Syllabus
Test Series
Notification
Brochure
Result
Answer:-
Arbitrariness is the unfair and unlimited use of personal power.
Arbitrariness is an action that is done without reason or principle. It is done on
the will of the person. Arbitrariness always comes along with unjust and unfair.
Equality is a cornerstone of Indian democracy. Equality is the rule of law in a
republic. It means treating each individual equally without any biasness
towards anyone. Equality always negates arbitrariness because the essence of
equality lies in justice, equity and fairness.
In the case of EP Royappa v. State of Tamil Nadu (1974 SC) it was held that
equality is antithetic to arbitrariness. Equality can never be seen in isolate
rather it has to be seen with the other factors.
Prior to this case all the fundamental rights were seen in isolation. Article 14
provides with equality but it was limited to the rules of article 14 i.e. rule of
law, reasonable classification etc. but after this judgement the principles of
justice, liberty, equality, fairness were given a broader approach. It was held
that all the fundamental right are like overarching principle as they are running
across each other and cutting each other.
Therefore where there is equality then the arbitrariness does not have any
place. If a principle promotes equality then the arbitrariness has to be kept
aside.
Also it was held that Equality is a dynamic concept with many aspects and
dimensions and it cannot be cribbed cabined and confined within traditional
and doctrinaire limits. From a positivistic point of view, equality is antithetic to
arbitrariness.
Answer:-
As per section 2(b) of the Indian Contract Act it has been stated that when a
person to whom the proposal is made signifies his assent thereto then he is
said to have given an acceptance.
In the given definition the term “thereto” means the acceptance will be a valid
acceptance only when it has been given for the same proposal which has been
made to the acceptor. As per section 7 the acceptor is duty bound to accept
the same proposal which has been made to him without adding or deleting any
of the condition of the proposal. If the acceptor changes any condition of the
proposal then it does not amount to a valid acceptance rather it amounts to an
implied rejection of the original offer. When the acceptor accepts the offer by
changing the conditions it is known as a counter offer. And whenever a counter
offer is made the original offer is cancelled.
Applying the above law to the present facts it shall be concluded that when 10-
12-89 plaintiff made an offer to the defendant to purchase for rs. 80000 this
amounted to counter offer and not acceptance as he changed the terms of the
offer.
In the case of Hyde v. Wrench it was held that a proposal once rejected comes
to an end. Therefore when on 10-12-89 the plaintiff made a counter offer to
the defendant then the original offer stands cancelled or rejected.
Therefore the plaintiff’s claim against the defendant will not be successful as
there was no binding contract between the plaintiff and the defendant.
Answer:-
As per section 378 IPC theft is an offence when a person mover a movable
property out of the possession of the other person’s possession without such
person’s consent. This moving or taking must be done with dishonest intention
to deprive the other person of his property wrongfully.
Also explanation I to section 378 IPC states that if any property is attached to
the earth then it cannot amount to theft of such property as theft can be done
against movable property only. But it has been clarified in that explanation
that once the property is severed from earth then it becomes capable of being
the subject of theft as soon as it is severed from the earth.
Applying the above law to the present facts it can be concluded that when
Sanjoy had cut down the tree on the Vijoy’s land with the intention to take it
with him without Vijoy’s consent amounts to theft under section 378 and
punishable under section 379 IPC.
Also applying the explanation I to the present facts it can be concluded that
even though a tree is not a movable property but as soon as it is severed from
the land it becomes movable and capable of being the subject matter of theft.
Answer:-
The best evidence rule states that the direct evidence always excludes
hearsay evidence or indirect evidence. Direct evidence means such evidence of
a fact which can be directly perceived by any of his senses. On the other hand
hearsay evidence means indirect evidence which is not directly perceived.
When any person has seen an incident and then he tells it to some other
person then if such person gives evidence of such incident then it will be
hearsay evidence.
A fact which is not directly perceived is not admissible in evidence as it has
been stated in section 60 that oral evidence must always be direct and not
indirect.
The rationale behind this best evidence rule that hearsay evidence is not
reliable as it is not directly perceived. The person giving evidence of such
hearsay fact may manipulate the facts and will not feel responsible towards it
as he has not seen it directly. Also the person cannot be cross examined on the
basis of hearsay fact stated by him.
EXCEPTIONS TO THE RULE
There are certain exceptions to it. These are as follows-
1. Dying declaration
2. Opinions of experts
3. Admissions and confessions
4. Res gestae
5. Statements of persons, who cannot be found, are incapable of coming to
the court etc.
Note- but technically dying declaration is not an exception as the statement
of a person who is now dead is directly heard and recorded by the person
who is giving evidence of such statement in the court.
Answer:-
The above stated fact is a manifestation of a cause and effect relationship
between the agreement and contract.
As per section 2 (e) of the Indian Contract Act an agreement is a promise or set
of promises forming consideration for each other. Also as per section 2(h) of
the act a contract is an agreement which is enforceable by law. Therefore for a
contract an agreement is necessary first. Only after becoming a valid
agreement then it can be converted into a valid contract.
An agreement will become a valid contract when it can be legally enforced by
the parties. Legal enforceability here means that the contract in order to be a
valid contract has to fulfil the ingredients of a valid contract as per section 10
of the Act.
Section 10 of the Act states that an agreement will convert into a contract the
following essential feature must be followed-
1. Free consent- an agreement will be a contract in which the consent of
both the parties is free. Consent means meeting of minds i.e. agreeing
upon the same thing in the same sense. The consent of both the parties
must be free from any effect of coercion, undue influence,
misrepresentation, fraud or mistake.
2. Competent parties- the parties to the contract must be competent.
Competency as per section 11 and 12 means that the parties must be
major. Also the parties must not be of unsound mind and must not have
been disqualified by law.
3. Lawful consideration- the consideration of the agreement must be
lawful as per section 23 of the act i.e. it must not be against the
provision of law or must not defeat the law or must not be immoral or
against public policy.
4. Lawful object- the object of the agreement must also be lawful as per
section 23 of the act i.e. it must not be against the provision of law or
must not defeat the law or must not be immoral or against public policy.
5. Not expressly declared as void- the agreement must not be such which
has been expressly declared as a void agreement under section 26 to 30
of the Act.
Answer:-
The Preamble to the Indian Constitution is the introduction to the
Constitution. It gives the objects and the aims that the Constitution sought to
achieve. Also it tells about the intention of the constituent assembly that what
the makers of the constitution wanted to achieve.
As it was held in the case of Re Berubari (1960) it was held that the Preamble is
the key to open the minds of the makers of the Constitution.
There are various major commitments incorporated in the Indian Constitution.
These are as follows-
1. Sovereign- in the preamble the people of India resolve to create a nation
which will be a sovereign. The term sovereign means that a nation which
is an independent nation i.e. which is not dependent on the foreign
nations and is a self-reliant one.
2. Socialist- socialist here refers to social democracy and social justice. It
means achievement of socialistic goals. It also signifies the concept of
distributive justice.
3. Secular- it is also an inherent feature of the Indian Constitution. It means
that the State will not have any religion of its own. This also means that
the state shall not favour any religion rather each and every religion is
equal in the eyes of the State.
4. Democratic- this is a feature of the Indian Constitution which implies
that the representatives in our nation are appointed for the people, by
the people and of the people. The people of India elect their
governments by a system of universal adult franchise, popularly known
as one person one vote.
5. Republic- In a republican form of government, the head of state is
elected and not a hereditary monarch. Thus, this word denotes a
government where no one holds public power as a proprietary right. As
opposed to a monarchy, in which the head of state is appointed on a
hereditary basis for life or until abdication, a democratic republic is an
entity in which the head of state is elected, directly or indirectly, for a
fixed tenure.
6. Justice- the ultimate aim of the Constitution of India is to attain the
Justice. Justice here includes the social justice, economic justice and
political justice.
7. Liberty- this is also one of the resolution of the Preamble. Liberty here
means freedom of action. Liberty includes liberty of thought, belief, faith
and worship.
8. Equality- the preamble also motivates the principle of equality among
the individuals. Equality here means the equality of status and equality
of opportunities.
9. Fraternity, unity and integrity- also it is the object of the Constitution to
encourage the feeling of brotherhood among the individuals. Also the
preamble aims to promote that the dignity of the individuals is also
maintained.
Answer:-
The concept involved in the question is the law related to invitation to
proposal or invitation to offer.
Invitation to offer means when the person is not making a proposal rather he is
just sharing information about something. Invitation to offer is not a part of
the formation of a contract because contract starts from the very root i.e. the
proposal. In invitation to proposal the intention is not to obtain the assent but
to invite the other person to make a proposal. It is mere sharing of information
which can be interpreted by construction. The intention has to be seen. The
consequence of the invitation to proposal is that the person, to whom the
proposal is made, makes a proposal for the same. Whereas in proposal the
consequence is that the person to whom gives his acceptance for the same.
In the case of Pharmaceuticals Society of Great Britain v. Boot Cash Chemist
(1953) it was held that when the goods are displayed on shelves then it
amounts to a mere invitation to proposal and there cannot be a binding
contract merely on the basis of such invitation.
Applying the above law to the present facts it can be concluded that when A
sent a pricelist to of goods to B it was an invitation to offer. When B placed an
order to A of the goods mentioned in the pricelist then it amounts to a
proposal. It will not be a binding contract until A gives acceptance for the
same. Therefore B will not get any remedy until A gives his acceptance.
Answer:-
As per section 81 of Indian Penal Code 1860 if any person commits an act
without any criminal intention in good faith and in order to prevent any bigger
harm from being committed then it will not amount to an offence and the
person will be completely excused from his liability.
Section 81 is a manifestation of the principle of necessity. In this if person
causes harm by committing any act only with the intention of preventing a
bigger harm from being committed then it is a situation of necessity and he
must not be penalised.
In the case of Queen v. Dudley and Stephen (1884) and US v. Holmes (1842) it
was held that the defence of necessity can be availed in cases of public
necessity and not for private necessity or for your own necessity. Public
necessity here means the act must be done for the benefit of some other
person.
Applying the above law to the present facts it can be concluded that when A in
great fire pulled down the houses in order to prevent the fire from spreading is
an act of necessity as he is acting here in good faith i.e. for saving the life and
property of others. Also he did not have any criminal intention and he pulled
the roofs of houses in order to prevent a bigger harm from being committed.
Therefore A shall not be liable for any offence and his act will be completely
excused from criminal liability.
Answer:-
Res gestae is a latin term which literally means that part of the same
transaction. This is a concept from English law which means that the facts
which form the part of same transaction are relevant to each other. The
concept of res gestae was propounded in the case of R v. Andrews. In this case
the judgement of Ratton v. R was followed.
The general principle of res gestae is manifest in section 6, 7 and 8 of the
Indian Evidence act. In these sections the facts which even though in
themselves are not facts in issue but they are relevant because they are
motive, effect, preparation, cause etc. and are a part of same transaction and
hence part of res gestae.
The phrase “part of the same transaction” has been expressly used in section 6
of the Act. Section 6 manifestly deals with the concept of res gestae.
As per section 6 a fact shall be relevant if it is a part of same transaction. Here
the facts may not be the fact in issue in themselves but they are a part of the
same transaction. Also it does not matter that whether those facts occurred at
same time or place or different time or place still they will be relevant under
section 6 of they are a part of the same transaction.
The important factor to be determined here is when the transaction started
and when did it end. It is between the continuance of such transaction that all
the facts shall be relevant. There is hard and fast rule as to the starting and
ending of the transaction rather it is a question of fact. The facts which are
spontaneously, naturally connected to each other or are so connected that
there is not manipulation are said to be a part of same transaction.
This principle was followed by the court in the landmark judgement of Sawal
Das v. State of Bihar (1974).
Answer:-
The above mentioned statement is a manifestation of the fact that the
procedure of the formation of contract starts from the stage of proposal.
Proposal is the first step to form a contract.
Merely having an intention to obtain the assent is not sufficient rather
proposal is complete when it is communicated to the person to whom it is
made. Therefore proposal is that point from where the contract formation
starts.
When the proposal is communicated to the person to whom it is made accepts
the same then it gets converted into a promise. The manifestation of this lies in
the language of section 2(b) i.e. a proposal when accepted becomes a promise.
A mere promise is not binding rather it can be enforced only when it becomes
an agreement. To convert a promise into an agreement consideration has to
be added to a promise. When we add some value to the promise then it
becomes an agreement.
A mere agreement is not a contract. Rather as per section 2(h) of the Indian
Contract Act only such agreements are contracts which are legally enforceable.
Therefore agreements which can be legally enforced by the parties in the court
of law then such agreements finally become contracts.
Hence it is justified to state that proposal lies in the roots of the formation of
the contract.
Answer:-
Section 81 of the Indian Penal Code states about defence of public necessity.
As per the said provision it is stated that when any person without any criminal
intention and with the knowledge that it is likely to cause harm does an act
and causes harm with the purpose or avoiding other harm, he shall not be
liable for any offence. For application of section 81 the act must have been
done in good faith.
Public necessity in section 81 means the situation when a person considers it
necessary to cause a smaller harm in order to prevent a bigger harm. Therefore
the act must be done as a matter of public necessity and not private necessity.
Hence it is important that the person must be acting under good faith i.e with
due care and caution.
Applying the above law to the present facts it may be concluded that in the
present facts the act of A pulling down the houses in order to prevent the fire
from spreading is an act of necessity. Also it is evident in the facts that he was
acting in good faith as he is doing the act in order to save the life and
properties of others. Also A’s act was done in order to prevent a bigger harm
from being committed.
Therefore it can be concluded that A shall not be liable for any offence as his
act of pulling the houses down shall be excused under section 81 of the IPC.
Answer:-
(i) Section 14 Indian Evidence Act states about the state of mind, state of
body and bodily feeling. It states that intention is a mental element or
state of mind and is relevant under section 14. But explanation 1 of
section 14 states that whenever we talk about the relevancy of intention
as a fact then it has to be examined that the intention existed against
that particular person and not against any other persons in general.
Applying the above law to the present facts it can be concluded that the
fact that A has the intention to kill B is a relevant fact under section 14 of
the Act. But as per explanation 1 the fact that earlier A has shot C is not
relevant to prove A’s intention against B because intention must be
specifically towards a particular person and not a general one.
Therefore this fact is irrelevant under section 14.
(ii) Section 9 of the Indian Evidence Act deals with the facts which are
explanatory. Explanatory facts are those which explain the fact in issue
or relevant fact.
Applying the above law to the present facts it can be concluded that the
fact that mob which was being headed by A was shouting or crying is
relevant under section 9 of the Act. The fact that A was heading the mob
and the mob or the people of the mob were crying explains the fact in
issue that the A was rioting.
Therefore this fact is a relevant fact under section 9 of the Act.
Answer:-
Feeding of grant by estoppel has its essence in the principle of estoppel. It
means that when one person has made a representation and the other person
has relied upon it and has altered his position, then the person making the
statement cannot retract his statement. This is based upon the principle of
equity and justice.
Feeding of grant by estoppel means that when a person has transferred an
immovable property to any person by falsely stating that he is authorised to
transfer and the opposite person has relied upon that statement then
afterwards the transferor has to execute the transfer of property by the
interest that he acquires.
This doctrine is derived from another Latin maxim ‘nemo dat quod non
habet’ which means ‘no one can confer a better or higher right to property
than what he himself possesses’. Section 43 is an exception to this maxim.
This doctrine has its manifestation in section 43 of transfer of property act.
As
per section 43 of the act the following are the conditions to be fulfilled-
1. There has to be a fraudulent or erroneous transfer of immovable
property. It is not required that the transferor has deliberately
transferred with defective title rather it will be sufficient if mistakenly he
has transferred the property having defective title.
2. The transferee has a right to get the transfer executed against the
transferor through the title that he subsequently acquires. This is due to
the application of the doctrine of estoppel.
Answer:-
As per section 218 CrPC generally for each offence separate charge shall be
framed. Section 219 is an exception to the general rule.
In some cases even though the offences are different but they can be charged
together. As per section 219 if a person has committed different offence but
these offences are committed in the same transaction then the charges can be
joined. But for this the offences must be of same kind. Also it is a requirement
that the offences must have been committed within twelve months and the
number of offences must not exceed three.
Applying the above law to the present facts it can be stated that A has
committed attempted to cause grievous hurt to C and hurt to D i.e. he has
committed the offences of the same kind. Also he has committed these
offences in the same transaction.
Hence as per section 219, A can be charged for attempting to cause grievous
hurt and actually causing simple hurt jointly.
Answer:-
The legal point involved in the given problem lies in section 511 Indian Penal
Code. The concept involved here is criminal attempt. Attempt basically is the
second last stage of a crime. The attempt of any offence is punishable under
IPC. If there are no specific sections for attempt in the IPC then such attempt
will be covered under section 511.
As per section 511 a person shall be held liable for attempt of an offence if he
has done some act towards the commission of the offence. In such cases the
actual commission of the offence is not required rather the person must have
committed an act towards the actual commission and then due to the external
interferences the offence could not be finally completed. Also the possibility of
the happening of the offence is not mandatory. It will not be examined that
whether the offence was actually possible or not rather it was examined that
whether the accused believed his act to be sufficient for the commission of
that offence or not.
Applying the above law to the present facts it can be concluded that when a
person with the intention to kill administers poison to the other person but
that was actually not poison rather it was sugar, so the point to be considered
here is not whether the offence was possible or not rather the point to be
considered here is whether the accused believed his preparation to be
sufficient for the actual commission of the offence.
Therefore it can be concluded here that in the present case the accused had
the intention to kill B and with such intention he administered poison in his
food. He believed his act to be sufficient in order to commit the offence. Hence
he would be liable for attempt to murder.
Answer:-
Introduction
The doctrine of supervening impossibility has been given under section 56 of the Indian
Contract Act. This literally means that the contract was not impossible from the very
beginning rather subsequently it became impossible due to the uncertainties.
This doctrine is dealt with under section 56 para 2 Indian Contract Act. It has been stated
that the contract always frustrates because of impossibility. As per section 56 there may be
a situation in which the contract initially is valid but due to the subsequent impossibility or
due to some situation which the party cannot control, the contract becomes illegal to be
performed. In such situations the contract which was initially valid subsequently becomes
void due to illegality or impossibility.
The impossibility can be of various types. Following are the types of impossibilities which are
recognised under the law of contract.
1. Physical impossibility- The contract may become impossible due to physical
impossibility. It means that the contract has become impossible to be performed.
Physical impossibility may be that the subject matter of the contract was
destroyed (taylor v. Caldwell)
Also the contract can become physically impossible due to the fact that the
event for which the contract was entered into did not happen (Krell v. Henry)
It also covers the situation that the parties died or became incapable of
physically performing the contract (Robinson v. Davison).
2. Legal impossibility- Also the contract in some situations may be legally impossible.
This means that after the making of the contract the law changed and made the
contract impossible to be performed. Subsequent to the change in law the contract
becomes illegal and hence impossible.
3. Practical impossibility- Also the impossibility may be a practical impossibility which
means that even though the contract is physically possible but the actual
performance is not rational or feasible (Satyabrata Ghose v. Mugneeram Bangur).
Answer:- The procedure of sessions trial has been given under section 225- 237 CrPC. In these
provisions the process of sessions trial has been discussed in detail.
Following are the provisions related to the process of sessions trial-
1. The case in a sessions trial is always opened by the prosecutions. The prosecution
opens the case by briefing the court about the details and facts of the case. The
prosecutor shall open his case by describing the charge brought against the accused
and stating by what evidence he proposes to prove the guilt of the accused.
2. If based upon the record of the case and the documents submitted, and after
hearing the submissions of the accused and the prosecution if the Judge considers
that there is not sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.
3. If the accused is not discharged and the Judge is of opinion that there is ground for
presuming that the accused has committed an offence which is exclusively triable by
the Court of Session then he shall frame a charge. If the case is not exclusively triable
by the the court of session then the judge may frame a charge against the accused
and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other
Judicial Magistrate of the first class and direct the accused to appear before the
Chief Judicial Magistrate, or the Judicial Magistrate of the first class.
4. After hearing the charges if the accused pleads guilty then the judge shall record his
plea and convict him on plea of guilt.
5. Then the court shall send the summons to the prosecution witnesses and for
prosecution evidences. Then the prosecution shall produce its witnesses and
evidences.
Also the court will examine the accused personally under section 313.
On the basis of the prosecution evidence and the examination of the accused if the
judge is of the opinion that the accused has not committed any offence then he shall
record an order of acquittal.
6. When the accused is not acquitted then the court will call him to defend him and to
produce the evidences in this behalf. The court will issue the summons to the
witnesses and the defence will produce the evidences in this regard.
7. Finally the prosecution and the defence shall have the final arguments. The
prosecutor shall sum up the case and the accused or his pleader shall be entitled to
reply.
8. The last step of the procedure of the Court of Session trial is the judgement. After
hearing arguments and points of law, the Judge shall give a judgment in the case.
A. Section 383 of the Indian Penal Code defines the offence of extortion. Extortion means
that when any person puts another person under the fear of injury and induces the person
so put in fear to deliver the property. The inducement if given to deliver something which is
a valuable security or something which can be converted into a valuable security then that
would also amount to extortion.
The term injury here is defined under section 44 as an injury which is caused to the body,
mind, reputation or property of an individual.
Also the term valuable security as defined under section 30 IPC as any document in which
any legal right is created, extended, transferred, restricted, extinguished or released, or
whereby any person acknowledges that he lies under legal liability, or has not a certain legal
right.
Applying the above law to the present facts it can be concluded that in the present facts in
hand A had put Z in fear of grievous hurt. Here grievous hurt amounts to fear of injury as per
the definition under section 44 as it is a fear to cause harm to the body illegally.
Also the fear must be caused in order to induce the person to deliver the movable property
or any other valuable security. In the present case in hand the fear of grievous hurt has been
caused in order to induce Z to sign on a blank paper. Here blank paper even though prima
facie is not a property or any valuable security but it can definitely be converted into a
valuable security and hence is covered under the conditions of the offence of extortion.
And under that fear Z signed on the blank paper.
Therefore it can be concluded that in the present case A has committed the offence of
extortion under section 383 and it is punishable under section 384 IPC.
The term foreign judgement has been defined under section 2(6) as the judgement of the
foreign court. Foreign court has been defined under section 2(5) as the court which is situated outside India and not established within the territory of India. A judgement given by any foreign court shall be conclusive between the parties to the suit.
The conclusiveness of the judgement shall be for the matter which has been adjudicated by that foreign court in such judgement. That shall be conclusive between the parties to the suit or between the persons who are litigating under the parties to the suit. There are certain exceptions to the main rule stated above. These are the situations in
which the judgements of the foreign court are not conclusive proof-
1. When the court passing the judgement does not have the jurisdiction i.e territorial or pecuniary.
2. When the judgement has not been given on the merits. Merits here mean that the parties did not get an opportunity to present the case or there was a material defect or irregularity in the case.
3. When the judgement has been given upon the incorrect view of international law. Also where in the judgement there is a refusal to recognise the Indian law that is in force.
4. The proceedings of that particular judgement are opposed to the principles of
natural justice. Here principles of natural justice means that each party must get an opportunity to represent his case and there must be a reasoned judgement.
5. When the foreign judgement has been obtained on the basis of fraud.
6. When the judgement results into the breach of any law in India.
As per section 43 of the CPC the judgement of the foreign court which is established by any authority outside India shall be executed in the same manner which is provided for the territory to which this law applies. If such foreign court is located in any reciprocating territory then as per section 44A it can be executed in the same manner as if it has been passed by the District Court.
Charges mean the accusations upon the accused persons as to the offences that he has committed. The charges are framed by the Magistrate. After the framing of charges the trial starts and the inquiry stage is over. Section 211 to 224 CrPC provides for the rules related to the framing of charges. The policy behind framing of charges lies in the rules of principles of natural justice. This means that as per the rule of audi alterum partem i.e. nobody shall be condemned unheard charges are framed in order to make the accused person aware of the accusations that are put upon him so that he can defend himself in a proper manner.
As per section 211 of CrPC it has been stated that every charge must specifically state the offence which the accused has committed as per the evidences gathered against him. Also if the law under which such offence has been given defines such an offence by a different name then the charge must specify such name and define it accordingly. The charge must contain the law and the section under which such offence has been punished in the Indian Penal code. The charge shall be written in the language of the court. The language which has been used in the charge must be the formal language which has been used in the section and must be according to the format. If the accused has been previously convicted of some other offence then the date, place etc of the commission of such offence must be mentioned in the charge. Also if the accused shall be subject to enhanced punishment or some different kind of punishment then this fact must be specifically mentioned in the charge.
Also as per section 212 the charge must also contain the particulars as to the time and place and the person against whom the offence has been committed. Also as per section 213 if it is required that the manner of the commission of the offence has to be given then such manner must also be stated in the charge.
common intention is given under section 34 of the Indian Penal code. This is the principle
of joint liability under criminal law. Common intention means having shared the same intention. Common intention is when two or more persons have the consensus as idem regarding the act that they want to commit.
As per section 34 IPC when two or more persons commit a criminal act in furtherance of common intention then each of such person shall be held liable for the commission of the offence in the same manner as if it done by him alone.
Therefore following are the ingredients of section 34-
1. There must be prior meeting of minds between the accused persons. The meeting of mind can be specific or prior and it can even be made on the spot. It need not be distinct and specific.
2. The persons have committed the criminal act in furtherance of common intention. In furtherance here means that the act must be committed in the extension of the common intention that they have shared.
3. The accused persons must be actively participating. Active participation here does not mean mere physical presence rather it means the act done by the accused.
Difference between common intention and common object
| COMMON INTENTION | COMMON OBJECT |
|---|---|
| It has been given under section 34 IPC. | It has been given under section 149 IPC. |
| In this the criminal intention must be done in furtherance of common intention. | The act towards the common object must be done in prosecution of common object. |
| The accused must be actively participating. | The members of the unlawful assembly must be physically present on the spot. |
The jurisdiction in a criminal trial is very important. The reason is that for a correct
procedure it is very important that the criminal case is filed in the correct court. There are provisions related to jurisdiction in the criminal procedure code. Therefore in a criminal case the jurisdiction is decided as per the rules given from section 177 to section 189 crpc.
As per section 177 it has been declared that each offence must be tried within the jurisdiction of that court where the offence has been committed.
But there are certain exceptions to the general rule which has been given under section 177-
1. As per section 178 if the offence has been committed partially in one area and partially in other area then the jurisdiction of both the courts is established. Where the offence is a continuing one and it continues in more than one area or it is committed in several acts then each of the court shall have the jurisdiction.
2. When the offence which is committed is the consequence of an act or is in relation to the other act then the courts of all the respective areas shall have the jurisdiction.
3. When the offence which is committed is kidnapping then the court within the
territory of which the person is taken or conveyed will have the jurisdiction. The same rule applies in the commission of the offence of theft, receiving stolen property, dealing with stolen property etc.
4. If the offence has been committed in letters then the courts within the territory of which the letters were sent or received shall have the jurisdiction.
As per section 181 it is stated that when any person has been kidnapped then the courts of the places in which the kidnapping has been committed or the person has been conveyed or abducted shall have the jurisdiction. All the respective courts shall have the parallel jurisdiction to try the case.
Applying the above law to the present facts it can be concluded that the courts of both Delhi as well as Shimla shall have the jurisdiction to try the case of kidnapping. The reason is that as per section 181 A was kidnapped in Delhi but conveyed in Shimla and hence the both the courts shall have the jurisdiction.
The offence of criminal conspiracy is an inchoate offence. The policy behind inchoate offences is to prevent the offence from being committed. Therefore even before the main offence is committed the act is punishable under IPC.
In criminal conspiracy also the actual commission of the illegal act is not mandatory rather it is the mere agreement to commit an illegal act which shall be punishable.
Criminal conspiracy has been defined under section 120A of the IPC. As per this provision the criminal conspiracy is an agreement in which two or more persons agree to commit an illegal act or a legal act but by illegal means. For the offence under section 120A mere
agreement is the actus reus.
Essential ingredients of criminal conspiracy
1. Two or more persons agree- one of the most essential ingredients of the offence of criminal conspiracy is that there has to be an agreement i.e. there has to be consensus ad idem between two persons. The offence of criminal conspiracy cannot be committed otherwise than as an agreement. The persons must agree to commit the illegal act.
2. Illegal act or an act in illegal manner- the agreement between the two or more persons must be to commit an illegal act. Also it may be an agreement to commit an act in an illegal manner.
Illegal as defined under section 43 means that anything which is an offence or which is prohibited by law or which gives ground for civil action. Therefore there are three types of criminal conspiracies under the IPC. These are criminal conspiracy to commit an offence, to commit an act which is prohibited by law and to commit an act which is a civil wrong.
Mere agreement to commit an offence is sufficient and no further act is required to punish a person for criminal conspiracy. Whereas in criminal conspiracy to commit an act which is prohibited by law or which gives ground for civil action mere agreement is not the actus reus rather an act in furtherance is needed to be committed.
The rule against perpetuity has been given under section 14 of the transfer of property act. The rule against perpetuity means that the property cannot be held for indefinite period of time. The basic policy behind such rule is that it is against the policy of free movement of property. This is because the alienation of property for an indefinite period of time is against the principle of justice as such alienation destroys or damages the property and also it leads to the violation of the people’s right to transfer property. In the case of Stanley v. Leigh it was held that the alienation of property for an indefinite period of time is against the policy of law and it destroys the property. Here rule against property as per the provision of section 14 of the transfer of property act means that the following conditions must be followed-
For the rule against perpetuity to apply it has been stated that-
1. For the lifetime of a person- the property can be transferred for the lifetime of a person. During such lifetime the person is expected to preserve the property with sue diligence.
2. For the minority of a person- the property can also be transferred for the minority of a person i.e. for a period of eighteen years. This is the maximum time for which a property can be held or alienated i.e. for the life of a particular person and
thereafter till the minority of another person.
3. The person must be in existence on the death of the former one- the person for whose minority the property is being transferred must be in existence at the time of the death of the person for whose lifetime the property was alienated. If the person is not in existence at the time of death of the former then the property shall pass to the legal heirs of such deceased person.
The main question to be determined in the present case is whether a party to an agreement enforce such agreement if such agreement is in the nature of wager’s agreement. Also it has to be determined whether the agreement in which the object was unlawful can be duly enforced or not.
The law on this lies in section 23 and 30 of the Indian Contract Act respectively. As per section 23 of the act the agreements in which the object is unlawful then such an agreement is void. In the present problem tony has borrowed the sum of 5000 form john for the object of betting in cricket which is not lawful or not authorised by law. Therefore this agreement shall be void and John cannot enforce it and claim 5000.
Also as per section 30 the wager’s agreement is void. Wager’s agreement here means that an agreement for an act which is an uncertain act and both the parties to the agreement have mutual chances of winning and losing in it. In the present problem the transaction between tony and Mahesh is in the nature of wager’s agreement. In the agreement of betting it is dependent upon an uncertain event and there are mutual chances of winning and losing. Therefore Mahesh cannot enforce the agreement against tony and claim 5000.
Maintenance under section 125 CrPC is given by the person to his wife, parents, minor son, and daughter etc. Section 125 states various conditions to be fulfilled to make any person liable for the payment of maintenance.
As per section 125 the husband can be ordered to pay the maintenance to his wife when the wife is incapable to maintain herself. The wife referred to under section 125 means a wife who has been divorced by the husband or the wife who has obtained the divorce from her husband.
If the man offers to maintain the wife but the wife refuses to live with him then the Court shall consider the grounds of such refusal. The ground that the husband keeps a mistress or has married some other woman shall be considered to be a valid ground for the woman to refuse to live with the man.
1. She is living with some other person in adultery.
2. Without any sufficient reason she refuses to live with the husband.
3. They are living separately by mutual consent.
If a maintenance order has been passed and the person fails to comply with such order and does not pay the maintenance then the Magistrate of first class may issue a warrant for the payment of the amount and may also sentence such person to an imprisonment for not exceeding one month.
The First Information Report is a report about the information related to the commission of a cognizable offence. this information is given by the informant to the police officer. FIR is only related to the cognizable offences. As per section 154 CrPC when an informant gives the information about the commission of cognizable offences to the police officer then the police officer has to reduce it into writing and get it signed by the informant. Then the copies of the first information report is to be given to the informant free of cost.
As per section 154 if the police officer refuses to lodge the FIR the then the informant has the remedy to give the information to the Superintendent of Police and he in return may either conduct the investigation himself or may direct the police officer incharge to conduct the investigation.
In the case of Lalita Kumari v. State of Uttar Pradesh (2013 SC) it was held that the information as to the cognizable offence I.e. FIR is the first step towards putting the criminal law into motion. Also it was held that it is mandatory for the police officer to lodge the FIR as it is the foundation stone for the delivery of justice.
The FIR recorded by the police officer is not a substantive piece of evidence as it is not a statement given on oath. But it may be used for many other purposes like for corroboration or for contradiction.
FIR may be used for the following purposes-When there is a delay in lodging FIR then it will not be a material irregularity rather the court shall be suspicious about conduct of the informant.
But in incest cases or in rape cases there will be no such suspicion as in this the social stigma is involved and the delay in lodging FIR is explained. This was held in the case of State of Punjab v. Gurmeet Singh.
the presumption related to legitimate paternity has been given under section 112 of the evidence act. Section 112 is in the nature of the presumption and that too the presumption of law. It is a principle of conclusive proof i.e. an irrebuttable presumption of law.
As per section 112 the child shall be presumed to be the legitimate child of the man when the conditions of the section are fulfilled.
Following are the conditions to be fulfilled for establishing the conclusive proof of legitimate paternity-
the child whose paternity is in question must be born during the continuity of a valid marriage. The essential requirement for this is that the marriage must be a lawful valid marriage as per the conditions of section 5 of the Hindu marriage act.
2. Child born after dissolution of marriage-a child born after the dissolution of marriage but within 280 days of such dissolution the he or she shall be presumed to be the legitimate child of the man. The essential condition for this that the woman did not remarry with another man before the birth of that child.
3. Non access-the only defence that can be taken by the man in this presumption is that he has to prove the non-access towards the woman. Non access here means that the man has to prove that he did not have the opportunity to have a sexual relationship with the woman.
Being a presumption of conclusive proof technically this presumption cannot be rebutted as it has been given under section 4 that the party does not have a right to disprove the conclusive proof. But as section 112 is a provision related to the interest of justice the larger societal interest lies in the fact that the conclusive proof must be allowed to be rebutted. But that must not be a general rebuttal rather such proof can be rebutted only by the most perfect and accurate piece of evidence.
In the case of NandlalWasudevBadwaik v. LataNandlalBadwaik ( 2014 SC) it was held that the DNA test is considered to be the best evidence in cases dealing with legitimate paternity as this is a scientifically perfect test. Therefore in the interest of justice the conclusive proof in the section 112 shall stand rebutted but only by the DNA test report.In the case of Dulhabhai v. State of Madhya Pradesh it was held that when the specific tribunal is not exercising the jurisdiction then the civil court shall have the jurisdiction to try the case. Also if the specific tribunal is not following the principles of natural justice then also the civil court shall have the jurisdiction.