, records or information, that
provision shall also be applicable for audit of documents, records or information processed and
maintained in the electronic form.
Publication of rule, regulation, etc. in Electronic Gazette [Section 8]: Where any law provides that
any rule, regulation, order, bye-law, notification or any other matter shall be published in the
Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule,
regulation, order, bye-law, notification or any other matter is published in the Official Gazette
or Electronic Gazette.
However, where any rule, regulation, order, bye-law, notification or any other matter is
published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed
to be the date of the Gazette which was first published in any form.
No right to insist document should be accepted in electronic form [Section 9]: Sections 6, 7 and 8
do not confer a right upon any person to insist that any Ministry or Department of the Central
Government or the State Government or any authority or body established by or under any law
or controlled or funded by the Central or State Government should accept, issue, create, retain
and preserve any document in the form of electronic records or effect any monetary transaction
in the electronic form.
Question 14] Mr. Z wants to file certain document with Government. He insists that
government authorities should accept such document in electronic form. Advise suitably
to Mr. Z.
Ans.: As per Section 9 of the Information Technology Act, 2000, no person can insist that any
Ministry or Department of the Central Government or the State Government or any authority or
body established by or under any law or controlled or funded by the Central or State
Government should accept, issue, create, retain and preserve any document in the form of
electronic records or effect any monetary transaction in the electronic form.
Thus, if there is no provision regarding filing of document with government authorities then
such document has to be filed in physical form. Hence, Mr. Z cannot insist government
authorities to accept document in electronic form.
Question 15] Explain: Digital Signature

What is meant by 'digital signature' under the Information Technology Act, 2000? When
is it deemed to be secure? CS (Inter) – June 2003 (4 Marks)

Secure electronic record [Section 14]: Where any security procedure has been applied to an
electronic record at a specific point of time, then such record shall be deemed to be a secure
electronic record from such point of time to the time of verification.
Secure digital signature [Section 15]: Digital signature shall be deemed to be a secure digital
signature if, by application of a security procedure agreed to by the parties concerned, it can be
verified at the time it was affixation that –
(a) Digital signature is unique to the subscriber affixing it.
(b) Digital signature is capable of identifying such subscriber.
(c) Digital signature is created in a manner or using a means under the exclusive control of the
subscriber and is linked to the electronic record to which it relates in such a manner that if
the electronic record was altered the digital signature would be invalidated.
Question 16] Can contract entered between two parties by electronic means be enforced
under the provisions of the Indian Contract 1872?
Ans.: Validity of contracts formed through electronic means [Section 10A]: Where in a contract
formation, the communication of proposals, the acceptance of proposals, the revocation of
proposals and acceptances, as the case may be, are expressed in electronic form or by means of
an electronic records, such contract shall not be deemed to be unenforceable solely on the
ground that such electronic form or means was used for that purpose.
Thus, contract entered between two parties by electronic means can be enforced under the
provisions of the Indian Contract 1872.
Question 17] Who is originator? When electronic record is attributed to the originator
under the provisions of the Information Technology Act, 2000?
Ans.: Originator [Section 2(za)]: Originator means a person who sends, generates, stores or
transmits any electronic message or causes any electronic message to be sent, generated,
stored or transmitted to any other person but does not include an intermediary.
Since, in an electronic record, the maker remains behind the curtain, it was considered
desirable to make a provision for “attribution” of the record.
Attribution of electronic records [Section 11]: An electronic record shall be attributed to the
originator –
(a) If it was sent by the originator himself;
(b) If it was sent by a person who had the authority to act on behalf of the originator in respect
of that electronic record; or
(c) If it was sent by information system programmed by or on behalf of the originator to operate
automatically.
Question 18] State the provisions relating to ‘acknowledgement of receipt’ under the
Ans.: Acknowledgement of receipt [Section 12]:

(1) Where the originator has not agreed with the addressee that the acknowledgement of
receipt of electronic record be given in a particular form/method, an acknowledgement may
be given by –
(a) Any communication by the addressee, automated or otherwise; or
(b) Any conduct of the addressee, sufficient to indicate to the originator that the electronic
record has been received.
(2) Where the originator has stipulated that the electronic record shall be binding only on
receipt of an acknowledgement of such electronic record by him, then unless

acknowledgement has been so received, the electronic record shall be deemed to have been
never sent by the originator.
(3) Where the originator has not stipulated that the electronic record shall be binding only on
receipt of such acknowledgement, and the acknowledgement has not been received by the
originator within the time specified or agreed or, if no time has been specified or agreed to
within a reasonable time, then the originator may give notice to the addressee stating that
no acknowledgement has been received by him and specifying a reasonable time by which
the acknowledgement must be received by him and if no acknowledgement is received
within the aforesaid time limit he may after giving notice to the addressee, treat the
electronic record as though it has never been sent.
Question 19] Discuss briefly provisions relating to time and place of dispatch and receipt
of electronic record under the Information Technology Act, 2000.
Ans.: Time and place of dispatch and receipt of electronic record [Section 13]: The provisions are
based on basic principle of Contract Act, 1872, in respect of ‘communication’.
Time of dispatch of electronic record [Section 13(1)]: Unless otherwise agreed to between the
originator and the addressee, the dispatch of an electronic record occurs when it enters a
computer resource outside the control of the originator.
Save as otherwise agreed between the originator and the addressee, the time of receipt of an
electronic record shall be determined as follows, namely:
(a) If the addressee has designated a computer resource for the purpose of receiving electronic
records –
(i) receipt occurs at the time when the electronic record enters the designated computer
resource; or
(ii) if the electronic record is sent to a computer resource of the addressee that is not the
designated computer resource, receipt occurs at the time when the electronic record is
retrieved by the addressee;
(b) If the addressee has not designated a computer resource along with specified timings, if
any, receipt occurs when the electronic record enters the computer resource of the
addressee.
Time of receipt of electronic record [Section 13(2)]: Unless otherwise agreed to between the
originator and the addressee, an electronic record is deemed to be dispatched at the place
where the originator has his place of business, and is deemed to be received at the place where
the addressee has his place of business.
Record deemed to have received at place of business [Section 13(3)]: Electronic record is deemed
to have received at the place of business of originator and addressee, unless agreed otherwise.
Place of business [Section 13(5)]: For the purposes of this section —
(a) If the originator or the addressee has more than one place of business, the principal place
of business, shall be the place of business.
(b) If the originator or the addressee does not have a place of business, his usual place of
residence shall be deemed to be the place of business.
"Usual place of residence", in relation to a body corporate, means the place where it is
registered.
Controller & Certifying Authorities
Question 20] Who is controller? What are the functions of Controller as per the
Information Technology Act, 2000? CS (Professional) – June 2014 (4 Marks)
Ans.: Controller [Section 2(m)]: Controller means the Controller of Certifying Authorities
appointed under Section 17(1).

Appointment of Controller and other officers [Section 17]: The Central Government has a power
to appoint a Controller of Certifying Authorities by issuing notification in the Official Gazette.
Deputy & Assistant Controllers can also be appointed by the Central Government.
The Controller shall discharge his functions under the Act subject to the general control and
directions of the Central Government.
The Central Government, in exercise of this power, has appointed Mr. K.N. Gupta as the first Controller of
Certifying Authorities. Mrs. Junu Rani Das Kailay is current controller (Year 2018).
Functions of Controller [Section 18]: Controller may perform following functions –
(a) Exercising supervision over the activities of the Certifying Authorities.
(b) Certifying public keys of the Certifying Authorities.
(c) Laying down the standards to be maintained by the Certifying Authorities.
(d) Specifying the qualifications and experience which employees of the Certifying Authorities
should possess.
(e) Specifying the conditions subject to which the Certifying Authorities shall conduct their
business.
(f) Specifying the contents of written, printed or visual materials and advertisements that may
be distributed or used in respect of a Digital Signature Certificate and the public key.
(g) Specifying the form and content of a Digital Signature Certificate and the key.
(h) Specifying the form and manner in which accounts shall be maintained by the Certifying
Authorities.
(i) Specifying the terms and conditions subject to which auditors may be appointed and the
remuneration to be paid to them.
(j) Facilitating the establishment of any electronic system by a Certifying Authority either
solely or jointly with other Certifying Authorities and regulation of such systems.
(k) Specifying the manner in which the Certifying Authorities shall conduct their dealings with
the subscribers.
(l) Resolving any conflict of interests between the Certifying Authorities and the subscribers.
(m) Laying down the duties of the Certifying Authorities.
(n) Maintaining a data base containing the disclosure record of every Certifying Authority
containing such particulars as may be specified by regulations, which shall be accessible to
public.
Controller to act as repository [Section 20]: Omitted by the Information Technology (Amendment)
Act, 2008.
Question 21] Write a short note on: Certifying Authorities
Ans.: Certifying Authority [Section 2(g)]: Certifying Authority means a person who has been
granted a licence to issue Electronic Signature Certificate under Section 24.
The digital/electronic signature will be certified by the ‘Certified Authorities’.
The Certified Authorities will be licensed, supervised and controlled by ‘Controller’.
Any person intending to issue digital signature certificate should apply for license to Controller.
Presently, the following are licensed Certifying Authorities:
(a) National Informatics Centre (NIC) (b) IDRBT (c) GNFC (d) eMudhra (e) CDAC (f) Capricorn (g)
NSDL
Question 22] Write a short note on: Foreign Certifying Authorities
Ans.: Recognition of foreign Certifying Authorities [Section 19]:

(1) The Controller may with the previous approval of the Central Government, and by
notification in the Official Gazette, recognize any Foreign Certifying Authority as a
Certifying Authority for the purposes of the Act.
(2) Where any Foreign Certifying Authority is recognized, the Electronic Signature Certificate
issued by such Certifying Authority shall be valid for the purposes of the Act.

(3) The Controller may, if he is satisfied that any Certifying Authority has contravened any of
the conditions and restrictions subject to which it was granted recognition, he may revoke
such recognition by notification in the Official Gazette.
Question 23] Explain the duties of certifying authorities under the Information
Technology Act, 2000 in respect of digital signatures.
Ans.: Duties of Certifying Authorities [Section 30]: This section provides that every Certifying
Authority shall follow certain procedures in respect of Digital Signatures.
Every Certifying Authority shall –
(a) Make use of hardware, software, and procedures that are secure from intrusion and
misuse;
(b) Provide a reasonable level of reliability in its services which are reasonably suited to the
performance of intended functions;
(c) Adhere to security procedures to ensure that the secrecy and privacy of the Electronic
Signature are assured;
(d) Be the repository of all Electronic Signature Certificates issued under the Act;
(e) Publish information regarding its practices, Electronic Signature Certificates and current
status of such certificates;
(f) Observe such other standards as may be specified by regulations.
Question 24] State the procedure for obtaining electronic signature certificate.
Who issues digital signatures? CS (Professional) – Dec 2014 (1 Marks)
Ans.: Digital signatures/Electronic signatures are issued by the Certifying Authority.

Certifying Authority to issue electronic signature certificate [Section 35]:
(1) Any person may make an application to the Certifying Authority for the issue of electronic
Signature Certificate in such form as may be prescribed by the Central Government.
(2) Every such application shall be accompanied by such fee not exceeding `25,000 as may be
prescribed by the Central Government, to be paid to the Certifying Authority. However,
different fees may be prescribed for different classes of applicants.
(3) Every such application shall be accompanied by a certification practice statement or where
there is no such statement, a statement containing such particulars, as may be specified by
regulations.
(4) On receipt of an application, the Certifying Authority may, after consideration of the
certification practice statement or the other statement and after making such enquiries as it
may deem fit, grant the Electronic Signature Certificate or for reasons to be recorded in
writing, reject the application. No application shall be rejected unless the applicant has
been given a reasonable opportunity of showing cause against the proposed rejection.
Question 25] A Certifying Authority certifies some parameters/conditions while issuing

a digital signature certificate. Indentify the section under which these parameters/
conditions have been provided in the Information Technology Act, 2000.
Ans.: Section 36 required that while issuing a digital signature certificate, the Certifying
Authority should certify that it has complied with the provisions of the Act, the rules and
regulations made there under and also with other conditions mentioned in the digital signature
certificate.
Representations upon issuance of digital signature certificate [Section 36]: A Certifying Authority
while issuing a digital signature certificate shall certify that –
(a) It has complied with the provisions of this Act and the rules and regulations made there
under.

(b) It has published the digital signature certificate or otherwise made it available to such
person relying on it and the subscriber has accepted it.
(c) The subscriber holds the private key corresponding to the public key, listed in the digital
signature certificate.
(d) The subscriber holds a private key which is capable of creating a digital signature.
(e) The public key to be listed in the certificate can be used to verify a digital signature affixed
by the private key held by the subscriber.
(f) The subscriber's public key and private key constitute a functioning key pair.
(g) The information contained in the digital signature certificate is accurate.
(h) It has no knowledge of any material fact, which if it had been included in the digital
signature certificate would adversely affect the reliability of the representations made in
clauses (a) to (d).
Question 26] Under what conditions digital signatures may be suspended by the
certifying authority? CS (Professional) – June 2016 (3 Marks)
Ans.: Suspension of digital signature certificate [Section 37(1)]: The Certifying Authority which
has issued a digital signature certificate may suspend such it –
(a) On receipt of a request to that effect from –
(i) The subscriber listed in the digital signature certificate or
(ii) Any person duly authorized to act on behalf of that subscriber;
(b) If it is of opinion that the digital signature certificate should be suspended in public
interest.
Opportunity of being heard before suspension [Section 37(2)]: A digital signature certificate shall
not be suspended for a period exceeding 15 days unless the subscriber has been given an
opportunity of being heard in the matter.
Communication to subscriber on suspension [Section 37(3)]: On suspension of a digital signature
certificate, the Certifying Authority shall communicate the same to the subscriber.
Question 27] Under what conditions digital signatures may be revoked by the issuing
authority? CS (Professional) – Dec 2014 (2 Marks)
Ans.: Revocation of digital signature certificate [Section 38(1) & (2)]: A Certifying Authority may
revoke a digital signature certificate issued by it –
(a) Where the subscriber or any other person authorized by him makes a request to that effect;
(b) Upon the death of the subscriber;
(c) Upon the dissolution of the firm or winding up of the company where the subscriber is a
firm or a company.
A Certifying Authority may revoke a digital signature certificate which has been issued by it at
any time, if it is of opinion that -
(a) A material fact represented in the digital signature certificate is false or has been concealed.
(b) A requirement for issuance of the digital signature certificate was not satisfied.
(c) The certifying authority's private key or security system was compromised in a manner
materially affecting the digital signature certificate's reliability.
(d) The subscriber has been declared insolvent or dead or where a subscriber is a firm or a
company, which has been dissolved, wound-up or otherwise ceased to exist.
Opportunity of being heard before revocation [Section 38(3)]: A digital signature certificate shall
not be revoked unless the subscriber has been given an opportunity of being heard in the
matter.
Communication to subscriber on revocation [Section 38(4)]: On revocation of a digital signature
certificate, the Certifying Authority shall communicate the same to the subscriber.

Penalties, Compensation & Adjudication
Question 28] State the penalty for damage to computer or computer system under the
Ans.: Penalty for damage to computer, computer system, etc. [Section 43]: If any person without
permission of the owner or any other person who is in charge of a computer, computer system
or computer network –
(a) Accesses or secures access to such computer, computer system or computer network
(b) Downloads, copies or extracts any data, computer data base or information from such
computer, computer system or computer network including information or data held or
stored in any removable storage medium
(c) Introduces or causes to be introduced any computer contaminant or computer virus into
any computer, computer system or computer network
(d) Damages or causes to be damaged any computer, computer system or computer network,
data, computer data base or any other programmes residing in such computer, computer
system or computer network
(e) Disrupts or causes disruption of any computer, computer system or computer network
(f) Denies or causes the denial of access to any person authorized to access any computer,
computer system or computer network by any means
(g) Provides any assistance to any person to facilitate access to a computer, computer system
or computer network in contravention of the provisions of this Act, rules or regulations
made thereunder,
(h) Charges the services availed of by a person to the account of another person by tampering
with or manipulating any computer, computer system, or computer network,
(i) Destroys, deletes or alters any information residing in a computer resource or diminishes
its value or utility or affects it injuriously by any means (Thus, offence of hacking is covered
by this clause)
(j) Steal, conceal, destroys or alters or causes any person to steal, conceal, destroy or alter
any computer source code used for a computer resource with an intention to cause
damage
then he shall be liable to pay compensation to the person so affected.
Explanation: For the purposes of this section
(i) ‘Computer contaminant’ means any set of computer instructions that are designed –
(a) to modify, destroy, record, transmit data or programme residing within a computer, computer
system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or computer
network.
(ii) ‘Computer data base’ means a representation of information, knowledge, facts, concepts or
instructions in text, image, audio, video that are being prepared or have been prepared in a
formalized manner or have been produced by a computer, computer system or computer network
and are intended for use in a computer, computer system or computer network.
(iii) ‘Computer virus’ means any computer instruction, information, data or programme that destroys,
damages, degrades or adversely affects the performance of a computer resource or attaches itself to
another computer resource and operates when a programme, data or instruction is executed or
some other event takes place in that computer resource.
(iv) ‘Damage’ means to destroy, alter, delete, add, modify or rearrange any computer resource by any
means.
Question 29] Write a short note on: Computer Virus

Ans.: Computer virus means any computer instruction, information, data or programme that
destroys, damages, degrades or adversely affects the performance of a computer resource or

attaches itself to another computer resource and operates when a programme, data or
instruction is executed or some other event takes place in that computer resource.
As per Section 43(c) of the Information Technology Act, 2000 if any person without permission
of the owner or any other person who is in charge of a computer, computer system or computer
network introduces or causes to be introduced any computer contaminant or computer virus
into any computer, computer system or computer network then he shall be liable to pay
compensation to the person so affected.
As per Section 66, if any person, dishonestly, or fraudulently, does any act referred to in
Section 43, he shall be punishable –
- with imprisonment for a term which may extend to 3 years or
- with fine which may extend to `5 lakh or
- with both.
Question 30] Explain the concept of ‘Hacking’ under Information Technology Act, 2000.
Describe the offence of ‘hacking’ with computer system as provided under the provisions
of the Information Technology Act, 2000. Who is the officer competent to investigate an
offence under the Information Technology Act, 2000?
Ans.: ‘Hacking’ is a term used to describe the act of destroying or deleting or altering any
information residing in a computer resource or diminishing its value or utility, or affecting it
injuriously in spite of knowing that such action is likely to cause wrongful loss or damage to the
public or that person.
As per Section 43(i) of the Information Technology Act, 2000, if any person without permission
network destroys, deletes or alters any information residing in a computer resource or
diminishes its value or utility or affects it injuriously by any means then he shall be liable to
pay compensation to the person so affected.
Computer Related Offences [Section 66]: If any person, dishonestly, or fraudulently, does any act
referred to in Section 43, he shall be punishable –
- with both.
Power to investigate offences [Section 78]: Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, a police officer not below the rank of Inspector shall investigate any
offence under the Act.
Thus, the offence of hacking is covered by Section 43(i) and person committing offence of
hacking is liable to pay compensation the person so affected by such offence. The person
committing offence of hacking can also be penalized as per Section 66 of the said Act.
Question 31] One morning, scientists at an atomic research centre found a rude-nuclear
message splashed across their computer screens. Someone had breached the atomic
research centre’s advanced security system and sensitive mail. What offence has been
committed in the atomic research centre?
Ans.: The security system of the atomic research centre has been breached and their system
and accounts have been hacked.
As per Section 43(i) of the Information Technology Act, 2000, if any person without permission
network destroys, deletes or alters any information residing in a computer resource or
diminishes its value or utility or affects it injuriously by any means then he shall be liable to
pay compensation to the person so affected.

Computer Related Offences [Section 66]: If any person, dishonestly, or fraudulently, does any act
referred to in Section 43, he shall be punishable –
- with both.
Thus, the offence of hacking is covered by Section 43(i) and person committing offence of
hacking is liable to pay compensation the person affected by such offence. The person
committing offence of hacking can also be penalized as per Section 66 of the said Act.
Question 32] Whether damages are required to be paid by the body corporate if loss is
caused to any person due to negligent implementation and maintenance of reasonable
security practices?
Mention briefly what does Section 43A of the Information Technology Act, 2000
provides for. CS (Professional) – Dec 2014 (2 Marks)
Ans.: Compensation for failure to protect data [Section 43A]: Where a body corporate, possessing,
dealing or handling any sensitive personal data or information in a computer resource which it
owns, controls or operates, is negligent in implementing and maintaining reasonable security
practices and procedures and thereby causes wrongful loss or wrongful gain to any person,
such body corporate shall be liable to pay damages by way of compensation to the person so
affected.
Question 33] State the penalty for failure to file return or report to Controller or the
Certifying Authority under the Information Technology Act, 2000.
Ans.: Penalty for failure to furnish information return etc. [Section 44]: If any person who is
required under the Act or any rules or regulations made thereunder to –
(a) Fails to furnish any document, return or report to the Controller or the Certifying Authority,
he shall be liable to a penalty not exceeding `1,50,000 for each such failure.
(b) Fails to file any return or do not furnish any information, books or other documents within
the specified time, he shall be liable to a penalty not exceeding `5,000 for every day during
which such failure continues.
(c) Fails to maintain books of account or records, he shall be liable to a penalty not exceeding
`10,000 for every day during which the failure continues.
Question 34] Write a short note on: Residuary Penalty under the Information Technology
Act, 2000
Ans.: Residuary Penalty [Section 45]: Whoever contravenes any rules or regulations made under
this Act, for the contravention of which no penalty has been separately provided, shall be liable
to pay a compensation not exceeding `25,000 to the person affected by such contravention or a
penalty not exceeding `25,000.
Question 35] Examining the provisions of the Information Technology Act, 2000, answer
the following:
(i) Who is adjudicating officer and who appoints him?
(ii) What are the powers of such adjudicating officer?
(iii) What factors are required to be taken into consideration by the adjudicating officer
in adjudging the quantum of compensation?
Write a short note on: Adjudicating officer CS (Executive) – June 2009 (4 Marks)
Ans.: Adjudicating Officer [Section 2(c)]: Adjudicating officer means an adjudicating officer
appointed under section 46(1).
Power to adjudicate [Section 46]: For the purpose of adjudging, whether any person has
committed a contravention of any of the provisions of the Act or of any rule, regulation,

direction or order made thereunder the Central Government shall, appoint any officer not below
the rank of a Director to the Government of India or an equivalent officer of a State Government
to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central
Government.
The adjudicating officer shall exercise jurisdiction to adjudicate matters in which the claim for
injury or damage does not exceed `5 Crore. However, the jurisdiction in respect of claim for
injury or damage exceeding `5 Crore shall vest with the competent court.
Power to impose penalty: The adjudicating officer shall, after giving the person a reasonable
opportunity for making representation in the matter and if, on such inquiry, he is satisfied that
the person has committed the contravention, he may impose such penalty or award such
compensation as he thinks fit in accordance with the provisions of that section.
Powers of a Civil Court: Every adjudicating officer shall have the powers of a Civil Court and all
proceedings before it shall be deemed to be judicial proceedings within the meaning of the
Indian Penal Code, 1860 & Code of Criminal Procedure, 1973.
Factors to be taken into account by the adjudicating officer [Section 47]: While adjudging the
quantum of compensation, the adjudicating officer shall have due regard to the following
factors –
(a) The amount of gain of unfair advantage, wherever quantifiable, made as a result of the
default.
(b) The amount of loss caused to any person as a result of the default.
(c) The repetitive nature of the default.
Appellate Tribunal
Question 36] What is the objective of establishing Appellate Tribunal under the
Information Technology Act, 2000 CS (Professional) – June 2015 (4 Marks)
Ans.: The Appellate Tribunal has been established with the objective to listen the appeal of any
person aggrieved by the order of controller or adjudicating officer.
Appellate Tribunal exercises the jurisdiction, powers and authority conferred on it by or under
the Information Technology Act, 2000.
Thus, Appellate Tribunal acts as forum to seek redressal. However, the jurisdiction of Appellate
Tribunal cannot extend to hearing any other application or petition that is not an appeal from
the order of the controller or adjudicating officer.
Question 37] Write a short note on: Appellate Tribunal under the Information
Technology Act, 2000 CS (Executive) – June 2012 (4 Marks)
Ans.: Appellate Tribunal [Section 48]: The Telecom Disputes Settlement & Appellate Tribunal
established u/s 14 of the Telecom Regulatory Authority of India Act, 1997 shall be the
Appellate Tribunal for the purposes of the Act and the said Appellate Tribunal shall exercise the
jurisdiction, powers and authority conferred on it by or under the Act.
Appeal to Appellate Tribunal [Section 57]:
(1) Any person aggrieved by an order made by Controller or an adjudicating officer may prefer
an appeal to Appellate Tribunal.
(2) No appeal shall lie to the Appellate Tribunal from an order made by an adjudicating officer
with the consent of the parties.
(3) Every appeal shall be filed within a period of 45 days from the date on which a copy of the
order made by the Controller/Adjudicating Officer is received by the person aggrieved.
Such appeal shall be made in prescribed form along with prescribed fee.
However, the Appellate Tribunal may entertain an appeal after the expiry of the said period
of 45 days if it is satisfied that there was sufficient cause for not filing it within that period.

(4) Appellate Tribunal may pass such orders as it thinks fit, confirming, modifying or setting
aside the order appealed against. Tribunal must give an opportunity of being heard to the
parties to the appeal.
(5) Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal
and to the concerned Controller/Adjudicating Officer.
(6) The appeal filed before Appellate Tribunal shall be dealt with by it as expeditiously as
possible and endeavour shall be made by it to dispose of the appeal finally within 6 months
from the date of receipt of the appeal.
Question 38] Amrish was found guilty of damaging the data stored in a computer. The
adjudicating officer fined him `1,00,000 and directed the amount to be paid to the
aggrieved person. Advise Amrish about the course of action against this decision under
the Information Technology Act, 2000. CS (Inter) – Dec 2003 (6 Marks)
Ans.: As per Section 57 of the Information Technology Act, 2000, any person aggrieved by an
order made by Controller or an adjudicating officer may prefer an appeal to Appellate Tribunal.
Every appeal shall be filed within a period of 45 days from the date on which a copy of the order
made by the Controller/Adjudicating Officer is received by the person aggrieved. Such appeal
shall be made in prescribed form along with prescribed fee.
Thus, Amrish is advised to file an appeal to Appellate Tribunal within a period of 45 days from
the date on which a copy of the order made by adjudicating officer is received by him.
Question 39] Abhay downloaded secret data from the computer network of a foreign
company engaged in the manufacture of aircrafts. He was prosecuted and fined Rs. 1
lakh by the adjudicating officer under Section 43 of the Information Technology Act,
2000. Is any remedy available to Abhay? Advise. CS (Inter) – June 2005 (5 Marks)
Ans.: As per Section 57 of the Information Technology Act, 2000, any person aggrieved by an
order made by Controller or an adjudicating officer may prefer an appeal to Appellate Tribunal.
Every appeal shall be filed within a period of 45 days from the date on which a copy of the order
made by the Controller/Adjudicating Officer is received by the person aggrieved. Such appeal
shall be made in prescribed form along with prescribed fee.
Thus, Abhay is advised to file an appeal to Appellate Tribunal within a period of 45 days from
the date on which a copy of the order made by adjudicating officer is received.
Question 40] The Appellate Tribunal enjoys the power of Civil Court under the Code of
Civil Procedure, 1908. Comment. CS (Professional) – June 2014 (4 Marks)
Write a short note on: Power of Appellate Tribunal under the Information Technology
Act, 2000 CS (Professional) – Dec 2014 (4 Marks), Dec 2017 (4 Marks)
Ans.: Procedure at the Appellate Tribunal [Section 58(1)]: The Appellate Tribunal shall not be
bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by
the principles of natural justice.
The Appellate Tribunal shall have powers to regulate its own procedure including the place at
which it shall have its sittings.
Powers of the Appellate Tribunal [Section 58(2)]: The Appellate Tribunal shall have the same
powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, while trying a
suit, in respect of the following matters –
(i) Summoning and enforcing the attendance of any person and examining him on oath;
(ii) Requiring the discovery and production of documents or other electronic records;
(iii) Receiving evidence on affidavits;
(iv) Issuing commissions for the examination of witnesses or documents;
(v) Reviewing its decisions;
(vi) Dismissing an application for default or deciding it ex parte
(vii) Any other matter which may be prescribed

Proceeding before the Appellate Tribunal shall be judicial proceeding [Section 58(3)]: Every
proceeding before the Appellate Tribunal shall be deemed to be judicial proceeding within the
meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code,
1860.
The Appellate Tribunal shall be deemed to be a Civil Court for the purposes of Section 195 and
Chapter XXVI of the Code of Criminal Procedure, 1973.
Question 41] Which Court has jurisdiction over matters pertaining to Appellate
Tribunal? CS (Professional) – Dec 2014 (2 Marks)
Ans.: Civil Court not to have jurisdiction [Section 61]: No court shall have jurisdiction to
entertain any suit or proceeding in respect of any matter which an adjudicating officer
appointed under the Act or the Appellate Tribunal constituted under the Act is empowered by
or under the Act to determine.
No injunction shall be granted by any Court or other authority in respect of any action taken or
to be taken in pursuance of any power conferred by or under the Act.
Question 42] Examining the provisions of the Information Technology Act, 2000, answer
the following:
(i) To whom appeal lies against the order of Appellate Tribunal?
(ii) How much period is available for filing such appeal?
(iii) Whether such appeal has to be filed on question of fact or question of law?
Ans.: Appeal to High Court [Section 62]: Any person aggrieved by any decision or order of the
Appellate Tribunal may file an appeal to the High Court within 60 days from the date of
communication of the decision or order of the Appellate Tribunal to him on any question of fact
or law arising out of such order.
However, the High Court may, if it is satisfied that the appellant was prevented by sufficient
cause from filing the appeal within the said period, allow it to be filed within a further period
not exceeding 60 days.
Offences
Question 43] What are the ‘Cyber Offences’ under the Information Technology Act,
2000? CS (Executive) – June 2009 (4 Marks), June 2010 (4 Marks)
Ans.: The Information Technology Act, 2000 contemplates a dual scheme in regard to wrongful
acts concerning computers etc. Certain act mentioned in Section 43 creates liability to pay
damages to the person affected by such acts.
Chapter XI, covering Sections 65 to 78 deals with offences relating to computers etc. and
connected matters which are as follows:
 Tampering with computer source documents.
 Dishonestly or fraudulently doing any act referred to in section 43.
 Sending offensive messages.
 Dishonestly receiving stolen computer resource or communication device
 Identity theft
 Cheating by personation by using computer resource.
 Violation of privacy.
 Cyber terrorism
 Publishing or transmitting obscene material in electronic form
 Publishing or transmitting of material containing sexually explicit act, etc. in electronic
form
 Publishing or transmitting of material depicting children in sexually explicit act, etc. in

electronic form.
All above offence liable to penalty as described in respective sections. Such offences are
punishable by imprisonment or fine or both.
Question 44] State the penalty for tampering with computer source documents as
provided under the Information Technology Act, 2000.
Ans.: Tampering with computer source documents [Section 65]: Whoever knowingly or
intentionally conceals, destroys or alters or intentionally or knowingly causes another to
conceal, destroy or alter any computer source code used for a computer, computer programme,
computer system or computer network, when the computer source code is required to be kept
or maintained by law for the time being in force, shall be punishable –
- with imprisonment up to 3 years or
- with fine which may extend up to `2 lakh or
- with both.
Explanation: "Computer source code" means the listing of programmes, computer commands,
design and layout and programme analysis of computer resource in any form.
Question 45] Explain the computer related offence and penalty under the Information
Technology Act, 2000. CS (Professional) – Dec 2017 (4 Marks)
Ans.: Computer Related Offences [Section 66]: If any person, dishonestly, or fraudulently, does
any act referred to in Section 43, he shall be punishable –
- with both.
Explanation: For the purpose of this section, the word "Dishonestly" & "Fraudulently" shall have
the meaning assigned to it in Section 24 & Section 25 of the Indian Penal Code, 1860
respectively.
Question 46] State the punishment for sending offensive messages through
communication service as provided under the Information Technology Act, 2000.
Ans.: Punishment for sending offensive messages through communication service [Section 66A]:
Any person who sends, by means of a computer resource or a communication device –
(a) Any information that is grossly offensive or has menacing character; or
(b) Any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or
ill will, persistently by making use of such computer resource or a communication device,
(c) Any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of such
messages
shall be punishable –
- with imprisonment for a term which may extend to 3 years and
- with fine.
Explanation: For the purposes of this section, terms ‘Electronic mail’ and ‘Electronic Mail
Message’ means a message or information created or transmitted or received on a computer,
computer system, computer resource or communication device including attachments in text,
image, audio, video and any other electronic record, which may be transmitted with the
message.
Question 47] State the punishment for “dishonestly receiving stolen computer resource
or communication device” as provided under the Information Technology Act, 2000.

Ans.: Punishment for dishonestly receiving stolen computer resource or communication device
[Section 66B]: Whoever dishonestly receives or retains any stolen computer resource or
communication device knowing or having reason to believe the same to be stolen computer
resource or communication device, shall be punished –
- with imprisonment of either description for a term which may extend to 3 years or
- with both.
Question 48] Write a short note on: Punishment for identity theft
Ans.: Punishment for identity theft [Section 66C]: Whoever, fraudulently or dishonestly make use
of the electronic signature, password or any other unique identification feature of any other
person, shall be punished –
- with imprisonment of either description for a term which may extend to 3 years and
- with fine which may extend to `1 lakh.
Question 49] State the punishment for “cheating by personation by using computer
resource” as provided under the Information Technology Act, 2000.
Ans.: Punishment for cheating by personation by using computer resource [Section 66D]: Whoever,
by means of any communication device or computer resource cheats by personation, shall be
punished –
- with imprisonment of either description for a term which may extend to 3 years and
- with fine which may extend to one `1 lakh.
Question 50] Which section deals with the punishment for violation of privacy? What is
the maximum punishment provided for violation of privacy?
Ans.: Punishment for violation of privacy [Section 66E]: Whoever, intentionally or knowingly
captures, publishes or transmits the image of a private area of any person without his or her
consent, under circumstances violating the privacy of that person, shall be punished –
- with imprisonment which may extend to 3 years or
- with fine not exceeding `2 lakh or
- with both.
Explanation: For the purposes of this section -
(a) ‘Transmit’ means to electronically send a visual image with the intent that it be viewed by a person
or persons.
(b) ‘Capture’, with respect to an image, means to videotape, photograph, film or record by any means.
(c) ‘Private area’ means the naked or undergarment clad genitals, pubic area, buttocks or female breast.
(d) ‘Publishes’ means reproduction in the printed or electronic form and making it available for public.
(e) ‘Under circumstances violating privacy’ means circumstances in which a person can have a
reasonable expectation that –
(i) He or she could disrobe in privacy, without being concerned that an image of his private area was
being captured or
(ii) Any part of his or her private area would not be visible to the public, regardless of whether that
person is in a public or private place.
Question 51] Write a short note on: Punishment for cyber terrorism
Ans.: Punishment for cyber terrorism [Section 66F]:

(1) Whoever, –

(A) with intent to threaten the unity, integrity, security or sovereignty of India or to strike
terror in the people or any section of the people by –
(i) denying or cause the denial of access to any person authorized to access computer
resource; or
(ii) attempting to penetrate or access a computer resource without authorization or
exceeding authorized access; or
(iii) introducing or causing to introduce any Computer Contaminant and by means of
such conduct causes or is likely to cause death or injuries to persons or damage to
or destruction of property or disrupts or knowing that it is likely to cause damage
or disruption of supplies or services essential to the life of the community or
adversely affect the critical information infrastructure specified u/s 70, or
(B) knowingly or intentionally penetrates or accesses a computer resource without
authorization or exceeding authorized access, and by means of such conduct obtains
access to information, data or computer database that is restricted for reasons of the
security of the State or foreign relations; or any restricted information, data or
computer database, with reasons to believe that such information, data or computer
database so obtained may be used to cause or likely to cause injury to the interests of
the sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence, or to the advantage of any foreign nation, group
of individuals or otherwise, commits the offence of cyber terrorism.
(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with
imprisonment which may extend to imprisonment for life.
Question 52] Write a short note on: Punishment for publishing or transmitting obscene
material in electronic form
Ans.: Punishment for publishing or transmitting obscene material in electronic form [Section 67]:
Whoever publishes or transmits or causes to be published in the electronic form, any material
which is lascivious or appeals to the prurient interest or if its effect is such as to tend to
deprave and corrupt persons who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it, shall be punished on first conviction
with imprisonment of either description for a term which may extend to 3 years and with fine
which may extend to `5 lakh.
In the event of a second or subsequent conviction with imprisonment of either description for a
term which may extend to 5 years and also with fine which may extend to `10 lakh.
Question 53] Comment on punishment for publishing or transmitting of material

containing sexually explicit act, etc. in electronic form as stated in Section 67A of the
Information Technology Act, 2000. CS (Professional ) – June 2015 (4 Marks)
Ans.: Punishment for publishing or transmitting of material containing sexually explicit act, etc. in
electronic form [Section 67A]: Whoever publishes or transmits or causes to be published or
transmitted in the electronic form any material which contains sexually explicit act or conduct
shall be punished on first conviction with imprisonment of either description for a term which
may extend to 5 years and with fine which may extend to `10 lakh.
In the event of second or subsequent conviction with imprisonment of either description for a
Exception: This section and section 67 does not extend to any book, pamphlet, paper, writing,
drawing, painting, representation or figure in electronic form –
(i) The publication of which is proved to be justified as being for the public good on the ground
that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in
the interest of science, literature, art, or learning or other objects of general concern; or
(ii) Which is kept or used bona fide for religious purposes.

Question 54] Write a short note on: Punishment for publishing or transmitting of
material depicting children in sexually explicit act, etc. in electronic form
Ans.: Punishment for publishing or transmitting of material depicting children in sexually explicit
act, etc. in electronic form [Section 67B]: Whoever, –
(a) Publishes or transmits or causes to be published or transmitted material in any electronic
form which depicts children engaged in sexually explicit act or conduct or
(b) Creates text or digital images, collects, seeks, browses, downloads, advertises, promotes,
exchanges or distributes material in any electronic form depicting children in obscene or
indecent or sexually explicit manner or
(c) Cultivates, entices or induces children to online relationship with one or more children for
and on sexually explicit act or in a manner that may offend a reasonable adult on the
computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act
with children,
shall be punished on first conviction with imprisonment of either description for a term which
may extend to 5 years and with a fine which may extend to `10 lakh.
In the event of second or subsequent conviction with imprisonment of either description for a
Explanation: For the purposes of this section, "children" means a person who has not
completed the age of 18 years.
Question 55] Mr. X misrepresented the Certifying Authority by filing false document
while obtaining Electronic Signature Certificate. What penalty can be levied on Mr. X for
such offence under the Information Technology Act, 2000?
Ans.: Penalty for misrepresentation [Section 71]: Whoever makes any misrepresentation to, or
suppresses any material fact from, the Controller or the Certifying Authority for obtaining any
license or Electronic Signature Certificate, as the case may be, shall be punished –
- with both.
Liability of Network Service Providers
Question 56] Explain the concept of ‘Network service providers’ under Information
Technology Act, 2000. CS (Inter) – Dec 2002 (4 Marks)
Write a short note on: Network service providers CS (Inter) – June 2006 (4 Marks)
Ans.: As per Section 79 of the Information Technology Act, 2000, network service provider is not
liable if the offence was committed without his knowledge and he had taken care to prevent
commission of offence.
The Internet system depends, for its working, on network service providers i.e. intermediaries.
An “intermediary” with respect to any particular electronic message, means any person who on
behalf of another person receives, stores or transmits that message or provides any service with
respect to that massage.
In his capacity as an intermediary, a network service provider may have to handle matter which
may contravene the Act. To avoid such a consequence, the Act declares that network service
provider shall not be liable “under this Act, rule or regulation made thereunder”, for any third
party information or data made available by him, if he proves that the offence or contravention
was committed without his knowledge or that he had exercised all due diligence to prevent the
commission of such offence or contravention.

Question 57] Chanchal sues Indian Online Ltd. (IOL) for allowing a subscriber Rajat to
use its computer and internet related services for making video tapes and photographs
of child pornography in which Chanchal’s minor son appears. The complaint alleged that
IOL was negligent per se in allowing Rajat to use its facilities for producing obscene
materials, therefore, is liable under criminal law and under the Information Technology
Act, 2000. IOL contends that it has no knowledge of such transmission of unlawful
information. Decide the liability of IOL. CS (Inter) – June 2007 (5 Marks)
Ans.: As per Section 79 of the Information Technology Act, 2000, network service provider is not
liable if the offence was committed without his knowledge and he had taken due care to prevent
commission of offence.
Thus, if IOL proves that offence did not occur because of their negligence, then they would not
be liable for committing any offence under Information Technology Act, 2000.
Miscellaneous
Question 58] Write a short note on: Passing off CS (Executive) – Dec 2008 (2 Marks)
Ans.: Information Technology Act, 2000 does not contain a specific provision, declaring illegal
any fraudulent use, by one person, of other person’s domain name. However, even in the
absence of specific legislation on the subject such conduct can become actionable under the
law of torts. In fact, judicial decisions, both in India and elsewhere, amply demonstrate the
potency of the law of torts in this context. The tort of “passing off” is wide enough to afford legal
redress (in damages) to a person who is the holder of a particular domain name and who
suffers harm as a result of the fraudulent use of his domain name by another person. Such
conduct has been regarded as falling under the tort of “passing off”. The crux of the action of
passing of lies in actual or possible or probable deception.
The principles relating to “passing off” were held to be applicable to domain names in Rediff
Communication Limited v Cyberbooth & Another AIR 2000 Bombay 27.
The domain name ‘Rediff’ (of the plaintiff) and the domain name ‘Radiff’ (of the defendant) were
held to be deceptively similar and capable of causing deception, as the fields of business
activity of both the parties were similar. The grant of a temporary injunction, restraining the
defendant from using the name in question, was held to be proper.
A similar view has been taken in Yahoo Inc. v Akash Arora. The plaintiff’s domain name was
‘Yahoo’. The defendant’s domain name was ‘Yahoo India’. The two were held to be similar, even
though the defendants had suffixed the word “India”. It was held that, even if a user of Internet
is a sophisticated user, he may be an unsophisticated consumer of information and he may
unintentionally find his way to a different Internet size. In this manner, confusion could be
created.
Question 59] “The majority of the legal problems arising in the sphere of information
technology relate to (a) the machine (b) the medium and (c) the message.” Illustrate the
statement. CS (Inter) – June 2008 (4 Marks), Dec 2012 (4 Marks)
Ans.: It is true that majority of the legal problems arising in the sphere of information
technology relate to the machine, the medium and the message.
The machine: This includes the hardware used to send the message, data and information. If
these are not secured by some means like password etc. the data, message and information
contained in it is likely to be tampered, stolen or damaged.
The message: There are copyright and hacking issues. Different countries address such type of
issue differently, so there are less chance that dispute will be properly addressed.
The medium: The medium through which data, message, documents or information is being
sent must be properly secured otherwise such data, message, documents or information can be
easily stolen or hacked.

Question 60] What is encryption? Discuss the role of public key and private key in
safeguarding the sensitive organizational data. CS (Professional) – June 2014 (4 Marks)
Ans.: In cyber world, encryption is the method by which plaintext or any other type of data is
converted from a readable form to an encoded version that can only be decoded by another
having access to a decryption key. Encryption is one of the most important methods for
providing data security, especially for end-to-end protection of data transmitted across
networks.
To read an encrypted file, you must have access to a secret key (private key) or password that
enables you to decrypt it. Unencrypted data is called plain text. Encrypted data is referred to as
cipher text.
There are two main types of encryption: ‘Asymmetric Encryption’ (also called public-private key
encryption) and ‘Symmetric Encryption’.
In Asymmetric Crypto System a secure key pair consisting of a private key for creating a digital
signature and a public key to verify the digital signature is used.
Symmetric encryption is a type of encryption where the same key is used to encrypt and
decrypt the message.
Thus, Asymmetric Encryption is most secured method of digitally signing any document.
* * * * * * * * * * *

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JAI AASHAPURA MATA KI

Chapter No. Name Page no.

1. Sources of Law 1.1 – 1.31

2. Constitution of India 2.1 – 2.59

3. Interpretation of Statues 3.1 – 3.26

4. General Clauses Act, 1897 4.1 – 4.25

5. Administrative Law 5.1 – 5.30

6. Law of Torts 6.1 – 6.19

7. The Limitation Act, 1963 7.1 – 7.15

8. The Code of Civil Procedure, 1908 8.1 – 8.34

9. Indian Penal Code, 1860 9.1 – 9.45

10. Code of Criminal Procedure, 1973 10.1 – 10.32

11. Indian Evidence Act, 1872 11.1 – 11.38

13. Arbitration & Conciliation Act, 1996 13.1 – 13.32

14. Indian Stamp Act, 1899 14.1 – 14.38

15. Registration Act, 1908 15.1 – 15.20

16. Right to Information Act, 2005 16.1 – 16.22

17. Information Technology Act, 2000 17.1 – 17.42

[Salomond [Roscoe Pound

Principle source of Indian law Secondary source of Indian law

Meaning of customs and its classification and requisites

Custom without sanction Custom having sanction

1. It is not obligatory 1. Legal customs – such customs are recognized and

Various Types of Precedent’s

Original Declaratory Persuasive Absolutely authoritative precedents

Conditionally Authoritative Precedents

Ratio Decidendi Obiter Dictum

Reason for the decision Something said by the way

Legislation as Source of Law

Personal laws for Hindus Personal laws for Mohammedans

Manu Yajnavalkya Narada

B. Personal Laws for Mohammedans

Kelsen’s Pure Theory of Law

Bentham’s theory of law- Pleasure & pain theory

Q No. 1. Write a short note on: Sources of Law

Que. No. 2] Critically examine the Natural School’s definition of ‘law’.

Que. No. 3] Write a short note on: Positivistic definition of law

CA, CS Nilamkumar Bhandari CS N S Zad

Que. No. 4] Write a short note on: Historical definition of Law

Ans.: Savigny’s theory of law can be summarized as follows:

Que. No. 5] Write a short note on: Sociological definition of Law

Ans.: Duguit defines law as “essentially and exclusively as social fact.”

Que. No. 6] Write a short note on: Realist Definition of Law

Ans.: Realists define law in terms of judicial process.

CA, CS Nilamkumar Bhandari CS N S Zad

Source of Indian Law

Que. No. 8] Write a short note on: Sources of Law

CA, CS Nilamkumar Bhandari CS N S Zad

CA, CS Nilamkumar Bhandari CS N S Zad

Ans.: High Courts:

CA, CS Nilamkumar Bhandari CS N S Zad

Que. No. 12] Explain: Precedent as source of law.

Ans.: Various types of precedents are as follows:

CA, CS Nilamkumar Bhandari CS N S Zad

CA, CS Nilamkumar Bhandari CS N S Zad

Ans.: Stare Decisis means ‘to stand by decided cases’.

CA, CS Nilamkumar Bhandari CS N S Zad

Que. No. 20] Legislation is either supreme or subordinate. Comment.

CA, CS Nilamkumar Bhandari CS N S Zad

Que. No. 21] Write a short note on: Personal Law

CA, CS Nilamkumar Bhandari CS N S Zad

CA, CS Nilamkumar Bhandari CS N S Zad

CA, CS Nilamkumar Bhandari CS N S Zad