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Q1. Explain provisions of parties to suit, framing & Institution of suit.

Ans. CPC is relating to civil procedure which includes Drafting, filing & execution of civil
matters, these procedure have to be followed by parties as well as court, there are 158
sections & 41 orders in CPC, sections are general & orders are specific.

Parties to suit (order I):- There should be minimum 2parties in any suit (or) petition
& they are called as plaintiff & defendant (or) petitioner & respondent parties to suit
includes following points.

1. There can be more no of plaintiff (or) more no of defendants having relevancy & it is
called as jointer of parties.
2. When any wrong party have been added then court may order to delete such party
having no relevancy it is called as misjoinder of party.
3. When relevant party have been not added then on request of plaintiff court may order to
add one (or) more parties it is called as Non joinder of parties.
4. When case I pending in the court then any relevant party can file petition to include him
in the case as plaintiff (or) defendant it is called as Impleading the party, court may grant
permission if such party have relevancy.
5. When case is filed against legal person then designation of the officer to be written who
has to represent the case.
6. If there is death of any party then his legal representation is allowed to become party &
pursue the case because civil matter will not die after death of the person.

Framing of suit (Order 2):- Suit to be framed systematically which includes following
points.

1. There is the name of court at the top of the suit.

2. There is suit no & the year.
3. There is details about plaintiff & defendant such as name, father name, age, occupation,
address, if there are more no of plaintiff & defendants then similar details to be written of
all the parties.
4. Suit to be drafted in paragraphs &every paragraph to be given separate serial no.
5. All the material facts to be mentioned in the suit & facts to be arranges in sequence &
repetition of facts to be avoided.
6. There are some common points which are mentioned in the suit & there are about
jurisdiction cause of action court fee paid by party & suit is within limitation period.
7. There should be relief (or) reliefs to be claimed by the plaintiff it is also called as prayer
clause.
8. There should be signature of plaintiff & his advocate if there are more no of plaintiff then
all of them sign it.
9. An affidavit have to be enclosed & it should be signed by plaintiff.

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Institution of suit (Order 3 & 4):-

1. Suit to be instituted in administrative section of respective court concern officer makes
entries in civil suit register & gives a no to the suit.
2. If matter is urgent then it can be taken in chamber of the judge & after hearing judge can
pass interim order & send the suit in administrative section.
3. If court is having holiday (or) timing of the court is over then most urgent matte can be
taken at residence of the judge during reasonable hours. Judge can make hearing &
pass order called as house motion & send the file for numbering in administrative
section.

These is details about parties to suit, framing & institution of suit in CPC.

Q1. Decree.

Ans. The term Decree has been define under section 2(2).Decree means judgment (or) order
of the court for enforcement of legal right. Person In whose favor decree is passed is
called as Decree Holder & opposite party is called as judgment debtor.

Ex:- Decree of divorce, decree to attach property, decree of restitution of conjugal right.

It is stated that every decree is an order but every order is not decree.

Ex:- Order to appear in court, order to file document, order to pay penalty.

Q4. Set Off. (Order 8).

Ans. set off means adjustment between claims & counter claim, when plaintiff have filed
recovery suit & again there is counter claim of defendant then court may adjust the
amount called as set off. It includes following points.

1. There should be jurisdiction for claim & counter claim.

2. Counter claim should be of less amount than claim amount.
3. Counter claim should be lawful & not of wide agreement.
4. Defendant should claim remedy of set off by mentioning in written statement.
Ex:- A file a suit for recovery of 1lakh rupees against B there is claim of B for 20,000/-
rupees against A court may do set off & pass decree for 80,000/- rupees.

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Q2. Explain the terms <Resjudicata= & <Ressubjudice= & distinguish between it.

Ans. Details of resjudicate & res subjudice is under section 11 & 12 of CPC. According to
resjudicata same parties & same cause of action then cases should not be filed in more
then one court.

Object (or) Purpose of Resjudicata:-

1. There will be waste of time of the court if same case is filled in more no. of courts.
2. There will be harassment of opposite party because he has to attend more no. of courts
for same matter.
3. There will be waste of time & money of both the parties.
4. If court gives descanting judgment then it is difficult to implementing.
Ex:- Employer have terminated employee from service, employee can file case in civil
court, tribunal & also high court, according to resjudicata he has to file case in only one
court & not three courts even though there is jurisdiction.
When resjudicata does not apply:- (Exception)
1. Different parties:- When cause of action is same but parties are different then
resjudicata does not apply.
2. Different cause of action:- When parties are same but cause of action is different then
there is no effect of resjudicata.
Ex:- Wife can file divorce case against him.
3. Withdraw of cases:- Cases have been filed in more courts but it has been withdraw &
cases is pending in one court then resjudicata does not apply.
4. Rejection of plaint:- Court can reject plaint (or) suit on the grounds that there is no
jurisdiction (or) court fee paid is no sufficient after rectification of defeat again it can be
filled it cannot be called as second filing because earlier matter was not decided by the
court.
5. Compromise:- When there is compromise between parties but other party have not
complied compromise deed then plaintiff can file the case.
6. Appeal:- When judgment is given by one court then party can file appeal in superior
court having jurisdiction there is no effect of resjudicata because case is pending only in
appellate court.

Res subjudice:- When case is pending in sub ordinate court then superior court should
not decide it. It is having purpose to maintain dignity of sub ordinate court, if sub ordinate
court is causing unreasonable delay then superior court can give direction to dispose it
within specified period giving direction cannot be called as judgment of superior court.

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Distinguish between resjudicata & resubjudice:-

Resjudicata Resubjudice
Resjudicata comes into force at the time of Res Subjudice is applicable when case is
filing more cases in same matter. pending in the court.
Objection can between by opposite party. Objection can between by judge of sub
ordinate court.
Purpose of resjudicata is to present waste Purpose of res subjudice to maintain
of time of parties & the court. respect & dignity of sub ordinate court.
There are many defense applicable to There is no defense accept to give
resjudicata. direction to sub ordinate court.

These is details about Resjudicata, Res Subjudice its provisions & distinguish in
CPC.

Q15. Caveat. (Section 148A).

Ans. Caveat means formal petition filed in the court when anybody is executing petition (or)
appeal, person who files caveat is called as Caveator, when caveat is filed then court
cannot pass Ex-parte order, notice of caveat is given to relevant party, validity period of
caveat is 3months but it can be file any no of times, when caveat is file court may pass
order by hearing both sides, therefore caveat prevents the court from passing Ex-parte
order.

Ex:- Employer have terminated service of employee, employee can go to court &
claim Ex-parte injunction because matter is urgent, employer can file caveat in the court
after filing caveat court may pass any order after hearing both sides.

Q14. Acknowledgment. (section 18 of limitation act).

Ans. Acknowledgment means renewal of limitation period, parties can executes fresh
documents by mentioning new date there is no need of fresh transaction & document is
based on earlier transaction it is done by mutual consent of parties, computation of
period is calculated from the date mentioned on the document, it is convenient because
fresh period is available for filing the case.

Ex:- A have give 1lakh rupees loan to B limitation period is 3years to file
recovery suit, if fresh document is executed then again 3years period is available & it is
called as acknowledgment.

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Q3. What do you mean by Pleading? Explain contents of plaint & written statement &
grounds of rejection of plaint.

Ans. Pleading means plaint & written statement in every civil case both parties have to do
pleading details of pleading is under order 6 details of plaint is under order 7 & written
statement under order 8 pleading have to be done systematically.

Contents of Plaint:- Plaint have to be drafted properly & the person who files plaint is
called as plaintiff, it includes following points.

1. There is name of the court where plaint is being filed.

2. There is suit no & the year these no is given by court officer by making entries
in the civil suit register.
3. There is details of plaintiff as well as defendant which includes names, father
name, age, occupation & address, if there are more parties then similar details
to be written for all the parties.
4. Plaint to be drafted in paragraph & every paragraph to be given separate serial
no.
5. All materials facts to be mentioned in the plaint which are related to the case.
6. Facts to be arranged in the sequence & repetitions to be avoided.
7. Plaintiff have to claim one (or) more reliefs & after that plaintiff & his advocate
have to sign it.
8. An affidavit to be enclosed with the points in which plaintiff have affirm on oath
that all facts are true & correct in the plaint.
9. List of relevant documents to be enclosed.
10. List of witnesses with address to be enclosed.
11. More copies to be enclosed so that every defendant & judge may get the
copies of plaint.

Rejection of Plaint:- Court can reject plaint on following grounds.

1. When court has no jurisdiction.

2. When plaint is being filed after expiry of limitation period.
3. When the court fee paid is insufficient.
4. When relief has been not claimed.
5. When there us no signature of plaintiff.
6. When affidavit has not been enclosed
When plaint is rejected then after rectification of defeat again it can be
file.

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Written statement:- (Counter) (Order 8) When copy of plaint is issued to defendant

then he has to file written statement (or) counter within 1month period, if delay is caused
then reason to be given for delay period, if there are more no of defendants then they
can file come written statement (or) separate written statement. It contains following
points.

1. There is same name of the court same suit no & the year & details of both the parties
because written statement is file in same court.
2. Written statement to be written in paragraph & every paragraph to be given separate
serial no.
3. All the points specified in plaint have to be covered in return statement, every facts to
be admitted (or) denied by defendant, there is no need to proof admitted facts, if
defendants denies any facts then burden of proof is on plaintiff, after admission
subsequent denial is not allowed according to rule of estopeal specified under
section 115 of evidence act.
4. If defendant has no desire to admit (or) denial the fact then he can mention that
particular facts is undisputed (or) it will be argued at the time of proceeding.
5. In written statement defendant can mention additional facts against plaintiff which are
relevant in particular case, such facts to be mentioned which he can prove when it is
necessary.
6. If defendant have any objection relating to plaint then he can mention in written
statement such as court have no jurisdiction suit is file after limitation period, court
fee paid is insufficient.
7. Defendant can also claim relief which is generally suit is not tenable against him (or)
suit to be dismissed with courts.
8. There is signature of defendant & his advocate if more no of defendant are filing
common written statement then all of them have to sign it.
9. Defendant have to enclosed affidavit stating that all facts & contains are true &
correct to best of his knowledge & information given by his counsel.
10. List of relevant documents in support of written statement to be enclosed.
11. List of witnesses with there address to be enclosed.

These is details about pleading which included plaint & written statement & its
contains & provisions.

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Q4. What is an Injunction? Explain kinds of injunctions & various grounds on which court
may grant remedy of injunction.

Ans. Under order 39 of CPC there is remedy of injunction available from civil court having
jurisdiction. Injunction is preventive remedy to bring restriction on the party who is doing
illegal act (or) likely to do illegal act. These remedy is granted when any m,atter is urgent
& facts are strong.

Kinds of Injunctions:- There are four kinds of injunctions & they are as follows.

1. Temporary Injunction:- These injunction is granted after being hearing of both the
parties, when matter is urgent then court grant temporary injunction, it is also called as
INTERCEPTORY ORDER (or) STATUSQUO, it is generally granted in service matter
after lengthy hearing it may be confirmed (or) vacated depends on facts of the case.
Ex:- Employer have terminated service of employee, if employee goes to court
then temporary injunction may be granted to prevent effect of termination order.
2. Permanent (or) Perpetual Injunction:- When facts of the case are strong then
permanent injunction is granted, when temporary injunction is confirmed then it is called
as permanent injunction these injunction not vacated till disposal of the case.
Ex:- <A= declared himself as insolvent when creditor goes to court then
permanent injunction is granted to prevent him from selling his property.
3. Mandatory Injunction:- In these injunction there are two parts in which one part is to
do same positive act & other part is to restrain from doing an act both parts are binding
on the party.

Ex:- <A= & <B= are neighbors having plots adjacent to each other, A made
encroachment on plot of B & constructed 10feet wall B can take remedy of
mandatory injunction in which court may order to demolish the wall already
constructed & not to make further construction without order of the court.

4. Ex-Parte Injunction:- When any matter is most urgent then injunction is granted by
hearing only plaintiff called as Ex-Parte injunction.

Ex:- Tenant have not paid rent to landlord & he disconnected electricity & water
supply when tenant goes to court then Ex-parte injunction is granted to prevent
landlord from disconnecting electricity (or) water supply which is urgent matter.

Conditions to grant remedy of injunction:-

1. It should be primafacie case.

2. The matter should be urgent.
3. Court should have jurisdiction.
4. There should not be separation of material facts.
5. Plaintiff has to file affidavit.
6. Court should form opinion that there may be irrepariable loss if these remedy is not
granted.
These is details about injunction its kinds & various conditions to grant these remedy.

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Q5. Briefly explain provisions of appeal, reference, review & revision specified in CPC.

Ans. There is provision of fair justice therefore all these provisions has been included in CPC
from section 96 to 115.

Provision of Appeal:- (Section 96 to 112)

1. When court give judgment then aggrieved party can file appeal in superior court having
jurisdiction.
2. Party who file appeal is called as appellant & opposite party is called as respondent.
3. Appeal has to be file within 3months (or) 90days from date of judgment (or) receiving
copy of judgment.
4. Original copy of judgment to be enclose with appeal petition.
5. In appeal petition appellant have to mention all errors committed by sub ordinate court
wrong interpretation of provision & points which are neglected to consider it.
6. Appeal is decided on basis of argument of both sides & again witnesses are not
examined.
7. Appellate court calls the file of the case from sub ordinate court.
8. In appeal petition also appellant have to claim the reliefs.
9. In high court every appeal is not admitted & there is argument at the time of admission. If
there is questions of law (or) facts to be considered then appeal is admitted otherwise
rejected.
10. In high court (or) Supreme Court appeal is allowed there from smaller bench to larger
bench.
11. Appellate court has power to confirm alter, set aside, judgment of sub ordinate court by
recording reasons.

Reference:- (Section 113) Reference is done at judicial level, purpose of reference is

to avoid error on law points it includes following points.
1. All sub ordinate courts can do reference to high court.
2. It is done on law point & not facts.
3. Law points are send in sealed covered to chief justice of high court.
4. High court can make reference to Supreme Court.
5. Opinion is given & sends in sealed cover within 1month period.
6. If opinion is suitable in pending case then judge may apply it & delivered the judgment, if
it is not suitable then he deliver judgment in his own way.

Review:- Section 114) Review means to reconsider when judge have committed error
in judgment the review petition is file before same judge. Error (or) mistake to be
specified in review petition copy of judgment to be enclosed with the petition it should be
filed within 1month (or) 30 days limitation period from the date of judgment. Judge make
hearings of both sides, if there is error then it is rectify & revised copy of judgment is
issued to party, generally mathematical error is rectified in review petition there is no
need to file appeal & party can save his money & time,

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Revision:- (Section 115) Revision is done against order of sub ordinate court to
superior court having jurisdiction, revision petition to be filed within 1month (or) 30days
from receiving copy of passing order (or) receiving copy of order copy of order to be
enclosed with revision petition, judge makes hearing of both sides, revision court have
power to confirm, alter, set aside order of sub ordinate court. Order of superior court to
be obliged by sub ordinate court.

Ex:- Sub ordinate court pass order that it has no jurisdiction, if superior court says there
is jurisdiction then court have to entertain the case.

Ex:- Condemnation petition have been file but sub ordinate court rejected it in revision
of order superior court can condone the delay & court have to admit the case.

These is details about Appeal, Reference, Revision & Review.

Q12. Cause of action. (section 2).

Ans. Cause of action means base to file a case any civil case can be file on basis of cause of
action. If there is no cause of action then court can dismiss the case, cause of action is
point of dispute between the parties.

Ex:- A is driving car, if he causes accident then there is cause of action &
compensation can be claimed by victim of accident under vicarious liability.

EX:- Husband have removed wife out of the house she can claim maintenance
because there is cause of action.

Ex:- A have barrowed load from B if A makes default to repay loan amount then
B can file recovery suit because there is cause of action.

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Q6. What are objects of limitation Act 1963 & various grounds on which court can make
condonation of delay period.

Ans. Limitation Act 1963 is having following objects

1. Party should file case within limitation period because there should be an end to
litigation.
2. Law always helps vigilant & not dormant & therefore remedy to be taken within limitation
period.
3. There should not be hanging sword of litigation which may disturb peace of society.
4. Time once start running will not stop & party have to take remedy without delay.
5. Limitation act has not given sword in hands of one party & sealed in hand of other party
but whip is in hand of court.

Grounds of condonation of delay period:- (section 11)

1. Unsound mind person:- If any person is unsound mind then after treatment he can file
the case if he becomes normal court may condone delay caused in treatment.
2. Minority:- When there are minor children & next friend has not been appointed then
after age of majority court may allow him to file the case & delay is condoned.
3. Sickness:- When anybody sick’s as in patient then period of hospital will be condoned
by the court.
4. No knowledge of facts:- When there is sudden death of head of family & there is no
knowledge about his transactions then case can be filed when it comes to knowledge &
delay may be condoned.
5. Rejection of plaint:- When court reject a plaint on grounds of having no jurisdiction
then it can be filed in court having jurisdiction & court condoned such delay.
6. Mistake of advocate:- When party have given case within limitation period but
advocate cause delay then court may condone it, in such case court may give warning &
also imposed penalty to be paid by advocate.
7. Poverty:- These is weak ground of condonation of delay when party have no money for
travelling (or) to engage advocate then court may consider to condone delay.
8. Illiteracy:- There is weak ground because ignorance of law is no excuse court may
consider to condone delay if party is illiterate & having no knowledge of legal right.
9. Holidays (or) Vacations:- When holidays (or) vacations start from last day of filing then
it can be file when court reopens & these delay is considered.

This is details about objects of limitation Act & grounds of condonation of delay.

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Q7. Explain the procedure of execution of decree of the court.

Ans. When decree is pass by court then decree holder have to file execution petition against
judgment debtor within 3years period. Decree is valid for 3years & it can be renewed
3times in same court & trail validity of decree is 12years & after that it is not effective.
Matrimonial decree such as decree of restitution of conjugal right is not executed when
execution petition is file then copy of decree have to be enclosed & movable &
immovable property which can be attached have to be mentioned it includes following
points.

1. Court makes hearings of both the sides by issues of summons to appear personally (or)
through advocate.
2. When judgment debtor convinces the court that he shall pay decree amount in some
installments & court is satisfy then such order is passed.
3. When judgment debts makes payment of decree amount in the court (or) decree holder
then there is no execution of decree.
4. Court may appoint an officer for execution of decree called as Bailiff.
5. Decree will not be executed between sunset & sunrise.
6. Bank account can also be attached called as freezing of account, bank have to comply
orders of the court.
7. When property of judgment debtor is situated out of jurisdiction of the court then one
court may send copy of decree in sealed cover to other court called as PRECEPT that
court appoints the bailiff & sale the property of auction & send amount to court.
8. Bailiff can enter in property of judgment debtor & remove all the articles which are
attachable list of articles is prepared & one copy is given to judgment debtor with
signature of bailiff & two witnesses.
9. If anybody makes resistance at the time of execution then he can be arrested & there is
provision of imprisonment upto 6months.
10. If articles of some others person in the house are carried then petition can be file in the
court to release these article from attachment court may order to release it after taking
proof.
11. Attached articles are soled by public auction within 3months period decree holder can
pay the decree amount & release articles before auction sale.
12. In case of immovable property order is given to judgment debtor (or) property within
specified period.
13. Bailiff give notification in local newspapers about auction sale of attached immovable
property, terms & conditions are also mentioned for the bidder.
14. If expected bid may not come then auction may be postponed & it is fixed on some other
date.
15. If judgment debtor arranges payment of decree amount before finalization of sale then
auction may be stop.
16. After auction sale if there is recovery of less amount then decree holder should be
satisfy in it decree cannot be executed again & again according to rejudicata if there is
recovery of excess amount then after adjustment of decree amount balance have to be
paid judgment debtor.

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What properties cannot be attach:- Following are the properties which are exempted
from attachments.
1. Provident fund, pension, gratuity are exempted.
2. Utinsteel in the house are exempted.
3. Bedding which are in use.
4. Wearing cloths of family members.
5. Istridhana of woman cannot be attached unless decree is against her.
6. Salary upto 3000/- rupees & above these there is attached upto 1/3rd salary.
7. Playing equipment of children.
8. Idols of worship in the house.
9. Standing crops in agriculture land.
10. Perishable goods such as fruits, flowers & vegetables.
11. Inami land, jagir land, patta land.
12. Property against which dispute is pending in court.
13. Equipment of small professional such as Barber, Painter, Carpenter, Farmer.

These are details of execution of decree under order XXI of CPC.

Q10. Admission. (order 12).

Ans. Admission means any fact (or) Facts accepted by plaintiff (or) defendant admitted fact
should not be denied in the court according to rule of estoppels specified in section 115
of evidence act, it includes following points.

1. Facts which have been accepted in plaint & written statement is admission.
2. Facts mentioned in the notice are admission.
3. Facts mentioned in affidavit are admission.
4. Documents submitted by the parties come under admission.
5. Statement made by the party (or) witness come under admission.

If there is denial of the fact then court may order to proof it, it is a general rule
that admitted fact need not be proved.

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Q8. Explain special suits against minor, indigent person, government & Interpleader suit.

Ans. There are some different suits called as particular suit (or) specific suit. These are
different from ordinary suit, these suits are as follows

1. Suit against government:- (Order XXVII) Government is a legal person & it can sue &
be Sued, the term government includes public companies, corporate, institutions & all
authorities mentioned under article 12 of constitution. Following are the points relating to
suit against government.
a. Suit can be file against respective department of government.
b. When suit is file against government then designation of officer to represent the suit has
to be mentioned.
c. 2months advance notice to be given to government before filing suit under section 80 of
CPC.
d. If matter is urgent then application can be enclosed dispense with notice period & judge
can pass such order.
e. If there is GP is in the court then summon can be serve to GP.
f. Government can give authority & send any officer to represent the case.
g. It is not necessary for officer to attend court every time he has to appear personally
when there is chief & cross examination.
h. Court is very slow to execute decree against the government.
Therefore suit against government is different on some points.

2. Suit against minor:- (order XXXII) If there is guardian then case can be file against
him because no case can be file against minor if there is no guardian then court have
power to appoint authorized person called as Next friend. It includes following points.
a. Court may published notification & direct interested parties to file application to become
next friend within 1month period.
b. Court may summon all applicant & examine them & found out reason to become next
friend.
c. When court is satisfy by explanation of any applicant him as next friend.
d. Court may also remuneration for next friend which he may get income of property.
e. Nest friend have power to appoint advocate & represent the case.
f. Next friend have to maintain accounts of expenses of case.
g. When minor becomes major then he have to give account of expenses & retired as a
next friend.
Therefore suit against minor can be per sued by next friend when there is no
guardian.

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CrPC – 5th Semester

Cr.P.C. IMPORTANT QUESTIONS

1 Police 3
2 Define trial and explain trial before a Session Court (procedure to be followed) 5
3 Define and Differentiate between cognizable and non-cognizable offences with suitable 4
examples
4 Seizure 3
5 Charge sheet 3
6 Define Arrest and Rights of arrested person 4
7 Define and Differentiate between Complaint and First Information Report 4
8 Define Charge and what the exceptions of charge are? 3
9 Define Juvenile and describe salient features of Juvenile Justice Act, 2000 4
10 Plea bargaining 3
11 Review 3
12 Define and differentiate between probation and parole 3
13 Juvenile Home/Observation home 3
14 Who is eligible for probation (define probation): 2
Case: X killed his wife, he committed the crime for the first time, and can he be released on 1
probation?
Case: Rajesh was convicted for possessing an illegal weapon, is he eligible for probation? 1
(Define probation)
15 Arresting a Judge 3
Case - Who can arrest a corrupt judge, which court is having the power to arrest him? What
will be the punishment?
Case - Judge is involved in a murder case, can a police officer has the power to arrest him?
16 14 and 19 years were tried under Section 302 of IPC for murder by Sessions Court and 3
acquitted, is the trial proper?
Case - Children below the age of 5 years committed theft and killed a person, whether they 1
are punishable or not?
17 Cases: Jurisdiction of Criminal Courts 2
Case: Honour killing of daughter by parents, which court is competent to try this offence? 1
Case: For defamation which court is competent to trial? 1

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PAPER-II:
CRIMINAL PROCEDURE CODE, LAW OF JUVENILE JUSTICE AND
PROBATION OF OFFENDERS

Unit-I:
The Code of Criminal Procedure, 1973: The rationale of Criminal Procedure — The
importance of fair trial — Constitutional Perspectives: Articles 14, 20 & 21 — The
organization of Police, Prosecutor and Defence Counsel — Pre-trial Process -Arrest
— Distinction between “cognizable” and “non-cognizable” offences— Steps to ensure
presence of accused at trial -- Warrant and Summons cases — Arrest with and without
Warrant – impact of S. 41A - The absconder status.

Unit-II:
Rights of arrested persons under Cr.P.C. and Article 22 (2) of the Constitution of
India. - Search and Seizure — Search with and without warrant — Police search
during investigation — General Principles of Search — Seizure — Constitutional
aspects of validity of Search and Seizure proceedings - Trial Process: Commencement
of Proceedings — Dismissal of Complaint — Bail, Bail able and Non-boilable
Offences — Cancellation of Bails — Anticipatory Bail — General principles
concerning Bail Bond.

Unit-III:
Preliminary pleas to bar trial — Jurisdiction — Time Limitations — Pleas of Autrefois
Acquit and Autrefois Convict — Fair Trial — Concept of fair trial — Presumption of
innocence — Venue of trial —Jurisdiction of Criminal Courts — Rights of accused --
Constitutional Interpretation of Article 21 as a right to speedy trial — Charge — Form
and content of Charge — Trial before a Court of Session: Procedural steps and
substantive rights.
Unit-IV:
Compounding of offences – Plea Bargaining - Judgment: Form and content --
Summary trial — Post-conviction orders in lieu of punishment — Modes of providing
judgment copy — appeals, review and revisions – Role of Victim in Criminal process
– compensation to crime victim.
Unit-V:
Probation and Parole: Authority granting Parole — Supervision — Conditional release
-- suspension of sentence — Procedure under Probation of Offenders Act, 1958 --
Salient features of the Act. Juvenile Justice System -- Juvenile Justice (Care and
Protection of Children) Act -- Procedure under Juvenile Justice…Act — Treatment
and Rehabilitation of Juveniles —— Protection of Juvenile Offenders - Legislative
and Judicial Role.
Suggested Readings:
1.Kelkar R.V.: Criminal Procedure, Eastern Book Co., Lucknow. 2. Ratanlal and Dhirajlal:
The Code of Criminal Procedure, Wadhwa & Co., 3. Padala Rama Reddi: The Code of Criminal
Procedure, 1973, Asia Law House, Hyderabad. 4. S.N. Misra: The Code of Criminal Procedure,
Central Law Agency. 5. M.P. Tandon: Criminal Procedure Code, Allahabad Law Agency. 6.
Shoorvir Tyagi: The Code of Criminal Procedure, Allahabad Law Agency.

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1. Police.
Answer: The main functionaries exercising powers and discharging duties under the Code of Criminal
Procedure are as follows:
1. Police,
2. Prosecutors,
3. Defence Counsel,
4. Magistrates and Judges, and
5. Prison Authorities and correctional services personnel.
The Police: Police persons and officers are appointed by the State Government. The police department is
administered under the Police Act, 1861, or the State Police Act of concerned State. The head or in-charge
of police force in a State is the Inspector-General of Police of that State. In Districts, the District
Superintendent of Police administers the police force under the general control and direction of the
District Magistrate who is usually the Collector of the District.
Officer-in-charge of a police station’ is defined in Section 2(o) of Cr.P.C. to mean ‘officer-in-charge of a
police station’.
Duties of Police: The Code of Criminal Procedure specifies duties –
1. To make arrest (Section 41-60),
2. Search (Section 165),
3. Seize certain property (Section 102) and
4. Prevent cognizable offences (Sections 149 to 153).

Powers of the Police:

Section 107, Code of Criminal Procedure
(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the
peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of
the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding,
he may, in the manner hereinafter provided, require such person to show cause why he should not be
ordered to execute a bond 1 [with or without sureties,] for keeping the peace for such period, not
exceeding one year, as the Magistrate thinks fit.
(2) Proceedings under this section may be taken before any Executive Magistrate when either the place
where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is
within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public
tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.
In Madhu Limaye and Anr. v. SDM Monghyr and Ors. 1971, Supreme Court has explained the terms public
tranquility and public order so that there are no grounds for confusion; the court held that public
tranquility and public order partially overlap each other. While a person playing loud music may disturb
public tranquility but not the order. The expression public order although includes tranquility, it also
presupposes the absence of insurrection, riot or crimes of violence.
Section 151, Code of Criminal Procedure
(1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from
a 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.
(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-
four hours from the time of his arrest unless his further detention is required or authorized under any
other provisions of this Code or of any other law for the time being in force.
Section 151 empowers the police to arrest a person, without a warrant, whom they believe, may
commit a cognizable offence.
Medha Patkar v. State (2007): In this case, certain landowners of Madhya Pradesh and other persons
affected by Sardar Sarovar Project gathered on the road, shouting slogans, demanding land for land and
other rehabilitation measures. They raised no apprehension of committing a cognizable offence or
disturbing public order or tranquility. Despite that, the police beat up the protestors along with women

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and children and arrested all of them under Section 151 of the Code of Criminal Procedure and were
summoned by the Magistrate under Section 107. It was held that sending them to jail on the failure of
furnishing personal bond was a violation of Article 21 of the Constitution of India.

2. Define trial and explain trial before a Session Court (procedure to be followed).
Answer: The term ‘trial’ basically means the Court’s decision or a judicial judgement by the Court so as to
decide the person’s guilt or innocence. A trial is of a very crucial importance in a criminal case. Section 190
CrPC states those requirements that need to be accomplished before proceedings can be started by the
Magistrate; this statement basically means the power of the Magistrate to take knowledge of a case.
Section 204 of CrPC basically provides Magistrate with the sole power of either to take the case into the
consideration or to reject the case on some grounds. This section also determines the stage whether a
case can enter the stage of trial or not.

Trial Before A Court Of Session Under Code Of Criminal Procedure 1973

District court referred to as sessions court when it exercises its jurisdiction on criminal matters under Code
of Criminal Procedure 1973. As per section 9 of Code of Criminal Procedure, 1973, the State government
establishes court for every session division. The court presided over by a Judge, appointed by the High
Court of that particular state. The High Court may also appoint Additional Sessions Judges and Assistant
Sessions Judges in this court. In India, the Sessions Court has responsibility for adjudicating matters
related to criminal cases.

The court takes the responsible for cases relating to murders, theft, dacoity, pick-pocketing and other such
cases. Trial is an important process to determine whether the accused is guilty of an offence. Basing on the
seriousness of the offence, criminal cases are categorized under two heads viz:
Summons cases; and
Warrant cases.
Among warrant cases, the cases which are more serious in nature are triable by the Court of Session, while
less serious cases are triable by the Courts of Magistrate. A Court of Session cannot take cognizance of any
offence, though it is triable by it. A competent Magistrate takes cognizance of any offence and commits
the case for trial by a Court of Session. Trial of Criminal cases may be explained with reference to the
following heads:
1. Trial (of Warrant-Cases) before a Court of Session.
2. Trial of Warrant-Cases by Magistrates.
3. Trial of Summons-Cases by Magistrates.
4. Summary Trials.

Trial before a Court of Session:

The code lays down the procedure for trial before a court of session as follows:
1. Parties (Section 225): In a trial before a court of session, the prosecution shall be conducted by a
public prosecutor. The accused has a right to engage a counsel of his choice. If he cannot afford to
engage the defence counsel, the court engaged at the state expenses. Before commencing the
trial, the accused in supplied with the copies of documents like police report, F.I.R etc.
2. Opening the case (Section 226): The public prosecutor opens the case by describing accusation
against the accused. He states briefly by what evidence, he proposes to prove the guilt. The
prosecutor duty is not to secure a conviction but simply to lay the facts of the case before the
tribunal, which is to judge.
3. Discharge of the accused (sec. 227): After hearing from both the parties if the court considers that
there is no sufficient ground to proceed against the accused, discharges him and records the
reason for doing so. There is no scope for examination of any witness but there is scope for both
sides to argue their case in favour of framing charge or discharge.

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4. Framing of charge (sec. 228): After hearing from both the parties if the court presumes that the
accused might have committed the offences:
i) If frames a charge in writing, if the offence is exclusively triable by the Court of Session.
ii) If the offence is not triable exclusively by the session’s court, it frames charge and transfers the case
to the Chief Judicial Magistrate. It was held in Kanti Bhadra Shah & anr v. State of West Bengal {1}while
exercising power under Section 228 CrPC, the Judge is not required to record his reasons for framing the
charges against the accused.
While framing charges, only the prima facie case has to be seen. At this stage, the Judge is not required
to record a detailed order necessary to see whether the case is beyond reasonable doubt as held by the
Supreme Court in Bhawna Bai v. Ghanshyam & Ors.
In Rukmini Narvekar v. Vijaya Satardekar it was ruled by the Court that the accused cannot produce
any evidence at the stage of framing of charge and only those materials can be taken into consideration
which is specified in Section 227 at the time of framing charges.
5. Explaining the charge and enquiry about plea (sec. 228(2)): The contents of the charge have to be
explained to the accused as to enable him to plead guilty of the offence or claim to be tried. In
Banwari v. State of UP, {4} the Court held that default in reading out or explaining the charge to
the accused would not vitiate the trial unless it has been shown that non-compliance with Section
228 has resulted in prejudice to the accused.
6. Conviction on plea of guilty (sec. 229): If the accused pleads guilty, the judge shall record the plea
and may in his discretion convict him thereon. It was held in Queen Empress v. Bhadu {5} that the
plea of guilty must be in unambiguous terms otherwise such a plea is considered as equivalent to a
plea of not guilty. Section 229 states that if an accused pleads guilty then the Judge shall convict
him as per his discretion and shall record the same. The Court cannot convict an accused on the
basis of the plea of guilty where the offence is of a nature in which the punishment is death or
imprisonment for life. In Hasaruddin Mohommad v. Emperor,{6} the Court held that it will be
reluctant for the Court to convict a person accused of an offence in which the punishment is death
or life imprisonment on the basis of his plea of guilty. The right of appeal of the accused is
curtailed by Section 375 If the accused is convicted on the basis of his plea of guilty.

7. Date for prosecution evidence (sec. 230): 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 at date for the examination
or witness or may order for compelling appearance of any witness or production of a
thing/document.
8. Evidence for prosecution (Section 231):
It consists of two points:
i) On the date so fixed as above, the judge takes all such evidence is support of the prosecution.
ii) The judge may in his discretion, permits the cross examination of any witness to be deferred until any
other witness have been examined or recall any witness for further cross examination.
In Ram Prasad v. State Of U.P, The Supreme Court was held that, if the court finds that the prosecution
had not examined witness for reasons not tenable or proper, the Court would be justified in drawing an
inference adverse to the prosecution.
The Court observed in State of Kerala v. Rasheed {8} that a balance must be struck between the rights of
the accused and the prerogative of the prosecution to lead the evidence while deciding an application
under Section 231(2). The following factors must be considered:
1. The possibility of undue influence,
2. Threats,
3. That non-deferral would enable subsequent witnesses giving evidence on similar fact to tailor their
testimony to circumvent the defence strategy,
4. Loss of memory of the witness whose examination-in-chief has been completed.

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9. Arguments of the prosecution (Sec. 314(2)): The prosecution after the close of witnesses submits a
memorandum of his oral arguments. A copy of the same if is supplied to the opposite party.
10. Examination of the accused: It is to be made without administering oath. It is to give an
opportunity to him to explain the circumstances alleged against him by prosecution.
11. Acquittal (Sec. 232): After hearing from both the parties if the judge considers that the accused
has not committed the offence, record an order acquitting the accused.
12. Entering upon defence (Sec. 233): If the accused is not acquitted, he shall be called upon to enter
on his defence. The court may summon or examine at any stage any person as court witness.
13. Arguments (Sec. 234): After recording defence, the prosecutor sums up his case and the accused or
his pleader shall be entitled to reply. The prosecutor may be allowed to make his submission in
case any law point is raised by the defence.
14. Judgment of acquittal or conviction (Sec. 235): After hearing arguments from both the sides, the
court delivers judgment of acquittal or conviction. On this point, the Apex Court in Santa Singh v.
State of Punjab held that the Judge should first pass a sentence of conviction or acquittal. If the
accused is convicted he shall be heard on the question of sentence and only then the Court shall
proceed to pass a sentence against him.
In Bacchan Singh v. State of Punjab, it was ruled by the Court that this Section provides for a bifurcated
trial and specifically gives to the accused person a right of pre-sentence hearing which may not be strictly
relevant to or connected with the particular crime under inquiry but may have a bearing on the choice of
the sentence.
15. Previous Conviction (sec. 236): In a case where a previous conviction is charged under the
provisions of sub (7) of Sec. 211, and the accused does not admit that he has been previously
convicted as alleged in the charge, the judge may take evidence in respect of the alleged
previously conviction and shall record a finding there on:
Provided that no such charge shall be read out by the judge not shall the accused be asked to plead
thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by
it unless and until the accused has been convicted under sec. 299 or sec. 235.
16. Procedure in cases instituted under sec. 199(2) (sec. 237):
i) A Court of Session taking cognizance of an offence under sub sec. (2) of sec 199 shall try the case in
accordance with the procedure for the trial of warrant cases instituted otherwise than on a police report
before a court of magistrate.
ii) Every trial under this section shall be held in camera if either party thereto so desires or if the court
thinks fit so to do.
iii) If, in any such case, the court discharges or acquits all or any of the accused and is of the Opinion that
there was no reasonable cause for making the accusation against them or any of them, it may try its order
of discharge or acquittal, directs the person against whom the offence was alleged to have been
committed to show cause why he should not pay compensation to such accused or to each or any of such
accused, when there are more than one.
iv) The court shall record and consider any cause which may be shown by the person so directed and if it is
satisfied that there was no reasonable cause for making the accusation, it may make an order that
compensation to such amount not exceeding Rs.1000 it may determine, be paid by such person to the
accused or to each or any of them.
v) Compensation awarded under sub sec. (4) shall be recovered as if it were a fine imposed by a
magistrate.
vi) No person directed to pay compensation under sub sec (4) shall be exempted from any civil or criminal
liability in respect of the compliant made under this section.
vii) The person who has been ordered under sub sec. (4) to pay compensation may appeal to the High
Court.
viii) When an order for payment of compensation to an accused person is made, the compensation shall
not be paid to him before the period allowed for the presentation of the appeal has elapsed, or if an
appeal is presented, before the appeal has been decided.

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3. Define and Differentiate between cognizable and non-cognizable offences with suitable examples.
Answer:
Cognizable Offence
“Cognizable offence” means an offence for which and “cognizable case” means a case in which, a police
officer may, in accordance with the First Schedule or under any other law for the time being in force,
arrest without warrant. The Code of Criminal Procedure has no guidelines to determine a particular
offence is cognizable or non-cognizable. However, the Code also contains the Schedule I which refers to all
the offences under the Indian Penal Code and puts them into cognizable and non-cognizable categories.
Cognizable are serious offences. The seriousness of the offence leads for maximum punishment. The First
Schedule contains offences under the laws other than the Indian Penal Code which are punishable with
imprisonment for three years or more. They are punishable with less than three years or with fine only.
They are usually offenses which are serious in nature. Examples of offences are:
1. Waging or attempting to wage war, or abetting the waging of war against the government of
India,
2. Murder,
3. Rape,
4. Dowry Death,
5. Kidnapping,
6. Theft,
7. Criminal Breach of Trust,
8. Unnatural Offenses.
Section 154 of the Criminal Procedure Code, 1973 provides that under a cognizable offence the Police
Officer has to receive the First Information Report (FIR) relating to the cognizable offence.
Key Elements:
1. Cognizable offences are those where a police officer can arrest without warrant.
2. And such cases, after arrest has been made, the accused will be produced before a magistrate, and
he may require the police officer to investigate the matter.
3. After investigation, if the case is made out, i.e. charge sheet filed goes against accused, the
magistrate can order for arrest.
4. During the pendency of trial, bail application can be moved before the concerned magistrate.
5. Cognizable offences are both bailable, and non-bailable.
Non-Cognizable Offence
“Non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which,
a police officer has no authority to arrest without warrant. Such offences are minimal offences where the
injury done to the society is comparatively small. The aggrieved party expected to file a complaint before
criminal proceedings starts. The non-cognizable offences contains more private wrong. Therefore,
initiative is taken by citizen to prosecute the offender and also collect the evidence. A police officer cannot
arrest without a warrant and such an officer has neither the duty nor the power to investigate into such
offences without the authority given by a Judicial Magistrate.
Examples of Non-Cognizable offenses. These offences are not much serious in nature.
1. Assault,
2. Cheating,
3. Forgery
Key Elements:
1. Non cognizable offences are those, where a police officer cannot arrest without a warrant.
2. In such offences for arrest, all the steps have to be followed like
 Filing of complaint/F.I.R.
 Investigation
 Charge sheet,
 Charge sheet to be filed in court
 Trial

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 Final order of arrest if case has been made out.

Differences between Cognizable and non-cognizable offence
1. The offence in which the police suo motu takes cognizance of crime and also does not need
approval of court, known as a cognizable offence. While, in non-cognizable, police has no
authority to arrest a person for crime on its own, without prior approval of court.
2. In cognizable, the police can arrest a person without any warrant. While, in case of non-cognizable
offence, a warrant must needed for arrest of person.
3. In cognizable, court’s order is not required to start an investigation. Conversely, in the non-
cognizable offence, first of all, court’s order should be obtained for undertaking an investigation.
4. Cognizable are heinous crimes, whereas non-cognizable offences are not so serious.
5. Cognizable encompasses murder, rape, theft, kidnapping, counterfeiting, etc. On the contrary,
non-cognizable offences include offences like forgery, cheating, assault, defamation and so forth.
6. For a cognizable, one can file FIR or make a complaint to the magistrate. Unlike, in case of non-
cognizable offence one can only make a complaint to the magistrate.

Cognizable Non-Cognizable

It is the offence in which a police officer can It is the offence in which a police officer
arrest the convict without the warrant. cannot arrest a person without the warrant.

The police can start a preliminary The police officer cannot start the
investigation without the permission of the investigation without the permission of the
court or without registering the FIR. court.

These are heinous crimes like murder, These crimes are not so serious like forgery,
rape, dowry death etc. cheating, defamation etc.

The victim can file an FIR or make a The victim can only make a complaint to the
complaint to the magistrate. magistrate.

It is defined in the Section 2(c) of the It is defined in Section 2(I) of Criminal

Criminal Procedure Code, 1973. Procedure Code 1973.

The police officer is bound to register the The police officer is not bound to register the
FIR even without the permission of FIR or cannot register the FIR without prior
Magistrate. permission of the magistrate.

It is a non-bailable offence. It is a bailable offence.

4. Seizure.
Answer: The act of seizing is well known as a seizure. It is an action coupled with force in which an object
or person is suddenly taken over, grabbed, removed, or overwhelmed.
Search and seizure is also an essential stage in the process of effective investigation. There are two
methods in which police can affect search and seizure. One under a warrant which is issued under any of

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the provisions of Sections 93, 94, 95, and 97 and the other is without a warrant under any of the
provisions of Sections 103, 165 and 166 of CrPC. the basic provisions as to search and seizure are laid down
in Section 100 of CrPC. The procedure set out in the section is generally followed in offenses committed
under the Indian Penal Code as well as in special and local laws with a little variance. Thus, in all situations
of search and seizure, the investigating police should follow the procedures laid down under Sections 100
and 165 CrPC. Section 102 provide the power of police officers to seize certain property.
The police may have to effect search and seizure in one or more places. One at the scene of the crime
and the other at places where the persons involved in crime are hiding and places where the incriminating
articles to crime are kept or concealed.
CrPC Chapter VII Section 102: Power of police officer to seize certain property
1. Any police officer may seize any property which may be alleged or suspected to have been stolen,
or which may be found under circumstances which create suspicion of the Commission of any
offence.
2. Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report
the seizure to that officer.
3. Every police officer acting under Sub-Section (1) shall forthwith report the seizure to the
Magistrate having jurisdiction and where the property seized is such that it cannot be,
conveniently transported to the Court or where there is difficulty in securing proper
accommodation for the custody of such property, or where the continued retention of the
property in police custody may not be considered necessary for the purpose of investigation, he
may give custody thereof to any person on his executing a bond undertaking to produce the
property before the Court as and when required and to give effect to the further orders of the
Court as to the disposal of the same.
Provided that where the property seized under Sub-Section (1) is subject to speedy and natural decay and
if the person entitled to the possession of such property is unknown or absent and the value of such
property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the
Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable,
apply to the net proceeds of such sale.
In Suresh Nanda vs. C.B.I., it has been observed that police may be vested with power of making seizure
of passport in terms of Section 102(1) of the Code, but is devoid of power to impound the same, as the
power to impound passport in terms of Section 10(3) of the Passport Act, 1967, is vested with the Passport
Authority.
5. Charge Sheet.
Answer: On the completion of Investigation, the police are required to follow certain procedures as laid
down in Section 169 of CrPC till Section 173 of CrPC. Submission of the police report within a kind of
“charge-sheet” or “challan” is the end-result of such investigation by police. Section 169 accords with the
cases of lack of evidence. Section 170 with the cases where the accused is shipped up for the trial and
Section 173 provides for general instructions for both the section 169 and 170. The expression “final
Report” is not used in the CrPC, but the report submitted by the police officer is called the “final report”.
The investigation consists of several stages which ultimately ends in the creation of an opinion by the
police, on the material or evidence covered and collected. Then a case is formed to place the accused for
trial before the Magistrate and submission of a final report under Section 169 or a charge-sheet under
Section 170, is dependent on the nature of the opinion which is formed by the police. The creation of the
said opinion by the police is the final step in the investigation and this final step is to be taken by the
police and by no other authority.
Police report / Charge-sheet: Section 2(r) of CrPC talks about the expression ‘police report’, according to
which a report is forwarded by a police officer to a Magistrate under Section 173(2). The report should be
in the manner that is prescribed by the State Government as per the particulars mentioned in clause (a) to
(g) of sub-section (2) of Section 173. The police report submitted under this section is called the End
Report. If this report constitutes an attempt of a crime by an accused person, that report is commonly
called the “charge-sheet” or the “challan”.

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 The charge sheet made by the Police correlates and mentions the complaint of that private
individual on which the criminal proceedings have taken place. Submission of the Charge sheet by
the police officer reflects that the initial investigation and preparation regarding the same case are
done and now Magistrate can take offence committed under his consideration as stated in Rama
Shankar v. State [AIR 1956 All 525].
 The Magistrate cannot interfere in any of his judicial capacity and as a court until he receives the
final report by the police officer as per Section 173. Also, there can be no occasion for the
Magistrate to make any judicial order about the police investigation as stated in M.L. Sethi v. R.P.
Kapur [AIR 1967 SC 528].
Supplementary Report on further investigation
The submission of the report by the police officer shall not prevent further investigation in respect of an
offence when some additional evidence is obtained.
Section 173 says nothing as far as the investigation is concerned in respect to the offence that took
place, the police officer needs to submit all the extra evidence obtained after the submission of the report
if they manage to obtain any irrespective of the old evidence that already exists should be passed on to
the Magistrate.
Particulars of the report: As soon as the investigation is completed in respect to the case, the police
officer needs to submit the final report made to the authorised Magistrate who can take action on the
case further. A report in the form prescribed under Section 173(2)(i) by the State Government, stating:

1. The names of the parties

2. The nature of the information
3. The names of the persons who appear to be familiar with the circumstances of the case
4. Whether any offence appears to have been committed and if so, then by whom
5. Whether the accused been arrested
6. Whether the accused has been released on his bond and if so, then whether with or without
sureties
7. Whether he has been put in custody under Section 170.
Submission of this police report is a part of the investigation.
Abhinandan Jha v Dinesh Mishra (AIR 1968 SC 117)
It has been opined that the Magistrate is not entitled to order an investigation by a senior police officer in
charge of the police station.
In this case, the court observed that the creation of the opinion by the police officer by whom or under
whom the investigation took place, is the final step in the investigation and that final step is to be taken
by the police and not by any other authority. Thus, there is no power expressly or impliedly given under
the provisions to a magistrate to call upon the police to submit a charge-sheet. When the police officer has
sent a report under Section 169 that there is no case can be made from the following report to send the
accused for trial, in that case the charges are to be made by the Magistrate to keep in mind the report
submitted by the police as per Section 228 and Section 240 of CrPC.

6. Define Arrest and Rights of arrested person.

Answer: Introduction
The code has not defined the term arrest. The term arrest means apprehension of a person by legal
authority so as to cause deprivation of liberty.
As per Legal Dictionary by Farlex, Arrest means a seizure or forcible restraint; an exercise of the power
to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority,
especially, in response to a criminal charge.
Definition: In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest as the act of being taken
into custody to be formally charged with a crime. The court observed that in a Constitutional sense, it
means the seizure of a person (body of a person).

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In State of Punjab v. Ajaib Singh, the court observed that arrest is the physical restraint put upon an
abducted person in the process of recovering and taking that person into legal custody with or without
any allegation or accusation of any actual or suspected commission of the offence
Elements
The elements necessary to constitute arrest were summarised by the Madras High Court in Roshan Beevi
v. Joint Secy. to the Govt. of Tamil Nadu. The vital elements required to institute arrest are:
1. There must be an intent to arrest under legal authority,
2. There must be seizure or detention of the person,
3. The person must be in the lawful custody of the arresting person and
4. The act of arrest must include the actual confining of the person and not mere oral declaration of
arrest.
Types of arrest
1. arrest made in pursuance of a warrant issued by a magistrate
2. arrest made without such a warrant
When Police may arrest without a warrant?
Section 41 is the main section providing for situations when Police may arrest without warrant.
It lays down following grounds when a police officer can arrest without a warrant
1. Who has been concerned in any cognizable offence such as murder, rape, kidnapping, theft, etc. or
2. Who has in possession, without, lawful excuse, of any house breaking weapon or
3. Who has been proclaimed as an offender either under CrPC or by order of the State Govt. or
4. Who is in possession of any stolen property or
5. Who obstructs a police officer while in the execution of his duty or who has escaped, or attempts
to escape, from lawful custody or
6. Who is reasonably suspected of being a deserter from any of the Armed forces of the Union or
7. Who has been concerned in any law relating to extradition or
8. Who, being a released convict commits a breach of any rule made under sub-section (5) of Section
356 CrPC or
9. For whose arrest any requisition has been received from another police officer specifying the
person to be arrested and the offence and other cause for which the arrest is to be made.
Rights of an arrested person
The benefit of the presumption of innocence of the accused till the time he is actually found guilty at the
ending of a trial substantiated with evidence, is one of the basic tenets of our legal system. It is a
characteristic of our democratic society that even the rights of the accused are deemed to be sacrosanct,
and even though he is charged with an offence however that does not render him as a non-person. Our
statute is quite careful towards anyone’s personal liberty and hence doesn’t permit the detention of any
person without proper legal sanction.
Available rights: There are two types of rights available to the arrested:
 Rights at the time of arrest
 Rights at the time of trial
1. Right to be informed of the grounds for arrest {Section 50(1) of the Cr.P.C and Article 20(1)},
2. Right to bail (Section 50(2) of the CrPC),
3. Right to be produced before Magistrate within 24 hours (Section 56),
4. Right of not being detained for more than 24 hours without judicial scrutiny (Section 57),
5. Examination of arrested person by medical officer (Section 54),
6. Right to consult a legal practitioner (Section 303 of the CrPC),
7. Right of an arrested indigent person to free legal aid and to be informed about it (Sec 304 of CrPC),
8. Arresting a woman: According to National Human Rights Commission guidelines on arrest, As far
as practicable, women police officers should be associated where women are arrested and arrest
of women between sunset or sunrise should be avoided.

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9. According to Section 53(2) of Code of Criminal Procedure, 1973, and 10 Basic Standards for Law
Enforcement Officials Proposed by Amnesty International, Medical examination of women should
be carried only under the supervision of female medical practitioners.
10. Right to silence: The ‘right to silence has its origin from common law principles. So in general
sense the courts or tribunals should not conclude that the person is guilty of any conduct merely
because he was not responding to questions which were raised by the police or by the court.
Article 20(3) of Constitution of India guarantees every person the right against self-
incrimination, and it has been stated under this article that no person, who has been accused of an
offence, shall be compelled to act as a witness against himself. This same rule has been reiterated
by a decision of Supreme Court in the case of Nandini Sathpathy v. P.L.Dani and it was held by the
court in this case that no one can forcible extract any statement from the accused and no matter
what, the accused has the sole right of being silent during the course of investigation and
interrogation.
11. It was held by the Supreme Court again in the year 2010 that narco-analysis, brain mapping and lie
detector test are in violation of Article 20(3) of the Constitution of India and that by
administration of these tests, forcible intrusion into a person’s mind is being conducted which
further nullifies the validity and legitimacy of this right.
12. Right to know the grounds,
Rights at trial:
13. Right to a fair trial (Article 14),
14. Right to a speedy trial: Regardless of this right not being mentioned in the constitution, the SC in
the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be
conducted as expeditiously as possible.
15. Right to Consult a Legal Practitioner: It is the right of every arrested person to consult a legal
practitioner of his own choice. This has also been enshrined as a fundamental right in Article 22(1)
of the Constitution of India, which is undeniable in all cases. Section 50(3) of the Code also states
that the person against whom proceedings are initiated has a right to be defended by a pleader of
his choice. This right begins as soon as the person is arrested.
16. Rights of Free Legal Aid: The Supreme Court in the case of in Khatri v. the State of Bihar held that
the state is under a constitutional obligation as is implicit in article 21 of the constitution as well to
provide free legal aid to an indigent accused person.

7. Define and Differentiate between Complaint and First Information Report.

Answer: Complaint:
Reporting the commission of a crime is the foremost step in setting the criminal law proceedings in
motion. The general public has an impression that the process of reporting an offence and setting the law
in motion is kafkaesque. Though it is true that the statutory provisions on reporting crimes are filled with
jargons, the procedure, in essence, is direct and straightforward. The fundamental question that arises on
the subject of reporting crimes is who can report about the commission of a crime and to whom? As per
the procedural laws in India, it is not necessary that only the person who is victimized by the crime needs
to report the same. Any person can pass on the information to the law enforcement agency.
With respect to the question “to whom”, the information can be given both to the police as well as the
jurisdictional Judicial Magistrate. A person who wishes to report the commission of an offence has two
options, either to give information to the police or to file a complaint to the magistrate. While the former
method proceeds with an investigation by police and trial thereof, the latter involves prosecution by
private persons.

Difference between Complaint and Information

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Information - As per Section 154 CrPC, any information regarding commission of a cognizable offence can
be reported to the Police by a witness or victim or a person who has knowledge about the act. The said
information will be recorded as FIR.
Complaint - Whereas, as per Section 2(d) of CrPC, a complaint is an allegation made to the Magistrate in
writing or verbal form which mentioned about the offence committed by a person whether known or
unknown and does not include a police report.
Difference
Though in common parlance, verbal information given to a police officer is named as “complaint”, as per
CrPC, it will still be treated as information and not a complaint.

First Information Report:

The basic purpose of filing a FIR is to set criminal law into motion and not to state all the minute details
therein. A First Information Report is the initial step in a criminal case recorded by the police and contains
the basic knowledge of the crime committed, place of commission, time of commission, who was the
victim, etc. The definition for the First Information Report has been provided in the Code of Criminal
Procedure, 1973 by the virtue of Sec. 154, which lays down that:
“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; and every such information, whether given in writing or reduced to writing as aforesaid,
shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by
such officer in such form as the State Government may prescribe in this behalf”.
The Hon’ble Supreme Court of India, while delivering its judgment in the matter of T.T.Antony vs. State
of Kerala & Ors., laid down certain important points regarding Sec. 154 of the Cr.P.C:
“ Information given under sub-section (1) of Section 154 of Cr.P.C., is commonly known as the First
Information Report (FIR), though this term is not used in the Code….And as it’s nick name suggests, it is
the earliest and the first information of a cognizable offence recorded by an officer in charge of a police
station”.
Who Can Lodge an FIR?
FIRs can be registered by a victim, a witness or someone else with knowledge of the crime. As per the laws
laid down u/s 154 of the Cr.P.C, the complainant can give information about the offence either in written
or orally. In regard to who can file an FIR, the Apex Court of India has observed that;
“Section 154 does not require that the Report must be given by a person who has personal knowledge
of the incident reported. The section speaks of information relating to the commission of a cognizable
offence given to an officer in charge of a police station”
The police is obliged to read the FIR back to the complainant in case it is conversed to them orally to
prevent the possibility of any differences in the oral and the written versions. Further it is the duty of the
complainant to report to the police station in person in case he had given the information on a telephone.
Providing a Copy of FIR to the Complainant and to the Accused:
Under Indian criminal law, the informant, as seen earlier, is entitled to get a copy of the first information
report lodged by him at the police station free of cost. It is a necessary document in a criminal case and
can majorly support the case of the informant or the victim. However, the accused person is also entitled
to get a copy of the first information report. Sec. 207 of the Code of Criminal Procedure, 1973 entitles the
accused to get the copy of the first information report the investigation has been completed by the police
in the said case, and the charge sheet has been filed in the Court. The provision states that the Magistrate,
in such circumstances, must furnish to the accused a copy of the FIR free of cost.

Difference between FIR & Complaint:

Crime is a wrong against the society at large. It creates an alarming situation in the society. Therefore, any
person can come up with a complaint or information before the concerned authority. The motive of both
the things is to attract the attention of the authorities and to punish the offender. Informing of a
commission of crime is one of the important processes in Criminal Justice System.

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Basis of Difference FIR Complaint

Definition FIR is not defined in the code. However, it Complaint is defined u/s 2 (d), which means any
can be said to be information given to the allegation made orally or in writing to a magistrate,
police first in point of time relating to a with a view to his taking action under the code,
cognizable offence. that some person whether known or unknown has
committed an offence. It, does not include a police
report
Who may Apply? First information report may be lodged by Whereas, Complaint can be filed by any person
any person such as the aggrieved party or subject to certain exceptions.
an eye witness

Whom to Apply? First information report is made to the Complaint is made to a magistrate
competent police officer

Nature of Offence First Information Report must relate to a A complaint may relate to a cognizable or non-
cognizable offence on the face of it. cognizable offence.

Investigation When a FIR is lodged, a policer officer starts Whereas, when complaint is filed no investigation
with investigating the matter. is done by the police officer until directed by the
competent authority.

Cognizance At the first instance no cognizance is taken A Magistrate takes cognizance on the complaint
by the Magistrate until particular FIR is made to him at the very first stage.
reported to him.

Format There is prescribed format by law for FIR No prescribed format is given for filing a complaint.
But some essential ingredients are to be satisfied.

8. Define Charge and what the exceptions of charge are?

Answer: Definition of Charge:
Charge defined under section 2(b) of The Code of Criminal Procedure (in short CrPC) includes any head of
charge when the charge contains more heads than one. Charge simply means accusation. A charge is a
formal recognition of concrete accusation by magistrate or a court based upon a complaint or information
against the accused.
The Court held that the purpose of framing of charge is to give intimation to the accused of clear,
unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the
course of trail. (V C Shukla Vs State 1979 AIR 962) A charge may be defined as precise formula of a specific
accusation made against a person of an offence alleged to have been committed by him. (Biricch Bhuian
Vs State of Bihar AIR 1963 AIR 1120).

Content of Charge (Section 211 CrPC)

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

2. If the law creates the specific name of the offence, the offence must describe in the charge by that
name only,
3. If does not give any specific name, the definition of the offence must be state.
4. The law and Section of the law against which the offence is said to have been committed must be
mentioned in charge.
5. The charge must be written in the language of the court.
6. Particulars as to time, place and person: As per Section 212(1) of the CrPC, the charge shall
contain such particulars as to the time and place of the alleged offence, and the person (if any)
against whom, or the thing (if any) in respect of which, it was committed, as are reasonably
sufficient to give the accused notice of the matter with which he is charged.

The exceptions to Section 218

Exception 1
Three offences which are of the same kind, committed within a year may be charged together: This
section has been provided to avoid multiplicity of the proceedings when the offences are of the same
kind. It contains two circumstances:
1. According to Section 219(1), if a person has been accused of three offences of the same kind then
the person can be tried for all the offences together if they have been committed within a span of
twelve months from the first to the last offence.
2. Section 219(2) talks about the offences which are of the same kind, also punishable with the same
quantum of punishment.
Exception 2
Offences which are committed in the course of the same transaction and tried together. It consists of the
following:
1. If a person has committed a series of acts, which are so intrinsically connected together that they
form a single transaction, such series of offences shall be charged and tried together. The word
‘transaction’ has not been defined under the Code
2. In case of offences of Criminal breach of trust or dishonest misappropriation of property and their
companion offences of falsification of accounts. Many a time, the offences of criminal breach of
trust or dishonest misappropriation of property are committed along with the offence such as
falsification of accounts etc., the latter offence committed in order to fulfil the objective of the
former offence. In such cases, Section 220(2) enables the Courts to try such offences together.
3. If a single act falls under within different and separate definitions of offences, such different
offences shall be tried together as mentioned under Section 220(3). For e.g.: If a person X,
wrongfully strikes a person Y with a cane, then X can either be charged with and tried separately
of offences under Sections 352 and Sections 323 of the Indian Penal Code or may be tried and
convicted together.
4. If the acts which form an offence also constitute different offences when separately taken and
tried or taken in groups, such offences shall be tried to be one in a single trial. For e.g.: If A
commits the offence of robbery on B, and while doing so he voluntarily causes hurt to B, then A
may be separately charged with, and convicted of the offences mentioned under Sections 323, 392
and 394 of the Indian Penal Code.
Exception 3
Section 221 provides for the cases wherein there is some doubt related to the circumstances and incidents
which took place during the commission of the offence. According to this section, if the accused has
committed a series of acts which lead to confusion regarding the facts should be proved, the accused
might be charged with any or all of such offences or charged for alternative offences. In such cases, the
accused is charged for one offence and during the stage of evidence, if it is proved that he has committed
a different offence, he may be convicted for the same even though he was not charged with the same.

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Exception 4
Section 223 talks about the class of persons who can be tried jointly. This section permits a joint trial of
several persons under the specified circumstances as there exists some nexus among the various offences
committed. The various classes shall not be treated as mutually exclusive and could be combined together
if necessary. According to this section, the following classes of persons may be tried and charged together:
1. The accused persons who have committed the same offence in the course of the same transaction.
2. The persons who have committed a particular offence and those who have abetted the
commission.
3. The persons who are covered under the ambit of Section 219.
4. The persons who in the same course of the transaction have committed different offences.
5. The persons who have committed offences such as theft, extortion, cheating, or criminal
misappropriation of the property along with the persons, who have received, retained, assisted in
the disposal or concealment of property, possession of which is illegal and has been alleged to be
illegal.
6. The persons who have been accused of commission of offences under Section 411 and section 414
of the Indian Penal Code or under those sections in respect of stolen property, possession of which
has already been transferred by another offence.
7. The persons who have been accused of any offence under Chapter XII of the Indian Penal Code
related to the counterfeit coins.
The accused persons, whose cases have not been covered under any of the classes of Section 223, cannot
himself claim a joint trial. The proviso to this Section puts a check on the discretionary power of the court.
The rules contained from Section 218 to Section 223 have been made for the benefit of the accused. It
is not required to treat the various classes of sections as mutually exclusive. The Courts have been given
the authority to combine the provisions of more than two clauses. The joint trial of several persons partly
by applying one clause and by partly applying another clause has also been authorised.

9. Define Juvenile and describe salient features of Juvenile Justice Act, 2000.
Answer: Juvenile can be defined as a child who has not attained a certain age at which he, like an adult
person under the law of the land, can be held liable for his criminal acts. The juvenile is a child who is
alleged to have committed /violated some law which declares the act or omission on the part of the child
as an offence. Juvenile and minor in legal terms are used in different context. Juvenile is used when
reference is made to a young criminal offenders and minor relates to legal capacity or majority. To make
the meaning more clear resort can profitably be made to some other source. The concept of the juvenile
varies from State of State for convenience. In India, until passing of Children Act, 1960 there was no
uniformity regarding age limitation of juvenile delinquent.
Juvenile Justice Act, 1986 defined a juvenile or child to be a person who in case of a boy has not
completed age of 16 years and in case of a girl 18 years of age. The JJA Act, 1986 was repealed by 2000 Act
and the distinction with regard to age between male and female juveniles has been done away with by
the Government of India in performance of its obligation to the international obligations. Now age of
juvenile in conflict with law for male and female has been fixed at 18 years. A juvenile in conflict with law
under the JJ (C & P) Act, 2000 is a juvenile who is alleged to have committed an offence and has not
completed 18 years of age as on the date of commission of such offence. Recently under the new Juvenile
justice act, 2015 In case of a heinous offence alleged to have been committed by a child, who has
completed or is above the age of sixteen years, the Juvenile Justice Board shall conduct a preliminary
assessment with regard to his mental and physical capacity to commit such offence, ability to understand
the consequences of the offence and the circumstances in which he allegedly committed the offence.
Salient features of JJA:
1. The Juvenile Justice Act was brought into place to deal with two kinds of juveniles or children. (a)
child in conflict with the law and (b) child in need of care and protection. As I mentioned before, a
juvenile or a child is a person who is below the age of 18. The age was brought up to 18 years from
the previous 16 years by the amendment of the Act in the year 2000.

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2. Child in conflict with the law as the name suggests is a child who has allegedly committed an
offence whereas a child in need of care and protection is a child who has been abandoned or is
destitute.
3. The Act provides for rules and regulations to be followed and institutions to be instituted to try
and hear cases of children in conflict with the law.
4. a. The Act known as ‘The Reformatory Act’ deals with two categories of children, namely children
in need of care and protection and children in conflict with the law.
b. The competent authority to deal with children in need of care and protection is the Child
Welfare Committee (CWC) which constitutes a Chairperson and four other members, one of whom
at least should be a woman. Chapter IV of this Module would focus in detail about Children in
need of care and protection and the functioning of the CWC in rehabilitation and disposition of
cases
c. Juvenile Justice Board (JJB) is the competent authority to deal with children in conflict with law
which comprises of three members. The Chairperson of the Board should be a First Class Judicial
Magistrate and two honorary social workers out of whom at least one should be a woman. Special
provisions for children in conflict with law and the responsibilities of the Board are discussed in
detail in Chapter III of this Module.
5. The Act provides for the establishment of various kinds of Institutions such as
- Children’s Home for the reception of child in need of care and protection.
- Special Homes for the reception of child in conflict with law
- Observation Homes which are meant for the temporary reception of children during the pendency
of any inquiry.
- After-care Organizations which are meant for the purpose of taking care of children after they have
been discharged from Children’s Home or Special Homes.
6. A few sections in the Act (Sec 23 – 26) are focused on the offences committed by anyone against a
child such as assault, causing mental or physical suffering and employment of a child which are considered
as non bailable offences.

10. Plea Bargaining.

Answer: The famous saying “Justice delayed is justice denied” holds utmost significance when the concept
of Plea bargaining is discussed. The number of cases pending in the courts is shocking but at the same
time, it has been normalized by people. These astonishing figures are no more astonishing because people
have started accepting this as their fate. The concept of plea bargaining was not there in criminal law since
its inception. Considering this scenario, Indian Legal scholars and Jurists incorporated this concept in
Indian Criminal Law. As the term itself suggests that it is an agreement between accused and the
prosecutor. Many countries have accepted this concept in their Criminal Justice System (CJS).

Meaning of Plea Bargaining:

Plea bargaining is a pretrial negotiation between the accused and the prosecution where the accused
agrees to plead guilty in exchange for certain concessions by the prosecution. It is a bargain where a
defendant pleads guilty to a lesser charge and the prosecutors in return drop more serious charges. It is
not available for all types of crime e.g. a person cannot claim plea bargaining after committing heinous
crimes or for the crimes which are punishable with death or life imprisonment.
History of Plea Bargaining: In the Jury System, the need for plea bargaining was not felt because there
was no legal representation. Later on, in 1960 legal representation was allowed and the need for Plea
Bargaining was felt. Although the traces of the origin of the concept of Plea Bargaining is in American legal
history. This concept has been used since the 19th century. Judges used this bargaining to encourage
confessions.

Plea Bargaining in India

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Plea Bargaining is not an indigenous concept of Indian legal system. It is a part of the recent development
of Indian Criminal Justice System (ICJS). It was inculcated in Indian Criminal Justice System after
considering the burden of long-standing cases on the Judiciary.

Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of Plea
Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea bargaining for
cases:
1. Where the maximum punishment is imprisonment for 7 years;
2. Where the offenses don’t affect the socio-economic condition of the country;
3. When the offenses are not committed against a woman or a child below 14 are excluded.

Some of the major drawbacks of the concept of plea bargaining as is recognized in India are as under:
A) Involving the police in plea bargaining process would invite coercion.
B) By involving the court in plea bargaining process, the court’s impartiality is impugned.
C) Involving the victim in plea bargaining process would invite corruption.
D) If the plead guilty application of the accused in rejected then the accused would face great hardship to
prove himself innocent.

Therefore to ensure fair justice, plea bargaining must encompass the following minimum requirements:
A) The hearing must take place in court
B) The court must satisfy itself that the accused is pleading guilty knowingly and voluntarily.
C) Any court order rejecting a plea bargaining application must be kept confidential to prevent prejudice
to the accused.

Types of Plea Bargaining: Plea Bargaining is generally of three types namely:-

1. Sentence bargaining;
2. Charge bargaining;
3. Fact bargaining.

S.
Concept Type Meaning
No.
In this type of bargaining the main motive is to get a lesser sentence. In
Sentence
1. Sentence bargaining, the defendant agrees to plead guilty to the stated
bargaining
charge and in return, he bargains for a lighter sentence.
This kind of plea bargaining happens for getting less severe charges.
This the most common form of plea bargaining in criminal cases. Here the
Charge
Plea 2. defendant agrees to plead guilty to a lesser charge in consideration of
bargaining
Bargaining dismissing greater charges. E.g. Pleading for manslaughter for dropping the
charges of murder.
This is generally not used in courts because it is alleged to be against
Fact Criminal Justice System. It occurs when a defendant agrees to stipulate to
3.
bargaining certain facts in order to prevent other facts from being introduced into
evidence.

12. Define and differentiate between probation and parole.

Answer: Probation:
The object of Criminal Law is more inclined towards the reformation of the offender than to punish
him. Instead of keeping an accused with hardened criminals in a prison, the court can order personal

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freedom on promise of good behaviour and can also order a period of supervision over an offender. This is
the concept behind ˜probation. Black’s law dictionary defines ˜probation as ˜allowing a person convicted
of some minor offence (particularly juvenile offenders) to go at large, under a suspension of sentence,
during good behaviour, and generally under the supervision or guardianship of a probation officer.
The Act is based on a reformative approach which has come over the years from the Doctrine of
Deterrence. It is believed that imprisonment decreases the capacity of an offender to readjust to the
normal society after the release and association with professional delinquents often has undesired effects
on him and his life thereafter. Probation is a socialized penal device which has come up as the result of
modification, over a period of time, of the doctrine of deterrence into the principle of reformation; a
development that paved the way to the introduction of clinical approach and the principle of
individualization in the handling of offenders. The Probation of Offender Act, 1958 saves minor offenders
from becoming regular criminals. This is done by providing them with a chance to reform themselves
rather than getting into prison. The probation officer amicably reaches to the needs and difficulties of the
accused and tries to solve the problem. This is done for the person convicted of minor crimes.
Thus, instead of keeping the accused with hardened criminals in jail, the court may order personal
freedom on the basis of good behaviour. The court can also grant a supervision period for the accused.
The main aim behind the Probation of Offender Act, 1958 is to give an opportunity to offenders to reform
themselves rather than turning into hardened criminals. Section 562 of the Code of Criminal Procedure,
1898 (after amendment it stands as Section 360 of the Code of Criminal Procedure, 1973) provides that
any person not below twenty-one years of age who may have not been convicted for an offence for
imprisonment up to seven years or not convicted to death or imprisonment of life can be released on the
basis of probation for good conduct.
Following are the merits or advantages of probation:-
1. It is most useful in the case of juvenile delinquents.
2. It gives hope for the rehabilitation of the offender who has not committed the offence.
3. Probation is a way of sending good idea in the mind of offenders.
4. It is helpful for both hard-core and youthful offenders.
5. It helps in reducing the crowding in the jails.
Statutory provisions under the Act
The provision is broadly classified into procedural and substantive general laws dealing with probation
of the offenders. The first provision to deal with probation was in Section 562 of the Code of Criminal
Procedure, 1898. After the amendment in 1973, the probation was dealt with in Section 360 of the Code of
Criminal Procedure. This Section says that if:
1. Any person who is not below twenty-one years and is convicted of a crime for which the
punishment is imprisonment for seven years or is convicted for an offence punishable with fine.
2. Or any person who is below twenty-one years or if any women convicted of an offence not
punishable with imprisonment of life or death and no previous conviction is proved against the
offender.
3. And appears before the court, regardless of the circumstances in which he has committed the
offence, the court might release the offender on the promise of good conduct.
The court might release him on entering the bond for good conduct and peace instead of punishing the
offender with imprisonment. In the case of Jugal Kishore Prasad vs The State of Bihar, the Supreme Court
stated that the aim of the law is to deter the juvenile offenders from turning into obdurate criminals as a
result of their interaction with seasoned mature-age criminals in case the juvenile offenders are sentenced
to incarceration in jail. It is observed that the Act is in accordance with the present trend of penology,
which says that effect should be made with accordance to change and remould the offender and not to
retribute justice. Modern criminal jurisprudence recognises that no one is born criminal. A good number
of crimes are a result of a socio-economic environment.

MEANING OF PAROLE

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Parole is the release of a prisoner, either temporarily for a special purpose or completely before the expiry
of a sentence, on the promise of good behaviour; such a promise is known as a word of honour provided
in the parole order. The word parole is derived from the French 'je donne ma parole 'I give my word.' i.e.
the word of honour. This word was used by the prisoners of war for their release by giving promise to the
captor.

Therefore, in simple words, Parole is the pre-mature conditional temporary release of a prisoner on the
terms of abiding by the conditions along with the observance of certain restrictions to avail the privilege
of returning back to the society and socialize with family and friends keeping in mind correctional theory
and preparing to return back to his social life. It is mere suspension of the sentence for time-being keeping
the quantum of sentence intact. If the paroled prisoners violate the conditions on which they are released,
they may be returned back to the prison.
The origin of the Word Parole is from the French word 'Parole'. Parole is the early release of a prisoner
who agrees to abide by certain conditions. The term became associated during the Middle Ages with the
release of prisoners who gave their word. The temporary or permanent release of a prisoner before the
expiry of a sentence, on the promise of good behaviour. Parole is the release of a prisoner to supervision
in the community after he/she has completed a part of his/her sentence in an institution.

The Object of the Parole - There are three main objects of Parole -
(1) To enable the inmate to maintain continuity with his family life and deal with family matters;
(2) To save the inmates from the evil effects of continuous prison life;
(3) To enable the inmate to retain self-confidence and active interest in life.
(4) To enable the prisoner to develop constructive hope and active interest in life.
(5) It eradicates over burden of the jails.
(6) It is also economical to the state, the cost of expenditure of parolee also decreases.
In India, Indian Laws provide Parole only in cases of serious offenders who are committed to long term
sentences.
Furlough is for breaking the monotony of imprisonment and is granted as a good conduct remission.
Furlough is a brief release from the prison; it is conditional and is given in case of a long-term
imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by the
prisoner as is done in parole.
Following are the different types of Parole:
a) Regular Parole: All prisoners eligible for furlough shall be eligible for regular parole for the following
stated reasons:
1. Delivery of child by wife (except high security risk prisoners)
2. Serious illness of father/mother/spouse/ son/daughter
3. In case of natural calamities such as flood, house collapse, earthquake, fire etc.
4. To pursue the filing of special leave petition before supreme court against a judgment delivered by
High Court convicting or upholding the conviction, as the case may be.
b) Emergency Parole or Custody parole
All convicted persons except foreigners and those serving death sentences may be eligible for emergency
parole for 14 days for reasons like death of grandfather or grandmother/ father/mother/spouse/son/
daughter/ brother/sister and marriage of son/ daughter/ brother/sister, provided that no extension can
be granted to emergency parole. Emergency parole is granted by Superintendent of police for the reasons
of death of parental grandfather or grandmother/ father/ mother/spouse/son/ daughter/ brother/ sister
and by concerned Dy. I.G. for the reason of marriage of son/daughter/brother/ sister and the authority
approving emergency parole shall decide whether to grant parole under police escort or with a condition
to report daily to the local police station depending upon the crime committed by the prisoner and his
conduct during his stay. The expenses of police escort will be borne by the prisoner himself prior to his
release on parole.

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13. Juvenile Home/Observation home.

Answer:
Provisions for the observation home are made under section 47 of the Juvenile Justice (care & protection
of children) Act, 2015. The observation home means such a home where a child alleged to conflict with the
law, is kept temporarily during the pendency inquiry. The observation homes shall be established by the
state government in every district or a group of districts, either by itself or through voluntary or non-
governmental organizations.
The state government may register a registered institution as an observation home that is fit for the
temporary reception of the child. Registration of such an institution will be compulsory. (Rajendra Prasad
vs Union of India, A.I.R. 2016 N.O.C. 182 Kerala).
Section 47 under JJ Act 2015,- Observation Home
1. The State Government shall establish and maintain in every district or a group of districts, either
by itself or through voluntary or non-governmental organisations, observation homes, which shall
be registered under section 41 of this Act, for temporary reception, care and rehabilitation of any
child alleged to conflict with the law, during the pendency of any inquiry under this Act.
2. Where the State Government believes that any registered institution other than a home
established or maintained under sub-section (1), is fit for the temporary reception of such child
alleged to conflict with the law during the pendency of any inquiry under this Act, it may register
such institution as an observation home for this Act.
3. The State Government may, by rules made under this Act, provide for the management and
monitoring of observation homes, including the standards and various types of services to be
provided by them for rehabilitation and social integration of a child alleged to conflict with the law
and the circumstances under which, and how, the registration of an observation home may be
granted or withdrawn.
4. Every child alleged to conflict with the law who is not placed under the charge of parent or
guardian and is sent to an observation home shall be segregated according to the child’s age and
gender, after giving due consideration to physical and mental status of the child and degree of the
offence committed.
But after the Nirbhaya rape case, where one of the accused was a juvenile, a few months shorter than
18 years of age, sentence to 3 years in reformative home, which was not adequate with the heinous crime
done. This shocked the public over the Act, and debated for reduction of the juvenility age from 18 to 16.
So the legislature came with The Juvenile Justice (Care and Protection) Act, 2015, which included that any
child between the ages of 13 to 18 if committed any heinous crime, will be tried as an adult. Also the
recent Act have categorized the offences, petty offences (crime for which maximum punishment is up to 3
years), Serious offence (crime for which punishment is between 3 to 7 years), Heinous offence (crime for
which punishment is 7 years or more). And different procedures have been provided for categorization of
such offences.
In Satbir Singh & others v. State of Haryana, [AIR 2005 SC 3549] SC reiterated that for determining
whether accused is juvenile or not, the date of birth in school records shall be taken into consideration by
JJB.

14. Who is eligible for probation?

A. ‘X’ killed his wife by giving poison. He committed the crime or first time. Can he be released on
probation? (Jan-2019).
B. Rajesh possessed unlicensed gun was arrested by police, he belongs to a respected family. His crime
was proved and he requested for probation. Whether probation can be granted to Rajesh or not? (May-
2019).

Issue:
Case A: Is ‘X’ eligible for probation? No, he is not eligible as per Section 360 of CrPC and 302 of IPC.
Case B: Is Rajesh eligible for Probation?

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Rule:
*For defining Probation refer question number 12.
the probation was dealt with in Section 360 of the Code of Criminal Procedure. This Section says that if:
1. Any person who is not below twenty-one years and is convicted of a crime for which the
punishment is imprisonment for seven years or is convicted for an offence punishable with fine.
2. Or any person who is below twenty-one years or if any women convicted of an offence not
punishable with imprisonment of life or death and no previous conviction is proved against the offender.
3. And appears before the court, regardless of the circumstances in which he has committed the
offence, the court might release the offender on the promise of good conduct.
The court might release him on entering the bond for good conduct and peace instead of punishing the
offender with imprisonment. In the case of Jugal Kishore Prasad vs The State of Bihar, the Supreme Court
stated that the aim of the law is to deter the juvenile offenders from turning into obdurate criminals as a
result of their interaction with seasoned mature-age criminals in case the juvenile offenders are sentenced
to incarceration in jail. It is observed that the Act is in accordance with the present trend of penology,
which says that effect should be made with accordance to change and remould the offender and not to
retribute justice. Modern criminal jurisprudence recognises that no one is born criminal. A good number
of crimes are a result of a socio-economic environment.

Application:
For application of this section it is necessary that the offender must not have been convicted previously so
as to bring him in the category of the first offender. On fulfilment of the above conditions if the court by
which the offender is convicted considers it expedient that the offender should be released on probation
of good conduct, it may, instead of sentencing him at once to any punishment, order him to be released
on bond with or without sureties. The offender may be required to furnish a bond to appear and receive
sentence whenever called upon during such period not exceeding three years as the court may direct. The
offender shall be directed by the court to keep the peace and be of good behaviour if he is released on
probation under this section. No offender can, as of right, on fulfilling the conditions laid down in this
section, claim to be released on probation of good conduct. It is a discretionary power given under this
section to the court. The discretion has to be exercised by the court keeping in view not only that it is the
first conviction of the accused but the circumstances in which the crime was committed, the age, character
and antecedents of the offender.
Conclusion:
Case A: In this case ‘X’ is not eligible for probation.
Case B:

15. Arresting a Judge.

A. A judge was involved in a corruption case, it was confirmed by the preliminary enquiry and he was
arrested by the police. Whether, police have powers to arrest the judge. If not, how to arrest the judge?
Which court is having the power to arrest him? What will be the punishment? (Jan-2020).
B. A judge is involved in a murder case. Is a police officer has power to arrest? Discuss. (Jan-2019 & May-
2016).

Issue:

Rule:
Chapter V of Criminal Procedure Code, 1973 deals with ''Arrest of persons''. To know about guidelines to
be followed before arrest, it is essential to refer the ruling Joginder Kumar vs State of Utter Pradesh. To
know more as to guidelines during arrest, it is necessary to refer the decision D.K.Basu vs State of West
Bengal. Further, to know about guidelines after arrest, it is essential to refer the ruling Sunil Batra vs Delhi

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Administration, Prem Shankar Shukla vs Delhi Administration and D.K.Basu's case. A fortiori, it is also
necessary to see Article 20(3) of Indian Constitution, the provisions of Criminal Procedure Code, 1973
relating to arrest.
The Following guidelines are laid down by the Hon'ble Supreme Court in its judgment in Delhi Judicial
Service Association, Tis Hazari Court, Delhi vs State of Gujarat and others.
In this ruling, the Apex Court held that in view of' the paramount necessity of preserving the
independence of judiciary and at the same time ensuring that infractions of law are' properly investigated
the following guidelines are to be followed:
(a) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District
Judge or the High Court as the case may be.
(b) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate
judiciary, a technical or formal arrest may be affected.
(c) The fact of such arrest should be immediately communicated.to the District and Sessions Judge of the
concerned District and the Chief Justice of the High Court.
(d) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or
directions of the District & Sessions Judge of the concerned District, if available.
(e) Immediate facilities shall be provided to the Judicial Officer for communication with his family
members, legal advisors and Judicial Officers, including the District & Sessions Judge.
(f) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor
any medical test be conducted except in the presence of the Legal Advisor of the Judicial Officer
concerned or another Judicial Officer of equal or higher rank, if available.
(g) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered
or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person
resisting arrest may be over- powered and handcuffed. In such case, immediate report shall be made to
the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden
would be on the Police to establish the necessity for effecting physical arrest and handcuffing the Judicial
Officer and if it be established that the physical arrest and hand-cuffing of the Judicial Officer was
unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of
misconduct and would also be personally liable for compensation and/or damages as may be summarily
deter- mined by the High Court. It was further held that these guidelines are not exhaustive but are the
minimum safeguards to be observed in case of arrest of a Judicial Officer. These should be implemented
by the State Governments as well as by the High Courts. No judicial officer should visit a Police Station on
his own except in connection with his official and judicial duties and functions, and this also with prior
intimation to the District and Sessions Judge.
Application:
Delhi judicial services association v. the State of Gujarat
Facts of the case
In this case, the Chief Judicial Magistrate at Nadiad found no cooperation with the police in delivering the
summons or producing offenders and thus delaying the trials. The Chief Judicial Magistrate wrote a letter
to the DSP (District Superintendent of Police) and DGP (Director General of Police) stating the same,
however, no action was taken. The Police Inspector of Nadiad had withdrawn the constables from the
C.J.M Court after this incident and the C.J.M. directed the police to file a criminal case against persons
who were delaying the investigation, however, again no action was taken. The Police Inspector
complained about the C.J.M. to the Registrar of the High Court through DSP (District Superintendent of
Police). The C.J.M. was further called to the Police Station to check documents, however, the C.J.M. was
forced to drink liquor and pictures were clicked in that state. Further, the Police arrested, assaulted and
handcuffed the judicial officer. The case went to the Supreme Court and the issues were raised regarding
the arrest made by the Police Inspector.

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Judgment: The Supreme Court held that the arrest made by the Police Officer, in this case, was violative of
Article 136 of the Indian Constitution. This judgment is a landmark judgment and in this case, the court
provided with guidelines to arrest a judicial officer.

Conclusion:
In the given case the police can arrest a magistrate but they should follow the rules laid down by Supreme
Court in the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi vs State of Gujarat and others
which are mentioned above.

16. Prosecution of children.

A. Two boys aged 4 year and 5 years had broken open the locks of two shops for the purpose of
committing theft, while returning back they injured a person who died after one week. Whether both are
punishable or not? If so what is the punishment for both. (Jan-2020).
B. X and Y both 14 years and Z aged about 19 years tried under Section 302 of IPC for murder of constable.
They were tried by the session court and were acquitted. Is the trail proper? (Jan-2019).
C. A boy of 17 years of age, as on the date of commission of offence, escaped from detection. Later he
was caught by the police and produced before the Magistrate for trial. At the time of trial his age was 21
years. He was tried and convicted by the Criminal Court. Is it legal? Examine. (Jan-2018).
D. A boy aged 16 years 6 months was involved in a kidnapping and murder of a woman. Whether the boy
in punishable or not, if so by which court and what will be the punishment? (May-2016).

Issue:
 A child who has not completed age of 18 is called as juvenile and only Juvenile Justice Board is the
competent authority to deal such cases of juvenile.
 In case of a heinous offence alleged to have been committed by a child who has completed or
above the age of sixteen years should be prosecuted under the IPC and CrPC and not considered as
a juvenile.
Whether the accused is a juvenile or not? Answer: we should answer as per the above age limits.
Rule:
Juvenile Justice Act, 1986 defined a juvenile or child to be a person who in case of a boy has not completed
age of 16 years and in case of a girl 18 years of age. The JJA Act, 1986 was repealed by 2000 Act and the
distinction with regard to age between male and female juveniles has been done away with by the
Government of India in performance of its obligation to the international obligations. Now age of juvenile
in conflict with law for male and female has been fixed at 18 years. A juvenile in conflict with law under
the JJ (C & P) Act, 2000 is a juvenile who is alleged to have committed an offence and has not completed
18 years of age as on the date of commission of such offence. Recently under the new Juvenile justice act,
2015 In case of a heinous offence alleged to have been committed by a child, who has completed or is
above the age of sixteen years, the Juvenile Justice Board shall conduct a preliminary assessment with
regard to his mental and physical capacity to commit such offence, ability to understand the consequences
of the offence and the circumstances in which he allegedly committed the offence.
Salient features of JJA:
1. The Juvenile Justice Act was brought into place to deal with two kinds of juveniles or children. (a)
child in conflict with the law and (b) child in need of care and protection. As I mentioned before, a juvenile
or a child is a person who is below the age of 18. The age was brought up to 18 years from the previous 16
years by the amendment of the Act in the year 2000.
2. Child in conflict with the law as the name suggests is a child who has allegedly committed an
offence whereas a child in need of care and protection is a child who has been abandoned or is destitute.
3. The Act provides for rules and regulations to be followed and institutions to be instituted to try
and hear cases of children in conflict with the law.
4. a. The Act known as ‘The Reformatory Act’ deals with two categories of children, namely children
in need of care and protection and children in conflict with the law.

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b. The competent authority to deal with children in need of care and protection is the Child Welfare
Committee (CWC) which constitutes a Chairperson and four other members, one of whom at least should
be a woman. Chapter IV of this Module would focus in detail about Children in need of care and
protection and the functioning of the CWC in rehabilitation and disposition of cases
c. Juvenile Justice Board (JJB) is the competent authority to deal with children in conflict with law which
comprises of three members. The Chairperson of the Board should be a First Class Judicial Magistrate and
two honorary social workers out of whom at least one should be a woman. Special provisions for children
in conflict with law and the responsibilities of the Board are discussed in detail in Chapter III of this
Module.
5. The Act provides for the establishment of various kinds of Institutions such as
- Children’s Home for the reception of child in need of care and protection.
- Special Homes for the reception of child in conflict with law
- Observation Homes which are meant for the temporary reception of children during the pendency
of any inquiry.
- After-care Organizations which are meant for the purpose of taking care of children after they have
been discharged from Children’s Home or Special Homes.
Application:
The Nirbhaya Case - Led to the change in the Juvenile Justice Act
On 16th December, 2012, a brutal case of gang rape & murder shook the nation. A 23-year-old girl was
assaulted and raped in a bus. The criminals then threw her lifeless body onto the road.
There were 6 people involved, 5 adults and a juvenile, aged 17. The adults were sentenced to 10 years
in prison, while one of them was found dead in his jail cell during the course of the trial. The juvenile was
sent to correctional facility for 3 years.
But brutal acts in this case had shocked people beyond belief. There were protests to try him as an
adult. This subsequently led to the replacement of our Juvenile Justice Act, 2000. The age bar to be tried
as an adult was lowered from 18 to 16 years.
Conclusion:
Case A:
Case B: In this case ‘Z’ is aged 19 years and tried under Section 302 of IPC by the Sessions Court is correct
and X and Y both aged 14 years should be tried by Juvenile Justice Board.
Case C: For the purpose of ascertaining whether the accused is a juvenile or not, we should consider the
age at the time of commission of the offence, he was 17 years old at that time and JJB is the competent
authority.
Case D: As per the Juvenile Justice Act the age should be below 18 years to be tried under this Act, this
case is a fit case to be tried by JJB,

17. Jurisdiction of Courts:

A. There was a conspiracy between four persons to commit robbery. One was in Delhi, one in
Hyderabad, one in Madras and the other in Utter Pradesh. All the four sent their representatives to
commit robbery in a jewel shop. All the four successfully completed their job. Now which court is
having jurisdiction to frame a charge against all the culprits. (May-2019)
B. A group of persons with malicious intention kidnapped a girl in Warangal and brought to Hyderabad
and further they committed rape followed by murder. State which court is having jurisdiction to try
the case and what will be the punishment? (May-2019).
C. X and Y committed murder of their own daughter for loving a boy who was not equal to their status.
They misled the court and police by concealing facts. What court has jurisdiction? (Jan-2015).
D. In a case of defamation of high dignitary which court shall have the power to try and what will be the
punishment? (Jan-2015).

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Q1. Explain constitution & functions & powers of various criminal courts specified in CrPc.

Ans. There are separate civil courts & separate criminal courts, there is difference in civil &
criminal court, High court & supreme court are appellate courts & not trial courts,
following are various criminal courts & there powers specified from sections 6 to 35 of
CrPc.

1. Court of sessions (or) Session Court:- This is big court for trail of criminal cases,
judges is called as metropolitan session judge. This judge can give any punishment
including death sentence, in case of death sentence confirmation of high court is
necessary.
2. Associate session judge (or) Additional session judge:- This can be more no.
of posts of additional session judges, this have equal powers of session judge but he is
sub ordinate in rank, work is allotted by session judge, appeal from these court is
allowed to high court.
3. Assistant session judge:- This judge is sub ordinate to above courts in city, he is
called as Metropolitan assistant session judge. Appeal from these judge is allowed to
session court, these judge can give maximum 10years imprisonment.
4. Chief judicial magistrate:- In city these judge is called as Chief metropolitan
magistrate (CMM), he can give punishment upto 7years imprisonment, appeal from
these court is allowed to assistant session judge.
5. First class magistrate (or) Metropolitan magistrate:- First class magistrate in city
is called as Metropolitan magistrate (MM), every magistrate have jurisdiction of one or
two police stations, he can give punishment upto 3years imprisonment & fine upto 5000/-
Rs. He deals with all bail matters, appeal from these magistrate is allowed to CJM (or)
CMM.
6. Executive magistrate:- Collector is caked as Executive magistrate, he has
executive & judicial powers he can decide cases of law & order & vigilance case, he has
power to give punishment upto 1year imprisonment & fine upto 2lakhs rupees. These
remedy is given in particular district.
7. Public Prosecutor:- Public prosecutor is appointed in every court by government, he
represent cases on behalf of police & state in criminal court. There are one (or) more
Assistant public prosecutor (APP) to assisting.
These is machinery of criminal courts & there powers specified in CrPc.

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Q2. Explain powers of authorities to arrest without warrant & subsequent procedure of arrest
search & seizure.

Ans. police authorities have powers to arrest a person by obtaining warrant from the court,
there are 11 types of offences in which police have powers to arrest without warrant.
Procedure have to be followed even after arrest, these details has been given from the
sections 41 to 60, which includes following points.

Arrest without warrant section 41 to 42:-

1. In all cognizable offences in which punishment is 3years (or) more periods.

2. When anybody is trying to make house breaking (or) criminal trespass in the property.
3. When anybody is having position of stolen property.
4. When anybody have position of nercotics.
5. When anybody have position of weapons without license.
6. When anybody absconded from defence force without completion of required service.
7. When anybody is making an attempt of kidnapping (or) abduction.
8. When anybody committed crime in foreign country & came to India, police can arrest
such person & make extradition to respective country.
9. When anybody absconded from police custody (or) prison then he can be arrested.
10. When persons are disturbing public peace by making unlawful assembly, rioting &
disturbance of traffic.
11. When anybody is using explosive in busy area (or) locality.

Arrest by private persons:- There is power of any private person under section 43 to
arrest any person who is making an attempt to commit the crime, such arrested person
should be detained till police comes (or) he should be taken to police station & handover
him to authorities.

Arrest by magistrate section 44 – 45:- If magistrate have seen the crime (or) have
knowledge about the crime then he can order police to arrest such person, magistrate
have power to initiate criminal case voluntarily called as SUO-MOTO case.

Procedure after arrest:- Following steps are taken at the time of arrest (or) after the
arrest.
1. Police officer have power to use reasonable force at the time of arrest, such as to use
handcuff to tie hands to drag by color.
2. Female can be arrested by lady police officer, if there is no lady officer then male can
also arrest with dignity & decorum.
3. When arrested person is brought to police station, then entries have to be done in crime
register which includes serial no, date & time of arrest, name of accused & other details,
sections under which arrest have been done.
4. If any injury caused to arrested person then he should be taken to hospital for treatment
he can be taken to police station when medical officer makes discharge.

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5. Officer of any other police station can also arrest but he should be handover to
respective police station without delay.
6. Checking of arrested person to be done before superior police officer list to be prepare &
these are kept in police station & given at the time of release from custody.
7. If weapon found in position then it should be produced in court of magistrate.
8. Arrested person to be produced before magistrate for remand within 24hours of arrest
excluding hours of journey, if it is holiday then he should be taken to residence of
magistrate who can give standing instructions. If journey requires more periods then
other magistrate can give transit remand.
9. When magistrate give remand then police can keep in custody & produce after expiry of
remnand.
10. Magistrate can extend periods of remand (or) grant the bail.

These is details about arrest of person without warrant & further procedure to be
followed after arrest in CrPc.

Q10. Revision (section 405).

Ans. Appeal is allowed when there is judgment but revision is allowed against order of sub
ordinate court to superior court having jurisdiction. Revision includes following points.

1. Revision to be done within 30days limitation period from the date of order of the court
(or) receiving copy of order of the court.
2. Copy of order to be enclosed with revision petition.
3. Court makes hearing of both the sides.
4. Superior court have powers to confirm, alter, set a side order of sub ordinate court.
Ex:- sub ordinate court rejected bail then in revision petition superior court can grant the
bail.

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Q3. What is the procedure to be followed relating to trail of criminal cases in the court.

Ans. Trial of criminal cases is done according to procedure, these procedure has been given
from sections 237 to 250 of CrPc. It includes following points.

1. Filing of chargesheet:- Investigation officer (IO) have to file charge sheet in the
court, copy of charge sheet have to be given every accused under acknowledgement,
trial judge have to ensure that all accused person received copy of charge sheet.
2. Summon:- When accused is on bail then summon is issued to appear in court on
particular date & time, if summons is not obliged then court can issue warrant & order
the police to arrest him & produce in the court. If accused is ion custody of police (or) in
jail then trail judge order public prosecutor to produce him on particular date & time.
3. Opening of trail:- Opening of trial is done by public prosecutor, he reads material
facts relating to crime & explain to accused in language known to him.
4. Plea of accused:- Trial judge may question accused wither he has committed crime
(or) not. If accused make confession & judge is satisfied then trial is not necessary &
date is fixed for judgment. When there is a denial then date is fixed to conduct trail.
5. Trail in presence of accused:- Trail of criminal case is done in presence of
accused person unless it is content by trail judge.
6. Prosecution witnesses:- Public prosecutor produce the witnesses to proof the
charges & they are called as PW1, PW2, PW3, etc, chief examination is conducted by
public prosecutor & cross examination is done by defense lawyer, after completion of all
witnesses he file process form that side is complete.
7. Defense witnesses:- After completion of prosecution side court give direction to
defense lawyer to produce his witnesses to disprove the charges, they are called as
DW1, DW2, DW3, etc, chief examination is conducted by defense lawyer & cross
examination is conducted by public prosecutor.
8. Argument:- There is argument of public prosecutor & defense lawyer in argument
both sides can bring contradiction & omission to notice of judge, there is also
interpretation of relevant sections, both sides can show precedent of supreme court (or)
high court in support of there case.
9. Judgment:- After argument of both sides judge may fix date of judgment, judgment is
in writing & at the end of judgment there is order, in order there is conviction (or)
acquittal for every criminal charges & whither punishment is rigorous (or) simple. There
is also penalty if penalty is not paid then further period of conviction is mentioned, there
is a sentence that all punishments shall run concurrently.
10. Reading:- When there is conviction then judge may take opinion of accused whither
court should be lenient (or) not. It is recommendatory & not mandatory for judge. Judge
may read only order & put his signature on every page there is initial of judge.

These is details about trial of criminal case in the court.

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Q4. Define bail & explain kinds of bail. What are the grounds to grant (or) reject the bail
specified in the CrPc.

Ans. Bail means order of the court to release the person from custody according to justice
Krishna Iyer purpose of criminal justice is bail & not jail, if bail is rejected & accused is
proved as innocent then nobody can return his time taken in custody & it cannot be
compensated. Bail is discretion of the judge but it is judicial discretion & not personal
discretion. Judge have to record the reason for granting (or) rejecting the bail.

Kinds of Bail:- There are two kinds of bail.

1. Ordinary Bail (Section 436):- These bail is granted after arrest of the person, bail
petition have to be filed by defense lawyer. Court makes hearing of public prosecutor &
defense lawyer & either grant the bail (or) reject it by recording reason. If remand is
given then expiry of remand period again accused is produced in the court. Bail petition
can be filed any no. of times when accused is produced in the court, if bail is granted
then prosecutor can filed revision petition in superior court for cancellation of the bail. If
bail is rejected then defense lawyer can file revision petition to grant the bail, superior
court may grant the bail, superior court may grant (or) reject the bail. Magistrate can
imposed reasonable conditions at the time of granting the bail, such as to surrender the
passport, not to leave head quarters without permission of judge to give attendance in
police station daily (or) periodically to give surety for particular amount. If condition is
violated then magistrate can cancel the bail & issue warrant to arrest accused &
produced in the court.
2. Anticipatory Bail (Section 438):- These bail is granted by session court (or) superior
court before arrest. When there is possibility of arrest then anticipatory bail may be
granted. These bail is generally granted to respectable person having no criminal record
(or) first time offender (or) urgency of the bail. These bail is also granted by hearing
defense lawyer & prosecutor.

Distinction between Ordinary Bail & Anticipatory Bail:-

Ordinary Bail Anticipatory Bail
1. These bail is granted after arrest 1. These bail is granted before arrest.
2. These bail is granted by magistrate 2 These bail is granted by session
(or) superior court. (or) superior court
3. These bail may be granted to any 3.These bail may be granted to
accused. respectable person having no criminal
records (or) urgency matter.
4. Ordinary bail is generally granted in 4.It is granted in any offences.
bail able offences

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Conditions to grant remedy of bail:-

1. Conditions imposed by judge have to be complied.
2. When there is no threat to security of accused.
3. It should be brought to notice of the court that accused will not pressurized the
witnesses.
4. Accused will not abscond if released on bail.
5. He may not commit additional crimes.
6. He will be available for interrogation & investigator of police.
7. When investigation is complete & police have file charge sheet.

These is details about bail, kinds of bail, distinction & conditions to grant (or)
reject the bail from sections 436 – 450 of CrPc.

Q7. Appeal (section 372 – 394).

Ans. When sub ordinate court delivered judgment then appeal is allowed to superior court
having jurisdiction. It includes following points.

1. Appeal from magistrate is allowed to chief judicial magistrate & appeal from chief judicial
magistrate is allowed to assistant session judge & after that to session judge & lastly to
high court.
2. When there is convection then appeal can be done by advocate of accused & when
there is acquittal then appeal can be done by public prosecutor.
3. When convection is for less term than also prosecutor can file an appeal.
4. Appeal to be done within 3months limitation period from the date of judgment (or)
receiving copy of judgment.
5. Appeal is decided on basis of argument \s of both the sides.
6. Appellate court have powers to confirm, alter, set a side, judgment of sub ordinate court.

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Q5. Briefly explain provisions relating to inquires & trails specified in CrpC.

Ans. Inquiry & investigation is done by police & trail is done by judge. Following are the
powers of police & trail judge specified from sections272 – 300 of CrPc.

1. Appointment of commission:- When any witness is patient on bed & unable to

attend the court, the trail court may appoint commission to go to his house & record
statement & submit in the court.
2. Expert Evidence:- In many criminal cases trail judge have to take expert evidence &
decide the case such as medical expert, hand writing expert, finger print expert,
chemical analyzer.
3. Spot inspection:- When judge is not getting clarity by reading charge sheet then he
can go to spot of crime under police protection & collect information.
4. Confession under promise of secrecy:- When there are more no. of accused
persons then police can record confession of an accused under promise of secrecy. It is
disclosed at the time of trail.
5. Legal Aid to accused:- When any accused is poor person & unable to engage
advocate then services of advocate are provided at the cost of the state.
6. Crime of legal person:- When criminal case is against company, corporation,
institution then legal person cannot be convicted. Imprisonment can be given to person
who have committed crime.
7. Rule of double jeo pardy:- There should not be trail (or) punishment for more then
one time for same offence in same court.
8. Trail in presence of accused:- There is a trail of accused person in there
presence, court can condend attendance of accused on reasonable ground.
9. Camera court:- When there is possibility of indecent questions (or) insulting
questions then judge may provide camera court. In these court accused, victim,
prosecutor & fefense lawyer are allowed & others are prohibited. It is generally provided
in Rape, Impotency & outrage modesty cases.

These is details about inquries & trail in CrPc.

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Q6. Define FIR & charge sheet & its contents & provisions specified in CrPc.

Ans. FIR means First information report, when anybody have committed crime (or) likely to
commit crime then FIR can be given in police station having jurisdiction. FIR can be
given by relevant party (or) his family member (or) person having information about the
crime, details of FIR is from sections 154 – 176 of CrPc. It includes following points.

1. FIR can be given in writing, if person is illiterate then he can give FIR orally & officer on
duty takes it into writing & obtain his signature (or) thumb impression, person who gives
FIR is called as Reporter (or) complainant.
2. FIR can be given by phone by disclosing the name (or) without disclosing the name,
when anybody have information about crime.
3. Purpose of FIR is to do investigation relating to crime.
4. FIR to be given without causing unreasonable delay, if delay is caused then reason to be
mentioned for it.
5. In FIR all material facts of the incident to be specified.
6. If some points are missing then officer on duty to make inqury & record these facts on
separate paper & enclosed with FIR.
7. If complaint knows persons who committed crime (or) there is doubt (or) suspicion then it
can be mentioned in FIR.
8. When there is possibility of committing the crime then also FIR can be given so that
police can prevent the crime.
9. When anybody makes attempt who commit crime then also FIR can be given in police
station.
10. When there is additional information relating to criminal act, then supplement can be
given which is enclosed with FIR.
11. If FIR is given in police station having no jurisdiction then relevant police station have to
forward it in police station having jurisdiction.
12. When FIR is given then officer on duty have to make entries in crime register such as
serial no, name other details of complainant, date & time of report, sections under which
FIR is registered.
13. Complainant can withdrawn his FIR in petty offences having less than 2years
imprisonment by personal appearance in police station giving withdrawn application.
14. Information of FIR is given to magistrate.
15. Copy of FIR is given to complainant same day (or) some other day free of cost.
16. When FIR is given then superior officer makes endorsement by name of sub ordinate
officer to do investigation.

Charge sheet Section 211 – 224:- When FIR is given then investigation officer have to
prepare charge sheet within 6months period. These period can be exceeding 2years &
after that file is closed. File can be reopen by permission of superior officer (or) the court,
charge sheet contains following points.
1. There is copy of FIR.
2. There is copy of panchnama (or) spot investigation report of investigation officer.
3. There are statements of all the witnesses enclosed with charge sheet.

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4. Material found at the place is sealed & produced in the court at the time of trail & there is
report of all these articles.
5. Report of expert is aslo9 enclosed with charge sheet.
6. There is final report of investigation officer with his signature.
Charge sheet is file in the court & copy is given to all accused person then trail
begins in court.

Distinction between FIR Charge sheet

FIR Charge sheet

It is preliminary report It is final report
It is prepared by victim of crime It is prepared by investigation officer
It is file in police station It is file in court
It is having purpose of investigation It is having purpose of trail
It can be with draw in petty offences It cannot be with draw

These is details about contents of FIR, charge sheet & distinction between it.

Q3. Compoundable & non compoundable offences.

Ans. Compoundable offence means petty offence having less than 2years imprisonment,
compoundable offence can be withdrawn by the complainant at any time before
judgment such as cruelty against married woman case under section 498A, cheque
bouncing case under section 138 of negotiable instrument act.

Non compoundable offence are serious offence having more than 2years
imprisonment. Non compoundable offence cannot be withdrawn when charge sheet is
filed & trail begins. Court have to deliver judgment in non compoundable offence.
Complainant have to appear in court & file petition to withdrawn the case & court may
grant permission if it is compoundable offence. In non compoundable offence court will
not grant permission to withdraw the case.

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Q7. Explain silent features of probation of offenders act 1958 & distinguish between
probation & Parole.

Ans. probation of offender was passed in 1958, meaning of probation is to test the person
when any accused is 21years (or) less & there is first time charge of offence then police
can file charge sheet as a probation offender, such law is in force is USA, England,
Japan & European countries. India have adopted it & made legislation by parliament in
1958.

Objects (or) purpose of probation offenders:-

1. It is applicable to young person having 21years (or) less age & there is a big features
before him.
2. Court have to show leniency to probation offender.
3. Purpose of these provision is rehabilitation of probation offender.
4. Police (or) investigation authority mention in charge sheet as probation offender.

Procedure of trail:-
1. Police make investigation & mention in charge sheet that accused is probation offender.
2. There should not be any criminal record of offender.
3. There is leniency in trail of probation offender.
4. Trail judge may try to understand back ground of the family.
5. Judge may show leniency & do counseling.
6. If accused have committed petty crime then judge may give warning (or) imposed
penalty.
7. When trail is complete then judge may try to give less (or) minimum punishment.

Therefore purpose of probation offender is rehabilitation.

Parole:- Parole means to release a person who is undergoing imprisonment

purpose of parole is to develop affection of convict with family & society person who is
released on parole is called as Parole.

Procedure of parole:-

1. An application have to be given to jailor to release applicant on parole.

2. Reason is given in application to release on parole.
3. Jailor forward application to parole board who have monthly meeting, in parole board
there is one retired judge, police officer, jail officer & social worker are members,
4. Parole board may consider the application & decide the period to release on parole.
5. If there is no proper ground then application of parole may be rejected.
6. Parole board can imposed condition to release on parole such as not to leave head
quarter without permission, to give attendance daily (or) periodically in police station
having jurisdiction.
7. When parole period is complete then parolee have to surrender in poloce station (or)
prison without delay.

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8. If there is reasonable grounds then application can be forwarded to extend period of

parole & parole board can consider it.
9. If conditions is violated then parole is cancelled & warrant is issued to arrest him.
10. Period of release on parole can be added in convection period.
11. Parole is discretion & it can be given any no. of times by parole board.

Distinguish between probation & parole:

Probation Parole
It is applicable to first time offender It is applicable to prisoner undergoing
imprisonment.
There is age limit of 21years (or) less age. There is no age limit.
It has object of rehabilitation It has object to develop affection with
family & society.
It is used at the time of trail. It is applicable when parole board consider
it.

These is details about probation & parole its provisions, distinction & probation of
offenders Act 1958.

Q11. Review (section 395).

Ans. Review means to reconsider when trail court have committed any error then it is
rectified in review petition. There is no need to file an appeal, it includes following points.

1. It is filed in same court where trail is conducted.

2. It has to be file within 1month period from the date of judgment (or) receiving copy of
judgment.
3. Error to be highlighted in review petition.
4. Court makes hearing of both sides.
5. If there is error then it is rectified & revised copy of judgment is issued.
Ex:- Trail judge have mention acquittal in place of convection & convection is place of
acquittal. These error can be rectified in review petition.

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Q8. Who is juvenile offender? Explain procedure of trail of juvenile offender & various
authorities for rehabilitation of juvenile offender.

Ans. juvenile offender means children who commit the crime, male children under 16years
age & female children under 18years age are called as JUVELINE OFFENDER. In many
countries such as Japan, Turkey, United Kingdom, USA & European countries there are
separate laws to deal with juvenile, in India juvenile offenders act was passed in 1960 &
it was amended to make more effective in 2000. Therefore it is called as juvenile
offender act 2000. In cpc also there is provision under section 82 that children under
7years age are not liable for any crime because they have no maturity to understand
nature & consequence of the act. Purpose of these act is to correct the children & make
rehabilitation so that they can change their path of criminal act & lead better life as
responsible citizen, if there is no rehabilitation then they may create danger to society.

Reasons (or) causes of juvenile offenders:-

1. When children come in contact with young criminals then they may commit crime in bad
company.
2. Orphan children having no affection of family & control commit crime.
3. Illiterate children also commit more crimes.
4. There is moral degradation of values in education system.
5. When necessity of children is not fulfill.
6. Poverty is also reason of committing crimes.
7. There is indusbilisation & offenders get opportunity to commit the crime.
8. When children may not get proper atmosphere in family.
9. Children commit crime to earn easy money & lead luxuries life.
10. There is adverse effect of media on mind of children & they indulge in committing crime.

Trail of juvenile offenders:-

1. There is separate court for trail of juvenile offenders called as juvenile court.
2. Juvenile offender are produced for trail before juvenile court.
3. In charge sheet police mention family back ground of juvenile offender.
4. Lady judge are preferred in juvenile court because they have knowledge to deal with
children.
5. There is counseling of juvenile offender.
6. There is leniency in giving punishment such as for petty crime either warning (or)
penalty.
7. When juvenile offender commit serious crime then they are given punishment & send to
reform school (or) Borstal school (or) Rescue homes, where some skills is thought so
that they can earn lively hood,

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Authorities for rehabilitation of juvenile offender:- There are four authorities for
rehabilitation of juvenile offender.
1. Supervisory unit:- There are some police authorities who are given work to make
supervision of juvenile offender & prepare report periodically & submit to court.
2. Co ordinate cell:- In these cell there are social welfare officers & jails
superintendent, who attend borstol schools & make contact with juvenile offender
prepare report about progress in behavior.
3. Counseling service:- In these wing there are medical experts such as
physiologist, phychiartists who examine juvenile offender & provide them proper
treatment when there is defective mental condition.
4. Research wing:- In these wing there are academician who study about reason of
juvenile offender & necessary steps to be taken to control it. These report is submitted to
respective government so that government can take necessary major to minimize crime.

These are details about reasons of juvenile offender & procedure of trail &
authorities for rehabilitations of juvenile offender.

Q16. Maintenance (Section 125 – 128).

Ans. Maintenance can also be claimed under section 125 of CrPc. These maintenance does
not exceed 3,000/- Rs per month, it includes following points.

1. Maintenance case is file in court of magistrate.

2. Judge makes hearing of both sides.
3. Maintenance is fixed depend on income of other party.
4. If income is reduced then maintenance also reduced in proportion.
5. When default is done to pay maintenance then for first time court may give punishment
upto 6month imprisonment & default is done second time then punishment may be given
upto 2years imprisonment.

Therefore maintenance in CrpC is depend on income of poor people in society

Q6. Rights of arrest person.

Ans. following are the rights of arrested person specified in CrPc.

1. There is right of arrested person to know about reason of arrest.

2. Right of arrested person to inform to family members.
3. Right of accused to meet his advocate in police station & give relevant information.
4. Right of arrested person to get the copy of FIR (or) complaint.
5. Right of arrested person to get the food.
6. Right of arrested person to get medical treatment whenever it is necessary.

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Q4. Summons case & warrant case.

Ans. summons case means petty offence having less than 2years imprisonment & warrant
case means offence having more than 2yars imprisonment. Following are points of
difference between summon case & warrant case specified under sections 2(W) & 2(X)
of CrPc.

Summon case Warrant case

Summon case is compoundable Warrant case is non compoundable
Summon may be issue & if it is not Court can issue warrant directly.
complied then court may issue warrant.
In summon case there is report of police In warrant case there is charge sheet of
which is brief police.
In summon case court can conduct In warrant case there is no summary trail.
summary trail.
In summon case court may believe In warrant case court may not believe
confession & deliver judgment. confession unless judge is satisfy.

Q12. Judgment (section 353 – 365)

Ans. Court deliver judgment in criminal cases which contents following points.

1. There is name of the court at the top of the judgment.

2. There is CC no & the year.
3. There is name of the complainant which is respective police station which have done in
investigation & file charge sheet.
4. There is Name, father name, age, occupation, address of accused, if there are more no
of accused persons then similar details to be written for all the accused person.
5. There are details about brief facts of criminal case.
6. There are relevant sections under which trail is conducted.
7. There are details about version of prosecution & statement of prosecution witnesses.
8. There are details about version of defense lawyer & statement of his witnesses.
9. Points raised by public prosecutor & defense lawyer at the time of argument.
10. Case laws shown by both side’s parties &its applicability in the case.
11. There is observation & finding of the judge.
12. There is final order in which punishment (or) acquittal for every section & if there is
penalty then punishment in default of penalty & there is a sentence that all punishment
will shall run concurrently.
13. On the date of judgment judge may read final order & put his signature & on every page
there is initial of judge.

Q5. Summary trail (section 260 – 265).

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Ans. In summary trail court dispose petty criminal cases speedily, following are the point
relating to summary trail.

1. There is no charge sheet & police file brief report relating to accused such as name,
father name, occupation, address, date & time & place of committing crime, sections of
IPC which are applicable & signature of police officer.
2. Bail is granted in summary trail by police authorities.
3. Court issue summons to all accused to appear on particular date & time.
4. If there is confession then there is no trail & court may fix date of punishment.
5. There is no hearing of all accused persons.
6. There is speedy disposal in summary trail.
7. In summary trail convection period should not be more than 6months (or) fine.
8. If fine is rupees 200/- (or) less than appeal is not allowed.

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Law of Evidence
Short Questions:

1) Definition of Document.
2) Digital Signature
3) Test Identification Parade
4) Doctrine of Res gestae
5) Judicial Notice
6) Extra Judicial notice
7) Hostile witness
8) Accompliance
9) Experts Opinion
10) Conclusive proof
11) Leading question
12) Test Identification Parade
13) Patent ambiguity
14) Hearsay Evidence

Long Questions:

1) When Facts not otherwise relevant becomes relevant?

2) Dying declaration. Examine the evidentiary value of dying declarations.
3) Discuss the conditions for the relevancy and admissibility of dying declaration.
4) Define Admission. Discuss the relevancy of admissions.
5) What are the various modes of examination of witness?
6) Who is an Expert? When are opinions of expert relevant?
7) What is secondary evidence? Under what circumstances secondary evidence is admissible
8) Explain the nature, scope and purpose of cross examination of witnesses.
9) What are Privilege communications?
10) Discuss the general rule relating to burden of proof.

Short Answers:

1) Definition of Document:

ANS:-

Definition:
Section 3 of Indian Evidence Act, 1872 defines Document as, “Document” means any matter expressed
or described upon any substance by means of letters, figures or marks, or by more than one of those
means, intended to be used, or which may be used, for the purpose of recording that matter.
The document can be defined as," a piece of written, printed or electronic matter that provides
information or evidence or that serves as an official record.

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Types of Documents:
Documents are divided into two categories Private Documents and Public Documents.

Public Documents:
According to Section 74 of Indian Evidence Act, 1872 the Following Documents are Public Documents:

(1) Documents forming the acts, or records of the acts—

I. of the sovereign authority,
II. of official bodies and tribunals, and
III. Public officers, legislative, judicial and executive, of any part of India or of the Commonwealth,
or of a foreign country.

(2) Public records kept in any State of private documents."

Private Documents:
As per Section 75 of Evidence Act, "all other documents other than those, enlisted in Section 74 of the
Evidence Act are Private Documents."

2) Digital Signature:

ANS:

Section 47A, says when the court has to form an opinion as to the digital signature or any person, the
opinion of the certifying authority which has issued the Digital Signature Certificate is a relevant fact. It
means while drawing the conclusion, court gives the weight of the digital signature as a relevant fact.

Section 3 of the Information Technology Act, 2000 makes digital signatures legal in India. It states that
provides that electronic records can be authenticated by digital signatures that use an asymmetric
crypto system and hash function for authentication. Section 5 assigns legal recognition to digital or
electronic signatures laying down that all electronic documents affixed by a digital signature are
authentic.

Digital Signature has also been admitted as electronic evidence in courts. Section 67A of the Indian
Evidence Act says that if a digital signature of any subscriber is claimed to have been attached to an
electronic record, the fact that such digital signature is the digital signature of the subscriber must be
demonstrated.

Punishment:
Any person who makes misrepresentation, or suppresses any material fact when obtaining a Digital
Signature Certificate can be punished with imprisonment for up to 2 years, with fine of Rs. 1 lakh, or
both. Similarly, any person who knowingly creates publishes or otherwise makes a Digital Signature
Certificate available for any fraudulent or unlawful purpose can be punished with imprisonment for up
to 2 years, with fine of Rs. 1 lakh, or both.

3) Test Identification Parade:

ANS:

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Section 9 of the Indian Evidence Act, 1872

Definition:

Test Identification Parade (TIP) is used in police investigation is 'test identification' i.e. a process by
which the identity of persons, things or animals concerned in the offence under investigation or trial is
established through a test parade.

In all criminal trials, the two most intrinsic points of determination are the following: whether the
alleged offence was committed, and, if so, who committed the offence. One of the ways employed to
establish the identity of a person as the doer of a particular act is by way of identification parades.
Evidence by way of identification parades is taken under Section 9 of the Indian Evidence Act, 1872. The
purpose of identification parade is to test the veracity/trustworthiness of the evidence of the witness.
The object of conducting a Test Identification Parade (hereinafter referred to as the “TIP”) is, firstly, to
satisfy the investigating authority, before remitting the case to the court for trial, that the person
arrested, who was not previously known to the witness, was in fact one of those who committed the
crime; and secondly, to satisfy the court that the accused arrested is in fact the culprit.

TIP is a part of the investigatory process under Section 162 of the Criminal Procedure Code, 1973. TIP
has been in common use for a very long time; the object is to place the suspect of crime in a line with
other individuals for identification. The purpose is to find out whether or not the suspect/accused is the
perpetrator of the crime. This is all the more essential where the name and details of the accused,
although, are not known to the eyewitnesses of the incident, but, still by recalling the scene of crime
and the physical features (face, eyes, complexion, height and/or physique) of the accused/suspect the
eyewitnesses are able to identify the accused/suspect. The rationale of TIP is to confirm the identity of
the accused and to help the police in their investigation.

Case Law:

Further, in the case of, Rabinder Kumar Pal v. Republic of India, the Hon’ble Supreme Court of India held
that, photo identification of accused and TIP are only aides to the investigation conducted by the
investigating officer (‘I.O.’ for short) and these do not form substantive evidences. Substantive evidence
is the evidence in the court of law on oath. The logic behind TIP, which includes photo-identification, lies
in the fact that it is only an aid to the investigation, where an accused is not known to the witnesses; the
I.O. conducts TIP to ensure that he has caught hold of the right person as the accused.

4) Doctrine of Res gestae:

ANS:

Section 6 of the Indian Evidence Act, 1872

Halsbury defines 'Res gaste' as "Facts which form part of the res gestae and are consequently provable
as facts relevant to the issue ; include acts , declarations and incidents which themselves constitute or
accompany and explain the facts or transaction in issue.

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Circumstantial facts are declared relevant and admitted in evidence, though such acts are not in issue, if
they are so connected with the fact in issue as to form part of the same transaction, whether they occur
at the same time and place or at different times and places.

Case Law:

In a case decided by the Supreme Court, the talk between the accused and the police decoy was tape-
recorded and sought to be used in evidence in a prosecution for bribery. The defence objected to its use
as being a statement to the police. Rejecting the argument, the Supreme Court held that the dialogue
formed part of the res gestae and was, therefore, relevant and admissible under S. 6 of the Act.

However, the Court also cautioned that as magnetic tapes are capable of erasure and re-use, the Court
must also be satisfied that the tape had not been tampered with. (Yusufalli v. State of Maharashtra,
A.I.R. 1968 S. C. 147)

5) Judicial Notice:

ANS:

Definition: Section 57 of the Indian Evidence Act, 1872

A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of
a particular fact commonly known by persons of average intelligence without establishing its existence
by admitting evidence in a civil or criminal action.

The authority of a judge to accept as facts certain matters which are of common knowledge from
sources which guarantee accuracy or are a matter of official record, without the need for evidence
establishing the fact. Examples of matters given judicial notice are public and court records, tides, times
of sunset and sunrise, government rain fall and temperature records, known historic events, or the fact
that ice melts in the sun.

When a court takes judicial notice of a certain fact, it obviates the need for parties to prove the fact in
court. Ordinarily, facts that relate to a case must be presented to the judge or jury through testimony or
tangible evidence. However, if each fact in a case had to be proved through such presentation, the
simplest case would take weeks to complete. To avoid burdening the judicial system, all legislatures
have approved court rules that allow a court to recognize facts that constitute common knowledge
without requiring proof from the parties.

Conclusion:
Under rule 201 a trial court must take judicial notice of a well-known fact at the request of one of the
parties, if the court is provided with information supporting the fact. A court also has the option to take
judicial notice at its discretion, without a request from a party.

6) Extrajudicial Notice:

ANS:

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An extrajudicial statement is an out-of-court utterance, either written or oral. When offered into court
as evidence, it is subject to the Hearsay rule and its exceptions.

An extrajudicial oath is one that is not taken during judicial proceedings but taken formally before a
proper officer or magistrate, such as a Notary Public.

7) Hostile Witness:

ANS:

Definition: Section 154 of Indian Evidence Act

A witness who is antagonistic to the party calling them and, being unwilling to tell the truth, may have to
be asked leading questions.

Nowhere hostile term is used nor is described in respect of hostility. Hostile means adverse, unfavorable
or alien. These words have been borrowed from the British Law. In a criminal trial when a prosecution
witness is summoned to produce evidence he appears before the court but does not confirm his
previous evidence / statement recorded or collected by the investigative agency. He is called adverse
witness or a hostile witness.

Case Law:

The Famous Jessica Lal Murder Case and Others

It seemed at first sight an open and shut case. A model who worked as a celebrity barmaid is shot dead
at point-blank range after refusing to serve a drink to two young men in a crowded South Delhi watering
hole. The man accused of killing her — Manu Sharma, the son of a former Union Minister — flees the
scene and absconds for an entire week before surrendering to the Delhi police. The Jessica Lal murder
case, in which a session’s court acquitted all nine accused on the ground of insufficient evidence, is an
instance of gross miscarriage of justice and raises serious questions about the criminal justice system.
The collapse of the case is the result of two main causes. First, there were a couple of glaring holes in
the prosecution's case. Two bullets were fired, one in the air, on that fateful night and the Delhi police
maintained that they both came from the same gun; however, a forensic report showed they were fired
from different weapons. Moreover, the gun used to shoot Jessica Lal was not recovered, a failure that
suggests a lack of diligence with which the case was investigated. However, what really sunk the case
was a phenomenon that has become disturbingly familiar in high-profile cases — that of key witnesses
turning hostile.

8) Accomplice:

ANS:

Section 133 of the Indian Evidence Act, 1872

The word “accomplice” has nowhere been defined in the Evidence Act. An accomplice means “a guilty
associate” or a partner in crime.” An accomplice is a person who is connected with another or others in
the commission of crime. He is a person who participates in the commission of the crime. Where the
witness sustains such relations to the criminal act that he would be jointly indicted with the accused, he

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is an accomplice. For example, when numbers of persons have committed an offence and one of them is
produced as a witness before the court, he is called as accomplice.

Section 133 lays down that an accomplice shall be a competent witness against an accused person and
the conviction is not illegal merely because it proceeds from the uncorroborated testimony of an
accomplice. He being a guilty associate shall be a competent witness in crime.

However, Section 133 has to be read along with Section 114(b) and reading them together the law is
well settled that the rule of prudence requires that the evidence of an accomplice should ordinarily be
corroborated by some other evidence. It is desirable that the court seeks reassuring circumstances to
satisfy the judicial conscience that the evidence is true. In a smuggling case the Supreme Court once
again observed: “the evidence of an approver does not differ from the evidence of any other witness
except that his evidence is looked upon with great suspicion. But the suspicion may be removed and if
the evidence of an approver is found to be trustworthy and acceptable then the evidence might well be
decisive in securing conviction.”

9) Experts Opinion:

ANS:

Definition of expert opinion: A person who is a specialist in a subject, often technical, who may present
his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or
criminal case.

The Indian Evidence Act under Section 45 enumerates the law relating to Opinion of Experts or
commonly known as Expert Opinion/Expert evidence. This statutory provision is adhered to when the
Court has to form opinion pertaining to:

-foreign law
-science
-identity of handwriting
-finger impressions

In such cases, the Court seeks opinion of skilled persons i.e. experts in the aforementioned fields.
Matters commonly made the subject of such evidence include causes of death, insanity, effects of
poison, genuineness of works of art, value of articles, genuineness of handwriting, proper navigation of
vessels, meaning of trade terms and foreign law. A witness who is qualified to speak on these matters is
called an expert.

Importance of Expert Opinion:

The Supreme Court in the case of State of H.P. v. Jai Lal and Others. explained the substance of expert
opinion by stating that Section 45 of the Evidence Act which makes opinion of experts admissible lays
down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or
as to identity of handwriting or finger impressions, the opinions upon that point of persons specially
skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger
impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert
it has to be shown that he has made a special study of the subject or acquired a special experience
therein or in other words that he is skilled and has adequate knowledge of the subject.

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10) Conclusive proof:

ANS:

Definition:

Conclusive Evidence is evidence that cannot be contradicted by any other evidence. It is so strong as to
overbear any other evidence to the contrary. The evidence is of such a nature that it compels a fact-
finder to come to a certain conclusion.

There are three sections in the Act which deal with conclusive proof, viz., Ss. 41, 112 and 113. The
contents of these sections are discussed below.

1. Judgments in probate and other jurisdictions (S. 41):

A final judgment, order or decree of a competent Court, in the exercise of its.

(i) Probate,
(ii) Matrimonial,
(iii) Admiralty, or
(iv) Insolvency jurisdiction

2. Birth during marriage conclusive proof of legitimacy (S. 112):

Evidence that a child is born during wedlock is sufficient to establish its legitimacy, and shifts the burden
of proof to the party seeking to establish the contrary.

The basis of the rule contained in S. 112 seems to be that it is undesirable to enquire into the paternity
of a child whose parents have access to each other. This section refers to the point of time of the birth
of the child as the deciding factor, and not to the time of conception of that child; the latter point of
time has to be considered only to see whether the husband had no access to the mother.

3. Cession of Territory (S. 113):

A Notification in the Official Gazette that any portion of British territory has, before the commencement
of Part III of the Government of India Act, 1935, been ceded to any Native State, Prince or Ruler is
conclusive proof that a valid cession of such territory took place at the date mentioned in such
Notification.

Conclusion:
Sections 41, 112 and 113 are the only sections which deal with matters which are to be regarded as
“conclusive proof”. No rule of the kind can be based on considerations of evidence, because enquiry is
altogether excluded.

11) Leading question:

ANS:

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Definition:

Section 141 of the Indian Evidence Act 1872 defines 'Leading Questions' as, “Any questions suggesting
the answer which the person putting it wishes or expects to receive is called a leading question."

Why are leading questions allowed in cross examination?

Leading questions are also allowed during a cross-examination when an attorney is questioning the
other party's witnesses. This is because one of the purposes of cross-examination is to test the
credibility of statements that a witness made on direct examination.

Examination in Chief is the first examination after the witness has been sworn or affirmed. It is the
prerogative of the party by who the witness has been called to examine him in chief so as to get all the
material facts within his knowledge to prove such a party’s case.

Cross- Examination is a powerful tool to test the veracity of a witness and the accuracy or completeness
of what he has stated. Cross- examination can at times take form of intensive questioning with the
expected answers hinted to in such questions itself.

Leading questions cannot ordinarily be asked in examination-in- chief or re-examination. The witness is
presumed to be biased in favour of the party examining him and might thus be prompted. The reason
for excluding leading questions is quite obvious; it would enable a party to prepare his story and evolve
it in his very words from the mouth of his witness in Court.

Leading questions can, only be asked when they refer to matters, which are (1) introductory; (2)
undisputed; or (3) sufficiently proved. For, if such questions were not allowed, the examination would
be most inconveniently protracted.

Leading questions can, however, be asked in cross-examination. This is so, because the very purpose of
a cross-examination is to test the accuracy, credibility and general reliability of the witness.

12) Patent ambiguity:

ANS:

Definition:

Patent ambiguity is defined in Secs.93 and 94 of the Indian Evidence Act, 1872. “When the language
used in a document is, on its face, ambiguous or defective, evidence may not be give of facts which
would show its meaning or supply its defects.”

Patent ambiguity refers to uncertainty on the face of a legal document. This gives the agreement or
contract an indefinite meaning. When a document includes a patent ambiguity, no external evidence
can show the testator's intention, which remains unclear. A patent ambiguity may invalidate an
agreement or contract.

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When the language used in a document is, on its face, ambiguous or defective, evidence may not be
given of facts which would show its meaning or supply its defects.

Illustrations:

(a) A agrees, in writing, to sell a horse to В for “Rs. 1,000 or Rs. 1,500.” Evidence cannot be given to
show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant
to be filled.

Conclusion:
Generally, outside evidence may be introduced to clear up an ambiguity that is obvious on the face of
the document. If the court determines that an ambiguity exists, it may consider extrinsic evidence to
resolve the ambiguity. Many courts do not distinguish between patent and latent ambiguities.

13) Hearsay Evidence:

ANS:

Definition:
Hearsay Evidence. The term “hearsay” refers to an out-of-court statement made by someone other than
the witness reporting it. For example, while testifying in John's murder trial, Anthony states that John's
best friend told him that John had killed the victim.

Hearsay evidence “denotes that kind of evidence which does not derive its value solely from the credit
given to the witness himself, but which rests also, in part, on the veracity and competence of some
other person.” The evidence is such that the witness has no personal knowledge about the fact in
question, rather it is derivative based on the second-hand knowledge, “Sometimes it means whatever a
person is heard to say; sometimes it means whatever a person declares on information given by
someone else; sometimes it is treated as nearly synonymous with ‘irrelevant’.

Exclusion of hearsay evidence:

Hearsay evidence is excluded owing to its infirmity as compared with its original source. It is always
desirable in the interest of justice to get a person whose statement can be relied upon.

Exception to hearsay rule:

There are number of exceptions to the rule of hearsay. All exceptions have been imported in the
Evidence Act. Primarily, the exceptions are to be found in Sections 17 to 39 of the Act as well as in
Provision to Section 60.

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Long Answers:

1) When Facts not otherwise relevant becomes relevant?

ANS:

Section 11 of the Indian Evidence Act, 1872

When facts not otherwise relevant become relevant:

Facts not otherwise relevant are relevant—

(1) If they are inconsistent with any fact in issue or relevant fact;

(2) If by themselves or in connection with other facts they make the existence or non-existence of any
fact in issue or relevant fact highly probable or improbable.

Illustrations:

(a) The question is, whether A committed a crime at Calcutta on a certain day.

The fact that, on that day, A was at Lahore is relevant.

The fact that, near the time when the crime was committed, A was at a distance from the place where it
was committed, which would render it highly improbable, though not impossible, that he committed it,
is relevant.

(b) The question is, whether A committed a crime.

The circumstance are such that the crime must have been committed either by А, В, С or D, every fact
which shows that the crime could have been committed by either В, С or D, is relevant.

Case Law-1:

Facts which makes thing highly improbable are also relevant

In Santa Singh v. State of Punjab (1956) The witnesses testified that they saw the deceased being shot
from a distance of twenty-five feet. The medical report showed that the nature of the wound was such
that it could have been caused only from distance less than a yard. Thus, the expert opinion rendered
the statement of witnesses highly probable.
This section is too wide in its import. It does not place any restriction upon the range of facts that can be
admitted as showing inconsistencies or probabilities.
It leaves the whole thing at the discretion of the court.

Case Law-2:

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In Reg. v. Prabhudas (1874) where to prove the offence of forgery by the accused, evidence was offered
of other forged documents found in his possession, as this would make it probable that he committed
the forgery.

Case Law-3:
In Umashanker v. State of Chattisgarh (2001) in a charge of passing a fake currency note, the relevancy
of possession of other fake note proved mens rea or guilty state of mind or knowledge.

2) Dying declaration. Examine the evidentiary value of dying declarations:

ANS:

Definition: Section 32(1) of Indian Evidence Act

In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay but
may in common law nonetheless be admitted as evidence in criminal law trials because it constituted
the last words of a dying person.

Evidentiary value of dying declaration:

Dying declaration can only be taken into consideration when it is

I. Recorded by a competent magistrate (with certain exception),
II. the said statement must be recorded in the exact words,
III. there must not be any scope of influence from the third party, and hence the declaration must
be made soon after the incident that is the reason of the death,
IV. There must not be any ambiguity regarding the identity of the offender or cause of death.

It is very important to note that such a statement must not be made under the influence of anybody or
it must not be given by promoting or tutoring. In case there is such a suspicion, then such dying
declaration needs evidence to corroborate.

Case Law:
The case of Kushal Rao v. State of Bombay set several precedents for future cases involving the dying
declaration.

I. First, a dying declaration which has been recorded by a competent Magistrate in the proper
manner i.e. in the form of questions and answers, &, as far as practicable in the words of the
maker of the declaration stands on a much higher footing than a dying declaration which
depends upon oral testimony. The court observed that dying declaration that depends upon oral
testimony may suffer from all the infirmities of human memory & human character.
II. Second, there is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated and therefore, a true & voluntary declaration can be sole basis
of conviction, provided, it is corroborated.
III. Third, a dying declaration stands on the same footing as other piece of evidence. Therefore, it
has to be judged in the light of surrounding circumstances and with reference to the principle
governing the weight of evidence.

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IV. Fourth, a dying declaration is not a weaker kind of evidence than any other piece of evidence;
however, each case must be determined on its own facts and the court must keep in view the
circumstances in which the dying declaration was made.
V. Fifth, the court must test the reliability of the dying declaration for which it has to keep in view
the circumstances like the opportunity of the dying man for observation. For instance, whether
there was sufficient light if the crime was committed in the night. The court must also test
whether the capacity of man to remember the facts stated had not been impaired at the time
he was making the statement by circumstances beyond his control.
VI. Sixth, the court must also test whether the statement has been consistent throughout if he had
several opportunities of making a dying declaration apart from the official record of i. Also, the
statement had been made at the earliest opportunity & was not the result of tutoring by
interested party.

3) Discuss the conditions for the relevancy and admissibility of dying declaration:

ANS:

1. To whom the statement is to be made and its form.

2. The person making the statement must have died.
3. Statement must relate to the cause of his death or the circumstances of the transaction which
resulted in his death.
4. The cause of death must be in question.
5. The statement must be complete and consistent.
6. Declarant must be competent as a witness.

1. To whom the statement is to be made and its form:

A statement of dying declaration could be made to any person – a doctor, a Magistrate, a friend or near
relative, a police officer. However, a statement recorded by a Magistrate or doctor is considered more
reliable, and that recorded by a police officer or close relative not (require more scrutiny).

No particular form of recording a statement is prescribed. The statement could be written, oral or even
verbal (e.g., gestures).

2. The person making the statement must have died:

The death need not occur immediately after the making of the statement. However, the death must
occur. If the persons making the declaration chances to live, his statement is inadmissible as a dying
declaration, but it might be relied under section 157 to corroborate his testimony when examined. Such
a statement can also be used to contradict him under section 145

3. Statement must relate to the cause of his death or the circumstances of the transaction which
resulted in his death:

If the statement made by the deceased does not relate to his death, but to the death of another, it is not
relevant. For example, where the wife made a statement that her husband is killed by Z and then she
committed the suicide.

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The circumstances of transaction resulting in death must bear proximate relation to the cause of death
or actual occurrence. The general expressions indicating fear or suspicion, whether of a particular
individual or otherwise and not directly related to the occasion of death will not be admissible.

4. The cause of death must be in question:

The declaration under section 32(1) must relate to the death of the declarant. In Dannu Singh v.
Emperor, A and five other persons were charged with having committed a dacoity in a village. A, who
was seriously wounded while being arrested, made before his death a dying declaration as to how the
dacoity was committed and who had taken part in it. It was held that declaration was not admissible in
evidence against other persons, as it does not relate to his death, but relates to participation of his
associates in the dacoity.

5. The statement must be complete and consistent:

If the deceased fails to complete the main sentence (as for instance, the genesis or the motive for the
crime), a dying declaration would be unreliable. However, if the deceased has narrated the full story, but
fails to answer the last question as to what more he wanted to say, the declaration can be relied upon.

A dying declaration ought not to be rejected because it does not contain details or suffers from minor
inconsistencies.

6. Declarant must be competent as a witness:

It is necessary for the relevancy of a dying declaration that the declarant, if he had lived on, would have
been competent witness. Thus, in a prosecution for the murder of a child, aged four years, it was
proposed to put in evidence, as a dying declaration, what the child said shortly before her death. The
declaration was held to be inadmissible.

7. Other points:-
Where the injured person was unconscious, dying declaration should be rejected. Where for some
unexplained reasons the person who noted down (scribe) the statement was not produced, the
declaration was not accepted as evidence.

Where an injured person lodged the F.I.R. and then died, it was held to be relevant as dying declaration.

4) Define Admission. Discuss the relevancy of admissions.

ANS:

Definition:

Admission as per Indian Evidence Act –

Section 17 of Indian Evidence Act defines Admission as a statement which may be in oral, documentary,
or electronic form, suggesting any inference as to any concerned fact and is made by any of the persons
and under the circumstances mentioned below:

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Section 18 – Admissions by party to proceeding or his agent; by suitor in representative character; by

party interested in subject-matter; by person from whom interest derived –

I. Statements made by the persons who are directly or indirectly a party to a suit.
II. Statements made by persons who are suing or being sued in a representative character are
admissions, only if those statements were made by the party while being in that representative
character.
III. Similarly, statements made by persons who have a pecuniary interest in the subject matter of
the proceeding and statements made by persons from whom such interest is derived by the
parties in suit, are also admissions if they are made while the maker had such an interest.
For example, A bought a piece of land from B. Statements made by B at the time when B was the owner
of the land is admissions against A.

Section 19 – Admissions by persons whose position needs to be proved:

I. Statements made by persons whose position or whose liability is necessary to prove as against
any party to the suit, are admissions,
II. if such statements would be relevant as against such persons in relation to
III. such position or
IV. liability in a suit brought by or
V. against the made if they are made whilst the person making them occupies such position or
VI. Is subject of such liability.

Illustrations:

P undertakes to collect rent for Q.

Q sues P for not collecting rent due from R to Q.
X denies that rent was due from Z to Y.
X statement by Z that he owned Y rent is an admission, and is a relevant fact as against X, if X denies that
Z did owe rent to Y.

Section 20 – Admission by persons expressly referred to by party to suit –

Statements made by any persons to whom a party (to the suit) has expressly referred in reference to a
matter in dispute for information, are admissions.
Illustration –
The question is, whether a horse sold by P to Q is sound P says to Q “Go and ask R. R knows all about it”
R’s statement is an admission.

Section 21 Proof of admissions

Admissions are relevant and may be proved as against the person;

I. who makes them or

II. his representative in interest and
III. not by or on behalf of the person
IV. who makes them or by his representative in interest
V. except in following cases:

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VI. it is of a nature that the person making it, if were dead, it would be as relevant as between third
persons under section 32 of the code
VII. it consists of a statement of existence of any state of mind or body,
VIII. It is relevant otherwise than as an admission.

5) What are the various modes of examination of witness?

ANS:

Attorneys question witnesses on the stand through various modes:

1. Direct Examination.
2. Cross-Examination.
3. Challenging Witness's Credibility on Cross-Examination.
4. Redirect and Recross Examination.
5. Defense's Case.

Direct Examination:
During direct exams, attorneys can ask witnesses to identify demonstrative evidence, such as
documents and photographs and/or to explain what they saw, heard, or did in relation to the case at
hand. For example, a plaintiff's attorney in a car accident personal injury lawsuit may call a bystander to
testify as to what he or she saw just before, during, and/or after the accident, including what the
weather was like, what happened during the accident, and any other details the witness remembers
from the day.

During direct examination, a judge will have some control over the scope and form of the questions. The
judge can stop repetitive questioning and prevent a lawyer from asking leading questions, which imply,
suggest, or prompt the witness to give a particular answer. However, a judge won't restrict questions
unless the other attorney makes an objection. If the plaintiff's attorney is leading the witness, then the
attorney for the "defendant" (the person being sued) can object to the question.

Cross-Examination:
After the plaintiff's attorney completes the direct examination, the defendant's attorney gets to cross-
examine the witness. Cross-examination is a fundamental right in the American system of justice.
Generally, cross-examination is limited to matters covered during the direct examination. The attorney
may ask leading questions during cross-examination.

Challenging Witness's Credibility on Cross-Examination:

During cross-examination, the attorney tries to undermine or impeach the witness's credibility by
showing that the witness is not reliable or that the witness may have misstated something or even lied
during the direct examination. For example, if the witness said one thing in an accident report or during
a deposition and then testified differently at trial, the defendant's attorney can refer to the previous
statements and show inconsistencies in the story.

The attorney might also try to show that the witness is biased or prejudiced toward a party in the case.
Another way to undermine the witness's credibility is to show that the witness has a stake in the
outcome of the case, which might influence the testimony.

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Redirect and Recross Examination:

Following cross-examination of the witness, the plaintiff's attorney has an opportunity to ask the
witness follow-up questions regarding topics discussed during the cross. After this, the opposing
attorney can conduct a final recross examination of the witness, which is limited to the subjects brought
up during the redirect.

Defense's Case:
Once the plaintiff's attorney has called all of the plaintiff's witnesses, the defendant's attorney begins
calling witnesses. The same procedure is followed as in the plaintiff's presentation of witnesses. The
defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney will
conduct cross-examinations.

6) Who is an Expert? When are opinions of expert relevant?

ANS:

Definition:

Definition of expert opinion: A person who is a specialist in a subject, often technical, who may present
his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or
criminal case.

Relevancy of an Expert Opinion:

I. Opinion of examiner of Electronic Evidence (Section 45A)

II. Facts bearing upon opinions of experts (Section 46) :
III. Opinions as to handwriting, when relevant (Section 47)
IV. Opinion as to digital signature when relevant (Section 47A)
V. Opinion as to existence of right or custom when relevant (Section 48)
VI. Opinion as to usage’s, tenants, etc., when relevant (Section 49)
VII. Opinion on relationship, when relevant (Section 50)
VIII. Grounds of opinion when relevant (Section 51)

i) Opinion of examiner of Electronic Evidence (Section 45A):

When in a proceeding, the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or digital form, the opinion of
the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000
(21 of 2000), is a relevant fact.

Explanation - For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.

ii) Facts bearing upon opinions of experts (Section 46):

Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts
when such opinions are relevant.

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Illustrations:

The question is, whether A was poisoned by a certain poison. The fact that other persons who were
poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms
of that poison, is relevant.

iii) Opinions as to handwriting, when relevant (Section 47):

When the Court has to form an opinion as to the person by whom document was written or signed, the
opinion of any person acquainted with the handwriting of the person by whom it is supposed to be
written or signed that it was or was not written or signed by that person, is a relevant fact.

iv) Opinion as to digital signature when relevant (Section 47A):

When the Court has to form an opinion as to the "digital signature" of any person, the opinion of the
Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

v) Opinion as to existence of right or custom when relevant (Section 48):

When the Court has to form an opinion as to existence of any general custom or right, the opinions as to
the existence of such custom or rights, of persons who would be likely to know of its existence if it
existed, are relevant.

Illustration:
The right of the villagers of a particular village to use the water of a particular well is a general right
within the meaning of this section.

vi) Opinion as to usages, tenants, etc., when relevant (Section 49):

When the Court has to form an opinion as to - the usage’s and tenants of any body of men or family, the
constitution and government of any religious or charitable foundation, or the meaning of words or
terms used in particular districts or by particular classes of people, the opinions of persons having
special means of knowledge thereon, are relevant fact.

vii) Opinion on relationship, when relevant (Section 50):

When the Court has to form an opinion as to the relationship of one person to another, the opinion,
expressed by conduct, as to the existence of such relationship, or any person who, as a member of the
family or otherwise, has special means of knowledge on the subject, is a relevant fact.

viii) Grounds of opinion when relevant (Section 51):

Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are
also relevant. Illustration An expert may give an account of experiments performed by him for the
purpose of forming his opinion.

7) What is secondary evidence? Under what circumstances secondary evidence is admissible?

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ANS:

Definition: Section 63 of Indian Evidence Act, 1872 deals with Secondary Evidence.

A reproduction of, or substitute for, an original document or item of proof that is offered to establish a
particular issue in a legal action.

Secondary evidence is evidence that has been reproduced from an original document or substituted for
an original item. For example, a photocopy of a document or photograph would be considered
secondary evidence. Another example would be an exact replica of an engine part that was contained in
a motor vehicle. If the engine part is not the very same engine part that was inside the motor vehicle
involved in the case, it is considered secondary evidence.

When Secondary Evidence is Admissible:

According to Section 65.of the Indian Evidence Act, 1872 Secondary evidence may be given of the
existence, condition or contents of a document in the following cases:

a) When the original is shown or appears to be in the possession or power of the person against whom
the document is sought to be proved, or of any person out of reach of, or not subject to, the process of
the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section
66, such person does not produce it;

b) When the existence, condition or contents of the original have been proved to be admitted in writing
by the person against whom it is proved or by his representative in interest;

c) When the original has been destroyed or lost, or when the party offering evidence of its contents
cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

d) When the original is of such a nature as not to be easily movable;

e) When the original is a public document within the meaning of Section 74;

f) When the original is a document of which a certified copy is permitted by Evidence Act, or by any
other law in force in India to be given in evidence;

g) When the originals consist of numerous accounts or other documents which cannot conveniently be
examined in Court, and the fact to be proved is the general result of the whole collections.

I. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
II. In case (b), the written admission is admissible.
III. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is
admissible.
IV. In case (g), evidence may be given as to the general result of the documents by any person who
has examined them, and who is skilled in the examination of such documents.

Conclusion:

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Secondary Document is the document which is not original document. Giving Secondary Evidence is
exception to the general rule. Notice is required to be given before giving secondary evidence. The value
of Secondary evidence is not as that of primary Evidence

8) Explain the nature, scope and purpose of cross examination of witnesses:

ANS:

Definition:
"Cross-examination is the interrogation of a witness by a party other than the direct examiner upon a
matter that is within the scope of the direct examination of the witness. Generally the scope of
examination is limited to matters covered on direct examination.”

Scope of cross examination:

The scope of cross-examination is limited to questions involving the subject matter of the direct
examination or the credibility of a witness. The outside limits of cross-examination fall within the
discretion of the trial judge.

According to Section 137, para 2 of the Indian Evidence Act, 1872: The examination of a witness by the
adverse party shall be called his cross-examination. Cross-examination considered most powerful
weapon. According to Philip Wendell, "Cross-Examination is double-edged weapon, if you know how to
wield, it helps to cut enemy's neck Otherwise, it cuts own hands"

Limit-

It should be remembered that the witnesses must speak to facts and not to opinions inference or
beliefs. A witness may be cross-examined as to previous statements made by him in writing or reduced
into writing. Leading questions may be asked.

Object-

The object of the cross examination is to test the truth of statement made by witness, to see how
far is memory is reliable or what powers of observation possesses whether he is partial or impartial, etc.
; in short it is an attempt to break down a witness or to show that his statement cannot be relied upon.
The object and scope of cross-examination is twofold to weaken qualify or destroy the case of the
opponent; and to establish the party's own case by means of his opponents witnesses. With this view
the witness may be asked not only as facts in issue or directly relevant thereto, but all question

(1) Tending to test his means of knowledge,

(2) Tending to expose the error, of omission, contradictions and improbabilities in the testimony or
(3) Tending to impeach his credit.

The object of cross examination are to a impeach the accuracy, credibility and general value of
the evidence given in chief ; to sift the facts already stated by the witness, to detect and expose
discrepancies or to elicit suppressed facts which will support the case of cross examination of party.

Case Law:

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Sukhawant Singh v. State of U.P AIR 1995 SC 1601

In this case the Supreme Court has held that a witness cannot be thrown open to cross-
examination unless he is first examined-in-chief. Where the prosecution did not examine its witness and
offered him to be cross examined, it was held that this amounted to abandoning one's own witness,
there cannot be any cross-examination without the foundation of examine-in-chief.

9) What are Privilege communications?

ANS:

Introduction:

The privilege of a witness means the right of a witness to withhold evidence to disclose certain
matters. There are certain circumstances in which certain persons are not compelled to testify (to give
evidence). The right is based on the convenience and public policy. Section 122 to Section 132 of Indian
Evidence Act 1872 provide for privileged Communications.

A "privileged professional communication" is a protection awarded to a communication between the

legal adviser and the client. It is out of regards to the interest of justice, which cannot go on without the
aid of men skilled in jurisprudence in the practice of Courts, and in those matters affecting rights and
obligations, which form the subject matter of all judicial proceedings. If the privilege did not exist at all,
everyone would be thrown upon his own legal resources. Deprived all professional assistance, a man
would not venture to consult any skilled person, or would only dare to tell his counsel half his case. The
following discussion compares the laws dealing with privileged communications in India and England.

Indian law:
In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged that is attached to
professional communication between a legal adviser and the client. Section 126 and 128 mention
circumstances under which the legal adviser can give evidence of such professional communication.
Section 127 provides that interpreters, clerks or servants of legal adviser are restrained similarly. Section
129 says when a legal adviser can be compelled to disclose the confidential communication which has
taken place between him and his client.
Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to

1. Disclose
I. any communication made to him by or on behalf of his client or
II. Any advice given by him to his client in the course and for the purpose of his employment.

2. To state the contents or conditions of any document with which he has become acquainted in the
course and for the purpose of his employment.

English law:
In England, the main category of privilege afforded to a communication is legal professional privilege.
Further there are two types of legal professional privilege:

1. Legal advice privilege:

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It protects communication between a lawyer in his professional capacity and his client provided they are
confidential and are for the purpose of seeking or giving legal advice. This type of legal priviledge is
similar to that under Section 126 of the Indian Evidence Act.

2. Litigation privilege:
The second type of legal professional privilege arises only after litigation or other adversarial proceeding
are commenced or contemplated. It is wider than legal advice privilege and protects all documents
produced for sole and dominant purpose of the litigation, including all communication between
I. A lawyer and his client
II. A lawyer and his nonprofessional agents
III. A lawyer and a third party.
This type of privilege has similar protection under Section 127 and 129 of the Indian Evidence Act.

10) Discuss the general rule relating to burden of proof:

ANS:

Definition:

The burden of proof is the task of proving that you are correct, for example when you have accused
someone of a crime. The burden of proof is on the prosecution.

Specific rules of Burden of Proof: Section 104 to Section 143.

Evidence admissible:

Section 104 deals with the burden of proving fact to be proved to make evidence admissible:

The burden of proving any fact necessary to be proved in order to enable any person to give evidence of
any other fact is on the person who wishes to give such evidence.

Burden of Proof on Accused -

Section 105 deals with the Burden of proving the fact that in a criminal case, the case of the accused
comes within one or the other of the exceptions as to liability.

Special knowledge -

Section 106 deals with the burden of proving a fact within the special knowledge of a particular person:

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon
him.

Proof of Death -

Section 107 and 108 deals with the burden of proving the death of a person and proving that a person
was alive, in certain circumstances. This section says:

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Section107: When the question is whether a man is alive or dead, and it is shown that he was alive
within thirty years, the burden of proving that he is dead is on the person who affirms it.

Burden in case of certain relations:

When the question is whether persons are partners, landlord and tenant, or principal and agent, and it
has been shown that they have been acting as such, the burden of proving that they do not stand, or
have ceased to stand to each other in those relationships respectively, is on the person who affirms it.

Burden in case of terrorist -

Section 111(a) states:

it is shown that such person had been at a place in such area at a time when firearms or explosives were
used at or from that place to attack or resist the members of any armed forces or the forces charged
with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless
the contrary is shown, that such person had committed such offence.

Burden in case of Dowry Death -

Section 113(A) is as follows

When the question is whether the commission of suicide by a women had been abetted by her husband
or any relative of her husband and it is shown that she had committed suicide within a period of seven
years from the date of her marriage and that her husband or such relative of her husband has subjected
her to cruelty, the court may presume, having regard to all the other circumstances of the case, that
such suicide had been abetted by her husband or by such relative of her husband.

Section 113-B is as follows:

When the question is whether a person has committed the dowry death of a women and it is shown
that soon before her death such woman had been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry; the court shall presume that such person had caused
the dowry death.

Burden in certain cases of rape -

Section 114-A is as follows

"In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause
(g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of
section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved
and the question is whether it was without the consent of the woman alleged to have been raped and
such woman states in her evidence before the court that she did not consent, the court shall presume
that she did not consent. "

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Proof regarding legitimacy -

Section 112 is as follows:

"The fact that any person was born during the continuance of a valid marriage between his mother and
any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the
parties to the marriage had no access to each other at any time when he could have been begotten."

Cases of suicide:

A new Section 113A has been added by Act 46 of 1983 with effect from 25th December, 1983. It
provides that:

Presumption as to abetment of suicide by a married woman.- When the question is whether the
commission of suicide by a women had been abetted by her husband or any relative of her husband and
it is shown that she had committed suicide within a period of seven years from the date of her marriage
and that her husband or such relative of her husband has subjected her to cruelty, the court may
presume, having regard to all the other circumstances of the case, that such suicide had been abetted
by her husband or by such relative of her husband.

Conclusion -
The rule is in accordance with the principle that the burden of proof is upon the party who substantially
assert the affirmative of the issue but not on the party who denies. The reason behind this rule is that
who drags anther into the Court must bear the burden of proving the facts which he asserts.

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What is contract of wager?

In wagering agreement, neither party has any interest in happening or non-happening of

an event. But in a contract of insurance, both parties are interested in the subject-
matter.
A wager means a bet. The subject matter of bet may be anything. It is a game of
chance in which the event of either gain or loss, is wholly dependent on an uncertain
event. Sir William Ansons defines it as : "a promise to give money's worth upon the
determination or ascertainment of an uncertain event." In the words of Cockburn, C.J. :
"it is a contract by A to pay to B on the happening of a given event in consideration of
B’s promise to pay money to A on the event not happening."

a contract by which a promisor agrees that upon the occurrence of an uncertain event
or condition he or she will render a performance for which there is no agreed
consideration exchanged, and under which the promisee or the beneficiary of the
contract is not made whole for any loss caused by such occurrence

A contract is a voluntary, deliberate, and a legally binding agreement between two or

more parties. Contracts in the general sense are usually written but they can be spoken
or implied on the mutual consent of both the parties and are generally related to lease,
rent, sale or employment. Under Section 2(h) of the Indian Contract Act, 1872 the
term Contract has been specifically defined as an agreement which is enforceable by
law. Thus, it implies that an agreement which is enforceable by law is a contract. A
contract is a legal way of performing activities between two parties and making sure that
neither of the party at any point of time while in the performance of the contract backs
out or otherwise the other party can sue him in the court of law for the breach of
Contract.

what is premium in insurance

An insurance premium equates to the money that is paid by any person or
company/business for availing of an insurance policy
Definition: Premium is an amount paid periodically to the insurer by the insured for covering his
risk.

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Description: In an insurance contract, the risk is transferred from the insured to the insurer. For
taking this risk, the insurer charges an amount called the premium. The premium is a function of
a number of variables like age, type of employment, medical conditions, etc. The actuaries are
entrusted with the responsibility of ascertaining the correct premium of an insured. The premium
paying frequency can be different. It can be paid in monthly, quarterly, semiannually, annually or
in a single premium.

Your insurance company will pool together all the money that individuals pay
for premiums, which will then be paid out to individuals who need to be
covered for financial losses as a result of events or incidents stated in the
contract between you and the insurance company. Alternatively, the insurance
company may choose to use the money they earn from premiums to invest to
generate even higher returns for the insurer

Types of Insurance Premiums

There are many different types of premiums about various insurance policies,
including, but not limited to:

1. Life

Life insurance premiums are determined by your personal information,

including your age, health, and medical record. Factors such as whether or not
you smoke or consume alcohol will also determine the amount of premium
you will need to pay.

2. Health

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Some individuals may receive health insurance coverage from their employer,
so they may not need to pay for the premium. Without coverage provided by
your employer, it means that the lower the amount of premium you pay, the
more medical expenses you will need to pay out of your own pocket.

3. Auto

When you are purchasing auto insurance, the insurance company will be
looking at your driving records, such as violations, parking tickets, license
suspensions, and driving accidents. A driver with a clean driving record will be
charged with a smaller premium than a driver with a record consisting of
accidents and violations.

4. Homeowners

Homeowners’ insurance premiums are determined by the age, size, value, and
location of the property. Houses located in areas that are more prone to
extreme weather conditions, such as hurricanes or tornadoes, will tend to have
higher insurance premiums.

5. Renters

The amount of premium you need to pay will depend on the amount of
coverage and deductible. It will also depend on your location, credit score, and
how many insurance claims you’ve filed in the past. The more coverage you
get, the more expensive the premium will be.

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What Determines an Insurance Premium?

The amount of insurance premium differs for each person. It will depend on
several factors, such as:

 Type of Insurance Coverage: A more comprehensive insurance policy

that provides you more coverage than another policy will result in a
more expensive premium.
 Amount of Insurance Coverage: Premiums are less expensive if the
amount of coverage is less.
 Insurance History (and any past claims made)
 Personal Information: The policyholder’s age, place of residence,
marital status, lifestyle, medical history, credit history, driving record,
and employment status

Who Determines an Insurance Premium?

Actuaries in insurance companies are responsible for determining how much

you should pay for insurance premiums using statistics and mathematics. They
will determine the likelihood that you will encounter an event or accident that
will require you to receive insurance coverage. The costs associated with the
coverage are also calculated.

Using the above factors to determine the insurance premium, actuaries will
then come up with a price for the insurance company to charge you, so the
amount they are receiving is greater than the amount the company needs to
pay for insurance claims.

The information that actuaries collect is then put into a table called
an actuarial table, which is then given to the insurance underwriter, who will
establish the pricing for the premium.

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The Impact of Insurance Deductibles

Almost all insurance policies come with a deductible, except for life insurance.
A deductible refers to a specific amount of money that you will need to pay
out of your own pocket to cover financial losses before the insurance
company covers the rest.

The more you pay for the deductible, the less you pay for the premium. On
the other hand, the less you pay for the deductible, the more you pay for the
premium.

What is an insurance premium?

Put simply, an insurance premium is an amount paid for purchasing an insurance plan.
An insurance plan is a contract between an insurer and an insured. Any valid contract
has a consideration, and the consideration you pay for an insurance policy is called its
insurance premium. Premium can be a regular monthly, quarterly, half-yearly, or yearly
payment. It could even be a one-time lump sum payment, depending upon the policy
terms.

Premium Rates
Your premium rates can differ, depending on a range of factors.

These factors include:

 type of policy you opt for

 age of the insured

 Lifestyle habits like smoking and alcohol

 medical history (diabetes, heart condition, etc.)

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Insurers appoint actuaries to analyze these factors and assess the risks associated with
a possible claim. The greater the risk, the higher is the life insurance premium.

Additionally, the rate of premium also increases with added benefits and riders, which
are essentially add-on benefits such as disability benefits, critical illness cover, accident
cover, etc.

Rebates
In insurance terminology, a rebate is a discount offered to the policyholder upon their
insurance premium.

 A higher sum assured could get you a rebate, as the cost of servicing the policy reduces for

the insurer. Basically, the servicing cost for each policy of one category is the same. Thus,

the per unit cost of servicing becomes lower with a higher sum assured.

 Higher the premium payment frequency, higher the servicing cost i.e. collection, deposit,

administrative charges, etc. for the insurer. Hence, a lump sum premium or limited premium

plan could get you a rebate, which will usually be pre-calculated within the life insurance

premium amount.

 Online payment eliminates the need for agents and their charges. Hence, a lot of companies

provide rebates on online payment. It is a win-win as online payments are also more

convenient for policyholders.

Types of Premiums
Depending on the policy terms and conditions, policyholders may be offered three
broadly different types of premiums:

 Level Premiums

 Increasing Premiums

 Decreasing Premiums

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Level Premiums

As your mortality risk increases with age, so does your insurance providers’ liabilities.
Consequently, the premiums levied would also see a spike. To make things simpler for
the life insured, insurance providers average out the chargeable premiums over the
course of the policy term (taking into account such spikes) and provide you with a level
amount to pay throughout the term. This means that the amount of premium is fixed and
does not change throughout the course of the policy. Most life insurance policies have
level premiums.

Increasing Premiums

For those who do not wish to pay level premiums, increasing premiums, i.e. premium
rates that increase over the policy tenure, can be opted for.

Decreasing Premiums

Decreasing premiums are applicable on a mortgage redemption policy. In such policies,

the insurance premium decreases with a decrease in outstanding loan amount.

Late payment and non-payment

If life insurance premium isn’t paid when it’s due, a grace period is usually provided.
You can pay your premium without extra charges. However, if you are unable to do so,
your policy could lapse. You can also revive a lapsed policy by paying all overdue
premiums along with interest, provided that your insurance company agrees to revive
your policy.

What is risk?

n insurance terms, risk is the chance something harmful or unexpected could happen. This
might involve the loss, theft, or damage of valuable property and belongings, or it may involve
someone being injured. ... This helps the insurer determine the amount (premium) to charge for
insurance.

An insurance risk is a threat or peril that the insurance company has agreed
to insure against in the policy wordings. These types of risks or perils have
the potential to cause financial loss such as property damage or bodily injury
if it were to occur.

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If the insured event takes place and a claim is filed, the insurance company
has to pay the policyholder the agreed reimbursement amount.

Examples of insurance risks include the risk of fire, earthquake losses, or

even liability when an insured is found responsible for causing bodily injury,
death, or property damage to 3rd parties.

The more risks your insurance provider agrees to insure, the more
comprehensive—and therefore expensive—your policy will be.

The best policies are the ones that cover the most relevant insurance risks
you might face at the most reasonable cost.

Meaning of Risk:
In simple words risk is danger, peril, hazard, chance of loss, amount
covered by insurance, person or object insured. The risk is an event or
happening which is not planned but eventually happens with financial
consequences resulting in loss. There is saying higher the risk more
the profit.

A risky proposal can on one hand bring higher profits but on the other
hand looming losses. The risk can never be certain or predictable.
Therefore there is need for the risk management.

The risk management is nothing but a method to prejudge the risk

that may come up sometime in future. It is not prediction but a
process of reducing the risk to a minimum level. Risk management
involves a number of measures that are used to keep the risk at
possible minimum

What Is Compulsory Insurance?

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Compulsory insurance is any type of insurance an individual or business is

legally required to buy. Compulsory insurance is mandatory for individuals and
businesses that want to engage in certain financially risky activities, such as
operating an automobile or operating a business with employees. Compulsory
insurance is supposed to protect accident victims against the costs of recovering
from an accident that someone else, such as another driver or an employer, has
caused.

 Compulsory insurance is insurance that must be legally owned to do an

activity, such as auto insurance and driving a car.
 Other types of compulsory insurance include workers' compensation and
professional liability insurance.
 Compulsory insurance is a type of insurance that protects victims against
the costs of recovering from an accident.
 However, compulsory insurance requirements are not always easy to
enforce.
 Auto insurance is one of the most familiar types of compulsory
insurance. Drivers in North America are generally required to have
auto insurance while operating a vehicle. That way, if they cause
bodily injury or property damage while driving, their insurance policy
ensures that the victims can be compensated, even if the driver
cannot afford the damages out of pocket.
 Some commercial lines of insurance are also compulsory. In most
states, businesses with at least one employee must carry workers
compensation insurance (though there are exceptions – it is three or
more employees in Arkansas and five or more employees in
Mississippi, for instance). Like auto insurance, workers compensation
is required in order to ensure that victims (in this case, of occupational
injuries and illnesses) will be adequately compensated, no matter how
many funds the company has available

Compulsory insurance is any type of insurance coverage that is required by law

before individuals or businesses may engage in certain activities. The idea behind
this type of mandatory coverage is to protect the well-being of those who would
otherwise be adversely affected if the events covered in the terms of the policies
were to take place. From this perspective, the requirement of compulsory
insurance is intended to protect the interests of everyone concerned, including

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those who carry the insurance since doing so can often make it possible to avoid
the cost of a lengthy litigation.

One of the most common examples of compulsory insurance today is the

requirement by law to secure and maintain auto insurance. In many nations
around the world, drivers must provide proof of insurance when renewing an
operator’s license or attempting to secure a tag or title for a motor vehicle. Proof
of insurance must also be tendered to law enforcement officials upon request.
Failure to maintain auto insurance can lead to severe fines and in some cases
additional charges that lead to time spent in jail.

What is doctrine of subrogation

he doctrine of subrogation confers upon the insurer the right to receive the benefit of such
rights and remedies as the assured has against third parties in regard to the loss to the extent
that the insurer has indemnified the loss and made it good.

The doctrine of subrogation provides that if an insurer pays a loss to its insured due to
the wrongful act of another, the insurer is subrogated to the rights of the insured and
may prosecute a suit against the wrongdoer for recovery of its outlay. The right of an
insurer to be subrogated to the rights of its insured is typically based upon:

1. the terms of the policy of insurance; or,

2. the right of equitable subrogation, i.e., by operation of law.

The typical property insurance policy provision relating to subrogation provides in

pertinent part:

Subrogation. An insured may waive in writing before a loss all rights of recovery
against any person. If not waived, we may require an assignment of rights of recovery
for a loss to the extent that payment is made by us.

Common Law Principles

The common-law concept for subrogation by an insurer to the rights of its insured was
designed to place ultimate responsibility for loss upon the wrongdoer, i.e., on whom in
good conscience it should fall, and to reimburse the innocent party who is compelled to
pay.

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As a general rule, an insurer does not have a right of subrogation or indemnification

against its own insured. More specifically, an insurer has no right of subrogation against
its own insured for claims arising from the very risk for which the insured was covered.

In most instances, these separate and distinct rules respecting an insurer's right of
subrogation, and respecting the prohibition against subrogating against an insured, do
not conflict nor pose a problem for most insurers; nor, do they generally pose a problem
for the typical insured who may be liable for a negligent act.

Moreover, subrogation rights are usually not at issue when an insurer is faced with a
claim caused by the intentional act of its insured. Thus, in such instances the insurer will
generally have a right to properly deny coverage because the loss, as required by most
property policies, was not accidental, and because of the typical exclusion, under most
policies, for intentional acts committed by an insured.

However, where the insured has intentionally caused damage to the insured property,
and where the insurer is required to pay an innocent coinsured, the two above-
mentioned rules of law conflict. Thus, in instances where an insured is guilty of fraud or
deceit, and where an insurer has paid a claim to an innocent coinsured, the insurer will,
as subrogee and contrary to the general rules of law, seek to recover from the
tortfeasor-insured an amount equivalent to that paid the innocent coinsured.

There are three types of subrogations:

 Legal subrogation: a legal subrogation which arises by operation of law. It is an equitable

subrogation that can take effect with or without a contract. In re Eastern Marine, Inc., 104
B.R. 421 (Bankr. N.D. Fla. 1989). Note that normally, legal subrogation cannot be used to
displace a contract agreed upon by the parties. A legal subrogation can be modified or
terminated by a contractual agreement.
 Conventional subrogation: a conventional subrogation is a right flowing from
a contract. National Union Fire Ins. Co. v. Riggs Nat’l Bank, 646 A.2d 966 (D.C. 1994). It
normally arises when one individual satisfies the debt of another as a result of a contractual
agreement which provides that any claims or liens that exist as security for the debt be kept
alive for the benefit of the party who pays the debt. It is necessary that a conventional
subrogation agreement should be supported by consideration. However, it does not have to be
in writing and can be either express or implied. Usually, insurance payments vest to the
insurance company the rights of the insured once payment from the insurance company is
made and this is the subrogation most commonly known.
 Statutory subrogation: a statutory subrogation arises by an act of legislature. In re Stratford
Lamps, Inc., 120 B.R. 31 (Bankr. W.D. Pa. 1990). The act usually vests a right of subrogation
with a party or category of parties. It is governed by the terms of the statute under which it is
claimed as a matter of statutory construction.

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