Law of Crime

UNIT- I`

1. Various powers of Courts. What are the modes of conferring and withdrawals of powers?

INTRODUCTION:- Chapter III of the code deals with Powers of Courts to take cognizance of the
offences. For this purpose the offences are divided into two groups, i) Offences under IPC and ii)
offences under any other law. The courts by which these offences are triable are specified below:-

Courts by which offences are triable:- As per provisions laid down in section 26 the courts by which
offences are triable:-

1. a) Any offence under IPC-45 may be tried by High Court. B) Session Court. c) Any other
court by which such offence is shown in the first schedule to be triable.

2. Any offence under any other law, when any Court is mentioned in this behalf in such law, be tried
by: i) High Court. ii) Any other court by which such offence is shown in the first schedule.

Section 27: Jurisdiction in the case of Juveniles: Any offence not punishable with death or
imprisonment for life who at the date when he appears or is brought before court under the age of
16 years may be tried by the court of CJM or any other court which specially empowered.

Sentences which High Courts and Session Judges may pass: - As per provision laid down in Sect. 28 of
the code that:- (i) High Court may pass any sentence authorized by law. (ii) Session Judge or ADJ may
pass any sentence authorized by law but any sentence of death passed by such judges shall be
subject to confirmation by the High Court.

Sentences which Magistrates may pass:- Sec.29 of Code, The court of CJM may pass any sentence
authorized by law except sentence of death or of imprisonment for life or imprisonment for a term
exceeding 7 years.

The court of Magistrate of Ist.Class may pass a sentence of imprisonment for a term not exceeding
three years or of fine not exceeding Rs.10, 000.

The court of 2nd Class Magistrate may pass an imprisonment for a term not exceeding One year or
of fine not exceeding Rs.5000/- or of both.

Sentence of Imprisonment in default of fine:-The court of Magistrate may award such term of
imprisonment in default of payment of fine as authorized by law under sec.30 of the code, not
exceeding one fourth of the term of imprisonment and also not excess of the powers of the
Magistrate u/s 29.

Sentence in cases of conviction of several offences:- Under Section 31 of code, when a person is
convicted at one trial of two or more offences the court may subject to the provisions of section 71
of IPC sentence him for such offences to the several punishments prescribed therefore which such
court is competent to inflict and pass such order and may direct unless the court directs that such
punishments shall run concurrently, provided that:

1. In no case shall such person be sentenced to imprisonment for a longer period than fourteen
years. 2. The aggregate punishment shall not exceed twice the amount of punishment which the
court is competent to inflict for a single offence. 3. For the purpose of appeal by a convicted person
the aggregate of constructive sentences passed against him shall be deemed to be a single sentence.

MODE OF CONFERRING POWERS:-1. In conferring powers under this code the High Court or the
State Government as the case may be by order empower person especially by name or in virtue their
offices or classes of officials generally by their official titles.

2. Every such order shall take effect from the date on which it is communicated to the person
empowered.

WITHDRAWAL OF POWERS:-Section 34 of the code described that The High Court or the State
Government as the case may be may withdraw all or any of the powers conferred by it under this
code on any person or by any officer subordinate to it.

2. Any powers conferred by the CJM or the District Magistrate may be withdrawn by the respective
magistrate by whom such powers were conferred.

Powers of judges & Magistrates exercisable by their successors-in-office:- Under sec.35 of this code,
the powers and duties of a judge or Magistrate may be exercised or performed by his successor-in-
office.

2. When there is any doubt as to who is the successor-in-office of any additional or Assistant Session
Judge, the Sessions Judge shall determine by order in writing the Judge who shall for the purposes of
this code or of any proceedings or order there under be deemed to be successor-in-office of such
Addl. Or Assistant Sessions Judge.

3. When there is any doubt as to who is the successor-in-office of any Magistrate the CJM or the
District Magistrate as the case may be shall determine by order in writing the proceeding or order
there under be deemed to be successor-in-office of such magistrate.

2. Under what circumstances has a wife got to get maintenance from her husband? Can this right be
exercised by parents and legitimate children? Explain.

Dharamshastras have described the maintenance of wife, children and parents a moral duty of every
person. Manusmriti in its chapter has confirmed this statement and also agreed to it that every
person should maintain his wife, minor children and parents even after performing 100 obligations.
Law also provides for maintenance of person.

Right to maintenance of Wife, children and parents:-Sec125 of the Criminal Procedure Code, lays
down the provisions of wife’s, children’s and parent’s right to maintenance. According to it: - If any
person having sufficient means neglects or refuses to maintain:-

a) His wife unable to maintain herself.

b) His legitimate or illegitimate minor child, whether married or not, unable to maintain
herself.

c) His legitimate or illegitimate child (not being a married daughter)

Who has attained majority, where such child is by reason of herself.

d) His father or mother, unable to maintain himself or herself. Rohtas Singh V/s. Smt.
Remendri-2000.
Right of Maintenance of Illegitimate Child:-Sec. 125 (1) (b) and (c) of the code provides the right of
maintenance to illegitimate son from his father if:-

a) He is unable to maintain himself or is a minor.

b) If major then is unable to maintain him due to physical or mental abnormality injury.
Smt.YamunabaiAnantraoV/sAnantraoShivram-1988.

Parent’s right of Maintenance:- Sec. 125 (1) (d) of the code provide parents the right of maintenance
from their son, provided that:-

a) They are unable to maintain themselves, and

b) Son has the sufficient means to maintain.

Dr. Smt. Vijay ManoharArbatVsKashiraoRajaramSawai-1987.

Section 125(4) of the code provides that wife shall not be able to take maintenance from his
husband in following situations:-

a) When she lives in adultery.

b) When she refuses to live with husband without any sufficient reason.

c) When they live separately by mutual consent. Dev Narayan HalderV/s Smt.
AnushreeHalder-2003. Wife can claim maintenance when she lives separately from husband with
sufficient reasons. T.C ChakoVsAnnamma-1994.

Following are considered sufficient reasons for living separately:-

a) When husband has contracted marriage with another women.

b) When husband keeps concubine and behaves with cruelty.

c) When the husband is unable to have sexual intercourse due to impotency.

Amount of Maintenance:-The amount of maintenance has not been fixed under Sec.125 of the code.
Earlier, this amount of Rs. 500/- maximum for every person, but by the Criminal Procedure Code
(Amendment) Act, 2001, the maximum limit has been abolished. Now this amount depends upon
the discretion of the magistrate.

Magistrate can order for the amount of maintenance which it considers sufficient. Generally the
amount is fixed considering the position of parties, necessities, income of the husband etc. The
amount of maintenance could be altered under Sec. 127 when there is change in the circumstances.
This amount can be increased or decreased.

When shall be the Maintenance paid:-Sec.125 (2) of the code provides that the amount of
maintenance shall be paid:-From the date of order, or from the date of application.

Application for Maintenance:-Sec.126 of the code provides that proceeding under 125 may be taken
against any person in any district:- a)Where he is or where he or his wife resides. B) Where he last
resided with his wife, or as the case may be, with the mother of the illegitimate child. Case
KumudumV/skanappam-1999.

Consequences of Non-Compliance of Order:-Sec.125 (3) of the code provides that if any person fails
to comply with the order without sufficient cause, then the magistrate may, for every breach of the
order, issued a warrant for levying the amount and after the execution of the warrant may sentence
such person for the whole or any part of each month’s allowance remaining unpaid, to
imprisonment for a term which may extend to one month.

3. what are the cases in which a person is required to execute bond for maintaining peace for good
behavior? Illustrate your answer.

Peace and Good behavior are two important expectations of a civilized society. It is also the duty of
state to attempt to maintain peace and good behavior. The sec. 106 to sec. 110 of the Criminal
Procedure Code, 1973 takes a step in this direction. Provision related to peace and good behavior is
following.

1. Security for keeping peace on Conviction:- Sec.106 provides for security for keeping peace on
conviction. According to it-when a court of session or court of first class magistrate convicts any
person for any of the following offences or of abetting such offence and is of the opinion that it is
necessary to take security from such person for keeping peace, then the court may order him to
execute a bond, with or without sureties’ for keeping the peace for such period not exceeding three
years:-

a) Any offence which consists of assault or using criminal force ore committing mischief. B)
Any offence of criminal intimidation. c) Any other offence which caused, or was intended or known
to be likely to cause, a breach or peace. Inder Singh VsHarbans Singh-1955.

2. Security for keeping peace in Other Cases:- Sec. 107 of the code lays down the provision for
demand of security for keeping peace in certain matters. According to it: - a) A breach of peace. b)
Disturb the public tranquility. c) Any wrongful act that may probably occasion a breach of peace or
disturb the public tranquility. Then he may ordered that he shall execute a bond with or without
sureties for keeping peace for such period not exceeding one year. (Ramnarayan Singh V/s State of
Bihar-1972.

3. Security for good behavior from persons disseminating Seditious Matters:-Sec 108 lays down
provision for taking security from person disseminating seditious matters.

a)Any matter the publication of which is punishable under section 124-A or Sec 153A or Sec 153B or
Sec 295A or the Indian Penal Code (45 of 1860). b) Any matter concerning a judge acting or
purporting to act in the discharge of his official duties which amounts to criminal intimidation or
defamation under the Indian Penal Code (45 of 1860). Then such magistrate may demand such
person to execute a bond, with or without sureties’, for his good behavior for such period not
exceeding one year. This system has been declared constitutional in the public interest Kedarnath
Singh V/s State of Bihar, 1962.

4. Security for good behaviour from Habitual Offenders:- Sec. 110 of the code lays down the
provision for demand or security for good behaviour from habitual offenders. According to it, when
an executive magistrate receives information that there is within his local jurisdiction a person who:-
a)Is by habit a robber, house-breaker, thief, or forger, b)Is by habit a receiver of stolen property
knowing the same to have been stolen.

c) Habitually protects or harbors thieves, or aids in the concealment or disposal of stolen property.
d) Habitually commits, or attempts to commit, or abets the commission of, the offence of
kidnapping, abduction, extortion, cheating or mischief. e) Habitually commits or attempts to commit,
or abets the commission of, offences, involving a breach of peace.

f) Habitually commits, or attempts to commit, or abets the commission of any offence under:-Then
such may require such person to execute a bond with sureties for his good behaviour for such period
not exceeding three years.

Procedure:-Sec.111 to Sec 124 of the Criminal Procedure Code, 1973 lays down the procedure for
taking security keeping peace and good behavior:-

1. When the magistrate receives any information under sec 107,108, 109 or sec 110 then the
magistrate shall order him explaining the following points i) with the intention to require him to
show cause why he should not execute a bond for keeping peace or good behavior Banarsi V/s
Neelam-1969.

a. If such person is not present in the court, then he shall be issued a summon and if such person is
in custody than a warrant directing the officer in whose custody he is to bring him before the court
shall be issued(Sec 113). b. Every summons or warrant shall be accompanied by the copy of order
(Sec 114). c. If upon such inquiry, it is proved that it is necessary for keeping peace and maintaining
good behaviour that such the magistrate shall require such bond (Sec 117). Here it is important that
the ordered bond and amount of bond should be justifiable. It should not be so much that the
related person cannot execute a bond of such amount.(Mohammed) 1. The bond to be executed by
any person shall bind him to keep the peace or maintain good behaviour, and if such person
commits later any offence or attempts to commit or its abetment then it shall be considered the
breach of bond (Sec. 120) 2. The period of bond shall commence on the date of such order. If such
person is undergoing imprisonment then such period shall commence on expiration of such
sentence.(Sec 119).

Here, it is important that:- a) A magistrate may refuse any surety on the ground that it is unfit but
before doing so an inquiry shall be conducted (Sec 121) b) If any person fails to give security then
such person shall be send to the prison (Sec 122).

4 Define the term Arrest. When a Police Officer can arrest a person without a warrant or without
the order of the Magistrate? What the rights of an arrested person?

Introduction:- Generally, a person is arrested by the order of the magistrate or by a warrant. A police
officer cannot arrest a person arbitrarily or without the order of magistrate or without warrant. But
this rule has few exceptions to it which means that under certain circumstances a person can be
arrested without the order of the magistrate or without warrant.

Arrest without warrant:- Sec. 41 of the Criminal Procedure Code 1973 provides that a police officer
can arrest a person without the orders or warrant of the magistrate in following situations:

(1) When any person 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.

(2) When any person has in his possession without lawful excuse any implement of house-
breaking.

(3) When any person 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 things.
(4) When any person obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape from lawful custody.

(5) When any person is reasonably suspected of being a deserter from any of the armed forces
of the union.

(6) When any person being a released convict, commits a breach of any rule made under sub-
section (5) of section 356;

(7) When for any persons arrest any requisition, whether written or oral, has been received
from another police officer, provided that the requisition specifics the person to be arrested.

Thus, in this way a police officer under sec 41(1) can arrest any person without the order or warrant
of a magistrate.

Arrest of Suspected or Habitual Offenders:-Sec 41(2) provides that a police officer can also arrest any
person without the order or warrant from magistrate:-

a) Who belongs to the category of suspected offenders under sec 109 of the Code.

b) Who belongs to the category of Habitual offenders under sec 110 of the Code. Arrest on Refusal
to give Name and Residence:- Sec 42(1) of the code provide that a police officer can also arrest any
person without the order or warrant from magistrate.

D) The person who gives a name or residence which such officer has reason to believe to be false
residence of such person have been ascertained, then he shall be released on a bond with or
without sureties. Devkinandan V/s Emperor-1941.

Arrest to prevent a cognizable offence:-Another situation of a police officer arresting any person
without the order or warrant from magistrate has been provided in sec 151 of the code. A police
officer knowing of a design to commit any cognizable offence may arrest, without orders from the
Magistrate and without a warrant, the person so designing, if it appears to such officer that the
commission of the offence cannot be otherwise prevented. Thus sec 151(1) provides a police officer
the powers to arrest a person without the order from the magistrate or without a warrant, when
generally a person cannot be arrested without the order of magistrate and without warrant. (A.K
GopalanV/s State-1962.

RIGHTS OF THE ARRESTED PERSON:- Sec. 41D of the code:- 1.When any person is arrested and
interrogated by Police he shall be entitled to meet an advocate of his choice during interrogation
though not throughout interrogation. 2. Arrestee has the right to nominate his relative or any friend
for giving information to him about his arrest.
 UNIT – II

5. When may a criminal complaint be filed before the Magistrate? Discuss the power of Magistrate
to decide criminal complaint.

INTRODUCTION: Sec. 200 says, that the preliminary procedure which a Magistrate shall follow on
receiving a complaint. It is obligatory to examine the complainant and the witnesses and a summary
dismissal without them is not legal. The substance of such examination shall be reduced to writing
and shall be signed by the complainant and the witnesses and also by the Magistrate. If a public
servant acting or purporting to act in the discharge of his official duties or a court has made the
complaint or the magistrate makes over the case for inquiry or trial to another Magistrate under
sec.192.

1. Procedure by Magistrate not competent to take cognizance of the case: If a complaint made to a
Magistrate who is not competent to take cognizance of the offence he shall return it for
presentation to the proper court with an endorsement to that effect or where the complaint is not in
writing then he will direct the complainant to the proper court as provided in sec.201 of Cr.P.C.Case
of Rajender Singh v/s State of Bihar, 1989.

2. To Postponement of issue of Process:- Sec.202 of the code provided that where it appears to the
magistrate that the offence complained is triable exclusively by the court of Sessions or where the
complaint has not been made by a court unless the complainant and the witnesses present have
been examined on oath under sec.200. If an investigation is made by a person not being a Police
officer he shall have for that investigation all the powers conferred by this code on an officer in
charge of a police station except the power o arrest without warrant. Sec. has provided to ascertain
the following: i) to ascertain the facts constituting the offence.

ii) To prevent abuse of process resulting in wastage of time of the court and harassment to the
accused.

iii) To help the magistrate to judge if there is sufficient ground for calling the investigation and for
proceeding with the case. Case: Balraj Khanna v/s Motiram-1971.

3. Dismissal of Complaint:- A Magistrate may dismiss a complaint if after considering the statement
on oath of the complainant and of the witnesses and the result of inquiry or investigation under
sec.202. But where there is sufficient ground for preceding the Magistrate cannot dismiss the
complaint under sec.203 of the code. If he finds that no offence has been committed, if he distrusts
the statement or if he distrusts the complainant may direct for further inquiry. In such cases he may
refuse to issue process. Case Sulab Chandra v/s Abdula-1926. These are the provisions under sec.203
of Cr.P.C.

4. No sufficient ground for proceeding:- When on the basis of evidence adduced no prima facie
case is reasonable made out against the accused there is no sufficient ground for proceeding. It
would be just wasting of time to proceed further in the case. The complaint could be dismissed as
held in the case of Dabendra Nath v/s State of W.B1972.

5. Recording of Reasons :- An order of dismissal of a complaint under this section is no bar to the
entertainment of a second complaint on the same facts but it will be entertained only in exceptional
circumstances which provide that the previous order was passed on an incomplete record or
misunderstanding of the nature of the complaint.
6. Dismissal of complaint in default:- If the dismissal of the complaint was not on merit but on
default or the complainant to be present. Then there is no bar in the complainant moving to the
Magistrate again with a second complaint. But if the dismissal of the complaint was on merits then
the position could be different. In such cases the contention cannot be countenanced that the
complainant lacked bona fides as he suppressed the fact of dismissal of the first complaint.

6. What do you mean by FIR? In what circumstances a Magistrate can make an order for
investigation of an offence? OR What are the ingredient of FIR? What are the effects of delay in
filing FIR?

INTRODCTION:-First information report and investigation plays an important role in administering of

criminal justice. It is expected that it should be recorded with utmost care and caution. It should be
recorded without any delay so that doubt does not arise. FIR & Investigation determines that a
prima facie case exist against the accused or not? Sections 154 of Cr.P.C.-1973 described in detail
about FIR.

ESSENTIALS OF F.I.R.

Although the definition of FIR is no given in the Cr.P.C. however it may be as follows:-

i) It is information which is given to the Police Officer In- charge of the Police station. But it is
not necessary to give always to Officer-in-charge. R. P. Kapoor v/s Sr.Partap Singh Kairon, 1961.

ii) Information must relate to a cognizable offence.

iii) It is information first in point of time.

iv) It is on the basis of this information that investigation into the offence commences.

v) The FIR could be in any type i.e. written or oral. It can also be given on telephone. Sunil v/s
State of MP, 1997.

OBJECT OF F.I.R.:- The first and main object is to complain of any offence to a Police Officer so that
criminal law could be applied. Hasib v/s state of Bihar, 1972.

COMPONENT PART OF F.I.R.:- Generally it is essential that a detailed explanation of the happening
should be given in FIR. But the prosecution cannot be dismissed merely on the basis that FIR does
not contains the complete explanation of happening as in a case of Navratan Mahanto v/s State of
Bihar-1980. Only gist of the happening in factual position needs to be mentioned.

ENTRIES IN THE FIR REGISTER:- As soon as the Officer-in-charge receives information of commission
of a cognizable offence entry to this effect must & immediately be made in the Register concerned
without delay. State of Haryana v/s Choudhary Bhajan Lal, 1992. If any information is given orally, it
should be recorded and then to read and obtained the signature of the person giving information. As
described in a case of State of A.P v/s P. Ramulu, 1993 that FIR cannot be refused to be recorded on
the ground that the offence was committed not within the jurisdiction. There should be no delay in
registering FIR. Delay causes doubts. Gnash Bhawan Pated v/s State of Maharashtra, 1979.

CIRCUMSTANCES WHEN MAGISTRATE ORDERSFOR INVESTIGATION: - Investigation begins with the

FIR. If the FIR is regarding any non-cognizable offence then such information shall be recorded in the
concern register and the person who is giving the information will be referred to the Magistrate.
Meaning thereby that the investigation cannot be done without the order of the Magistrate. Section
155 of the Code of criminal procedure provides that:-

1. No Police Officer shall investigate a Non-cognizable case without the order of the Magistrate
having power to try such case or commit the case for trial.

2. 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 cognizable case.

3. Where a case relates to two or more offences of which at least one is cognizable, the same shall
be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
4. An investigation in a non-cognizable offence made under the order of Magistrate is treated as in
investigation under chapter-XII and the report will be submitted to the Magistrate under section
173(2).

In cases of cognizable Offences, there is no need of the orders of the Magistrate to begin the
investigation. However it has also been made clear by the Supreme Court a new provision under
the code under section 155(4) which incorporates a view of Supreme Court that 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, in-spite of the fact that other offences are non-cognizable, where there are both
cognizable and non-cognizable offences mixed together the Police Officer can investigate even if
there is single cognizable offence.

7. Discuss the provisions relating to Information to the police and their powers to investigate.

INTRODUCTION: - Section 154 speaks of information relating to the commission of a cognizable

offence given to an officer-in-charge of a Police Station. This section has a three-fold object that to
inform the District Magistrate and Supdtt. Of Police who are responsible for maintaining peace and
safety of the District. It is also pertinent to brought it in the notice of judicial officers before whom
the case is ultimately tried. And the most important to safeguard the accused against subsequent
variations or additions.

1. INFORMATION IN CONIZABE CASES:- Every information relating to the commission of a

cognizable offence if given orally to an officer-in-charge of a Police Station, shall be reduced to
writing by him or under his direction and be read over to the informant. Every such information,
whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it.
The officers receiving make the entries of the substance thereof in the prescribed Register available
with him.

2. Copy of the Information as recorded shall be given forthwith free of cost to the informant.

3. Refusal to record the information:- If any officer-in-charge of police station refuses to record the
information the informant may send to substance of such information to the Supdtt. Of Police
concern who further on his satisfaction will investigate the case himself or direct to his subordinate.
4. The information given to Police Office and reduced to writing as required under the section is
called FIR. When any information discosing cognizable offence is laid before the Officer I/c of a
Police Station, he has no option but to register the case of that base as held in State of Haryana v/s
Ch.Bhajan Lal-1992.In a case of Gurpreet Singh v/s State of Punjab-2006:- It was held that merely
non-disclosure of the names of witnesses in the daily diary as well as mortuary register cannot affect
the prosecution of case.

Case State of A.P. v/s V.V. Panduranga Rao-2009: It was held that statement given on telephone is to
be treated as FIR because cryptic telephonic message of cognizable offence received by Police would
not constitute FIR. The mere fact that the telephonic message was first in point of time does not by
itself clothe it with character of FIR.

5. Where FIR is lodged and what Object:- Generally the information about the offence committed is
given to the Police Station of the place concern, but it does not mean that it cannot be lodged
elsewhere. In a case of Punati Raube v/s State of A.P.-1993: The police constable refused to record
the compalaint on the ground that the said police station had no territorial jurisdiction over the
place of crime. Any lack of territorial jurisdiction could not have prevented the constable from
recording information about the cognizable offence and forwarding the same to concern police
station.

6. The object of FIR: the main object of the FIR is to complain of any of the offence to a Police
officer so that criminal law could be applied. Where the FIR was found o have been written after the
inquest report was prepared the court held that it has lost its authenticity in the case of Balaka Singh
v/s State of Punjab-1975.

7. IMPORTANCE OF FIR:- On consideration its important from every angle it is noticed that FIR is a
very important from the occurrence of an offence. It should be given immediately after the offence
is committed. The delay in giving information is viewed with grave suspicion as held in the case of
Modivalappa -1966. There is no need to give the names of witnesses or other minute detail.

8. Duty to register FIR:- In a case of Rajender Singh Katoch v/s Chandigarh Administration & Others-
2008, that although the officer-in-charge of Police station is legally bound to register a FIR in term of
sec.154. It was also held in Aleque Padamsee and Others v/s Union of India-2007:- that in case of
inaction of police officials in registering FIR person aggrieved can adopt modalities contained in
sec.190 read with 200 Cr.P.C by laying complaint before the magistrate concern to take cognizance
of offence.

9. Delay in filing FIR: - Delay in giving FIR can be condoned if there is satisfactory explanation as
held in Apren jospeh v/s State of Kerla-1973.

Whether the delay is so long as to throw a cloud of suspicion on deeds of the

prosecution case must be depend upon a variety of actors, Case Ram Jog v/s State of UP-1974.

10. Delay in lodging FIR in rape cases:- In State Of Himachal Pradesh v/s Shreekant Shekari-2004:
That mere delay in lodging FIR does not anyway render prosecution version brittle.

11. Powers to investigate:-Under section156 the police is empowered to investigate into a

cognizable offence without order of a Magistrate or without a formal first information report. If the
police do not investigate the Magistrate can order for the investigation as in case of Abhyanand Jha
v/s Dinesh Chandra-1968. Sec. 156(2) provides that 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 sec. to investigate, case Hari Singh v/s State of UP-2006. Sec.156(3)
Any magistrate is empowered under sec.190 may order such an investigation , case Bateshwar Singh
v/s State of Bihar-1992.

8. Brief the Jurisdiction of criminal Courts in inquiries &Trials. OR “Every offence shall ordinarily be
inquired and tried by court within the local limits of whose jurisdiction It was committed.” Explain
the statement and state its exception.

INTRODUCTION: - A Magistrate within whose local jurisdiction the offence is committed is

competent to take cognizance and to try the case. The jurisdiction of the Magistrate does not come
to an end by transfer of the locality, where the crime was committed to another district. The court
having jurisdiction to try the offences committed in pursuance of the conspiracy can try the offence
of conspiracy even if it was committed outside its jurisdiction under section 177.

It makes it clear that an offence shall be inquired and tried by a court within the local limits of
whose jurisdiction the offence was committed. B.Patnaik v/s Smt.Binand, 1970, it was held that
court decided that offences shall be tried by a court within the local limits of whose jurisdiction the
offence was committed.

1. Place of inquiry or trial in certain matters:- Sec.178, when it is uncertain in which of several local
areas an offences was committed. The offence is committed partly in one local area and partly in
another. Where an offence is continuing one and continues to be committed in more local areas
than one. Then it may be inquired or tried by a court having jurisdiction over any of such local areas.
State of M.P. v/s K.P.Ghiyara-1957.

2. Offence triable where act is done:- An act is an offence by reason of anything which has been
done and of a consequence which has ensued the offence may be inquired into or tried by a court
within whose local jurisdiction such thing has been done or such consequence has ensued under sec.
179. Case Lal chand v/s State -1961is suitable example a gang was created for dacoity in a district but
was committed in another district, it was decided that the case can be tried by the court of any of
the two districts.

3. Place of trial act is offence by reason of relation to other offence:- When an act is an offence by
reason of its to any other act which is also an offence or which would be an offence if the door were
capable of committing an offence the offence which is done first may be inquired into or tried by a
court within whose local jurisdiction either act was done, under sec.180. Munna Lal v/s State of
Rajasthan-1964: committing theft and receiving stolen property, such matter can be tried by a court
of any of the two places.

4. Place of trial in case of certain offences:-Any offence of being a thug or murder committed by a
thug of dacoity, of dacoity with murder of belonging to a gang of dacoits or of escaping from custody
may be inquired into or tried by a Court within whose local jurisdiction the offence was committed
or the accused person is found. Under sec.181. Jaswant Singh v/s Emperor, 1918, in a matter of
abduction of married woman for the purpose of unlawful intercourse, it can be tried that court
within whose local jurisdiction the woman was detained.
5. Offences committed by Letters etc:- Any offence which includes cheating may if the deception is
practiced by means of letters o telecommunication message be inquired into or tried by any court
within whose local jurisdiction such letters or messages were sent or were received and may offence
of cheating and dishonesty including delivery of property may be inquired into or tried by a court
within whose local jurisdiction the property was delivered by the person deceived or was received
by the accused person under sec.182. Tekumalla Muneiah v/s C.B.Ammanamma, 1991: it was a case
of bigamy the court held the complainant could be entertained by the court having territorial
jurisdiction over that place.

6. Offence committed on journey or voyage:- When an offence is committed while the person by or
against whom or the thing in respect of which the offence is committed is in the course of
performing a journey or voyage the offence may be inquired into or tried by a court through or into
whose local jurisdiction that person or thing passed in the course of that journey or voyage,
u/sec.183.

7. Place of trial for offences triable together:- Sec.184 says, where the offence committed by any
person are such that he may be charged with and tried at one trial for each such offence by virtue of
the provisions of seec.219 or sec.220 or sec.221. The offence or offences committed by several
persons are such that they may be charged with and tried together by virtue of the provision of
sec.223.Case: Pursottam Dalmiya v/s State of W.B.-1961.

8. Offences Committed Outside India:- When offences is committed outside India by a citizen of
India, whether on the high seas or elsewhere or by a person not being such citizen on any ship or
aircraft registered in India, he may be dealt with in respect of such offence as if it had been
committed at any place in India at which he may be found.
9. Discuss the provisions as to maintenance of Pubic order tranquility in the case of Public nuisances.

INTRODUCTION: - The cases of public nuisance which sec.133 of Cr. P. Code deals only for the public
cases not in the nuisance of private cases. These cases are referred to Civil Courts. The proceeding
under section 133 should be taken when in case of emergency where public shall be put to great
inconvenience and shall suffer an irreparable injury. It can also be taken where the obstruction or
nuisance has been in existence for a long period. Sec. 133 empowers a Magistrate to take action
where there has been invasion of public rights. He cannot proceed when existence of public right is
denied.

1. Scope of Section 133:- The unlawful obstruction or nuisance to any way river or channel lawfully
used by the public or to public place. The conduct of any trade or occupation or the keeping of any
goods or merchandise injurious to the health or physical comfort of the community. A building, tent
or a structure or tree as is likely to fall and cause injury to persons. Unfenced tank, well near a public
way or place and a dangerous animal requiring destruction.

In Shri Ram v/s State of U.P.-1992: Magistrate passed the order to remove the construction on public
path. The opposite party denied the existence of public path itself. It was held that failure on the
part of Magistrate to record whether such denial was correct or not would make the order of
removal illegal.

In Kachrulal Bhagirath Agarwal v/s State of Maharashtra-2004: The allegation was that red chilies
were stored in godown in residential locality and loading unloading thereof was causing physical
discomfort and injury to the health of people in the locality. The sub divisional magistrate upon
considering evidence of residents in locality came to conclusion that people in general suffered. It
was held that SDM should conduct inquiry on the basis of reliable evidence and take action
accordingly.

In Municipal Council Ratlam v/s Vardhichand and others-1980: Supreme Court examined the scope
of section 133 and held that where there existed a public nuisance in a locality due to open drains,
heaps of dirt, pits and public excretions by human for want of lavatories and consequential breeding
of mosquitoes. The court further held that the Cr.P.C operates against statutory bodies and other
regardless.

2. Service or Notification of order:- The order should be served to the person for whom it is made in
the manner provided for the service of a summons. If such order cannot be served it shall be notified
by proclamation published in such manner as the State Government may by rules direct and a copy
of the same be stuck up at such place or places as may be fittest for conveying the information to
such person under section 134 of the this code.

3. Person to whom order is addressed to obey or showcause: - U/S-135, on basis of instructions

given in the order the person whom the order is given shall perform within the time and in the
manners specified in the order. Case Nagarjuna Paper Mills Ltd. v/s S.D.M & R.D. Officer-1987 it was
held that the water act has not taken away the power of S.D.M. under section 133 and he can pass
order under sect.136 to close a factory causing pollution when appreciation certificate is not
produced.

4. Consequnces of his failing to do so:- Provisions have been made in sec.136 that if such person
does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in
that behalf in sec. 188 of the IPC and order shall be made absolute.
5. Proceedure where existence of public right is denied:- Where an order is passed for the purpose
of preventing obstruction nuisance or danger to the public in the use of any way river, channel or
place, the Magistrate shall on the appearance before him of the person against whom the order
was made. A case of Santosh Kumar sharmav/s Moti lal Mahawar-1993, it was held that it is
absolutely clear that the Executive Magistrate before taking recourse to the proceedings laid down
under sec.137.

6. Procedure where he appears to show-cause:- U/s 138, the magistrate is bound to take evidence as
in a summon case. If on taking evidence the magistrate is satisified that it is reasonable and proper
he can make the conditional order absolute otherwise further proceedings may be stopped.

7. Power of magistrate to direct local investigation and examination of an expert:- Under sec.139
Magistrate may direct local investigation from such person as he thinks fit he may also summon and
examine an expert.

8. Power of Magistrate to furnish written instructions etc.:- Under sec.140, may furnish such person
with such written instructions or declare by whom the whole or any part of the expenses on local
investigation shall be paid.

9. Procedure on order being made absolute and consequences of disobedience under sec. 141 of the
act, magistrate can give notice and order him to perform he act within the time to be fixed in the
notice.

10.Injunction pending inquiry:- Sec.142, measures to prevent imminent danger or injury of a serious
kind to the public. Magistrate must see that the injunction of the kind reqired and it was issued
against whom has failed to obey the same as held in case of Amar Krishna saha v/s Bipra charan dey-
1965.

11. Magistrate may prohibit repetition or continuance of public nuisance:- u/s 143 says that Distt.
Magistrate, SDM or Executive Magistrate may order any person not to repeat or continue a public
nuisance.

12. Power to issue order in urgent cases of nuisance or apprehended danger: - U/s144 it deals with
urgent cases of nuisance or apprehended danger Madhu Limaya v/s SDM, Manglyr-1971, Magistrate
was in bona fide exercise of his power & legal.

UNIT-III

10. DISCUSS THE JOINDER OF CHARGES UNDER CODE OF CRIMINAL PROCEDURE.

INTRODUCTION:- The object of the rule embodied in the sec. 218 of Cr. P. C., is to ensure a fair trial
and to see that the accused is not bewildered or perplex to confuse by having been asked to defend
several unconnected charges or distinct offences lumped together in one charge or in separate
charges. We will read the rules relating to joinder of charges described in different part of this
section. There is no exception to the rule that there should be separate charge for each offence. The
detail study of this section is as under:-
DEFINITION: - For every distinct offence of which any person is accused there shall be a separate
charge and every charge shall be tried separately. Where the accused person by an application in
writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced
thereby, Magistrate may try together all or any number of the charges famed against such person.

1. Effect of Contravention of Sec.218:- The effect of the contravention of the provisions of this sec.
has been considered by the Supreme Court in following number of cases:- Sushil Kumar v/s Joy
Shankar-1971: It was held that charges under 408 and 477A of IPC could be tried together. In this
case several persons accused on several items of embezzlement were tried jointly. There was no
failure of justice in consequence of the joinder of charges had occurred. In V.N. KAMDAR v/s DELHI
MUNICIPALITY-1973: It was held, “that the provisions of sec. 218 to 224 would indicate that separate
charge and separate trial for such distinct offence is the normal rule and joint trial is an exception
when the accused have committed separate offence.”

2. Failure to Explain injuries on the accused:- When the prosecution fails to explain satisfactorily
the injuries sustained by the accused there are number of judicial pronouncements on this point.
Case State of Gujrat v/s Bai Fatima-1975: It was held that the accused had inflicted the injuries on
the members of the prosecution party in exercise of the right of self-defence.

3. Three offences of the same kind within year may be charged together:- under section 219 of Cr.
P. C. when a person is accused of more offences than one of the same kind committed within the
space of twelve months from the first to the last of such offences, he may be charged with and tried
at one trial for any number of them not exceeding three. Provisions of section are only enabling
provisions, it applies where offences are of the same kind but it does not apply where offences are
not of the same kind such as criminal breach of trust and falsification of accounts. Rahmat v/s State
of U. P.-1980.

4. Trial for than one offence:- If in one series of Acts so connected together as to form the same
transaction more offences than one are committed by the same person, he may be charged with and
tried at one trial for every such offence as provided under section,220 of the Cr. P.C. Case Krishna
Murthy v/s Abdu Subhan- 1965. Case of Kanshiram v/s Jhunjhunwala-1935, with the same it was
necessary to ascertain whether they are so connected together as to constitute a whole which can
properly be described as a transaction.

5. Where it is doubtful what offence has been committed: - Sec.221 provides for the cases where it
is doubtful what offence has been committed. It applies to the cases in which the facts are not
doubtful but the application of law to the facts is doubtful as held in a case of Abdul Hamid -1935.
This sec. applies where the doubt is about the nature of the offence and not about the facts as held
in case Jatinder Kumar v/s State of Delhi-1992.

6. When the offence proved included in offence charged: - Sec.222 considered the conviction of
minor offence included in the offence charged in either of two cases, where the offence charged
consists of several particulars and combination is proved but the remaining particulars are not
proved as held in Maung Ba v/s the King-1938. And where the facts are proved which reduce the
offence charged to a minor offence as held in case of, Emperor v/sAbdul Wahab-1945.

7. What persons may be charged jointly:- Under sec.223 joint trail of several persons is permissible
and applies only to trials and not to inquires. A joint trial of several persons under this section is not
vitiated merely by the facts that at the end of the trial the facts found happen to be different from
those on the basis of which the charges were originally framed as held in case of Trilokchand v/s
Rex-1949. It was also held in case of A.R.Autulay v/s R.S.Nayak-1988.
8. Withdrawal of remaining charges on conviction on one of several charges: - When a charge
containing more heads than one is framed against the same person and when a conviction has been
had on one or more of them, the complainant or the Officer conducting the prosecution may with
the consent of the Court withdraw the remaining charge or charges. The court of its own accord may
stay the inquiry into or trial of such charges. Court may proceed with the inquiry into or trial of the
charge or charges so withdrawn.

11. Discuss the provisions of trail before a Court of Session.

INTRODUCTION: - The procedure of trial of offences before court has been described in section 225
to sec. 237 of the Criminal Procedure Code-1973. Here it is important that any matter does not come
directly for trial before the Court of Sessions. Such matter is committed for trial to Court of Session.
Any matter is committed to Court of Session when it has the exclusive jurisdiction to try such
offence.

1. CONDUCTION OF TRIAL:- In every trial before a Court of Session, the prosecution shall be
conducted by a Public Prosecutor as laid down in sec.225 of the code.

2. OPENING THE CASE FOR PROSECUTION:- When the accused appears or brought by before
the Court in pursuance of a commitment of the case under section 209 the prosecutor shall open his
case by describing the charge brought against the accused and stating by what evidence he purposes
to prove the guilt of the accused under sec. 226 of Cr. P. C. case of Hukam Singh v/s State of
Rajasthan-2001.

3. DISCHARGE: - If upon the consideration of the record of the case and the documents
submitted therewith and after hearing the submission of the accused and the prosecution in this
behalf, the Judge considers that there is not sufficient ground for proceeding against the accused he
shall discharge the accused and record his reasons for doing so. As held in case of T.V.Sharma v/s
R.Meeriah-1980. It is called charge arguments; court has to consider the complete case carefully
before giving order to discharge State of J&K v/s Romeshchandra-1997. These are the provisions of
sec.227.

4. Framing of charge: - While framing charges court shall only see that there is a prima facie
case against accused or not. At this juncture there is no need for praising witnesses as held in case of
State of M.P. v/s S.B. Johri-2000. Where the judge frames any charge, the charge shall be read and
explained to the accused and accused shall be asked whether he pleads guilty of the offence charged
or claims to be tried as provided in section 228 of Cr. P.C.

5. Conviction on Plea of Guilty: - If the accused pleads guilty the judge shall record the plea
and may in his discretion convict him thereon. The plea of guilty only amounts to an admission that
the accused committed the acts alleged against him. It was held in case of Tyron Nazarath v/s State
of Maharashtra-1989. This is more so in case persons tried jointly when some plead guilty and the
others claim to be tried, case of Bantra Kunjana-1960. These are provisions available in sec. 229 of
Cr.P.C.

6. Date for Prosecution Evidence:- If the accused refuses to plead or does not plead or claims
to be tried or is not convicted under sec.229, the Judge shall fix a date for the examination of
witnesses and may on the application of the prosecution issue any process for compelling the
attendance of any witness or the production of any document or other thing. Case Mukipad Mandal
v/s Abdul Jabbar-1973, it is the duty of court to take all necessary steps to compel the attendance of
witnesses. The accused cannot be acquitted on the ground of failure of the witnesses to appear
before the court, under sec. 230.

7. Evidence for Prosecution:- On the date fixed, the judge shall proceed to take all such
evidence as may be produced in support of the prosecution sec.231. when any witness appears
before the court there shall be no delay as possible in his examination but if any delay happens in
the examination of any witness the merely on this ground the prosecution matter cannot be
suspended case of Bunty urf Guddu v/s State of M.P-2004.

8. Acquittal: - If after taking the evidence for the prosecution examining the accused and
hearing the prosecution and he defence on the point the Judge considers that there is no evidence
that the accused committed the offence the judge shall record an order of acquittal under sec. 232.
The accused can either be convicted or acquittal but not discharged.

9. Entering Upon Defence :- Where th accused is not acquitted under sec.232 he shall be
called upon to enter on his defence and adduce any evidence he may have in support thereof. It the
accused puts in any written statement the judge shall file it with the record. If the accuse applies for
the issue of any process for compelling the attendance of any witness or production of any
document or thing the judge shall issue such person unless he considers such application for the
purpose of vexation or delay or for defeating the ends of justice. Case State of MP v/s Badri Yadav-
2006. These are the provisions in sec.233.

10. Arguments:- When the examination of witnesses for the defence is complete the
prosecutor shall sum up his case and accused shall be entitled to reply. During his process where any
point of law is raised by the accused the prosecutions mazy with the permission of judge make his
submissions with regard to such point of law under sec. 234. It is called arguments.

11. Judgment:-After hearing both the parties the judge shall give a judgment in the case under
sec.235.Case:Alluddin Mian Sharif Mian v/s State of Bihar-1989.

12. Previous Conviction: - If the accused is charge of previous conviction and the accused does
not admit that then judge may take evidence in respect of the alleged previous conviction and
record a finding thereon under sec. 236.

13. Procedure in cases instituted under Sec. 199:-Sec.237 of the code provides the procedure
for trial of such matters which have been instituted under sec.199 (2). Sec.199 (2) provides for
prosecution of defamation matters. If any matters of defamation is alleged to have been committed
against the President of India, Vice-President, Governor of State, Administrator of UT, Minister of
Union or State or Any other Public servant. If during trial court finds scope of acquittal he may pass
such orders.

12. For every distinct offence of which any person is accused there shall be a separate charge and
every such charge shall be tried separately. Explain are there any exceptions to this rule, if so what?

INTRODUCTION:- Provisions relating to charge are aimed at giving complete information to the
accused about the offence of which he is being charged. It gives the accurate precise information
about the accusations made against him. Every charge shall state the offence with which the
accused is charged. The charge shall be written in the language of the Court. The language of the
charge should be specific and clear.

WHAT IS CHARGE: - Sec.2 (b) of Cr.P.C.-1973 provides the definition of charge but it is neither
definition as per dictionary meaning nor it is directing any meaning. It only says that, “Charge
induces any head of charge when the charge contains more heads than one.” Charge is such a
written statement of the information of offence against the accused person which contains the
grounds of charge along-with time, place, person and things in relation to which offence is
committed. The charge is a precise formulation of the specific accusation of an offence against the
accused person. Accused prepares his defences on the basis of it.

Components of Charge:- Sec.211 says that:-

1. Every charge shall state the offence with which the accused is charged.

2. If the law which creates the offence gives it any specific name, the same may be described by
that name, like theft, robbery, dacoity or murder etc.

3. If law does not give any specific name so much of the definition of the offence must be stated
for giving the notice to accused.

4. The Law and section of the law against which the offence is committed shall be mentioned in the
charge.

5. The fact that the charge is made is equivalent to a statement that every legal condition required
by law to constitute the offence is fulfilled.

6. The charge shall be written in the language of the court. Case of Krishan v/s State of Kerla-
1958.The court said that charge should be in Court’s language.

7. The previous conviction if any of the accused must be stated in the charge i.e. place, date and
the fact of the offence.

According to Sec. 212:- Particulars as to time place and person:-

1. The time of commission of the offence be given in the charge.

2. The place of commission of the offence may also be recorded in charge.

3. The person against whom or thing in respect of which it was committed.

4. The manner of committing offence must be stated in the charge u/s 213.

5. The words must be of sense of law under which offence is punishable u/s214.
Effect of Errors: - Section 215 of the code says that there should be no error in stating either the
offence or the particulars required to be stated in the charge, there should also be no omission to
state the offence or those particulars which at any stage of the case as material unless the accused
was in fact misled by such error or omission which may results the failure of justice. Then such
charge shall be considered faulty and the trial on the basis of such charge shall also be faulty.

Court May alter the charge: Under sec.216, any court may alter or add to any charge at any time
before the judgment is pronounced.

Recall of Witnesses when charge altered:- under section 217, whenever the charge is altered or
added to by the Court after the commencement of the trial the prosecutor and the accused shall be
allowed to recall or re-summoned and examine the alteration and addition any witness who may
have been examined.

Separate charges for distinct offence: - The object of sec.218 is to ensure a fair trial and to see that
the accused is not bewildered by having been asked to defend several unconnected charges or
distinct offences lumped together in one charge, case of Aftab Ahmad Khan v/s State of Hydrabad-
1954.

Same offences of same kind within one year may be charged together: - sec. 219 provides that
offences punishable under sec.379 and 380 IPC shall be deemed to be offences of the same kind.
Criminal breach of trust and falsification of accounts, when the offence is committed by a single
accused and is not applicable where several persons are tried jointly.

Trial for than one offence:- Sec.220 provides If in one series of acts so connected together as to
form the same transaction, more offences than one are committed by the same person, he may be
charged with, and tried at one trial for every such offence. Case State of Biahar v/s Simranjit Singh-
1987.

Framing of charge where it is doubtful what offence has been committed:- sec.221 of the code
provides for the framing of charge in those matters where there is doubt of what offence has been
committed. In such matters, charge shall be framed as follows:-

All offences committed as a result of the nature of Act.

All or any of such offences charged in the alternative with having committed some one of the said
offences. Goverdhan v/s Kanilal-1953.

When offence proved included in offences charged:- When a person is charged with an offence
consisting of several particulars or an offence and facts are proved which reduce it to a minor will be
convicted of the minor, case of State of Maharashtra v/s Rajendra Jawanmal Gandhi-1997,
Sangarobina Sreenu v/s State of A.P.-1997. These are the provisions of Sec.222 of the code.

Withdrawal of remaining charges on conviction on one of several charges:- Sec.224 of the code says
that when a charge containing more heads than one is framed against he same person and when a
conviction has been had one or more of them the applicant or prosecution with the consent of court
withdraw the remaining charges or court of its own accord may stay the inquiry or trial.
13. Difference between procedure of trial for warrant case and Summon Case?

INTRODUCTION: - Police report is defined in this Code and according to these provisions ‘Police
report means a report forwarded by a police officer to a Magistrate under sec. 173 of the code.
When in any warrant case instituted on a police report the accused appears or is brought before a
Magistrate at the commencement of trial. Magistrate shall satisfy himself that he has complied with
provision of the code.

There are two categories in which the criminal cases can be classified on the provisions laid down in
the code:-

i) Summon Case:- Definition of summon case is given in Sec.2(x) means, Summon case
means a case relating to an offence not being a warrant case.

ii) Warrant Case: Means a case relating to an offence punishable with death, imprisonment
for life or imprisonment for a term exceeding two years.

The criteria of summons case and warrant case determines the duration of punishment in any
offence is punishable with fine of Rs.50/- then such matter is summon case, a case of Public
Prosecutor v/s Hindustan Motors, AndhraPradesh-1970.

The issue of summon or warrant in any case does not change the nature of the case, supposing
warrant is issued in a summon case is does not make the case a warrant case, in case of Padamnath
v/s Ahmad Dobi-1970.

A. Procedure of trial of Warrant Case:- lays down the procedure for a warrant case:-

i) Cases must be instituted upon police report:-Sec.238 of the code lays down the procedure
of trial of warrant cases instituted upon police report and according to it procedure of trial is as
under :-

a) Copy of the police report and other document to be provided to the accused on institution of
any warrant case when the accused appears or brought before a magistrate at commencement of
the trial.

b) Discharge of accused on groundless charges: - On receiving the police report & other documents
and providing of the accused the magistrate shall consider the each report. He shall provide
reasonable opportunity of hearing to accused and prosecution (it is commonly called charge
argument); the magistrate shall examine the accused if necessary. If the magistrate finds that the
charge against the accused is groundless he shall discharge the accused under sec.239. He will also
check the prima facie of the case. Case of State v/s Sitaram Dayaram-1959.

c) Framing of charge:-If the magistrate is of the opinion that there is a ground for presuming that
the accused has committed an offence and is competent to try such offence which can adequately
punish the accused in his opinion. Then the charge shall be framed against the accused in writing
and trial will start. Case of Col.S.Kashyap v/s State of Raj.-1971.

d) Conviction of plea of guilty:-if the accused pleads guilty the magistrate shall record the plea and
may in his discretion convict him.

e) Evidence for prosecution: - If the accused refuses to plead guilty and claims to be tried, the
magistrate shall fix a date for the examination of the witnesses, u/s 242, and case State v/s Suwa-
1962.
f) Evidence for defence:- u/s 243 on completion of prosecution witnesses, defence witnesses
produces by the accused, the expenses on compelling the attendance of the witnesses shall be
borne by the accused.

B. Cases instituted otherwise than upon police report: - The procedure of trial for summons cases is
less brief in nature.

ii) There is no need of framing of formal charge in summons cases.

iii) Accused can be convicted or acquitted.

iv) Summons case cannot be reopened after completed once.

v) Complainant can withdraw his complaint in summons case. Its effect would be acquittal of
accused.

vi) In summon cases summons are generally issued to the accused.

vii) Accused is not required to be heard on the question of sentence in summon case.

viii) In summon cases there is no need of arguments generally before substance prosecution.

ix) In summon case if the accused pleads guilty the Magistrate shall record the plea and may
convict him on that basis under sec.252.

x) In summons case if the magistrate does not convict the accused on his plea of guilty he
shall proceed to hear the prosecution and take all evidence. He will also hear the accused and take
all evidence produced by the accused under sec. 254(1).

xi) u/s 257, on satisfaction of the magistrate he may permit the complainant to withdraw his
complain thereupon the accused shall be acquitted.

xii) In a summon case no provisions authorizing the magistrate to permit the cross-examination
of any prosecution witnesses to be deferred or recall of any witness for further examination.

xiii) In summon case when summon has been issued to complainant and he fails to appear on fix
date the accused may acquit unless for some reasons he thinks to adjourn the hearing of the case to
some other day u/s 257.

14. Discuss in brief the general provisions as to inquiries and trails under the Criminal Procedure
Code-1973.

INTRODUCTION: - A Magistrate within whose local jurisdiction the offence is committed is

competent to take cognizance and to try the case. A Magistrate has no jurisdiction to take
cognizance of a case which has wholly been committed outside his jurisdictional limits. The
jurisdiction of the magistrate does not come to an end by transfer of the locality, where the crime
was committed to another district. The followings provisions are laid down in the code:-

1. Ordinary place of inquiry and trial: - Every offence shall ordinarily be inquired into and tried by a
court within whose local jurisdiction it was committed. Word ordinarily means except in the cases
provided hereinafter to the contrary. Under sec. 177 of the code. Case of Ramnarayan kapur-1936
and Nurumal v/s State of Bombay-1960.

2. Place of inquiry or trial: - Where an offence is committed partly in one local area and partly in
another or is a continuing one and continues to be committed in more local areas than one and
where it consists of several acts done in different local areas court having jurisdiction over any of
such local areas, under sec.178 of the code. Case HiraLal v/s Emperor-1946.

3. Offence triable where act is done or consequence ensues:-When any act is an offence by reason
of anything which has been done and of consequence which has ensued the offence may be inquired
into or tried by a Court within whose local jurisdiction such thing has been done or such
consequence has ensued under sec.179 of the code. State v/s Dhulaji Bavaji-1963.

4. Place of trial where act is an offence by reason of relation to other offence:-When an act is an
offence by reason of its relation to any other act which is also an offence or which would be an
offence it the doer were capable of committing an offence the first mentioned offence may be
inquired into or tried by a court within whose local jurisdiction either act was done, under sec.180 of
the code.

5. Place of trial in case of certain offences: - Where it is difficult for the complainant to find out as
to where the misappropriation actually occurred jurisdiction lies at the place where the property had
to be delivered. Sec.410 of IPC gives a wide meaning to stolen property. These are the provisions of
sec.181 of the code. Case of Emperor v/s Laxman-1926.

6. Offences committed by letters etc.:- Sec.182 of the code says that, Any offence which includes
cheating may if the deception is practiced by means of letters or telecommunication message be
inquired into or tried by any court within whose local jurisdiction. Case Bhola nath v/s State-1982.

7. Offence committed on journey or voyage: Sec. 183 provides that the expression journey &
voyage under this section does not include a voyage on the high seas or in a foreign territory of
India. Case of Queen v/s Piran-1874.

8. Place of trial for offences triable together: - There are provisions in the section 184 of the code
that where an offence is committed in pursuance of conspiracy, the court having jurisdiction to try
that offence may try the offence of conspiracy even if it was committed outside its jurisdiction. Case
L.N.Mukerjee v/s State of Madras-1961.

9. Power to order cases to be tried in different sessions divisions: - Notwithstanding anything

contained in the preceding provisions, the state government may direct that any cases committed
for trial in any district may be tried in any session division, under sec.185. Case of Supdt. Of Police
v/s Ferozuddin Basheeruddin-1993.

10.High Court to decide in case of doubt, where inquiry or trial shall take place:- Sec.186 provides
that where two or more courts have taken cognizance of the same offence and a question arises as
to which of them ought to inquire into or try that offence this will be decided by the High Court.
11.Power to issue summons or warrant for offence committed beyond local jurisdiction :- When a
magistrate of first class sees reason to believe that any person within his local jurisdiction has
committed outside jurisdiction an offence which cannot under the provisions of sections or any
other law for the time being in force be inquired into or tried within his local jurisdiction and compel
the person to appear before him or send him to the Magistrate under whose jurisdiction the offence
is committed, under sec.187.

12. Offence committed outside India:- Section l88 of the code says that when an offence is
committed outside India by a citizen of India whether on the high seas or elsewhere and also by a
person not being such citizen on any ship or aircraft registered in India. He may be dealt with in
respect of such offence as if it had been committed at any place within India at which he may be
found. Case of Emperor v/s Maganlal-1882.

13.Receipt of evidence relating to offences committed:-Sec. 189 of the code says that, when an
offence alleged to have been committed in a territory outside India is being inquired into or tried
under the provision of sec. 188, the court holding such inquire or trial in any case in which such court
might issue a commission for taking evidence as to the matters to which such depositions or exhibits
relate.

UNIT- IV

15 What do you mean by Judgment? What are the contents of judgment? Discuss the powers of
High court to confirm death sentence?

INTROUDCTION: - After hearing both the parties the Judge give a judgment in the case. The
judgement in every trial in any criminal court of its own jurisdiction shall be pronounced in the open
court by the presiding officer immediately after the termination of the trial or at some subsequent
time of which notice shall be given to the parties or their pleaders.

1. Section 353 of the cr. procedure code-1973 provides:-The judgment in every trial in any criminal
court in its own jurisdiction shall be pronounced in open court by the presiding officer immediately
after the termination of the trial or at some subsequent time of which notice shall be given to the
parties or their pleaders. Case Anthony v/s State-1993. It was also held in a case of Yelchuri
Manohar v/s State of A.P-2005, that electronic media cannot provide any guiding factors.

2. Language and contents of Judgment: - That every judgment shall be written in the language of the
Court. It may also contain the point or points for determination, the decision thereon and the
reasons for the decision, as provided in sec. 354 of the code. Case of Ram Bali v/s State of U.P. -2004.
The language and the contents of the judgment must b self-contained and must also show that the
court has applied its mind to the facts and the evidence, as held in case of Niranjan V/s State -1978.
Failure to signing of judgment at the time of pronouncing it is only a procedural irregularity curable
as per instructions provided in the code.

3. Judgment of Metropolitan Magistrate: - That instead of recording a judgment in the manner

provided a metropolitan magistrate shall record the serial number of the case, the date of
commission of the offence along-with the name of the complainant. The name of the accused
person his parentage and residence mentioning the plea and examination of accused. The date of
final order may also be recorded as provisions laid down in sec.355.

4. Order for notifying address of previously convicted offender: - Sec. 356 of the code provides that,
when any having been convicted by a court in India of an offence punishable. If such conviction is set
aside on appeal or otherwise such order shall become void. State Govt., can make rules to carry out
the provisions relating to the notification of residence.

5. Order to pay compensation:-The quantum of compensation is to be determined by taking into

consideration the nature of the crime, injury suffered and the capacity of the convict to pay in case
of Manish Jalan v/s State of Karnatka-2007. These are the provisions of the section 357.

6. Scheme for compensation to victim:-In every state with the coordination with the central Govt.,
shall prepare a scheme for providing funds for the purpose of compensation to the victim or his
dependents who have suffered loss or injury as a result of the crime and who require rehabilitation
under sec.357A.

7. Compensation to persons groundlessly arrested: - Sec. 358 provides that whenever any person
causes a police officer to arrest another person if it appears to the Magistrate by whom the case is
heard that there was no sufficient ground of causing such arrest. The Magistrate may award such
compensation not exceeding 1000/- rupees as held in case of Parmod Kumar v/s Golekha1986.

8. Order to pay costs in non-cognizable cases: - Sec.359 says that whenever any complaint of a non-
cognizable offence is made to a court, the court if it convicts the accused can order to pay the
penalty along-with cost incurred by the complainant and in case of default of payment the accused
can sentence simple imprisonment for a period not exceeding 30 days.

9. Order to release on probation of good conduct after admonition:-Sec.360 says that this section is
a piece of beneficent legislation. It applies only to first offenders. It enables the court under certain
circumstances to release the accused who has been convicted on probation of good conduct as in a
case of Ved Parkash v/s State of Haryana-1981.

10. Special reasons to be recorded in certain cases: - Where in any case the court could have dealt
with an accused person under the provisions of offenders Act a youthful offender may tried by any
other law for the time being in force for the treatment training or rehabilitation of youthful
offenders as held in case of Nanna v/s State of Rajasthan-1989, under sec. 361.

11. Court not to alter Judgment:- According to section 362 of the code that any other law for the
time being in force no court when it has signed its judgment or final order disposing of a case shall
alter or review the same except to correct a clerical or arithmetical error, case of Naresh & others
v/s State of U.P.-1981.
12. Copy of the judgment to be given to the accused and other persons: - Section 363 says that a
copy of the judgment shall immediately after the pronouncement of the judgment be given to him
free of cost, as held in case of Ladli Parsad Zutsi-1932.

13. Judgment when to be translated: - Sec.364 provides that the original judgment shall be filed with
the record of proceedings and where the original is recorded in different language from that of court
and so requires it may be translated in to the language of the Court.

14. Court of Session to send copy of finding and sentence to District Magistrate: - In the case tried by
the court of session or a CJM the court or such magistrate as the case may be shall forward a copy of
its or his finding and sentence if any to the District Magistrate as said in sec. 365 of the code.

14 Submission of death sentences for confirmation:-Sec.366When a Court of Session passes a

sentence of death the proceedings shall be submitted to H/C, it cannot be executed unless it is
confirmed by H/C. Sec.371 procedure laid down that the Proper officer without delay after the order
of confirmation or other order has been made by H/C send a copy of the order under seal of H/C
duly attested to S.Court

16 Examine the law relating to appeal in criminal case. Make a difference between Appeal &
Revision in criminal cases.

INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied from judgment finding and
orders of the trial court. Under section 372 of the Cr.P.C., it is provided that relation to appeal it is
necessary to know that no appeal shall lie from any judgment or order of a criminal court except as
provided by this code or any other law for time being in force, case Garikapati v/s Subhash coudhari-
1957. However the provisions regarding making an appeal are the following:-

1. Appeal from orders requiring security or refusal to accept or rejecting surety for keeping peace or
good behavior: - Any person who has been ordered to give security for keeping the peace or for
good behavior or who is aggrieved by any order refusing to accept or rejecting a surety on the basis
of sec.373.

2. Appeals from Convictions: - According to section 374 of code that any person convicted on a trial
by a H/C in its extraordinary original criminal jurisdiction may appeal to Supreme Court similar any
person convicted by session judge or on a trial held by any other court which sentence or
imprisonment is more than 7 years may appeal to High court. Case Panchi v/s State of U.P.-1998, In
C.Gopinathan v/s State of Kerala-1991

3. Appeal by State against sentence: - Under sec.377, the state Government may in any case of
conviction on a trial held by any court other than a H/C direct the Public Prosecutor to present an
appeal against the sentence on the ground of its inadequacy to Court of Session if the sentence is
passed by the Magistrate or to the H/C if the sentence is passed by any other Court. When an appeal
is filed against the sentence on the ground of its inadequacy court shall not enhance the sentence
except after giving to the accused a reasonable opportunity of sowing cause against such
enhancement. Case of Nadir Khan v/s State-1976.

4. Appeal in case of Acquittal :- In an appeal against acquittal under sec.378 the H/C has full power to
review at large the evidence on which the acquittal is based and to reach the conclusion that the
order of acquittal should be reversed as held in case of Mohandas v/s State of MP-1973, but
exercising his power the H/C should give proper weight and consideration to the view of the trial
judge as to the credibility of witnesses, presumption of innocence in favour of the accused. And a
right of the accused to the benefit of any doubt. It was also held in State of U.P. v/s Gambir Singh-
2005 case of appeal against acquittal if on same evidence two views are possible, the one in favour
of accused must be preferred.

During the hearing of appeal from the order of acquittal it should be taken into consideration that
there is no miscarriage of justice, case Allahrakha K. Mansuri v/s State of Gujrat-2002. The order of
acquittal cannot be dismissed merely on the ground that a second approach could have been applied
in the case and it means that the accused could have been convicted on considering another view a
case of Chandra Singh v/s State of Gujrat-2002.

5. Appeal against conviction by H/C in certain cases :-Where an H/C has on appeal reversed an
order of manifest on record of acquittal of an accused person and convicted him and sentenced him
to death or to imprisonment for life or to imprisonment for a term of ten years or more, he may
appeal to the Supreme Court under sec. 379.

6. Special right of appeal in certain cases:- In Shingara Singh v/s State of Haryana-2004, when more
persons than one are convicted in one trial and an appealable judgment or order has been passed in
respect of any of such persons, under section 380.

7. Appeal to court of session how heard:- Appeal to the court of session shall be heard by the
sessions judges or by ASJ u/s 381.

8. Petition of appeal:-Every appeal shall be made in the form of a petition in writing presented by
the appellant or his pleader u/s 382.

DIFFERENCE BETWEEN APPEAL & REVISION

APPEAL

1. Any person convicted on a trail held by H/C may appeal to S/C.

2. Any person convicted on a trial by a Session judge or on a trial held by any other court for more
than 7 years may appeal to the High Court

3. Any person convicted on a trial held by metropolitan Magistrate or Magistrate Ist. Class may
appeal to Session Judge.

4. If the appellant is in jail he present his petition of appeal through Officer I/c jail.

5. Pending an appeal by accused person the appellate court shall suspend the execution of order of
sentence & if he is in confinement he be released on bail.

REVISION

1. The correctness, legality or proprietary of any finding sentence or order of any lower court.

2. The regularity of any proceedings of such court.

3. The powers of revision cannot be used through interlocutory orders.

4. During the hearing of Revision argue of the person applying for revision should be considered
seriously even though it they are too brief. Case Pal George v/s state-02.

17: What is bail? State the provisions of Bail under Cr.P.C. Can a person get order to be released on
Bail without judicial or Police custody? Refer case law.

INTRODUCTION:-It is travesty of justice that many poor accused i.e. ‘little Indians’ are forced into
long cellular servitude for little offences because the bail procedure is beyond their meagre means
and trails don’t commence and even if they do, they never conclude. Our bail system suffers from a
property oriented approach which means to proceed on the erroneous assumption that risk of
monetary loss is the only deterrent against fleeing from justice.

What is bail?-When any person who is accused of any offence other than non-bailable offence, he
shall be released on bail under sec.436 of the code provided he has been arrested or detained
without warrant by an Officer I/C of Police station or he appears or is brought before a court and he
must be prepared any time whine in the custody or at any stage of the proceeding before a court.

However the following are the provisions of getting Bail under Cr.P.C. Offences can be classified into
two classes on the basis of bail:-

i) Bailable offences: - Bailable offences are of general nature and in these offences it is right
of accused to be released on bail. Sec.436 of Cr.P.C. pertains to Bailable offences.

ii) ii) Non-Bailable offences: - These offences are of severe nature and bail cannot be claimed
as right in them. In such cases bail depends upon the discretion of the court. Sec. 437 relates to Non-
bailable offences.

1. Grant of Bail in Non-bailable offences: - Sec. 437 provides that when any person accused of or
suspected of commission of any non bailable offence is arrested or detained without warrant by an
Officer I/C of a Police station or appears or is brought before a court other than the High Court or
court of Session he may be released on bail. Thus section 437 empowered a Magistrate to take bail
in non bailable offences. The provision of this makes it clear that bail in non bailable offences
depends upon the discretion of the court.

i) When bail shall be granted: - sec.437 (1) lays down two situation in which bail shall not be
granted by magistrate:1) reasonable grounds for believing that he has been guilty of offence
punishable with death or imprisonment for life. 2. When offence is cognizable and he had been
convicted with death, imprisonment for life or imprisonment for 7 years or more or he has been
convicted on two or more occasion.
ii) There are exceptions to receive bail:- this section also provided with few exceptions where
magistrate can receive bail in following cases:-

a) Where the accused is under the age of 16 years.

b) If she is a woman.

c) Sick or infirm

Thus in the above cases the bail application can be accepted even though the accused in guilty of
offence punishable with death or imprisonment for life or has been convicted earlier. Case
Venkataramanappa v/s State of Karnatka-1992.

Conditions for Bail:- Under sec. 437(3) that where a person accused or suspected of the commission
of an offence punishable with imprisonment which may extend to 7 years or more or for an offence,
abetment of or conspiracy or attempt to commit any such offence is released on bail, the court may
impose any condition which the court considers necessary, as in the case of Gurbaksh Singh v/s State
of Punjab-1980:-

· In order to ensure that such person shall attend in accordance with the conditions of the
bond executed under this chapter.

· That such person shall not commit an offence similar to an offence of which he is accused
or suspected.

· That otherwise in the interest of Justice.

Can a person get order to be released on Bail without judicial or Police custody:-

Where any person has reason to believe that he may be arrested on accusation of having committed
a non-bailable offence he may apply to the High Court or the Court of Session for a direction under
sec. 438 that in the event of such arrest he shall be released on bail.

*It was held in Adri Dharam dass v/s State of W.B-2005; it was held that it is exercised in case of an
anticipated accusation of non-bailable offence. The object of this section is that the moment a
person is arrested if he has already obtained an order from High court of Court of Session he shall be
released immediately on bail without being sent to jail.

*It was also held in Vaman Narain Ghiya v/s State of Rajasthan-2009, direction u/s 438 that the
applicant shall be released on bail whenever arrested for whichever offence whatsoever such a
blanket order should not be passed.

It was further observed that direction under sec.438 is to be issued at pre-arrest stage, with some
conditions:-

i) That the person shall make himself available for interrogation by a Police officer as and when
required. ii) The person shall not directly or indirectly make any inducement, threat or promise to
any person acquainted with the facts of the case. iii) That the person shall not leave India without
the previous permission of the court. iv) If such person is thereafter arrested without warrant by
Police on such accusation and is prepared either at the time of arrest or at any time while in the
custody of police station to give bail, he shall be released on bail.
18:-Discuss the provisions relating to revision to criminal cases. Can High Court exercising revision
powers?

INTRODUCTION: - Revision is also a judicial remedy which has been mentioned in sec.397 of the
code. The main object of revision is to examine the purity, validity, relevancy or regulation or any
order, finding or sentence. This section gives powers to High Court and the Session Judge to call for
and examine the record of any proceeding before any inferior Criminal Court within its or his local
jurisdiction. The followings are the provisions regarding when the revision shall be done:-

1. Calling for records to exercise powers of revision: - The High court or the Session Judge may call
for and examine the record of any proceeding before any inferior criminal court of his jurisdiction for
the purpose of satisfying as to the correctness, legality or propriety of any finding, sentence or order
recorded or passed, u/s 397 of the code. Case Johar & Others v/s Mangal Prasad and another-2008,
it was held that trial court is not found to be passed without considering relevant evidence or by
considering irrelevant evidence.

In a case of Badri Lal v/s State of M.P.-1989: The powers under this section are undoubtedly wide
and the Session Judge can take up the matter suo motu, it must be seen that the criminal law is not
used as an instrument of private vengeance.

Kuldeep Singh v/s State of M.P.-1989: It was held that the order framing charge could not be lightly
interfered with in revision.

In vinod kumar v/s Mohawati-1990: That the court of Session has similar powers as of High Court in
revision and as the High Court is authorized to take additional evidence in revision.

In Gram Sabha Lakhanpur v/s Ram Dev-1993:- It was held that the complainant may or may not have
a legal right of being heard but the rule of prudence and natural justice requires that the aggrieved
party must be afforded an opportunity of hearing.

In a case of Mahavir singh v/s Emperor-1944: The regularity of any proceedings of such inferior court
where the finding sentence or order is illegal or improper and where the proceedings are irregular.

Case of T.B.Hariparsad v/s State-1977, it was held that the powers of revision cannot be used
through interlocutory orders passed in any appeal inquiry, trial or other proceedings under sec.
397(2).

In a case of Paul George v/s State-2002, it was held that during the hearing of Revision argue the
person applying for revision should be considered seriously even though if they are too brief.

2. Order of Inquiry:- Sec. 398 of the code provides powers of issuing order of inquiry to High Court
or court of Session. Accordingly on examining any record under sec.397 or otherwise the High Court
or Session Judge may direct CJM by himself or by any of Magistrate subordinate to him to make
inquiry of any complaint which has been dismissed under sec.203 or the case of any person accused
of an offence who has been discharged.
3. Powers of Revision of Court of Session: - Sec.399 provides powers of revision to court of session in
the case of any proceeding the record of which has been called for by himself. The session judge may
exercise all or any of the powers which may he exercised by the High Court.

Where an application for revision is made by or on behalf of any person before the session judge the
decision of the session judge shall be final and no further proceedings by way of revision a the
instance of such person shall be entertained by the High Court or any other court. These powers of
revision have been provided to the Addl. Session Judge under sec.400.

4. Powers of Revision of High Court: - Sec.401 of the code provides powers of revision to High Court
that in case of any proceeding the record of which has been called by itself or which otherwise
comes to its knowledge, the High Court may exercise any of the powers conferred on a court of
appeal by sec. 386, 389, 390 and 391 or on court of session by sec. 307. Thus during revision High
Court shall be able to exercise all powers which an appellate court can do. In case of Vimal Singh v/s
Khuman Singh-1998: Supreme Court restricted the area of revision generally the order of acquittal is
not interfered. Powers of revision can be exercised in following situations:-i)Where severe illegality
has occurred by trial court.

ii) Where the order of trial court has failed to provide justice.

iii) Where the trial court has tried a case which fall beyond its jurisdiction.

iv) Where the trial court has stopped taking evidence unlawfully.

Here it is pertinent to mention that any party has applied for revision believing that no appeal lies
there but an appeal lies there then the court shall consider such application for appeal in the interest
of justice u/s 401(2). The order of acquittal cannot be reversed into an order of conviction in revision
as held in case of Singher Singh v/s State of Haryana-2004, u/s 401(3).

5. Power of High Court to withdraw or transfer revision cases:-whenever one or more persons
convicted at the same trial makes an application to High Court for revision. The High Court shall
direct that the applications for revision made to it be transferred to the Session Judge who will deal
with the same as if it were an application made before him, under sec. 402 of this code.

6.Copy of the order to be send to lower court:- Sec. 405 of the code provides that where any case is
revised by High Court or court of session, it or he shall in the manner provided by sec.388, certify its
decision or order to the court of by which the finding, sentence or order revised was recorded or
passed and the court to which decision or order is so certified shall thereupon make such orders as
are confirmable to the decision so certified and if necessary record shall be amended in accordance
there with.

19.Discuss the provisions of Judgment. Can court alter its own Judgment?

INTRODUCTION: - It must contain the judgment comes out from every trial in any criminal court of
its original jurisdiction which is to be pronounced in open court by the presiding officer immediately
after the termination of the trial. Judgment can be delivered in whole or the operative part of the
judgment and explaining the substance of the judgment in a language which is understood by the
accused. The provisions however are as under:-
1. Contents of Judgement:- Section 353 of cr.P.C-1973 provides that the judgement in every trial in
any criminal shall be pronounced in the open court by the presiding officer just after the completion
of the trail or at some subsequent time which notice shall be given to the parties or their advocates.
It can be delivered as a whole of the judgement or can by reading out the of judgement. If may also
be byreading the operative part of the judgement in such language which easily be understood by
the accused or his advocate.

a)Each and every page of judgment when it is made should be singed, mentioning the date of
delivery of the judgment in open court.

b) No judgment which is delivered by any criminal court shall be deemed to be invalid by reason only
of the absence of any party or his advocate on the day or place notified for the delivery of the
judgment.

c) As soon as the judgment is pronounced a copy of the same immediately be made available for the
perusal of the parties free of cost.

d)If the accused is in the custody he shall be brought up to hear the judgment pronounced. And if
the accused is not in custody he shall be required by the court to attend to hear the judgement
pronounced.

e) Where there are more accused than one and one or more of them do not attend the court on
date on which the judgement is pronounced. Presiding officer to avoid delay in the disposal of the
case pronounce the judgement even their absence.

2.Language & contents of Judgement: - According to sec.354 the judgement should be written in
language of court which contains points for determination, the decision thereon and the reasons for
the decision. If it be a judgement of acquittal, shall state the offence of which accused is acquittal
and direct that he be set at liberty. Sec.354(3) when all the murderers are to be sentenced with
death sentence will become a dead law as held in a case of Muniappan v/s State of Tami Nadu-1981.

3 Order for notifying address of previously convicted offender: - When any person having been
convicted by a court in India of an offence punishable which relates to criminal intimidation with
imprisonment for a term of three years or upwards is again convicted of any offence punishable
Court may order that his residence and any change of such residence after release be notified. Such
rules may provide for punishment for the breach thereof, under sec.356.

4.Order to pay compensation: - When a court imposes a sentence of fine or a sentence including
sentence of death of which fine forms a part the court may at the time of passing judgement the
whole or any part of fine recovered to be applied. In the payment to any person of compensation for
any loss or injury caused by the offence when compensation is in the opinion of the court
recoverable by such person in a civil court. At the time of awarding compensation in any civil suit
relating to the same matter the court shall take into account any sum paid or recovered ass
compensation on the provisions laid down in this sec.357, in case of Mangilal v/s State of MP-2004.
In Sube singh v/s State of Haryana-2006, is a fit case to award compensation.

5. Special Reasons to be recorded in certain cases:- As per provisions laid down in sec.361 of
cr.P.C.,where in any case the court could have deal with an accused person under sec.360 under the
provisions of probation of offenders Act or a young offender under children act or any other law for
the time being in force for the treatment, training or rehabilitation of young offenders has not done
so. It must be recorded in judgement giving special reasons for having not done so, as held in a case
of State of Himachal Predesh v/s Lat Singh-1990.
6. Court not to alter judgement:- Provisions lays in the sec. 362 or by any other law for the time
being in force, no court when it has signed the judgement or final order disposing of a case shall
alter or review the same except to correct clerical or arithmetical error. In case of Naresh & others
v/s State of U.P.-1981.

7. Copy of the Judgement to be given to the accused & other persons:-When the accused is
sentenced to imprisonment a copy of the judgement shall immediately after the pronouncement of
the judgement be given to him free of cost. In case of Ladli Prasad Zutshi v/s State of Allahbad-1931,
it was held that even public has a right to obtain a copy of the judgement of any criminal court. This
has been provided in sec. 363 of Cr.P.C.-1973.

8. Judgement when to be translated: - As per instructions u/s 364 it is said that the original
judgement shall be filed with the record of the proceedings and where the original is recorded in a
language different from that of the court and the accused so requires a translation thereof into the
language of the court shall be added to such record.

9. Court of Session to send copy of finding and sentence to District Magistrate:- The cases tried by
the court of Session or a CJM the court or such Magistrate shall forward a copy of its or his finding
and sentence if any to the District Magistrate within whose local jurisdiction the trial was held as
provided in sec. 365 of Cr.P.C.-1973.

20: Analyse the provisions of grant of Anticipatory bail. Can anticipatory bail be allowed in Murder
case? If so when?

INTRODUCTION: - Anticipatory bail has an important place in the series of Bail. Its main object is to
protect the innocent persons from arrest under sec. 438 of the criminal procedure code-1973 lays
down the provisions regarding grant of anticipatory bail.

· What is Anticipatory Bail: - In-spite of the fact that the Cr.P.C., has not defined Anticipatory Bail
but it means that when a person has a reason to believe that he may be arrested on accusation of
having committed a non-bailable offence, he may apply to High Court or to the court of Session that
in the event of such arrest he shall be released on bail at that time it is anticipatory bail. It is also
called Apprehension Bail on the basis of provisions laid down in sec. 438 of cr.P.C.

· Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect a person from arrest.
A person against whom a warrant of arrest has been issued shall first be arrested kept in custody for
few days and then released on bail, it means where there is no purpose for the arrest he shall not be
arrested.

· When anticipatory Bail would be Accepted:- Section 438(1) says that, “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 court of Session for a direction under this sec.438(1) and
court if thinks it fit, can direct that in event of such arrest he shall be released on bail.” Case of
Gurbaksh Singh v/s State of Punjab-1980, he was not granted anticipatory bail merely on fear of
arrest. In a similar case of Ashok kumar v/s State of Rajasthan-1980, that anticipatory bail should not
accepted until there is a definite fear of arrest and such fact has come before the court.

It is pertinent to mention here that reason to believe does not mean mere fear, i.e. mere ‘fear’ is not
sufficient cause. Grounds on which belief is based must be capable of being examined.

· Who shall accept the Anticipatory Bail:- Sec. 438 (1) that the following authorities may accept the
anticipator bail application:

i. High Court ii. Court of Session

That any accused of an offence and in custody be released on bail on acceptance of bail application
in the above said courts u/s 439 of Cr.P.C.

· Conditions of Grant Anticipatory Bail:-Court can impose reasonable conditions for grant of
anticipatory bail. Those conditions have been mentioned in section 438(2). When the High Court or
Court of Session make a direction with some conditions in the light of the facts of the particular case
as it may think fit for bail:-

a. That the person shall not leave India without previous permission of the court.

b. That person directly or indirectly make an 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.

c. That the person shall make himself available for interrogation by a police officer as and when
required.

d. That any such other condition as may be imposed under sec.437 if the bail is granted under this
section.

ANTICIPATORY BAIL IN MURDER CASE: - There is no set principle fixed for grant of anticipatory bail. It
is basically depends upon the facts and circumstances of every case and the nature of the case.
Generally the anticipatory bail is not to be granted in the matters like murder, unnatural death,
dourly death.

A case if SamunderSingh v/s State of Rajasthan -1987, the court held that the anticipatory bail
cannot be accepted in dowry death cases especially where father-in-law and mother-in-law caused
unnatural death of the daughter-in-law.

Similarly refusing to grant of anticipatory bail in the matters of atrocities to schedule tribe and
schedule caste was held to be constitutional in a case of State v/s Ram kishore Batolia-1995.

Anticipatory bail has also been refused in the matters of FERA, a case of Dukhishyam Venupanni v/s
Arun Kumar Bajoria-1998.

Even the facts mentioned above the anticipatory bail can be granted in Murder cases on the basis of
following circumstances:-

i)When there is no apprehension about the absconding of the accused.

ii) When there is no apprehension of inducing or enticing witnesses by the accused.

iii) When there is no apprehension of the accused for moving abroad.

iv)Where the offence is not the severe or deadly nature.

HEARING OF PROSECUTION

The prosecution must be provided an opportunity of hearing while considering the anticipatory bail
as held in the case of State of Assam v/s R.K.Krishankumar-1998.

UNIT-V

INTRODUCTION:-Offences can be classified into two classes on the basis of bail:

Bailable offences: - Bailable offences are of general nature and in these offences it is right of accused
to be released on bail. Sec.436 of Cr.P.C. pertains to Bailable offences.

Non-Bailable offences: - These offences are of severe nature and bail cannot be claimed as right in
them. In such cases bail depends upon the discretion of the court. Sec. 437 relates to Non-bailable
offences, under section 437 and 439 relates to non-bailment offence.

Grant of Bail in Non-bailable offences: - Sec. 437 provides that when any person accused of or
suspected of commission of any non bailable offence is arrested or detained without warrant by an
Officer I/C of a Police station or appears or is brought before a court other than the High Court or
court of Session he may be released on bail.

Thus section 437 empowered a Magistrate to take bail in non bailable offences. The provision of this
makes it clear that bail in non bailable offences depends upon the discretion of the court.

When bail shall be Granted:- Sec. 437(1) of the code lays down the following situations in which bail
shall not be granted by the Magistrate:-

i) When the Magistrate believes that there are reasonable grounds of guilty of offence
punishable.

ii) If person has been previously convicted of an offence punishable on two or more times.
 CONDIIONS FOR BAIL

1 Sec. 437(3) of the code provides that where a person accused or suspected of the commission of
an offence punishable which may extend to seven year or more or of an offence defined in IPC and
any such offence the accused is released on bail the court however may impose any condition which
the court considers necessary:-

1. That such person shall attend in accordance with conditions mentioned in the bond executed by
him.

2. Such person shall not commit an offence of the similar to an offence of which he is accused or is
suspected.

ARREST OF A PERSON

Introduction: - Generally, a person is arrested by the order of the magistrate or by a warrant. A

police officer cannot arrest a person arbitrarily or without the order of magistrate or without
warrant. But this rule has few exceptions to it which means that under certain circumstances a
person can be arrested without the order of the magistrate or without warrant.

Arrest without warrant:- Sec. 41 of the Criminal Procedure Code 1973 provides that a police officer
can arrest a person without the orders or warrant of the magistrate in following situations:

(8) When any person 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.

(9) When any person has in his possession without lawful excuse any implement of house-
breaking.

(10) When any person 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 things.

(11) When any person obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape from lawful custody.

(12) When any person is reasonably suspected of being a deserter from any of the armed forces of
the union.

(13) When any person being a released convict, commits a breach of any rule made under sub-
section (5) of section 356;

(14) When for any persons arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifics the person to be arrested.

Thus, in this way a police officer under sec 41(1) can arrest any person without the order or warrant
of a magistrate.
 CHARGE

INTRODUCTION: - The object of the rule embodied in the sec. 218 of Cr. P. C., is to ensure a fair trial
and to see that the accused is not bewildered or perplex to confuse by having been asked to defend
several unconnected charges or distinct offences lumped together in one charge or in separate
charges. We will read the rules relating to joinder of charges described in different part of this
section. There is no exception to the rule that there should be separate charge for each offence. The
detail study of this section is as under:-

DEFINITION: - For every distinct offence of which any person is accused there shall be a separate
charge and every charge shall be tried separately. Where the accused person by an application in
writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced
thereby, Magistrate may try together all or any number of the charges famed against such person.

1. Effect of Contravention of Sec.218:- The effect of the contravention of the provisions of this sec.
has been considered by the Supreme Court in following number of cases:- Sushil Kumar v/s Joy
Shankar-1971: It was held that charges under 408 and 477A of IPC could be tried together. In this
case several persons accused on several items of embezzlement were tried jointly. There was no
failure of justice in consequence of the joinder of charges had occurred. In V.N. KAMDAR v/s DELHI
MUNICIPALITY-1973: It was held, “that the provisions of sec. 218 to 224 would indicate that separate
charge and separate trial for such distinct offence is the normal rule and joint trial is an exception
when the accused have committed separate offence.”

2. Failure to Explain injuries on the accused:- When the prosecution fails to explain satisfactorily
the injuries sustained by the accused there are number of judicial pronouncements on this point.
Case State of Gujrat v/s Bai Fatima-1975: It was held that the accused had inflicted the injuries on
the members of the prosecution party in exercise of the right of self-defence.

3. Three offences of the same kind within year may be charged together:- under section 219 of Cr.
P. C. when a person is accused of more offences than one of the same kind committed within the
space of twelve months from the first to the last of such offences, he may be charged with and tried
at one trial for any number of them not exceeding three. Provisions of section are only enabling
provisions, it applies where offences are of the same kind but it does not apply where offences are
not of the same kind such as criminal breach of trust and falsification of accounts. Rahmat v/s State
of U. P.-1980.

Trial for than one offence:- If in one series of Acts so connected together as to form the same
transaction more offences than one are committed by the same person, he may be charged with and
tried at one trial for every such

APPELS & ITS LIMITATION PERIOD

INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied from judgment finding and
orders of the trial court. Under section 372 of the Cr.P.C., it is provided that relation to appeal it is
necessary to know that no appeal shall lie from any judgment or order of a criminal court except as
provided by this code or any other law for time being in force, case Garikapati v/s Subhash coudhari-
1957. However the provisions regarding making an appeal are the following:-

1. Appeal from orders requiring security or refusal to accept or rejecting surety for keeping peace or
good behavior: - Any person who has been ordered to give security for keeping the peace or for
good behavior or who is aggrieved by any order refusing to accept or rejecting a surety on the basis
of sec.373.

2. Appeals from Convictions: - According to section 374 of code that any person convicted on a trial
by a H/C in its extraordinary original criminal jurisdiction may appeal to Supreme Court similar any
person convicted by session judge or on a trial held by any other court which sentence or
imprisonment is more than 7 years may appeal to High court. Case Panchi v/s State of U.P.-1998, In
C.Gopinathan v/s State of Kerala-1991

3. Appeal by State against sentence: - Under sec.377, the state Government may in any case of
conviction on a trial held by any court other than a H/C direct the Public Prosecutor to present an
appeal against the sentence on the ground of its inadequacy to Court of Session if the sentence is
passed by the Magistrate or to the H/C if the sentence is passed by any other Court. When an appeal
is filed against the sentence on the ground of its inadequacy court shall not enhance the sentence
except after giving to the accused a reasonable opportunity of sowing cause against such
enhancement. Case of Nadir Khan v/s State-1976.

4. Appeal in case of Acquittal :- In an appeal against acquittal under sec.378 the H/C has full power to
review at large the evidence on which the acquittal is based and to reach the conclusion that the
order of acquittal should be reversed as held in case of Mohandas v/s State of MP-1973, but
exercising his power the H/C should give proper weight and consideration to the view of the trial
judge as to the credibility of witnesses, presumption of innocence in favour of the accused. And a
right of the accused to the benefit of any doubt. It was also held in State of U.P. v/s Gambir Singh-
2005 case of appeal against acquittal if on same evidence two views are possible, the one in favour
of accused must be preferred.

During the hearing of appeal from the order of acquittal it should be taken into consideration that
there is no miscarriage of justice, case Allahrakha K. Mansuri v/s State of Gujrat-2002. The order of
acquittal cannot be dismissed merely on the ground that a second approach could have been applied
in the case and it means that the accused could have been convicted on considering another view a
case of Chandra Singh v/s State of Gujrat-2002.

COMPLAINT CASE

DEFINITION: - Sec. 200 says, that the preliminary procedure which a Magistrate shall follow on
receiving a complaint. It is obligatory to examine the complainant and the witnesses and a summary
dismissal without them is not legal. The substance of such examination shall be reduced to writing
and shall be signed by the complainant and the witnesses and also by the Magistrate. If a public
servant acting or purporting to act in the discharge of his official duties or a court has made the
complaint or the magistrate makes over the case for inquiry or trial to another Magistrate under
sec.192.

1. Procedure by Magistrate not competent to take cognizance of the case: If a complaint made to a
Magistrate who is not competent to take cognizance of the offence he shall return it for
presentation to the proper court with an endorsement to that effect or where the complaint is not in
writing then he will direct the complainant to the proper court as provided in sec.201 of Cr.P.C.Case
of Rajender Singh v/s State of Bihar, 1989.

2. To Postponement of issue of Process:- Sec.202 of the code provided that where it appears to the
magistrate that the offence complained is triable exclusively by the court of Sessions or where the
complaint has not been made by a court unless the complainant and the witnesses present have
been examined on oath under sec.200. If an investigation is made by a person not being a Police
officer he shall have for that investigation all the powers conferred by this code on an officer in
charge of a police station except the power o arrest without warrant. Sec. has provided to ascertain
the following: i) to ascertain the facts constituting the offence.

ii) To prevent abuse of process resulting in wastage of time of the court and harassment to the
accused.

iii) To help the magistrate to judge if there is sufficient ground for calling the investigation and for
proceeding with the case. Case: Balraj Khanna v/s Motiram-1971.

3. Dismissal of Complaint: - A Magistrate may dismiss a complaint if after considering the

statement on oath of the complainant and of the witnesses and the result of inquiry or investigation
under sec.202. But where there is sufficient ground for preceding the Magistrate cannot dismiss the
complaint under sec.203 of the code. If he finds that no offence has been committed, if he distrusts
the statement or if he distrusts the complainant may direct for further inquiry. In such cases he may
refuse to issue process. Case Sulab Chandra v/s Abdula-1926. These are the provisions under sec.203
of Cr.P.C.

ANTICIPATORY BAIL

INTRODUCTION: - Anticipatory bail has an important place in the series of Bail. Its main object is to
protect the innocent persons from arrest under sec. 438 of the criminal procedure code-1973 lays
down the provisions regarding grant of anticipatory bail.

What is Anticipatory Bail: - In-spite of the fact that the Cr.P.C., has not defined Anticipatory Bail but it
means that when a person has a reason to believe that he may be arrested on accusation of having
committed a non-bailable offence, he may apply to High Court or to the court of Session that in the
event of such arrest he shall be released on bail at that time it is anticipatory bail. It is also called
Apprehension Bail on the basis of provisions laid down in sec. 438 of cr.P.C.

Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect a person from arrest. A
person against whom a warrant of arrest has been issued shall first be arrested kept in custody for
few days and then released on bail, it means where there is no purpose for the arrest he shall not be
arrested.

When anticipatory Bail would be Accepted:- Section 438(1) says that, “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 court of Session for a direction under this sec.438(1) and court if
thinks it fit, can direct that in event of such arrest he shall be released on bail.” Case of Gurbaksh
Singh v/s State of Punjab-1980, he was not granted anticipatory bail merely on fear of arrest. In a
similar case of Ashok kumar v/s State of Rajasthan-1980, that anticipatory bail should not accepted
until there is a definite fear of arrest and such fact has come before the court. It is pertinent to
mention here that reason to believe does not mean mere fear, i.e. mere ‘fear’ is not sufficient cause.
Grounds on which belief is based must be capable of being examined.

1. Who shall accept the Anticipatory Bail

a. Sec. 438 (1) that the following authorities may accept the anticipatory bail application: High Court,
Court of Session.

That any accused of an offence and in custody be released on bail on acceptance of bail application
in the above said courts u/s 439 of Cr.P.C.

Conditions of Grant Anticipatory Bail:-Court can impose reasonable conditions for grant of
anticipatory bail. Those conditions have been mentioned in section 438(2). When the High Court or
Court of Session make a direction with some conditions in the light of the facts of the particular case
as it may think fit for bail:-

a.That the person shall not leave India without previous permission of the court. b)That person
directly or indirectly make an 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. c.
That the person shall make himself available for interrogation by a police officer as and when
required.

POWERS OF CRIMINAL COURTS

INTRODUCTION: - Chapter III of the code deals with Powers of Courts to take cognizance of the
offences. For this purpose the offences are divided into two groups, i) Offences under IPC and ii)
offences under any other law. The courts by which these offences are triable are specified below:-

Courts by which offences are triable: - As per provisions laid down in section 26 the courts by which
offences are triable:-

3. a) Any offence under IPC-45 may be tried by High Court. B) Session Court. c) Any other
court by which such offence is shown in the first schedule to be triable.

4. Any offence under any other law, when any Court is mentioned in this behalf in such law, is tried
by: i) High Court. ii) Any other court by which such offence is shown in the first schedule.

Section 27: Jurisdiction in the case of Juveniles: Any offence not punishable with death or
imprisonment for life who at the date when he appears or is brought before court under the age of
16 years may be tried by the court of CJM or any other court which specially empowered.

Sentences which High Courts and Session Judges may pass: - As per provision laid down in Sect. 28 of
the code that:- (i) High Court may pass any sentence authorized by law. (ii) Session Judge or ADJ may
pass any sentence authorized by law but any sentence of death passed by such judges shall be
subject to confirmation by the High Court.
Sentences which Magistrates may pass:- Sec.29 of Code, The court of CJM may pass any sentence
authorized by law except sentence of death or of imprisonment for life or imprisonment for a term
exceeding 7 years.

The court of Magistrate of First Class may pass a sentence of imprisonment for a term not exceeding
three years or of fine not exceeding Rs.10, 000.

The court of 2nd Class Magistrate may pass an imprisonment for a term not exceeding One year or
of fine not exceeding Rs.5000/- or of both.

Sentence of Imprisonment in default of fine:-The court of Magistrate may award such term of
imprisonment in default of payment of fine as authorized by law under sec.30 of the code, not
exceeding one fourth of the term of imprisonment and also not excess of the powers.

SUMMARY TRIALS

On the basis of provisions under section 260 of the code, power to try summarily: - notwithstanding
anything contained in this code, Any CJM, Any metropolitan Magistrate or any Magistrate of the first
class specially empowered in this behalf by the High Court, may if thinks fit try a summary way in all
or any of the following offences. Summary trial can also be done by the magistrate of second class
u/s 261 of the code; the High Court may confer on any magistrate invested with the powers of a
Magistrate of the second class. If any from the above Magistrate’s thinks fit, may try in a summary
way for all or any of the following offences:-

1. Offences not punishable with death imprisonment for life imprisonment for a term exceeding
two years.

2. Theft under sec. 379, 380 and 381 of IPC where the value of the property stolen does not exceed
two thousand rupees.

3. Receiving of retaining of stolen property under sec.411, IPC, where the value of the property
does not exceed two thousand rupees.

4. Assisting in the concealment or disposal of stolen property under sec. 414 of IPC, where the
value of such property does not exceed two thousand rupees. 5. Offences under section 454 and 455
of IPC.

6. Insult with intent to provoke a breach of the peace under sec. 504 and with imprisonment for
term which may extend to two years or with fine or with both, under sect. 506 of IPC. 7. Abetment
of any of the foregoing offences. 8. An attempt to commit any of the foregoing offences when such
attempt is an offence.

The mode of trial is sought to be altered under this sub-section the trial must from its inception to
be conducted in the regular manner, case of State v/s D.N.Patel-1971. The Magistrate under this
section as a discretion o try the offences specified in this section in a summarily way.

Procedure of summary trials: - Under sec. 262 of the code is related to the procedure for summary
trial, shall be the same as in summons case except in so far as it is modified by the provisions. In the
case of summary trial the limit of term of sentence of imprisonment is three months. However if the
court is considers it necessary that a longer sentence is necessary in the interest of justice in any
case the trial should be held as in a warrant case or as a summon case according to the nature of the
offence.
 PLEA BARGAINING

Under section 265A of the code, described that the application of the provisions of this
section in respect of accused against whom the report has been forwarded by the officer in charge
of Police station under sec.173, the offence appears to have been committed by him and the
Magistrate has taken cognizance of an offence on complaint other than an offence for which the
punishment of death or life imprisonment or imprisonment for a term exceeding seven years and
examining complainant and witnesses issued the process as per law.

Application for plea bargaining: Sec.265B of the code lays that a person accused of an offence may
file application for plea bargaining in the court in which the offence is pending for trial. The
application accompanied by an affidavit sworn by the accused stating therein that he has voluntarily
preferred after understanding the nature and extent of punishment provided under the law for the
offence the plea bargaining in his case and that he has not previously been convicted by a court in a
case which he had been charged with the same offence.

FINALITY OF THE JUDGEMENT:- The judgment delivered by the court under section 265G shall be
final and no appeal except the special leave petition under article 136 and writ petition under article
226 and 227 of the constitution shall lie in any court against such judgment.

POWER OF THE COURT IN PLE BARGAINING:- A court shall have for the purposes of discharging its
functions under the provisions in section 265H, all he powers vested in respect of bail, trial of
offences and other matters relating to the disposal of a case in such court on the basis of above
provisions.

Law Notes (LL.B Notes)

Notes and Video Lecture of LL.B ( 3 Year) Kurukshetra University Kurukshetra
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JURISPRUDENCE

WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN

ITS KINDS. DISTINGUISH BETWEEN CIVIL AND
CRIMINAL JUSTICE.
INTRODUCTION:-Administration of Justice:- According
to Salmond : -”The administration of justice implies the
maintenance of right within a political community by
civilized substitute for the primitive practice of private
vengeance and violent self-help.” This has been
criticized on the ground that it is not the force of the
state alone that secures the obedience of law. There
are a number of other factors such as the social
sanctions, habit and convenience which help in the
obedience of law. In civilized societies, obedience to law
becomes a matter of habit and in very rare cases the
force of the state is used to secure it
According to Austin: ‘Law is the aggregate of rule set by
men as politically superior, or sovereign, to men as
politically subject.” It means law is command of
sovereign. In his definition Command, duty and sanction
are the three elements of law.
The fundamental difference between the definitions of
the two jurists is that whereas in the definition of Austin,
the central point of law is sovereign, in the definition of
Salmond, the central point is Court. In fact, both the
definitions are not perfect and present two aspects of
law.
Salmond : Points out that men do-not have one reason
in them and each is moved by his own interest and
passions. The only alternative is one power over men.
Men is by nature a fighting animal and force is the ultima
ratio of all mankind. As Hobbes puts it “ without a
common power to keep them all in awe, it is not possible
for individuals o live in society. Without it injustice is
unchecked and triumphant and the life of the people is
solitary, poor, nasty, brutish and short.” Salmond says
however orderly a society may be, the element of force
is always present and operative. It may become latent
but still exists.
KINDS OF ADMINISTRATION OF
JUSTICE
The administrative of justice may be divided into two
parts:-
1) Civil.
2) Criminal.
1. Administration of Civil Justice: The wrongs which are
the subject-matter of civil proceedings are called civil
wrongs. The rights enforced by civil proceedings are of
two kinds (1) Primary and (2) Sanctioning or remedial
rights. Primary right are those rights which exists as
such and do not have their source in some wrong.
Sanctioning or remedial rights are those which come in
to existence after the violation of the primary rights. The
object of the civil administration of justice is to ascertain
the rights of the parties and the party who suffers from
the breach of such rights is to be helped by way of
paying damages or getting injunction, restitution and
specific performance of contract etc.
2. Administration of Criminal Justice:- The object of the
criminal justice is to determine the crime of a person
who is charged with the doing of an offence. The
criminal court after proving that the offender is guilty of
the offence charged awards him the punishment of fine,
imprisonment as prescribed by criminal law. A
convicted person is awarded physical pain. Thus the
main purpose of the criminal justice is to punish the
wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL
ADMINISTRATION OF JUSTICE
Civil Administration of Justice
In the civil case the suit is Filed in the civil court.
Criminal Administration of Justice
In the criminal cases the proceedings Is filed in the
criminal court.
The main remedy in civil Cases is damages. The main
remedy in criminal cases is to Punish the offender.
In the civil cases, the court Follows the procedure
Prescribed in Civil Procedure Code. In the criminal
cases, the court follows the procedure laid down in
criminal Procedure Code.
In civil cases the action is taken By the injured party and
the Suit is established by himself By giving evidence. In
criminal cases the proceeding is taken by the state and
the injured party is called out as a witness by the state.

2 What is Law? Discuss. Definition given by various

jurists?
INTRODUCTION: It is easier to explain than to define it.
It means that things are easy to explain than to define it.
Definition is very necessary for the study of the subject,
because the beginning and in one sense it ends is also
its definition. To give a definition of Law is comparatively
a hard task due to many reasons :
1. In Hindu :- Dharma
2. In France :- Droit
3. In Rome :- Jur.
4. In Muslim :- Hukma
All these above words conveys different meaning. And
we can say that a definition which contain all the above
meaning and all elements would be a good definition of
law. Endlly definition given by every person is always
different. Because definition given by a lawyer a
philosopher, a student or a lecturer is always different.
A definition which doesn’t cover all these elements
would be an in-perfect definition.
DEFINITION OF LAW:- The word, “Law” has been taken
from the ‘latin word’ which means “The body of Rules”
various scholars has attempted to define this term
according to their own prospective. Some of them are as
under:-
According to Roman Scholars:- The law is concerned
with the parameters which is right or wrong, fair and
unfair.
ULPIAN:- The famous Roman scholars and a Juries, he
defined the term ,” Law as standard of what is just and
unjust.”
According to Salmond:- The law is the body of principals
recognised and applied by the state in the administration
of justice.
According to Positivist Definition :- They are known as a
modern thinkers and they propounded a new school in
the Law namely, “ Analytical School.” This school is
also known as a scientific school. Benthem, Austin and
Kelson define the term of Law in the following manners:-
1. AUSTIN:- Austin is the father of English
Jurisprudence and according to him, “Law is the
command of sovereign” There are three elements of law
according to Austin :
a) Command )
b) Duty ) = LAW
c) Sanction )
According to him every law have a command and
due to this command we have the duty to obey this
command and if we don’t obey this duty then there is a
sanction.
2. As per Benthem:- The law is the violaion of some
declarations by the political head with utiity ensuring
maximum happiness of he maximum people in the
society. Benthm concept of law revolves around
individual utilitarianism and its concern with the theory of
pain and pleasure, which means that the purpose of Law
to reduce the pain and harms and pleasure in the
society.
3. According to Kelson:- The law is depsycholigically
command. He is concern with those commands which
purely rest upon the formal expression of law.
3. Sociological Definition: The sociological approach is
not a single approach but it includes a number of
thoughts, but all these thought related to society, that is
why heading is given them to sociological. And we shall
discuss some of true definitions :-
DUGUID :- According to him the law is a set of sosme
formal norms aiming an creation of soliditary in society.
IHERING :- According to Ihering the Law is a form of
guarantees of the conditions of life in society which are
assured by the states power of constraint.
EHRLICH :- Ehrlich lays down, “that the law consists of
norms coverings social life. But only the living Law is the
actual law.”
ROSCUEPOUND :- According to him Law is an
instrument for balancing, conflict or completing interest
of people in the society.
REQUIREMENTS FOR LAW
The followings are some requirements for the
definitions of law :-
i) Before the law there is a State.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be
followed.
iv) And finally law always has a purpose.
CONCLUSION:-
In end we can say that law is the important and
necessary part of the state and developing the human
beings. Law gives rights and duties to human beings.
And law is the essential part of a State. Law is an
instrument of social control as well as social change.

3 Define ‘Right’ and discuss the essential elements of

legal right. OR
What is a ‘Legal Right’? Discuss the characteristics of a
legal right.
INTRODUCTION: Right generally means an interest or
facility or a privilege or immunity or a freedom. In this
way right for the purpose of jurisprudence is called legal
right. Austin in his theory has separated the subject
matter of jurisprudence from morality or materiality. He
gave the concept of positive law. So here also right
means positive law right only, which is term of legal
right. Legal right is recognised by law. It is different
from moral right. Moral right if violated is called moral
wrong. The violatin of natural right is called natural
wrong. But these wrongs are not remedial under law
while if a legal right is violated then it will be legal wrong
which is remedial under law. The different jurists have
defined legal right in different ways:- According to Austin
: “ Right is a faculty which resides in a determinate party
or parties by virtue of a given law and which avails
against a party or parties other than the party or parties
in whom it resides.” According to Salmond :- “ Right is
an interest recognised and protected by the rule of
right.” Here rule of right means rule of law or law of
country. When an interest of a person is protected by
the rule of law then it is called right. Salmond definition
involves two points, firstly that right is an interest and
secondly it is protected by rule of right. It means that it
relates to his (person) interest i.e., life liberty, heath and
reputation etc. Grey has criticised the interest theory
propounded by Salmond, Ihering and Heck and he has
supported the view that right is not an interest but that
means by which the interest is secured. According to
Holland, “ right is as a capacity residing in one man of
controlling, with the assent and assistance of the state
the action of others.”
According to Paton : “ That legal right is that it should be
enforceable by the legal process of the state.” He
however says that there are three exceptions to this rule
:-
1. It is not necessary that the state should always
necessarily enforce all the legal rights.
2. There are certain rights which recognised by law
but not enforced by it for example : In a time barred
debt, the right of the creditor to recover the debt is an “
imperfect right”
3. There are certain laws which do not confer right of
enforcement to the courts, for example : International
Court of Justice has no power to compel enforcement of
its decrees under International Law.
THEORIS OF RIGHT :- There are two theories of right :
1. WILL THEORY : This theory is based upon the will
of human beings. It says that a right reflects the inner
will of a human being. Austin, Holland, Halmes and Dov
recognised this theory of right. According to them a
person wants o remain in the world freely and according
to his own choice because a man is born free.
2. Interest Theory:- This theory says that interest is the
base of the right. It is only interest which is recognised
by law. This theory reflects the external nature of the
human beings. Supporter of this theory say that there
are many interests in the world. These interest which
are protected and recognised by law are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the
elements of Rights :-
1. Subject: here means a person who has right. So
there must be a person for rights
2. Act of Forbearance :- Right means some standard
of action permitted by law. In a right either an act is done
or an act is forbidden. This is also called as content of
right.
3. Object:- There must be a object upon which the
right is exercised. Mainly there are three essential
elements of right e.g. Lives in a house. Here : (i) A has
the right to live in the house. (ii) A is subject, house is
object and (iii) His living in the house is act content. But
some writers give some more elements of right.
4. Correlative duty: For right there must be a
correlative duty. In the above example ‘A’ has the right
to live in the house but other persons have correlative
duty not to disturb him. Almost all jurists agree on the
point because one cannot exists without the other. Here
Austin is not agree to this He says that the duty may be
divided into two kinds i.e. (1) Absolute and (ii) Relative.
5. Title: Salmond gives one more element of rights in
the form of title. He says that a right has got also a title.
Title may be in the form of the owner or co-owner or
mortgager or leaser or buyer etc.
ILLUSTRATION: If, ‘A’ buys a piece of land from ’B’. A is
the subject or owner of the right so required. The person
bound by the co-relative duty is persons in general
because a right of this kind avails against the world at
large. The right consists in non-interference with the
purchaser’s exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of
rights :-
1. Primary right and secondary right : Primary right is
an independent right while secondary right means
dependent right. They are also called as principal right
and helping right or remedial right. ILLUSTRATION:- ‘A’
has right of reputation which is his primary and
independent right. If any person defames A then A has
the right of damages against the defamer. This right of
damages is called secondary right or remedial right.
2. Positive and Negative Right:- Positive right is linked
with negative and negative right is linked with duty.
Positive right permits to do an act while negative right
prohibit doing an act.
ILLUSTRATION:- ‘ A ‘ has the right of reputation. This is
his positive right and any person should not defame him.
The defaming his reputation called negative right.
3. Right Rem and Personam:- Right in Rem means
right against the whole world while right in persosnam
means right against a definite person.
ILLUSTRATION: ‘A’ has not to be harmed by any
person. This is right in rem. On the other hand, ‘A’ has
entered into a contract with ‘B’ and ‘B’ has broken +ve
contract. ‘ A “ can enforce this right against ‘B’. This is
known as right in personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL
JUSTICE):- The division of right has its origin in
England. Legal ight is recognised by Law. While
equitable right has been recognised by natural justice. In
England there were two types of courts: (i) Legal courts
(ii) Chancery courts
Chancery Courts recognised the conquerable rights on
the basis of justice, equity and good conscience.
4. Vested & Contingents Right:- These rights is of
permanent nature that depends upon the happening of
an uncertain event. Thus contingents right becomes full
right only when such uncertain events happen according
to the condition.
5. Proprietary and Personal Right:- Proprietary rights
which are concerned with property. A person possessing
any property has the proprietary right over it, and
personal right means the right related with a person or a
body. Every person has a status. He should not be
injured or defamed. If any person injures or defames
another person then the wrong doer infringes the
personal right of a person.
6. Perfect or Imperfect Right:- These rights which are
enforceable by law are perfect and which law does not
enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in
re-propia means the right in one’s own thing whereas
right in re-aliena means the right in the things of others.
4 Law is the command of sovereign comment. Critically
examine the main features of ‘Analytical School’? OR
Discuss the essential characteristics of the ‘Analytical
School’?
INTRODUCTION : The main features/essential
characteristics of Analytical School of Jurisprudence are
as under:- The jurists of analytical school consider that
the most important aspect of law is its relation to the
State Law is treated as an imperative or command
emanating from the state. For this very reason this
school is known as the Imperative school.
The exponents of this school are concerned
neither with the past nor with the future of law but with
law as it exists, i.e. ‘ as it is (positus).For this reason this
school is termed the positive school. Its founder is John
Austin who was the professor of jurisprudence in the
University of London.
He is also considered as the father of English
jurisprudence. He studied the Roman Law in Germany.
There he was that Roman Law is very systematic and
scientific whereas English Law is not systematic and
scientific. So he tried to make English law in well
manner. For this purpose he wrote a book ‘Province of
English Jurisprudence’. In this book he difined English
law and made it in a systematic way.
Austin said that only positive law is the subject
matter of jurisprudence. He separated both the morals
and the religion from the definition of the law. Prior to
Austin the law was based upon customs and morals but
Austin reduced all things from the definition of law. He
divided law into two parts :
(i) Law propriety so called (II) Law impropriety
so called.
It further divided into two parts :-
(1) Law of God (Divine Law) (II) Law of Men ( Human
Law)
Law of God is also called divine law. It is a law set by
God for human beings on earth. Men also make law of
men is made by men, so it is called human Law. This
law makes a relationship between persons and the
Law. This law is imposed upon persons and is made by
persons. Human law is further divided into two parts :-
(I) Positive Law (II) Positive Moral Law
Positive Law is main subject of jurisprudence. This
classification can be seen as under :-

LAW

(A) Law propriety so called (b)

Law impropriety so called
A.1) Law of God A.2) Law of Men

A.2.i) Positive Law A.2.ii) Positive moral Law

Law of analogy law by
Metaphor
Law impropriety so called:- There are certain laws,
which are called impropriety laws e.g. Divine Law, Moral
Law and religious Law. But his law is not the subject of
jurisprudence. This law is concerned only with the
administrations of jurisprudence. The law is the subject
matter of jurisprudence.
Analytical school of jurisprudence deals with the
following matter:-
(I) An Analysis of the conception of civil law.
(II) The study of various relations between civil law and
other forms of law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law
proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and
duties.
(VII) To investigate such legal concepts as property,
contracts, persons, acts and intention etc.
DEFINITION OF THE LAW
Austin has defined the law is hiss ‘Command Theory’.
He says that, “Law is the command of sovereign.”
Sovereign here means a politically superior body or a
determinate person or determinate body of persons like
king of council. The command of these persons shall be
the law in the country. This law must be obeyed by
certain persons. If it is not obeyed hen the order of
these persons shall not be law. It means there must be
politically inferior persons. If the command is disobeyed
then the political superior should have the power to
punish, those persons who have disobeyed the law.
CHARACTERISTICS OF COMMAND THEORY
From the above facts we find that the following
characteristics of Analytical School :-
1. Sovereign (II) Command (III) Duty (IV) Sanction
Power.
SOVEREIGN: Means the political superior person or a
determinate person or body of person or intelligent
persons. This may be compared with the kind or the
head of state in monarchy system and parliament in
democracy system.
COMMAND:- There must be some order of the
Sovereign. This order may be oral or written. The
Sovereign which is followed by force, is called
command.
DUTY:- This command must be followed by some
persons, it means the political inferior persons who are
under the control of Sovereign, are under a Duty to
follow the order of the Sovereign.
SANCTION:- There must be sanction or the power of
force behind the command of Sovereign and it there is
no force or sanction then such command shall not be
law. The sovereign must have power to punish those
who do not obey this command. In this way the above
mentioned things are essential then it will be the law.
But Austin excluded some commands from the concept
of the law. These are :-
(I) Explanatory Law :- If there is a command for the
explanation of already existed law command shall not be
the law.
(II) The Repeal Law : I there is a command for the
repealing of already existed law then the second
command shall not be law.
AUSTIN LAW (AUSIN’S METHOD) Austin adopted
analytical method which excluded all types of morals
and religion from Law. His school is also called
analytical school or imperative school. Imperative means
force behind law.
CRITICISM OF ANALYICAL SCHOOL
Various writers have criticised the command theory of
Austin on the following ground :
1. Customs ignored:- Analytical school is based upon
the law. According to Austin the law does not include
customs but we see that customs are a very important
part of the society. There were customs by which the
society and later on state came into existence. In state
also customs played an important role in the
administration of justice. Even in the modern times the
customs play an important role in the formation of law.
So we cannot ignore customs from law.
2. Precedents ignored:- Precedent means the
decisions of the court, which are also called as judge
made laws. Judge made laws because these laws were
not the command of the Sovereign. These laws were not
enforceable at that time, so he excluded these laws from
his concept of the law.
3. Conventions Ignored:-There are certain conventions
or methods, which are observed or followed by the
coming generation. These conventions or methods later
on take the form of law. The become law afterwards by
their regular observance. In England the base of
English Law is conventions, which is very popular in the
World. So we cannot ignore conventions. But Austin did
not include conventions in his concept of law.
4. International Law Ignored:- Austin did not include
international law in his law. According to his law there is
no Sovereign for enforcing the international law. But in
modern days we cannot exclude international law from
the field of law because it plays an important role in
maintaining peace and society at international level. In
other words it is also a form of municipal law of civil law.
5. Command Theory is not suitable:- It is not easy to
understand the ‘Commands Theory’ for common
persons. It is not necessary that all should be
enforceable or all common person should be considered
as law. Only those commands which are related with
law and order, should be law. It is difficult to separate
those commands from others by the common people or
persons. So this theory is not suitable in modern times.
It is also an artificial theory haveing no sense in the
modern world.
6. Only Power Is Not Necessary:- According to the
‘Command Theory’, law can be imposed only with the
help of power, But we have the result of the tyrants or
forced rules which were thrown away by the people of
French Revolution, of Panamaeto. Law can be enforced
even without power, it they are suitable to the society.
7. Moral Ignored:- The Command Theory has also
excluded morals from the field of law. But we have
observed that morals have also an important role in the
formation of law. We cannot ignore morals from law
because laws are meant for the society and such laws
must be according to the feelings of society. The
feelings of society are based upon morals. So we can’t
ignore morals from the field of law.
CONCLUSON :-In this way he theory of command has
been criticised and which is not considered as suitable
in the modern time. But we also can’t ignore the
contribution of Austin for giving he meaning of law in a
systematic way. He give the concept of law in scientific
manner. This views became the base for the coming
writers, jurists and philosophers. So we can say that
Austin contributed a lot in the field of jurisprudence.

5 Define and distinguish law and morals. Up to what

extent morals help in the development of law.
Introduction:- Play an important role in the development
of law. In the ancient society there was no difference
between law and morals. The Vedas and suteras which
are the main ancient sources of law are based upon
morals. In the western society also the position was the
same. The legal system of Greek was also based upon
the doctrine of natural rights, which was in fact founded
upon morals. So the Roman law also recognised the
doctrine of natural law, which was founded upon morals.
In the middle period also morals were the basis of law.
In the 17th and 18th centuries natural law theories
become very popular which were also based upon
morals. However in modern times it was only Austin
who discarded morals from law. He said that law is a
command of sovereign. But after him there came the
Historical School that recognised morals as the part of
law.
DIFFERENCE BETWEEN LAW AND
MORALS
When the Austin did not give any place to morals in law
then there came a question of the difference between
law and morals. Later on the courts tried to make
difference between law and morals. In the modern
times there is clear difference between law and morals.
In every developed and civilized society the following
are the differences between morals and laws:-
MORALS LAWS
1.The morals are concerned with individual and are the
laid down rules for the moulding of his character.
2.Morals are mainly concerned with the internal conduct
of the nature of a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals
conscience.
5. Morals are considered to be universal in nature and
value. 1. The laws are mainly concerned with the
society as a whole and lay down the rules for
relationship of individual with each other and with the
state.
2. Law is concerned with the external conduct of the
individuals.
3. Laws are meant by which the evils ends. The justice
is achieved.
4 The observance of law is concerned with duty towards
the state.
5 Law is concerned only with a particular state and
society which differ from place to place & from time to
time.
RELATIONSHIP BETWEEN LAW &
MORALS
In the ancient society there was no difference between
laws and morals, but in modern times various theories of
law separate morals from laws so many differences as
pointed out above came into picture. In spite of these
differences there is a clear relationship between law and
morals. For this purpose it can be noticed from the
following three points :-
1. Morals as the basis of law:- In the ancient society
morals were the basis of all laws. All the rules originate
from the common sources i.e. morals. The reason
behind them was in the form of supernatural fear. The
state picked up those rules which were necessary for
the society of the state.
The state put its own sanctions behind their rules and
enforced them and these rules were called laws. The
rules for which the state could not ensure their
observance wee known as morals. Thus laws and
morals have common origin. We cannot totally separate
law from morals. Queen v/s Dudley: It was held that
moral are the basis of law on the ground of morality, it
was not necessary to kill the boy for saving their lives.
One cannot take the law into one’s own hands. The rule
is that none has the power/right to take another’s life to
save his own.
2. Morals as the list of law:- It has been argued that the
law must conform to morals. It means the law must be
based upon morals and it should not be against morals.
The Roman law was based upon natural law and
Christian morals and principles say that any law that is
against morals is invalid. The natural law theories were
enforcing which were also according to morals.
In the modern times the laws which are not in
conformity with morals are not good laws. However in
practice to a great extent law conforms to morals. Laws
cannot depart from morals due to many reasons. The
conformity of law with morals is a very important factor
even in the modern times.
3. Morals as the end of Law:- Sometimes morals are
considered as the end f law. Justice in its popular sense
is based upon morals. The word used for law conveys
an idea of justice and morals in the same area of law.
Sociological school says that law always has a purpose.
Law is a means to get the end. This aim of law is to
secure social test of law. This can be done properly in
the contest of socially recognize values which are
closely related to morals. Thus ultimately morals
become the end of law. In India the legal system is
engaged from the personal laws and local customs. In
addition to this there are certain other factors like public
opinion, political, ethical, social and economical ideas
which are directly or indirectly under the influence law.
CONCUSION:- So morals also have influence to a great
extent in the development of law. Morals also check the
arbitrary powers of the legislature. All human conduct
and social relations cannot be regulated and governed
only by law. A considerable number of them are
regulated by morals. Thus we can say that the morals
are the very important factor in the development of law.
Morals are basis of law.
6 Professor Hart claims of make a ‘fresh start’ in legal
theory. Discuss.
INTRODUCTION:- Hart is one of the great jurists of that
time. He belongs to analytical school. HLA Hart was the
Principal and Professor in “ Brasenose College Oxford”
His theory about the law named as concept of Law. He
talks about the realty. His theory mainly based on
primary and secondary rules and also based on the
relationship between law and society. His theory
described about two words i.e. Pre-legal world and
Legal world.
DEFINITION AND MEANING: Sir HLA Hart define Law,”
that law is the system of rules, a union of primary and
secondary rules.” He means to say that law is the
system of rules and these rules are primary which are
pre-legal rules and secondary which are legal rules and
the main based of his theory on the relationship between
Law and Society.
Body : Sir HLA Hart theory talks about the two words.
These words are:-
Concept of Law

Pre-legal world
Legal world
No legislature Rule of
recognitaion
No executive Rule of
Change
No court Rule of
Adjustice

1. Pre-Legal World :- This pre legal world belongs to

old age. According to Sir, HLA Hart pre legal world there
was primitive society. And in this society there was no
legislature which can make the rules. There was no
executive also which can change the rules besides this
there was no court also to decide the disputes. In the
primitive society there were three defects which are as
under :-
2 Un-certainty :- Since there was no Parliament in
the primitive society which causes the un-certainty in
the law.
3 Static character:- In the primitive society there were
customs and these customs were not changed. It means
there have static character.
4 Inefficiency :- In the primitive society there were no
power of Jurisdiction. It means that there were no courts
followed by the people.
2. Legal World :- This legal world belongs to modern
age. According to Sir HLA Hart in the legal world there
are modern society. Because of modern society there
are rules of recognition which means that there is a
Parliament/State Executive. The function of the
Executive to change or to amend the rules. In modern
age there are courts which decides the disputes. Judges
applies the earlier laws in deciding the disputes. These
rules/laws are the secondary rules. Thus we can say
that Law is the union of Primary and Secondary rules. In
other words it can be said that the Law is the journey of
rules.
RELEVANCY OF HLA HART’S THEORY
Sir HLA Hart’s theory “ concept of Law “ is the most
important theory of analytical school. Because this
theory tells us about the old age and for the modern
age. In the old age there were primitive society which
did not have any legislature, executive and court.
Therefore only custom and usages which were not
allowed to change them by any person.
The theory of ‘concept of law’ tells us about the legal
world. In the legal world there is a legislature which
makes the rules and these rules are changed or
amended by the executive when it necessary. There
are courts which apply the rules on party. So we can say
that in modern age the law is certain not static in
character. Sir HLA Hart also gives the place of Morality
in his theory because the moral have an important role
in every legal world and these morals are not changed
by passing any Act. We can say that Sir HLA Hart
theory, “ Concept of Law” has the most important place
in the theory of Analytical School.
CONCLUSIION:- Sir, HLA Hart theory Concept of Law
have no conclusion because this theory talks about both
the pre-legal world and the legal world which updates
and tells us that how the law comes. So we can opined
that such best and usable theory needs no conclusion
as it has its self conclusion.
7 Define Natural Law theory. Also explain its
relevancies in the Modern times.
INTRODUCTION: The Natural Law school is not
independent school. It has deep concern with historical,
analytical school. The main contents of this theory is that
it has been interpreted differently at the different times
depending on the needs of the developing legal thought
but the greatest attribute of the Natural la w theory is its
adaptability to meet new challenges of the transient
society.
According to the pro pounder of this theory says that,
Law is a product of the straight thinking of human mind.
According to Socrates, he duely assert it that the
positivist authority should be obeyed but not blindly and
it ought to be subject to criticism if deserve so. Plato: He
was in the view that each individual be given best
suitable role by reason of his capacity and abilities.
Thomas Acquinas (Roman Thinker):- He means that
Natural Law is a part of Divine Law. This part is applied
by human beings to govern their affairs and relations.
Thomas Hobbes (Roman Thinker) :- According to him
that there should be an absolute authority which should
govern and control the affairs of human beings in the
reciprocal transmission of concerned with every span of
life. Rousseau (Roman Thiner) : He held that there two
types of will:1. The will of individual and 2. General will.
The authority through his rule must respect the both and
in the administration of rule making process. These will
should be reflected.
Definition:- From the jurisprudence point of view Natural
law is not a body of actual enacted or interpreted law
enforced by courts. It is in fact a way of looking at things
and a humanistic approach of Judges and Jurists. It
embodies within it a host of ideals such as morality,
justice, reason, good conduct, freedom, equality, liberty,
ethics and so on. The phrase Natural Law has a flexible
meaning. The chief characteristic feature of natural law
may be briefly stated as follows :-
i) It is basically a priori method which is different from
empirical method. It used to stress upon a cause and
effect relationship between the facts on the verge of
logic.
ii) It symbolizes physical law of nature based on
moral ideals which has universal applicability at all
places and times.
iii) It has often been used either to defend a change or
to maintain status quo according to needs of the time.
iv) The concept of Rule of law in England and India
and due process in USA are essentially based on
Natural Law philosophy.
MODEN NATURAL LAW THEORIS:- The following are
the three main thinker who contribute to the Modern
Natural Law theories:-
1. Stammler:- He was much more influence by
Positive Law. He says that” all positive law is an attempt
at just law” with regard to will and purpose of the law
maker should have the proper understanding and
knowledge of actual social world or social reality.
Various a time in his concept he inter changeable used
the word will with the purpose and he conclude that it is
the will of the people which enable them to secure their
purpose under social reorganisation.
2. KOHLER:- His thoughts were influenced by Hegal.
According to him Law is standard of conduct which is
consequence of in the impulse of human being that
urges him towards a reasonable form of life. It also
derives its validity from the moral and ethical standard in
society. So that he laid down stress upon moral and
cultural development of society.
3. Finnis: Finnis also is a very famous jurists of the
present century. He has given the definition and place to
natural law. According to finnis Natural Law is the set of
principles of practical reasonableness in ordinary human
life and human community. He sets up the proposition
that there are certain basic goods for human being.
Fennis lists them as under :-
i) Life:- The term life signifies every aspect of vitality
in good shape for self determination.
ii) Knowledge: Knowledge is a process of knowing of
unknown with the help of sense.
iii) Sociability of Friendship:- Doing something best for
the sake of one’s friend’s purposes, one’s well being.
iv) Role:- It is the expression of a status of human
being in practical form such role is protected and
recognised by law.
v) Religion:- Question of the origins of cosmic order
and of human freedom and reason expressed thus this
view is a good that even an ethicist can value.
vi) Practical reasonableness :- This is the logic
expression of the ideas and decision in practical
circumstances. This the measurement of just or unjust in
a real situation.
Despite the merits of Natural Law philosophy it has been
criticized for its weakness on the following grounds. In
other words the demerits of the Natural Law may be
read as follows :-
i) Moral proposition i.e. ought to be may not always
necessarily conform to the needs of the society.
ii) The concept of morality is a varying content
changing from place to place, therefore it would be futile
to think of universal applicability of law.
iii) The rules of morality embodied in natural law are
not amendable to changes but legal rules do need a
change with changing of the society.
iv) Legal disputes may be settled by law courts but
disputes relating to moral and law of nature cannot be
subjected to judicial scrutiny.
CONCLUSION:-The brief survey of the theories of
Natural law reveals that its concept has been changing
from time to time.

8 Explain the importance of Legislation as source of

Law. OR
Distinguish between supreme and subordinate
legislation?
INTRODUCTION:- Legislation means the process of law
making. This law making power is vested in the
legislation body which is sovereign body. It is called
Parliament at the centre level and legislative assembly
at the state level. Legislation is the most important and
modern source of Law. This source has played an
important role in the development of modern law and
also different from custom and precedent etc.
LEGISLATION AS A SOURCE OF LAW:- The
importance of legislation starts from the beginning of
analytical school. This school ignored the importance of
custom and gave the stress on command of sovereign
which can make law only through legislation. This school
also ignored the judge made law. About custom they say
that the custom are not law but they are the source of
law.
HISTORICAL SCHOOL:- It gives no importance to the
legislation rather gives more importance to custom.
According to them the function of law in only to specify
and to correct the custom into law whereas in the
modern times the importance of legislation has
considerably been increased. With the coming of
existence of the State the legislation has also been
come into existence and become most important
source of law. The scope of legislation has become very
wide in the modern times.
KINDS OF LEGISLATION:- There are two kinds of the
legislation :-
1. Supreme Legislation:- It has the powers of making
law and is known as supreme legislation in each
country. This power is vested in sovereign body in India
i.e. Parliament at the centre and legislation in the State.
2. Subordinate Legislation: It is inferior from supreme
legislation and is indirect legislation. It takes power to
make law indirectly from Parliament, who gave him
power to make law that is why is called subordinate
legislation authority. It is further divided into the following
parts :-
i) Autonomous Laws : A group of persons for making law
is known as autonomous law and body i.e University or
Boards.
ii) Judicial Rule :- means the rules made by judicial body
under power owed from supreme authority i.e. High
courts or supreme court etc.
iii) Local Law: means law made by local bodies under
the control of SC i.e Zila Parishad, Municipal
Corporation.
iv) Colonial Law: It is for those countries who are under
the control of any other country can make laws with the
permission that country.
Executive Law:- The law and the rule can be made by
the executive body in the State under the power
conferred by the Sovereign/ Parliament which is also
known as delegated legislation. It includes the following
origins :
I) Legislation:- The legislation is the super power to
make law for a country.
II) Executive:-The executive body of the nation is to
imposes law in the country.
III) Judiciary:- The Judiciary is to explain and implies
the law so passed.
Parliament in India delegates its laws making power to
the executive body and this power is called legislated or
delegated legislation.
Many reform acts were handing power of making
reforms, controlling of employment, development of
education. In 20th century some important matters were
given to delegated legislation to restrict the State to
interfere in the daily life of the citizens.
CRITICISM:- Many of the writers has criticized this
power because it gives much power to the executive
body and administration body. The legislation has
passed by facing the complicated problems in the
constitution. There were some supporters also who were
in the favor of this delegation of power.
REASONS FOR DELEGATED
LEGISLATION
i) Lack of Time:The parliament has the shortage of time
because of a Public welfare state. It has to pay much
time towards national problems.
ii) Technicality of Matters:- With the progress of society
the things have become more complicated and
technical. Therefore the policy is made by the
Parliament and the imposing matter is left on the
masters of it.
iii) Flexibility: Law should be flexible and according to
the need & conditions of the Public along-with the local
matters which are different from area to area, So
keeping in view of this reason the power is handed over
to the executive.
There are some dangers in delegations of this power:-
i) The executive body may uses the more powers
than the powers delegated by the Parliament. (ii) The
Parliament has no time to examine the rules passed by
the executive under delegated legislation.
In India there is a Parliament form of legislation and it is
a welfare state and the Parliament cannot go aside from
the constitution. Any cut against the constitution is void.
The Main power of delegated legislation &
CONCLUSION is :
Power of facing an act into operation. Power to apply
the Act.
Power to increase or to decrease the scope of the Act.
There is a parliamentary as well as judiciary control over
delegated legislation. This power in India has also on
constitutional basis.
9 Discuss the nature and scope of Jurisprudence. What
is the importance of this subject in the study of law? OR
“Jurisprudence is the eye of law”.
INTRODUCTION :- Jurisprudence in its nature is
entirely a difference subject from other social science.
The reason for this is that it is not codified but a growing
and dynamic subject having no limitation on itself. Its
inquiry system is of different status from other subjects.
Every jurist does not base his study on the rules made
but tries to understand their utility after due deliberation
Thus the jurisprudence has no limited scope being a
growing subject. There is difference of opinion about the
nature of jurisprudence. It is called both art and science.
But to call it science would be more proper and useful.
The reasons for this is that just as in science we draw
conclusions after Making a systematic study by investing
new methods. In the same way jurisprudence is
concerned with the fundamental principles of law
systematic and scientific study their methods.
Scope of Jurisprudence:- According to justice
P.B.Mukherjee: ,” Jurisprudence is both an intellectual
and idealistic abstraction as well as behavioural study
of man in society. It includes political, social, economic
and cultural ideas. It covers that study of man in relation
to state and society.”
Jurisprudence involves certain types of investigations
into law, and investigation an abstract, general and
theoretical nature which seeks to lay the bare essential
principles of law and legal systems.
Salmond observed: “In jurisprudence we are not
concerned to derive rules from authority and apply them
to problem, we are concerned rather to reflect on the
nature of legal rules, on the underlying meaning of legal
concepts and on the essential features of legal system.”
It therefore follows that jurisprudence comprises
philosophy of law and its object is not to discover new
rules but to reflect on the rules already known.
CONTENTS OF JURISPRUDENCE:- The following are
the contents of jurisprudence:-
i) Sources It is true that the basic features of a legal
system are mainly to be found in its authoritative
sources and the nature and working of the legal
authority behind these sources. Under this head matters
such as custom, legislation, precedent as a sources of
law, pros and cons of codification of laws, methods of
judicial interpretation and reasoning, an inquiry into the
administration of justice etc., are included for study.
ii) Legal Concepts :- Jurisprudence includes the
analysis of legal concepts such as rights, title, property,
ownership, possession, obligations, acts, negligence,
legal personality and related issues. Although all these
concepts are equally studied in the ordinary branches of
law, but since each of them functions in several different
branches of law, jurisprudence tries to build a more
comprehensive picture of each concept as a whole.
iii) LEGAL THEORY :- Legal theory is concerned with
law as it exists and functions in the society and the
manner in which law is created and enforced as also the
influence of social opinion and law on each other. It is
therefore necessary that while analysing legal concepts,
and effort should be made to present them in the
background of social developments and changing
economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and
theoretical subject, is not of any practical use. But it is
not correct to say so. Its utility is as under :-
1. Salmond pointed out that jurisprudence has its own
intrinsic interest like and other subject of serious
scholarship, likewise the writer on jurisprudence may be
impelled to his subject by its intrinsic interest. The legal
researches on jurisprudence may well have their effect
on contemporary socio-political thought and at the same
time may themselves be influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In
other words it serves to render the complexities of law
more manageable and rational and in this way theory
can help to improve practice in the seats of law.
3. Jurisprudence has great educational value. The
logical analysis of legal concepts widens the outlook of
lawyers and sharpens their logical technique. It helps
them in shading aside their rigidity and formalism and
trains them to concentrate or social realities and the
functional aspects of law. It is not the form of law but the
social function of law which has relevance in modern
jurisprudence. For instance, a proper understanding of
law of contract may perhaps require some knowledge of
economic and economic theory or a proper grasp of
criminal law may need some knowledge of criminology
and psychiatry and perhaps also of sociology.
4. Commenting on the significance and utility of
jurisprudence : Holland observed, “ the ever renewed
complexity of human relations call for an increasing
complexity of legal details, till a merely empirical
knowledge of law becomes impossible.” Thus
jurisprudence throws light on the basic ideas and the
fundamental principles of law in a given society. This
why it has been characterised as “The eye of law.”
5. Jurisprudence helps the Judges and the Lawyers in
ascertaining the true meaning of the laws passed by he
legislature by providing the of interpretation.
6. The study of jurisprudence helps in rationalising the
thinking the students and prepares them for an upright
civil life. The knowledge of law and legal precepts also
helps them to face every exigency of human affairs
boldly and courageously.
7. Jurisprudence may also be helpful o legislators who
play a crucial role in the process of law-making. The
study of jurisprudence may familiarise them with
technicalities of law and legal precepts thus making their
job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an
opportunity for the lawyer to bring theory and life into
focus for it concerns human thought in relation to social
existence. The law should serve the purpose of social-
engineering by preserving societal values and
eliminating conflicting interests of individuals in the
society.
JURISPRUDENCE IS THE EYE OF LAW:- On account
of importance of jurisprudence in the field of law it is
called, “The eye of Law”. The eyes are one of the most
important parts of human body. Almost all human
activities and the movements of body are possible only
through them. Unless man can see anything properly,
he cannot do any work. The reason of calling
jurisprudence the ‘ the eye of law’ is that jurisprudence
functions for law in the same manner as the eyes do in
human body. For example- the interpretation of law is a
very difficult task, It cannot be done without the help of
jurisprudence. ‘PATON’ in this connection says that,”
Jurisprudence is a particular method of study, not the
law of one particular county but of the general notions of
law itself.’ Whenever any complicated problem regarding
law like:-
1 How and when the law developed. 2 What is its
object. 3 Whether the law was made by people or it was
due to the inspiration of some Divine force. 4 Whether
the law is a command of a sovereign or it is a result of
gradual development of civilization in society. The main
function of jurisprudence is to study the origin of law, its
development and its contribution towards society.
The matters to birth, marriages, death, succession etc.,
are equally controlled through laws. It is the well known
saying that, “ignorance of law is no excuse,” hence it is
essential to know the correct basic principles of law
which are contained only in the jurisprudence. Law is
also connected with civil life. A person who obeys laws
is known as a civilized citizen. A person who does not
obey law is punished. It is therefore necessary that all
the people should have the sound knowledge of law
which is possible only with the help of jurisprudence.
Therefore, jurisprudence, having so much importance
for the society, has rightly been called the eye of law.
10 Judges are the makers of law not discovers of law.
Do you agree with this view?
INTRODUTION:- There are two contrary theories
regarding the question as to whether Judges declare the
existing law or make the law. There are two which are
as under :-
1. Theory that judges declare the law or Declaratory
Theory.
2. Theory that judges make the law or legislative
theory. (Law making theory)
1. DECLARATORY THEORY :- The first theory is the
declaratory theory as described by Hall and Blackstone
and they supported by Dr. carten also.
According to the declaratory theory no new law is
created by the Judge, Courts of Justice do not make
law, their province is to ascertain and declare what the
law is. Judges only discover the existing laws.
 Hale enunciates declaratory theory of precedents
and contends that whilst Parliament alone legislates in
the strict sense the Judges only expound the law and
their decisions are the best evidence of what law is. The
result of his theory is that the effect of the decision is
retrospective for it does not only declare what law is but
what it always has been. Nevertheless as Maine has
pointed out once the Judgement has been declared and
reported we start with a new train of thought and
frequently admit that the law has been modified.
According to Lord Esher, There is in fact no such
hing as Judge-made law, for h judge do not make the
law, though they frequently have to apply the existing
law to the circumstances as to which it has not
previously been authoritatively laid down that such law is
applicable.”
Declaratory theory is based on the fiction that the
English law is an existing something which is only
declared by the Judges. This theory is known as the
theory of judicial precedent.
LAW MAKING THEORY
The second theory is that the Judges do not declare law
but make the law in the sense of manufacturing of
creating entirely new law. Bentham and Austin, have
opposed the traditional view as a childish fiction and
have declared that Judges are in fact the makers and
fulfill a function very similar to that of the legislature.
Lord Becon: The new point decided by the Judges is a
direct contribution towards law-making. Professor Dicey
supported this view and gives example of English
common law which has been made by the judges which
has been made by the judges through their judicial
pronouncements.
Prof. Gray : supports this law making theory and says
that judges alone are the makers of law. He discredits
the declaratory theory.
Judges are without any query law-makers but their
power of law making is not un-restricted. It is strictly
limited for instance they cannot over rule a statute where
the statute clearly lays down the law. The legislative
powers are restricted to the facts of case before them.
According to Salmond : Who is strong support of this
view says that he is evidently troubled in mind as to the
true position of precedent. He further says that both in
law and in equity declaratory theory altogether totally
rejected.
Such cases which are not covered by existing laws
the judicial decisions created new notions and formulae
new principles which were never contemplated earlier.
Supreme court over-ruled the Golak Nath decision in
Keshwanand Bhari’s case and laid down a new basic
structure theory and in Golak nath case the new
principle of prospective over-ruling was evolved by
Judges.
RECONCILAION OF THE TWO
THEORIES
The above two views about making of law by judges are
not exclusive of each other but they are rather
complementary. It will be seen that neither the purely
declaratory theory nor the purely legislative theory
represents the whole truth. Judges develop the law but
cannot be said to legislate. The common law is not
made but has grown and the more it changes the more it
remains the same thing.
The answer to the question whether the
Judges make or discover law much depends upon the
nature of the particular legal system. In common law
system it may be stated that the Judges make law while
in other countries where is law is codified the judges
only supplement the law. It is true that custom and
statutes do not render the judges some super fulvous
knowledge.

11 Explain the phrase, “Law is social Engineering” as

propounded by Roscoe Pound.
INTRODUCTION:- Roscoe Pound is considered to be
the,” American Leader” in the field of Sociological
jurisprudence. He comes from Harvard Law School and
had a great academic favour. According to him,” the end
of law should be to satisfy a maximum of wants with
minimum of friction.” He defined law as containing the
rules, principles, conceptions and standards of conduct
and decision as also the precepts and doctrines of
professional rules of art. He considers law as a means
of a developed technique and treats jurisprudence as
‘social engineering’.
The main propositions of Roscoe Pound theory of Social
Engineering are as under:-
i) POUND CONCENTRATES ON THE FUNCTIONAL
ASPECT OF LAW:- Pound concentrates more on the
functional aspect of law, that is why some writers name
has approach as “ functional school” the law is an
ordering of conduct so as to make the goods of
existence and the means of satisfying claims go round
as far as possible with the least friction and waste.
ii) THE TASK OF LAW IS “SOCIAL ENGINEERING”:-
He says, “for the purpose of understanding of law of
today. I am content with a picture of satisfying as much
of the whole body of human wants as we may with the
least sacrifice. I am content to think of law as a social
institution to satisfy, social wants, the claims and
demands involved in the existence of civilized society.
iii) SOCIAL ENGNEERING MEANS A BALANCE
BETWEEN HE COMPETING INTEREST IN SOCIETY :-
He lays down a method which a jurist should follow for
‘social engineering’. He should study the actual social
effects of legal institution and legal doctrines, study the
means of making legal rules effective sociological study
in preparation of law-making, study of judicial method, a
sociological legal history and the importance of
reasonable and just solutions of individual cases.” He
himself enumerates the various interests which are to be
protected by the law. He classifies them under three
heads:
i. Private Interests (ii) Public Interests (iii) Social
Interests.
PRIVATE INERESTS:- Such as interest of physical
integrity, reputation, Freedom of volition and freedom of
conscience. They Are safe-
guarded by law of crimes, contracts.
PUBLIC INTERESTS:- Main public interests are
preservation of the State, State as a guardian of social
interests such as Administ-Ration of trusts, charitable
endowments, protection of Natural environment,
territorial waters, sea-shores,
Regulation of public employment and so on.
SOCIAL INTERESTS:- Preservation of peace, general
health, preserving of Social institutions such as religion,
political and Economic institutions, general morals,
promotes Human personality, cultural and economic life.
Pound tackled he problem of interests in term as of
balancing of individual and social interests. It is through
the instrumentality of law that these interest are sought
to be balanced. Justice Cardozo remarked that,” Pound
attempted to emphasize the need for judicial awareness
of the social values and interests.” Roscoe Pound
regarded law as a basic tool of social engineering. How
in India the society and law are acting and reacting upon
each other can be adjudged from the following
enactments passed after India became Independent:-
a. The special Marriage Act 1954 2. The Hindu
Marriage Act 1955 3. The Hindu succession Act 1956 4.
The Hindu Minority and guardianship Act 1956 5. The
Hindu Adoptions and Maintenance Act 1956 6. The
Dowry Prohibition Act 1961 7. Child Marriage Restraint
(Amendment Act) 1978 8. The Consumer Protection Act
1986 9. The S.C & S.T.(Prevention of Atrocities) Act
1989 10. Commission of Sati (Prevention) Act 1987 11.
Bonded labour(Abolition) Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF
LAW:- Pounds theory is that interests are the main
subject matter of law and the task of law is the
satisfaction of human wants and desires. It is the duty
of law to make a valuation interests in other words to
make a selection of socially most valuable objectives
and to secure them.
To concluding the theory, Pound says that
the aim of ‘Social Engineering’ is to build an efficient
structure of the society as far as possible which involves
he balancing of competing interests.
CRITICISM AGAINST POUND’S THEORY
:-
i. Engineering not a happy word : It suggests a
mechanical application of the principles to social needs
but really the word engineering is used by Pound
metaphorically to indicate the problems which the law
has to face.
ii. Classification of interests not useful: Freidmann
doubts the value of classification of interests and the
value of such classification.
iii. Ihering & Bentham concludes the theory of Pound’s
that, “such classifications greatly helps to make
legislature as well as the teacher and practitioner of law
conscious of the principles and values involved in any
particular issue. It is an important aid in the linking of
principle and practice.”
POUND’S CONTRIBUTION
Social Engineering stands on a practical and firm
ground. He points out the responsibility of the lawyer,
the judge and the jurists and gives a comprehensive
picture of the scope and field of the subject.
12 What do you mean legal personality and its different
theories? Whether the following are legal person :-
1. President of India 2. Council of Ministers 3.
Company 4 Un-born child. 5. Animals.
INTRODUCTION:- Natural Persons are all human
beings who are capable of rights and duties in law, i.e.
who have a status. Legal persons are those to whom
law is recognised as a person. It is either a thing or a
mass of property or group of human beings to which law
attributes personality the law confers a legal status and
who thus in the eye of law possess rights and duties as
a natural person. Person is of two types :- 1. Natural
Person II. Legal Person
According to Gray, “A person is an entity to which rights
and duties may attributed.”
According to Salmond, “ person is, any being to whom
law regards a capable of rights and duties.”
According to Paton, “Legal personality is a medium
through which some such units are created in whom
rights can be vested.”
In the development of society, law developed and
with the development of law the concept of legal
personality come into existence. In the ancient times
there was no concept of legal personality but as the
society developed the person was recognised as the
representative of the State and a separate personality
was given to him. In the due course of time corporation
and companies came into existence such companies
and corporate were given the separate personality so in
this way these bodies are now called as legal persons.
There are the following two types of
persons :-
i) NATURAL PERSONS ( HUMAN PERSONS):- All
human beings are natural persons but in ancient society
the slaves were not recognised as natural persons.
Similarly outlaid persons, unsound persons were not
natural persons. In Hindu Law, Manu has mentioned
some persons who were not recognised as natural
persons i.e. Born child, deaf persons, sanyasi and those
who are living dead.
1. Unborn person: Unborn person is not a natural
person because he is not in existence, but a child in the
womb is natural person because he bears the rights and
duties under law. Person in the womb can represent the
position after birth. In IPC the child in the womb is
considered as a natural person as soon as any of his
organ will come out from the womb.
2. If the pregnant lady gets the punishment of death
sentence. She will be hanged only after delivery.
3. ANIMALS:- In ancient time the animals were legal
persons but in modern time animals are not the legal
persons but in law we find come cases in which some
animals have some rights and duties. Today also the
protection of animals some laws have been made which
give rights to the animals. These laws prohibit people to
kill them. In this theory the personality has also been
confirmed.
4. Dead Person:- In law dead person has no existence
as the dead person has no personality. But in certain
cases they are considered as person in law. First if any
person defames the dead person and such defamation
lowers the reputation of the family members of the dead
person, then a legal action be taken against the
wrongdoer who defamed the dead person. Secondly if
any person defames the dead body of deceased person
then such person is liable for damages under law.
ii) LEGAL PERSONS:- Legal person are artificial or
imaginary beings to whom law attributes personality by
way of fiction, i.e. law gives them rights and duties like
of natural persons, e.g. King of England has two
personalities- first a human being second as head of
state, being head of state he is known as a legal person.
Similarly he President of India and the Governors of the
states are legal persons.
CORPORATE PERSONALITY:- Main form of legal
personality is the corporate personality. It is of two kinds
:-
1. Corporate sole: means a single body representing
any state or any other object. It is called series of the
successive persons. The King of England or the
President of India is the corporate sole. They represent
only one man in successive period. The post of
corporate sole remains always alive while the human
beings who sit on the post may die.
2. Corporate Aggregate :- When law confers single
personality to a group of person then it is called
corporate aggregate e.g. companies are registered
according to law of societies or according to law of land.
These companies or corporations etc., are legal
persons.
3. In the ancient time the Karta represented the whole
Hindu family who was considered as legal person. It is
same as in Roman Society. It is adopted in the shape of
Indian companies Act 1956. The advantages of the
corporate personality because they represent an
association of persons as a single person which is
helpful in business.

13 Lay down the essential features of the Historical

school. Discuss the views of Society in this regard. OR
Discuss the philosophy of law as given by Sovging
under Historical School? OR Write critically note on
the following Soveging (Volkgeist Theory).
INTRODUCTION:- Jurisprudence is a subject in which
the definition nature and the sources of law are studied
various writers under various schools have defined law.
Austin under Analytical school says that law is the
command of sovereign. He added only the law in the
study of jurisprudence. But under historical school
Soviging says that law is the general consciousness
(Volkgeist) of the people. It means what the common
people think or behave is the base of law. Law shows
the general nature of the common people. This theory
of Volkgeist is bassed on the historical method.
Soveging is the father of it. According to Soveging, “
Law is the General consciousness of he people.”
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law
from the past history. It says that law is based on the
General Consciousness of people. The consciousness
started from the very beginning of the society. There
was no person like sovereign for the creation of law.
The law in the ancient times was based
mainly upon simple rules, regulation, custom, usages
conventions etc. These things were later on developed
by the jurists and lawyers. These things were later on
converted into set form of law.
CAUSES OF COMMING OF THE
HISTORICAL SCHOOL
The Historical school is just opposite to the
Analytical school in 18th and 19th century, the concept
of individualism came into existence. Due to this concept
the revolutions came like French revolution, Russian
revolution etc. At that time Soveging montasque, Barke,
Hngo were the writers who said that law is the general
will of the people or law is based upon common people
and the feelings of the common people.
Law develops like the language and
manners of the society. So law has a natural character.
Law has no universal application. It differs from society
to society and state to state. In the same way the
languages differ from society to society and locality to
locality.
Montasoque has said, “Law is the creation of climate,
local situations and accidents.” According to Hugo hag, “
Law develops like language and the manners of the
society and it develops according to suitable
circumstances of the Society. The necessary thing is the
acceptance and observance by society.
According to Burke, “ Law is the product of the General
process. In this sense it is dynamic organ which
changes and develops according to the suitable
circumstances of society.
SOVEGING :- Soveging is considered as the
main expounder or supporter of the historical school. He
has given the Volkgeist theory. According to this theory,
law is based upon the general will or free will of common
people. He says that law grows with the growth of
nations increases with it and dies with the dissolution of
the nations. In this way law is national character.
Consciousness of people. In other words, according to
this theory law is based will or free will of common
people. He says that law grows with the growth of
nation. A law which is suitable to one society may not
be suitable to other society. In this way law has no
universal application because it based upon the local
conditions local situations, local circumstances, local
customs, elements etc. Al these things effect law and
make it suitable to the society.
The main features of the Soveging theory
is :-
1. Law has a national character.
2. Law is based upon the national conditions,
situations, circumstances, custom etc.
3. Law is pre historic: means law is found and is not
made, the jurists and the lawyers make it into set form.
4. Law develops like language and manner of the
society. In ancient society law was not in a natural stage
or no in a set form. Later on with the development of the
society the requirements and the necessities of the
society increased. Due to this it was necessary to mould
law in a set form.
IMPORTANCE OF CUSTOMS
According to Soveging customs are more important than
legislation because customs come before legislation. In
other words the customs are the base of legislation.
CRITICISM OF SOVEGING’s THEORY
Savigny’s theory has been criticised on the
following grounds:-
1. Inconsistency in the Theory :- Saveging asserted
that the origin of law is in the popular consciousness,
and on the other hand, argued that some of the
principles of Roman law were of universal application.
Thus, it is a clear cut inconsistency in his ideas.
2. ‘Volksgeist’ not the Exclusive Sources of law :-
There are many technical rules which never existed in
nor has any connection with popular consciousness.
3. Customs not Always Based on Popular
Consciousness:- Many customs are adopted due to
imitation and not on the ground of their righteousness.
Sometimes customs completely opposed to each other
exist in different parts of the same country which cannot
be said to be reflecting the spirit of the whole
community.
4. Savigny Ignored Other Factors That Influence Law:-
The law relating to trade unions is an outcome of a long
and violent struggle between conflicting interests within
a society.
5. Many Things Unexplained :- Legal developments in
various countries show some uniformity to which he paid
no heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism:- Soveging encouraged juristic
pessimism. Legislation must accord with popular
consciousness. Such a view will not find favour in
modern times. No legal system would like to make
compromise with abuses. People are accustomed to it.
CONCLUSION
From the facts mentioned above we have gone behind
to see the history of the society to check that what was
the position of law in the ancient time. How and in what
form law was prevailing in the society? To find the
solution of the questions the supporter of Historical
school found that law is the general consciousness of
the common people or it is the free will of common
people on which law developed and converted into a set
of form of law.

14 Define Precedents? Lay down the importance of the

precedents as the source of law. In what sense they are
binding? Do the judges make law?
INRODUCTION:- Precedents literally means previous
judicial decision. The decisions of the higher courts are
binding on the lower courts. The binding force of
decision is called precedent. The precedents play an
important role in the development of law. It is the second
important source of law. First source is customs and the
third source is legislation. Sometimes act may be
insufficient for the case or there may be an vacuum or
any thing missing in the act. Under these circumstances
the court can apply their own mind. These independent
decisions becomes precedents which are followed later
on by the same & Lower courts. This method of decision
is also called as Judge made law. The English and
American law is mostly based upon the precedents. In
India Art.141 of Indian Constitution says that the
decision of the higher courts shall be binding upon the
lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a
decision of a court which is also called judicial decision.
According to the Oxford University, “Precedents means
the previous decision case given by a court according to
rules.” Various writers have given the definition of
precedents is conduct of court adopted by the lower
court in similar facts and in similar circumstances in a
case. Particularly the precedents means the Judge
made law. When the court gives its own ideas for
creating new rules. England, America and China also
follow the previous decisions as the source of law but
the continent countries like Germany, Japan does not
accept the previous decisions as the source of law. The
method of taking precedents as source of law is called
inductive method, while the method of continental
countries not following previous decisions of the court is
called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very
important source of Law. They play an important role in
the development of law, so they have certain
advantages as:
1. Precedents show true respect to the ancestors
means by adopting the previous decision of the higher
court to decide the present case, it is a kind of respect to
elders.
2. Precedents are suitable to the present situation
means after some times the circumstances of the
society can change with the change of time so the
precedents they are more suitable and fit for the present
time and circumstances.
3. Precedents are based on customs means the law in
the form of act which based upon customs. Court
interprets the customs while interpreting any act.
4. Precedents are convenient and easy to follow
because they are available in the form of written reports.
5. Precedents bring certainty in law, once decision is
given in a case there would be no need to repeat all
precedents in any other case if it resembles to the
former case.
6. Precedents are the best guide for the Judges: They
play an important role in the judiciary because the
precedents are the guide lines for the courts.
DEMERITS OF THE PROCEDENTS:- lthough the
demerits are very few but these are as under :-
i) The decisions are given by the human beings while
performing the duties as judge, his decision may not be
suitable to all persons who have different mind and
thinking. This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts
contradictory to each other. It becomes harder to
another judge to apply the same verdicts as a
precedents of higher court
iii) Sometimes the higher courts give a wrong decision
and over pass the important factors of the case due to
one reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an
important source of law. It is available in the form of
judicial decisions. Now the question arises that in what
sense and when the precedents are binding o follow.
For the answer of this query different views have been
given by the various writers and jurists. No doubts the
precedents is not binding like warrant issued by a court
of law. It means precedent can be over ruled if they are
not right or appropriable to the case to be decided but
warrant has to be followed by all to whom it is
applicable.
It is not necessary that in the case which is to be
decided the circumstances and the facts must be the
same as in resembling case. If the facts and the
circumstances of the cases are materially similar then
the precedents or previous judicial decision is applied in
the later cases and are applied only in the form of ‘ratio
decidendi’ of previous cases. There are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the
court to reach the decision. It is the main part of the
case in judgement and the ratio decidendi of the
decision is binding in the form of precedent.
ii) Obits decidendi:-It is also a part of the decision
which is irrelevant to the facts and circumstances of the
case. The judge takes into consideration the social
conditions, morality, principal of natural justice that is
why the Judges play an important role in the
development of legal system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
CUSTOMS PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general. Precedents are
given by courts.
Custom is conduct adopted by people of society.
Precedents is itself complete certain, reasonable
given by a competent court of the country.
Custom is based upon the reasoning of common people
of the society.
Precedents are based upon the reasoning of a
individual Judge or very few judges.
Customs have more value then precedents and cannot
be ignored. It can be ignored if it gives un-justice.

DO JUDGES MAKE LAW:-

There are two theories about this purpose one theory
says that Judgs do not make laws and other theory says
that Judges in fact are the makers of Laws. This theory
is also known as declaratory Theory. According to this
the judges are not makers of the laws which they are
already n existence. The judges while deciding the case
only applies the existent and relevant customs for
deciding the cases.
Judges are not the law makers:- The supporters of this
theory (historical school) says that all the laws are based
upon customs. The judges only to explain these laws
and customs. According to Coke hate and Dr.Carter,
that the law is created by the King or by the Parliament
or by the Legislature bodies. Common Laws is based
upon custom. The public through the decision of courts
come to know those customs. It means that Judiciary is
not the maker of law. A case: Rageshwar Parsad v/s
state of West Bengal. It was held that, The court does
not create Law.
ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory. It says that the
Judges are the real makers of the law. They not only
interpret or explain but also make the law. According to
Salmond: who is the main supporters of this theory
says, “ That the decisions of the courts are a great
contribution to the legal system.” Dicay says that, “that
legal system is the best part of the law of England which
is judge made law.”
CONCLUSION:- The conclusion or the correct view is
that we cannot ignored any of the above theories
because both are correct and complements to each
other and both should be taken. No doubt that a Judge
can only to explain or to interprets the existing laws but
at the same time he also creates the new ideas,
thoughts and gives new touch ideas which play an
important role in the development of law.
15 Discuss the main features of the ‘Pure Theory’ of
Law. How it resembles with Austin’s command theory.
Critically examine the view of Kelson given under pure
theory of Law?
Introduction:- The Pure Theory of Law is given by
Kelson. This theory is also known as “Vienna School”
because Kelson is the productor of Vienna University.
This theory resembles with Austin’s command theory
because in Kelson’s theory there must be sanction
behind law. Austin gave it the name of command theory
and Kelson gave it the name of grandnorm theory.
Kelson is affected by local conditions, natural condition
and international condition. After studying all these
conditions he gave this theory of Law, which is known as
pure theory of law and grandnorm theory .
Concept of pure theory of Law:- At the time of Kelson
there are Ist world was which destricted the property of
human beings at international level. So he gave power
to the international law and avoiding the destructions of
the world. Secondly during that time many countries
adopted written constitution. So Kelson also get
influenced from these written constitutions and gave his
own theory which is based on grandnorms.
Grandnorm
Grand means great and norm means Law, So it
means a great law the superior authority from which law
comes out. He compared the grandnorm with written
constitution. According to him written constitution is the
highest authority in the country which is known as
grandnorms. In England the Parliament is a grandnorm,
in USA written constitution is grandnorms and in India
too written Constitution is grandnorm. State is not above
the grandnorm. Sovereignty also liven in grandnorm.
Accoding to Kelson law is a motive nor science, it
means science of norms. In laws only those rules are
taken which are related with legal aspects. Any others
like moral rules, religious rules, ethical rules do not
come under the concepts of grandnorm. Here Kelson is
equal to Austin. When he excludes morals relation or
ethics from the field of law.
System of Normative Rules:- System of normative rules
was Hierarchy. In hierarchy system there is one highest
authority and all other are lower authorities. This highest
authority was grandnorm which was in the form of
written constitution and other authorities are below the
constitution. The source of power in a state for all bodies
is written constitution.
Internation Law:- Kelson says that norms have a force
behind it. This force lies in the grandnorm. If this legal
norm is not obeyed then one person will be punished for
it. He also says that at this time international law is
immature. It is in primitive stage. It is developing.
Nature of Grandnorm:- According to Kelson each
country has the formation of grandnorm according to
local conditions. The duty of jurists is to interpret the
grandnorm in their own language. They are not
concerned with the goodness or badness of the
grandnorm. They are not concerned with the origin of
the grandnorm. In this way the grandnorm is the main
source of all the laws in the country.
Elements of Pure Theory:- Kelson gave his view under
this theory about State, sovereignty, public and private
law, public and private rights, international law private
and juristic law.
Feature of Kelson’s theory:-
1. Grandnorm as a source of law:- Grandnorm is the
source of all laws. Grandnorm is in the form of written
constitution. Any such body, which contains rules, or any
such legal system in a country.
2. No difference between law and state:- Kelson says
that there is no difference between law and State
between because they get power from the same
grandnorm. Law comes from the grandnorm and the
state also comes from the grandnorm.
3. Sovereign is not a separate body:- Austin says
sovereign is a politically superior person which keeps
controls over the politically inferior persons. But Kelson
says that the power of sovereign lies in the people. So
the Sovereign is not separate and superior from the
people of the country.
4. No difference between public law and private law:-
The public law is related with the state and the private
law is related with the individuals as Kelson says that
there is no difference between public law and private
law. The law which creates a contract between
individuals is called private law.
5. Supremacy of internationally laws:- The main
prupose of Kelson was to decrease the tension at world
level because there was Ist world war which destroyed
millions of persons and property. He also said that the
internaiton law is in primitive stage or immature stage. It
means it is in developing stage. One day will come when
international law will get equal to that of municipal law.
So this is also enforceable.
Criticism of Kelson’s theory:- In-spit of having good
concept of pure theory given by Kelson some of the
criticism faced by him, which are as under:
a. Grandnorm is a vague concept:- The concept of
grandnorm is not clear. It cannot be applied where there
is no written constitution. The base of grandnorm in the
form of positive norms or the rules based only on legal
order is not clear. The rules, which are not linked with
morals ethics. Customs and religion are not the norms.
But we can not ignore the role of these norms in the
development of law.
b. Interantion Law is a weak law:- Kelson advocated
the supremacy of international law. But even upto now
we see that is no force behind international law.
c. No difference between state and law:- this point is
also criticised by various writers. Law as a separate
thing from the State. State is body is law in, which law is
a rule that regulates the state.
d. Difference between public law and private law:-
Kelson says that there is no different between public law
and private law. Which is also not right in the modern
days.
e. Customs and Precedents ignored:- He also
customs as a source of law while we see that customs
are the source of all laws.
Conclusion:- Although Kelson has been criticised from
various angles yet he had contributed a lot in the
development of the society. Thus the concept of
grandnorm gave power to the public at large as well as
at national level. His main purpose was to stop
destruction of any world war. This can resemble to
Austin also Kelson is also limited with the law.
16 Discuss the Salient features of the Sociological
School of Jurisprudence? OR Salient features of the
Sociological School of Jurisprudence?
Introduction:- The sociological school is one of he
important branches of law. It comes after the Analytical
school and Historical school. Its seeds were found in
the historical school. Duguit, Roscopound and Camta
are the supporters of this school. This school is related
with society. According to this school law is numerator of
society. Law and society both are the two sides of the
same coin, one cannot exist without the other. If there is
law there should be society and if there is society there
should be law. Law is very necessary for regulating the
society. Many writers like Duguit, Roscopound and
Inhering gave these view in the sociological school.
The theory of Duguit under sociological school is a
social solidarity. Scocial solidarity means the greatness
of society. Duguit said that there are mainly two types of
needs of the society:-
1.Common Needs 2. Adverse Needs.
1. Common Needs :- Which are fulfilled by mutual
assistance.
2. Adverse Needs.:- Which are fulfilled by the exchange
of services. No one can live without the help of other.
Even a state cannot exist without the help of other state.
One cannot produce all things required for him. So he
has to depend upon others. The dependency is called
social solidarity. For this purpose the division of labour
is necessary. Division of labour will fulfill all requirement
for the society. This philosophy or views is called social
solidarity.
ESSENTIAL ELEMENTS OF DUGUIT
THEORY OF LAW
1.Mutual Inter dependence : In society all persons are
depending upon each other. Individual cannot fulfill his
ambitions alone.
2. No difference between state & society: State and
society are a group of persons. Main purpose of the
society is to save the people. This responsibility is also
lies upon the state. So state does not have a special
status or above status from people. State should make
law for the welfare of the people.
3. Sovereign and will of people: Sovereign is a
politically superior person. Duguit says that sovereign is
not superior to people. The sovereign of a state lives in
people or in the will of people.
DIFFERENCE BETWEEN PUBLIC &
PRIVATE LAW
Duguit says that there is no difference between public
law and private law because the aim of both the law is to
develop the social solidarity. Pubic law and private law
are meant for people. Public right and private right or
people have only duties and not any right.
There is no difference between public right and
private right. According to Duguit there is only one right
that is to serve the people. It means person have only
duties not rights.
CRITICISM OF DUGUIT’S THEORY
1.The theory of social solidarity is vague:- This theory is
not clear for a common person. One cannot gain
anything from this theory so this is vague theory.
2.Who will decide social solidarity :- Duguit has not
given the authority that who will explain the solidarity
because Duguit did not recognize sovereignty. We can
imagine that Judge will explain the standard of social
solidarity. But there are no guidelines for the Judgess
3.Public law and Private law are not same :- There must
be an authority which passes the law. In Duguit theory
there is no place for such authority.
4. Public right and Private right are also not same :- The
right of society is public right and the right of common
people is private right.
5. Custom ignored:- Custom is the base of any law but
Duguit ignore these customs. In this way the theory of
Duguit is not suitably in modern times.
CONCLUSION
No doubt Duguit was a sociologist because he gave a
lot of development to society. The social solidarity itself
contains the welfare of the people. Duguit said that law
should be according to the social solidarity. Here he
discards natural principal but the theory of the social
solidarity itself is based upon natural law, which
demands that the people should served properly
according to their needs. In this way Duguit put out the
natural law principal from the door and accepted through
the window.
 However the contribution of Duguit is accepted by
many writers and some of them also adopted this
theory.

17 Define Ownership. Discuss the various kinds of

ownership. Distinguish between possession and
ownership.
INTRODUCTION: Ownership is linked with possession.
Possession is the first stage of ownership. It means for
ownership possession is necessary. Possession and
ownership both are two sides of the same coin and one
cannot exist without the other.
Ownership gives the full right over the thing. Ownership
is ultimate and final right for disposing the property. It
means to transfer that property in any way. Ownership
is a relation ship between the person and the thing. For
ownership there must be a thing and the owner of thing.
The concept of ownership was absent in the ancient
society. There was also no concept of possession too.
Slowly and slowly as the society developed the concept
of possession also developed. The idea of ownership
came into existence. So this way after the progress of
the concept of ownership the person became the full
owner of his property.
DEFIN ITION :- Before to define the ownership we have
to discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman
Law was the first law in the world. It is considered the
ancient law. All concepts of law begin from the period of
Roman society. Under the Roman Law the concept of
ownership is defined in the form of dominion that means
to have the right control of a thing. The concept of
ownership developed in the form of a right over the
thing. Dominion is distinguished from possession.
Possession means to have possession over a thing but
dominos means to have a right over the thing.
HINDU LAW :- Hindu Law is also considered as the
most ancient law in the world. In Hindu law the
concept of ownership also has been discussed. In
Hindu Law ownership is said a , “According to Hindu
Law ownership means a relationship between person
and a thing. Person is called owner and a thing is called
property. Means a property which is in the control of a
person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland and Salmond
defined the concept of ownership.
Austin :- According to him ownership is the relationship
which exists in between the person and the thing.” This
definition resembles with the definition under Hindu Law.
Austin says that in ownership a person has the following
relations with the thing.
1.Indefinite Use :- It means to use that thing in any way
whether to use it for agriculture or for industry, residence
but there is a restriction that one cannot use one’s
property in such a way which destructive in the living of
others.
2.Un-restricted power of dispose:- Means to transfer that
thing or property according to his choice. He can sale or
to mortgage even to give on lease or gift to anybody. But
under art.19(2) of the Constitution reasonable
restrictions can be imposed by the Govt., in the interest
of public policies.
3.Un-limited duration of time :- means the right of
transfer of his property will remain always in the name of
owner. After his death it will go to his heirs so there is
no time limits.
4.Domination :- It means to have control over the thing.
For this purpose both elements of possession corpus
and animus should be there. If the conditions are there
between person and the thing and then the person is
owner of that thing.
According to Holland: He defined the ownership as a
plenary control of a person over a thing. The definition
also contains the following conditions :-
1.Possession 2. Enjoyment 3. Disposal.
According to Salmond :- Salmond defines ownership as
a relationship between person and the right. Right
means to have a thing under possession. Thing always
represents physical objects. But right always represents
a thing which is not in physical existence like copy right
and allowances are always thing which are called
property. And which are not in physical existence.
Salmond has included all those right which are property
in the concept of ownership. In view of the above it is
learnt that Austin and Holland definitions are not
complete. But salmond is completely perfect in his
definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as
under :-
1. Corporal and Incorporeal ownership: Corporeal and
incorporeal ownership also called material and
immaterial ownership. Corporeal ownership is the
ownership of a material object and incorporeal
ownership is the ownership of a right. Ownership of a
house, a table or a machine is corporeal ownership.
Ownership of copyright a patent or a trade mark is
incorporeal ownership.
2. Sole and co-ownership:- The general principal of
ownership is that vested in one person only. But some
times it vested in many persons in other words two or
more person have the right of ownership. If only one
person have right of ownership that known as sole
ownership and where two or more persons have the
right of ownership then know as co-ownership.
3. Vested and contingent ownership:- Ownership is
either vested or contingent it is vested ownership when
the title of the owner is already perfect. It is contingent
ownership when the title of the ownership is yet
imperfect.
4. Absolute and Limited ownership:- means owner is
one in whom are vested all the rights over a thing to the
exclusion of all or when a person has an absolute right
over his property known as absolute ownership.
When there are limitations on the user duration or
disposal of rights of ownership the ownership is limited
ownership.
5. Legal and Equitable ownership:- Legal ownership is
that which has its origin in the rules of common law.
Equitable ownership is that which proceeds from the
rules of equity. Legal right may be enforced in rem but
equitable rights are enforced in personam.
CONCLUSION
The ownership is a relationship between person and the
right. These rights include the right of possession
enjoyment and disposal of the property. If all conditions
are there then it is called Ownership.
DIFFERENCE BETWEEN POSSESSION &
OWNERSHIP
 POSSESSION OWNERSHIP
1.Possession is a primary stage of ownership which is in
fact. 1. Ownership is in right.
2.Possession does not give title in the property defacto
exercise of a claims 2. While in ownership it gives title
in the property dejure recognisation.
3.Possession is a fact.3. Ownership is a right and
superior to possession.
4.Possession tends to become ownership.
4.Ownership tends to realize itself in to possession.
5.Possession dominion corpus and animus are
necessary. 5.Ownership they are not necessary
because law gives full rights.
6.Transfer of possession is comparatively easier.
7. Possession is nine points of law. 6.Ownership most
of the cases involves a technical process i.e.
conveyance deed etc.
7.Ownership always tries to realize itself in possession
i.e. complete thing.

18 Define Custom and essentials of a valid custom.

Discuss its importance as a source of law and also
compare with precedents.
INTRODUCTION: Custom is a conduct followed by
persons in the society. Custom is considered as the
most ancient and most important source of law. Source
means origin of a thing. It is also considered that law
basically comes out from customs. In the past customs
were prevailing for the control over the society.
Austin was the first person who discarded the
value of the custom. But the historical school again
gave the importance to custom. The sociological school
also gives importance to law with relation to society.
In the modern times the precedents i.e. Judge
made law and legislation have become over powered to
that of customs. As in a case of Maduri v/s Motu Ram
Linga. It was held that even custom power over the
state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM
AS A SOURCE OF LAW.
The followings are the systems which recognized
custom as a source of law :
1.Romal Law :- Roman Law is known to be the oldest
one in the world. This law is mainly based upon
customs of the society. Those customs which were
reasonable continued them as law by the Roman jurists.
2.Hindu Law :- Hindu law is also to be considered as the
most ancient law. His sources are Vedas, Sutras and
Smiriies and these were mainly based on customs. All
personal laws of Hindu are based upon custom that is
why Lord Warren Hastings and Lord Cornwallis did not
attack on customs of Indians.
Manu said One should follow the given path of their
ancestors. This was nothing but the reorganization of
customs.
3.Mohammedan:- Particularly ignored customs for the
purpose of law. During th Muslim period in India their
customs were protected by State. The British rulers in
India also protected customs and personal laws which
were based upon customs. The traditions which were
not opposed by the prophet Mohammedan were
recognized as law. In this way we can say that customs
in Mohammedan law also played an important role.
4. English Law :- Which is known as common law and in
the shape of un-written and based upon customs and
conventions. Customs which were reasonable and not
against the public policies were recognized as law under
English Law.
According to Pollock, The common Law is
customary law. Black stol common includes written law
and un-written law.” The written law is based upon the
general customs. In this way English law also gave
importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related
to the nation and are applicable on the country’s people.
2. Local Customs :- Those customs which are related
with a particular locality.
3. Family Customs :- Those customs which are related
with a family and have application on a particular family.
4. Conventional Customs :- These customs based upon
conventions e.g. a bigger part of English Law based on
customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The
customs must be ancient. There is no limit of time for the
antiquity of custom. In India there is no fixation of such
time limit.
2. Reasonable :- The customs must be reasonable. It
should not be un-reasonable and against the public
feelings.
3. Followed :- Customs must be followed by the society.
There should be no contradiction in observing customs.
4. Continuity :- Customs must be continuing from the
time it was recognized as law. There should not be any
break or interruption. If there is break for sometimes it
does not mean that the right thing has been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its
reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed
peacefully for a long time without an disturbances.
8. Immorality:- Customs should not be against the
morality.
9. Public Policy:- It must not be against the public
policies or against the will of people.
10. Not against the State of Law:- Customs should not
over-ride the legislation . It should not be against the law
of the land.
WHEN DOES A CUSTOM BECOME LAW.
ANALYTICAL VIEW:- Austin and Gray are the
supporters of analytical school. They say that a custom
becomes law when it is recognized by the sovereign in
the sense of positive law only.
It means that if a custom has been accepted or
adopted or recognized by the sovereign then it will
become a law otherwise there will be no value of the
custom in judicial system of the society.
HISTORICAL SCHOOL:- Sovereign as the supporter of
Historical school says that custom is a main source or
base of law He says that “ consciousness of the
volkgiest is the main source of law.”
Custom is superior to Judge made law or
legislation. The legislation while making a law
recognizes the customs of the society. The courts also
while giving the decisions recognized the customs
prevailing in the society.
CONCLUSION
Custom occupies an important place as a source of law
even to these days because most of the material
contents of developed system of law have been drawn
from ancient customs. Custom is one of most fruitful
sources of law. According to Analytical school a custom
when recognized by State or sovereign becomes law.
According to Historical school when state or courts
make law they give importance to the customs. So both
of the view are combining to each other and are correct
for a custom as source of law.

19 Rights and duties are co-relative. Discuss. OR

Distinguish between claims liberties powers and
immunities also explain the correlative of each.
Introduction:- Right and duties are the very important
element of law. The term ‘ Right’ has various meanings
such as correct, opposite of left, opposite of wrong, fair,
just and such like other expression etc. But in legal
sense a right is a legally permissible and protected
action and interest of a man group or state.
Definition
According to Austin :- “Right is a standard of permitted
action within a certain sphere. He further define right is
a party has a right when others are bounds to obligesed
by law to do or not to do any act.”
According to Salmond : “ It is an interest recognized and
protected by the rule of justice / law.”
According to Gray:- “Right is not an interest itself but it is
the means by which the enjoyment of an interest in
secure.”
According to Prof. Allen:- “ The essence of right not a
legal guarantee in itself but a legally guaranteed power
to realized an interest.”
ELEMENTS OF RIGHTS
1. Subject:- The subject of a right is concerned with the
person legal and artificial or a group who legally is
entitled to seek the privilege and benefit of against other.
In other words the subject is that the person whom the
right is vest.
2. Content:- This is the subject matter of the right along-
with the nature and limits of that right.
3. The person of Incidence :- It means that the person
upon whom falls the corrective duty.
OBJECT:- The object of the right may be material or
immaterial determinate or indeterminate.
CHARACTERSTICS OF RIGHTS
1. RIGHT is a general o specific type of claim, interest
or such like expression of the people in a State.
2. The right is duly recognized and approved by the
State through its agencies.
3. A legal right is expressed a deep correlation with a
corresponding duty, liability or disability on the part of
those against whom such right is conferred.
4. A right may has its independent existence and type of
assemblies with other rights.
5. Basic philosophy or the fundamental concept of right
remains permanent but with the time being it is
subjected to incorporate the allied changed in it.
6. The realization and scope of a legal right depends
upon the type of society and the nature of interest.
THEORIES OF RIGHTS:- There are two main theories
of legal right:-
1. Will theory:- The will theory says that the purpose of
law is to grant the individual i.e. self expression or
positive declaration. Therefore right emerges from the
human will. The definition of right given by Austin and
Holland, “ that the will is the main elements of a right.”
Pollock says, “ that right in term of will.”
2. The Interest Theory:- Interest is the basis of right. A
great german jurists defines about the legal right as, “ A
legally protected Interest.” According to him the basis of
right is “Interest” and not “will”.
The definition of law is in term of ‘purpose’ that
law has always a purpose. In case of right the purpose
of law is to protect certain interest and not the wills or
the assertions of individuals. These interests are not
created by the State but they exist in the life of the
community itself.
TYPES OF RIGHTS
1. Primary and secondary Right: They are known by
Antecedent and remedial rights names also.
2. Perfect and imperfect Right: Means which has a
correlative positive duty.
3. Negative and Positive Right:-Positive means related
to duty whereas negative means not related to duty.
4. Right in Rem & Personam:
5. Right is repropria and Right is Re-aliena.
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.
Duty
Introduction:- The term duty may be used in various
form as an obligation, as responsibility and
accountability. There are some scolers who define Duty
as following:-
Definitions of Duty:- According to Gray, Duty is the act of
or forbearance which an organized society used to
impose on people through state in order to protect the
legal right of other. According to Rose Duty is the Pre-
dicament of person whose act are liable to be control
with the assistance of the State. As per Hoffield The
duty is the correlative of Right.
Classification of Duties:- Duty classified into two
categories. There are as follows:-
Duties
Positive And Negative Duties Primary
and Secondary Duties
1. Positive and Negative Duty:- A positive duty implies
some act on the part of person on whom it is imposed.
Negative duty implies some forbearance on the part of
the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that
which exists perse and independent of other duty. A
secondary duty is that duty whose purpose to enforce
some other duty.
Essentials of duty:- There are following essential of
duty:-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and
confirm a privilege upon other.
c. The concept of duty is affirmed and protected by the
law of the land where it exist.
d. The concept of duties is a changing process which
arises from time to time, place to place and
circumstances to circumstances.
e. Duty in most of the cases creates an absence of
right against some person.
f. Duty may be fundamental, legal or moral in
character.
Relation between Right and Duties:- The following
objects describes the correlation between right and
duties:-
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent
existence.
iii. A right procreates duty and vice-versa.
OR Your choice
Even though right and duties are opposite points but
there is a great relation between two relations. The right
and duties has a relation of Father and Child, Husband
and Wife because there is no father without child and no
wife without husband. So right and duties cannot be
separated form each other.
Right/Claim Liberty or privilege Power
Immunity
Duty No claim Liability
Disliability
(Jural opposites) (Jural
correlative)
Conclusion:- Right and duties are correlative of
elements of each other. There is no right without duty
and there is no duty without right. These are recognized
by law for maintaining the society very well.
20 Define law as an instrument of social change. What
special changes have been brought out by law?”
INTRODUCTION:- Law as a command as it introduces
subjective considerations whereas the legal theory is
objective. Notion of justice as an essential of law
because many laws though not just may still continue as
law. Science as system of knowledge or a totality of
cognitions systematically arranged according to logical
principles. The laws of natural science are capable of
being accurately described determined and discovered.
A law is valid because it derives its legal authority form
the legislative body and the legislative body its own turn
drives its authority from Constitution of India. The aim of
law as of any science is to reduce chaos and multiplicity
to unity.
According to Kelson, law is normative science but law
norms may be distinguished from science.
Definition of Law:- while emphasising Volksgeist as the
essence of law, Savigny justified the adoption of Roman
Law in the texture of German Law which was more or
less defused in it. Law has unconscious organic growth,
it found and not artificially made. Law is not universal in
nature. But like a language it varies with the people time
and need of the community. With the growing complexity
of law the popular consciousness as represented by
lawyers who are nothing but the mouth peace of the
Consciousness.
Law as an instrument of Social Change:- The following
are the elements which have been helping the law to be
an instrument who bring the social changes:-
1. A social Utilitarian:- The system develops aspects
of Austinian positivism and combines them with
principles of Utilitarianism as established and
developed.
2. Law is the result of Constant struggle:- According to
Ihering the development of law like its origin is neither
spontaneous nor peace full. It is the result of constant
struggle with a view to attain peace and order. Law is
the guarantee of the conditions of life of society.
3. Law is to serve for social purpose:- As a result of
social changes comes through law that is social
purposes comes in conflict with the duty of the State is
to protect and further social purposes to suppress those
individual purposes which clash with it. Therefore, law is
coercion organised in a set form by the State.
4. Law protects Social Interest:- Law is a such type of
instrument which protects the social interest of the
people. According to Bentam it is the persuit the
pleasure and avoidance of pain.
5. Law is to found in social facts:- AS per Ehrlich, That
the law of community is to be found in social facts and
not in formal sources of law. He says at present as well
as any other time the centre of gravity of legal
development lies not in legislation, nor in juristic science,
nor in judicial decision but it lies in society itself. It is a
social changes.
6. Living law is the fact that govern social life:- The
essential body of legal rules is always based upon the
social facts of law and the facts of law which underline
all law are usage, domination, possession and
declaration of will .
7. Law according to the requirement of Society:- It
means that law in a society should be made and
administered with the utmost regard to its necessity.
8. Law also to serve this and:- Law is the rule which
men possess not by virtue of any higher principle
whatever, good, interest or happiness but by virtue and
perforce of the facts because they live in society and
can live in society. This is because of to use the law as
an instrument which brought the Social Changes.
Conclusion:- The contribution of law in the social
changes is a great and its approach is more scientific
and comprehensive. The study of law in social context
and emphasizes its close relation with the life of society.